“An individual is entitled to qualified immunity if his conduct does not violate clearly established constitutional rights of which a reasonable person would have known.”
How later courts described this case
- “An individual is entitled to qualified immunity if his conduct does not violate clearly established constitutional rights of which a reasonable person would have known.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
MICHELLE DENISE HOWARD PLAINTIFF
v. Case No. 4:19-cv-4011
PAM CHERRY, et al. DEFENDANTS
ORDER
Before the Court is the Report and Recommendation filed January 30, 2020, by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
ECF No. 46. Judge Bryant recommends that the Court grant Separate Defendant Pamela Fisk’s
Motion to Dismiss (ECF No. 17) and dismiss all claims against her. Plaintiff has responded with
objections. ECF No. 55. The Court finds the matter ripe for consideration.
On January 30, 2019, Plaintiff, representing herself, filed the complaint in this matter.
Pursuant to 42 U.S.C. § 1983, Plaintiff makes the following allegations against Pamela Fisk, an
Arkansas Department of Human Services (“DHS”) attorney: (1) failure to aggressively advocate
for Plaintiff; (2) failure to counsel Plaintiff before court proceedings; (3) failure to verify certain
information required by the case plan after Plaintiff signed a release allowing Fisk access to the
information; and (4) failure to notify Plaintiff that DHS was holding her mail. Plaintiff also alleges
that Fisk gave her false information concerning whether the state court judge would allow Plaintiff
visitation with her daughter while Plaintiff was in prison. Plaintiff is suing Fisk in both her
individual and official capacities.
Judge Bryant recommends that, because Fisk is a state official being sued in her official
capacity, she is immune from suit pursuant to the Eleventh Amendment. In her objections, Plaintiff
argues that Fisk is not entitled to sovereign immunity “because [Plaintiff] is seeking monetary
damages and an injunction that will allow [her] a final visit [with her daughter] and allow [her] to
write [to her daughter].” ECF No. 55, p. 8.
Official capacity claims brought against employees of a state are considered to be actions
against the state itself. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Thus, such
actions are subject to the limitations imposed by the Eleventh Amendment, which provides that
states are immune from claims brought against them in federal court unless the state has waived
its immunity or the state’s immunity has been overridden by Congress. Will, 491 U.S. at 66.
“Congress, in passing § 1983, had no intention to disturb the States’ Eleventh Amendment
Immunity.” Id. Arkansas and its agencies and officials have not consented to suit in federal court.
See Burk v. Beene, 948 F.2d 489, 492-93 (8th Cir. 1991). Accordingly, Plaintiff’s claims for
monetary damages against Fisk in her official capacity are barred by the Eleventh Amendment.
“Under the exception established in Ex parte Young, a private party may sue state officials
in their official capacities for prospective injunctive relief.” McDaniel v. Precythe, 897 F.3d 946,
951-952 (8th Cir. 2018) (citing Verizon Md. Inc. v. Pub. Serv. Comm’m of Md., 535 U.S. 635, 645
(2002)). In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment
bar to suit, a court conducts a “straightforward inquiry into whether [the] complaint alleges an
ongoing violation of federal law and seeks relief properly characterized as prospective.” Id.
(quoting Verizon, 535 U.S. at 645). The Court agrees with Judge Bryant’s finding that the facts
alleged by Plaintiff do not indicate any ongoing violation of federal law by Fisk. Thus, the Ex
parte Young exception does not apply, and Plaintiff’s claim for injunctive relief against Fisk in her
official capacity is barred by the Eleventh Amendment.
Turning now to Plaintiff’s individual capacity claims against Fisk, Plaintiff does not
specifically address Judge Bryant’s determination that Fisk is entitled to qualified immunity.
Assuming the truth of the facts alleged in Plaintiff’s complaint, the Court agrees with Judge
Bryant’s finding that the allegations do not involve violations of a constitutional right. Thus, the
Court must conclude that Fisk is entitled to qualified immunity and dismiss all individual capacity
claims against her. See Estate of Walker v. Wallace, 881 F.3d 1056, 1060 (8th Cir. 2018) (“An
individual is entitled to qualified immunity if his conduct does not violate clearly established
constitutional rights of which a reasonable person would have known.”) Thus, the Court must
conclude that Fisk is entitled to qualified immunity and dismiss all individual capacity claims
against her.
Accordingly, based on its own de novo review, the Court overrules Plaintiff’s objections
and adopts the Report and Recommendation in toto. ECF No. 46. All claims against Separate
Defendant Pamela Fisk are DISMISSED WITH PREJUDICE.
IT IS SO ORDERED, this 18th day of March, 2020.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge