Simmons v. Jackson

Filing 194

MEMORANDUM OPINION AND ORDER granting 173 Motion to Dismiss for Failure to State a Claim filed by Methodist Hospitals of Dallas; granting 178 MOTION to Dismiss filed by Texas Medical Board; denying 185 MOTION for Leave to File Motion for Partia l Summary Judgment filed by Jason Simmons; denying 186 MOTION for Leave to File A Surreply in Response to the Methodist Hospitals of Dallas and Texas Medical Board's Motions to Dismiss Plaintiff's Fourth Amended Complaint filed by Jason S immons; and denying as moot 190 MOTION to Prohibit Plaintiff from Filing Any Motion Seeking Affirmative Relief Pending Rulings on Defendants' Motions to Dismiss filed by Methodist Hospitals of Dallas, Texas Medical Board. (Ordered by Judge Sidney A Fitzwater on 7/19/2017) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JASON SIMMONS,
Plaintiff,
VS.
RAY JACKSON, et al.,
Defendants.

§
§
§
§ Civil Action No. 3:15-CV-1700-D
§
§
§
§
§

MEMORANDUM OPINION
AND ORDER
In this 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.
I
Because 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.
Simmons 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.1 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 November 2012.
Simmons 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.
In 2015 Simmons brought this pro se action against Jackson, alleging claims for fraud,

1

In deciding Methodist’s Rule 12(b)(6) motion, the court construes Simmons’ fourth
amended complaint in the light most favorable to him, accepts as true all well-pleaded factual
allegations, and draws all reasonable inferences in Simmons’ favor. See, e.g., Lovick v.
Ritemoney Ltd., 378 F.3d 433, 437 (5th Cir. 2004). “The court’s review [of a Rule 12(b)(6)
motion] is limited to the complaint, any documents attached to the complaint, and any
documents attached to the motion to dismiss that are central to the claim and referenced by
the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th
Cir. 2010).
A Rule 12(b)(1) motion can mount either a facial or factual challenge. See, e.g.,
Hunter v. Branch Banking & Trust 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).
-2-

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, doublespaced, did not exceed 20 total pages, and complied with Rules 8(a), 8(d)(1), 9(b), and 10(b).
In his 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.
He 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
-3-

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 practice medicine.
Simmons 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.
Simmons 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 TMB.
Simmons 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
-4-

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 professional sanctions.
Methodist 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.
II
The 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).
“Federal 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
-5-

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).
In 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
-6-

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).
III
The court turns first to Methodist’s requests that Simmons’ RICO conspiracy claim
be dismissed.
A
Any 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)).
Section 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)
-7-

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 activity[.]”
“To 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 events.” Id. at 240 (citation
omitted). Predicate acts under RICO include mail fraud, in violation of 18 U.S.C. § 1341,
and wire fraud, in violation of 18 U.S.C. § 1343. See Samsung Elecs. Am., Inc. v. Chung,
2017 WL 635031, at *6 (N.D. Tex. Feb. 16, 2017) (Fitzwater, J.).
B
Methodist contends that Simmons has not adequately pleaded a pattern of racketeering
activity. It posits that the only potential predicate acts that Simmons alleges are use of the
-8-

mail or wires to send information to Simmons about his case. Methodist maintains that, to
the extent any predicate acts are discernible from the fourth amended complaint, they are not
related, and they lack continuity. And Methodist asserts that Simmons’ only allegations of
relatedness are conclusory statements, such as that the acts “all served to lessen suspicion
about the hospital’s firing of the plaintiff.” 4th Am. Compl. ¶ 12. Methodist also contends
that Simmons’ attempt to incorporate portions of other filings by reference does not satisfy
his burden to allege a pattern of racketeering activity, because Simmons cannot incorporate
parts of his improperly filed summary judgment motion or his deficient third amended
complaint.
Simmons responds that his incorporations are permissible under Rule 10(c), and that
when the incorporated material is taken into account, he has sufficiently pleaded a pattern
of racketeering activity. He contends that he did not incorporate the entire (189-page) third
amended complaint, but only particular counts with noticeable headings, and that the
magistrate judge took note of these same counts in his findings, conclusions and
recommendation. Simmons maintains that the predicate acts had similar methods of
execution, purpose, and victim, and occurred over a substantial period of time.
C
The court concludes that Simmons has not plausibly pleaded a pattern of racketeering
activity. The only predicate acts that the fourth amended complaint potentially alleges are
mail and wire fraud by TMB and Jordan, which it sets out in the civil conspiracy count but
references in the RICO conspiracy count. Simmons does not allege with the required
-9-

particularity any predicate acts that Methodist allegedly committed. See Tel-Phonic Servs.,
Inc. v. TBS Int’l, Inc., 975 F.2d 1134, 1139 (5th Cir. 1992) (holding that RICO mail fraud
must allege time, place, contents and identity of false representation). And the predicate acts
attributed to TMB and Jordan lack continuity, because, like the predicate acts in Burzynski,
they are all related to a legal proceeding that is now concluded (in this case, the proceeding
before TMB). See Burzynski, 989 F.2d at 743. The predicate acts alleged in the fourth
amended complaint do not constitute or threaten long-term criminal activity. See id.
The court declines to search the third amended complaint or Simmons’ prior motion
for partial summary judgment for allegations of a pattern of racketeering activity. Rule 10(c)
provides that “[a] statement in a pleading may be adopted by reference elsewhere in the same
pleading or in any other pleading or motion.” If a party avails himself of Rule 10(c),
“references to prior allegations must be direct and explicit, in order to enable the responding
party to ascertain the nature and extent of the incorporation.” 5A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1326, at 431-32 (3d ed. 2004 & Supp.
2017) (footnotes omitted).
In this case, after dismissing Simmons’ prolix second and third amended complaints,
the court ordered Simmons to set out his claims in a fourth amended complaint that was
typed in at least 12-point font, double-spaced, and did not exceed 20 pages. In its order, the
court adopted the magistrate judge’s conclusion that neither the court nor defendants were
required to search through the 189-page, single-spaced third amended complaint to identify
Simmons’ claims. For the same reasons set out in those decisions, Simmons may not plead
- 10 -

a pattern of racketeering activity by generally incorporating his third amended complaint
without including page or paragraph number references. And Simmons is not permitted to
incorporate by reference his motion for partial summary judgment because this practice is
not authorized by Rule 10(c) or any other authority that has been identified.
Accordingly, the court dismisses with prejudice Simmons’ RICO conspiracy claim
against Methodist.
IV
The court next addresses Methodist’s request to dismiss Simmons’ civil conspiracy
claims.
A
42 U.S.C. § 1983 “provides a civil remedy in federal court for violations, under color
of state law, of a person’s constitutionally recognized rights, privileges, or immunities.”
Bledsoe v. City of Horn Lake, Miss., 449 F.3d 650, 653 (5th Cir. 2006) (citing Findeisen v.
N.E. Indep. Sch. Dist., 749 F.2d 234, 236-37 (5th Cir. 1984)). To support a conspiracy claim
under § 1983, Simmons “must allege facts that suggest: 1) an agreement between the private
and public defendants to commit an illegal act, and 2) an actual deprivation of constitutional
rights.” Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994) (citations omitted).
To state a claim under 42 U.S.C. § 1985 for denial of equal protection, Simmons must
allege that

- 11 -

“(1) the defendants conspired (2) for the purposes of depriving,
either directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and
immunities under the laws, and (3) one or more of the
conspirators committed some act in furtherance of the
conspiracy; whereby (4) another person is injured in his person
or property or deprived of having and exercising any right or
privilege of a citizen of the United States; and (5) the action of
the conspirators is motivated by a racial animus.”
Horaist v. Doctor’s Hosp. of Opelousas, 255 F.3d 261, 270 n.12 (5th Cir. 2001) (quoting
Wong v. Stripling, 881 F.2d 200, 202-03 (5th Cir. 1989)).
B
Methodist contends that Simmons has not stated a claim for civil conspiracy under
§ 1983 or § 1985 because he does not sufficiently allege that Methodist agreed to commit an
illegal act.
Regarding his § 1983 claim, Simmons responds that Methodist provided TMB with
fabricated affidavits, which led TMB to wrongfully sanction him. He contends that TMB
and Jordan pursued a scheme to sanction his medical license. And he maintains that
Methodist need not have agreed to the details of a conspiracy, so long as it understood and
accepted the conspiracy’s general objectives and agreed to do its part to further them (citing
United States v. Andolschek, 142 F.2d 503, 507 (2d Cir. 1944)). Regarding his § 1985 claim,
Simmons contends that Methodist agreed with Jackson, Jordan, and San Miguel to violate
the law, specifically by submitting joint status reports and motions to the court during
Simmons’ prior lawsuit. Simmons maintains that Methodist and Jackson agreed to forgo
mediation without his permission.
- 12 -

C
The court concludes that Simmons has not pleaded a plausible claim for relief under
§ 1983. Aside from the conclusory label that a conspiracy existed, Simmons’ only allegation
of an agreement between Methodist and a public defendant is that Methodist provided
fabricated affidavits to TMB. Even taking the fabrication as true (which is itself an
unsupported conclusory label), this allegation does not suggest that an agreement existed
between Methodist and TMB. See Tebo v. Tebo, 550 F.3d 492, 496 (5th Cir. 2008) (holding
that conspiracy claim under § 1983 must allege specific facts to show agreement).
The court likewise concludes that Simmons has not pleaded a plausible claim for relief
under § 1985. He alleges that Methodist and Jackson joined in motions without authorization
from Simmons, who was Jackson’s client. But aside from relying on unsupported labels and
conclusions, Simmons has not alleged that Methodist knew that Jackson had exceeded his
authority, or that Methodist otherwise agreed to commit an illegal act. See id. at 497 (holding
that no conspiracy existed where defendants were unaware of illegality).
Accordingly, the court dismisses with prejudice Simmons’ civil conspiracy claims
against Methodist.
V
The court now turns to Methodist’s contention that Simmons’ contract claims are
time-barred.
A
Under Texas law, “breach of contract claims are subject to a four-year statute of
- 13 -

limitations.” Smith Int’l, Inc. v. Egle Grp., LLC, 490 F.3d 380, 386 (5th Cir. 2007).
“‘[C]ontract claims generally accrue when the contract is breached.’” Id. 387 (quoting
Hoover v. Gregory, 835 S.W.2d 668, 677 (Tex. App. 1992, writ denied)).
“‘Although dismissal under Rule 12(b)(6) is ordinarily determined by whether the
facts alleged in the complaint, if true, give rise to a cause of action, a claim may also be
dismissed if a successful affirmative defense appears clearly on the face of the pleadings.’”
Sivertson v. Clinton, 2011 WL 4100958, at *2 (N.D. Tex. Sept. 14, 2011) (Fitzwater, C.J.)
(quoting Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)); see also White v.
Padgett, 475 F.2d 79, 82 (5th Cir. 1973) (holding that claim is “subject to dismissal under
Rule 12(b)(6) . . . when [an] affirmative defense clearly appears on the face of the
complaint.”). “In the usual case, this court is unable to grant dismissal under Rule 12(b)(6)
based on an affirmative defense because it rarely appears on the face of the complaint.”
Simon v. Telsco Indus. Emp. Benefit Plan, 2002 WL 628656, at *1 (N.D. Tex. Apr. 17, 2002)
(Fitzwater, J.). Furthermore, “[i]t is well settled . . . that in order for a defendant to prevail
on the basis of limitations at the pleadings stage, the plaintiff must normally plead himself
out of court.” W. Fork Partners, L.P. v. Chesapeake Exploration, L.L.C., 2009 WL 2252505,
at *5 (N.D. Tex. July 29, 2009) (Fitzwater, C.J.) (quoting Funches v. City of Dallas, 1999
WL 261842, at *2 (N.D. Tex. Apr. 28, 1999) (Fitzwater, J.)).
B
Methodist contends that Simmons first brought his contract claims on June 1, 2016,
and any claim arising from a breach that occurred before June 1, 2012 is therefore time- 14 -

barred. Methodist maintains that all of Simmons’ contract claims arise from his separation
from Methodist in 2010, and are time-barred.
Simmons does not dispute that his contract claims were filed after the limitations
period had run; he contends that the statute of limitations should be tolled based on Jackson’s
alleged legal malpractice.
C
The court concludes that the affirmative defense of limitations appears clearly on the
face of Simmons’ fourth amended complaint. Simmons alleges 11 breaches and clearly
alleges that each one occurred between May and July 2010. It is apparent from the face of
Simmons’ fourth amended complaint that each of his contract claims arose, and he knew of
the factual basis for the claim, more than four years before he brought the claim in this case.
See Simon, 2002 WL 628656, at *1-2 (dismissing claims that on face of complaint were
clearly time-barred).
The court also concludes that Simmons has not plausibly pleaded that the limitation
period for his breach of contract claims has been equitably tolled. Texas law recognizes the
common law doctrine of equitable tolling when “a claimant actively pursued his judicial
remedies but filed a defective pleading during the statutory period, or where a complainant
was induced or tricked by his adversary’s misconduct into allowing filing deadlines to pass.”
Bailey v. Gardner, 154 S.W.3d 917, 920 (Tex. App. 2005, no pet.). Attorney negligence is
ordinarily not sufficient to invoke equitable tolling. See Harris v. Boyd Tunica, Inc., 628
F.3d 237, 240 (5th Cir. 2010). The fourth amended complaint alleges that Jackson waived
- 15 -

mediation in prior litigation without proper authority from Simmons, and Simmons’ brief
contends that Jackson was aware of the contract claims before the limitations period ran.
Aside from conclusory labels, these are Simmons’ only relevant factual contentions, and they
do not plausibly plead that Simmons is entitled to equitable tolling of the statute of
limitations for contract claims. See id.; see also Simmons v. Methodist Hosps. of Dall., 106
F.Supp.3d 799, 806 (N.D. Tex. 2015) (Boyle, J.) (rejecting same attorney malpractice
contention and dismissing Simmons’ employment discrimination retaliation claim as timebarred).
Accordingly, the court dismisses Simmons’ contract claims against Methodist.
VI
The court now turns to TMB’s motion to dismiss Simmons’ claims based on sovereign
immunity.
A
“Eleventh Amendment sovereign immunity deprives a federal court of jurisdiction to
hear a suit against a state.” Warnock v. Pecos Cnty., Tex., 88 F.3d 341, 343 (5th Cir. 1996).
TMB posits that it is an agency of the State of Texas, see Texas Occupations Code § 152.001
(West 2012), and that, absent consent, a suit against a state agency is barred by the Eleventh
Amendment, see Lewis v. University of Texas Medical Branch at Galveston, 665 F.3d 625,
630 (5th Cir. 2011). TMB posits that Texas has not consented to this suit, and that Congress
has not abrogated sovereign immunity for the claims Simmons advances. See Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 66 (1989) (42 U.S.C. § 1983); Quern v. Jordan, 440 U.S.
- 16 -

332, 339-46 (1979) (Civil Rights Act of 1871, which includes provision codified at 42 U.S.C.
§ 1985); Gaines v. Tex. Tech Univ., 965 F. Supp. 886, 889 (N.D. Tex. 1997) (Fitzwater, J.)
(RICO Act). TMB therefore maintains that the court lacks jurisdiction regardless of whether
damages or prospective relief is sought. See Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 100 (1984).
Simmons acknowledges TMB’s sovereign immunity under the Eleventh Amendment.
He nevertheless contends that the court should exercise supplemental jurisdiction over his
claims against TMB (citing 28 U.S.C. § 1367); that the court has jurisdiction over his § 1983
and § 1985 claims (citing 28 U.S.C. § 1343); and that the court has jurisdiction over his
RICO claim. Simmons also maintains that TMB adopted a policy, practice, or custom that
violated his constitutional rights, and that sovereign immunity does not protect local
governments.
B
The court concludes that it lacks jurisdiction over Simmons’ claims against TMB
because TMB is a state agency, Texas has not consented to suit, and Congress has not
abrogated sovereign immunity for the claims that Simmons advances against TMB. See
Lewis, 665 F.3d at 630. Simmons’ contentions that the court should exercise supplemental
jurisdiction, and that the court would otherwise have jurisdiction over these types of claims,
do not undermine the conclusion that the court lacks jurisdiction to entertain the claims
against this particular defendant. See id. And Simmons’ arguments about local governments
and unlawful policy, practice, or custom do not apply to TMB because it is a state agency.
- 17 -

Accordingly, the court dismisses Simmons’ claims against TMB for lack of
jurisdiction.
VII
The court denies Simmons’ motion for leave to file a surreply to Methodist’s motion
to dismiss because the proposed surreply does not raise matters that would materially alter
the court’s analysis.
VIII
The court denies Simmons’ motion for leave to file a motion for partial summary
judgment against Methodist, TMB, and Jordan because the court is dismissing Simmons’
claims against Methodist and TMB, and Jordan has not been served with process in this case.
IX
The court denies as moot Methodist and TMB’s motion to prohibit Simmons from
moving for affirmative relief before their motions to dismiss are decided.
*

*

*

Accordingly, for the reasons explained, the court dismisses Simmons’ action against
Methodist and TMB by Rule 54(b) final judgment filed today.
SO ORDERED.
July 19, 2017.

_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
- 18 -