Neiberger v. Hawkins

• Decision Date: 09 July 2001
• Docket Number: No. CIV.A.99-B-1120.,CIV.A.99-B-1120.
• Citation: 150 F.Supp.2d 1118
• Parties: James NEIBERGER, Danford Eldridge, Paul Gardner, and Terence Jacobs, Plaintiffs, v. Robert HAWKINS, individually and in his official capacity as Superintendent of the Colorado Mental Health Institute at Pueblo; Garry Toerber, individually and in his official capacity as Associate Manager for the Office of Direct Services of the Department of Human Services; Colorado Department of Human Services; and Colorado Mental Health Institute at Pueblo, Defendants.
• Court: U.S. District Court — District of Colorado

Page 1118

150 F.Supp.2d 1118

James NEIBERGER, Danford Eldridge, Paul Gardner, and Terence Jacobs, Plaintiffs, v. Robert HAWKINS, individually and in his official capacity as Superintendent of the Colorado Mental Health Institute at Pueblo; Garry Toerber, individually and in his official capacity as Associate Manager for the Office of Direct Services of the Department of Human Services; Colorado Department of Human Services; and Colorado Mental Health Institute at Pueblo, Defendants.

No. CIV.A.99-B-1120.

United States District Court, D. Colorado.

July 9, 2001.

Steven W. Black, Stephanie B. Edinger, Holland & Hart, LLP, Thomas F. Quinn, Solomon, Pearl, Blum & Quinn, David H. Miller, Miller, Lane, Killmer & Greisen, LLP, Kathleen Mullen, Denver, CO, Sylvia V. Kirk, Sylvia V. Kirk, Atty at Law, Englewood, CO, for plaintiffs.

Cathy H. Greer, Pamela Leggett Skelton, Wells, Anderson & Race LLC, Christine M. Arguello, Attorney General's Office, Denver, CO, for defendants.

MEMORANDUM OPINION AND ORDER

BABCOCK, Chief Judge.

Plaintiffs James Neiberger, Danford Eldridge, Paul Gardner, and Terence Jacobs bring four surviving claims against Defendants Robert Hawkins, individually and in his official capacity as Superintendent of the Colorado Mental Health Institute at Pueblo; Garry Toerber, individually and in his official capacity as Associate Manager for the Office of Direct Services of the Department of Human Services; Colorado Department of Human Services; and Colorado Mental Health Institute at Pueblo. Defendants move to dismiss Plaintiffs' Americans with Disabilities Act claim. The motion is adequately briefed and oral argument would not materially aid its resolution. For the reasons set forth below, I grant Defendants' motion to dismiss. Jurisdiction is proper in this Court pursuant to 28 U.S.C. §§ 1331, 1441, and 1443.

I. Facts and Procedural History

The facts in this case are set out in Neiberger v. Hawkins, 70 F.Supp.2d 1177 (D.Colo.1999), aff'd, 2001 WL 227405 (10th Cir.2001), and need not be fully repeated here. This action was brought by patients of the Forensic Institute at the Colorado Mental Health Institute at Pueblo who were placed there pursuant to criminal adjudications of not guilty by reason of insanity. They allege a combination of hostile conditions and policies that prevent them from obtaining appropriate medical and psychiatric care.

Defendants moved to dismiss Plaintiffs' Second Amended Complaint. In Neiberger v. Hawkins, 70 F.Supp.2d 1177 (D.Colo.1999) I granted the motion in part, denied it in part, and held it in abeyance in part. The following claims survived that Order: (1) violation of Colorado's Care and Treatment of the Mentally Ill Act as against all Defendants, but without any entitlement to damages; (2) violation of Due Process pursuant to 42 U.S.C. § 1983 as against Mr. Hawkins and Mr. Toerber in their official capacities for prospective injunctive relief only, and in their individual capacities as pled; (3) violation of Title II of the ADA as against the State Defendants and individual Defendants in their official capacities; and (4) negligence as to all Defendants. I also denied Defendants' assertions of qualified immunity and immunity pursuant to the Colorado Governmental Immunity Act. Defendants pursued an interlocutory appeal, and the case was stayed. The Tenth Circuit affirmed and remanded on March 8, 2001. See Neiberger v. Hawkins, 2001 WL 227405 (10th Cir.2001).

As part of Defendants' original motion to dismiss, I held in abeyance that portion of the motion which sought dismissal of Plaintiffs' ADA claim, pending issuance of a ruling from the United States Supreme Court in Kimel v. State Bd. of Regents, 139 F.3d 1426 (11th Cir.1998), cert. granted by Kimel v. Florida Bd. of Regents, 525 U.S. 1121, 119 S.Ct. 901, 142 L.Ed.2d 901 (1999) and United States v. Florida Bd. of Regents, 525 U.S. 1121, 119 S.Ct. 901, 142 L.Ed.2d 901 (1999). The Supreme Court issued its ruling on January 11, 2000. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), holding that the Age Discrimination in Employment Act (ADEA) did not validly abrogate states' Eleventh Amendment immunity from suit by private individuals. I also required that the Defendants comply with D.C. COLO. L.R. 24.1 within 10 days from the date of the Order to preserve arguments of the constitutional infirmity of Title II of the ADA. They did so on November 24, 1999. I now decide that portion of the motion previously held in abeyance.

II. Motion to Dismiss

A motion to dismiss based on sovereign immunity is treated as a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). See King v. United States, 53 F.Supp.2d 1056, 1064 (D.Colo.1999); Neiberger, 70 F.Supp.2d at 1181. Federal courts are courts of limited jurisdiction and they may exercise jurisdiction only when specifically authorized to do so. See Castaneda v. Immigration & Naturalization Serv., 23 F.3d 1576, 1580 (10th Cir.1994). Given this limited authority, there is a presumption against federal jurisdiction. See Scheideman v. Shawnee County Bd. of County Comm'rs, 895 F.Supp. 279, 281 (D.Kan.1995) (citing Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974)). Because the party invoking the jurisdiction of the court has the duty to establish that federal jurisdiction exists, it is the plaintiff who bears the burden of showing why the case should not be dismissed when federal jurisdiction is challenged. See id.; Jensen v. Johnson County Youth Baseball League, 838 F.Supp. 1437, 1439-40 (D.Kan.1993). A court lacking jurisdiction must dismiss the case at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking. See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.), cert. denied, 516 U.S. 863, 116 S.Ct. 174, 133 L.Ed.2d 114 (1995). Challenges to jurisdiction under Fed.R.Civ.P. 12(b)(1) generally take two forms: facial attacks on the sufficiency of jurisdictional allegations and factual attacks on the accuracy of those allegations. See Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir.1995). Defendants' motion falls within the first category.

A. Eleventh Amendment Immunity Generally

Defendants move to dismiss Plaintiffs' ADA claim on the grounds of Eleventh Amendment Immunity. "The Eleventh Amendment generally bars suits against a state in federal court commenced by citizens of that state or citizens of another state." Elephant Butte Irrigation Dist. of New Mexico v. Department of Interior, 160 F.3d 602, 607 (10th Cir.1998), cert. denied, 526 U.S. 1019, 119 S.Ct. 1255, 143 L.Ed.2d 352 (1999). There are three primary methods, however, in which a plaintiff can circumvent the Eleventh Amendment. See J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1285-86 (10th Cir.1999) (citing Elephant Butte, 160 F.3d at 607; ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1187-88 (10th Cir.1998), cert. denied, 525 U.S. 1122, 119 S.Ct. 904, 142 L.Ed.2d 902 (1999)). First, a state may consent to the action. See id. at 1286 (citations omitted). "Second, `Congress may clearly and expressly abrogate the states' immunity.'" Id. (citations omitted). Third, "a party may sue a state official pursuant to Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)." Id. (citation omitted); see also Glazer's Wholesale Drug Co., Inc. v. Kansas, 92 F.Supp.2d 1228, 1230-31 (D.Kan.2000). Plaintiffs assert that jurisdiction is proper under the second of these exceptions, as Congress abrogated the states' immunity in the ADA.

Defendants argue that Title II of the ADA unconstitutionally abrogates states' sovereign immunity. They contend that even an express statutory waiver of sovereign immunity such as that contained in the ADA, 42 U.S.C. § 12202, is ineffective if Congress does not possess constitutional authority to subject a non-consenting state to suit under the Act. The Supreme Court has established a two-part test to determine whether Congress properly abrogated the states' Eleventh Amendment immunity: (1) a court must determine whether Congress has unequivocally expressed its intent to abrogate immunity; and (2) a court must determine whether Congress acted pursuant to a valid exercise of power. See Martin v. Kansas, 190 F.3d 1120 (10th Cir.1999) (citing Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)). Although Defendants concede that the ADA "unequivocally" abrogates immunity, they argue that Title II's abrogation is unconstitutional.

B. Current State of the Law

The Supreme Court recently ruled in Board of Trs. of Univ. of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) that suits in federal court by state employees to recover money damages under Title I of the ADA are barred by the Eleventh Amendment. However, Garrett's holding is limited to Title I of the ADA. The Court in Garrett refused to rule on whether Title II claims were similarly barred, writing that it was "not disposed to decide the constitutional issue whether Title II, which has some-what different remedial provisions from Title I, is appropriate legislation under §§ 5 of the Fourteenth Amendment when the parties have not favored us with briefing on the statutory question." Garrett, 531 U.S. at ___, 121 S.Ct. 955, 960 n. 1, 148 L.Ed.2d 866. Although the Court granted certiorari on the question whether plaintiffs may sue their state employers for damages under Title II of the ADA, that portion of the writ was dismissed as improvidently granted. See id.

The Circuits remain split on the question. See, e.g., Shaboon v. Duncan, 252 F.3d 722 (5th Cir.2001) (following Coolbaugh v. State of Louisiana, 136 F.3d 430, 438 (5th Cir.1998), cert. denied, 525 U.S. 819, 119 S.Ct. 58, 142 L.Ed.2d 45 in holding that states enjoy no Eleventh Amendment immunity from Title II); Wroncy v. Oregon Dept. of Transp., 2001 WL 474550 *1 (9th Cir. May 4, 2001) (holding the...