Ross v. Texas

• Decision Date: 29 November 2011
• Docket Number: CIVIL ACTION H-10-2008
• Parties: HAYWOOD ROSS, Plaintiff, v. STATE OF TEXAS, TEXAS ATTORNEY GENERAL, WHARTON COUNTY, WHARTON COUNTY JUNIOR COLLEGE, JACK MOSES, CITY OF WHARTON, INTERNATIONAL BANK OF COMMERCE, AND ROBERTA PADRON, Defendants.
• Court: U.S. District Court — Southern District of Texas

HAYWOOD ROSS, Plaintiff,

v. STATE OF TEXAS, TEXAS ATTORNEYGENERAL, WHARTON COUNTY, WHARTONCOUNTY JUNIOR COLLEGE, JACKMOSES, CITY OF WHARTON,INTERNATIONAL BANK OF COMMERCE,AND ROBERTA PADRON, Defendants.

CIVIL ACTION H-10-2008

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Dated: November 29, 2011

OPINION AND ORDER OF DISMISSAL

In the above referenced cause, brought by pro se Plaintiff Haywood Mack Ross proceeding in forma pauperis, is a largely unintelligible pleading. It recites portions of numerous civil rights and banking laws and cases¹ and appears to assert conclusorily, without any supporting facts, (1) a violation of due process claim pursuant to 43 U.S.C. § 1983 arising out of his deceased brothers' right to bodily integrity because the cause-of-death designations on their death certificates are incorrect; (2) racially discriminatory hiring by "BISD" of teachers who engage insexual abuse; (3) violations of the Americans with Disabilities Act, the Age Discrimination in Employment Act, and Title VII by Wharton County, Wharton County Junior College, and International Bank of Commerce; and (4) general references to banking laws and problematic electronic transfers.²

Pending before the Court are the following motions:

1. Defendant Jack Moses' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)(instrument #31);

2. Defendant Wharton County's motion to dismiss under Federal Rules of Civil Procedure 12(b)(1)and 12(b)(6) and, alternatively, motion for more definite statement under Rule 12(e)(#35);

3. Defendant International Bank of Commerce's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and, alternatively, motion to compel arbitration and stay proceedings (#37);

4. Defendant Wharton County Jr. College's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, motion for more definite statement under Federal Rule of Civil Procedure 12(e)(#39);5. Defendant The City of Wharton's motion to dismiss under Rule 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B) and alternative motion for more definite statement (#40), and Supplement (#47);

6. Plaintiff's motion to deny dismissal and amendment of pleadings (#41);

7. Plaintiff's motion to add factual allegations against above Defendant [Jack Moses] (#42);

8. Plaintiff's motion to deny dismissal and deny more definite statement (#44);

9. Plaintiff's motion to deny motions to dismiss and alternative motion for more definite statement (#49);

10. Plaintiff's motion to deny Defendant Wharton County's motion to dismiss and alternative motion for more definite statement (#51);

11. Plaintiff's motion for summary judgment (#54); and

12. Plaintiff's motion to deny Defendants Jack Moses' and Wharton County Junior College's motions for dismissal (#60).

Plaintiff's "complaint," instrument #1 styled "Pleadings," is difficult to comprehend. Amid a jumbled recitation of a variety of laws, it alleges that Haywood Mack Ross's brothers, Ronald Wayne Ross and Marshall Dwight Ross, were shot to death in Wharton County, but their death certificates indicate the deaths were dueto homicide and suicide, respectively. The complaint demands exhumation of their bodies to determine "the truth of his death and lay to rest speculation that White Folk killed him!" #1 at 3. In the Prayer section of his complaint (#1 at 23-24) Plaintiff appears to complain that the State of Texas's death penalty execution is "literally 'open season' on Negroes' because there is no linearity, no investigation, no justice for dead/murdered African-Americans"; that his driver's license was suspended because he did not have it with him when he was stopped and arrested, and apparently subsequently convicted, for Driving While Intoxicated ("DWI"); that Wharton County Junior College denied his application for student aid and denied his application to enter its school of radiology "since the majority of radiology students are White Females and probably never had a good sized, black, heterosexual and male African American student accepted"; that the College disbanded its football and basketball programs years ago, a "diminution of African-American student athletes who usually wield power in football and basketball"; a charge of employment discrimination under Title VII without any facts; and some problem with overdraft fees relating to his account at International Bank of Commerce ("IBC") about which Roberta Padron³ lied to Plaintiff. Plaintiff did attach to his pleading, among numerous other documents, twocopies of a charge filed with the Texas Workforce Commission Civil Rights Division stating that he was not hired by Wharton County Junior College for the positions of Custodian and Administration Assistant and that he believes he was discriminated against on the basis of his race (Black), sex (Male), Color, and National Origin, age (61) in violation of the Age Discrimination in Employment Act, and his disability⁴ in violation of the Americans with Disabilities Act; and he also checked the box for retaliation in violation of Title VII. #1-2, pages 4 and 5 of 44. He attached another charge of discrimination, this one against IBC, on which he checked boxes for race, color, sex, national origin, retaliation, age, and disability discrimination and stated that IBC failed to hire him but did not give him a reason. #1-2 at pages 8 and 9 of 44. The Court is unable to glean any other claims from the original pleading.

I. Standards of Review

A. Federal Rule of Civil Procedure 12(b)(6)

Federal Rule of Civil Procedure 8(a)(2) provides, "A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." When a district court reviews a motion to dismisspursuant to Fed. R. Civ. P. 12(b)(6), it must construe the complaint in favor of the plaintiff and take all well-pleaded facts as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . ." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007)(citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965, citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)("[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"). "Twombly jettisoned the minimum notice pleading requirement of Conley v. Gibson, 355 U.S. 41 . . . (1957)["a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"], and instead required that a complaint allege enough facts to state a claim that is plausible on its face." St. Germain v.Howard,556 F.3d 261, 263 n.2 (5th Cir. 2009), citing In re Katrina Canal Breaches Litig. , 495 F.3d 191, 205 (5th Cir. 2007)("To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead 'enough facts to state a claim to relief that is plausible on its face.'"), citing Twombly, 127 S. Ct. at 1974). See also Alpert v. Riley, No. H-04-CV-3774, 2008 WL 304742, *14 (S.D. Tex. Jan. 31, 2008). "'A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Montoya v. FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir. 2010), quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1940 (2009). Dismissal is appropriate when the plaintiff fails to allege "'enough facts to state a claim to relief that is plausible on its face'" and therefore fails to "'raise a right to relief above the speculative level.'" Montoya, 614 F.3d at 148, quoting Twombly, 550 U.S. at 555, 570.

In Ashcroft v. Iqbal, 129 S. Ct. at 1940, the Supreme Court, applying the Twombly plausibility standard to a Bivens claim of unconstitutional discrimination and a defense of qualified immunity for government official, observed that two principles inform the Twombly opinion: (1) "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." . . . Rule 8 "does not unlock the doors of discovery for a plaintiff armed with nothing more thanconclusions."; and (2) "only a complaint that states a plausible claim for relief survives a motion to dismiss," a determination involving "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice" under Rule 12(b). Iqbal, 129 S. Ct. at 1949. The plaintiff must plead specific facts, not merely conclusory allegations, to avoid dismissal. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). "Dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief . . . ." Rios v. City of Del Rio, Texas, 444 F.3d 417, 421 (5th Cir. 2006), cert. denied, 549 U.S. 825 (2006).

While the sufficiency of a complaint under Rule 8(a)(2) may be challenged by motion under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, even if the defendant does not file such a motion, the court "has the authority to consider the sufficiency of a complaint on its own initiative." Landavazo v. Toro Co., 301 Fed. Appx. 333, 336 (5th Cir. Dec. 5, 2008)(citing Carroll v....