Cheng-chien Chang, Appellant, v. Virginia Polytechnic Institute and State University,commonwealth of Virginia, Appellees, 813 F.2d 400 (4th Cir. 1986)

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US Court of Appeals for the Fourth Circuit - 813 F.2d 400 (4th Cir. 1986) Submitted May 6, 1986. Decided Oct. 1, 1986

Before WINTER, Chief Judge, and RUSSELL and PHILLIPS, Circuit Judges.

Paul M. Donovan, Michael P. Walls (LaRoe, Winn & Moerman, on brief), for appellant.

Jane Brandt Bulbin, General Counsel and Special Assistant Attorney General, Virginia Polytechnic Institute and State University (Mary Sue Terry, Attorney General, Paul J. Forch, Jr., Senior Assistant Attorney General, on brief), for appellees.

PER CURIAM:


The plaintiff/appellant Cheng-Chien Chang, was enrolled as a fulltime graduate student in the department of Food Science and Technology at Virginia Polytechnic Institute and State University. Because of his behavior indicating that he might be a threat to the safety of the University community, Chang was requested by the University to have a psychiatric examination. When he refused to have an examination he was dismissed from the Graduate Program. He finally underwent psychiatric examinations by a psychiatrist of his own choosing and one selected by the University. The psychiatrists gave him satisfactory reports. He was then advised that he would be readmitted to the University. He, however, did not re-enroll at this time, but later he requested the University to consider him for readmission. This request was denied, because the plaintiff in the meantime was reported to have threatened the lives of a University faculty member and his family. Finally on May 10, 1984, he was banned from the campus of the University. Plaintiff then filed pro se an action for damages against the defendants/appellees Virginia Polytechnic Institute and State University and the Commonwealth of Virginia alleging violations of Title VI of the Civil Rights Act of 1964, 42 U.SC. 2000d, et seq., and the Rehabilitation Act of 1973, 29 U.S.C. 794. Because of his failure to appear at his deposition as properly noticed, his failure to respond to interrogatories properly filed and served, his failure to attend a pretrial conference set by the Court of which proper notice was given him, and his dilatoriness in proceeding with the prosecution of the case, the appellees filed a motion to dismiss for failure to prosecute, and on the further ground that the court lacked jurisdiction of his action for damages by virtue of the Eleventh Amendment to the United States Constitution. The motion of the defendants was granted based upon their Eleventh Amendment immunity. The plaintiff appeals.1  We affirm.

The Virginia Polytechnic Institute and State University has always been a state governmental institution which by statute "shall at all times be under the control of the General Assembly." V.C.A. Sec. 23-114. As such it enjoys immunity in damages under the Eleventh Amendment. The judgment of the district court is accordingly

AFFIRMED.

 1

Plaintiff retained counsel to represent him in this appeal