United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORDUNITED STATES MAGISTRATE JUDGE.
the Court is Defendant Garland Independent School District
(“GISD”), Gradyne Brown, and Darren
Hemphill's (collectively, the “School District
Defendants”), Motion to Dismiss Plaintiff's Third
Amended Complaint under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) (the “Motion”). Mot. (ECF
No. 60). For the reasons stated below, the District Court
should GRANT Defendants' Motion and DISMISS
Plaintiff's claims against them.
filed his Original Complaint on November 22, 2017. Compl.
(ECF No. 3). Less than a month later, he filed an Amended
Complaint. Am. Compl. (ECF No. 6). Ten months after that,
Plaintiff filed a Second Amended Complaint without leave of
court, causing Defendants to file a motion for clarification
regarding the state of the pleadings. Sec. Am. Compl. (ECF
No. 38); see Order (ECF No. 53). As a result, the
Court granted Plaintiff one final opportunity to amend his
complaint and plead his case. Order (ECF No. 47). In
response, Plaintiff filed his Third Amended Complaint, the
live pleading in this case, on December 17, 2018. Third Am.
Compl. (ECF No. 49).
School District Defendants move to dismiss Plaintiff's
claims against them under Rules 12(b)(1) and 12(b)(6).
Plaintiff asserts more than 23 claims against 42 Defendants
in his Third Amended Complaint, and it is unclear exactly
which claims he brings against the School District
Defendants. Specifically, Plaintiff alleges that Defendant
Darren Hemphill, together with several other named Defendants
and “unknown Defendants, ” “conspired to
intentional [sic] inflict emotional distress upon [Plaintiff]
by mocking him, humiliating him, and depriving him of the
right to seek happiness.” Third Am. Compl. 15. He
further alleges that the School District Defendants, Justin
Graham, and Joe Taguma, II conspired with the state of Texas
to deprive him of “rights protected by the freedom of
information act by denying his FOIA request” and to
obstruct justice by withholding information from him
regarding Defendant Rosaline Chatham-Sims in his family-court
case. Id. 16, 27. However, Plaintiff claims that
“Justin Graham” and “Joe Tanguma” are
only false names that the School District Defendants used to
withhold that information. Id. 34. Plaintiff also
contends that Darren Hemphill “refused to investigate
[Plaintiff's] claim of his wife, Defendant Rosaline
Chatham-Sims who works for Garland Independent School
District as a 6th grade science teacher, having workplace
romance/sex” and encouraged her to continue the
“extra marital affair.” Id. 17, 48.
After Hemphill's refusal to investigate, Plaintiff states
that he “escalated his complaint to Garland Independent
School District primary grades supervisor Gradyne
Brown.” Id. 17-18. Plaintiff also maintains
that Defendant Hemphill participated with
“Defendants” in securing “an application
for emergency detention against [Plaintiff].”
complains of “a list of continuing causes of action
including, but not limited to, fraud, the intentional
infliction of emotional distress, the deprivation of the
rights of [Plaintiff], his family and friends, the torture
and death of [Plaintiff's] mother from December 16-22,
2015, and obstruction of justice.” Id. 17.
Among other relief, Plaintiff seeks a court order requiring
“Defendant Garland Independent School District to
address in its employee conduct policy the consequences of
extra-marital affairs in the workplace.” Id.
84-85. Defendants' Motion is fully briefed and ripe for
Standards and Analysis 12(b)(1)
motion to dismiss under Rule 12(b)(1) challenges a federal
court's subject-matter jurisdiction. Fed.R.Civ.P.
12(b)(1). “If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the
action.” Fed.R.Civ.P. 12(h)(3). “‘A case is
properly dismissed for lack of subject matter jurisdiction
when the court lacks the statutory or constitutional power to
adjudicate the case.'” Home Builders Ass'n
of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010
(5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6
Pension Fund, 81 F.3d 1182, 1187 (2d Cir.
1996)). The Court “must presume that a suit lies
outside [its] limited jurisdiction, and the burden of
establishing federal jurisdiction rests on the party seeking
the federal forum.” Howery v. Allstate Ins.
Co., 243 F.3d 912, 916 (5th Cir. 2001) (citations
omitted). The party asserting jurisdiction must allege the
jurisdictional basis “affirmatively and
distinctly”; it cannot be “established
argumentatively or by mere inference.” Ill. Cent.
Gulf R. Co. v. Pargas, Inc., 706 F.2d 633, 636 & n.2
(5th Cir. 1983) (citations omitted); accord Getty Oil
Corp. v. Ins. Co. of N.A., 841 F.2d 1254, 1259 (5th Cir.
Fifth Circuit recognizes two types of challenges to a federal
court's subject-matter jurisdiction-“facial”
attacks, which are based solely on the pleadings, and
“factual” attacks, which are based on affidavits,
testimony, and other evidentiary material. See Paterson
v. Weinberger, 644 F.2d 521, 523 (5th Cir. May 1981);
see also Ramming v. United States, 281 F.3d 158, 161
(5th Cir. 2001) (per curiam) (“Lack of subject matter
jurisdiction may be found in any one of three instances: (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.”) (citation
omitted)). Whether the attack is facial or factual, however,
the plaintiff seeking a federal forum “constantly bears
the burden of proof that jurisdiction does in fact
exist.” Ramming, 281 F.3d at 161 (citation
defendant files a Rule 12(b)(1) motion to dismiss without
evidentiary materials supporting it, the attack is facial,
and the Court need only consider the sufficiency of the
allegations in the plaintiff's complaint.
Paterson, 644 F.2d at 523. If the defendant makes a
factual challenge, to defeat it, “a plaintiff
‘must prove the existence of subject-matter
jurisdiction by a preponderance of the evidence' and is
‘obliged to submit facts through some evidentiary
method to sustain his burden of proof.'”
Superior MRI Servs., Inc. v. All. Healthcare Servs.,
Inc., 778 F.3d 502, 504 (5th Cir. 2015) (quoting
Irwin v. Veterans Admin., 874 F.2d 1092, 1096 (5th
Cir. 1989), aff'd sub nom., Irwin v. Dep't of
Veterans Affairs, 498 U.S. 89 (1990)).
Court should dismiss Plaintiff's state-law tort claims
against Defendants Brown and Hemphill because it lacks
subject-matter jurisdiction over those claims under the Texas
Tort Claims Act (“TTCA”). The TTCA's
election-of-remedies provision requires plaintiffs to choose
between suing a governmental unit or its employees.
Bustos v. Martini Club Inc., 599 F.3d 458, 462 (5th
Cir. 2010) (citing Tex. Civ. Prac. & Rem. Code §
101.106). Suing either the governmental unit or its employee
constitutes an “irrevocable election by the
plaintiff” and “forever bars any suit or recovery
by the plaintiff . . . regarding the same subject
matter” against the other. Tex. Civ. Prac. & Rem.
Code § 101.106(a)-(b); see also Bustos, 599
F.3d at 462. But “[i]f a suit is filed . . . against
both a governmental unit and any of its employees, the
employees shall immediately be dismissed on the filing of a
motion by the governmental unit.” Tex. Civ. Prac. &
Rem. Code § 101.106(e). Because the Texas Supreme Court
interprets § 101.106 to apply to state-law claims for
negligence and intentional torts, “if a plaintiff
brings virtually any state common law tort claim against both
a governmental unit and its employees, § 101.106(e) will
allow the employee defendants to be dismissed if the
governmental unit so moves.” Bustos, 599 F.3d
at 463 (citing Mission Consol. Indep. Sch. Dist. v.
Garcia, 253 S.W.3d 653, 658 (Tex. 2008)).
Plaintiff appears to bring state-law claims for intentional
infliction of emotional distress, conspiracy,  “fraud by
false personation, ” “obstructing justice,
” and “abuse of
powers.” Third Am. Compl. 15-17, 34, 47-48, 72. In
the School District Defendants' Motion, pursuant to the
TTCA, GISD moves to dismiss Plaintiff's state-law tort
claims against its employees Rosaline Chatham-Sims, Gradyne
Brown, Darren Hemphill, and Justin Graham. Defs.' Br. 9
(ECF No. 61). Because GISD is a governmental unit under the
TTCA, Plaintiff's state-law tort claims-including
Plaintiff's claims for intentional infliction of
emotional distress, conspiracy, and fraud, as well as any
other claim asserted against Hemphill, Brown, Chatham-Sims,
and Graham that could be construed as a state-law
tort claim-should be dismissed. See Tex. Civ. Prac.
& Rem. Code § 101.001(3)(B)
(“‘Governmental unit' means: a political
subdivision of this state, including any city, county, school
district . . . .”).
Court should also dismiss Plaintiff's state-law tort
claims against GISD because GISD enjoys governmental
immunity. Governmental immunity exists to protect the
state's “political subdivisions from lawsuits and
liability for money damages.” Mission, 253
S.W.3d at 655 (citing Reata Constr. Corp. v. City of
Dallas, 197 S.W.3d 371, 374 (Tex. 2006)). Accordingly,
“‘no State can be sued in her own courts without
her consent, and then only in the manner indicated by that
consent.'” Id. (quoting Hosner v.
DeYoung, 1 Tex. 764, 769 (1847)). The TTCA
“generally waives governmental immunity to the extent
that liability arises from the ‘use of a motor-driven
vehicle or motor-driven equipment' or from ‘a
condition or use of tangible personal or real
property.'” Id. at 655-56 (citing Tex.
Civ. Prac. & Rem. Code § 101.021). But, “[f]or
school districts, the Act's waiver is even narrower,
encompassing only tort claims involving the use or operation
of motor vehicles.” Id. at 656 (citing Tex.
Civ. Prac. & Rem. Code § 101.051).
Plaintiff asserts intentional infliction of emotional
distress, conspiracy, and “fraud by false
personation” claims against GISD like the other School
District Defendants. Third Am. Compl. 17, 34, 72. Because
Plaintiff's claims do not arise out of conduct involving
the use or operation of motor vehicles, GISD is immune from
suit. Accordingly, the Court should dismiss Plaintiff's
state-law tort claims-including his intentional infliction of
emotional distress, conspiracy, and ...