Filed: Aug. 02, 2002
Latest Update: Feb. 21, 2020
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit _ No. 01-31445 _ KENNETH G. HUNTER, Plaintiff-Appellant, VERSUS SOUTHERN UNIVERSITY, through, THE BOARD OF SUPERVISORS, DAMIEN EJIGIRI, VALENTINE JAMES, and BRENDA BIRKETT Defendants-Appellees. _ Appeal from the United States District Court for the Middle District of Louisiana, Baton Rouge 00-CV-869-D _ August 1, 2002 Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges. PER CURIAM:1 Kenneth G. Hunter appeals the dismissal of his lawsuit chall
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit _ No. 01-31445 _ KENNETH G. HUNTER, Plaintiff-Appellant, VERSUS SOUTHERN UNIVERSITY, through, THE BOARD OF SUPERVISORS, DAMIEN EJIGIRI, VALENTINE JAMES, and BRENDA BIRKETT Defendants-Appellees. _ Appeal from the United States District Court for the Middle District of Louisiana, Baton Rouge 00-CV-869-D _ August 1, 2002 Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges. PER CURIAM:1 Kenneth G. Hunter appeals the dismissal of his lawsuit challe..
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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 01-31445
___________________________
KENNETH G. HUNTER,
Plaintiff-Appellant,
VERSUS
SOUTHERN UNIVERSITY, through,
THE BOARD OF SUPERVISORS,
DAMIEN EJIGIRI,
VALENTINE JAMES, and
BRENDA BIRKETT
Defendants-Appellees.
___________________________________________________
Appeal from the United States District Court for the
Middle District of Louisiana, Baton Rouge
00-CV-869-D
__________________________________________________
August 1, 2002
Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:1
Kenneth G. Hunter appeals the dismissal of his lawsuit
challenging the termination of his employment as an associate
1
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
professor in the Nelson Mandela School of Public Policy and Urban
Affairs at Southern University. The district court dismissed
Hunter’s lawsuit for failure to timely file his opposition to the
defendants’ motion to dismiss under local rule 7.5M. We pretermit
the district court’s procedural ruling and affirm on the merits.
I.
Hunter alleges that he was terminated due to reverse
discrimination. He brought this suit alleging violations of 42
U.S.C. §§ 1981 and 1983 as well as the first, fourteenth, and
fifteenth amendments.
On August 22, 2001, defendants filed a motion to dismiss for
failure to state a claim upon which relief could be granted. Under
the court’s Local Rule 7.5M, parties wishing to oppose a motion
have twenty days to respond unless the court grants additional
time. The court granted Hunter’s September 12th motion for
extension of time to reply, extending the deadline to October 16th.
Plaintiff failed to meet this deadline. On October 18th, two days
after the deadline, Hunter’s counsel filed a motion for leave of
court to file a late opposition, which the court denied. The
district court granted defendants’ motion to dismiss on the basis
of Rule 7.5M and on the merits. Hunter appeals.
II.
The district court was entitled to consider appellee’s motion
to dismiss for failure to state a claim as an unopposed motion
because appellant failed to file a timely opposition to the motion.
On the merits, we agree with the district court that appellant’s
action should be dismissed as against Southern and the members of
the Board of Supervisors in their official capacity. Southern
University is an arm of the State and that entity along with its
Board of Supervisors when sued in their official capacity are
entitled to Eleventh amendment immunity.2
Appellant also sued the members of the Board of Supervisors in
their individual capacities. These defendants, of course, are
entitled to qualified immunity but we are unable to discern any
basis upon which the district court could have dismissed this
action against these defendants on a 12(b)(6) motion predicated on
qualified immunity.
Accordingly, we affirm the dismissal of Southern University
and its Board of Supervisors in their official capacity but vacate
the dismissal against the individual members of the Board of
Supervisors in their individual capacities. We must, therefore,
remand this action for further proceedings against the individual
members of the Board of Supervisors to the extent they are sued in
their individual capacities.
AFFIRMED IN PART. REVERSED IN PART AND REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.
2
See Richardson v. Southern University,
118 F.3d 450 (5th Cir.
1997).