Colindres v. MD ANDERSON CANCER CENTER

Filing 17

MEMORANDUM AND ORDER granting 4 Defendant's MOTION to Dismiss. (Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
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§
Plaintiff,
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VS.
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§
UNIVERSITY OF TEXAS MD ANDERSON §
CANCER CENTER,
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§
Defendant.
§

May 30, 2018
David J. Bradley, Clerk

REYNALDO COLINDRES,

CIVIL ACTION NO. 4:18-CV-00163

MEMORANDUM AND ORDER
I.

INTRODUCTION
Before the Court are the defendant’s, The Board of Regents of the University of Texas

System and the MD Anderson Cancer Center (“UT-MDA”), motion to dismiss the plaintiff’s,
Reynaldo Colindres, suit pursuant to Fed. R. Civ. P., Rules 12(b)(1) and 12(b)(6). Having
reviewed the relevant documents on file, the Court determines that the defendant’s motion
should be granted.
II.

THE PLAINTIFF’S CLAIMS AND CONTENTIONS
The plaintiff brings a suit for breach of contract, substantive due process violation(s) and

procedural due process violation(s) arising out of his employment termination. At all relevant
times the plaintiff was a nurse at UT-MDA. He was terminated from his employment because “a
heparin drip” was improperly connected directly to a PICC line in a patient. UT-MDA contends
that the plaintiff’s suit is barred by sovereign immunity and that he lack of standing because he
failed to properly plead a claim for declaratory and injunctive relief.
The plaintiff asserts that he was terminated without pre-termination or a post-termination
conference in violation of the Administrative Guide Book. The plaintiff admits that a procedure

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is in place to address employment terminations, however, he argues the procedure is wholly
inadequate and amounts to “no process at all.” He cites to Cleveland Board of Education v.
Loudermill, 470 U.S. 532 (1985) as support for argument(s).
III.

STANDARD FOR R E V I E W RULE 12(B)(6)
Rule 12(b)(6) authorizes the dismissal of a claim for “failure to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss
under Rule 12(b)(6), a court may not look beyond the face of the pleadings. Classroom
Teachers of Dallas v. Dallas Indep. Sch. Dist., 164 F. Supp. 2d 839, 845 (N.D. Tex.
2001). Moreover, a district court must liberally construe the allegations in the complaint in
favor of the plaintiff and must accept as true all well-pleaded facts in the complaint.
Lowrey v. Tex.A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997).
Dismissal of a claim is improper unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim that would entitle him to relief. Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).

"A plaintiff, however, must plead

specific facts, not mere conclusory allegations, to avoid dismissal."

Classroom Teachers of

Dallas,164 F. Supp. 2d at 845. "A motion to dismiss under rule 12(b)(6) 'is viewed with disfavor
and is rarely granted.'" Collins, 224 F.3d at 498 (quoting Kaiser Aluminum &
v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982)).
IV.

DISCUSSION AND ANALYSIS
The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State.

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Chern. Sales

U. S. Const. Amend. XI. The amendment recognizes that each State is a sovereign entity in our
federal system. Seminole Tribe of Fla. v. Fla., 116 S. Ct. 1114, 1122 (1996). As such, a State is
immune from suit in federal court regardless of whether the suit is based on diversity or federal
question jurisdiction and regardless of whether the suit is filed against the State by one of its own
citizens or by a citizen of another State. Atascadero State Hosp. v. Scanlon, 105 S. Ct. 3142,
3145 (1985); see also Seminole Tribe, 116 S. Ct. at 1122.
Sovereign immunity, however, is not absolute. Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 119 S. Ct. 2219, 2223 (1999). Under the Eleventh
Amendment, a State may be sued in federal court if the State expressly waives its sovereign
immunity, its immunity is properly abrogated by Congress pursuant to § 5 of the Fourteenth
Amendment, or the suit falls within the exception recognized for certain suits seeking declaratory
and injunctive relief against state officers in their individual capacities. Atascadero, 105 S. Ct. at
3145; Ex Parte Young, 28 S. Ct. 441, 454 (1908); Ysleta del Sur Pueblo v. Laney, 199 F.3d 281,
285 (5th Cir. 2000). "[B]ecause

the Eleventh Amendment implicates the fundamental

constitutional balance between the Federal Government and the States, (the Supreme Court]
consistently has held that these exceptions apply only when certain specific conditions are met."
Atascadero, 105 S. Ct. at 3145-46.
V.

CONCLUSION
The plaintiff does not dispute that UT-MDA is an arm of the state of Texas and that, as

such, it enjoys sovereign immunity under the Eleventh Amendment. Nor does the plaintiff argue
that the ground for terminating him was unreasonable. Simply, he argues that the process for
terminating him was infirmed and failed to assure him the essential requirements of “due
process”, i.e., notice and an opportunity to respond in person prior to termination.

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The evidence shows that the plaintiff received notice and an opportunity to respond. The
fact that he disagrees with UT-MDA manual on how that notice and hearing is conducted does
not create a justiciable cause of action. A good and meritorious basis for termination is stated
and not refuted by the plaintiff. Therefore, no plausible “due process” claim is asserted. Under
the circumstances, this Court lacks subject matter jurisdiction.

Stockman v. Fed. Election

Comm’n, 138 F.3d 144, 151 (5th Cir. 1998).
The law basis for the plaintiff’s breach of contract claim is 42 U.S.C. § 1983. Section
1983, does not apply to Texas except where sovereign immunity is waived. Statter v. Univ. of
Tex. at San Antonio, 508 F.3d 812, 821 (5th Cir. 2007). It is undisputed that the state of Texas
has not waived immunity. Therefore, the plaintiff’s breach of contract claim against UT-MDA is
barred.
The plaintiff’s claim for injunctive relief also fails. In order to enjoin conduct, a specific
person or capacity must be asserted. Not only do the pleadings fail in this respect, but because
the plaintiff has already been terminated, there is no basis for prospective relief.
Based on the foregoing discussion and reasoning, the Court determines that UT-MDA’s
motion to dismiss should be granted.
It is so Ordered.
SIGNED on this 30th day of May, 2018.
___________________________________
Kenneth M. Hoyt
United States District Judge

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