                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0617n.06

                                           No. 18-5353

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  FILED
                                                                                Dec 13, 2018
 CURTIS LONG,                                            )                  DEBORAH S. HUNT, Clerk
                                                         )
        Plaintiff-Appellant,                             )
                                                         )      ON APPEAL FROM THE
 v.                                                      )      UNITED STATES DISTRICT
                                                         )      COURT FOR THE EASTERN
 STATE OF TENNESSEE,                                     )      DISTRICT OF TENNESSEE
                                                         )
        Defendant-Appellee.                              )



       Before: NORRIS, STRANCH, and LARSEN, Circuit Judges.

       LARSEN, Circuit Judge. Curtis Long sued the State of Tennessee in federal court under

42 U.S.C. § 1983, challenging the constitutionality of the Tennessee Sexual Offender and Violent

Sexual Offender Registration, Verification, and Tracking Act of 2004, Tenn. Code Ann. § 40-39-

201 et seq. Long also challenged this law in state court. The federal district court concluded that

Long’s state court proceeding warranted abstention under Younger v. Harris, 401 U.S. 37 (1971),

and so dismissed Long’s complaint without prejudice. Long timely appealed. Because Long

named only the State of Tennessee as a defendant, however, sovereign immunity precludes his

suit, and we lack jurisdiction to address the district court’s disposition of the Younger question.

Nevertheless, we vacate and remand for further proceedings.

       The Eleventh Amendment generally “deprives federal courts of subject-matter jurisdiction

when a citizen sues his own State.” Russell v. Lundergan-Grimes, 784 F.3d 1037, 1046 (6th Cir.

2015) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98–100 (1984)).
No. 18-5353, Long v. Tennessee


Tennessee argues—for the first time on appeal—that the Eleventh Amendment bars Long’s suit

against the state. Tennessee has not forfeited the argument by failing to raise it below, however,

because sovereign immunity “is a true jurisdictional bar” and not an affirmative defense. Id. We

review Tennessee’s entitlement to sovereign immunity de novo. Babcock v. Michigan, 812 F.3d

531, 533 (6th Cir. 2016).

       There are three exceptions to sovereign immunity’s jurisdictional bar, none of them

applicable here. First, a state may consent to suit. S & M Brands, Inc. v. Cooper, 527 F.3d 500,

507 (6th Cir. 2008). But Tennessee law provides that “[n]o court in the state shall have any power,

jurisdiction or authority to entertain any suit against the state.” Tenn. Code Ann. § 20-13-102.

Tennessee plainly has not consented to Long’s constitutional challenge, and Long does not suggest

otherwise. Second, Congress has limited authority to abrogate a state’s sovereign immunity in the

exercise of its Fourteenth Amendment enforcement power. See Kovacevich v. Kent State Univ.,

224 F.3d 806, 817 (6th Cir. 2000). But the Supreme Court has held that § 1983, the vehicle for

Long’s suit, does not allow claims directly against a state. See Will v. Mich. Dep’t of State Police,

491 U.S. 58, 64 (1989) (affirming “that a State is not a person within the meaning of § 1983”).

Third, under the Ex parte Young exception, “a federal court may, without violating the Eleventh

Amendment, issue a prospective injunction against a state officer to end a continuing violation of

federal law.” Price v. Medicaid Dir., 838 F.3d 739, 746–47 (6th Cir. 2016) (citing Ex parte Young,

209 U.S. 123, 159 (1908)). Although Long seeks only prospective relief, his failure to allege an

official-capacity claim against a state official prevents him from availing himself of the Ex parte

Young exception. Cf. Russell, 784 F.3d at 1046–47.

       Long argues that he was prejudiced by Tennessee’s failure to raise this issue earlier and

that this court should remand to the district court to allow him the opportunity to amend his



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No. 18-5353, Long v. Tennessee


complaint and substitute in the director of the Tennessee Bureau of Investigation as an official-

capacity defendant. We have allowed such remands in the past. See Berndt v. Tennessee, 796 F.2d

879, 884 (6th Cir. 1986) (remanding for district court to allow plaintiff a reasonable opportunity

to amend his complaint to substitute a proper defendant). And we agree to do so here.

       Accordingly, we VACATE the district court’s judgment and REMAND with instructions

to dismiss Tennessee as a defendant but to allow Long a reasonable opportunity to amend his

complaint to substitute an appropriate state official as the defendant.1




1
 In doing so, we do not comment on the merits of the Younger question or on whether Long’s
putative amendment would relate back under Federal Rule of Civil Procedure 15(c).
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