Jones v. Nueces County, Texas et al
Filing
44
ORDER granting 26 Motion to Dismiss all claims made by Plaintiff Trey Jones against Defendant Christus Spohn Health Systems Corporations. Jones' request for discovery is DENIED..(Signed by Judge Nelva Gonzales Ramos) Parties notified.(lsmith, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
TREY JONES,
Plaintiff,
VS.
NUECES COUNTY, TEXAS, et al,
Defendants.
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§ CIVIL ACTION NO. C-12-145
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§
ORDER
Before the Court is “Defendant Christus Spohn Health Systems Corporation’s
[(Spohn’s)] Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Rule
12(b)(1) and Motion for Judgment on the Pleadings Pursuant to Rule 12(c) and 12(h)(2)
or in the Alternative, Motion for Summary Judgment Pursuant to Rule 56” (D.E. 26).
After reviewing the motion and response (D.E. 42) and for the reasons set out below, the
Motion to Dismiss for lack of subject matter jurisdiction and the Motion for Judgment on
the Pleadings for failure to state a claim upon which relief can be granted (D.E. 26) are
GRANTED. The Court does not reach the alternative motion for summary judgment.
FACTS AND ALLEGATIONS
Plaintiff Trey Jones (Jones) alleges that a jailor, Defendant Nicholas Ortega,
engaged in excessive force and intentionally injured him. He alleges suffering a broken
nose, cut lip, broken thumb, severely injured wrist, along with injuries to his chest,
shoulder, ribs and head. Jones complains that he continues to endure severe headaches
and frequent nose bleeds as well as continued pain and impairment with his wrist and
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shoulder. D.E. 1, p. 5. With these injuries being obvious, Jones further alleges that
Defendant Spohn failed to provide minimal medical treatment. More specifically, Jones
complains of the failure to x-ray his nose, hand, wrist, shoulder, ribs, and chest, the
failure to refer him to an ear, nose, and throat specialist, and the failure to re-set his nose
within 24 hours of the incident. Id., pp. 5-6.
Jones alleges that Spohn has the contractual responsibility to provide appropriate
medical treatment to incarcerated persons, but failed with respect to diagnosis, treatment,
and referral or transporting of Plaintiff to other medical providers. Such conduct is stated
to be deliberate indifference to Jones’ serious medical needs as well as malicious, and is
thus alleged as a violation of the United States Constitution amendment VIII and XIV,
actionable under 42 U.S.C. § 1983. D.E. 1, pp. 9-10. Jones further alleges that Spohn
failed to properly train its personnel and did not have in place or did not enforce proper
policies for handling the medical needs of inmates. D.E. 1, pp. 12-14. Jones claims that
Spohn approved or ratified the conduct of other Defendants in the operation and
condition of the jail. D.E. 1, p. 15.
Without explaining the alleged condition or use of tangible personal property
involved, Jones alleges violations of the Texas Tort Claims Act. D.E. 1, p. 16. With
respect to all of the complaints, Jones suggests that they constitute claims that are
actionable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). D.E. 1, p. 17. Last, Jones alleges
that Spohn was negligent. D.E. 1, pp. 17-18.
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THE PROCEDURAL POSTURE
Spohn seeks judgment pursuant to the following defenses: (1) lack of subject
matter jurisdiction over all tort claims pursuant to governmental immunity and the
limitations of the Texas Tort Claims Act; (2) failure to allege sufficient facts to support
the civil rights and malice causes of action; and (3) any claim under 42 U.S.C. § 1981 or
1981a being frivolous.
Jones responds to the motion, suggesting that Spohn has waived its Motion to
Dismiss and that any treatment of any request for relief as a summary judgment motion
under Fed. R. Civ. P. 56 is premature in that Jones is entitled to sufficient notice and time
for discovery before summary judgment may issue. Jones otherwise concentrates on the
existence of theories of liability without addressing Spohn’s specific arguments and the
factual adequacy of his pleadings.
DISCUSSION
A. Spohn Did Not Waive its Right to Contest Jurisdiction
In its Original Answer, Defendant Spohn asserted a challenge to jurisdiction
pursuant to its denial that it, in fact, violated Plaintiff Jones’ civil rights. D.E. 10, p. 2.
Spohn further raised in nonspecific terms the failure to state a claim upon which relief
could be granted. D.E. 10, p. 14. Spohn clarified its governmental immunity defense as
a jurisdictional challenge in its First Amended Answer. D.E. 38. While Rule 12(b)
requires the defenses of lack of subject matter jurisdiction and failure to state a claim to
be raised by motion prior to pleading, neither is considered waived by failure to do so.
Fed. R. Civ. P. 12(h).
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The failure to state a claim may be raised by a Rule 12(c) motion for judgment on
the pleadings after the close of pleadings. Fed. R. Civ. P. 12(c), (h)(2)(B). Pleadings are
“closed” when a complaint and an answer are filed. Maniaci v. Georgetown University,
510 F.Supp.2d 50, 60 (D.D.C. 2007); Nortel Networks Ltd. v. Kyocera Wireless Corp.,
No. 02–CV–0032–D, 2002 WL 31114077 (N.D. Tex., Sept. 20, 2002).
Therefore,
Defendant Spohn’s challenge to Jones’ claims is not procedurally waived, but is timely.
A lack of subject matter jurisdiction may be raised at any time. Fed. R. Civ. P.
12(h)(3); Harrell & Sumner Contracting Co., Inc. v. Peabody Petersen Co., 546 F.2d
1227, 1229 (5th Cir. 1977). Jones’ suggestion that Defendant Spohn waived the defenses
stated in its motion is rejected.
B. Spohn’s Motion is Not Converted to a Rule 56 Motion
The issues presented in Spohn’s Motion to Dismiss involve questions of law that
can be determined on the pleadings or by review of undisputed facts. Consequently, it is
properly a Rule 12 motion and does not require treatment as a Rule 56 motion. E.g.,
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
C. Jones Fails to State a Claim Upon Which Relief May Be
Granted With Respect to His Tort Claims.
Plaintiff, having filed this action in federal court, bears the burden of proof that
jurisdiction exists. Thomson v. Gaskill, 315 U.S. 442, 446 (1942); Ramming, supra.
With respect to its jurisdictional challenges, Defendant Spohn claims to be a
“governmental unit,” citing Texas Health and Safety Code §§ 285.071 and 285.072. As a
“governmental unit,” it claims to then be entitled to governmental immunity and the
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jurisdictional protections of the Texas Tort Claims Act (TTCA) under Tex. Civ. Prac. &
Rem. Code chapters 101, 102, and 108. D.E. 38, p. 15. If its arguments are correct, the
requirements for suing Spohn for tort damages have not been met and this Court then
lacks jurisdiction. Tex. Gov’t Code § 311.034; United States v. Mitchell, 445 U.S. 535,
538 (1980).
Alternatively, a motion for judgment on the pleadings, which may include a
request to dismiss for failure to state a claim upon which relief can be granted, can be
based not only on a plaintiff’s claims but on matters that support an affirmative defense,
such as governmental immunity.
A Rule 12(b)(6) challenge to the existence of a
cognizable claim can be subsumed within a Rule 12(c) challenge and can be adjudicated
as a matter of law. In re Great Lakes Dredge & Dock Co., 624 F.3d 201, 209–10 (5th Cir.
2010). See D.E. 38 (Spohn’s Answer asserting governmental immunity). Even if some
allegations support a claim, if other allegations negate the claim on its face, then the
pleading does not survive the 12(b)(6)/12(c) review.
A complaint is subject to dismissal for failure to state a claim
if the allegations, taken as true, show the plaintiff is not
entitled to relief. If the allegations, for example, show that
relief is barred by the applicable statute of limitations, the
complaint is subject to dismissal for failure to state a claim;
that does not make the statute of limitations any less an
affirmative defense, see Fed. Rule Civ. Proc. 8(c). Whether a
particular ground for opposing a claim may be the basis for
dismissal for failure to state a claim depends on whether the
allegations in the complaint suffice to establish that ground,
not on the nature of the ground in the abstract.
Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 920-21 (2007).
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1. Defendant Spohn is a “Governmental Unit”
Spohn claims that it is entitled to governmental immunity because it is a hospital
district management contractor with status as a “governmental unit” under the TTCA.
The Texas Health and Safety Code provides:
In this chapter, “hospital district management contractor”
means a nonprofit corporation, partnership, or sole
proprietorship that manages or operates a hospital or
provides services under contract with a hospital district that
was created by general or special law.
§ 285.071 (emphasis added).
A hospital district management contractor in its management
or operation of a hospital under a contract with a hospital
district is considered a governmental unit for purposes of
Chapters 101, 102, and 108, Civil Practice and Remedies
Code, and any employee of the contractor is, while
performing services under the contract for the benefit of the
hospital, an employee of the hospital district for the purposes
of Chapters 101, 102, and 108, Civil Practice and Remedies
Code.
§ 285.072 (emphasis added). Spohn has provided a copy of its contracts, which are
undisputed and evidence its agreement with the Nueces County Hospital District to
provide services to inmates in the Nueces County jail as part of its contractual obligation
to provide services to the indigent of Nueces County in accordance with “CHRISTUS
Spohn Hospital Corpus Christi-Memorial” manuals and policies. D.E. 26-1, pp. 17-18
(emphasis added).
While Spohn has been held in prior cases to be a governmental unit under its
agreements with the Nueces County Hospital District, those cases have involved hospital
settings and have not addressed providing services inside a jail and outside a traditional
hospital. E.g., Rodriguez v. Christus Spohn Health System Corp., 628 F.3d 731 (5th Cir.
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2010). This case highlights the arguably inconsistent language between the two Health
and Safety Code sections.
Section 285.071 unquestionably makes Spohn a “hospital district management
contractor” because it, the contractor, operates a hospital or provides services under
contract with a hospital district. However, § 285.072, which confers “governmental unit”
status and thus governmental immunity for TTCA purposes, refers to a contractor that
operates a hospital and to that contractor’s employees who provide services. In this case,
the claim is brought against the contractor, not an employee. And the claim is for
providing services to the jail, not operating a hospital. The question is whether § 285.072
intentionally left a gap in governmental unit status for contractors who are sued for
providing services outside of a hospital setting.
Spohn argues that it is reasonable to construe the sections harmoniously to confer
governmental immunity on a contractor who provides services through its employees at
the jail rather than at a hospital. Spohn also argues that, once Spohn was deemed a
contractor under § 285.071, the § 285.072 clause “in its management or operation of a
hospital” was superfluous and could not eliminate the contractor status achieved in
§ 285.071. In other words, Spohn places decisive import on the contractor status and not
on any descriptive clause referring to that contractor’s activities.
Jones responds with the suggestion that the Texas legislature intentionally created
an Achille’s heal because it implicitly recognized that it could not eliminate a person’s
federal constitutional rights. Jones then lapses into a discussion of qualified immunity,
which is not at issue here. Jones’ argument does not make sense—that the state statute
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regarding a waiver of governmental immunity for state tort claims was drafted
specifically mindful of federal claims that could not be barred. That argument is further
wholly lacking in citation of authorities. The Court rejects Jones’ reasoning.
The Court is mindful of the principles of statutory construction generally, and the
Texas Code Construction Act, specifically. Tex. Gov’t Code § 311.001 et seq. For
instance, words and phrases are to be read in context. § 311.011(a). It is presumed that a
just and reasonable result is intended and the public interest is favored over any private
interest. § 311.021. The Court may consider the object sought to be attained and the
consequences of a particular construction. § 311.023.
The Court finds that there is no reasonable basis for distinguishing the liability of
Spohn based on whether services were provided in a hospital or in a jail. All such
services are authorized by contract with the Nueces County Hospital District and all such
services are delivered through various employees. To confer governmental immunity on
Spohn employees in any setting (hospital or jail), but confer that immunity on Spohn only
in a hospital setting would be an inconsistent result based on an out-of-context reading of
the statute, ignoring the public interests involved. Spohn’s contract with the Nueces
County Hospital District is intended to provide indigent care to all those in Nueces
County, including those who are incarcerated there. The Court finds that Spohn is
entitled to “governmental unit” status and to the protections of the TTCA in connection
with Jones’ claims.
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2. Jones Has Not Stated a Claim Within the TTCA.
To prevail, Jones must show that his claims fall within the waiver of immunity
provided by the TTCA. Spohn claims that Jones’ tort claims fail because: (1) his health
care liability claims, including negligence, fall under Tex. Civ. Prac. & Rem. Code
chapter 74 and do not come with their own waiver of immunity (D.E. 26, pp. 8-10); and
(2) the claims are not based on a condition or use of tangible personal or real property as
required by TTCA § 101.021(b) (D.E. 26, pp. 10-13).
Jones does not address these arguments directly.
Instead, he speculates that,
through discovery, he might uncover the involvement of a condition or use of tangible
personal or real property.
This is his argument even though his pleadings assert
nonfeasance—a complete failure to diagnose and provide medical care.
These are
circumstances that do not reasonably implicate the condition or use of real or personal
property, fully distinguishable from any misfeasance involving property.
Additionally, to the extent that the claims of excessive force or deliberate
indifference to serious medical needs state intentional torts, they are specifically excluded
from the TTCA waiver of immunity. Tex. Civ. Prac. & Rem. Code § 101.057(2). See
generally, Board of County Com'rs v. Brown, 520 U.S. 397, 411 117 S.Ct. 1382, 137
L.Ed.2d 626 (1997) (describing the high level of knowing conduct involved in a
“deliberate indifference” claim); City of Waco v. Williams, 209 S.W.3d 216, 223-24 (Tex.
App.—Waco 2006, pet. denied) (excessive force is an intentional tort).
This Court lacks subject matter jurisdiction over Jones’ tort claims asserted against
Spohn, a governmental unit protected by governmental immunity from claims that do not
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fall within the TTCA waiver. Alternatively, Spohn has demonstrated that Jones has not
stated tort claims upon which relief may be granted pursuant to the affirmative defense of
governmental immunity. The Court GRANTS Spohn’s Motion to Dismiss for lack of
subject matter jurisdiction and Motion for Judgment on the Pleadings for failure to state a
claim upon which relief can be granted as to Jones’ tort claims, including his claim for
medical negligence.
D. Jones Fails to State Federal Civil Rights Claims Upon Which
Relief Can Be Granted.
The test of pleadings under Rule 12(b)(6) and 12(c) is devised to balance a party’s
right to redress against the interests of all parties and the court in minimizing expenditure
of time, money, and resources. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955, 1966 (2007); Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 1995) (decision
under Rule 12(c) is handled under same standards as Rule 12(b)(6)). The Twombly court
expressly “retired” the old test stated in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.
99 (1957) that a complaint would not be dismissed “unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle him to
relief.” Twombly, 127 S.Ct. at 1969 (quoting Conley, supra). The revised standard for
determining whether a complaint states a cognizable claim has been outlined by the
United States Supreme Court in Twombly, supra and Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937 (2009).
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Furthermore, “Pleadings must
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be construed so as to do justice.” Rule 8(e). The requirement that the pleader “show”
that he is entitled to relief has been construed to require “more than labels and
conclusions[;] a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 127 S.Ct. at 1964-65 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct.
2932 (1986)).
Factual allegations are required, sufficient to raise the entitlement to relief above
the level of mere speculation. Twombly, 127 S.Ct. at 1965. Those factual allegations
must then be taken as true, even if doubtful. Id. In other words, the pleader must make
allegations that take the claim from “conclusory” to “factual” and beyond “possible” to
“plausible.” Id., 127 S.Ct. at 1966. The Twombly court stated, “[W]e do not require
heightened fact pleading of specifics, but only enough facts to state a claim to relief that
is plausible on its face.” 127 S.Ct. at 1974.
The Court, elaborating on Twombly, stated, “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. Iqbal, 129 S.Ct. at 1949. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Id. In dismissing the claim in Iqbal, the Court stated, “It is the conclusory nature of
respondent's allegations, rather than their extravagantly fanciful nature, that disentitles
them to the presumption of truth.” 129 S.Ct. at 1951.
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a. Jones Does Not Sufficiently Allege a Civil Rights
Action Against Spohn for Excessive Force,
Deliberate Indifference to Serious Medical Needs,
or Retaliation Against Free Speech.
Pursuant to Fed. R. Civ. P. 12(c) and 12(h)(2) Spohn seeks dismissal of Jones’
civil rights claims against it because his pleadings are factually inadequate under
Twombly/Iqbal.
Instead of addressing the Twombly/Iqbal standard or his factual
allegations, Jones briefs the law on subject matter jurisdiction over civil rights claims and
how Spohn is theoretically subject to such claims. He then states conclusively that he has
adequately stated all of the facts that he knows and asks for discovery to determine
whether there are additional facts that would support his claims. D.E. 42, pp. 12-13.
With respect to excessive force claims, there are no allegations that Spohn or any
of its employees participated in the beating that Ortega allegedly inflicted upon Jones.
While there are general allegations that fail to distinguish among Defendants and
allegations that each authorized or ratified the acts of the others, there are no specific
factual allegations to support those generalizations, either.
With respect to medical issues, Jones pleads that his injuries were “open and
obvious” to all, including “jail medical personnel.” He then complains of a lack of
treatment without ever pleading whether he was taken to any specific infirmary or seen
by any medical personnel.
He claims that he requested and was refused medical
treatment for his injuries and that he filed grievances complaining that he was being
denied treatment. But he does not plead whether it was jailors or medical personnel who
were receiving and refusing those requests.
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Likewise, he pleads that “the personnel who staffed the Nueces County Jail
infirmary” failed to provide medical treatment or medical referrals. He does not allege
that those were Spohn employees or that they saw him or knew of his condition. While
the pleading is broad enough to include that possibility, it is equally possible under such
wide open allegations that the failure to act was based on a failure to be presented with
the patient or his injuries because jailors simply left Jones in his cell. Possibilities are not
enough under Twombly/Iqbal.
Jones pleads conclusively that “Defendants exhibited deliberate indifference to
Plaintiff’s serious medical needs” and “knew or should have known of Plaintiff’s medical
needs.” This does not adequately allege a deliberate indifference cause of action. In fact,
it does not even apply the correct standard of conduct, which involves actual awareness
of the danger and deliberate indifference to the risk. Jones further alleges that Spohn did
not have in place adequate policies for such things as training personnel. However, there
is no allegation of proximate cause to connect any such policy-based liability with the
subject incident.
With respect to retaliation against his exercise of the First Amendment freedom of
speech, his allegations are equally generic, conclusory, and unrelated to any conduct
specifically involving Spohn or its personnel. He does not state what speech was uttered,
why it is protected speech, and whether anything did, in fact, occur in retaliation. Rather,
it is speculation that, if unspecified Defendants claim that their conduct was provoked, it
might have been provoked by protected speech. This is not enough to state a claim of
retaliation.
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A claim of deliberate indifference requires pleadings that provide some means to
identify the person at fault, that the person was actually aware of the excessive health
risk, and that he or she deliberately disregarded the danger, resulting in the plaintiff’s
injury or damages. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970 (1994). The
allegations are factually deficient and do not rise above a mere possibility that Jones’
constitutional rights were infringed.
With such a wholesale failure to allege a viable cause of action, discovery is not
warranted. The case proceeds to discovery only if the complaint contains enough facts to
give rise to a reasonable expectation that discovery will reveal evidence of the elements
of the claim. Lormand v. US Unwired, Inc., 565 F.3d 228, 258 (5th Cir. 2009). As Jones
has expressly stated that he has no additional facts to add, there is no reason to grant
leave to amend. Fed. R. Civ. P. 15; E.g., Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct.
227, 230 (1962); Avatar Exploration, Inc. v. Chevron, U.S.A., Inc., 933 F.2d 314, 321 (5th
Cir. 1991). Dismissal is appropriate.
The Court GRANTS Spohn’s motion for judgment on the pleadings for failure to
state a claim upon which relief can be granted as to the civil rights claims of excessive
force, deliberate indifference to serious medical needs, and retaliation for the exercise of
the freedom of speech.
b. Jones Fails to State a Bivens Claim Against Spohn
According to the Fifth Circuit, a Bivens action is analogous and substantively
identical to a § 1983 action.
The only difference is that § 1983 claims apply to
constitutional violations by state actors and Bivens claims apply to actions by federal
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officials. Izen v. Catalina, 398 F.3d 363, 367 n. 3 (5th Cir. 2005). See also, Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29
L.Ed.2d 619 (1971).
As set out above, the civil rights claims fail under the Twombly/Iqbal standard.
Furthermore, nothing in Jones’ Complaint states how Spohn can be treated as a federal
official in connection with the subject events. Thus, Bivens simply does not apply. The
Court GRANTS Spohn’s motion for judgment on the pleadings for failure to state a claim
upon which relief can be granted with respect to the Bivens claims.
E. Jones Does Not State a Claim for Malicious Conduct
Under Fed. R. Civ. P. 9(b), malice may be alleged generally. That rule has been
held to mean that no heightened pleading standards apply. However, the ordinary Rule
8(a) fact pleading requirement to state a plausible claim still applies to allegations of
malice. Iqbal, supra, 129 S.Ct. at 1954. See e.g., Mayfield v. National Ass'n for Stock
Car Auto Racing, Inc., 674 F.3d 369, 377-78 (4th Cir. 2012); Del Marcelle v. Brown
County Corp., 680 F.3d 887, 916 (7th Cir. 2012).
Jones’ Response (D.E. 42) is silent on this issue. For the same reason that Jones’
Complaint has been held to fail the Twombly/Iqbal standard for deliberate indifference, it
fails to state sufficient facts to support a claim of malice. See Tex. Civ. Prac. & Rem.
Code § 41.001(7). The Court GRANTS Spohn’s motion for judgment on the pleadings
for failure to state a claim upon which relief can be granted with respect to Jones’ claims
against Spohn for malice.
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F. Jones Does Not State a § 1981/1981a Claim.
Spohn challenges Jones’ claims under 42 U.S.C. §§ 1981 and 1981a as frivolous.
Jones has already judicially admitted that those claims were stated in error. D.E. 20, p.
16. Furthermore, Jones does not address this issue in his Response. D.E. 42. The Court
GRANTS Spohn’s motion for judgment on the pleadings for failure to state a claim upon
which relief can be granted with respect to claims asserted under 42 U.S.C. §§ 1981 and
1981a.
CONCLUSION
For the reasons set out above, the Court GRANTS Defendant Christus Spohn
Health Systems Corporation’s Motion to Dismiss for Lack of Subject Matter Jurisdiction
Pursuant to Rule 12(b)(1) and Motion for Judgment on the Pleadings Pursuant to Rule
12(c) and 12(h)(2) for failure to state a claim upon which relief can be granted. D.E. 26.
The Court does not reach the alternative motion for summary judgment. Jones’ request
for discovery is DENIED. The Court DISMISSES WITH PREJUDICE all claims made
by Plaintiff Trey Jones against Defendant Christus Spohn Health Systems Corporations.
ORDERED this 12th day of October, 2012.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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