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Fick v. State

United States District Court, S.D. Alabama, Southern Division

May 27, 2018




         This cause is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(S), on Defendant State of Alabama's motion to dismiss (Doc. 20) and Plaintiff's response in opposition (Doc. 24).[1] Based on the contents of these pleadings and all other relevant pleadings in this matter, the Magistrate Judge RECOMMENDS that the State of Alabama's motion to dismiss (Doc. 20) be GRANTED.


         In his amended complaint filed January 18, 2018 (Doc. 4), the operative pleading in this case, see, e.g., Rosa v. Florida Dep't of Corrections, 522 Fed.Appx. 710, 714 (11th Cir. Jun. 26, 2013) ("Under the Federal Rules of Civil Procedure, 'an amended complaint supersedes the initial complaint and becomes the operative pleading in the case.'" (quoting Krinsk v. Sun Trust Banks, Inc., 654 F.3d 1194, 1202 (11th Cir. 2011)), Plaintiff briefly sets forth six or seven instances of bullying, harassment or abuse he allegedly suffered while attending various public schools in Mobile County from approximately 1993 through 2001. (Doc. 4, at 2-3). And though Plaintiff averred in the amended complaint that most of his claims arise under 42 U.S.C. § 2000a, with two arising under 20 U.S.C. § 1703 (see id.), the undersigned has construed the majority of Plaintiff's claims as arising under 42 U.S.C. § 2000c, which prohibits discrimination in public schools, as opposed to § 2000a (Doc. 5, at 1 n.1). Plaintiff seeks the following relief from Defendants the State of Alabama and the Mobile County Public School System in accordance with 42 U.S.C. § 2000c-8: "$3, 000, 000.00 for the psychological and physical damages endured during my time in attendance with the Mobile County Public School System from the years 1996-2001." (Doc. 4, at 4.)

         The State of Alabama filed its motion to dismiss on March 26, 2018 where it asserts that Plaintiff's complaint is due to be dismissed, in accordance with Fed.R.Civ.P. 12(b)(6), for failure to state a claim against it upon which relief can be granted. (See Doc. 20, at 1.) The State of Alabama also argues that it is immune from any federal or state claims asserted by Fick (see Id. at 2). The State of Alabama then reasserts its more general assertion that this Court should dismiss the claims asserted against it because the complaint "is nothing more than a recitation of events that allegedly occurred while Plaintiff was enrolled in the Mobile County School System, attributed to no one[.]" (Id. at 3-4 (emphasis supplied)).

         In his opposition in response, Fick contests the State's reliance on the Eleventh Amendment for dismissal of his complaint given the contents of the Fourteenth Amendment, particularly the guarantee of equal protection of the laws, and it being clear, according to Plaintiff, that Alabama's "'Model Anti-Harassment Policy' did not, and still does not, protect students from harassment due to sexual-orientation." (Doc. 24, at 1-2.) The Plaintiff then proceeds to clarify his claims as follows:

I) Age 13-During P.E. Nathaniel Sebastian slammed my head against the gymnasium wall and floor, rep[ea]tedly, a total of 6 times. The faculty of Scarborough Middle School made me wait until my mother could get off work before I was able to receive medical attention. The faculty also explained to my mother that nothing could be done to Nathaniel Sebastian, in regards to the assault, due to his mental impairment. Also, when I got to the doctor[']s office I was referred to Springhill Medical Center for a CAT scan.
II) Age 16-While in attendance at Shaw High School I was bullied in an excess that being hospitalized for two[]weeks due to anxiety was necessary. When I returned back to school Mr. Likely advised my mother to let me drop out because it seemed like the appropriate thing to do. (Not his exact words)
III) Age 23-I was diagnosed with AIDS and the specialist started the treatment immediately. During the second follow-up appointment Dr. Green explained to me that I contracted the virus approximately during the ages of 15-17.
IV) Age 24-I was incarcerated within the Mobile County Metro Jail for 30 day[s], due to the non-payment of traffic tickets. For 27 days[, ] I was denied the medication my specialist prescribed to treat the AIDS virus.
V) Age 33-I was diagnosed with PTSD, Panic Attacks, and Social Phobia.

(Id. at 2-3.)


         A. Plead ...

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