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

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

REPLY to Response to Motion, filed by Marcel Noujeim, The University of Texas Health Science Center at San Antonio, re [11] MOTION to Dismiss filed by Defendant The University of Texas Health Science Center at San Antonio, Defendant Marcel Noujeim

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1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION MARY UTHSCSA-PM DOE, § § Plaintiff, § § v. § CASE NO. 5:19-CV-00453-DAE § THE UNIVERSITY OF TEXAS HEALTH § SCIENCE CENTER AT SAN ANTONIO § and MARCEL NOUJEIM, § § Defendants. § DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS TO THE HONORABLE SENIOR U.S. DISTRICT JUDGE DAVID A. EZRA: Defendants University of Texas Health Science Center at San Antonio ("UTHSC") and Dr. Marcel Noujeim ("Dr. Noujeim"), sued in his official capacity (collectively "Defendants") file this Reply to Plaintiff's Response to Defendants Motion to Dismiss, and would respectfully show the Court as follows: I. INTRODUCTION Doe has stated she does not plan to pursue and is dropping (1) the § 1983 claim for money damages against Defendant UTHSC; (2) any claim under the Texas Constitution; and (3) any claim for breach of contract. Therefore, Defendants' reply will only be limited to the issues contested by Doe in her Response. What remains of Doe's lawsuit is still barred by res judicata because, in Texas, a grant of a plea to the jurisdiction is a dismissal on the merits for res judicata purposes. Even if Doe can persuade this Court that her lawsuit is not barred altogether, Doe has not stated a valid claim for relief against either Defendant under Title IX, § 1983, Section 504 of the Rehab Act, or ADA. Doe Defendants' Reply to Plaintiff's Response to Motion to Dismiss 1 1 should not be given another opportunity to replead. Therefore, Defendants respectfully request this Court to dismiss Doe's claims with prejudice. II. ARGUMENTS AND AUTHORITIES A. Doe's claims are barred by res judicata. Texas claim preclusion law requires (1) a prior final judgment on the merits by a court of competent jurisdiction, (2) identity of the parties or those in privity with them, and (3) a second cause of 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). 1. A grant of a plea to the jurisdiction is a dismissal on the merits for the purpose of res judicata. Defendants assert that a grant of a plea to the jurisdiction is a dismissal on the merits for purposes of res judicata. Doc. 11.1 at 4–5. Doe attempts to deceive this Court when she writes that "the singular citation for such a proposition is the unpublished Fifth Circuit decision in Klein v. Walker, 708 F. App'x 158, 159 (5th Cir. 2017)." Doc. 15 at ¶18. "Defendants' reliance on Klein is misplaced and disingenuous," she claims, because the opinion "was not published and was not to be used as precedent" and "is of no meaning to this Court." Doc. 15 at ¶19 Two other Fifth Circuit opinions also cite to Klein to hold that a dismissal on immunity grounds from a plea to the jurisdiction is a dismissal on the merits. Harmon v. Dallas Cnty., 927 F.3d 884, 890 (5th Cir. 2019); Sims, 894 F.3d at 644. In Sims, the Fifth Circuit stated clearly: "We have held that, under Texas law, a grant of a plea to the jurisdiction is a dismissal on the merits for purpose of res judicata." Id. (citing Klein, 708 F. Appx at 159) (citing Flores v. Edinburg Consol. Indep. Sch. Dist., 741 F.2d 773, 775 n. 3 (5th Cir. 1984)). The Fifth Circuit then affirmed that district court's decision that Sims' claims were barred in federal court because the statute court dismissed his case with prejudice on the basis of governmental immunity. Sims, 894 F.3d at 644. Defendants' Reply to Plaintiff's Response to Motion to Dismiss 2 1 Like the plaintiff in Sims, the 224th Judicial District Court in Bexar County dismissed Doe's claims with prejudice based on UTHSC's sovereign immunity. Doc. 11-1 at 67; see also Jane UTHSC-MP Doe v. The University of Texas Health Science Center at San Antonio, 2018-CI- 17498; Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (holding that the court may take judicial notice of matters of public record without converting a motion to dismiss to a motion for summary judgment). The grant of UTHSC's plea to the jurisdiction satisfies the first element of Texas's claim preclusion law. 2. The parties are the same, and Dr. Noujeim is in privity with UTHSC. Doe admits that her state court lawsuit included UTHSC. Doc. 15 at ¶10. She also admits that the individual mentioned as the administrator in her state court lawsuit "indeed, is Defendant Noujeim." Doc. 15 at ¶13. She did not contest the fact that the allegations leveled against Dr. Noujeim are the same in both lawsuits, and that Dr. Noujeim in his official capacity is a party in privity with his government employer, UTHSC. Doc. 11-1 at p. 6; see also Black v. Panola Sch. Dist., 461 F.3d 584, 588 n. 1 (5th Cir. 2006) (concluding that the plaintiff abandoned her claim when she failed to defend the claim in response to a motion to dismiss). 3. Doe could have raised the instant claims in the first action. The res judicata doctrine prevents Doe from relitigating claims that, with the use of diligence, could have been litigated in the state court matter. See Sims, 894 F.3d at 644. "[A]ctions 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.'" Id. at 644–45. "Different theories of recovery based on the same operative facts do not generate different causes of action." Id. at 645 (citing Hogue v. Royse City, 939 F.2d 1249, 1253-54 (5th Cir. 1991)). Even when the underlying claims may be from different time periods, if the arguments Defendants' Reply to Plaintiff's Response to Motion to Dismiss 3 1 raised are the same in both cases, res judicata bars the second action. See Beadles v. Lago Vista Prop. Owners Ass'n Inc., No. 03-05-00194, 2007 WL 1451515, at *4 (Tex. App.—Austin 2007, no pet.) (court holding that res judicata barred claims because Beadles presented the same arguments in both cases, even though the time periods for the claims were different). Here, Doe seeks to pursue claims that are based on the same set of facts as alleged in her state lawsuit. In state court, Doe alleges that she "has been the victim of ongoing discrimination" and brought claims under Title IX, Section 504 of the Rehab Act, and § 1983; in federal court, Doe alleges those same facts and adds additional claims. Compare Doc. 11-1 at 33 (preamble) with Doc. 6 at 1. Doe's allegations and operative facts are the same in both cases. Compare Doc. 11-1 at 35 (¶11) with Doc. 6 at ¶ 25 (listing the same facts). Both the state and federal pleadings ask for monetary damages. Ex. A at ¶ 14; Doc. 6 at ¶ 36. Both the state and federal pleadings show that Doe's claims and allegations related in time, origin and motivation to what Doe alleges to be sexual harassment from Dr. Noujeim. See Barr v. Resolution Trust Corp. ex. rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 631 (Tex. 1992) (holding that res judicata barred lawsuit because both suits required proof of the origin of the claims and sought damages). Therefore, Doe's lawsuit is barred. Doe argues that if this Court finds res judicata to apply, it could only apply to claims prior to April 4, 2019. Doc. 15 at ¶22. However, the arguments raised by Doe to any claim after April 4, 2019 are the same for before that date. See Beadles, 2007 WL 1451515, at *4. In addition, Doe's claims after April 4, 2019 are based on the same operate facts. Therefore, the third element of res judicata applies, and Doe's claims are barred by res judicata. B. Doe has not stated a valid Title IX claim against UTHSC. Doe attempts to argue that she has stated a valid Title IX claim against UTHSC. Doc. 15 at ¶¶24–30. However, she has not. Doe for the first time attempts to assert the names of individuals Defendants' Reply to Plaintiff's Response to Motion to Dismiss 4 1 Doe claims had actual knowledge by including them as part of an appendix to her Response to try and cure a deficiency within her Second Amended Complaint. In a 12(b)(6) motion, the court is limited to the actual contents of the pleadings and the documents attached to thereto. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.2000). If a document is attached to a response to a motion to dismiss under Rule 12(b)(6), a court may consider them provided they are referred to by the complaint and are integral and central to the plaintiff's claims. Davis v. Brennan, No. 3:17-CV-3347-N-BH, 2018 WL 3626344, at * 3 (N.D. Tex. 2018) (citing Collins). The documents must also be "sufficiently referenced in the complaint." Walch v. Adjutant Gen.'s Dept. of Tex., 533 F.3d 289, 293–94 (5th Cir. 2008). However, if a document reference in the plaintiff's complaint is just evidence of an element of the plaintiff's claims, then the court should not incorporate it into the complaint during a 12(b)(6) motion. See Lopez v. Don Herring Ltd., No. 3:16-CV-02663-B, 2018 WL 296063, at *4 (N.D. Tex. 2018) (citing Kaye v. Lone Star Fund V (U.S.), L.P., 453 B.R. 645, 661–62 (N.D. Tex. 2011)). In this case, the alleged grievance complaints are not attached to Doe's Second Amended Complaint or Defendants' Motion to Dismiss; rather, they are attached to Doe's response to the motion to dismiss. Assuming arguendo that the complaints are referred to in Doe's Second Amended Complaint, then documents are just evidence of the elements of actual knowledge and deliberate indifference of Doe's claims that she failed to plead, even though she amended her complaint twice. In addition, she only references complaints twice in her Second Amended Complaint. See Doc. 6 at ¶¶20, 29. Therefore, the Court should not consider these documents in determining whether she has pled a viable claim. If this Court were to consider these documents for purposes of a motion to dismiss, the complaint still fails to state factual allegations concerning actual knowledge. A.W. v. Humble Defendants' Reply to Plaintiff's Response to Motion to Dismiss 5 1 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). Doe fails to state, even in her Response, that the individuals she purported to state these grievances to were "appropriate school officials." See Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 646-647 (1999). Finally, the filing of another lawsuit involving Defendants does not mean that Defendant UTHSC had actual knowledge of Doe's complaints. Therefore, Doe still fails to show actual knowledge. 1 In arguing deliberate indifference, Doe again tries to prove this element with the use of documents outside her pleadings and outside Defendants' Motion to Dismiss, which should not be allowed. In addition, Doe again makes conclusory statements to supper her allegation that Defendant UTHSC acted with deliberate indifference. "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. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Therefore, Doe has failed to state a Title IX claim, and it should be dismissed. C. Doe's Title IX claim against Dr. Noujeim is not actionable. Title IX does not reach individuals, regardless of whether the claim is made against a professor in his official or individual capacity. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 1 There is another way the Court could consider the attached documents. "[I]f matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment." FED. R. CIV. P. 12(d). The court has discretion whether to consider matters outside the pleadings. Isquith on behalf of Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 193 n.3 (5th Cir.1988). The court's discretion is generally exercised in terms of whether the proffered material and the resulting conversion to a Rule 56 procedure are likely to facilitate the disposition of the action. Id. Defendants object to these documents because they were not attached to Doe's Second Amended Complaint and any reply attacking the documents specifically would necessitate further documentation and discovery as to both the actual knowledge and deliberate indifference elements. In addition, the resulting conversion to a motion for summary judgment would not be likely to facilitate the disposition of this action at this stage of the proceedings. Defendants' Reply to Plaintiff's Response to Motion to Dismiss 6 1 257 (2009) ("Title IX…has consistently been interpreted as not authorizing suit against school officials, teachers, and other individuals."). D. The Eleventh Amendment bars Doe's § 1983 claims against UTHSC, "regardless of the relief sought." Doe argues that she has stated a value § 1983 claim against Defendant UTHSC. Doc. 15 at ¶¶37–38Doe fails to articulate how her claims are not barred by Eleventh Amendment immunity. "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 UTHSC's immunity under the Eleventh Amendment. Quern v. Jordan, 440 U.S. 332, 338 n.7 (1979). Therefore, Doe does not plead a valid § 1983 claim against UTHSC. E. Doe has not pled a valid § 1983 claim against Dr. Noujeim. As for Dr. Noujeim, Doe for the first time articulates that she plans to move forward on her § 1983 claims against him in both his official and individual capacities. See Doc. 15 at 39. Even if she was allowed to amend her complaint to make this clear, the claims would still fail. First, Doe's § 1983 claims against him are 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). Second, Doe fails to articulate how Dr. Noujeim falls within the Ex parte Young exception to Eleventh Amendment immunity. Under the Ex parte Young exception, Eleventh Amendment immunity may be overcome when the suit "seeks prospective, injunctive relief from a state actor, in [his] official capacity, based on an alleged ongoing violation of the federal constitution" or other federal law. K.P. v. LeBlanc, 729 F.3d 427, Defendants' Reply to Plaintiff's Response to Motion to Dismiss 7 1 439 (5th Cir. 2013); McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 413–14 (5th Cir. 2004). "In determining whether the Ex parte Young doctrine avoids an Eleventh Amendment bar to suit, a court need only conduct a 'straightforward inquiry' into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." Verizon Md., Inc. v. Public Serv. Com'n of Md., 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296, 298–299 (1997). Here, Doe's complaint fails to state an ongoing violation of federal law. Doe's complaint also fails to state prospective injunctive relief to be sought against Dr. Noujeim. Therefore, Doe's § 1983 claim against Dr. Noujeim in his official capacity should be dismissed. Pertaining to any claim of individual capacity against Dr. Noujeim, Doe should not be allowed to replead to raise this issue for the first time. Doe's Second Amended Complaint makes no reference to her bringing any § 1983 claim based on individual capacity. See Doc. 6. It is therefore inappropriate to examine whether these claims are indeed in his individual capacity, and whether qualified immunity attaches to Dr. Noujeim. F. Doe has not stated a valid Section 504 claim. Doe feebly argues that she has pled a valid claim (or can plead a valid claim if given the chance to replead) under Section 504 of the Rehab Act. However, Doe's arguments lack merit. Doe still fails to articulate what disability she has that would allow her to meet the definition of "a qualified individual with a disability." See Washburn v. Harvev, 504 F.3d 505, 508 (5th Cir. 2007) (qualified individual with a disability is an element of a Section 504 claim). Doe attempts to cure this by attaching a document that purports to assist her claim, but this document should not be considered by the Court in determining whether Doe has pled a valid claim. See supra at Subsection B. Doe then mistakenly states that Defendants relied on Bennett-Nelson for the Defendants' Reply to Plaintiff's Response to Motion to Dismiss 8 1 proposition that Doe could not assert a Section 504 claim if she also asserts other grounds for other causes of action. Defendants actually relied on Shah, which dismissed a Section 504 claim because the plaintiff in that case alleged discrimination based on disability and ethnicity. Shah v. Univ. of Tex. Sw. Med. Sch., 54 F. Supp. 3d 681, 685 (N.D. Tex. 2014). Similarly, Doe alleges discrimination based on gender and disability. Therefore, Doe's Section 504 claim should be dismissed for failure to state a claim. G. Doe's ADA claims must be dismissed for lack of subject matter jurisdiction. Doe fails to articulate how exactly the Georgia opinion supports her right to sue under the ADA, other than a conclusory sentence at the end of that section. For example, Doe does not state how there was a procedural, substantive or equal protection due process violation sufficient to meet the second step in the Georgia test. See United States v. Georgia, 546 U.S. 151, 159 (2006). In addition, Doe fails to articulate how UTHSC's sovereign immunity is validly abrogated by Title II of the ADA. See id. (the abrogation of sovereign immunity in Title II of the ADA is a valid exercise of congressional power to the extent "a private cause of action for damages against the State for conduct that actually violates the Fourteenth Amendment.") (emphasis original). Therefore, Doe's ADA claims must be dismissed for lack of subject matter jurisdiction. H. Doe should not be given another opportunity to replead. Doe repeatedly through her response asks the Court for leave to amend. Doe originally filed a 14-page, 54-paragraph petition in state court. UTHSC filed a plea to the jurisdiction, in which it explained the deficiencies in Doe's petition regarding her Title IX claim and her § 1983 claim. After the state court case was dismissed with prejudice, Doe filed a 26-page, 88-paragraph petition in federal court. See Doc. 1. Doe then amended their complaint not once, but twice. See Doc. 3 and Doc. 6. Therefore, it appears that Doe pled her best case. Even if she amended her Defendants' Reply to Plaintiff's Response to Motion to Dismiss 9 1 complaint yet again, she has no viable avenue to recover on her claims in this Court. Jones v. Greninger, 188 F. 3d 322, 327 (5th Cir. 1999) (affirming dismissal with prejudice where plaintiff has pleaded his best case). Because any amendment would be futile, Doe's Second Amended Complaint should be dismissed with prejudice. III. CONCLUSION For these reasons, Defendants respectfully request that this court grant Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint [Doc. 11], dismissing all claims against them. Defendants further request any and all such other relief to which Defendants may show themselves entitled, including costs and attorneys' fees. 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 Defendants' Reply to Plaintiff's Response to Motion to Dismiss 10 1 CERTIFICATE OF SERVICE I hereby certify that on September 30, 2019, a true and correct copy of the foregoing document was served via the Court's CM/ECF system to all counsel of record: Terry P. Gorman, Esq. Gorman Law Firm, pllc 901 Mopac Expressway South, Suite 300 Austin, TX 78746 tgorman@school-law.co ATTORNEY FOR PLAINTIFF /s/ Glorieni M. Azeredo GLORIENI M. AZEREDO Assistant Attorney General Defendants' Reply to Plaintiff's Response to Motion to Dismiss 11