Ford v. Texas Department of Criminal Justice

Filing 62

MEMORANDUM AND ORDER granting 41 MOTION to Dismiss (Partial) Pursuant to FRCP 12(c) and denying 43 MOTION for Leave to File Second Amended Complaint. (Signed by Magistrate Judge Stephen Wm Smith) Parties notified.(jmarchand, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
THOMAS FORD and LARRY JONES,
Plaintiffs,
v.

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TEXAS DEPARTMENT OF CRIMINAL JUSTICE ,
Defendant.

July 14, 2016
David J. Bradley, Clerk

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CIVIL ACTION NO . 4:15-CV-00664

MEMORANDUM AND ORDER
Before the Court are two motions: (1) Defendant TDCJ’s motion to partially dismiss
Plaintiffs’ first amended complaint (Dkt. 41), and (2) Plaintiffs’ motion for leave to file a second
amended complaint (Dkt. 43). After reviewing the briefing and the law, the Court grants the
motion to partially dismiss and denies leave to file a second amended complaint.
BACKGROUND
Plaintiffs Thomas Ford and Larry Jones are correctional officers who previously worked
at TDCJ’s Holliday Unit under the supervision of Senior Warden Pamela Baggett. Ford initially
filed suit against TDCJ in November 2014, alleging race discrimination by Warden Baggett in
violation of Title VII, 42 U.S.C. § 2000e, et seq. See Dkt. 1. One year later, Ford moved for
leave to add Jones as a plaintiff to the suit and file a first amended complaint. See Dkt. 30. The
Court granted the unopposed motion, which complied with the deadlines set by this Court’s
scheduling order. Dkt. 31.
In the first amended complaint, both Ford and Jones allege race discrimination and
retaliation under 42 U.S.C. § 1981. Dkt. 30-2 at 1. Ford also repeats his Title VII allegations
from the original complaint, whereas Jones makes no Title VII claim at all. Id.
On April 20, 2016, TDCJ filed its motion to dismiss Plaintiffs’ § 1981 claims on
Eleventh Amendment immunity grounds. Dkt. 41. In their response, Plaintiffs acknowledge that

TDCJ “accurately asserts that it enjoys immunity from suit for money damages for claims
brought against the agency pursuant to 42 U.S.C. § 1981.” Dkt. 43, ¶ 13. Plaintiffs also concede
that the § 1981 claims presented in their first amended complaint suffer from fatal deficiencies
as “highlighted by TDCJ in its motion to dismiss.” Id., ¶ 1.
In their response, Plaintiffs move for leave to file a second amended complaint to remedy
their pleading deficiencies. Specifically, Plaintiffs seek to overhaul their complaint by adding a
Title VII retaliation claim for Jones, naming TDCJ Executive Director Brad Livingston as a
defendant, and modifying their § 1981 claims to invoke the Ex parte Young doctrine—thereby
avoiding a complete dismissal of their non-Title VII claims.1 TDCJ opposes this request, arguing
that Plaintiffs have not shown good cause for failing to comply with the Court’s scheduling
order. See Dkt. 47.
ANALYSIS
A. TDCJ’s motion to dismiss Plaintiffs’ § 1981 claims is granted.
Rule 12(c) provides that any party may move for judgment on the pleadings after the
pleadings are closed but within such time as not to delay the trial. FED . R. CIV . P. 12(c). The
standard for a motion to dismiss under Rule 12(c) is the same as a motion to dismiss under Rule
12(b)(6): whether the complaint, on its face, states a valid claim to relief. See Great Plains Trust
Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 n.8 (5th Cir. 2002).
Absent state consent or congressional override, the Eleventh Amendment bars suits
against a state or one of its agencies. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73
(2000). The Fifth Circuit has consistently treated TDCJ as an agency of the state of Texas
1

Ex parte Young “created an exception to Eleventh Amendment immunity for claims for prospective relief against
state officials who have been sued in their official capacities.” See Nelson v. Univ. of Texas at Dallas, 535 F.3d 318,
320 (5th Cir. 2008) (citing Ex parte Young, 209 U.S. 123 (1908)). By adding Director Livingston as a defendant and
bringing their § 1981 claims through the procedural vehicle of 42 U.S.C. § 1983, Plaintiffs can avoid Eleventh
Amendment-based dismissal of their claims for injunctive relief.

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entitled to Eleventh Amendment immunity from suit. See Harris v. Angelina Cnty., 31 F.3d 331,
337 n.7 (5th Cir. 1994). Although Title VII abrogated Eleventh Amendment immunity, § 1981
contains no similar congressional override. Sessions v. Rusk State Hosp., 648 F.2d 1066, 1069
(5th Cir. 1981).
The doctrine of Ex parte Young provides an exception to the blanket protection of
sovereign immunity, permitting courts to grant injunctive relief against state officials “to
conform their future conduct to the requirements of federal law.” Quern v. Jordan, 440 U.S. 332,
337 (1979). “The essential ingredients of the Ex parte Young doctrine are that a suit must be
brought against individual persons in their official capacities as agents of the state and the relief
sought must be declaratory or injunctive in nature and prospective in effect.” Saltz v. Tenn. Dep’t
of Emp’t Sec., 976 F.2d 966, 968 (5th Cir. 1992).
The only named defendant in this case is TDCJ itself. Plaintiffs’ first amended complaint
does not name an individual state official as a defendant; therefore, the Ex parte Young doctrine
does not apply here. Plaintiffs concede that their § 1981 claims against TDCJ are barred as
pleaded, and their response in opposition is entirely based upon a request to amend their
pleadings to name Director Livingston as a defendant in order to invoke Ex parte Young.
Therefore, the Court grants TDCJ’s motion to dismiss. The § 1981 claims brought by
both Ford and Jones are dismissed without prejudice for lack of jurisdiction.2
B. Plaintiffs’ motion for leave to file a second amended complaint is denied.
The Court’s scheduling order set the deadline for adding new parties as November 2,
2015, and the deadline for amending pleadings with leave of court as March 1, 2016. Dkt. 26;
Dkt. 38. The jury trial in this case is scheduled to begin in September 2016. Id. Plaintiffs’ motion
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“Because sovereign immunity deprives the court of jurisdiction, the claims barred by sovereign immunity can be
dismissed only under Rule 12(b)(1) and not with prejudice.” Warnock v. Pecos Cnty., 88 F.3d 341, 343 (5th Cir.
1996).

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to amend by adding new claims and naming a new defendant is, therefore, tardy by several
months.
To amend pleadings after the deadline set by the court’s scheduling order has expired, the
plaintiff must satisfy the good cause standard of Rule 16(b)(4). S&W Enters., LLC v. SouthTrust
Bank of Alabama, NA, 315 F.3d 533, 536 (5th Cir. 2003). The court considers four factors when
determining whether to permit an untimely amendment: (1) the explanation for failing to timely
move to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the
amendment; and (4) the availability of a continuance to cure any prejudice. Id. Rule 16(b)
“requires the party seeking relief to show that the deadlines cannot reasonably be met despite the
diligence of the party needing the extension.” Id. (internal quotations omitted).
The first and third factors weigh against Plaintiffs. In their briefs, Plaintiffs argue that
they acted diligently to cure their pleading deficiency as soon as it was brought to their attention
by TDCJ’s motion to dismiss. Dkt. 43, ¶ 21. But Plaintiffs were on notice of TDCJ’s Eleventh
Amendment defense to their § 1981 claims long before TDCJ moved to dismiss—TDCJ
expressly asserted this defense in its answer to the first amended complaint filed on December 1,
2015. Dkt. 33, ¶ 49. Plaintiffs emphasize that TDCJ waited several months after the filing of the
first amended complaint before it moved to dismiss, arguing that this demonstrates that TDCJ
was fully aware of the pleading deficiencies but waited to move for dismissal as a dilatory tactic
to avoid liability. See Dkt. 43, ¶ 10; Dkt. 51, ¶ 1. Relatedly, although Plaintiffs seek to add
entirely new causes of action less than four months before trial, Plaintiffs attempt to downplay
any prejudice to TDCJ by arguing that the allegations in the first amended complaint put TDCJ
on notice that “Jones had a live claim of retaliation that could have been pursued as a Title VII

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action given that the adverse action occurred on August 10, 2015.” Dkt. 51, ¶ 2 (emphasis
added).
Plaintiffs’ own argument highlights their lack of diligence in attempting to meet the
Court’s deadlines. Plaintiffs also incorrectly assume that when a defendant can infer a plaintiff’s
potential claims from a complaint, the defendant will not be prejudiced if those claims are later
presented in an untimely amended complaint. Although Jones could have pursued a Title VII
action at the time of filing the first amended complaint, he did not. Jones did not prepare and file
the requisite administrative charge until April 2016—five months after the filing of the first
amended complaint and eight months after the alleged retaliatory action took place. Plaintiffs
emphasize the expeditious manner in which Jones pursued his right-to-sue letter once he learned
of TDCJ’s motion to dismiss. See Dkt. 43, ¶ 11. But this argument ignores the fact that Plaintiffs
did not attempt to amend until five months after TDCJ first put them on notice of its immunity
defense and over two months after expiration of the amended pleadings deadline. Moreover, the
alleged retaliatory conduct took place on August 10, 2015, several months before the deadline to
amend pleadings. Thus, all of the new factual allegations and claims presented in Plaintiffs’
proposed second amended complaint could have been easily presented in a timely amended
complaint. Simply put, it was Plaintiffs’ own neglect and delay that prevented them from
complying with the deadlines set by this Court.
The amendment is undeniably important to the survival of Plaintiff Jones’s claims. In
dismissing the § 1981 claims presented in the first amended complaint, the Court has dismissed
all of the live claims raised by Jones. Thus, without leave to amend, Jones cannot present his
Title VII claim or his claim to injunctive relief in this lawsuit.3 The importance of the
amendment, however, does not tip the scales in favor of allowing it. The discovery deadline has
3

Ford’s Title VII claim remains intact.

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expired. The dispositive and non-dispositive motion deadline has expired. Although the Court
could extend these deadlines and delay the trial, this would not make up for the additional time
and expense that would result from allowing Plaintiffs to file another amended
complaint—raising new claims against a new defendant—at this late stage of the proceedings.
Plaintiffs fail to show good cause under Rule 16(b)(4). Therefore, the Court denies their
motion to amend pleadings.
CONCLUSION
TDCJ’s motion to dismiss Plaintiffs’ § 1981 claims is granted, and Plaintiffs’ motion for
leave to amend pleadings is denied.
Signed at Houston, Texas, on July 14, 2016.

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