Patton v. Texas Woman's University et al

Filing 29

MEMORANDUM OPINION AND ORDER. Defendants motion for summary judgment 17 should be GRANTED as to Plaintiffs claims under 42 U.S.C. § 1983 (Section 1983) and DENIED AS MOOT as to Plaintiffs claims under the Texas Tort Claims Act (the TTCA). Pl aintiffs claims under the Fourth and Fourteenth Amendments are DISMISSED WITH PREJUDICE. The Court declines to exercise supplemental jurisdiction over Plaintiffs claims under the TTCA, and Plaintiffs TTCA claims are REMANDED to the 333rd District Court of Harris County,Texas. (Signed by Judge George C Hanks, Jr) Parties notified.(bthomas, 4)

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United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Linda Patton,
Plaintiff,
VS.
Texas Woman’s University-Houston,
Carine M. Feyten, Rheatte Solomon,
Ainslie Nibert, Anita Hufft, and
Carolyn Kapinus,
Defendants.

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January 18, 2023
Nathan Ochsner, Clerk

CIVIL ACTION NO. 4:21-CV-0011

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants Texas Woman’s University—Houston
(“TWU”), Carine M. Feyten, Rheatte Solomon, Ainslie Nibert, Anita Hufft, and Carolyn
Kapinus’ Motion for Summary Judgment. (Dkt. 21). After carefully reviewing the motion,
response, replies, summary judgment record as a whole, and the applicable law, the Court
finds that Defendants’ motion should be GRANTED as to Plaintiff’s claims under 42
U.S.C. § 1983 (“Section 1983”) and DENIED AS MOOT as to Plaintiffs’ claims under
the Texas Tort Claims Act (“the TTCA”). Plaintiff’s claims under the Fourth and
Fourteenth Amendments are DISMISSED WITH PREJUDICE. The Court declines to

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exercise supplemental jurisdiction over Plaintiff’s claims under the TTCA, and Plaintiff’s
TTCA claims are REMANDED to the 333rd District Court of Harris County, Texas.1
FACTUAL BACKGROUND
Plaintiff Linda Patton was a nursing student at TWU for a little over a year. After
receiving a poor grade on an exam in her Adult Gerontology Health Nursing III class,
Patton requested an individual exam review. The review session was attended by Patton;
Solomon, the professor of the course; and Nibert, the Associate Dean for the Houston
campus of TWU’s school of nursing. The review session, acrimonious from the start,
devolved into a physical altercation between Patton and Nibert. Nibert received medical
treatment for her injuries following the altercation.
Following a hearing that Patton did not attend, TWU issued Patton a two-year
suspension from the school. Patton was charged with simple assault by the Harris County
District Attorney’s Office; those charges were eventually dismissed. Patton filed this
lawsuit in Texas state court, alleging that (1) Nibert and Solomon violated her Fourth and
Fourteenth Amendment rights against unlawful search, seizure, and detention and assaulted
her, and (2) TWU violated her Fourth and Fourteenth Amendment rights2 by denying her
due process, failing to properly train its employees and ratifying the unconstitutional

1

The state-court case is cause number 20-77063 in the 333rd District Court of Harris County,
Texas.
2
Patton also listed a First Amendment retaliation claim against TWU, but only listed the numbers
99 and 100 under the heading of that claim. (Dkt. 16 at 54).
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conduct of these employees.3 Defendants moved for summary judgment after the close of
discovery.
LEGAL STANDARD
Federal Rule of Civil Procedure 56(a)
Summary judgment is proper when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
dispute about a material fact is “genuine” if the evidence, taken as a whole, could lead a
rational trier of fact to find for the nonmoving party. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Summary judgment reinforces the purpose
of the Rules, to achieve the just, speedy, and inexpensive determination of actions, and,
when appropriate, affords a merciful end to litigation that would otherwise be lengthy and
expensive.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1197 (5th Cir. 1986).
A summary judgment movant who does not bear the burden of persuasion at trial
can satisfy its initial burden on the motion by pointing to the non-movant’s lack of evidence
to support an essential element of its claim or defense. See Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). If the movant carries that initial burden, the burden shifts to the party
opposing the motion to present competent summary judgment evidence showing the
existence of a genuine fact dispute. See Matsushita, 475 U.S. at 586-87. “[T]he nonmoving
3

Although Patton sued Feyten, Hufft, and Kapinus, those Defendants were otherwise unmentioned
in Patton’s state-court petition. (Dkt. 1-3). In her response to Defendants’ Motion for Summary
Judgment, Patton claims to have “dismissed all claims against all other individuals and only has
claims only [sic] remaining against TWC, Nibert, and Solomon remaining [sic].” (Dkt. 25 at 4).
Based on these representations, for this additional reason Feyten, Hufft, and Kapinus, are entitled
to be dismissed as parties to this action.
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party cannot survive a summary judgment motion by resting on the mere allegations of
[her] pleadings.” Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010). Rather, the
nonmoving party must “go beyond the pleadings” and submit competent summary
judgment evidence “showing that there is a genuine issue for trial.” Adams v. Travelers
Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006) (internal quotation marks and
citation omitted). See also Matsushita, 475 U.S. at 586 (To avoid summary judgment, the
non-movant must “do more than simply show that there is some metaphysical doubt as to
the material facts.”).
Conclusory allegations and unsubstantiated assertions do not satisfy the
nonmovant’s summary judgment burden. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994). “In assessing whether genuine disputes of material fact exist, the court may
not undertake to evaluate the credibility of witnesses, weigh the evidence, or resolve factual
disputes.” Matter of Green, 968 F.3d 516, 520 (5th Cir. 2020) (internal quotation marks
and citation omitted). The court “must instead view all facts in favor of the non-moving
party,” and draw all reasonable inferences in the non-movant’s favor. Id.
42 U.S.C. § 1983
42 U.S.C. § 1983 provides a private right of action for the deprivation of rights,
privileges, and immunities secured by the Constitution or laws of the United States. Section
1983 states in relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
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Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely
provides ‘a method for vindicating federal rights elsewhere conferred.”’ Graham v.
Connor, 490 U.S. 386 (1989) (quoting Baker v. McCollan, 443 U.S. 137 (1979)). To
establish § 1983 liability, plaintiff must prove that she suffered “(1) a deprivation of a right
secured by federal law (2) that occurred under color of state law, and (3) was caused by a
state actor.” Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004) (citing Bush v.
Viterna, 795 F.2d 1203, 1209 (5th Cir. 1986)). Plaintiff must also show that the
constitutional or statutory deprivation she suffered was intentional or due to deliberate
indifference and not the result of mere negligence. Id. (citing Baker, 99 S. Ct. at 2695).
Qualified Immunity
The doctrine of qualified immunity protects government officers from civil liability
in their individual capacities if their conduct does not violate clearly established federal
statutory or constitutional law of which a reasonable person would have known. Kisela v.
Hughes, 138 S. Ct. 1148, 1152 (2018). Once raised as a defense, the plaintiff has the burden
to demonstrate that qualified immunity should be pierced. Brown v. Callahan, 623 F.3d
249, 253 (5th Cir. 2010). This inquiry requires a two-prong analysis, in which the court
determines (1) whether the official violated a statutory or constitutional right, and (2)
whether the unlawfulness of the official’s conduct was “clearly established” at that time.
District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018); Ashcroft v. al-Kidd, 563 U.S.
731, 742 (2011).

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A right is “clearly established” only where pre-existing law “dictate[s], that is truly
compel[s] (not just suggest[s] or allow[s] or raise[s] a question about), the conclusion for
every like-situated, reasonable government agent that what the defendant is doing violates
federal law in these circumstances.” Sama v. Hannigan, 669 F.3d 585, 591 (5th Cir. 2012).
Even if a defendant’s conduct violates a plaintiff’s constitutional rights, the defendant is
entitled to qualified immunity unless “all reasonable officials in the defendant’s
circumstances would have then known that the defendant’s conduct violated the plaintiff’s
rights” Carroll v. Ellington, 800 F. 3d 154, 169 (5th Cir. 2015).
ANALYSIS
TWU
Defendants argue that all of Patton’s claims against TWU are barred by sovereign
immunity. (Dkt. 17 at 13-14). Alternatively, Defendants argue that TWU cannot be sued
under Section 1983 because TWU is not a “person” under Section 1983. In response, Patton
attempts to introduce a disability discrimination claim under the Americans with
Disabilities Act (“the ADA”) against TWU, a claim that was not raised in her initial
petition.
While the Court agrees with Defendants that summary judgment is warranted on
Patton’s claims against TWU, the Court disagrees with Defendants’ primary argument for
summary judgment (i.e., TWU’s sovereign immunity from suit). TWU waived its
immunity from suit when it removed Patton’s case to federal court. See Meyers ex rel.
Benzing v. Texas, 410 F.3d 236, 255 (5th Cir. 2005) (“[W]hen Texas removed this case to

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federal court it voluntarily invoked the jurisdiction of the federal courts and waived its
immunity from suit in federal court.”).4
The Court agrees with Defendants, however, that summary judgment is warranted
for the claims against TWU—all of which brought under Section 1983—because “state
universities as arms of the state are not ‘persons’ under [Section] 1983.” Stotter v. Univ. of
Texas at San Antonio, 508 F.3d 812, 821 (5th Cir. 2007).5 Thus, Sutton’s Section 1983
claims against TWU are “invalid.” Id.
The Individual Defendants
Defendants argue that summary judgment is warranted for the claims against
Solomon, Nibert, Hufft, Feyten, and Kapinus (“the individual defendants”) because (1) the
individual defendants are entitled to qualified immunity from Patton’s constitutional
claims, and (2) Solomon and Nibert are entitled to sovereign immunity from Patton’s
assault claim under the Texas Tort Claims Act (“TTCA”). (Dkt. 17 at 15-21). In response,
Patton argues—without citing evidence 6 —that Solomon and Nibert are not entitled to

4

In Meyers, the Fifth Circuit held that question of whether Texas retained a separate immunity
from liability after removing a suit to federal court “must be decided according to that state’s
law.” 410 F.3d at 255. The Court declines to engage in this analysis in light of its dismissal of
Patton’s constitutional claims against TWU on other grounds.
5
Patton argues that TWU is subject to Monell liability. (Dkt. 1-3 at 17-18). In Monell, the
Supreme Court held that certain “local governing bodies” are “person[s]” that can be sued under
Section 1983. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978).
Under Fifth Circuit precedent, state universities do not fall within Monell’s ambit. Stotter, 508
F.3d at 821.
6
In the section of her response to Defendants’ motion for summary judgment that addresses
Solomon and Nibert’s qualified immunity from suit, Patton cites only the deposition testimony of
Donna Frazier that was obtained in connection with Patton’s criminal case. (Dkt. 25 at 8). The
Court agrees with Defendants that Frazier’s deposition is not competent summary judgment
evidence in this matter. Fed. R. Civ. P. 32(a)(8). “Rule 56 does not impose upon the district court

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qualified immunity on the constitutional claims against them. Patton did not respond to
Defendants’ argument regarding Patton’s assault claim.
As an initial matter, the Court agrees with Defendants that Hufft, Feyten, and
Kapinus are entitled to qualified immunity due to Patton having failed to articulate any
claims against them in her state-court petition. (Dkt. 1-3). The Court further agrees that
Solomon and Nibert are entitled to qualified immunity due to Patton having failed to meet
her summary judgment burden of demonstrating that Solomon and Nibert (1) violated a
statutory or constitutional right, or (2) that the unlawfulness of Solomon and Nibert’s
conduct was clearly established at the time of the alleged violation. See District of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018).
Patton claims that Nibert and Solomon “unlawfully and intentionally gave false and
misleading information to the Houston Police Department detective . . . to obtain an arrest
warrant which resulted in the arrest of Ms. Patton.” (Dkt. 1-3 at 13). Patton further claims
that Nibert and Solomon “caused the illegal seizure and false arrest of Ms. Patton.” (Dkt.
1-3 at 15). Although Patton’s claims against Nibert and Solomon are listed under the
heading “Fourteenth and Fourth Amendments: Due Process, Unlawful Search, Seizure, and
Detention,” (Dkt. 1-3 at 13), Patton raises no due process or unlawful search violations
against either Defendant.

a duty to sift through the record in search of evidence to support a party's opposition to summary
judgment.” Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 916 (5th Cir. 1992), opinion corrected
(Mar. 26, 1992).
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The Court finds that Patton has failed to allege a colorable constitutional or statutory
violation on the part of Nibert and Solomon. As university employees who merely gave
statements to law enforcement officials during a criminal investigation, Nibert and
Solomon cannot be held responsible for the alleged “illegal seizure” and “false arrest” of
Patton. See Kerr v. Lyford, 171 F.3d 330, 339 (5th Cir. 1999), abrogated on other grounds
by Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003) (“As a matter of law, [the special
prosecutor and assist district attorney’s] intervening, independent actions sever [state
employees who give statements to law enforcement’s] responsibility for the [plaintiff’s]
alleged unreasonable seizure, false arrest, and false imprisonment.”).
Furthermore, Patton has cited no analogous cases to support her argument that the
alleged unlawfulness of Solomon and Nibert’s conduct was clearly established. When
attempting to show that a right was clearly established at the time of the challenged
conduct, “[i]t is the plaintiff’s burden to find a case in his favor that does not define the law
at a high level of generality.” Vann v. City of Southaven, Mississippi, 884 F.3d 307, 310
(5th Cir. 2018) (quotation marks omitted) (“Plaintiff . . . cited nary a pre-existing or
precedential case. That alone dooms his case here.”). The inquiry “must be undertaken in
light of the specific context of the particular case, not as a broad general proposition.”
Baldwin v. Dorsey, 964 F.3d 320, 326 (5th Cir. 2020) (brackets and ellipsis omitted).
“Although qualified immunity does not require a case in point, existing precedent must
have placed the statutory or constitutional question beyond debate[,]” such that “every
reasonable official would understand that what she is doing violates that right.” Id.
(brackets and quotation marks omitted).
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Having found that the individual defendants are entitled to qualified immunity for
any alleged constitutional or statutory claims against them, all that remains is Patton’s
assault claims against Solomon and Nibert under the TTCA.7 For the reasons discussed
below, the Court will decline to exercise supplemental jurisdiction over Patton’s TTCA
claims and will deny Defendants’ motion for summary judgment on those claims as moot.
SUPPLEMENTAL JURISDICTION
Federal district courts have the discretion to decline to exercise supplemental
jurisdiction over state-law claims; that discretion is guided by the statutory factors set forth
in 28 U.S.C. § 1367(c) and the common-law factors of judicial economy, convenience,
fairness, and comity. Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir. 2008).
The factors listed in 28 U.S.C. § 1367(c) are:
(1) the claim raises a novel or complex issue of State law;
(2) the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction;
(3) the district court has dismissed all claims over which it has original
jurisdiction; or
(4) in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.
“These interests are to be considered on a case-by-case basis, and no single factor
is dispositive.” Mendoza, 532 F.3d at 346. The general rule is that a court should decline

7

In her response to Defendants’ Motion for Summary Judgment, Patton attempts to “dismiss[] all
state law tort claims against all defendants, not including state law claims against Nibert.” (Dkt.
25 at 7). Patton cannot dismiss her assault claim against Solomon in a response to a motion for
summary judgment.
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to exercise jurisdiction over remaining state-law claims when all federal-law claims are
eliminated before trial. Brookshire Bros. Holding, Inc. v. Dayco Products, Inc., 554 F.3d
595, 602 (5th Cir. 2009).
Having dismissed all claims over which it has original jurisdiction, the Court will
follow the general rule and decline to exercise supplemental jurisdiction over Patton’s
TTCA claims. Thus, Patton’s TTCA claims are remanded to state court, where this case
originated.
CONCLUSION
Defendants’ motion for summary judgment should be GRANTED as to Plaintiff’s
claims under 42 U.S.C. § 1983 (“Section 1983”) and DENIED AS MOOT as to Plaintiffs’
claims under the Texas Tort Claims Act (“the TTCA”). Plaintiff’s claims under the Fourth
and Fourteenth Amendments are DISMISSED WITH PREJUDICE. The Court declines
to exercise supplemental jurisdiction over Plaintiff’s claims under the TTCA, and
Plaintiff’s TTCA claims are REMANDED to the 333rd District Court of Harris County,
Texas.
SIGNED at Houston, Texas on January 18, 2023.
_______________________________
GEORGE C. HANKS, JR.
UNITED STATES DISTRICT JUDGE

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