Fick v. State Of Alabama ( 2018 )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION DANIEL HASSAN FICK, ) ) Plaintiff, ) ) vs. ) CIVIL ACTION NO. 1:18-cv-8-TM-MU ) ALABAMA STATE DEPARTMENT OF ) EDUCATION and BOARD OF SCHOOL ) COMMISSIONERS OF MOBILE ) COUNTY ) ) Defendants. ) ORDER Pending before the Court are the Report and Recommendation of the Magistrate Judge (Doc. 51, filed 9/28/18) and the Objections filed by the Plaintiff (Doc. 52, filed 10/12/18). After due and proper consideration of the issues raised, and a de novo determination of those portions of the recommendation to which objection is made, the recommendation of the Magistrate Judge is ADOPTED as the opinion of this Court.1 The objections raised by the Plaintiff do not change the fact that the statute of limitations bars his claims nor does he address the issue of sovereign immunity as to Defendant Alabama State Department of Education. Therefore, it is ORDERED that the Defendants’ Motions to Dismiss (Docs. 39, 41) are GRANTED, Plaintiff’s Motion for Equitable Tolling (Doc. 50) is DENIED, and this action is 1 Of note, the undersigned disagrees with one brief statement made by the magistrate judge. Specifically, when the magistrate judge addresses sovereign immunity on pages 14-16 of the report and recommendation he states initially that “the following additional analysis (although not necessary) is also offered.” Id. at p. 14. Jurisdictional arguments under Rule 12(b)(1) are always necessary to address even if the analysis seems redundant. See, e.g. Smitherman v. United States, 463 F. App’x 893, 894 (11th Cir. 2012) (“And we must inquire into subject matter jurisdiction whenever it might be lacking.”) (emphasis added) (citing Mallory & Evans Contractors & Eng'rs, LLC v. Tuskegee Univ., 663 F.3d 1304, 1304 (11th Cir. 2011)). DISMISSED with prejudice. A separate judgment will be entered. DONE and ORDERED this 27th day of December, 2018. /s/ Terry F. Moorer TERRY F. MOORER UNITED STATES DISTRICT JUDGE