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RESPONSE AND OBJECTION filed by Amy Pickett re: 11 Motion to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction (Attachments: # 1 Exhibit(s)

Pickett v. Texas Tech University Health Sciences Center (TTUHSC) et al, No. 5:20-cv-00232-H-BQ (N.D. Tex.) · Dkt. 13 · 2021-02-05 · PDF

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

Case 5:20-cv-00232-H-BV

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
AMY PICKETT, Pro Se
Plaintiff,
v.
TEXAS TECH UNIVERSITY HEALTH
SCIENCES CENTER; BARBARA
CHERRY, individually and in her official
capacity as Department Chair of Leadership
Studies; and MICHAEL EVANS,
individually and in his official capacity as
Dean of School of Nursing,
Defendants.

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Civil Action No. 5:20-CV-00232-H-BQ

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS
Plaintiff AMY PICKETT, Pro Se, Federal rights were violated as a student with a
documented disability, ADHD, while attending Texas Tech University Health Sciences Center
(TTUHSC) in 2018. ADHD is covered under both the Rehabilitation Act of 1973, section 504,
and the Americans with Disabilities Act (ADA). Plaintiff was denied ADA accommodation
needs by professors related to a qualified, and documented disability, and then retaliated against
by Defendants being dismissed from school. Exhibit 1 and Exhibit 2 are illustrations of
documentation, referred to as a “Letter of Accommodations” (LOA) received from the TTUHSC
Office of Accommodations in Summer and Fall 2018 outlining and approving Plaintiff’s needs
for accommodations in course studies. LOA states,
“Amy LeAnn Pickett is registered with my office and has provided sufficient
evidence of a disability, which is covered by federal law (Americans with
Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973 as
amended).”

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Plaintiff provided Exhibit 1 and Exhibit 2 to professors in Summer and Fall 2018 per
academic policy and professors denied ADA accommodations, in which Plaintiff was entitled to,
such as double time on an exam and PowerPoint presentations per LOA. Since Plaintiff’s
constitutional rights were violated by TTUHSC located in Lubbock, Texas, and Defendants are
being represented by the Texas Attorney General, this case is filed within the correct Federal
jurisdiction United States District Court for the Northern District of Texas Lubbock Division. As
a punitive result of TTUHSC violating Plaintiffs constitutional rights, Defendants retaliated,
discriminated, and dismissed Plaintiff abruptly from TTUHSC in December 2018, refer to
Exhibit 4. Exhibit 3 outlines Plaintiffs academic achievement and success in DNP and PostMaster’s FNP coursework before being discriminated against and unjustly dismissed from
her academic studies, halting Plaintiffs nursing career path. Plaintiff is seeking a fair jury
trail, and that this court grant equitable relief, monetary damages, and further relief as justice
requires.
VENUE & JURISDICTION
As referenced in the complaint Paragraph 1-3, this Court has jurisdiction over the claims set

forth in this action pursuant to 28 U.S.C. § 1331 (question of federal law) based upon 28 U.S.C.
§ 1343 (civil rights), as the claims are based upon 42 U.S.C. §§ 12101-12213, 29 U.S.C. § 701,
et seq., and 42 U.S.C. § 1983. Supplemental jurisdiction over my pendant state law claims are
proper pursuant to 28 U.S.C. § 1367(a), as there exist claims arising out of the same transaction
and occurrence as my federal claims. Venue in this jurisdiction is proper pursuant to 28 U.S.C. §
1391(b), as Defendants are in this District and the events giving rise to my claims occurred
therein.

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VIOLATIONS OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT, 42 U.S.C.
§ 12101, et seq., and SECTION 504 OF THE REHABILITATION ACT OF 1973, 29 U.S.C
§ 701, et seq.
(DISABILITY DISCRIMINATION)
According to Title II of the Americans with Disabilities Act, TTUHSC, under color of
law does not obtain immunity for violating constitutional rights of students who have an ADA
disability. § 35.178 states,
“A State shall not be immune under the eleventh amendment to the Constitution
of the United States from an action in Federal or State court of competent
jurisdiction for a violation of this Act. In any action against a State for a violation
of the requirements of this Act, remedies (including remedies both at law and in
equity) are available for such a violation to the same extent as such remedies are
available for such a violation in an action against any public or private entity other
than a State.”
As referenced in the complaint Paragraph 70-72, Title II of the American with
Disabilities Act (ADA) states that, “no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
42 U.S.C. § 12132. The ADA is a federal anti-discrimination statute designed to provide a clear
and comprehensive national mandate for the elimination of discrimination against individuals
with disabilities. The Rehabilitation Act (RA) provides that, “No otherwise qualified individual
with a disability ... shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination under any program
or activity receiving Federal financial assistance ....” 29 U.S.C. § 794(a). TTUHSC receives
federal financial assistance, as defined by 29 U.S.C. § 794, through receipt of federal financial
aid and other funds, and is a public entity. As such, it is subject to the mandate of RA and ADA
and may not discriminate against a person because of her disabilities.
INCONCLUSION
For all reasons set forth above, Plaintiff, AMY PICKETT, respectfully requests that this

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Court deny defendant's Motion to Dismiss Plaintiff's Original Complaint pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6) in its entirety. Pursuant to Federal Rule of Civil

Procedure 38(b), a jury trial is demanded moving forward for all issues in this matter.
Respectfully submitted,

DATED this 5th day of February 2021.

By Amy Pickett
AMY PICKETT
P.O. Box 543

Buffalo Gap, Texas 79508
apickett1010@yahoo.com
(682) 258-4558

PLAINTIFF, PRO SE
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been served

electronically through the Court's Electronic Case File Notification on this 5th day of February
2021, to:
/s/ Francesca A. Di Troia FRANCESCA A. DI TROIA
Texas Bar No. 24097596 Lead Counsel

francesca.ditroia@oag.texas.gov Assistant Attorney General
Office of the Attorney General
General Litigation Division
P.O. Box 12548

Austin, Texas 78711-2548

Tel: (512) 475-4651
Fax: (512) 320-0667
ATTORNEYS FOR DEFENDANTS TEXAS
TECH UNIVERSITY HEALTH SCIENCES

CENTER, DR. BARBARA CHERRY, and DR.
MICHAEL EVANS

By Amy Pickett
AMY PICKETT

P.O. Box 543

Buffalo Gap, Texas 79508
apickett1010@yahoo.com
(682) 258-4558

PLAINTIFF, PRO SE

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