United States District Court, W.D. Texas, San Antonio Division
MEMORANDUM OPINION AND ORDER
PULLIAM UNITED STATES DISTRICT JUDGE
Court has under consideration Defendants' Motion to
Dismiss Plaintiff's Original Complaint (ECF No. 12).
The motion is ripe for ruling. For the reasons that follow,
the Court grants the motion in part and denies it in part.
February 2019, Plaintiff commenced this civil action
asserting claims under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq.; the Civil Rights Act
of 1871, 42 U.S.C. § 1983; and state law. See
Pl.'s Orig. Compl. (ECF No. 3) ¶ 7. She names as
defendants Texas Health and Human Services Commission
(“THHSC”) operating as the San Antonio State
Supported Living Center, a political subdivision of the State
of Texas, and Cheryl Rhodes who is sued in both her
individual and official capacities. Id. at 1-2. She
asserts (1) pursuant to § 1983, violations of her due
process rights under the Fourteenth Amendment to the United
States Con-stitution; (2) violation of her rights under the Due
Course Clause of the Texas Constitution; (3) breach of
contract by THHSC; (4) intentional infliction of emotional
distress (“IIED”) by Rhodes; (5) negligent
hiring, training, and supervision by THHSC; and (6)
retaliatory discharge under Title VII by THHSC. See
Id. ¶¶ 62-107. She seeks compensatory and
punitive damages and an injunction forbidding THHSC from
violating Title VII rights. Id. at 45-46.
have moved to dismiss the complaint pursuant to Fed.R.Civ.P.
12(b)(1) and 12(b)(6). In an abundance of caution, they first
point out that, to the extent Plaintiff seeks to separately
sue the San Antonio State Supported Living Center, she cannot
do so because it is not a separate legal entity capable of
being sued. Although they initially argue broadly that
the Court lacks jurisdiction over all claims, the briefing is
not quite so broad. At no point do Defendants address any
basis - jurisdictional or otherwise - to dismiss the asserted
Title VII claim. They specifically argue that, based upon
Eleventh Amendment immunity, the Court lacks jurisdiction
over (1) Claims 1, 2, 3, and 5 against THHSC; (2) Claim 1
asserted against Rhodes in her official capacity; and (3)
Claims 2 and 4 asserted against Rhodes in either capacity.
Pursuant to Rule 12(b)(6), they argue that Rhodes enjoys
qualified immunity against Plaintiff's due process claims
under 42 U.S.C. § 1983 (Claim 1) to the extent Plaintiff
sues her in her individual capacity and that Plaintiff has
otherwise failed to state a due process claim upon which
relief can be granted.
response, Plaintiff agrees to the jurisdictional dismissal of
Claims 2, 3, and 5 as to THHSC. She also states that she has
no objection to granting the motion as to those claims
against both Defendants. But she contends that Rhodes is not
entitled to immunity against Claim 4 in either her individual
or official capacity. In addition, Plaintiff disputes the
Eleventh Amendment argument regarding Claim 1; expresses
reliance on Ex parte Young, 209 U.S. 123 (1908) to
overcome asserted immunity; and seeks leave to amend to
include the necessary requests for prospective relief to
invoke Ex parte Young. Plaintiff argues that once
she is permitted to amend her complaint, the Court will have
jurisdiction over her § 1983 claims. She also argues
that Rhodes is not entitled to qualified immunity; she has
stated plausible Fourteenth Amendment claims; and, if further
factual detail is necessary, she seeks leave to amend her
to Fed.R.Civ.P. 12(b)(1), Defendants seek to dismiss various
claims based on sovereign immunity under the Eleventh
Amendment. Whether the Eleventh Amendment bars a claim due to
sovereign immunity raises a jurisdictional challenge. See
City of Austin v. Paxton, __ F.3d__, __, No. 18-50646,
2019 WL 6520769, at *2 (5th Cir. Dec. 4, 2019).
has no objection to granting the motion to dismiss as it
relates to Claims 2, 3, and 5. But she disagrees and urges
the preservation of Claim 4 to the extent Rhodes “was
not acting under the imprimatur of policies and
regulations” of THHSC. And she disagrees that the Court
lacks subject matter jurisdiction over Claim 1.
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute, which is
not to be expanded by judicial decree.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(citations omitted). They “must presume that a suit
lies outside this 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). “When a
Rule 12(b)(1) motion is filed in conjunction with other Rule
12 motions, the court should consider the Rule 12(b)(1)
jurisdictional attack before addressing any attack on the
merits.” Ramming v. United States, 281 F.3d
158, 161 (5th Cir. 2001). By first considering a Rule
12(b)(1) motion, courts avoid “prematurely dismissing a
case with prejudice” when it lacks jurisdiction.
Id. A “court's dismissal of a
plaintiff's case because the plaintiff lacks subject
matter jurisdiction is not a determination of the merits and
does not prevent the plaintiff from pursuing a claim in a
court that does have proper jurisdiction.” Id.
most cases, Eleventh Amendment sovereign immunity bars
private suits against non-consenting states in federal
court.” City of Austin, __ F.3d at__, 2019 WL
6520769, at *2 (citing Va. Office for Prot. &
Advocacy v. Stewart, 563 U.S. 247, 253 (2011); Bd.
of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363
(2001)). Furthermore, “sovereign immunity also
prohibits suits against state officials or agencies that are
effectively suits against a state.” Id. Thus,
based upon sovereign immunity under the Eleventh Amendment,
federal courts lack “jurisdiction over suits against a
state, a state agency, or a state official in his official
capacity unless that state has waived its sovereign immunity
or Congress has clearly abrogated it.” NiGen
Biotech, L.L.C. v. Paxton, 804 F.3d 389, 393-94 (5th
Cir. 2015) (quoting Moore v. La. Bd. of Elementary &
Secondary Educ., 743 F.3d 959, 962 (5th Cir. 2014));
accord City of Austin__, F.3d at__, 2019 WL 6520769,
did not abrogate state sovereign immunity by enacting the
Civil Rights Act of 1871, 42 U.S.C. § 1983. Quern v.
Jordan, 440 U.S. 332, 340-45 (1979); Price v.
Shorty, 632 Fed.Appx. 211, 212 (5th Cir. 2016) (per
curiam). Nor has Texas consented to suit under § 1983.
Ni-Gen Biotech, L.L.C., 804 F.3d at 394. While there
is a waiver of immunity under the Texas Constitution, such
waiver “is only applicable to Article I, § 17,
” which is not at issue in a case asserting only a
violation “of the due-course-of-law provision in the
Texas Constitution, ” Article I, § 19. Banik
v. Tamez, No. 7:16-CV-00462, 2017 WL 2505653, at *26
(S.D. Tex. June 9, 2017). Nevertheless, by enacting the Texas
Tort Claims Act (“TTCA”), Texas has provided
“a limited waiver of immunity for certain suits against
governmental entities and caps recoverable damages.”
Mission Consol. Indep. Sch. Dist. v. Garcia, 253
S.W.3d 653, 655 (Tex. 2008). And because plaintiffs would
attempt to circumvent the TTCA's “damages cap or
other structures by suing governmental employees, ” the
Texas “Legislature created an election-of-remedies
provision” designed to “prevent such
circumvention, and to protect governmental employees.”
Id. at 656.
invoke the election-of-remedies provision of the TTCA, Tex.
Civ. Prac. & Rem. Code Ann. § 101.106, for
dismissing Claim 4 alleging IIED. When a plaintiff sues the
governmental unit, the suit “constitutes an irrevocable
election by the plaintiff and immediately and forever bars
any suit or recovery by the plaintiff against any individual
employee of the governmental unit regarding the same subject
matter.” Id. § 101.106(a). Similarly,
when a plaintiff files “suit against any employee of a
governmental unit, ” such suit “constitutes an
irrevocable election by the plaintiff and immediately and
forever bars any suit or recovery by the plaintiff against
the governmental unit regarding the same subject matter
unless the governmental unit consents.” Id.
§ 101.106(b). Furthermore, when “a suit is filed
under this chapter 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.” Id. § 101.106(e). And §
101.106(f) provides for dismissal of a government employee in
certain circumstances and that section applies even when both
the employee and governmental unit are sued. See
Garcia, 253 S.W.3d at 659.
alleged state tort claims are based on conduct within the
general scope of an individual's employment with a
governmental unit and the plaintiff could have brought the
claims against the employer, a suit against the employee is
limited to an official capacity action notwithstanding any
allegation that the plaintiff seeks to proceed against the
employee in his or her individual capacity. Tex. Civ. Prac.
& Rem. Code Ann. § 101.106(f); Graham v. Dallas
Area Rapid Transit, 288 F.Supp.3d 711, 747 (N.D. Tex.
2017). Garcia provides the following apt overview of
the election-of-remedies provision:
Under the Tort Claims Act's election scheme, recovery
against an individual employee is barred and may be sought
against the governmental unit only in three instances: (1)
when suit is filed against the governmental unit only, [Tex.
Civ. Prac. & Rem. Code Ann.] § 101.106(a); (2) when
suit is filed against both the govern- mental unit and its
employee, id. § 101.106(e); or (3) when suit is
filed against an employee whose conduct was within the scope
of his or her employment and the suit could have been brought
against the governmental unit, id. §
101.106(f). When suit is filed against the employee, recovery
against the governmental unit regarding the same subject
matter is barred unless the governmental unit consents to
suit. Id. § 101.106(b). Because the decision
regarding whom to sue has irrevocable consequences, a
plaintiff must proceed cautiously before filing suit and
carefully consider whether to seek relief from the
governmental unit or from the employee individually.
253 S.W.3d at 657. In their motion to dismiss, Defendants
invoke subdivisions (a), (e), and (f) of § 101.106.
amending § 101.106 “as part of a comprehensive
effort to reform the tort system” in 2003, the
Legislature's “apparent purpose was to force a
plaintiff to decide at the outset whether an employee acted
independently and is thus solely liable, or acted within the
general scope of his or her employment such that the
governmental unit is vicariously liable.” Id.
This required irrevocable election “narrows the issues
for trial and reduces delay and duplicative litigation
costs.” Id. The election-of-remedies provision
identifies some circumstances when a suit against a state
official or employee is effectively against the state and may
be barred by sovereign immunity.
§ 101.106(f) limits an action against a governmental
employee to that employee's official capacity, the action
is in effect a suit against the employer. Consequently, an
employee's motion to dismiss under §
“101.106(f) challenges the trial court's
subject-matter jurisdiction.” Rivera v.
Garcia, No. 04-18-00842-CV, 2019 WL 3432099, at *1 (Tex.
App. - San Antonio, July 31, 2019, no pet. h.); accord
Curley v. Gonzalez, No. 3:15-CV-1341-L, 2017 WL 4351073,
at *6 (N.D. Tex. Sept. 30, 2017) (noting that, because a
§ 101.106(f) “dismissal involves immunity, it
appears to be a jurisdictional matter”). Similarly, a
§ 101.106(e) motion by the governmental unit to dismiss
an employee appears to reflect that the action is effectively
a suit against the employer alone and constitutes a
jurisdictional challenge based on sovereign im- munity.
See Lewis-Piccolo v. City of Houston, No. CV
H-16-2897, 2017 WL 2644211, at *5 (S.D. Tex. June 1, 2017)
(recommendation of Mag. J.) (noting that a governmental
employee has “derivative immunity pursuant to Tex. Civ.
Prac. & Rem. Code § 101.06(e)”) adopted
by 2017 WL 2633592 (S.D. Tex. June 19, 2017);
McHenry v. Stinnett Police Dep't, No.
2:13-CV-0228-J, 2014 WL 4810025, at *1 ...