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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