United States District Court, D. Massachusetts
OPINION AND ORDER
A. O'Toole, Jr., United States District Judge
plaintiff, Modeline Telfort, is a former nursing student at
Bunker Hill Community College. After Telfort was dismissed
from Bunker Hill's nursing program, she brought suit
against the school, alleging that the school discriminated
against her on the basis of her national origin in violation
of Title VI of the Civil Rights Act, 42 U.S.C. § 2000,
et seq., and also breached its contract with her by
failing to abide by the requirements of its student handbook.
Bunker Hill now seeks to dismiss Telfort's breach of
contract claim, contending that the Eleventh Amendment bars
claims for relief against the Commonwealth of Massachusetts
or its entities based upon violations of state law.
Eleventh Amendment provides that “[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. As the Amendment has been interpreted, in the
absence of consent or waiver by the State, the Eleventh
Amendment also bars suits brought in federal court against a
State by its own citizens, regardless of the nature of the
relief sought by the claimants. Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984)
(citations omitted). “A state entity is similarly
immune from suit if it functions as an ‘arm of the
[S]tate.'” Surprenant v. Mass. Tpk. Auth.,
768 F.Supp.2d 312, 317 (D. Mass. 2011) (quoting
Coggeshall v. Mass. Bd. of Registration of
Psychologists, 604 F.3d 658, 662 (1st Cir. 2010); In
re Dupont Plaza Hotel Fire Litig., 888 F.3d 940, 942
(1st Cir. 1989)).
determine whether a state entity functions as an arm of the
State, the court applies a two-stage framework. Grajales
v. P.R. Ports Auth., 831 F.3d 11, 17-18 (1st Cir. 2016);
Fresenius Med. Care Cardiovascular Res., Inc. v. P.R.
& the Caribbean Cardiovascular Ctr. Corp., 322 F.3d
56, 68 (1st Cir. 2003). First, the court must determine if
“the [S]tate has indicated an intention- either
explicitly by statute or implicitly through the structure of
the entity-that the entity share the [S]tate's sovereign
immunity.” United States v. Univ. of Mass.,
Worcester, 812 F.3d 35, 39 (1st Cir. 2016) (quoting
Redondo Constr. Corp. v. P.R. Highway & Transp.
Auth., 357 F.3d 124, 126 (1st Cir. 2004)). “While
this survey is not controlled by a mechanical checklist of
pertinent factors, ” factors that are germane in the
state school context “include such things as the degree
of state control over the entity, the way in which the entity
is described and treated by its enabling legislation and
other state statutes, how state courts have viewed the
entity, the functions performed by the entity, and whether
the entity is separately incorporated.” Id.
(citing Fresenius, 322 F.3d at 62 nn. 5-6, 65 n.7);
see also Grajales, 831 F.3d at 17-18; Shocrylas
v. Worcester State Coll., Civil Action No. 06-40278-FDS,
2007 WL 3332818, at *2-3 (D. Mass. Oct. 29, 2007) (citations
omitted). “[I]f the analysis of these structural
indicators reveals that ‘the [S]tate clearly structured
the entity to share its sovereignty, ' then the entity is
an arm of the [S]tate and the analysis is at an end.”
Grajales, 831 F.3d at 18 (quoting
Fresenius, 322 F.3d at 68). But, if they
“point in different directions, ” the court must
proceed to the second stage to consider whether damages would
be paid from the public treasury in the event of an adverse
judgment. Id. (quoting Fresenius, 322 F.3d
the question focuses on whether Bunker Hill functions as an
arm of the Commonwealth. As neither party contends that the
Commonwealth explicitly expressed its intention that Bunker
Hill share its Eleventh Amendment immunity, the answer hinges
on whether the structural indicators point in that direction.
universities ‘usually are considered arms of the
[S]tate.'” Univ. of Mass., Worcester, 812
F.3d at 40 (quoting 13 Charles Alan Wright, et al.,
Federal Practice and Procedure § 3524.2, at
325-26 & n.42 (3d ed. 2008)). Indeed, another court in
this District recently reviewed the applicable case law and
concluded that “with respect to Massachusetts state
universities and colleges, every court [in this District]
presented with the issue has concluded or assumed without
issue that the state university or college at issue was a
state agency for purposes of the Eleventh Amendment.”
Taite v. Bridgewater State Univ., No.
16-CV-10221-PBS, 2017 WL 1234101, at *5 (D. Mass. Feb. 17,
2017) (collecting cases), adopted by Order on Report
& Recommendations, No. 16-CV-10221-PBS (D. Mass. Mar. 13,
2017). This appears to include community colleges. See
id.; accord Campbell v. Bristol Cmty. Coll.,
Civil Action No. 16-11232-FDS, 2017 WL 722572, at *3 (D.
Mass. Feb. 23, 2017) (citations omitted) (concluding that
defendant community college was arm of Commonwealth and as
such was entitled to sovereign immunity); Cichocki v.
Mass. Bay Cmty. Coll., 199 F.Supp.3d 431, 438 (D. Mass.
2016) (noting that it was undisputed that the defendant
community college was “a state entity and therefore can
assert Eleventh Amendment protection”); Nasson v.
Van Winkle, Civ. A. No. 91-11823-WF, 1994 WL 175049, at
*3-4 (D. Mass. Apr. 19, 1994) (assuming defendant community
college was an arm of Commonwealth and dismissing school
without prejudice to renewal if plaintiff discovered evidence
suggesting otherwise). Although every school “must be
evaluated in light of its unique characteristics, ”
Irizarry-Mora v. Univ. of P.R., 647 F.3d 9, 14 (1st
Cir. 2011) (quoting Univ. of R.I. v. A.W. Chesterton,
Co., 2 F.3d 1200, 1204 (1st Cir. 1993)), I find the
weight of the authority and the reasoning in those cases are
I conclude that structural indicators point in the direction
that Bunker Hill functions as an arm of the Commonwealth,
see Grajales, 831 F.3d at 17-18; Fresenius,
322 F.3d at 68, and thus cannot be sued in federal court by a
private citizen for a violation of state law-in the
circumstances, the breach of contract alleged in the Count II
of the Complaint.
foregoing reasons, Bunker Hill's Partial Motion to
Dismiss Plaintiff's Amended Complaint (dkt. no. 25) is
GRANTED. Count II, the plaintiff's breach of contract
claim, is dismissed.
 For instance, Bunker Hill, like the
several campuses of the University of Massachusetts, the
state colleges, and the other community colleges in the state
educational system, fulfills the essential governmental
function of providing public higher education to the citizens
of the Commonwealth and beyond. Shocrylas, 2007 WL
3332818, at *5 (citations omitted). It is governed by an
eleven-member board of trustees, ten of whom (including the
chairman) are appointed by the governor. Mass. Gen. Laws ch.
15A §§ 21, 22. The board must prepare and submit a
detailed budget in the form and manner directed by the
governor and legislature, accounts under the board's
control are audited regularly by the state auditor, and the
board must submit an annual financial report covering all
receipts and expenditures to the governor and legislature and
a monthly statement of receipts and expenditures to the state
comptroller. Mass. Gen. Laws ch. 73 §§ 10, 11, 13.
The “elaborate system” of state controls and
oversight “strongly indicates arm-of-the state
status.” See Univ. of Mass., Worcester, 812
F.3d at 41.
 Neither party contends that the
Commonwealth has waived immunity for or consented to federal
suits of the state law claim pleaded in the
 The plaintiff requests leave to amend
her complaint in the event that Bunker Hill prevails on its
motion. Although leave to amend should be “freely
given, ” Fed.R.Civ.P. 15(a), permission may be denied
on various grounds, including futility. The plaintiff has not
articulated a basis for amendment or any particular
alterations that would permit her to circumvent Bunker
Hill's immunity from her breach of contract claim in this
Court. Therefore, the plaintiff's request is denied
without prejudice. Should she wish to file a proper motion
for leave to amend, ...