Simmang v. Texas Bd. of Law Examiners

Decision Date15 September 2004
Docket NumberNo. 03-CV-650.,03-CV-650.
Citation346 F.Supp.2d 874
PartiesJames C. SIMMANG Plaintiff, v. The TEXAS BOARD OF LAW EXAMINERS Comprising Robert E. Valdez, Jack V. Strickland, U. Lawrence Boze, T. Albert Witcher, Don Pozza, Jerry Nugent, Cynthia S. Olsen, Jorge C. Rangel and Jerry Grissom, in Their Official Capacities, Defendants.
CourtU.S. District Court — Western District of Texas

Thomas E. Reddin, Stacy R. Obenhaus, Gardere Wynne Sewell, LLP, Dallas, TX, for Plaintiff.

James C. Simmang, Dallas, TX, pro se.

Richard E. Salisbury, General Litigation Division Asst. Attorney General, Austin, TX, for Defendants.

ORDER

YEAKEL, District Judge.

Before the Court are the following: Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) and Defendants' supplement to the motion, which are primarily based on sovereign immunity grounds (Clerk's Document Nos. 1 and 3); Magistrate Judge Andrew Austin's Report and Recommendation regarding the motion and the supplement (Clerk's Document No. 25); Defendants' Objections To Magistrate's Report and Recommendation (Clerk's Document No. 26); and Plaintiff James Simmang's response to Defendants' objections (Clerk's Document No. 27).

This Court referred all pending and future discovery motions, as well as all other non-dispositive motions, and all pending and future dispositive motions in this action to Magistrate Judge Austin pursuant to Title 28 United States Code section 636(b) and Rule 1 of Appendix C of the Local Rules of the United States District Court for the Western District of Texas (Clerk's Document No. 11). On August 5, 2004, Magistrate Judge Austin filed his report and recommendation holding that Defendants' motion to dismiss should be granted in part regarding Simmang's claims against the Texas Board of Law Examiners ("TBLE") under Title II and Title III of the Americans with Disabilities Act of 1990 ("ADA")1 and all of Simmang's claims against all Defendants pursuant to section 121.010 of the Texas Human Resources Code2 for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1)(Clerk's Document No. 25). Finally, the report and recommendation suggests that discovery be reopened on all remaining claims. Defendants filed objections to the Magistrate Judge's report and recommendation and Simmang filed a response.

After considering Magistrate Judge Austin's report and recommendation, Defendants' objections, Simmang's response, the applicable law, and the file, this Court is of the opinion that Magistrate Judge Austin's holding is not clearly erroneous nor is it contrary to law and concludes that Defendants' objections should be overruled. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); Castillo v. Frank, 70 F.3d 382, 385-86 (5th Cir.1995).

IT IS ORDERED that the Report and Recommendation of the United States Magistrate Judge filed in this cause (Clerk's Document. No. 25) is hereby APPROVED and ACCEPTED by the Court.

IT IS FURTHER ORDERED that Defendants' motion to dismiss and Defendants' supplement to the motion to dismiss this action on the grounds of Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) (Clerk's Document Nos.1 and 3) are GRANTED IN PART AND DENIED IN PART.

IT IS FURTHER ORDERED that Plaintiff's claims against the TBLE under Title II and Title III of the ADA are DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that Plaintiff Simmang's claims against all Defendants pursuant to section 121.010 of the Texas Human Resources Code are DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that discovery is reopened on the remaining claims in this cause of action and the parties shall have ninety days from the date of this order to complete discovery.

FINALLY IT IS ORDERED that all other relief requested in Defendants' Motion To Dismiss and Defendants' Supplement to Defendants' Motion Dismiss (Clerk's Document Nos. 1 and 3) are DENIED.

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

ANDREW W. AUSTIN, United States Magistrate Judge.

Before the Court are Defendants' Motion to Dismiss (Clerk's Doc. No. 1); Defendants' Supplement to Defendants' Motion to Dismiss (Clerk's Doc. No. 1); Plaintiff's Response to Motion to Dismiss (Clerk's Doc. No. 1); Defendants' Supplement to Defendants' Motion to Dismiss (Clerk's Doc. No. 3); and, Plaintiff's Response to Defendants' Supplement to Defendants' Motion to Dismiss (Clerk's Doc. No. 5).1 A hearing on the motion was held on June 24, 2004.

The District Court referred the dispositive motion to the undersigned Magistrate Judge for a Report and Recommendation as to the merits pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. After reviewing the parties' briefs, relevant case law, as well as the entire case file, the undersigned issues the following Report and Recommendation to the District Court.

I. BACKGROUND

On April 10, 2003, Plaintiff James C. Simmang ("Plaintiff") filed this declaratory action in the Dallas district court against the Texas Board of Law Examiners ("TBLE") and its individual members, Robert E. Valdez, Jack V. Strickland, U. Lawrence Boze, T. Albert Witcher, Dan Pozza, Jerry Nugent, Cynthia S. Olsen, Jorge Rangel, and Jerry Grissom, in their official capacities (hereinafter "the individual Defendants"). On September 15, 2003, the Dallas district court transferred the case to this district pursuant to 28 U.S.C. § 1404(a).

Plaintiff, a 1996 law school graduate with a learning disability, seeks admission to the Texas bar. Beginning in 1995, prior to his graduation from law school, Plaintiff contacted TBLE, which administers the Texas bar exam, and inquired about special accommodations for his disability. (Plaintiff's Compl. ¶¶ 12-13). Since that time, Plaintiff, on numerous occasions, has requested double time to complete the bar exam as an accommodation for his learning disability. (Id. ¶¶ 20-37). These requests have been denied. (Id.) TBLE instead granted Plaintiff time and a half for the bar exam. (Id. ¶ 55).

Between 1999 and 2002, Plaintiff took the exam three times within the allotted time and half period, but without success. (Id. ¶ 56). While Plaintiff did not attain a passing score on all scaled sections of the exam in the same exam, he attained a passing score on all scaled sections in different exams. (Id. ¶ 57). Based on these scores, Plaintiff, in January 2003, requested a further accommodation for his disability — that TBLE certify that Plaintiff passed the Texas bar exam based on his separate passing scores in the three sections of the exam. (Id. ¶¶ 60-62). This request was also denied. (Id. ¶ 65).

Plaintiff alleges that Defendants' conduct in discouraging him from applying to sit for the bar exam and in denying him double time for the test and other accommodations is in violation of Title II and Title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq.; § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a); and, § 121.010 of the Texas Human Resources Code. Plaintiff seeks declaratory and equitable relief.

Defendants seek dismissal, under both Rule 12(b)(1) and Rule 12(b)(6), primarily on sovereign immunity grounds.

II. ANALYSIS
A. Rule 12(b)(1) Standard of Review

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may challenge the subject matter jurisdiction of the district court. See FED. R. CIV. P. 12(b)(1); Rodriguez v. Texas Comm'n on the Arts, 992 F.Supp. 876, 878 (N.D.Tex.1998), aff'd, 199 F.3d 279 (5th Cir.2000). Where a defendant attacks jurisdiction based solely on the allegations of the complaint, as here, the plaintiff's factual allegations are presumed to be true. See O'Rourke v. United States, 298 F.Supp.2d 531, 534 (E.D.Tex.2004); Rodriguez, 992 F.Supp. at 878. Dismissal for lack of subject matter jurisdiction is appropriate when the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. See Warnock v. Pecos County, Tex., 88 F.3d 341, 343 (5th Cir.1996); O'Rourke, 298 F.Supp.2d at 534. Where a state's sovereign immunity deprives the court of jurisdiction, the claims barred by sovereign immunity must be dismissed only under Rule 12(b)(1) and not with prejudice. Warnock, 88 F.3d at 343.2 When a Rule 12(b)(1) motion is filed with a Rule 12(b)(6) motion, the court should consider the jurisdictional attack before addressing the attack on the merits. Rodriguez, 992 F.Supp. at 879.

B. Eleventh Amendment Immunity

Defendants argue that they, as a state agency and officials thereof, enjoy Eleventh Amendment immunity and are thus shielded from all of Plaintiff's claims. Defendants further contend that the Ex parte Young exception to the state's Eleventh Amendment immunity does not apply.3

1. TBLE

The Eleventh Amendment renders the States immune from any suit in law or equity brought by a State's own citizen without their consent. Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 1985, 158 L.Ed.2d 820 (2004). Thus, the Eleventh Amendment bars suit in federal court against a state or state entity, as opposed to a state official, regardless of whether money damages or injunctive relief is sought. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100-102, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Briggs v. Mississippi, 331 F.3d 499, 503 (5th Cir.2003), cert. denied, 540 U.S. 1108, 124 S.Ct. 1070, 157 L.Ed.2d 894 (2004).

The state's Eleventh Amendment immunity extends to any state agency or entity deemed an "alter ego" or "arm" of the state. See Perez v. Region 20 Educ. Serv. Center, 307 F.3d 318, 326 (5th Cir.2002). It is undisputed here that TBLE is an "arm" of the State of Texas. TBLE is entrusted with...

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