Mahmood I. Alyshah v. The State of Georgia , 230 F. App'x 949 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-15332 AUGUST 2, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00928-CV-TWT-1
MAHMOOD I. ALYSHAH,
Plaintiff-Appellant,
versus
THE STATE OF GEORGIA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 2, 2007)
Before BIRCH, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
This is pro se litigant Mahmood I. Alyshah’s fifth appeal from adverse final
judgments in his many lawsuits arising out of the State Bar of Georgia’s efforts to
prevent him from engaging in the unauthorized practice of law. In one of his
previous appeals, he challenged the district court’s dismissal of one of his
complaints against the State of Georgia (“State”), based on Eleventh Amendment
immunity and state sovereign immunity. See Alyshah v. State of Georgia, Case
No. 06-15328 (11th Cir. Apr. 11, 2007) (“Alyshah I”).
In Alyshah I, we stated the following:
“The Eleventh Amendment to the Constitution bars federal
courts from entertaining suits against states.” Abusaid v.
Hillsborough County Bd. of County Comm’rs, 405 F.3d 1298, 1302
(11th Cir. 2005). “[I]n the absence of consent[,] a suit in which the
State or one of its agencies or departments is named as the defendant
is proscribed by the Eleventh Amendment.” Pennhurst State School
& Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.
Ed. 2d 67 (1984). . . . . “Although, by its terms, the Eleventh
Amendment does not bar suits against a state in federal court by its
own citizens, the Supreme Court has extended its protections to apply
in such cases.” Abusaid, 405 F.3d at 1303. The Eleventh Amendment
is no bar, however, where (1) the state consents to suit in federal
court, or (2) where Congress has abrogated the state’s sovereign
immunity. Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S.
299, 304 (1990).
Here, the Georgia Tort Claims Act specifically preserves the
State of Georgia’s sovereign immunity from suits in federal courts.
See O.C.G.A. § 50-21-23(b). Although the State of Georgia has given
its consent to being sued in contract or tort actions in its own state
courts, a state’s consent to suit in state court does not constitute a
waiver of immunity in federal court. Id.; Robinson v. Georgia Dept.
of Transp., 966 F.2d 637, 640 (11th Cir. 1992). As for congressional
abrogation, we have held that Congress did not intend to abrogate the
states’ Eleventh Amendment immunity in passing § 1983. Robinson,
966 F.2d at 640.
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Accordingly, the district court did not err by granting the State
of Georgia’s motion to dismiss both the federal and state claims
against it based on Eleventh Amendment immunity. The State of
Georgia has not consented to being sued in federal court nor has
Congress abrogated the state’s Eleventh Amendment immunity.
Id. (emphasis in original).
The same reasoning controls here. Because the State has not consented to
being sued in federal court, nor has Congress abrogated the State’s Eleventh
Amendment immunity, the district court did not err by granting the State’s pre-
answer motion to dismiss both the federal and state law claims against it based on
Eleventh Amendment and state sovereign immunity.1 Accordingly, we affirm.
AFFIRMED.
1
In light of our conclusion that the district court properly dismissed the instant complaint
based on Eleventh Amendment immunity, our previously filed jurisdictional question concerning
the Rooker-Feldman doctrine is moot. Moreover, Alyshah has not raised any arguments on appeal
regarding his facial constitutional challenge to the Georgia statutes or the district court's ruling on
his motion to strike or motion to recuse, and, thus, he has abandoned all related claims. See AT&T
Broadband v. Tech Commc’ns Inc., 381 F.3d 1309, 1320 n.14 (11th Cir. 2004) (citation omitted)
(holding "[i]ssues not raised on appeal are considered abandoned."). Finally, Alyshah’s argument
that he is entitled to a default judgment is without merit because the State never was required to file
an answer, and the 90-day time limit he asserts does not exist. See Fed. R. Civ. P. 8(d), 12(a)(4)(A).
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