IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

BRANDA OLUSHOLA, 

Plaintiff, 

§ 

§ 

§ 

§ 

§ 

v. CIVIL ACTION NO. 4:22-CV-704-P 

TARRANT COUNTY HOSPITAL DISTIUCT§ 

d/b/a JPS HEALTH NETWORK, § 

Defendant. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION REGARDING 

DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT 

Pending before the Court is Defendant Tarrant County Hospital District's Motion to 

Dismiss Plaintiffs Amended Complaint [doc. 24], filed November 23, 2022. Having carefully 

considered the motion, response, and all relevant applicable law, the Comi RECOMMENDS that 

Defendant's motion be GRANTED. 

I. BACKGROUND 

On August 15, 2022,pro-se Plaintiff Branda Olushola filed her Complaint for Violation of 

Civil Rights in which she asserted claims under 42 U.S.C. § 1983 for violation of"Section 704(a) 

of Title VII of the Civil Rights Act of 1964, as amended." Thereafter, in response to a motion to 

dismiss filed by Defendant, Plaintiff, on November 14, 2022, filed an Amended Complaint [ doc. 

20], which is the live pleading before the Comi. In the Amended Complaint, Plaintiff brought a 

claim against Defendant pursuant to 42 U.S.C. § 1981, stating, "[Plaintiffs] claim for recovery 

under Section 1981 is based upon 42 U.S.C. § 1981, which provides that all persons within the 

United States shall have the same right to make and enforce contracts and to the full and equal 

benefit of all laws as is enjoyed by white citizens." (Plaintiffs Amended Complaint ("Pl.'s Am. 

Comp!.") at 17; see Pl.'s Am. Comp!. at I ("Plaintiff Branda Olushola presents her Complaint for 

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unlawful discrimination in violation of 42 U.S.C. § 1981."), 2 ("This is a suit authorized and 

instituted pursuant to the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("Section 1981 ") .... "). 

In its Motion to Dismiss, Defendant claims, inter alia, that Plaintiff did not state a claim 

upon which relief can be granted because section 1981 does not provide a cause of action against 

public employers such as Defendant. (Defendant's Motion to Dismiss Plaintiffs Amended 

Complaint ("Def. 's Mot. to Dismiss") at 5.) Defendant argues that "Section 1981 provides a cause 

of action to remedy racial discrimination by private employers in private employment contracts" 

and that Defendant is a governmental entity. (Def. 's Mot. to Dismiss at 5-6.) Moreover, Defendant 

claims that, to invoke a section 1981 claim against a local governmental entity, the "plaintiff 

alleging a claim under § 1981 against a state actor must assert such a claim under § 1983 to remedy 

violations of civil rights under § 1981." (Def.'s Mot. to Dismiss at 6.) Defendant argues that, 

because Plaintiff has not asserted any claim under section 1983 against Defendant, Plaintiff has 

failed to state a section 1981 claim against Defendant. (Id. at 6-7) 

Defendant also argues that Plaintiffs claims are also prohibited under the four-year statute 

of limitations for claims brought under section 1981. (Def.'s Mot. to Dismiss at 8.) Defendant 

asserts that, since the allegedly discriminatory acts by Defendant occurred prior to August 15, 

2018, Plaintiffs claims are barred by the statute of limitations because Plaintiffs original 

complaint was filed on August 15, 2022. 1 (Def.'s Mot. to Dismiss at 8.) 

1 The Court notes that, while Plaintiff did file a response to Defendant's motion to dismiss, such response is 

wholly unresponsive to the current pending motion to dismiss as Plaintiff referred only to Defendant's original Motion 

to Dismiss that was filed on November 7, 2022 (and subsequently found to be moot by the Court based on Plaintiff's 

Amended Complaint). (See Plaintiff's Response to Defendant's Motion to Dismiss at 1-2.) 

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II. LEGAL STANDARD 

Rule 12(b)(6) authorizes the dismissal of a complaint that fails "to state a claim upon which 

relief can be granted." This rule must be interpreted in conjunction with Rule 8(a), which sets 

forth the requirements for pleading a claim for relief in federal court. See Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 545 (2007). Rule 8(a) calls for "a short and plain statement of the claim 

showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); see also Swierkiewicz v. 

Sorema N.A., 534 U.S. 506, 513 (2002) (holding that Rule 8(a)'s simplified pleading standard 

applies to most civil actions). The Court must accept as true all well-pleaded, non-conclusory 

allegations in the complaint and liberally construe the complaint in favor of the plaintiff. Kaiser 

Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). 

The plaintiff must, however, plead specific facts, not mere conclusory allegations, to avoid 

dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). Indeed, the plaintiff 

must plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. 

at 570. "Factual allegations must be enough to raise a right to relief above the speculative level, . 

. . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." 

Id. at 555 (citations omitted). The Court need not credit bare conclusory allegations or "a formulaic 

recitation of the elements of a cause of action." Id. Rather, "[ a] claim has facial plausibility when 

the plaintiff pleads factual content that allows the comi to draw the reasonable inference that the 

defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

"Generally, a court ruling on a motion to dismiss may rely on only the complaint and its proper 

attachments. A comi is permitted, however, to rely on docUlllents incorporated into the complaint 

by reference, and matters of which a coUl't may take judicial notice." Dorsey v. Portfolio Equities, 

Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citations and internal quotation marks omitted). In 

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addition, the Court may consider a "written document that is attached to a complaint as an exhibit" 

as well as "documents attached to a motion to dismiss that are referred to in the plaintiffs 

complaint and are central to the plaintiffs claim." Texas Health and Hum. Servs. Comm. v. United 

States, 193 F. Supp. 3d 733, 738 (N.D. Tex. 2016)(citations and internal quotation marks omitted). 

III. ANALYSIS 

The first issue is whether Plaintiff has stated a claim against Defendant for violation of 42 

U.S.C. § 1981 for unlawful discrimination. Section 1981 provides that "[a]ll persons within the 

jurisdiction of the United States shall have the same right ... to make and enforce contracts," 

which "includes the making, performance, modification, and termination of contracts, and the 

enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 

U.S.C. § 198l(a)-(b). Section 1981 further states that the "rights protected by this section are 

protected against impairment by nongovernmental discrimination and impairment under color of 

State law." 42 U.S.C. § 1981(c). 

Section 1981 "serves as a deterrent to employment discrimination and a means of punishing 

employers who discriminate on the basis of race." Jenkins v. City of Dallas, No. 3:22-CV-0960-

B, 2022 WL 6225559, at *3 (N.D. Tex. Oct. 6, 2022). It "provides a cause of action to remedy 

racial discrimination by private employers in private employment contracts." See Lovelace v. 

Coppel/ lndep. Sch. Dist., No. 3:10-CV-1015-B(BK), 2010 WL 3943515, at *2 (N.D. Tex. Sept. 

20, 2010), report and rec. adopted, 2010 WL 3943442 (N.D. Tex. Oct.6.2010). In 1989, the 

United States Supreme Court found that section 1981 did not provide a separate cause of action 

against local government entities. See Jett v. Dallas lndep. Sch. Dist., 491 U.S. 701, 731 (1989); 

see also Sayibu v. Univ. ofTex. Sw. Med. Ctr. at Dallas, No. 3:09-CV-1244-B, 2010 WL 4780732, 

at *2 (N.D. Tex. Nov. 22, 2010) ("It is settled law in the 5th Circuit that an individual cause of 

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action under §1981 cannot be brought against a governmental entity like Parkland."); Hill Scott v. 

Dallas County Hosp. Dist., No. 3:08-CV-600-O, 2010 WL 71038, at* (N.D. Tex. Jan. 7, 2010) 

(dismissing section 1981 claim against Defendant because Defendant is a governmental entity); 

Lovelace, 2010 WL 3943515, at *2 ("Because none of the defendants is a private employer, 

Plaintiff wholly fails to assert a cause of action for civil rights violations under section 1981 against 

[the public school district, which is a governmental entity]." 

To state a claim under section 1981 and remedy violations of civil rights under such section, 

Plaintiff must assert such a claim against state actors under 42 U.S.C. § 1983. Jenkins, 2022 WL 

6225559, at *4. Specifically, "the express action at law provided by §1983 for the deprivation of 

any rights, privileges, or immunities secured by the Constitution and laws provides the exclusive 

federal damages remedy for the violation of the rights guaranteed by section 1981 when the claim 

is pressed against a state actor." Montgomery-Smith v. George, 810 F. App'x 252,256 (5th Cir. 

2020) (internal citations and quotations omitted) (stating that, for Plaintiff to recover damages from 

a state entity, the section 1981 claims must be pursued through section 1983). While a "perfect 

statement of legal theory is not necessary to survive a motion to dismiss," Plaintiff's complaint 

must do more than implicitly reference section 1983. Jenkins, 2022 WL 6225559, at *4. 

According to Defendant's Motion to Dismiss, Defendant was "created in 1959 pursuant to 

miicle IX, section 4 of the Texas Constitution and former article 4494n of the Revised Civil 

Statutes, which is now codified as Chapter 281 (Hospital Districts in Counties of at Least 190,000) 

of the Texas Health and Safety Code."2 (Def.'s Mot. at 6.) See Stern v. Tarrant Cty. Hosp. Dist., 

565 F. Supp. 1440, 1452 (N.D. Tex. 1983) ("John Peter Smith Hospital is and was at all times 

2 In her Amended Complaint, Plaintiff appears to agree that Defendant is a public entity as she states that 

"JPS Health Network is a tax-suppmted corporation serving the healthcare needs of families in Tarrant County at 

more than 25 locations and maybe served at its registered address." (Pl. 's Am. Comp!. at 1.) 

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pertinent to this litigation a public, tax-supported hospital owned and operated by the Tarrant 

County Hospital District, a political subdivision of the State of Texas."), rev 'don other grounds, 

778 F.2d 1052 (5th Cir. 1985). Because Defendant is a governmental entity, Plaintiff cannot 

maintain a cause of action against Defendant pursuant to section 1981. To state a valid claim 

against Defendant under section 1981, Plaintiff must assert such a claim through section 1983. 

While a perfect statement of legal theory is not necessary to survive, Plaintiff does not mention 

section 1983 anywhere in her Amended Complaint.3 See Jenkins, 2022 WL 6225559, at *4 

(dismissing Plaintiffs claim for failure to state a claim under section 1981 because Plaintiffs 

"Complaint contains no mention of§ 1983 anywhere in the document"); Allen v. Hammond City 

Police Dept., No. 19-12117, 2020 WL 433359, at *2 (E.D. La. Jan. 28, 2020) (stating that, because 

Plaintiff has failed to allege a claim under section 1983, Plaintiff cannot state a claim under section 

1981 against the Hammond City Police Department); cf Escamilla v. Elliott, 816 F. App'x 919, 

923 (5th Cir. 2020) (finding that Plaintiffs complaint, although not a model of clarity, did state 

that the action was brought under 42 U.S.C. §1981 and§ 1983 and, thus, Plaintiff had stated a 

claim under § 1981 ). Consequently, Plaintiff, who was given an opportunity to amend her original 

complaint and filed an amended complaint, has failed to assert a proper claim against Defendant 

under section 1981. Consequently, the Court FINDS and CONCLUDES that Defendant's motion 

to dismiss should be GRANTED. 

3 While Plaintiff did assert a claim under section 1983 in her original complaint, Plaintiff failed to do so in 

her amended complaint, which is the live pleading before the Court and supersedes Plaintiffs original complaint. See 

King v. Dogan, 31 F.3d 344,346 (5th Cir. 1994) ("An amended complaint supersedes the original complaint and 

renders it ofno legal effect unless the amended complaint specifically refers to and adopts or incorporates by reference 

the earlier pleading.") 

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IV. CONCLUSION 

For the reasons set forth above, the Court RECOMMENDS that Defendant's Motion to 

Dismiss Plaintiff's Amended Complaint [doc. 24] be GRANTED. 

NOTICE OF RIGHT TO OBJECT TO PROPOSED 

FINDINGS, CONCLUSIONS AND RECOMMENDATION 

AND CONSEQUENCES OF FAILURE TO OBJECT 

Under 28 U.S.C. § 636(b)(l), each party to this action has the right to serve and file specific 

written objections in the United States District Court to the United States Magistrate Judge's 

proposed findings, conclusions and recommendation within fourteen (14) days after the party has 

been served with a copy of this document. The United States District Judge need only make a de 

nova determination of those portions of the United States Magistrate Judge's proposed findings, 

conclusions and recommendation to which specific objection is timely made. See 28 U.S.C. § 

636(b )(I). Failure to file, by the date stated above, a specific written objection to a proposed 

factual finding or legal conclusion will bar a paity, except upon grounds of plain error or manifest 

injustice, from attacking on appeal any such proposed factual findings and legal conclusions 

accepted by the United States District Judge. See Douglass v. United Servs. Auto Ass 'n, 79 F.3d 

1415, 1428-29 (5th Cir. 1996) (en bane), superseded by statute on other grounds, 28 U.S.C. § 

636(b)(l) (extending time to file objections from ten to fourteen days). 

ORDER 

Under 28 U.S.C. § 636, it is hereby ORDERED that each paity is granted until April 19, 

2022 to serve and file written objections to the United States Magistrate Judge's proposed findings, 

conclusions and recommendation. It is further ORDERED that if objections ai·e filed and the 

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opposing party chooses to file a response, the response shall be filed within seven (7) days of the 

filing date of the objections. 

SIGNED April 5, 2023. 

L. RETON 

STATES MAGISTRATE JUDGE 

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