Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nelson v. Banks

United States District Court, E.D. Arkansas, Little Rock Division

September 28, 2016

TANZA NELSON and HELEN EDWARDS, PLAINTIFFS
v.
JIMMY BANKS, in his official capacity as Warden of the Varner Unit and in his individual capacity, and the ARKANSAS DEPARTMENT OF CORRECTION, DEFENDANTS

          OPINION AND ORDER

          Kristine G. Baker United States District Judge

         Plaintiffs 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).

         I. Background

         The ADC 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 separately.

         A. Tanza Nelson

         Ms. 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).

         The 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, [1] 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 violated.

         B. Helen Edwards

         Ms. 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.

         In 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.

         Ms. 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.

         The 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).

         On 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.

         II. Jurisdiction

         As a 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 ADC[2] 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.

         As for 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).

         III. Motion For Partial Summary Judgment

         Ms. 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.

         Ms. 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).

         IV. Motion To Dismiss Tanza Nelson's Claims

         Warden 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).

         A. Standard Of Review

         To 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).

         B. Statute Of Limitations

         Ms. 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.

         The ADC and Warden Banks argue that her claims under the ACRA[3] 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).

         In 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).

         The 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 are mentioned.

         Federal 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.

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.