United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER UNITED STATES DISTRICT JUDGE.
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.
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.
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. 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
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.
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).
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.
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
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.
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
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
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.
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).
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).
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).
court turns first to Methodist's requests that
Simmons' RICO conspiracy claim be dismissed.
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)).
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
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