Elijah Watson v. Division of Child Support Services ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15372
Non-Argument Calendar
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D.C. Docket No. 1:13-cv-00170-WLS
ELIJAH WATSON,
Plaintiff-Appellant,
versus
DIVISION OF CHILD SUPPORT SERVICES,
GINA LOUIS,
Agent. Division of Child Support Services,
Defendants - Appellees.
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Appeal from the United States District Court
for the Middle District of Georgia
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(March 24, 2014)
Before CARNES, Chief Judge, HULL and MARCUS, Circuit Judges.
PER CURIAM:
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Elijah Watson, an African American proceeding pro se, appeals the district
court’s dismissal of his amended civil rights complaint against the Georgia
Division of Child Support Services (“DCSS”) and one of its case agents, Gina
Louis, for violating his equal protection rights under the Fourteenth Amendment.
In his original complaint, Watson alleged that Louis “violated [his] civil rights”
and discriminated against him based on his race when she told him that he should
not be a certified nursing assistant but instead “a fast food worker, Target worker,
stocker at Walmart, or a worker on [the] back of a dock.” He also alleged that
Louis insinuated that “all black men are the same” when she stated, “[Y]’all need
to get it together! I am tired of doing default papers.”
After he obtained leave to proceed in forma pauperis and was ordered to file
a new complaint identifying the specific constitutional right that he was denied,
Watson filed an amended complaint alleging that DCSS and Louis violated his
Fourteenth Amendment equal protection rights when Louis stated that he “should
not be a certified nursing assistant (CNA) but, rather that [he] should be a fast food
worker, Target worker, stocker at Walmart, or a worker on the back of a dock.”
Watson claimed that this statement constituted unlawful discrimination because it
assigned African Americans, like himself, “inferior legal and economic status.”
The district court dismissed Watson’s amended complaint under 28 U.S.C.
§ 1915(e)(2)(B), which requires a court to dismiss an in forma pauperis proceeding
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if it is frivolous, fails to state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such relief. The court
concluded that DCSS, as a state agency, was entitled to sovereign immunity under
the Eleventh Amendment and that Louis’ alleged statements did not violate
Watson’s equal protection rights.
We review de novo a district court’s dismissal of a complaint on Eleventh
Amendment grounds or for failure to state a claim for relief. See United States v.
Ala. Dep’t of Mental Health & Mental Retardation, 673 F.3d 1320, 1324 (11th Cir.
2012); Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). “The Equal
Protection Clause of the Fourteenth Amendment commands that no State shall
‘deny to any person within its jurisdiction the equal protection of the laws,’ which
is essentially a direction that all persons similarly situated should be treated alike.”
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254
(1985). To state an equal protection claim, a plaintiff must demonstrate that
similarly situated persons outside his protected class were treated more favorably
and that “the state engaged in invidious discrimination against him based on race,
religion, national origin, or some other constitutionally protected basis.” Sweet v.
Sec’y, Dep’t of Corr., 467 F.3d 1311, 1318–19 (11th Cir. 2006); see also Amnesty
Int’l, USA v. Battle, 559 F.3d 1170, 1180 (11th Cir. 2009).
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In this case, the district court properly dismissed Watson’s equal protection
claim against DCSS based on Eleventh Amendment immunity. The Eleventh
Amendment bars federal lawsuits against a state and its agencies or departments
unless the state has waived its sovereign immunity or Congress has abrogated that
immunity. See, e.g., Schopler v. Bliss, 903 F.2d 1373, 1378–79 (11th Cir. 1990).
It is undisputed that DCSS is an agency of the State of Georgia, and there is no
indication that Georgia has waived its sovereign immunity in federal court.
Congressional abrogation is also not at issue because “[t]he Fourteenth
Amendment does not by its own force override the States’ Eleventh Amendment
immunity, nor did Congress abrogate that immunity when it enacted 42 U.S.C.
§ 1983,” which provides a mechanism for enforcing constitutional rights in federal
court. Id. at 1379 n.4 (citations omitted); see also Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 66, 109 S. Ct. 2304, 2309–10 (1989) (explaining that in
enacting § 1983, which “provides a federal form to remedy many deprivations of
civil liberties,” Congress had “no intention to disturb States’ Eleventh Amendment
immunity”).
Watson’s equal protection claim against Louis was also subject to dismissal
for failure to state a claim on which relief may be granted. Courts have held that
offensive or derogatory statements, even if racially tinged or racially motivated, do
not violate equal protection guarantees unless they are so pervasive as to amount to
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racial harassment or are accompanied by some other conduct that deprives a person
of the equal protection of the laws. See Blades v. Schuetzle, 302 F.3d 801, 805
(8th Cir. 2002) (“[T]he use of racially derogatory language, unless it is pervasive
or severe enough to amount to racial harassment, will not by itself violate the
fourteenth amendment.”); DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000)
(“The use of racially derogatory language, while unprofessional and deplorable,
does not violate the Constitution. Standing alone, simple verbal harassment does
not . . . deprive a [person] of a protected liberty interest or deny [him] equal
protection of the laws.”) (citations omitted); Williams v. Bramer, 180 F.3d 699,
706 (5th Cir. 1999) (“[A]n officer’s use of a racial epithet, without harassment or
some other conduct that deprives the victim of established rights, does not amount
to an equal protection violation.”). Because the Equal Protection Clause is
concerned with discriminatory treatment or action, “[w]here the conduct at issue
consists solely of speech, there is no equal protection violation.” Bramer, 180 F.3d
at 705–06. To hold otherwise would raise serious concerns under the First
Amendment, which prohibits holding a person liable for her speech “simply
because it is upsetting or arouses contempt.” See Snyder v. Phelps, — U.S. —,
131 S. Ct. 1207, 1219 (2011).
For these reasons, we affirm the dismissal of Watson’s amended civil rights
complaint.
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AFFIRMED.
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