Tex. Tech Univ. Health Scis. Ctr.-El Paso v. Bustillos

• Decision Date: 13 June 2018
• Docket Number: No. 08-16-00164-CV,08-16-00164-CV
• Parties: TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER-EL PASO, Appellant, v. Gloria BUSTILLOS, Appellee.
• Court: Texas Court of Appeals

556 S.W.3d 394

TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER-EL PASO, Appellant,

v.Gloria BUSTILLOS, Appellee.

No. 08-16-00164-CV

Court of Appeals of Texas, El Paso.

June 13, 2018

ATTORNEYS FOR APPELLEE: Hon. Hadley A. Huchton, Hon. Walter L. Boyaki, Boyaki Law Firm, 4621 Pershing Drive, El Paso, TX 79903.

ATTORNEY FOR APPELLANT: Hon. Philip Lionberger, Office of the Attorney General, P.O. Box 12548, Capitol Station MC-059, Austin, TX 78711-2548.

Before McClure, C.J., Rodriguez, J., and Larsen, J. (Senior Judge), Larsen, J. (Senior Judge), sitting by assignment

OPINION

ANN CRAWFORD McCLURE, Chief Justice

This is an interlocutory appeal from the denial of a plea to the jurisdiction. Gloria Bustillos sued Texas Tech University Health Science Center-El Paso (TTUHSC) alleging that its physicians subjected her to a series of x-rays and invasive pelvic and anal examinations to assist U.S. Customs and Border Protection agents in determining whether Bustillos was smuggling illegal drugs from Mexico. No drugs were found. Bustillos sued for medical negligence, for "Assault/Battery Based on Negligence," and for violating her civil rights under 42 U.S.C. § 1983. TTUHSC filed a plea to the jurisdiction arguing that Bustillos failed to adequately plead a waiver of its sovereign immunity. We must decide whether TTUHSC’s Eleventh Amendment sovereign immunity has been waived allowing Bustillos to bring a § 1983 action in state court. We must also determine whether Bustillos adequately pled facts demonstrating that TTUHSC’s sovereign immunity was waived under the Texas Tort Claims Act (the Act), and if not, whether Bustillos should be afforded an opportunity to replead. We reverse the trial court’s denial of the plea to the jurisdiction and dismiss all of Bustillos' claims for lack of jurisdiction.

FACTUAL SUMMARY

Bustillos alleged she was returning to El Paso after visiting a friend in Juarez, Mexico, when agents detained her at the border because they suspected she was carrying illegal drugs. They conducted a pat down search but found no drugs and conducted a canine search, but the dog failed to alert to the presence of drugs. The agents then had Bustillos pull down her pants and underwear and conducted a non-invasive visual search of her vaginal and anal areas, but again found no drugs. They handcuffed and transported her to University Medical Center of El Paso¹ where two TTUHSC physicians, Dr. Parsa and Dr. Solomin,² ordered a series of x-rays to search her body, subjecting and exposing her to unnecessary radiation. The x-rays did not reveal the presence of drugs. The physicians then conducted an invasive pelvic and rectal exam, both of which failed to reveal any drugs. The doctors eventually released Bustillos to the agents who transported her back to the border and released her. She alleged that the searches humiliated and traumatized her physically and emotionally and that she incurred medical expenses for the unnecessary rectal and pelvic exams

.³

In her second amended petition, Bustillos alleged a "Claim for Medical Negligence under Texas Tort Claims Act" in which she complained the physicians had negligently injured her when they "used and/or misused x-ray equipment, medical probes (including speculum), and other devices to examine Plaintiff’s vagina and rectum." She asserted that TTUHSC had waived its sovereign immunity for her personal injuries caused by the use or misuse of tangible personal property under the Act. She also pled a Claim for Assault/Battery Based on Negligence, alleging that "TTUHSC’s negligence in failing to supervise its physician employees allowed those physicians to commit intentional torts of assault and battery on Plaintiff."

Bustillos also brought a claim under 42 U.S.C. § 1983 against TTUHSC for its physician employees' violation of her civil rights to be free from unreasonable search and seizure, alleging that the physicians knowingly violated the U.S. Constitution and law by proceeding to search her vagina and rectum after x-rays and visual examination showed no foreign body present and did so pursuant to an unconstitutional custom, policy and practice of performing unwarranted body cavity searches of detained individuals.⁴

TTUHSC filed a plea to the jurisdiction asking the trial court to dismiss all of Bustillos' claims for lack of jurisdiction because she had not, and could not, adequately plead that sovereign immunity had been waived. In particular, it argued that her pleadings did not demonstrate that she suffered an injury due to its employees' negligent use of tangible personal property and that her allegations of assault and battery demonstrated she was seeking to hold it liable for the intentional torts of its physicians. It also claimed and that the Act did not waive immunity for intentional acts or for any failure to supervise its employees. Finally, it contended that Bustillos could not maintain her § 1983 cause of action in state court because TTUHSC’s sovereign immunity under the Eleventh Amendment had not been waived.

Bustillos responded that she had adequately pled a waiver of sovereign immunity arising from the negligent use of tangible personal property. She argued that her assault/battery claim based on negligence was a failure-to-supervise claim of negligently implemented policy, which does waive sovereign immunity. Bustillos also claimed that she was not required to show a waiver of immunity under the Act to maintain her § 1983 claim and that while the federal court is not available for § 1983 claims against a state entity, "such claims may be brought in state courts." After hearing, the trial court denied the plea to the jurisdiction without specifying the reasons why.

STANDARD OF REVIEW

Immunity from suit implicates a court’s subject matter jurisdiction. Sampson v. Univ. of Texas at Austin , 500 S.W.3d 380, 384 (Tex. 2016) ; Rusk State Hosp. v. Black , 392 S.W.3d 88, 91 (Tex. 2012). "Whether a court has subject matter jurisdiction is a question of law, properly asserted in a plea to the jurisdiction." Sampson , 500 S.W.3d at 384 ; Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 225-26 (Tex. 2004) ; Tex. Dep't of Aging & Disability Servs. v. Loya , 491 S.W.3d 920, 923 (Tex.App.—El Paso 2016, no pet.). In a plea to the jurisdiction, a defendant may challenge either the adequacy of the plaintiff’s pleadings or the existence of jurisdictional facts on the ground that they do not support a finding of subject matter jurisdiction. Miranda, 133 S.W.3d at 226 ; City of El Paso v. Collins, 483 S.W.3d 742, 748-49 (Tex.App.—El Paso 2016, no pet.).

The plaintiff has the burden to plead facts that affirmatively demonstrate the trial court’s jurisdiction. Miranda, 133 S.W.3d at 228 ; Tex. Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) ; City of El Paso v. Waterblasting Techs., Inc. , 491 S.W.3d 890, 894 (Tex.App.—El Paso 2016, no pet.). The question whether the plaintiff has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction is a question of law that an appellate court reviews de novo. Miranda, 133 S.W.3d at 226 ; Collins, 483 S.W.3d at 748-49.

In determining whether a plaintiff has carried her burden to allege facts sufficient to establish subject matter jurisdiction, we review the allegations in the pleadings—accepting them as true and construing them in the plaintiff’s favor—and any evidence relevant to the inquiry. Miranda, 133 S.W.3d at 226-27 ; Loya , 491 S.W.3d at 923. If the pleadings do not allege facts sufficient to affirmatively demonstrate jurisdiction, but the pleading defects are curable by amendment, the issue is one of pleading sufficiency, and the plaintiff should be afforded an opportunity to amend. Miranda, 133 S.W.3d at 226-27 ; Waterblasting Techs., Inc. , 491 S.W.3d at 894. However, if the pleadings affirmatively negate jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Miranda, 133 S.W.3d at 227 ; Waterblasting Techs., Inc. , 491 S.W.3d at 894.

CAN BUSTILLOS MAINTAIN AN § 1983 ACTION IN STATE COURT?

We first address whether the trial court had jurisdiction over the § 1983 cause of action. TTUHSC contends the trial court erred in refusing to dismiss it because sovereign immunity under the Eleventh Amendment has not been waived.⁵ Bustillos concedes that TTUHSC is an arm of the state and that sovereign immunity protects it from a § 1983 suit in federal court.⁶ See Will v. Michigan Dep't of State Police , 491 U.S. 58, 66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989) ( Section 1983"does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties," and this rule applies to governmental entities considered "arms of the State"). But she claims that she can maintain her § 1983 action in state court. We disagree.

The United States Supreme Court has clearly articulated that the Eleventh Amendment bars suits against a state under § 1983 unless Congress has exercised its power under the Fourteenth Amendment to override a state’s sovereign immunity or unless the state itself has waived its immunity. Will , 491 U.S. 58, 66, 109 S.Ct. at 2309-10 ; Kentucky v. Graham , 473 U.S. 159, 169, 105 S.Ct. 3099, 3107, 87 L.Ed.2d 114 (1985) ; Tex. Dep't of Aging & Disability Servs. v. Cannon , 383 S.W.3d 571, 575 (Tex. App.—Houston [14th Dist.] 2012), aff'd , 453 S.W.3d 411 (Tex. 2015). Congress did not abrogate the states' sovereign immunity in enacting § 1983. Quern v. Jordan , 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358 (1979) ; see also Graham , 473 U.S. at 169 n.17, 105 S.Ct. at 3107. And the Texas Legislature has not waived the State’s sovereign immunity for § 1983 claims. See Tex. A & M Univ. Sys. v. Koseoglu , 233 S.W.3d 835, 839 (Tex. 2007) ("It is up to the Legislature to institute such a waiver, and to date it has not seen fit to do so."); Cannon , 383 S.W.3d at 575 ; In re...