[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-10822 APRIL 23, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 07-00492-CV-4-RH-AK
AARON K. MARSH,
Plaintiff-Appellant,
versus
STATE OF FLORIDA DEPARTMENT
OF CORRECTIONS BUREAU OF SERVICES,
A. KENT, Classification Release
Officer, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(April 23, 2009)
Before BIRCH, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Aaron K. Marsh, a civilly committed detainee proceeding in forma pauperis,
appeals pro se the district court’s dismissal of his 42 U.S.C. § 1983 complaint for
failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Marsh alleged
that the State of Florida Department of Corrections Bureau of Services (Bureau)
denied him a $100 discharge gratuity check upon his transfer from criminal to civil
confinement in 1999, and denied him a similar gratuity in 2005, thus depriving him
of his Fourteenth Amendment rights to equal protection and due process. He
further alleged that classification release officer A. Kent and probation officer
specialist Christopher J. Sobt participated in the 2005 denial by failing to answer
his questions about whether the check would be issued.
On appeal, Marsh argues that the rule in the Florida Administrative Code
providing for a discharge gratuity unconstitutionally discriminates between
prisoners released into civil confinement and other released prisoners. He further
argues that he sufficiently alleged that the defendants’ failure to issue the 1999 and
2005 checks amounted to an unconstitutional confiscation, and that the district
court erred in dismissing his complaint before process had been served on the
defendants.
We review de novo a dismissal for failure to state a claim under
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§ 1915(e)(2)(B)(ii), viewing the allegations in the complaint as true. Mitchell v.
Farcass, 112 F.3d 1483, 1489-90 (11th Cir. 1997).
Section 1915(e)(2)(B)(ii) requires the district court to dismiss an in forma
pauperis action if, at any time, the court determines that it fails to state a claim on
which relief may be granted. “Factual allegations must be enough to raise a right
to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 127 S. Ct. 1955, 1965 (2007). The district court may dismiss the action sua
sponte under § 1915(e) prior to service of process on the defendants.
The Eleventh Amendment bars § 1983 claims against the States in federal
court. Cross v. Alabama, 49 F.3d 1490, 1502 (11th Cir. 1995). Florida has not
waived its immunity with respect to § 1983 suits. Gamble v. Fla. Dep’t of Health
& Rehabilitative Svcs., 779 F.2d 1509, 1514-15 (11th Cir. 1986). This immunity
extends to the Florida Department of Corrections. See Zatler v. Wainwright, 802
F.2d 397, 400 (11th Cir. 1986) (per curiam).
Marsh is therefore barred by the Eleventh Amendment from bringing a
§ 1983 suit against the Bureau with respect to either the 1999 or the 2005 discharge
gratuity. In addition, his complaint alleged no facts indicating that either Kent or
Sobt acted to prevent the 2005 discharge gratuity from being issued or that they
had any responsibility for or involvement in the decision not to issue the gratuity.
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Upon careful review of the district court order and the pleadings, and upon
consideration of the brief, we find no reversible error. For the foregoing reasons,
we affirm the district court’s dismissal of Marsh’s complaint for failure to state a
claim pursuant to § 1915(e)(2)(B)(ii).
AFFIRMED.1
1
Appellant’s request for oral argument is denied.
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