Jingping Xu v. Univ. of Tex. MD Anderson Cancer Ctr., Civil Action No. H–10–3711.

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
• Writing for the Court: KEITH P. ELLISON
• Citation: 854 F.Supp.2d 430,283 Ed. Law Rep. 319
• Parties: JINGPING XU, Plaintiff, v. The UNIVERSITY OF TEXAS MD ANDERSON CANCER CENTER, et al., Defendants.
• Docket Number: Civil Action No. H–10–3711.
• Decision Date: 22 February 2012

854 F.Supp.2d 430
283 Ed. Law Rep. 319

JINGPING XU, Plaintiff,
v.
The UNIVERSITY OF TEXAS MD ANDERSON CANCER CENTER, et al., Defendants.

Civil Action No. H–10–3711.

United States District Court,
S.D. Texas,
Houston Division.

Feb. 22, 2012.

[854 F.Supp.2d 432]

Jingping Xu, Houston, TX, pro se.

Jason T. Contreras, Office of the Attorney General, Austin, TX, for Defendants.

MEMORANDUM AND ORDER
KEITH P. ELLISON, District Judge.

Pending before the Court is Defendants' First Amended Motion to Dismiss (Doc. No. 20). After considering the Motions, all responses and replies thereto, and the applicable law, the Court finds that Defendants' Motion should be granted.

I. BACKGROUND¹

Plaintiff brings claims under 42 U.S.C. § 1983 and the First and Fourteenth Amendments against Defendant The University of Texas M.D. Anderson Cancer Center (“UT MD Anderson”), and individual defendants Arlene Phillips (“Phillips”) and Dr. Guillermina Lozano (“Lozano”), in their individual and official capacities. Plaintiff alleges that Defendants violated her rights of free speech under the First Amendment, as well as her rights of due process and equal protection under the Fourteenth Amendment. (Doc. No. 18 at 2; ¶ 3.27.)

[854 F.Supp.2d 433]

Plaintiff was employed by UT MD Anderson as a Research Scientist in the Department of Genetics. (Doc. No. 19 at 1.) Her employment ended due to the retirement of Dr. Michael Siciliano, the professor who led her department, the resultant closing of Dr. Siciliano's laboratory, and the end of grant funding for her position. (Mot. at 2; Doc. No. 19, Ex. B, at 1.) In August 2008, Plaintiff entered into an agreement with Phillips and Dr. Siciliano that entitled Plaintiff to continue working at the UT Department of Genetics, and receiving pay, until October 28, 2008. (Doc. No. 18 ¶¶ 3.1.1–3.1.3.) At the instruction of Lozano, the Department Chair, Phillips prematurely terminated Plaintiff's employment on October 8, 2008. ( Id. ¶ 3.1.4.) Phillips ordered Plaintiff to return her office keys and ID badge, and terminated Plaintiff's email account. ( Id. ¶¶ 3.1.5, 3.1.6.)

On October 21, 2008, Plaintiff went to UT MD Anderson and delivered a grievance letter to Phillips. ( Id. ¶¶ 3.2, 3.3.) Phillips reported Plaintiff's presence to the UT Police Department, and, based on Phillips' report, UT Police issued a Crime Alert Bulletin. ( Id. ¶¶ 3.4, 3.5.) The Bulletin contained Plaintiff's photo and a physical description, and designated Plaintiff as a “suspicious person” to be reported immediately to the UT Police if seen on campus. ( Id. ¶ 3.5.) The Bulletin also stated that Plaintiff “has no official business on property,” even though Plaintiff had academic duties to carry out on the property. ( Id. ¶ 3.6.) The issuance of the crime bulletin, and the ban that it imposed, made it difficult for Plaintiff to perform her duties as an adjunct faculty member and, later, as an affiliated research fellow. ( Id. ¶ 3.6.)

In November, 2008, Lozano agreed to Dr. Siciliano's request to allow Plaintiff to return to work in the Basic Science Research Building (BSRB) of UT MD Anderson. ( Id. ¶¶ 3.7, 3.8.) Phillips emailed Plaintiff on December 1, 2008 to inform her that the restriction against Plaintiff's entrance into the BSRB had been lifted. ( Id. ¶ 3. 10.) Just two days later, Phillips saw Plaintiff leaving the BSRB, and called the UT Police to report Plaintiff. ( Id. ¶¶ 3.11, 3.12.) UT Police distributed the Crime Alert Bulletin to employees around the BSRB, and asked Plaintiff's former colleagues and others to report Plaintiff if they saw her on campus. ( Id. ¶¶ 3.13, 3.14.) Plaintiff protested and asked Defendants to take down the Crime Alert Bulletin and clear her name, but Defendants ignored Plaintiff's request. ( Id. ¶¶ 3.15, 3.16.) However, Lozano insisted that Plaintiff continue to be barred from the campus, and further banned Plaintiff from being hired back to the UT Department of Genetics “on [sic] any capacity.” ( Id. ¶¶ 3.17, 3.18.)

In March, 2010, Plaintiff sent a formal request to UT MD Anderson, Lozano, and Phillips for a “Name Clearing Hearing” and for “remedies to resolve past damages and to prevent future damages to Plaintiff.” ( Id. ¶ 3.20.) Defendants ignored Plaintiff's request. ( Id. ¶ 3.21.) UT Police told Plaintiff that, under the ban currently in place, she is not allowed to interview for jobs or attend seminars, workshops, or other activities on any UT property. ( Id. ¶ 3.23.) Plaintiff had been an adjunct faculty member of UT at the time of the ban, and had academic duties to carry out on the property. ( Id. ¶ 3.26.) Plaintiff's requests for permission to enter the campus to attend activities at UT, including those comprising part of Plaintiff's professional/academic duties, were denied or ignored. ( Id. ¶ 3.24.) On one occasion, UT threatened that the police would arrest her if she appeared on campus. ( Id. ¶ 3.24.) Plaintiff has lost a national training grant (a fellowship awarded from the National Institute

[854 F.Supp.2d 434]

of Health) because she could not appear on campus to fulfill the grant requirements. ( Id. ¶ 3.25.) Additionally, Plaintiff has suffered unemployment and under-employment due to the “unjustified label of infamy” placed on her by Defendants. ( Id. ¶ 3.26.)

Defendants move to dismiss Plaintiff's claims. They contend that Plaintiff's claims against UT MD Anderson and the individual defendants in their official capacities are barred by the Eleventh Amendment. Additionally, they assert that Plaintiff's claim for injunctive relief against UT MD Anderson is barred as a matter of law, and that Plaintiff has failed to state a claim for injunctive relief against Defendants Lozano and Phillips.

II. LEGAL STANDARD

A court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,’ but must provide the plaintiff's grounds for entitlement to relief—including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.’ ” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). That is, a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). A claim has facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The plausibility standard is not akin to a “probability requirement,” but asks for more than a sheer possibility that a defendant has acted unlawfully. Id. A pleading need not contain detailed factual allegations, but must set forth more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted).

Ultimately, the question for the court to decide is whether the complaint states a valid claim when viewed in the light most favorable to the plaintiff. The court must accept well-pleaded facts as true, but legal conclusions are not entitled to the same assumption of truth. Iqbal, 129 S.Ct. at 1950 (citation omitted). The court should not “ ‘strain to find inferences favorable to the plaintiffs' ” or “accept ‘conclusory allegations, unwarranted deductions, or legal conclusions.’ ” R2 Investments LDC v. Phillips, 401 F.3d 638, 642 (5th Cir.2005) (quoting Southland Sec. Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 362 (5th Cir.2004)). A district court can consider the contents of the pleadings, including attachments thereto, as well as documents attached to the motion, if they are referenced in the plaintiff's complaint and are central to the claims. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir.2000). Importantly, the court should not evaluate the merits of the allegation, but must satisfy itself only that plaintiff has adequately pled a legally cognizable claim. United States ex rel. Riley v. St. Luke's Episcopal Hosp., 355 F.3d 370, 376 (5th Cir.2004). “Motions to dismiss under Rule 12(b)(6) are viewed with disfavor and are rarely granted.” Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir.2009) (citation omitted); Duke Energy Intern., L.L.C. v. Napoli, 748 F.Supp.2d 656 (S.D.Tex.2010).

[854 F.Supp.2d 435]

Additionally, “when a plaintiff sues a public official under [Section] 1983, the district court must insist on heightened pleading by the plaintiff.” Morin v. Caire, 77 F.3d 116, 121 (5th Cir.1996) (citing Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.1995)). In such cases, “a plaintiff cannot be allowed to rest on general characterizations, but must speak to the factual particulars of the alleged actions, at least when those facts are known to the plaintiff and are not peculiarly within the knowledge of defendants.” Schultea, 47 F.3d at 1432. “Heightened pleading requires allegations of fact focusing specifically on the conduct of the individual who caused the plaintiff's injury.” Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir.1999).

III. ANALYSISA. Individual Liability of Defendants Phillips and Lozano

Section 1983 provides injured plaintiffs with a cause of action when they have been deprived of federal rights under color of state law. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir.1998). The statute reads:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation...