Amiri v. Gupta

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

ALI AMIRI., }

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Plaintiff, }

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v. } Case No.: 7:18-cv-00425-RDP

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THE BOARD OF TRUSTEES OF THE }

UNIVERSITY OF ALABAMA, }

}

Defendant.

MEMORANDUM OPINION

This case is before the court on Defendant’s Motion for Summary Judgment (Doc. # 43),

filed March 22, 2019. Consistent with the Eleventh Circuit’s decision in Griffith v. Wainwright,

772 F.2d 822, 825–26 (11th Cir. 1985), the court expressly gave pro se Plaintiff Ali Amiri thirty-

five days notice, included for his information the summary judgment rules, and explained “his

right to file affidavits or other materials in opposition to the motion, and of the consequences of

default.” (Doc. # 46). The Motion is fully briefed and ripe for review. (Docs. # 44, 45, 48, 50, 52,

53, 56). For the reasons explained below, Movants’ Motion for Summary Judgment is due to be

granted.

I. Background and Procedural History

The record in this case is voluminous and an exhaustive recitation of the facts is

unnecessary, as this case hinges on the applicability of Eleventh Amendment immunity. As

such, the court will provide a brief overview of facts and then discuss the case’s relevant

procedural history. Ali Amiri (“Plaintiff”) is an Iranian national who began a PhD program in

physics at the University of Alabama in August 2011. (Doc. # 28 at ¶5)1. Following the spring

2017 academic semester, Plaintiff was dismissed from the physics graduate program based on his

1 The operative complaint in this case is Plaintiff’s Second Amended Complaint. (Doc. # 28).

“demonstrated lack of progress in research and disrespectful conduct towards faculty advisers,

colleagues and members of the academic community.” (Doc. # 45-6 at 45). In March 2018,

Plaintiff sued the Board of Trustees of the University of Alabama (“University” or “Defendant”),

as well as several administrators and professors. (Docs. # 1, 4).

The parties have litigated this case aggressively. Plaintiff has weathered three motions to

dismiss, and the University is the only remaining defendant. Plaintiff’s sole surviving claim is

brought under 48 U.S.C. § 1983. He alleges that he was deprived of procedural due process.

(Doc. # 28). The parties have engaged in discovery and the University filed a Motion for

Summary Judgment. (Doc. # 43). The parties briefed the Motion and submitted Rule 56 evidence

in support of their respective positions. (Docs. # 44, 45, 48, 50, 52, 53, 56).

After summary judgment briefing was complete, Plaintiff filed a Motion to Stop

Detention and Deportation, on June 5, 2019. (Doc. # 57). The court construed Plaintiff’s Motion

as a request for a temporary restraining order and preliminary injunction directing the University

to reinstate Plaintiff as a student/employee of the University of Alabama and/or issue Plaintiff an

updated document to that effect. (Id.). Because Plaintiff failed to show a substantial likelihood

that the University’s real reasons for dismissing him were other than academic, the court denied

Plaintiff’s motion for a temporary restraining order and preliminary injunction . (Docs. # 60, 61).

Plaintiff was subsequently apprehended and is currently in DHS/ICE Custody.

Three months after the court denied Plaintiff’s Motion to Stop Detention and

Deportation, Plaintiff filed a motion requesting the court to “rule on existing defficiencies [sic] in

the SEVIS system,” which the court construed as a motion to amend the pleadings. (Doc. # 62).

The court denied Plaintiff’s Motion. (Docs. # 63, 64). Plaintiff subsequently filed an “Affidavit

of His Scientific Achievements & the Right of Diabetic Patient to Live.” (Doc. # 65). The court

did not address this filing as there was no discernable relief requested within it. Rather, Plaintiff

has indicated that the purpose of filing “this affidavit [is] an effort to reveal the truth.” (Doc. # 65

at 1).

The court now turns its attention to the University’s Motion for Summary Judgment.

(Doc. # 43). The University argues that this case is due to be dismissed because the University

enjoys Eleventh Amendment immunity from suit. Plaintiff claims Alabama has waived Eleventh

Amendment immunity and the case should proceed. For the reasons explained below, the

University’s Motion for Summary Judgment is due to be granted.

II. Standard of Review

Under Federal Rule of Civil Procedure 56, summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The

party asking for summary judgment always bears the initial responsibility of informing the court

of the basis for its motion and identifying those portions of the pleadings or filings which it

believes demonstrate the absence of a genuine issue of material fact. Id. at 323. Once the moving

party has met its burden, Rule 56 requires the non-moving party to go beyond the pleadings and -

- by pointing to affidavits, or depositions, answers to interrogatories, and/or admissions on file --

designate specific facts showing that there is a genuine issue for trial. Id. at 324.

The substantive law will identify which facts are material and which are irrelevant. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts

and all justifiable inferences are resolved in favor of the non-movant. See Allen v. Bd. of Pub.

Educ. for Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of Atlanta, 2 F.3d

1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If the evidence is

merely colorable, or is not significantly probative, summary judgment may be granted. See id. at

249.

When faced with a “properly supported motion for summary judgment, [the nonmoving

party] must come forward with specific factual evidence, presenting more than mere

allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson

teaches, under Rule 56(c) a plaintiff may not simply rest on her allegations made in the

complaint; instead, as the party bearing the burden of proof at trial, she must come forward with

at least some evidence to support each element essential to her case at trial. See Anderson, 477

U.S. at 252. “[A] party opposing a properly supported motion for summary judgment ‘may not

rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts

showing that there is a genuine issue for trial.’ ” Id. at 248 (citations omitted).

Summary judgment is mandated “against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “Summary judgment may be

granted if the non-moving party’s evidence is merely colorable or is not significantly probative.”

Sawyer v. Sw. Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (citing Anderson, 477

U.S. at 250-51).

“[A]t the summary judgment stage the judge’s function is not himself to weigh the

evidence and determine the truth of the matter but to determine whether there is a genuine issue

for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents a

sufficient disagreement to require submission to the jury or whether it is so one-sided that one

party must prevail as a matter of law.’” Sawyer, 243 F. Supp. 2d at 1262 (quoting Anderson, 477

U.S. at 251-52); see also, LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999)

(“The law is clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a

motion for summary judgment.”).

III. Analysis

As noted above, the only remaining claim in this case is Plaintiff’s procedural due

process claim, brought pursuant to 42 U.S.C. § 1983.2 The University argues that Plaintiff’s

claim is barred by the Eleventh Amendment. Plaintiff argues that Alabama has waived immunity

and the University is subject to suit. In light of these different positions, it is necessary for the

court to provide an overview of legal principles related to the Eleventh Amendment and waiver

of immunity.

The Eleventh Amendment provides “[t]he 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. “Despite its limited terms, the Eleventh Amendment has long been

interpreted as evidencing broader principles of federalism that prohibit federal courts from

exercising jurisdiction over suits against a non-consenting [s]tate, not only where brought by

2 Section 1983 provides, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes

to be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983. In short, § 1983 creates a cause of action against any person who, acting under color of state law,

abridges rights created by the Constitution and laws of the United States. “Section 1983 provides a federal forum to

remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy

against a State for alleged deprivations of civil liberties.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66

(1989).

citizens of other [s]tates or of foreign nations but also by that [s]tate’s own citizens as well.”

Lambert v. Bd. of Trustees of Univ. of Ala., No. 2:18-CV-1112-JEO, 2019 WL 339178, at *7

(N.D. Ala. Jan. 28, 2019), aff'd sub nom. Lambert v. Bd. of Trustees, No. 19-10621, 2019 WL

6273402 (11th Cir. Nov. 25, 2019); see Eubank v. Leslie, 210 F. App’x 837, 844 (11th Cir. 2006)

(“The Eleventh Amendment has been construed to bar suits against a state brought by that state’s

own citizens, absent the state’s consent.); see Hans v. Louisiana, 134 U.S. 1, 15 (1890).

The Eleventh Amendment bars suits against any “arm of the state,” including “agents and

instrumentalities of the [s]tate.” Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (en banc)

(plurality opinion). Here, the parties correctly agree that the University is an “arm of the state”

entitled to Eleventh Amendment Immunity. (Doc. # 52 at 27 (“In general [the University] is a

state actor.”); see Eubank v. Leslie, 210 F. App’x 837, 844 (11th Cir. 2006) (“The University of

Alabama Board of Trustees is a state agency . . . .”). The long-standing rule is that the Eleventh

Amendment bars such suits unless: (1) the state has expressly waived its immunity through

legislative enactment; or (2) Congress has exercised its power under § 5 of the Fourteenth

Amendment to override that immunity. Id. Congress has not abrogated Eleventh Amendment

immunity in § 1983 cases.3 Carr v. City of Florence, Ala., 916 F.2d 1521, 1524-25 (11th Cir.

1990); see Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989) (“Congress, in passing

§ 1983, had no intention to disturb the States’ Eleventh Amendment immunity . . . .”) (citing

Quern v. Jordan, 440 U.S. 332 (1979)). Thus, the viability of Plaintiff’s claim hinges on

whether Alabama has waived its immunity.

3 A third exception is available in limited circumstances not applicable here. Prospective injunctive relief may be

sought in “a suit challenging the constitutionality of a state official's action.” Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 102 (1984) (discussing Ex Parte Young, 209 U.S. 123 (1908)). Because Plaintiff’s only

remaining claim in this action is asserted against an “arm of the state” and not a “state official,” this narrow

exception does not apply in this case.

“The test to determine if a state has waived its sovereign immunity ‘is a stringent one.’”

Barnes v. Zaccari, 669 F.3d 1295, 1308 (11th Cir. 2012) (citing Fla. Prepaid, 527 U.S. at 676).

A state’s consent to suit must be “unequivocally expressed” via legislative enactment. Fla.

Prepaid, 527 U.S. at 676; Carr, 916 F.2d at 1524-25. Further, the Supreme Court has expressed

that “only where stated ‘by the most express language or by such overwhelming implication

from the test as [will] leave no room for any other reasonable construction.” Port Auth. Trans-

Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990) (quoting Atascadero State Hosp. v. Scanlon,

473 U.S. 234, 237–38 (1985)). Article 1, section 14 of the Alabama Constitution of 1901

expressly states that “the State of Alabama shall never be made a defendant in any court of law

or equity. Carr v. City of Florence, Ala., 916 F.2d at 1525. Further, the Eleventh Circuit has

repeatedly found that Alabama has not waived its Eleventh Amendment immunity. Carr, 916

F.2d at 1524-25; Free v. Granger, 887 F.2d 1552, 1557 (11th Cir. 1989); Parker v. Williams, 862

F.2d 1471, 1476 (11th Cir. 1989). Thus, it is clear that Alabama has not waived Eleventh

Amendment immunity.

Nevertheless, Plaintiff argues the University is subject to suit because “the state removed

the immunity of the UA and referred the UA to the courts.” (Doc. # 52 at 7). Plaintiff bases this

argument on a letter he received from Governor of Alabama’s General Counsel, which states:

After much review and discussion with officials at the University of Alabama, as

well as the University Counsel, we have determined that your dispute with the

University is not a matter for resolution through governor Kay Ivey’s office.

Your appropriate recourse is through the courts of Alabama.

* * *

Please consider this our final response to your repeated inquiries on the matter of

your allegations against the University of Alabama.

(Doc. # 53 at 84). Plaintiff claims this “letter shows that [University] is subject to the [c]ourt’s

power to enforce the rule of law.”4 (Doc. # 53 at 83, n.1). The court construes Plaintiff’s cyclical

argument as follows: Alabama has waived Eleventh-Amendment immunity because the

Governor’s office referred him to the court system, and because the Governor referred him to the

court system, it follows that Alabama cannot claim immunity in this instance. (Id.).

The Governor’s office responded to Plaintiff and referred him to the Alabama court

system. But, Plaintiff has wholly failed to explain how such a reference (or, for that matter, such

a “referral”) to the Alabama court system amounts to a waiver of immunity. Although Plaintiff’s

argument is creative, a waiver of Eleventh Amendment immunity requires far more than a

general referral to the “courts of Alabama.” For example, even a state statute authorizing the

state to be sued “in any court of competent jurisdiction” does not sufficiently waive Eleventh

Amendment immunity. Kenscott Copper Corp. V. State Tax Commn., 327 U.S. 573, 578-80

(1946). Rather, the state statute must specify the State’s intention to subject itself to waiver in

federal court. See Atascadero State Hosp. v. Scanlon, 473 U.S. at 241.

To be sure, there are in fact cases where a state has waived Eleventh Amendment

immunity. But these decisions are easily distinguishable from this situation. Lapides v. Bd. of

Regents of Univ. Sys. of Georgia, 535 U.S. 613, 616 (2002) (holding that a state waives its

Eleventh Amendment immunity when it removes a case from state court to federal court);

Gunter v. Atl. Coast Line R. Co., 200 U.S. 273, 284 (1906) (“where a state voluntarily become a

party to a cause, and submits its rights for judicial determination, it will be bound thereby, and

cannot escape the result of its own voluntary act by invoking the prohibitions of the 11th

Amendment.”); see Gardner v. New Jersey, 329 U.S. 565, 574 (1947) (holding in the context of

4 The letter from the Governor’s office refers Plaintiff to the “courts of Alabama.” (Doc. # 53 at 84). The letter

implies that Plaintiff’s remedy lies with the Alabama state courts, not the federal court system. Even if Plaintiff filed

this case in state court, Eleventh Amendment immunity extends to suits filed against the state in state courts and

before federal administrative agencies. Alden v. Maine, 527 U.S. 706 (1991)

a bankruptcy claim, that a State waives any immunity for a claim that it voluntarily files in

federal court); see e.g., Clark v. Barnard, 108 U.S. 436, 447 (1883) (holding that a state’s

voluntary appearance in federal court as an intervenor avoids Eleventh Amendment inquiry).

The University correctly argues that “[t]he [S]upreme [C]ourt and Eleventh Circuit have

routinely held that state universities, as state agencies are entitled to Eleventh Amendment

immunity from [42 U.S.C. § 1983].” (Doc. # 44 at 17). Although the University is correct, the

court finds it peculiar that the University has aggressively litigated this case but did not

substantively raised Eleventh Amendment immunity until just recently in their Summary

Judgment briefing.5 The University first raised Eleventh Amendment immunity in a footnote, in

its initial Motion to Dismiss. (Doc. # 7 at 10, n. 32 (“Defendants do not waive any defenses not

raise in this initial Motion to Dismiss including any immunity defenses.”)). In its Second Motion

to Dismiss, the University did not reserve their right to raise an immunity defense, Eleventh

Amendment or otherwise. (Doc. # 29). Subsequently, the University reserved Eleventh

Amendment immunity in its Answer. (Doc. # 35 at 9).

Although the decision not to raise Eleventh Amendment immunity at the outset of this

case is curious, it certainly is not fatal. As previously stated, the test for waiver of Eleventh

Amendment immunity “is a stringent one.” Barnes, 669 F.3d at 1308. Waiver will be granted

“only where stated ‘by the most express language or by such overwhelming implication from the

test as [will] leave no room for any other reasonable construction.” Fla. Prepaid, 527 U.S. at

676; Carr, 916 F.2d at 1524-25. In fact, waiver can be raised for the first time on appeal.

Edelman v. Jordan, 415 U.S. 651, 677–78 (1974) (noting that “it has been well settled since the

5 Courts may, but are not required to, raise Eleventh Amendment Immunity sua sponte. Wisconsin Dep’t of Corr. v.

Schacht, 524 U.S. 381, 389 (1998) (“Unless the State raises [Eleventh Amendment immunity], a court can ignore

it.”); see Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 515, n. 19 (1982)

decision in Ford Motor Co. v. Department of Treasury, [323 U.S. 459 (1945)] [] that the

Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it

need not be raised in the trial court.”).

Here, the University raised immunity as a bar to Plaintiffs claims in both its initial

Motion to Dismiss and its Answer. The fact that the University failed to make a substantive

waiver argument prior to its summary judgment briefing does not constitute waiver. “[E]ven if

the court were to assume, for the sake of argument, that consent count be inferred from the

failure to raise the objection at the outset of the proceedings—a standard [the Supreme Court]

has not adopted—consent would still not be found here since [Defendant] raised the issue in its

answer.” Raygor v. Regents of Univ. of Minnesota, 534 U.S. 533, 546 (2002). Thus, the

University’s delay in raising this argument does not affect the applicability of immunity in this

case. The University is entitled to Eleventh Amendment immunity on Plaintiffs § 1983

procedural due process claim.

IV. Conclusion

For the reasons discussed above, the University’s Motion for Summary Judgment (Doc. #

44) is due to be granted. An Order consistent with this Memorandum Opinion will be entered

contemporaneously.

DONE and ORDERED this February 12, 2020.

UNITED STATES DISTRICT JUDGE

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