Banik v. Angel et al

Filing 74

OPINION re: 53 Motion to Dismiss; 62 Motion for Leave to File.(Signed by Judge Micaela Alvarez) Parties notified.(BelindaSaenz, 7)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
BIMAL K. BANIK,
Plaintiff,
VS.
ANGEL TAMEZ, et al,
Defendants.

June 09, 2017
David J. Bradley, Clerk

§
§
§
§ CIVIL ACTION NO. 7:16-CV-00462
§
§
§
§
OPINION

The Court now considers Terence Thompson (“Thompson”), Esmeralda Guerra
(“Guerra”), Martha Cantu (“Cantu”), S.J. Sethi (“Sethi”), Robert Nelsen (“Nelsen”), Havidán
Rodríguez (“Rodríguez”), Guy Bailey (“Bailey”), Marie Mora (“Mora”), Stephen Crown
(“Crown”), Catherine Faver (“Faver”), Paul L. Foster (“Foster”), William Eugene Powell
(“Powell”), R. Steven Hicks (“Hicks”), Ernest Aliseda (“Aliseda”), Alex Cranberg (“Cranberg”),
Wallace Hall, Jr., (“Hall”), Jeffrey Hildebrand (“Hildebrand”), Brenda Pejovich (“Pejovich”),
Robert Stillwell (“Stillwell”), The University of Texas-Pan American (“UTPA”), The University
of Texas Rio Grande Valley (“UTRGV”), and The University of Texas System’s (“UT System”)
(collectively “Defendants”) motion to dismiss on the pleadings.1 The Court also considers Bimal
K. Banik’s (“Plaintiff”) response,2 as well as Plaintiff’s embedded motion for leave to amend any
improperly pled claims.3 After duly considering the record and authorities, the Court GRANTS
in part and DENIES in part Defendants’ dismissal motion and Plaintiff’s embedded motion for
leave to amend as follows.

1

Dkt. No. 53.
Dkt. No. 60.
3
Id. p. 40.
2

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I.

INTRODUCTION

A.

Factual & Procedural Background

As a preliminary matter, the Court must look beyond the pleadings to make sense of this
case, which involves numerous defendants and scores of claims. However, insofar as the Court
looks beyond the pleadings, it does not assume these facts to be true for purposes of its
pleadings-based dismissal analysis. The Court relies solely on 12(b)(6)-pertinent information for
that portion of the opinion.
Plaintiff was a tenured chemistry professor at UTPA.4 One of his chemistry students,
Amanda Ybarra (“Ybarra”), filed a complaint with UTPA on February 1, 2013, alleging that
Plaintiff had made inappropriate comments to her amounting to misconduct.5 Plaintiff allegedly
met with one of his other chemistry students—Angel Tamez (“Tamez”)—on March 22, 2013,
and hatched a scheme to slander Ybarra by getting her classmates to call her a stripper and
pornography star.6 Tamez allegedly recorded the aforementioned scheme on his cellular phone.7
Plaintiff alleges that Tamez’s recording also included conversations between Plaintiff and
someone other than Tamez.8
Tamez then met with Guerra and Cantu to discuss what had happened.9 Guerra was the
Equal Employment Opportunity (“EEO”) officer at UTPA,10 and she began the investigation into
Ybarra’s complaint against Banik.11 Cantu was the UTPA Vice President of Student Affairs.12 It

4

Dkt. No. 1-12 p. 585.
Id. pp. 588–589.
6
Id. p. 594 (“Before the UTPA panel, Tamez stated [Plaintiff] told him Ybarra received a ‘B’ in his class; asked him
to help form a group to speak on BANIK’s behalf “against” UTPA; asked him and other students to make YBARRA
look like a stripper or pornography star.”).
7
See Dkt. 1-11 pp. 301; 475.
8
Dkt. No. 1-12 p. 589.
9
Dkt. No. 1-9 p. 139.
10
Id. p. 135 ¶ 2.
11
Id. p .136 ¶ 5.
12
Id. p. 138.
5

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appears that during the initial meeting, Tamez described his conversation with Plaintiff, but did
not reveal the recording.13 However, Tamez later disclosed the recording to both Guerra and
Cantu.14
Thompson—UTPA’s Chief Legal Officer and Title IX Administrator during this time—15
was Guerra’s supervisor,16 and he took over Guerra’s investigation into Plaintiff in late March of
2013.17 During his investigation, Thompson spoke to Tamez, who again recounted his
conversation with Plaintiff and disclosed the recording.18 At some point during the investigation,
Thompson asked Sethi to transcribe the recording.19 Thompson appears to have issued an official
investigation report on September 25, 2013, finding that Plaintiff had violated federal law and
university policy.20 This was one of a string of events that would lead to Plaintiff’s eventual
termination.
Thompson’s investigation report was forwarded to Rodríguez, UTPA’s Vice President of
Academic Affairs.21 Rodríguez recommended termination to Nelson, then President of UTPA,
who then recommended initiation of termination proceedings against Plaintiff.22 A three-member
tribunal—comprised of faculty members Mora, Crown, and Faver23—was convened from
August 11–13, 2014.24 This proceeding was adversarial and judicial in nature, involving the
submission of evidence, the representation of counsel, and the ability to testify and cross-

13

Id. pp. 136; 139.
Dkt. No. 1-11 p. 150; Dkt. No. 1-9 pp. 136; 139.
15
Dkt. No. 1-9 pp. 130–31 ¶¶ 2–3.
16
Id. p. 131 ¶ 3 (“I also supervised the Title IX coordinator, who was our equal opportunity officer . . . .”).
17
Id. p. 132 ¶ 6.
18
Id. p. 131 ¶ 5.
19
Id. p. 141 ¶ 4.
20
Id. p. 132 ¶ 6.
21
Id. p. 115.
22
See id. p. 116; Dkt. No. 1-12 p. 610; Dkt. No. 60 pp. 27–28.
23
Dkt. No. 1-12 p. 594
24
Id. p. 593.
14

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examine adverse witnesses.25 Ultimately, the tribunal unanimously recommended termination
based upon their findings.26 The next step of the process was to have the UTPA President
recommend termination to the UT Board of Regents (“Regents”). Nelsen did just this on
September 15, 2014.27 Though he had ceased being UTPA’s President just thirteen days earlier,
he allegedly was delegated the power to issue this recommendation to the Regents by
Rodríguez—UTPA’s President ad interim at that time.28
The Regents (Defendants Foster, Powell, Hicks, Aliseda, Cranberg, Hall, Hildebrand,
Pejovich, and Stillwell) then adopted Nelsen’s recommendation, and on November 6, 2014, they
voted to terminate Plaintiff.29 Plaintiff was notified of his termination on November 14, 2014.30
Independently, UTPA was abolished and UTRGV was created by legislative decree. 31 However,
Plaintiff’s termination did not result from UTPA’s abolition.32 Plaintiff applied for “Phase I”
hiring at UTRGV before he learned of his termination,33 but was denied on the grounds that he
had been subject to disciplinary action within the past seven years.34
Plaintiff sued Tamez in state court on November 15, 2013,35 and eventually added
twenty-three more Defendants over the course of ten amended petitions.36 Defendants removed
the case on August 8, 2016.37 This Court dismissed Ybarra from the case on November 1,

25

See Dkt No. 53-1. (Regents Rule 31008 governed the tribunal hearing, as well as other events leading to
Plaintiff’s termination).
26
Dkt. No. 1-2 p. 12.
27
Id. p. 144 ¶ 6.
28
Id. ¶ 5.
29
Id. p. 118.
30
Id.
31
Dkt. No. 1-9 p. 117.
32
Id. pp. 117–118 (indicating Plaintiff was notified of his termination in 2014, but UTPA was not abolished until
2015).
33
Dkt. No. 1-12 p. 595.
34
Id. p. 596.
35
Dkt. No. 1-6 p. 1.
36
See generally Dkt. Nos. 1-6 – 1-12.
37
Dkt. No. 1.

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2016,38 and all other remaining Defendants except Tamez filed the instant motion to dismiss on
March 7, 2017.39 The Court granted Plaintiff an extension of time to respond, which he did on
April 11, 2017, embedding a motion for leave to amend any pleading deficiencies in his
complaint.40 The instant motions are thus ripe for review.
B.

Housekeeping Matters

Before laying out the legal standard and launching into the legal analysis of the instant
motions, there are a few housekeeping items that must be attended to. First, the Court observes
that Defendants have attached two documents to its dismissal motion that are not otherwise
found in the pleadings: Regent’s Rules 31007 and 31008.41 Generally, a court is not allowed to
look beyond the pleadings in order to resolve Federal Rule of Civil Procedure (“Rule”) 12(b)(6)
or 12(c) motions.42 The “pleadings” include the complaint and answer.43 Rule 12(d) requires
courts to “convert” Rule 12(b)(6) and 12(c) motions into Rule 56 motions for summary judgment
if “matters outside the pleadings are [1] presented to and [2] not excluded by the court . . . .”44
However, a court may take judicial notice of public documents and consider them in its 12(b)(6)
or 12(c) analysis without converting the motion into a summary judgment motion.45

38

Dkt. No. 24.
Dkt. No. 53.
40
Dkt. No. 60.
41
Dkt. Nos. 53-1; 53-2.
42
See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996) (“[T]he court may not look beyond the pleadings in ruling
on the [12(b)(6)] motion.”); see also Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 440 (5th Cir. 2015) (citing
Rule 12(d) for the proposition that both Rule 12(b)(6) and 12(c) motions must be converted to summary judgment
motions under certain circumstances when evidence outside the pleadings is presented).
43
Bosarge, 796 F.3d at 440 (citing Rule 7(a)).
44
Fed. R. Civ. P. 12(d); Gamel v. Grant Prideco, L.P., 625 Fed. Appx. 690, 693 (5th Cir. 2015).
45
See e.g. Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011) (“Accordingly, we hold that it was appropriate
for the court to take judicial notice, under Rule 12(b)(6), of the PMA the FDA granted to Stryker for marketing its
Trident System.”); Doe v. United States, 2017 WL 1325701, at *5 (5th Cir. 2017), as revised (Apr. 12, 2017) (“In
making this [12(b)(6)] determination, we may consider the complaint, its proper attachments, documents
incorporated into the complaint by reference, and matters of which a court may take judicial notice.”).
39

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Here, Defendants’ attachments, Regent’s Rules 31007 and 31008, are matters of public
record, readily available online,46 whose existence and content cannot reasonably be disputed.
Thus, the Court takes judicial notice of these documents, and proceeds to analyze Defendants’
dismissal motion without converting it into a Rule 56 motion for summary judgment.
Second, Plaintiff incorporates by reference into his tenth amended complaint various
documents attached to previous complaints.47 He does not specify which complaints. The Court
will not go swimming through the two-thousand page state court record to find them, and thus
excludes them in the present motion. The Court is cognizant that substantial discovery has
already taken place in this case, and that the parties are familiar with many facts outside the
pleadings. However, it would be both inappropriate and procedurally awkward to consider
numerous facts and documents outside the pleadings for purposes of the present motion; it is not
a summary judgment motion.
Third, Plaintiff has filed two independent motions for leave to amend. The first motion
for leave is embedded within his response to the instant dismissal motion.48 Entitled “Banik’s
motion for leave to amend pleadings,” the embedded motion states, in part, “[i]f the Court is
inclined to dismiss any portion of [Plaintiff’s] complaint for failure to state a claim, [Plaintiff]
requests leave of court to amend his complaint to cure the alleged pleading deficiencies
identified by Defendants.”49 Plaintiff’s second motion for leave to amend was filed two weeks
later, and attached a proposed amended complaint.50 Because these two motions for leave are
distinct, the Court will address them sequentially and separately, though the Court will also take

46

See http://www.utsystem.edu/board-of-regents/rules/31007-tenure; see also http://www.utsystem.edu/board-ofregents/rules/31008-termination-faculty-member.
47
See e.g., Dkt. No. 1-12 p. 591.
48
Dkt. No. 60 p. 40.
49
Id.
50
Dkt. No. 62.

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a peek into the proposed amended complaint attached to the second motion for leave to assess
futility of amendment of certain claims. In the present order, the Court only addresses the first,
embedded motion for leave.
Administratively speaking, then, the Court first analyzes the sufficiency of Plaintiff’s
factual allegations with regard to each of his claims against each Defendant. Whenever the Court
finds any particular claim to be insufficiently pled, the Court will then determine whether leave
to amend would be appropriate. However, where certain claims are clearly futile for reasons
explained in the sufficiency-of-the-pleadings analysis, the Court will not conduct a full motion
for leave analysis.
II.

LEGAL STANDARDS

A.

Rules 12(b)(6) and 12(c)—Dismissal on the Pleadings

Defendants move for dismissal under Rule 12(b)(6) and Rule 12(c).51 It ultimately does
not matter which is used because the standards governing both are identical.52 To survive a Rule
12(b)(6) motion, the plaintiff must plead “enough facts to state a claim to relief that is plausible
on its face.”53 This does not require detailed factual allegations, but it does require “more than
labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” 54 Courts
regard all such well-pleaded facts as true and view them in the light most favorable to the
plaintiff.55 Considered in that manner, factual allegations must raise a right to relief above the
speculative level.56

51

Dkt. No. 53 p. 1.
Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007).
53
In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 554, 570 (2007), cert. denied, 552 U.S. 1182 (2008) (internal quotations omitted).
54
Twombly, 550 U.S. at 555.
55
Id.
56
In re Katrina Canal, 495 F.3d at 205 (quoting Twombly, 550 U.S. at 555).
52

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Pursuant to Supreme Court precedent,57 courts first disregard from their analysis any
conclusory allegations as not entitled to the assumption of truth.58 Courts then undertake the
“context-specific” task of determining whether the remaining well-pled allegations give rise to
an entitlement of relief to an extent that is plausible, rather than merely possible or conceivable.59
The “plausibility” standard requires the complaint to state “enough facts to raise a reasonable
expectation that discovery will reveal evidence of the necessary claims or elements.” 60 As the
Supreme Court recently clarified, the plausibility standard concerns the factual allegations of a
complaint; the federal pleading rules “do not countenance dismissal of a complaint for imperfect
statement of the legal theory supporting the claim asserted.”61
B.

Rule 15(a)

Plaintiff moves for leave to amend his complaint under Rule 15(a), which provides for
amendment as a matter of course under certain circumstances, and otherwise with the opposing
party’s written consent or court approval.62 Here, the opposing party has not consented and
amendment as a matter of course is not available. Thus, this Court’s approval is required. The
Court is bound to “freely give leave when justice requires,”63 and ought to consider the following
factors: “[1] undue delay, [2] bad faith or dilatory motive on the part of the movant, [3] repeated
failure to cure deficiencies by amendments previously allowed, [4] undue prejudice to the
opposing party by virtue of the allowance of the amendment, [and 5] futility of the

57

556 U.S. 662 (2009).
See id. at 678–79.
59
See id. at 679–80.
60
In re So. Scrap Material Co., 541 F.3d 584, 587 (5th Cir. 2008) (quoting Twombly, 550 U.S. at 556).
61
Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 346–47 (2014).
62
Fed. R. Civ. P. 15 (a)(1)–(2).
63
Fed. R. Civ. P. 15(a)(2).
58

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amendment.”64 Generally, leave should be granted absent any of these warning factors, but
ultimately, whether to grant leave is up to the Court’s discretion.
Here, the Court will address the motion for leave as it pertains to particular claims.
However, it is important to note that this suit was first filed in November 2013 and Plaintiff has
amended ten times already. Certainly, it appears that Plaintiff has not been diligent in insuring
the propriety of his claims, thus demonstrating undue delay and dilatory motive. This is
especially true as there is no explanation given for the delay. Most of the facts which form the
basis for these claims all appear to have come to light at least by the time of Plaintiff’s
termination. Additionally, as early as August 2014, Plaintiff has been on notice that Defendants
take issue with the sufficiency of his pleadings.65
Also, as already noted, Plaintiff does not provide a proposed complaint; rather he only
responsively seeks to “cure the alleged pleading deficiencies identified by Defendants.” In other
words, Plaintiff expects the Court and Defendants to do his work for him; “figure out what is
wrong with my complaint and tell me how to fix it.” As already noted, certain Defendants moved
for dismissal as early as August 2014, and again since then. Plaintiff’s response to date has been
simply to amend; sometimes adding new claims, sometimes new Defendants, and sometimes
neither. Perhaps in some instances it might be appropriate to specifically instruct a plaintiff as to
how to amend, but not so under these circumstances. Nonetheless, the Court further addresses
the motion for leave as it proceeds through the dismissal analysis.

64

Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003) (quoting Foman v. Davis, 371 U.S. 178, 182
(1962)).
65
Guerra, Cantu, UTPA, and UT System filed a motion to dismiss arguing the insufficiency of the pleadings.

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III.

ANALYSIS

The Court analyzes Plaintiff’s claims and Defendants’ arguments sequentially, beginning
with abstract, general observations and defenses, and subsequently moving to more fact-specific,
detail-oriented substantive analysis.
A.

Cantu, Guerra, and Sethi

The Court first observes that Plaintiff has failed to sufficiently plead any claims against
Cantu, Guerra, and Sethi. Plaintiff’s bare-bones allegations against them are as follows:


Tamez told Martha Cantu, a UTPA employee, that he may have
committed a crime.66



Terence Thompson, Esmeralda Guerra, Cantu, and S.J. Sethi solicited
Tamez to disclose the intercepted communication.67



Tamez disclosed the recording to Thompson, Guerra, Cantu, and Sethi.68



Tamez, Thompson, Guerra, Cantu, and Sethi violatied § 16.02 of the
Texas Penal Code.69

Although Plaintiff levies multiple claims against Cantu, Guerra, and Sethi, Plaintiff adds no other
facts as to these three. These aforementioned statements are conclusory and uninformative, and
do not establish that any claims made against Cantu, Guerra, and Sethi are plausible. Thus,
Plaintiff has failed to state any claims against these Defendants.
In light of the fact that all of Plaintiff’s claims derive from the Tamez recording, the
original subject of this suit, and considering that even three years after suit was first filed, the
facts as to these three Defendants are wholly missing from the complaint, the Court DENIES
leave to amend against Cantu, Guerra, and Sethi. The Court finds that there has been undue
delay and dilatory motive—Cantu and Guerra were added in June 2014; Sethi in April 2015;
66

Dkt. No. 1-12 p. 589.
Id.
68
Id.
69
Id.
67

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repeated failure to cure deficiencies—the claims have remained basically the same through
several amendments; and futility of amendment as even the proposed complaint would not
survive dismissal. Thus, the Court DENIES leave to amend as against Cantu, Guerra, and Sethi
and DISMISSES all claims against these Defendants.
B.

Election of Remedies and Defendants Thompson, Rodríguez, and Nelsen70

Plaintiff also brings certain common law and statutory claims against Thompson,
Rodríguez, and Nelsen (among others).71 Defendants contend in the present motion that the
claims against Thomson, Rodríguez, and Nelsen should be dismissed pursuant to Texas Tort
Claims Act (“TCA”) § 101.106(f).72 Section 101.106 is entitled “Election of Remedies,” and §
(f) is ostensibly designed to prevent plaintiffs from circumventing a state’s sovereign immunity
by simply suing the state’s employees for actions taken within the general scope of their job
duties.73
Assuming § 101.106(f) is substantive and applies in federal court—existing case law
suggests it does74—four conditions must be satisfied for dismissal of the individual defendants to
be appropriate. They are as follows:

70

The Court does not address the election of remedies argument with regard to Guerra, Cantu, and Sethi because it
has already dismissed them.
71
Dkt. No. 1-12 pp. 598–99.
72
Dkt. No. 53 p. 7.
73
Section f states:
If a suit is filed against an employee of a governmental unit based on conduct within the general
scope of that employee’s employment and if it could have been brought under this chapter against
the governmental unit, the suit is considered to be against the employee in the employee’s official
capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless
the plaintiff files amended pleadings dismissing the employee and naming the governmental unit
as defendant on or before the 30th day after the date the motion is filed.
74

See Bustos v. Martini Club Inc., 599 F.3d 458, 464 (5th Cir. 2010) (treating § 101.106(e), which is substantially
similar, as substantive and appropriate in federal court); see also Aguilar v. Williamson Cty., 2011 WL 13137682, at
*3 n. 3 (W.D. Tex. Dec. 19, 2011) (“The Court is bound to follow Texas substantive laws on the election of
remedies when it comes to state law claims—although the Court is not aware of any Fifth Circuit case holding that
101.106 is substantive rather than procedural, this Court has applied that section in previous cases.”) (citing Smith v.
Quintana, et al., No. A–10–CA–00778–SS, slip op. at 4 (W.D. Tex. July 11, 2011)).

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1.

The Defendant was an employee of a governmental unit,

2.

The claims, if brought against the governmental employer, would fall within the
ambit of the Tort Claims Act,

3.

The claims are based on conduct that was within the general scope of the
employment, and

4.

The Defendant moved for dismissal.75

Section 101.106(f) is an affirmative defense, and thus the burden of proof at trial is on the
defendant to conclusively establish the four elements.76 Here, the first element is easily
established by Plaintiff’s pleading and Defendants have certainly moved for dismissal. Thus, the
Court addresses only the second and third elements.
As to the second element, Plaintiff asserts claims based on Texas Penal Code Art. 18.20
and the Civil Practices and Remedies Code Chapter 123, as well as invasion of privacy and
tortious interference as against these Defendants. Invasion of privacy and tortious interference
claims clearly fall within the TCA.77 As to the Art. 18.20 and Chapter 123 claims, the Court
similarly finds that such actions sound in tort and fall under the TCA. Thus, the second element
is clearly established.
The TCA defines “scope of employment” thus: “Scope of employment means [1] the
performance for a governmental unit of [2] the duties of an employee’s office or employment and
includes being in or about the performance of a task lawfully assigned to an employee by

75

Skapek v. Perkins, 2017 WL 655950, at *2 (Tex. App.—Dallas Feb. 17, 2017, pet. filed).
Id. (“A defendant moving for summary judgment on the affirmative defense of governmental immunity under
section 101.106(f) must conclusively establish that . . . [listing the four essential elements]”).
77
See Bustos, 599 F.3d at 458 (Invasion of privacy claim properly dismissed based on TCA); Muthukumar v. Kiel,
478 Fed. Appx. 156, 159 (5th Cir. 2012) (Affirming dismissal of tortious interference claim based on TCPC
101.106(f)).
76

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competent authority.”78 There is no requirement that such duties be set out in a job description,
rather, it is sufficient if the employee “is discharging the duties generally assigned to [him].”79
Plaintiff’s tenth amended petition describes Thompson as a licensed attorney and
UTPA’s Chief Legal Officer when he investigated Plaintiff.80 It is also clear from Plaintiff’s Due
Process claim against Thompson that Thompson was fulfilling the duties of the “Chief Academic
Officer” as listed in Regent’s Rule 31008.81 Additionally, Defendants’ answer identifies
Thompson as UTPA’s Chief Legal Officer.82 Plaintiff’s pleading also establishes that Rodríguez
served in various capacities, including as President of UTPA and UTRGV, at all times relevant
to these claims. Generally, Rodríguez is alleged to have been involved in the termination
proceeding by way of investigating, as a witness, and by making the recommendation for
termination. As to both the Thompson and Rodriguez, the Court finds that each was acting
within the scope of his employment at UTPA.
As to Nelsen, the only claim asserted against him is for tortious interference. Although
Plaintiff’s pleading establishes that Nelsen was President of UTPA when much of this began, the
pleadings also allege that Nelsen’s employment ended on September 3, 2014. Thus, the
pleadings do not establish the third element as to Nelsen.
Based upon the election of remedies provision and the TCA, the Court hereby
DISMISSES Plaintiff’s Art 18.20, Chapter 123, and invasion of privacy claims against
Thompson and Rodríguez. As to Nelsen, the pleadings do not establish the he was acting within
the scope of his employment when he recommended termination. Thus, the TCA election of
remedies provision does not warrant dismissal of this claim against Nelsen.
78

Tex. Civ. Prac. & Rem. Code Ann. § 101.001(5) (West).
Anderson v Bessman, 365 S.W.3d 119, 125 (Tex. App.—Houston 2011).
80
Dkt. No. 1-12 p. 621.
81
See Dkt. No. 53-1 p. 5 § 6.1.
82
Dkt. No. 1-12 p. 631 ¶¶ 8 & 10.
79

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C.

Absolute Immunity of Mora, Crown, & Faver
i.

Legal Standard

Defendants contend that any federal claims brought against Mora, Crown, and Faver (i.e.
the tribunal members) are cut off by absolute immunity.83 Absolute immunity is a question of
law,84 and “denies a person whose federal rights have been violated by a government official
from obtaining any type of remedy, regardless of the conduct.”85 For this reason, the United
States Supreme Court has applied absolute immunity “quite sparing[ly].” 86 It is well established
that absolute immunity applies to judges,87 specifically to insulate them from intimidation which
might taint their judgment.88 For the same reason, absolute immunity has been extended to
governmental employees with quasi-judicial functions.89 Absolute immunity is only available to
shield governmental employees sued in their individual capacities, but not in their official
capacities.90
Absolute immunity based upon quasi-judicial function is a two-step inquiry in the Fifth
Circuit. The predicate question is whether the defendant’s conduct and relationship to the
claimant is judicial in nature.91 This question turns upon the function/role of the defendant, not

83

Id. p. 34.
Orellana v. Kyle, 65 F.3d 29, 33 (5th Cir. 1995).
85
Beck v. Tex. State Bd. of Dental Examiners, 204 F.3d 629, 634 (5th Cir. 2000).
86
O'Neal v. Miss. Bd. of Nursing, 113 F.3d 62, 65 (5th Cir. 1997) (quoting Forrester v. White, 484 U.S. 219, 224
(1988)).
87
Id.
88
See Butz v. Economou, 438 U.S. 478, 509 n. 36 (1978) (“It is a judge’s duty to decide all cases within his
jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the
litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound
him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to
principled and fearless decision-making but to intimidation.”).
89
Id. p. 511.
90
Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478, 483 (5th Cir. 2000).
91
Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 224 (5th Cir. 1999) (“We examine the character of a
governmental officer’s duties and the relationship to the parties when determining whether he is entitled to absolute
immunity.”).
84

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their title.92 If so, then “we must weigh the costs and benefits of denying or affording absolute
immunity.”93 The Fifth Circuit has articulated six, non-exclusive considerations for courts to
countenance when answering these two questions:
1) the need to assure that the individual can perform his functions without
harassment or intimidation;
2) the presence of safeguards that reduce the need for private damages actions as a
means of controlling unconstitutional conduct;
3) insulation from political influence;
4) the importance of precedent;
5) the adversarial nature of the process; and
6) the correctability of error on appeal.94
Due to the thorny, fact-specific nature of these factors, the Fifth Circuit has noted that the Butz
analysis is “less than exact.”95
ii.

Application

The Court first observes that Plaintiff sues Mora, Crown, and Faver in their individual
capacities only.96 Thus, absolute immunity could potentially cover Mora, Crown, and Faver.97
The only remaining question is whether they are in fact shielded by absolute immunity. The
Court now turns to its analysis in light of each Butz factor, and concludes that Mora, Crown, and
Faver are entitled to absolute immunity.
Need to assure that the individual can perform his functions without harassment or
intimidation: This factor weighs in favor of absolute immunity. The Tribunal is often tasked with
92

Thomas v. City of Dallase, 175 F.3d 358, 362 (5th Cir. 1999).
Id.
94
Id.
95
Id.
96
Dkt. No. 1-12 p. 584.
97
See Turner, 229 F.3d at 483 (noting that absolute immunity in not available to state actors sued in their official
capacities).
93

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making findings against and recommending termination of faculty members.98 Faculty have
more to lose than their job; their reputation often hangs in the balance because termination
proceedings inevitably involve allegations of serious misconduct. The tribunal’s findings and
recommendation are thus unavoidably and inherently controversial, by nature inviting litigation
from aggrieved parties. The existence of the present case is evidence of this fact.
Presence of safeguards that reduce the need for private damages actions as a means of
controlling unconstitutional conduct: This factor weighs heavily in favor of absolute immunity,
and ties in closely with the fifth Butz factor—adversarial nature of the process. Here, there are a
number of safeguards. An accused is entitled to notice of the charges, and an opportunity to be
heard before the matter is even presented to the tribunal.99 An accused is also entitled to timely
notice of the names of the tribunal members, as well as the date, time, and place of the
hearing.100 The accused is entitled to representation by counsel, to present evidence including
testimony, as well as to confront and examine witnesses.101 Tribunal members may not include
any accuser of the faculty member, and an accused is permitted to challenge tribunal members
thought to be biased.102 The tribunal’s findings and recommendation, though usually a necessary
condition for termination of employment,103 are not sufficient. Their findings and
recommendation are independently reviewed by the University President and the Board of
Regents before termination can occur.104
Insulation from political influence: This element weighs slightly in favor of absolute
immunity. The Fifth Circuit has distinguished between election and appointment. When a
98

Dkt. No. 53-1 p. 1. (Regent’s Rule 31008).
Id. pp. 2–3 (Regent’s Rule 31008, §§ 3–4).
100
Id. p. 2. (Regent’s Rule 31008, § 4.6).
101
Id. p. 3 (Regent’s Rule 31008, §§ 4.1–4.2).
102
Id. p. 4 (Regent’s Rule 31008, § 4.5).
103
See id. p. 2 (Regent’s Rule 31008, § 3) (providing for termination without a tribunal’s involvement in cases of
incompetency or gross immorality).
104
Id. pp. 4–5 (Regent’s Rule 31008, §§ 4.7–4.7; § 5).
99

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defendant is elected to his post, he is more likely to be subject to political influence than if he
had been appointed.105 Here, the Tribunal members are appointed by UTPA’s President, where
faculty input determines in part the pool of candidates he may choose from.106
Importance of precedent: This element is neutral. Though there is no indication the
tribunal members review previous tribunal decisions when coming to new ones, Regent’s Rule
31008 dictates the procedures the tribunal must follow. The Fifth Circuit has stated that under
such circumstances, “[t]his factor does not meaningfully point in one direction or the other.”107
Adversarial nature of the process: This factor weighs heavily in favor of absolute
immunity. Both parties are permitted representation, and can present evidence, as well as
confront adversarial witnesses.108 The tribunal makes findings and recommendations on the basis
of this adversarial presentation.109
The correctability of error on appeal: This factor also weighs in favor of absolute
immunity. Regent’s Rule 31008 provides for review by UTPA’s President of the Tribunal’s
findings and recommendations.110 The President is independently capable of preventing
termination.111 If the President agrees with the tribunal’s termination recommendation, he
forwards all the pertinent documentation to the Regents along with his recommendation.112 The
accused has a right to submit a written response (against the President’s termination

105

Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 224 (5th Cir. 1999) (“[T]he record indicates that the school
board members were elected, illustrating that they are not insulated from political forces as are appointed
governmental officials.”); O'Neal v. Miss. Bd. of Nursing, 113 F.3d 62, 66 (5th Cir. 1997) (“[M]embers of the Board
are appointed by the Governor and are, therefore, to some extent shielded from political influence.”).
106
Dkt. No. 53-1 p. 2 (Regent’s Rule 31008, § 4).
107
Thomas v. City of Dallas, 175 F.3d 358, 363 (5th Cir. 1999) (“[A]lthough the URSB's decisions are not guided by
URSB precedent, the board is bound by specific standards for evaluating structures set in the Dallas City Code. This
factor does not meaningfully point in one direction or the other.”).
108
Dkt. No. 53-1 pp. 2–3 (Regent’s Rule 31008, §§ 4.1–4.5).
109
Id. p. 4 (Regent’s Rule 31008, § 4.6).
110
Id. (Regent’s Rule 31008, § 4.7).
111
Id.
112
Id.

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recommendation) to the Board of Regents.113 With or without a response, the Regents may reject
the President’s termination recommendation.114
In sum, holistic consideration of the Butz factors suggests that Mora, Crown, and Faver’s
duties as members of the Tribunal were quasi-judicial in nature, and that the benefits of absolute
immunity outweigh its associated costs in this context. Thus, Mora, Crown, and Faver are
entitled to absolute immunity from Plaintiff’s federal claims against them. Plaintiff’s Fifth and
Fourteenth Amendment claims,115 as well as his federal wiretapping claims,116 are DISMISSED
WITH PREJUDICE insofar as they are alleged against Mora, Crown, and Faver. Because these
claims are absolutely barred against Mora, Crown, and Faver, leave to amend these claims
against these Defendants would be futile, and is accordingly DENIED.
D.

Wiretapping Claims

Plaintiff advances his wiretapping allegations using three vehicles for relief: (1) Article
18.20, § 16 of the Texas Code of Criminal Procedure (“TCCP”), (2) Chapter 123 of the Texas
Civil Practice and Remedies Code (“TCPRC”), and (3) the Federal Wiretap Act, 18, U.S.C. §
2515. The Court addresses each in turn.
i.

Article 18.20, § 16 of the Code of Criminal Procedure

Plaintiff brings a claim against Rodríguez, Thompson, Guerra, Cantu, and Sethi pursuant
to Article 18.20 (“Art. 18.20”), § 16 of the TCCP. While the Court has dismissed Plaintiff’s
claims against these Defendants, the Court will nonetheless set out its alternative basis for
dismissal. Art. 18.20 §16(a) states:
A person whose wire, oral, or electronic communication is intercepted, disclosed,
or used in violation of this article, or in violation of Chapter 16, Penal Code, has
113

Id.
Id. p. 5 (Regent’s Rule 31008, § 5).
115
Dkt. No. 1-12 p. 616.
116
Id. p. 625.
114

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a civil cause of action against any person who intercepts, discloses, or uses or
solicits another person to intercept, disclose, or use the communication . . . .117
Plaintiff specifically alleges a violation of Art. 18.20 § 16 via a violation of Chapter
Sixteen, § 16.02118 of the Texas Penal Code (“TPC”).119 TPC § 16.02 provides, in pertinent part,
that “[a] person commits an offense if the person . . . intercepts . . . [an] oral . . . communication .
. .” or if a person intentionally discloses or uses such interception knowing or having reason to
know it was obtained in violation of this chapter.120 However, TPC § 16.02 further provides an
affirmative defense if “the person is a party to the communication.”121 Section 17 of Art. 18.20 in
turn provides that this article does not apply to conduct that is an affirmative defense under TPC
§16.02(c).
Plaintiff’s pleadings do not indicate that any of these Defendants have been criminally
prosecuted or convicted under § 16.02 of the TPC. Thus, the Court cannot assume a violation of
§16.02. Plaintiff must, therefore, plead sufficient facts, pursuant to the federal pleading
standards, to allege a violation of §16.02. Plaintiff fails to do so. While few cases in Texas
address the elements of a private claim pursuant to Art. 18.20, that statute makes it clear that it
does not apply to conduct that constitutes an affirmative defense under TPC § 16.02. The Court
recognizes that an affirmative defense must be pled and proven by Defendants. Here, however,
because Art. 18.20 expressly excepts claims from its coverage if the defendant was a party to the
communication, Plaintiff must factually allege his claim comes within Art. 18.20’s prohibition.
In other words, Plaintiff must at least allege that Tamez was not a party to the communication.
Plaintiff must also allege that Rodríguez, Thompson, Guerra, Cantu and Sethi each knew or had

117

Tex. Crim. Proc. Code Ann. § 16(a), art. 18.20 (West) (emphasis added).
Tex. Penal Code Ann. § 16.02 (West).
119
Dkt. No. 1-12 p. 590.
120
Tex. Pen. Code Ann. § 16.02(b)(1) (West).
121
Id. § 16.02(c)(4)(A) (West).
118

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reason to know the communication was obtained in violation of TPC § 16.02. Plaintiff does no
more than present labels and conclusions, thus failing to raise a right to relief above the
speculative level.
Plaintiff’s motion for leave to amend his Art. 18.20 claim premised upon a violation of
TPC § 16.02 is DENIED because it would not only be futile, but certainly demonstrates undue
delay, dilatory motive, and repeated failure to cure deficiencies. This claim was the original basis
for suit, filed in November 2013. It has been re-pled through ten subsequent amendments, with
little change.122 The Art. 18.20 claim against Rodríguez, Thompson, Guerra, Cantu, and Sethi is
DISMISSED WITH PREJDICE. The Court does not dismiss the remaining Art. 18.20 claim
against Tamez, who has not moved for dismissal with regard to this claim in the instant motion.
ii.

Chapter 123 of the Texas Civil Practice & Remedies Code

Plaintiff’s Chapter 123 claim is insufficiently plead in its current state
Plaintiff also brings a civil wiretapping claim under Chapter 123 of the TCPRC against
Rodríguez, Thompson, Guerra, Cantu, and Sethi.123 The Court will similarly address this claim
as an alternative basis for dismissal. Unlike Art. 18.20 claims arising from TPC § 16.02, Chapter
123 provides for a civil cause of action without any criminal predicate.124
Chapter 123 provides a private cause of action against any person who: “(1) intercepts,
attempts to intercept, or employs or obtains another to intercept or attempt to intercept the
communication; [or] (2) uses or divulges information that he knows or reasonably should know
was obtained by interception of the communication.”125 Interception is defined in part as
122

A careful review of Plaintiff’s proposed eleventh amended complaint reveals that Plaintiff adds few factual
allegations that Rodríguez, Thompson, Guerra, Cantu, or Sethi violated § 16.02 of the TPC.
123
Dkt. No. 1-12 pp. 598–99.
124
See e.g., Collins v. Collins, 904 S.W.2d 792, 799 (Tex. App.—Houston [1st Dist.] 1995), writ denied, 923
S.W.2d 569 (Tex. 1996) (case proceeding between private parties); Stephens v. Dolcefino, 126 S.W.3d 120, 133
(Tex. App.—Houston [1st Dist.] 2003, no pet.) (same).
125
Tex. Civ. Prac. & Rem. Code Ann. § 123.002(a)(1)–(2) (West).

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“acquisition . . . made without the consent of a party to the communication.”126 Plaintiff pleads
no facts indicating that Rodríguez, Thompson, Guerra, Cantu, or Sethi themselves intercepted, or
employed another to intercept, any communication as defined by the statue. Thus, a Chapter 123
claim can only stand against these Defendants if Plaintiff pleads that these Defendants (1) used
or divulged a communication obtained by interception, and (2) reasonably should have known
these communications were obtained in a manner proscribed by Chapter 123.
Plaintiff does not plead any facts suggesting that Rodríguez used or divulged any
communication obtained in violation of TCPRC § 123. Moreover, as noted, Plaintiff’s
allegations against Guerra, Cantu, and Sethi are so scant that they cannot support any claims,
including the Chapter 123 claim. The closest Plaintiff comes is by alleging that Tamez admitted
to Cantu that he may have committed a crime. Nonetheless, Plaintiff also makes clear that Tamez
was a party to at least part of the recording. Plaintiff does not claim that Tamez disclosed why he
though he “may have committed a crime.” Thus, there are no facts to suggest these Defendants
knew or had reason to know the recording was in violation of TCPRC § 123. Plaintiff’s Chapter
123 claim against Rodríguez, Guerra, Cantu, and Sethi are insufficiently pled in their current
state.
Plaintiff does allege that Thompson, UTPA’s Chief Legal Officer who investigated
Plaintiff, made findings and recommended termination “based upon an illegally obtained
recording which Thompson described at the Tribunal hearing as the ‘key’ piece of evidence.”127
Thus, Thompson is alleged to have “used” a recorded conversation(s) to make his findings and
recommendation. Here too, Plaintiff fails to plead any facts tending to show that Thompson
knew or had reason to know the recording was obtained by interception. This is significant
126

Id. § 123.001(2) (West).
Dkt. No. 1-12 p. 623 (Interestingly, Plaintiff only makes this allegation in connection with his constitutional
claims, not with his Chapter 123 claims).
127

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because by Plaintiff’s own admission, Tamez was a party to at least some of the recording. The
complaint does not allege sufficient facts that the recording Thompson “used” was obtained by
interception. Without more information, it is not possible to determine whether Thompson
should have known the conversations were obtained in a manner proscribed by Chapter 123.
Thus, Plaintiff has failed to sufficiently plead any Chapter 123 claim. The only remaining
question is whether leave to amend should be granted for any reason.
Leave to amend
The Court will not grant leave to amend Plaintiff’s Chapter 123 claims against
Rodríguez, Thompson, Guerra, Cantu, and Sethi. Amendment is not warranted due to Plaintiff’s
failure to cure his pleading deficiencies by previous amendment. Plaintiff’s first amended
complaint levied Chapter 123 claims against Thompson, Guerra, and Cantu.128 In turn, these
particular Defendants moved for dismissal on the pleadings under Texas Rule of Civil Procedure
(“TRCP”) 91(a), the state counterpart to Rule 12(b)(6). Notably, Texas courts countenance Rule
12(b)(6) case law when making TRCP 91(a) determinations.129 Thompson, Guerra, and Cantu
specifically pointed to Plaintiff’s pleading deficiencies to argue why the essential elements of a
Chapter 123 claim had not been alleged against them.130
Plaintiff responded by amending his complaint—nine times.131 For reasons already stated
above, Plaintiff has nevertheless failed to plead enough facts to state a Chapter 123 claim against
Rodríguez, Thompson, Guerra, Cantu and Sethi. For this reason, Plaintiff’s motion for leave to
amend his Chapter 123 claims against these Defendants is DENIED. Moreover, these claims are
DISMISSED WITH PREJUDICE.

128

Dkt. No. 1-6 p. 19.
GoDaddy.com, L.L.C. v. Toups, 429 S.W.3d 752, 754 (Tex. App.—Beaumont 2014, pet. filed).
130
Dkt. No. 1-7 p. 11.
131
Id. p. 51.
129

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iii.

Federal Wiretapping Act, 18 U.S.C. § 2515

Plaintiff alleges that Rodríguez, Thompson and UTPA violated 18 U.S.C. § 2515 of the
Federal Wiretap Act, and requests damages for this violation pursuant to § 2520.132 Section 2515
generally prohibits the admission of evidence “in any trial, hearing, or other proceeding,” which
was obtained in a manner defined as unlawful under the Federal Wiretap Act.133 Section 2520
creates a private civil cause of action for “any person whose wire, oral, or electronic
communication is intercepted, disclosed, or intentionally used in violation of this chapter.”134
As to Plaintiff’s § 2515 claim, Plaintiff simply and generally references the “General
Facts and Allegations” section of his complaint. Plaintiff wholly fails to set out the particular
facts allegedly engaged in by any one of these Defendants which Plaintiff claims are in violation
of the Federal Wiretap Act other than by his reference to § 2515. On its face, § 2515 only creates
a claim for “receiv[ing] in[to] evidence” an oral communication unlawfully intercepted. Here,
Plaintiff does not allege that Rodríguez received unlawfully-intercepted oral communications
into evidence in any trial, hearing, or proceeding against Plaintiff. Thus, Plaintiff’s § 2515 claim
against this Defendant is insufficiently pled.
As for Thompson, Plaintiff alleges that he made “findings against [Plaintiff], including
the recommendation that [Plaintiff] be terminated, based upon an illegally obtained recording

132

Plaintiff also levied this claim against Sethi, Guerra, Cantu, Mora, Crown, and Faver, but any discussion of this
federal claim is rendered moot by the Court’s previous finding also as to these Defendants.
133
18 U.S.C.A. § 2515 (West):
Whenever any wire or oral communication has been intercepted, no part of the contents of such
communication and no evidence derived therefrom may be received in evidence in any trial,
hearing, or other proceeding in or before any court, grand jury, department, officer, agency,
regulatory body, legislative committee, or other authority of the United States, a State, or a
political subdivision thereof if the disclosure of that information would be in violation of this
chapter.
134

18 U.S.C.A. § 2520(a) (West).

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which Thompson described at the tribunal hearing as the ‘key’ piece of evidence.”135 However,
Plaintiff admits that Thompson was an investigating officer136 who submitted his findings to,137
and testified before138 the tribunal. There is no indication, however, that Thompson was
authorized to receive, or actually received, Tamez’s recording into evidence. Because Plaintiff’s
allegations against each of these Defendants is insufficient to support any § 2515 claim, they are
equally incapable of supporting any claim against UTPA. In sum, Plaintiff’s § 2515 claims
against each Defendant are insufficiently pled.
Leave to amend would be futile as Plaintiff’s proposed amended complaint does not add
sufficient facts to sustain any § 2515 claim. With regard to Thompson, Plaintiff only clarifies
that he submitted a written report embedding content from Tamez’s recording. 139 With regard to
Rodríguez, Plaintiff clarifies that he testified before the tribunal, recommending Plaintiff’s
termination based upon content from Tamez’s recording.140 However, Plaintiff does not add any
allegations suggesting that Thompson or Rodríguez received information into evidence which
flowed from Tamez’s recording. By extension, no helpful allegations have been added against
UTPA.
In sum, Plaintiff has failed to sufficiently plead any § 2515 claim against any Defendant,
and leave to amend this claim would be futile. Thus, leave to amend is DENIED, and the claim
is DISMISSED WITH PREJUDICE.

135

Dkt. No. 1-12 p. 623.
Id. p. 621.
137
Id. p. 623.
138
Id. p. 622.
139
Dkt. No. 62-1 ¶ 122.
140
Id. ¶¶ 125–126.
136

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E.

Invasion of Privacy

Plaintiff also levies common law invasion of privacy claims against Rodríguez,
Thompson, Guerra, Cantu, and Sethi.141 The Court again addresses this claim as an alternative
basis for dismissal. Plaintiff supports this claim solely with his wiretapping allegations. Though
Texas recognizes multiple forms of invasion of privacy, each with separate elements, Plaintiff’s
conclusory, element-reciting allegations indicates he is aiming for an “intrusion upon seclusion”
claim.142 The elements of such a claim are: “(1) an intentional intrusion upon a person's solitude,
seclusion, or private affairs or concerns, (2) that would be highly offensive to a reasonable
person, and (3) as a result of which the person suffered an injury.”143 Some Texas courts have
clarified that the first element—intentional intrusion—requires actual physical intrusion of
eavesdropping on another’s conversation with the aid of wiretaps, microphones or spying.144
However, Plaintiff’s pleadings are so poor at this juncture that he has nevertheless failed
to state an invasion claim. As previously noted, the factual allegations against Cantu, Guerra, and
Sethi are conclusory and minimal, such that it is virtually impossible to determine from the
pleadings what part they even play in this case. The Court cannot infer satisfaction of the three
invasion elements against them. Moreover, Plaintiff does not allege facts indicating how
Rodríguez intentionally intruded upon Plaintiff’s privacy in a way that would be highly offensive
to a reasonable person. Indeed, Rodríguez’s role appears largely, if not exclusively, relegated to
recommending Plaintiff’s termination to Nelsen,145 testifying before the Tribunal,146 serving as

141

Dkt. No. 1-12 p. 598.
See id.
143
Baugh v. Fleming, 2009 WL 5149928, at *1 (Tex. App.—Austin 2009, no pet.) (citing Valenzuela v. Aquino, 853
S.W.2d 512, 513 (Tex.1993)).
144
See Dickson v. Am. Red Cross Nat. Headquarters, 1997 WL 118415, at *11 (N.D. Tex. Mar. 10, 1997)
(collecting Texas cases).
145
Dkt. No. 1-12 p. 591.
146
Id. p. 595.
142

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UTPA’s Ad Interim President beginning in August of 2014,147 and facilitating the transition of
UTPA faculty to UTRGV.148 These allegations have nothing to do with wiretapping, or any other
form of invasion of privacy.
As for Thompson, it is clear that he came into contact with Tamez’s recording at some
point.149 However, Plaintiff alleges that Tamez, not Thompson, was the person to initiate the
recording.150 Even assuming Thompson’s contact with Tamez’s recording constitutes an invasion
of sorts, it is not clear whether the invasion was into Plaintiff’s seclusion. Plaintiff does not
supply the contents of the recording, except that they included (but were not necessarily limited
to) voice conversation between him and someone other than Tamez. Without more information,
it is not possible to determine whether the contents of the recording Thompson allegedly intruded
into were private. For all these reasons, Plaintiff’s invasion claim is improperly pled.
Leave to amend
Plaintiff does not seek leave to amend this claim as his proposed amended complaint
discards these claims against Rodríguez, Thompson, Guerra, Cantu, and Sethi.151 Thus, these
claims are DISMISSED WITH PREJUDICE.
F.

Constitutional Claims

Plaintiff, employing 42 U.S.C. §§ 1983 and 1988 as a vehicles for relief, claims that his
Fifth, Fourteenth, and First Amendment rights were violated.152 The Court addresses each in
turn.

147

Id. p. 617.
Id. p. 624.
149
Id. p. 589.
150
Id.
151
Dkt. No. 62-1 p. 31.
152
Dkt. No. 1-12 pp. 615–16.
148

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i.

Fifth Amendment

Plaintiff makes Fifth Amendment Due Process claims against various state actors.153
However, the Fifth Circuit has clarified that Fifth Amendment Due Process claims “pertain[] to
federal, not state, actors.”154 None of the Defendants in this case are federal actors. Thus,
Plaintiff’s Fifth Amendment Due Process claim is improperly plead, cannot be cured with
amendment, and is DISMISSED WITH PREJUDICE. Plaintiff’s motion for leave to amend
this claim is DENIED because amendment would be futile.
ii.

Fourteenth Amendment Due Process—future employment at UTRGV

To state a claim under § 1983, a plaintiff “must allege [1] the violation of a right secured
by the Constitution and laws of the United States, and [2] must show that the alleged deprivation
was committed by a person acting under color of state law.”155 Here, Plaintiff alleges both
substantive and procedural Due Process violations stemming from the denial of his UTRGV
employment application.156
In order to establish either a substantive or a procedural Due Process violation by
claiming denial of a property right, Plaintiff “must first establish a denial of a constitutionally
protected property right.”157 A constitutionally protected property interest arises where there is
“a legitimate claim to entitlement as opposed to a mere subjective expectancy.”158 A claim to
entitlement arises when a statute or regulation places substantial limits on the government's

153

See id. pp. 618 (“Rodríguez, Bailey, Foster, Powel, Hicks, Aliseda, Cranberg, Hall, Hildebrand, Pejocivh, and
Stillwell violated [Plaintiff’s] constitutional protection against deprivation of property without due process under the
Fifth and Fourteenth Amendments to the United States Constitution . . . .”).
154
Coleman v. Sellars, 614 Fed. Appx. 687, 689 (5th Cir. 2015).
155
West v. Atkins, 487 U.S. 42, 48 (1988).
156
Dkt. No. 1-12 pp. 618–619.
157
Vineyard Inv., LLC v. City of Madison, Miss., 757 F. Supp. 2d 607, 612 (S.D. Miss. 2010) (emphasis added),
aff’d sub nom. Vineyard Invs., L.L.C. v. The City of Madison, Miss, 440 Fed. Appx. 310 (5th Cir. 2011).
158
See Vineyard Inv., LLC, 757 F. Supp. 2d at 612 (citing Skidmore v. Shamrock Ind. Sch. Dist., 464 F.2d 605, 606
(5th Cir.1972) (citing Perry v. Sindermann, 408 U.S. 593 (1972)).

27 / 54

exercise of its licensing (or permitting) discretion. “No discretion in the official and a reasonable
expectation in the citizen are central elements of a protected property interest.”159
Here, Plaintiff claims he had a property interest in future employment at UTRGV, and
that he was deprived of this property interest without due process by Rodríguez, Bailey, Foster,
Powell, Hicks, Aliseda, Cranberg, Hall, Hildebrand, Pejovich, and Stillwell.160 The Court first
notes a guiding principle in its analysis. The Fifth Circuit has held that “faculty in the University
of Texas system are tenured to their particular component institution[.]”161 Consequently,
Plaintiff’s tenure at UTPA did not attach to every component institution within the UT System,
including UTRGV. It only attached to UTPA. Thus, Plaintiff has no property interest in
employment at UTRGV by virtue of having tenure at UTPA.
Plaintiff supplies three additional reasons he believes he had a property interest in
employment at UTRGV. First, Plaintiff points without any explanation to Regent’s Rule
31007.162 Second, Plaintiff points to language within the Act itself: “[T]he [Regents] shall
facilitate the employment at the university created by this Act of as many faculty and staff of
[UTPA] as is prudent and practical.”163 Third, Plaintiff alleges that Bailey publically stated that
“UTPA[’s] faculty were being merged into UTRGV.”164 The Court now explains why Plaintiff
still has no property interest in employment at UTRGV.
Regents’ Rule 31007: Section one of Rule 31007 defines “tenure” as denoting “a status of
continuing appointment as a member of the faculty at an institution of the University of Texas

159

Hampton Co. Nat. Sur., LLC v. Tunica Cty., Miss., 543 F.3d 221, 226 (5th Cir. 2008) (emphasis added) (citing
Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756 (2005)).
160
Dkt. No. 1-12 p. 618.
161
Tex. Faculty Ass’n v. Univ. of Texas at Dallas, 946 F.2d 379, 386 (5th Cir. 1991).
162
Dkt. No. 1-12 p. 619.
163
See id. pp. 618–19 (emphasis added) (citing Act of June 14, 2013, 83rd Leg., R.S., ch. 726, § 5(c), 2013 Tex.
Sess. Law Serv. 1846, 1850 (West)).
164
Id.

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System.”165 Thus, tenure attaches to one institution at a time. Plaintiff alleges that he was granted
tenure at UTPA,166 but never alleges that he was granted tenure at UTRGV. Nothing else in Rule
31007 so much as hints that his tenure may have attached to UTRGV.
Specific language within the Act: Plaintiff also points to the following language from the
Act, contending that it vests him with a property interest in future employment at UTRGV:
“In recognition of the abolition of [UTPA] and The University of Texas at Brownsville as
authorized by this Act, the [Regents] shall facilitate the employment at the university created by
this Act of as many faculty and staff of the abolished universities as is prudent and practical.”167
This language does not vest Plaintiff with a reasonable expectation of employment at
UTRGV because it does not compel the Regents to hire every former UTPA faculty member at
UTRGV. Instead, the Regents are only instructed to “facilitate” their transition. Additionally,
such facilitation does not attach to every former UTPA faculty member; it only attaches to “as
many faculty . . . as is prudent and practical.” This last phrase: “as is prudent and practical,” is an
important operator, strongly indicating that the Regents have discretion to determine which
former UTPA faculty can or will be hired at UTRGV. The mere existence of this discretion cuts
off any claim of entitlement Plaintiff may assert to future employment at UTRGV.168
Bailey’s public statement: Bailey’s alleged statement was just that—a statement. Nothing
in the pleadings suggests it carried the force of law, like a statute or regulation would. For this
reason alone, Bailey’s alleged statement did not vest Plaintiff with a property interest in

165

Dkt. No. 53-2 p. 1. § 1.
Dkt. No. 1-12 p. 585.
167
See id. pp. 618–19 (emphasis added) (citing Act of June 14, 2013, 83rd Leg., R.S., ch. 726, § 5©, 2013 Tex. Sess.
Law Serv. 1846, 1850 (West)).
168
Hampton Co. Nat. Sur., LLC, 543 F.3d at 226.
166

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employment at UTRVG.169 In sum, Plaintiff has no cognizable interest in employment at
UTRGV.
Plaintiff goes on to argue that the Regents, Bailey, and Rodríguez extinguished Plaintiff’s
interest

in

employment

procedure/regulation

at

governing

UTRGV
the

by

hiring

crafting
of

and

UTPA

implementing
faculty

at

a

particular

UTRGV.170

The

procedure/regulation requires the UTRGV President to recommend the hiring of UTPA faculty
members to the Regents, as long as those faculty members meet certain criteria. Plaintiff alleges
that the language contained within these criteria are vague, undefined, and therefore invalid.171
However, as already discussed, Plaintiff had no interest in employment at UTRGV (which the
procedure/regulation in question governs). Thus, the procedure/regulation could not have
deprived him of such an interest.
In sum, Plaintiff has failed to state a substantive or procedural Due Process claim
grounded in an employment interest at UTRGV. Amendment would be futile as Plaintiff adds
nothing meaningful in his proposed amended complaint to support a property interest in
employment at UTRGV.172 Accordingly, the Court GRANTS Defendants’ motion to dismiss on
the pleadings as to this particular claim, DENIES Plaintiff’s motion for leave to amend, and
DISMISSES the claim WITH PREJUDICE.

169

Id.
Plaintiff’s referenced document is readily available online. See
https://www.utsystem.edu/sites/default/files/news/assets/utrgv-tenured-tenure-track-hiring.pdf.
171
Dkt. No. 1-12 p. 620.
172
See Dkt. No. 62-1 ¶ 353. Plaintiff’s proposed amended complaint only adds a statement by Texas state Senator
Judith Zaffirini indicating that UTRGV is a merger of UTPA and the University of Texas at Brownsville. However,
this statement, just like Bailey’s alleged statement, does not have the force and effect of law, and thus does not vest
Plaintiff with a property interest in employment at UTRGV.
170

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iii.

Fourteenth Amendment Due Process—continued employment at UTPA
and UT System

Plaintiff also claims that he was deprived of his employment at UTPA and UT Systemwithout procedural173 or substantive174 Due Process. Plaintiff’s Due Process claims are levied
against Thompson (UTPA Chief Legal Counsel and investigative officer); Rodríguez, Bailey,
and Nelsen (UTPA and UTRGV leadership); and Foster, Powell, Hicks, Aliseda, Cranberg, Hall,
Hildebrand, Pejovich, and Stillwell (the Regents).175
The Court first reiterates that Plaintiff’s tenure only attached to UTPA.176 Thus,
Plaintiff’s Due Process claims must fail insofar as they are premised upon the deprivation of a
property interest in employment at UT System generally, as opposed to UTPA specifically. The
Court now turns to its analysis.
Procedural Due Process: A prima facie procedural Due Process claim has two elements.
First, the claimant must identify a cognizable life, liberty, or property interest, and then show
that “governmental action resulted in a deprivation of the interest.”177 Second, the claimant must
establish that he was deprived of the identified interest without due process. 178 Though the
precise contours of minimum due process depend upon the situation, it generically consists of
notice and an opportunity to respond.179
Here, Plaintiff has satisfied the first element of his due process claim—deprivation of a
cognizable interest—because as a tenured professor, he alleges that UTPA deprived him of
173

Dkt. No. 1-12 p. 616.
Id. p. 619 (noting that the termination of Plaintiff’s alleged property interest was arbitrary and capricious); Id. p.
620 (again noting that termination proceedings were arbitrary and capricious); Id. p. 621 (alleging that Thompson’s
investigation was “intentional or reckless, thereby shocking the conscience”).
175
Plaintiff also levies this claim against Mora, Crown, and Faver, but any discussion of them is rendered moot by
the Court’s previous finding that they are entitled to absolute immunity.
176
Tex. Faculty Ass’n, 946 F.2d at 386.
177
Richmond v. Coastal Bend Coll. Dist., 883 F. Supp. 2d 705, 713 (S.D. Tex. 2012) (citing Gentilello v. Rege, 627
F.3d 540, 544 (5th Cir. 2010)).
178
Id.
179
Id. (citing Finch v. Fort Bend Ind. Sch. Dist., 333 F.3d 555, 562 (5th Cir. 2003)).
174

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continued employment at UTPA.180 The only remaining question is whether UTPA afforded
Plaintiff the process he was due before terminating him. The Fifth Circuit in Levitt specified
what process must be afforded before a university may terminate a tenured professor for
cause.181 Minimum due process requires:
1.

That the faculty member “be advised of the cause for his termination in
sufficient detail so as to enable him to show any error that may exist;”182

2.

That the faculty member “be advised of the names and the nature of the
testimony of the witnesses against him;”183

3.

That the faculty member be given “a meaningful opportunity to be heard
in his own defense within a reasonable time;”184 and

4.

That the faculty member be afforded “a hearing before a tribunal that
possesses some academic expertise and an apparent impartiality toward
the charges.”185

Importantly, the Levitt Court stated that “the Constitution, not state law, defines the minimum
process due.”186 Moreover, the Supreme Court has stated that “once it is determined that the Due
Process Clause applies, the question remains what process is due. The answer to that question is
not to be found in [state law].”187
Thus, state law cannot add to the constitutional minimum, and the mere violation of state
law or failure to comply with university procedure with regard to proceedings against the faculty
member is not a per se deprivation of constitutional due process.188 Instead, state law violations
only translate into constitutional deprivations when the conduct at issue effectively denies

180

See Dkt. No. 1-12 p. 596.
Levitt v. Univ. of Tex. at El Paso, 759 F.2d 1224, 1225 (5th Cir. 1985).
182
Id. p. 1228.
183
Id.
184
Id.
185
Id.
186
Id. p. 1233.
187
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).
188
Id.
181

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minimum due process—as articulated in Levitt—or effects some independent constitutional
deprivation.189
The Court finds it helpful at this juncture to remind the reader of the general process
afforded to Plaintiff before he was terminated, drawing from Plaintiff’s own description of the
process. First, Rodríguez recommended termination to UTPA President Nelsen;190 Nelsen
determined that termination proceedings should be initiated pursuant to Regent’s Rule 31008; 191
before termination proceedings actually began, Nelson notified Plaintiff that Plaintiff had the
right to meet with Nelson to explain himself, as well as an opportunity to respond in writing to
the allegations;192 Plaintiff, in turn, responded to the allegations through legal counsel, claiming
he was being retaliated against;193 the tribunal hearing was held from August 11–13, 2014;194 the
tribunal, after considering evidence, recommended termination to Nelsen;195 who in turn,
recommended termination to the Regents;196 who ultimately decided on November 6, 2014 to
terminate Plaintiff.197
Because a prima facie procedural Due Process claim necessitates a showing that due
process was not afforded somehow, it is incumbent upon Plaintiff to specify in his pleadings the
manner in which the process leading to his termination was deficient. Here, Plaintiff claims he
was not afforded due process for a plethora of reasons, most of which can be boiled down to an
189

Levitt, 759 F.2d at 1230 (“The additions to the ‘constitutional minimum’ we referred to in Ferguson arise only
when the procedures promised are denied in such a manner that the constitutional minimum is itself denied or an
independent constitutional deprivation is effected. For example, if a university promised its faculty that it would
provide professors two opportunities to challenge decisions to terminate their employment and a professor who
relied on that promise forwent the first opportunity to raise his challenge, the university could not deprive him of the
second opportunity without violating due process. This would be the case even though the due process clause itself
guarantees the professor only one hearing.”).
190
Dkt. No. 1-12 p. 609.
191
Id. p. 610.
192
Id.
193
Id.
194
Id.
195
Id.
196
Id.
197
Id. p. 611.

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alleged failure to fully comply with university procedure or state law, or otherwise failure to
afford Plaintiff his preferred process.198 As noted, these alleged failures are not per se Due
Process violations. Moreover, none of these alleged failures effectively translate into violations
of minimum Due Process, as articulated by the Levitt Court. Thus, they do not support Plaintiff’s
procedural Due Process claim.
Only three of Plaintiff’s allegations are colorable and cause the Court to pause. First,
Plaintiff alleges that Mora, the Tribunal Chair, displayed an apparent partiality towards the
charges against Plaintiff: “Mora, the Panel Chair, made rulings based upon how UT System
lawyer told her to rule. UT System counsel would whisper, in a not so quiet voice, as to what the
ruling should be which was always against [Plaintiff].”199
The Court observes that Mora’s adverse rulings alone do not indicate bias. Plaintiff fails
to explain what Mora was ruling on. Without this information, it is not possible to know whether
the rulings outwardly exhibited partiality towards the claims against Plaintiff. Moreover, the fact
Mora relied upon advice by a University attorney does not indicate bias. Quite the opposite, it
indicates a colorable desire to make rulings according to the law, rather than against it. Whether
Mora’s rulings were correct is a different question from whether Mora was ostensibly partial
with regard to the charges against Plaintiff. The Court also observes that Regent’s Rule 31008
expressly provides the tribunal the right to supporting counsel.200 For these reasons, Plaintiff’s

198

See id. pp. 617–25 (listing reasons Plaintiff believes due process was not afforded, including: consideration of
Tamez’s recording, placing time limits on the parties after UTPA had presented most of its case, refusing to swear in
witnesses, failing to consider Plaintiff’s evidence, permitting Rodríguez to testify at the Tribunal hearing, refusing to
grant continuance for Plaintiff to put on a particular judge as a witness, considering a past complaint against
Plaintiff, and ignoring cultural issues affecting Plaintiff’s choice of words); see also id. p. 618 (Mora allegedly
concealed the fact she collaborated with Rodríguez on a paper); id. p. 620 (Board of Regents considered
recommendation of Nelsen, not fully complying with Regents Rule 31008; Board of Regents held their meeting in
El Paso, 783 miles from UTPA).
199
Id. p. 594.
200
Dkt. No. 53-1 p. 2 (“The president may request counsel from the System Administration’s Office of General
Counsel to advise the hearing tribunal.”).

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allegation that Mora relied on University counsel when making rulings does not support
Plaintiff’s Due Process claim.
Second, Plaintiff states that the tribunal members “considered the complaint by Tamez
which Banik was never given an opportunity to respond to.”201 The “complaint” Plaintiff is
apparently referencing was a written statement by Tamez alleging that Plaintiff attempted to
recruit him to slander Ybarra.202 The alleged lack of opportunity appears to pertain to Plaintiff’s
April 18, 2013 interview with Thompson. Plaintiff asserts he was initially investigated (as a
predicate to any tribunal hearing) and interviewed by Thompson, who did not provide Plaintiff a
copy of Tamez’s written complaint before the investigative interview.203
The complaint, however, was apparently brought up at the interview. There is no
indication Plaintiff was prohibited from responding to Tamez’s written complaint at the
interview. Instead, Plaintiff only states that he “was not allowed to respond in writing to the
aforementioned complaint.”204 However, entirely apart from Tamez’s written complaint, Tamez
testified to the same fact before the Tribunal.205 There is no indication that Plaintiff was deprived
of an opportunity to combat Tamez’s testimony during the tribunal hearing. In fact, Regent’s
Rule 31008 expressly provides the accused faculty member the right to cross-examine witnesses
and to testify.206 For these reasons, Plaintiff’s Due Process claim is not supported by his
conclusory allegation that he was not given an opportunity to respond to Tamez’s complaint.
Third, Plaintiff contends that he was deprived of a meaningful opportunity to be heard in
his defense because the Regents held their meeting in El Paso, 783 miles from UTPA.207 This
201

Dkt. No. 1-12 p. 618.
Id. p. 590.
203
Id. p. 623.
204
Id. (emphasis added).
205
Id. pp. 594–95.
206
Dkt. No. 53-1 pp. 2–3.
207
Dkt. No. 1-12 p. 620.
202

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argument is disingenuous and fails for a few reasons. First, Plaintiff fails to allege that he was in
any way prohibited from traveling 783 miles to attend the Board of Regent’s meeting. The time
and money associated with the travel undoubtedly constitute an inconvenience, but without more
factual allegations, could not constitute an outright deprivation of the right to meaningfully
defend.
Second, and more importantly, Plaintiff conveniently side-steps all the opportunities he
was given to defend himself prior to the Regent’s meeting. Most notably, Plaintiff was afforded a
full-fledged opportunity to present his case before the tribunal, with all the evidentiary benefits
the tribunal hearing afforded.208 If the tribunal recommends termination to the President, and the
President finds good cause to recommend termination to the Regents, then the accused has the
opportunity to submit a response to the Regents.209 Importantly, however, the Regents make their
decision in light of evidence presented in the tribunal hearing, including Plaintiff’s own
evidence:
If the allegations are supported by evidence that constitutes good cause for
termination, the president may decide to recommend termination to the [Regents].
If so, the president shall forward [1] the findings and recommendations of the
hearing tribunal, [2] the original transcript of the testimony and [3] the exhibits to
the [Regents] for its review, along with the president’s report.210
The Board of Regents’ decision is then made on the record presented. 211 Thus, although Plaintiff
was 783 miles from the Regents when they voted to terminate him, his evidence was present
before them.

208

See Dkt. No. 53-1 § 4.1–4.4.
Id. § 4.7(b). (“The accused faculty member may, within seven workdays after receiving the president’s report,
submit a written response to the Board of Regents. The response must be based solely on the evidence of record in
the proceeding.”).
210
Id. (emphasis added).
211
Id. § 5.
209

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In sum, Plaintiff has not sufficiently pled a procedural Due Process claim with regard to
the deprivation of his interest in continued employment at UTPA. This is because he does not
provide sufficient facts to suggest, in a non-conclusory fashion, that he was deprived of
minimum Due Process as articulated in Levitt. Moreover, careful review of Plaintiff’s proposed
amended complaint indicates that granting leave to amend this claim would be futile. Plaintiff
does not add any non-conclusory factual allegations which indicate a deprivation of procedural
Due Process as articulated in Levitt. Thus, Plaintiff’s motion for leave to amend this claim is
DENIED, and the claim is DISMISSED WITH PREJUDICE.
Substantive Due Process: To succeed on a substantive Due Process claim in the public
employment context, “the plaintiff must show two things: (1) that he had a property interest/right
in his employment, and (2) that the public employer’s termination of that interest was arbitrary or
capricious.”212 In this case, Plaintiff has satisfied the first element of a prima facie substantive
Due Process claim because he was deprived of his interest in continued employment at UTPA.213
The only remaining question is whether that deprivation was “arbitrary or capricious.”
The decision to terminate a tenured faculty member is not arbitrary or capricious if
reasonable minds could disagree on the propriety of the termination. 214 Instead, a termination
decision is only arbitrary or capricious if it was “made without a rational connection between the
known facts and the decision or between the found facts and the evidence.”215 Stated differently,
the plaintiff “must demonstrate that [an] abuse of power by the state official shocks the
conscience.”216

212

Lewis v. Univ. of Texas Med. Branch at Galveston, 665 F.3d 625, 630 (5th Cir. 2011).
See Dkt. No. 1-12 p. 596.
214
Lewis, 665 F.3d at 631.
215
Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 215 (5th Cir. 1999).
216
Lewis, 665 F.3d at 631.
213

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Here, Plaintiff does not allege sufficient facts to indicate that Plaintiff’s termination was
arbitrary or capricious. The Court first emphasizes that the termination was effectuated by the
Board of Regents after a tribunal hearing. Thompson did not terminate Plaintiff, or even make
the recommendation to the Regents. Nonetheless, Plaintiff contends that Thompson violated
Plaintiff’s substantive Due Process rights by conducting a preliminary investigation that “shocks
the conscience.” To support this contention, Plaintiff alleges the following:


Thompson failed to provide an accommodation for Plaintiff’s alleged hearing
impairment at the initial investigatory interview.217



Thompson conducted the interview even though Plaintiff alleged he was ill.218



Thompson did not advise Plaintiff that Plaintiff had the right to counsel for the
interview.219



Thompson did not advise Plaintiff of Tamez’s complaint before the interview.
Thus, Plaintiff was surprised to discuss Tamez’s complaint.220



Plaintiff did not have an opportunity to make a written response to Tamez’s
complaint before the interview.221



Thompson drafted a witness statement for Tamez, but not for Plaintiff.222



Thompson recommended termination based upon allegedly illegally obtained
evidence (i.e. Tamez’s recording).223

Most of these allegations are little more than carefully-crafted nitpickings. Plaintiff does
not allege that he brought his hearing condition to Thompson’s attention, or that his illness or
hearing condition actually affected the interview. But even if the circumstances affected the
interview, Plaintiff was still given a full opportunity to respond at the Tribunal hearing.

217

Dkt. No. 1-12 p. 622.
Id.
219
Id.
220
Id.
221
Id. p. 623.
222
Id.
223
Id.
218

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Plaintiff’s claim that he was not advised of the right to counsel is a non-sequitur as Plaintiff was
not entitled to counsel during the interview. Thus, Thompson’s failure to inform Plaintiff of such
a right could not be arbitrary or capricious. Thompson’s failure to inform Plaintiff of Tamez’s
complaint before the interview (though it may have not fully complied with University policy) is
not in and of itself arbitrary or capricious. It may have a reasonable explanation; perhaps
Thompson did not want to give Plaintiff the chance to fabricate answers to the interview
questions.
Regarding Thompson’s choice to draft Tamez’s witness statement but not Plaintiff’s, it is
a far stretch to even suggest that this “shocks the conscious.” Tamez, a student, was in a
significantly different position from Plaintiff, a tenured professor. Again, however, Plaintiff had
the opportunity to fully respond, and testify, at the tribunal hearing. For these reasons, Plaintiff
has not sufficiently pled that Thompson’s investigation and recommendation to proceed with
termination proceedings were arbitrary and capricious. Furthermore, the Court again emphasizes
that Plaintiff was terminated by the Board of Regents after a tribunal hearing. Thus, Plaintiff’s
substantive Due Process claim against Thompson fails.
Plaintiff also contends the Regents promulgated “arbitrary and capricious” UTRGV
hiring criteria.224 It is unclear whether this allegation is meant to support a substantive Due
Process claim against the Regents for deprivation of Plaintiff’s interest in continued employment
at UTPA. Insofar as it does, the Court points out the obvious fact that any hiring criterion
governing employment at UTRGV, no matter how arbitrary or capricious, could not deprive
Plaintiff of an interest he only had at a different university—UTPA.

224

Id. p. 624.

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Plaintiff also invokes his substantive Due Process claim against Rodríguez and Bailey, 225
though it is unclear whether it is for an alleged deprivation of employment at UTPA or UTRGV:
Banik had a property interest/right in his employment at UTPA, the UT System,
and UTRGV, and the termination of that interest was arbitrary and capricious . . . .
Rodríguez and Bailey failed to exercise professional judgment, in a nonarbitrary
and noncapricious manner, when depriving Banik of his protected property
interest. Rodríguez and Bailey abused their power to the extent that it shocks the
conscience.226
This allegation is itself conclusory and properly ignored. The rest of Plaintiff’s complaint does
not specify facts from which the Court can infer shocking abuse of professional power.
Plaintiff suggests Rodríguez was prohibited from serving as a UTPA representative at the
tribunal hearing under Regents Rule 31008, § 4.4.227 But even a glance at this Section suggests
no such thing.228 Plaintiff also points out that the tribunal’s recommendation, once made, was to
be forwarded to the UTPA President, and Plaintiff concludes: “[i]n effect, Rodríguez, serving as
UTPA representative at the tribunal hearing and witness, had the tribunal make findings and a
recommendation to himself.”229
However, Plaintiff never actually alleges that the tribunal made a recommendation to
Rodríguez. Moreover, even if the tribunal recommendation was made to Rodríguez, Rodríguez
then surrendered his authority to do anything with it to former President Nelsen, who Plaintiff
alleges is the one who actually “recommended to the Chairman of UT System Board of Regents
termination of employment.”230 Even assuming this delegation was procedurally improper, it

225

Id. p. 619.
Id.
227
Id. p. 595.
228
Dkt. No. 53-1 (Regents Rule 31008, § 4.4) (“Burden to Prove Good Cause. A representative of the institution
may appear before the hearing tribunal to present witnesses and evidence in support of the charge against such
faculty member, and such institutional representatives shall have the right to cross-examine the accused faculty
member (if the faculty member testifies) and the witnesses offered in behalf of the faculty member. The institution
has the burden to prove good cause for termination by the greater weight of the credible evidence.”).
229
Dkt. No. 1-12 p. 595 (emphasis added).
230
Id.
226

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does not shock the conscience because Nelson was very recently (thirteen days earlier) UTPA’s
President, and thus familiar with the allegations against and investigation into Plaintiff.
As for Bailey, Plaintiff’s only discernable factual allegation is that he emailed Plaintiff
stating the grounds for non-transition to UTRGV—disciplinary action within the past seven
years.231 This fact alone is inert. In sum, it is impossible to conclude from the pleadings that
Plaintiff’s loss of employment was due to arbitrary and capricious conduct by Bailey and
Rodríguez. Thus, Plaintiff’s substantive Due Process claim against them is insufficiently plead.
Lastly, Plaintiff levies his substantive Due Process claim against the Regents, stating:
[T]he decision to terminate Banik’s property interest was arbitrary and capricious
in light of the only sworn evidence provided to [the Regents] established that
Ybarra’s complaint against [Plaintiff] was false. Even assuming Ybarra’s
complaint was true, . . . the allegations therein would not support a good cause
finding for termination and no reasonable decision maker would hold
otherwise.232
Elsewhere, Plaintiff pleads that the tribunal members themselves “refused to swear witnesses.”233
However, Plaintiff does not allege that any requirement existed that only “sworn” evidence be
considered, and Due Process does not require such. Here, Rule 31008 provides that the accused
faculty member may introduce “all evidence, written or oral, which may be relevant or material .
. . .” Rule 31008, however, does not include a requirement that such evidence be sworn. Plaintiff
does not contend that the evidence as a whole dictated an outcome favorable to Plaintiff or that
in any other respect there was no rational connection between the found facts and evidence.
Thus, given the pleadings, the Regent’s termination decision cannot be characterized as arbitrary
or capricious.

231

Id. pp. 595–96.
Id. p. 620.
233
Id. p. 617.
232

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Plaintiff makes a great fuss throughout his complaint that the decision to terminate him
was based at least in part upon Tamez’s allegedly unlawful recording.234 Even assuming it was
unlawful to use the recording against Plaintiff under state law, violations of state law are not per
se Due Process violations.235 Neither are violations of federal law per se Due Process violations.
Moreover, Plaintiff has not supplied enough information about the contents of the recording for
the Court to infer that it constituted an arbitrary or capricious basis for Plaintiff’s dismissal.
Plaintiff also generally argues that his UTPA tenure was taken in an arbitrary and
capricious manner since there existed no “good cause,” for his termination.236 However, the good
cause standard, prescribed by Regent’s Rule 31008,237 is a state law, and even if Plaintiff was
terminated without good cause, that does not mean he was terminated arbitrarily and capriciously
for purposes of his substantive Due Process claim. This said, Plaintiff’s own allegations establish
that he was terminated for allegedly making inappropriate comments to a student238 and
recruiting her classmates to slander her when she made a complaint against him. 239 The decision
to terminate Plaintiff on this basis cannot properly be characterized as arbitrary or capricious.
In sum, Plaintiff is under the mistaken impression that the terms “arbitrary and
capricious” and “shocks the conscious” are magical terms which breathe life into otherwise
lifeless trifles. The Court finds that all of Plaintiff’s Fourteenth Amendment Due Process claims
are insufficiently pled. A careful review of Plaintiff’s proposed amended complaint reveals that
amendment would be futile. Plaintiff offers no new allegations which would support his

234

Id. pp. 617; 620; 623;
Levitt v. Univ. of Tex. at El Paso, 759 F.2d 1224, 1225 (5th Cir. 1985); Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 541 (1985).
236
Dkt. No. 1-12 pp. 591; 592; 596.
237
Dkt. No. 53-1 §§ 1; 4.4.
238
Dkt. No. 1-12 p. 588; 594.
239
Id. pp. 590; 594.
235

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substantive Due Process claim. Thus, Plaintiff’s motion for leave to amend this claim is
DENIED, and the claim is DISMISSED WITH PREJUDICE.
iv.

First Amendment claim

Plaintiff alleges that his First Amendment rights were violated, but does not specify
against whom this claim is directed other than by naming Rodriguez, Nelsen, Thompson, Bailey,
the Tribunal, and Regents in his request for damages.240 Defendants do not move to dismiss
Plaintiff’s First Amendment claim, but have contended that Mora, Crown, and Faver are entitled
to absolute immunity against any federal claims against them, and by implication, against
Plaintiff’s First Amendment claim. Since the pleadings do not specify the factual basis for this
claim against Mora, Crown, and Faver, dismissal of the claim is also warranted on the basis of
absolute immunity. Defendants have not moved to dismiss any potential remaining First
Amendment claims against other Defendants, and thus, these claims are not dismissed. Because
there is no occasion to inquire into the sufficiency of Plaintiff’s First Amendment claim,241 there
is no need to grant leave to amend, which was only requested with regard to improperly pled
claims.
G.

National Origin Discrimination

Plaintiff levies a national origin discrimination claim against UTPA under § 21.051 of the
Texas Labor Code.242 This claim is also insufficiently pled.
i.

Legal Standard

To establish a national origin discrimination claim in Texas, the plaintiff must establish
that, among other things, he “was treated less favorably than a similarly situated . . .

240

Id. p. 616.
The Court does not by this imply that the claim in its current form is sufficiently pled.
242
Id. p. 613–615.
241

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employee.”243 Employees are similarly-situated “if their circumstances are comparable in all
material respects, including similar standards, supervisors, and conduct.”244 Thus, the
misconduct of employees who were disciplined “must be of comparable seriousness to those
who were not disciplined.”245 Also, the Plaintiff and his fellow employee must have been
accused of committing “nearly identical” misconduct,246 but treated differently nonetheless.
ii.

Application

Defendants argue that Plaintiff has failed to plead that he was treated less favorably than
any similarly situated employees, and has thus insufficiently pled his national origin
discrimination claim.247 Defendants are correct. As to this claim, Plaintiff contends that at the
tribunal hearing, the tribunal chair admitted a 2008 complaint against Banik and that the
“tribunal recommended Plaintiff for termination based on the 2008 complaint.” Plaintiff provides
no other facts regarding this 2008 complaint. Plaintiff then states in a conclusory fashion that he
“was treated less favorably than [1] Dr. Constantine Tarawneh, [2] Dr. Luis Materon, and [3] Dr.
Hassan Ahmad, all of whom are similarly situated as Plaintiff, and none of whom are East
Indian.”248 The Court observes that this is the only reference to Tarawneh and Materon in
Plaintiff’s entire complaint, and Plaintiff does not explain what their alleged misconduct was, or
whether they were terminated.
Plaintiff does explain that Ahmad was accused of sexual harassment and scientific
misconduct,249 and also that he confessed to wiretapping.250 Plaintiff also suggests that Ahmad

243

Acosta v. Gov't Emps. Credit Union, 351 S.W.3d 637, 641 (Tex. App.—El Paso 2011, no pet.) (citing Ysleta
Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005); Flores v. City of Liberty, 318 S.W.3d 551, 554
(Tex. App.—Beaumont 2010, no pet.)).
244
Acosta, 351 S.W.3d at 642 (citing Monarrez, 177 S.W.3d at 917).
245
Id.
246
Id.
247
Dkt. No. 53 p. 42 ¶ 82.
248
Dkt. No. 1-12 p. 615.
249
Id. p. 586.

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was not ultimately fired.251 However, Plaintiff does not allege that Ahmad was also subject to
whatever Plaintiff was accused of in the 2008 complaint, or that Ahmad was accused of
recruiting his students to slander a classmate to undermine that classmate’s sexual harassment
complaint. This distinguishes the allegations against Plaintiff and Ahmad, such that they are not
“nearly identical.” In sum, Plaintiff has not pled sufficient facts to demonstrate that Plaintiff and
Ahmad are similarly-situated, and as noted, Plaintiff pleads virtually no facts whatsoever about
Tarawaneh and Materon.
For these reasons, Plaintiff’s national origin discrimination claim against UTPA is
improperly pled. Moreover, leave to amend would be futile, because Plaintiff’s proposed
amended complaint does not cure the mentioned deficiencies. Thus, Plaintiff’s motion for leave
to amend this claim is DENIED, and the claim is DISMISSED WITH PREJUDICE.
Plaintiff’s unspecified request for “equitable relief”252 is also DISMISSED, its substantive
predicate being found meritless.
H.

Whistleblower Claim

Plaintiff claims that UTPA and UT System violated § 554.002 of the Texas Government
Code, which states: “A state . . . may not . . . terminate the employment of . . . a public employee
who in good faith reports a violation of law by the employing governmental entity or another
public employee to an appropriate law enforcement authority.”253 Texas courts require plaintiffs
making this claim to prove that they would not have been fired but for the plaintiff’s report of
unlawful activity.254 Defendants contend that Plaintiff fails to plead sufficient facts to establish
250

Id.
Id. p. 590.
252
Id. p. 615.
253
Tex. Gov't Code Ann. § 554.002(a) (West).
254
City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000) (citing Dpt. of Human Servs. v. Hinds, 904 S.W.2d
629, 633 (Tex. 1995); Hurley v. Tarrant County, 232 S.W.3d 781, 786 (Tex. App.—Fort Worth 2007, no pet.)
(describing causation element as a “but for” requirement).
251

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causation.255 Plaintiff alleges a sequence of events from which he claims but-for causation can be
inferred. However the allegations are so vague, and the inferences so attenuated, that the Court
cannot reasonably infer causation from the present pleadings.
Plaintiff alleges that in June 2012 he discovered that his coworker Ahmad placed a
recording device, paid for with UTPA funds, in Plaintiff’s office,256 that Plaintiff reported it to
UTPA Police,257 and that Ahmad ultimately was indicted and pled guilty to criminal
wiretapping.258 Plaintiff also alleges he was thereafter threatened by Assistant Dean Villareal and
that John Trant (“Trant”), Dean of the UTPA College of Science and Mathematics, “threatened
termination of employment if [Plaintiff] did not withdraw the charges against Ahmad.”259
Plaintiff alleges he never dropped the charges.260
Plaintiff next alleges that on October 3, 2013, “[Trant] recommended to Rodríguez . . .
that [Plaintiff’s] employment be terminated,”261 initiating a chain of recommendations and events
that would end in Plaintiff’s termination: Rodríguez recommended termination to Nelsen;262
Nelsen determined that termination proceedings should be initiated pursuant to Regent’s Rule
31008;263 before termination proceedings actually began, Nelson notified Plaintiff that Plaintiff
had the right to meet with Nelson to explain himself, as well as an opportunity to respond in
writing to the allegations;264 Plaintiff, in turn, responded to the allegations through legal counsel,
claiming he was being retaliated against;265 the tribunal hearing was held from August 11–13,

255

Dkt. No. 53 p. 44 ¶¶ 87–89.
Dkt. No. 1-12 p. 607.
257
Id.
258
Id. pp. 608–10.
259
Id. p. 608.
260
Id. p. 609.
261
Id.
262
Id.
263
Id. p. 610.
264
Id.
265
Id.
256

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2014;266 the tribunal recommended termination to Nelsen;267 who in turn, recommended
termination to the Regents;268 who ultimately decided on November 6, 2014 to terminate
Plaintiff.269 To support his contention of causation, Plaintiff alleges that along the way,
Rodríguez was made “aware,” and the tribunal was presented with evidence, “that [Plaintiff] had
made a criminal complaint against Ahmad and [Plaintiff] was pressured to drop the charges.”270
Three issues prevent the Court from reasonably inferring but-for causation from these
allegations. First, Ybarra and Tamez’s complaints came to light in December 2012 and April
2013, respectively. Termination proceedings were only initiated thereafter. Certainly, these
complaints and tribunal testimony support an independent basis for Plaintiff’s termination.
Second, Plaintiff himself claims that termination was recommended based on a 2008 complaint
against him. This complaint obviously preceded the Ahmad 2012 issues. Third, Plaintiff does not
allege that any decision-maker in the termination process considered the Ahmad-saga as a basis
for Plaintiff’s termination. The only allegation even suggesting they were aware of the Ahmad
story is Plaintiff’s repeated statement that the decision-makers were “presented evidence” of or
“became aware” that Plaintiff had a criminal complaint against Ahmad. Plaintiff conspicuously
omits who supplied this information and for what purpose, or whether the information was used
as a basis for terminating or recommending termination of Plaintiff.
Plaintiff also hints that he was terminated in retaliation for reporting various claims
against Trant and Villarreal to the UTPA Police or District Attorney’s Office. 271 However,
Plaintiff fails to allege any non-conclusory facts suggesting these were a but-for cause of

266

Id.
Id.
268
Id.
269
Id. p. 611.
270
Id. pp. 609–11.
271
Id. p. 612.
267

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Plaintiff’s termination. In sum, Plaintiff’s whistleblower claim is improperly pled. Moreover, it
would be futile to grant leave to amend this claim, which is left substantively unchanged in
Plaintiff’s proposed amended complaint.272 Thus, Plaintiff’s motion for leave to amend this claim
is DENIED, and the claim is DISMISSED WITH PREJUDICE.
I.

Declaratory Judgment

Plaintiff seeks three declarations under Chapter 37.009 of the TCPRC (the Texas
declaratory judgment provision): (1) that UTPA and UT System violated the Texas Constitution
by paying for Tamez’s representation out of state funds,273 (2) that UTPA, UTRGV, and UT
System deprived Plaintiff of an interest he had in employment UTPA, UTRGV, and UT System
without due course of law under the Texas Constitution,274 and (3) that particular language
within S.B. 24 is unconstitutionally vague and therefore void.275 Defendants move to dismiss the
first two requests on the grounds that they are shielded by sovereign immunity.276
i.

Legal standard

The Texas Declaratory Judgment Act “is a procedural, not a substantive, provision, and
therefore does not apply in federal court.”277 Thus, once a case has been removed, an “action
under the Texas Declaratory Judgment Act is construed as one brought under the federal
Declaratory Judgment Act (“DJA”).”278 Nonetheless, state entities such as UTPA, UTRGV, and
UT System are entitled to sovereign immunity under the Eleventh Amendment absent a
voluntary waiver or Congressional abrogation.”279 Waiver will only be found “where stated by

272

See Dkt. No. 62-1 pp. 31–39.
Dkt. No. 1-12 p. 601.
274
Id. p. 625.
275
Id.
276
Dkt. No. 523 p. 15.
277
Vera v. Bank of Am., N.A., 569 F. App’x 349, 352 (5th Cir. 2014) (citing Utica Lloyd’s of Tex. v. Mitchell, 138
F.3d 208, 210 (5th Cir. 1998)).
278
Honey Holdings I, Ltd. v. Alfred L. Wolff, Inc., 81 F. Supp. 3d 543, 555 (S.D. Tex. Jan. 23, 2015).
279
See Sullivan v. Univ. of Tex. Health Sci. Ctr. At Houston Dental Branch, 217 F. App’x 391, 392 (5th Cir. 2007).
273

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the most express language or by such overwhelming implications from the text as [will] leave no
room for any other reasonable construction.”280
Sovereign immunity confers two distinct benefits: immunity from suit and immunity
from liability.281 Removing a case to federal court has the effect of killing off one’s immunity
from suit, though removal does not itself affect one’s immunity from liability.282 Moreover, in
the absence of a viable underlying substantive claim, a request for declaratory judgment “is
without merit.”283 The Court now turns to its analysis, analyzing the first two declaratory
requests together, and the third request separately.
ii.

Application284

The first two declaratory requests
First, the Court is obliged to analyze Plaintiff’s Chapter 37 declaratory requests as federal
DJA requests. Moreover, Defendants in this case have waived their immunity from suit by
removing to federal court, but the act of removal did not itself waive their immunity from
liability. Furthermore, UTPA, UTRGV, and UT System, as arms of the state of Texas, are

280

Edelman v. Jordan, 415 U.S. 651, 673 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171
(1909)).
281
Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 255 (5th Cir. 2005) (“[W]e conclude that the Constitution permits
and protects a state's right to relinquish its immunity from suit while retaining its immunity from liability, or vice
versa, but that it does not require a state to do so.”).
282
Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 617 (2002) (emphasis added) (the state legislature
had expressly abrogated immunity from liability for particular state claims, so the issue of immunity from liability
was not before the Court (there was none), only jurisdictional immunity from suit.).
283
See e.g., Pajooh v. Harmon, 82 Fed. Appx. 898, 899 (5th Cir. 2003) (Miceli v. The Bank of New York Mellon,
2015 WL 300671, at *8 (W.D. Tex. Jan. 21, 2015); Marsh v. JPMorgan Chase Bank, N.A., 888 F. Supp. 2d 805,
815 (W.D. Tex. 2012).
284
The Court has doubts that Plaintiff has standing to bring his first two DJA requests, though neither party raises
this issue. Plaintiff has not identified any particular injury he suffered (distinct from other tax-paying citizens in
Texas) which is fairly traceable to the state-financing of Tamez’s representation. Moreover, and with respect to both
of Plaintiff’s DJA requests, Plaintiff only asks for costs and attorney’s fees, but nothing else. Thus, a decision in
Plaintiff’s favor would not likely redress whatever injuries Plaintiff may have suffered. This alone is an independent
basis for dismissal. Nevertheless, the Court proceeds to analyze Defendants’ sovereign immunity contentions
because the parties have not briefed the standing issue, and also because sovereign immunity is equally dispositive
(i.e. results in the same outcome as a dismissal for lack of jurisdiction).

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entitled to immunity from liability.285 No statute expressly waives immunity for unconstitutional
expenditures of public funds or for violations of the due-course-of-law provision in the Texas
Constitution. Thus, Defendants have immunity from liability and have not waived it.
Importantly, the mere fact that Plaintiff’s declaratory requests arise from the Texas
Constitution does not itself constitute a waiver of immunity. Waiver based on the Texas
Constitution is only applicable to Article I, § 17, which is not at issue in this case. At least one
federal court has dealt with the issue in the following manner:
[T]he Plaintiff claims that the State of Texas, and, consequently Lamar
University, have waived sovereign immunity for all claims that are based on the
Texas Constitution . . . . At first blush, this statement [from a cited Texas case]
would seem to support the assertion that the state has waived sovereign immunity
for any claim based on the Texas Constitution. However, this conclusion is simply
erroneous. The statement quoted above is made solely in reference to article I,
section 17 of the Texas Constitution . . . . It is true that this provision constitutes a
limited waiver of sovereign immunity and provides a cause of action against the
state if the provision is violated. However, this is the extent of the waiver; it does
not apply outside of this context.286
Consequently, UTPA, UTRGV, and UT System have sovereign immunity from liability, despite
the fact that that Plaintiff’s declaratory requests are grounded in provisions within the Texas
Constitution.
Defendants’ immunity from liability shields them from liability against Plaintiff’s
underlying substantive claims based on the Texas Constitution. Because Defendants are immune
from liability with regard to these substantive claims, they are not viable causes of action against
UTPA, UTRGV, and UT System. As a result, any declaratory requests which are predicated

285

See Sullivan v. Univ. of Tex. Health Sci. Ctr. at Houston Dental Branch, 217 F. App’x 391, 392 (5th Cir. 2007);
see also University of Texas-Pan American v. Valdez, 869 S.W.2d at 448 (UTPA is governmental unit entitled to
sovereign immunity); Univ. of Tex. Sys. v. Ochoa, 413 S.W.3d 769 (Tex. App.—Austin, 2012) (UT System is
governmental unit entitled to sovereign immunity); Whitehead v. Univ. of Tex. Health Sci. Ctr., 854 S.W.2d 175,
178 (Tex. App. —San Antonio 1993, no writ) (same).
286
Idoux v. Lamar Univ. Sys., 817 F. Supp. 637, 641 (E.D. Tex. Apr. 7, 1993).

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upon them are without merit, and cannot be granted.287 Thus, Plaintiff’s first two declaratory
requests are improperly pled. Because sovereign immunity ultimately cuts the legs off the
underlying claims, leave to amend would be futile, and is accordingly DENIED. Moreover,
these declaratory requests are DISMISSED WITH PREJUDICE.
The third declaratory request
Plaintiff seeks a declaration that language in the Act directing “the board of regents [to]
facilitate the employment at [UTRGV] of as many faculty and staff of [UTPA] as is prudent and
practical” is “unconstitutionally vague and/or void,” and further requests an injunction
prohibiting its enforcement.288 Specifically, Plaintiff argues that the phrases “as many” and
“prudent and practical” are unconstitutionally vague.289 While Plaintiff poses this claim as a
violation of his constitutional rights, the Act itself does not implicate any constitutionally
protected conduct. Thus, this being a civil statute, it is “unconstitutionally vague ‘where no
standard of conduct is outlined at all . . . .’”290
In addition to making this showing, Plaintiff must also have standing to challenge the
constitutionality of the Act. “To establish standing, a claimant must have suffered an injury in
fact of a legally protected property interest.291 In other words, Plaintiff must present evidence of
(1) an actual or imminent injury that is concrete and particularized, (2) fairly traceable to the
defendant’s conduct, and (3) redressable by a judgment in the plaintiff[’]s favor.”292
As noted earlier, Plaintiff’s protected property interest was in his tenured position at
UTPA. That property interest was terminated on the basis of good cause, independently of S.B.
287

See e.g., Pajooh, 82 Fed. Appx. at 899; Marsh, 888 F. Supp. 2d at 815.
Dkt. No. 1-12 pp. 522–24.
289
Id. p. 524.
290
Ford Motor Co. v. Tex. Dept. of Transp., 264 F.3d 493, 509 (5th Cir. 2001) (quoting Margaret S. v. Edwards,
794 F.2d 994, 997 (5th Cir. 1986)).
291
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
292
Duarte ex rel. Duarte v. City of Lewisville, Tex., 759 F.3d 514, 517 (5th Cir. 2014).
288

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24. Even if the Court were to agree with Plaintiff, his termination has nothing to do with S.B. 24.
Plaintiff would still have lost his tenure at UTPA even if the language at issue in S.B. 24 never
existed. Voiding the language at issue would simply leave the Regents without guidance in
hiring UTPA staff at UTRGV—a school which Plaintiff has no cognizable interest in.
Because he had no interest in employment at UTRGV, Plaintiff cannot show that he
suffered an injury in fact as a result of the enforcement of the allegedly vague hiring directive.
Plaintiff, therefore, has no standing to challenge the hiring directive provision of the Act.
Further, Plaintiff cannot satisfy his burden of proving that a judgment declaring that portion of
the Act unconstitutionally vague and/or void would redress his alleged injury. Such a declaration
would not provide Plaintiff a tenured position at UTRGV. The Court notes that “[r]emedial
judicial authority does not put judges automatically in the shoes of school authorities whose
powers are plenary.”293 As a result, Plaintiff has no standing, and accordingly, Plaintiff’s
vagueness claim and accompanying declaratory and injunctive request is DISMISSED WITH
PREJUDICE. Leave to amend would be futile and is accordingly DENIED.
IV.

HOLDING

The Court’s holdings are as follows concerning all remaining Defendants except Tamez:




Mora, Crown, Faver: All federal claims against Mora, Crown and Faver are
DISMISSED WITH PREJUDICE, and leave to amend is DENIED. They are
entitled to absolute immunity and are dismissed entirely from this case.



293

Cantu, Guerra, Sethi: All claims against these Defendants are DISMISSED
WITH PREJUDICE, and leave to amend any claims against them is DENIED.
Cantu, Guerra, and Sethi are each dismissed entirely from this case.

Tortious Interference: Dismissal is DENIED on the tortious interference claim
against Nelsen, because dismissal is solely predicated on the basis of election of
remedies, which the Court cannot determine is proper based solely on the live

Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16 (1971).

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pleadings at this stage. Any request for leave on this claim is DENIED AS
MOOT.


Article 18.20 Wiretapping: This claim is DISMISSED WITH PREJUDICE and
leave to amend is DENIED.



Chapter 123 Wiretapping: This claim is DISMISSED WITH PREJUDICE and
leave to amend is DENIED.



Federal Wiretapping: This claim is DISMISSED WITH PREJUDICE and leave
to amend it DENIED.



Invasion of Privacy: This claim is DISMISSED WITH PREJUDICE and leave
to amend is DENIED.



First Amendment: Plaintiff does not make clear who this claim is brought against.
Defendants did not move to dismiss this claim, though the Court finds that it
should be dismissed against Mora, Crown, and Faver, as they are protected by
absolute immunity.



Fifth Amendment Due Process: This claim is DISMISSED WITH PREJUDICE,
and leave to amend is DENIED.



Fourteenth Amendment Substantive and Procedural Due Process: These claims
are DISMISSED WITH PREJUDICE and Leave to amend is DENIED.



National Origin Discrimination: This claim is DIMISSED WITH PREJUDICE
and leave to amend is DENIED.



Whistleblower: This claim is DISMISSED WITH PREJUDICE and leave to
amend is DENIED.



Declaratory and Injunctive Requests: All such requests are DISMISSED WITH
PREJUDICE and leave to amend them is DENIED.



Other Equitable Request:294 This request is DISMISSED as its substantive
predicate is meritless.

In light of these holdings, the following claims remain pending before the Court:


294

Tamez: state wiretapping claims under Article 18.20 and Chapter 123, a federal
wiretapping claim under 18 U.S.C. §§ 2515 and 2520, invasion of privacy, and
defamation (slander and libel).

Dkt. No. 1-12 p. 615.

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

Nelsen: tortious interference.



First Amendment: to the extent it is sufficiently pled against Rodriguez, Nelsen,
Thompson, Bailey, and the Regents.

IT IS SO ORDERED.
DONE at McAllen, Texas, this 9th day of June, 2017.
___________________________________
Micaela Alvarez
United States District Judge

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