UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION

BRANDA OLUSHOLA,

Plaintiff,

v. No. 4:22-cv-0704-P

TARRANT COUNTY HOSPITAL DISTRICT

D/B/A JOHN PETER SMITH (JPS)

HOSPITAL,

Defendant.

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND 

RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE

The United States Magistrate Judge issued Findings, Conclusions, 

and a Recommendation (“FCR”) in this case. ECF No. 31. The FCR 

recommends that the Court grant Defendant’s Motion to Dismiss

Plaintiff’s Complaint. Id. at 1. Plaintiff timely filed Objections to the 

FCR and Defendant filed its response. ECF Nos. 32, 33, 34. The Court 

accordingly conducts a de novo review of the FCR. 

For the following reasons, the Court AFFIRMS the Magistrate’s 

ruling, ADOPTS the FCR’s reasoning, and OVERRULES Plaintiff’s 

Objection (ECF Nos. 32, 34).

BACKGROUND

In 2017, Plaintiff was hired as a Help Desk Technician in 

Defendant’s Information Technology department. ECF No. 1 at 11. 

Beginning that year, Plaintiff allegedly observed a general pattern of 

various employees making racially insensitive comments on several

communication and social media platforms. ECF No. 24 at 2–3. After 

raising issues with management, Plaintiff alleges that her white 

colleagues were given “preferential treatment” over scheduling and 

other matters despite Plaintiff’s “outperforming” them. Id. at 8–11. In 

2019, Plaintiff was reported to Human Resources after controversy with 

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a coworker and was subsequently counseled for “unacceptable 

performance.” Id. at 12. In Summer 2020, Plaintiff reported specific 

allegedly racially discriminatory comments made by a colleague on the 

public department messaging platform. Id. at 13. Defendant’s HR 

Department investigated Plaintiff’s allegation and determined that the

colleague’s comments made were “inappropriate.” Id. at 14. 

Plaintiff was terminated five days after the conclusion of the 

investigation. Id. Plaintiff then filed a charge of discrimination and 

retaliation with the Equal Employment Opportunity Commission 

(“EEOC”), alleging that her termination was the result of her “reporting 

racially sensitive information to HR.” Id. at 15. The EEOC determined 

that Plaintiff failed to provide any proof linking her termination to 

discrimination because of her race. Id. 

Plaintiff sued in August 2022, alleging racial discrimination in 

violation of 42 U.S.C. § 1983. ECF No. 1. Plaintiff’s Amended Complaint 

then alleged racial discrimination in violation of 42 U.S.C. § 1981. ECF 

Nos. 20, 31 at 2. Defendant filed its Motion to Dismiss for failure to state 

a claim. ECF No. 24. 

LEGAL STADARD 

A. FRCP 12(b)(6)

A court may dismiss a complaint when it fails to state a claim upon 

which relief can be granted. Fed. R. Civ. P. 12(b)(6). For a complaint to

survive, a plaintiff must assert specific, well-pleaded facts and avoid 

conclusory allegations. Fin. Acquisition Partners LP v. Blackwell, 440 

F.3d 278, 286 (5th Cir. 2006). Plaintiffs must plead enough facts to 

assert a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 

662, 663, 678–79 (2009). And a complaint is facially plausible when it 

alleges enough facts to allow a court to reasonably conclude that the 

Defendant is liable for the misconduct alleged. Id. at 663. 

ANALYSIS

42 U.S.C. § 1981 provides that “[a]ll persons within the jurisdiction 

of the United States shall have the same right in every State . . . to make 

and enforce contracts . . . and to the full and equal benefit of the laws .

. . as is enjoyed by white persons.” 42 U.S.C. § 1981(a). 42 U.S.C. § 1983 

provides that “[e]very person who, under color of [law] . . . subjects, or 

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causes to be subjected, any citizen . . . to the deprivation of any rights, 

privileges, or immunities secured by the Constitution and laws, shall be 

liable to the party injured in an action at law.” 42 U.S.C. § 1983. 

 Thus, § 1983 provides an express right of action for the violation of 

one’s civil rights by a state actor, while § 1981 does not. Jett v. Dallas 

Indep. Sch. Dist., 491 U.S. 701, 703 (1989). Hence, for a party to assert 

a § 1981 claim for racial discrimination in contract or employment

against a government actor, that party must plead their claim through 

the mechanism of § 1983—and must plead § 1983 in his or her 

complaint. Id.; FED. R. CIV. P. 8(a). 

 But, while the pleading requirements call for a plain statement 

showing the grounds for the court’s jurisdiction, “they do not 

countenance dismissal of a complaint for imperfect statement of the 

legal theory supporting the claim asserted. Johnson v. City of Shelby, 

Miss., 574 U.S. 10, 11 (2014). Against this backdrop, the Fifth Circuit 

has reversed dismissals of § 1981 claims when a plaintiff fails to cite 

§ 1983 in the appropriate section of the complaint but incorporates its 

reference from elsewhere in the pleading. See Escamilla v. Elliott, 816 

F.App’x 919, 924 (5th Cir. 2020).

 The Northern District of Texas recently confronted this issue in 

Jenkins v. City of Dallas, 3:22-CV-0960-B, 2022 WL 6225559 (N.D. Tex.

Oct. 6, 2022), where the plaintiff in an employment discrimination suit 

against his municipal employer failed to plead § 1983 as the procedural 

vehicle for his claim under § 1981. Jenkins, 2022 WL 6225559 at *4. The 

court acknowledged but distinguished Escamilla, noting that Jenkins 

(unlike Escamilla) failed to mention § 1983 anywhere in his complaint. 

Id. Thus, “[w]hile a perfect statement of legal theory [was] not necessary 

to survive dismissal, [the plaintiff’s] Complaint fail[ed] to state the only 

theory needed to state a claim.” Id. 

 This case is analogous to Jenkins. Plaintiff’s Amended Complaint

fails to mention 42 U.S.C. § 1983 anywhere in the document and she 

also fails to display it in her briefing.1 ECF No. 20. And—even operating 

1 Here, the Magistrate Judge recommended that the Court grant Defendant’s Motion 

to Dismiss because Plaintiff failed to properly plead § 1983 as the vehicle for her racial 

discrimination claim against the hospital district as a state actor. ECF No. 31 at 6. 

Plaintiff’s objection artfully attempts to cite general legal websites and statutory 

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as a “non-profit organization—the Tarrant County Hospital District is a 

state actor, requiring at least some incorporation of § 1983 from within 

the pleading for the claim to remain procedurally viable. 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 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.”). Thus, as in Jenkins, Plaintiff failed to properly plead her 

§ 1981 discrimination claim because she made no mention of “the only 

theory needed to state a claim [, § 1983].” 

Thus, for the reasons stated in the Magistrate Judge’s FCR, this 

Court concludes that Plaintiff’s claim fails as a matter of law and must 

be DISMISSED.

CONCLUSION

Having conducted a de novo review of the Magistrate Judge’s FCR, 

and Plaintiff’s Objections and Responses, the Court ADOPTS the 

reasoning in the Magistrate Judge’s FCR and OVERRULES Plaintiff’s

Objections. Defendant’s Motion to Dismiss (ECF No. 24) is GRANTED.

SO ORDERED on this 28th day of April 2023.

definitional provisions to argue that, because the Tarrant County Hospital District is 

operated as a non-profit and has an associated charitable fundraising foundation, it is 

not a government entity. ECF No. 32 at 1–4; ECF No. 34 at 1–2. She then proceeds to 

recount many of the same facts alleged in her Amended Complaint. ECF No. 32 at 4–

19; ECF No. 34 at 3–8.

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