Payne v. Texas Department of Assistive and Rehabilitative Services
ORDER TO SHOW CAUSE as to Don A. Payne. Show Cause Response due by 7/8/2011. Signed by Judge Nancy Stein Nowak. (tm)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
Donald A. Payne,
William Glenn, Ruben Garcia,
Lee Johnson & Nelda Zuniga,
CIVIL ACTION NO.
SA-11-CV-0336 FB (NN)
SHOW CAUSE ORDER
The purpose of this order is to direct plaintiff Don A. Payne to show cause why
this case should not be dismissed. On April 28, 2011, the Austin division transferred to
this division Payne’s claim for injunctive relief against William Glenn, Ruben Garcia,
Lee Johnson and Nelda Zuniga.1 These individuals are employees of Texas Department
of Assistive and Rehabilitative Services (TDARS). In his complaint, Payne complained
about the termination of vocational rehabilitative services on December 17, 2010, and
challenged that determination in this lawsuit. As injunctive relief, Payne sought the
“promulgation [of] safeguards and policies…to adequately train and supervise
Docket entry # 6.
employees in order to safeguard the rights of U.S. citizens and persons with mental
disabilities subject to assistive and rehabilitative service.”2
To the extent, Payne sought relief on behalf of others, Payne lacks standing. To
the extent, Payne seeks the promulgation of safeguards and policies for the provision of
assistive and rehabilitative services from the individually-named TDARS employees,
TDARS is “ the principal authority in the state on matters relating to rehabilitation of
individuals with disabilities,”3 not the individually-named TDARS employees. Thus, it
appears Payne failed to state a claim against the individually-named employees because
the authority to promulgate safeguards and policies lies with TDARS.
To the extent Payne sought review of the termination of vocational rehabilitative
services from TDATS or the individually-named TDARS employees, Payne failed to
state a claim upon which relief may be granted. Federal law provides for review of
determinations affecting the provision of vocational rehabilitation services to applicants
like Payne.4 The applicable procedures provide for a due process hearing before an
impartial hearing officer and mediation.5 The procedures also provide for a civil action
Docket entry # 3, p. 36.
Tex Hum. Res. Code Ann. § 111.052 (West 2001); 40 Tex. Admin. Code § 101.103.
29 U.S.C. § 722.
40 Tex. Admin. Code §§ 101-7051 - 101.7073.
for review of a final decision by a hearing officer. Payne indicated in his complaint that
he had not received a final decision when he filed this lawsuit.6 Payne stated in his
“motion to enter” that an impartial hearing officer has since made a determination in his
favor.7 Obtaining a favorable decision indicates the relief Payne seeks is moot because
he now receives vocational rehabilitative services. A moot claim fails to state a claim
upon which relief may be granted because no controversy exists for the court to
Obtaining a favorable decision also indicates Payne filed this case prematurely
because he filed his case before TDARS made a final reviewable decision; that is, Payne
sought review of a non-reviewable determination. A claim seeking a review of a nonreviewable determination fails to state a claim upon which relief may be granted.
Therefore, I direct Payne to respond to this order in writing by July 8, 2011 and
to show cause why this case should not be dismissed for failing to state a claim. In
responding to this order, Payne shall file a copy of the hearing officer’s favorable
decision. If Payne fails to respond to this order by July 8, 2011, I will recommend
Docket entry # 3, p. 28.
Docket entry # 7.
dismissing this case for failing to comply with a court order and for failing to
It is SO ORDERED.
SIGNED on June 22, 2011.
NANCY STEIN NOWAK
UNITED STATES MAGISTRATE JUDGE
See Fed. R. Civ. P. 41(b) (permitting the defendant to move for dismissal on
grounds the plaintiff failed to prosecute his case); Gonzalez v. Firestone Tire & Rubber Co.,
610 F.2d 241, 247 (5th Cir. 1980) (explaining that “a federal district court possesses the
inherent authority to dismiss an action for want of prosecution”).
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