The Honorable Sandra Day O’Connor, Associate Justice of the United States Supreme

*

Court, (Ret.), sitting by designation pursuant to 28 U.S.C. § 294(a).

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not **

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40374

DANA ALEGRIA

Plaintiff-Appellant

v.

LARRY WILLIAMS, In His Individual Capacity; STATE OF TEXAS; 

EDDIE KELLY, Supervisor

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:06-CV-212

Before O’CONNOR, Associate Justice (Ret.), WIENER and STEWART, Circuit *

Judges.

SANDRA DAY O’CONNOR, Associate Justice (Retired):**

Plaintiff-Appellant Dana Alegria suffered egregious physical and verbal

sexual harassment at the hands of her probation officer. She sued this probation

officer, his supervisor, and the State of Texas, alleging violations of 42 U.S.C.

United States Court of Appeals

Fifth Circuit

F I L E D

March 12, 2009

Charles R. Fulbruge III

Clerk
No. 08-40374

2

§1983 and Title IX of the Education Act Amendments of 1972. On appeal, she

challenges the grant of summary judgment of her §1983 claims to the State and

both the probation officer and his supervisor in their official capacities. She also

challenges the grant of summary judgment to the State on her Title IX claim.

Because she seeks only monetary damages, her §1983 claims cannot succeed.

Similarly, because she has failed to establish that the State’s probation system

is an “education program or activity” within the ambit of Title IX, 20 U.S.C.

§ 1681(a), her Title IX claim also fails as a matter of law. We thus affirm the

relevant judgments of the district court.

I.

A. The district court appropriately construed plaintiff’s proffered evidence

and allegations in her favor in light of the procedural posture in which it

confronted them. We briefly summarize the pertinent facts in the same manner:

In 1999 plaintiff Dana Alegria began serving a 10 year term of probation under

the authority of the Galveston County Community Supervision and Corrections

Department. She was placed under the supervision of probation officer Larry

Williams in September 2005. On multiple occasions, when she met with

Williams in fulfillment of the terms of her probation, he subjected her to

egregious verbal and physical sexual harassment. In January 2006 she reported

his conduct to the Galveston County District Attorney’s office and was advised

to make a surreptitious audio recording of her next encounter with Williams.

She agreed. Later that month she recorded a meeting during which Williams

instructed her to follow him into a stairwell, sexually assaulted her, exposed his

penis, and requested oral sex. The next week, defendant Eddie Kelly, the

director of the Department and Williams’ supervisor, was informed of the

misconduct. Kelly soon confronted Williams, and Williams resigned shortly

thereafter.
No. 08-40374

3

In April plaintiff brought suit under (i) 42 U.S.C. §1983, alleging violations

of her rights under the Fourteenth Amendment; and (ii) Title IX of the

Education Act Amendments of 1972, 20 U.S.C. § 1681, et seq. Originally, she

sued Galveston County and Williams in both his professional and personal

capacities. Alegria v. Texas, No. G–06–0212, 2007 WL 2688446, at *1 (S.D. Tex.

Sept. 11, 2007) (memorandum opinion and order). In a first amended complaint,

she dismissed the County, added the State of Texas as a defendant, and dropped

her claims against Williams in his personal capacity, but retained the

professional capacity claims. Id. at *2. Finally, in a “third” amended complaint,

she endeavored to revive her personal capacity claims against Williams and

included claims against Kelly in both his personal and professional capacities.

Id. at *6; Alegria v. Texas, No. G–06–0212, 2006 WL 2591072, at *1 n.1 (S.D.

Tex. Sept. 7, 2006) (order granting in part and denying in part defendant’s

motion to dismiss). Along the way, plaintiff’s theories of liability and prayers for

relief evolved in response to several motions to dismiss or for summary

judgment. We need not here detail the nature of this evolution nor the

procedural history in which it unfolded. For our purposes, it is sufficient to note

that the district court “allowed the plaintiff extraordinary leeway in submitting

numerous briefs and other written materials” and it “expended considerable time

. . . performing independent research.” Alegria v. Texas, No. G–06–0212, 2008

WL 686161, at *10 n.31 (S.D. Tex. Mar. 7, 2008) (memorandum order and

opinion). 

B. In a series of four orders, the district court disposed of each of plaintiff’s

claims. 

1. Plaintiff’s § 1983 claims.

The district court granted the State and Kelly and Williams in their

professional capacities summary judgment of plaintiff’s §1983 claims. The court

explained (and plaintiff later conceded) that the State’s sovereign immunity
No. 08-40374

4

under the Eleventh Amendment barred plaintiff’s prayer for monetary damages.

Alegria, 2007 WL 2688446, at *2 & n.5 (Sept. 11, 2007); Alegria, 2006 WL

2591072, at *2 (Sept. 7, 2006). Plaintiff’s early pleadings referenced declaratory

and prospective injunctive relief, though it was “somewhat unclear exactly what

injunctive relief [she was] seeking.” Id. at *2 n.4. Despite the district court’s

“hop[e] that the relief sought . . . and the legal authority allowing such relief

w[ould] be more fully hashed out,” id., plaintiff subsequently abandoned her

claims for such relief. Alegria v. Texas, No. G–06–0212, 2007 WL 3256586, at

*16 (S.D. Tex. Nov. 2, 2007) (memorandum opinion and order) (“The court

construes plaintiff’s statement that she is no longer seeking prospective

injunctive relief as an abandonment of those claims.”).

The district court also granted Kelly in his personal capacity summary

judgment of plaintiff’s §1983 claims, concluding that he was entitled to qualified

immunity. Alegria, 2007 WL 2688446, at *4–10 (Sept. 11, 2007). The court

concluded that plaintiff failed to present any evidence showing that Kelly

personally participated in the alleged sexual harassment. Id. at *5–6. It also

held that plaintiff failed to raise a genuine issue of material fact for trial as to

whether the constitutional violation of which plaintiff complained was causally

connected to Kelly’s failure to train and/or supervise his employees, or whether

Kelly’s failure to train and/or supervise his employees reflected deliberate

indifference to the risk that plaintiff would suffer sexual harassment at

Williams’ hands. Id. at *6–9.

Lastly, the district court dismissed without prejudice plaintiff’s §1983

claim against Williams in his personal capacity. Alegria, 2008 WL 686161, at

*10 (Mar. 7, 2008). It explained that Williams had only been served with

plaintiff’s first amended complaint, which only alleged claims against him in his

official capacity. Because plaintiff did not show good cause for her failure to

serve Williams with her third amended complaint, which endeavored to add the
No. 08-40374

5

personal capacity claims against Williams, the district court dismissed those

claims pursuant to FED. R. CIV. P. 4(m) (“If a defendant is not served within 120

days after the complaint is filed, the court . . . must dismiss the action without

prejudice against that defendant or order that service be made within a specified

time”).

2. Plaintiff’s Title IX claims.

The court granted the defendants summary judgment of plaintiff’s Title

IX claims. It first recognized that Title IX claims cannot be asserted against an

individual, but only an “education program or activity receiving Federal

financial assistance,” 20 U.S.C. § 1681(a). Alegria, 2007 WL 3256586, at *6

(Nov. 2, 2007) (citing Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006 (5th

Cir.) (rev’d on other grounds, Davis v. Monroe County Bd. of Ed., 526 U.S. 629

(1999)); see also Fitzgerald v. Barnstable Sch. Comm., 129 S. Ct. 788, 796 (2009)

(“Title IX reaches institutions and programs that receive federal funds, . . . but

it has consistently been interpreted as not authorizing suit against school

officials, teachers, and other individuals[.]”). Plaintiff’s Title IX claims against

Williams and Kelly were thus improperly pleaded. Turning to plaintiff’s Title

IX claim asserted against the State, the court concluded that the State was

entitled to summary judgment because plaintiff failed to present evidence from

which a reasonable trier of fact could conclude that any state official with

supervisory power over Williams had actual knowledge of the alleged

harassment and responded with deliberate indifference. Alegria, 2007 WL

3256586, at *7–15 (Nov. 2, 2007).

C. Plaintiff now appeals the grant of summary judgment of: (i) her §1983

claims against Williams and Kelly in their professional capacities and (ii) her

Title IX claim against the State. We note that there is some discussion of the

defense of qualified immunity in plaintiff’s brief. Appellant Brief 54–58.

However, we do not construe this discussion to present a challenge to the grant
No. 08-40374

6

of summary judgment of plaintiff’s §1983 claim against Kelly in his personal

capacity. Neither plaintiff’s statement of the issues presented nor the structure

of her argument demonstrate an intention to challenge the grant of qualified

immunity in Kelly’s favor; both are limited to the two challenges enumerated

above. Moreover, in her discussion of her §1983 claims, plaintiff explicitly omits

her personal capacity claim against Kelly. Id. at 47 (“As a preliminary matter,

it should be noted that Kelly and Williams were sued in their official capacity

and Williams was sued in his individual capacity.”). Further, plaintiff does not

limit her discussion of qualified immunity to arguments pertaining to her

personal capacity claim against Kelly (and/or Williams). Id. at 55 (discussing

“qualified immunity on behalf of Williams, Kelly, and the State of Texas”).

Lastly, defendants called attention to plaintiff’s failure to challenge the grant of

summary judgment of her personal capacity §1983 claim against Kelly. Appellee

Brief 21 n.11 (“Appellant asserts in her brief to this Court that her section 1983

claim against Kelly is made against him in his official capacity only.”). In her

reply brief, plaintiff did not argue to the contrary.

We have jurisdiction to review plaintiff’s appeal under 28 U. S. C. §1291,

and we review the district court’s grant of summary judgment de novo. Connors

v. Graves, 538 F.3d 373, 376 (5th Cir. 2008).

II.

A. Plaintiff’s §1983 claims against Williams and Kelly in their professional

capacities. 

As the district court explained and plaintiff conceded, the State’s Eleventh

Amendment sovereign immunity bars the recovery of monetary damages under

§1983. Alegria, 2007 WL 2688446, at *2 n.5 (Sept. 11, 2007); Alegria, 2006 WL

2591072, at *1 (Sept. 7, 2006); see also, e.g., Hans v. Louisiana, 134 U.S. 1

(1890). This immunity extends to plaintiff’s official capacity claims against

Williams and Kelly. E.g., Monnell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 n.55
No. 08-40374

7

(1978) (“[O]fficial-capacity suits generally represent only another way of

pleading an action against an entity of which an officer is an agent[.]”); Ford

Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 464 (1945) (overruled on other

grounds by Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613 (2002))

(“When the action is in essence one for the recovery of money from the state, the

state is the real, substantial party in interest and is entitled to invoke its

sovereign immunity from suit even though individual officials are nominal

defendants.”); Turner v. Houma Mun. Fire and Police Civil Serv. Bd., 229 F.3d

478, 483 (5th Cir. 2000) (official capacity suit generally an action against the

entity of which the defendant is an agent). The district court concluded that

despite plaintiff’s early allusions to prospective injunctive relief, she abandoned

her effort to secure any relief other than monetary damages. Alegria, 2007 WL

3256586, at *16 (Nov. 2, 2007) (“The court construes plaintiff’s statement that

she is no longer seeking prospective injunctive relief as an abandonment of those

claims.”). The district court granted defendants summary judgment on the basis

of this conclusion, which plaintiff does not challenge on appeal. Indeed, her

briefs fail to make any mention of the relief she seeks. We thus find no basis to

disturb the district court’s disposition of her §1983 claims.

B. Plaintiff’s Title IX claim against the State. 

On appeal, the parties’ legal arguments pertaining to plaintiff’s Title IX

claim have shifted once again. As noted above, Title IX, which abrogates the

States’ sovereign immunity from suit, extends liability to an “education program

or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a) (emphasis

added). Before the district court, the defendants inexplicably failed to argue that

the Galveston County Community Supervision and Corrections Department is

not an “education program or activity” within the statute’s ambit. Alegria, 2007

WL 3256586, at *8 n.13 (Nov. 2, 2007); Alegria, 2007 WL 2688446, at *12 & n.35

(Sept. 11, 2007). The district court thus “[a]ssum[ed] without deciding” that
No. 08-40374

8

Title IX applied and it granted the State summary judgment after assessing the

merits of plaintiff’s claim. Alegria, 2007 WL 3256586, at *8 (Nov. 2, 2007).

On appeal, plaintiff has conceded that the probation program at issue is

not “education[al].” This concession was made explicitly by plaintiff’s counsel

during oral argument, and it is at least implicit in plaintiff’s opening and reply

briefs (as discussed below). The State vigorously pursued this contention in its

brief, Appellee Brief 13–14, and during its oral argument. Plaintiff has not

argued to the contrary or objected to the State’s appellate position on waiver or

other grounds. Reply Brief 3 (stating that the State’s jurisdictional argument

as to the scope of Title IX’s abrogation of its sovereign immunity “can be raised

at any stage of the proceeding”). But see Neinast v. Texas, 217 F.3d 275, 279 (5th

Cir. 2000) (in certain circumstances a State may waive its sovereign immunity

defense by failing to raise it). We also note that there is nothing in the record

to suggest that the Galveston County Community Supervision and Corrections

Department is an education program or activity for purposes of Title IX; the

evidence is to the contrary. E.g., R. 248 (Kelly Aff.) (explaining that the

department is “charged with the supervision of persons sentenced to community

supervision”). We thus accept the parties’ mutual position on this issue. 

We also conclude that it is fatal to plaintiff’s Title IX claim. Title IX

unequivocally applies only to an “education program or activity receiving Federal

financial assistance.” 20 U.S.C. § 1681(a). Plaintiff has offered no support for

her suggestion that we can nonetheless extend its application to the Galveston

County Community Supervision and Corrections Department. Her efforts to this

end are unavailing. Plaintiff contends that “[t]hough most Title IX cases involve

education claims, the parameters of its scope have been broadly interpreted” and

that “[i]t logically follows . . . that a community supervision officer should not be

protected for activities which are proscribed by the statute.” Appellant Brief

34–36. She offers two arguments in support of this contention. 
No. 08-40374

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First, she suggests that The Civil Rights Restoration Act of 1987 (Pub. L.

No. 100–259, § 3(a), § 908, 102 Stat. 28, 28–29 (1988) (codified at 20 U.S.C.

§ 1687)), eliminated the “education” limitation of Title IX. She is mistaken. The

Act did expand the reach of federal funding for purposes of Title IX by defining

“program or activity” to include “‘all operations of . . . a department, agency,

special purpose district, or other instrumentality of a State or of a local

government . . . any part of which is extended federal financial assistance.’”

Reply Brief 3–4 (quoting 20 U.S.C. § 1687). However, it did nothing to alter Title

IX’s underlying requirement that the program or activity must be educational.

Plaintiff fails to point to any educational program implicated by this dispute (or

otherwise). The Civil Rights Restoration Act thus offers her no support.

Second, plaintiff stresses that “‘Title IX was modeled after Title VI of the

Civil Rights Act of 1964.’” Reply Brief 9 (quoting Doe v. Smith, 470 F.3d 331,

338 (7th Cir. 2006)). From this fact, she reasons that Title IX’s “education”

requirement should be ignored in light of the requirement’s absence in the Title

VI context. This argument is without merit. Whatever similarities may be

shared by Title VI and Title IX, the statutes’ respective scopes reflect a

difference. Cannon v. Univ. of Chicago, 441 U.S. 677, 695 n.17 (1979) (“Although

Title IX is applicable only to certain educational institutions receiving federal

financial assistance, Title VI is applicable to additional institutions such as

hospitals, highway departments, and housing authorities.”). And while we have

endorsed the unremarkable proposition that “‘[b]ecause Title IX and Title VI use

the same language, they should, as a matter of statutory interpretation, be read

to require the same levels of protection and equality,’” this principle extends only

insofar as the statutes “use the same language.” Flowers v. S. Reg’l Physician

Servs., Inc., 247 F.3d 229, 233 n.4 (5th Cir. 2001) (considering claim under the

Americans With Disabilities Act and quoting Jeldness v. Pearce, 30 F.3d 1220,

1227 (9th Cir.1994)).
No. 08-40374

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Because plaintiff has conceded that the Galveston County Community

Supervision and Corrections Department is not an education program or activity

within the meaning of Title IX, her claim against the State fails as a matter of

law. On this basis alone, we affirm the district court’s grant of summary

judgment.

III.

Plaintiff’s §1983 claims for monetary damages against the State and its

officials are barred by the Eleventh Amendment. Her Title IX claim against the

State fails as a matter of law because, as she has conceded, the Galveston

County Community Supervision and Corrections Department is not an

“education program or activity” within the statute’s ambit. We thus affirm the

district court’s grant of summary judgment of these claims. 

AFFIRMED.