The opinion of the court was delivered by: Richard Mills, U.S. District Judge
Plaintiff Mary Garcia wanted to be a trooper with Defendant Illinois State Police ("ISP"). She began attending the ISP Academy on January 4, 2004. While there, Garcia-who is Hispanic and thinks herself to be of Navajo Indian descent-allegedly experienced race, gender, and national origin discrimination from cadets Bonita Palmer and Stacie Neisler, instructors Eric Helton, Michael Severino, Brian Wilham, Sara Willman (Cox), and Illinois State Police Commander Carl J. Weitzel (individually "Palmer", "Neisler", "Helton", "Severino", "Wilham", and "Willman" or collectively the "Defendants"). Garcia also witnessed others being subjected to unlawful discrimination.
After Garcia complained about what she experienced and saw, the Defendants retaliated against her and ultimately terminated her on January 14, 2004. Her termination followed an allegedly sham pretermination hearing wherein she was ridiculed.
Garcia has sued the Defendants for a variety of constitutional deprivations. The Defendants moved the Court to dismiss Garcia's claims pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Garcia failed to timely respond, but the Court ultimately granted her leave to file a response.
Where a defendant challenges the sufficiency of the allegations of subject matter jurisdiction in a Rule 12(b)(1) motion to dismiss, a district court must accept as true all well-pled allegations of a complaint, drawing all reasonable inferences in the plaintiff's favor. See United Transp. Union v. Gateway Western Ry. Co., 78 F.3d 1208, 1210 (7th Cir. 1996). However, if the motion denies the truth of the jurisdictional allegations, a court may weigh the evidence in order to determine whether jurisdiction exists. See Bd. of Trs. of Pipe Fitters' Welfare Fund Local 597 v. Adams, 1998 WL 259543, No. 97 C 5592, at *2 (N.D.Ill. May 7, 1998). Thus, in the case of a factual attack, "the allegations in the complaint are not controlling and only uncontroverted factual allegations are accepted as true for purposes of the motion." Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed.Cir. 1993) (internal citations omitted).
The plaintiff bears the burden of demonstrating subject matter jurisdiction. Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir. 1999). When a defendant moves for dismissal pursuant to Rule 12(b)(1), the plaintiff must support its allegations with competent proof of jurisdiction.
See Thomson v. Gaskillwsa, 315 U.S. 442, 446 (1942). Competent proof is "proof to a reasonable probability that jurisdiction exists." See Target Market Publishing, Inc. v. ADVO, Inc., 136 F.3d 1139, 1142 (7th Cir. 1998). A "district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993) (per curiam) (quoting Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979)).
When considering a motion to dismiss under Rule 12(b)(6), a court views all facts alleged in the complaint, as well as any inferences reasonably drawn from those facts, in the light most favorable to the plaintiff. Autry v. Nw. Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). A court will allow a Rule 12(b)(6) motion to dismiss only where "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Chaney v. Suburban Bus Div., 52 F.3d 623, 627 (7th Cir. 1995) (quoting Fed.R.Civ.P. 12(b)(6)).
In Count V of her complaint, Garcia tries to advance her USERRA claim by arguing that the deprivation of a USERRA right creates a cognizable action claim under 42 U.S.C. § 1983. The Second Circuit addressed an identical assertion in Morris-Hayes v. Board of Educ. of Chester Union Free School Dist., 423 F.3d 153, 159 (2d Cir. 2005). The court determined that USERRA's comprehensive remedial scheme prevented a plaintiff from advancing a separate § 1983 action based on the denial of any right created by USERRA. Id. at 160. The court held that § 1983 could not be used to redress a USERRA deprivation. Id. at 159. This Court agrees with the Second Circuit's reasoning and conclusion. Accordingly, Garcia's USERRA claim will be dismissed for lack of subject matter jurisdiction.
Due to Eleventh Amendment immunity, Garcia's official capacity claims must also be dismissed for lack of subject matter jurisdiction. 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 ...