*

Under § 205(a)(5) of the E-Government Act of 2002 and the

definition of “written opinion” adopted by the Judicial Conference

of the United States, this is a “written opinion[ ] issued by the

court” because it “sets forth a reasoned explanation for [the]

court’s decision.” It has been written, however, primarily for the

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KATHY PALO, as Administratrix §

of the Estate of Frank Nelson §

Palo, Jr., §

 §

Plaintiff, §

 § Civil Action No. 3:05-CV-0527-D

VS. §

 §

DALLAS COUNTY, AND LUPE §

VALDEZ, in her Official §

Capacity as Sheriff of §

Dallas County, Texas, §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

In response to this civil rights action that plaintiff has

initiated arising from the death of a detainee in the custody of

Dallas County, defendant Dallas County initiated a third-party

action against University of Texas Medical Branch at Galveston

(“UTMB”), who by contract provided health care related services to

Dallas County inmates. UTMB moves to dismiss, contending it is

immune from suit under the Eleventh Amendment and is entitled to

immunity under state law. The court reaches only the issue of

Eleventh Amendment immunity, treats the motion as filed under Fed.

R. Civ. P. 12(b)(1) rather than Rule 12(b)(6), and dismisses

without prejudice Dallas County’s third-party action against UTMB.*

 

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parties, to decide issues presented in this case, and not for

publication in an official reporter, and should be understood

accordingly.

- 2 -

Dallas County does not dispute that UTMB is a state agency

that can be entitled to Eleventh Amendment immunity. It contends

instead that UTMB waived such immunity by entering into a contract

with Dallas County under which it agreed to indemnify the County,

and by acting in a proprietary, for-profit capacity under which it

received substantial compensation. “A State’s consent to being

sued in federal court must ‘be unequivocally expressed[.]’”

Martinez v. Texas Dep’t of Criminal Justice, 300 F.3d 567, 575 (5th

Cir. 2002). Even assuming arguendo that UTMB by the contractual

indemnification clause waived its immunity from suit and

liability——an issue the court does not now decide——it did not

unequivocally waive its immunity from suit in federal court. The

“test for determining whether a State has waived its immunity from

federal-court jurisdiction is a stringent one.” Coll. Sav. Bank v.

Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675

(1999) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234,

241 (1985)). Generally, Eleventh Amendment immunity is waived if

the state voluntarily invokes federal court jurisdiction or makes

a clear declaration that it intends to submit itself to such

jurisdiction. See id. at 675-76. A state does not consent to suit

in federal court merely by consenting to suit in the courts of its

own creation, nor does it consent to suit in federal court merely

 

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- 3 -

by stating its intention to sue and be sued. Id. at 676. The

court holds that, because UTMB did not expressly consent to be sued

in federal court, it did not contractually waive its Eleventh

Amendment immunity. See Iowa Valley Cmty. Coll. Dist. v. Plastech

Exterior Sys., Inc., 256 F.Supp.2d 959, 962-64 (S.D. Iowa 2003)

(holding, inter alia, that regardless whether state department had

waived immunity from suit in state court, it did not by entering

into contract waive Eleventh Amendment immunity, and dismissing

third-party action seeking indemnity from state department).

The court does not reach UTMB’s other arguments because it

lacks jurisdiction over Dallas County’s third-party action against

it. See Pennhurst State Sch.& Hosp. v. Halderman, 465 U.S. 89, 99

n.8 (1984) (holding Eleventh Amendment “deprives federal courts of

any jurisdiction to entertain” claims entitled to immunity

thereunder). UTMB’s motion should be construed as one filed under

Rule 12(b)(1), and the third-party action should be dismissed

without prejudice. See Warnock v. Pecos County, Tex., 88 F.3d 341,

343 (5th Cir. 1996). If Dallas County re-files this action in

Texas state court, it will be that court’s decision whether UTMB is

entitled to immunity from suit or liability. 

 

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- 4 -

UTMB’s May 27, 2005 motion to dismiss is granted to the extent

set forth, and Dallas County’s third-party action is dismissed

without prejudice by judgment filed today.

SO ORDERED.

August 29, 2005.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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