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Simmons v. Jackson

United States District Court, N.D. Texas, Dallas Division

July 19, 2017

JASON SIMMONS, Plaintiff,
v.
RAY JACKSON, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER UNITED STATES DISTRICT JUDGE.

         In this action by pro se plaintiff Jason Simmons (“Simmons”), the court addresses the motion of defendant Methodist Hospitals of Dallas (“Methodist”) to dismiss under Fed.R.Civ.P. 12(b)(6), the motion of defendant Texas Medical Board (“TMB”) to dismiss under Rule 12(b)(1) and (5), and other motions. For the reasons that follow, the court grants defendants' motions to dismiss, denies Simmons' motion for leave to file a surreply, denies Simmons' motion for leave to file a motion for partial summary judgment, and denies as moot Methodist and TMB's motion to prohibit Simmons from filing any motion seeking affirmative relief pending rulings on defendants' motions to dismiss. The court dismisses Simmons' actions against Methodist and TMB by Rule 54(b) final judgment filed today.

         I

         Because this case is the subject of two prior memorandum opinions and orders, see Simmons v. Jackson, No. 3:15-CV-1700-D, slip op. at 1 (N.D. Tex. Oct. 24, 2016); Simmons v. Jackson, 2016 WL 2646738, at *1 (N.D. Tex. May 10, 2016), the court will recount only the background facts and procedural history that are pertinent to this decision.

         Simmons was an internal medicine resident at Methodist Hospital of Dallas from 2007 to 2010 and was licensed to practice medicine in the state of Texas.[1] In May 2010 TMB initiated a proceeding against Simmons that in July 2013 resulted in the revocation of his license to practice medicine in Texas. In July 2010 Simmons was terminated from the residency program. Ray Jackson, Esquire (“Jackson”) represented Simmons in the TMB proceeding from May 2010 until October or November 2012.

         Simmons sued Methodist in 2011, alleging that it had discriminated against him on the basis of his race. Judge Boyle granted summary judgment for Methodist in 2012. See Simmons v. Methodist Hosps. of Dall., 2012 WL 1447970, at *7 (N.D. Tex. Apr. 26, 2012) (Boyle, J.). Jackson represented Simmons in his lawsuit against Methodist.

         In 2015 Simmons brought this pro se action against Jackson, alleging claims for fraud, legal malpractice, and conspiracy. Simmons later joined Methodist, TMB, and Oscar San Miguel, Esquire (“San Miguel”), who represented Simmons in the TMB proceeding after Jackson withdrew. In August 2016 Methodist moved to dismiss Simmons' third amended complaint. The court adopted the magistrate judge's recommendation to grant the motion in part, and the court granted Simmons leave to replead a final time. The court ordered Simmons to file a fourth amended complaint that was typed in at least 12-point font, double-spaced, did not exceed 20 total pages, and complied with Rules 8(a), 8(d)(1), 9(b), and 10(b).

         In his fourth amended complaint, Simmons brings claims for violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968; civil conspiracy to deprive him of his constitutional rights, under 42 U.S.C. § 1983; civil conspiracy to deprive him of equal protection of law, under 42 U.S.C. § 1985; and breach of contract.

         He alleges that defendants conspired to violate RICO, in violation of 18 U.S.C. § 1962(d). Under the heading “ENTERPRISE, ” he asserts that Methodist, Jackson, San Miguel, and attorney Barbara Jordan, Esquire (“Jordan”) acted together to deprive him of his medical license without due process; to conceal Methodist's violation of his rights in 2010; and to litigate against him between 2010 and 2014. Simmons also avers that Methodist failed to disclose evidence related to his firing, submitted fabricated reports to the court and TMB, and agreed to forgo mediation in a prior lawsuit without his knowledge. Under the heading “PATTERN OF RACKETEERING, ” he alleges that defendants used the mail or wires to commit fraud with the purpose of denying him due process before the court or TMB, and that these acts lessened suspicion about his firing, denied him due process, and denied him the ability to practice medicine. Under the heading “AGREEMENT, ” Simmons asserts that Methodist provided false affidavits to TMB, and that Jackson concealed evidence from him. Under the heading “DAMAGES, ” Simmons alleges that he was damaged by the improper denial of due process and the ability to practice medicine.

         Simmons next brings a claim under 42 U.S.C. § 1983, alleging that Methodist, TMB, and possibly Jordan conspired to deprive him of constitutional rights. He asserts that Methodist submitted fabricated affidavits to TMB; that TMB sent him a letter to deter him from appealing its initial order; and that Jordan falsely informed him of a settlement conference and improperly submitted reports to a state board.

         Simmons next pleads that defendants conspired to deny him equal protection of the law, in violation of 42 U.S.C. § 1985. He asserts that he had completed 35 of his 36 required months of medical residency training before he was terminated in May 2010; that he was the only resident who was terminated; that he is African-American; and that race-based animus played some role in the events described. He also realleges that Methodist submitted fabricated affidavits to the court and to TMB.

         Simmons next alleges that Methodist breached one or more contracts with him, including his employment agreement. According to the fourth amended complaint, Methodist's breaches include asking him on May 19, 2010 to submit to mental health screening without disclosing a proper basis for the request; failing to have a peer medical resident present at a committee meeting on May 20, 2010; denying him an opportunity to discuss the results of an investigation into the residency program at the same committee meeting; failing to disclose relevant records, orders, pages, reports, and allegations during the same meeting; insufficient notice of the same meeting to give him an opportunity to prepare a defense; and denying him access to necessary information to appeal the findings of the same meeting. Simmons alleges that Methodist's CEO relied on the findings of this meeting when deciding to terminate Simmons in July 2010, and that, as a result, he has been damaged by his termination and other professional sanctions.

         Methodist and TMB move to dismiss the claims against them; Simmons moves for leave to file a surreply to Methodist's motion to dismiss, and for leave to file a motion for partial summary judgment; and Methodist and TMB move to prohibit Simmons from filing any motion seeking affirmative relief pending rulings on their motions to dismiss.

         II

         The court begins by setting out the standards that apply to Methodist and TMB's motions to dismiss under Rule 12(b)(1) and 12(b)(6).

         “Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate claims.” Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). A Rule 12(b)(1) motion can mount either a facial or factual challenge. See, e.g., Hunter v. Branch Banking & Tr. Co., 2013 WL 607151, at *2 (N.D. Tex. Feb. 19, 2013) (Fitzwater, C.J.) (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. May 1981)). When a party makes a Rule 12(b)(1) motion without including evidence, the challenge to subject matter jurisdiction is facial. Id. The court assesses a facial challenge as it does a Rule 12(b)(6) motion in that it “looks only at the sufficiency of the allegations in the pleading and assumes them to be true. If the allegations are sufficient to allege jurisdiction, the court must deny the motion.” Id. (citation omitted) (citing Paterson, 644 F.2d at 523). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam) (citations omitted).

         In deciding a Rule 12(b)(6) motion, the court evaluates the sufficiency of Simmons' fourth amended complaint “by accepting all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Bramlett v. Med. Protective Co. of Fort Wayne, Ind., 855 F.Supp.2d 615, 618 (N.D. Tex. 2012) (Fitzwater, C.J.) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)) (internal quotation marks and brackets omitted). To survive a motion to dismiss under Rule 12(b)(6), plaintiffs 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). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556); see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level[.]”). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘shown'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)) (brackets omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Furthermore, under Rule 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Although “the pleading standard Rule 8 announces does not require ‘detailed factual allegations, '” it demands more than “‘labels and conclusions.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “[A] formulaic recitation of the elements of a cause of action will not do.” Id. (quoting Twombly, 550 U.S. at 555).

         III

         The court turns first to Methodist's requests that Simmons' RICO conspiracy claim be dismissed.

         A

         Any RICO claim, including a RICO conspiracy claim under 18 U.S.C. § 1962(d), must include “(1) a person who engages in (2) a pattern of racketeering activity (3) connected to the acquisition, establishment, conduct, or control of an enterprise.” Orthoflex, Inc. v. ThermoTek, Inc., 2012 WL 2864510, at *2 (N.D. Tex. July 12, 2012) (Fitzwater, C.J.); see St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 439 (5th Cir. 2000) (holding that these elements are required for any RICO claim under § 1962(a), (c), or (d)).

         Section 1961(1) defines “racketeering activity” in part as “any act which is indictable” under several specified sections of the United States Code or state law. Section 1961(5) defines “pattern of racketeering activity” as “requir[ing] at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity[.]”

         “To establish a pattern of racketeering activity, [Simmons] must allege (1) the predicate acts of racketeering activity, and (2) a pattern of such acts.” Orthoflex, 2012 WL 2864510, at *2 (citing In re Burzynski, 989 F.2d 733, 742 (5th Cir. 1993)). A pattern of racketeering activity must include two or more acts of racketeering activity. See 18 U.S.C. § 1961(5). “[A] ‘pattern' requires both that the acts are ‘related' to each other and that they have ‘continuity.'” Burzynski, 989 F.2d at 742 (quoting H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989)). “It is this factor of continuity plus relationship which combines to produce a pattern.” H.J. Inc., 492 U.S. at 239 (emphasis in original) (citation and internal quotation marks omitted). Predicate acts are related if they “have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” ...


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