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BOYD v. TENNESSEE STATE UNIV.

March 24, 1994

Gregor BOYD, James BURTON, and Alvin CANTRELL, Plaintiffs,
v.
TENNESSEE STATE UNIVERSITY and STATE OF TENNESSEE BOARD OF REGENTS, Defendants.



The opinion of the court was delivered by: THOMAS A. WISEMAN, JR.

 Plaintiffs' third amended complaint invokes this court's pendent jurisdiction *fn1" to hear a state claim for malicious harassment. *fn2" Aside from this jurisdictional allusion, however, there is no specific cause of action asserted for malicious harassment. It is clear, nevertheless, that such a cause is intended; indeed, plaintiffs previously filed a motion to amend their complaint so that they could add this claim. To the defendants' credit, they do not bother with the pro forma argument that this claim should be barred for lack of specific pleading. See Fed. R. Civ. P. 8(f) (a court should construe all pleadings so "as to do substantial justice"). The defendants do argue, however, that this claim is barred by the doctrine of sovereign immunity. This argument has merit.

 I

 Pendent Jurisdiction and Sovereign Immunity

 The Eleventh Amendment provides 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." U.S. Const. amend XI. The Supreme Court has consistently interpreted the Eleventh Amendment to mean "'that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.' Absent waiver, neither a State nor agencies acting under its control may be 'subject to suit in federal court.'" Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 121 L. Ed. 2d 605, 612, 113 S. Ct. 684 (1993) (quoting Edelman v. Jordan, 415 U.S. 651, 662-63, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974) and Welch v. Texas Dep't of Highways and Public Transp., 483 U.S. 468, 480, 97 L. Ed. 2d 389, 107 S. Ct. 2941 (1987)). This immunity applies to actions of all types. *fn3" See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984).

 It is important to note that "[a] State's constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued." Id. at 99. "For this reason, the Court consistently has held that a State's waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment in the federal courts." Id. at 99 n.9. To proceed against a state in federal court via pendent jurisdiction, the state's consent to such suits must have been "unequivocally expressed." Id. at 99.

 Immunity of the Present Defendants

 From the preceding, it is apparent that two questions must be answered to determine the applicability of sovereign immunity in the present case. First, are the defendants agencies of the state to which sovereign immunity applies? Second, if immunity does apply, has this immunity been waived? These are federal questions that require examination of state law for resolution. See Estate of Ritter v. University of Mich., 851 F.2d 846, 848 (6th Cir. 1988).

 This conclusion only adds to several like conclusions before. This very court previously ruled that East Tennessee State University was an "arm of the state" for Eleventh Amendment purposes. See Kompara v. Board of Regents of the State Univ., 548 F. Supp. 537, 542 (M. D. Tenn. 1982) (determining immunity from suit pursuant to 42 U.S.C. § 1983). The Eastern District has likewise ruled that the "University of Tennessee is an agency of the state and therefore is immune from suit except to the extent it has consented to be sued." Carlson v. Highter, 612 F. Supp. 603, 604-05 (E.D. Tenn. 1985) (citing University of Tennessee v. Peoples Bank, 157 Tenn. 87, 6 S.W.2d 328 (1928)). Furthermore, Tennessee courts have repeatedly held that Tennessee's state universities and university officials are appendages of the state fur purposes of sovereign immunity. See Dunn v. W.F. Jameson & Sons, Inc., 569 S.W.2d 799 (Tenn. 1978); Applewhite v. Memphis State Univ., 495 S.W.2d 190 (Tenn. 1973); Greenhill v. Carpenter, 718 S.W.2d 268 (Tenn. Ct. App. 1986). But see Applewhite, 495 S.W.2d at 196-97 (corporations owned and controlled by state university not necessarily entitled to sovereign immunity). Accordingly, the defendants are immune from suit unless the state has expressed a clear consent to their being sued in federal court.

 The second question--has the State of Tennessee waived its immunity from suit in federal court with respect to a state civil claim for malicious harassment--poses little more difficulty than the first. As noted above, evidence of a waiver to the specific claim raised is insufficient; there must as well be a waiver with respect to pursuit of a claim in federal court. For it is well within a state's power to consent to suit solely within its own courts. See Johns v. Supreme Court of Ohio, 753 F.2d 524, 527 (6th Cir. 1985) ("The fact that the state has waived immunity from suit in its own courts is not a waiver of Eleventh Amendment immunity in the federal courts."); State of Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449, 460 (6th Cir. 1982) ("Where the sovereign consents to be sued in a specially designated court, any resulting waiver is not general but is confined to actions brought in the forum designated.").

 The Tennessee legislature has established three avenues for pursuing an action under the Tennessee Human Rights Act ("THRA"): (1) filing of a complaint with the Tennessee Human Rights Commission, (2) appeal of this Commission's decision to the Chancery Court, or (3) filing of an action in Chancery Court. See Tenn. Code Ann. §§ 4-21-302, -307, -311 (19 & Supp. 1993); see also Hoge v. Roy H. Park Broadcasting, 673 S.W.2d 157, 158 (Tenn. Ct. App. 1984) (describing these avenues); Roberson v. University of Tenn., 1988 WL 74236, at * 3 (Tenn. Ct. App. July 19, 1988) (holding that actions against the state may be initiated in the Commission or Chancery Court). Direct pursuit of an action in federal district court is not one of the permissible avenues. There is no express consent by Tennessee, neither within the THRA nor elsewhere, to suit in federal court for claims under the THRA. *fn4" Therefore, assuming that Tennessee state agencies may be sued for malicious harassment, *fn5" such suits could only be brought before the Human Rights Commission or in Chancery Court. The plaintiffs' pendent state claim being one under the THRA, it must accordingly be dismissed. *fn6"

 II

 For the reasons stated above, the defendants' motion to dismiss will be granted in an accompanying Order. Plaintiffs request that their state claim be remanded to state court if pendent jurisdiction is determined to be inappropriate. However, since the original complaint was filed in this court rather than in state court, such a ...


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