Richardson v. Southern University

REVISED
United States Court of Appeals,

Fifth Circuit.

No. 96-30732

Summary Calendar.

Clifton RICHARDSON, Plaintiff-Appellant,

v.

SOUTHERN UNIVERSITY; Sheila R. Evans; Ericka Collins,
Defendants-Appellees.

Aug. 4, 1997.

Appeal from United States District Court for the Middle District of
Louisiana.

Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.

STEWART, Circuit Judge:

This case presents the question of whether Southern University

and Agricultural and Mechanical College (Southern) and its Board of

Supervisors are entitled to sovereign immunity under the Eleventh

Amendment to the United States Constitution. Clifton Richardson,

Sr., sued Southern and two students for alleged federal civil
rights violations and state-law defamation and false imprisonment.

Richardson eventually dropped his claims against the two students.1

Construing Richardson's suit as one against Southern's Board of

Supervisors, the district court granted Southern's motion to

dismiss, holding that Richardson's suit was barred as a matter of

law under the doctrine of sovereign immunity. Richardson appeals.

1
Richardson informed the district court at a status conference
that he did not want to pursue his claims against the students.

1
Southern's Board of Supervisors has filed a motion to dismiss this

appeal on the ground that sovereign immunity bars Richardson's

federal and state-law causes of action. Richardson filed a motion

for leave to supplement the record.

Although we have held that a number of governmental bodies

within Louisiana are entitled to sovereign immunity,2 we have yet

to consider whether Southern and its Board of Supervisors enjoy

such immunity from suit. Today we hold that they do. We therefore

dismiss Richardson's appeal and deny as moot his motion to

supplement the record.

BACKGROUND AND PROCEDURAL HISTORY

Richardson was charged by University police with two

misdemeanor counts of sexual battery, obscenity, and two counts of

simple assault. Sheila Evans and Ericka Collins were the

complainants. A student disciplinary hearing before the University

Judiciary Committee was held on October 27, 1992; Evans and

Collins participated in the hearing. The Committee concluded that

2
See Laxey v. Louisiana Bd. of Trustees, 22 F.3d 621, 623 (5th
Cir.1994) (University of Southwestern Louisiana); Delahoussaye v.
City of New Iberia, 937 F.2d 144, 146-48 (5th Cir.1991) (same);
Darlak v. Bobear, 814 F.2d 1055, 1059-60 (5th Cir.1987) (the
Louisiana Department of Health and Human Services and Charity
Hospital in New Orleans); Voisin's Oyster House, Inc. v. Guidry,
799 F.2d 183, 185-87 (5th Cir.1986) (the Louisiana Department of
Wildlife and Fisheries and the Louisiana Wildlife and Fisheries
Commission); Fireman's Fund Ins. Co. v. Department of Transp. &
Dev., 792 F.2d 1373, 1374-76 (5th Cir.1986) (the Department of
Transportation and Development). But see Minton v. St. Bernard
Parish Sch. Bd., 803 F.2d 129, 131-32 (5th Cir.1986) (holding that
parish school boards not entitled to Eleventh Amendment immunity);
Jacintoport Corp. v. Greater Baton Rouge Port Comm'n, 762 F.2d 435,
438-43 (5th Cir.1985) (holding that Greater Baton Rouge Port
Commission not entitled to Eleventh Amendment immunity), cert.
denied, 474 U.S. 1057, 106 S.Ct. 797, 88 L.Ed.2d 774 (1986).

2
Richardson was guilty of the charged offenses and recommended

expulsion as the proper penalty for Richardson's violations.

Richardson was informed of these facts by letter dated October 29,

1992. Richardson's administrative appeal was denied on March 30,

1993.

On April 4, 1995, Richardson (proceeding pro se) brought an in

forma pauperis § 1983 suit in federal court against Southern

University and the two students who participated in the

disciplinary hearing. Richardson alleged due process violations in

his student disciplinary hearings, verbal abuse from a faculty

member, false information on teacher certification by a staff

member, denial of a fair and reasonable recommendation concerning

his job performance, false arrest, and cruel and unusual

punishment. He also asserted state-law causes of action for

defamation and false imprisonment against Southern and defamation

against students Evans and Collins. Richardson sought $1,700,000

in compensatory damages and $3,000,000 in punitive damages.3

Southern University (represented by the Louisiana Department

of Justice) filed a motion to dismiss the case on the grounds that

Richardson's § 1983 and state-law false imprisonment causes of

action were barred by sovereign immunity and that Richardson's

3
Richardson claimed that his compensatory damages consisted of
lost future earnings. According to Richardson, over a thirty-year
period, he would have earned $30,000 per year working for the state
police and $20,000 per year working as a teacher. However,
Richardson's arithmetic is wrong because his alleged damages add up
to $1.5 million and not $1.7 million.

3
state-law defamation action was time-barred.4 The district court,

treating Richardson's suit as one against Southern's Board of

Supervisors, agreed with Southern and dismissed all of Richardson's

claims. This timely appeal followed.5

DISCUSSION

Southern's Board of Supervisors contends that we should

dismiss this appeal because Richardson's federal and state-law

claims are barred by the doctrine of sovereign immunity.6 We

agree.

I. ELEVENTH AMENDMENT IMMUNITY

We have shaped the contours of Eleventh Amendment immunity to

comport with the common-sense notion that a plaintiff cannot avoid

the sovereign immunity bar by suing a state agency or an arm of a

State rather than the State itself.7 " "The Eleventh Amendment to

the United States Constitution,' " we have observed " "bars suits

in federal court by citizens of a state against their own state or

4
The district court did not address Richardson's false
imprisonment claim against Southern.
5
On December 10, 1996, we denied Richardson leave to proceed
in forma pauperis in this appeal. That same day, we also denied as
frivolous Richardson's motion for discovery of the reasons why this
court had not yet processed his appeal.
6
In his brief on appeal, Richardson does not address the
Eleventh Amendment immunity issue.
7
The Eleventh Amendment provides simply:

The 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.

4
a state agency or department.' " Delahoussaye v. City of New

Iberia, 937 F.2d 144, 146 (5th Cir.1991) (quoting Voisin's Oyster

House, Inc. v. Guidry, 799 F.2d 183, 185-86 (5th Cir.1986)); see

also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-

02, 104 S.Ct. 900, 907-08, 79 L.Ed.2d 67 (1984). Thus, even though

Richardson did not name the State of Louisiana as a defendant in

this case, Richardson's suit may nonetheless succumb to Eleventh

Amendment immunity if the State is the real party in interest.

Edelman v. Jordan, 415 U.S. 651, 653, 94 S.Ct. 1347, 1350, 39

L.Ed.2d 662 (1974); Ford Motor Co. v. Department of Treasury, 323

U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945).

We have taken a case-by-case approach to determining whether

a State is the real party in interest in suits brought against

entities which appear to be alter egos of that State. In

particular, we have said that " "[a] federal court must examine the

particular entity in question and its powers and characteristics as

created by state law to determine whether the suit is in reality a

suit against the state itself.' " Farias v. Bexar County Bd. of

Trustees for Mental Health Mental Retardation Servs., 925 F.2d 866,

874 (5th Cir.) (quoting Laje v. R.E. Thomason Gen. Hosp., 665 F.2d

724, 727 (5th Cir.1982)), cert. denied, 502 U.S. 866, 112 S.Ct.

193, 116 L.Ed.2d 153 (1991). Six factors guide our determination

of whether Southern and its Board of Supervisors are arms of the

State of Louisiana, and they are as follows:

(1) whether the state statutes and case law characterize the
agency as an arm of the state;

(2) the source of the funds for the entity;

5
 (3) the degree of local autonomy the entity enjoys;

(4) whether the entity is concerned primarily with local, as
opposed to state-wide problems;

(5) whether the entity has authority to sue and be sued in its
own name; [and]

(6) whether the entity has the right to hold and use property.

Delahoussaye, 937 F.2d at 147.8

Before turning to these factors, however, we first address

whether sovereign immunity bars Richardson's federal and state-law

claims. As to Richardson's § 1983 claim, it is well established

that only upon a showing that Congress expressly intended to

abrogate sovereign immunity may we bypass the sovereign immunity

inquiry in suits against States or their agencies. See Quern v.

Jordan, 440 U.S. 332, 340-45, 99 S.Ct. 1139, 1144-47, 59 L.Ed.2d

358 (1979); McDonald, 832 F.2d at 906 n. 7. Congress has not

expressly waived sovereign immunity for § 1983 suits. Quern, 440

U.S. at 340-45, 99 S.Ct. at 1144-47; Voisin's Oyster House, 799

F.2d at 186. Richardson's § 1983 suit is therefore subject to the

Eleventh Amendment bar.

The applicability of Eleventh Amendment immunity to

Richardson's state-law claim presents a slightly different

8
We imported this "test" from our diversity jurisdiction case
law, in which we applied these six factors to determine whether a
governmental body could be considered a "citizen" or alter ego of
a state. See PYCA Indus., Inc. v. Harrison County Waste Water
Management Dist., 81 F.3d 1412, 1416 n. 2 (5th Cir.1996) (" "[T]he
analysis of an agency's status is virtually identical whether the
case involves determination of immunity under the Eleventh
Amendment or a determination of citizenship for diversity
purposes.' " (quoting Tradigrain, Inc. v. Mississippi State Port
Auth., 701 F.2d 1131, 1132 (5th Cir.1983))).

6
question.9 In Hughes v. Savell, 902 F.2d 376 (5th Cir.1990), we

held that the plaintiff's state-law claims against an employee of

the State of Louisiana were barred by sovereign immunity. We

analyzed Louisiana case law pertinent to the plaintiff's state-law

based negligence cause of action and reasoned that despite the

plaintiff's creative attempt at repackaging the nature of his suit,

the plaintiff's claim was against the State of Louisiana and not

the named defendant acting in his individual capacity. Id. at 378-

79. Under these circumstances, we concluded that Eleventh

Amendment immunity "bars such a suit in federal court since the

action seeks recovery from the state based on the violation of

state common law by the state's agent." Id. at 379.

In this case, we need not engage in the Hughes analysis

because Richardson has not sued any official from Southern

University. Rather, Richardson's state-law claims are against the

University qua University. Accordingly, because Louisiana has not

waived its sovereign immunity for suits brought in federal court,10

Richardson's state-law claims are also subject to the Eleventh

Amendment bar.

In short, Richardson's federal and state-law claims rise and

fall together. And fall they must.

II. SOUTHERN UNIVERSITY AND ITS BOARD OF SUPERVISORS ARE ENTITLED TO ELEVENTH
AMENDMENT IMMUNITY

9
The district court in this case dismissed Richardson's
state-law defamation claim on the ground that it was time-barred
under state law.
10
See La. R.S. 13:5106A (West Supp.1997).

7
 We first note a certain tension in the application of the

Delahoussaye factors to cases involving Louisiana state

universities. For purposes of analyzing Southern's claim to

Eleventh Amendment immunity, Southern as an entity in and of itself

cannot be meaningfully distinguished from Southern's Board of

Supervisors, for the Board is the operative arm of the University.

Therefore, in Laxey and Delahoussaye, we analyzed the functions of

the governing board of the University of Southwestern Louisiana in

our determination of whether the University was entitled to

Eleventh Amendment immunity. Laxey, 22 F.3d at 623; Delahoussaye,

937 F.2d at 147-48.

This case, however, is not as straightforward as Laxey and

Delahoussaye because (1) Richardson sued Southern University, yet

the district court characterized the suit as one against Southern's

Board of Supervisors, and (2) the Board of Supervisors filed the

motion to dismiss this appeal. Because our analysis of Eleventh

Amendment immunity is grounded in state law and because (as our

analysis below demonstrates) Southern and its Board of Supervisors

are viewed as one and the same under Louisiana law, we conclude

that Southern University and the Board of Supervisors stand on the

same sovereign immunity footing.

Now to the merits of Southern's Eleventh Amendment immunity

claim. Although we have held that the University of Southwestern

Louisiana is an arm of the State of Louisiana and therefore enjoys

Eleventh Amendment immunity, Delahoussaye, 937 F.2d at 146-48, and

that "[t]he majority of decisions concerning the eleventh amendment

8
status of state universities have concluded the institutions were

arms of the state," United Carolina Bank v. Board of Regents, 665

F.2d 553, 557 (5th Cir. Unit A 1982), we nonetheless point out that

"each situation must be addressed individually because the states

have adopted different schemes both intra and interstate, in

constituting their institutions of higher learning," United

Carolina Bank, 665 F.2d at 557. Consistent with the conclusion

reached by one of our district courts,11 we conclude that Southern

and its Board of Supervisors are entitled to Eleventh Amendment

immunity.

A. Louisiana Statutes and Case Law Peg Southern as an Arm of the
State

Southern University is a creature of state law and is run by

a Board of Supervisors established in the 1974 Louisiana

Constitution. LA. CONST. art. 8, § 7 (creating the Board of

Supervisors of Southern University as a "bod[y] corporate");

La.R.S. 17:3216 (West 1982) (stating that Southern University

system is "under the supervision and management" of the Board of

Supervisors); Moss v. Hall, 133 La. 351, 63 So. 45 (La.1913)

(describing the birth of Southern under Louisiana law); see

generally Mullins v. Louisiana, 387 So.2d 1151, 1152 (La.1980) ("If

the office is created by the legislature, or is established in the

first instance by the constitution, it is a state office.").

However, as we said in Delahoussaye, the fact that Southern was

created under state law does not make Southern an arm of the State

11
See Muhammed v. Board of Supervisors of Southern Univ., 715
F.Supp. 732, 733-34 (M.D.La.1989).

9
of Louisiana. 937 F.2d at 147 & n. 5 (comparing Tulane University,

which was created by state law, yet does not enjoy Eleventh

Amendment immunity because Tulane is a private institution). More

is required. We have reviewed the relevant statutes and cases and

conclude that under state law, Southern is an arm of the State of

Louisiana. At least three characteristics of Southern's legal

make-up compel this conclusion.

First, the Louisiana Department of Education administers the

functions of Southern's Board. La. R.S. 36:642B (West 1985);

Muhammed, 715 F.Supp. at 734. Second, the Louisiana Board of

Regents (consisting of fifteen persons appointed by the governor

with consent of the Louisiana senate) oversee Southern's Board to

the extent that the Regents "plan, coordinate, and have budgetary

responsibility for all public higher education...." LA. CONST. art.

8, § 5(A) (West 1996).12 Third, although Louisiana courts have held

that Southern's Board "is a separate and distinct legal entity from

the State of Louisiana," Varnado v. Southern Univ. at New Orleans,

621 So.2d 176, 178 (La.Ct.App. 4th Cir.1993) (interpreting La. R.S.

17:1851A (West 1982)), Southern nonetheless is considered an agency

of the State. See Varnado, 621 So.2d at 178; Tiensuu v. Board of

Supervisors of Southern Univ. & A & M College, 385 So.2d 322, 324

12
The Regents' authority over Southern's Board is not absolute,
however. See LA. CONST. art. 8, § 5(E) ("Powers of management over
public institutions of higher education not specifically vested by
this Section ... are reserved to ... the Board of Supervisors of
Southern University...."); La. R.S. 17:3351A(10) (West 1982); La.
R.S. 17:3218 (West 1982); Baker v. Southern Univ., 604 So.2d 699,
702 (La.Ct.App. 1st Cir.) (noting the various powers of Southern's
Board), writ denied, 606 So.2d 536 (La.1992).

10
(La.Ct.App. 1st Cir.), writ refused, 386 So.2d 356 (La.1980); see

also Parker v. Breaux, 335 So.2d 488, 490, 492 (La.Ct.App. 1st

Cir.1976) (stating that State of Louisiana is defendant in case in

which employees of Southern University were found negligent).

B. Southern's Funding Comes from the State of Louisiana

There are two characteristics of this prong of the

Delahoussaye test—the first is whether Southern receives state

funds, and the second is whether or not money damages assessed

against Southern are paid from the State treasury. Although

Southern has the authority to raise funds by accepting donations,

bequests, or other forms of financial assistance from private

persons or the federal government, La. R.S. 17:3351(A)(2) (West

1982), Southern nevertheless receives funds from the State of

Louisiana as an agency within the executive department.13 See,

e.g., La. R.S. 38:2436A (West 1989) (earmarking $1,750,000 of bond

revenues to Southern University); 38:2436B (West 1989) (earmarking

$1,850,000 of bond revenues to Southern University, which is deemed

"Under the Control of the State Board of Education); Carter v.

Fench, 322 So.2d 305, 307 (La.Ct.App. 1st Cir.1975) (holding that

the Student Government Association of Southern University in Baton

Rouge was a student association which received from that University

a portion of each student's registration fee, and those funds were

considered "public funds'), writ denied, 325 So.2d 277 (La.1976)."

13
Even those "elementary and secondary school[s] operated by"
Southern are considered "public elementary or secondary school[s]"
which receive funds from the State. La. R.S. 17:350.21A (West
Supp.1997).

11
 In addition, and perhaps most importantly, we have stated that

"because an important goal of the eleventh amendment is the

protection of states' treasuries, the most significant factor in

assessing an entity's status is whether a judgment against it will

be paid with state funds." McDonald v. Board of Miss. Levee

Comm'rs, 832 F.2d 901, 907 (5th Cir.1987) (emphasis added); see

also Jacintoport Corp. v. Greater Baton Rouge Port Comm'n, 762 F.2d

435, 440-41 (5th Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct.

797, 88 L.Ed.2d 774 (1986). Because Southern and its Board are

considered an agency of the State of Louisiana, any money judgments

rendered against Southern or its Board are payable from funds

appropriated by the Louisiana Legislature. LA. CONST. art. 12, §

10; La. R.S. 13:5109B(2) (West 1991); Muhammed, 715 F.Supp. at

734.

C. Southern Enjoys Limited Local Autonomy

Although Southern's Board enjoys some degree of autonomy from

the State of Louisiana (see footnote 12), the composition of

Southern's Board is controlled by the State. For example, the

governor appoints and the Louisiana Senate must approve the members

of Southern's Board. La. R.S. 17:1831 (West 1982). In addition,

as we have noted, Southern's Board is under the auspices of a Board

of Regents whose members are also appointed by the governor and

approved by the state senate. LA. CONST. art. 8, § 5(A). Finally,

the Board's ability to raise funds by borrowing money or issuing

notes, bonds, or certificates of indebtedness is somewhat

circumscribed because such fundraising must meet with the approval

12
of the State Bond Commission. La. R.S. 17:3351A(4) (West 1982).

These facts, taken together, sufficiently demonstrate that

Southern's limited autonomy does not take it out from underneath

the protective cloak of Eleventh Amendment immunity. See

Delahoussaye, 937 F.2d at 147.14

D. Southern is Concerned with State-Wide as Opposed to Local
Concerns

There can be no doubt that Southern's mission is predominantly

(if not primarily) aimed at addressing matters of state-wide

concern. Not only does Southern currently maintain state-funded

campuses across the State (Baton Rouge, New Orleans, and

Shreveport, La. R.S. 17:3216 (West 1982)), but it is also involved

in a number of activities that benefit all citizens of Louisiana.15

14
This conclusion is not inconsistent with the reasoning in our
prior decision in Jacintoport Corp., 762 F.2d 435, in which we
stated the following:

It is true that the vulnerability of the
commissioners to the governor's pleasure militates
against a finding of local autonomy. In our circuit,
however, the determination of an agency's autonomy
requires analysis of the "extent of the [entity's]
independent management authority", Huber[, Hunt & Nichols
v. Architectural Stone Co., 625 F.2d 22, 25 (5th
Cir.1980) ], not just the independence of the individual
commissioners. Here, the record discloses that the
Commission has great latitude to enter into contracts to
negotiate sales and to formulate and exercise policy
without additional approval.

Id. at 442. Although Southern's Board has limited autonomy,
La. R.S. 17:3351A(6), (8), (9), the Board is nonetheless
supervised by the Louisiana Department of Education and the
Louisiana Board of Regents. LA. CONST. art. 8, § 5(A); La.
R.S. 36:642B.
15
See La. R.S. 17:3218 (West 1982) ("The corporate authority
... vested in ... the Board of Supervisors of Southern University
... extends to all the colleges and universities, branches, centers

13
That Southern is only one of many state-funded schools does not

deprive it of Eleventh Amendment immunity. See Delahoussaye, 937

F.2d at 148.

E. The Last Two Delahoussaye Factors—The Right to Sue or be Sued
and the Right to Hold and Use Property

Only Southern's Board, and not the University itself, can sue

or be sued. See La. R.S. 17:3351A(1) (West 1982); Muhammed, 715

F.Supp. at 733; see also Emoakemeh v. Southern Univ., 654 So.2d

474, 475 (La.Ct.App. 1st Cir.1995) (suing the State of Louisiana

"through the Southern University Board of Supervisors"); Marson v.

Northwestern State Univ., 607 So.2d 1093, 1095 (La.Ct.App.3d

Cir.1992) (holding that plaintiff had no cause of action against

Northwestern State University, but rather against the Board of

Trustees, who "under the constitution and statutes, is the right

defendant under its supervisory powers" (citing LA. CONST. art. 8,

§ 6 (West 1996) and La. R.S. 17:3351(A)(1))). Similarly,

of learning, or extensions of such university system now existing
or hereafter established."); La. R.S. 17:3220 (West 1982) ("[T]he
Southern University system ... [is] established and maintained to
serve the educational needs of the people of the state."); La.
R.S. 17:3221 (West 1982) (designating Southern University as a
"land grant college," which is authorized to receive "the benefits
of the various acts of Congress"); La. R.S. 17:3396 (West
Supp.1997) (noting the importance of high technology and
establishing a nonprofit corporation which would work in concert
with the Board of Supervisors of Southern University); La. R.S.
24:12 (West 1989) (authorizing Southern's Board of Supervisors to
"require ... each higher educational institution over which they
exercise supervision and management ... [to] participate in a
program of providing technical and scholarly assistance to the
legislature, its standing and statutory committees, and its
legislative service agencies"); La. R.S. 30:2503A(2) (West
Supp.1997) (stating that chancellor (or assignee) of Southern
University has seat on Louisiana Environmental Education
Commission).

14
Southern's Board has the right to hold and use property, but the

University itself does not. La. R.S. 17:3351A(6), (8), (9) (West

1982); Muhammed, 715 F.Supp. at 734.

However, just because Southern's Board can be sued and can

hold and use property does not mean that these final two factors

weigh against a finding of sovereign immunity. In fact, precisely

the opposite is true. First, as we have noted, Louisiana has not

waived its immunity from suit in federal court. See La.R.S.

13:5106A. Second, and perhaps most importantly, money judgments

against the Board are paid by the State of Louisiana. See, e.g.,

Delahoussaye, 937 F.2d at 148 n. 6. Accordingly, the final two

Delahoussaye factors do not prevent us from finding that Southern

and its Board of Supervisors are entitled to Eleventh Amendment

immunity.

CONCLUSION

We conclude that all six Delahoussaye factors point

inescapably to the conclusion that Southern University and its

Board of Supervisors are arms of the State of Louisiana, that the

State is the real party in interest in this lawsuit, and that

Southern and its Board are entitled to Eleventh Amendment immunity.

We therefore dismiss Richardson's appeal16 and deny as moot his

16
On February 20, 1997, another panel of this court dismissed
as frivolous Richardson's appeal in a different action. See
Richardson v. New Orleans Sewerage & Water Bd., 1997 WL 114966
(Feb. 20, 1997 5th Cir..) (per curiam) (unpublished). We warned
Richardson that "any additional frivolous appeals filed by him will
invite the imposition of sanctions." We do not conclude, however,
that Richardson's appeal in this case is frivolous because until
today, we had not yet decided whether Southern University and its
Board of Supervisors enjoy Eleventh Amendment immunity.

15
motion for leave to supplement the record.

APPEAL DISMISSED. MOTION FOR LEAVE TO SUPPLEMENT THE RECORD

DENIED.

16