                           UNITED STATES COURT OF APPEALS
                                    FIFTH CIRCUIT

                                           ____________

                                           No. 98-30430
                                           ____________


               JOHN POULLARD,


                                               Plaintiff-Appellee,

               versus


               JOSEPH TURNER, Captain; LONNIE EDMONDS, Lieutenant;
               MICHAEL LEVATINO, Lieutenant; DON THAMES, Sergeant; and
               MICHAEL LOGAN, Sergeant,


                                               Defendants-Appellants.



                           Appeal from the United States District Court
                              for the Middle District of Louisiana
                                          (94-CV-777)


                                            June 7, 1999

Before REAVLEY, JOLLY and EMILIO M. GARZA, Circuit Judges.*

PER CURIAM:
       Joseph Turner, Lonnie Edmonds, Michael Levatino, Don Thames, and Michael Logan (“the

defendants”), appeal the denial of their motion for summary judgment asserting Eleventh Amendment

immunity. We affirm.

       John Poullard, a Louisiana inmate, filed suit against the defendants, all of whom are Louisiana

correctional officers, in their “[i]ndividual and [p]ersonal” capacities. He alleged that Turner,

Edwards, and Levatino beat him in retaliation for lawsuits that he was prosecuting, and that Thames



   *
       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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH Cir. R. 47.5.4.
and Logan failed to stop the beating. Based on his allegations, Poullard asserted that the defendants

had transgressed the Eighth Amendment’s prohibition against cruel and unusual punishment, and had

committed the intentional tort of battery, in violation of state law.1

       The defendants filed a motion for summary judgment on the battery claim.2 The Magistrate

Judge, to whom the district court had referred all pretrial matters, recommended denial of the motion.

The defendants objected. The district court overruled the objection, and denied the motion for

summary judgment. The defendants timely appealed.3

       We review the district court’s refusal to grant the defendants Eleventh Amendment immunity

de novo.4 See Ussery v. Louisiana ex rel. La. Dep’t of Health & Hosps., 150 F.3d 431, 434 (5th Cir.

1998), cert. dismissed, ___ U.S. ___, 119 S. Ct. 1161, ___ L. Ed. 2d ___ (1999). The Eleventh

Amendment bars suits in federal court against state officials where the state is the real, substantial

party in interest. See Hughes v. Savell, 902 F.2d 376, 378 (5th Cir. 1990). The state is the real party


   1
       Under Louisiana law, a battery is “[a] harmful or offensive contact with a person, resulting
from an act intended to cause the plaintiff to suffer such a contact.” Caudle v. Betts, 512 So.2d 389,
391 (La. 1987).
   2
       The defendants filed a “Statement of Undisputed Facts” in support of their motion for
summary judgment. See M.D. LA. R. 2.09 (1996). The Statement recited that Pollard was a
Louisiana inmate and that each of the defendants was an employee of the Louisiana Department of
Public Safety and Corrections. Because Poullard did not object, the facts in the Statement were
deemed admitted. See M.D. LA. R. 2.10 (1996). Besides the Statement, the Magistrate Judge
examined the allegations in Poullard’s complaint in reviewing the motion for summary judgment.
On appeal, the defendants also point to the pretrial orders, which respectively lay out each side’s
version of events.
  3
        The defendants’ appeal concerns a non-final decision. The collateral order doctrine provides
us with jurisdiction to hear their appeal. See Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999)
(appeal of non-final decision on Eleventh Amendment immunity).
   4
        We have characterized Eleventh Amendment immunity as an issue of subject-matter
jurisdiction. See United States v. Texas Tech Univ., 171 F.3d 279, 286 n.9 (5th Cir. 1999).
Consequently, we have held that a motion to dismiss for lack of subject-matter jurisdiction, not a
motion for summary judgment, is the proper vehicle for raising an Eleventh Amendment defense. See
Voison’s Oyster House, Inc. v. Guidry, 799 F.2d 183, 188-89 (5th Cir. 1986). The defendants have
failed to heed this holding in raising their Eleventh Amendment defense in a summary judgment
motion. This mistake causes no difficulty. We, like the Magistrate Judge and district court apparently
did, treat the motion for summary judgment as a motion to dismiss for lack of subject-matter
jurisdiction based on the complaint’s allegations and the undisputed facts. See id. at 188 n.5.

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in interest if the decision rendered in a case will operate against the sovereign, expending itself on the

public treasury, interfering with public administration, or compelling the state to act or refrain from

acting. See id. at 378. Under this reasoning, a claim that a state official violated state law in carrying

out his official responsibilities is a claim against the state. See id. Therefore, when a plaintiff accuses

a state official of violating state common law when acting in the acting in the course and scope of

their employment, the Elevent h Amendment prevents him from raising the claim in federal court

regardless of whether he seeks damages or injunctive relief, and regardless of whether he invokes the

court’s original or supplemental jurisdiction. See id. We look to state law to determine if a state

official’s conduct is within the course and scope of his employment. See id. at 379; Goss v. San

Jacinto Junior College, 588 F.2d 96, 98 (5th Cir. 1979).

        The defendants argue that the Eleventh Amendment bars Poullard’s battery claim because

Poullard alleges that they violated state common law when acting in the course and scope of their

employment. In support of their contention, they point to Louisiana’s rule of vicarious liability, which

provides that “an employer is liable for a tort committed by his employee if, at the time, the employee

was acting within the course and scope of his employment.” Baumeister v. Plunkett, 673 So.2d 994,

996 (La. 1996); see LA. CIV. CODE art. 2320 (West 1997) (“Masters and employers are answerable

for damage occasioned by their servants and overseers, in the exercise of the functions in which they

are employed.”).5 Certain conditions must prevail for this rule to apply:

        [I]n order for an employer to be vicariously liable for the tortious acts of its employee
        the “tortious conduct of the [employee must be] so closely connected in time, place,
        and causation to his employment duties as to be regarded as a risk of harm fairly
        attributable to the employer’s business, as compared with conduct instituted by purely
        personal considerations entirely extraneous to the employer’s interest.”

Baumeister, 673 So.2d at 996. Therefore, vicarious liability attaches only if the employee commits

an intentional tort (1) on business premises (2) during work hours (3) while acting within the ambit

of his assigned duties and (4) in furtherance of his employer’s objective. See id.; see also LeBrane


   5
         Article 2320 has remained unchanged throughout the period during which this case has been
litigated. See LA. CIV. CODE ANN. art. 2320 (West 1997) (Historical and Statutory Notes).

                                                   -3-
v. Lewis, 292 So.2d 216, 218 (La. 1974) (identifying factors relevant to determining if an employer

is vicariously liable for his employee’s violent act).

        We find that Poullard does not plead facts that show the defendants’ conduct to have

occurred while the defendants were acting in the course and scope of their employment. The

defendants’ alleged conduct does not implicate Louisiana’s rule of vicarious liability. Neither beating

an inmate in retaliation for litigiousness nor allowing such an attack to occur comes within the scope

of a correctional officer’s assigned duties or furthers the state’s penological objectives.6 See

Baumeister, 673 So.2d at 997-98 (reviewing cases deciding whether or not an employer was

vicariously liable for its employee’s violent conduct). We therefore reject the defendants’ contention

that the Eleventh Amendment bars Poullard’s battery claim because they were acting in the course

and scope of their employment.7

        The district court correctly held that the Eleventh Amendment does not bar Poullard’s battery

claim. Accordingly, we affirm the denial of the defendants’ motion for summary judgment, and

remand this case for further proceedings.




   6
        We offer no opinion on whether or not Poullard has pled facts sufficient to state a battery
claim, a completely different matter.
   7
         The defendants also argue that the fact that the state is not obliged under Louisiana law to
indemnify them does not strip them of the protection of the Eleventh Amendment. See LA. REV.
STAT. ANN. § 13:5108.2(A)-(B) (West 1991) (denying indemnification for intentional tortfeasors).
In their view, the state being vicariously liable for their conduct dictates that they receive Eleventh
Amendment immunity. That it does not also indemnify them is irrelevant. As we conclude that the
state is not vicariously liable in this case, we need not decide how the lack of indemnification affects
the availability of Eleventh Amendment immunity.

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