Brown v. Texas State University System Board of Regents et al
Filing
100
ORDER GRANTING Defendants' 93 Amended Motion to Dismiss; DISMISSING as MOOT Plaintiff's 94 Emergency Motion for Reconsideration of Order DENYING Plaintiff Access to Plaintiff's own educational records; DENYING Plaintiff's 96 Amended Emergency Motion for Reconsideration of Order DENYING Plaintiff Access to Plaintiff's own eductional records; DENYING Plaintiff's 99 Motion for Extension of Time to File Response to Defendants' Amended Motion to Dismiss. Signed by Judge Sam Sparks. (klw) Modified document type on 12/12/2013 (kkc).
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
2OEC
2
A1
9:
I2
BASIL BROWN II,
Plaintiff,
Case No. A-13-CA-483-SS
TEXAS STATE UNIVERSITY SYSTEM BOARD
OF REGENTS, TEXAS STATE UNIVERSITY,
DONNA WILLIAMS, BRIAN McCALL, DENISE
TRAUTH, CHRISTOPHER MURR, LARRY
TEIS, DANIEL KASPAR, ROBERT FLASKA,
and JASON KARLIC,
Defendants.
ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and
specifically Defendants' Amended Motion to Dismiss [#93]; and Plaintiffs Amended Emergency
Motion to Reconsider Order Denying Plaintiff Access to Plaintiff's Own Educational Records [#96],
Defendants' Response [#97], and Plaintiff's Reply [#98]; and Plaintiffs Motion for Extension of
Time to File Response to Defendants' Amended Motion to Dismiss [#99]. Having reviewed the
documents, the governing law, and the file as a whole, the Court now enters the following opinion
and orders.
Background
Plaintiff Basil Brown II (Brown) was a member of the Texas State University (TSU) men's
basketball team and was on scholarship. This lawsuit derives from TSU' s decision to remove Brown
from the basketball team and terminate his scholarship. In his Amended Complaint, Brown,
'I
proceeding pro Se, alleges a number ofcauses of action including constitutional violations, violations
of federal statutes, and common law claims. Specifically, Brown alleges: (1) violations of various
National Collegiate Athletic Association (NCAA) Rules; (2) violation of Title IV of the Civil Rights
Act of 1964 (Title IV); (3) breach of contract; (4) retaliation; (5) violations ofthe Family Educational
Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act
(HIPAA); (6) violations of Brown's constitutional right to due process under the Fourteenth
Amendment; (7) violations of Brown's constitutional right to equal protection under the Fourteenth
Amendment; (8) violations of 42 U.S.C.
§
1983; (9) "discrimination of one" (10) disability
discrimination; (11) collusion; and (12) gross negligence. Brown seeks various forms of relief
including: (1) damagesliquidated, compensatory, and punitive; (2) an order reinstating Brown on
the TSU basketball team; and (3) an order reinstating Brown's athletic scholarship.
On November 18, 2013, Defendants filed their Amended Motion to Dismiss [#93] all claims
brought by Brown. On November 25, 2013, Brown filed an Amended Emergency Motion to
Reconsider Order Denying Plaintiff Access to Plaintiff's Own Educational Records [#96], and
Defendants filed their Response [#97] on November 26, 2013. To date, Brown has not filed a
response to the Amended Motion to Dismiss, and the fourteen day period for filing a timely response
has lapsed. On December 9, 2013, Brown filed a Motion for Extension of Time to File Response
[#99]. The Court now considers Defendants' Amended Motion to Dismiss [#93] as well as
Plaintiffs' Corrected Emergency Motion to Reconsider [#96] and Plaintiffs Motion for Extension
of Time [#99].
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Analysis
I.
Legal Standards
A.
Rule 12(b)(1)
Federal district courts are courts of limited jurisdiction, and they may only exercise such
jurisdiction as is expressly conferred by the Constitution and federal statute. Kokkonen v. Guardian
Life Ins. Co. ofAm., 511 U.S. 375, 377 (1994). Federal Rule of Civil Procedure 12(b)(1) provides
the vehicle through which subject matter jurisdiction may be challenged. Thus, the burden of
establishing subject matter jurisdiction by a preponderance of the evidence rests with the party
seeking to invoke it. New Orleans & Gulf Coast Ry. Co.
v.
Barrois, 533 F.3d 321, 327 (5th Cir.
2008).
In evaluating a challenge to subject matter jurisdiction, the Court is free to weigh the
evidence and resolve factual disputes so it may be satisfied jurisdiction is proper. See Montez
v.
Dep 't of Navy, 392 F.3d 147, 149 (5th Cir. 2004). In conducting its inquiry, the Court may consider:
(1) the complaint alone; (2) the complaint supplemented by undisputed facts; or (3) the complaint
supplemented by undisputed facts plus the Court's resolution of disputed facts. Id. The Court must
take the allegations of the complaint as true and draw all inferences in the plaintiffs favor. Saraw
P 'ship v. United States, 67 F.3d 567, 569 (5th Cir. 1995); Garcia v. United States, 776 F.2d
116, 117
(5th Cir. 1985). Dismissal is warranted if the plaintiff's allegations, together with any undisputed
facts, do not establish the Court has subject matter jurisdiction. See Saraw, 67 F.3d at 569; Hobbs
v.
Hawkins, 968 F.2d 471, 475 (5th Cir. 1992).
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B.
Rule 12(b)(6)
Federal Rule of Civil Procedure 8(a)(2) requires a complaint contain "a short and plain
statement of the claim showing that the pleader is entitled to relief"
FED.
R.
CIV. P.
8(a)(2). A
motion under Federal Rule of Civil Procedure 12(b)(6) asks a court to dismiss a complaint for
"failure to state a claim upon which relief can be granted."
FED.
R. Civ.
P.
12(b)(6). In deciding a
motion to dismiss under 1 2(b)(6), a court generally accepts as true all factual allegations contained
within the complaint. Leatherman v, Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507
U.s. 163, 164 (1993). However, a court is not bound to accept legal conclusions couched as factual
allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). Although all reasonable inferences will
be resolved in favor of the plaintiff, the plaintiff must plead "specific facts, not mere conclusory
allegations." Iuchman v. DSC Commc 'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994). The plaintiff
must plead sufficient facts to state a claim for relief that is facially plausible. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); Bell Atl. Corp.
v.
Twombly, 550 U.S. 544, 570 (2007). "A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." ]qbal, 556 U.S. at 678. Although
a plaintiffs factual allegations need not establish the defendant is probably liable, they must establish
more than a "sheer possibility" that a defendant has acted unlawfully. id. Determining plausibility
is a "context-specific task," that must be performed in light of a court's "judicial experience and
common sense." id. at 679. In deciding a motion to dismiss, courts may consider the complaint,
as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss,
such as documents incorporated into the complaint by reference, and matters of which a court may
take judicial notice. Tellabs, Inc.
v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
II.
Application
A.
Sovereign Immunity and Qualified Immunity
As an initial matter, Brown is suing a number ofdifferent defendants, which maybe protected
from suit in federal court by the doctrines of sovereign and qualified immunity. Brown sued (1) the
Texas State University System Board of Regents (TSUS), and (2) TSU. Brown also sued individual
employees of TSU in their individual and official capacities including: (3) Donna Williamsthe
chairperson of TSUS; (4) Brian McCallthe chancellor of TSUS; (5) Fernando
Gomezthe vice
chancellor and general counsel of TSUS; (6) Denise Trauththe president of TSU; (7) Christopher
Murrthe director of financial aid and scholarships at TSU; (8) Larry Teisthe athletic director at
TSU; (9) Daniel Kasparthe head men's basketball coach at TSU; (10) Robert Flaskaan assistant
men's basketball coach at TSU; (11) Jason
basketball at TSU; (12) Herman
Karlican assistant trainer and the trainer for men's
Hornthe
Chief Diversity Officer at TSU; and (13) Ismael
Amayaan Assistant Dean of Students and the student justice coordinator at TSU.
The Eleventh Amendment to the United States Constitution bars suits brought in federal
court against a state.
U.S. CONST. amend.
XI. Absent waiver, the immunity afforded by the Eleventh
Amendment applies regardless of the relief sought, and this immunity extends to state agencies.
Puerto Rico Aqueduct & SewerAuth. v. Metcalf& Eddy, Inc., 506 U.S. 139, 146 (1993); Pennhurst
State Sch. & Hosp.
v.
Halderman, 465 U.S. 89, 100 (1984). There is no dispute TSU and its board
of regentsTSUSqualifies as a state agency. See TEx. EDuc. CODE ANN. § 6 1.003(3); Lewis
Univ.
of Tex. Med. Branch at Galveston, 665 F.3d 625, 630 (5th
v.
Cir. 2011). And there is no
contention TSU or TSUS has consented to suit. Accordingly, Defendants TSU and TSUS are
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immune from Brown's suit, and Defendants' Motion to Dismiss, as it relates to claims against TSU
and TSUS, is GRANTED.
With respect to the individual defendants sued, the Eleventh Amendment does not preclude
suits against state officers for prospective injunctive relief. See Ex Parte Young, 209 U.S. 123
(1908). Furthermore, the Eleventh Amendment does not prevent suits against state officers for
money damages to be paid out of the individual's own pockets, even when the damages are
retrospective compensation forpast harms. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).
This type of suit is referred to as suing the individuals in their "individual capacity." In addition, the
Eleventh Amendment does not prohibit a federal court from giving injunctive relief against a state
officer even though compliance with the injunction will cost the state money in the future. See
Graham
v.
Richardson, 403 U.S. 365 (1971). The Eleventh Amendment does, though, prevent a
federal court from awarding retroactive
reliefdamages to compensate past injurieswhen those
damages will be paid by the state treasury. See Quern
v.
Jordan, 440 U.S. 332 (1979). If the
recovery will be from the state treasury, the suit can be said to be against the officer in an "official
capacity." Accordingly, to the extent Brown sues the individual Defendants in their official capacity,
those claims are barred by the Eleventh Amendment, and the Defendants' Amended Motion to
Dismiss, with respect to these claims, is GRANTED.
Even if the Eleventh Amendment does not bar the suit, however, the doctrine of qualified
immunity shields government officials performing discretionary functions from liability as well as
from suit. Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994). "Qualified immunity protects public
officials from suit unless their conduct violates a clearly established constitutional right." Brumfield
v.
Ho//ins, 551 F.3d 322, 326 (5th Cir. 2008) (internal quotation marks omitted). A plaintiff bears
the burden of negating a properly raised qualified immunity defense. Id. The qualified immunity
analysis itself involves two considerations: (1) whether the public official's conduct violated an
actual constitutional right, and (2) whether the public official's actions were "objectively
unreasonable in light of clearly established law at the time of the conduct in question." Id. (internal
quotation marks and citations omitted). The standard "gives ample room for mistaken judgments
by protecting all but the plainly incompetent or those who knowingly violate the law." Id. (internal
quotation marks omitted).
In response to a qualified immunity defense, "plaintiffs suing
governmental officials in their individual capacities must allege specific conduct giving rise to the
constitutional violation." Anderson
v.
Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir.
1999).
The individual defendantsas
employees of TSU
and therefore government
officialsinvoke qualified immunity in their motion to dismiss, and this analysis provides a
backdrop for all of Brown's claims against the individual defendants.
B.
Violations of NCAA Rules
Brown alleges all of the Defendants violated NCAA Rules when they:
(1) failed to provide the Plaintiff with a grant-in-aid agreement that contained
language consistent with a full grant-in-aid agreement as defined by NCAA bylaw
15.02.5, (2) provided the Plaintiff with a grant-in-aid agreement that reduces the
Plaintiffs grant-in-aid from the previous academic year after the deadline for reducing
the Plaintiff's grant-in-aid for the following academic year has passed, (3) actually
reduced the Plaintiffs aid for Summer I prior to a hearing being held on Plaintiffs
appeal of Defendant's decision to cancel his athletic scholarship, (4) failed to provide
the Plaintiff with a grant-in-aid agreement that conforms to the renewal notice
submitted to the Plaintiff on June 17, 2013. The aforementioned acts are willful
violations of various NCAA Bylaws including bylaws 15.02.5 and 15.3.5.
Am. Compl. [#51], at 40.
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First, to the extent Brown brings this claim against TSU and TSUS, these Defendants are
shielded from suit by sovereign immunity, and to the extent he sues the individual defendants in their
official capacity, these claims are also barred by Eleventh Amendment.
Second, to the extent Brown brings these claims against the individual defendants in their
individual capacities, Brown fails to show how violations of NCAA Rules amount to conduct
violating a clearly established constitutional right. In other words, qualified immunity protects the
individual defendants from these claims of NCAA Rules violations. Because sovereign immunity
and qualified immunity operate to shield the Defendants from the claims based on NCAA Rules
violations, the Court GRANTS Defendants' Amended Motion to Dismiss with respect to these
claims.
In the alternative, Brown cites no
authorityand the Court
is unfamiliar with any
authorityindicating violations of NCAA Rules may provide the basis for a cause of action in
federal court. On these grounds, Brown's claims also fail.
C.
Violation of Title IV of the Civil Rights Act of 1964
Brown alleges all of the Defendants violated Title IV of the Civil Rights Act of 1964 when:
(1) Daniel Kaspar denied the Plaintiff the opportunity to beat out Reid Koenen for
the retention of the Plaintiffs athletic scholarship for the following academic year
because Daniel Kaspar believes that the only reason that the Plaintiff is able to beat
Reid Koenen in basketball is because Reid Koenen happens to be white and the
Plaintiff is black and white players are slower than black players because of race, (2)
Daniel Kaspar rendered Reid Koenen immune to a competition with the Plaintiff for
an athletic scholarship retention for the following academic year because Reid
Koenen is white and the Plaintiff is black, (3) Daniel Kaspar used race as a deciding
factor in determining whether Reid Koenen would retain his athletic scholarship, as
opposed to the Plaintiff, for the following academic year (4) Daniel Kaspar scolded
the Plaintiff in front of other players in practices for taking advantage of Reid Koenen
in practice by out-performing him in basketball because Reid Koenen is white and
the Plaintiff is black, and (5) made racially disparaging remarks to other black players
in practice by stating that the black players would be faster if they ran as if they were
running from the police back at home.
Am. Compl. [#5 1], at 41-42.
First, to the extent Brown brings this claim against TSU and TSUS, these Defendants are
shielded from suit by sovereign immunity, and to the extent he sues the individual defendants in their
official capacity, these claims are also barred by Eleventh Amendment.
Second, Title IV of the Civil Rights Act is designed to encourage the desegregation of public
schools and authorizes the Secretary of Education to render "technical assistance" in the
"preparation, adoption, and implementation of plans for the desegregation of public schools." 42
U.S.C.
§
2000c-2. Title IV further creates a cause of action, but this action may only be initiated by
the Attorney General after receipt of a complaint and other procedural standards are satisfied.
Id. § 2000c-6. Title IV does not, however, create a private cause
See
of action or, at least, there is no
indication in the statute there is authorization for private causes of action. Brown does not cite to
any authority indicating such a private cause of action exists. Therefore, Brown fails to state a claim
against Defendants based on Title IV, and Defendants' Amended Motion to Dismiss, with respect
to claims based on Title IV, is GRANTED.
D.
Breach of Contract
Brown alleges all of the Defendants breached a contract with Brown when they:
(1) refused to pay the Plaintiff medical bills for surgeries due to injuries sustained
while participating in men's basketball at TSU according to policy, (2) denied the
Plaintiff access to Summer I or Summer II under his men's basketball scholarship
even though summer school is an extension of his athletic scholarship from the
previous academic year as the Plaintiff had already notified TSU of his intention to
attend summer school in March 2013, (3) failed to provide the Plaintiff with a grantin-aid agreement that contained language conforming to the renewal letter submitted,
and agreed, to by the Plaintiff on July 3, 2013 after the deadline for a scholarship
reduction had already expired on July 1, 2013.
Am. Compl. [#51], at 42-43.
Under Texas law, the elements of a breach of contract claim are: (1) there is a valid,
enforceable contract; (2) the plaintiff performed, tendered performance of, or was excused from
performing its contractual obligations; (3) the defendant breached the contract; and (4) the
defendant's breach caused the plaintiff injury, Winchek v. Am. Express Travel Related Servs., 232
S.W.3d 197, 202 (Tex. App.Houston [1st Dist.] 2007, no pet.).
First, to the extent Brown brings this claim against TSU and TSUS, these defendants are
shielded from suit by sovereign immunity. See Fed. Sign
v. Tex. S.
Univ., 951 S.W.2d 401, 408
(Tex. 1997) (finding sovereign immunity applies to breach of contract suits). To the extent he sues
the individual defendants in their official capacity, these claims are also barred by Eleventh
Amendment.
Second, to the extent Brown brings these breach of contract claims against the individual
defendants in their individual capacities, Brown fails to show how violations of the terms of an
athletic scholarshipassuming for the moment the scholarship constitutes a contract between the
partiesamounts to conduct violating a clearly established constitutional right. In other words,
qualified immunity protects the individual defendants from these claims ofbreach ofthe scholarship.
Because sovereign immunity and qualified immunity operate to shield the Defendants from the
claims based on breach of contract, the Court GRANTS Defendants' Amended Motion to Dismiss
with respect to these claims.
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E.
Retaliation
Brown alleges all of the Defendants engaged in retaliation when they:
(1) cancelled the Plaintiff's athletic scholarship on May 2, 2013 after the Plaintiffs
parents filed a complaint with the TSU President on January 31, 2013 alleging
improper treatment from former coach, Doug Davalos, and a "promise" from Doug
Davolos, guaranteed Plaintiffs Parents that the Plaintiffs scholarship would be taken
if the former coach ever got fired, and (2) alleged that the Plaintiffs athletic
scholarship was being cancelled for "athletic reasons" when the real reason had
nothing to do with the Plaintiffs athletic performance and was for harassment, public
humiliation, and defamation of character.
Am. Compl. [#51], at 43-44.
First, to the extent Brown brings this claim against TSU and TSUS, these defendants are
shielded from suit by sovereign immunity, and to the extent he sues the individual defendants in their
official capacity, these claims are also barred by Eleventh Amendment.
Second, to the extent Brown brings these generalized retaliation claims against the individual
defendants in their individual capacities, Brown fails to show how the cancellation ofthe scholarship
after receipt of a complaint pertaining to improper treatment from a coach and a promise by the
coach to cancel the scholarship if he ever got fired amounts to conduct violating a clearly established
constitutional right. In other words, qualified immunity protects the individual defendants from
these claims of retaliation. Because sovereign immunity and qualified immunity operate to shield
the Defendants from the claims based on retaliation, the Court GRANTS Defendants' Amended
Motion to Dismiss with respect to these claims.
In the alternative, the Court struggles to make sense of Brown's "retaliation" claim. There
is no general "retaliation" cause of action. Several federal and state statutes contain anti-retaliation
provisions, but Brown does not seem to rely on any of these, nor would they make sense.
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For
instance, Title VII prohibits retaliation in the employeremployee context, and courts recognize
causes of action in § 1983 cases for an employee's claim of retaliation based on free speech.
U.S.C.
§
2000c-3; Foley v.
Univ. ofHous. Sys.,
See 42
355 F.3d 333, 341 (5th Cir. 2003). Brown fails to
make out the elements of any retaliation claim. Rather he and his parents submitted a complaint to
TSU President Denise Trauth regarding alleged unfair treatment of Brown by the basketball coach
because, among other things, he was denying him the opportunity to compete for playing time.
Approximately four months later, his scholarship was cancelled. Brown does not identify any
protected activity he engaged in nor does he identify the exercise of some constitutional right, which
might begin to form the basis of some type of retaliation claim. On these alternative grounds,
because Brown fails to state a claim based on retaliation, those claims must be dismissed.
F.
Violation of FERPA and HIPAA
Brown alleges all of the Defendants violated FERPA when:
(1) Robert Flaska shared the Plaintiffs verypersonal, private, confidential, extremely
delicate, medical information to men's basketball player Joel Wright and Joel
Wright, in turn, shared all of that information with other members of the men's
basketball team at TSU, (2) Robert Flaska shared the contents of the Plaintiffs
parents eight (8) page complaint to the TSU President, Defendant Denise Trauth,
with Joel Wright who, in turn, shared the information with other members of the
men's basketball team, (3) the Defendants denied the Plaintiff access to his own
personal education records after making a request for the records on May 8, 2013 via
a FERPA request for his records, (4) Fernando Gomez submitted the Plaintiffs
personal identifiable information to the Texas Attorney General on May 30, 2013
without the Plaintiffs consent, (5) Herman Horn denied the Plaintiff access to his
education records in possession, custody, or control of Chief Diversity Officer after
the Plaintiff made a FERPA request for education records from Herman Horn on
May 25, 2013, (6) Ismael Amaya denied the Plaintiff access to his education records
in possession, custody, or control of Student Justice Center after the Plaintiff made
a FERPA request for education records from Ismael Amaya on July 3, 2013, (7)
Larry Teis and Daniel Kaspar failed to provide the Plaintiff access to all education
records housed in the Department of Athletics, including men's basketball, at TSU
after Plaintiff requested records on May 8, 2013.
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Am. Compl. [#51], at 44-45.
Brown also briefly references violations of HIPAA for the same activity referenced in his
FERPA allegations. Id. at 2-3.
First, to the extent Brown brings these claims against TSU and TSUS, these defendants are
shielded from suit by sovereign immunity, and to the extent he sues the individual defendants in their
official capacity, these claims are also barred by Eleventh Amendment.
Second, to the extent Brown brings these claims based on violations of FERPA and HIPAA
against the individual defendants in their individual capacities, Brown fails to show how any of the
FERPA and HIPAA allegations, which relate to disclosures of private medical information and the
denial of access to education records, amounts to conduct violating a clearly established
constitutional right. In other words, qualified immunity protects the individual defendants from
these claims ofFERPA and HIPAA violations. Because sovereign immunity and qualified immunity
operate to shield the Defendants from the claims based on FERPA and HIPAA, the Court GRANTS
Defendants' Amended Motion to Dismiss with respect to these claims.
In the alternative, a violation of FERPA does not create a private cause of action for Brown.
FERPA prohibits the federal funding of educational institutions which have a policy or practice of
releasing education records to unauthorized persons. 20 U.S.C.
§
1232g. FERPA does not create
a private cause of action, so to the extent Brown's allegations are premised purely on a violation of
FERPA, he fails to state a claim. Moreover, the Supreme Court has established FERPA's nondisclosure provisions do not create personal rights to enforce under
§
1983. Gonzaga Univ.
v. Doe,
536 U.S. 273, 276 (2002). In addition, a violation of HIPAA does not create a private cause of
action.
See Acara v.
Banks, 470 F.3d 569, 57 1-72 (5th Cir. 2006) (per curiam). Because no private
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causes of action exist for Brown to pursue under FERPA or HIPAA, his claims also fail on these
alternative grounds and must be dismissed.
G.
Violation of Due Process under the Fourteenth Amendment
Brown alleges all ofthe Defendants violated his constitutional right to due process under the
Fourteenth Amendment when:
(1) Chris Murr failed to serve the Plaintiff with notice via email from the Director of
Financial Aid and Scholarships, (2) Chris Murr failed to mail notice to the Plaintiff
of the TSU Director of Financial Aid and Scholarship's decision to cancel the
Plaintiff's, the Plaintiff's athletic scholarship, (3) Chris Murr failed to sign the email
notice by the Director of Financial Aid and Scholarships, Chris Murr, (3) Chris Murr
cancelled the Plaintiff's athletic scholarship for men's basketball for Summer I prior
to scheduling and/or conducting a hearing on the Plaintiffs timely filed appeal of
TSU's decision to cancel his athletic scholarship, (4) Herman Horn failed to
investigate, and issue a final report, on Plaintiffs discrimination complaint filed wtih
Herman Horn on May 3, 2013, (5) lsmael Amaya conducted a hearing with the
Plaintiff regarding violations of TSU rules prior to providing Plaintiff with all
education record, including actual complaint, in Ismael Amaya' s possession, custody,
or control. The aforementioned acts are willful violations of the Plaintiffs
Fourteenth Amendment right to notice...
Am. Compl. [#5 1], at 45-46.
First, to the extent Brown brings these claims against TSU and TSUS, these defendants are
shielded from suit by sovereign immunity, and to the extent he sues the individual defendants in their
official capacity, these claims are also barred by Eleventh Amendment.
Second, to the extent Brown brings these claims based on violations ofhis due process rights
against the individual defendants in their individual capacities, Brown fails to show how any of the
allegations amount to conduct violating a clearly established constitutional right. To state a claim
for a due process violation, Brown must show he was deprived of a protected property interest, and
the deprivation was done without adherence to due process minimums.
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Findeisen
v.
N. E. Indep.
School Dist., 749 F.2d 234, 237 (5th Cir. 1984) (citing Logan v. Zimmerman Brush Co., 455 U.s.
422, 430 (1982)). With respect to the meaning of a "protected property interest," "the hallmark of
property.. . is an individual entitlement grounded in state law, which cannot be removed except 'for
cause'." Id. A property interest is created when a person has secured an interest in a specific benefit
to which the individual has "a legitimate claim of entitlement." Bd.
of Regents of State
Coils.
v.
Roth, 408 U.S. 564, 577 (1972). The interest must be more than an "abstract need or desire" or a
"unilateral expectation
of' the benefit.
Id.
Brown fails to show the Court there are recognized property rights in his athletic scholarship
or his continued participation on the men's basketball team. Because there is no protected property
interest at issue, Brown does not have a viable due process claim and cannot show any of the
individual defendants violated a clearly established right. Accordingly, qualified immunity protects
the individual defendants from these claims of due process violations. Because sovereign immunity
and qualified immunity operate to shield the Defendants from the claims based on due process, the
Court GRANTS Defendants' Amended Motion to Dismiss with respect to these claims.
H.
Violation of Equal Protection under the Fourteenth Amendment
Brown alleges all of the Defendants violated his constitutional right to equal protection
under the Fourteenth Amendment based on the same allegations related to his due process claim.
First, to the extent Brown brings this claim against TSU and TSUS, these defendants are
shielded from suit by sovereign immunity, and to the extent he sues the individual defendants in their
official capacity, these claims are also barred by Eleventh Amendment.
Second, to the extent Brown brings these claims based on violations of equal protection
against the individual defendants in their individual capacities, Brown fails to show how any of the
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allegations amount to conduct violating a clearly established constitutional right. "In order to state
a claim for racial discrimination under the Equal Protection Clause and
§
1983, a plaintiff must
demonstrate that the governmental official was motivated by intentional discrimination on the basis
of race." Coleman
Washington
v.
v.
Hous. Indep. School Dist., 113 F.3d 528, 533 (5th Cir. 1997) (citing
Davis, 426 U.S. 299, 238-42 (1976)). The basis of an equal protection claim is the
requirement all persons similarly situated should be treated alike. City of Cleburne
v.
Cleburne
Living Ctr., Inc., 473 U.S. 432, 439 (1989); Plyler v. Doe, 457 U.S. 202, 216 (1982); Piotrowski v.
City ofHouston, 237 F.3d 567, 578 n.15 (5th Cir. 2001). In section XII of his amended complaint,
which is the section explicitly containing his equal protection claim, Brown only mentions
Defendants' conduct related to the cancellation of his scholarship. Brown simply does not allege
facts sufficient to demonstrate any of the Defendants were motivated by intentional discrimination
on the basis of race as it related to the cancellation of his scholarship.
Brown, throughout his amended complaint, also makes various allegations against the
coaching staff of the men's basketball team involving race. Specifically, Brown alleges Coach
Daniel Kaspar once said to a white member of the team, after Brown scored a basket against this
white player in practice: "Basil is picking on the slow white boy and this is the third time he has
driven by you to the basket." Am. Compl. [#5 1], at 22. On another occasion, Kaspar told Ray
Dorsey, a player who was improperly executing a certain basketball move: "you wouldn't run from
the cops in Dallas like that." Id. Brown does not identify Dorsey's race, but the suggestion would
appear to be he is black. On another occasion, Kaspar allegedly told another player, Gordon Ball:
"you wouldn't run from the cops in Houston like that." Id. at 23. Again, Ball's race is not identified,
but Brown would appear to be suggesting he is black. On a fourth occasion, Kaspar told Jeremiah
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Moore, a player: "you wouldn't run from the cops in West-Philly like that." Id. Once again,
Moore's race is not identified, but it can be inferred he is black.
In addition, Brown claims on April 25, 2011, when Kaspar told Brown he was no longer
going to be on scholarship or a member of the team, Brown asked why Kaspar was making this
decision. Kaspar allegedly responded: "you wouldn't be happy with the playing time that you would
be getting next season." Id. at 23. When Brown asked if he had been beaten out by two teammates,
Reid
Koenena
white
playerand
Darius Richardsonwhose race Brown notably fails to
identifyKaspar allegedly told Brown: "well Reid is a slow white boy and I'm not going to fault
him for that and Darius is injured." Id. at 23-24.
Brown fails to establish a clear violation of his constitutional rights under the Equal
Protection Clause for a number of reasons. First, he fails to show he was "similarly situated" with
other players, and he was treated differently than these players who were similarly situated. With
respect to the decision to remove Brown from the team, Brown only mentions two other
playersReid Koenen and Darius Richardson. While both of these players remained on scholarship
and Brown did not, there is no indication these three were "similarly situated" for the purposes of
an equal protection claim. It is unknown why Kaspar decided to keep Koenen, who was, according
to Kaspar's alleged comments, slow and happened to be white, and Richardson, who was injured and
whose race is unidentified. The allegations do indicate, however, Kaspar decided not to keep Brown
because Brown was not going to be receiving much playing time, not because he was black. Brown
does not establish he was "similarly situated" to Koenen and Richardson, and he does not describe
whatsoever the composition of the rest of the basketball team, making it impossible to determine if
he was "similarly situated" to other members of the team yet received different treatment because
-17-
he was black. Brown's allegations do suggest at least three members of the team were blackRay
Dorsey, Gordon Ball, and Jeremiah Moore. These three players were the recipients of Kaspar's
alleged comments about running from the cops. If there are other black players on the team, as there
would appear to be according to Brown's Amended Complaint, an equal protection claim premised
on the idea Brown was removed from the team because he was black is not plausible.
Second, with respect to the racially-charged comments Kaspar allegedly made at practice,
while the Court does not condone these remarks, this fact does not make the comments actionable
under the equal protection clause. In
Williams
v.
Bramer,
the Fifth Circuit held a police officer's
"use of a racial epithet, without harassment or some other conduct that deprives the victim of
established rights, does not amount to an equal protection violation." 180 F.3d 699, 706 (5th Cir.
1999). The court further explained:
When leveled against a citizen by a police officer, a racial epithet, by its nature, calls
attention to the citizen's racial identity. The use of an epithet is therefore strong
evidence that a comment or action is racially motivated. The question in the equal
protection context, however, is not just whether the conduct is racially motivated but
also whether that action deprives a person of "equal protection of the laws." Where
the conduct at issue consists solely of speech, there is no equal protection violation.
Id. As an initial matter, while Kaspar' s comments certainly were either racially-motivated or give
rise to an inference of racial influence, he did not use a racial epithet. He called Koenen a "slow
white boy" and told, presumably, three black players, none of which were Brown, "you wouldn't run
from the cops in [insert city] like that." Most importantly for purposes of this case, though, these
racially insensitive remarks directed at other players on the team "consist solely of speech" and did
not deprive Brown of "equal protection of the laws."
Third, with respect to the comments Kaspar allegedly made while informing Brown he was
no longer on the team, these remarks alone are insufficient to give rise to an equal protection claim
and are too speculative to show Kaspar removed Brown from the team because he was black.
Rather, Kaspar indicated he was not renewing Brown's scholarship because Brown would not be
happy with his playing time. Brown appears to argue the fact Kaspar thought Koenen was a "slow
white boy" but still kept him on the team must mean he discriminated against Brown because he was
black. The Court is unwilling to take this inferential leap. There is no explanation why Kaspar kept
Koenen, even though he was slow and white, just as there is no explanation why Kaspar kept Darius
Richardson, even though he was injured. Kaspar' s comments simply do not sufficiently support the
theory Brown was removed from the team because he was black.
Because Brown cannot show the violation of a clearly established constitutional right,
qualified immunity protects the individual defendants, in this claim Daniel Kaspar, from the claim
of equal protection violations. Because sovereign immunity and qualified immunity operate to shield
the Defendants from the claims based on the Equal Protection Clause, the Court GRANTS
Defendants' Amended Motion to Dismiss with respect to these claims.
1.
Violations of 42 U.S.C. § 1983
Brown alleges all of the Defendants violated 42 U.S.C. § 1983 based on the same allegations
related to his due process and equal protection claims. To state a claim under 42 U.S.C.
§
1983, "a
plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United
States, and (2) demonstrate the alleged deprivation was committed by a person acting under color
of state law." Doe ex rel. Magee v. Covington Cnty.
Sch. Dist., 675 F.3d 849, 854 (5th Cir. 2012)
(citations omitted) (en banc). "State employment is generally sufficient to render the defendant a
-19-
state actor," and a defendant necessarily "acts under color of state law when he abuses the position
givento himbythe State." Westv. Atkins, 487 U.S. 42,49-50(1988) (quotingLugarv. Edmondson
Oil Co., 457 U.S. 922, 936 n.18 (1982)).
First, to the extent Brown brings these
§
1983 claims against TSU and TSUS, these
defendants are shielded from suit by sovereign immunity. The Eleventh Amendment bars
§
1983
suits against state governments in federal court. See Quern, 440 U.S. at 338 (1979). To the extent
Brown brings these
§
1983 claims against the individual defendants in their official capacity, these
claims are also barred by sovereign immunity. See Will v. Michigan Dep 't of State Police, 491 U.S.
58, 71(1989).
Second, to the extent Brown brings these § 1983 claims against the individual defendants in
their individual capacities, Brown fails to show how any of the allegations amount to conduct
violating a clearly established constitutional right. In other words, qualified immunity protects the
individual defendants from these
§
1983 claims. As discussed throughout this Order, and most
particularly in the above sections on alleged due process and equal protection violations, Brown does
not demonstrate Defendants violated his constitutional rights. Because sovereign immunity and
qualified immunity operate to shield the Defendants from Brown's
§
GRANTS Defendants' Amended Motion to Dismiss with respect to these
J.
1983 claims, the Court
§
1983 claims.
"Discrimination of One"
Brown alleges all of the Defendants violated his constitutional right to equal protection "and
caused the discrimination of one" in violation of § 1983. The Court construes this allegation as a
"class of one" equal protection claim. Brown claims Defendants engaged in such discrimination
when they:
-20-
(1) allowed all of the other scholarship athletes in men's basketball to attend summer
I and Summer II with full athletic scholarships while denying such to the Plaintiff
even though the Plaintiff timely filed his appeal and is currently awaiting a hearing
date prior to Summer I and the Plaintiff's full athletic scholarship for 2013-2014
academic year was renewed on June 17, 2013, (2) provided the Plaintiff with a grantin-aid agreement for 2013-2014 academic year that is different from the grant-in-aid
agreement signed by the other full scholarship athletes in men's basketball even
though the Defendants decided to fully renew the Plaintiffs athletic scholarship for
men's basketball for the 2013-2014 academic year without any rational basis for such
different treatment.
Am. Compi. [#5 1], at 47-48.
First, to the extent Brown brings this "class of one" claim against TSU and TSUS, these
defendants are shielded from suit by sovereign immunity, and to the extent he sues the individual
defendants in their official capacity, these claims are also barred by Eleventh Amendment.
Second, to the extent Brown brings this "class ofone" claim against the individual defendants
in their individual capacities, Brown fails to show how the cancellation of his scholarship while
allowing others to keep their scholarships amounts to conduct violating a clearly established
constitutional right. In
Village
of Willowbrook
v.
Olech,
528 U.S. 562, 564-65 (2000), the Court
held the Equal Protection Clause can give rise to a cause of action on behalf of a "class of one" even
when the plaintiff does not allege membership in a protected class or group. To state a claim
sufficient for relief, a single plaintiff must allege an illegitimate animus or ill-will motivated her
intentionally different treatment from others similarly situated and no rational basis existed for such
treatment. Id. For reasons discussed in the above section on Brown's equal protection claims, his
"class of one" claim also fails. Specifically, he fails to meet the "similarly situated" requirement,
and he fails to show Daniel Kaspar's decision to remove Brown from the team was driven by an
illegitimate animus or ill-will.
-21-
Because Brown cannot show the violation of a clearly established constitutional right,
qualified immunity protects the individual defendants from the "class of one" claim of equal
protection violations. Because sovereign immunity and qualified immunity operate to shield the
Defendants from this "class of one" equal protection claim, the Court GRANTS Defendants'
Amended Motion to Dismiss with respect to this claim.
Disability Discrimination
K.
Brown alleges all of the Defendants engaged in disability discrimination against him and
references
§
504 of the Rehabilitation Act and the Individuals with Disabilities in Education Act
(IDEA). Brown claims Defendants discriminated against him based on his disability when:
(1) the Defendants failed to inform the disability center on the TSU campus of the
Plaintiffs temporary disability after his major surgery on September 6, 2011 that
rendered him temporarily disabled thereby causing the Plaintiff to be denied such
relief, and (2) Jason Karlic issued a decision regarding the Plaintiffs medical
condition, that was relied on by TSU in TSU' s refusal to pay Plaintiff's medical bills,
that was not based upon any sound medical doctrine but upon Jason Karlic's
personal, unfounded, opinion.
Am. Compl. [#5 1], at 48-49.
First, to the extent Brown brings these disability discrimination claims against TSU and
TSUS, these defendants are shielded from suit by sovereign immunity, and to the extent he sues the
individual defendants in their official capacity, these claims are also barred by Eleventh Amendment.
Second, to the extent Brown brings these disability discrimination claims against the
individual defendants in their individual capacities, Brown fails to show how the Defendants' failure
to notify the disability center of his temporary disability, Jason Karlic' s determination Brown was
not injured while playing basketball, or TSU's refusal to pay Brown's medical bills amounts to
conduct violating a clearly established constitutional right. In other words, qualified immunity
-22-
protects the individual defendants from these disability discrimination claims. Because sovereign
immunity and qualified immunity operate to shield the Defendants from the disability discrimination
claims, the Court GRANTS Defendants' Amended Motion to Dismiss with respect to these claims.
In the alternative, Brown fails to state a claim under either
or IDEA.
§
504 of the Rehabilitation Act
Section 504 of the Rehabilitation Act prohibits "discrimination against qualified
individuals." Maples v. Univ. of Tex. Med. Branch at Galveston, 901 F. Supp. 2d 874, 878-79 (S.D.
Tex. 2012) (citing Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010)). The Fifth Circuit has not
set forth a ci ear prima facie standard for § 504, but one standard used by district courts requires the
plaintiff to prove: "(1) [he] has a disability; (2) [he] is otherwise qualified to participate in the
defendant's program; and (3) [he] was excluded from the program on the basis of [his] disability."
Maples, 901 F. Supp. 2d at 879-80 (citing Halperin
v.
Wake
Forest Univ. Health Scis., 669 F.3d
454, 461 (4th Cir. 2012)).
First, Brown does not establish he had a "disability." The definition of "disability" set forth
in the Americans with Disabilities Act (ADA) is applicable to claims under the Rehabilitation Act,
and the ADA defines a disability as: "(A) a physical or mental impairment that substantially limits
one or more major life activities of such individual; (B) a record of such impairment; or (C) being
regarded as having such an impairment." Kemp, 610 F.3d at 235 (citing 42 U.S.C.
§ 12 102(1)).
Brown merely states, in a conclusory fashion, he was "temporarily disabled" after "major surgery."
Second, it is unclear from what "program" Brown was excluded. If he is referring to the basketball
team, the claim cannot stand because Brown continued to participate as a member of the basketball
team. If he is referring to some policy by which athletes on scholarship who are injured while
participating in team-related activities have their medical bills paid by the school, then Brown does
-23-
not make this clear. Third, Brown asserts no facts to support exclusion from the "program" was
based on his "disability." Assuming Brown established a "disability" and assuming the "program"
at issue is a policy of paying for a scholarship athlete's medical bills under certain conditions, Brown
was not excluded based on his "disability." Rather, Karlic determined Brown was not injured while
playing basketball, and this was the basis for exclusion from the "program." On these alternative
grounds, Brown's claims under the Rehabilitation Act are dismissed.
Brown also fails to state a claim under IDEA, which, among other things, mandates a "free
public education" for children and sets forth procedures which are "designed to ensure an education
that meets minimal requirements." Morris v. Dearborne, 181 F.3d 657, 674 (5th Cir. 1999) (citing
20 U.S.C.
§
1412(1) & 1415(a)(e)). IDEA requires a state provide services to qualified children
who are between the ages of three and twenty-one years old. 20 u.S.C.
§
1412(a)(l). The wording
of the statute makes clear IDEA does not apply to institutions of higher education. See 20 u.s.c.
§
1401(27) (limiting "secondary school" to the twelfth grade). No provisions of IDEA extend to
colleges or universities. IDEA is simply inapplicable to Brown's allegations, and his IDEA claims
are dismissed on this alternative basis.
L.
Collusion
Brown alleges all of the Defendants engaged in collusion when they colluded to:
(1) cancel the Plaintiff's scholarship for "athletic reasons" even though such is not
allowed by the NCAA and, (2) deny the Plaintiff access to his education records in
a timely manner with the hope of obtaining a dismissal order in these proceedings
before providing the Plaintiff access to these records, (3) obtain a favorable ruling
from the Texas Attorney General thereby denying the Plaintiff access to the
Plaintiff's own educational records while clearly knowing it was unlawful for TSU
to provide the Plaintiff's personally identifiable information to the Texas Attorney
General without the Plaintiff's consent in an effort to unlawfully obtain a favorable
ruling in this cause without ever providing the Plaintiff access to those records, issue
-24-
an unfounded opinion as to the Plaintiff's medical condition in an effort to deny
paying the Plaintiffs unpaid medical bills.
Am. Compi. [#5 1], at 49-50.
First, to the extent Brown brings these collusion claims against TSU and TSUS, these
defendants are shielded from suit by sovereign immunity. State agencies in Texas enjoy sovereign
immunity from suits for intentional torts unless expressly waived by the Texas Tort Claims Act
(TTCA). See Harris County
v.
Dillard, 883 S.W.2d 166, 168 (Tex. 1994). The TTCA does not
waive sovereign immunity for intentional torts.
TEX.
Civ. PRAC.
& REM. §
101.057(2). Moreover,
Section 101.102(a) provides: "[a] suit under this chapter shall be brought in state court in the county
in which the cause of action arose or a part of the cause of action arises."
CODE
§
TEx. CIV. PRAC.
& REM.
101.102(a) (emphasis added). Therefore, Brown could not bring this tort claim in federal
court even if immunity had been waived for intentional torts. And to the extent he sues the
individual defendants in their official capacity, these claims are also barred by Eleventh Amendment.
Second, to the extent Brown brings these collusion claims against the individual defendants
in their individual capacities, Brown fails to show how cancelling his scholarship, denying him
access to his education records, or obtaining a favorable ruling from the Texas Attorney General on
the applicability of the attorneyclient privilege to the documents requested by Brown amounts to
conduct violating a clearly established constitutional right. In other words, qualified immunity
protects the individual defendants from these collusion claims. Because sovereign immunity and
qualified immunity operate to shield the Defendants from the collusion claims, the Court GRANTS
Defendants' Amended Motion to Dismiss with respect to these claims.
-25-
In the alternative, Brown fails to state a claim because collusion is not a separate cause of
action in Texas, and Brown cites no authority indicating otherwise. To the extent, Brown's collusion
claim can be construed as a civil conspiracy claim, he again fails to make out the basic elements of
such an action.
See Massey
v.
Armco
Steel Co.,
652 S.W.2d 932, 934 (Tex. 1983) ("The essential
elements [of a civil conspiracy] are: (1) two or more persons; (2) an object to be accomplished; (3)
a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5)
damages as a proximate result.").
M.
Gross Negligence
Brown alleges all of the Defendants were grossly negligent when they:
(1) forced the Plaintiff to lift additional weights while the Plaintiff was still
recovering from a maj or surgery less than four months earlier while knowing that the
doctor's order after surgery forbid such without any disregard to the safety of the
Plaintiff
Am. Compl. [#5 1], at 50.
First, to the extent Brown brings this gross negligence claim against TSU and TSUS, these
defendants are shielded from suit by sovereign immunity. While the TTCA waives sovereign
immunity for the State, the waiver is limited, and Brown does not state facts sufficient to invoke the
limited waiver provided in
TEX. CIV. PRAC.
& REM.
§
101.02 1(2). This provision provides: "A
governmental unit in the state is liable for personal injury and death so caused by a condition or use
of tangible personal or real property if the governmental unit would, were it a private person, be
liable to claimant according to Texas law."
TEX. CIV. PRAC. & REM. §
not "use" the weight-lifting equipment for purposes of the TTCA.
101.02 1(2). Defendants did
See Tex.
A&M Univ.
v.
Bishop,
156 S.W.3d 580, 583 (Tex. 2005) ("A governmental unit does not 'use' personal property merely
-26-
by allowing someone else to use it and nothing more."(quoting San Antonio State Hosp.
128 S.W.3d 244, 246 (Tex. 2004))). Moreover, even
v.
Cowan,
if Brown had stated sufficient facts to bring
his negligence claim, Section 101 .102(a) of the TTCA requires lawsuits brought pursuant to the
TTCA be filed in state court, not federal court. And to the extent he sues the individual defendants
in their official capacity, these claims are also barred by Eleventh Amendment.
Second, to the extent Brown brings this gross negligence claim against the individual
defendants in their individual capacities, Brown fails to show how "forcing" Brown to lift weights
while knowing he was recovering from surgery and not yet cleared by his doctor to lift weights
amounts to conduct violating a clearly established constitutional right. In other words, qualified
immunity protects the individual defendants from these disability discrimination claims. Because
sovereign immunity and qualified immunity operate to shield the Defendants from the disability
discrimination claims, the Court GRANTS Defendants' Amended Motion to Dismiss with respect
to these claims.
In the alternative, Brown fails to make out a claim for negligence, which requires a showing:
(1) the defendant owed a legal duty to the plaintiff, (2) the defendant breached the duty, and (3) the
breach proximately caused the plaintiffs injury. See Western Invs.
v.
Urena, 162 S.W.3d 547, 550
(Tex. 2005). Brown does not identify a duty owed by any of the Defendants, nor does he show those
duties were breached. On these alternative grounds, Brown's claim for negligence must be
dismissed.
-27-
III.
Amended Emergency Motion to Reconsider Order Denying Plaintiff Access to
Plaintiffs Own Education Records
In the Order ofNovember 12,2013 [#91], the Court addressed an ongoing discovery dispute.
In essence, Brown had made certain requests for documents on May 8, 2013 pursuant to the Public
Information Act (PTA) and FERPA, and TSU had provided Brown with the pertinent information
with the exception of approximately thirty-four emails TSU withheld on the grounds of
attorneyclient privilege. The Court reviewed under seal and exparte the withheld documents, and
determined the information was privileged except for some attachments to the emails which
consisted of communications where either Brown or Brown's parents were either the sender or
recipient of the message. The Court also stated it would not consider any more discovery disputes
(specifically requests made by Brown for information on May 25, 2013, and June 1, 2013) until
handling the motion to dismiss stage of this matter.
On November 22, 2013, Brown filed an Emergency Motion to Reconsider Order Denying
Plaintiff Access to Plaintiffs Own Education Records [#94], and on November 25, 2013, Brown
filed an Amended Emergency Motion to Reconsider Order Denying Plaintiff Access to Plaintiffs
Own Educational Records [#96].
A.
Legal StandardMotion to Reconsider
The Federal Rules of Civil Procedure do not recognize a "motion for reconsideration" by that
name, and Brown did not provide a rule of procedure under which he urges its motion. A court may
reconsider an interlocutory order pursuant to Federal Rule of Civil Procedure 54(b). While the Court
has authority to reconsider and reverse its decision for any reason it deems sufficient, district courts
consistently utilize the standards of Federal Rule of Civil Procedure 59 to inform their analysis of
a reconsideration request. Sawqui v. Pride Cent. Am., LLC, 595 F.3d 206, 210-11(5th Cir. 2010)
(citing Lavespere
Viadamir Ltd.
v.
v.
Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990));
Pac. Parts Supply Co., No. SA-08-CV-819-XR, 2009 WL 4110288, at *2 (W.D.
Tex. Nov. 20, 2009). To prevail on a Rule 59 motion, the movant must show at least one of the
following: (1) an intervening change in controlling law; (2) new evidence not previously available;
or (3) the need to correct a clear or manifest error of law or fact or to prevent manifest injustice. In
re Benjamin Moore & Co., 318 F.3d 626, 629 (5th Cir. 2002). Brown's motion appears to be
premised on the argument reconsideration is necessary to correct an error oflaw or fact, or to prevent
manifest injustice.
B.
Application
In sum, Brown's Amended Motion to Reconsider merely rehashes arguments previously
raised in support of his motions. For the reasons previously stated in this Court's Order of
November 12, 2013, the motion is DENIED.
Brown again complains Defendants submitted information to the Open Records Division of
the Office of the Attorney General (OAG) for a determination of the applicability of attorneyclient
privilege, and unlawfully included Brown's "personally identifiable information" and/or his
"personal education records." What information Brown is referring to remains a complete mystery
to the Court.
In response to Brown's request for information, Defendants provided Brown
documents with the exception of thirty-four emails. This Court reviewed those emails, which mostly
consisted of communications between TSU's lawyers and its employees. The Court made sure any
attachments with Brown or his parents as communicating parties were not covered by the
attorneyclient privilege. The Court does not understand what "personally identifiable information"
-29-
or what "personal education records" Brown continues to seek, and Brown does not help the Court
by explaining the nature of this desired information. Nevertheless, Brown continues to assert
Defendants are "withhold[ing] several ofthe Plaintiff's own personal education records in which the
Plaintiff is not a sender, or receiver, of the education record duly requested by the Plaintiff on May
8, 2013, May 25, 2013, and July 1, 2013
by claiming the attorney client privilege exception." Pl.'s
Am. Emergency Mot. to Reconsider [#96], at 3. To the extent Brown is arguing the communications
between TSU's lawyers and its employeesthe only documents being withheld from
Brownconstitute Brown's "personally identifiable information" or "personal education records"
under FERPA, the Court rejects this argument, and Brown cites no authority to support such a
contention.
IV.
Motion for Extension of Time
On December 9,2013, Brown filed a Motion for Extension of Time to File a Response to the
Amended Motion to Dismiss [#99]. Brown asserts a number of supposed grounds for his motion.
First, Brown continues to insist he needs the "personal education records," which Defendants are
withholding from him under the pretense of attorneyclient privilege, in order to substantiate his
claims of unlawful discrimination and retaliation. Because, as of the filing of Brown's motion, the
Court had not ruled on his Amended Emergency Motion to Reconsider [#94], Brown claims he
cannot effectively file a response to the Amended Motion to Dismiss.
Second, Brown tells the Court:
Beginning on November 5, 2013, the Plaintiff was in the midst of a severe weather
ice storm since December 5, 2013. The location where the Plaintiff routinely does
his legal research was closed due to severe hazardous weather conditions. All other
locations were also closed. As a result, the Plaintiff was unable to do the legal
-30-
research necessary to prepare a response to the Defendant's amended motion to
dismiss filed in this cause on November 18, 2013.
Pl.'s Mot. Extend [#99], at 3.
Third, Brown asks for additional time because from December 9, 2013, until December 13,
2013, "Plaintiff's senior year has come to final exams. As a result, the Plaintiff will be unable to
even begin any legal research necessary to prepare a response.
. .
." Id.
Brown's motion is DENIED for the following reasons. First, the Amended Motion to
Dismiss was filed November 18, 2013, giving Brown fourteen days, or until December 2, 2013, to
file his response.
See
Local Court Rule CV-7(e)(2). He now files his Motion for Extension on
December 9, 2013, approximately a week after the response was due. Second, Brown further
indicates he has not even started work on his response considering he states he "will be unable to
even begin any legal research" until the final exam period is over. Third, he does not even indicate
a day by which he will have his response ready. Fourth, the Amended Motion to Dismiss is
substantively the same as the original Motion to Dismiss [#3 5], and Brown filed a Response [#59]
to this original Motion to Dismiss, indicating he has previously done the bulk of the legal research
necessary to file a response. Fifth, despite Brown's insistence to the contrary, he does not need, nor
will he receive as reflected in this Order, the documents being withheld by Defendants under the
attorneyclient privilege; Brown's ability to file a Response to the Amended Motion to Dismiss has
nothing to do with this discovery issue. Sixth, Brown's claims of a "severe weather ice storm"
lasting apparently from November 5, 2013 until December 5, 2013, strains the Court's patience. Or
perhaps Brown is suggesting the "severe weather ice storm" began December 5, 2013 and lasted
until an unspecified date; his motion is unclear. Of course, if the storm began December 5, 2013,
-31-
it should bear little on the matter since the response was due December 2, 2013. Assuming for the
moment there is any merit whatsoever to this excuse, Brown fails to specify where he has been, what
weather storm he refers to, where exactly he routinely conducts his legal research, or his contention
"all other locations were also closed." He also has consistently submitted filings in this matter since
November 18, 2013, when the Amended Motion to Dismiss was filed, casting doubt on his
suggestion he could not possibly file a response, including: (1) Motion for Reconsideration [#94]
on November 22, 2013; (2) Notice of Appeal of Interlocutory Orders [#95] on November 22, 2013;
(3) Amended Motion for Reconsideration [#96] on November 25, 2013; (4) Reply to Response to
Amended Motion for Reconsideration [#97] on December 8,2013; and (5) this Motion for Extension
[#99] on December 9, 2013. Considering all these circumstances, the Court declines to give Brown
extra time to file his response.
Conclusion
A review of the docket sheet in this matter demonstrates, as does the length of this Order,
Plaintiff Brown has occupied significant resources of this Court since he filed his lawsuit on June
5, 2013.
Brown's multitude of motionsall of which have been deniedinclude, five motions for
temporary restraining orders, two motions for preliminary injunctions, motions to amend this Court's
orders, motions to reconsider this Court's orders, multiple complaints, multiple emergency motions
to compel, and so on and so forth. Nowhere in this endless barrage
of paper does Brown state a
claim for the violation of any recognized constitutional right or demonstrate liability on behalf of any
of the thirteen Defendants he sues. While the Court does not doubt the sincerity of Brown's belief
he has been wronged by the actions of Texas State University and its employees, this passion does
not give this Court jurisdiction over his dilemma. Nor does this belief excuse his refusal to
-32-
acknowledge the obvious, which should have been clear to him from the moment his first motion
for a TRO was denied on the grounds he failed to demonstrate a substantial likelihood of success on
the merits: the federal courts do not have subject matter jurisdiction over his claims, and his
allegations, as pled, do not state a claim upon which relief can be granted. As it were, he has
persisted, undaunted by this Court's orders, and in so doing has occupied substantial amounts of the
Court's time, effort, and expenses, not to mention those of Texas State University and its employees.
In the Court's view, this case should be closed, and while the Court has considered imposing Rule
11
sanctions and attorneys' fees to be paid by Brown to Defendants, the Court ultimately decided
against it, hoping instead Brown might receive this Order as his wake up call.
Because this Court has no jurisdiction over Brown's claims, because Brown fails to state a
claim upon which relief can be granted, and because Brown has received more than his fair share of
attention from this Court: (1) Defendants' Amended Motion to Dismiss is GRANTED, (2) Plaintiff's
Amended Emergency Motion to Reconsider is DENIED, and (3) Plaintiff's Motion for Extension
of Time is DENIED.
Accordingly,
ITIS ORDERED that Defendants' Amended Motion to Dismiss [#93] is GRANTED;
IT IS FURTHER ORDERED that Plaintiff's Emergency Motion to Reconsider Order
Denying Plaintiff Access to Plaintiff's Own Education Records [#94] is DISMISSED AS
MOOT;
IT IS FURTHER ORDERED that Plaintiff's Amended Emergency Motion to
Reconsider Order Denying Plaintiff Access to Plaintiff's Own Educational Records [#96] is
DENIED;
-33-
IT IS FURTHER ORDERED that Plaintiff's claims against Defendants are
DISMISSED WITHOUT PREJUDICE;
IT IS FINALLY ORDERED that Plaintiffs Motion for Extension of Time to File
Response to Defendants' Amended Motion to Dismiss
SIGNED this the
[99]
is DENIED.
//-day of December 2013.
SAM SPARKS
UNITED STATES DISTRICT JUDGE
483
iitd
ordjtw2.wpd
34
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