Opinion
No. 3:02-CV-0052-R
April 10, 2002
CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an order of the District Court, Defendant Texas Tech University Health Sciences Center's "Plea to the Jurisidiction and Motion to Dismiss Pursuant to Rule 12(b) of the Federal Rules of Civil Procidrue," filed February 21, 2002, has been referred to the United States Magistrate Judge. The conclusions and recommendation of the Magistrate Judge follow:
ANALYSIS AND CONCLUSIONS
Plaintiff, Eugene V. Abravanel, M.D., has filed a tort complaint based upon diversity jurisdiction for injuries he suffered as a result of medical treatment. His claims are against Miles R. Day, M.D., and Texas Tech University Health Sciences Center. Plaintiffs first cause of action is brought pursuant to the Medical Liability and Insurance Improvement Act, TEX. REV. CIV. STAT. ANN. art. 4590i, § 103(a)(4) (Vernon Supp. 2001). Plaintiffs second cause of action is based upon strict liability, negligence, breach of implied warranties and failure to warn.
Texas Tech University Health Sciences Center (Texas Tech) brings a plea to the jurisdiction and motion to dismiss pursuant to FED. R. CIV. P. RULE 12(b), claiming the Court lacks subject matter jurisdiction because it is immune from suit in federal court pursuant to the Eleventh Amendment. Plaintiff has not filed a response to Texas Tech's motion seeking its dismissal based upon sovereign immunity.
Texas Tech University Health Sciences Center is an institution under the direction management, and control of the Texas Tech University Board of Regents, a general agency of the State of Texas. Carrillo v. Texas Tech University Health Sciences Center, 960 S.W.2d 870, 871 (Tex.App.-El Paso 1997, no pet.), abrogated on other grounds, Kerrville States Hosp. v. Fernandez, 28 S.W.3d 1 (Tex. 2000); see TEX. EDUC. CODE §§ 110.01, 110.02. The Eleventh Amendment provides an unconsenting state immunity from suits brought in federal courts by citizens of its own state as well as by citizens of another state. Edelman v. Jordan, 415 U.S. 651, 663 (1974). Absent a waiver of sovereign immunity, neither a state nor agencies acting under its control are subject to suit in federal court. Puerto Rico Aqueduct and Sewer Authority v. Metcalf Eddy, Inc., 506 U.S.139, 144 (1993); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984).
Plaintiff brings suit against Texas Tech under the Medical Liability and Insurance Improvement Act, TEX. REV. CIV. STAT. ANN. art. 45901, § 103(a)(4) (Vernon Supp. 2001), and common law torts. Plaintiff does not allege that any provisions of the Medical Liability and Insurance Improvement Act abrogate Texas' sovereign immunity. Additionally, the Fifth Circuit Court of Appeals has examined certain provisions of that act and found that sovereign immunity is not abrogated. See e.g., Hale v. Sherkoleslam, 724 F.2d 1205, 1210 (5th Cir. 1984).
Similarly, Plaintiff does not allege that Texas has waived its sovereign immunity for purposes of his tort claims. Moreover, Defendant's claim that this court lacks subject matter jurisdiction to entertain Plaintiffs tort claims against Texas Tech is correct. A state does not waive Eleventh Amendment immunity in federal courts merely by waiving sovereign immunity in its own courts. Welch v. Department of Highways and Public Transportation, 483 U.S. 468, 473-74 (1987). The constitutional protection afforded by sovereign immunity encompasses not only whether a state may be sued, but also where it may be sued. Pennhurst, 465 U.S. at 99. Courts will find waiver only where it is "stated `by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.'" Edelman, 415 U.S. at 673 (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909). Although Texas waives its sovereign immunity to a limited extent for suits brought under the Tcxas Tort Claims Act, the provisions of the Texas Tort Claims Act do not waive the state's sovereign immunity for actions brought in federal court. Sherwinski v. Peterson, 98 F.3d 849, 952 (5th Cir. 1996).
The Texas Tort Claims Act specifically provides that "[a] suit under this chapter shall be brought in state court in the county in which the cause of action arose or a part of the cause of action arises." Tex.Civ.Prac. Rem. Code Ann. § 101.102(a) (emphisis added). Before an amendment in 1987, the terms of § 101.102 provided: "A suit under this chapter shall be brought in the county in which the cause of action or a part of the cause of action arises." Tex.Civ.Prac. Rem. Code Ann. § 101.102(a) (West 1986). The 1987 amendment inserted the phrase " in state court." The Fifth Circuit Court of Appeals has noted that this amendment clarifies the legislative intent to waive sovereign immunity in state court only. See Sherwinski, 98 F.3d at 852 n. 9. Sovereign immunity bars Plaintiff from pursuing his tort claims against Texas Tech in federal court.
RECOMMENDATION
The Court recommends that Defendant Texas Tech University Health Sciences Center's motion to dismiss be granted and that Plaintiffs complaint against Texas Tech be dismissed with prejudice for lack of subject matter jurisdiction.