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Greene v. State

United States District Court, S.D. Texas, Houston Division

May 31, 2017

ROY K. GREENE, Plaintiff,
v.
STATE OF TEXAS, Defendant.

          ORDER OF DISMISSAL

          Kenneth M. Hoyt United States District Judge

         I. INTRODUCTION

         Pending before the Court is the defendant's, the State of Texas (the “State”), motion to dismiss brought pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 8). The plaintiff, Roy K. Greene (the “plaintiff”), proceeding pro se and in forma pauperis, has failed to file a response and the time for doing so has long expired. Thus, pursuant to this Court's local rules, the plaintiff's “[f]ailure to respond will be taken as a representation of no opposition.” S.D. Tex L.R. 7.4. After having carefully considered the motion, the pleadings, and the applicable law, the Court determines that the State's motion to dismiss should be GRANTED.

         II. FACTUAL BACKGROUND

         On March 6, 2017, the plaintiff commenced the instant action against the State pursuant to § 1983, alleging violations of his rights to equal protection under the Fourteenth Amendment. The plaintiff's pro se complaint, [1] while not a model of clarity, appears to arise out of two separately-alleged workplace injuries occurring on July 22, 2009 and October 27, 2015, wherein the plaintiff alleges that he was denied legal representation by the Division of Workers' Compensation within the Department of Insurance based on the statutory provisions found in Tex. Lab. Code § 408.221, entitled “Attorney's Fees Paid to Claimant's Counsel.” (See Dkt. No. 2 at 5; see also Dkt. No. 1). The plaintiff also asserts that the Texas Supreme Court's decision in Texas Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430 (Tex. 2012), prevents him from “hiring an attorney for enforcement of [his] rights to equal protection.” (Id.) As such, he requests the following relief for the violations alleged: (1) that the Court “[s]trike as unconstitutional” the Texas Supreme Court's ruling in Ruttiger; (2) that the Court “[s]trike as unconstitutional” Tex. Lab. Code §§ 408.221(a) and (b); (3) that the State “[p]ay all [of his] past and future medical expenses and restore [his] income to present and future”; and (4) that the State “[r]ecompense [him] for pain and suffering caused by [the State's] illegal activities and laws.” (Id.)

         Specifically, in his one-paragraph Complaint, the plaintiff asserts the following:

After both work injuries 10-27-2015 and 07-22-2009 denied legal representation in severe injuries by Department of Insurance division of workers comp statute 408.221 a and b because of non payment of income benefits and subsequent lack of attorney billing ability. Secondly I am prevented from hiring an attorney for enforcement of my rights to equal protection by Texas Supreme court ruling 08-0751. The ruling of the supreme court removes responsibility of Insurance carriers and places it on the state of Texas by an erronious [sic] reliance of code of DWC laws being enforced. All of reliances stated in Ruttiger case have been violated in my case. Neither of the statute or ruling cited treat similar parties as in elderly in a similar matter. Neither are facially neutral and create disparate impact. The actions of the state of Texas DWC and courts have left me Untreated for my injuries, Un paid [sic] income benefits unable to work. Further I will show that DWC never enforces some of reliances of 08-0751 TSC.

(Dkt. Nos. 1 & 2).

         III. STANDARDS OF REVIEW

         A. Standard Under Rule 12(b)(1)

         Rule 12(b)(1) permits the dismissal of an action for the lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). “If [a federal] court determines at any time that it lacks subject-matter jurisdiction, [it] must dismiss the action.” Fed.R.Civ.P. 12(h)(3); see also Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 880 n.3 (3rd Cir. 1992) (citing Rubin v. Buckman, 727 F.2d 71, 72 (3d Cir. 1984)) (reasoning that “[t]he distinction between a Rule 12(h)(3) motion and a Rule 12(b)(1) motion is simply that the former may be asserted at any time and need not be responsive to any pleading of the other party.”) Since federal courts are considered courts of limited jurisdiction, absent jurisdiction conferred by statute, they lack the power to adjudicate claims. See, e.g., Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994). Therefore, the party seeking to invoke the jurisdiction of a federal court carries “the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748 (5th Cir. 2009) (citing New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 327 (5th Cir. 2008); see also Stockman, 138 F.3d at 151.

         When evaluating jurisdiction, “a [federal] court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” MDPhysicians & Assoc., Inc. v. State Bd. of Ins., 957 F.2d 178, 181 (5th Cir. 1992) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)); see also Vantage Trailers, 567 F.3d at 748 (reasoning that “[i]n evaluating jurisdiction, the district court must resolve disputed facts without giving a presumption of truthfulness to the plaintiff's allegations.”) In making its ruling, the court may rely on any of the following: “(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.” MDPhysicians, 957 F.2d at 181 n.2 (citing Williamson, 645 F.2d at 413).

         B. Standard Under Rule 12(b)(6)

         Federal Rule of Civil Procedure 12(b)(6) authorizes a defendant to move to dismiss for “failure to state a claim upon which relief may be granted.” Fed.R.Civ.P. 12(b)(6). Under the demanding strictures of a Rule 12(b)(6) motion, “[t]he plaintiff's complaint is to be construed in a light most favorable to the plaintiff, and the allegations contained therein are to be taken as true.” Oppenheimer v. Prudential Sec., Inc., 94 F.3d 189, 194 (5th Cir. 1996) (citing Mitchell v. McBryde, 944 F.2d 229, 230 (5th Cir. 1991)). Dismissal is appropriate only if, the “[f]actual allegations [are not] 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).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). Moreover, in light of Federal Rule of Civil Procedure 8(a)(2), “[s]pecific facts are not necessary; the [factual allegations] need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. at 1964). Even so, “a plaintiff's ...


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