Opinion
No. 4:04-CV-374-A.
March 11, 2005
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of defendants Gary Johnson, Bryan Collier, Lawrence Myers, Vicki Hallman, Karen Chapman, Rachel Humphrey, Chantel Blackmon, Latitia Murff, Debbie White-Buck, and James McKee, III (collectively "moving defendants") for partial dismissal under Rules 12(b)(1) and 12(b)(6). Having reviewed the motion, to which plaintiff failed to respond, and applicable authorities, the court concludes it should be granted. Moreover, the court is sua sponte dismissing certain claims for failure to state a claim upon which relief can be granted.
A district court may dismiss a complaint, sua sponte, for failure to state a claim upon which relief can be granted. See, e.g., Small Engine Shop, Inc. v. Cascio, 878 F.2d 883, 887 (5th Cir. 1989).
I. Plaintiff's Claims
On May 17, 2004, plaintiff, Isaac Smith, filed a complaint, which remains his active pleading, against the moving defendants, and other defendants, in their individual and official capacities. Plaintiff makes the following allegations in the first paragraph of his complaint:
Plaintiff invokes this Court's jurisdiction under 28 U.S.C. sec. 1331 and 1343 on the ground that this action arises under the Fourteenth Amendments to the U.S. Constitution and under 42 U.S.C. sec. 1981, 1983, 1985, and 1986. Plaintiff invokes this Court Jurisdiction under Title VII of the Civil Rights Act of 1964, U.S.C.sec. 2000e et seq. Plaintiff invokes this Court's pendent jurisdiction with respect to his claims based on the Common Law of Texas. Plaintiff invokes this Court's jurisdiction under the Declaratory Judgment Act, 28 U.S.C. sec. 2201 and 2202.
Compl. at 1 (errors in original).
Most of the text consists of descriptions of (a) plaintiff's employment history, (b) a 1996 race discrimination complaint he filed and pursued through court, (c) accusations that were made against him from time to time in the years 2001 and 2002 by fellow employees of inappropriate sexual conduct, (d) events that occurred as a consequence of those accusations, (e) actions plaintiff took as a result of those events, (f) a 2003 discrimination complaint he filed, and (g) information he has acquired about accusations made against him and actions that were taken against him on the basis of those accusations. The factual allegations, many of which are conclusory in nature, are followed by his two claims for relief, which are worded as follows:
First Claim For Relief
Second Claim for Relief
29. The Defendant, acting under color of Texas Law subjected Plaintiff to deprivations of the following rights, privileges and immunities secured by the Constitution and Laws of the United States when they decided to demote Plaintiff for Discourteous Conduct of a Sexual Nature on December 10, 2002. In this case the Reprimanding Authority, Vicki Hallman denied Plaintiff the opportunity and right to confront, cross examine opposing witnesses at the Employee Hearing. The Agency Equal Employment Opportunity Section Director, Larry Hooker deprived Plaintiff of notice to the substance of the relevant supporting evidence and an opportunity to submit a written response to include statements from rebuttal witnesses that plaintiff may have called. The process deprived plaintiff of his right to Equal Protection of the Law guaranteed by intentionally basing their decision to an impermissible extent on Plaintiff's race, color and gender.
30. Plaintiff reasonably relied to his detriment upon due process based upon Administrative facts concerning the circumstantial evidence which was formed on the basis of hearsay of particular parties. Where as here, a decision was made to sustain allegations of "Discourteous Conduct of a Sexual Nature" toward Plaintiff based on generalized facts. The Defendants have damage Plaintiff in the manner set forth in Paragraphs 19, 20, 21, 22, 23, 24, 26, and 27 above which is incorporated here in by reference, and Plaintiff is entitled to recover damages as a result of the foregoing Breaches of Duty.Id.
Because of the peculiar wording of the complaint, the court is faced with something of a mystery as to the nature of plaintiff's causes of action. The matter is further confused by a document plaintiff filed November 19, 2004, in response to an order the court signed November 2, 2004, directing plaintiff to file a reply that alleges with particularity all facts supporting, as to each defendant, any contention of plaintiff that the defendant's plea of qualified immunity cannot be sustained. Plaintiff's November 19 reply is replete with allegations that do not seem to bear on the issues to which the reply was to be directed. However, the court is not going to treat any of the allegations in the reply as expanding upon the claims for relief alleged by plaintiff in the complaint.
And, the court has concluded that the statement made by plaintiff in the opening paragraph of his complaint does not accurately define his potentially viable claims for relief. The court is treating the allegations made by plaintiff under the headings "First Claim For Relief" and "Second Claim for Relief" as fully describing all of plaintiff's potentially viable claims for relief.
As the court reads plaintiff's First Claim for Relief, he is claiming that his right to equal protection of the law under the Constitution of the United States was violated by procedures followed in the proceedings that led to his demotion on December 10, 2002, for discourteous conduct of a sexual nature. Specifically, he asserts in his First Claim for Relief that Hallman, as "the Reprimanding Authority," id. at 16, "denied [him] the opportunity and right to confront and cross-examine opposing witnesses at the Employee Hearing," and that Hooker, as the Agency Equal Employment Opportunity Section Director, "deprived [him] of notice to the substance of the relevant supporting evidence and an opportunity to submit a written response to include statements from rebuttal witnesses that plaintiff may have called," id. Plaintiff then asserts that the conduct he describes in his First Claim for Relief deprived him of "his right to Equal Protection of the Law guaranteed by intentionally basing their decision to an impermissible extent on Plaintiff's race, color and gender." Id. Summed up, the First Claim for Relief is that Vicki Hallman and Larry Hooker took the procedural actions about which plaintiff complains based, at least in part, on his race, color, and gender, and that by doing so they deprived plaintiff of his right to equal protection of the law. The court takes the First Claim for Relief as an attempt by plaintiff to assert claims under 42 U.S.C. §§ 1981, 1983, 1985, and 1986 against defendants Hallman and Hooker in their official and individual capacities.
The court's reading of plaintiff's Second Claim for Relief is that plaintiff is complaining that his Fourteenth Amendment due process rights were violated by the procedures related to his demotion. More specifically, he seems to be complaining that the action taken against him should not have been based on circumstantial evidence in the form of hearsay or on generalized facts. The court interprets plaintiff's incorporation by reference in the Second Claim for Relief of paragraphs 19-24 and 26-27 as being a technique employed by plaintiff to provide more specificity as to the due process claim he asserts in his Second Claim for Relief. While there is uncertainty, the court assumes that the Second Claim for Relief asserts a claim against all defendants in their official and individual capacities. The court assumes that plaintiff intends by his Second Claim for Relief to assert claims under 42 U.S.C. §§ 1981, 1983, 1985, and 1986.
II. Grounds of the Motion
The moving defendants urge in their motion that: (1) plaintiff's non-Title VII claims for damages asserted against the moving defendants in their official capacities are barred by Eleventh Amendment immunity; (2) plaintiff's non-Title VII claims for declaratory and injunctive relief asserted against the moving defendants in their official capacities moot; (3) plaintiff's non-Title VII claims against the moving defendants, with the exception of equal protection claims against two of them, are without merit as a matter of law; (4) the moving defendants, sued in their individual capacities, are not proper defendants for Title VII claims; and (5) the moving defendants other than Gary Johnson, sued in their official capacities, are not proper defendants for Title VII claims. The motion seems to assume,arguendo, that by his complaint plaintiff has alleged Title VII and state court defamation claims.
III. Applicable Legal Standards
A motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to challenge the subject matter jurisdiction of the district court to hear a case. Fed.R.Civ.P. 12(b) (1). Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.
Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). The plaintiff constantly bears the burden of proof that jurisdiction does in fact exist at all stages of the litigation. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).
The standards for deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6) are well settled. The court's task is to determine "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A complaint "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court construes the allegations of the complaint favorably to the pleader. Scheuer, 416 U.S. at 236. However, the court does not accept conclusory allegations or unwarranted deductions of fact as true. Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994); Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).
IV. Analysis
A. The Court is Treating the Official-Capacity Claims Against Defendants as Claims Against Texas Department of Criminal Justice, and is Substituting It as a Defendant as to Those Claims.
Official-capacity suits are only another way of pleading an action against the entity of which the individual is an employee or agent. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Therefore, plaintiff's official-capacity claims against the moving defendants are properly construed as claims against their employer, Texas Department of Criminal Justice ("TDCJ"). The moving defendants have requested that the court treat TDCJ as a defendant in this action. Mot. at 6, 10. The court has concluded that, sua sponte, the court should substitute TDCJ for all moving defendants in their official capacities as a defendant in this action, and that the official-capacity claims against all moving defendants should be dismissed from the case without prejudice. From this point forward the court is treating all the official-capacity claims against the moving defendants as claims against TDCJ.
B. The Eleventh Amendment Bars Plaintiff's Claims Against TDCJ.
TDCJ is a department of the State of Texas. Absent consent by the state, abrogation by Congress, or an exception carved out by the Supreme Court, a state and its departments are immune from suits for recovery of damages brought in federal court by her own citizens as well as those by citizens of another state. Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Immunity has not been waived in this case, and the court has not been directed to authority holding that Congress has abrogated immunity with regard to plaintiff's non-Title VII claims. But see, e.g., Foulks v. Ohio Dep't of Rehab. Corr., 713 F.2d 1229 (6th Cir. 1983) (holding § 1981 action barred by Eleventh Amendment); Clark v. Tarrant County, 798 F.2d 736 (5th Cir. 1986) (holding § 1983 action barred by Eleventh Amendment); Seibert v. Oklahoma, 867 F.2d 591, 594 (10th Cir. 1989) (holding § 1985 and § 1986 actions barred by Eleventh Amendment). Therefore, to the extent that plaintiff asserts non-Title VII claims for damages against TDCJ (via the official-capacity claims), the court concludes such claims should be dismissed for lack of subject matter jurisdiction. United States v. Tex. Tech Univ., 171 F.3d 279, 285-86 n. 9 (5th Cir. 1999).
Congress has abrogated Eleventh Amendment immunity with regard to Title VII. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
C. Plaintiff's Claims, If Any, for Injunctive and Declaratory Relief.
The moving defendants also argue that plaintiff's non-Title VII claims seeking injunctive and declaratory relief from them in their official capacities have become moot, because plaintiff has retired from TDCJ. Defendants provide no evidence that plaintiff has retired. However, the court concludes that such claims, if indeed plaintiff is making claims of that kind, are also barred by Eleventh Amendment immunity. Under the Ex Parte Young exception, the Eleventh Amendment does not foreclose claims in federal courts against a state official insofar as a party seeks prospective injunctive relief against such officials on the ground that they are allegedly acting in their official capacities in a manner inconsistent with federal constitutional restraints." Clay v. Texas Women's University, 728 F.2d 714, 715 (5th Cir. 1984) (emphasis added). In determining whether the Ex parte Young exception is applicable, "a court need only conduct a `straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.'" Verizon Md. Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296 (1997)). In this case, plaintiff has failed to alleged on ongoing violation of federal law or that the declaratory relief he seeks is remedial in nature. Therefore, to the extent that plaintiff asserts non-Title VII claims seeking injunctive or equitable relief against the moving defendants in their official capacities, such claims also should be dismissed for lack of subject matter jurisdiction.
Ex parte Young, 209 U.S. 123 (1908).
D. Non-Title VII Claims Against Moving Defendants in Their Individual Capacities.
1. § 1981 Claims
The moving defendants, citing Jones v. Alcoa, Inc., 339 F.3d 359, 362 (5th Cir. 2003), argue that the protection of § 1981 extends only "to the formation of contracts, not to problems that are claimed to have arisen from conditions of continuing employment." Mot. at 12. However, Jones dealt with claims based on actions that occurred between 1953 and 1970, well before § 1981 was amended in 1991. Jones, 339 F.3d at 361-62. Because all of the acts alleged by plaintiff occurred after 1991, his complaint falls under the current version of § 1981, which states in part:
For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.42 U.S.C. § 1981 (b). Therefore, the court concludes that the moving defendants' argument is without merit. Nevertheless, to the extent that plaintiff asserts § 1981 claims against the moving defendants, such claims should be dismissed as plaintiff has failed to allege that the actions of such defendants were motivated by racial animus. See 42. U.S.C. § 1981 (a); Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir. 1997). The court does not consider the conclusory allegations in the final sentence of plaintiff's First Claim for Relief to be sufficient to allege that the conduct plaintiff specifically describes was motivated by racial animus.
2. § 1983 Claims
To prevail on § 1983 claims alleging due process violations related to employment, a plaintiff must show that he has a protected interest in his employment. See Fowler v. Smith, 68 F.3d 124, 127 (5th Cir. 1995); Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th Cir. 1993). The moving defendants again contend that "[p]laintiff has not shown in either his complaint or [r]eply that he has any property interest in employment, and, given that TDCJ employees are hired at-will, he will be unable to make such a showing." Mot. at 11. While there is no evidence that TDCJ employees are hired at-will, plaintiff has failed to allege any facts from which the court could conclude that he had a protected interest in his employment at any relevant time.
For plaintiff to prevail on his equal protection claims regarding the proceedings that resulted in his demotion, he would have to allege that he was treated differently than similarly situated members of another group or other individuals. See Brennan v. Stewart, 834 F.2d 1248, 1257 (5th Cir. 1988). The conclusory allegations of plaintiff under his First Claim for Relief are not sufficient for that purpose.
3. § 1985 and § 1986 Claims
In the Fifth Circuit, a plaintiff bringing a claim under § 1985(3) must allege that:
Subsections (1) and (2) of § 1985 clearly are inapplicable to plaintiff's complaint.
(1) the defendants conspired (2) for the purposes of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, and (3) one or more of the conspirators committed some act in furtherance of the conspiracy; whereby (4) another person is injured in his person or property or deprived of having and exercising any right or privilege of a citizen of the United States; and (5) the action of the conspirators is motivated by a racial animus.Wong v. Stripling, 881 F.2d 200, 202-03 (5th Cir. 1989).
The moving defendants argue that plaintiff's § 1985 claims are without merit because "[a]n employer and its employees comprise a single legal entity which cannot conspire with itself." Mot. at 12 (citing Hilliard v. Ferguson, 30 F.3d 649, 653 (5th Cir. 1994)); see also Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998). The court agrees. In addition, plaintiff has failed to allege any facts that would support a finding of a conspiracy on the part of the moving defendants. Therefore, the court concludes that all claims brought under § 1985 should be dismissed. Moreover, plaintiff's failure to state a claim under § 1985 requires dismissal of the dependent claims brought under § 1986. See McIntosh v. Arkansas Republican Party-Frank White Election Committee, 766 F.2d 337, 340 (8th Cir. 1985); Dooley v. Reiss, 736 F.2d 1392, 1396 (9th Cir. 1984).
4. Claims, If Any, Under Texas Law
The moving defendants assume that plaintiff asserts defamation claims against one or more of them. The court questions that plaintiff actually has made claims of that kind. However, if the court assumes, arguendo, that plaintiff has intended to plead defamation claims against one or more of the defendants, the dates shown in the complaint establish that he cannot successfully assert such a claim. Defamation claims are subject to a one-year statute of limitations. See Tex. Civ. Prac. Rem. Code § 16.002(a) (Vernon 2002). The allegations of the complaint affirmatively establish that the things said or written about plaintiff of which he might complain were said and written during or before the year 2002. Because plaintiff filed his complaint on May 14, 2004, any defamation claims he might urge are time-barred. See id.
E. Title VII.
The moving defendants argue that they are not proper defendants in their individual capacities for what they assume to be Title VII claims. Only employers can be liable under Title VII. Grant v. Lone Star Gas Co., 21 F.3d 649, 652 (5th Cir. 1994); see also 42 U.S.C. § 2000e-2(a)(1). Although Title VII defines "employer" to include "any agent" of the employer, see 42 U.S.C. § 2000e(b), the Fifth Circuit "does not interpret the statute as imposing individual liability for such a claim."Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir. 1999); see also Harvey v. Blake, 913 F.2d 226, 227-28 (5th Cir. 1990) (holding that a Title VII plaintiff may not recover against a public employee in his individual capacity). Therefore, to the extent that plaintiff's complaint asserts Title VII claims against the moving defendants in their individual capacities, such claims should be dismissed.
Moreover, the court sua sponte has concluded that plaintiff's complaint does not actually allege a Title VII claim against anyone. Therefore, the court is ordering dismissal of any purported Title VII claim against the moving defendants in their individual capacities and against TDCJ (via the official-capacity claims). The allegations made by plaintiff in paragraph 25 of the complaint, Compl. at 11, that he filed a racial discrimination charge against TDCJ with the EEOC and that the EEOC investigated the claim, issued a letter of no findings on the merits of the charges, dismissed the charge, and issued a Notice of Right to Sue letter, are not sufficient to allege a Title VII cause of action against any of the defendants. Plaintiff alleges no specific facts from which, if believed, the court could conclude that any defendant or TDCJ took any action against him because of his race or gender. Therefore, any purported Title VII claim of plaintiff is being dismissed for failure to state a claim.
F. Miscellaneous.
The failure of the court to discuss some of the theories urged by the moving defendants in support of their motion to dismiss is not to be taken as any indication that the court has concluded that those theories are without merit. The court simply feels that there was no need to reach and discuss those theories in order to dispose of plaintiff's claims. To whatever extent the court has granted relief beyond the relief sought by the moving defendants, the court has exercised its power to dismiss a complaint, sua sponte, for failure to state a claim upon which relief can be granted. See Small Engine Shop, Inc. v. Cascio, 878 F.2d 883, 887 (5th Cir. 1989).
V. ORDER
For the reasons discussed,
The court ORDERS that all claims asserted by plaintiff against the moving defendants in their individual capacities and all claims asserted by plaintiff against TDCJ (via plaintiff's official-capacity claims) be, and are hereby, dismissed.
The court further ORDERS that all claims asserted against the moving defendants in their official capacities be, and are hereby, dismissed without prejudice.
The court further ORDERS that the clerk show on her records that TDCJ is now a defendant in this action.