United States District Court, D. Maine
DECISION AND ORDER ON DEFENDANT STATE OF MAINE,
DEPARTMENT OF AGRICULTURE, CONSERVATION, AND FORESTRY'S
MOTION TO DISMISS AMENDED COMPLAINT
E. WALKER UNITED STATES DISTRICT JUDGE.
Ali Abdisamad brings this action on behalf of his deceased
son, R.I., against Defendants the City of Lewiston, the
Lewiston School Department, and the State of Maine Department
of Agriculture, Conservation and Forestry alleging claims
arising from the death of R.I. Am. Compl. (ECF No. 8). The
matter is before me on Defendant State of Maine, Department
of Agriculture, Conservation and Forestry's
(“DACF”) motion to dismiss all claims against it
pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Mot. Dismiss
Am. Compl. (“Mot. Dismiss”) (ECF No. 17).
12, 2018, the City of Lewiston and the Lewiston School
department sponsored a field trip to Range Pond State Park in
Poland, Maine for a group of seventh graders, which included
R.I. Defendant DACF provided one lifeguard at the beach area.
Tragically, R.I. drowned and rescue personnel were not able
to resuscitate him.
Amended Complaint asserts two counts against DACF: (1)
violation of R.I.'s due process rights, presumably
advanced under 42 U.S.C. § 1983 and the Maine Civil
Rights Act (“MCRA”), 5 M.R.S. § 4682 (Count
II); and (2) wrongful death, presumably pursuant to 14 M.R.S.
§ 8104-C and 18-A M.R.S. § 2-804 (Count IV). Am.
Compl. ¶¶ 23-27; 33-37.
motion, DACF argues that because it is a department of the
State of Maine, it is insulated from Plaintiff's claims
on sovereign immunity grounds, citing the Eleventh Amendment
of the United States Constitution. Mot. Dismiss 4-6.
Eleventh Amendment is “rooted in a recognition that the
States, although a union, maintain certain attributes of
sovereignty, including sovereign immunity.” Puerto
Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139, 146 (1993). Under the principle of
sovereign immunity, unless a state affirmatively waives
Eleventh Amendment protections and consents to suit in
federal court, it is “immune from suit brought by a
private party, regardless of the nature of the relief
sought.” DeCotiis v. Whittemore, 842 F.Supp.2d
354, 364 (D. Me. 2012); see also Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984). To
be clear - this immunity insulates a state from suit in
federal court “on any claim, whether based in federal
or state law.” Walker v. Nichols, No.
1:13-CV-00259-GZS, 2013 WL 6018614, at *3 (D. Me. Nov. 13,
immunity is an expansive principle that covers not only the
state, but also agencies of the state and other entities that
are an ‘arm of the state.' Poirier v.
Massachusetts Dep't of Correction, 558 F.3d 92, 97
(1st Cir. 2009) (“States and their agencies are
entitled to sovereign immunity ‘regardless of the
relief sought.'” (quoting Kentucky v.
Graham, 473 U.S. 159, 167 n. 14 (1985))); Wojcik v.
Massachusetts State Lottery Comm'n, 300 F.3d 92, 99
(1st Cir. 2002) (“[I]mmunity extends to any entity that
is an ‘arm of the state.'” (citation
determine whether an entity is an “arm of the state,
” I am required to employ a two-step analysis.
Redondo Const. Corp. v. Puerto Rico Highway & Transp.
Auth., 357 F.3d 124, 126 (1st Cir. 2004) (citing
Fresenius Med. Care Cardiovascular Resources, Inc. v.
Puerto Rico & the Caribbean Cardiovascular Ctr.
Corp., 322 F.3d 56, 63 (1st Cir.2003), cert.
denied, 540 U.S. 878 (2003) [hereinafter
Fresenius]). First, I must consider “whether
the state has indicated an intention - either explicitly by
statute or implicitly through the structure of the entity -
that the entity share the state's sovereign
immunity.” Id. In the absence of an
“explicit indication, ” I must look to
“structural indicators of the state's
intention.” Id. These structural indicators
include factors such as: “how state law characterizes
the entity, the nature of the functions performed by the
entity, the entity's overall fiscal relationship to the
[state] (as opposed to whether the [state] is liable for any
judgment in the particular case at hand), and how much
control the state exercises over the operations of the
entity.” Grajales v. Puerto Rico Ports Auth.,
831 F.3d 11, 18 (1st Cir. 2016). If consideration of the
structural indicators is inconclusive, I then consider the
second step and “whether the state's treasury would
be at risk in the event of an adverse judgment.”
Redondo Const. Corp., 357 F.3d at 126.
claims against DACF are claims against an arm of the state of
Maine. As established in statute and as recognized in
Plaintiff's complaint, DACF is a “cabinet-level
department” tasked with the mission of “serv[ing]
as a steward of Maine's agricultural and natural
resources.” 7-A M.R.S. §§ 201, 202; see
also Am. Compl. ¶ 6. DACF was not created to be
“independent and separate, ” see
Fresenius, 322 F.3d at 68; instead, as Plaintiff notes,
it is a department “within the State of Maine, ”
Am. Compl. ¶ 6. As an agency of the State of Maine, DACF
is entitled to sovereign immunity. See, e.g., Johnson v.
Rodriguez, 943 F.2d 104, 108-09 (1st Cir. 1991)
(concluding without additional analysis that the
Massachusetts Commission Against Discrimination (MCAD),
“a state agency, ” is “an arm of the
Commonwealth of Massachusetts” immune from suit under
Section 1983); Hill-Spotswood v. Mayhew, No.
1:14-CV-00206-GZS, 2015 WL 403931, at *6 (D. Me. Jan. 29,
2015) (likewise concluding that the State of Maine Department
of Health and Human Services “is a governmental entity
and an ‘arm of the state'” entitled to
sovereign immunity); Flood v. Maine Dep't of
Corr., No. 1:11-CV-270-DBH, 2012 WL 5389533, at *9 (D.
Me. Aug. 24, 2012), report and recommendation
adopted, No. 1:11-CV-00270-NT, 2012 WL 5389529 (D. Me.
Nov. 2, 2012) (confirming that the Maine Department of
Corrections, as a state agency, “is not, as a matter of
law, amenable to suit pursuant to section 1983, whether for
damages or declaratory or injunctive relief”).
Plaintiff has failed to allege facts to indicate that DACF
has waived its entitlement to sovereign immunity. Eleventh
Amendment immunity can be waived in three narrow
circumstances: “(1) by a clear declaration that it
intends to submit itself to the jurisdiction of a federal
court or administrative proceeding, (2) by consent to or
participation in a federal program for which waiver of
immunity is an express condition, or (3) by affirmative
conduct in litigation.” New Hampshire v.
Ramsey, 366 F.3d 1, 15 (1st Cir. 2004) (internal
citations omitted). The State of Maine has explicitly refused
to waive Eleventh Amendment protections, 14 M.R.S. §
8118, and its “general waiver of sovereign
immunity” subjecting it to suit in Superior Court under
the Maine Civil Rights Act, 5 M.R.S. § 4682(2), and the
Maine Tort Claims Act, 14 M.R.S. § 8106, is “not
enough to waive the immunity guaranteed by the Eleventh
Amendment.” Atascadero State Hosp. v. Scanlon,
473 U.S. 234, 241 (1985). As stated by the Supreme Court,
“a State does not consent to suit in federal court
merely by consenting to suit in the courts of its own
creation.” Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 676
(1999). DACF's litigation conduct has reaffirmed this
refusal to waive sovereign immunity or to submit to the
jurisdiction of this court: it filed this motion explicitly
asserting its sovereign immunity and contesting jurisdiction.
See Ramos-Pinero v. Puerto Rico, 453 F.3d 48, 52
(1st Cir. 2006) (concluding that “[f]iling a motion to
dismiss that specifically asserts Eleventh Amendment
immunity” can hardly be viewed as an act that
“evince[s] a clear choice to submit [the state's]
rights for adjudication by the federal courts”
(citation and quotation marks omitted)).
claims against DACF are barred from proceeding in this Court
by the Eleventh Amendment, and I therefore
GRANT Defendant DACF's Motion to Dismiss
(ECF No. 17) and ...