Greene v. State of Texas
ORDER OF DISMISSAL granting 8 Motion to Dismiss. Case terminated on May 31, 2017. (Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
ROY K. GREENE,
STATE OF TEXAS,
May 31, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 4:17-CV-00711
ORDER OF DISMISSAL
Pending before the Court is the defendant’s, the State of Texas (the “State”), motion to
dismiss brought pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
(Dkt. No. 8). The plaintiff, Roy K. Greene (the “plaintiff”), proceeding pro se and in forma
pauperis, has failed to file a response and the time for doing so has long expired. Thus, pursuant
to this Court’s local rules, the plaintiff’s “[f]ailure to respond will be taken as a representation of
no opposition.” S.D. Tex L.R. 7.4. After having carefully considered the motion, the pleadings,
and the applicable law, the Court determines that the State’s motion to dismiss should be
On March 6, 2017, the plaintiff commenced the instant action against the State pursuant
to § 1983, alleging violations of his rights to equal protection under the Fourteenth Amendment.
The plaintiff’s pro se complaint,1 while not a model of clarity, appears to arise out of two
separately-alleged workplace injuries occurring on July 22, 2009 and October 27, 2015, wherein
Since the plaintiff is proceeding pro se, the Court construes the allegations of his complaint liberally. See SEC v.
AMX, Int’l, Inc., 7 F.3d 71, 75 (5th Cir. 1993) (per curiam).
the plaintiff alleges that he was denied legal representation by the Division of Workers’
Compensation within the Department of Insurance based on the statutory provisions found in
Tex. Lab. Code § 408.221, entitled “Attorney’s Fees Paid to Claimant’s Counsel.” (See Dkt. No.
2 at 5; see also Dkt. No. 1). The plaintiff also asserts that the Texas Supreme Court’s decision in
Texas Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430 (Tex. 2012), prevents him from “hiring an
attorney for enforcement of [his] rights to equal protection.” (Id.) As such, he requests the
following relief for the violations alleged: (1) that the Court “[s]trike as unconstitutional” the Texas
Supreme Court’s ruling in Ruttiger; (2) that the Court “[s]trike as unconstitutional” Tex. Lab. Code
§§ 408.221(a) and (b); (3) that the State “[p]ay all [of his] past and future medical expenses and
restore [his] income to present and future”; and (4) that the State “[r]ecompense [him] for pain and
suffering caused by [the State’s] illegal activities and laws.” (Id.)
Specifically, in his one-paragraph Complaint, the plaintiff asserts the following:
After both work injuries 10-27-2015 and 07-22-2009 denied legal
representation in severe injuries by Department of Insurance division of
workers comp statute 408.221 a and b because of non payment of income
benefits and subsequent lack of attorney billing ability. Secondly I am
prevented from hiring an attorney for enforcement of my rights to equal
protection by Texas Supreme court ruling 08-0751. The ruling of the supreme
court removes responsibility of Insurance carriers and places it on the state of
Texas by an erronious [sic] reliance of code of DWC laws being enforced. All
of reliances stated in Ruttiger case have been violated in my case. Neither of
the statute or ruling cited treat similar parties as in elderly in a similar matter.
Neither are facially neutral and create disparate impact. The actions of the
state of Texas DWC and courts have left me Untreated for my injuries, Un paid
[sic] income benefits unable to work. Further I will show that DWC never
enforces some of reliances of 08-0751 TSC.
(Dkt. Nos. 1 & 2).
STANDARDS OF REVIEW
Standard Under Rule 12(b)(1)
Rule 12(b)(1) permits the dismissal of an action for the lack of subject matter jurisdiction.
Fed. R. Civ. P. 12(b)(1). “If [a federal] court determines at any time that it lacks subject-matter
jurisdiction, [it] must dismiss the action.” Fed. R. Civ. P. 12(h)(3); see also Berkshire Fashions,
Inc. v. M.V. Hakusan II, 954 F.2d 874, 880 n.3 (3rd Cir. 1992) (citing Rubin v. Buckman, 727
F.2d 71, 72 (3d Cir. 1984)) (reasoning that “[t]he distinction between a Rule 12(h)(3) motion and
a Rule 12(b)(1) motion is simply that the former may be asserted at any time and need not be
responsive to any pleading of the other party.”) Since federal courts are considered courts of
limited jurisdiction, absent jurisdiction conferred by statute, they lack the power to adjudicate
claims. See, e.g., Stockman v. Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998) (citing
Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994). Therefore, the party
seeking to invoke the jurisdiction of a federal court carries “the burden of proving subject matter
jurisdiction by a preponderance of the evidence.” Vantage Trailers, Inc. v. Beall Corp., 567 F.3d
745, 748 (5th Cir. 2009) (citing New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 327
(5th Cir. 2008); see also Stockman, 138 F.3d at 151.
When evaluating jurisdiction, “a [federal] court is free to weigh the evidence and satisfy
itself as to the existence of its power to hear the case.” MDPhysicians & Assoc., Inc. v. State Bd.
of Ins., 957 F.2d 178, 181 (5th Cir. 1992) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th
Cir. 1981)); see also Vantage Trailers, 567 F.3d at 748 (reasoning that “[i]n evaluating
jurisdiction, the district court must resolve disputed facts without giving a presumption of
truthfulness to the plaintiff’s allegations.”) In making its ruling, the court may rely on any of the
“(1) the complaint alone, (2) the complaint supplemented by undisputed facts
evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court’s
resolution of disputed facts.” MDPhysicians, 957 F.2d at 181 n.2 (citing Williamson, 645 F.2d at
Standard Under Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) authorizes a defendant to move to dismiss for
“failure to state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). Under the
demanding strictures of a Rule 12(b)(6) motion, “[t]he plaintiff’s complaint is to be construed in
a light most favorable to the plaintiff, and the allegations contained therein are to be taken as
true.” Oppenheimer v. Prudential Sec., Inc., 94 F.3d 189, 194 (5th Cir. 1996) (citing Mitchell v.
McBryde, 944 F.2d 229, 230 (5th Cir. 1991)). Dismissal is appropriate only if, the “[f]actual
allegations [are not] enough to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965, 167 L. Ed.2d 929 (2007).
Moreover, in light of Federal Rule of Civil Procedure 8(a)(2), “[s]pecific facts are not necessary;
the [factual allegations] need only ‘give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 2200, 167
L. Ed.2d 1081 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555, 127 S. Ct. at 1964).
Even so, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555, 127 S. Ct. at 1964 - 65 (citing Papasan v. Allain, 478
U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed.2d 209 (1986)).
In Ashcroft v. Iqbal, the Supreme Court expounded upon the Twombly standard,
reasoning that “[t]o survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v.
Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed.2d 868 (2009) (quoting Twombly, 550
U.S. at 570, 127 S. Ct. at 1974). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at
556, 127 S. Ct. at 1955). “But where the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show [n]’-‘that
the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950 (quoting Fed. R. Civ.
Nevertheless, when considering a 12(b)(6) motion to dismiss, the Court’s task is limited
to deciding whether the plaintiff is entitled to offer evidence in support of his or her claims, not
whether the plaintiff will eventually prevail. Twombly, 550 U.S. at 563, 127 S. Ct. at 1969 n.8
(citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed.2d 90 (1974)); see also
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999). In this regard, its review is limited to the
allegations in the complaint and to those documents attached to a defendant’s motion to dismiss
to the extent that those documents are referred to in the complaint and are central to the claims.
Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004).
ANALYSIS AND DISCUSSION
The plaintiff has instituted the underlying civil action against the State pursuant to §
1983, alleging a violation of his equal protection rights under the Fourteenth Amendment. The
State moves to dismiss the plaintiff’s complaint on various grounds, including: for lack of
subject matter jurisdiction because the Eleventh Amendment bars the plaintiff’s claims; for
failure to state a claim because the State is not a “person” as defined by § 1983; and as time-
barred because the plaintiff’s alleged 2009 injury occurred more than 2 years prior to the time in
which the plaintiff commenced his lawsuit. This Court agrees.
Section 1983 generally provides an individual with a private right of action for the
deprivation of rights, privileges, and immunities secured by the Constitution or laws of the
United States.2 See 42 U.S.C. § 1983. “To state a claim under 42 U.S.C. § 1983, a plaintiff must
first show a violation of the Constitution or of federal law, and then show that the violation was
committed by someone acting under color of state law.” Atteberry v. Nocona Gen. Hosp., 430
F.3d 245, 252 – 53 (5th Cir. 2005) (citing West v. Atkins, 487 U.S. 42, 48 – 50, 108 S. Ct. 2250,
101 L. Ed.2d 40 (1988); Piotrowski v. City of Houston, 51 F.3d 512, 515 (5th Cir. 1995)). Here,
the plaintiff alleges an equal protection claim against the State pursuant to § 1983 for his
purported denial of legal representation based on Tex. Lab. Code § 408.221 and the Texas
Supreme Court’s decision in Ruttiger for workplace injuries he allegedly sustained in 2009 and
2015. The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall
make or enforce any law which shall . . . deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV § 1. In order to state an equal protection claim,
a plaintiff must allege that “similarly situated individuals were treated differently” and that
“purposeful or intentional discrimination” occurred for which no rational basis otherwise exists.
Stoneburner v. Sec’y of the Army, 152 F.3d 485, 491 (5th Cir. 1998) (citing Muhammad v.
Lynaugh, 966 F.2d 901, 903 (5th Cir. 1992); McCleskey v. Kemp, 481 U.S. 279, 292, 107 S. Ct.
1756, 95 L. Ed. 2d 262 (1987)). In this case, the plaintiff has satisfied none of the abovementioned prerequisites.
Section 1983 provides, in relevant part, that “[e]very person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at
law.” 42 U.S.C. § 1983.
Notwithstanding the aforementioned, however, it is well-settled law that suits brought by
private citizens against a state and/or its agencies in federal courts are barred by the Eleventh
Amendment, unless the state has waived its immunity or Congress has expressly and validly
abrogated it. See Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 (5th Cir. 2002)
(internal citations omitted).
“Indeed, not only does the Eleventh Amendment preclude
individuals from suing a state in federal court for money damages, it also bars injunctive and
declaratory suits against the state, unless the state consents to suit, or its immunity is otherwise
overcome by application of waiver, abrogation, or Ex parte Young doctrines.” Scott v. Supreme
Court of Louisiana, Civ. A. No. 12-2502, 2013 WL 1288565, at *3 (E.D. La. Mar. 27, 2013)
(citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 – 01 (1984)) (other
citations omitted); see also Cozzo v. Tangipahoa Par. Council-President Gov’t, 279 F.3d 273,
280 - 81 (5th Cir. 2002) (citing Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. 139, 144, 113 S. Ct. 684, 121 L. Ed.2d 605 (1993) (“When [, as here,] a state . . . is the
named defendant, the Eleventh Amendment bars suits for both money damages and injunctive
relief unless the state has waived its immunity.”). Although Congress does have the power to
abrogate Eleventh Amendment immunity with regard to certain rights protected by the
Fourteenth Amendment,3 the Supreme Court has expressly held that § 1983 does not abrogate
the states’ immunity with regard to suits commenced against states in federal courts. See Quern
v. Jordan, 440 U.S. 332, 342, 99 S. Ct. 1139, 59 L. Ed.2d 358 (1979). Since none of the
aforementioned exceptions are applicable in this case and the plaintiff has not otherwise made
Section 5 of the Fourteenth Amendment grants Congress the authority to abrogate the states’ sovereign immunity.
In Fitzpatrick v. Bitzer, for example. the Supreme Court recognized that “the Eleventh Amendment, and the
principle of state sovereignty which it embodies, . . . are necessarily limited by the enforcement provisions of § 5 of
the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S. Ct. 2666, 49 L. Ed.2d 614 (1976)
any argument that would bring this case within any other statutory waiver of immunity, this
Court lacks subject matter jurisdiction over the plaintiff’s lawsuit. Accordingly, the State’s
motion to dismiss the plaintiff’s complaint pursuant to Rule 12(b)(1) should be GRANTED.
Even assuming the plaintiff’s claims were not barred by the doctrine of sovereign
immunity, they still fail as the state is not a “person” as defined by § 1983. See Klingler v. Univ.
of S. Mississippi, USM, No. 14-60007, 612 Fed. App’x. 222, 226 (5th Cir. 2015) (citing Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 66 – 70, 109 S. Ct. 2304, 105 L. Ed.2d 45 (1989)
(reasoning that “the Supreme Court has held that states are not ‘persons’ under § 1983 and thus
not amenable to suit.”). Therefore, because the State is not a “person” capable of being sued
under § 1983, the plaintiff has also failed to plausibly state a claim against the State under § 1983
and it should also be dismissed pursuant to Rule 12(b)(6). Given that this Court deems dismissal
warranted on the grounds set forth above, it need not adjudicate the State’s alternative theories
Based on the foregoing analysis and discussion, the State’s motion to dismiss is
It is so ORDERED.
SIGNED on this 31st day of May, 2017.
Kenneth M. Hoyt
United States District Judge
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