United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 20, 2005
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 05-20055
Summary Calendar
REGINALD ROBERSON,
Plaintiff-Appellee,
versus
LONZO MCSHAN; ET AL.,
Defendants,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Defendant-Appellant.
Appeal from the United States District Court for
the Southern District of Texas
(USDC No. 4:02-CV-4365)
_________________________________________________________
Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
The Texas Department of Criminal Justice (TDCJ) brings this interlocutory
appeal, arguing that it is immune from suit under the Eleventh Amendment. We agree.
We have appellate jurisdiction under the collateral order doctrine. Sherwinski v.
Peterson, 98 F.3d 849, 851 (5th Cir. 1996). Plaintiff Reginald Roberson sued the TDCJ
for money damages. He originally sought damages under 42 U.S.C. § 1983. He later
dropped this claim and asserted a state law claim for money damages against the TDCJ
under the Texas Tort Claims Act.
The district court reasoned that it had jurisdiction over the federal § 1983 claim,
and that it had supplemental jurisdiction over the state law claim. The court implicitly
reasoned that even if the federal claim is dropped, the court did not lose jurisdiction over
the case and could entertain the state law claim. We cannot agree with this analysis
because the Eleventh Amendment divested the court of jurisdiction to hear the federal
claim as well as the state claim.
Under the Eleventh Amendment, the TDCJ is an instrumentality of the State of
Texas and is immune from suit in federal court for money damages. Id. at 851-52; Harris
v. Angelina County, Tex., 31 F.3d 331, 338 n.7 (5th Cir. 1994). As to Roberson’s
original claim against the TDCJ under § 1983, the Eleventh Amendment barred the
federal district court from awarding relief on this claim. Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 119-20 (1984). The Eleventh Amendment also bars state law
claims in federal court. Id. at 120-21. Congress did not abrogate Eleventh Amendment
immunity by granting federal courts supplemental jurisdiction over state law claims in 28
2
U.S.C. § 1367(a). Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 541-42 (2002).
The Eleventh Amendment therefore barred Roberson’s state and federal claims against
the TDCJ.
Nor has the State consented to suit expressly or through its conduct in this
litigation. The Texas Tort Claims Act does not waive Eleventh Amendment immunity
from suit in federal court. Sherwinski, 98 F.3d at 852. The State did not affirmatively
seek out the jurisdiction of the federal court or otherwise engage in litigation conduct that
would constitute a waiver of Eleventh Amendment immunity. After it was added as a
party, it timely moved to dismiss on grounds of Eleventh Amendment immunity. See
Raygor, 534 U.S. at 547.
The order denying the TDCJ’s motion to dismiss is reversed and a take nothing
judgment, without prejudice, is hereby entered for the TDCJ.
REVERSED and RENDERED.
3