Opinion
No. 3-04-CV-2754-M.
June 30, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The University of Texas Medical Branch at Galveston ("UTMB") has filed a motion to dismiss a third-party complaint for indemnity, breach of contract, and negligence filed by Dallas County, Texas ("the County"). For the reasons stated herein, the motion should be granted.
I.
UTMB provides and administers health care services to inmates in Dallas County jail facilities pursuant to an Interlocal Agreement ("the Agreement") with the County and the Dallas County Hospital District ("DCHD"). (Cty. App. at 002, ¶ 3 005). Among the "covered services" provided by UTMB are physician coverage, 24-hour on-site nursing care, disbursement and delivery of pharmacy medications, and psychiatric services. ( Id. at 006, ¶ A(6)). UTMB is obligated to furnish such services to inmates in accordance with standards of care established by the American Correctional Association and state regulatory agencies. ( Id. at 008, ¶ D(3)). Failure to meet those minimum standards constitutes grounds for terminating the Agreement. ( Id.). In addition, the Agreement provides:
To the extent authorized by the Constitution and laws of the State of Texas, UTMB shall hold harmless and indemnify DCHD, the County, the Sheriff (individually and in his official capacity), the Commissioners and Board members and their officers and employees, from and against any and all claims, liabilities, losses, judgments, expense and/or damages, including reasonable attorney's fees and court costs, resulting from or attributable to any act or omission of UTMB, its officers and employees, including any acts constituting negligence.
( Id. at 12, ¶ G).
On December 30, 2004, three former inmates of the Dallas County Jail sued the County, former Sheriff Jim Bowles, and DCHD for civil rights violations under 42 U.S.C. § 1983. Their complaint alleges, inter alia, that defendants failed to provide adequate medical care and treatment to mentally ill inmates in violation of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. The inmates also assert claims against the County under Section 504 of the Rehabilitation Act, 42 U.S.C. § 794a, and Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq. Although UTMB is not a party to the underlying action, the complaint references various "covered services" that were not provided to inmates as required by the Agreement between UTMB and the County. Those services include maintaining adequate staffing for psychological services, the disbursement and delivery of pharmacy medications, initial mental health screenings, and psychiatric care. ( See Plf. Compl. at 7-8, ¶¶ 5.06-5.11).
The underlying action is brought by James Monroe Mims, Jr., Clarence Lee Grant, Jr., and Kennedy C. Nickerson, by and through their respective legal representatives. Advocacy, Inc., a non-profit corporation funded by Congress to protect the legal rights of persons with disabilities, has joined the suit seeking injunctive and declaratory relief "to mandate and require changes in the operation of the Dallas County Jail[.]" ( See Plf. Compl. at 3, ¶ 1.04).
On April 1, 2005, the County brought a third-party action against UTMB for indemnity, breach of contract, and negligence. (Third-Pty. Compl. at 4-5, ¶¶ 8-10). In the event the inmates prevail on any of their claims, the County maintains that UTMB should "indemnify and hold the County harmless from all costs, expenses, liabilities, losses, judgments or damages, including but not limited to reasonable attorney's fees[.]" ( Id. at 4, ¶ 8). UTMB now moves to dismiss the third-party complaint on the grounds of Eleventh Amendment immunity. The motion has been fully briefed by the parties and is ripe for determination.
UTMB moves for dismissal under Fed.R.Civ.P. 12(b)(6). However, because Eleventh Amendment immunity is jurisdictional in nature, the court will treat the motion as a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. See Chalmers v. Lane, 2003 WL 23109794 at *2 (N.D. Tex. Dec. 23, 2003), citing Warnock v. Pecos County, 88 F.3d 341, 342-43 (5th Cir. 1996) (treating Rule 12(b)(6) motion to dismiss on grounds of Eleventh Amendment immunity as Rule 12(b)(1) motion).
II.
The Eleventh Amendment to the United States Constitution deprives a federal court of jurisdiction to hear a suit against a state or a state agency or department. Will v. Michigan Dep't of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 2311, 105 L.Ed.2d 45 (1989); Warnock v. Pecos County, 88 F.3d 341, 343 (5th Cir. 1996). UTMB is an agency of the State of Texas. See TEX. EDUC. CODE ANN. § 65.02(a)(8) (Vernon 2002); see also Wise v. Rupert, 2003 WL 21448352 at *2 (N.D. Tex. May 21, 2003) (Kaplan, J.). As a result, UTMB cannot be sued in federal court without its permission or unless sovereign immunity is waived. See Brandley v. Keeshan, 64 F.3d 196, 200 (5th Cir. 1995), cert. denied, 116 S.Ct. 947 (1996) (absent consent or waiver, suit against a state agency is proscribed by Eleventh Amendment). In an attempt to avoid the dismissal of its third-party complaint, the County argues that: (1) Congress has abrogated Eleventh Amendment immunity in civil actions brought under the Rehabilitation Act and the ADA; and (2) UTMB has waived its immunity from suit. The court will consider these arguments in turn.
The Eleventh Amendment provides:
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.
U.S. CONST. amend XI.
A.
Congress may abrogate Eleventh Amendment immunity when it expresses an unequivocal intent to do so and acts pursuant to a valid grant of constitutional authority. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 640, 145 L.Ed.2d 522 (2000). Such is the case with respect to suits brought against state agencies under Title II of the ADA and Section 504 of the Rehabilitation Act. See Tennessee v. Lane, 541 U.S. 509, 517, 124 S.Ct. 1978, 1985, 158 L.Ed.2d 820 (2004) (ADA); Pace v. Bogalusa City School Bd., 403 F.3d 272, 281 (5th Cir. 2005) (Rehabilitation Act). However, no such claims are asserted against UTMB in this case. Rather, the County has filed a third-party action against UTMB for indemnity, breach of contract, and negligence. The court cannot accept the County's argument, unsupported by any legal authority, that sovereign immunity is waived just because the inmates "are free to sue UTMB directly for the alleged violations of the ADA and the Rehabilitation Act." ( See Cty. Resp. Br. at 7). Unlike a direct action brought under these federal statutes, the County's third-party claims do not implicate the fundamental right of access to the courts. See Lane, 124 S.Ct. at 1994; Pace, 403 F.3d at 288 n. 76. There simply is no basis for concluding that Congress intended or has the constitutional authority to abrogate Eleventh Amendment immunity under the circumstances presented here.B.
The County further argues that UTMB waived its sovereign immunity by agreeing to "hold harmless and indemnify DCHD, the County, the Sheriff . . . and their officers and employees, from and against any and all claims, liabilities, losses, judgments, expense and/or damages, including reasonable attorney's fees and court costs, resulting from or attributable to any act or omission of UTMB, its officers and employees, including any acts constituting negligence." (Cty. App. at 012, ¶ G). By its terms, this indemnity provision is subject to "the Constitution and laws of the State of Texas." ( Id.). Moreover, the parties agreed that:
This Agreement shall be expressly subject to DCHD and UTMB's governmental immunity and the County's sovereign immunity, Title 5 of the TEXAS CIVIL PRACTICES AND REMEDIES CODE, and all applicable federal and Texas law.
( Id. at 014, ¶ J(6)). Another provision makes clear that "neither the execution of this Agreement, nor the conduct, act or inaction by any person in the execution, administration or performance of this Agreement constitutes or is intended to constitute a waiver of UTMB's, the County's or DCHD's immunity from suit." ( Id. at 013, ¶ I). Despite the County's creative interpretation of the Agreement, nothing in the contract itself supports a wavier of sovereign immunity.
C.
Finally, the County contends that UTMB has waived its immunity from suit by "acting purely as a commercial vendor supplying medical services." ( See Cty. Resp. Br. at 14). Although a state agency may waive sovereign immunity by its conduct, UTMB has not engaged in any of the activities courts have found sufficient to waive immunity. See, e.g. Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613, 620, 122 S.Ct. 1640, 1644, 152 L.Ed. 2d 806 (2002) (governmental entity waives immunity by removing a case to federal court); Reata Construction Corp. v. City of Dallas, 2004 WL 726906 at *2 (Tex. Apr. 2, 2004) (governmental entity waives immunity by asserting affirmative claims); Catalina Development, Inc. v. County of El Paso, 121 S.W.3d 704, 705 (Tex. 2003) (act of entering into a contract does not waive immunity). Cf. Federal Sign v. Texas Southern University, 951 S.W.2d 401, 408 n. 8 (Tex. 1997) (acknowledging that waiver may occur by conduct but failing to specify what conduct will result in waiver).
RECOMMENDATION
The court concludes that UTMB is entitled to Eleventh Amendment immunity with respect to the claims for indemnity, breach of contract, and negligence asserted by the County. Accordingly, the third-party complaint against UTMB should be dismissed without prejudice for lack of subject matter jurisdiction. The court should direct the clerk to enter a final judgment as to all claims against UTMB. See FED. R. CIV. P. 54(b).
In light of the disposition of this jurisdictional issue, the court need not address UTMB's alternative argument that it cannot be sued in Texas state court. See United States v. Texas Tech University, 171 F.3d 279, 286 (5th Cir. 1999), cert. denied, 120 S.Ct. 2194 (2000) ("To rule on a merits question before, or in addition to, answering the omnipresent jurisdictional question would contravene the well-established principle that federal courts may not issue advisory opinions.").
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party may file written objections to the recommendation within 10 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).