Doe v. The University of Texas Health Science Center At San Antonio et al

Western District of Texas, txwd-5:2019-cv-00453

Brief In Support of Motion to Dismiss

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8 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION MARY UTHSCA-PM DOE § Plaintiff, § § v. § § NO. 5:19-CV-00453-DAE THE UNIVERSITY OF TEXAS § HEALTH SCIENCE CENTER AT § SAN ANTONIO and § MARCEL NOUJEIM § Defendant. § DEFENDANTS' BRIEF IN SUPPORT OF MOTION TO DISMISS 8 TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................ ii TABLE OF AUTHORITIES ......................................................................................................... iv I. BACKGROUND .....................................................................................................1 II. SUMMARY OF ARGUMENT ...............................................................................2 III. LEGAL STANDARD ..............................................................................................3 A. Fed. R. Civ. P. 12(b)(1)............................................................................................3 B. Fed. R. Civ. P. 12(b)(6)............................................................................................3 IV. ANALYSIS ..............................................................................................................4 A. Doe's claims must be dismissed under the res judicata doctrine. ............................4 1. There was a final judgment on the merits by a court of competent jurisdiction..................................................................................5 2. UTHSC was a defendant in the state court case, and Dr. Noujeim is in privity with UTHSC. .............................................................5 3. The federal lawsuit raises the same claims or claims that could have been raised in the state court case..............................................6 B. Doe's Title IX claims against Dr. Noujeim must be dismissed for lack of subject-matter jurisdiction. ..........................................................................8 C. Doe's Title IX claims against UTHSC must be dismissed for failure to state a claim. .............................................................................................8 D. Doe's § 504 claims must be dismissed for failure to state a viable claim.......................................................................................................................10 E. Doe's ADA claims must be dismissed for failure to state a viable claim.......................................................................................................................11 F. Doe's ADA claims must be dismissed for lack of subject matter jurisdiction. ............................................................................................................11 1. There was no procedural due process violation. ........................................13 2. There was no substantive due process violation. .......................................13 3. There was no equal protection violation. ...................................................14 ii 8 4. Even if the Court finds a Title II violation but no constitutional violation, Title II still does not abrogate Defendants' immunity in this case. ............................................................14 G. Doe's § 1983 claims against UTHSC-SA must be dismissed for lack of subject-matter jurisdiction, or alternatively, failure to state a viable claim. ........................................................................................................15 H. Doe's § 1983 claims alleging First Amendment retaliation must be dismissed for failure to state a viable claim. ..........................................................16 I. Doe's "Breach of Educational Contract" claim must be dismissed based on a lack of subject matter jurisdiction or, alternatively, failure to state a viable claim. ................................................................................16 J. Doe's Texas Constitution claims must be dismissed for lack of subject-matter jurisdiction, or alternatively, failure to state a viable claim.......................................................................................................................18 K. Doe's claim for punitive damages must be dismissed because punitive damages are not recoverable under Title IX or § 1983............................19 V. CONCLUSION ......................................................................................................20 CERTIFICATE OF SERVICE ......................................................................................................21 EXHIBITS iii 8 TABLE OF AUTHORITIES Cases A.M. v. Wells Fargo Bank, N.A., No. 3:14-CV-2863-M, 2015 WL 493763 (N.D. Tex. Feb. 4, 2015) .......................................... 6 A.W. v. Humble Indep. Sch. Dist., 25 F.Supp.3d 973 (S.D. Tex. 2014), aff'd sub nom. King-White v. Humble Indep. Sch. Dist., 803 F. 3d 754 (5th Cir. 2015) ...................................................................................................... 9 Amstadt v. U.S. Brass Corp., 919 S.W.2d 644 (Tex. 1996)....................................................................................................... 4 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................................... passim Banik v. Tamez, No. 7:16-CV-00462, 2017 WL 2505653 (S.D. Tex. June 9, 2017).......................................... 19 Barr v. Resolution Trust Corp., 837 S.W.2d 627 (Tex. 1992)....................................................................................................... 7 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................................... 4 Bennett–Nelson v. Louisiana. Bd. of Regents, 431 F.3d 448 (5th Cir. 2005) .................................................................................................... 10 Benson v. City of Texas City, Tex., No. 3:13-CV-23, 2014 WL 948901 (S.D. Tex. Mar. 11, 2014) ................................................. 6 Cain v. Balcom, 109 S.W.2d 1044 (Tex. 1937)..................................................................................................... 4 City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex. 1995)..................................................................................................... 18 City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) .................................................................................................................. 19 Cronen v. Tex. Dep't of Human Servs., 977 F. 2d 934 (5th Cir. 1992) ................................................................................................... 15 Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540 (Tex. 2003)..................................................................................................... 17 iv 8 Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999) ................................................................................................................ 8, 9 Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211 (5th Cir. 1998) ...................................................................................................... 9 Duncan v. Univ. of Tex. Health Sci. Ctr. at Houston, 469 F. App'x 364 (5th Cir. 2012) (per curiam) ........................................................................ 12 Eiland v. Wolf, 764 S.W.2d 827 (Tex. App.—Houston [1st Dist.] 1989, writ denied) ..................................... 18 Estevez v. Nabers, 219 F.2d 321 (5th Cir. 1955) ...................................................................................................... 6 Farmer v. Brennan, 511 U.S. 825 (1994) .................................................................................................................... 9 Freeman v. United States, 556 F.3d 326 (5th Cir. 2009) ...................................................................................................... 3 Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591 (Tex. 2001)....................................................................................................... 17 Gipson v. Callahan, 18 F. Supp. 2d 662 (W.D. Tex. 1997) ...................................................................................... 18 Goins v. Hitchcock I.S.D., 191 F.Supp.2d 860, 868 (S.D. Tex. 2002), aff'd sub nom. Goins v. Hitchcock Indep. Sch, 65 F. App'x 508 (5th Cir. 2003) ............................................................................................... 16 Gonzalez v. Kay, 577 F.3d 600 (5th Cir. 2009) ...................................................................................................... 3 Hale v. King, 642 F.3d 492 (5th Cir. 2011) ........................................................................................ 11, 12, 13 Home Builders Ass'n of Mississippi, Inc. v. City of Madison, Miss., 143 F.3d 1006 (5th Cir. 1998) ................................................................................................ 3, 7 Hooker v. Dallas Indep. Sch. Dist., No. 3:09-CV-1289-D, 2010 WL 4025877 (N.D. Tex. Oct. 13, 2010) ..................................... 14 Jackson v. Texas S. Univ., 997 F.Supp.2d 613 (S.D. Tex. 2014) ........................................................................................ 17 v 8 Johnson v. Rodriguez, 110 F.3d 299 (5th Cir. 1997) .................................................................................................... 14 Kaufman Cnty. v. Combs, 393 S.W.3d 336 (Tex. App.—Dallas 2012, pet. denied) .......................................................... 18 Kentucky v. Graham, 473 U.S. 159 (1985) .................................................................................................................. 16 Klein v. Walker, 708 F. App'x 158 (5th Cir. 2017) ................................................................................................ 5 Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001)......................................................................................................... 5 Little v. Texas State Univ., No. A-05-CA-509 LY, 2005 WL 8157313 (W.D. Tex. Sept. 7, 2005) ...................................... 9 Matter of Hansler, 988 F.2d 35 (5th Cir. 1993) ........................................................................................................ 6 McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2002) ...................................................................................................... 1 Mt. Healthy City Sch. Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274 (1977) .................................................................................................................. 16 Nilsen v. City of Moss Point, Miss., 701 F.2d 556 (5th Cir. 1983) ....................................................................................................... 4 Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182 (2d Cir. 1996) ....................................................................................................... 3 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) .............................................................................................................. 15, 19 Pinkerton v. Spellings, 529 F.3d 513 (5th Cir. 2008) .................................................................................................... 11 Quern v. Jordan, 440 U.S. 332 (1979) .................................................................................................................. 15 Ramming v. United States, 281 F.3d 158 (5th Cir. 2001) ...................................................................................................... 3 vi 8 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757 (5th Cir. 2011) .................................................................................................. 1, 4 Raygor v. Regents of Univ. of Minn., 534 U.S. 533 (2002) .................................................................................................................. 19 Regents of Univ. of Michigan v. Ewing, 474 U.S. 214 (1985) .................................................................................................................. 13 Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001) .................................................................................................... 12 Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648 (5th Cir. 1997) ...................................................................................................... 9 Sanches v. Carrolton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156 (5th Cir. 2011) ...................................................................................................... 8 Seminole Tribe v. Fla., 517 U.S. 44 (1996) .................................................................................................................... 19 Shah v. Univ. of Tex. Sw. Med. Sch., 54 F. Supp. 3d 681 (N.D. Tex. 2014) ....................................................................................... 10 Simmang v. Tex. Bd. of Law Exam'rs, 346 F. Supp. 2d 874 (W.D. Tex. 2004) .................................................................................... 14 Sims v. City of Madisonville, 894 F.3d 632 (5th Cir. 2018) .................................................................................................. 4, 7 Tapp v. Univ. of Tex. Health Scis. Ctr. at Houston, No. CIV.A. H-11-2971, 2011 WL 6339819 (S.D. Tex. 2011), aff'd, 538 F. App'x 508 (5th Cir. 2013) ........................................................................................ 17, 18 Tennessee v. Lane, 541 U.S. 509 (2004) .................................................................................................................. 12 Teran v. Hagopian, No. CV-F-07-1476, 2009 WL 900743 (E.D. Cal. Mar. 31, 2009) ............................................. 7 Texas Water Rights Comm'n v. Crow Iron Works, 582 S.W.2d 768 (Tex. 1979)....................................................................................................... 4 United States v. Georgia, 546 U.S. 151 (2006) .................................................................................................................. 12 vii 8 Univ. of Houston Main Campus v. Simons, No. 01-02-00368-CV, 2002 WL 31388906 (Tex. App.—Houston [1st Dist.] Oct. 24, 2002, no pet.)................................................................................................................... 17 Warnock v. Pecos Cnty., Tex., 116 F.3d 776 (5th Cir. 1997).............................................................................................. 6 Warnock v. Pecos Cnty., Tex., 88 F.3d 341 (5th Cir. 1996) ............................................................................................. 15 Washburn v. Harvev, 504 F.3d 505 (5th Cir. 2007) .................................................................................................... 10 Washington v. Louisiana, 425 F. App'x 330 (5th Cir. 2011) ............................................................................................. 15 Weaver v. Texas Capital Bank N.A., 660 F.3d 900 (5th Cir. 2011) .................................................................................................. 4, 7 Wernecke v. Garcia, 591 F.3d 386 (5th Cir. 2009) ...................................................................................................... 1 Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) .............................................................................................................. 15 Williams v. Bd. of Regents of Univ. Sys. of Georgia, 477 F.3d 1282 (11th Cir. 2007) .................................................................................................. 8 Windham v. Harris Cnty., Tex., 875 F.3d 229 (5th Cir. 2017) .................................................................................................... 11 Statutes 29 U.S.C. § 794(a) ........................................................................................................................ 10 42 U.S.C. § 1983 ........................................................................................................................... 15 20 U.S.C. § 1682 ............................................................................................................................. 8 TEX. EDUC. CODE § 65.02(10) ................................................................................................ 15, 16 U.S.Const. Amend. XIV § 1 ......................................................................................................... 14 viii 8 TO THE HONORABLE SENIOR U.S. DISTRICT JUDGE DAVID A. EZRA: Defendants University of Texas Health Sciences Center at San Antonio ("UTHSC") and Dr. Marcel Noujeim ("Dr. Noujeim"), sued in his official capacity 1 (collectively "Defendants"), file this Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defendants submit the following in support thereof: I. BACKGROUND Plaintiff Mary Doe ("Doe") was a student in UTHSC's Oral and Maxillofacial Radiological Studies program. Doc. 2 ("Plaintiff's First Amended Complaint") at 1. Doe now claims that UTHSC did not allow her "to properly pursue her Masters of Science degree" because it allegedly "turned a blind eye to" a "smear campaign" and "sexual and retaliatory harassment" by Noujeim. Doc. 6 at ¶¶ 1, 20, 24. As a result, Doe claims, her "academic and professional life is in ruins," and she seeks $5,000,000.00. Id. at ¶¶ 32, 85. Even though she now avers that "[v]enue is proper in the Western District of Texas (San Antonio Division)" because "the underlying events took place in San Antonio," Doe filed her original petition against UTHSC nearly 8 months in the 224th Judicial District Court in Bexar County, seeking compensatory and punitive damages. See Ex. A. 2 UTHSC filed and set its plea to 1 Doe does not state whether Dr. Noujeim is sued in his official or individual capacity, but all references appear to indicate that he is sued in his official capacity only. Doc. 2 at ¶¶7, 10, 59 (stating that Dr. Noujeim is employed by UTHSC and may be served at his place of employment); ¶26(i) (alleging that he "exceeded the powers of his office"); ¶27 (alleging harassment "[o]n a departmental level"); ¶58 (alleging that Dr. Noujeim was a "state actor acting under the color of state law"). To the extent that Doe brings a claim against Dr. Noujeim in his individual capacity without making her intent clear, he possesses qualified immunity. "When a defendant invokes qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability of the defense." McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002); Wernecke v. Garcia, 591 F.3d 386, 392-93 (5th Cir. 2009) (holding that in order to satisfy the first prong of the qualified immunity analysis, a plaintiff may not simply assert that a federal constitutional or statutory violation has occurred; rather, the plaintiff must articulate facts in a highly particularized manner, which address the specific conduct of the state official whose behavior allegedly amounts to a constitutional injury). 2 Mary UTHSCSA-PM Doe v. The University of Texas Health Science Center at San Antonio, D-1-GN-18-002070, filed Dec. 7, 2018. The court may take judicial notice of matters of public record without converting a motion to dismiss to a motion for summary judgment. Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011). For ease of the Court, Defendants attach the pleadings, docket sheet and the state court's notes. 1 8 the jurisdiction for a hearing. See Exs. B and C. Counsel for Doe failed to respond or appear at the hearing. See Exs. D and E. On April 4, 2019, the 224th Judicial District Court in San Antonio dismissed Doe's lawsuit against UTHSC in its entirety and with prejudice. Ex. F. After the state lawsuit's dismissal, Doe filed her Original Complaint in this Court on April 30, 2019, alleging nearly identical facts and adding new claims from the state court lawsuit. Doc. 1. Doe amended her complaint twice on May 16, 2019. Docs. 3 and 6. Doe finally served UTHSC on August 6, 2019 and has yet to serve Dr. Noujeim. Doe alleges claims against UTHSC and Dr. Noujeim under Title IX of the Educational Amendments of 1972 ("Title IX"), Title II of the American with Disabilities Act ("ADA"), § 504 of the Rehabilitation Act ("§ 504"), 42 U.S.C. § 1983 ("Section 1983"), and claims violations of rights under the Texas Constitution. Id. at 2-3, 15- 19, Doe adds that UTHSC alone breached an unidentified "Educational Contract." Id. at 3, 19-22. 3 II. SUMMARY OF ARGUMENT Doe's lawsuit must be dismissed because it is barred by res judicata. On April 9, 2019, the 224th Judicial District Court in San Antonio dismissed Doe's claims with prejudice in a nearly identical lawsuit against UTHSC. Doe's state lawsuit included the same allegations asserted here against UTHSC and Dr. Noujeim, but there she referred to Dr. Noujeim as "an administrator" of UTHSC. The instant suit merely replaces the noun "administrator" with "Noujeim." Even if Doe can persuade this Court that the state court's final judgment on the merits does not preclude her claims here, her claims must be dismissed. Doe failed to state a claim against UTHSC under Title IX, and her Title IX claim against Dr. Noujeim is not actionable. Doe failed to state § 504 or ADA claims, and she did not allege a waiver of sovereign immunity under the ADA. Doe's Section 1983 claim against both Defendants must be dismissed for lack of subject 3 Doe also alleges in her preamble that she was discriminated against based on her ethnicity and religious background. However, she does not allege any causes of action based on these grounds, and thus should be dismissed. 2 8 matter jurisdiction based on the Eleventh Amendment's sovereign immunity protections. As to her state law claims for breach of contract and violations of the Texas Constitution, Doe failed to identify a jurisdictional basis for bringing these causes of action. Nor did she allege a waiver of UTHSC's sovereign immunity. Even if she could overcome these obstacles, Doe failed to state a claim for "breach of Educational Contract." Finally, punitive damages are not recoverable by Doe. Defendants UTHSC and Dr. Noujeim therefore ask this Court to dismiss Doe's claims in their entirety and with prejudice. III. LEGAL STANDARD A. Fed. R. Civ. P. 12(b)(1). A case is properly dismissed for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) when a court does not possess statutory or constitutional power to adjudicate the case. Home Builders Ass'n of Mississippi, Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). The burden of proof for a Rule 12(b)(1) motion lies with the party asserting jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). In considering such a motion, a court may rely on the complaint and any undisputed facts. Freeman v. United States, 556 F.3d 326, 334 (5th Cir. 2009). The court may also consider its own resolution of any disputed facts. Ramming, 281 F.3d at 161. A motion to dismiss pursuant to Rule 12(b)(1) is analyzed under the same standard as under Rule 12(b)(6). See Home Builders, 143 F.3d at 1010. B. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient facts, accepted as true, to state a claim for relief that is plausible on its face. Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In considering 3 8 whether this standard is met, however, a court is not bound to accept as true a legal conclusion couched as a factual allegation. Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 678). Rather, a plaintiff's obligation to demonstrate his entitlement to relief requires more than just labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Accordingly, the plaintiff's complaint must plead sufficient factual allegations to raise a right to relief that is more than speculative. Id. at 555. IV. ANALYSIS A. Doe's claims must be dismissed under the res judicata doctrine. Res judicata bars all claims that were previously litigated or could have been raised in an earlier suit. Nilsen v. City of Moss Point, Miss., 701 F.2d 556, 560 (5th Cir. 1983). In determining the preclusive effect of a prior state court judgment, the 5th Circuit applies the law of the state in which the judgment was rendered. Weaver v. Texas Capital Bank N.A., 660 F.3d 900, 906 (5th Cir. 2011). Texas's claim preclusion law requires "(1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action." Sims v. City of Madisonville, 894 F.3d 632, 644 (5th Cir. 2018) (citations omitted). If all three elements are satisfied, then "claims that arise out of the same occurrence and that could have been litigated are precluded by res judicata." Id. To determine whether the lawsuits involve the same basic subject matter, the court focuses on the factual basis of the complaint. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653 (Tex. 1996). The suit is barred even if the second action does not allege causes of action identical to those asserted in the first action. Texas Water Rights Comm'n v. Crow Iron Works, 582 S.W.2d 768, 772 (Tex. 1979); Cain v. Balcom, 109 S.W.2d 1044, 1045– 46 (Tex. 1937). 4 8 In this case, all three elements are met; thus, Doe is precluded from bringing her case in federal court. 1. There was a final judgment on the merits by a court of competent jurisdiction. A dismissal on immunity grounds under Texas law is a dismissal on the merits for purposes of res judicata. Klein v. Walker, 708 F. App'x 158, 160 (5th Cir. 2017). Additionally, Texas law says a judgment is final if it disposes of all remaining claims and parties. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Finality "must be resolved by a determination of the intention of the court as gathered from the language of the decree and the record as a whole, aided on occasion by the conduct of the parties." Id. at 203. In Klein, a plea to the jurisdiction was considered final because the court found the parties treated the order as a final judgment when the plaintiff took no further action in state court and instead filed a nearly identical action in federal court. Klein, 708 F. App'x at 161. Here, UTHSC filed a plea to the jurisdiction in Doe's state court case alleging immunity from Doe's claims. On April 9, 2019, the 224th Judicial District Court in San Antonio dismissed Doe's claims with prejudice after he failed to respond or even appear at the hearing. Doe took no further action in state court and instead filed a nearly identical lawsuit in federal court, alleging the same facts while adding Dr. Noujeim (named "administrator" in the state court case) and adding additional claims. Therefore, there was final judgment on the merits by a court of competent jurisdiction. 2. UTHSC was a defendant in the state court case, and Dr. Noujeim is in privity with UTHSC. UTHSC was named as the defendant in the state court case. See Ex. A. Therefore, its 5 8 identity as a defendant in this case satisfies the second element of res judicata. As for Dr. Noujeim, res judicata applies for two reasons. First, Doe's federal lawsuit merely replaced "Noujeim" with all previous references to "administrator" in the state lawsuit, and the allegations raised against Dr. Noujeim are the same in both suits. Compare Ex. A at ¶¶ 11(a)–(o) with Doc. 6 at ¶¶ 25(a)–(l). Second, Dr. Noujeim in his official capacity is a party in privity with his governmental employer, UTHSC. Estevez v. Nabers, 219 F.2d 321, 323 (5th Cir. 1955) ("…the government, its officers, and its agencies are regarded as bring in privity" for res judicata purposes); A.M. v. Wells Fargo Bank, N.A., No. 3:14-CV-2863-M, 2015 WL 493763, at *3 (N.D. Tex. Feb. 4, 2015) ("A plaintiff cannot avoid the application of res judicata through the addition of defendants in subsequent lawsuits if the subsequent defendants are in privity with defendants in the prior lawsuit."); see also Benson v. City of Texas City, Tex., No. 3:13-CV-23, 2014 WL 948901, at *4 (S.D. Tex. Mar. 11, 2014) ("the relationship between a government and its officials justify preclusion" where litigation is undertaken in an official capacity) (citation omitted). Also, in his official capacity, Dr. Noujeim's defenses would be the same as UTHSC. See Warnock v. Pecos Cnty., Tex., 116 F.3d 776, 778 (5th Cir. 1997) (explaining the privity element). 3. The federal lawsuit raises the same claims or claims that could have been raised in the state court case. In the state court case, Doe alleged the following causes of action: (1) Title IX; (2) § 504 of the Rehabilitation Act; and (3) § 1983 claims. See Ex. A. In the present federal lawsuit, Doe alleges those three causes of action, as well as claims under: (1) ADA; (2) breach of education contract; (3) Texas Constitution; and (4) § 1983 claims. See Doc. 6. The state court's decision on the merits precludes Doe from brining different claims in federal court that could have been raised in the first action. Matter of Hansler, 988 F.2d 35, 37 (5th Cir. 1993) (In Texas, a final judgment on the merits bars "related matters that, with the use of diligence, should have been litigated in the 6 8 prior suit.") (citing Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992)). Under Texas law, "actions may arise out of the same transaction or occurrence depending on their 'relatedness in time, space, origin or motivation, and whether, taken together, they form a convenient unit for trial purposes.'" Sims, 894 F.3d at 644-45 (citing Weaver, 660 F.3d at 907); see also Barr, 837 S.W.2d at 631 ("a final judgment on an action extinguishes the right to bring suit on the transaction, or series of connected transactions, out of which the action arose."). As the Fifth Circuit stated in Sims, "[d]ifferent theories of recovery based on the same operative facts do not generate different causes of action" and may not be brought in different lawsuits. Sims, 894 F.3d at 644–45 (citations omitted). Doe's state and federal actions arose out of the same transaction or occurrence. In her state lawsuit, Doe claimed that "[e]xamples of the harassment, retaliation and discrimination suffered by Plaintiff Mary D include but are no in manner limited to the following…" Ex. A at ¶ 11. In the present federal case, Doe claims "[e]xamples of the harassment, retaliation and discrimination at the hands, literally, of Defendant 'Noujeim suffered by Plaintiff Mary include but are no in manner limited to the following…" and goes on to list the same allegations as in the state lawsuit. Doc. 6 at ¶ 25. In addition, Doe claimed in the state lawsuit, and now in the federal lawsuit, that she suffered severe physical, emotional and economic injuries. Ex. A at ¶ 14; Doc. 6 at ¶ 36. Doe could have brought her instant claims in state court, but she failed to do so. Home Builders Ass'n, 143 F.3d at 1013 ("Federal jurisdiction over § 1983 is concurrent, not exclusive."); Teran v. Hagopian, No. CV-F-07-1476, 2009 WL 900743, at *19 (E.D. Cal. Mar. 31, 2009) ("State and federal courts have concurrent jurisdiction over claims under Title IX.") (citing cases)). Accordingly, the third element of Texas's claim preclusion law is satisfied. Doe's lawsuit is barred by res judicata. 7 8 B. Doe's Title IX claims against Dr. Noujeim must be dismissed for lack of subject- matter jurisdiction. Doe alleges a Title IX cause of action but does not specify whether she seeks to bring that claim against Dr. Noujeim. Regardless, Doe cannot bring a Title IX claim against Dr. Noujeim. Title IX provides an implied private cause of action, but the language of the statute explicitly limits the application of Title IX to funding recipients. See 20 U.S.C. § 1682. An individual is not a proper defendant under a Title IX claim. Williams v. Bd. of Regents of Univ. Sys. of Georgia, 477 F.3d 1282, 1293-1294 (11th Cir. 2007) ("Title IX does not allow claims against individual school officials; only funding recipients can be held liable for Title IX violations.") (citations omitted) Therefore, to the extent Doe attempts to bring a Title IX claim against Dr. Noujeim, this Court lacks jurisdiction over such a claim. C. Doe's Title IX claims against UTHSC must be dismissed for failure to state a claim. To state a claim that a graduate school like UTHSC violated Title IX under a sexual harassment theory, Doe must show that UTHSC (1) had actual knowledge of the harassment; (2) the harasser was under the school's control; (3) the harassment was based on Doe's sex; (4) the harassment was "so severe, pervasive, and objectively offensive that it effectively bar[red] the victim's access to an educational opportunity or benefit;" and (5) UTHSC was deliberately indifferent to the harassment. Sanches v. Carrolton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165 (5th Cir. 2011) (quoting Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650 (1999)). Actual knowledge means that the appropriate school official had knowledge of specific sexual incidents by a specific offender. Davis, 526 U.S. at 646-647 (stating that recipients may be liable when they are deliberately indifferent to "known acts" of sexual harassment). The official also must have actual knowledge of specific factual allegations that demonstrate a substantial risk 8 8 of serious harm. Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 658 (5th Cir. 1997). Doe's vague allegations that she "approached faculty at various levels" (whom she collectively dubs the "Upper Echelon") who "rejected claims of discrimination" does not meet the elements of a Title IX sexual harassment claim. Doc. 6 at ¶¶ 28–31; A.W. v. Humble Indep. Sch. Dist., 25 F.Supp.3d 973, 995–97 (S.D. Tex. 2014), aff'd sub nom. King-White v. Humble Indep. Sch. Dist., 803 F. 3d 754 (5th Cir. 2015) (dismissing Title IX claims when plaintiff failed to state factual allegations concerning actual knowledge). She failed to identify any officials or employees (aside from dr. Noujeim, the alleged harasser). See generally, Doc. 6; see also Little v. Texas State Univ., No. A-05-CA-509 LY, 2005 WL 8157313, at *3 (W.D. Tex. Sept. 7, 2005) (granting defendant's motion to dismiss where plaintiff "notably" did not "identify the person to whom she made her complaint"). Doe's failure to identify any officials precludes any assessment of whether those individuals had actual knowledge of any sexual harassment claims or whether they were officials with authority to take remedial action. The final element of a Title IX claim, the "deliberate indifference" standard, "is a high one." Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998). Officials may avoid liability under a deliberate indifference standard "by responding reasonably to a risk of harm, 'even if the harm ultimately was not averted.'" Farmer v. Brennan, 511 U.S. 825, 844 (1994). A plaintiff can establish deliberate indifference only where the school's response (or lack of response) to the harassment "is clearly unreasonable in light of the known circumstances." Davis, 526 U.S. at 648. "Actions and decisions by officials that are merely inept, erroneous, ineffective, or negligent do not amount to deliberate indifference." Doe, 153 F.3d at 219. Here, without stating the allegations or naming the individual(s) to whom they were reported, Doe claims that the "the Upper Echelon" responded with unspecified "Lies and Penalties." Doc. 6 at ¶ 31. This provocative but hollow 9 8 allegation precludes any application of the deliberate indifference standard and further undermines Doe's Title IX claim. In sum, "[t]hreadbare recitals of a cause of action's elements, supported by mere conclusory statements" cannot overcome a motion to dismiss for failure to state a claim. Iqbal, 556 U.S. at 678. Doe haphazardly litters the statutory elements of a Title IX claim throughout her Second Amended Complaint without specific factual allegations. Thus, UTHSC asks this Court to dismiss Doe's Title IX claim with prejudice because she failed to state a viable claim. D. Doe's § 504 claims must be dismissed for failure to state a viable claim. To establish a claim under Section 504 of the Rehabilitation Act, Doe must show that: (1) she is a qualified individual with a disability; (2) she was denied the benefit of a program or activity that received financial aid and; and (3) she was discriminated against solely by reason of her disability. Washburn v. Harvev, 504 F.3d 505, 508 (5th Cir. 2007) (citing 29 U.S.C. § 794(a)). The "sole cause" test under the Rehabilitation Act is a stricter standard than the Americans with Disabilities Act's "motivating factor" standard. Bennett–Nelson v. Louisiana. Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005) (citation omitted). A plaintiff cannot establish a prima facie § 504 claim if she alleges that other factors contributed to her discrimination, including other grounds for other causes of action. Shah v. Univ. of Tex. Sw. Med. Sch., 54 F. Supp. 3d 681, 685 (N.D. Tex. 2014) (court dismissing Rehab Act claim where plaintiff alleged discrimination based on disability and ethnicity). Here, Doe does not plead that she is a qualified individual with a disability. Doe makes a conclusory statement that she has disabilities but fails to even articulate what those disabilities are. In addition, Doe has not pled facts stating that her alleged discrimination was based solely on her 10 8 disability. Finally, Doe alleges gender as another ground for discrimination, bringing Title IX claims. Therefore, Doe has failed to state a viable § 504 claim. E. Doe's ADA claims must be dismissed for failure to state a viable claim. To state a claim under the ADA, Doe must demonstrate a factual basis to plausibly conclude that: (1) Plaintiff was a qualified individual within the meaning of the ADA; (2) Plaintiff was being excluded from participation in, or being denied benefits of, services, programs, or activities for which UTHSC is responsible, or was otherwise being discriminated against by UTHSC; and (3) that such exclusion, denial of benefits, or discrimination was by reason of Plaintiff's disability. Windham v. Harris Cnty., Tex., 875 F.3d 229, 235 (5th Cir. 2017). ADA Title II provides that "discrimination need not be the sole reason" for the adverse action or exclusion but rather "a motivating factor." Pinkerton v. Spellings, 529 F.3d 513, 516-19 (5th Cir. 2008). Here, even assuming Doe has sufficiently pled the second element, Doe cannot meet either the first or third element. Doe alleges that she suffers from disabilities recognized by the ADA but fails to articulate what those disabilities are or whether she is a qualified individual. Doe also fails to state, other than in conclusory allegations, that her unidentified disabilities were a motivating factor in any alleged discrimination. "Threadbare recitals of a cause of action's elements, supported by mere conclusory statements" cannot overcome a motion to dismiss for failure to state a claim. Iqbal, 556 U.S. at 678. Therefore, Doe has failed to state a viable ADA claim. F. Doe's ADA claims must be dismissed for lack of subject matter jurisdiction. 4 As an additional line of defense, Doe's claim under Title II of the ADA is also subject to dismissal based on a lack of subject matter jurisdiction. To assess whether state sovereign 4 While 12(b)(1) challenges are generally addressed before those brought under 12(b)(6), Hale v. King, 642 F.3d 492, 498 (5th Cir. 2011), instructs that ADA Title II claims should first be scrutinized under 12(b)(6). 11 8 immunity has been abrogated, the Supreme Court has instructed courts to determine the issue "on a claim-by-claim basis" using the following three-part analysis: (1) [W]hich aspects of the State's alleged conduct violated Title II; (2) [T]o what extent such conduct also violated the Fourteenth Amendment; and, (3) [I]nsofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid. 5 United States v. Georgia, 546 U.S. 151, 159 (2006); Hale v. King, 642 F.3d 492 (5th Cir. 2011); Duncan v. Univ. of Tex. Health Sci. Ctr. at Houston, 469 F. App'x 364 (5th Cir. 2012) (per curiam). Doe's ADA claim is barred by UT's Eleventh Amendment immunity because UT did not violate either Title II or Doe's constitutional rights. Id. at 367 ("…if the conduct offends neither Title II nor the Constitution, then the suit must fail."). Step one of the Georgia test is identification of the State's conduct that allegedly violates Title II. Here, Doe's Second Amended Complaint does not show that any of her unidentified disabilities were a "motivating factor" in any alleged harassment, discipline or inability to take board exams. Accordingly, her Title II claim should be dismissed under Rule 12(b)(6) for failure to state a claim. However, should the Court find that Doe somehow stated a prima facie claim under Title II, then it must proceed to the second step of the Georgia test to determine whether UT committed any constitutional violation. The second step of the Georgia test is to determine whether this conduct actually violates the Fourteenth Amendment. "[D]isability discrimination is subject to rational basis review, under which there is no constitutional violation so long as 'there is a rational relationship between the 5 In Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001), the Fifth Circuit held that Title II of the ADA does not validly abrogate state sovereign immunity. Since the Fifth Circuit's decision in Reickenbacker, the Supreme Court has held that the abrogation of sovereign immunity in Title II of the ADA is a valid exercise of congressional power to the extent that it "applies to the class of cases implicating the fundamental right of access to court," or "a private cause of action for damages against the State for conduct that actually violates the Fourteenth Amendment." Tennessee v. Lane, 541 U.S. 509, 533-34 (2004); Georgia, 546 U.S. at 159 (emphasis in original). 12 8 disparity of treatment and some legitimate governmental purpose.'" Hale, 624 F.3d at 184 (citations omitted). "The state need not justify its own actions; rather, 'the burden is upon the challenging party to negative any reasonably conceivable state of facts that could provide a rational basis for the classification.'" Id. This, Doe has not done. 1. There was no procedural due process violation. Though not spelled out specifically, it appears Doe alleges that her procedural due process rights were violated because she was denied entry into a graduate program and the inability to take board exams. See Doc. 6. As for the exams, Doe admits that those are independently administered by the American Board of Oral and Maxillofacial Radiology. Doc. 6 at ¶ 33. As for the denial of admissions, Doe states no facts as to whether she was qualified to enter into the program or what process was due. Doe just makes vague, unsupported and conclusory allegations that are in that are insufficient to state a claim for relief or survive a motion to dismiss. See Iqbal, 556 U.S. at 678. 2. There was no substantive due process violation. Doe makes several references to substantive due process violations. Doc. 6 at ¶¶ 2(d)(ii), 67(e), 70. She altogether fails to articulate the basis for these allegations. See generally, Doc. 6. A judge may not override the faculty's academic and professional judgment about a student's performance in a graduate program unless "it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment." See Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 225 (1985). Doe does not allege what the accepted academic norms would be to be admitted into a graduate program or timely take board exams. In addition, there is no indication that Defendants did not actually exercise professional judgment. Therefore, Doe cannot show a substantive due process claim under these facts. 13 8 3. There was no equal protection violation. Doe also refers to equal protection violations. Doc. 1 at ¶¶ 2(d)(ii), 67(f), 70. However, she alleges no facts to support her equal protection claim. The Equal Protection Clause of the Fourteenth Amendment provides that a State cannot "deny to any person within its jurisdiction equal protection of the laws." U.S. Const. Amend. XIV, § 1. Doe's vague, unsupported, and conclusory allegations do not constitute actionable equal protection violations. Her allegations fail to allege the existence of suitable comparators against which to compare UTHSC's treatment of Doe. Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997) (if the action does not distinguish between two or more relevant groups, then it does not deny equal protection of the laws even if irrational5); Hooker v. Dallas Indep. Sch. Dist., No. 3:09-CV-1289-D, 2010 WL 4025877, at*8 (N.D. Tex. Oct. 13, 2010) (dismissal of an equal protection claim is proper where the plaintiff fails to allege treatment different from others similarly situated). 4. Even if the Court finds a Title II violation but no constitutional violation, Title II still does not abrogate Defendants' immunity in this case. The final step of the Georgia test only applies when there has not been a violation of the Fourteenth Amendment. This step looks to whether Congress's purported abrogation of sovereign immunity is nevertheless valid. The Fifth Circuit's holding in Reickenbacker answers this question in the negative and remains controlling. See Simmang v. Tex. Bd. of Law Exam'rs, 346 F. Supp. 2d 874, 883 (W.D. Tex. 2004) ("the rationale of Lane does not require this Court to conclude that the Fifth Circuit's decision in Reickenbacker is no longer valid. Lane involved a fundamental right, and this case does not. Accordingly, this Court is bound by the decision in Reickenbacker"). Even if a defendant's conduct violates Title II of the ADA, such a claim is barred by sovereign immunity unless it also violates a fundamental right or the Fourteenth 14 8 Amendment. Because those conditions are not met here, Doe's ADA claim must be dismissed based on a lack of subject matter jurisdiction. G. Doe's § 1983 claims against UTHSC-SA must be dismissed for lack of subject- matter jurisdiction, or alternatively, failure to state a viable claim. Doe's claims against Defendants, brought pursuant to 42 U.S.C. § 1983, must be dismissed because they are barred by Eleventh Amendment immunity. Doe acknowledges that UTHSC-SA "is a public university owned by, and operating in, the State of Texas." Doc. 6 at ¶¶ 6, 46 ("As a university owned and operated by the State of Texas…"); see also TEX. EDUC. CODE § 65.02(10) (establishing that UTHSC is part of the University of Texas System). "Eleventh Amendment sovereign immunity deprives a federal court of jurisdiction to hear a suit against a state." Warnock v. Pecos Cnty., Tex., 88 F.3d 341, 342 (5th Cir. 1996). "This jurisdictional bar applies regardless of the nature of the relief sought." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Section 1983 does not waive the UT's immunity under the Eleventh Amendment. Quern v. Jordan, 440 U.S. 332, 338 n.7 (1979). As a state entity, UTHSC-SA is entitled to Eleventh Amendment immunity, and Doe's claims against UTHSC-SA, brought pursuant to 42 U.S.C. § 1983, must be dismissed for lack of subject matter jurisdiction. Furthermore, 42 U.S.C. § 1983 states that "[e]very person" who, under color of law, subjects a citizen to deprivation of his federal rights shall be liable to that citizen. 42 U.S.C. § 1983. It is well settled that neither a State or its officials acting in their official capacities are "persons" under § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); Cronen v. Tex. Dep't of Human Servs., 977 F. 2d 934, 936 (5th Cir. 1992) (state agency not a "person" for purposes of imposing liability under 42 U.S.C. § 1983); see also Washington v. Louisiana, 425 F. App'x 330, 333 (5th Cir. 2011) (neither states nor state agencies are "persons" within the meaning of § 1983). Accordingly, Doe's claims against Defendants must also be dismissed because they 15 8 are not viable. 6 H. Doe's § 1983 claims alleging First Amendment retaliation must be dismissed for failure to state a viable claim. To establish a retaliation claim cognizable under the First Amendment, the plaintiff student must prove that his speech was constitutionally protected and that it was a "substantial" or "motivating" factor in the challenged decision. Mt. Healthy City Sch. Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274, 287 (1977). Here, Doe fails to make even a single factual allegation to support her claim that Defendants violated her First Amendment Rights. See Doc. 6. Doe does not identify any statements she made that she claims are constitutionally protected speech. See Doc. 6. Moreover, she does not allege that any such protected speech was a substantial or motivating factor in her alleged probation, the denial into the masters program, or taking board exams. See Doc. 6. Absent factual allegations to support the elements of a First Amendment retaliation claim, dismissal is proper. I. Doe's "Breach of Educational Contract" claim must be dismissed based on a lack of subject matter jurisdiction or, alternatively, failure to state a viable claim. Doe alleges a "breach of Educational Contract" against Defendant UTHSC based on its "university catalog." Doc. 6 at ¶¶ 27, 76–78. However, this Court lacks jurisdiction over this claim, and even if it had jurisdiction, Doe fails to state a viable claim. There is no dispute that UTHSC is a public university and an arm of the State. Doc. 6 at ¶¶ 6, 46 ("As a university owned and operated by the State of Texas…"); see also TEX. EDUC. CODE § 65.02(10) (establishing that UTHSC is part of the University of Texas System). "[T]here is but 6 Doe's Section 1983 claim against Dr. Noujeim must also be dismissed because it is redundant. With repeated references to "Defendants" in the plural form, it is "simply a reformulation" of her Section 1983 claim against UTHSC. Doc. 6 at ¶¶ 69–75. Goins v. Hitchcock I.S.D., 191 F.Supp.2d 860, 868 (S.D. Tex. 2002), aff'd sub nom. Goins v. Hitchcock Indep. Sch, 65 F. App'x 508 (5th Cir. 2003) (holding that "official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent"); see also Kentucky v. Graham, 473 U.S. 159, 166 (1985) ("[a]s long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." 16 8 one route to the courthouse for breach-of-contract claims against the State, and that route is through the Legislature." Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 597 (Tex. 2001). Accordingly, governmental immunity precludes a graduate student's breach-of-contract claim against her public university where the student did not obtain legislative consent to sue the university, and the student failed to bring her case under a "special statutory provision" that explicitly waives the public university's immunity from suit. Jackson v. Texas S. Univ., 997 F.Supp.2d 613, 648 (S.D. Tex. 2014) ("[S]overeign immunity from suit also bars any possible contract…claims…."); Univ. of Houston Main Campus v. Simons, No. 01-02-00368-CV, 2002 WL 31388906, at *2 (Tex. App.—Houston [1st Dist.] Oct. 24, 2002, no pet.). Doe failed to affirmatively demonstrate this Court's subject matter jurisdiction by alleging a valid waiver of immunity for her breach of educational contract claim. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Without identifying any contract language as the basis for her claim, Doe writes that Dr. Noujeim's alleged harassment contravenes UTHSC's policies in violation of the "university catalog that governed [Doe's] admission" into UTHSC. Doc. 6 at ¶ 27; see Tapp v. Univ. of Tex. Health Scis. Ctr. at Houston, No. CIV.A. H-11-2971, 2011 WL 6339819, at *6 (S.D. Tex. 2011), aff'd, 538 F. App'x 508 (5th Cir. 2013) (dismissing breach of contract claim for failure to state a claim where plaintiff did not identify any contractual language as the basis for his claim of breach). These allegations do not constitute a waiver of UTHSC's sovereign immunity. Nor do they sufficiently identify any binding contract or state a valid claim for breach of "Educational Contract." UTHSC therefore retains its sovereign immunity, and Doe's claim fails. Even if Doe could clear jurisdictional and immunity hurdles, the "university catalog" that Doe claims "governed" her "admission to Defendant UTHSCSA" is not a contract. Doc. 6 at ¶ 27; 17 8 Tapp, 2011 WL 6339819, at *6 (dismissing breach of contract claim against graduate school for failure to state a claim where plaintiff did not identify any contractual language as the basis for his claim of breach); Eiland v. Wolf, 764 S.W.2d 827, 837-38 (Tex. App.—Houston [1st Dist.] 1989, writ denied) (holding that language in state university catalog did not give rise to an enforceable contract between the student and university). Doe's "breach of Educational Contract" claim must be dismissed. J. Doe's Texas Constitution claims must be dismissed for lack of subject-matter jurisdiction, or alternatively, failure to state a viable claim. Doe seeks "damages and equitable relief pursuant to…Defendant's actions in violations [sic] of provisions of the Texas Constitution." Doc. 1 at ¶ 2(e). Specifically, she claims that UTHSC-SA violated her rights under the following: (a) the procedural due process requirements of the Texas Constitution found in Article 1, Section 19; (b) the substantive due process requirements of the Texas Constitution found in Article 1, Section 19; and (c) the equal protection requirements of the Texas Constitution found in Article 1, Section 3. (d) the freedom of speech protections of the Texas Constitution found in Article 1, Section 8. (e) the Equal Rights Amendment to [sic] of the Texas Constitution found in Article 1, Section 3a. Id. at ¶ 81(a)-(e). First, the Texas Constitution does not create a private cause of action for damages. Gipson v. Callahan, 18 F. Supp. 2d 662, 668 (W.D. Tex. 1997) (citing City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex. 1995) (refusing to recognize private causes of action arising from the Texas Constitution and its Bill of Rights)); see also Kaufman Cnty. v. Combs, 393 S.W.3d 336, 345 (Tex. App.—Dallas 2012, pet. denied) (applying Bouillion to equal protection and due process claims). 18 8 Second, UTHSC has not waived its sovereign immunity from these constitutional claims. The "mere fact that Plaintiff's declaratory requests arise from the Texas Constitution does not itself constitute a waiver of immunity," and waiver based on the Texas Constitution "is only applicable to Article I, § 17, which is not at issue in this case." Banik v. Tamez, No. 7:16-CV-00462, 2017 WL 2505653, at *26 (S.D. Tex. June 9, 2017). Because UTHSC has not waived its sovereign immunity, Dr. Noujeim in his official capacity would also retain sovereign immunity from these claims. Third, while Doe tries to assert supplemental jurisdiction under 28 U.S.C. § 1367 as the basis for bring her state claims, that statute does not abrogate UT's Eleventh Amendment immunity. See Doc. 6 at ¶ 9 (Doe's assertion of supplemental jurisdiction); Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 541-42 (2002) (holding that 28 U.S.C. § 1367 "does not extend to claims against nonconsenting state defendants"). Section 1367 is silent as to sovereign immunity and does not contain the "unmistakably clear" language required for abrogation. Seminole Tribe v. Fla., 517 U.S. 44, 56-57 (1996). The Eleventh Amendment bars the adjudication of pendent state law claims leveled in federal court against nonconsenting state defendants like UTHSC. Pennhurst, 465 U.S. at 120. Accordingly, Doe's Texas Constitution claims must be dismissed based on a lack of subject matter jurisdiction. K. Doe's claim for punitive damages must be dismissed because punitive damages are not recoverable under Title IX or § 1983. Plaintiff seeks $5,000,000.00 alleged violations under Section 1983. Doc. 6 at ¶ 85. Punitive damages, however, are not recoverable against a governmental entity like UTHSC under § 1983. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (barring punitive damages under § 1983). Thus, Plaintiff is not entitled to punitive damages, and those claims should be dismissed. 19 8 V. CONCLUSION For the reasons stated above, UTHSC and Dr. Noujeim request that this Court grant their Motion to Dismiss based on Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defendants seek all other relief to which it may be justly entitled. Respectfully submitted, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General DARREN L. MCCARTY Deputy Attorney General for Civil Litigation THOMAS A. ALBRIGHT Chief - General Litigation Division /s/ Glorieni M. Azeredo GLORIENI M. AZEREDO Texas Bar No. 24077840 Assistant Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 475-1969 | FAX: (512) 320-0667 Glorieni.Azeredo@oag.texas.gov ATTORNEYS FOR DEFENDANTS 20 8 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been served electronically through the Court's Electronic Case File Notification on this the 27th day of August 2019, to: GORMAN LAW FIRM Terry P. Gorman, Esq. tgorman@school-law.co Chigozie F. Odediran, Esq codediran@school-law.co 901 Mopac Expressway South, Suite 300 Austin, TX 78746 Attorneys for Plaintiff /s/ Glorieni M. Azeredo GLORIENI M. AZEREDO Assistant Attorney General 21 8 EXHIBITS 22 8 EXHIBIT A 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 8 EXHIBIT B FILED 2/11/2019 4:40 PM 8 Mary Angie Garcia Bexar County District Clerk Accepted By: Barbara Segovia CAUSE NO. 2018CI17498 IN THE DISTRICT COURT MARY UTHSCSA-MP DOE § Plaintiff, § § v. § § BEXAR COUNTY, TEXAS THE UNIVERSITY OF TEXAS § HEALTH SCIENCE CENTER § AT SAN ANTONIO, § Defendant. § 224th JUDICIAL DISTRICT § DEFENDANT'S PLEA TO THE JURISDICTION TO THE HONORABLE PRESIDING JUDGE: COMES NOW Defendant, The University of Texas Health Science Center at San Antonio ("UTHSC") and files this Plea to the Jurisdiction. UTHSC respectfully submits the following in support thereof: I. SUMMARY OF THE ARGUMENT Plaintiff Mary UTHSCSA-MP Doe ("Doe") fails to affirmatively demonstrate this Court's subject matter jurisdiction over her Title IX claim by alleging a valid waiver of UTHSC's sovereign immunity. Even if a waiver for her Title IX claim existed, Doe cannot meet the prima facie elements of her Title IX claim and therefore fails to state a viable claim. There is no waiver of sovereign immunity in state court under § 504 of the Rehabilitation Act. UTHSC is also entitled to sovereign immunity from § 1983 actions, regardless of the relief sought or the allegations used to support the claim. Accordingly, Doe's claims must be dismissed with prejudice and in their entirety, due to a lack of subject matter jurisdiction. II. BACKGROUND Doe is a current graduate student at UTHSC. Plaintiff's Original Petition at ¶ 10. Doe Defendant's Plea to the Jurisdiction Page 1 8 alleges that she has suffered harassment, discrimination, and retaliation in a "Reign of "Terror" while studying at UTHSC. See generally Plaintiff's Original Petition. However, Doe does not specify which masters' program she is involved with, and does not provide any names of individuals connected to UTHSC within her allegations. On September 11, 2018, Doe filed suit in Bexar County, alleging causes of actions under Title IX, § 504 of the Rehabilitation Act, and a violation of constitutional rights under 42 U.S.C. § 1983 (herein after "§ 1983"). Doe seeks compensatory damages. Doe also seeks punitive damages over $5,000,000.00 and attorney's fees. III. LEGAL STANDARD A plea to the jurisdiction challenges the court's authority to decide a case. Heckman v. Williamson County, 369 S.W.3d 137, 149 (Tex. 2012). The plaintiff bears the burden to affirmatively demonstrate the trial court's jurisdiction. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) (holding that the standard of review for subject matter jurisdiction requires the pleader to "allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause"). Subject matter jurisdiction cannot be waived, and it is not presumed. Texas Ass'n of Bus., 852 S.W.2d at 443-44. At its earliest opportunity, a court must determine whether it has jurisdiction to allow litigation to proceed either under the constitution or pursuant to statute. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). IV. ARGUMENT AND AUTHORITIES A. Doe fails to allege a valid waiver of UTHSC's sovereign immunity. Generally, the State of Texas has sovereign immunity from suit unless waived by the Legislature. State v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006). Immunity from suit defeats a trial court's subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. Tex. Defendant's Plea to the Jurisdiction Page 2 8 Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-226 (Tex. 2004). UTHSC is an arm of the State and is shielded by the sovereign immunity available to the state government. Whitehead v. Univ. of Tex. Health Sci. Ctr. at San Antonio, 854 S.W.2d 175, 180 (Tex. App.—San Antonio 1993, no writ); TEX. GOV'T CODE ANN. § 572.002(10)(B) (West 2012) (defining a state agency to include a university system or institution of higher education); Plaintiff's Original Petition at ¶ 8 (acknowledging that UTHSC is a public university operating in the State of Texas). Doe must "affirmatively demonstrate" this Court's subject matter jurisdiction over her Title IX claim "by alleging a valid waiver of immunity." Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Absent "clear and unambiguous statutory language establishing a waiver of immunity, "sovereign immunity protects the states, its agencies, and officials from suit in state court." O'Neil v. Texas Department of Criminal Justice, No. 2:10-CV-3-J, 2010 WL 11534609, at *2 (N.D. Tex. Aug. 20, 2010). Doe's Title IX claim must be dismissed because there is no "clear and unambiguous" waiver of sovereign immunity from Title IX lawsuits brought in state court. It is true that 42 U.S.C. § 2000d-7 provides that a state shall not be immune from Title IX, but only when such claims are brought "in Federal court." Like its treatment of Title IX, 42 U.S.C. § 2000d-7 also provides a waiver of the states' sovereign immunity in federal court from claims brought under Section 504 of the Rehabilitation Act. However, because the federal statute is silent as to claims brought in state courts, at least one Texas appellate court granted the State's plea to the jurisdiction and dismissed a plaintiff's claim under the Rehabilitation Act based on a lack of subject matter jurisdiction. Wion v. Thayler, No. 10-09-00369-CV, 2010 WL 4644497, at *3 (Tex. App.—Waco Nov. 17, 2010, no pet.) (mem. op.). In sum, Doe's Title IX claim against TTUHSC must be dismissed because Doe failed to demonstrate this Court's jurisdiction by alleging a "clear Defendant's Plea to the Jurisdiction Page 3 8 and unambiguous" wavier of immunity. B. Does fails to allege a viable Title IX claim. In a suit against a governmental entity like UTHSC, "a plea to the jurisdiction is proper to challenge a statutory claim when the statutory elements of a cause of action are jurisdictional and the plaintiff did not comply with those elements." University of Tex. Sw. Med. Ctr. v. Gentilello, 398 S.W.3d 680, 682 (Tex. 2013); Mission Consol. ISD v. Garcia, 372 S.W.3d 629, 637-38 (Tex. 2012) (holding that plea to the jurisdiction was proper to challenge whether plaintiff pleaded the prima facie elements of his discrimination claim). Doe contends that UTHSC engaged in sex-based harassment and discrimination in violation of Title IX. Plaintiff's Original Petition at ¶¶ 20–33. On the basis of this alleged violation, Doe seeks compensatory and punitive damages. Plaintiff's Original Petition at ¶¶ 32–33. Even if this court believes Doe has pled a valid waiver of UTHSC's sovereign immunity, Doe fails to allege a viable Title IX claim. Under Title IX, the 'deliberate indifference' standard is applied where a plaintiff seeks to hold an institution liable for sexual harassment and requires the plaintiff to demonstrate that an official of the institution who had authority to institute corrective measures had actual notice of, and was deliberately indifferent to, the misconduct." Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 277 (1998). "'[T]he deliberate indifference standard is a high one.' Officials may avoid liability under a deliberate indifference standard by responding reasonably to a risk of harm, 'even if the harm ultimately was not averted.'" Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 384 (5th Cir. 2000) (internal citations omitted) (quoting Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998)); Farmer v. Brennan, 511 U.S. 825, 844 (1994). A plaintiff can establish deliberate Defendant's Plea to the Jurisdiction Page 4 8 indifference "only where the funding [recipient's] response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances." Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 648 (1999). "This is not a mere 'reasonableness' standard." Id. at 649. Instead, the funding recipient must respond "in a manner that is not clearly unreasonable." Id. The Fifth Circuit has held that a school may be liable under the deliberate indifference standard only if the school: "(1) had actual knowledge of the harassment; (2) the harasser was under the district's control; (3) the harassment was based on the victim's sex; (4) the harassment was so severe, pervasive, and objectively offensive that it effectively barred the victim's access to an educational opportunity or benefit; and (5) the district was deliberately indifferent to the harassment." Sanches v. Carrolton-Farmers Branch Ind. Sch. Dist., 647 F.3d 156, 165 (5th Cir. 2011). Actual knowledge means that an appropriate school official had knowledge of specific sexual incidents by a specific offender. See generally Davis v. Monroe County Sch. Bd., 526 U.S. 629, 646–47 (1999) (stating that recipients may be liable when they are deliberately indifferent to "known acts" of sexual harassment). The official must have actual knowledge of facts demonstrating a substantial risk of serious harm. See Alegria v. State of Texas, 2007 WL 3256586 at *9 (S.D. Tex., Nov. 2, 2007) (citing Rosa H. v. San Elizario Sch. Dist., 106 F.3d 648, 658 (5th Cir. 1997)). Doe's Title IX claims fail because Doe makes conclusory statements that (1) UTHSC had actual knowledge of the harassment; (2) the harassment was based on Doe's sex; and (3) UTHSC was deliberately indifferent to the alleged harassment. Plaintiff's Original Petition at ¶¶ 21(c), 22, 24 and 25. Conclusory statements are not competent evidence in a plea to the jurisdiction. Wilson v. Dallas Indep. Sch. Dist., 3769 S.W.3d 319, 326 (Tex. App.—Dallas 2012, no pet.). Defendant's Plea to the Jurisdiction Page 5 8 In addition, Doe lacks any factual allegations that UTHSC, or a specific official, had actual knowledge of the alleged harassment. See A.W. v. Humble Indep. Sch. Dist., 25 F.Supp.3d 973, 995–97 (S.D. Tex. 2014) (court dismissing Title IX claims when plaintiffs lacked factual allegations concerning actual knowledge). Doe declines to identify any UTHSC official, agent or employee in her pleadings, other than a blank "administrator of Defendant" or "official and agent of Defendant". See Plaintiff's Original Petition at ¶¶ 11(a), (e). Thus, it is not possible to determine whether any individuals within the petition was the appropriate official with authority. Doe's decision to not name any official also precludes any assessment of whether that person has "actual knowledge" of her claims. See generally Davis, 526 U.S. at 646–47 (stating that recipients may be liable when they are deliberately indifferent to "known acts" of sexual harassment). Since the conclusory statements are not competent evidence, and because Doe lacks factual allegations, Doe fails to meet at least three of the necessary elements for a Title IX claim. Accordingly, UTHSC asks this Court to grant its Plea to the Jurisdiction and dismiss Doe's Title IX claim with prejudice. C. UTHSC retains sovereign immunity from Doe's second claim, brought pursuant to Section 504 of the Rehabilitation Act of 1973. Doe believes that "this Court has jurisdiction over the following matter because this is a civil action." Plaintiff's Original Petition at ¶ 2. Doe alleges § 504 of the Rehabilitation Act as a civil action against UTHSC. Plaintiff's Original Petition at ¶¶ 34–38. But there is no waiver of sovereign immunity from lawsuits brought in state court under the Rehabilitation Act. 42 U.S.C. § 2000d-7 ("A State shall not be immune. . . from suit in Federal court for a violation of section 504 of the Rehabilitation Act…") (emphasis added); Wion v. Thayler, No. 10-09-00369-CV, 2010 WL 4644497, at *3 (Tex. App.—Waco Nov. 17, 2010, no pet.) (mem. op.) (affirming trial court's dismissal of plaintiff's Rehabilitation Act claim for lack Defendant's Plea to the Jurisdiction Page 6 8 of subject matter jurisdiction). Even if a waiver of immunity was possible under the Rehabilitation Act in state court proceedings (it is not), a state's receipt of federal funds does not automatically constitute a waiver. Hurst v. Tex. Dep't of Assistive & Rehabilitative Servs., 482 F.3d 809, 811 (5th Cir. 2007). Accordingly, UTHSC asks this Court to grant its Plea to the Jurisdiction and dismiss Doe's Rehabilitation Act claim with prejudice. D. UTHSC retains sovereign immunity from Doe's third claim, brought pursuant to 42 U.S.C. § 1983. Doe believes that "this Court has jurisdiction over the following matter because this is a civil action." Plaintiff's Original Petition at ¶ 2. Doe alleges § 1983 as a civil action against UTHSC. Plaintiff's Original Petition at ¶¶ 39–48. But the Eleventh Amendment bars suits against a state under § 1983 unless Congress has exercised its power under the Fourteenth Amendment to override a states' sovereign immunity, or unless the state itself has waived its immunity. Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989); Kentucky v. Graham, 473 U.S. 159, 169 (1985); Tex. Dep't of Aging & Disability Servs. v. Cannon, 383 S.W.3d 571, 575 (Tex. App.—Houston [14th Dist.] 2012), aff'd, 453 S.W.3d 411 (Tex. 2015). The Texas Legislature has not waived the State's sovereign immunity from § 1983 claims. Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007) ("It is up to the Legislature to institute such a waiver, and to date it has not seen fit to do so."); In re K.G.S., No. 14-12-00673- CV, 2014 WL 801127, at *5 (Tex. App.—Houston [14th Dist.] Feb. 27, 2014, no pet.) (mem. op.) (recognizing that Texas has not waived its sovereign immunity for § 1983 claims). Thus, the State of Texas and any arms of the State (like UTHSC) are not subject to suit under § 1983 in either federal or state court. Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 365 (1990) ("Will establishes that the State and arms of the State, which have traditionally enjoyed Defendant's Plea to the Jurisdiction Page 7 8 Eleventh Amendment immunity, are not subject to suit under § 1983 in either federal court or state court."); Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 582 (Tex. 2001) (recognizing that the Texas Department of Public Safety is not subject to suit under § 1983 in state court). Accordingly, UTHSC asks this Court to grant its Plea to the Jurisdiction and dismiss Doe's § 1983 claim with prejudice. PRAYER WHEREFORE, Defendant UTHSC respectfully requests that the Court dismiss this suit in its entirety with prejudice due to lack of subject-matter jurisdiction. Respectfully submitted, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General DARREN L. MCCARTY Deputy Attorney General for Civil Litigation AMANDA J. COCHRAN-MCCALL Chief for General Litigation Division /s/ Glorieni M. Azeredo GLORIENI M. AZEREDO Assistant Attorney General TX State Bar No. 24077840 Office of the Attorney General General Litigation Division P.O. Box 12548 Austin, Texas 78711-2548 Telephone: (512) 475-1969 Fax: (512) 320-0667 Glorieni.Azeredo@oag.texas.gov Attorneys for Defendant Defendant's Plea to the Jurisdiction Page 8 8 CERTIFICATE OF SERVICE I hereby certify that on this 11th day of February, 2019, a true and correct copy of the foregoing Defendant's Plea to the Jurisdiction has been served on the following via eFileTexas.gov service and/or electronic mail as indicated below: Terry P. Gorman, Esq. HENSLEE & GORMAN, PLLC tgorman@school-law.co Chigozie F. Odediran, Esq 901 Mopac Expressway South, Suite 300 Austin, TX 78746 Attorneys for Plaintiff /s/ Glorieni M. Azeredo GLORIENI M. AZEREDO Assistant Attorney General Defendant's Plea to the Jurisdiction Page 9 8 EXHIBIT C FILED 3/11/2019 10:32 AM 8 Mary Angie Garcia Bexar County District Clerk Accepted By: Daniel Diaz CAUSE NO. 2018CI17498 IN THE DISTRICT COURT MARY UTHSCSA-MP DOE § Plaintiff, § § v. § § BEXAR COUNTY, TEXAS THE UNIVERSITY OF TEXAS § HEALTH SCIENCE CENTER § AT SAN ANTONIO, § Defendant. § 224th JUDICIAL DISTRICT § FIAT Please take notice that Defendant's Plea to the Jurisdiction is set for hearing on Thursday, April 4, 2019, at 9:00 A.M. in the Presiding District Court, Room 109, Bexar County Courthouse, Texas, located at 100 Dolorosa Street, San Antonio, Texas 78205. 3/11/2019 Signed and order entered this _____ day of _____________, 2019. ___________________________________ PRESIDING JUDGE 8 EXHIBIT D 8 Records Search Home Advanced Search Bexar County Home / Back to Search Results Case #2018CI17498 History Name Date Filed Case Status Litigant Type Court 9/11/2018 DISPOSED DEFENDANT 224 Docket Type OTHER CIVIL CASES Business Name 2018CI17498 Style MARY U DOE Style (2) vs THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT Case History Go To Top Currently viewing all records Sequence Date Filed Description S00003 4/8/2019 NOTICE OF ORDER RULE 306A https://search.bexar.org/...niversity of Texas Health Science Center &cs=2018CI17498&ct=&=&full=y&p=2_2018CI17498 DC0000200000[4/9/2019 4:13:47 PM] 8 GLORIENI AZEREDO ISSUED: 4/8/2019 S00002 4/8/2019 NOTICE OF ORDER RULE 306A TERRY P GORMAN ISSUED: 4/8/2019 O00001 4/4/2019 PLEA TO THE JURISDICTION AND DISMISSAL OF CASE JUDGE: DAVID A. CANALES VOL: 5094 PAGE: 2484 PAGE COUNT: 2 P00007 4/4/2019 CASE CLOSED DISMISSED BY PLAINTIFF P00006 4/4/2019 JUDGES DOCKET NOTES NO RECORD TAKEN T00005 3/11/2019 NON-JURY SETTING ON PLEA TO THE JURISDICTION *ASSIGNED TO JUDGE CANALES* COURT: 109 TRIAL DATE & TIME: 4/4/2019 9:00AM P00004 2/11/2019 PLEA TO THE JURISDICTION-DEFENDANTS P00003 12/7/2018 ORIGINAL ANSWER OF UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO AND AFFIRMATIVE DEFENSES S00001 9/17/2018 CITATION THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT ISSUED: 9/17/2018 RECEIVED: 11/14/2018 EXECUTED: 11/15/2018 RETURNED: 11/20/2018 P00002 9/11/2018 SERVICE ASSIGNED TO CLERK 1 P00001 9/11/2018 PETITION Bexar.org | Bexar County County Clerk | Bexar County District Clerk 100 Dolorosa San Antonio, Texas 78205 | 210.335.2011 https://search.bexar.org/...niversity of Texas Health Science Center &cs=2018CI17498&ct=&=&full=y&p=2_2018CI17498 DC0000200000[4/9/2019 4:13:47 PM] 8 https://search.bexar.org/...niversity of Texas Health Science Center &cs=2018CI17498&ct=&=&full=y&p=2_2018CI17498 DC0000200000[4/9/2019 4:13:47 PM] 8 EXHIBIT E 8 Ct~tt~S JUDGE'S NOTES r)~7 Cause Number: 201 8C11 7498 Court: 224 Date/Time: 04104/2019 09:OOAM Setting Court: 109 Style: MARY U DOE VS. THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT David A. Canales Attorney(s) For Case 73rd District Court '~ERRY GORMAN di~ KIt'S rLORIENI AZEREDO Type of Motion or Application: NON-JURY SETTING ON PLEA TO HE JURISDICTION AGREED ORDER RECORD TAKEN GA INTERPRETER________________ RESET DATE DATE OF NOTES APR ~ 42019 — JUDGE ~0 C, Property of Bexar County District Clerks Office (DK5OIA) 8 EXHIBIT F 8 CAUSE NO. 2018C117498 IN THE DISTRICT COURT MARY UTHSCSA-MP DOE § Plaintiff § § V. § § BEXAR COUNTY, TEXAS THE UNIVERSITY OF TEXAS § HEALTH SCIENCE CENTER § AT SAN ANTONIO, § Defendant. § 224th JUDICIAL DISTRICT § ORDER GRANTING DEFENDANT'S PLEA TO THE JURISDICTION On this day, the Court considered the Plea to the Jurisdiction filed by Defendant the University of Texas Health Science Center at San Antonio. After due consideration, the Court finds this plea meritorious, and is of the opinion that the following Order should issue: IT IS THEREFORE ORDERED that the Plea to the Jurisdiction filed by Defendant the University of Texas Health Science Center at San Antonio is GRANTED. IT IS FURTHER ORDERED that all of Plaintiffs claims against Defendant the University of Texas Health Science Center at San Antonio are DISMISSED WITH PREJUDICE in their entirety. SIGNED this4~%ay of,20l9. HONG PRESIDING David A, Caria (SB 3rd District Court Pa.c~~1 u€Z 8 APPROVED AS TO FORM: Terry P. Gorman, Esq. Glpfk4. Azetedo Texas Bar No. 08218200 A$sista.ht Attornkyi≥eneral 901 Mopac Expressway South, Suite 300 Td~~'flar No. 24077840 Austin, TX 78746 Office of the Attorney General Phone: (512) 320-9177 General Litigation Division Fax: (512) 597-1455 P.O. &x 1248, Capitol Station tgorrnanc~schoo1-1aw.com Austin, TX 78711-2548 ATTORNEY FOR PLAINTIFF Tel: (512) 475-1969 Fax: (512) 320-0667 G1orieni.Azeredo(d~oag.texas.gov ATTORNEY FOR DEFENDANT