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Brief in Support filed by Duane Jones, William Pasewark, Robert Ricketts, Texas Tech University, Brittany Todd re 28 MOTION for Reconsideration re 9 Motion to Dismiss.

Patel v. Texas Tech University et al, No. 5:17-cv-00174-C (N.D. Tex.) · Dkt. 29 · 2017-09-27 · PDF

Text extracted from the PDF; scanned pages were read by OCR. The PDF is the authoritative copy.

Case 5:17-cv-00174-C

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
RAJIN PATEL,
§
§
Plaintiff,
§
v.
§
§
TEXAS TECH UNIVERSITY; DUANE §
JONES, individually and in his official §
capacity as adjunct professor; WILLIAM §
PASEWARK, INDIVIDUALLY and in his §
official capacity as TTU Rawls College of §
CIVIL ACTION NO. 5:17-cv-174-C
Business Associate Dean of Graduate §
Programs and Research; ROBERT §
RICKETTS, individually and in his §
official capacity as Area Coordinator in §
Accounting; and BRITTANY TODD, §
individually and in her individual capacity §
as Associate Director of the Office of §
§
Student Conduct;
§
Defendants.

BRIEF IN SUPPORT OF MOTION FOR RECONSIDERATION OF DEFENDANTS’
MOTION TO DISMISS
TO THE HONORABLE JUDGE SAMUEL RAY CUMMINGS:
Pursuant to FED. R. CIV. P. 12(b)(1) and FED. R. CIV. P.12(b)(6), Defendants Texas Tech
University (“TTU”), and Duane Jones, William Pasewark, Robert Ricketts, and Brittany Todd
(collectively, the “Individual Defendants”), file this Motion for Reconsideration of their Motion
to Dismiss against Plaintiff Rajin Patel (“Plaintiff”). Defendants incorporate their Motion to
Dismiss and brief in Support thereof (collectively, the “Motion”) by reference as if fully set forth
herein.
I.
1.

SUMMARY OF THE ARGUMENT

Pursuant to Local Rule 7.1(f), Defendants’ Reply to Plaintiff’s Opposition to

Defendants’ Brief in Support of Motion for Consideration of Defendants’
Motion to Dismiss

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Defendants’ Motion to Dismiss was due September 27, 2017. 1 Defendants were in the process of
filing their Reply on September 26, 2017 when the Court issued its Order on Defendants’ Motion
to Dismiss (Doc. #25) (the “Order”) and corresponding Judgment (Doc. #26). The Order states
that TTU “did not seek to file any reply to Patel’s arguments” and that “[t]he Court reserves the
right to revisit this jurisdictional issue if…TTU can later produce evidence….” Doc. #25 at p. 5.
Accordingly, TTU respectfully requests that the Court consider and grant this Motion.
2. Plaintiff’s Complaint (the “Complaint”) and Opposition to Defendants’ Motion to
Dismiss (the “Response”) are marred with inconsistent allegations based on conclusory,
speculative, and unsubstantiated assertions. Plaintiff’s Response does not even attempt to properly
address any of Defendants’ sovereign immunity arguments. Instead, Plaintiff conclusively asserts
that because he has sued TTU and the individual defendants in their official capacities for
injunctive relief, sovereign immunity does not apply. However, Plaintiff has not and cannot cite
to any authority to substantiate his argument because no such authority exists. Further, Plaintiff
has failed to establish that TTU waived sovereign immunity as it relates to Plaintiff’s breach of
contract claim. Plaintiff has not cited any authority—statutory or otherwise—which shows
legislative consent to waiver of sovereign immunity relating to breach of contract claims based on
school catalogs or any other agreements between state schools and their students. Moreover,
Plaintiff offers only speculative, conclusory allegations in support of his § 1983 and substantive
due process claims. Finally, granting Plaintiff the opportunity to file an amended complaint would
be a mere exercise in futility and undue delay, as Plaintiff’s pleadings thus far have clearly
demonstrated that no facts exist that will enable him to escape the sovereign immunity bar, or that

1

Plaintiff’s Brief in Support of Opposition to Defendants’ Motion to Dismiss (Doc. #20) was filed on September 13,
2017.

Defendants’ Brief in Support of Motion for Consideration of Defendants’
Motion to Dismiss

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link any of the Defendants to the alleged harm he claims to have suffered.
II.

ARGUMENT & AUTHORITIES

A. Plaintiff misconstrues injunctive relief as an exception to Defendants’ sovereign
immunity.
3.

“The Eleventh Amendment bars suits by private citizens against a state in federal

court, irrespective of the nature of the relief requested.” Okpalobi v. Foster, 244 F.3d 405, 411
(5th Cir. 2001) (citing Hutto v. Finney, 437 U.S. 678, 700, 98 S. Ct. 2565 (1978)). The Eleventh
Amendment does not foreclose claims in federal court against a state official insofar as a party
seeks prospective injunctive relief against such officials on the grounds that they are allegedly
acting in their official capacities in a manner inconsistent with federal constitutional restraints. See
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100-102, 104 S. Ct. 900, 908-09
(1984); Edelman v. Jordan, 415 U.S. 651, 654, 94 S. Ct. 1347, 1356 (1974); Ex Parte Young, 209
U.S. 123, 155-56, 28 S. Ct. 441, 452 (1908). However, the Supreme Court has held that states and
state agencies are also immune as entities for suits for prospective injunctive relief. See Duncan
v. University of Texas Health Science Center at Houston, 469 Fed. Appx. 364, 366-67 (5th Cir.
2012) (neither the state nor its agencies may be sued for injunctive relief in federal court).
Accordingly, Plaintiff’s claims against TTU, a state agency, are barred by sovereign immunity.
4.

Dismissal is also appropriate under the Eleventh Amendment because Plaintiff has

not demonstrated the existence of an ongoing violation of federal law that could be remedied by a
prospective injunction. To avoid an Eleventh Amendment bar by means of Ex parte Young, “a
court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing
violation of federal law and seeks relief properly characterized as prospective.” Va. Office of
Protection and Advocacy v. Stewart, 563 U.S. 247, 255 (2011) (quoting Verizon Md. Inc. v. Pub.
Svc. Comm'n., 535 U.S. 635, 645 (2002) (internal citation and quotation marks omitted). “Relief
Defendants’ Brief in Support of Motion for Consideration of Defendants’
Motion to Dismiss

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that in essence serves to compensate a party injured in the past by an action of a state official in
his official capacity that was illegal under federal law is barred even when the state official is the
named defendant.” Papasan v. Allain, 478 U.S. 265, 278 (1986). Plaintiff’s Complaint seeks
judgment “for Injunctive Relief to reinstate [Plaintiff] as a student in good standing….” Doc. #1
at p. 26. But all Plaintiff alleges is a one-time, past event, which is insufficient to establish an
ongoing violation of federal law. Nor has Plaintiff properly tied any of the Individual Defendants
to the purported harm. Plaintiff’s claims against the Defendants should therefore be dismissed in
their entirety pursuant to FED. R. CIV. P. 12(b)(1).
B. Plaintiff has failed to show the Individual Defendants are capable of redressing the
alleged harm.
5.

Plaintiff’s Complaint fails to show that any of the Individual Defendants, in any

capacity, have the ability to redress the alleged harm claimed by Plaintiff through Plaintiff’s
requested injunctive relief or otherwise. “To establish Article III standing, a plaintiff must show
‘an injury-in-fact caused by a defendant’s challenged conduct that is redressable by a court.’”
White v. Spikes, No. 3:14-CV-389-M-BN, 2015 WL 3504524, at *3 (N.D. Tex. May 28, 2015)
(quoting Dep’t. of Tex., Veterans of Foreign Wars of U.S. v. Tex. Lottery Comm’n, 760 F.3d 427,
432 (5th Cir. 2014); see also K.P. v. LeBlanc, 627 F.3d 115, 122 (5th Cir. 2010). To show injuryin-fact, a plaintiff must demonstrate an injury that is “‘concrete,’ ‘distinct and palpable,’ and
‘actual or imminent.’” Id (citation omitted). To establish a causal connection between the injury
and the conduct complained of, the injury must be “fairly trace[able] to the challenged action of
the defendant and not . . . the[e] result [of] the independent action of some third party not
before the court.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (emphasis
added). Finally, the injury must be “likely”, as opposed to merely “speculative,” that the injury
will be “redressed by a favorable decision.” Id. “Failure to establish any of these three elements
Defendants’ Brief in Support of Motion for Consideration of Defendants’
Motion to Dismiss

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deprives the federal court of jurisdiction to hear the suit.” Rivera v. Wyeth-Ayerst Labs, 283 F.3d
315, 319 (5th Cir. 2002); see also Okpalobi v. Foster, 244 F.3d 405, 425 (5th Cir. 2001) (en banc)
(standing assessed as to each claim independently.)
6.

Plaintiff’s claims fail because Plaintiff has made no factual allegations of what, if

any, connection the Individual Defendants had to the February 10, 2017 panel decision or to
Plaintiff’s subsequent appeal—both of which were independent actions taken by third parties who
are not before the Court. See Doc. ## 1, 3; see also Lujan at 560-61. Nor has Plaintiff asserted
any facts that show any of the Individual Defendants have the power to redress his alleged injuries.
See Okpalobi, 244 F.3d at 427 (“Because the defendants have no powers to redress the injuries
alleged, the plaintiffs have no case or controversy with these defendants that will permit them to
maintain this action in federal court...[A] state official cannot be enjoined to act in any way that is
beyond his authority to act in the first place.”). Plaintiff vaguely states that he seeks injunctive
relief “to reinstate his status as an active student”. Doc. #1 at ¶ 98. However, Plaintiff remains an
active student at TTU. As asserted in the Complaint, Plaintiff was taking concurrent baccalaureate
and graduate classes in 2016. Id. at ¶ 14. As a result of his cheating and plagiarism, Plaintiff was
dismissed from TTU’s Rawls College of Business Master of Science accounting graduate
program—he was not dismissed from his TTU undergraduate classes or from the Rawls College
of Business. See Doc. #3 at p. 8, ¶1; Doc. #20 at p. 14.
7.

Moreover, Plaintiff has not shown that any of the Individual Defendants, in their

official capacities, have the authority in their respective official capacities to provide the kind of
injunctive relief he has requested. See White, 2015 WL at *5; see also Decker v. McDonald, No.
5:09cv27, 2010 WL 1424322, at *8 (E.D. Tex. Jan. 11, 2010) (granting summary judgment with
respect to plaintiff’s request for prospective injunctive relief because plaintiff presented nothing
Defendants’ Brief in Support of Motion for Consideration of Defendants’
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more than vague requests for injunctive relief without showing that any of the defendants are in a
position to grant such relief). Simply put, because Plaintiff has sued state officials that are
powerless to redress the prospective injunctive relief that he seeks, Plaintiff lacks article III
standing, and Texas’ Eleventh Amendment immunity remains a bar to this action. See White at
*5.
C. Plaintiff misinterprets case law to avoid sovereign immunity’s bar of his breach of
contract claim.
8.

There was never a contract between TTU and Plaintiff. Even assuming, arguendo,

that such contract did in fact exist, Plaintiff’s breach of contract claim is wholly barred by Eleventh
Amendment immunity. As set forth in detail in the Motion, Plaintiff has failed to show legislative
consent to his breach of contract claim. See Doc. # 10 at ¶¶13-15. In addition, the cases cited by
Plaintiff are inapposite—they do not discuss or even mention the issue of sovereign immunity, nor
do they suggest that the legislature has waived sovereign immunity as it relates to contracts
between a school and its students. See University of Texas health Science Center at Houston v.
Babb, 646 S.W.2d 502 (Tex. App.—Houston [1st Dist.] 1982); Burnett v. College for the
Mainland, 994 F.Supp.2d 823 (S.D. Tex. 2014). Plaintiff’s breach of contract claim must therefore
be dismissed.
D. The Response fails to point to any facts in the Complaint that support Plaintiff’s
claims against the Individual Defendants.
9.

Recognizing that the Complaint fails to tie any of the Individual Defendants to the

alleged harm (as discussed in the Motion), the Response merely refers to and re-asserts conclusory,
speculative, and unsubstantiated allegations which are wholly insufficient to state a claim upon
which relief may be granted and even contradicts certain allegations set forth in the Complaint.
Specifically, without citing to the Complaint or any supporting facts, the Response is a mere
Defendants’ Brief in Support of Motion for Consideration of Defendants’
Motion to Dismiss

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collection of speculation, inferences, and conclusions devoid of any facts, which purportedly assert
what the Individual Defendants knew. See Doc. #20, at pp. 7 (“the Individual Defendants, as TTU
officials, knew that he was entitled to equal access….”) 8 (“These Defendants knew…. Defendant
Jones knew…Defendant Todd knew….”), 10-15. Further, the citations in the Response merely
refer to paragraphs in the Complaint that are also conclusory and wholly devoid of factual support.
See, e.g., id. at pp. 8, 11-14.
10.

Plaintiff incorporates the facts section from his Motion for Preliminary Injunction

(the “Preliminary Injunction”) (Doc. # 3) into his Response. See Doc. #20 at p. 3, section II.
Curiously, the allegations in the Complaint, the Preliminary Injunction, and the Response are
inconsistent. For example, the Complaint and the Preliminary Injunction allege that Defendant
Todd refused to include Plaintiff’s evidence for consideration by the hearing panel (Doc. #1 at ¶
35; Doc. #3 at p. 6), whereas the Response alleges that it was Defendant Jones who refused to
consider or include the evidence (Doc. #20 at p. 12). Even more perplexing is the fact that Plaintiff
admits in the Complaint, the Preliminary Injunction, and the Response that he had the opportunity
to submit, and did submit, evidence for consideration by the hearing panel. See Doc. #1 at ¶¶ 46,
48 (“the Student Conduct Office found [Plaintiff] guilty by a preponderance of the evidence
standard on February 15, 2017, after considering the…available documentation, evidence,
reports received from a faculty member, and [Plaintiff’s] statement.”; Doc. #3 at p. 6
(“[Plaintiff]…was able to assemble some facts and logical inferences thereof in his defense.”);
Doc. #20 at p. 12 (“[Plaintiff] scrambled for facts to include in Defendant Todd’s ‘Final
Investigation Report’ report in the scant two days she proscribed.”). Similarly, as discussed
in the Motion, Plaintiff rebuts his own equal protection claim by admitting there was a rational
basis for the difference in treatment between him and the two other students accused of cheating,
Defendants’ Brief in Support of Motion for Consideration of Defendants’
Motion to Dismiss

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which proves the other two students were not similarly situated comparators who were prima facie
identical in all factors relevant to the case. See Doc. #10 at ¶¶ 25-27; Doc. #20 at p. 15; see also
Lindquist v. City of Pasadena Texas, 669 F.3d 225, 233-34 (5th Cir. 2012) (In considering who is
similarly situated, comparators must be prima facie identical in all factors relevant to the case).
E. Allowing Plaintiff to amend his Complaint after his repeated failure to cure its
deficiencies would be an exercise in futility and undue delay.
11.

Under Federal Rule of Civil Procedure 15(a), “[d]enial of leave to amend may be

warranted for undue delay, bad faith or dilatory motive on the part of the movant, repeated failure
to cure deficiencies, undue prejudice to the opposing party, or futility of a proposed amendment.”
United States ex rel. Steury v. Cardinal Health, Inc., 625 F.3d 262, 270 (5th Cir. 2010). A
proposed amendment is futile if “the amended complaint would fail to state a claim upon which
relief can be granted.” Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir. 2000).
“[T]he same standard of legal sufficiency as applies under Rule 12(b)(6)” applies to determining
futility.

Id. (internal quotations omitted).

Plaintiff has had three separate attempts—the

Complaint, the Motion for Injunction, and the Response—to provide the Court and Defendants
with factual support for the claims he asserts in this litigation. Clearly, despite his three attempts
and repeated failure to cure such deficiencies, Plaintiff has wholly failed to provide any facts, much
less consistent allegations, in support of his claims against the Defendants. Nor has Plaintiff
provided the Court with a copy of his proposed amendment to the Complaint to show he is capable
of pleading facts which would state a claim upon which relief can be granted. Accordingly,
Plaintiff’s motion for leave to file an amended complaint would be futile in that it would only
waste the Court’s time and unduly delay the inevitable—dismissal of Plaintiff’s claims; it must
therefore be denied.

Defendants’ Brief in Support of Motion for Consideration of Defendants’
Motion to Dismiss

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PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants Texas Tech University, Duane
Jones, William Pasewark, Robert Ricketts, and Brittany Todd respectfully request that this Court
grant their Motion to Dismiss, thereby dismissing with prejudice all claims asserted by Plaintiff
against them. Defendants further request all other relief to which they are justly entitled.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation

ANGELA V. COLMENERO
Chief - General Litigation Division

/s/ Rola Daaboul_____________
Rola Daaboul
Texas Bar No. 24068473
Assistant Attorney General
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 936-1322
FAX: (512) 320-0667
e-mail: rola.daaboul@oag.texas.gov
ATTORNEYS FOR DEFENDANTS

Defendants’ Brief in Support of Motion for Consideration of Defendants’
Motion to Dismiss

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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been served
electronically through the electronic-filing manager on this the 27st day of September, 2017, to:
Jason J. Bach
The Bach Law Group, LLC
2802 Flintrock Trace, Suite 255
Austin, Texas 78738

/s/ Rola Daaboul_____________
Rola Daaboul
Assistant Attorney General

Defendants’ Brief in Support of Motion for Consideration of Defendants’
Motion to Dismiss

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