Higgins v. Montgomery County Hospital District, et al
Filing
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OPINION AND ORDER Granting 9 MOTION to Dismiss (Partial). Lee Gillum terminated.(Signed by Judge Melinda Harmon) Parties notified.(csonnier, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MONIKA R HIGGINS; aka JONES,
Plaintiff,
VS.
MONTGOMERY COUNTY HOSPITAL
DISTRICT, et al,
Defendants.
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CIVIL ACTION NO. H-10-3787
OPINION AND ORDER
Pending before the Court is Defendants Montgomery County Hospital District
(“Montgomery Hospital”) and Lee Gillum’s (“Gillum”) Partial Motion to Dismiss (Doc. 9), as
well as Plaintiff Monika R. Higgins’ (“Higgins”) Response (Doc. 11) and Defendants’ Reply
(Doc. 11). Upon review and consideration of this motion, the response, and reply thereto, the
relevant legal authority, and for the reasons explained below, the Court finds that Defendants’
partial motion to dismiss should be granted.
I. Background and Relevant Facts
This is an employment discrimination case. Higgins alleges that she has a disability but
does not specify its nature. (Pl.’s First Am. Compl. ¶ 6.) On or about November 3, 2008,
Higgins began employment by Montgomery Hospital under the supervision of Gillum. (Id.) On
January 7, 2009, Higgins alleges that Gillum twice struck her arms during working hours. (Id.)
On January 21, 2009, Higgins reported the Gillum assault to Montgomery Hospital management
personnel, Connie Wolfe and Connie Bryant. (Id.) On January 23, 2009, Higgins was assigned
a new supervisor. (Id.) On February 24, 2009, Higgins reported the Gillum assault to Stacy
Cox, a representative of Montgomery Hospital’s human resources department.
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(Id.)
On
March 3, 2009, Higgins’ employment at Montgomery Hospital was terminated.
On October 13, 2010, Higgins filed suit. (Doc. 1.) On January 28, 2011, Higgins filed an
amended complaint, bringing claims against Montgomery Hospital for violations of the First and
Fourteenth Amendments under 42 U.S.C. § 1981, violations of her constitutional rights under 42
U.S.C. § 1983, violations of Titles I and II of the Americans with Disabilities Act (“ADA”),
hostile work environment, breach of contract, and battery under the Texas Tort Claims Act
(“TTCA”), and against Gillum for battery. (Doc. 7.) Defendants now move to dismiss all but
Higgins’ ADA claims. (Doc. 9.)
II. Standard of Review
Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes the filing of a motion to
dismiss a case for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A lawsuit must
be dismissed for lack of subject-matter jurisdiction “when the court lacks the statutory or
constitutional power to adjudicate the case.” Home Builders Ass’n of Miss., Inc. v. City of
Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (internal quotation omitted). The party seeking to
litigate in federal court bears the burden of establishing subject-matter jurisdiction. Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Barrera-Montenegro v. United States, 74
F.3d 657, 659 (5th Cir. 1996)).
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the filing of a motion to
dismiss a case for failure to state a claim upon which relief can be granted. Fed. R. Civ.
P. 12(b)(6). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of its entitlement to
relief requires more than labels and conclusions, and a formulaic recitation of a cause of action’s
elements will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation
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omitted). A plaintiff must allege sufficient facts to state a claim to relief that is “plausible” on its
face. Id. at 569. A claim is facially plausible when a “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, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).
It is the court’s responsibility to determine whether the plaintiff has stated a legally
cognizable claim that is plausible, not to evaluate the plaintiff’s likelihood of success. Id.
However, conclusory allegations and unwarranted factual deductions will not suffice to avoid a
motion to dismiss. United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d
375, 379 (5th Cir. 2003). “Where a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of entitlement
to relief.” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557) (internal quotations
omitted). In ruling on a Rule 12(b)(6) motion, “courts must limit their inquiry to the facts stated
in the complaint and the documents either attached to or incorporated in the complaint.”
Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir. 1996).
III. Discussion
The Civil Rights Act of 1866 prohibits discrimination on the basis of race. 42 U.S.C.
§ 1981. Higgins alleges she suffered discrimination based on disability, not race. Section 1981
does not extend to discrimination based on disability. Bloom v. Bexar Cnty., 130 F.3d 722, 723
at n.1 (5th Cir. 1997); Aramburu v. Boeing Co., 112 F.3d 1398, 1411 (10th Cir. 1997). Higgins’
claims under Section 1981 must be dismissed for failure to state a claim upon which relief can be
granted. Fed. R. Civ. P. 12(b)(6).
Immunity from suit is jurisdictional and, therefore, is properly decided pursuant to a
Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction. Tex. Dep’t of Parks and
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Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Hospital districts like Montgomery
Hospital are governmental units entitled to governmental immunity, which protects subdivisions
of the State from lawsuits for damages. Reata Constr Corp. v. City of Dallas, 197 S.W.3d 371,
374 (Tex. 2006). As such, Montgomery Hospital is protected from suit under the TTCA. Tex.
Civ. Prac. & Rem. Code Ann. § 101.021 (West 2007). Texas courts have held that statutory
waivers of immunity, such as those in the TTCA, must be construed narrowly. Mission Consd.
Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (“We interpret statutory waivers of
immunity narrowly, as the Legislature’s intent to waive immunity must be clear and
unambiguous.”). The TTCA contains a waiver of governmental immunity for:
(1) property damage, personal injury, and death proximately caused by the
wrongful act or omission or the negligence of an employee acting
within his scope of employment if:
(A) the property damage, personal injury, or death arises from the
operation or use of a motor-driven vehicle or motor-driven
equipment; and
(B) the employee would be personally liable to the claimant according
to Texas law; and;
(2) personal injury and death so caused by a condition or use of tangible
personal or real property if the governmental unit would, were it a
private person, be liable to the claimant according to Texas law.
Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 2007). Higgins, however, does not allege
that any “condition or use of tangible personal or real property” by Montgomery Hospital caused
her injuries. Id. Because Montgomery Hospital has not waived its governmental immunity,
Higgins’ claims under the TTCA must be dismissed.
In order to bring a claim under 42 U.S.C. § 1983, Higgins must (1) allege a violation of
rights secured by the Constitution or laws of the United States; and (2) demonstrate that the
alleged deprivation was committed by a person acting under color of state law. Leffall v. Dallas
Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994); James v. Collin Cnty., 535 F.3d 365, 373 (5th
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Cir. 2008). Here, Higgins alleges that Gillum, “acting in his official capacity and acting under
color of law, deprived Plaintiff of her clearly established rights and privileges secured by the
Constitution and laws, which should reasonably have been known to Gillum, to include her
rights under contract, her rights under Federal law protecting disabled persons, her right to be
free from physical harm, and her Constitutional right of, inter alia, life, liberty and the pursuit of
happiness.” (Pl.’s First Am. Compl. ¶ 13.) However, Texas is an at-will employment state,
meaning that, absent a specific agreement to the contrary, an employee may be terminated
without cause at any time. Montgomery Cnty. Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex.
1998). Higgins’ employment was at will and therefore she cannot claim a protected property
interest in her job. Whitting v. Univ. S. Miss., 451 F.3d 339, 344–45 (5th Cir. 2006).
Section 1983 also does not provide a cause of action for statutory claims that provide
their own frameworks for damages, such as the ADA. D.A. v. Houston Indep. Sch. Dist., 0920551 (5th Cir. Dec. 28, 2010); Lollar v. Baker, 196 F.3d 603, 609 (5th Cir. 1999) (holding that
where a statutory scheme already provides a comprehensive set of remedies for its enforcement,
there is a presumption against the availability of the more general remedial measures of § 1983).
Higgins’ claim under 42 U.S.C. § 1983 must be dismissed.
Finally, Texas Civil Practice and Remedies Code § 101.106(e) mandates immediate
dismissal of claims against an employee of a governmental unit when suit is filed under the
TTCA “against both a governmental unit and any of its employees.” Id. § 101.106(e); Rodriguez
v. Christus Spohn Health Sys. Corp., 628 F.3d 731, 738 (5th Cir. 2010). Therefore, Defendant
Gillum must be dismissed, pursuant to Fed. R. Civ. P. 12(b)(1).
IV. Conclusion
Accordingly, the Court hereby ORDERS that Defendants Montgomery County Hospital
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District and Lee Gillum’s Partial Motion to Dismiss (Doc. 9) is GRANTED.
Higgins’ claims for breach of contract, battery, violations of the First and Fourteenth
Amendments under 42 U.S.C. § 1981, and violations of 42 U.S.C. § 1983 are DISMISSED.
Higgins’ claims for violations of Titles I and II of the Americans with Disability Act survive.
Defendant Lee Gillum is DISMISSED.
SIGNED at Houston, Texas, this 26th day of July, 2011.
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MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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