United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND RECOMMENDATION
FRANCES H. STACY UNITED STATES MAGISTRATE JUDGE
in this case that has been referred to the Magistrate Judge
for all further pretrial proceedings is Defendants'
Motion to Dismiss Plaintiffs Amended Complaint (Document No.
24) in which Defendants seek dismissal of Plaintiffs claims
based on: (1) Eleventh Amendment immunity; (2) Plaintiffs
defective service; (3) Plaintiffs failure to properly assert
a § 1981 claim through 42 U.S.C. § 1983; and (4)
Plaintiffs failure to state a claim upon which relief may be
granted. Having considered the motion, the response in
opposition, the claims alleged in Plaintiffs Amended
Complaint and in her Rule 7(a) Reply, and the applicable law,
the Magistrate Judge RECOMMENDS, for the reasons set forth
below, that Defendants' Motion to Dismiss be GRANTED in
Background and Procedural History
an employment discrimination case brought by Plaintiff Ramona
Daniels ("Daniels") against her former employer,
University of Texas MD Anderson Cancer Center ("MD
Anderson") and Penny Phillips, who Daniels alleges was
the "sole decision maker regarding [her]
discharge." Daniels, an African American female, alleges
that she was terminated for violating MD Anderson's
attendance policy when "non-Black similarly situated
individuals" who also violated that attendance policy
were not terminated. She has alleged race discrimination
claims against MD Anderson and Phillips under § 1981,
and a race discrimination and retaliation claim against MD
Anderson under Title VII. Defendants seek dismissal of the
§ 1981 claims on immunity and pleading defect grounds,
and dismissal of the entire lawsuit as against MD Anderson on
service of process grounds.
Discussion- Claims against MD
against MD Anderson, Daniels has alleged a race
discrimination claim under § 1981 and a race
discrimination and retaliation claim under Title VII. As
argued by Defendants, MD Anderson has Eleventh Amendment
Immunity from the § 1981 claim.
Eleventh Amendment generally bars all suits in federal court
against an unconsenting state irrespective of the type of
relief sought. Laxey v. Louisiana Bd. of Trustees,
22 F.3d 621, 623 (5th Cir. 1994) ("The Eleventh
Amendment . . . bar[s] all suits in law or equity against an
unconsenting state.") (citing Cory v. White,
457 U.S. 85, 90-91 (1982)). Because the Eleventh Amendment
generally bars all suits in federal court against an
unconsenting state, in order to maintain suit against a state
in federal court, a state's Eleventh Amendment immunity
must be waived by the state or abrogated by Congress. To
abrogate the Eleventh Amendment immunity of a state, Congress
must "unequivocally express its intent to abrogate the
immunity," and must act "pursuant to a valid
exercise of power." Seminole Tribe of Florida v.
Florida, 517 U.S. 44, 55 (1996) (quoting Green v.
Mansour, 474 U.S. 64, 68 (1985) (citations omitted)).
has been no abrogation of a state's Eleventh Amendment
immunity with respect to claims under § 1981 and §
1983. Pennhurst State Sch. & Hosp., 465 U.S. 89,
118-120 (Eleventh Amendment precludes a federal court from
hearing state law pendent claims or § 1983
constitutional claims asserted against a state) \
Sessions v. Rusk State Hospital, 648 F'.2d 1066,
lO69(5thCir. 1981) (Eleventh Amendment bars claims against a
state in federal court under 42 U.S.C. § 1981);
Aguilar v. Texas Dep't of Criminal Justice, 160
F.3d 1052, 1054 (5th Cir. 1998) ("Section 1983 does not
waive the states' sovereign immunity, see Quern v.
Jordan, 440 U.S. 332, 338 n. 7, 99 S.Ct. 1139, 59
L.Ed.2d 358 (1979), and Texas has not consented to this suit.
See Emory v. Texas State Bd. of Med. Exam'rs,
748 F.2d 1023, 1025 (5th Cir. 1984)). As such, Eleventh
Amendment immunity bars Plaintiffs § 1981 race
discrimination claims against MD Anderson. See Fife v.
Univ. of Texas MD Anderson Cancer Ctr., Civil Action No.
12-cv-3739, 2013 WL 3338587 (S.D. Tex. July 2, 2013) (holding
that MD Anderson, as a component institution of the
University of Texas system, "enjoys the same sovereign
immunity as the State of Texas itself).
Daniels' Title VII claims, the Supreme Court has
determined that Eleventh Amendment immunity has been
abrogated, Fitzpatrick v. Bitzer, 427 U.S. 445, 447
(1976) and Defendants do not seek dismissal of the Title VII
claims on that basis. Instead, MD Anderson maintains that
this entire case should be dismissed, along with the Title
VII claims, because Daniels did not properly or timely serve
it with process. Under FED. R. Civ. P. 4(m), "If a
defendant is not served within 90 days after the complaint is
filed, the court - on motion or on its own after notice to
the plaintiff - must dismiss the action without prejudice
against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an
appropriate period." "This 'good cause'
under Rule 4(m) requires 'at least as much as would be
required to show excusable neglect, as to which simple
inadvertence or mistake of counsel or ignorance of the rules
usually does not suffice.'" Gartin v. Par Pharm.
Companies, Inc., 289 Fed.Appx. 688, 692 (5th Cir. 2008)
(quoting Lambert v. United States, 44 F.3d 296, 299
(5th Cir. 1995)). "In addition, courts normally require
'some showing of good faith on the part of the party
seeking an enlargement and some reasonable basis for
noncompliance within the time specified.'"
case was filed on August 11, 2016, but MD Anderson was not
served until January 19, 2017. It is clear that MD Anderson
was served outside that ninety day window. But, as argued by
Daniels in response to Defendants' Motion to Dismiss,
good cause exists for an extension of that 90 day deadline
based on counsel's representations that she did not
receive the first and second summonses that were issued, and
that the third summons, which she did receive, was served on
MD Anderson on January 19, 2017. Based on that finding of
good cause, this case should not be dismissed pursuant to
Rule 4(m). Consequently, Defendants' Motion to Dismiss
should be GRANTED as to Daniels' claims against MD
Anderson under § 1981, and DENIED as to Daniels'
claims against MD Anderson under Title VII.
Discussion - Claims against Phillips
against Penny Phillips, Daniels has alleged a race
discrimination claim under §1981. The claim is alleged
against her in both her individual and official capacities.
Defendants seek dismissal of that claim on the basis that
Daniels can only assert a race discrimination claim against
Phillips if it is brought under 42 U.S.C. § 1983, and
Daniels has not, to this date, alleged a claim under §
initial matter, Daniels' § 1981 claim against
Phillips in her official capacity is construed as a claim
against her employer - MD Anderson. Will v. Michigan Dep
't of State Police, 491 U.S. 58, 71 (1989);
Kentucky v. Graham, 47'3 U.S. 169, 166(1985).
That official capacity claim is likewise barred by Eleventh
Amendment immunity because Daniels is not seeking any
prospective injunctive relief. Pennhurst, 465 U.S.
at 102-03 (The Eleventh Amendment does not bar federal claims
for prospective injunctive relief against state officials
sued in their official capacities); Saltz v. Tennessee
Dep't of Employment Sec, 976 F.2d 966, 968 (5th Cir.
1992) (For the sovereign immunity exception in Ex parte
Young to apply, "a suit must be brought against
individual persons in their official capacities as agents of
the state and the relief sought must be declaratory or
injunctive in nature and prospective in effect").
Daniels' § 1981 claim against Phillips in her
individual capacity, Defendants are correct that such a claim
can only be alleged through § 1983. Oden v.
Oktibbeha Cty., Miss.,246 F.3d 458, 462-63 (5th Cir.
2001) ("plaintiffs must assert acause of action against
state actors under § 1983 to remedy violations of civil
rights under § 1981"). Defendants are also correct
that no mention is made in Daniels' Amended Complaint of
§ 1983. While this is a clear pleading defect, it is not
a defect that cannot be remedied through a further amendment.
Wilson v. Tangipahoa Pub. Sch. Bd, Civil Action No.
13-271, 2013 WL 3733471 *3 (E.D. La. July 15, 2013).
Moreover, as argued by Daniels, dismissal of her claim should
not be based on her ...