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

Western District of Texas, txwd-5:2019-cv-00248

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1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION JANE UTHSCSA-AS DOE, § § Plaintiff, § § v. § CASE NO. 5:19-CV-00248-DAE § THE UNIVERSITY OF TEXAS HEALTH § SCIENCE CENTER AT SAN ANTONIO § and MARCEL NOUJEIM, § § Defendants. § DEFENDANTS' BRIEF IN SUPORT OF MOTION TO DISMISS 1 TABLE OF CONTENTS Table of Contents ............................................................................................................................ ii Table of Authorities ....................................................................................................................... iii I. BACKGROUND .......................................................................................................................1 II. SUMMARY OF ARGUMENT ...............................................................................................2 III. LEGAL STANDARD..............................................................................................................2 A. Federal Rule of Civil Procedure 12(b)(1) ........................................................................2 B. Federal Rule of Civil Procedure 12(b)(6) ........................................................................3 IV. ANALYSIS..............................................................................................................................3 A. Doe's lawsuit must be dismissed because it is barred by res judicata ..............................3 1. Procedural History ......................................................................................................3 2. The state court order dismissing Doe's claims bars her current claims .......................4 B. Doe failed to state a claim against UTHSC under Title IX ...............................................6 C. Doe's Title IX claim against Dr. Noujeim fails as a matter of law ...................................8 D. Doe's Section 1983 claims against UTHSC and Dr. Noujeim must be dismissed for lack of subject matter jurisdiction or, alternatively, for failure to state a claim ..............9 E. Doe's claims under the Texas Constitution must be dismissed based on a lack of subject matter jurisdiction or, alternatively, failure to state a viable claim ....................11 F. 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 ....................12 V. CONCLUSION ......................................................................................................................13 Defendants' Motion to Dismiss ii 1 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) ........................................................................................................................................... 5 A.W. v. Humble Indep. Sch. Dist., 25 F.Supp.3d 973 (S.D. Tex. 2014) ..................................... 7, 9 Alegria v. State of Texas, 2007 WL 3256586 (S.D. Tex., Nov. 2, 2007) ....................................... 7 Amstadt v. U.S. Brass Corp., 919 S.W.2d 644 (Tex. 1996)............................................................ 4 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................... 8 Banik v. Tamez, No. 7:16-CV-00462, 2017 WL 2505653 (S.D. Tex. June 9, 2017) ................... 11 Barr v. Resolution Trust Corp., 837 S.W.2d 627 (Tex. 1992)........................................................ 5 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................... 3 Benson v. City of Texas City, Tex., Civil Action No. 3:13-CV-23, 2014 WL 948901 (S.D. Tex. Mar. 11, 2014)............................................................................................................................. 5 Carr v. Bd. of Regents of Univ. Sys. of Georgia, 249 Fed.Appx. 146 (11th Cir. 2007) ............... 13 City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex. 1995) ....................................................... 11 City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) ...................................................... 10 Coury v. Prot, 85 F.3d 244 (5th Cir. 1996)..................................................................................... 3 Cronen v. Tex. Dep't of Human Sers., 977 F.2d 934 (5th Cir. 1992) ............................................. 9 Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999).......................... 7, 8 Davis v. George Mason Univ., 395 F.Supp.2d 331 (E.D. Va. 2005)............................................ 13 Doe v. Dallas I.S.D., 153 F.3d 211 (5th Cir. 1998) ........................................................................ 8 Eiland v. Wolf, 764 S.W.2d 827 (Tex. App.—Houston [1st Dist.] 1989, writ denied) ................ 13 Estevez v. Nabers, 219 F.2d 321 (5th Cir. 1955) ............................................................................ 5 Farmer v. Brennan, 511 U.S. 825 (1994) ....................................................................................... 8 Fitzgerald v. Barnstable School Committee, 555 U.S. 246 (2009)................................................. 9 General Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591 (Tex. 2001) ...................... 12 Gipson v. Callahan, 18 F.Supp.2d 662 (W.D. Tex. 1997) ........................................................... 11 Goins v. Hitchcock I.S.D., 191 F.Supp.2d 860 (S.D. Tex.—Galveston 2002) ............................. 10 Hartley v. Parnell, 193 F.3d 1263 (11th Cir. 1999) ....................................................................... 9 Hogue v. Royse City, 939 F.2d 1249 (5th Cir. 1991) ...................................................................... 6 Home Builders Ass'n of Mississippi, Inc. v. City of Madison, 143 F.3d 1006 (5th Cir. 1998)... 2, 6 In re Katrina Canal Breaches Litigation, 495 F.3d 191 (5th Cir. 2007) ........................................ 3 Jackson v. Texas S. Univ., 997 F.Supp.2d 613 (S.D. Tex. 2014) ................................................. 12 Kaufman County v. Combs, 393 S.W.3d 336 (Tex.App.—Dallas 2012, pet. denied) .................. 11 Defendants' Motion to Dismiss iii 1 Kentucky v. Graham, 473 U.S. 159 (1985) ................................................................................... 10 Klein v. Walker, 708 Fed.Appx. 158 (5th Cir. 2017) ...................................................................... 4 Little v. Texas State Univ., No. A-05-CA-509, 2005 WL 8157313 (W.D. Tex. Sept. 7, 2005) ..... 7 Matter of Hansler, 988 F.2d 35 (5th Cir. 1993).............................................................................. 5 McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2002) ..................................................... 1 Oliver v. Scott, 276 F.3d 736 (5th Cir. 2002) ............................................................................... 10 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ..................................... 9, 10, 12 Ramming v. United States, 281 F.3d 158 (5th Cir. 2001) ............................................................... 2 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757 (5th Cir. 2011) .................................... 3 Raygor v. Regents of the Univ. of Minn., 534 U.S. 533 (2002) .................................................... 12 Rosa H. v. San Elizario Sch. Dist., 106 F.3d 648 (5th Cir. 1997) .................................................. 7 Sanches v. Carrolton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156 (5th Cir. 2011) ............... 7 Seminole Tribe v. Florida, 517 U.S. 44 (1996) ............................................................................ 12 Sims v. City of Madisonville, 894 F.3d 632 (5th Cir. 2018) ................................................... 4, 5, 6 Tapp v. Univ. of Texas Health Sciences Center at Houston, Civil Action No. H-11-2971, 2011 WL 6339819 (S.D. Tex. Dec. 19, 2011) ................................................................................... 13 Teran v. Hagopian, No. CV-F-07-1476, 2009 WL 900743 (E.D. Cal. Mar. 31, 2009) ................. 6 University of Houston Main Campus v. Simons, No. 01-02-00368-CV, 2002 WL 31388906 (Tex.App.—Houston [1st Dist.] Oct. 24, 2002, no pet.)........................................................... 12 Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380 (5th Cir. 1989) ................................ 3 Warnock v. Pecos County, Tex., 88 F.3d 341 (5th Cir. 1996) ........................................................ 9 Weaver v. Tex. Capitol Bank, 660 F.3d 900 (5th Cir. 2011) .......................................................... 5 Wernecke v. Garcia, 591 F.3d 386 (5th Cir. 2009)......................................................................... 1 Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989) ........................................................... 9 Statutes 20 U.S.C. § 1681 ............................................................................................................................. 8 28 U.S.C. § 1367 ............................................................................................................................12 42 U.S.C. § 1983 ................................................................................................................... 1, 9, 10 Rules Federal Rule of Civil Procedure 12(b)(1) ....................................................................................... 2 Federal Rule of Civil Procedure 12(b)(6) ....................................................................................... 3 Regulations TEX. GOV'T CODE ANN. § 572.002(10)(B) ..................................................................................... 9 Defendants' Motion to Dismiss iv 1 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, sued in his official capacity 1, 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 Jane Doe ("Doe") was a master's degree student in UTHSC's Oral and Maxillofacial Radiological Studies program. Doc. 2 ("Plaintiff's First Amended Complaint") at 1. She graduated in 2019. Yet Doe now claims that UTHSC did not allow her "to properly pursue her master's program" because it allegedly "turned a blind eye to" a "smear campaign" orchestrated by Dr. Noujeim because Doe is "a woman from Iran, of Persian and Islamic heritage." Doc. 2 at ¶¶1, 21-25. As a result, Doe claims, her "academic and professional life is on the verge of ruins," and she hopes to recover $5,000,000.00. Id. at ¶¶33, 76. Doe brings claims against UTHSC and Dr. Noujeim under Title IX of the Educational Amendments of 1972 ("Title IX") and 42 U.S.C. § 1983 ("Section 1983"). Id. at ¶¶2, 47-66. For good measure, Doe adds that UTHSC alone violated her rights under the Texas Constitution and breached an unidentified "Educational Contract." Id. at ¶¶2, 67-75. 1 Doe does not specify 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); ¶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). Defendants' Motion to Dismiss 1 1 II. SUMMARY OF ARGUMENT Doe's lawsuit must be dismissed because it is barred by res judicata. On December 10, 2018, the 225th Judicial District Court in San Antonio dismissed Doe's claims with prejudice in a nearly identical lawsuit against UTHSC. Exhibit 1 ("Plaintiff's Original Petition"); Exhibit 2 ("Order"). Doe's state lawsuit included the same allegations asserted here against UTHSC and Dr. Noujeim, but there she simply referred to Dr. Noujeim as "Professor X." Even if Doe can persuade this Court that the state court's final judgment does not automatically preclude her instant claims, Doe failed to state a claim against UTHSC under Title IX. Her Title IX claim against Dr. Noujeim is not actionable. Doe's Section 1983 claim against both Defendants must be dismissed for lack of subject matter jurisdiction based on the Eleventh Amendment's sovereign immunity protections. As to her state law claims against UTHSC for violations of the Texas Constitution and breach of contract, Doe failed to allege a waiver of UTHSC's sovereign immunity. Even if she could overcome this obstacle, Doe failed to state a claim for "breach of Educational Contract" because a university catalog is not a contract. Defendants UTHSC and Dr. Marcel Noujeim therefore ask this Court to dismiss Doe's claims in their entirety and with prejudice. III. LEGAL STANDARD A. Federal Rule of Civil Procedure 12(b)(1) A suit "is properly dismissed for lack of subject matter jurisdiction when the court lacks statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Mississippi, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (citation omitted). The party seeking to invoke jurisdiction bears the burden of demonstrating its existence. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). "[T]here is a presumption against subject matter jurisdiction that must be rebutted by the party bringing an action in federal court." Coury v. Prot, 85 F.3d 244, 248 Defendants' Motion to Dismiss 2 1 (5th Cir. 1996) (citation omitted). An action may be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) on any of three separate grounds: (1) the complaint standing alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint, the undisputed facts, and the court's resolution of disputed facts. Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1384 (5th Cir. 1989). B. Federal Rule of Civil Procedure 12(b)(6) "To survive a Rule 12(b)(6) motion, the plaintiff must plead 'enough facts to state a claim to relief that is plausible on its face.'" In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). "While a complaint attacked by Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) at 545. "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Katrina Canal, 495 F.3d at 205 (quotation omitted). IV. ANALYSIS A. Doe's lawsuit must be dismissed because it is barred by res judicata. 1. Procedural History Doe filed her original petition against UTHSC nearly 16 months ago in the 126th Judicial District Court in Travis County, seeking "declaratory and injunctive relief only." 2 Exhibit 1. After that court transferred her case to Bexar County, UTHSC filed and set its plea to the jurisdiction for 2 See Jane UTHSC-AS Doe v. The University of Texas Health Science Center at San Antonio, D-1-GN-18-002070, filed April 30, 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). Defendants' Motion to Dismiss 3 1 a hearing. 3 And after counsel for Doe failed to file a response or appear at the plea hearing, the 225th Judicial District Court in San Antonio dismissed Doe's lawsuit against UTHSC in its entirety and with prejudice. Exhibit 2. 2. The state court order dismissing Doe's claims bars her current claims. 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). Under Texas law, "a grant of a plea to the jurisdiction is a dismissal on the merits for purposes of res judicata." Id. (citing Klein v. Walker, 708 Fed.Appx. 158, 159 (5th Cir. 2017)). In Klein, a plea to the jurisdiction was considered final because the court found that 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 Fed.Appx. at 161. This is precisely what occurred here. On December 10, 2018, the 225th Judicial District Court in Bexar County granted UTHSC's plea to the jurisdiction and dismissed Doe's lawsuit with prejudice and in its entirety. Exhibit 2. Doe took no further action in state court and instead filed this nearly identical federal lawsuit. Doc. 2. The first element of Texas's preclusion law is therefore satisfied. 3 Jane UTHSC-AS Doe v. The University of Texas Health Science Center at San Antonio, 2018-CI-20749; see also fn. 2, supra. Defendants' Motion to Dismiss 4 1 The second element is also satisfied because Doe sued UTHSC in both state and federal court. Additionally, the allegations leveled against Dr. Noujeim are the same in both suits. Compare Exhibit 1 at ¶¶19(a)-(x) with Doc. 2 at ¶26(a)-(dd). Doe merely replaced the name "Professor X" with "Noujeim." Id. Furthermore, Dr. Noujeim in his official capacity is a party in privity with his government employer, UTHSC. Estevez v. Nabers, 219 F.2d 321, 323 (5th Cir. 1955) ("…the government, its officers, and its agencies are regarded as being 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 previous lawsuit."); see also Benson v. City of Texas City, Tex., Civil Action 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). Finally, the state court's decision on the merits precludes Doe from bringing 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, "an existing final judgment on the merits bars "related matters that, with the use of diligence, should have been litigated in the 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 v. Tex. Capitol Bank, 660 F.3d 900, 907 (5th Cir. 2011)); 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 Defendants' Motion to Dismiss 5 1 not generate different causes of action" and may not be brought in different lawsuits. Sims, 894 F.3d at 644-45 (citing Hogue v. Royse City, 939 F.2d 1249, 1253-54 (5th Cir. 1991)). Doe's state and federal actions arose out of the same transaction or occurrence. Compare Exhibit 1 with Doc. 2. For example, she wrote in the preamble to her state suit that, "[f]or no reason other than prejudice, malice, and an abusive disregard of its students, Plaintiff is being targeted and unfairly treated." Exhibit 1 at 1. She now recites a nearly identical premise: "For no reasons other than prejudice, malice, an abusive and reckless disregard of its students, Plaintiff has been targeted, unfairly treated, and denied educational opportunities otherwise deserved." Doc. 2 at 1. In her state lawsuit, Doe claimed that her "difficulties with Defendant [UTHSC] and Professor X began during [her] second semester at [UTHSC] in 2017 and has continued non-stop." Exhibit 1 at ¶15. She now repeats that her "difficulties with Defendant [UTHSC] and Noujeim began during [her] second semester at [UTHSC] in 2017 and have continued non-stop." Doc. 2 at ¶20. Doe could have brought her instant claims in state court, including her Section 1983 and Title IX causes of action, but she failed to do so. Home Builders Ass'n of Miss. v. City of Madison, 143 F.3d 1006, 1013 (5th Cir. 1998) ("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 must be dismissed because it is barred by res judicata. B. Doe failed to state a claim against UTHSC under Title IX. In Count One of her lawsuit, Doe recites the elements for a Title IX sexual harassment claim. Doc. 2 at ¶¶47-56. To state a Title IX claim against a graduate school like UTHSC 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 Defendants' Motion to Dismiss 6 1 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 Cty. 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 ex rel. LaShonda D., 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 of serious harm. 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 vague allegation that she "approached faculty at various levels" (whom she collectively dubs the "Upper Echelon") who "rejected claims of discrimination" does not sufficiently state a Title IX claim. Doc. 2 at ¶¶29-32; A.W. v. Humble Indep. Sch. Dist., 25 F.Supp.3d 973, 995–97 (S.D. Tex. 2014) (dismissing Title IX claim when plaintiff failed to state factual allegations concerning actual knowledge). Doe failed to identify any officials or employees (aside from Dr. Noujeim, the alleged harasser). See Little v. Texas State Univ., No. A-05-CA-509, 2005 WL 8157313, at *3 (W.D. Tex. Sept. 7, 2005) (granting defendant's motion to dismiss where plaintiff "notably" neglected to "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. It is also impossible to determine whether unidentified "faculty at various levels" were officials with authority to take remedial action. Defendants' Motion to Dismiss 7 1 The final element of a Title IX claim, the "deliberate indifference" standard, "is a high one." Doe v. Dallas I.S.D., 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 ex rel. LaShonda D., 526 U.S. at 648. 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. 2 at ¶32. This provocative but hollow 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. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Doe haphazardly litters the statutory elements of a Title IX sexual harassment claim throughout her First Amended Complaint. See generally, Doc. 2. Without specific factual allegations, she claims that "Defendants and its officials had actual knowledge" of Title IX violations. Doc. 2 at ¶49. Without specific factual allegations, she claims that "Defendants acted with deliberate indifference." Id. at ¶51. These conclusory allegations do not suffice, and UTHSC therefore asks this Court to dismiss Doe's Title IX claim based on her failure to set forth a viable claim. C. Doe's Title IX claim against Dr. Noujeim fails as a matter of law. Doe also appears to seek damages from Dr. Noujeim under Title IX. Doc. 2 at ¶¶47-56 (repeatedly referring to "Defendants" in the plural form). However, individual defendants are not liable under that statute: "Title IX reaches institutions and programs that receive federal funds, 20 U.S.C. § 1681 (a), which may include nonpublic institutions, § 1681(c), but it has consistently Defendants' Motion to Dismiss 8 1 been interpreted as not authorizing suit against school officials, teachers, and other individuals." Fitzgerald v. Barnstable School Committee, 555 U.S. 246, 257 (2009) (citing Hartley v. Parnell, 193 F.3d 1263, 1270 (11th Cir. 1999)); see also A.W. v. Humble Independent School Dist., 25 F.Supp.3d at 986 (dismissing Title IX claims against individual defendants because only claims against institutions receiving federal financial assistance are actionable). Accordingly, Doe's Title IX claim against Dr. Noujeim must be dismissed. D. Doe's Section 1983 claims against UTHSC and Dr. Noujeim must be dismissed for lack of subject matter jurisdiction or, alternatively, for failure to state a claim. Doe's constitutional claims raised under 42 U.S.C. § 1983 must be dismissed because they are barred by Eleventh Amendment immunity. Doe acknowledges that UTHSC "is a public university" operating in Texas. Doc. 2 at ¶6; see also TEX. GOV'T CODE ANN. § 572.002(10)(B) (defining a state agency to include a university system or institution of higher education). "Eleventh Amendment sovereign immunity deprives a federal court of jurisdiction to hear a suit against a state." Warnock v. Pecos County, 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). As a state entity, UTHSC is entitled to Eleventh Amendment immunity, and Doe's constitutional claims brought under 42 U.S.C. § 1983 must be dismissed for lack of subject matter jurisdiction. Furthermore, 42 U.S.C. § 1983 provides that every "person" who subjects a citizen to deprivation of his federal rights under color of law shall be liable to that citizen. However, a state agency like UTHSC is not a "person" within the meaning of Section 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989); Cronen v. Tex. Dep't of Human Sers., 977 F.2d 934, 936 (5th Cir. 1992) (state agency not a "person" for purposes of imposing liability under 42 U.S.C. § Defendants' Motion to Dismiss 9 1 1983). Accordingly, Doe's constitutional claims against UTHSC must be dismissed because they are not viable. Doe also seeks to collect money from Dr. Noujeim under 42 U.S.C. § 1983, but her claim is barred by the same Eleventh Amendment immunity principles that bar her Section 1983 claim against UTHSC. Doc. 2 at ¶¶66, 76 (seeking "actual and consequential damages" and punitive damages under Section 1983); Pennhurst State Sch. & Hosp., 465 U.S. at 101-02 (holding that the Eleventh Amendment bars a suit against a state official when "the state is a real, substantial party in interest"); Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002) (holding that the Eleventh Amendment bars a recovery of money damages under Section 1983 from state employees in their official capacity). Accordingly, Doe's Section 1983 claim against Dr. Noujeim must be dismissed for lack of subject matter jurisdiction. 4 Finally, Doe believes that she is "entitled" to "punitive damages pursuant to Section 1983, for which [she] now seeks in an amount of $5,000,00.00." Doc. 2 at ¶76. Punitive damages, however, are not recoverable against a governmental entity like UTHSC under 42 U.S.C. § 1983. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (barring punitive damages against a municipality under § 1983). 5 Thus, Doe's claim for punitive damages must be dismissed. 4 Doe's Section 1983 claim against Dr. Noujeim is redundant. With repeated references to "Defendants" in the plural form, it is "simply a reformulation" of her Section 1983 claim against UTHSC. Doc. 2 at ¶¶57-66; Goins v. Hitchcock I.S.D., 191 F.Supp.2d 860, 868 (S.D. Tex.—Galveston 2002) (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.") 5 Doe's last two causes of action ("Count Six: Attorney's Fees" and "Count Seven: Post Judgment Interest") must be dismissed because they are not standalone theories of recovery and the causes of action to which they are tied must be dismissed for the reasons set forth above and below. Defendants' Motion to Dismiss 10 1 E. Doe's claims under the Texas Constitution must be dismissed based on a lack of subject matter jurisdiction or, alternatively, failure to state a viable claim. Doe also seeks "damages and equitable relief pursuant to…Defendant's actions in violations [sic] of provisions of the Texas Constitution." Doc. 2 at ¶¶2, 70-75. Specifically, she claims that UTHSC 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, and (e) the Equal Rights Amendment to of [sic] the Texas Constitution found in Article 1, Section 3a. Id. at ¶72(a)-(e). First, 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). Second, the Texas Constitution does not create a private cause of action. 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 County v. Combs, 393 S.W.3d 336, 345 (Tex.App.—Dallas 2012, pet. denied) (applying Bouillion to equal protection and due process claims). Defendants' Motion to Dismiss 11 1 Third, Doe contends that this Court has "supplemental jurisdiction over her claims arising under Texas law pursuant to 28 U.S.C. § 1367." Doc. 2 at ¶9. That statute, however, does not abrogate UTHSC's Eleventh Amendment immunity. Raygor v. Regents of the 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. Florida, 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 State Sch. & Hosp., 465 U.S. at 120. Accordingly, Doe's state constitutional claims must be dismissed based on a lack of subject matter jurisdiction. F. 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. In addition to her constitutional claims, Doe alleges a "breach of Educational Contract" claim against UTHSC based on "violation of the university catalog." Doc. 2 at ¶¶28, 67-69. But "there is but one route to the courthouse for breach-of-contract claims against the State, and that route is through the Legislature." General Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 597 (Tex. 2001). Governmental immunity therefore precludes a graduate student's breach- of-contract claim against her public university when 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…."); University 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.). Defendants' Motion to Dismiss 12 1 Even if Doe could clear jurisdictional and immunity hurdles, the "university catalog" that Doe claims "governed" her "admission to Defendant [UTHSC]" is not a contract. Doc. 2 at ¶28; Tapp v. Univ. of Texas Health Sciences Center at Houston, Civil Action No. H-11-2971, 2011 WL 6339819, at *6 (S.D. Tex. Dec. 19, 2011) (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); Davis v. George Mason Univ., 395 F.Supp.2d 331, 337 (E.D. Va. 2005) (holding that university catalog is not a contract, and thus university's academic dismissal of graduate student did not amount to breach of contract); Carr v. Bd. of Regents of Univ. Sys. of Georgia, 249 Fed.Appx. 146 (11th Cir. 2007) (holding that university's undergraduate catalog did not form a binding, written contract between board of regents and suspended nursing student); 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 because UTHSC possesses sovereign immunity and a university catalog is not a contract. V. CONCLUSION For the reasons stated above, UTHSC and Dr. Marcel Noujeim respectfully 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 they may be justly entitled. Defendants' Motion to Dismiss 13 1 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/ Matthew A. Deal MATTHEW A. DEAL Assistant Attorney General Texas Bar No. 24087397 Office of the Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 TEL: (512) 463-2120 FAX: (512) 320-0667 matthew.deal@oag.texas.gov ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that on August 27, 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. tgorman@school-law.co 901 Mopac Expressway South, Suite 300 Austin, TX 78746 Phone: (972) 235-4700 Fax: (512) 597-1455 ATTORNEY FOR PLAINTIFF /s/ Matthew Deal MATTHEW A. DEAL Assistant Attorney General Defendants' Motion to Dismiss 14 1 EXHIBIT 1 1 1 1 1 1 1 1 1 1 1 1 1 EXHIBIT 2