United States District Court, D. Kansas
TONI R. DONAHUE, individual and on behalf of minor child, DCD, Plaintiff,
GOVERNOR SAM BROWNBACK, Defendant.
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
matter comes before the court on defendant Governor Sam
Brownback's Rule 59(e) Motion to Alter and Amend (Doc.
27). On October 24, 2018, this court granted defendant's
motion to dismiss, dismissing all claims brought by plaintiff
Toni Donahue. This court dismissed all claims with prejudice
with the exception of the § 1983 official capacity claim
for monetary damages, which was dismissed without prejudice.
This court noted that it was dismissing the official capacity
claim for monetary damages without prejudice because
“Eleventh Amendment Immunity precludes suit in federal
now requests that this court modify its order “by
removing portions of two sentences at the end of the order
that suggest Eleventh Amendment immunity is inapplicable to
federal causes of action in state court.” (Doc 27, at
1.) Defendant argues that he is also entitled to Eleventh
Amendment Immunity in state court.
under Rule 59(e) is available only if a party can establish
(1) there is an intervening change in controlling law, (2)
there is new evidence that was previously unavailable, or (3)
there is a need to correct clear error or prevent manifest
injustice. See Hayes Family Trust v. State Farm Fire
& Cas. Co., 845 F.3d 997, 1004 (10th Cir. 2017). A
motion to alter or amend judgment is appropriate where the
“court has misapprehended the facts, a party's
position, or the controlling law.” Servants of
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
It should not be used to “revisit issues already
addressed or advance arguments that could have been raised in
prior briefing.” Id.
claims he is entitled to modification of this court's
order under Rule 59(e) to correct clear error. He argues that
the Kansas Supreme Court has recognized that the state's
sovereign immunity from federal causes of action also applies
in state court, and therefore, the court erred in dismissing
the § 1983 official capacity claim for monetary damages
Kansas Supreme Court has held that “Kansas has
sovereign immunity from claims by individuals based on
federal law even when they are brought in state court.”
Schall v. Wichita State Univ., 7 P.3d 1144, 1153
(Kan. 2000). This immunity applies unless it is waived or
abrogated by Congress. Id. And as the court as
previously noted, it is well-settled that § 1983 does
not “abrogate the States' Eleventh Amendment
Immunity.” Jones v. Courtney, 466 Fed.Appx.
696, 700 (10th Cir. 2012). Defendant, therefore, is correct
that the court erred in dismissing the § 1983 official
capacity claim without prejudice because “Eleventh
Amendment Immunity precludes suit in federal court
only.” (Doc. 25, at 9.) (emphasis added.)
court, however, is bound by Tenth Circuit precedent, which
requires dismissal without prejudice in Eleventh Amendment
Immunity cases. See, e.g., Colby v.
Herrick, 849 F.3d 1273, 1278 (10th Cir. 2017) (noting
“Eleventh Amendment immunity is jurisdictional. As a
result, these dismissals should have been without
prejudice.”); Shue v. Lampert, 580 Fed.Appx.
642, 643-44 (10th Cir. 2014) (holding “[w]e conclude
that the Eleventh Amendment required dismissal without
prejudice of the claims against the three state officials in
their official capacities.”); Cleveland v.
Martin, 590 Fed.Appx. 726, 730 n.1 (10th Cir. 2014)
(finding that the Eleventh Amendment “bears some
attributes of subject-matter jurisdiction, ” and
therefore “jurisdictional defects should generally
result in dismissal without prejudice rather than summary
judgment.”); Kerchee v. Smith, 527 Fed.Appx.
817, 821 (10th Cir. 2013) (finding that claims dismissed for
lack of jurisdiction on Eleventh Amendment grounds should
have been dismissed without prejudice.); Divine Church of
God & Christ v. Taxation & Revenue Dep't,
116 F.3d 1489 (10th Cir. 1997) (finding the district court
erred by ruling on the merits of a claim when defendants were
entitled to Eleventh Amendment immunity, and remanding the
case “with instructions to dismiss without prejudice
the claims . . . for lack of subject matter
court therefore will amend its order and omit the word
“only” from the sentence on page 9 of Doc. 25
which reads “[t]he court therefore dismisses the
complaint with prejudice except for the § 1983 official
capacity claim for monetary damages, as Eleventh Amendment
Immunity precludes suit in federal court only.” Based
on Tenth Circuit precedent, the court will not amend the
order to remove the dismissal without prejudice on the §
1983 official capacity claim for monetary damages. This claim
remains dismissed without prejudice.
IS THEREFORE ORDERED that defendant's Rule 59(e)
Motion to Alter and Amend (Doc. 27) is granted in part and
denied in part. The court amends its Memorandum and Order
(Doc. 25, at 9) to read “The court therefore dismisses
the complaint with prejudice except for the § 1983
official capacity claim ...