ROBINSON v. CENTENE CORPORATION/NURSEWISE

Full title: Michael R. Robinson, Plaintiff, v. Centene Corporation/Nursewise; Shannon…

Court: United States District Court, D. Arizona

Date published: Jul 10, 2007

No. CIV 06-1946-PHX-MHM (D. Ariz. Jul. 10, 2007)

Opinion

No. CIV 06-1946-PHX-MHM.

July 10, 2007

ORDER

MARY MURGUIA, District Judge

Currently before the Court is Defendant Arizona Board of Behavioral Health Examiners' ("State Board") Motion to Dismiss (Dkt. #19); Plaintiff Michael R. Robinson's ("Plaintiff") Motion to Strike Defendants' Application for Substitution of Attorney General (Dkt. #41); and Plaintiff's Motion for Recusal. (Dkt #50). After reviewing the pleadings and finding oral argument to be unnecessary the Court issues the following Order.

I. Background and Procedural History

On August 9, 2006, Plaintiff filed suit asserting claims of race discrimination pursuant to 42 U.S.C. §§ 1981, 1983 and 1985 as well as under Title VII, 42 U.S.C. § 2000e, et seq., (Complaint, pp. 1-2). Plaintiff alleges that in late July 2005, he applied for employment with Defendant Centene Corporation/Nursewise ("Defendant Centene") as a telephonic counselor. (Complaint, p. 2). On August 16, 2005, Plaintiff alleges he received notice that he was not hired for the job allegedly because of his sex and race. (Id.). Plaintiff alleges that he believes "the company [Centene] systematically fails to hire black males in executive and professional positions." (Id. at p. 3). Plaintiff further alleges that subsequent to filing his EEOC complaint he discovered that the State Board, by and through numerous individual State Board employees, had conveyed false information to Defendant Centene that was allegedly detrimental to Plaintiff's employment application. (Id.). Plaintiff seeks declaratory, monetary and injunctive relief.

On September 13, 2006, Defendant Centene filed its Answer to Plaintiff's Complaint. (Dkt. #20). However, rather than file a responsive pleading to the Plaintiff's Complaint, the State Board and the individually named employees of the State Board ("Individual Defendants")¹ filed the instant Motion to Dismiss on grounds that the Eleventh Amendment of the Constitution of the United States bars Plaintiff's claims against the State Board and that Plaintiff's claims against the Individual Defendants in their official capacities are also barred. (Dkt. #19). The Plaintiff filed his opposition on October 11, 2006, and the State Board and Individual Defendants' filed their reply on October 26, 2007. As such, the Motion to dismiss is ripe for this Court's consideration. However, prior to the Court addressing the Motion to dismiss, the Court will first take up Plaintiff's Motion for recusal filed on June 15, 2007. (Dkt. #50).

1 The Individual Defendants of the State Board are Debra Rinaudo; Amy Shelton; Cedric Davis; Steve Legendre; Jose Herrera; Ruth Lee; Sharon "Del" Worley;Dan Wright; and Laura Waterman.

II. Motion for Recusal

Plaintiff states that recusal by this Court is appropriate pursuant to the recusal statute, 28 U.S.C. § 455. Plaintiff's affidavit asserts that "there is a reasonable factual basis that Judge Murguia has exhibited outward manifestation of impartiality against Plaintiff." (Dkt. #50, Exhibit A, ¶ 3). In support of this alleged impartiality, Plaintiff cites a 60-day rule which required the Court to address the State Board's Motion to dismiss within this window. In addition, Plaintiff cites the Court's granting of the State Board's request for an extension of time to file their reply in support of the instant Motion to dismiss as well as the lack of a Rule 16 Scheduling Conference to date. (Id. ¶¶ 6-8).

In reviewing Plaintiff's assertion of impartiality in conjunction with 28 U.S.C. § 455, the Court finds that there is no basis for recusal at this time. Notably, 28 U.S.C. § 455(a) provides that "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Plaintiff's conclusory assertions provide nothing to suggest that this Court's impartiality might reasonably be questioned. In essence, Plaintiff's request for recusal appears to be based upon the Court's delay in responding to the instant Motion to dismiss and the Plaintiff's reliance on a 60-day rule. However, the Plaintiff's apparent frustration does not somehow transform itself into a basis for recusal. Moreover, the Court's granting of the State Board's request for an extension of time falls within the scope of the Court's discretion and is not indicative of any degree of impartiality. Therefore, the Court finds that there is no basis for recusal at this time pursuant to 28 U.S.C. § 455.

III. Motion to Dismiss

A. State Board

The State Board moves to dismiss Plaintiff's Complaint on grounds that the Eleventh Amendment of the United States Constitution bars Plaintiff's suit.² The Eleventh Amendment provides:

2 Although the State Board moves to dismiss on grounds of Rule 12(b)(b), the Court will construe the motion as a facial challenge to this Court's jurisdiction over the State Board under Rule 12(b)(1) of the Federal Rules of Civil Procedure.

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 of Subjects of any Foreign State.

The Supreme Court has interpreted the Eleventh Amendment to prohibit suits against a state by citizens of that state. Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990). As such, "[t]he Eleventh Amendment grants to states a sovereign immunity from suit." Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045 (9^th Cir. 2000). In the absence of consent by the state, an action may only be brought against the state if Congress has expressly abrogated the states' sovereign immunity. Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 98 (1984).

In this case, with respect to Plaintiff's claims under 42 U.S.C. §§ 1981, 1983, and 1985 it is clear that the State Board's, as an agency of the State of Arizona, sovereign immunity has not been waived. See Freeman v. Michigan Dept. of State, 808 F.2d 1174, 1179 (6^th Cir. 1987) (holding that action against the state pursuant to § 1981 are barred by Eleventh Amendment sovereign immunity); Quern v. Jordan, 440 U.S. 332, 341-42 (1979) ( Eleventh Amendment has not been abrogated with respect to § 1983 claims); Caleira v County of Kauai, 866 F.2d 1175, 1182 (9^th Cir. 1989) ("The absence of a section 1983 deprivation of rights precludes a section 1985 claim predicated on the same allegations."). Importantly, this sovereign immunity from such claims applies to state agencies equally "regardless of the nature of the relief sought." Pennhurst 465 U.S. at 100-01 (citation omitted). Therefore, Plaintiff's claims based upon 42 U.S.C. §§ 1981, 1983 and 1985 against the State Board are barred by sovereign immunity.

However, to the extent the Plaintiff asserts claims against the Sate Board under Title VII, these claims are not barred by sovereign immunity. This is the case because state sovereign immunity has been abrogated by Title VII. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). Specifically, in instances where Congress has expressed an intent to abrogate a state's Eleventh Amendment rights, such as with Title VII, sovereign immunity does not apply to such suits "against a State or one of its agencies." Carmen v. San Francisco Unified School District, 982 F.Supp. 1396, 1405 (N.D. Cal. 1997). Therefore, while the Court expresses no finding as to merit of such Title VII claims against the State Board, the Court finds, based upon Plaintiff's reliance and citation to Title VII, that sovereign immunity does not apply with respect to such claims against the State Board.

B. Individual Defendants

As with Plaintiff's claims based upon 42 U.S.C. §§ 1981, 1983 and 1985 asserted against the State Board, Plaintiff's assertion of these claims seeking legal relief against the Individual Defendants in their official capacities meets the same fate based upon application of the Eleventh Amendment. See Pennhurst, 465 U.S. 89, 101-02 ( Eleventh Amendment applies to suits against state officials in their official capacities). The only applicable exception is that the Eleventh Amendment does not bar suits that are seeking only prospective declaratory or injunctive relief against state officials regarding compliance with federal law. Los Angeles County Bar Ass'n v. Eu, 979 F.2d 697, 704 (9^th Cir. 1992) (citing Ex parte Young, 209 U.S. 123, 155-56 (1908)). Notably, Plaintiff seeks that the Court "[o]rder that . . . the [State Board] cease engaging in future racial discriminatory practices . . ." (Dkt. #1, p. 5). Thus, to the extent Plaintiff seeks only prospective declaratory and injunctive relief against the Individual Defendants, as members of the State Board, in their official capacities, such claims are not barred by sovereign immunity.

In addition, to the extent Plaintiff asserts claims seeking equitable relief against the Individual Defendants pursuant to Title VII in their official capacities, such claims are not barred by sovereign immunity due to the Congress' abrogation of such. See Carmen, 982 F.Supp. at 1408 ("[I]ndividual defendants may be held liable under Title VII for acts performed in an official capacity under the theory of respondeat superior . . . and injunctive relief is available.") (citing Miller v. Maxwell's Intern. Co., 991 F.2d 583, 587 (9^th Cir. 1993)). Therefore, to the extent Plaintiff seeks injunctive relief against the Individual Defendants in their official capacities under Title VII, such claims survive.

Lastly, the Court notes that the sovereign immunity afforded to the Individual Defendants from Plaintiff's legal relief sought extends only to the Individual Defendants' official capacities. Nothing in this order prevents Plaintiff's claims from going forward against the Individual Defendants in their individual capacities nor do the Individual Defendants seek such dismissal.

IV. Summary

There is no basis for recusal, thus the Court will deny Plaintiff's request. In addition, the Court will dismiss Plaintiff's claims against the State Board, save Plaintiff's Title VII claims, because of the application of the Eleventh Amendment afforded to the states and state agencies from such suits. In addition, the Court will dismiss Plaintiff's claims seeking legal relief against the Individual Defendants in their official capacities. However, Plaintiff's §§ 1981, 1983 and 1985 claims seeking prospective injunctive relief and Plaintiff's Title VII claims seeking injunctive relief against the Individual Defendants in their official capacities survive. Similarly, Plaintiff's claims asserted against the Individual Defendants in their individual capacities are not barred by sovereign immunity.

Finally, the Court will deny Plaintiff's request to strike the Defendants' application for substitution for counsel. The Court properly granted the request on October 5, 2006 (Dkt. #39), before the Plaintiff's instant Motion was filed and Plaintiff offers no basis for this Court to reconsider. See School Dist. No. 1J, Multnomah County v. AcandS, Inc., 5 F.3d 1255, 1263 (9^th Cir. 1993) (noting bases to support reconsideration and that such motions are generally disfavored).

Accordingly,

IT IS HEREBY ORDERED granting in part and denying in part the State Board's Motion to Dismiss (Dkt. #19).

IT IS FURTHER ORDERED denying Plaintiff's Motion to Strike Defendants' Application for Substitution of Attorney General (Dkt. #41). IT IS FURTHER ORDERED denying Plaintiff's Motion for Recusal. (Dkt #50).