Sorey v. Kellett

• Decision Date: 15 October 1987
• Docket Number: Civ. A. No. J87-0023(B).
• Citation: 673 F. Supp. 817
• Parties: Elnora SOREY, Individually and as Personal Representative of the Wrongful Death Beneficiaries of Eric Sorey, Deceased, and as Personal Representative of the Estate of Eric Sorey, Deceased, Plaintiffs, v. Boyd A. KELLETT, M.D.; Earnest L. Harrington, R.P.T.; John Doe, Assistant Trainer; Jane Doe, R.N.; William H. Austin, Jr.; George T. Watson; Martha H. Gill; Denton Rogers, Jr.; Charles C. Jacobs, Jr.; Bryce Griffis; Betty A. Williams; John R. Lovelace, M.D.; Frank O. Crosthwait, Jr.; William A. Hickman; Sidney L. Rushing; Thomas D. Bordeau; William M. Jones; Jim Carmody; and The University of Southern Mississippi, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

673 F. Supp. 817

Elnora SOREY, Individually and as Personal Representative of the Wrongful Death Beneficiaries of Eric Sorey, Deceased, and as Personal Representative of the Estate of Eric Sorey, Deceased, Plaintiffs, v. Boyd A. KELLETT, M.D.; Earnest L. Harrington, R.P.T.; John Doe, Assistant Trainer; Jane Doe, R.N.; William H. Austin, Jr.; George T. Watson; Martha H. Gill; Denton Rogers, Jr.; Charles C. Jacobs, Jr.; Bryce Griffis; Betty A. Williams; John R. Lovelace, M.D.; Frank O. Crosthwait, Jr.; William A. Hickman; Sidney L. Rushing; Thomas D. Bordeau; William M. Jones; Jim Carmody; and The University of Southern Mississippi, Defendants.

Civ. A. No. J87-0023(B).

United States District Court, S.D. Mississippi, Jackson Division.

October 15, 1987.

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John M. Deakle and Joanna Robertson, Deakle & Deakle, Hattiesburg, Miss., and J. Keith Givens, Dothan, Ala., for plaintiffs.

Dorrance Aultman and Patricia Trantham, Aultman, Tyner, McNeese & Ruffin, Ltd., Hattiesburg, Miss., for Dr. Boyde A. Kellett.

Robert L. Gibbs, Office of Atty. Gen., State of Miss., Jackson, Miss., for all other defendants.

MEMORANDUM OPINION AND ORDER

BARBOUR, District Judge.

This cause is before the Court on Motions to Dismiss or for Summary Judgment filed by the numerous Defendants in this action. Plaintiff, Elnora Sorey, sued in this Court for damages arising out of the death of her son Eric Sorey. Eric Sorey was a football player at the University of Southern Mississippi (USM) and became ill at practice. He was admitted to the USM on-campus clinic and later transferred to a Hattiesburg, Mississippi, hospital where he died. Plaintiff, a resident of Florida, asserted jurisdiction under diversity of citizenship, 28 U.S.C. § 1332 and under 42 U.S.C. § 1983. Her claimed right to recovery is based on 42 U.S.C. § 1983, the Mississippi Wrongful Death and Survival Statutes, Miss. Code Ann. §§ 11-7-13 and 91-7-233 (1972), and breach of contract. Named as Defendants in their official and individual capacities are members of the Board of Trustees of the State Institutions of Higher Learning (College Board), William H. Austin, Jr., George T. Watson, Martha H. Gill, Denton Rogers, Jr., Charles C. Jacobs, Jr., Bryce Griffis, Betty A. Williams, John R. Lovelace, M.D., Frank O. Crosthwait, Jr., William A. Hickman, Sidney L. Rushing, Thomas D. Bordeau, and William M. Jones, who along with Defendants Earnest L. Harrington, the head trainer at USM, and Jim Carmody, head football coach at USM, have moved to dismiss or for summary judgment. The team physician, Boyd A. Kellett, sued in his official¹ and individual capacities, has moved to dismiss, or for summary judgment, or for change of venue. Defendant USM has also moved to dismiss.

In her original and amended complaints, Plaintiff charges that Harrington and Kellett² were negligent in treating her son after he collapsed at football practice on August 7, 1986 and that Coach Carmody failed to perform a non-delegable duty of responsibility for the custody and care of football players. No specific allegations are made against USM. The alleged liability of the College Board in their official and individual capacities is based up on a failure to provide sufficient funds to USM and its clinic which resulted in the hiring of incompetent personnel. Defendants are all alleged to be officials or employees of the State of Mississippi who were acting under color of state law and pursuant to state policies. In sum, the claims under Section 1983, wrongful death and survival are all premised on negligence. The breach of contract claim asserted in the amended complaint is based on the failure to provide certain benefits listed in a grant-in-aid agreement.³

All of the Defendants except USM have moved to dismiss or for summary judgment on the grounds that the Complaint fails to state a claim upon which relief may be granted, that they are immune from this action under the applicable law of the State of Mississippi, and that allegations of negligence against them fail to state a claim under 42 U.S.C. § 1983. In support of its motion to dismiss, USM relies on sovereign immunity, the Eleventh Amendment (as a bar to the Section 1983 claim), failure to state a claim and improper service of process. Each of the alternative grounds will be discussed as they apply to particular defendants.

Defendants have asserted that since this is a diversity case, this Court is bound by Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) to apply the Mississippi law of sovereign immunity.⁴ As will be elaborated upon below, only the members of the College Board are entitled to assert an immunity defense. Moreover, it is erroneous to claim that this Court is Erie-bound to apply the Mississippi state law of sovereign immunity when the pertinent limitation on the exercise of this Court's power is the Eleventh Amendment to the Constitution which states that

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.

The state itself need not be named as a party to the action for it to be barred by the Eleventh Amendment. "When the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though the individual officials are nominal defendants." Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945). Consequently, relief sought nominally against an officer or a state entity is in fact against the sovereign if the decree would operate against the latter. Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1983) (quoting Hawaii v. Gordon, 373 U.S. 57, 58, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963)).

By its express terms, the Eleventh Amendment is a limitation on the judicial power, that is the jurisdiction of the federal courts. See Pennhurst, 465 U.S. at 99 n. 8, 104 S.Ct. at 907 n. 8. Contrary to Defendants' assertions, Erie Railroad v. Tompkins involves not jurisdiction, but the application of state substantive law when a federal court exercises subject matter jurisdiction based on diversity of citizenship. That jurisdiction in this case is based on diversity of citizenship does not preclude application of the Eleventh Amendment. Cf. Karpovs v. State of Mississippi, 663 F.2d 640, 643-44 (5th Cir.1981) (state negligence claims and federal admiralty claims for damages against State of Mississippi and state agency barred by Eleventh Amendment); Blake v. Kline, 612 F.2d 718, 721 (3rd Cir.1979) (applying Eleventh Amendment bar to diversity action against state agency). See also Mohler v. State of Mississippi, 782 F.2d 1291, 1292 (5th Cir. 1986) (district judge dismissed on state law sovereign immunity; Fifth Circuit affirmed because Eleventh Amendment is jurisdictional bar).

Since the Eleventh Amendment bars claims for monetary damages against the state, the question before this Court becomes whether USM and the members of the College Board, sued in their official capacities, are the state for purposes of the Eleventh Amendment. To determine whether the Eleventh Amendment bars suit against a particular state agency, the Court must examine the powers and characteristics of the state agency as it is constituted by state law. However, while the degree of independent autonomy and control is a consideration, more important is whether the funds to defray any award would be derived from the state treasury. See Wheeler v. Mental Health and Mental Retardation Auth., 752 F.2d 1063, 1072 (5th Cir.1985) (citing Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977)). See also Jacintoport Corp. v. Greater Baton Rouge Port Com'n., 762 F.2d 435, 442 (5th Cir.1985) (analyzes extent of agency's independent management authority), cert. denied, 474 U.S. 1057, 106 S.Ct. 797, 88 L.Ed.2d 774 (1986).

USM is clearly an alter ego of the State of Mississippi. The legislature has defined it as such, see Miss. Code Ann. § 11-46-1(g), as has the Mississippi Supreme Court, Bruner v. Univ. of Southern Mississippi, 501 So.2d 1113, 1115 (Miss. 1987). Moreover, the Court of Appeals for the Fifth Circuit has held that educational institutions operated by the state are state agencies for the purposes of the Eleventh Amendment. See Clay v. Texas Women's Univ., 728 F.2d 714, 715-16 (5th Cir.1984); United Carolina Bank v. Bd. of Regents, 665 F.2d 553, 557 (5th Cir.1982). Thus any action for damages against USM is barred by the Eleventh Amendment.⁵

The College Board was created by the legislature and charged with the management and control of state institutions of higher learning.⁶Miss. Code Ann. § 37-101-1 (1972). The members of the College Board are appointed by the governor. Id. at § 37-101-3. The general powers and duties of the College Board are codified at Miss. Code Ann. § 37-101-15 and include the following: control of the use, distribution and disbursement of all funds, appropriations and taxes levied by the state for use of the institutions; general supervision of the affairs of all the institutions⁷; to report annually to the legislature on appropriations to the institutions; election of the heads of all institutions; and contracting with the deans, professors and teaching staff. The remainder of the statutory scheme provides detailed guidance as to the manner in which the College Board should exercise its authority on behalf of the state of Mississippi. See generally Id. at § 37-101-17.

The detailed statutory scheme for the creation and operation of the College Board demonstrates that it is an extension of the State of Mississippi which...