IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-11461

Summary Calendar

BILLY ROY HIGH, JR., 

 Plaintiff – Appellant,

v.

VISTASP KARBHARI, President, University of Texas at Arlington; 

ELISABETH CAWTHON, Dean, College of Liberal Arts; KENT KERLEY, 

Department Chair, Department of Criminology and Criminal Justice, 

 Defendants – Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:17-CV-841

Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.

PER CURIAM:*

A former graduate student at the University of Texas at Arlington filed 

suit against three university officials, alleging various statutory and 

constitutional violations. The district court granted the university’s motion to 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

June 12, 2019

Lyle W. Cayce

Clerk

 Case: 18-11461 Document: 00514993112 Page: 1 Date Filed: 06/12/2019
No. 18-11461

2

dismiss based on lack of standing, sovereign immunity, and failure to state a 

claim. We AFFIRM.

I.

Billy High, Jr. enrolled in the Criminology and Criminal Justice 

graduate program at UT Arlington in the spring of 2014. High alleges that 

throughout his time in the program, the university discriminated against him 

on the basis of age, color, gender, sexual orientation, and disability. He also 

alleges, inter alia, that the university refused to provide him reasonable 

accommodations for his disability and denied him access to his academic 

records and that several faculty members gave him incorrect information about 

course requirements.

In March 2017, High filed a complaint with the Board of Regents of the 

University of Texas about these issues. The Board forwarded the complaint to 

UT Arlington’s Office of University Compliance and Legal Affairs (Legal 

Affairs) for review. Two months later, High notified the President of UT 

Arlington, Vistasp Karbhari, of the same issues. Karbhari also routed the 

information to Legal Affairs and asked the director of that office to investigate 

the complaint. While the investigation was pending, High was dismissed from 

the Criminology and Criminal Justice graduate program.1 Shortly afterward, 

Legal Affairs dismissed his complaint, having concluded that no discrimination 

had occurred.

High filed suit against Karbhari; the Dean of the College of Liberal Arts,

Elisabeth Cawthon; and the Chair of the Department of Criminology and 

Criminal Justice, Kent Kerley. The live pleadings in the case assert various 

 

1 UT Arlington’s brief explains that High was dismissed for failing to meet the 

minimum grade point average requirements for the program. High’s complaint notes that 

his dismissal came shortly after he received a poor grade in a course, but it does not cite his 

GPA as the reason for his dismissal.

 Case: 18-11461 Document: 00514993112 Page: 2 Date Filed: 06/12/2019
No. 18-11461

3

statutory and constitutional civil rights claims based on three sets of facts: 

(1) the discrimination and other misconduct that High alleged in the complaint 

he filed with the university; (2) Legal Affairs’ alleged mishandling of that 

complaint; and (3) High’s dismissal from the graduate program. High requests 

various forms of relief, including the removal of the “dismissed” designation 

from his transcript, grade changes, access to his full educational record, and 

$150,000 in damages.

Karbhari, Cawthon, and Kerley filed a motion to dismiss under Federal 

Rule of Civil Procedure 12(b)(6), arguing that High lacks standing, that some 

of his claims are barred by sovereign immunity, and that he failed to state any 

cognizable claim upon which relief could be granted. High then filed an 

amended complaint, which the district court struck due to High’s failure to 

obtain consent from the defendants or leave from the court. In October 2018, 

the district court dismissed High’s claims with prejudice for the reasons set out 

in the defendants’ motion to dismiss. High now appeals.

II.

We review a district court’s dismissal under Rule 12(b)(1) for lack of 

subject matter jurisdiction de novo. Meyers ex rel. Benzing v. Texas, 410 F.3d 

236, 240 (5th Cir. 2005). Dismissal on this basis is appropriate if the plaintiff 

lacks standing or if the claims asserted are barred by a state’s sovereign 

immunity. Little v. KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009); Meyers, 410 

F.3d at 240. When a Rule 12(b)(1) challenge is raised alongside other Rule 12

challenges, the court should address the Rule 12(b)(1) issues before reaching 

the merits. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

A Rule 12(b)(6) dismissal for failure to state a claim is also reviewed de 

novo. Raj v. La. State Univ., 714 F.3d 322, 329–30 (5th Cir. 2013). We accept 

the well-pleaded facts in the complaint as true and view them in the light most 

favorable to the plaintiff. Id. While “pro se complaints are held to less 

 Case: 18-11461 Document: 00514993112 Page: 3 Date Filed: 06/12/2019
No. 18-11461

4

stringent standards than formal pleadings drafted by lawyers,” conclusory 

allegations will not defeat a motion to dismiss. Taylor v. Books A Million, Inc., 

296 F.3d 376, 378 (5th Cir. 2002). A district court may properly dismiss a claim

when the plaintiff has not alleged any set of facts that would plausibly entitle 

him to relief. Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (plaintiff 

must plead facts that “allow[] the court to draw the reasonable inference that 

the defendant is liable for the misconduct alleged”).

III.

Liberally construed, High’s brief on appeal challenges all three of the 

district court’s grounds for dismissing his claims: (1) that he lacks standing to 

sue; (2) that state sovereign immunity bars at least some of his claims; and 

(3) that any remaining claims are not adequately alleged.2

A.

To establish standing, “the plaintiff must demonstrate injury in fact that 

is fairly traceable to the defendant’s conduct and that would be redressed by a 

favorable judicial decision.” NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 396 

(5th Cir. 2015). The party seeking to invoke federal jurisdiction bears the 

burden of establishing these elements. Little, 575 F.3d at 540. “At the pleading 

stage, allegations of injury are liberally construed,” but allegations of 

conjectural or hypothetical injury are not sufficient to establish standing. Id. 

(citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344–46, 350 (2006)). 

Importantly, if “the injury’s existence depends on the decisions of third parties 

not before the court,” it is conjectural or hypothetical and does not establish 

standing. Id.

 

2 High also complains that Assistant Attorney General Dominique Stafford, who 

appeared on behalf of the defendants, is not properly admitted before the Northern District 

of Texas. However, pursuant to the local rules in the Northern District of Texas, “an attorney 

appearing on behalf of . . . the Attorney General of the State of Texas” who is otherwise 

eligible to appear is exempt from applying for admission pro hac vice. N.D. Tex. Civ. R. 83.11.

 Case: 18-11461 Document: 00514993112 Page: 4 Date Filed: 06/12/2019
No. 18-11461

5

In his brief on appeal, High emphasizes that he has sued Karbhari, 

Cawthon, and Kerley in their individual capacities as well as their official 

capacities. To have standing to proceed against these defendants individually, 

High was required to allege facts tending to establish that his injuries are 

fairly traceable to misconduct engaged in by these specific defendants. See 

NiGen Biotech, 804 F.3d at 396; see also Lujan v. Defenders of Wildlife, 504 

U.S. 555, 560–61 (1992). High’s pleadings do not mention either Cawthon or 

Kerley by name, so he has failed to adequately plead that he has standing to 

sue these individuals. In addition, the only specific allegation High directs at 

Karbhari is that Karbhari “assigned the investigation of [High’s] complaint to 

the Director of [Legal Affairs].” High does not explain how this act is “fairly 

traceable” to any of his alleged injuries. Instead, the attachment to his 

complaint makes clear that the existence of the injuries he complains of 

“depends on the decisions of third parties not before the court,” such as his 

professors and other university employees. Little, 575 F.3d at 540. 

Accordingly, the district court did not err in finding that High “fail[ed] to allege 

any facts tending to demonstrate that he has standing to sue” Karbhari, 

Cawthon, and Kerley individually. High’s claims against the defendants in 

their individual capacities were properly dismissed.

B.

High has also sued Karbhari, Cawthon, and Kerley in their official 

capacities as representatives of UT Arlington. Because UT Arlington is a state 

university, High’s suit is thus treated as a suit against the State of Texas and 

is therefore subject to the bar of state sovereign immunity. See Nelson v. Univ. 

of Tex. at Dallas, 535 F.3d 318, 320 (5th Cir. 2008). “Federal courts are without 

jurisdiction over suits against a state, a state agency, or a state official in his 

official capacity unless that state has waived its sovereign immunity or 

Congress has clearly abrogated it.” NiGen Biotech, 804 F.3d at 393–94

 Case: 18-11461 Document: 00514993112 Page: 5 Date Filed: 06/12/2019
No. 18-11461

6

(quoting Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 963 

(5th Cir. 2014)); see also U.S. Const. amend. XI.

In his pleadings, High attempts to state claims under an array of federal 

and state statutes and constitutional provisions, including the Fourth and 

Fourteenth Amendments to the U.S. Constitution, the Americans with 

Disabilities Act, the Family Educational Rights and Privacy Act, 42 U.S.C. 

§ 1985, the Texas Education Code, and the Texas Penal Code. As the district 

court explained, High fails to plead facts indicating that his claims are not 

barred by sovereign immunity: he does not assert that the State of Texas has 

waived immunity from liability, nor does he state that Congress has expressly 

abrogated it. See NiGen Biotech, 804 F.3d at 393–94. Accordingly, High’s 

claims are barred by sovereign immunity.

C.

To the extent High has alleged other claims not disposed of by our 

conclusions above, we agree that they are inadequately pleaded for the reasons 

set out by the district court. High has not pleaded any set of facts that would 

plausibly entitle him to relief or “allow[] the court to draw the reasonable 

inference that the defendant[s are] liable for the misconduct alleged.” See 

Iqbal, 556 U.S. at 678. Thus, the district court did not err in dismissing High’s 

claims under Rule 12(b)(6).

IV.

For the reasons described, we AFFIRM the district court’s judgment of 

dismissal.

 Case: 18-11461 Document: 00514993112 Page: 6 Date Filed: 06/12/2019