Case: 18-13446 Date Filed: 04/02/2019 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-13446
Non-Argument Calendar
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D.C. Docket No. 1:18-cv-01507-TCB
ANDREW CLARKE,
Plaintiff-Appellant,
versus
RUSSELL R. MCMURRY, P.E.,
Commissioner of the Georgia D.O.T.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(April 2, 2019)
Before ED CARNES, Chief Judge, BRANCH, and JULIE CARNES, Circuit
Judges.
PER CURIAM:
Andrew Clarke appeals the district court’s dismissal of his
42 U.S.C. § 1983
complaint. The complaint alleges that Russel McMurry, the Commissioner of the
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Georgia Department of Transportation, violated the Fourteenth Amendment’s
Equal Protection and Due Process Clauses by failing to ensure that the Department
reimburse Clarke, a former Department employee, for paying medical bills that he
incurred after an on-the-job traffic accident. Clarke sued McMurry in his official
capacity and sought $10,000,000 in damages. The district court dismissed the
complaint on the basis of Eleventh Amendment sovereign immunity. This is
Clarke’s appeal.
We construe liberally Clarke’s complaint because he is proceeding pro se,
Winthrop-Redin v. United States,
767 F.3d 1210, 1215 (11th Cir. 2014), and we
review de novo the district court’s dismissal of Clarke’s complaint, Harbert Int’l,
Inc. v. James,
157 F.3d 1271, 1277 (11th Cir. 1998).
The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State.
U.S. Const. amend. XI.
Although the text of Eleventh Amendment does not say so, “it has long been
settled that the amendment applies equally to suits against a state brought in
federal court by citizens of that state.” James, 157 F.3d at 1277 (citing Hans v.
Louisiana,
134 U.S. 1, 18–19,
10 S. Ct. 504, 508 (1890)). “The state need not be
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formally named as a defendant for the amendment to apply; [a] state official[ ]
sued in [his] official capacity [is] also protected by the amendment.”
Id.
This case does not present any “of the three situations in which there is a
surrender of Eleventh Amendment sovereign immunity.” Id. at 1278 (quotation
marks omitted). First, the State of Georgia did not “waive[ ] its Eleventh
Amendment sovereign immunity and consent[ ] to suit in federal court.” Id.
Georgia has expressly reserved its sovereign “immunity with respect to actions”
that are, like this one, “brought in [a] court[ ] of the United States.”
Ga. Code Ann.
§ 50-21-23(b). Second, Congress did not abrogate Georgia’s sovereign “immunity
when it enacted
42 U.S.C. § 1983.” Schopler v. Bliss,
903 F.2d 1373, 1379 n.4
(11th Cir. 1990). And third, Clarke did not sue McMurry, “a state
official[,] . . . for prospective injunctive relief to end a continuing violation of
federal law.” James, 157 F.3d at 1278. He sued McMurry for damages. As a
result, Clarke’s claims against McMurry “were, in effect, claims against the State
of [Georgia], and, consequently, the defense of Eleventh Amendment sovereign
immunity” barred those claims. Id.
AFFIRMED.
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