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

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

ORDER GRANTING IN PART AND DENYING IN PART [11] Motion to Dismiss. Signed by Judge David A. Ezra.

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5 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION MARY UTHSCSA-PM DOE, § NO. 5:19-CV-453-DAE § Plaintiff, § § vs. § § UNIVERSITY OF TEXAS HEALTH § SCIENCE CENTER AT SAN § ANTONIO, and MARCEL NOUJEIM, § § Defendants. § ________________________________ § ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS The matter before the Court is Defendants University of Texas Health Science Center at San Antonio ("UTHSC") and Dr. Marcel Noujeim's Motion to Dismiss. (Dkt. # 11.) Pursuant to Local Rule CV-7(h), the Court finds this matter suitable for disposition without a hearing. Based on the following, the Court GRANTS IN PART and DENIES IN PART Defendants' motion. FACTUAL BACKGROUND On April 30, 2019, Plaintiff Mary UTHSCSA-PM Doe ("Plaintiff" or "Mary Doe") filed suit in this Court against Defendants. (Dkt. # 1.) Plaintiff's amended complaint alleges that she is an Iranian female of Persian and Islamic Heritage, with a strong medical background. (Dkt. # 6 at 1–2.) Plaintiff obtained 5 her Dentistry license from Iran. (Id. at 6.) In Fall 2017, Mary Doe was admitted into UTHSC's Oral and Maxillofacial Radiology Program ("OMRP"), with the intent and understanding that she would be admitted into UTHSC's Masters of Science program ("Masters Program"). (Id.) According to Plaintiff, she suffers from certain "Disabilities" which are recognized by laws in the United States. (Id. at 7.) Plaintiff contends that she began experiencing "sexual victimization" by Dr. Noujeim in 2017, and that it has continued non-stop since then as she is still a student at UTHSC. (Dkt. # 6 at 7.) Plaintiff alleges that Dr. Noujeim, a male who is Lebanese with a Christian heritage, has no respect for women from Iran of Persian and Islamic heritage. (Id. at 8.) Plaintiff contends that she has rebuffed Dr. Noujeim's sexual advances, and has filed formal grievances and complaints against him with UTHSC. (Id. at 7.) Among others, Plaintiff asserts that Dr. Noujeim has engaged—and continues to engage—in the following conduct towards her: (1) physically assaulting her, including grabbing her and placing her into a chair; (2) unlawfully restraining her; (3) stalking her and sending her inappropriate emails, text messages, and telephone calls; (4) racially insulting her; (5) unwanted and inappropriate touching; and (6) retaliation for rebuffing Dr. Noujeim's sexual advances. (Id. at 8–11.) Plaintiff further alleges that as a result of a "smear campaign," the faculty at UTHSC have concluded that she be placed 2 5 on academic probation and denied entry into the Masters Program. (Id. at 8.) Plaintiff also contends that she has been denied the right to proceed with her "Board Exams." (Id. at 13.) Plaintiff also alleges that UTHSC has "turned a blind eye" to Dr. Noujeim's conduct and adopted his prejudices towards her, resulting in academic harm to Plaintiff. (Id. at 8.) Plaintiff brings claims against Defendants for violations of: (1) Title IX of the Education Amendments of 1972 ("Title IX"), (2) Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("§ 504"), (3) the Americans with Disabilities Act of 1990, 42 U.S.C.A § 12101 et seq. ("ADA"), and (4) 42 U.S.C. § 1983 ("§ 1983"), as well as claims for breach of contract and violation of the Texas Constitution. (Dkt. # 6.) On August 27, 2019, Defendants filed a motion to dismiss Plaintiff's claims. (Dkt. # 11.) After the Court granted Plaintiff leave to file a late response, on September 23, 2019, Plaintiff filed a response in opposition, withdrawing her claims for breach of contract and violation of the Texas Constitution. (Dkt. # 15.) On September 30, 2019, Defendants filed a reply. (Dkt. # 17.) APPLICABLE LAW Defendants have moved to dismiss Plaintiff's claims pursuant to both Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. # 8.) 3 5 A. Rule 12(b)(1) A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges a federal court's subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). Under Rule 12(b)(1), a claim is properly dismissed for lack of subject matter jurisdiction when a court lacks statutory or constitutional authority to adjudicate the claim. Home Builders Assoc. of Mississippi, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, courts should consider the "jurisdictional attack before addressing any attack on the merits." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The Court must first address subject matter jurisdiction because, without it, the case can proceed no further. Ruhrgas Ag v. Marathon Oil Co., 526 U.S. 574, 583 (1999); Ramming, 281 F.3d at 161. In considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, "a court may evaluate (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." Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001) (citation omitted). 4 5 B. Rule 12(b)(6) Federal Rules of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." When analyzing a motion to dismiss for failure to state a claim, the court "accept[s] 'all well pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" United States ex rel. Vavra v. Kellogg Brown & Root, Inc., 727 F.3d 343, 346 (5th Cir. 2013) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)). The court "must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a Court may take judicial notice." Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, a court reviewing a complaint "[is] not bound to accept as true a legal conclusion couched as a factual 5 5 allegation." Id. "A Rule 12(b)(6) motion to dismiss for failure to state a claim is an appropriate method for raising a statute of limitations defense." Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir. 1977). ANALYSIS Because Plaintiff withdrew her claims for breach of contract and for violation of the Texas Constitution, the only live claims in this case are Plaintiff's claims under Title IX, § 504, the ADA, and 42 U.S.C. § 1983. (See Dkt. # 12.) Regarding these remaining claims, Defendants move to dismiss them on the basis that Plaintiff's suit is barred by res judicata. (Dkt. # 8.) In the alternative, Defendants contend that Plaintiff's Title IX, § 504, and ADA claims fail to state a claim upon which relief can be granted. (Id.) Defendants also argue that Plaintiff's ADA and § 1983 claims must be dismissed for lack of subject matter jurisdiction. (Id.) A. Res Judicata Defendants contend that Plaintiff's suit must be dismissed because it is barred by res judicata. (Dkt. # 11 at 5.) Plaintiff filed an original petition against UTHSC on September 11, 2018, in the 224th Judicial District Court of Bexar County, Texas, alleging claims under Title IX, § 504, and § 1983. (Dkt. # 11-1 at 33.) On February 11, 2019, UTHSC filed a plea to the jurisdiction which the state court set for hearing. (Id. at 49.) On April 4, 2019, after Plaintiff's 6 5 counsel failed to file a response to the plea to the jurisdiction or show for the hearing, the state court granted UTHSC's plea to the jurisdiction, dismissing Plaintiff's claims with prejudice. (Id. at 67.) Given this, Defendants argue that Plaintiff's claims are subject to claim preclusion and must be dismissed. (Dkt. # 11 at 5.) 1. Applicability of Res Judicata at the Pleading Stage Before turning to the substance of Defendants' Motion, the Court must first consider the propriety of raising a res judicata argument in a motion to dismiss. Although "generally a res judicata contention cannot be brought in a motion to dismiss" because it "must be pleaded as an affirmative defense," see Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 570 n.2 (5th Cir. 2005), "[d]ismissal under Rule 12(b)(6) on res judicata grounds may be appropriate when the elements of res judicata are apparent on the face of the pleadings." Dean v. Miss. Bd. of Bar Admissions, 394 F. App'x. 172, 175 (5th Cir. 2010); see also Meyers v. Textron, Inc., 540 F. App'x. 408, 410 (5th Cir. 2013) ("[R]es judicata may be properly raised on a motion to dismiss when 'the facts are admitted or not controverted or are conclusively established."' (quoting Clifton v. Warnaco, Inc., 53 F.3d 1280, 1995 WL 295863, at *6 n.13 (5th Cir. 1995))). In addition, dismissal under Rule 12(b)(6) is proper if the elements of res judicata are apparent "based on the facts pleaded and judicially noticed." See Hall v. Hodgkins, 305 F. 7 5 App'x 224, 227–28 (5th Cir. 2008) ("If, based on the facts pleaded and judicially noticed, a successful affirmative defense appears, then dismissal under Rule 12(b)(6) is proper."). In this case, as set out below, the Court resolves the issue of res judicata by relying only on the facts pleaded in Plaintiff's complaint and the judicially noticed record in Plaintiff's state court case, Mary UTHSC-MP Doe v. University of Texas Health Science Center at San Antonio, 2018-CI-17498. Therefore, because the elements of res judicata are apparent "based on the facts pleaded and judicially noticed," the Court finds that it is appropriate to review Defendants' res judicata defense in the context of its motion to dismiss. See Hall, 305 F. App'x at 229 ("Because [plaintiff's] own pleadings and the judicially noticed, publicly available documents all reveal that res judicata's four requirements are satisfied, the district court properly granted defendants' Rule 12(b)(6) motion to dismiss.").1 1 Moreover, in Test Masters, the Fifth Circuit reviewed the district court's dismissal of the plaintiff's claims under the 12(b)(6) standard because the plaintiff "did not challenge [the defendant's] ability to argue res judicata in a motion to dismiss rather than in [its] response or a motion for summary judgment." Id. at 570 n.2. Likewise, in this case Plaintiff has not challenged Defendants' ability to argue res judicata in a motion to dismiss. (See generally Dkt. # 12.) 8 5 2. Whether Res Judicata Bars Plaintiff's Claims Res judicata is an affirmative defense based on the principle "that controversies once decided shall remain in repose." See Comer v. Murphy Oil USA, Inc., 718 F.3d 460, 466 (5th Cir. 2013) (quoting Iselin v. Meng, 307 F.2d 455, 457 (5th Cir. 1962)); Test Masters, 428 F.3d at 570 n.2. Res judicata "does not depend upon whether or not the prior judgment was right." See Comer, 718 F.3d at 466 (quoting Iselin, 307 F.2d at 457). The "rule of res judicata encompasses two separate but linked preclusive doctrines: (1) true res judicata or claim preclusion and (2) collateral estoppel or issue preclusion." Id. at 466 (quoting Test Masters, 428 F.3d at 571). In determining the preclusive effect of a prior state court judgment, the Court 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 recognizes the defense of claim preclusion when the following elements are met: (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. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996); see also Norris v. Hearst Tr., 500 F.3d 454, 462 (5th Cir. 2007) (applying the res judicata standard stated in Amstadt v. U.S. Brass Corp. to determine the preclusive effect of a prior 9 5 state judgment in Texas). To determine whether the lawsuits involve the same basic subject matter, the court focuses on the factual basis of the complaint. Amstadt, 919 S.W.2d at 653. In response to Defendants' motion, Plaintiff contends that res judicata does not bar her suit here because her state court suit was against only UTHSC and not Dr. Noujeim. (Dkt. # 15 at 4.) Plaintiff asserts that her state court suit was brought solely for purposes of informing UTHSC "of the improper and illegal sexual harassment actions" of Dr. Noujeim "with the hope that a dialogue could be initiated" between Plaintiff and UTHSC. (Id. at 5.) Plaintiff contends that even if res judicata bars some of the conduct in this case, such preclusion would only reach claims arising prior to April 4, 2019, the date of the dismissal of the state court action. (Id. at 8.) She maintains that the conduct complained of in this case continued beyond that date, as she is still a student at UTHSC. (Id.) a. Prior Final Judgment Defendants contend that the state court's order granting UTHSC's plea to the jurisdiction and dismissing with prejudice Plaintiff's claims in that case constitutes a final judgment on the merits by a court of competent jurisdiction. (Dkt. # 11-1 at 13.) The Court agrees. The Fifth Circuit has held that "under Texas law, a grant of a plea to the jurisdiction is a dismissal on the merits for purpose of res judicata." Sims v. City of Madisonville, 894 F.3d 632, 644 (5th Cir. 10 5 2018) (citing Klein v. Walker, 708 F. App'x 158, 159 (5th Cir. 2017); Flores v. Edinburg Consol. Indep. Sch. Dist., 741 F.2d 773, 775 n.3 (5th Cir. 1984)); see also Jabary v. City of Allen, No. 4:10-CV-711, 2015 WL 2379181, at *6 (E.D. Tex. May 18, 2015) (citing Harris Cty. Sykes, 136 S.W.3d 635, 640–41 (Tex. 2004)). The first element of Texas's preclusion law is therefore satisfied. b. Identity of Parties or Those in Privity The second element is also met. Plaintiff sued UTHSC both in her state court suit and in her suit in this Court. Plaintiff's state court petition referenced "an administrator," who she has replaced in her near identical federal court complaint with Dr. Noujeim. (See Dkt. # 11-1 at 33; Dkt. # 6.) Regarding Dr. Noujeim, Plaintiff has sued him in his official capacity. (Dkt. # 6.) As such, he is a party in privity with his government employer UTHSC. "[A]n official capacity suit is, in all respects other than name, [] treated as a suit against the entity." Turner v. Houma Mun. Fire and Police Civil Serv. Bd., 229 F.3d 478, 484 (5th Cir. 2000) (observing that when "a defendant government official is sued in his individual and official capacity, and the city or state is also sued," the "official- capacity claims and the claims against the governmental entity essentially merge"); see also Harmon v. Dallas Cnty., Tex., 927 F.3d 884, 891–92 (5th Cir. 2019). 11 5 c. Same Claims Turning to the final element, Texas applies the "transactional" approach to determine whether a case is res judicata. Barr v. Resolution Tr. Corp., 837 S.W.2d 627, 631 (Tex. 1992); Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 798 (Tex. 1992). "Under this approach, a judgment in an earlier suit 'precludes a second action by the parties and their privies not only on matters actually litigated, but also on causes of action or defenses which arise out of the same subject matter and which might have been litigated in the first suit.'" Getty Oil Co., 845 S.W.2d at 798. The Supreme Court of Texas has cited positively those factors set forth in the Restatement on Judgments for determining whether a subsequent suit involves the same claims as a prior suit, including: "whether facts constitute a single 'transaction' are 'their relatedness in time, space, origin, or motivation, and whether, taken together, they form a convenient unit for trial purposes.'" Id. at 798–99. The heart of Plaintiff's claims in this case clearly arise out of the same transaction or occurrence as her state court claims. She has alleged near-identical facts which form the basis of her claims in both her state court petition and her federal court complaint. (Cf. Dkt. # 11-1 at 33; Dkt. # 6.) Even if some of the claims alleged are different, the Fifth Circuit has held that "[d]ifferent theories of recovery based on the same operative facts do not generate different causes of 12 5 action." Sims, 894 F.3d at 645. Thus, it is clear to the Court that Plaintiff's claims in this case are precluded by res judicata to the extent they allege conduct occurring within the time frame addressed in Plaintiff's state court petition and for which final judgment has been entered. Nevertheless, the Court must still consider whether Plaintiff's allegations regarding conduct occurring after the filing of her state court petition would be barred by res judicata. Texas courts have refused to apply res judicata to claims that were not yet mature at the time of the first lawsuit. See Welsh v. Fort Bend Indep. Sch. Dist., 860 F.3d 762, 765–66 (5th Cir. 2017) (citing Collins v. Guinn, 102 S.W.3d 825, 832 (Tex. App.—Texarkana 2003, pet. denied) ("Res judicata will not bar a plaintiff's recovery in a subsequent lawsuit absent a showing that the same claims were mature at the time of the prior judgment."); Ben C. Jones & Co. v. Gammel Statesman Pub. Co., 100 Tex. 320, 99 S.W. 701 (Tex. 1907) ("It is true that under our system of practice the plaintiffs might have amended their petition and have introduced into that suit all causes of action which had accrued under that contract, but there is no rule of practice that required that they should do so.")). Plaintiff's claims for Defendants' conduct occurring after her state court petition was filed were not yet mature. As such, Plaintiff could not have brought them in the state court suit. Therefore, to the extent Plaintiff's complaint in this suit properly 13 5 alleges conduct occurring after she filed her state court petition on September 11, 2018, the Court finds these claims are not barred by res judicata. Accordingly, upon consideration of the claim preclusion factors, the Court finds that Plaintiff's claims based on facts occurring prior to September 11, 2018, the date Plaintiff filed her state court petition, are barred by res judicata and they will be dismissed with prejudice. However, as discussed, any claims based on conduct occurring after September 11, 2018, are not precluded. The Court will next consider whether any of the remaining claims pertaining to facts occurring after September 11, 2018, may nevertheless be dismissed for failure to state a claim or for lack of subject matter jurisdiction. B. Title IX Claim Under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance," subject to specific exceptions. Id. § 1681(a). This prohibition on discrimination is enforceable through an implied cause of action. Cannon v. Univ. of Chicago, 441 U.S. 677, 688–89 (1979). Sexual harassment is an actionable form of discrimination under Title IX. Franklin v. Gwinnett County Pub. Schools, 503 U.S. 60, 75 (1992). Both damages and injunctive relief are available in private 14 5 suits under Title IX. Fitzgerald v. Barnstable School Cmte., 555 U.S. 246, 255 (2009). Entities that receive federal funding may be liable under Title IX if they are "deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities provided by the school." Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650 (1999). A school district may be held liable for damages only when it "intentionally acted in clear violation of Title IX by remaining deliberately indifferent to acts of. . . harassment of which it had actual knowledge." Id. at 642. Actual knowledge is established when an individual who had "authority to address the alleged [harassment] and to institute corrective measures on the recipient's behalf" is notified of the harassment. Gebster v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). Defendants move to dismiss Plaintiff's Title IX claim on the basis that she has only vaguely asserted the facts necessary to maintain this claim. (Dkt. # 11-1 at 17.) Defendants argue that Plaintiff has only recited the elements of the claim but has not identified any officials or employees of UTHSC that had any actual knowledge of the alleged harassment by Dr. Noujeim. (Id.) Additionally, because she has not stated to whom she reported the alleged harassment, 15 5 Defendants contend that Plaintiff cannot establish that UTHSC was deliberately indifferent to her complaints. (Id.) Defendants also assert that Plaintiff's Title IX claim seeking damages against Dr. Noujeim must also be dismissed because individual defendants cannot be held liable under the applicable statute. (Id. at 16.) Plaintiff's Second Amended Complaint alleges that she complained about Dr. Noujeim's harassment and "approached faculty at various levels," referring to those persons as the "Upper Echelon." (Dkt. # 6 at 12.) Plaintiff also states that she "filed numerous grievances and appeals with the Upper Echelon to address Noujeim's Harassment," and that her "experiences with the Upper Echelon [have] also been unsatisfactory." (Id.) Plaintiff further alleges that "[f]alse accusations, rejected claims of discrimination, and the imposition of arbitrary sanctions is how the Upper Echelon has dealt with Plaintiff Mary." (Id. at 13.) Additionally, Plaintiff states that due to this conduct, she was denied the right to proceed with her "Board Exams" and enter the Masters Program. (Id.) In Plaintiff's response to the motion to dismiss, Plaintiff references exhibits attached to her response which include grievances she sent to various individuals at UTHSC complaining about Dr. Noujeim's conduct, among other complaints. (Dkt. # 15-1.) In general, a court cannot look beyond the pleadings in deciding a 12(b)(6) motion. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229 (2000); Baker v. Putnal, 75 F.3d 190, 196 (5th 16 5 Cir. 1996). Nevertheless, "pleadings" for purposes of a Rule 12(b)(6) motion include attachments to the complaint. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007); Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Similarly, documents attached to a motion to dismiss or to a response to a motion to dismiss "are considered part of the pleadings, if they are referred to in the plaintiff's complaint and are central to her claim[s]." Collins, 224 F.3d at 499 (quotations omitted); accord Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 725 (5th Cir. 2003); see Walch v. Adjutant General's Dept. of Tex., 533 F.3d 289, 293–94 (5th Cir. 2008) (finding that reliance on documents attached to a response to a motion to dismiss was appropriate where the documents were "sufficiently referenced in the complaint"). Here, Plaintiff has not specifically referenced the documents attached to her response in her Second Amended Complaint, nor are they attached the complaint, so the Court will not consider them here. Still, upon close review of the Second Amended Complaint, the Court finds that Plaintiff has stated a plausible Title IX claim for relief against UTHSC, albeit narrowly, in her Second Amended Complaint. Therefore, the Court will deny Defendants' motion to dismiss Plaintiff's Title IX claim against UTHSC. Regarding Plaintiff's Title IX claim against Dr. Noujeim, the Court agrees with Defendants. The Fifth Circuit has held that "[l]iability under Title IX does not 17 5 extend to school officials, teachers and other individuals." Plummer v. Univ. of Houston, 860 F.3d 767, 777 n.12 (5th Cir. 2017). Accordingly, the Court will grant Defendants' motion to dismiss Plaintiff's Title IX claim against Dr. Noujeim, and that claim is dismissed with prejudice. C. Section 504 Claim Section 504 of the Rehabilitation Act mandates that "[n]o otherwise qualified individual with a disability. . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). To qualify for relief under the Rehabilitation Act, a plaintiff must prove that (1) she is an individual with a disability; (2) who is otherwise qualified; (3) who worked for a program or activity receiving Federal financial assistance; and (4) that she was discriminated against solely by reason of her disability. See, e.g., Hileman v. City of Dallas, Tex., 115 F.3d 352, 353 (5th Cir. 1997). Defendants maintain that Plaintiff has failed to plead that she is a qualified individual with a disability. (Dkt. # 11-1 at 18.) Instead, according to Defendants, Plaintiff only vaguely alleges that she has disabilities but fails to specify what those disabilities are. (Id.) Defendants also argue that Plaintiff has failed to plead any facts as to what discrimination she allegedly endured as a result 18 5 of her disability. (Id. at 18–19.) Finally, Defendants argue that her complaint fails to plead any facts which suggest that she was discriminated against solely on account of her disability. (Id. at 18–19.) Upon close review, the Court finds that Plaintiff has narrowly pled a sufficient § 504 claim against Defendants and will therefore deny the motion to dismiss this claim. D. ADA Claim Title II of the ADA provides: "[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. It further defines "public entities" to include "instrumentalit[ies]" of States, such as UTHSC. § 12131(1)(B). And it creates a private right of action against them for monetary and equitable relief. See § 12133. To make out a prima facie case under Title II, a plaintiff must show "(1) that [she] is a qualified individual within the meaning of the ADA; (2) that [she] is being excluded from participation in, or being denied benefits of, services, programs, or activities for which the public entity is responsible, or is otherwise being discriminated against by the public entity; and (3) that such exclusion, denial 19 5 of benefits, or discrimination is by reason of [her] disability." Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671–72 (5th Cir. 2004). Defendants argue that Plaintiff's ADA claim should be dismissed because she has not properly alleged that she suffers from disabilities recognized by the ADA, nor has she identified specific facts which suggest that her disability was a motivating factor in her discrimination. (Dkt. # 11-1 at 19.) Alternatively, Defendants contend that Plaintiff's ADA claim must be dismissed for lack of subject matter jurisdiction. (Id.) According to Defendants, the ADA claim is barred by UTHSC's Eleventh Amendment immunity because UTHSC did not violate either Title II or Plaintiff's constitutional rights. (Id. at 19–20.) As the Court found in Plaintiff's § 504 claim, Plaintiff has narrowly pled sufficient facts in support of each element of her ADA claim. Still, the Court must also consider whether the Court even has subject matter jurisdiction over such a claim. Because the ADA's application to UTHSC is not linked to a provision of federal funding, there is no waiver of sovereign immunity for this claim. See Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 276 n.4, 291 (5th Cir. 2005) (en banc). Sovereign immunity thus bars Title II claims against the school unless Congress has validly abrogated that immunity under its power to enforce the Constitution's substantive guarantees through the Fourteenth Amendment. 20 5 Determining whether sovereign immunity has been abrogated as to a particular Title II claim hinges on three inquiries. First, the Court must consider "which aspects of the State's alleged conduct violated Title II." United States v. Georgia, 546 U.S. 151, 159 (2006). Next, the Court must determine "to what extent such misconduct also violated the Fourteenth Amendment." Id. If the alleged conduct violates both a constitutional guarantee and Title II, then there is no immunity, but if the conduct offends neither Title II nor the Constitution, then the suit must fail. If "the State's conduct violated Title II but did not violate the Fourteenth Amendment," however, the court must make a third inquiry to determine "whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid." Hale v. King, 642 F.3d 492, 498 (5th Cir .2011) (interpreting Georgia). The third test arises from the principle that Congress's power under the Fourteenth Amendment includes authority to prohibit conduct that is not itself unconstitutional but that Congress determines should be barred by one of its enactments "both to remedy and to deter violation of rights guaranteed" by the Amendment. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000). Because Title II might still abrogate sovereign immunity for violations that fall short of a constitutional violation, the courts must always assess the underlying merits of the cause of action. Hale, 642 F.3d at 498. 21 5 At this stage of the proceedings, the Court cannot make any determination as to whether Plaintiff's ADA claim is barred by sovereign immunity. This question is best left for summary judgment. Defendants' motion to dismiss Plaintiff's ADA claim is denied. E. Claims Under 42 U.S.C. § 1983 Defendants next move to dismiss Plaintiff's 42 U.S.C. 1983 claims against UTHSC and Dr. Noujeim. (Dkt. # 11-1 at 23.) Defendants contend that the Court lacks subject matter jurisdiction because Plaintiff's § 1983 claims are barred by sovereign immunity. (Id.) In response to Defendants' motion, Plaintiff abandons her claim for damages against UTHSC under § 1983, but believes she is entitled to "certain equitable relief." (Dkt. # 15 at 14.) Plaintiff, however, still contends that she has stated a valid § 1983 against Dr. Noujeim, claiming for the first time that she has sued him both in his individual and official capacities. (Id.) Under Texas law, state universities such as UTHSC are considered agencies of the State of Texas that are entitled to sovereign immunity. See Tex. Gov't Code Ann. § 572.002(10)(B) (West 2017) (defining "a university system or an institution of higher education" as a "state agency"); U.S. ex rel. King v. Univ. of Texas Health Sci. Ctr.–Houston, 544 F. App'x 490, 495 (5th Cir. 2013) (noting that "Texas statutes consider 'a [public] university system or an institution of higher education' to be a 'state agency.'") (quoting Tex. Gov't Code Ann. 22 5 § 572.002(10)(B) (West 2017)). Accordingly, UTHSC is "inarguably a state agency that is entitled to sovereign immunity." Sissom v. Univ. of Texas High Sch., 927 F.3d 343, 348 (5th Cir. 2019) (internal citations omitted); see also Williams v. Univ. of Houston Downtown Police Dep't, 2019 WL 2931669, at *2 (S.D. Tex. June 18, 2019) ("Under Texas Law, state universities are agencies of the state and enjoy immunity under the Eleventh Amendment."), report and recommendation adopted, 2019 WL 2913765 (S.D. Tex. July 8, 2019). UTHSC has not consented to suit in this case and Congress has not expressly waived Eleventh Amendment immunity for § 1983 suits. Lewis v. Univ. of Texas Med. Branch at Galveston, 665 F.3d 625, 630 (5th Cir. 2011). Accordingly, UTHSC is entitled to immunity from Plaintiff's § 1983 claims "regardless of the relief sought." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Additionally, the Eleventh Amendment also extends "to state officials who are sued in their official capacity because such a suit is actually one against the state itself." McKinley v. Abbott, 643 F.3d 403, 406 (5th Cir. 2011). Accordingly, Plaintiff's § 1983 claims seeking monetary damages Dr. Noujeim in his official capacity are also barred. For these reasons, the Court will grant Defendants' 23 5 motion and dismiss with prejudice Plaintiff's § 1983 claims for damages against UTHSC and Dr. Noujeim in his official capacity.2 Additionally, because it is not clear if Dr. Noujeim is also sued in his individual capacity for the § 1983 claim, the Court will allow Plaintiff leave to file an amended complaint for this claim only within 14 days of the date of this Order.3 CONCLUSION Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion to Dismiss. (Dkt. # 11.) The motion is GRANTED as to Plaintiff's: (1) claims based on Defendants' conduct occurring prior to September 11, 2018, because they are barred by res judicata; (2) Title IX claim against Dr. Noujeim; and (3) § 1983 claims against UTHSC and against Dr. 2 Plaintiff seeks only "recovery of all actual and consequential damages available to her in accordance with Section 1983." (Dkt. # 2 at 19.) She has not sought any declaratory or injunctive relief for this claim. Cf. Aguilar v. Texas Dep't of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998) ("To meet the Ex Parte Young exception [to the Eleventh Amendment bar], a plaintiff's suit alleging a violation of federal law must be brought against individual persons in their official capacities as agents of the state, and the relief sought must be declaratory or injunctive in nature and prospective in effect."). The Ex Parte Young exception therefore does not apply in this case. 3 To the extent Plaintiff raises a § 1983 claim against Defendants for First Amendment retaliation, she has not properly pled such a claim. (See Dkt. # 6 at 21.) 24 5 Noujeim in his official capacity. These claims are DISMISSED WITH PREJUDICE. The motion is DENIED as to all other claims. IT IS SO ORDERED. DATED: San Antonio, Texas, November 19, 2019. _____________________________________ David Alan Ezra Senior United States Distict Judge 25