Abdur-Rahim Dib Dudar v. Department of Community Affairs

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11173
Non-Argument Calendar
____________________
ABDUR-RAHIM DIB DUDAR,
Plaintiff-Appellant,
versus
DEPARTMENT OF COMMUNITY AFFAIRS,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-03274-WMR
____________________
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2 Opinion of the Court 21-11173
Before WILSON, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
Abdur-Rahim Dib Dudar, proceeding pro se, filed a 42
U.S.C. § 1983 action against the Georgia Department of Commu-
nity Affairs (DCA), alleging that the DCA failed to remove one of
his tenants. The district court dismissed Dudar’s complaint for lack
of subject matter jurisdiction, due to the DCA’s immunity under
the Eleventh Amendment, and for failure to state a claim. Dudar
argues that sovereign immunity is unconstitutional and asserts, for
the first time on appeal, that the DCA violated the Fifth Amend-
ment Takings Clause and the Contracts Clause of Article I.
I.
This appeal stems from an underlying dispute between
Dudar and the DCA concerning the DCA’s Housing Choice
Voucher Program. Dudar planned to rent his Georgia home to a
participant in the Program, but the DCA denied Dudar’s Request
for Tenancy Approval based upon a dispute over the amount of
rent to be charged to the participant. Dudar brought suit against
the DCA in the Gwinnett County Superior Court, which was sub-
sequently transferred to the Fulton County Superior Court. In that
suit, Dudar sought damages resulting from the DCA’s denial of his
Request for Tenancy Approval. The court ultimately granted the
DCA’s motion to dismiss on the grounds of sovereign immunity,
failure to send an ante litem notice, and failure to state a claim.
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21-11173 Opinion of the Court 3
Dudar directly appealed the order of dismissal to the Geor-
gia Court of Appeals. The Georgia Court of Appeals dismissed the
appeal because it was not brought by application for discretionary
appeal as required by Georgia law.
Dudar then filed this action against the DCA in federal court.
In his complaint, Dudar did not attribute any specific constitutional
violations to the DCA, but rather alleged that the Fulton County
Superior Court judge violated his Fourteenth Amendment rights
by ordering dismissal prior to discovery. The DCA moved to dis-
miss Dudar’s complaint, arguing that the district court lacked sub-
ject matter jurisdiction based on Eleventh Amendment immunity,
that Dudar failed to state a claim upon which relief could be
granted, and that res judicata barred Dudar’s suit. Dudar re-
sponded to the DCA’s motion to dismiss and moved for summary
judgment. The district court granted the DCA’s motion to dismiss
and denied Dudar’s motion for summary judgment as moot, rea-
soning that the DCA was entitled to sovereign immunity and that
Dudar failed to state a plausible Fourteenth Amendment claim.
On appeal, Dudar argues that sovereign immunity is uncon-
stitutional because it prevents the state from being sued. He also
contends that, on November 3, 2020, “[t]he People voted 50 to 0 to
abolish Sovereign Immunity.” Dudar next asserts, for the first time
on appeal, that the state of Georgia (1) committed a Fifth Amend-
ment taking for which he is owed compensation and (2) violated
the Contracts Clause by refusing to issue a housing assistance pay-
ment contract to him.
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4 Opinion of the Court 21-11173
II.
We review de novo both the dismissal of a complaint for
lack of subject matter jurisdiction and the dismissal of a complaint
for failure to state a claim under Rule 12(b)(6). Houston v. Marod
Supermkts., Inc., 733 F.3d 1323, 1328 (11th Cir. 2013); South Fla.
Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 406 (11th Cir. 1996).
Although we liberally construe a pro se brief, a pro se party may
still abandon an issue by not briefing it. Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008) (per curiam). The plaintiff has the
burden of proving that jurisdiction exists. Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
Section 1983 provides a cause of action by private citizens
against a government “person” for violations of their constitutional
rights and other federal laws. 42 U.S.C. § 1983. However, a state
agency is not a “person” within the meaning of § 1983. Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
The Eleventh Amendment provides that “[t]he 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 Sub-
jects of any Foreign State.” U.S. Const. amend. XI. Generally, the
Eleventh Amendment bars suits against states or state agencies in
federal court, including suits by a state’s own citizens. Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Abusaid
v. Hillsborough Cnty. Bd. of Cnty. Comm’rs, 405 F.3d 1298, 1303
(11th Cir. 2005).
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21-11173 Opinion of the Court 5
The Eleventh Amendment is no bar to suit, however, where
(1) the state consents to suit in federal court, or (2) Congress has
abrogated the state’s sovereign immunity. Port Auth. Trans-Hud-
son Corp. v. Feeney, 495 U.S. 299, 304 (1990). But Georgia has not
waived “any immunity with respect to actions brought in the
courts of the United States.” O.C.G.A. § 50-21-23(b). And § 1983
does not override states’ Eleventh Amendment immunity, mean-
ing that, “if a § 1983 action alleging a constitutional claim is brought
directly against a State, the Eleventh Amendment bars a federal
court from granting any relief on that claim.” Pennhurst, 465 U.S.
at 120 (explaining that the Eleventh Amendment “is a specific con-
stitutional bar against hearing even federal claims that otherwise
would be within the jurisdiction of the federal courts”).
III.
As an initial matter, Dudar has abandoned any argument
that the DCA is not entitled to Eleventh Amendment immunity
because he failed to brief the issue on appeal. Timson, 518 F.3d at
874. Even if Dudar has not abandoned this argument, the district
court properly found that the DCA is entitled to Eleventh Amend-
ment immunity. There is no legal or factual support for Dudar’s
assertion that sovereign immunity is unconstitutional, and his ar-
gument does not bear on whether the DCA has consented to suit
or whether Congress has abrogated the DCA’s sovereign immun-
ity. Assuming that Dudar plausibly stated a constitutional claim
against the DCA—a state agency—the Eleventh Amendment bars
any relief on that claim unless the DCA consents to suit. Feeney,
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6 Opinion of the Court 21-11173
495 U.S. at 304; Pennhurst, 465 U.S. at 120. And neither Georgia
nor the DCA consented to suit. O.C.G.A. § 50-21-23(b).
Moreover, this conclusion would not be altered by our con-
sideration of Dudar’s Fifth Amendment Takings and Contracts
Clause arguments for the first time on appeal. While the general
rule is that we will not consider an issue raised for the first time on
appeal, we will consider such an issue when proper resolution is
beyond any doubt. Finnegan v. Comm’r of Internal Revenue, 926
F.3d 1261, 1271–72 (11th Cir. 2019). Accordingly, we may consider
Dudar’s Fifth Amendment Takings Clause and Contracts Clause
arguments for the first time on appeal because proper resolution is
beyond any doubt: the Eleventh Amendment bars such claims—
no matter the constitutional provision—since neither Georgia nor
the DCA consented to suit. Feeney, 495 U.S. at 304; Pennhurst, 465
U.S. at 120; O.C.G.A. § 50-21-23(b).
Even if the Eleventh Amendment did not bar Dudar’s
claims, Dudar abandons any argument that his complaint plausibly
stated a claim upon which relief may granted. Nowhere in the one-
page Argument section of his brief does Dudar state the proper
pleading standards or attempt to argue that his complaint met
them. And, in any event, the district court properly found that
Dudar failed to state a claim. The DCA is not a “person” within
the meaning of § 1983 and, thus, § 1983 does not provide a cause of
action for Dudar to sue the DCA. Will, 491 U.S. at 71. Accordingly,
we affirm the dismissal of Dudar’s complaint.
AFFIRMED.