UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SONYA L. CHAPMAN,

Plaintiff,

VS.

DALLAS COUNTY COMMUNITY

COLLEGE DISTRICT, EL CENTRO

COLLEGE,

Defendant.

)

)

)

) CIVIL ACTION NO.

)

) 3:05-CV-1809-G

)

) ECF

)

)

)

MEMORANDUM OPINION AND ORDER

Before the court is the motion of the defendant Dallas County Community

College District, El Centro College (“the District” or “the defendant”), to dismiss the

second amended complaint of the pro se plaintiff, Sonya L. Chapman (“Chapman” or

“the plaintiff”), for lack of subject matter jurisdiction and for failure to state a claim

upon which relief can be granted. For the reasons stated herein, the motion is

granted.

I. BACKGROUND

This case stems from Chapman’s claim that the District violated her rights as

guaranteed by the First and Fourteenth Amendments to the United States

 

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1 The first amended complaint filed on October 7, 2005, was deficient

because it was unsigned. Chapman eventually corrected the deficiency by refiling the

first amended complaint on June 5, 2006.

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Constitution. The instant motion to dismiss arises after a lengthy procedural history. 

Chapman filed her original complaint on September 9, 2005, and her first amended

complaint on October 7, 2005.1

 The first amended complaint appears to be the first

complaint served on the defendant. The District filed a motion to dismiss the first

amended complaint or, in the alternative, for a more definite statement on July 12,

2006.

This court, in its memorandum opinion and order dated November 29, 2006,

denied the defendant’s motion to dismiss and granted the motion for a more definite

statement. In that memorandum opinion and order, the court noted its difficulties in

understanding the various pleadings and other documents submitted by Chapman. 

Accordingly, the court ordered her to complete a questionnaire attached to that order

which would then serve as her second amended complaint. Chapman submitted her

written answers to the questionnaire on January 29, 2006. The instant motion to

dismiss followed.

As best the court can determine, Chapman claims that her constitutional rights

were violated in three specific instances. First, she avers that her right to free speech,

as guaranteed by the First Amendment, was violated by an instructor for the District

when the instructor refused to silence classmates of Chapman who expressed

 

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frustrations with her behavior. Second, she asserts that her right to free speech, as

guaranteed by the First Amendment, was violated by a second instructor for the

District when she refused to silence classmates of Chapman under circumstances

similar to the first incident. Third, she maintains that her right to procedural due

process, as guaranteed by the Fourteenth Amendment, was violated by the District. 

Specifically, Chapman claims that Dean Felicitas Alfaro (“Alfaro”) did not afford

Chapman procedural due process before suspending her from the college because

Chapman was not given notice and a hearing regarding the allegations against her.

Chapman’s claims seek redress under 42 U.S.C. § 1983 for violations of her

First and Fourteenth Amendment rights and under the TEX. CIV. PRAC. & REM. CODE

§§ 101.021 and 101.025.

II. ANALYSIS

A. Standard for Rule 12(b)(1) Motion to Dismiss

Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes the dismissal

of a case for lack of jurisdiction over the subject matter. See FED. R. CIV. P. 12(b)(1).

A motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction

must be considered by the court before any other challenge because “the court must

find jurisdiction before determining the validity of a claim.” Moran v. Kingdom of

Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994) (internal citation omitted); see also

Ruhrgas AG v. Marathon Oil Company, 526 U.S. 574, 577 (1999) (“The requirement

 

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2 The sovereign immunity argument raised by the District is not

(continued...)

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that jurisdiction be established as a threshold matter . . . is inflexible and without

exception”) (citation and internal quotation marks omitted). On a Rule 12(b)(1)

motion, which “concerns the court’s ‘very power to hear the case . . . [,] the trial court

is free to weigh the evidence and satisfy itself as to the existence of its power to hear

the case.’” MDPhysicians & Associates, Inc. v. State Board of Insurance, 957 F.2d 178,

181 (5th Cir.) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied,

454 U.S. 897 (1981)), cert. denied, 506 U.S. 861 (1992). In ruling on a motion to

dismiss under Rule 12(b)(1), the court may rely on: “1) the complaint alone; 2) the

complaint supplemented by undisputed facts; or 3) the complaint supplemented by

undisputed facts and the court’s resolution of disputed facts.” MCG, Inc. v. Great

Western Energy Corporation, 896 F.2d 170, 176 (5th Cir. 1990) (citing Williamson, 645

F.2d at 413). 

Importantly, claims of sovereign immunity are challenges to the court’s subject

matter jurisdiction to hear the case. See Capozzoli v. Tracey, 663 F.2d 654, 656-57

and n.2 (5th Cir. 1981). Such challenges are properly brought before the court under

a Rule 12(b)(1) motion to dismiss. See MCI Telecommunications Corporation v. New

York Telephone Company, 134 F. Supp. 2d. 490, 495 n.2 (N.D.N.Y. 2001).

The District argues that the plaintiff’s state law claims under TEX. CIV. PRAC.

& REM. CODE §§ 101.021 and 101.025 are barred by state sovereign immunity.2 The

 

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2

(...continued)

predicated on sovereign immunity as guaranteed by the 11th Amendment of the

United States Constitution.

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Texas state legislature has waived sovereign immunity for the state and the entities

thereof only to the extent that liability is created under Chapter 101 of the TEX. CIV.

PRAC. & REM. CODE. See TEX. CIV. PRAC. & REM. CODE § 101.025(a). However, that

waiver of sovereign immunity is limited by § 101.051, which reads, “Except as to

motor vehicles, this chapter does not apply to a school district or to a junior college

district.” Accordingly, the waiver of sovereign immunity, and hence the extension of

liability, applies to community colleges only in cases where the plaintiff’s injury arose

from the “wrongful act or omission or the negligence of an employee acting within the

scope of his employment” and where the act, omission, or negligence occurred during

the operation of a motor vehicle. See TEX. CIV. PRAC. & REM. CODE §§ 101.021,

101.051; see also Hopkins v. Spring Independent School District, 736 S.W.2d 617, 619

(Tex. 1987) (stating the Texas Tort Claims Act “grants immunity to school districts

and their employees from liability for damages caused by negligence except in

circumstances relating to the use, maintenance or operation of motor vehicles.”). 

Accordingly, the court grants the District’s motion to dismiss Chapman’s state law

claims for lack of subject matter jurisdiction.

 

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B. Motion to Dismiss for Failure to State a Claim

The District argues that the § 1983 claims against it must be dismissed because

it cannot be held liable for the actions of an employee through vicarious liability and

Chapman has failed to allege any other theory under which the District could be held

liable.

1. Standard for Dismissal Under Rule 12(b)(6)

Rule 12(b)(6) authorizes dismissal of a complaint for “failure to state a claim

upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). There are two primary

principles that guide the court’s determination of whether dismissal under Rule

12(b)(6) should be granted. First, a motion under Rule 12(b)(6) should be granted

only if it appears beyond doubt that the nonmovant could prove no set of facts in

support of its claims that would entitle it to relief. Conley v. Gibson, 335 U.S. 41,

45-46 (1957); Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir.

1994); see also Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677

F.2d 1045, 1050 (5th Cir. 1982) (citing 5B WRIGHT & MILLER § 1357 at 598

(1969), for the proposition that “the motion to dismiss for failure to state a claim is

viewed with disfavor and is rarely granted”), cert. denied, 459 U.S. 1105 (1983). 

Second, the court must accept all well-pleaded facts as true and view them in the light

most favorable to the nonmovant. See Capital Parks, Inc. v. Southeastern Advertising

and Sales System, Inc., 30 F.3d 627, 629 (5th Cir. 1994); Norman v. Apache Corporation,

 

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19 F.3d 1017, 1021 (5th Cir. 1994); Chrissy F. by Medley v. Mississippi Department of

Public Welfare, 925 F.2d 844, 846 (5th Cir. 1991). However, conclusory allegations

and unwarranted factual deductions will not suffice to avoid a motion to dismiss. 

United States ex rel. Willard v. Humana Health Plan of Texas Inc., 336 F.3d 375, 379

(5th Cir. 2003). In addition, a court must not look beyond the pleadings when

determining whether a complaint states a claim upon which relief may be granted. 

Carpenters Local Union No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489, 499-500 (5th

Cir. 1982), cert. denied, 464 U.S. 932 (1983).

2. Claims under 42 U.S.C. § 1983 against the District

As stated in this court’s prior memorandum opinion and order, the District is

considered a local governmental unit and thus cannot be held liable for a deprivation

of constitutional rights under § 1983 based on a respondeat superior theory of liability. 

See Memorandum Opinion and Order, Nov. 29, 2006, (“Memorandum Opinion and

Order”) at 6 (citing Lopez v. Houston Independent School District, 817 F.2d 351, 353

(5th Cir. 1987)). A local governmental unit may be sued under § 1983 for both

monetary and injunctive relief stemming from an employee’s action depriving another

of her constitutional rights so long as the actions of the employee are in accordance

with “official policy” of the local governmental unit. See Monell v. Department of Social

Services of the City of New York, 436 U.S. 658, 690 (1978) (“Local governing bodies,

therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive

 

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relief where, as here, the action that is alleged to be unconstitutional implements or

executes a policy statement, ordinance, regulation, or decision officially adopted and

promulgated by that body’s officers.”); Lopez, 817 F.2d at 353-54; Bradford v.

Edelstein, 467 F. Supp. 1361, 1375 (S.D. Tex. 1979). For the actions of a local

governmental unit’s employee to be deemed “official policy,” the acts must either be

promulgated by the local governmental unit’s lawmaking officers or be a “persistent

widespread practice” of the local governmental unit’s employees. Lopez, 817 F.2d at

353-54. 

The court will assume, without deciding, that the factual circumstances

underlying Chapman’s § 1983 claims are sufficient to constitute violations of the

Constitution, but Chapman must still provide at least an allegation that the action of

the District’s employees were in accordance with “official policy” of the District. 

When asked in the questionnaire to “assert facts” showing that the professors’ actions

were part of an official policy by the district, Chapman responded, “All defendants

named in this suit acted in accordance with an official policy. Plaintiff submits

attachment that is, statements written and a typed document where defendants attest

to using official policy and list official policy as part or in whole as a basis for their

decisions.” Judicial Questionnaire (“Second Amended Complaint”) at 11 (emphasis

in original). Chapman’s legal conclusion that the actions of the District’s employees

were in accordance with official policy is insufficient for her to survive the motion to

 

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dismiss. See United States ex rel. Willard, 336 F.3d at 379. Instead, she must plead

facts showing the District’s official policy.

When construing her allegations liberally, as the court must do because of

Chapman’s status as a pro se litigant, Kaltenbach v. Richards, 464 F.3d 524, 527 (5th

Cir. 2006), the court reads this to mean that the plaintiff’s attached documents will

articulate her factual basis for the assertion that the employee’s actions were part of a

written policy by the defendant. After thoroughly reviewing the attachments,

however, there is no such information included. True, some of the documents

contain excerpts of the District’s official policies, but none of the documents indicate

that the actions Chapman complains of -- violations of her right to free speech or

procedural due process -- were official policies of the District. Thus, on this issue,

there are no well-pleaded facts for the court to accept as true. Chapman has failed to

alleged that the actions of the District’s employees were either (1) performed in

accordance with a policy expressly adopted by the District’s decision makers or

(2) the actions were part of a persistent widespread practice by employees for the

District. Accordingly, the District’s Rule 12(b)(6) motion to dismiss is granted as to

the plaintiff’s § 1983 claims against it.

C. Additional defendants

In question number 4 of the judicial questionnaire, Chapman was ordered to

state the name and address of each person she sought to join in the suit. In response,

 

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3 Rather than comply with the requirements of the questionnaire,

Chapman wrote, “Felicitas Alfaro, El Centro College Main and Lamar, Dallas, Texas

75202 . . .”. Second Amended Complaint at 19. While the court must construe the

complaint of pro se litigants liberally, it need not excuse Chapman’s apparent

unwillingness to comply with even the simplest of instructions from the court. The

court has expended a large amount of resources on this case, in an effort to assure

that Chapman has the opportunity to have her claims considered, but it will not

spend more.

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the plaintiff named only one person -- Alfaro, the executive dean of student and

enrollment services. See Second Amended Complaint at 19. The court notes,

however, that at other times in the answers to the questionnaire Chapman refers to

other individuals as defendants. See Second Amended Complaint at 23-24 (referring

to “defendant John Wells” and “defendants Betty Zoeller and Bob Chambers”). 

None of these other persons is named as a defendant in this case, and at present there

is no motion before the court to join such parties. Thus, Alfaro is the only person

named in the questionnaire whom the court will discuss but the analysis need not be

lengthy.

In the instructions attached to the judicial questionnaire, the court ordered

Chapman to “comply with the instructions accompanying the questions” and warned

that failure to comply “may result in the dismissal of this case without further

notice.” Memorandum Opinion and Order at 11. With regard to her efforts to name

Alfaro as a defendant, Chapman failed to comply with the order of this court

requiring her to state the mailing address of any additional defendants.3

 See id. In

addition, it appears that amendment of the complaint to add Alfaro as a defendant

 

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would be futile. Alfaro’s action in suspending Chapman occurred no later than

January 21, 2005, see Second Amended Complaint at 14, and Chapman’s claims

against her would thus be barred by the two-year statute of limitations. Accordingly,

the court does not grant the plaintiff leave to join Alfaro, or any other person, as a

defendant in this suit.

III. CONCLUSION

For the reasons stated above, the defendant’s motion to dismiss is GRANTED.

SO ORDERED.

May 29, 2007.

 

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