[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 08, 2010
No. 09-14090 JOHN LEY
Non-Argument Calendar ACTING CLERK
________________________
D. C. Docket No. 09-00182-CV-CG-B
JOHN MCCORD,
PAMELA MCCORD,
Plaintiffs-Appellants,
versus
STATE OF ALABAMA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(February 8, 2010)
Before BARKETT, HULL and WILSON, Circuit Judges.
PER CURIAM:
John and Pamela McCord (the “McCords”), appearing pro se, appeal the
district court’s dismissal without prejudice of their complaint against the state of
Alabama. The district court dismissed the case based on Eleventh Amendment
immunity. On appeal, the McCords, who are citizens of Alabama, argue that the
district court had jurisdiction to consider their 42 U.S.C. § 1983 claim under
Article III of the Constitution and that an Alabama state court erred by enforcing a
restrictive covenant on their real property.
We review de novo a district court’s ruling dismissing a case based on
Eleventh Amendment immunity. See Hundertmark v. Fla. Dep’t of Transp., 205
F.3d 1272, 1274 (11th Cir. 2000) (per curiam). In reviewing a district court’s grant
of a motion to dismiss, the allegations in the complaint are considered true and
read in the light most favorable to the plaintiff. Linder v. Portocarrero, 963 F.2d
332, 334 (11th Cir. 1992) (citation omitted). In addition, pro se pleadings are to be
construed liberally. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998) (per curiam) (citation omitted).
The Eleventh Amendment states that “[t]he Judicial power of the United
States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The Supreme
Court has construed this language to bar suits against a state brought by that state’s
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own citizens. See, e.g., Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356,
363, 121 S. Ct. 955, 962 (2001) (“Although by its terms the Amendment applies
only to suits against a State by citizens of another State, our cases have extended
the Amendment’s applicability to suits by citizens against their own States.”);
Edelman v. Jordan, 415 U.S. 651, 662–63, 94 S. Ct. 1347, 1355 (1974). The
Eleventh Amendment’s ultimate guarantee is that “nonconsenting States may not
be sued by private individuals in federal court.” Garrett, 531 U.S. at 363, 121 S.
Ct. at 962. Moreover, the Eleventh Amendment bars suits against a state in federal
court by its own citizens or citizens of another state unless: (1) the state consents to
suit in federal court; or (2) Congress has abrogated the state’s sovereign immunity.
Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304, 110 S. Ct. 1868,
1872 (1990).
Here, the district court did not err in dismissing the McCords’ complaint
without prejudice because their suit against the state of Alabama is barred by the
Eleventh Amendment. The McCords do not even allege that the state consented to
suit or that Congress abrogated the state’s immunity with the passage of some
legislation. Accordingly, we affirm.
AFFIRMED.
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