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

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

REPLY to Response to Motion, filed by MARCEL NOUJEIM, UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO, re [8] MOTION to Dismiss filed by Defendant MARCEL NOUJEIM, Defendant UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO

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9 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' REPLY IN SUPPORT OF 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, sued in his official capacity, file this Reply in Support of Motion to Dismiss and respectfully show the Court as follows: I. INTRODUCTION In response to Defendants' Motion to Dismiss (Doc. 8), Plaintiff Jane UTHSCSA-AS Doe ("Doe") abandoned her claims against UTHSC for breach of contract and violations of the Texas Constitution. Doc. 12 at ¶¶39-40. She also dropped her claim for damages against UTHSC under 42 U.S.C. § 1983 ("Section 1983"). Id. at ¶36. What remains of Doe's lawsuit is barred by res judicata. Even if Doe can persuade this Court that her lawsuit is not barred altogether, she failed to state a claim for relief against either Defendant under Title IX and both Defendants have immunity from Section 1983 claims. Because this is already the third iteration of Doe's lawsuit, and because no amendment can cure its deficiencies, she should not be permitted to further amend her complaint. For these reasons, Defendants' Reply in Support of Motion to Dismiss 1 9 Defendants ask this Court to dismiss Doe's lawsuit in its entirety and with prejudice. II. ARGUMENT A. Doe's lawsuit is 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. A grant of a plea to the jurisdiction is a dismissal on the merits for purposes of res judicata. Doc. 8-1 at pp. 3-4. Doe attempts to mislead the Court by claiming that "the singular citation for such a proposition is the unpublished Fifth Circuit decision in Klein v. Walker, 708 Fed.Appx. 158, 159 (5th Cir. 2017)." Doc. 12 at ¶18. The Fifth Circuit cited to Klein in a published 2018 opinion relied upon in Defendants' Motion to Dismiss, Sims v. City of Madisonville. There the plaintiff "initially sued the City in state court under the Texas Whistleblower Act, but the state court dismissed his claim with prejudice on the basis of governmental immunity." Sims, 894 F.3d at 644 (citation omitted). When the plaintiff tried to bring a Section 1983 claim against the same defendant, the federal district court "granted the City's motion for summary judgment, concluding that, pursuant to Texas law, Sims's state court action against the City barred his claims in federal court." Id. "We agree," wrote the Fifth Circuit, "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) (citing Flores v. Edinburg Consol. Indep. Sch. Dist., 741 F.2d 773, 775 n. 3 (5th Cir. 1984)).1 1 Doe's citation to an unreported state appellate court opinion does not disturb the Fifth Circuit's holding in Sims. Doc. Defendants' Reply in Support of Motion to Dismiss 2 9 Like the plaintiff in Sims, the 225th Judicial District Court in Bexar County dismissed Doe's claims with prejudice based on UTHSC's sovereign immunity. Doc. 8-1 at p. 312; see also Jane UTHSC-AS Doe v. The University of Texas Health Science Center at San Antonio, 2018-CI- 20749. The grant of UTHSC's plea to the jurisdiction therefore satisfies the first element of Texas's claim preclusion law. See also Harmon v. Dallas Cnty., 927 F.3d 884, 890 (5th Cir. 2019) ("…under Texas law, a dismissal based on governmental immunity constitutes a final judgement on the merits for purposes of res judicata.") (citing Sims and Klein). 2. The parties to the instant lawsuit are the same or in privity with those already sued in the state court. The second element of Texas's claim preclusion law requires identity of the parties or those in privity with them. Sims, 894 F.3d at 644. Doe admits that her state court lawsuit included UTHSC. Doc. 12 at ¶10. She also admits that the individual mentioned 47 times in her 11-page state court lawsuit "indeed, is Defendant Noujeim." Id. at ¶13; see also Doc. 8-1-1 at pp. 19-30 (¶¶14-24, 27-28). Moreover, Doe did not contest the fact that the factual allegations leveled against Dr. Noujeim are the same in both lawsuits. Doc. 8-1 at p. 5; see generally, Doc. 12. Nor did she dispute that Dr. Noujeim in his official capacity is a party in privity with his government employer, UTHSC. Id.; 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). 12 at ¶12 (citing Dallas Cty. Republican Party v. Dallas Cty. Democratic Party, 2019, Tex. App. LEXIS 7687, 2019 WL 4010776 (Tex.App.—Dallas 2019)). In Dallas County Republican Party, the state appellate court held that "[a] dismissal under 91a is a judgment on the merits" and did not consider pleas to the jurisdiction that are granted based on sovereign immunity. 2 Citations to page numbers within Defendants' Brief in Support of Motion to Dismiss (Doc 8-1) refer to the page numbers at the bottom of each page. Defendants' Reply in Support of Motion to Dismiss 3 9 3. Doe could have raised her instant claims in the state court lawsuit. The res judicata doctrine prevents Doe from relitigating claims that, with the use of diligence, could have been litigated in the state court matter.3 Sims at 644. "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 derive from different time periods, the second action is barred if the arguments are the same in both suits. See Beadles v. Lago Vista Property Owners Ass'n Inc., No. 03-05-00194, 2007 WL 1451515, at *4 (Tex. App.—Austin 2007, no pet.) (holding that res judicata barred plaintiff's claims because she presented the same arguments in both cases, even though the time periods for the claims were different). Like the plaintiff in Sims, Doe seeks to pursue claims that are based on the same set of facts alleged in her state lawsuit. In her state lawsuit, Doe alleged the following: As the first year of the residency program ended and as Plaintiff Jane D became more settled into the OMRP program and the American system of Education, Plaintiff resolved to consolidate on the successes attained in her first year of residency. Such resolve has now become impossible due to the prejudicial and discriminatory actions of a single professor ('Professor X'), whose actions have largely been condoned by Defendant UTHSCSA. Doc. 8-1 at p. 22 (¶14). Doe's First Amended Complaint is based identical allegations: As the first year of the residency program ended and as Jane became more settled into the OMRP program and the American system of Education, Plaintiff resolved to consolidate on the successes attained in her first year of residency. Such resolve has now become impossible due to the prejudicial and discriminatory actions of Defendant Noujeim, whose harassing and discriminatory actions towards Plaintiff Jane have been continuous and condoned by Defendant UTHSCSA. 3 Doe takes issue with Defendants' citation to Amstadt v. U.S. Brass Corp., but that case merely sets forth the framework for analyzing the third element of Texas's claim preclusion law: "To determine whether the lawsuits involve the same basic subject matter, the court focuses on the factual basis of the complaint." Doc. 12 at ¶19 (complaining that "the Amstadt decision was a ruling after a trial on the merits and has nothing to do with the preclusive or res judicata effects of a Texas decision…"). Defendants' Reply in Support of Motion to Dismiss 4 9 Doc. 2 at ¶¶18-19. Doe's lawsuit is barred because the allegations and operative facts asserted in her state case are the same ones asserted here. Finally, Doe argues that "preclusion would only reach claims arising prior to December 10, 2018, being the date of dismissal of Plaintiff's State Court Matter." Doc. 12 at ¶20. Although inaccurate, Doe's standard for claim preclusion would bar her Title IX claim because she was aware of the potential claim at least on August 1, 2018, when her counsel threatened the following: Bottom line if she is able to take her boards, all of this will go away. If she is denied the right to take her boards, we will be pursuing a Title IX action for damages. Exhibit 3 ("Email from Terry Gorman, dated August 1, 2018") (emphasis added); Exhibit 4 ("Letter to Terry Gorman, dated August 9, 2018"); Exhibit 5 ("Declaration of Matthew A. Deal").4 B. Doe failed to state a Title IX claim against UTHSC. Doe hopes to cure pleading deficiencies and identify individuals whom she claims had actual knowledge of her Title IX allegations by including a lengthy, unverified letter (with its own attachments) in an appendix attached to her response. Doc. 12 at ¶7; Doc. 12-1. Without citing to any authority, Doe proclaims that her appendix is "incorporated herein by reference for all purposes." Id. In a Rule 12(b)(6) motion, the court is limited to the actual contents of the pleadings and the documents attached thereto. Collins v. Morgan Stanley, 224 F.3d 496, 498 (5th Cir. 2000). If documents are attached to a response, a court may consider them only if they are referred to in 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 also must be "sufficiently referenced in the complaint." Walch v. Adjutant General's Dept. of Tex., 533 F.3d 4 Exhibit numbers continue from the first and second exhibits attached to Defendants' Motion to Dismiss (Doc. 8-1), Doe's original petition and the state court's order. See Doc. 8-1 at pp.19-31. Defendants' Reply in Support of Motion to Dismiss 5 9 289, 293–94 (5th Cir. 2008). However, if a document referenced in the plaintiff's complaint is just evidence of an element of the plaintiff's claims, as is the case here, then the court should not incorporate it into the complaint as part of its 12(b)(6) assessment. 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)). Doe's purported grievance is not attached to her First Amended Complaint, which only made one reference to "various complaints" and one reference to "numerous grievances and appeals." Doc. 2 at ¶¶26(x), 30. Even if these vague, passing references sufficiently refer to the letter attached to her response (they do not), the attached letter is unverified evidence of the elements of actual knowledge and deliberate indifference; elements that Doe failed to sufficiently plead, even though she already amended her complaint once. Additionally, Doe's First Amended Complaint still fails to state factual allegations concerning actual knowledge and deliberate indifference, and "[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); see also A.W. v. Humble Indep. Sch. Dist., 25 F.Supp.3d 973, 995–97 (S.D. Tex. 2014), aff'd sub nom. King-White v. Humble Indep. Sch. Dist., 803 F. 3d 754 (5th Cir. 2015) (dismissing Title IX claims when plaintiff failed to state factual allegations concerning actual knowledge). 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. See Doc. 8-1-1 at pp. 8-9; see also Jones v. Southern Univ., 2019 WL 3883209, at *4 fn. 69 (M.D. La. Aug. 16, 2019) (no individual liability under Title IX) (citing cases); see also Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257 (2009) Defendants' Reply in Support of Motion to Dismiss 6 9 ("Title IX…has consistently been interpreted as not authorizing suit against school officials, teachers, and other individuals."). D. Doe's Section 1983 claim against UTHSC must be dismissed for lack of subject matter jurisdiction. Even though Doe abandoned her claim for damages against UTHSC under Section 1983, she still believes that "certain equitable relief is allowed." Doc. 12 at ¶¶35-36. Doe is mistaken. Section 1983 does not waive UTHSC's Eleventh Amendment immunity. Quern v. Jordan, 440 U.S. 332, 338 n.7 (1979). "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). E. Doe's Section 1983 against Dr. Noujeim must be dismissed for lack of subject matter jurisdiction. Doe contends that "she stated a valid Section 1983 claim for damages because…[her] [c]laims against Defendant Noujeim are against Noujeim in his official and individual capacities." Doc. 12 at ¶37. First, Doe cannot recover damages from Dr. Noujeim in his official capacity under Section 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66-67 (1989). Second, her lawsuit in its current form does not specify any allegations against Dr. Noujeim in his individual capacity. See generally, Doc. 2. Even if this Court permitted Doe to amend her lawsuit once again, her Section 1983 claim against Dr. Noujeim still would not prevail because he is entitled to qualified immunity. F. Doe should not be permitted to further amend her First Amended Complaint. Doe originally filed an 11-page, 31-paragraph petition in state court. Doc. 8-1 at pp. 19-30. After the state court case dismissed her lawsuit with prejudice, Doe filed a 21-page, 74-paragraph Defendants' Reply in Support of Motion to Dismiss 7 9 complaint with this Court. Doc. 1. Doe then amended her complaint. Doc. 2. Even if she amended her complaint yet again, Doe's claims would still be barred by res judicata and immunity protections. 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 First Amended Complaint should be dismissed with prejudice. III. CONCLUSION For these reasons, Defendants respectfully request that this court grant their Motion to Dismiss (Doc. 8) and dismiss Doe's claims in their entirety and with prejudice. Defendants further request any and all such other relief to which Defendants may show themselves to be entitled, including costs and attorney's 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/ 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 Defendants' Reply in Support of Motion to Dismiss 8 9 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. 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' Reply in Support of Motion to Dismiss 9 9 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION JANE UTHSCSA-AS DOE, § § Plaintiff, § § v. § NO. 5:19-cv-00248-DAE § THE UNIVERSITY OF TEXAS § HEALTH SCIENCE CENTER AT SAN § ANTONIO and MARCEL NOUJEIM, § § Defendants. § EXHIBIT 3 9 From: Terry P. Gorman To: Deal, Matthew Cc: Morris, Kathleen; Clopton, Jodie Subject: Re: Doe Date: Tuesday, August 07, 2018 6:33:18 PM The situation in this matter continues to get worse. Doe v. UTHSC-SA (Case No. D-1-GN-18-002070, Travis Co.) I need to know if the school will be doing anything to assist her. Many thanks, Terry Terry P. Gorman Henslee* & Gorman, pllc 901 Mopac Expressway South Barton Oaks Plaza One | Suite 300 Austin, Texas | 78746 Phone: 512-320-9177 Fax: 512-597-1455 tgorman@school-law.co www.school-law.co *Mr. Henslee recently retired from the practice of law for health-related issues. He continues to serve the law firm of Henslee & Gorman, pllc, as the Firm Administrator, performing client intake and administrative functions. CONFIDENTIAL COMMUNICATION The foregoing communication is intended for the recipients as shown and no others. If you have received this communication and are not an intended recipient, please erase this communication immediately. On Fri, Aug 3, 2018 at 2:45 PM, Deal, Matthew <Matthew.Deal@oag.texas.gov> wrote: Thanks, Terry. I'll follow up and get back to you on this. In the meantime, do you have time to discuss Doe v. UT-SA? Must I file a PTJ before you'll amend or dismiss this petition since the claims you're relying on aren't actionable? From: Terry P. Gorman [mailto:tgorman@school-law.co] 9 Sent: Wednesday, August 01, 2018 6:33 PM To: Deal, Matthew <Matthew.Deal@oag.texas.gov> Subject: Doe I am also handling two additional cases that you have since filed: Doe v. UTHSC- SA (Case No. D-1-GN-18-002070, Travis Co.) The situation with this JANE DOE is deteriorating on a daily basis. Although the offending professor has been given a new title, problems remain. The issue at hand is whether my client will be able to take her Board Tests in September. She is receiving the run around from everyone. We cannot decide, because it is in their hands? Who's hands? Their hands? Who's on First...... Bottom line if she is able to take her boards, all of this will go away. If she is denied the right to take her boards, we will be pursuing a Title IX action for damages. Please let me know what can be done if anything. Many thanks, Terry Terry P. Gorman Henslee* & Gorman, pllc 901 Mopac Expressway South Barton Oaks Plaza One | Suite 300 Austin, Texas | 78746 Phone: 512-320-9177 Fax: 512-597-1455 tgorman@school-law.co 9 www.school-law.co *Mr. Henslee recently retired from the practice of law for health-related issues. He continues to serve the law firm of Henslee & Gorman, pllc, as the Firm Administrator, performing client intake and administrative functions. CONFIDENTIAL COMMUNICATION The foregoing communication is intended for the recipients as shown and no others. If you have received this communication and are not an intended recipient, please erase this communication immediately. 9 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION JANE UTHSCSA-AS DOE, § § Plaintiff, § § v. § NO. 5:19-cv-00248-DAE § THE UNIVERSITY OF TEXAS § HEALTH SCIENCE CENTER AT SAN § ANTONIO and MARCEL NOUJEIM, § § Defendants. § EXHIBIT 4 9 KEN PAXTON ATTORNEY GENERAl. OF TEXAS MATrHEW A. DEAL PHONE: (512)475-4651 Assistant Attorney General FAX: (512) 320-0667 General Litigation Division EMAIL: matIhew.dcak~oagtexasgov August 9,2018 Via Email Terry P. Gorman Henslee & Gorman, PLLC 901 Mopac Expressway South Barton Oaks Plaza One, Suite 300 Austin, Texas 78746 Tel: (512) 320-9177 Fax: (512) 597-1455 tgorman~school-law.co Re: Jane UTHSCSA-AS Doe v. The University of Texas Health Science Center at San Antonio; Case No. D-1-GN-18-002070 Terry - This letter is in response to your August 1, 2018 email to me, in which you threaten to pursue "a Title IX action for damages" if your client is unable to "take her Board Tests in September." It is my understanding that your reference to "Board Tests" means the examination process independently administered by the American Board of Oral and Maxillofacial Radiology (ABOMR). This organization is separate and distinct fiom the Defendant in this case. ABOMR alone determines whether applicants are eligible to sit for their examination. More information can be found on their website: www.abomr.org. According to 2018 ABOMR certification guidelines, your client is not eligible to sit for Pail 1 of the examination due to substandard coursework during the first 24 months of the Defendant's Oral and Maxillofacial Radiology Program. On June 15, 2018, however, your client accepted a remediation plan that covers three courses that are scheduled to be completed by December 2018. If successfully completed within the scheduled timefrarne, your client may apply to sit for Part I of the ABOMR examination during its 2019 offering. Post Office Box 2548. Austin. Texas 78711-2548 1512)463-2100 - wwwteXasattolnevgencralgov 9 Finally, your initial disclosures in this matter were due on July 2, 2018. Pursuant to Rule 194.3 of the Texas Rules of Civil Procedure, please immediately provide your initial disclosures. And, as a reminder, please direct all case-related matters to me during this ongoing litigation. Regards, AHHEW A. DEAL Assistant Attorney General General Litigation Division Attorney for Defendant UTHSC-SA 9 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION JANE UTHSCSA-AS DOE, § § Plaintiff, § § v. § NO. 5:19-cv-00248-DAE § THE UNIVERSITY OF TEXAS § HEALTH SCIENCE CENTER AT SAN § ANTONIO and MARCEL NOUJEIM, § § Defendants. § EXHIBIT 5 9 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. § DECLARATION IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS I, Matthew A. Deal, do hereby state and declare as follows: 1. I am over twenty-one years of age and am fully competent to make this Declaration. I make this Declaration of my own personal knowledge and could and would testify competently to the matters set forth herein if called upon to do so. 2. I am counsel for Defendants in the above-titled action. 3. I was counsel for Defendants in the nearly identical matter dismissed by the 225th Judicial District Court in Bexar County, Texas. See Jane UTHSC-AS Doe v. The University of Texas Health Science Center at San Antonio, 2018-CI-20749. 4. On August 27, 2019, Defendants filed a Motion to Dismiss in the above-titled action. 5. The document attached as "Exhibit 3" to Defendants' Reply in Support of Motion to Dismiss is a true and correct copy of an email received from opposing counsel, Terry Gorman, on August 1, 2018. 6. The document attached as "Exhibit 4" to Defendants' Reply in Support of Motion to Dismiss is a true and correct copy of Defendant University of Texas Health Science Center at San 9 Antonio's response to Mr. Gorman's email of August 1, 2018. 7. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Signed this 30th day of September, 2019. /s/ Matthew A. Deal MATTHEW A. DEAL