PAYLAN v. TEITELBAUM et al

Filing 92

REPORT AND RECOMMENDATION re 67 MOTION to Dismiss for Lack of Jurisdiction to Plaintiff's Corrected Amended Complaint filed by UNIVERSITY OF FLORIDA BOARD OF TRUSTEES - It is RECOMMENDED that: UFBOT's M otion to Dismiss Plaintiff's Corrected Amended Complaint, ECF No. 67 , should be GRANTED. UFBOT should be dismissed as a party in this case based upon Eleventh Amendment immunity. R&R flag set. Signed by MAGISTRATE JUDGE GARY R JONES on 5/23/2017. Internal deadline for referral to district judge if objections are not filed earlier: 6/20/2017. (atm)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
CHRISTINA PAYLAN, M.D.,
Plaintiff,
v.

CASE NO. 1:15-cv-159-MW-GRJ

SCOTT TEITELBAUM, et al.,
Defendants.
________________________/
REPORT AND RECOMMENDATION
This matter is before the Court on ECF No. 67, UFBOT’s Motion to
Dismiss Plaintiff’s Corrected Amended Complaint. Plaintiff filed a response,
ECF No. 70, and the motion is ripe for review. For the reasons explained
below, it is recommended that UFBOT’s Motion to Dismiss be granted.
I. BACKGROUND
Plaintiff initiated this case by filing a pro se complaint under 42
U.S.C. § 1983 and under state laws against Defendants Scott Teitelbaum,
the University of Florida, and UF & Shands Florida Recovery Center. (ECF
No. 1.) Defendants filed three motions to dismiss in response to the
complaint. (ECF Nos. 6, 9, 16.) The Court dismissed the University of
Florida and UF & Shands Recovery Center as improperly named parties

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and dismissed Plaintiff’s claims for First Amendment retaliation and unjust
enrichment. (ECF No. 25.) The Court also struck Plaintiff’s claims for
attorney’s fees and punitive damages against the University of Florida. (Id.)
On April 21, 2016, Plaintiff filed a corrected amended complaint
(“Complaint”), naming Scott Teitelbaum, in his individual and official
capacities, and the University of Florida Board of Trustees (“UFBOT”) as
Defendants. (ECF No. 31.) UFBOT then filed a motion for summary
judgment, ECF No. 33, which the Court denied. (ECF No. 59.) Additionally,
Defendants filed a Motion to Strike and Motion to Dismiss, which the Court
granted in part and denied in part. (ECF Nos. 34, 60, 61.)
Then on March 9, 2017, UFBOT filed a second motion to dismiss,
arguing for the first time that the Court should dismiss all claims against
UFBOT because UFBOT is entitled to sovereign immunity under the
Eleventh Amendment. (ECF No. 67.) In Plaintiff’s response, she concedes
that her federal claims against UFBOT may be barred by the Eleventh
Amendment but argues that Plaintiff’s claims arising from state law
violations are not barred. (ECF No. 70.)
While the Court concludes that UFBOT is entitled to Eleventh
Amendment immunity and that no exceptions apply, the resolution of that
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issue is a little more complicated from the argument advanced by UFBOT
in its motion to dismiss. In determining whether UFBOT is entitled to
Eleventh Amendment immunity the Court first must determine whether
UFBOT qualifies as an “arm of the state.” And secondly, if it does, the
Court must determine whether UFBOT’s failure to raise sovereign immunity
until it filed its second motion to dismiss waives the defense.
II. DISCUSSION
Under the Eleventh Amendment, states and state agencies cannot
be sued in federal court. Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 100 (1984); Abusaid v. Hillsborough Cty. Bd. of Cty. Comm’rs,
405 F.3d 1298, 1302 (11th Cir. 2005). Federal jurisdiction over suits
against states and their agencies is possible, however, where the state
consents or where Congress abrogates the state’s Eleventh Amendment
immunity. Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304
(1990). Thus, the Court must first determine whether UFBOT is entitled to
Eleventh Amendment protections and then determine whether sovereign
immunity protects UFBOT against the claims in this case.
A. UFBOT qualifies as a state agency and an “arm of the state,” and is
therefore entitled to Eleventh Amendment protections.
The Eleventh Amendment applies to “arms of the state,” including
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state agencies. See Pennhurst State Sch. & Hosp., 465 U.S. at 100;
Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (en banc). The
Eleventh Circuit considers multiple factors to determine whether a
defendant is an “arm of the state”: “(1) how state law defines the entity; (2)
what degree of control the State maintains over the entity; (3) where the
entity derives its funds; and (4) who is responsible for judgments against
the entity.” Id. at 1309. Thus, “the resolution of the Eleventh Amendment
issue in this case depends, in part, on state law.” Id.
The University of Florida is a “state university,” and “‘state
universities’ as used in the [Florida] Constitution and the Florida Statutes
are agencies of the state which belong to and are part of the executive
branch of state government.” Fla. Stat. §§ 1000.21(6)(a), 1001.705(1)(d).
UFBOT is the proper entity to be sued in cases against the University of
Florida. See Fla. Stat. § 1001.72(1); Hui Li v. Univ. of Fla. Bd. Of Trustees,
No 1:14-cv-236-RS-GRJ, 2015 WL 1781578, at *2 (N.D. Fla. Apr. 20,
2015) (stating that UFBOT is the only University of Florida entity with the
capacity to be sued). Additionally, UFBOT “is constituted as a public
instrumentality,” and state university boards of trustees, like UFBOT, are
considered “state agencies” for the purposes of sovereign immunity. Fla.
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Stat. §§ 768.28(2), 1001.72(2). Accordingly, under Florida law, UFBOT is
considered a state agency or instrumentality.
The Eleventh Circuit and other federal district courts in Florida, which
have considered whether boards of trustees of other Florida public
universities are entitled to Eleventh Amendment immunity, have reached
the same conclusion. See, e.g., Crisman v. Fla. Atl. Univ. Bd. of Trs., 572
F. App’x 946 (11th Cir. 2014) (Florida Atlantic University); Jefferson v. Fla.
State Univ. Bd. of Trs., No. 4:11cv151-RS/CAS, 2012 WL 1802152 (N.D.
Fla. Apr. 12, 2012) (Florida State University); Saavedra v. USF Bd. of Trs.,
No. 8:10-cv-1935-T-17TGW, 2011 WL 1742018 (M.D. Fla. May 6, 2011)
(University of South Florida); Schultz v. Bd. of Trs. of Univ. of W. Fla., No.
3:06cv442-RS-MD, 2007 WL 1490714 (N.D. Fla. May 21, 2007) (University
of West Florida). Thus, UFBOT is properly characterized as an “arm of the
state” and a state agency for the purposes of Eleventh Amendment
immunity.
B. The Eleventh Amendment bars Plaintiff’s claims against UFBOT
because no exception to Eleventh Amendment immunity applies to
Plaintiff’s federal or state law claims.
Because UFBOT is a state agency, Plaintiff’s claims against UFBOT
are barred by the Eleventh Amendment unless Congress validly abrogated
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that immunity or the state waived the immunity, consenting to suit in federal
court for Plaintiff’s claims. See Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). Neither of
these exceptions apply in this case with regard to Plaintiff’s federal and
state law claims.
With regard to Plaintiff’s federal law claims, Congress may abrogate
a state’s Eleventh Amendment immunity if “Congress has ‘unequivocally
expresse[d] its intent to abrogate the immunity’” and if “Congress has acted
‘pursuant to a valid exercise of power.’” Seminole Tribe of Fla. v. Florida,
517 U.S. 44, 54–55 (1996) (quoting Green v. Mansour, 474 U.S. 64, 68
(1985)). Relevant to Plaintiff’s claims against UFBOT, Congress has not
abrogated states’ Eleventh Amendment immunity for § 1983 claims.
Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1301 (11th
Cir. 2007) (citing Miller v. King, 384 F.3d 1248, 1259–60 (11th Cir. 2004)).
Because Congress has not abrogated Eleventh Amendment
immunity for Plaintiff’s federal law claims, Plaintiff’s federal law claims are
barred unless the state waives its Eleventh Amendment immunity. The
state has not done so here. Florida’s statutory waiver of sovereign
immunity in § 768.28, Florida Statutes, with regard to claims in state court
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“does not constitute consent to suit in federal court under § 1983.” Gamble
v. Fla. Dep’t of Health & Rehab. Servs., 779 F.2d 1509, 1514–15 (11th Cir.
1986). Accordingly, Plaintiff’s § 1983 claims against UFBOT are due to be
dismissed.1
With regard to Plaintiff’s state law claims, “a State may consent to
suit against it in federal court” if the consent is “unequivocally expressed.”
Pennhurst State Sch. & Hosp., 465 U.S. at 99. Notably, “a State does not
consent to suit in federal court merely by consenting to suit in the courts of
its own creation [or] stating its intention to ‘sue and be sued.’” Coll. Sav.
Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666,
675–76 (1999) (citation omitted); see also Robinson v. Ga. Dep’t of
Transp., 966 F.2d 637, 640 (11th Cir. 1992).
There has been no unequivocally expressed consent to be sued in
federal court with respect to any of Plaintiff’s claims. The fact that UFBOT
has the capacity to sue and be sued does not constitute a waiver of
Eleventh Amendment immunity. See Coll. Sav. Bank, 527 U.S. at 676.
Additionally, Florida’s consent to be sued for tort claims in state court in §

1

Even if the Eleventh Amendment did not bar Plaintiff’s § 1983 claims against
UFBOT, Plaintiff’s claims have no merit. UFBOT, as a state agency, is not a “person”
within the meaning of 42 U.S.C. § 1983 and thus is not liable under that statute.
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768.28, Florida Statutes, does not allow tort claims against Florida in
federal court. See Schopler v. Bliss, 903 F.2d 1373, 1379 (11th Cir. 1990)
(“This court has held that section 768.28 does not waive Florida’s Eleventh
Amendment immunity.”)
Moreover, Florida unequivocally has expressed its desire to maintain
its Eleventh Amendment immunity. Fla. Stat. § 768.28(18) (“No provision of
this section, or any other action of the Florida Statutes . . . shall be
construed to waive the immunity of the state or any of its agencies from
suit in federal court, as such immunity is guaranteed by the Eleventh
Amendment to the Constitution of the United States, unless such waiver is
explicitly and definitely stated to be a waiver of the immunity of the state
and its agencies from suit in federal court.”). Without an unequivocal
waiver of its sovereign immunity, Plaintiff cannot bring her state law claims
against UFBOT in federal court.
The fact that UFBOT did not raise sovereign immunity in its first
motion to dismiss does not constitute a waiver of its Eleventh Amendment
immunity. Such conduct is “readily distinguishable from the limited
situations where [the Supreme] Court has found a State consented to suit.”
Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 547 (2002); see also
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Coll. Sav. Bank, 527 U.S. at 675, 682 (stating that waiver exists when a
state “voluntarily invokes [federal court] jurisdiction” and when the state
makes a “clear declaration” of a waiver). While the Supreme Court has not
definitively said whether Eleventh Amendment immunity is a matter of
subject matter jurisdiction, the Eleventh Circuit has declared that “Eleventh
Amendment jurisdictional questions can be raised for the first time on
appeal.” Doe v. Moore, 410 F.3d 1337, 1349 (11th Cir. 2005). Because
failing to raise the issue of Eleventh Amendment immunity until a second
motion to dismiss does not constitute a clear declaration of waiver of the
immunity, UFBOT is entitled to Eleventh Amendment immunity for all of
Plaintiff’s claims.
UFBOT is a state agency and “arm of the state” for Eleventh
Amendment purposes and Congress has not abrogated Eleventh
Amendment immunity for the claims involved in this case. And because
UFBOT has not unequivocally expressed its consent to be sued in federal
court, Plaintiff’s claims against UFBOT are due to be dismissed.
III. RECOMMENDATION
In light of the foregoing, it is respectfully RECOMMENDED that:
UFBOT’s Motion to Dismiss Plaintiff’s Corrected Amended
Complaint, ECF No. 67, should be GRANTED. UFBOT should be
dismissed as a party in this case based upon Eleventh Amendment
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immunity.
IN CHAMBERS this 23rd day of May 2017.

s/Gary R. Jones
GARY R. JONES
United States Magistrate Judge

NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be
filed within fourteen (14) days after being served a copy thereof. Any
different deadline that may appear on the electronic docket is for the
Court’s internal use only, and does not control. A copy of objections
shall be served upon all other parties. If a party fails to object to the
magistrate judge's findings or recommendations as to any particular
claim or issue contained in a report and recommendation, that party
waives the right to challenge on appeal the district court's order
based on the unobjected-to factual and legal conclusions. See 11th
Cir. Rule 3-1; 28 U.S.C. § 636.

Case No: 1:15-cv-159-MW-GRJ