FOMBY

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

ERICA NICOLE FOMBY,

Plaintiff,

vs. Case No. 1:25-cv-297-MW-MAF

UNIVERSITY OF FLORIDA

ATHLETICS,

Defendant.

_______________________/

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se and in forma pauperis, initiated this action

by filing a civil rights complaint on September 22, 2025 alleging various

claims related to workplace safety and negligence. ECF No. 1. The Court

ordered Plaintiff to amend her complaint due to multiple issues. ECF No. 4.

Plaintiff has now submitted an amended complaint (hereinafter “complaint”).

ECF No. 5. The Court has reviewed the complaint as required by 28 U.S.C

§ 1915(e)(2)(B) and construed it liberally. Because Plaintiff fails to state a

claim and any further amendment would be futile, this case should be

dismissed.

I. Allegations of the Complaint, ECF No. 5

Plaintiff sues University of Florida Athletics (“UF”), her former

employer, in its official capacity. ECF No. 5 at 3. Plaintiff resigned from her

unspecified position at “UF Softball” in February 2018 due to injuries she

sustained on the job. Id. at 4. Plaintiff claims these injuries were caused by

an “unsafe” and “outdated” entry/exit gate. Id. The gate had “unsafe

instructions to climb up [and] jump in to enter.” Id. This resulted in Plaintiff

“falling 6-8 feet.” Id. Plaintiff brings claims under the Fourteenth Amendment

(Equal Protection and Due Process), Thirteenth Amendment (“performing

dangerous labor”), and “federal statutory violations under OSHA, ADA, or

Rehabilitation Act.”1 Id. at 6. Plaintiff does not allege she was discriminated

against in any way, only that the unsafe conditions caused her to become

physically disabled. See Id. at 4-5. She seeks disability benefits and

$750,000 in damages. Id.

II. Discussion

The Court is required to review complaints filed by plaintiffs proceeding

in forma pauperis. 28 U.S.C § 1915(e)(2)(B). Dismissal is required for a

complaint that is frivolous, malicious, fails to state a claim upon which relief

can be granted, or seeks monetary damages from a Defendant who is

immune. Id.; see also Wright v. Miranda, 740 F. App'x 692, 694 (11th Cir.

1 Plaintiff also lists “occupational labor organization (ILO) conventions” under her

statement of claims. ECF No. 5 at 6. The ILO is an agency within the United Nations that

issues declarations regarding labor standards. International Labour Organization, “About

the ILO,” <https://www.ilo.org/about-ilo>. It is not a justiciable legal claim.

2018). Rule 12(b)(6) standards apply in reviewing the sufficiency of claims

under § 1915. See Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997).

Plaintiff’s claims against UF are barred for several reasons. First, even

assuming Plaintiff has stated (or could state) sufficient facts to support her

claims, all are time-barred. The Court previously explained this issue to

Plaintiff when it reviewed her original complaint. See ECF No. 4 at 2. The

statute of limitations governing § 1983 claims arising in Florida is four years.

Ellison v. Lester, 275 Fed. App’x 900, 901-02 (11th Cir. 2008); Chappell v.

Rich, 340 F.3d 1279, 1283 (11th Cir. 2003); see also Fla. Stat. § 95.11(3).

The same is true for ADA and RA claims. See Silva v. Baptist Health S. Fla.,

Inc., 856 F.3d 824, 841 (11th Cir. 2017). Such an action must be initiated

within four years of the date Plaintiff “has a complete and present cause of

action.” Heard v. Publix Supermarkets, Inc., 808 F. App’x 904, 907 (11th Cir.

2020) (internal quotations omitted).

Plaintiff’s original complaint included exhibits showing her alleged

accident and resulting injuries occurred in 2017. See ECF No. 1-1 at 34, 35,

41, 50. Plaintiff’s amended complaint only claims she resigned in February

2018 due to her injuries caused by the fall. ECF No. 5 at 4. Whether Plaintiff

had a complete cause of action in 2017 or 2018, the four-year statute of

limitations expired years ago in either 2021 or 2022. Plaintiff did not file her

complaint until September 2025. See ECF No. 1. Her claims are barred.

There are at least two other bars to Plaintiff’s claims. Because the

statute of limitations issue is dispositive, the Court will not discuss either in

great detail. UF is a state university and is entitled to Eleventh Amendment

immunity from suits seeking monetary damages in federal court. See Page

v. Hicks, 773 F. App'x 514, 517–18 (11th Cir. 2019), citing Harden v. Adams,

760 F.2d 1158, 1163 (11th Cir. 1985); see also Kentucky v. Graham, 473 U.S.

159, 165-66 (1985). No exceptions to this immunity are present here.2

Additionally, there is no private cause of action under OSHA. Brown v.

McMillon, No. 24-13169, 2025 WL 2374197, at *4 (11th Cir. Aug. 15, 2025),

citing Jeter v. St. Regis Paper Co., 507 F.2d 973, 977 (5th Cir. 1975).

Finally, even if Plaintiff’s complaint could be construed as a negligence

claim, there is no basis for federal jurisdiction. See Menendez v. Keefe

Supply Co., 235 F. App'x 737, 739–40 (11th Cir. 2007) (negligence claim “not

cognizable under § 1983”). “[T]he Constitution does not guarantee due care

on the part of state officials.” Sacramento v. Lewis, 523 U.S. 833, 849 (1998).

While Plaintiff is free to raise any state law claims in the appropriate state

2 Plaintiff does include the ADA and RA in her statement of claims, which are not shielded

by the Eleventh Amendment. But as discussed earlier, she provides no factual support

for either claim. Her stated facts relate only to unsafe conditions causing a disability, not

discrimination based on a disability. Plaintiff fails to state a claim under the ADA and RA.

court forum, the relevant limitations period has likely run. See Fla. Stat. §

95.11(3). Plaintiff is in the process of requesting reconsideration of the denial

of her application for Social Security Disability Benefits. ECF No. 1-1 at 41.

To the extent she exhausts the reconsideration and hearing process, she is

free to seek a timely appeal of the decision as provided in 42 U.S.C § 405(g).

Plaintiff was given an opportunity to amend her complaint. ECF No. 4.

Her amended complaint still fails to state a claim. Plaintiff’s claims are either

time-barred, not cognizable in federal court, or barred by the Eleventh

Amendment. Any further amendment would be futile. See Bryant v. Dupree,

252 F.3d 1161, 1163 (11th Cir. 2001).

III. Recommendation

For the reasons discussed, it is respectfully RECOMMENDED that this

action be DISMISSED for failure to state a claim pursuant to 28 U.S.C §

1915(e)(2)(b)(ii)-(iii).

IN CHAMBERS at Tallahassee, Florida on October 16, 2025.

s/ Martin A. Fitzpatrick

MARTIN A. FITZPATRICK

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Within fourteen (14) days after being served with a copy of this

Report and Recommendation, a party may serve and file specific

written objections to these proposed findings and recommendations.

Fed. R. Civ. P. 72(b)(2). A copy of the objections shall be served upon

all other parties. A party may respond to another party’s objections

within fourteen (14) days after being served with a copy thereof. Fed.

R. Civ. P. 72(b)(2). Any different deadline that may appear on the

electronic docket is for the Court’s internal use only and does not

control. If a party fails to object to the Magistrate Judge’s findings or

recommendations as to any particular claim or issue contained in this

Report and Recommendation, that party waives the right to challenge

on appeal the District Court’s order based on the unobjected-to factual

and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636(b)(1)(C).