Perez v. Texas A&M University at Corpus Christi et al

Filing 24

ORDER granting 18 Motion to Dismiss.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
MARIA ELENA PEREZ,
Plaintiff,
VS.
TEXAS A&M UNIVERSITY AT
CORPUS CHRISTI, et al,
Defendants.

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§ CIVIL ACTION NO. 2:13-CV-225
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§
§
§
§
ORDER

Before the Court is Defendants’ Motion to Dismiss Plaintiff’s Amended
Complaint (D.E. 18). Plaintiff, a former nursing student at Texas A&M University at
Corpus Christi (the University), brings this action against the University and her
professors, alleging that her dismissal from the program violated her constitutional,
statutory, and common law rights. Defendants challenge this Court’s jurisdiction over
certain claims. They further argue that Plaintiff has not stated any claim upon which
relief may be granted. For the reasons set out below, the Motion is GRANTED.
FACTUAL ALLEGATIONS
At issue are the claims in Plaintiff, Maria Elena Perez’s (Perez’s) “Amended
Original Complaint and Demand for Jury Trial” (D.E. 15).1 Perez began her education in
the nursing program at Texas A&M International University in Laredo, Texas, in January

1

Perez references her Affidavit (D.E. 2) filed on July 23, 2013. D.E. 21, p. 1. For the most part, the statements in
the Affidavit are identical to her allegations in the Complaint. The Affidavit contains additional detail regarding the
defamation claim. However, because of the Court’s determination of the immunity questions, the additional
representations are irrelevant. See the discussion of Counts Seven and Eight, infra.

1 / 26

of 2009, establishing what she describes as “an excellent record of academic
achievement.”
Perez transferred to the University in Corpus Christi for the Spring 2011 semester
to continue working toward a Baccalaureate of Science in Nursing. In the Fall semester,
she completed her course work for her “Med Surge II” class, which includes a clinical
rotation. While she had no problem with the clinical portion of the course, her exam
grades fell short of the 75 average required to pass the course. Her professor, Julie
Schwein Fomenko (Fomenko), refused to make an exception to department policy and
Perez failed the class. Perez claims that this refusal is discriminatory because Fomenko
was known to make exceptions to this exam grade requirement for other students.
Perez repeated the Med Surge II class in the Spring 2012 semester. This time,
however, she failed the clinical portion of the class as a result of three warnings, which
Perez alleges were issued in bad faith, arbitrarily, and capriciously. First, she received a
warning because she failed to complete and upload a Hospital Orientation, which was due
January 27, 2012. Perez was warned that she had to complete the relevant modules by
February 22, 2012. Perez did complete the modules by the new deadline, but alleges that
the warning was improper because the syllabus did not require the original January
deadline and because the elementary school setting for her clinical rotation did not
require prior completion of the Hospital Orientation.
Second, Perez received a warning from Rachel S. Miller Roberge (Roberge),
Clinical Instructor of Nursing for being late to a clinical and for failing to properly
resubmit a care plan. Perez had originally submitted her care plan using her Fall 2011
2 / 26

Med Surge II form rather than the Spring 2012 form, which contained additional
categories. Perez claims that Roberge told her that, if she simply added the lab sheet and
the reference page, the submission would be sufficient. Roberge found the submission of
the two items insufficient because Perez had not corrected the entire care plan and denied
telling Perez that simply adding the two categories would be sufficient. Perez eventually
submitted additional care plans on which she received passing grades.
In connection with the second warning, Roberge also complained that Perez was
late to the clinical on April 12, 2012. Perez does not deny being fifty-five minutes late,
but explains that she had been preoccupied with important personal matters and had not
checked the schedule. She alleges that she made up the time by not taking a lunch break.
She further complains that another student who was about thirty minutes late on the same
day did not receive a warning.
The third warning again came from Roberge with respect to Perez’s clinical
performance. That warning complained that Perez was not certain about a patient’s blood
pressure condition, she did not give a patient a full dosage of an injection, and she did not
know what another patient’s medication was for and did not know the reason for that
patient’s hospitalization. Perez does not deny these accusations, but seeks to excuse her
performance because she had not been given sufficient time, Roberge made her nervous,
and she made an “honest mistake” as a result of being anxious, knowing that a third
warning would end her participation in the nursing program.
Plaintiff was expelled from the nursing program one class shy of graduation. She
filed an appeal with the nursing department pursuant to the Nursing Student’s Handbook,
3 / 26

but was advised that such department appeals were no longer available. She sought
reinstatement to the program, which was denied. She then appealed to the University.
This resulted in three hearings. The first hearing was conducted without Perez being
present. Perez participated in the second hearing and “had an opportunity to plead her
case.” Perez was excluded from the third hearing at which Fomenko appeared with
counsel. Having access to the audio tape of that hearing, Perez alleges that Fomenko
made defamatory statements about her.
The University affirmed the dismissal of Perez from the nursing program. Perez
argues that this action was arbitrary, capricious, and discriminatory against her because
she is Hispanic and of Mexican descent. She claims that students with similar academic
performance were treated more favorably because of race. Among the allegations are
interventions by the University’s administrators to ensure that Caucasian and nonHispanic students receive passing grades and the application of different standards
regarding academic performance and dismissal determinations.
Plaintiff has included as a Defendant Mary Jane-Dean Hamilton (Hamilton),
Associate Dean of the Nursing Department. While Hamilton is named in the liability
counts in connection with official policy or official acts of the University, nothing in the
Complaint describes the specific actionable conduct attributed to Hamilton.
DISCUSSION
Perez alleges her causes of action in nine counts, including violation of procedural
and substantive due process rights, deprivation of equal protection and equal rights,
breach of contract, defamation, intentional infliction of emotional distress, and violation
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of the Texas Civil Rights Act. Defendants assert that the Texas Tort Claims Act and
Eleventh Amendment immunity require dismissal of Perez’s claims. They also assert
that 42 U.S.C. § 1983 does not apply to them and that qualified immunity shields the
individual Defendants from liability. Furthermore, they suggest that the factual
allegations do not state deprivations of due process or equal protection, that the Texas
state constitution does not provide a remedy within this Court’s jurisdiction, and that the
Texas Civil Rights Act allegations are insufficient to determine a claim or to establish
jurisdiction over that claim. The arguments will be discussed in the order in which
Plaintiff pled her causes of action.
A. 42 U.S.C. § 1983: Count One - Fifth Amendment Due
Process; Count Two - Fourteenth Amendment Due Process;
and Count Three - Fourteenth Amendment Equal Protection
In her first three counts, Perez claims that she was deprived of her property and
liberty interests as a result of arbitrary, intentional, discriminatory, and defamatory acts
taken in reckless disregard of her rights so as to shock the conscience. She claims that
her right to seek a nursing school education is a fundamental right that constitutes a
property interest and her expectation of an unblemished reputation and future career in
nursing constitutes a protected liberty interest. Perez states that her dismissal from the
University’s nursing program was arbitrary, capricious, motivated by bad faith, and based
on false accusations that prejudiced the review committee. She further claims that she
was intentionally singled out and treated less favorably than other similarly situated
persons without any rational basis for the difference in treatment.

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1. University and Officials are Not Subject to Suit for Damages.
First, Defendants correctly assert that the University and the individual Defendants
acting in their official capacity are not “persons” subject to liability under 42 U.S.C. §
1983. D.E. 18, pp. 8-9. Neither a state nor its officials and state universities are
“persons” against whom a plaintiff may bring a private right of action for money
damages. Will v. Michigan State Dep't of Police, 491 U.S. 58, 71 & n.10, 109 S.Ct. 2304,
105 L.Ed.2d 45 (1989); see also Lapides v. Board of Regents of the University System of
Georgia, 535 U.S. 613, 617, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). The Fifth Circuit
has also specifically recognized that state universities as arms of the state are not
“persons” under § 1983. Stotter v. University of Texas at San Antonio, 508 F.3d 812, 821
(5th Cir. 2007) (citing Laxey v. Louisiana Bd. of Trustees, 22 F.3d 621, 623 n.2 (5th Cir.
1994) and Texas v. Walker, 142 F.3d 813, 820 n.10 (5th Cir. 1998)). Texas A&M
University at Corpus Christi is such a state university. Tex. Educ. Code §§ 61.003(3),
86.02, 87.401.
Perez does not provide any counter-argument to this basis for dismissal of the
claim. D.E. 21. Pursuant to Local Rule 7.4, the failure to brief an argument in response
to a basis for relief expressed in a motion constitutes a representation of “no objection” to
the relief. Thus Defendants have shown that they are entitled to dismissal of the § 1983
claims for money damages against the University and the individual Defendants in their
official capacity.

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2. Individual Defendants Are Entitled to Qualified Immunity.
a. Procedurally, the Qualified Immunity Defense
is a Proper Basis for a Rule 12(b) Motion.
Defendants assert that the individual Defendants acting in their individual capacity
are entitled to qualified immunity because their actions were discretionary and their
conduct did not violate clearly established statutory or constitutional rights of which a
reasonable person would have known. D.E. 18, pp. 9-10. Perez responds that qualified
immunity is not a proper basis for a Rule 12 motion. D.E. 21, p. 5. For this proposition,
Perez relies on Safeguard Mutual Ins. Co. v. Miller, 472 F.2d 732 (3rd Cir. 1973) and
Jacobs v. City of Chicago, 215 F.3d 758 (7th Cir. 2000). Neither of Perez’s authorities
support her position.
The Miller case involved the question whether governmental or quasi-judicial
immunity applied to executive branch officers: Pennsylvania’s Chief Counsel of the
Insurance Commissioner, Director of Licensing of the Insurance Department, two Deputy
Insurance Commissioners, an Insurance Examiner, and a Deputy Attorney General. The
court held that it did not know enough about the defendants’ duties and the authority
conferred upon them to know whether they were entitled to such immunity. Because of
that unknown variable, the court needed the parties to develop a factual record. At the
same time, however, the Miller court acknowledged that, because it was aware of the
function of judges and prosecutors, it was able to adjudicate their claims to governmental
and judicial immunity on a Rule 12 motion without a factual record. Miller, supra at
733.

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In Jacobs, the trial court had granted a Rule 12(b) motion after considering
evidence tendered by both sides of the dispute without converting the motion to a
summary judgment motion. The court found that maintaining the procedure as one under
Rule 12 rather than Rule 56 was error. The court then proceeded to consider whether the
plaintiffs’ pleading alleged a sufficient constitutional violation to overcome the qualified
immunity defense. Finding the allegations sufficient in this illegal search and seizure
case, the court remanded for further proceedings. Nothing in the Jacobs opinion prevents
the assertion of qualified immunity in a Rule 12(b) motion. If the pleadings, accepted as
true, fail to defeat the defense, the motion may be granted. If the plaintiff offers evidence
separate from the pleading, the court may treat it as a Rule 56 motion or hold that there is
a material issue of fact to be decided by the jury.
As Defendants point out, qualified immunity is routinely advanced in the form of a
Rule 12(b) motion and can be granted without conversion to Rule 56 if the pleading is
insufficient to defeat the defense. E.g., Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir.
2013); Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012) (reversing the district court
for failing to rule on the qualified immunity defense brought in a Rule 12(b) motion). In
fact, as the Supreme Court has emphatically directed, “[q]ualified immunity is an
immunity from suit rather than a mere defense to liability.” Pearson v. Callahan, 555
U.S. 223, 237, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009) (internal quotation marks
omitted). For that reason, early disposition of the defense prior to discovery is required
when no fact issues prevent it. The Court finds that the qualified immunity defense has
been properly raised in the Defendants’ Rule 12(b) motion.
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b. Substantively, Qualified Immunity
Protects the Individual Defendants.
Perez has alleged, and Defendants do not deny, that the individual Defendants—
sued in their individual capacity—are “state actors” for § 1983 purposes.

Yet the

Supreme Court has established that “government officials performing discretionary
functions generally are shielded from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 73 L.Ed.2d 396 (1982).
When a defendant invokes qualified immunity, “[i]t is up to the plaintiff to show
that the defense does not apply.” McClendon v. City of Columbia, 305 F.3d 314, 323 (5th
Cir. 2002) (en banc). At the Rule 12(b) stage, “it is the defendant's conduct as alleged in
the complaint that is scrutinized for ‘objective legal reasonableness.’”

Behrens v.

Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (emphasis in
original). Therefore, Perez will prevail against a qualified immunity defense only if the
Complaint (1) states the violation of a clearly established constitutional right (2) of which
a reasonable person would have known. Plaintiff has alleged that Defendants violated
three constitutional rights: procedural due process, substantive due process, and equal
protection of the laws or racial discrimination. Defendants challenge all three.

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1. Defendants Did Not Violate Rights to
Procedural Due Process.
a. Academic Dismissal
The “guarantee of fair procedure” requires that when the government invades a
constitutionally protected interest in “life, liberty, or property,” the government must
provide due process of law. Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108
L.Ed.2d 100 (1990). Perez alleges that she was deprived of her right to (a) continue her
nursing school education and (b) enjoy an unblemished reputation favorable to future
employment prospects. D.E. 15, p. 13. The first question is whether these rights are
constitutionally protected. See generally, Bowlby v. City of Aberdeen, 681 F.3d 215, 220
(5th Cir. 2012).

Defendants have not challenged that Perez has a constitutionally

protected right to pursue her nursing education.
With respect to that right, however, the procedural due process pleading fails on
the second question which is whether the procedure afforded was constitutionally
sufficient under the circumstances. Id. The Supreme Court has often stated that due
process is a flexible concept that varies with the particular situation. Zinermon, 494 U.S.
at 127.

Several factors are weighed to determine what procedural protections the

Constitution requires for different cases.
First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards; and
finally, the Government's interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.
10 / 26

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).
It is well-settled that dismissals for academic cause do not necessitate a hearing
before the school's decisionmaking body.

E.g., Board of Curators of University of

Missouri v. Horowitz, 435 U.S. 78, 87-88, 98 S.Ct. 948, 954 (1978) (approving
Mahavongsanan v. Hall, 529 F.2d 448 (5th Cir. 1976) and 60 years of unanimous
holdings in state and federal courts to that effect prior to the Horowitz decision). Perez
claims that her dismissal was not for academic cause but was a disciplinary matter. D.E.
21, pp. 5-6.
A warning for being tardy could be characterized as a disciplinary matter.
However, the complaints in the third warning are matters of an academic nature: a
clinical nursing student’s failure to ascertain a patient’s blood pressure status, failure to
provide the proper dose of an injection, and failure to know the purpose of another
patient’s medication and hospitalization. Perez concedes the substantial truth of these
complaints in her pleading.
The Court does not supervise or review colleges and universities in the uniform
application of their academic standards. Horowitz, 435 U.S. at 87 n.4 (citing Wright v.
Texas Southern University, 392 F.2d 728, 729 (5th Cir. 1968)). The Supreme Court
wrote:
Academic evaluations of a student, in contrast to disciplinary
determinations, bear little resemblance to the judicial and
administrative fact-finding proceedings to which we have
traditionally attached a full-hearing requirement. . . . The
decision to dismiss respondent . . . rested on the academic
judgment of school officials that she did not have the
necessary clinical ability to perform adequately as a medical
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doctor and was making insufficient progress toward that goal.
Such a judgment is by its nature more subjective and
evaluative than the typical factual questions presented in the
average disciplinary decision. Like the decision of an
individual professor as to the proper grade for a student in his
course, the determination whether to dismiss a student for
academic reasons requires an expert evaluation of cumulative
information and is not readily adapted to the procedural tools
of judicial or administrative decisionmaking.
Under such circumstances, we decline to ignore the historic
judgment of educators and thereby formalize the academic
dismissal process by requiring a hearing. The educational
process is not by nature adversary; instead it centers around a
continuing relationship between faculty and students, “one in
which the teacher must occupy many roles—educator,
adviser, friend, and, at times, parent-substitute.” . . . This is
especially true as one advances through the varying regimes
of the educational system, and the instruction becomes both
more individualized and more specialized. In Goss, this Court
concluded that the value of some form of hearing in a
disciplinary context outweighs any resulting harm to the
academic environment. Influencing this conclusion was
clearly the belief that disciplinary proceedings, in which the
teacher must decide whether to punish a student for disruptive
or insubordinate behavior, may automatically bring an
adversary flavor to the normal student-teacher relationship.
The same conclusion does not follow in the academic context.
We decline to further enlarge the judicial presence in the
academic community and thereby risk deterioration of many
beneficial aspects of the faculty-student relationship. We
recognize, as did the Massachusetts Supreme Judicial Court
over 60 years ago, that a hearing may be “useless or harmful
in finding out the truth as to scholarship.”
Horowitz, 435 U.S. at 89-90.
Therefore, the argument that Defendants did not engage in a sufficiently
deliberative process prior to dismissal is not something the Court is to decide. Procedural
due process under the United States Constitution does not require that the student be
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afforded a hearing prior to an academic dismissal. Accordingly, any complaint regarding
the sufficiency of the hearings that did occur is beyond this Court’s purview.
b. Reputation and Employment
Perez also contends that she was denied due process with respect to her alleged
right to an unblemished reputation favorable to future employment prospects.

She

alleges that the process involved “false charges and accusations against [her] which
stigmatized her and severely damaged her opportunities for future employment.” D.E.
15, p. 13. She claims that this was defamatory, punitive, intentional, and outrageous.
The only factual allegation in her pleading that addresses this matter is, “After listening
to the tape recording of the third hearing, [Perez] found out that Defendant Fomenko
made many defamatory false statements about [Perez] to the University’s panel.” D.E.
15, p. 10.
To survive a Rule 12(b) motion and a qualified immunity defense, factual
allegations are required, sufficient to raise the entitlement to relief above the level of
mere speculation. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965
(2007). Those factual allegations must then be taken as true, even if doubtful. Id. 127
S.Ct. at 1966. In other words, the pleader must make allegations that take the claim from
“conclusory” to “factual” and beyond “possible” to “plausible.” Id. 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
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defendant has acted unlawfully. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949
(2009). “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.
Perez has not supplied the parties or this Court with a sufficient factual basis on
which this Court may conclude that there is more than a sheer possibility that Defendants
have acted unlawfully.

To the contrary, Perez admits that the factual matters

communicated in her warnings were true, even though she argues that she had an excuse
and questions the professor’s basis for the missed deadline. If the defamation complained
of goes to other matters—such as publication of damaging information beyond the
necessary review committee—Perez has failed to state what those matters are, which
means that the pleading is fatally conclusory under Twombly/Iqbal standards.
For this reason, Perez’s procedural due process claim regarding being defamed
and denied a name-clearing hearing does not state a claim that overcomes the qualified
immunity defense and must therefore be dismissed. Without a predicate factual basis for
the defamation claim, the Court cannot determine whether the alleged defamation was
communicated outside the bounds of the academic dismissal proceeding.2 Thus the Court

2

In Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), abrogated on other grounds,
Cleveland Bd. of Educ. v. Loudermill, 105 S.Ct. 1487, 1492, 470 U.S. 532, 541, 84 L.Ed.2d 494, 494 (1985), the
Supreme Court upheld the dismissal of a policeman without a hearing, rejecting the theory that the mere fact of
dismissal, absent some publicizing of the reasons for the action, could amount to a stigma infringing one's liberty.

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need not reach the question whether Perez has a constitutional right to a name-clearing
hearing.
The Court GRANTS the Motion to Dismiss as to Perez’s procedural due process
claims brought pursuant to 42 U.S.C. § 1983.

The Complaint does not assert a

constitutional claim either entitling Perez to relief or that can survive the Defendants’
assertion of the qualified immunity defense.
2. Defendants Did Not Violate Right to
Substantive Due Process.
With respect to substantive due process, Perez must show that Defendants’ actions
were arbitrary and wrongful, regardless of the fairness of the procedures used to
implement them. Marco Outdoor Advertising, Inc. v. Regional Transit Authority, 489
F.3d 669, 673 n.3 (5th Cir. 2007) (citing Zinermon, supra).

To be actionable, the

wrongdoing must be so extreme as to shock the conscience. County of Sacramento v.
Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 1717 (1998).3 Such conduct—at the
constitutional level—has been held to require, at a minimum, “deliberate indifference.”
McClendon, supra at 326. That is, the allegations must show that the defendant acted in
conscious disregard of a known and excessive risk to the plaintiff’s health or safety.
Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970 (1994); McClendon, supra at 326
n.8.
3

Some subsequent history suggests that a fundamental liberty interest test, rather than “conscience-shocking,” is
the test to be applied in determining a violation of substantive due process. See Chavez v. Martinez, 538 U.S. 760,
123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (multiple opinions with no majority expressly addressing which test to
apply); Conn v. Gabbert, 526 U.S. 286, 291–92, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999) (analyzing substantive due
process claim against prosecutors' conduct without reference to “shocks the conscience” test). However, the Fifth
Circuit continues to apply the Sacramento conscience-shocking test. E.g., Whitley v. Hanna, 726 F.3d 631, 639 n.2
(5th Cir. 2013).

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Perez, without detailed explanation, alleges that the actions that Defendants took
were arbitrary and unjustifiable, rising to the level of being conscience-shocking. D.E.
15, pp. 11-12. Nothing in the allegations or the briefing on this motion directs this Court
to facts that, if proven, would shock the conscience or demonstrate deliberate
indifference. This claim fails under the Twombly/Iqbal test. Furthermore, taking the
allegations as true, Defendants had academic requirements for passing the Med Surge II
course and they determined that Perez had not fulfilled those requirements. Even if Perez
were able to persuade a jury that some of the warnings were unfair, her admission that the
factual assertions in the third warning were substantially true is enough to find as a matter
of law that her academic dismissal is not so arbitrary as to be conscience-shocking.
The Court GRANTS the Motion to Dismiss with respect to the substantive due
process claims brought pursuant to 42 U.S.C. § 1983. The Complaint does not assert a
constitutional claim either entitling Perez to relief or that can survive the Defendants’
assertion of the qualified immunity defense.
3. Defendants Did Not Violate Right to
Equal Protection.
To state a claim for equal protection on a “class of one” basis, Perez must show
that she was treated differently from others similarly situated and that there was no
rational basis for the disparate treatment. Stotter v. University of Texas at San Antonio,
508 F.3d 812, 824 (5th Cir. 2007). A racial discrimination claim requires a demonstration
that a state actor intentionally discriminated on the basis of race. Coleman v. Houston
Independent School District, 113 F.3d 528 (5th Cir. 1997).
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In Count Three, Perez pleads, “Defendants have intentionally singled out and
treated Plaintiff less favorably than other similarly situated persons, without any rational
basis for that treatment. In so doing, Defendants have denied Plaintiff fair and equal
treatment under the law in violation of the Equal Protection Clause of the Fourteenth
Amendment to United States Constitution.” D.E. 15, p. 15.
Within the fact portion of her pleading, Perez asserts:
• “[S]tudents told her that Defendant Fomenko had passed
students with a test average like hers or lower, but that said
students were always at her office, being nice to her during
the semester.” D.E. 15.p. 4.
• “[A]nother student was about thirty minutes late on the same
day; however, said student did not receive a warning.” D.E.
15, p. 7.
• “Defendants have treated similarly-situated students at
Defendant Texas A&M University at Corpus Christi whose
academic performance was equivalent to or less satisfactory
than Plaintiff’s academic performance more favorably than
Plaintiff because of race. . . . More specifically, Defendant
Texas A&M University at Corpus Christi administrators have
favored Caucasian, non-Hispanic Mexican minority students
by intervening to ensure that they receive passing grades in
their courses, and Defendants have applied a different
standard with respect to assessing academic performance
and/or in making academic dismissal determinations.” D.E.
15, pp. 10-11.
Perez does not identify a single other similarly situated student who was treated more
favorably, much less state their race. The allegations are conclusory and speculative.
They are insufficient to survive the Motion to Dismiss under Rule 12(b) as applied in
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Twombly/Iqbal. Perez did not address this claim in her Response (D.E. 21). Pursuant to
Local Rule 7.4, the Motion is further considered unopposed on this issue. The Court
GRANTS the Motion to Dismiss on the equal protection and race discrimination claims.
Counts One, Two, and Three are DISMISSED.
B. Texas Constitution: Count Four - Due Course of
Law and Count Five - Equal Rights
Under Counts Four and Five, Perez makes the same claims as were asserted in her
first three counts, but makes them pursuant to the parallel provisions of the Texas
Constitution. The claims are for “due course of law” and “fair and equal treatment under
the law.” D.E. 15, pp. 17-18. Defendants assert: (1) that the Texas Constitution does not
support a claim for money damages; (2) that when claims for injunctive relief are made
against state action, sovereign immunity requires that the claim be made exclusively
against individual state actors in their official capacity such that the University and
individual Defendants in their individual capacity are not proper defendants; and (3) that
the Eleventh Amendment of the United States Constitution bars any federal adjudication
of injunctive relief against the individual Defendants in their official capacity.
With respect to money damages, the Texas Supreme Court has clearly held that
there is no private right of action for a “constitutional tort.”

City of Beaumont v.

Bouillion, 896 S.W.2d 143, 147-48 (Tex. 1995) (addressing free speech and assembly
rights); Kaufman County v. Combs, 393 S.W.3d 336, 345 (Tex. App.—Dallas 2012, pet.
denied) (applying Bouillion to equal protection and due process claims). There is no state
statutory equivalent to 42 U.S.C. § 1983 and there is no common law right of action for
18 / 26

damages. Bouillion, supra at 147. Perez does not dispute this conclusion and the issue is
thus deemed unopposed. Local Rule 7.4. The Court therefore dismisses the claims for
money damages based upon alleged state constitutional violations.
According to state sovereign immunity, the request for prospective injunctive
relief regarding unconstitutional state action may be made only against the individual
Defendants in their official capacity. City of El Paso v. Heinrich, 284 S.W.3d 366, 377
(Tex. 2009). Perez concedes this point. D.E. 21, p. 4 (citing Duncan v. University of
Texas Health Science Center at Houston, 469 Fed. Appx. 364 (5th Cir. 2012) (relying on
Kentucky v. Graham, 473 U.S. 159, 169 n. 18, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)
and Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908))). Therefore, the
Court dismisses the claims for injunctive relief based on state constitutional violations
brought against the University and the individual Defendants in their individual
capacities.
Remaining for consideration is an action under the state constitution against the
individual Defendants in their official capacities. Perez acknowledges that her only
viable state constitutional claim is for injunctive relief against these Defendants4. She
does not directly address Defendants’ claim of Eleventh Amendment immunity, but
appears to rely on the Ex parte Young doctrine.
The Eleventh Amendment declares there is no “Judicial power of the United
States” over a suit “against one of the United States by Citizens of another State, or by

4

See generally, Nelson v. University of Texas at Dallas, 535 F.3d 318, 320 (5th Cir. 2008) (holding that an action
may be maintained against employees of a state university for prospective relief).

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Citizens or Subjects of any Foreign State.” U.S. CONST. AMEND. XI. Despite the limited
categories of suits barred by the Amendment's literal language, the Supreme Court has
long interpreted the Amendment as granting a state immunity from suits brought in
federal court by her own citizens as well as by those of another state. Edelman v. Jordan,
415 U.S. 651, 662–63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).
The Ex parte Young doctrine “ensures that state officials do not employ the
Eleventh Amendment as a means of avoiding compliance with federal law.” Puerto Rico
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 142, 113 S.Ct. 684, 688,
121 L.Ed.2d 605 (1993) (emphasis added). See also, Cantu Services, Inc. v. Roberie, No.
No. 12–30736, 2013 WL 3420524, *2 (5th Cir. 2013). The Pennhurst limitation on Ex
parte Young ensures that state officials cannot be brought into federal court for the
enforcement of state law claims against them.

Pennhurst State School & Hosp. v.

Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908 (1984). See generally, Mohler v. State
of Mississippi, 782 F.2d 1291, 1294 (5th Cir. 1986). Enforcing the Texas Constitution—
or any other state law for that matter—is not a sufficient basis under Ex parte Young to
exercise federal jurisdiction over state officials. The Court GRANTS the Motion to
Dismiss with respect to the Texas state constitutional claims.
Alternatively, as set out above with respect to their federal counterparts, the claims
made under the Texas Constitution are also factually deficient under Twombly/Iqbal and
must be dismissed for that reason as well.
Counts Four and Five are DISMISSED.

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C. Count Six: Breach of Contract or Implied Contract
In Count Six, Perez complains that she had a contract or implied contract with the
University, which “Defendants” breached. D.E. 15, p. 19. Defendants invoke Eleventh
Amendment immunity with respect to any state contract liability and point out that there
is no contract between Perez and the individual Defendants to support any relief,
including injunctive relief against them. Perez responds that injunctive relief requiring
her reinstatement to the nursing program is still available against the individuals despite
immunity.
As set out above, the University as an arm of the State is entitled to Eleventh
Amendment immunity from federal jurisdiction. That immunity extends to breach of
contract claims. See generally, Pillsbury Co. v. Port of Corpus Christi Authority, 66 F.3d
103 (5th Cir. 1995).

Perez has not demonstrated any waiver of that immunity by

legislative action and authorities hold that, without legislative consent, immunity has not
been waived. E.g., Pennhurst, supra; Freedman v. University of Houston, 110 S.W.3d
504, 507-08 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (addressing sovereign
immunity). Under Pennhurst, the state, through its legislature, must unequivocally waive
sovereign immunity and consent to be sued in federal court before a state claim against a
state officer may be brought in the federal system. Pennhurst, 465 U.S. at 99.
Suing the individuals in their official capacity seeking specific performance or an
injunctive remedy for breach does not eliminate the character of the suit as one against
the state. The Eleventh Amendment bars a suit against state officials when “the state is
the real, substantial party in interest.” Pennhurst, supra; Herring v. Houston National
21 / 26

Exchange Bank, 253 S.W. 813, 814 (Tex. 1923). A suit seeking injunctive relief to
enforce contractual rights is necessarily a suit against the state that cannot be maintained
without legislative permission. Texas Parks & Wildlife Dept. v. W.M. Callaway, 971
S.W.2d 145, 152-53 (Tex. App.—Austin 1998, no writ). Perez’s claims against the
University are barred by Eleventh Amendment immunity.
Injunctive relief against the individual Defendants is not available because they
are not parties to the contract5 and because, as set out above, the Pennhurst limitation on
the Ex parte Young doctrine prevents the assertion of a claim for injunctive relief against
individuals acting in their official capacity when that complaint is based on state law.
Furthermore, declaratory or injunctive relief cannot be used to circumvent sovereign
immunity. Texas Natural Resource Conservation Comm’n v. IT-Davy, 74 S.W.3d 849,
861 (Tex. 2002); Callaway, supra.
The Court GRANTS the Motion to Dismiss on the issue of breach of contract.
Count Six is DISMISSED.
D. Count Seven - Defamation and Count Eight Intentional Infliction of Emotional Distress
In Counts Seven and Eight, Plaintiff complains that Defendants made defamatory
statements to third parties. According to the preliminary factual recitation (D.E. 15) and
Perez’s Affidavit (D.E. 2), this claim is based on the information allegedly given by
Fomenko in the third hearing with respect to Perez’s appeal of her dismissal.

5

Mullins v. TestAmerica, Inc. 564 F.3d 386, 418 (5th Cir. 2009) (a breach of contract action requires that there be
an existing contract that can be breached); Marquis Acquisitions, Inc. v. Steadfast Ins. Co., 409 S.W.3d 808, 813-14
(Tex. App.–Dallas 2013, no pet.) (same).

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Defendants’ conduct, overall, is alleged to have been extreme, outrageous, and of such
character as not to be tolerated by a civilized society.

Defendants argue that the Texas

Tort Claims Act (TTCA)6 applies to any tort claims made against a governmental entity
and that the TTCA bars these claims by requiring the dismissal of the claims against the
individual Defendants and by failing to waive sovereign immunity as to the University.
Once again, Perez responds that she remains entitled to injunctive relief in the form of
reinstatement to the nursing program.
The Court has already established that the University is a governmental entity.
There is no question that any tort claims must be made through the TTCA. TTCA §
101.021; Franka v. Velasquez, 332 S.W.3d 367, 376 (Tex. 2011) (TTCA is the rubric for
determination of tort claims even if there is no waiver for the alleged tort); Mission
Consolidated Independent School Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008) (all
tort claims against governmental entity are presumed to be brought under TTCA).
Under the TTCA election of remedies provision, the claims against the individual
Defendants—in both their individual and official capacities and for both monetary and
injunctive relief—must be dismissed. TTCA § 101.106; Texas Bay Cherry Hill v. City of
Fort Worth, 257 S.W.3d 379, 401 (Tex. App.—Fort Worth 2008, no pet.) (dismissal
required under both individual and official capacity); Leatherwood v. Prairie View A&M
University, No. 01–02–01334–CV, 2004 WL 253275, *2-3 (Tex. App.—Houston [1st
Dist.] Feb. 12, 2004, no pet.) (dismissal is appropriate whether claim is for damages or
injunctive relief). That is because, by suing the University, Perez triggered the election
6

Tex. Civ. Prac. & Rem. Code § 101.001 et seq.

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of remedies provision requiring the mandatory dismissal of the individual employees
upon the University’s motion. TTCA § 101.106(e).
With respect to the University, dismissal is required because the TTCA does not
waive immunity for defamation, intentional infliction of emotional distress, or any other
intentional tort. TTCA § 101.057; Umoren v. Plano Independent School Dist., No. 11–
40444, 457 Fed. Appx. 422, 425, 2012 WL 33039, *1 (5th Cir. January 6, 2012) (no
waiver for intentional infliction of emotional distress); Hernandez v. Pulido, No. 0041232, 2001 WL 1013086 (5th Cir. August 2, 2001) (per curiam; disposition noted at 273
F.3d 392) (no waiver for defamation); Amadi v. City of Houston, 369 S.W.3d 254, 260
(Tex. App.—Houston [14th Dist.] 2011, pet. denied) (no waiver for defamation or
intentional infliction of emotional distress).
Additionally, the Eleventh Amendment requires this Court to dismiss the claim
because even claims for injunctive relief do not circumvent this immunity when based
purely upon state law. This Eleventh Amendment immunity has been established above.
The Court GRANTS the Motion to Dismiss with respect to the claims for
defamation and intentional infliction of emotional distress.

The Court DISMISSES

Counts Seven and Eight.
E. Count Nine - Texas Civil Rights Act
Perez alleges that Defendants violated the “Texas Civil Rights Act” (TCRA) by
discriminating against her on the basis of race in an educational institution. Defendants
point out that Perez does not state a citation for the TCRA claim. Perez does not offer
any clarification in her Response (D.E. 21).
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Nonetheless, it appears that Perez is

invoking Tex. Civ. Prac. & Rem. Code § 106.001-106.003, which is derived from Tex.
Rev. Civ. Stat. Ann. art. 6252-16, § 1(a)(6), (7) (Vernon 1976), previously referred to as
the Texas Civil Rights Act. See Ibarra v. Bexar County Hospital Dist., 624 F.2d 44, 46
(5th Cir. 1980).
In its current form, the TCRA states:
(a) An officer or employee of the state or of a political
subdivision of the state who is acting or purporting to act
in an official capacity may not, because of a person's
race, religion, color, sex, or national origin
(1) refuse to issue to the person a license, permit, or
certificate; . . .
(4) refuse to permit the person to participate in a program
owned, operated, or managed by or on behalf of the
state or a political subdivision of the state;
(5) refuse to grant a benefit to the person; [or]
(6) impose an unreasonable burden on the person . . . .
TCRA, § 106.001. The remedies provided are limited to preventive relief, such as an
injunction, and attorney’s fees to a prevailing party. TCRA, § 106.002; Toungate v.
Bastrop Independent School Dist., 842 S.W.2d 823, 828 (Tex. App.—Austin 1992, no
writ) (interpreting statutory language as precluding compensatory damages).
This statute constitutes a waiver of sovereign immunity. Ntreh v. University of
Texas at Dallas, 936 S.W.2d 649, 654 (Tex. App.—Dallas 1996), modified on other
grounds, 947 S.W.2d 202 (Tex. 1997). Assuming without deciding that the relief Perez
seeks with respect to reinstatement into the nursing program can be characterized as
prospective rather than retroactive, the claim is one under state law, is effectively against
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the University (and, hence, the State), and is thus improperly before this Court due to the
Eleventh Amendment and the Pennhurst limitation on the Ex parte Young doctrine,
discussed above.
While the Court disagrees with Defendants’ claim that this cause of action is
barred by sovereign immunity, the Court GRANTS the Motion to Dismiss because of
Eleventh Amendment immunity from suit in this Court.

Alternatively, the factual

allegations are insufficient under Twombly/Iqbal.
The Court DISMISSES Count Nine.
CONCLUSION
For the reasons set out above, the Court GRANTS the Motion to Dismiss (D.E.
18). To the extent this holding is based upon the Eleventh Amendment, it is a grant of
relief pursuant to Fed. R. Civ. P. 12(b)(1) due to lack of subject matter jurisdiction. 7 As
to the other issues, the holding is based upon Fed. R. Civ. P. 12(b)(6) in that Perez has
failed to state any claim upon which relief may be granted.
ORDERED this 2nd day of December, 2013.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

7

The Fifth Circuit has treated dismissals based on state sovereign immunity as jurisdictional under Fed. Rule Civ.
Proc. 12(b)(1) See, e.g. Warnock, 88 F.3d at 343. At the same time, it has observed the uniquely ambiguous
character of Eleventh Amendment immunity. Cantu Services, Inc. v. Roberie, 2013 WL 3420524, *4 n.3 (5th Cir.
2013) (citing Union Pac. R. Co. v. La. Pub. Svc. Comm., 662 F.3d 336, 340 (5th Cir. 2011)(noting that “Eleventh
Amendment immunity operates like a jurisdictional bar,” but “may be waived by the state”) and 13 C. Wright & A.
Miller, FEDERAL PRACTICE & PROCEDURE § 3524.1 (3d ed.). See also Seminole Tribe of Florida v. Florida, 517
U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (applying the Eleventh Amendment as a jurisdictional issue).

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