United States District Court, E.D. Arkansas, Little Rock Division
OPINION AND ORDER
Kristine G. Baker United States District Judge
Tanza Nelson and Helen Edwards are former employees of the
Arkansas Department of Correction (“ADC”) at the
Varner Unit. Both bring suit against the ADC and Jimmy Banks,
Warden of the Varner Unit, alleging a variety of claims.
Several motions are pending: (1) a motion for partial summary
judgment filed by Ms. Nelson and Ms. Edwards (Dkt. No. 5);
(2) a motion to dismiss Ms. Nelson's claims filed by the
ADC and Warden Banks (Dkt. No. 6); (3) a motion to dismiss
Ms. Edwards's claims filed by the ADC and Warden Banks
(Dkt. No. 12); (4) a motion to strike portions of
plaintiffs' complaint and amended complaint filed by the
ADC and Warden Banks (Dkt. No. 15); and an
“alternative” motion to remand included in Ms.
Nelson's response to defendants' motion to dismiss
and motion to strike (Dkt. No. 20).
and Warden Banks complain that plaintiffs' counsel
“has spliced two completely unrelated lawsuits into a
single complaint, ” but they make no request to sever
Ms. Nelson and Ms. Edwards's claims into separate suits
(Dkt. No. 7, at 1). The Court will not issue a ruling on
whether these cases should be severed unless properly
requested by motion. However, to evaluate the pending
motions, the Court will present the factual and procedural
backgrounds of Ms. Nelson and Ms. Edwards's cases
Nelson was terminated from the ADC on September 2, 2011 (Dkt.
No. 4, ¶ 25). She originally filed suit on January 27,
2012. See Complaint, Nelson v. Banks, Case
No. 5:12-cv-00292 (E.D. AR July 27, 2012) (Dkt. No. 1). Her
case was voluntarily dismissed on June 9, 2014. See
Order, Nelson v. Banks, Case No. 5:12-cv-00292 (E.D.
AR June 9, 2014) (Dkt. No. 20). She filed her present action
in the Circuit Court of Pulaski County, Arkansas, on June 8,
2015 (Dkt. No. 7, at 4). The ADC and Warden Banks removed the
case to this Court on September 29, 2015 (Dkt. No. 1, at 1).
factual allegations in Ms. Nelson's earlier filed action
are identical to the allegations she makes now. In both
actions, she named as defendants the ADC and Warden Banks in
his official and individual capacity. This Court summarized
her factual allegations in its Opinion and Order on
defendants' motion to dismiss in the earlier filed
action, and the Court adopts that summary now. See
Opinion and Order at 1-4, Nelson v. Banks, Case No.
5:12-cv-00292 (E.D. AR May 9, 2013) (Dkt. No. 11). In her
current case,  Ms. Nelson brings claims for retaliation
as well as racial and gender discrimination pursuant to 42
U.S.C. § 1981 and 42 U.S.C. § 1983. She asserts
racial and gender discrimination claims, as well as a
retaliation claim, under the Arkansas Civil Rights Act
(“ACRA”), Ark. Code Ann. § 16-123-101 et
seq. She also claims that her rights of access to the
courts and free speech under the First Amendment were
Edwards, like Ms. Nelson, previously worked at the ADC, but
her employment was terminated. At this stage of the
proceedings, the Court accepts as true the allegations in the
amended complaint (Dkt. No. 4). While working for the ADC,
Ms. Edwards also worked for the Varner Unit Employee
Corporation (“VUEC”), an employee benefit
corporation. Ms. Edwards contends that she was not
compensated for her work for VUEC, which she claims violated
the Arkansas Minimum Wage Act.
December 2010, Warden Banks directed VUEC's Chief
Executive Officer to loan an employee an amount of money in
excess of $100. Making a loan of that size required member
approval, but no such approval was given. Despite that fact,
Ms. Edwards alleges that VUEC's Chief Executive Officer
followed Warden Banks's orders and made the loan to the
employee who failed to repay it in a timely manner, another
violation of VUEC policies. Warden Banks, a Caucasian male,
was not disciplined for these violations.
Edwards, an African American female, complained about this
behavior to Warden Banks and ADC management. Ms. Edwards
claims that Warden Banks did not address Ms. Edwards's
complaint, but rather he began investigating and scrutinizing
her in the following weeks. Ms. Edwards admitted to taking
laundry detergent and other items for personal use, and she
maintains she was fired as a result. Caucasian male employees
who had done far worse were not terminated as a result of
their transgressions, according to Ms. Edwards.
exact date of Ms. Edwards's termination does not appear
in the amended complaint, but she originally filed suit in
the Circuit Court of Jefferson County, Arkansas, on August
19, 2011, against the ADC, Warden Banks, and VUEC (Dkt. No.
13, at 2). In her original action, she alleged claims of
racial and gender discrimination pursuant to § 1983 as
well as violations of the Arkansas Whistle-Blower Act
(“AWBA”), Ark. Code Ann. §§ 21-1-601,
et seq.; the Arkansas Minimum Wage Act
(“AMWA”), Ark. Code Ann. §§ 11-4-201,
et seq.; and the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201, et
seq. (Dkt. No. 12-2, at 1).
September 25, 2014, the Jefferson County Circuit Court
granted defendants' various motions to dismiss Ms.
Edwards's case, dismissing all of her claims against the
ADC and Warden Banks without prejudice and her claims against
VUEC with prejudice. Ms. Edwards did not appeal this decision
(Dkt. No. 13, at 3). Instead, on September 25, 2015, her
counsel amended Ms. Nelson's complaint in this action to
include Ms. Edwards's claims (Dkt. No. 4). Ms. Edwards
raises the same claims against the ADC and Warden Banks as
she did in her original action, while adding race
discrimination and retaliation claims pursuant to the ACRA.
She does not reallege her claims against VUEC, which is not a
party to this suit.
preliminary matter, the Court must address the jurisdictional
question raised in the parties' filings. This case was
initially filed in the Circuit Court of Pulaski County,
Arkansas. On September 29, 2015, Warden Banks and the
removed the case to this Court and filed a motion to dismiss
Ms. Nelson's claims. In their motion to dismiss, Warden
Banks and the ADC raise the defense of sovereign immunity
(Dkt. No. 7, at 7-8). Ms. Nelson argues that the Court does
not have jurisdiction over this case and must remand it or,
alternatively, that by removing this case, Warden Banks and
the ADC waived sovereign immunity (Dkt. No 20, at 1). The
Court will address Ms. Nelson's wavier argument
infra in section IV.C of this Opinion and Order.
Ms. Nelson's jurisdictional argument, federal district
courts have removal jurisdiction over “any civil action
brought in a State court of which the district courts of the
United States have original jurisdiction.” 28 U.S.C.
§ 1441. Ms. Nelson and Ms. Edwards allege violations of
federal law, meaning this Court has original jurisdiction
over their case. 28 U.S.C. § 1331. Therefore, the Court
has removal jurisdiction. Warden Banks and the ADC's
asserted defense of sovereign immunity to certain state law
claims does not destroy this Court's jurisdiction.
See, e.g., Tarasenko v. Univ. of Arkansas, 63
F.Supp.3d 910, 921 (E.D. Ark. 2014) (dismissing state law
claims on the basis of sovereign immunity but addressing
remaining claims in employment discrimination suit).
Similarly, even if some of Ms. Nelson's claims may be
barred by the Eleventh Amendment, “the presence in an
otherwise removable case of a claim that the Eleventh
Amendment may bar does not destroy removal jurisdiction that
would otherwise exist.” Wisconsin Dep't of
Corr. v. Schacht, 524 U.S. 381, 386 (1998). Therefore,
the Court finds that it has removal jurisdiction. Ms. Nelson
and Ms. Edwards's “alternative” motion to
remand is denied (Dkt. No. 20).
Motion For Partial Summary Judgment
Nelson and Ms. Edwards moved for partial summary judgment
dismissing any defenses the ADC and Warden Banks may have for
service and process issues (Dkt. No. 5). The ADC and Warden
Banks responded to the motion (Dkt. No. 9). In their answer
to the original complaint, Warden Banks and the ADC reserved
their right to object on the basis of insufficiency of
process and of service of process (Dkt. No. 3, ¶ 44).
Warden Banks and the ADC have not taken any action in regard
to these potential defenses.
Nelson and Ms. Edwards's motion is denied, as they cite
no authority upon which the Court should grant their motion
and failed to follow the requirements of Local Rules 7.2 and
56.1 of the Local Rules of the United States District Court
for the Eastern and Western Districts of Arkansas when filing
their motion. Local Rule 7.2 provides that certain motions,
including motions for summary judgment, must “be
accompanied by a brief consisting of a concise statement of
relevant facts and applicable law.” Local Rule 56.1
provides that in addition to the requirements set forth in
Local Rule 7.2, any party moving for summary judgment must
“annex to the notice of motion a separate, short and
concise statement of the material facts as to which it
contends there is no genuine dispute to be tried.” Ms.
Nelson and Ms. Edwards did not file a brief in support of
their motion for partial summary judgment or a statement of
undisputed material facts. Accordingly, their motion for
partial summary judgment is denied (Dkt. No. 5).
Motion To Dismiss Tanza Nelson's Claims
Banks and the ADC filed separate motions to dismiss against
Ms. Nelson and Ms. Edwards. They support their motion with
five arguments regarding dismissal of Ms. Nelson's
claims: (1) her ACRA claims are barred by the statute of
limitations; (2) her ACRA claims are barred by sovereign
immunity; (3) her ACRA claims should be dismissed for failing
to state a claim; (4) her First Amendment claims should be
dismissed for failing to state a claim; and (5) her
discrimination claims should be dismissed because she failed
to state a cognizable claim for relief (Dkt. No. 6, at 1-2;
Dkt. No. 7, at 12-15).
Standard Of Review
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), “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 is facially plausible “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft, 556
U.S. at 678. (citing Twombly, 550 U.S. at
556). “While a complaint attacked by a [Federal] Rule
[of Civil Procedure] 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's obligation to
provide the ‘grounds' of his ‘entitle[ment]
to relief' requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555
(alteration in original) (citations omitted). “[T]he
complaint must contain facts which state a claim as a matter
of law and must not be conclusory.” Briehl v.
General Motors Corp., 172 F.3d 623, 627 (8th Cir. 1999).
“When ruling on a motion to dismiss, the district court
must accept the allegations contained in the complaint as
true and all reasonable inferences from the complaint must be
drawn in favor of the nonmoving party.” Young v.
City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001).
Statute Of Limitations
Nelson was terminated on September 2, 2011. Her original
action was filed on July 27, 2012, and voluntarily dismissed
on June 9, 2014. She filed this action on June 8, 2015, which
was more than three years after she was fired but less than
one year after her original action was voluntarily dismissed.
and Warden Banks argue that her claims under the
are untimely. According to the ADC and Warden Banks,
“[i]n Arkansas, there is a three-year limitations
period for claims asserted under 42 U.S.C. § 1983”
(Dkt. No. 7, at 5). Ms. Nelson filed this suit more than
three years after being terminated. However, she filed her
original suit within three years of being terminated, and she
filed this action within one year after her original action
was voluntarily dismissed. Arkansas's saving statute
provides that if “any action” is commenced within
the appropriate limitations period, “and the plaintiff
therein suffers a nonsuit . . . the plaintiff may commence a
new action within one (1) year after the nonsuit
suffered.” Ark. Code Ann. § 16-56-126. The ADC and
Warden Banks argue that Ms. Nelson's ACRA claims are not
saved under the savings statute because she did not include
any ACRA claims in her earlier suit (Dkt. No. 7, at 7).
response, Ms. Nelson argues that her original suit included
claims under the ACRA. According to Ms. Nelson,
“Paragraph 27 of the previous Complaint plead a claim
for violation of the ‘constitution.' Paragraph 26
contained a claim under the United States Constitution. The
constitution referenced in paragraph 27 was the state
constitution. Thus, the claim was made. Given Rule 8's
command, that pleadings be interpreted liberally, the motion
should be denied” (Dkt. No. 20, at 6).
Court has reviewed the complaint from Ms. Nelson's
original suit. There is no mention of the ACRA or any claim
under state law. Ms. Nelson alleged retaliation as well as
racial and gender discrimination in violation of Title VII,
and she sued Warden Banks in his official and individual
capacities under § 1981 and § 1983 for racial and
gender discrimination and for the alleged denial of her
access to the courts and free speech rights under the First
Amendment of the United States Constitution. No other claims
Rule of Civil Procedure 8(a)(2) provides that a complaint
must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” While
the Court must construe the complaint liberally in the light
most favorable to the plaintiff, “the complaint must
still provide the defendant with ‘fair notice of what
the plaintiff's claim is and the grounds upon which it
rests.'” Eckert v. Titan Tire Corp., 514
F.3d 801, 806 (8th Cir. 2008) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). In Eckert, the
district court found, and the Eighth Circuit Court of Appeals
agreed, that the defendant did not properly plead a claim
under the Employee Retirement Income Security Act of 1974; 29
U.S.C. §§ 1001, et seq.
(“ERISA”), when it “did not mention an
ERISA violation in its third-party complaint that sought
relief only on the basis that Pirelli violated [an asset
purchase agreement].” Id. The defendant
referenced ERISA twice in the jurisdictional section of the
complaint, but the Eighth Circuit found that this was
insufficient to provide the defendant with fair notice of a
potential ERISA claim. Id. at 807. Ms. Nelson's
complaint in her original action provides even less notice of
a potential ACRA claim than the deficient complaint in
Eckert. Therefore, the Court finds that Ms.
Nelson's earlier suit did not include a claim under the
ACRA, even affording Ms. Nelson's complaint a liberal
interpretation as required.
Court notes that of the “numerous cases in the federal
court system that attempt to interpret and apply the
ACRA” nearly all of them “simply add the ACRA
claims as pendent to the already well-established Title VII
and section 1983 discrimination claims.” Michael Mosley
et. al., Sixteen Years of Litigation Under the Arkansas
Civil Rights Act: Where We Have Been and Where We Are
Going, 32 U. Ark. Little Rock L. Rev. 173, 178 (2010).
However, these are distinct causes of action, and in some
circumstances, there are meaningful differences between ACRA
claims and their federal law counterparts. See Id.
(examining these differences and undeveloped areas of the law
under the ACRA). For example, in her original action, Ms.
Nelson brought a retaliation claim pursuant to Title VII.
See Complaint, Nelson v. Banks, Case No.
5:12-cv-00292 (E.D. AR July 27, 2012) (Dkt. No. 1, ¶
28). In this action, she brings retaliation claims against
the ADC and Warden Banks under the ACRA (Dkt. No. 4, ¶
53). Under Title VII, Warden Banks cannot be held
individually liable for retaliation. Bonomolo-Hagen v.
Clay Cent.-Everly Cmty. Sch. Dist., 121 F.3d 446, 447
(8th Cir. 1997). Under the ACRA, he could be held liable in
his individual capacity for retaliation. Calaway v.
Practice Mgmt. Servs., Inc., 2010 Ark. 432, *1 (2010);
see also Madeline L. Kurrus, Taking It
Personally: Holding Individual Supervisors Liable for