Laxey v. Louisiana Board of Trustees

United States Court of Appeals,

Fifth Circuit.

No. 93-5411

Summary Calendar.

Gregory LAXEY, Plaintiff-Appellant,

v.

LOUISIANA BOARD OF TRUSTEES and University of Southwestern
Louisiana, Defendants-Appellees.

June 13, 1994.

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

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Gregory Laxey, a player on the University of Southwestern

Louisiana ("USL") football team, appeals a summary judgment in his

§ 1983 suit against the USL and the Louisiana Board of Trustees for

suspending him from the football team and revoking his scholarship

following an arrest for cocaine distribution. We find that the

district court made the right call and therefore affirm.

I.

Laxey was blitzed by undercover officers and charged with

three counts of cocaine distribution. The next day, his coach,

Nelson Stokley, sacked Laxey from the football team but dropped the

ball by revoking his scholarship without a hearing. The USL

student disciplinary committee scrambled to hold a hearing and on

September 25 upheld Laxey's suspension. On October 9, another

hearing was held concerning Laxey's financial aid and scholarship

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revocation; the committee determined that upon further review, the

call would stand.

Laxey filed suit in federal court pursuant to 42 U.S.C. §

1983, alleging violations of due process and Louisiana tort law.

Specifically, he charged that following his interception for

cocaine distribution, he was suspended from the football team, had

his athletic scholarship stripped from him, and had a defamatory

article published in the student newspaper, all of which deprived

him of liberty and property rights without due process of law and

in denial of equal protection. The defense called for summary

judgment, claiming immunity under the Eleventh Amendment, a failure

by the plaintiff to demonstrate a cognizable property or liberty

interest, and compliance with due process requirements.

Furthermore, defendants contended that the goal of the article

appearing in the student newspaper was not defamatory as a matter

of law. The district court granted summary judgment.

II.

Laxey claims that there was a flag on the play granting

summary judgment because material facts exist as to the chronology

of events leading to his suspension. We tackle the issue of

summary judgment de novo. Hanks v. Transcontinental Gas Pipe Line

Corp., 953 F.2d 996, 997 (5th Cir.1992). Summary judgment is the

correct call "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

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as a matter of law." FED.R.CIV.P. 56(c). The party seeking summary

judgment has the ball and must demonstrate that there is an absence

of evidence to support the non-moving party's game plan. Celotex

Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91

L.Ed.2d 265 (1986). After a proper motion for summary judgment is

made, the other team must set forth specific facts showing that

there is a genuine issue for trial. Hanks, 953 F.2d at 997.

We referee this contest on a level playing field by consulting

the applicable substantive law to determine what facts and issues

are material. King v. Chide, 974 F.2d 653, 655-56 (5th Cir.1992).

We then review the evidence relating to those issues, viewing the

facts and inferences in the light most favorable to the non-movant.

Id. If the non-movant sets forth specific facts in support of

allegations essential to his claim, a genuine issue is presented,

and the game continues. Celotex, 477 U.S. at 327, 106 S.Ct. at

2554-55.

Defendants first contend that the plaintiff sued the wrong

team; as state entities, the defendants are immune from suit under

the Eleventh Amendment. The district court punted on this issue,

and Laxey attempted an end run around the Eleventh Amendment by

failing to brief the issue. Nevertheless, we consider this illegal

procedure to be a fumble on Laxey's part, as the Eleventh Amendment

plainly blocks his suit.1

1
Even if the defendants had not run this play in the
district court, the "Eleventh Amendment defense sufficiently
partakes of the nature of a jurisdictional bar so that it need
not be raised in the trial court." Edelman v. Jordan, 415 U.S.
651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974).

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 The Eleventh Amendment is like a defensive lineman, barring

all suits in law or equity against an unconsenting state. Cory v.

White, 457 U.S. 85, 90-91, 102 S.Ct. 2325, 2328-29, 72 L.Ed.2d 694

(1982). Public universities may qualify for immunity as members of

the state team, depending upon "their status under state law and

their relationship to state government." Lewis v. Midwestern State

Univ., 837 F.2d 197, 198 (5th Cir.) (citing United Carolina Bank v.

Board of Regents, 665 F.2d 553 (5th Cir. Unit A 1982)), cert.

denied, 488 U.S. 849, 109 S.Ct. 129, 102 L.Ed.2d 102 (1988).

Article VIII, section 1 of the Louisiana Constitution empowers the

legislature to call the plays for the educational system of

Louisiana. Article VIII, Section 6 creates the Board of Trustees

for State Colleges and Universities to supervise and manage these

institutions. And USL is listed under LA.REV.STAT.ANN. § 17:3217 as

an institution that passes under the supervision and management of

the Board of Trustees for State Colleges and Universities.

Moreover, USL did not forfeit its immunity by waiver. See id. §

13:5106(A) ("No suit against ... a state agency ... shall be

instituted in any court other than a Louisiana state court.");

McKay v. Boyd Constr. Co., 769 F.2d 1084, 1086 (5th Cir.1985)

(waiver of immunity in state courts is not waiver of immunity in

federal courts); see also Jagnandan v. Giles, 538 F.2d 1166, 1172-

86 (5th Cir.1976) (holding, inter alia, that Fourteenth Amendment

did not preempt Eleventh Amendment in suit against state

university), cert. denied, 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d

1083 (1977). Therefore, USL is an arm of the state and protected

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from suit in federal court by the Eleventh Amendment. Since Laxey

named as defendants only the "Louisiana Board of Trustees" and the

"University of Southwestern Louisiana," he is shut out of federal

court.2

Although this suit was terminated in the first quarter, we

agree with the district court that it did not deserve to go the

distance. To prevent unnecessary overtime, we therefore AFFIRM the

district court's grant of summary judgment.

2
We also note that the named defendants are not "persons"
under § 1983, and the case could have been dismissed on that
ground. See Will v. Michigan Dep't of State Police, 491 U.S. 58,
109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).

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