                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 11-11817            ELEVENTH CIRCUIT
                                        Non-Argument Calendar           APRIL 12, 2012
                                      ________________________           JOHN LEY
                                                                          CLERK
                                D.C. Docket No. 1:09-cv-03547-ODE

ANN MCCAULEY,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff-Appellant,

                                               versus

STATE OF GEORGIA,
All Defendants listed are d/b/a the State of Georgia,
GOVERNOR OF GEORGIA,
Governor's Office and Personal,
MR. MILLER,
LT. ORTIZ,
SULLIVAN, et al.,
llllllllllllllllllllllllllllllllllllllll                          Defendants-Appellees.

                                     ________________________

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

                                           (April 12, 2012)

Before TJOFLAT, CARNES and FAY, Circuit Judges.

PER CURIAM:
      Ann McCauley, proceeding pro se, appeals the dismissal of her lawsuit

brought under, among other statutes, Title II of the Americans with Disabilities

Act (“ADA”), 42 U.S.C. § 12132. On appeal, McCauley first argues that the

district court erroneously found that two defendants, the Superior Court of Bibb

Count (“Bibb County court”) and Judge Self, were immune under the Eleventh

Amendment from suits brought under Title II, the Rehabilitation Act, and the

Fourteenth Amendment. Second, McCauley addresses the district court’s finding

that she failed to state a Rehabilitation Act claim against the Bibb County court.

Finally, McCauley addresses the district court’s dismissal of her claims against

various defendants related to a state court case that McCauley brought against

Cook’s Pest Control. For the reasons set forth below, we affirm the district court’s

dismissal of McCauley’s suit.

                                         I.

      McCauley suffers from severe lupus erythematosus, which means that,

among other consequences, she cannot be exposed to odors such as those found in

everyday hygiene products. In 1992, McCauley sued Cook’s Pest Control in

Gwinnett County, apparently contending that Cooks had caused or aggravated her

disabilities. That lawsuit was in the Superior Court of Gwinnett County. Later, she

unsuccessfully sued Judge Winegarden, and others affiliated with that court,

                                          2
alleging that they failed to accommodate her disabilities in the Cook’s lawsuit.

McCauley v. Winegarden, 60 F.3d 766 (11th Cir. 1995), cert. denied, 517 U.S.

1149 (1996). In 2005, a car accident led McCauley to sue the driver of the other

car and Allstate Insurance. That case proceeded before Judge Self in Bibb

County. During the course of the lawsuit before Judge Self, McCauley filed a

motion for summary judgment and later a motion for reconsideration. The Bibb

County court considered the merits of the motion for summary judgment, but

ultimately denied the motion. The Bibb County court denied the motion for

reconsideration.

      In 2009, McCauley, proceeding pro se, brought the instant case against a

number of Georgia state entities and officials, including the Superior Court of

Gwinnett County and the judge and staff who presided over her case against

Cook’s, the Bibb County court, and Judge Self and his court personnel. McCauley

claimed that the Gwinnett and Bibb County courts violated her rights under the

ADA by denying her access to the courts. As to her Bibb County case

specifically, she alleged that: (1) the clerk’s office did not assign a single contact

person, (2) the clerk’s office was not adequately responsive to her needs, and

(3) Judge Self and his clerks did not have the sensitivity training necessary to

interact appropriately with McCauley. McCauley conceded that the clerks allowed

                                           3
her to file documents via email, but she alleged that, if the court personnel

understood McCauley’s disability, they would not have held a hearing at which

McCauley appeared via telephone while opposing counsel appeared in person.

McCauley went on to cite a number of statutes and constitutional provisions,

including Title II of the ADA, 42 U.S.C. § 12132; the Rehabilitation Act of 1973;

and the Fourteenth Amendment.

      A magistrate judge allowed McCauley to proceed in forma pauperis. The

magistrate recommended dismissing a number of claims under 28 U.S.C.

§ 1915(e)(2)(B). As relevant to this appeal, the magistrate: (1) recommended

dismissing the claims against the defendants related to McCauley’s state court

case against Cook’s and (2) explained that McCauley had failed to state a

Rehabilitation Act claim against the Bibb County court because she did not allege

that the court received federal funds. The magistrate recommended allowing

McCauley’s ADA failure to accommodate claims against the Bibb County court

and Judge Self in his official capacity to proceed. McCauley stated claims under

Title II of the ADA when she alleged that the court: (1) did not appoint a contact

person, (2) had an unresponsive staff, and (3) did not properly train its staff. The

district court adopted the report and recommendation in its entirety.

      The Bibb County court and Judge Self filed a motion to dismiss the

                                          4
remaining claims for lack of subject matter jurisdiction and a failure to state a

claim upon which relief could be granted. They argued that, under United States

v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006), they had

Eleventh Amendment immunity because McCauley had not alleged conduct that

amounted to a constitutional violation. McCauley’s Bibb County case was

dismissed for a number of reasons unrelated to her ability to access the courts.

The outcome of that case would not have changed even if there had been a single

contact person, the court had been more responsive, and the staff had been better

trained. Finally, the Bibb County court and Judge Self argued that, even if they

did not have Eleventh Amendment immunity, McCauley failed to state a claim

under the ADA.

      The magistrate recommended granting the motion to dismiss because the

Bibb County court and Judge Self were immune under the Eleventh Amendment.

At issue was whether Congress had validly abrogated Eleventh Amendment

immunity for claims under Title II of the ADA. Congress intended to abrogate

immunity for such claims. Under Georgia, that abrogation was valid if the alleged

conduct actually violated the Fourteenth Amendment. Abrogation could also be

valid for conduct that violated Title II of the ADA, but not the Fourteenth

Amendment, so long as Title II was “a valid prophylactic measure within

                                          5
Congress’s power under § 5 of the Fourteenth Amendment.” Because McCauley

could not show a Title II violation, the magistrate did not consider whether the

abrogation as to that alleged conduct was valid, nor did the magistrate consider

whether McCauley had shown a Fourteenth Amendment violation.

      The magistrate determined that McCauley had not shown that her claims

regarding (1) the failure to designate a single contact person, (2) unresponsive

staff, and (3) lack of training amounted to Title II violations. Such

accommodations were unnecessary because McCauley had not shown that the lack

of those accommodations prevented her from accessing the court. McCauley was

given access to the court via electronic filing, the ability to appear at a hearing via

telephone, and being allowed to file a motion for summary judgment. Those

accommodations allowed the court to decide her case on the merits. Although she

may have had a hard time interacting with employees who did not understand her

disability, she had not been denied access to the courts, and she had not stated a

claim for failure to accommodate under Title II of the ADA. Because McCauley

could not establish an ADA violation, the Bibb County court and Judge Self were

immune from money damages under the Eleventh Amendment, and the magistrate

recommended dismissing McCauley’s claim for money damages under the ADA.

Based on the above, the magistrate concluded that the court lacked subject matter

                                           6
jurisdiction and thus did not consider whether McCauley stated a claim under

Federal Rule of Civil Procedure 12(b)(6). The district court adopted the report

and recommendation in its entirety and granted the motion to dismiss.

                                          II.

      We review de novo the grant of a motion to dismiss based on Eleventh

Amendment immunity. Ass’n for Disabled Ams., Inc. v. Fla. Int’l Univ., 405 F.3d

954, 956 (11th Cir. 2005). The dismissal for failure to state a claim under Federal

Rule of Civil Procedure 12(b)(6) is also reviewed de novo, and we construe “the

complaint in the light most favorable to the plaintiff and accept[s] as true all facts

which the plaintiff alleges.” Day v. Taylor, 400 F.3d 1272, 1275 (11th Cir. 2005).

A Rule 12(b)(6) motion to dismiss should only be granted where “the plaintiff can

prove no set of facts in support of [her] claim which would entitle [her] to relief.”

Id. (quotation omitted). We review the briefs of pro se litigants liberally, but a pro

se litigant nonetheless abandons an issue not raised in her initial brief. Timson v.

Sampson, 518 F.3d 870, 874 (11th Cir. 2008). “[W]e may affirm on any ground

supported by the record.” Am. Gen. Life Ins. Co. v. Schoenthal Family LLC, 555

F.3d 1331, 1343 (11th Cir. 2009).

      Title II of the ADA provides that, “no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied

                                           7
the benefits of the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Private suits

for money damages are authorized under Title II. Id. § 12202; Tennessee v. Lane,

541 U.S. 509, 517-18, 124 S.Ct. 1978, 1984-85, 158 L.Ed.2d 820 (2004).

Although states are generally immune from unconsented suits brought by their

citizens, Congress may abrogate that immunity. U.S. Const. amend. XI; Lane, 509

U.S. at 517, 124 S.Ct. at 1985. To abrogate Eleventh Amendment immunity,

Congress must: (1) make clear its intent to do so and (2) do so “pursuant to a valid

grant of constitutional authority.” Lane, 509 U.S. at 517, 124 S.Ct. at 1985

(quotation omitted).

      In § 12202, Congress made clear its intent to abrogate states’ immunity

from suits brought under the ADA. Id. at 518, 124 S.Ct. at 1985. As to the second

requirement, Congress may abrogate states’ immunity to enforce the substantive

guarantees of the Fourteenth Amendment. Id. Title II seeks to prohibit irrational

discrimination of disabled individuals and enforce basic constitutional guarantees,

including the right to access the courts. Id. at 522-23, 124 S.Ct. at 1988. Civil

litigants have a due process right to “a meaningful opportunity to be heard” in

judicial proceedings. Id. at 523, 124 S.Ct. at 1988 (quotation omitted). Thus, the

Supreme Court held in Lane that, “Title II, as it applies to the class of cases

                                           8
implicating the fundamental right of access to the courts, constitutes a valid

exercise of Congress’ . . . authority to enforce the guarantees of the Fourteenth

Amendment.” Id. at 533-34, 124 S.Ct. at 1994.

      In Georgia, the Supreme Court considered whether a state prisoner could

sue a state for money damages based on a claim that the conditions of confinement

violated the prisoner’s rights under Title II of the ADA. 546 U.S. at 153-55, 126

S.Ct. at 878-79. Rather than determining whether Title II validly abrogated

sovereign immunity in prisoner suits generally, the Court merely noted that “no

one doubts that § 5 [of the Fourteenth Amendment] grants Congress the power to

enforce . . . the provisions of the Amendment by creating private remedies against

the [s]tates for actual violations of these provisions.” Id. at 158, 126 S.Ct. at 881

(quotation omitted). The Court remanded the case for further proceedings. Id. at

160, 126 S.Ct. at 882.

      Finally, to state a claim alleging a denial of the right to access the courts, a

plaintiff must show actual injury by demonstrating that her efforts to pursue a

nonfrivolous claim were frustrated or impeded by an official’s action. Bass v.

Singletary, 143 F.3d 1442, 1445 (11th Cir.1998) (considering an access to the

court claim in prisoners’ § 1983 lawsuit).

      As an initial matter, McCauley has abandoned two of the three issues she

                                           9
addresses in her initial brief. First, the district court dismissed the Rehabilitation

Act claim against the Bibb County court because McCauley did not allege that the

court received federal funds. Although McCauley acknowledges the federal funds

requirement in her brief, she does not argue that the district court’s finding on this

issue was erroneous. Accordingly, she has abandoned any argument regarding the

dismissal of the Rehabilitation Act claim. See Timson, 518 F.3d at 874. Second,

the defendants relevant to the state court case against Cook’s were dismissed for a

number of reasons. On appeal, McCauley states that the district court erroneously

dismissed these defendants and argues that she was harmed by those defendants,

but she does not challenge the district court’s rulings explaining the dismissals.

Accordingly, she has also abandoned her argument that these defendants were

erroneously dismissed. See Timson, 518 F.3d at 874.

       Thus, the only remaining issue on appeal is whether the district court

erroneously dismissed, based on Eleventh Amendment immunity, McCauley’s

ADA claim against the Bibb County court and Judge Self regarding access to the

courts.1 McCauley is correct that the court erred in finding Eleventh Amendment


       1
      McCauley also argues that the court erred in finding that these defendants had Eleventh
Amendment immunity from suits brought under the Rehabilitation Act or the Fourteenth
Amendment. This argument is belied by the record because the court did not address Eleventh
Amendment immunity from suits brought under the Rehabilitation Act or the Fourteenth
Amendment.

                                             10
immunity from this claim. McCauley alleged that these defendants denied her

access to the court. In Lane, the Supreme Court held that Congress had validly

abrogated states’ Eleventh Amendment immunity from suit under Title II of the

ADA in cases alleging a denial of access to the courts. See 541 U.S. at 533-34,

124 S.Ct. at 1994. The Court did not qualify this holding with a requirement that

an actual violation must have occurred for the abrogation of immunity to be valid.

See generally id. That such a requirement may exist in other classes of cases is of

no moment to McCauley’s access to the courts claim. Cf. Georgia, 546 U.S. at

158, 126 S.Ct. at 881. The district court erred in applying the language of

Georgia, a case dealing with the conditions of confinement in a prison, rather than

the requirements of Lane, a case alleging a denial of access to the courts. Under

Lane, the Bibb County court and Judge Self are not immune from McCauley’s

claim that she was denied access to the court based on her disability. See 541 U.S.

at 533-34, 124 S.Ct. at 1994.

      Nonetheless, we need not remand this case. The district court did not

explicitly state that McCauley failed to state a claim under Rule 12(b)(6), but the

court did consider whether her allegations stated Title II violations. “[B]ecause

we may affirm on any ground supported by the record,” we next consider whether

McCauley failed to state a claim under Rule 12(b)(6). Am. Gen. Life Ins. Co., 555

                                         11
F.3d at 1343.

      Even accepting the allegations in McCauley’s complaint as true, she fails to

state an access to the courts claim because she did not allege actual injury in

pursuing her Bibb County case. See Bass, 143 F.3d at 1445. In her complaint,

McCauley asserted that: (1) the clerk’s office did not assign a single contact

person, (2) the clerk’s office was not adequately responsive to her needs, and

(3) Judge Self and his clerks did not have the sensitivity training necessary to

interact appropriately with McCauley. She did not explain how these alleged

deficiencies affected her case or denied her access to the courts, and she conceded

that she was allowed to file documents via email and appear at a hearing via

telephone. Moreover, McCauley was able to file both a motion for summary

judgment and a motion for reconsideration in that case. See Day, 400 F.3d at

1276. The court considered the motion for summary judgment on the merits

before ultimately denying it, and the court denied the motion for reconsideration.

Thus, McCauley was able to access the court and have her case heard on the

merits, and she has not shown actual injury or stated an access to the court claim

under the ADA. See Bass, 143 F.3d at 1445.

      For the foregoing reasons, we affirm the district court’s dismissal of

McCauley’s suit.

                                         12
AFFIRMED.




            13
