Ta v. Neimes

• Decision Date: 22 May 1996
• Docket Number: Civil Action No. SA-95-CA-699.
• Parties: Kien Chung TA and Stephen Fisher, Plaintiffs, v. Robert E. NEIMES, M.D., Hugh N. Keel, Sam Glanney, Garry Woo, Individually and in their Official Capacities, Texas Center for Infectious Disease, San Antonio State Chest Hospital, and Texas Department of Health, Defendants.
• Court: U.S. District Court — Western District of Texas

927 F. Supp. 977

Kien Chung TA and Stephen Fisher, Plaintiffs, v. Robert E. NEIMES, M.D., Hugh N. Keel, Sam Glanney, Garry Woo, Individually and in their Official Capacities, Texas Center for Infectious Disease, San Antonio State Chest Hospital, and Texas Department of Health, Defendants.

Civil Action No. SA-95-CA-699.

United States District Court, W.D. Texas, San Antonio Division.

May 22, 1996.

James C. Harrington, Texas Civil Rights Project, Austin, TX, for plaintiffs.

Nancy A. Trease, Assistant Attorney General, Austin, TX, for defendants.

ORDER CONCERNING REMAND TO STATE COURT

BIERY, District Judge.

Before the Court is plaintiffs' motion to sever and remand the state law claims because of the Eleventh Amendment. An opportunity is presented to analyze two seemingly divergent lines of cases: one line requiring remand of the entire cause of action when any of the claims are barred by the Eleventh Amendment and the other line requiring remand of the barred claims only. For the reasons stated below, the entire case is remanded to state court.

On July 25, 1995, plaintiffs filed an original petition in state court seeking declaratory, injunctive, and monetary relief for the deprivation of their constitutional rights under color of law in violation of the Fourteenth Amendment to the United States Constitution and Article I, Sections 3, 3a, and 19, of the Texas Constitution, for tortious acts under Texas law, and for deprivation of plaintiffs' rights under the Americans with Disabilities Act. Both plaintiffs were involuntarily committed to the San Antonio State Chest Hospital (currently known as the Texas Center for Infectious Disease and referred to herein as "Chest Hospital") and claim they were injured because of the conditions at the hospital and the treatment received during their confinement.

Defendants filed their notice of removal on August 7, 1995. Defendants assert removal is proper pursuant to 28 U.S.C. § 1331 and § 1441(b). On August 28, 1995, defendants filed their motion to dismiss or for more definite statement. Within the motion, defendants contend certain causes of action are barred by the Eleventh Amendment to the United States Constitution. In response, plaintiffs filed an unopposed motion requesting this Court to sever the state law claims and remand same to state court because of the Eleventh Amendment bar.

THE ELEVENTH AMENDMENT

The Eleventh Amendment to the United States Constitution provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI. Although the plain language of the Eleventh Amendment does not so state, the amendment has been "interpreted to bar a suit by a citizen against the citizen's own State in Federal Court." Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir.1995) (quoting AMISUB (PSL), Inc. v. State of Colorado Dep't of Social Servs., 879 F.2d 789, 792 (10th Cir. 1989), cert. denied, 496 U.S. 935, 110 S.Ct. 3212, 110 L.Ed.2d 660 (1990) and referred to as the "Hans Doctrine," Hans v. State of Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 505, 33 L.Ed. 842 (1890)). Therefore, if a citizen of a state files suit against the state or one of its agencies, that suit is barred by the Eleventh Amendment regardless of the relief sought, whether legal or equitable. Johns, 57 F.3d at 1552. However, a suit brought "to prospectively enjoin a state official from violating federal law" is not barred by the Eleventh Amendment and may be brought in federal court. Id. (referred to as the Ex parte Young exception, Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)). The Ex parte Young exception empowers federal courts to prevent or stop state officials from committing continuing violations of federal law. Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 425-26, 88 L.Ed.2d 371 (1985). The availability of this prospective relief for continuing violations is "necessary to vindicate the federal interest in assuring the supremacy of that law." Id. However, when there is no "ongoing violation of federal law, a suit against a state officer — a suit the decision of which will as a practical matter bind the state — should be treated for what it is: a suit against the state." Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir.1995) (quoting Green, 474 U.S. at 66, 106 S.Ct. at 424-25 and Watkins v. Blinzinger, 789 F.2d 474, 484 (7th Cir.1986), cert. denied, 481 U.S. 1038, 107 S.Ct. 1976, 95 L.Ed.2d 816 (1987)).

In the petition filed in state court, plaintiffs sued (1) Robert E. Neimes, M.D., the director of the Chest Hospital until September 1993, individually and in his official capacity as the supervisor of all hospital staff and as agent, servant and employee of the Chest Hospital; (2) Hugh N. Keel, the chief administrative officer of the Chest Hospital from October 25, 1993 until June 2, 1995, individually and in his capacity as supervisor of all hospital staff, and as agent, servant, and employee of the Chest Hospital; (3) Sam Glanney, the acting chief administrative officer for the Chest Hospital, individually and in his official capacity; (4) Garry Woo, M.D., plaintiffs' attending physician at the Chest Hospital, individually and in his official capacity as agent, servant, and employee of the Chest Hospital and the person responsible for assessing the plaintiffs' medical conditions and ordering treatment; (5) San Antonio State Chest Hospital, an agency of the State of Texas, and a public entity for purposes of the ADA; and (6) the Department of Health, which administers and enforces rules and bylaws relating to the management of the Chest Hospital. The petition alleges the Department of Health was acting as an agent of the State of Texas. Plaintiffs assert all defendants "were acting under color of law and pursuant to their legal authority."

In their original petition, plaintiffs allege all defendants had "a duty to see that they received safe, adequate, and humane treatment." Plaintiffs claim the defendants, under color of law and the authority of the State of Texas, "intentionally, negligently, and with complete and deliberate indifference to Plaintiffs' clearly established constitutional rights, deprived them of their rights to reasonably safe conditions of confinement, freedom from unreasonable physical restraint, bodily integrity, and freedom from cruel and unusual punishment under the Due Process Clause of the Fourteenth Amendment." Defendants also violated Mr. Ta's right to refuse medication and deprived Mr. Fisher of his right to appropriate treatment. Plaintiffs also contend the defendants wrongfully denied Mr. Ta's constitutional rights in violation of the Equal Protection Clause of the Fourteenth Amendment by failing to provide care and treatment in a language and format understandable to him. These same claims also form causes of action under the Texas Constitution and the Texas Health and Safety Code.

In addition to these claims, plaintiffs allege causes of action under Texas law for false imprisonment, battery, and the Texas Tort Claims Act. The concluding allegation concerns defendants' discrimination against plaintiffs by failing to reasonably accommodate their disabilities and depriving them of the full enjoyment of services, facilities, privileges, advantages, and accommodations in violation of Title II of the Americans with Disabilities Act (ADA).

Plaintiffs seek injunctive relief because they believe there is a possibility their tuberculosis will recur and if it does, they likely will be involuntarily recommitted for treatment. Unless injunctive relief is granted, plaintiffs believe there is a substantial probability they will suffer irreparable injury for which there is no adequate remedy at law. In their prayer for relief, plaintiffs seek: (1) declaratory judgment that defendants violated plaintiffs' constitutional rights, (2) permanent injunction preventing defendants from failing to provide the proper care and treatment to patients, (3) judgment against all defendants, jointly and severally, for damages sufficient to compensate them for their injuries, (4) judgment against Dr. Woo individually for punitive damages, and (5) attorney's fees.

Defendants filed a notice of removal based on 28 U.S.C. § 1331 and 28 U.S.C. § 1441(b), and after removal, filed their motion to dismiss or for more definite statement.¹ In their motion, defendants assert all claims against the state and individual defendants in their official capacity are barred except for those for prospective injunctive relief. Defendants also claim the Eleventh Amendment bars all of plaintiffs' causes of action based on state law.

In response to defendants' motion to dismiss, plaintiffs filed a first amended complaint and a written reply. In the reply, plaintiffs state they have amended their complaint which they claim "makes clear" they are suing the state agency defendants only for violations of the ADA and Section 504 of the Rehabilitation Act of 1973,² the individual defendants are being sued for all causes of action except for the ADA and § 504, and the non-prospective relief being sought pursuant to § 1983 is limited to the defendant individuals. Plaintiffs also filed an unopposed motion to sever the state law claims and remand same to state court thereby rendering moot the Eleventh Amendment argument. Although the motion for leave to file the first amended complaint has not been granted, this Court has reviewed the amended complaint and is not convinced the changes "make clear" the capacities in which the defendants are being sued for the various causes of action asserted.³ See Wells v. Brown, 891 F.2d 591, 593 (6th Cir.1989) (because Eleventh Amendment places jurisdictional limit on federal courts in civil rights cases against states and state employees, rule 9(a) of Federal...