# Petition for Writ of Certiorari — Skoblow v. Ameri-Manage, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 491 U.S. 904

## Text

87 ha & o 4 Supreme Court, U.s,

FILED

IN THE FEB 29 j9R9
Supreme Court of the United States" Favor

OctToBeR TERM, 1987

Mavurice SKOBLow,
Petitioner,
v.
AMERI-ManacGeE, INc.,
Respondent.

PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA

Ropert WEISBERG

Davin Lipman
Lipman & Weisberg, P.A.
Suite 304
5901 S.W. 74th Street
Miami, Florida 331438
(305) 662-2600

SHaronN WOLFE
Cooper, Wolfe &
Bolotin, P.A.
500 Roberts Building
28 West Flagler Street
Miami, Florida 33130
(305) 371-1597

Jutius LEVoNNE CHAMBERS
Eric SCHNAPPER*
NAACP Legal Defense
Fund, Ine.
99 Hudson Street
16th Floor
New York, New York 10013
(212) 219-1900

Attorneys for Petitioner

*Counsel of Reeord

QUESTIONS PRESENTED

: Does the Eleventh Amendment, or
any other constitutional doctrine, confer
upon the states immunity from. suits
brought by their own citizens?

as Should Hans _v. Louisiana, 134

U.S. 1 (1890) or Quern v. Jordan, 440

U.S. 332 (1979), be overruled?

3 Did Congress, in enacting the
i871 Civil Rights. Act, intend to
authorize section 1983 suits against

states in state court?

PARTIES

The petitioner in this Court is
Maurice Skoblow. The respondent is
Ameri-Manage, Inc., a Florida corporation
which the state courts below concluded
was, for Eleventh Amendment purposes, an
agency of the state of Florida.

In the proceedings below petitioner
also sought relief against six
individuals: Robert A. Burton, John
Pitreiii-; Elsa Dominguez, Barbara
McMurtrey, Jackie Dale and Paul Uhrig.
The claims against those individuals were
dismissed on grounds unrelated to the

Eleventh Amendment issue which is the

subject of this petition.

ii

TABLE OF CONTENTS

Page

Questions Presented ......-- “ 1
et”) eee ee ee ee ii
Table of ContentS ....-+-ccececes iil
Table of Authorities ......... Vv
Opinions Below ....---+eeeees ; 2
FUTISGICCION .ccccccccscseseces 2
Constitutional and Statutory

Provisions Involved........ 3
statement of the CaS@ ..-eeees 3
Reasons for Granting the

gg a are ee 9
CONCLUSION .ecceeeeeeeeees peede 42
Ars ENDI A
Florida Supreme Court

Opinion, Spooner v.

Department of Correc-

tions and Skoblow v.

Ameri-Manage, Inc.,

September 24, 1987,

rehearing denied

December 1, 1987 ..-+-eee-- la

i111

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f Florida Circuit
irt ranting Partial

mmary Judgment,

koLlow v. Ameri-Manage

nts * on same’
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/

TABLE OF AUTHORITIES

Cases: Page

Alabama v. Pugh, 438 U.S. 781
Vi gi $ SPREE OEP ETE TS eT Tere 33

Atascadero State Hospital
v. Scanlon, 473 U.S. 234
bi} PEPE ETE eT reer 16,17,

Bailey v. Ohio State Univer-
Sity, 487 F. Supp. 601
(6.0. Chie 19061 .0-sccsc 34

Board of Regents v. Roth, 408
U.S. 564 (1972) cccssvscecess 6

Boldt v. State, 305 N.W.2d

133, 101 Wis.2d 566,

cert. denied 454 U.S. 973
(iSG40 SS wee a eae eee 32,38

Brody v. Leamy, 393 N.Y.S.2d
243, 90 Misc.2d 1 (Sup. Ct.
Dutchess Cty. 1977)........ i2,39

Brown v. Supreme Court of
Nevada, 476 F. Supp. 86
(D. Nev. 1979) -cccsscoscece 34

Brown v. Wood, 592 P.2d 1260
(Alaska 1979) .ccccccccscece 30,37

Codd v. Velger, 429 U.S. 624
£30993 3 is vasa ceed ee 6

Cohens v. Virginia. 6 Wheat.
264 (1821) . cece eee ne nencess 19,20

Della Grotta v. State of Rhode
Island, 781 F.2d 343 (1s
Cir. 1986) -ccccccccscccccccs 34

DeVargas v. State, 97 N.M.
563, 640 P.2d 1327
(Ct. App. 1981)... eeeeeees 33,37

Edelman v. Jordan, 415 U.S.
651 (1974) ~.c. cece cerceessces 10,15,20,
27,29,33,40

Edgar v. State, 92 Wash.2d
217, 595 P.2d 534 (1979)... 33,35

Employees v. Missouri Public
Health Dept., 411 U.S. 279
1197S) cv caveccetsctcteuseveeat 10,14,21,
22,26,27
Fitzpatrick v. Bitzer, 427
U.B. 445 (1976) occcncsssve ; 15

Florida Dept. of State v.
Treasure Salvors, Inc.,
458 U.S. 670 (1982).......- 15,17

Gittens v. State, 504 N.Y.S.
2a 969 (Ct. Cl. 1986).....- 12

Gumbhir v. Kansas State
Bd. of Pharmacy, 646
P.2d 1078, 231 Kan. 507
(1982) .. cece cere reenneecees 29,31,36

Page

Hampton v. State of Michigan
Dept. of Corrections, 377
N.W.2d 920, 144 Mich.
ae ae | ee 29,32,35,
37,38
Hans v. Louisiana, 134 U.S. 1
(18OO) cccccccccsccsecsceces Passim

Hill v. Department of
Corrections, 513 So.2d
129 (FPla@.-. 1987) wcccccccece 9,40

Hutto v. Finney, 437 U.S. 678
PROTON No cs keke en eee keuewes 17,25

Irwin v. Calhoun, 522 F. Supp.
576 (D. Mass. 1981)........ 34

Kapil v. Ass'n of Pa. State
College, 448 A.2d 717,
68 Pa. Commonw. 287

Karchefske v. Dept. of Mental
Health, 371 N.W. 2d 876

(Mich. App. 1985).......... 1,
Kristensen v. Striden, 343
N.W.2d 67 (N.D. 1983)...... Y> Per P
Maine v. Thiboutot, 448 U.S.
. SIGs oeaadee ieee en enke 24,25,30,
38,39

Maldonado v. Nebraska Dept.
of Public Welfare, 223
Meh. 408 (AS66) oc cncctcces 30

Vili

Cases: Page

Marrapese v. Rhode Island,
500 F. Supp. 1207 (D.R.1.
19BO) cccccccsescsccecccocs 34,36

Martinez v. California, 444
U.S. 277 (1980) .---eeeeeees 25,41

Merritt for Merritt v. State,
696 P.2da 871, 108 Idaho 20
(1985) .cccccccccccccscccoce 33,35

Mezey v. State, 208 Cal.
Reptr. 40, 161 Cal. App.
3a 1066 (Cal. App. 1 Dist.
.:):) 9 ee 33

Mossman v. Donahey, 346 N.E.
305, 46 Ohio St. 2d 1
CEDIGS cccdcdeoeneesssecrcees 11

Oneida v. Oneida Indian
Nation, 470 U.S. 226
(EGORA ccc cnasccavesccesiees 50

Osborn v. Bank of United
States, 9 Wheat 738
(1824) .. ewer ene ceeercccess 19,20

Papasan v. Allain, 92 L.Ed.2d
209 (1986) .cccccccccccccess 17

Parden v. Terminal R. Co. of
Alabama Docks Dept., 377
U.S. 184 (1964) ..-ee+eeeees 10,14,

Pennhurst State School & Hosp.
v. Halderman, 465 U.S. 89
(1984) cccccccccccccsocccces 15,27

Cases: Page

Private Truck Council of
America v. Quinn,
90 L.Ed.2d 677 (1986)...... 25

Pynne v. Meese, 218 Cal. Rptr.
87, 172 Cal. App. 3d 402

(Cal. App. 3 Dist. 1985)... i3,33
Quern v Jordan, 440 U.S. 332

‘pr, | PURE Pere errr rere rr re 8,22,29,

: 32-36,40

Ramah Navajo School Bd. v.
Bureau of Revenue, 720
P.2d 1243, 104 N.M. 302
(N.M. App.), cert. denied,
S67 6.60. GES CROOG) 0-00 0008 29,31,37

R. I. Affiliate Am. Civil
Liberties v. R. I. Lottery,
553 F. Supp. 752 (D.R.I.
yr § eae eee et ee paras eee 34

Shapiro v. Thompson, 394 U.S.
ROS CO 5 a ob dk 6 ka 0 20

Smith v. State, 122 Mich.
App. 340, 333 N.W.2d 50

F2SES) caccevicseasscsvse so 20,36,37
State v. Green, 633 P.2d
1381 (Al@GRA 1981) .ccccscscs 33,35,
36,37

Thompson v. New York, 487
F. Supp. 212 (N.D.N.Y.
1979) cccccccecccsecseceseces 34

ix

Cases:

Verner v. State of Colorado,
533 F.Supp. 1109, 1113
(D. Colorado (1982)........ 34

Welch v. Dept. of Highways
and Public Transp., 9?
be Oe SEO. CIONT Ya seek i ews 16,18,19,

Woodbridge v. Worcester State
Hospital, 384 Mass. 38,
423 N.E.2d 782 (1981)..... pe ae

Yeomans v. Kentucky, 423 U.S.
Ce a3) oe Pere ee eer eee 15

Other Authorities

Article III, United States
Cemnetitutionh. .i

A quarter century ago all nine
members of this Court were of the view
that “an unconsenting state is immune
from federal-court suits brought by its
own citizens as well as by citizens of

another State," Parden Vv. Terminal

Railway of Alabama Docks Dept., 377 U.S.

4, 186 (1964), an immunity which the

C)

urt then believed had been derived from

the Eleventh Amendment by the 1890

)

decision in Hans v. Louisiana, 134 U.S. l

1890). In 1973, however, Justice

ry
nal
»
a
-/
|

)

elying on the pre-1890
decisions of this Court regarding the

leventh Amendment, urged that neither

+ }. + Amo “a

The state of the law in the lower
courts is more conflicting, and
incongruous, than even the previous
paragraph suggests. There are intrastate
conflicts between state courts in
Michigan, New Mexico, and Alaska.2°9
Several state courts appear to hold that
the Eleventh Amendment is’ literally
applicable to state judicial
proceedings. 21 A number of decisions
argue that "{i]t would be anomalous, to
say the least", if Congress' had
authorized the filing in state courts of

section 1983 actions which could not be

20 Compare Ramah Navajo School
Bd. v. Bureau of Revenue, supra n. 14
with DeVargas v. New Mexico Dep'‘t of
Corrections, supra n. 16; compare Brown
v. Wood, supra n. 13, with State v.
Green, supra n. 16; compare Smith v.
State, supra n. 13, with Hampton v. State
of Michigan Dep't of Corrections, supra
n. 16.

21 See n. 7, supra.

38

brought in federal court**; Maine v.

Thiboutot expressly rejected the
suggestion that there was any "inherent
illogic" in consigning a subset of
section 1983 cases to state courts.*2 A
Wisconsin court held in 1981 that counsel
fees under section 1988 coould be
obtained against a state in state court
because the state itself could not be

sued under section 1983°4, a _ result

22 Karche Vv. ° ental
Health, 37 N.W.2d 876, 871 (Mich. App.

1985) ("anomalous"); Hampton v. State of

Michigan Dep't of Corrections, 377 N.W.2d
920, 922, 144 Mich. App. 794 (1985)

("unlikely").
23 448 U.S. at 8n. 6, ll n. 12.

24 Boldt v. State, 101 Wis.2d 566,
305 N.W.2d 133, 143-44, cert. denied, 454
U.S. 973 (1981):

"The petitioner is not entitled
to recovery under sec. 1983

. because the state is not
subject to suit under sec. 1983
< “eee Since recovery of
actual attorney's fees under

39

squarely contrary to this Court's 1980
decision in Maine v. Thiboutot. A New
York decision goes so far as to assert
that a state, by adopting an
indemnificaticn statute, can extend its
Eleventh Amendment immunity to bar state
court section 1983 suits against
individual state officials.?°

But at this point in the evolution
of Eleventh Amendment, considerably more
is at issue than whether state court
actions may be maintained against state
agencies under section 1983 or pursuant
to any other specific federal statute.

The inconclusive result in Welch, coupled

sec. 1988 is dependent on
successful suit being brought
under sec. 1983, the petitioner
is not entitled to recover
actual attorney's fees."

25 Brody v. Leamy, 393 N.Y.S.2d

243, 262, 90 Misc.2d 1, 28 (Sup. Ct.
Dutchess Cty 1977).

40
with the retirement of Justice Powell,
has left litigants and the lower courts,
as well as federal and state legislators,
in serious and understandable uncertainty

as to whether Hans, Edelman, and their

progeny are still good law. The time has
come, we believe, to consider anew the
meaning of the Eleventh Amendment, and to
craft an interpretation of that Amendment
which can command the predictable support
of a substantial majority of this Court.
If this Court were to overrule Hans
and its progeny, the decision below would
fall as a matter of course. The refusal
of the Florida courts to hear in state
court section 1983 suits against the

state rests squarely, and expressly, on

Hans, Edelman and Quern. 2© If, as we

26 Hill v. Department of

Corrections, 513 So.2d 129, 139-31 (Fla.

1987).

41
urge, this Court were to hold that
section 1983 suits may be maintained
against states in federal courts, state
courts would necessarily be required to
entertain such suits as well, since

Martinez v. California, 444 U.S. 277

(1980), forbids the states to accord to
section 1983 defendants’ immunities
broader than those which would be
avallable were the same action brought in

federal court.2?

27 444 U.S. at 283 n. 8:

"Conduct ... which is wrongful
under 42 U.S.C. § 1983
cannot be immunized by state
law. A construction of the
federal statute which permitted
a state immunity defense to
have controlling effect would
transmute a basic guarantee
into an illusory promise; and
the supremacy clause of the
Constitution insures that the
proper construction may be
enforced.... The immunity
claim raises a question of
federal law."

42

CONCLUSION

For the above reasons a writ of
certiorari should be granted to review
the judgment and opinion of the Supreme
Court of Florida.

Respectfully submitted,

ROBERT WEISBERG

DAVID LIPMAN
Lipman & Weisberg, P.A.
Suite 304
5901 Southwest 74th St.
Miami, Florida 33143
(305) 662-2600

SHARON L. WOLFE
Cooper, Wolfe &
Bolotin, P.A.
500 Roberts Building
28 West Flagler Street
Miami, Florida 33130
(305) 371-1597

43

JULIUS LeVONNE CHAMBERS
ERIC SCHNAPPER*
NAACP Legal Defense and
Educational Fund, Inc.
99 Hudson Street
16th Floor
New York, New York 10013
(212) 219-1900

Attorneys for Petitioner

*Counsel of Record

mae © o we

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A cf 7 cy
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a aa i an Ke | ie + * =
ap Aon in 1 -@hp- 7 ae
rat - " se !* 7 an. - -

APPENDIX

ROBERT EDWARD SPOONER,
Petitioner,
DEPARTMENT OF CORRECTIONS,
Respondent.
MAURICE SKOBLOW,
Petitioner,
Vv.
AMERI-MANAGE, INC., et al.,
Respondents.
Nos. 68932, 68522
Supreme Court of Florida.
Sept. 24, 1987.
Rehearing Denied Dec. 1, 1987
F. Kendall Slinkman, West Palm
Beach, and Edna L. Caruso, P.A., West
Palm Beach, for petitioner, Spooner.
Robert A. Butterworth, Atty. Gen.,
and Mitchell, D. Franks, Chief Trial
counsel and Thomas H. Bateman, III, Asst.

la

Atty. Gen., Tallahassee, for respondent,
Dept. of Corrections.

Ira J. Kurzban of Kurzban, Kurzban
and Weinger, Miami, and Joel V. Lumer,
Miami, for Nat. Emergency Civil Liberties
Committee, amicus curiae.

Stephen T. Maher, Coral Gables, and
Sharon L. Wolfe, Miami, for American
Civil Liberties Union Foundation of
Florida, Inc., amicus curiae.

Robert Weisberg of Lipman &
Weisberg, P.A., Miami, and Sharon lL.
Wolfe of Cooper, Wolfe & Bolotin, P.A.,
Miami, for petitioner, Skoblow.

Robert A. Butterworth, Atty. Gen.,
and Mitchell D. Franks, Chief Trial
Counsel and Craig Willis, Asst. Atty.
Gen., Tallahassee, for respondents,
Ameri-Manage, Inc., et al.

OVERTON, Justice.

2a

The First District Court of appeal,
in Spooner _ v. Department of Corrections,
488 So.2dad 897 (Fla. lst DCA 1986),
certified the following question to this
Court:

Has the State of Florida,

pursuant to Section 768.28,

Florida Statutes (1983), waived

its Eleventh Amendment and

state common law immunity and

consented to suits against the

State and its agencies under 42

U.S.C. § 1983?

Id. at 898.

The above case was consolidated with
Skoblow_v. Ameri-Manage, Inc., 483 So.2d
809 (Fla. 3d DCA 1986), which concerns
the identical issue, without
certification of the question. We have
jurisdiction. Art. V, § 3(b) (4).

We answer the question in the
negative for the reasons expressed in our

recent decision in Hill v. Department of
Corrections, 513 So.2d 129 (Fla. 1987).

3a

We approve the decision of the First
District Court of Appeal in Spooner and
that of the Third District Court of
Appeal in Skoblow, holding the _ state
immune under the eleventh amendment and
the common law from suits arising under
the federal Civil Rights Act, 42 U.S.C.
U.S.C. § i983.

It is so ordered.

McDONALD, C.J., and EHRLICH, SHAW,

GRIMES and KOGAN, JJ., concur.

4a

Maurice SKOBLOW, Appellant,
Vv.
AMERI~MANAGE, INC., Robert A. Burton,
John Pitrelli, Elsa Dominguez, Barbara
McMurtrey, Jackie Dale and Paul Uhrig,
Appeliees.
No. 85-1741
District Court of Appeal of Florida,
Third District.
Feb. 18, 1986.
Lipman & Weisberg and Robert
Weisberg, Miami, for appellant.
Jim Smith, Atty. Gen., and Craig
Willis, Asst. Atty. Gen., for appellees.
Before HENDRY, HUBBART and NESBITT,
JJ.
PER CURIAM.
The plaintiff appeals an order
entering partial summary judgment for the

defendants. We affirm.

5a

————— <<

The plaintiff was employed as a
dentist at South Florida State Hospital.
The hospital is a mental institution
which is owned, funded and regulated by
the State of Florida. Pursuant toc a
contract with the state, Ameri-Manage,
Inc., provides management services at the
hospital. On February 13, 1981, the
plaintiff was notified of his termination
from employment at the hospital by a
letter from Robert Burton, the chief
executive officer of the hospital and an
employee of Ameri-Manage. This letter
indicated that the plaintiff was being
discharged because of "inadequate
performance in carrying out your duties
and responsibilities."

Two weeks later, an article appeared
in the Miami Herald concerning the

plaintiff's discharge. Four officials of

6a

the hospital or state were reported in
the article to have given negative
statements about the plaintiff's work as
a dentist at the hospital. These
officials were Jackie Dale, the community
and patient relations director at the
hospital (referred to in the article as
the hospital spokeswoman), Barbara
McMurtrey, the human resources director
(personnel officer) at the hospital, Dr.
Paul Uhrig, the director of the state's
Division of Institutional Dental
Services, and Dr. Elsa Dominguez, the
dental services coordinator at the
hospital and the plaintiff's immediate
supervisor.

The plaintiff filed a two-count
complaint against the defendants. In the
first count, the plaintiff brought an

action for defamation against Dale,

7a

ee

McMurtrey, Uhrig and Dominguez. Burton
was also named in this count on the
asserted basis of a civil conspiracy with
the other named defendants to commit the
defamation. In the second count, the
plaintiff alleged a civil rights
violation pursuant to 42 U.S.C. § 1983
regarding his termination at the
hospital. Ameri-Manage and Burton were
named as defendants in this count. The
defendants filed a motion for partial
summary judgment on the basis of absolute
privilege and sovereign immunity.
Partial summary judgment was entered in
favor of the defendants and this appeal
followed.

In McNayr v. Kelley, 184 So.2d 428
(Fla. 1966), the supreme court first
recognized an executive official's

absolute immunity from defamation actions

8a

based on statements made in connection
with the performance of his duties and
responsibilities. The court recognized
that executive officials had the same
absolute immunity afforded members of the
judicial and legislative branches of
government. 184 So.2d at 433.
Subsequently, the supreme court explained
the need for this immunity protection in
a case with facts similar to those in the
present case:

The public interest requires
that statements made by officials of
all branches of government in
connection with their official
duties be absolutely privileged.
Under our democratic system the
stewardship of public officials is
daily observed by the public. It is
necessary that free and open
explanations of their actions be
made. Any public servant should
expect that those having authority
to discharge him will explain their
reasons for such dismissal.

Hauser v. Urchisin, 231 So.2d 6, 8 (Fla.
1970). The scope of the absolute

9a

eee

immunity has been extended to private
communications and the emphasis has
shifted to the "nature of the officer’s
duties rather than the level. of his

rank." City of Miami v. Wardlow, 403

So.2d 414, 416 (Fla. 1981). See Cripe v.

Board of Regents, 358 So.2d 244 (Fla. list

DCA), cert. denied, 365 So.2d 710 (Fla.

(Fla. 3d DCA £e77). Thus, the
controlling Lees in deciding whether a
public employee is absolutely immune from
actions for defamation is whether the
communication was within the scope of the
employee's duties. Wardlow, 403 So.2d at
416.

In the present case, all the
defendants alleged to have defamed the
plaintiff either had official supervisory

responsibility over the plaintiff or had

10a

responsibilities regarding personnel
matters or community relations. Since
the statements made concerning the
plaintiff's discharge were related to and
made within the scope of the defendants’
official duties, we hold that these
defendants are entitled to an absolute
privilege and are, therefore, immune from
liability for the alleged defamation.

See Wardlow; Hauser; Mueller vy. The

Florida Bar, 390 So.2d 449 (Fla. 4th DCA

1980); Cripe; Johnsen. Accordingly,
summary judgment was properly entered in
favor of Dale, McMurtrey, Uhrig and
Dominguez on the defamation count.
Likewise, summary judgment was properly

entered in favor of Burton on this count.

See Perdomo v. Jackson Memorial Hospital,

443 So.2d 298 (Fla. 3d DCA 1983) (where

count regarding the goal of a conspiracy

lla

|
.
:
|

(defamation) fails, so too the conspiracy
count fails).

We also affirm the summary judgment
entered in favor of Ameri-Manage on the
section 1983 action in the plaintiff's
second count. Absent an unequivocal
expression of intent by either the United
States Congress to overturn a state's
eleventh ~-amendment immunity, or a state
legislature to waive the state's
sovereign | immunity, a state and its
agencies are immune from civil rights
actions brought against them pursuant to
section 1983 in both federal and state

courts. See Quern v. Jordan, 440 U.S.

332, 99 S.Ct. 1139, 59 L.Ed.2d 358
(1979); art. X, § 13, Fla. Const. See

also Pennhurst State School & Hospital v.

Halderman, 465 U.S. 89, 104 S.Ct. 900, 79

L.Ed.2ad 67 (1984); Ford Motor Co. Vv.

12a

Department of Treasury, 323 U.S. 459, 65
S.Ct. 347, 89 L.Ed. 389 (1945); Ex Parte:

In re the State of New York, 256 U.S.

490, 41 S.Ct. 588, 65 L.Ed. 1057 (1921).
The plaintiff does not argue that the
Florida legislature has waived the
state's sovereign immunity so as to allow

civil rights actions against it.1 See

1 In this’ regard, see the
discussion in Shinholster v. Graham, 527
F.Supp. 1318 (N.D. Fla. 1981). The court
in Shinholster reviews the relevant
legislation and concludes that the
Florida legislature has not waived its
eleventh amendment immunity to civil
rights suits. The court's analysis is
equally applicabie to the issue of
whether the legislature has waived the
state's sovereign immunity in civil
rights actions brought in state court.
We find that analysis persuasive and
hereby adopt it. See also Tuveson v.
Florida Governor's Council on Indian
Affairs, Inc., 734 F.2d 730 (11th Cir.
1984); Cate v. Oldham, 707 F.2d 1176
(ilth Cir. 1983); Ostroff v. Florida
Dep't of Health & Rehabilitative
Services, 554 F. Supp. 347 (M.D. Fla.
1983). Contra Meeker v. Addison, 586 F.
Supp. 216 (S.D. Fla. 1984).

13a

art. ZX, § i3, Fia. Conese. Instead, the
plaintiff argues that Ameri-Manage is not
a state agency for purposes of sovereign
immunity in civil rights actions. we
reject the plaintiff's argument.

An examination of the legal
relationship between Ameri-Manage and the
state is dispositive. Pursuant to a
contract between the state and Ameri-
Manage, Ameri-Manage was to provide
direct management for South Florida State
Hospital, a state-owned hospital,
coordinate the development of a long-
range plan for the hospital consistent
with legislative mandate, and assist the

Department (HRS) in planning for interim

We note that the Eleventh Circuit
Court of Appeals has recently approved
the decision in Shinholster and rejected
the reasoning in Meeker. See Gamble v.
Florida Dep't of Health & Rehabilitative
Services, 779 F.2d 1509 (11th Cir. 1986).

14a

and long-range forensic services. HRS

delegated to the administrator of the
hospital (Burton, an employee of Ameri=
Manage), among other things, the
authority to (1) “appoint grievance
committee members and render a final
decision on employee grievances"; (2)
"effect personnel actions as specified in
HRSR 60-10, 10(a) . . . [and] hold
presuspension/termination conferences and
establish procedures for same"; (3)
"submit personnel actions to the State
Personnel Director directly, as specified
in HRSR 60-94(a)(1)(26)"; (4) “assign to
established classes new positions
authorized by the legislature"; (5)
"assign to established classes new
positions authorized
Administrative Commission"; (¢ — 9

to an established class any posit

15a

is added in lieu of a position that is

deleted"; (7) "reclassify positions to
existing Career Service Classes"; (8)
"respond to Collective Bargaining Step
One Grievances"; (9) “effect all types of

disciplinary actions as stated in HRSR

60-10 paragraph 5. This includes oral

reprimand, written reprimand, change in

assiaqnment, reduction in pay, demotion,

suspension and dismissal." [emphasis

added] It was the exercise of this last-
stated delegated authority which gave
rise to the plaintiff's claim under
section 1983.

An examination of the relationship
between Ameri-Manage and the State of
Florida leads us to the conclusion that
Ameri-Manage was operating aS an agency
of the state at the time of the

plaintiff's discharge from his position

16a

at the hospital. See Tuveson v. Florida

Governor's Council on Indian Affairs,

Inc., 734 F.2d 730 (11th Cir. 1984). See

also Edelman v. Jordan, 415 U.S. 651, 94
S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ford

Motor Co. ce. § 768.28(2), Fla. Stat.

(1985) (defining "state agencies" for
purposes of the statute waiving sovereign
immunity in tort actions as including
"corporations primarily acting as
instrumentalities or agencies of the
state"). Since the Florida legislature
has not waived the state's sovereign
immunity in civil rights actions, see

Gamble v. Florida Dep't of Health &

Rehabilitative Services, 779 F.2d 1509

(11th Cir. 1986); Shinholster v. Graham,

527 F. Supp. 1318 (N.D. Fla. 1981);2 art.

Be i Fla. Const., the summary

2 See supra note l.

17a

judgment in favor of Ameri-Manage on the

plaintiff's second count alleging a civil
rights violation was properly entered.
The parties are in agreement that
Burton can be held liable in his
individual capacity for any civil rights
violations that might have occurred.
Accordingly, the summary judgment entered
in favor of all of the defendants on
plaintiff's defamation count is affirmed,
the summary judgment entered in favor of
Ameri-Manage on the count alleging a
civil rights violation is affirmed, and
the cause is remanded to the trial court

for further proceedings.

18a

IN THE

CIRCUIT COURT
OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE No. 82-606-CA-13

MAURICE SKOBLOW,
Plaintiff,
Vv.
AMERI-MANAGE, INC., ROBERT A. BURTON,
ELSA DOMINGUEZ, BARBARA MCMURTREY,
JACKIE DALE and PAUL UHRIG,

Defendants.

PARTIAL SUMMARY JUDGMENT

THIS CAUSE having come to be heard
on the Defendants' Motion for Partial
Summary Judgment and the Court after
hearing argument of counsel, reviewing

the file and memoranda, and being

19a

otherwise fully advised in the premises,

it is hereby:

ORDERED AND ADJUDGED that
Defendants' Motion for Partial Summary
Judgment is GRANTED and therefore partial
summary judgment is hereby entered in
favor of the defendants.

DONE and ORDERED at Miami, Dade
County, Florida, this 27th day of June,

1985.

Rosemary Usher Jones
CIRCUIT COURT JUDGE

20a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1425%3A1. Public record. Not legal advice.