793 Fed.Appx. 267 (5th Cir. 2019), 19-50515, Rosas v. University of Texas at San Antonio

Docket Nº:19-50515
Citation:793 Fed.Appx. 267
Opinion Judge:PER CURIAM:
Party Name:Irma ROSAS, Plaintiff-Appellant v. UNIVERSITY OF TEXAS AT SAN ANTONIO, also known as UTSA; University of Texas at Austin, also known as UT, Defendants-Appellees
Attorney:Irma Rosas, Pro Se Rola Daaboul, Assistant Attorney General, Office of the Attorney General, General Litigation Division, Austin, TX, for Defendants-Appellees
Judge Panel:Before WIENER, HAYNES, and COSTA, Circuit Judges.
Case Date:November 20, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 267

793 Fed.Appx. 267 (5th Cir. 2019)

Irma ROSAS, Plaintiff-Appellant

v.

UNIVERSITY OF TEXAS AT SAN ANTONIO, also known as UTSA; University of Texas at Austin, also known as UT, Defendants-Appellees

No. 19-50515

United States Court of Appeals, Fifth Circuit

November 20, 2019

UNPUBLISHED

Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 5th Cir. Rules 28.7 and 47.5.

Page 268

Appeal from the United States District Court for the Western District of Texas, U.S.D.C. No. 5:18-CV-536

Irma Rosas, Pro Se

Rola Daaboul, Assistant Attorney General, Office of the Attorney General, General Litigation Division, Austin, TX, for Defendants-Appellees

Before WIENER, HAYNES, and COSTA, Circuit Judges.

OPINION

PER CURIAM:[*]

Proceeding pro se and in forma pauperis, Appellant Irma Rosas appeals the district court’s dismissal of her Title VI, VII, and VIII and 42 U.S.C. § § 1983, 1985, and 1986 claims with prejudice. We AFFIRM the district court’s judgment.

I. Background

In June of 2018,1 Rosas filed a complaint against the University of Texas at San Antonio ("UTSA"), alleging that it "discriminated against her because she identified as Chicana" in violation of 42 U.S.C. § § 1983, 1985, and 1986. Pursuant to 28 U.S.C. § 1915(e), a magistrate judge screened the complaint for frivolousness and ordered Rosas to file a more definite statement of her claims. Rosas filed an

Page 269

amended complaint against UTSA and the University of Texas at Austin ("UT"), alleging violations of Titles VI and VIII of the Civil Rights Act of 1964 and 42 U.S.C. § § 1983, 1985, and 1986.

UTSA moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), UTSA argued that the district court lacked subject matter jurisdiction over the § § 1983, 1985, and 1986 claims because UTSA was entitled to sovereign immunity. Under Rule 12(b)(6), UTSA argued that Rosas failed to state § § 1983, 1985, and 1986 claims because the statute of limitations had run. Additionally, UTSA contended that Rosas failed to allege facts sufficient to support any of her claims. Rosas did not respond to UTSA’s motion to dismiss.

The magistrate judge reviewed UTSA’s motion to dismiss and recommended that the district court grant the motion. Rosas objected to the magistrate judge’s recommendations and moved to return the case to district court, arguing that her Title VI claim was not subject to sovereign immunity. UTSA responded, again arguing that Rosas’s claims were barred by sovereign immunity and the statute of limitations. In her reply to the motion ("Reply"), she claimed that she "suffered from mental illness" and could provide, at the court’s request, "documentary evidence to [that] effect" to toll the statute of limitations.

The district court independently reviewed the motions before it. It liberally construed Rosas’s pro se complaint, which claimed a cause of action under Title VIII of the Civil Rights Act of 1964, as instead alleging claims under Title VII of the Civil Rights Act of 1964 and Title VIII of the Civil Rights Act of 1968. The district court granted UTSA’s motion to dismiss, finding that (1) it lacked subject matter jurisdiction over Rosas’s Title VIII and § § 1983, 1985, and 1986 claims because those claims were barred by state sovereign immunity, and (2) Rosas failed to state viable Title VI and VII claims because they were, on their face, barred by the statute of limitations.2 The district court did not address Rosas’s Reply.

Additionally, the district court sua sponte dismissed Rosas’s claims against UT. Pursuant to Federal Rule of Civil Procedure 12(h)(3), the court held that it lacked subject matter jurisdiction over Rosas’s Title VIII and § § 1983, 1985, and 1986 claims against UT because UT had sovereign immunity. The court dismissed Rosas’s Title VI and VII claims against UT under 28 U.S.C. § 1915(e)(2)(B)(ii) because Rosas made "no allegations concerning any discrimination against her undertaken by UT." Thus, the district court dismissed all of Rosas’s claims with prejudice. Rosas timely appealed.

II. Jurisdiction

For those claims not barred by sovereign immunity, the district court had federal question jurisdiction under 28 U.S.C. § 1331. This court has jurisdiction over the appeal under 28 U.S.C. § 1291. Additionally, we always have "jurisdiction to determine jurisdiction." Cargill Ferrous Int’l. v. SEA PHOENIX MV, 325 F.3d 695, 704 (5th Cir. 2003).

III. Discussion

Rosas appeals the district court’s dismissal of (1) her Title VI and VII claims against UTSA under the statute of limitations; (2) her Title VIII and § § 1983, 1985, and 1986 claims against UTSA and UT

Page 270

under sovereign immunity; and (3) her Title VI and VII claims against UT for failure to state a claim.

A. Statute of Limitations

Rosas does not contest the accrual dates for her Title VI and Title VII claims, which the district court determined began on September 26, 2012, at the latest. Thus, absent an exception or a tolling period, her claims are facially barred by the statute of limitations, given her filing almost six years after the statute ran. Rosas alleges that her claims should be equitably tolled under Texas Civil Practice and Remedies Code § 16.001 and that the district court "suppress[ed] ... information" in her Reply, where she claimed to have documentary evidence of mental illness that could toll the statute of limitations. We liberally construe Rosas’s brief as arguing that the district court erred by not allowing her to amend her complaint when she filed her Reply. See

Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008) (per curiam) (stating that "pro se briefs are afforded liberal construction"); McGruder v. Phelps, 608 F.2d 1023, 1025 (5th Cir. 1979) (holding "that the district judge should have treated the [objections to a magistrate’s report] ..., however denominated, as an amendment to [the plaintiff’s] complaint or an addition in the nature of an amendment").

We review the district court’s dismissal of a complaint without granting leave to amend for abuse of discretion. See

Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009) (per curiam). "Generally, ... a pro se litigant should be offered an opportunity to amend his complaint before it is dismissed." Id. at 767-68. However, a district court acts within its discretion when it dismisses a futile motion to amend. See

Legate v. Livingston, 822 F.3d 207, 211 (5th Cir. 2016). "[A]n amendment is considered futile if it would fail to state a claim upon which relief could be granted." Id.

Rosas alleges only that she was mentally incapacitated beginning in January 2014 and thus could not file a complaint by September 26, 2014.3 Section 16.001 applies only to Rosas’s Title VI claim because the state statute of limitations provisions does not apply to Title VII claims. We "borrow" the relevant state statute of limitations for statutes that do not set forth a limitations period and where the claim in question was not "made possible by" a post-1990 Congressional enactment. See

Frazier v. Garrison I.S.D., 980 F.2d 1514, 1521-22 (5th Cir. 1993); cf. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004) (explaining that 28 U.S.C. § 1658, a four-year statute, applies to claims "made possible by" a post-1990 amendment). "In applying the forum state’s statute of limitations," we also give effect to the state’s tolling provisions. See Smith v. Reg’l Transit Auth., 827 F.3d 412, 421 (5th Cir. 2016). Although Title VI does not set forth a limitations period and the claim in question was not "made possible by" a post-1990 Congressional enactment, see

Frazier, 980 F.2d at 1521, Title VII does set forth express...

To continue reading

FREE SIGN UP