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Liss v. Jacksonville Aviation Authority

United States District Court, M.D. Florida, Jacksonville Division

August 7, 2019

FULTON B. LISS, Plaintiff,
v.
JACKSONVILLE AVIATION AUTHORITY, etc., et al., Defendants.

          ORDER

          TIMOTHY J. CORRIGAN United States District Judge

         According to his complaint, plaintiff Fulton B. Liss was a passenger on a commercial flight from Washington, D.C., to West Palm Beach, Florida, which was diverted to the Jacksonville International Airport on March 8, 2014. Liss alleges he has medical conditions that affect his balance, and he had boarded the plane using a wheelchair. When Liss exited the plane onto the jetway in Jacksonville, airport police Corporal D.L. McCrory told him he was being detained for questioning. Liss alleges that he told McCrory that he required a wheelchair and could not walk down the jetway unassisted. According to Liss, he was then handcuffed, put in a wheelchair, and arrested for failing to comply with McCrory's verbal commands and for “refusing to walk on his own accord.” Doc. 8 at ¶ 19. Liss alleges McCrory called for medical assistance to treat Liss, who was subsequently transported to a Pretrial Detention Facility by Officer P.A. Spikes with the Jacksonville Sheriff's Office (“JSO”), who also participated in the arrest.[1] Upon being booked into the Pretrial Detention Facility, Liss alleges that he was assaulted, bruised, and denied access to adequate medical care. Liss was charged with resisting or opposing an officer without violence, but the charges were later dropped.

         Liss filed a three count complaint in state court seeking monetary and injunctive relief, naming as defendants the Jacksonville Aviation Authority (“JAA”) (which operates Jacksonville International Airport), the City of Jacksonville, Sheriff Mike Williams, McCrory, Spikes, unknown supervisory officers and correctional officers with JSO, and an unknown medical provider at the Pretrial Detention Facility.[2] They are variously named in 42 U.S.C. § 1983 claims alleging Liss was arrested without probable cause (Count I); that he was denied adequate medical treatment (Count II); and that he was maliciously prosecuted (Count III). With the consent of the other served defendants, JAA removed the case to federal court on the basis of federal question jurisdiction, and all named defendants have moved to dismiss for failure to state a claim. Docs. 4, 5, 6, 12. Liss responded in opposition (Docs. 15, 24), requesting an opportunity to replead any count the Court finds is due to be dismissed. See Doc. 15 at 4, nn. 2 & 3; Doc. 24 at 4.

         I. Standard of Review

         When considering a motion to dismiss for failure to state a claim, the Court must accept all factual allegations as true and construe them in the light most favorable to plaintiff. Burban v. City of Neptune Beach, 920 F.3d 1274, 1278 (11th Cir. 2019) (citations omitted); Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quotation and citation omitted). But allegations are not entitled to the assumption of truth when they are “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. (citation omitted).

         II. JAA's Motion to Dismiss

         A. Eleventh Amendment Immunity

         JAA (which is named in Count I only) first argues that as an independent agency of the state of Florida, it enjoys Eleventh Amendment immunity from suit for money damages.[3] Liss does not contest that JAA is an agency of the state of Florida (indeed, he alleges it is), but responds that JAA waived its Eleventh Amendment immunity by removing the case to federal court.[4]

         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 . . . .” U.S. Const. amend. XI. As interpreted, this immunity extends to suits by a state's own citizens too. Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 618 (2002) (citation omitted). A defendant waives its Eleventh Amendment immunity from suit in federal court when it voluntarily avails itself of the federal forum by removal. Id. at 619. However, “the Eleventh Amendment is neither a source of nor a limitation on states' sovereign immunity from suit.” Stroud v. McIntosh, 722 F.3d 1294, 1298 (11th Cir. 2013) (citation omitted). Thus, even if a state waives its Eleventh Amendment immunity from suit through removal, it may retain its sovereign immunity from liability for particular claims, provided Congress has not abrogated it or the state has not otherwise waived it. See id. at 1301-03 (finding Congress had not abrogated Alabama's sovereign immunity against ADEA claims, and Alabama had not waived it through other means); Page v. Hicks, No. 2:16-CV-01993-KOB, 2018 WL 828770, *5 (S.D. Ala. Feb. 12, 2018) (reviewing Alabama law to “determine whether some other form of immunity” would bar plaintiff's claim, where defendant's removal waived Eleventh Amendment immunity from the federal forum), aff'd, __ Fed.Appx. __, 2019 WL 2070437 (11th Cir. May 10, 2019).

         JAA contends that Congress has not abrogated and Florida has not waived Florida's sovereign immunity for § 1983 claims, such as those alleged in Liss's complaint. The Court agrees. See Gamble v. Florida Dep't of Health & Rehab. Servs., 779 F.2d 1509, 1512-20 (11th Cir. 1986) (holding that Congress did not abrogate and Florida did not waive sovereign immunity for § 1983 claims). JAA therefore enjoys sovereign immunity from liability for money damages on Liss's § 1983 claim.[5]

         B. Injunctive Relief

         JAA also seeks dismissal of Liss's request for injunctive relief.[6] Liss seeks an injunction “requiring all defendants to correct all past violations of federal and state law as well as [sic] alleged herein and to enjoin defendants from continuing to act in violation of federal and state law as alleged herein pursuant to Estelle v. Gamble[.]” Doc. 8 at 13 (Wherefore Clause, at ¶ B).

         First, it is unclear how the equitable remedy of an injunction could be fashioned in a manner to “requir[e] defendants to correct all past violations of federal and state law.” Id. (emphasis added). Liss is pursuing legal remedies for damages, which is the appropriate means to seek redress for past violations.

         Second, as to his request that defendants be enjoined from future violations, Liss must demonstrate that he has standing to seek injunctive relief by “alleg[ing], and ultimately prov[ing], a real and immediate-as opposed to merely conjectural or hypothetical-threat of future injury.” JW v. Birmingham Bd. of Educ., 904 F.3d 1248, 1264 (11th Cir. 2018); see also City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (holding that an injunction “is unavailable” absent a “showing of any real or immediate threat that the plaintiff will be wronged again”). Here, however, Liss has alleged only that he was on a plane that was diverted from its flight plan to Jacksonville International Airport, whereupon his allegedly unconstitutional encounter with law enforcement occurred. In his brief, Liss adds that he “flies to the State of Florida each year and his travel is not limited to West Palm Beach, Florida and there remains a ‘real and immediate threat' of future arrest or malicious prosecution in Jacksonville during his travel.”[7] Doc. 15 at 3. Other than the March 8, 2014 incident, Liss does not allege or state that he has had any previous law enforcement encounters at Jacksonville International Airport or that he had ever even been there before March 8, 2014. Nor does he allege that he intends to travel through that airport in the future. And even if Liss regularly traveled through Jacksonville International Airport, he would have to further allege reasons why he expects to have encounters with law enforcement, and why those encounters would result in future arrests without probable cause. Liss has done none of that. As a matter the law, Liss's speculation about future encounters is insufficient to secure an injunction. See Lyons, 461 U.S. at 111 (holding that plaintiff could pursue damages for his claim of injuries from past encounter with police, but had no standing to seek an injunction “[a]bsent a sufficient likelihood that he [would] again be wronged in a similar way”); Corbett, 2019 WL 3244082, at *7-8 (finding plaintiff did not have standing to seek injunctive relief where he could only hypothesize that as a frequent flier, he “might” be selected by TSA in the future for additional (allegedly unconstitutional) screening); Worthy v. City of Phenix City, __ F.3d __, 2019 WL 3226873, *4 (11th Cir. July 18, 2019) (explaining that although plaintiffs had standing to pursue damages claims related to red-light camera ordinance, they did not have standing for purposes of injunctive relief where they failed to sufficiently allege a substantial likelihood that they would receive a future red-light camera citation); Elend v. Basham, 471 F.3d 1199, 1209 (11th Cir. 2006) (affirming dismissal of claim for injunctive relief that was based on an “entirely conjectural” premise).

         Finally, the requested prospective injunction seeks to require that defendants be enjoined from “continuing to act in violation of federal and state law as alleged herein pursuant to Estelle v. Gamble[.]”[8] Doc. 8 at 13. But that language does no more than direct defendants to “obey the law, ” which fails to meet the requirements of Federal Rule of Civil Procedure Rule 65(d) and is incapable of enforcement. Burton v. City of Belle Glade, 178 F.3d 1175, 1200-01 (11th Cir. 1999) (affirming summary judgment in favor of city where proposed injunction ordering city not to discriminate in future annexation decisions violated Rule 65(d)'s proscription against entering injunctions that are so broad that they are incapable of enforcement); see also Elend, 471 F.3d at 1209 (holding plaintiffs' claim ...


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