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Alvarado v. Texas Health and Human Services Commission THHSC

United States District Court, W.D. Texas, San Antonio Division

December 17, 2019

MARY ANN ALVARADO, Plaintiff,
v.
TEXAS HEALTH AND HUMAN SERVICES COMMISSION THHSC, Operating as the San Antonio State Supported Living Center, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JASON PULLIAM UNITED STATES DISTRICT JUDGE

         The 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.

         I. BACKGROUND

         In 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;[1] (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.

         Defendants 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.[2] 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.

         In 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 complaint.

         II. JURISDICTION

         Pursuant 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).

         Plaintiff 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.

         “Federal 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.

         “In 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, at *2.

         Congress 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.

         Defendants 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.

         When 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.

         By 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.

         Because § 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 ...


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