Baldwin v. Sullivan et al

Filing 44

ORDER GRANTING Defendant Sullivan's 13 Motion to Dismiss. ORDER GRANTING Defendant Texas Department of Insurance, Divison of Workers' Compensation's 28 Motion to Dismiss. ORDER DENYING Plaintiff's 14 Motion for Leave to F ile Second Amended Complaint. Additionally, Plaintiff is ORDERED to show cause in writing to the Court on or before October 26, 2018, as to why the claims against the Defendant OIEC should not be dismissed for failure to timely effectuate service. Signed by Judge Robert Pitman. (lt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
LINDA BALDWIN,
Plaintiff,
v.
KENT SULLIVAN, in his official capacity as the
Commissioner of the Texas Department of Insurance;
TEXAS DEPARTMENT OF INSURANCE,
DIVISION OF WORKERS’
COMPENSATION; and OFFICE OF
INJURED EMPLOYEE COUNSEL;
Defendants.

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1:18-CV-36-RP

ORDER
Before the Court are two motions to dismiss filed by Defendants Kent Sullivan (“Sullivan”)
and the Texas Department of Insurance, Division of Workers’ Compensation (the “Division of
Workers’ Compensation”) (collectively, “Defendants”). 1 (Dkts. 13, 28). Baldwin responded to
Defendants’ motions, (Dkts. 17, 31), and Defendants replied, (Dkts. 18, 33). Also before the Court
is Baldwin’s Motion for Leave to File Second Amended Complaint. (Dkt. 14). Sullivan responded to
Baldwin’s motion, (Dkt. 15), and Baldwin replied, (Dkt. 17, at 1–2). Having reviewed the parties’
briefing, the evidence, and the relevant law, the Court finds that Defendants’ motions to dismiss,
(Dkts. 13, 28), should be GRANTED, and Baldwin’s motion for leave to file second amended
complaint, (Dkt. 14), should be DENIED.
Based on Baldwin’s complaint and subsequent filings, it is not clear whether she alleges claims against only Sullivan, or
against Sullivan, the Division of Workers’ Compensation, and the Office of Injured Employee Counsel (“OIEC”). She
includes all three in her case caption, (see Dkt. 6, at 1), and some of her claims appear directed to all three parties, (see id.
at 5–6). But only Sullivan has been served, (Dkt. 8), and Baldwin dropped the other parties from the caption in later
filings, (see, e.g., Dkt. 17, Dkt. 31). Based on the allegations and the liberal construction afforded to pro se pleadings, see
Perez v. United States, 312 F.3d 191, 194–95 (5th Cir. 2002), the Court construes Baldwin’s claims as brought against
Sullivan, the Division of Workers’ Compensation, and the OIEC. The OIEC is a separate governmental entity
independent of the Division of Workers’ Compensation. See Tex. Labor Code § 404.002(b). Because OIEC has not yet
been served in this case or filed any motion with the Court in this case, the Court will analyze Baldwin’s claims with
respect to Sullivan and the Division of Workers’ Compensation.
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I. BACKGROUND
Plaintiff Linda Baldwin is a former employee of Extended Stay America, where she worked
as a Guest Service Registration Attendant. (Compl., Dkt. 6, at 2, 6; Compl., Ex. A, Dkt. 6-1, at 3).
Baldwin alleges that, as a result of repetitive motions over an extended period of time, she developed
plantar fasciitis and other ailments in her left foot and legs in August 2006. (Compl., Dkt. 6, at 6).
Since 2006, she sought and received medical treatment for her injuries, including surgery. (Id. at 2–3;
Compl., Ex. E, Dkt. 6-1, at 14–15).
The timeline following Baldwin’s injury is not clear from the complaint. Baldwin alleges she
reported her injuries to her employer and sought assistance with her claims from the OIEC. (See
Compl., Ex. D, Dkt. 6-1, at 12). Relevant to this case, Baldwin participated in two separate contested
hearings with the Division of Workers’ Compensation related to compensation claims with her
employer’s workers’ compensation insurance carrier, Zurich American Insurance Co. (“Zurich”).
(See Compl., Dkt. 6, at 2, 4; Compl., Ex. A, Dkt. 6-1, at 8, 10, 28).
The first hearing was held on June 14, 2012. (Compl., Ex. A, Dkt. 6-1, at 24). At some point,
Baldwin’s employer notified Zurich about her injury, and Zurich apparently denied benefit
payments. Baldwin submitted two compensation claims with the Division of Workers’
Compensation. (See Compl., Dkt. 6, at 3–4; Compl., Ex. A, Dkt. 6-1, at 23). OIEC offered assistance
for the hearing, but Baldwin appeared without representation. 2 (Compl., Ex. A, Dkt. 6-1, at 23; Mot.
Dismiss, Ex. A, Dkt. 13-1, at 24). On June 22, 2012, the hearing officer found Zurich not liable for
either claim. (Compl., Ex. J, Dkt. 6-1, at 28; see Mot. Dismiss, Ex. A, Dkt. 13-1, at 23–29). 3 On
September 4, 2012, a Division of Workers’ Compensation panel affirmed both decisions. (Mot.
Dismiss, Ex. A, Dkt. 13-1, at 4, 7, 10).
Baldwin alleges that she was denied assistance for these claims. (Compl., Dkt. 6, at 7). It is not clear whether Baldwin
declined assistance or OIEC failed to provide assistance on these claims.

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Baldwin attached excerpts of the hearings to her complaint, (Compl., Dkt. 6-1); Sullivan attached the full documents in
his motion to dismiss. (See Mot. Dismiss, Ex. A, Dkt. 13-1; Mot. Dismiss, Ex. B, Dkt. 13-2).

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The second contested hearing occurred four years later on October 19, 2016. Baldwin
submitted a separate compensation claim. (Compl., Ex. B, Dkt. 6-1, at 8). This time, Baldwin
requested and received OIEC assistance at the hearing. (Id. at 2). Even so, the hearing officer denied
Baldwin’s claim, finding that she had not sustained a compensable repetitive trauma injury and that
Zurich was relieved from liability because Baldwin failed to timely file a claim for compensation
within one year of the injury as required by Texas law. (Id. at 8). Baldwin sought review of that
decision, (id. at 3), but a Division of Workers’ Compensation panel issued a letter order finalizing the
decision on January 17, 2017, (id., Ex. C, at 10; Mot. Dismiss, Ex. B, Dkt. 13-2, at 1).
On January 17, 2018, Baldwin filed this suit pro se, 4 naming the Division of Workers’
Compensation, the OIEC, and Kent Sullivan as defendants. (Dkt. 1). In her amended complaint,
Baldwin includes three claims: (1) deprivation of her federal rights and property interests by failing
and refusing to help her with her medical needs under 42 U.S.C. § 1983, (Compl., Dkt. 6, at 7); (2)
discrimination based on disability under Title II of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12131, (id. at 8); and (3) discrimination based on disability in violation of Michigan’s
Persons with Disabilities Civil Rights Act (“PDCRA”), Mich. Comp. Laws § 37.1101 et seq., (id. at
9). 5 Baldwin seeks both compensatory and punitive damages as well as various forms of injunctive
relief. Defendants filed motions to dismiss arguing that her claims should be dismissed pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkts. 13, 28).

This is not the first action Baldwin has filed on this matter. Baldwin has previously filed several lawsuits in Texas state
courts complaining of the denial of benefits. See Baldwin v. Zurich Am. Ins. Co., Cause No. D-1-GN-12-003139 (353rd Civ.
Dist. Ct. Travis Cty. 2012); Baldwin v. Zurich Am. Ins. Co., D-1-GN-13-001281 (261st Civ. Dist. Ct. Travis Cty. 2013);
Baldwin v. Zurich Am. Ins. Co., D-1-GN-13-002454 (53rd Civ. Dist. Ct. Travis Cty. 2013); Baldwin v. Zurich Am. Ins. Co., D1-GN-17-000151 (98th Civ. Dist. Ct. Travis Cty. 2017). She also sued Zurich in this Court in connection with the denial
of benefits. See Baldwin v. Zurich Am. Ins. Co., No. 1:17-CV-149-RP, 2017 WL 2963515 (W.D. Tex. July 11, 2017).
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In Baldwin’s motion seeking leave to file her second amended Complaint, (Dkt. 14), her proposed amended complaint
abandons her PDCRA claim. (See Dkt. 14-1, at 11–12). Instead, Baldwin includes an additional claim for discrimination
based on disability under the ADA. (Id.). The substance of that allegation, however, is identical to the PDCRA claim in
Baldwin’s First Amended Complaint; the only proposed change is that Baldwin removed any reference to Michigan’s
PDCRA. (Compare Dkt. 14-1, at 11–12, with Dkt. 6, at 9).

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II. LEGAL STANDARD

A. Rule 12(b)(1)
Under Rule 12(b)(1), a court may dismiss a complaint for “lack of subject-matter
jurisdiction.” Fed. R. Civ. P. 12(b)(1). A case is properly dismissed for lack of subject matter
jurisdiction when the court lacks “the statutory or constitutional power to adjudicate the case.” Home
Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998). The court may
dismiss a complaint for lack of jurisdiction based on: (1) the face of the complaint; (2) the complaint
supplemented by undisputed facts from the record; and (3) the complaint supplemented by
undisputed facts and the court’s resolution of disputed facts. Montez v. Dep’t of Navy, 392 F.3d 147,
149 (5th Cir. 2004). The court may “weigh the evidence and satisfy itself” that subject matter
jurisdiction exists. MDPhysicians & Assocs., Inc. v. State Bd. Of Ins., 957 F.2d 178, 181 (5th Cir. 1992)
(quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). The party asserting jurisdiction
bears the burden of proof. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Dismissal
under 12(b)(1) is not a determination on the merits and does not prevent a plaintiff from pursuing a
claim in a court with proper jurisdiction. Id. The court should grant a 12(b)(1) motion to dismiss
only if it appears certain that the plaintiff cannot prove any set of facts that would entitle her to
recovery. Morris v. Thompson, 852 F.3d 416, 419 (5th Cir. 2017).

B. Rule 12(b)(6)
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a Rule 12(b)(6) motion to dismiss,
a complaint ‘does not need detailed factual allegations,’ but must provide the plaintiff’s grounds for
entitlement to relief—including factual allegations that when assumed to be true ‘raise a right to
relief above the speculative level.’” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[A] complaint must contain sufficient factual
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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when “the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. In reviewing a motion to
dismiss, the court considers the content of the pleadings and any attached documents, as well as
documents attached to a motion to dismiss if they are referred to in the complaint and central to the
plaintiff’s claims. Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763, 766–67 (5th Cir. 2016).
III. DISCUSSION
The Court first addresses Defendants’ jurisdictional arguments before deciding whether
Baldwin fails to state a claim. See Ramming, 281 F.3d at 161.

A. Eleventh Amendment Immunity
Defendants argue, among other things, that the Court lacks jurisdiction because they are
immune from suit under the Eleventh Amendment. (Dkt. 13, at 7; Dkt. 28, at 7–9). Eleventh
Amendment immunity deprives a federal court of jurisdiction to hear a suit against a state. See
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Voisin’s Oyster House, Inc. v. Guidry,
799 F.2d 183, 186 (5th Cir. 1986). Eleventh Amendment immunity is considered a jurisdictional bar;
claims barred by sovereign immunity are properly dismissed under Rule 12(b)(1) without prejudice.
Warnock v. Pecos Cty., Tex., 88 F.3d 341, 343 (5th Cir. 1996).
The Eleventh Amendment is properly invoked when the state is “the real, substantial party
in interest.” Pennhurst, 465 U.S. at 101 (quoting Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 464
(1945). The state is a real, substantial party in interest when “the judgment sought would expend
itself on the state treasury or domain or would restrain the state from acting or compel it to act.”
Warnock, 88 F.3d at 343 (citing Pennhurst, 465 U.S. at 101 n.11). “[A] plaintiff cannot avoid the
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sovereign immunity bar by suing a state agency or an arm of a State rather than the State itself.”
Richardson v. S. Univ., 118 F.3d 450, 452 (5th Cir. 1997). One exception, however, is that the
Eleventh Amendment does not bar federal courts from granting prospective injunctive relief for
violations of federal law. Ex parte Young, 209 U.S. 123, 159 (1908); Edelman v. Jordan, 415 U.S. 651,
667–68 (1974); Aguilar v. Tex. Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). Whether
this Court has jurisdiction over Baldwin’s § 1983 and ADA claims thus depends on (1) whether the
Division of Workers’ Compensation is a state entity, and (2) the nature of the relief Baldwin seeks.
The Division of Workers’ Compensation is a state entity. The Court considers six factors to
determine whether an agency is an arm of the state:
(1) whether state statutes and case law characterize the agency as an arm of the state;
(2) the source of funds for the entity; (3) the degree of local autonomy the entity
enjoys; (4) whether the entity is concerned primarily with local, as opposed to
statewide, problems; (5) whether the entity has authority to sue and be sued in its
own name; and (6) whether the entity has the right to hold and use property.
Minton v. St. Bernard Par. Sch. Bd., 803 F.2d 129, 131 (5th Cir. 1986) (quoting Clark v. Tarrant Cty.,
Tex., 798 F.2d 736, 748 (5th Cir. 1986)). A review of these factors supports finding that the Division
of Workers’ Compensation is a state entity.
Texas defines “state government” as “an agency, board, commission, department, or office
. . . that: (A) was created by the constitution or a statute of this state; and (B) has statewide
jurisdiction.” Tex. Civ. Prac. & Rem. Code § 101.001(6). Here, the Division was created by the laws
of the state of Texas as a division within the Texas Department of Insurance, a state agency. Tex.
Labor Code § 402.001. The Division also has statewide jurisdiction; it administers and operates the
workers’ compensation system of the state. Id. Baldwin does not dispute that the Division is an arm
of the state governed by a state statutory scheme. The Court finds that the Division of Workers’
Compensation is a state entity. The only remaining question, then, concerns the nature of relief
sought under § 1983 and the ADA. The Court considers each claim in turn.
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1. Section 1983
Baldwin alleges that “Defendant has deprived Plaintiff of her federal constitution and
statutory rights by failing and refusing” to service her medical needs under 42 U.S.C. § 1983.
(Compl., Dkt. 6, at 7). Specifically, she asserts that Defendants 6 “deprived Plaintiff of her federal
rights, property interest and otherwise discriminate[d] against Ms. Baldwin[] based on her disability.”
(Id.). Defendants argue they are immune from suit.
Section 1983 does not waive state sovereign immunity. See Quern v. Jordan, 440 U.S. 332, 338
n.7 (1979). To the extent that Baldwin seeks monetary damages or retroactive injunctive relief
against Sullivan in his official capacity 7 or the Division of Workers’ Compensation under § 1983,
those claims are barred. See Papasan v. Allain, 478 U.S. 265, 277–78 (1986). A court’s remedial power
under § 1983 against public officials in their official capacity is limited to prospective injunctive
relief; a court cannot award money damages from a public official or a state agency. See Ex Parte
Young, 209 U.S. 123 (1908). Additionally, Young only allows a remedy for ongoing violations of
federal law rather than discrete violations that occurred in the past. Papasan, 478 U.S. at 277–78.
On Baldwin’s remaining claims for relief, Defendants argue that Baldwin lacks an ongoing
violation of federal law that would entitle her to injunctive relief from a state agency or public
official under § 1983. (Mot. Dismiss, Dkt. 13, at 7–8; Mot. Dismiss, Dkt. 28, at 7–8). The Court
agrees.
Suits against officials in their official capacities generally represent another way of pleading an action against an entity
of which an officer is a part. Rayborn v. Bossier Sch. Bd., 881 F.3d 409, 417 (5th Cir. 2018) (quoting Kentucky v. Graham, 473
U.S. 159, 165–66 (1985)). The Court will thus analyze Baldwin’s claims against Sullivan in his official capacity and her
claims against the Division of Workers’ Compensation under the same standard.

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It is unclear whether Baldwin is suing Sullivan in his individual capacity, official capacity, or both. In order to state a
claim against Sullivan as an individual under § 1983, Baldwin must allege either that Sullivan “was personally involved in
the acts causing the deprivation of his constitutional rights or that a causal connection exists between an act of the
official and the alleged constitutional violation.” Douthit v. Jones, 641 F.2d 345, 346 (5th Cir. 1981). In her captions and
responses, Baldwin specifically asserts claims against Sullivan in his official capacity only. (See, e.g., Pl.’s Resp. Mot.
Dismiss, Dkt. 17, at 1). Baldwin also clarifies she “files this claim against Mr. Sullivan because his agency receives federal
grant money to oversee the 14th Amendment.” (Pl.’s Resp. Mot. Dismiss, Dkt. 31, at 2). She was denied services from
programs “Sullivan oversees and administered.” (Id.). Her claims thus appear to be based on Sullivan’s official authority
as Commissioner rather than any personal involvement he had in denying Baldwin’s claims. The Court thus construes
Baldwin’s § 1983 claims against Sullivan in his official capacity only.
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At first glance, Baldwin appears to seek prospective injunctive relief. For example, she
“prays that Commissioners Sullivan will strengthen amend its policies with zero tolerance
concerning prejudice, ADA accommodation and retaliation through his division” and she seeks “an
order enjoining/restraining Defendant from further acts of discrimination or retaliation.” (Compl.,
Dkt. 6, at 10). On closer inspection, however, Baldwin has not alleged any ongoing injury that
entitles her to prospective relief. Her complaint focuses on the treatment she received during two
contested hearings on her workers’ compensation claims. (See id. at 2–4). Even under the liberal
construction afforded to pro se plaintiffs, see Perez, 312 F.3d at 194–95, Baldwin’s complaint is best
construed as an attempt to contest the Division of Workers’ Compensation’s decision to deny her
compensation claims. There is nothing in the complaint to indicate that she continues to experience
an ongoing violation of her federal rights. The Court thus finds that the Eleventh Amendment bars
Baldwin’s § 1983 claims against the Division of Workers’ Compensation and Sullivan.
2. Title II of the Americans with Disabilities Act
Baldwin also alleges discrimination under Title II of the ADA because she “has been denied
and excluded from the benefits of Defendant [sic] program services which would provide Plaintiff a
less confining program that satisfies Plaintiff [sic] needs.” (Compl., Dkt. 6, at 8). By excluding her
from “the Program and services,” Baldwin says Defendants discriminated against her based on
disability, age, and need for medical care; limiting the availability of services based on her disability;
and denying her the opportunity to receive benefits afforded to other qualified individuals. (Id.).
Defendants argue that because no conduct by either Defendant implicates Baldwin’s right of access
to the courts or violates the Fourteenth Amendment, the Eleventh Amendment bars her ADA
claim. (Mot. Dismiss, Dkt. 13, at 11; Mot. Dismiss, Dkt 28, at 8).
Title II of the ADA prohibits discrimination based on disability in the provision of public
services. Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011). Specifically, Title II provides
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that “no qualified individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a public entity, or
be subjected to discrimination by any such entity” 42 U.S.C. § 12132. The ADA contains a clear
expression of congressional intent to abrogate state sovereign immunity. Tennessee v. Lane, 541 U.S.
509, 518 (2004). To determine whether Title II validly abrogates state sovereign immunity, courts
apply a three-part inquiry detailed in United States v. Georgia, 546 U.S. 151, 156 (2006). Hale v. King,
642 F.3d 492, 497–98 (5th Cir. 2011) (per curiam).
First, a court must determine “which aspects of the State’s alleged conduct violated Title II.”
Georgia, 546 U.S. at 159. Then, the court assesses “to what extent such misconduct also violated the
Fourteenth Amendment.” Id. “If the State’s conduct violated both Title II and the Fourteenth
Amendment, Title II validly abrogates state sovereign immunity.” Hale, 642 F.3d at 498. Otherwise,
the court proceeds to the third step: “whether Congress’s purported abrogation of sovereign
immunity” as to conduct that violates Title II of the ADA but not the Fourteenth Amendment
independently is “nevertheless valid.” Georgia, 546 U.S. at 159.
Here, Baldwin’s claim fails at step one—she has not identified which aspects of the Division
of Workers’ Compensation’s conduct violated Title II. See Hale, 642 F.3d at 498 (analyzing whether
Title II of the ADA was violated and declining to address the remaining Georgia steps). In order to
state a prima facie case under Title II of the ADA, a plaintiff must allege that (1) she has a qualifying
disability; (2) she is “being denied the benefits of services, programs, or activities for which the
public entity is responsible, or is otherwise discriminated against by the public entity;” and (3) such
discrimination is by reason of her disability. Id. at 499.
Baldwin fails to state a prima facie claim under Title II for two reasons. First, she has not
identified a qualifying disability under the ADA. She notes that she was injured and required medical
care, (Compl., Dkt. 6, at 2–3, 6), but she does not otherwise specify how her impairment
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substantially limits a major life activity as required by the ADA. See Hale, 642 F.3d at 500 (analyzing
whether a disability substantially interferes with a major life activity under the ADA). Second, she
has not sufficiently alleged discrimination by reason of her disability. Baldwin’s compensation claims
were denied, but she does not explain why she was denied beyond conclusory allegations of
discrimination. In fact, the Division of Workers’ Compensation’s decisions make clear she was
denied not because of her disability or age, but because she (1) did not sustain her injury in the
course of employment, (2) failed to inform her employer within 30 days of her injury as required by
statute, and (3) failed to timely file a claim for compensation within one year as required by statute.
(See Mot. Dismiss, Ex. A, Dkt. 13-1, at 25–28; Mot. Dismiss, Ex. B, Dkt. 13-2, at 4–6). Baldwin has
not alleged facts that would allow the Court to infer that disability was a factor in denying her claims.
Having concluded that Baldwin failed to state a violation of Title II, the Court finds that
analysis of the remaining Georgia prongs is not necessary. Hale, 642 F.3d at 503. Baldwin’s Title II
claim under the ADA is barred by the Eleventh Amendment.

B. Michigan’s Persons with Disabilities Civil Rights Act
Baldwin also asserts a claim under Michigan’s Persons with Disabilities Civil Rights Act
(“PDCRA”), Mich. Comp. Laws § 37.1101, et seq. Defendants argue that Baldwin fails to assert a
claim under the PDCRA because Baldwin has not explained why Michigan law should apply here.
(Mot. Dismiss, Dkt. 13, at 14; Mot. Dismiss, Dkt. 28, at 11). The Court agrees.
No legal theory supports applying Michigan law to the facts of this case. “A federal court
sitting in diversity applies the conflict-of-laws rules of the state in which it sits.” Vasquez v.
Bridgestone/Firestone, Inc., 325 F.3d 665, 674 (5th Cir. 2003). “Texas applies the ‘most significant
relationship’ test,” considering “various contacts: the place where the injury occurred, the place
where the injury causing conduct occurred, the parties’ residence, and the place where the
relationship, if any, between the parties is centered.” Id. (citing Gutierrez v. Collins¸583 S.W.2d 312,
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318–19 (Tex. 1979); RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145 (1971)). All of these
factors support applying Texas law. It is undisputed that all the events occurred in Texas while
Baldwin was a Texas resident. (See Compl., Ex. A, Dkt. 6-1, at 12). And both the Texas Department
of Insurance and the Division of Workers’ Compensation are creatures of Texas law. See Tex. Ins.
Code § 31.031; Tex. Labor Code § 402.001. Baldwin’s PDCRA claim is dismissed.

C. Leave to Amend
Finally, the Court considers whether to allow Baldwin the opportunity to amend her
complaint in order to state a valid claim. Baldwin seeks leave to file her second amended complaint
(Dkt. 14). In both her motion and her reply), Baldwin offers no explanation for why she seeks leave
to amend. (See Mot. Leave to File Second Am. Compl., Dkt. 14, at 1; Pl.’s Reply Mot. Leave File
Second Am. Compl., Dkt. 17, at 1–2). Defendants argue that any attempt to amend would be futile.
(Mot. Dismiss, Dkt. 13, at 15; Def.’s Resp. Mot. Leave File Second Am. Compl., Dkt. 15, at 2).
Under Federal Rule of Civil Procedure 15, leave to amend should be freely given when
justice so requires. Fed. R. Civ. P. 15(a). Generally, a pro se litigant should be afforded an opportunity
to amend her complain before it is dismissed. Brewster v. Dretke¸587 F.3d 764, 767–68 (5th Cir. 2009).
Leave to amend, however, is not required where a plaintiff has already pleaded her “best case.” Id.;
Hale, 642 F.3d at 503. A plaintiff has pleaded her best case after she is “apprised of the
insufficiency” of her complaint. Morrison v. City of Baton Rouge, 761 F.2d 242, 246 (5th Cir. 1985).
Similarly, a court need not grant a futile motion to amend. Legate v. Livingston, 822 F.3d 207, 211 (5th
Cir. 2016). “Futility is determined under Rule 12(b)(6) standards, meaning an amendment is
considered futile if it would fail to state a claim upon which relief could be granted.” Id.
The Court finds that granting Baldwin leave to amend would be futile. Baldwin sought leave
to amend after Sullivan filed his motion to dismiss. While her proposed second amended complaint
removed any reference to the PDCRA, it failed to address the other deficiencies in her complaint.
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Baldwin’s proposed amended complaint contains no new factual allegations material to her claims.
The proposed amended complaint thus suffers from the same deficiencies and conclusory
statements of law that the Court identifies above. Most importantly, it would fail to overcome
Defendants’ claims for immunity. The Court thus finds Baldwin’s claims fatally infirm and concludes
that granting leave to amend would be futile.
IV. CONCLUSION
IT IS ORDERED that the motions to dismiss filed by Defendant Sullivan, (Dkt. 13), and
Defendant Division of Workers’ Compensation, (Dkt. 28), are GRANTED. Baldwin’s § 1983
claims against Defendant Division of Workers’ Compensation and Defendant Sullivan in his official
capacity and her ADA claim are DISMISSED under Rule 12(b)(1). Baldwin’s PDCRA claim is
DISMISSED under Rule 12(b)(6).
IT IS FURTHER ORDERED that Baldwin’s Motion for Leave to File Second Amended
Complaint, (Dkt. 14), is DENIED.
Additionally, Baldwin filed this action on January 17, 2018. (Dkt. 1). To date, there has been
no return of service showing summons were issued and served upon Defendant OIEC. “If a
defendant is not served within 90 days after the complaint is filed, the court—on motion or on its
own after notice to the plaintiff—must dismiss the action without prejudice against that defendant
or order that service be made within a specified time.” Fed. R. Civ. P. 4(m). More than 90 days have
passed since Plaintiff filed her amended complaint. Accordingly, Plaintiff is ORDERED to show
cause in writing to the Court on or before October 26, 2018, as to why the claims against the
Defendant OIEC should not be dismissed for failure to timely effectuate service. Baldwin is also
admonished that failure to do so may result in the dismissal of this action as to that defendant. See
Fed. R. Civ. P. 41(b) (action may be dismissed for want of prosecution or failure to comply with

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court order); Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998) (district court has authority to
dismiss case for want of prosecution or failure to comply with court order).
SIGNED on October 15, 2018.

_____________________________________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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