Thongsonlone v. Office of Attorney General for the State of Texas

Filing 13

MEMORANDUM AND ORDER (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BOUNTHAVY THONGSONLONE,
Plaintiff,
v.
OFFICE OF THE ATTORNEY
GENERAL FOR THE STATE OF
TEXAS,
Defendant.

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April 20, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 4:18-cv-0476

MEMORANDUM AND ORDER
Before the Court in this compensation denial case is Defendant Office of the
Attorney General of Texas’s Motion to Dismiss Plaintiff Bounthavy Thongsonlone’s
Amended Complaint (the “Motion”) [Doc. # 9]. Plaintiff, who is proceeding in this
case pro se and who has been granted leave to proceed in forma pauperis, filed a
response, to which Defendant replied.

See Plaintiff’s Response [Doc. # 9];

Defendant’s Reply in Support of the Motion [Doc. # 12]. The Motion is now ripe for
decision. Having considered the Motion, the parties’ briefing, applicable legal
authorities, and all appropriate matters of record, the Court concludes that the Motion
should be granted.
Bounthavy Thongsonlone filed this case on February 15, 2018, alleging
“possibl[e] racism.” Complaint [Doc. # 1]. On February 27, 2018, the Court issued
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a Memorandum and Order (the “Order”) [Doc. # 4] in which the Court concluded that
Plaintiff’s Complaint, on its face, failed to allege adequately that the Court has subject
matter jurisdiction over his unexplained racism claims. By the Order, the Court
instructed Plaintiff to amend his Complaint on or before March 26, 2018 so that it
“complies with the requirements of Rule 8(a) [of the Federal Rules of Civil Procedure]
as set forth in this opinion.” Id. at 4.
On March 19, Plaintiff filed his Amended Complaint. Plaintiff’s handwritten,
single-page Amended Complaint states in its entirety “The office of the Attorney
General keeps Denied my Crime Victims Compensation, they made it like it was my
fault, that I was the victim. I can’t think of any possibly reason, but to think a
possibly racism. So I would like to sue. I was harassed, theat, and later mugged of
my groceries.” Amended Complaint [Doc. # 7] (errors in original). Broadly
construing Plaintiff’s Amended Complaint, Plaintiff alleges that he was the victim of
threats, harassment, and a mugging, and that Defendant improperly denied him
compensation under the Texas Crime Victim’s Compensation Act (the “Act”).
In the Motion, Defendant moves to dismiss Plaintiff’s Amended Complaint in
its entirety under Federal Rule of Civil Procedure 12(b)(1), which authorizes a federal
court to dismiss a claim for lack of subject matter jurisdiction.1 “‘A case is properly

1

Defendant also has moved to dismiss the Amended Complaint under Rule 12(b)(6)
(continued...)

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dismissed for lack of subject matter jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case.’” Smith v. Reg’ Transit Auth., 756 F.3d
340, 347 (5th Cir. 2014) (quoting Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th
Cir. 2005)). When there is a challenge to the court’s subject matter jurisdiction, the
party asserting jurisdiction bears the burden of establishing jurisdiction exists.
Alabama–Coushatta Tribe of Tex. v. United States, 757 F.3d 484, 487 (5th Cir. 2014);
Gilbert v. Donahoe, 751 F.3d 303, 307 (5th Cir. 2014). As an agent of the state of
Texas, Defendant is entitled to Eleventh Amendment immunity absent waiver or
abrogation. See Johnson v. Prairie View A & M Univ., 587 F. App’x. 213, 214 (5th
Cir. 2014) (per curiam) (and cases cited therein); Lowery v. Univ. of Hous.-Clear
Lake, 82 F. Supp. 2d 689, 693 (S.D. Tex.2000).
Pursuant to Chapter 56 of the Texas Code of Criminal Procedure, the Texas
Legislature has created a limited waiver of immunity with respect to the Act by
permitting lawsuits in certain Texas state courts to challenge benefit denials. TEX.
CODE CRIM. PROC. ART. 56.48(a). This limited waiver does not extend to suits in
federal court. “Texas’ waiver of sovereign immunity in its own courts, however, is

1

(...continued)
of the Federal Rules of Civil Procedure. Because the Court concludes it lacks subject
matter jurisdiction over Plaintiff’s claims, it does not reach Defendant’s Rule 12(b)(6)
arguments.

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not a waiver of its Eleventh Amendment immunity in federal courts.” Hernandez v.
Texas Dep’t of Human Servs., 91 F. App’x 934, 935 (5th Cir. 2004) (citing
Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985)).
“It has long been settled that a state’s waiver of its Eleventh Amendment
immunity must be unequivocally expressed.” Perez v. Region 20 Educ. Serv. Ctr.,
307 F.3d 318, 332 (5th Cir. 2002). Plaintiff cites no provision, and the Court is aware
of none, that constitutes “a clear and unequivocal waiver of immunity with respect”
to the Act such that a claim may be pursued in federal court. Id. Accordingly,
Plaintiff’s claims against Defendant in this case for improper denial of compensation
under the Act are barred by sovereign immunity, which deprives the Court of subject
matter jurisdiction over this dispute.2

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Even if the State of Texas permitted Plaintiff’s claims against it to be asserted in
federal court, which it does not, Plaintiff’s lawsuit still must be dismissed because he
does not allege that he has complied with the Act’s prerequisites for filing suit.
“Statutory prerequisites to a suit, including the provision of notice, are jurisdictional
requirements in all suits against a governmental entity.” TEX. GOV’T CODE § 311.034.
Article 56.48(a) of the Texas Code of Criminal Procedure requires a plaintiff to
provide Defendant with a notice of dissatisfaction within 40 days of Defendant’s final
decision regarding compensation before he may bring suit in Texas state court
challenging the decision. TEX. CODE CRIM. PROC. ART. 56.48(a). Plaintiff has not
alleged that he has complied with the statutory prerequisites for filing suit under the
Act, and, thus, he has not properly alleged that any court, state or federal, has
jurisdiction to hear his claims. For additional information on the procedure to
challenge Defendant’s denial of compensation under the Act, Plaintiff is directed to:
https://www.texasattorneygeneral.gov/cvs/crime-victims-compensation-administra
tive-appeals-process.

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In addition, the Court, which has limited jurisdiction,3 separately lacks
jurisdiction over Plaintiff’s claims because they fail to invoke either the Court’s
“federal question”4 or “diversity”5 jurisdiction. Plaintiff, a Texas resident, is asserting
claims under the Act, a state law, against an instrumentality of the State of Texas. On
their face, Plaintiff’s claims fall outside the scope of that Court’s limited jurisdiction.
Consequently, Plaintiff’s claims in this lawsuit must be dismissed, even in the absence
of Defendant’s viable sovereign immunity defense.
Therefore, it is
ORDERED that Defendant’s Motion [Doc. # 9] is GRANTED. This case is
DISMISSED WITHOUT PREJUDICE. The Court will issue a separate final
judgment.

3

See Rasul v. Bush, 542 U.S. 466, 489 (2004) (“Federal courts are courts of limited
jurisdiction.”).

4

To invoke a court’s federal question jurisdiction, a plaintiff’s complaint must establish
on its face that the case arises under federal law. Howery v. Allstate Ins. Co., 243
F.3d 912, 916 (5th Cir.2001).

5

Diversity jurisdiction requires complete diversity among the parties and an amount
in controversy that exceeds $75,000.00. See 28 U.S.C. § 1332; Lincoln Prop. Co. v.
Roche, 546 U.S. 81, 89 (2005). Complete diversity requires that no plaintiff be a
citizen of the same state as any defendant. See Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. 546, 552 (2005).

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SIGNED at Houston, Texas, this 20th day of April, 2018.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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