          Case: 16-17739   Date Filed: 08/07/2017   Page: 1 of 15


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-17739
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 1:16-cv-01350-AT



RYAN PATRICK NICHOLL,

                                                           Plaintiff-Appellant,

                                 versus

BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA,

                                                         Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (August 7, 2017)

Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Ryan Nicholl, proceeding pro se, appeals the dismissal of his complaint

against the Board of Regents of the University System of Georgia (“Board”) for

violating the U.S. Constitution, the Georgia Constitution, federal antitrust laws,

and state contract law by charging him for a university meal plan and denying his

request to opt out of the meal plan program. Nicholl raises two issues on appeal.

First, he argues that the district court erred by concluding that his claims were

barred on immunity grounds. Second, he contends that the court erroneously

dismissed as futile his motion for leave to amend the complaint. We address each

of the issues below.

                                          I.

      Nicholl argues that the court erred by determining that the Board was an arm

of the state entitled to sovereign immunity; by concluding that his antitrust claims,

his contract claims, and his constitutional claims were barred by immunity; by

denying his request for money damages; by not treating his complaint as an in rem

action; and by permitting the clerk to enter judgment. Each of Nicholl’s arguments

is addressed, in turn, below.

   A. Arm of the state entitled to Eleventh Amendment immunity

      Nicholl contends that the Board is not a sovereign entity or an arm of the

state entitled to sovereign immunity.




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      The grant or denial of a state’s sovereign immunity defense is an issue of

law subject to de novo review. Garrett v. Univ. of Ala. at Birmingham Bd. of Trs.,

344 F.3d 1288, 1290 (11th Cir. 2003).

      The Eleventh Amendment provides 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. While the

Supreme Court has held that the Eleventh Amendment is not jurisdictional in the

sense that courts must address the issue sua sponte, it has held that Eleventh

Amendment immunity is in the nature of a jurisdictional bar. Bouchard Transp.

Co. v. Fla. Dep’t of Envtl. Prot., 91 F.3d 1445, 1448 (11th Cir. 1996). Thus,

Eleventh Amendment immunity is a threshold issue that should be decided at an

early stage. Id.

      The Eleventh Amendment prohibits federal courts from exercising

jurisdiction over lawsuits against a state, except where the state has consented to be

sued or waived its immunity, or where Congress has overridden the state’s

immunity. Cross v. State of Ala., 49 F.3d 1490, 1502 (11th Cir. 1995).

      Sovereign immunity under the Eleventh Amendment applies both to states

and to those entities that are considered “arm[s] of the state.” Fouche v. Jekyll

Island-State Park Auth., 713 F.2d 1518, 1520 (11th Cir. 1983). The Board is


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considered a state entity that is an arm of the state of Georgia for purposes of the

Eleventh Amendment, and, therefore, is entitled to sovereign immunity, unless

waived. See Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 616-17

(2002) (addressing whether the Board had waived its Eleventh Amendment

immunity in that particular case); Stroud v. McIntosh, 722 F.3d 1294, 1299 (11th

Cir. 2013) (describing the defendant in Lapides as “the Board of Regents of the

University System of Georgia (an arm of the state)”); Williams v. Bd. of Regents of

Univ. Sys. of Ga., 477 F.3d 1282, 1301-02 (11th Cir. 2007) (“Nor has . . . the

Board of Regents waived its Eleventh Amendment immunity.”).

      The district court did not err in concluding that the Board was an arm of the

state entitled to Eleventh Amendment immunity. See Lapides, 535 U.S. at 616-17;

Stroud, 722 F.3d at 1299; Williams, 477 F.3d at 1301-02. Furthermore, as

discussed in parts B, C, D, and E, below, the court correctly determined that

Nicholl’s antitrust claims, contract claims, constitutional claims, and request for

money damages were barred because the Board, as an arm of the state, was

immune to such suits.

   B. Antitrust claims

      Nicholl asserts that the court erred by concluding that his federal antitrust

claims were barred by sovereign immunity.




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        The application of the state action doctrine is a question of law reviewed de

novo. F.T.C. v. Hosp. Bd. of Directors of Lee Cty., 38 F.3d 1184, 1187 (11th Cir.

1994).

        “[N]either the Sherman Act nor the Clayton Act was intended to authorize

restraint of governmental action.” Alabama Power Co. v. Alabama Elec. Co-op.,

Inc., 394 F.2d 672, 675 (5th Cir. 1968). Under the state action immunity doctrine,

states are immune from federal antitrust law for their actions as sovereign. Crosby

v. Hosp. Auth. of Valdosta & Lowndes Cty., 93 F.3d 1515, 1521 (11th Cir. 1996);

see Parker v. Brown, 317 U.S. 341 (1943). The doctrine is grounded in and

derived from principles of federalism and state sovereignty. Crosby, 93 F.3d at

1521.

        The state action immunity doctrine “does not apply directly to a state’s

political subdivisions because these subdivisions are not themselves sovereign.”

Id. (emphasis in original). A political subdivision is entitled to state action

immunity if it acted pursuant to clearly articulated and affirmatively expressed

state policy. Id.

        In Saenz v. Univ. Interscholastic League, 487 F.2d 1026 (5th Cir. 1973), the

former Fifth Circuit determined that the University Interscholastic League (“UIL”),

which was part of the Extension Division of the University of Texas at Austin, was

a governmental entity “outside the ambit of the Sherman Act.” Saenz, 487 F.2d at


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1027-28 (citing Alabama Power, 394 F.2d at 675). Because the University of

Texas at Austin was “inarguably a state agency or governmental body,” the Fifth

Circuit inquired into the extent to which the UIL was connected to the university in

order to determine if it was “imbued with ample characteristics to warrant the . . .

determination that the organization is an agency of the State of Texas.” Id. The

Court concluded that the UIL was an “integral part” of the university and, thus,

immune from suit under federal antitrust law. Id. at 1028. The Fifth Circuit

further noted that this “shield of immunity, of course, is not limited to

governmental agencies alone but extends as well to officers or agents of the State.”

Id.

        The district court correctly determined that the Board was immune from

Nicholl’s claims that relied on federal antitrust law. As an arm of the state, the

Board is outside the ambit of Nicholl’s Sherman Act and Clayton Act claims, and

the court properly concluded that such claims were barred. See Saenz, 487 F.2d at

1028.

      C. Contract claims

        Nicholl argues that although Georgia only waived immunity from contract

actions in state court, the Board never had sovereign immunity that needed to be

waived for actions in federal court. Even if the Eleventh Amendment did apply,

Nicholl argues, the Board’s ability to contract in its own name, rather than in


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Georgia’s name, makes it a distinct entity from the state and not an arm of the state

for purposes of contract actions.

      “Georgia has not waived its Eleventh Amendment immunity from suit in

federal court for breach of contract claims.” Barnes v. Zaccari, 669 F.3d 1295,

1308 (11th Cir. 2012). We explained in Barnes:

         The Georgia constitution waives the state’s sovereign immunity for
      actions ex contractu. Ga. Const. art. I, § 2, ¶ IX(c). Similarly, the
      Georgia Code also waives the state’s sovereign immunity for breach
      of contract claims. Ga. Code . . . § 50-21-1(a). But neither provision
      expressly consents to suits in federal court. . . .
         In fact, Georgia expressly retained its Eleventh Amendment
      immunity from such claims. Following the waiver of sovereign
      immunity in the Georgia constitution, a separate subsection provides
      that: “No waiver of sovereign immunity under this Paragraph shall be
      construed as a waiver of any immunity provided to the state or its
      departments, agencies, officers, or employees by the United States
      Constitution.” Ga. Const. art. I, § 2, ¶ IX(f). Eleventh Amendment
      immunity is an immunity provided by the United States Constitution.
      Additionally, the waiver in the Georgia Code states that “venue with
      respect to any [breach of contract] action shall be proper in the
      Superior Court of Fulton County, Georgia.” Ga. Code . . . § 50-21-
      1(b). . . . [A] state can consent to suit in its own courts without


      consenting to suit in federal court. And that is exactly what Georgia
      did when it enacted § 50-21-1.

Id. at 1308-09.

      The court correctly concluded that Nicholl’s contract claims were barred by

Eleventh Amendment immunity. See Barnes, 669 F.3d at 1308-09. Georgia has

not waived its sovereign immunity from suit in federal court for such claims, and,


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thus, the proper forum for Nicholl’s contract claims is in Georgia state court, not

federal court. See id.

   D. Constitutional claims

      Nicholl asserts that the court erred by categorizing his constitutional claims

under a 42 U.S.C. § 1983 action. He argues that he has the right to contest the

legality of the money that he was charged under his right to due process and right

to petition the government for redress of grievances. He states that the Board has

taken his money without any due process and for no reason, and it should not be

able to claim sovereign immunity to prevent it from having to return the money.

Nicholl further contends that a takings or due process claim should prevail over

sovereign immunity since the Fourteenth Amendment was ratified after the

Eleventh Amendment.

      Section 1983 provides a remedy for the deprivation of federal civil rights by

a person acting under color of state law. See 42 U.S.C. § 1983; Griffin v. City of

Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). However, while “[s]ection

1983 provides a federal forum to remedy many deprivations of civil liberties, . . . it

does not provide a federal forum for litigants who seek a remedy against a State for

alleged deprivations of civil liberties. The Eleventh Amendment bars such suits,”

unless the immunity is waived or overridden. Will v. Mich. Dep’t of State Police,

491 U.S. 58, 66 (1989). “Congress has not abrogated states’ immunity from


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§ 1983 suits,” nor has the Board waived its Eleventh Amendment immunity.

Williams, 477 F.3d at 1301-02.

      Under the Ex Parte Young doctrine, a suit requesting injunctive relief on a

prospective basis for an ongoing constitutional violation against a state official in

her official capacity is not a suit against the state, and, accordingly, does not

violate the Eleventh Amendment. Grizzle v. Kemp, 634 F.3d 1314, 1319 (11th Cir.

2011); see Ex Parte Young, 209 U.S. 123 (1908). However, the Ex Parte Young

exception to sovereign immunity “has no application in suits against the States and

their agencies, which are barred regardless of the relief sought.” Puerto Rico

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993).

      A Fifth Amendment Takings Clause claim does not become ripe for review

in federal court unless the state provides no procedure for obtaining just

compensation. Bickerstaff Clay Prod. Co. v. Harris Cty., Ga. By & Through Bd. of

Comm’rs, 89 F.3d 1481, 1490-91 (11th Cir. 1996) (citing Williamson Cty. Reg’l

Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195 (1985)).

Under Georgia law, such a procedure exists. Id.

      Here, the district court correctly dismissed Nicholl’s constitutional claims

against the Board. In order to avoid Eleventh Amendment immunity for his

alleged deprivations of civil liberties, Nicholl needed to seek injunctive relief

against a state official in his or her official capacity, because the Ex Parte Young


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exception does not apply to Nicholl’s claims against the Board, which is an arm of

the state. See Puerto Rico Aqueduct, 506 U.S. at 146; part A, supra. Inasmuch as

Nicholl presented a Fifth Amendment takings claim, the claim was not ripe for

review in federal court because Georgia offers a procedure for obtaining just

compensation. See Bickerstaff, 89 F.3d at 1490-91.

   E. Request for money damages

      Nicholl contends that money damages are not barred because if the court

were to rule in his favor, the Board would merely be returning money that it never

lawfully owned, and “recovered” money, as opposed to “taken” money, may be

awarded as damages. Citing Ward v. Bd. of Cty. Comm’rs of Love Cty., Okl., 253

U.S. 17 (1920), Nicholl asserts that when a political subdivision acquires money

unlawfully, it remains obligated to return that money.

      Under the Eleventh Amendment, states are immune from money damages in

§ 1983 suits. Tuveson v. Fla. Governor’s Council on Indian Affairs, Inc., 734 F.2d

730, 732 (11th Cir. 1984). In Ward, the Supreme Court reversed the Oklahoma

Supreme Court’s refusal to award a refund for an unlawful tax that was levied by

coercive means. Ward, 253 U.S. at 23-25. The county that levied the tax

threatened to sell the lands of the claimants if the tax was not paid. Id. at 23.

      The court correctly concluded that Nicholl could not recover money

damages. Nicholl cannot not seek such damages through a § 1983 action, see


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Tuveson, 734 F.2d at 732, and Nicholl’s only other contention is that he could

recover the money under Ward. However, unlike in Ward, Nicholl was not

coerced into paying a tax by threat of losing the taxed property. See Ward, 253

U.S. at 23. Accordingly, Ward does not provide Nicholl with a vehicle to recover

money damages from the Board.

   F. In rem jurisdiction

      Nicholl argues that, even if sovereign immunity does apply, it does not block

the court’s in rem jurisdiction to decide the ownership of the money he was

charged for the meal plans.

      We generally do not consider arguments raised for the first time on appeal.

Narey v. Dean, 32 F.3d 1521, 1526 (11th Cir. 1994). There are five exceptions in

which we will consider an issue that was not first raised in the district courts:

(1) the issue involves a pure question of law, and refusal to consider it would result

in a miscarriage of justice; (2) the appellant raises an objection to an order that he

had no opportunity to raise at the district court level; (3) the interest of substantial

justice is at stake; (4) the proper resolution is beyond any doubt; and (5) the issue

presents significant questions of general impact or of great public concern. Id. at

1526-27.

      Nicholl’s argument regarding in rem jurisdiction of the court was not raised

below in Nicholl’s amended complaint, response to the motion to dismiss, or


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motion to vacate or for leave to amend, and, thus, we decline to consider the

argument. See Narey, 32 F.3d at 1526-27. To the extent that Nicholl argues that

he could amend his complaint to an in rem action, his argument is discussed in

issue 2, below.

   G. Entry of judgment

       Nicholl argues that the court erred by permitting the clerk to enter the

written judgment.

      Federal Rule of Civil Procedure 58(b) addresses when the clerk may enter

judgment without the court’s direction and when the court’s approval is required.

Fed. R. Civ. P. 58(b). Rule 58(b)(1) states that the clerk must, without awaiting the

court’s direction, promptly prepare, sign, and enter the judgment when the court

denies all relief. Fed. R. Civ. P. 58(b)(1)(C).

      The court did not err by permitting the clerk to enter the judgment in

Nicholl’s case, as the court’s order dismissing all of Nicholl’s claims denied all

relief to Nicholl. Hence, the clerk was required by the Federal Rules of Civil

Procedure to prepare, sign, and enter the judgment without awaiting the court’s

direction. See Fed. R. Civ. P. 58(b)(1)(C).



                                          II.




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       Nicholl argues that the court erred by denying his request for leave to amend

the complaint, assuming that it was defective, because he could have “clearly

correct[ed] the complaint . . . by altering the style of the action to an in rem or

‘quiet title’ action, even if sovereign immunity would otherwise bar the action.”1

He also asserts that it would not have been futile to amend the complaint because

he could have saved the complaint from dismissal by “changing the way the

Defendant is named . . . ,” regardless of whether sovereign immunity barred the

complaint.

       We review a district court’s order denying a motion for leave to amend for

abuse of discretion, although we review de novo the underlying legal conclusion of

whether a particular amendment to the complaint would be futile. Chang v.

JPMorgan Chase Bank, N.A., 845 F.3d 1087, 1093-94 (11th Cir. 2017). Under the

Federal Rules of Civil Procedure, a district court “should freely give leave” to

amend a complaint “when justice so requires.” Fed. R. Civ. P. 15(a)(2). But a

district court may properly deny leave to amend the complaint under Rule 15(a)

when such amendment would be futile, such as when the complaint as amended is

still subject to dismissal. Chang, 845 F.3d at 1094.



1
  Nicholl’s motion was a motion to vacate and for leave to amend. Because Nicholl only argues
that denial of his request for leave to amend was error, the denial of the motion to vacate is not
addressed. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A]
legal claim or argument that has not been briefed before the court is deemed abandoned and its
merits will not be addressed.”).
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      To survive a motion to dismiss, 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). To state a plausible claim for relief, a

plaintiff must go beyond merely pleading the “sheer possibility” of unlawful

activity by a defendant and so must offer “factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id.

      The court did not err by denying the motion for leave to amend because

Nicholl does not show that any proposed amendment would have avoided

dismissal. See Chang, 845 F.3d at 1094. Even if Nicholl amended his complaint

to name state officials under the Ex Parte Young exception and sought a

prospective injunction, Nicholl would still need to show that there is more than the

sheer possibility of ongoing constitutional violations by offering factual content

that allows a court to draw the reasonable inference that the defendant is liable for

the misconduct alleged, and Nicholl fails to do so. See Ashcroft, 556 U.S. at 678;

Grizzle, 634 F.3d at 1319. Furthermore, Nicholl’s contention that the complaint

could be saved by being amended to an in rem or quiet title action against the

money that was used to pay for the meal plan is without merit because Nicholl

does not offer any proposed amendment that could state a plausible claim for relief

on either of those bases. Accordingly, we affirm.


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AFFIRMED.




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