Gilani v. University of Texas Southwestern Medical Center

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

AL GILANI, §

§

Plaintiff, §

§

v. §

§ Civil Action No. 3:21-CV-01461-X

UNIVERSITY OF TEXAS §

SOUTHWESTERN MEDICAL §

CENTER; ANGELA MIHALIC; §

BLAKE BARKER; W P ANDREW §

LEE, MD; and DWAIN THIELE, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Before the Court is the defendants’ motion for judgment on the pleadings on

Plaintiff Al Gilani’s claims [Doc. No. 6]. For the reasons explained below, the Court

GRANTS IN PART the defendants’ motion for judgment on the pleadings. Gilani

has twenty-eight days to file an amended complaint that is limited to curing the

defects this Order identifies.

I. Factual Background

The University of Texas Southwestern Medical School (UT Southwestern)

expelled Gilani in March 2019. Gilani filed this suit alleging that he was unlawfully

expelled. Gilani sued UT Southwestern and four members of UT Southwestern’s

academic administration. 1

1 The individual defendants are Angela Mihalic, M.D., Dean of Medical Students and Associate

Student Affairs; Blake Barker, M.D., Associate Dean of Student Affairs; W.P. Andrew Lee, Executive

Gilani filed his petition in state court on March 25, 2021, exactly two years after

his dismissal from medical school. Gilani alleges three causes of action: (1) intentional

discrimination under Title VI of the Civil Rights Act of 1964; (2) Fourteenth

Amendment procedural due process violations brought through 42 U.S.C § 1983; and

(3) defamation. The defendants removed the case to this Court in June 2021 and

subsequently filed a motion for judgment on the pleadings.

II. Legal Standards

“After the pleadings are closed—but early enough not to delay trial—a party

may move for judgment on the pleadings.”2 In considering a Rule 12(c) motion for

judgment on the pleadings, Courts use the same standard as for a Rule 12(b)(6)

motion to dismiss for failure to state a claim.3 So, to survive a Rule 12(c) motion, “a

complaint must contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.”4 “A motion brought pursuant to [Rule] 12(c) is

designed to dispose of cases where the material facts are not in dispute and a

judgment on the merits can be rendered by looking to the substance of the pleadings

and any judicially noticed facts.”5

Vice President for Academic Affairs, Provost, and Dean of UT Southwestern; and Dwain Thiele, M.D.,

Vice Provost.

2 FED. R. CIV. P. 12(c).

3 Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008).

4 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up).

5 Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002)

(cleaned up).

III. Analysis

A. Statute of Limitations

The Court addresses first the defendants’ argument that Gilani’s claims are

time barred. The defendants contend that Gilani’s section 1983 and Title VI claims

are time barred because he did not exercise diligence in serving the defendants, and

that his defamation claim is time barred because it was filed outside of the one-year

limitations window.

“Limitations is an affirmative defense.”6 “To obtain a dismissal at the

Rule 12(c) stage based on an affirmative defense, the successful affirmative defense

must appear clearly on the face of the pleadings.”7 Specifically, “[a] statute of

limitations may support dismissal under Rule 12(b)(6) where it is evident from the

plaintiff’s pleadings that the action is barred and the pleadings fail to raise some

basis for tolling or the like.”8

In the Fifth Circuit, section 1983 and Title VI claims are “subject to state

statutes of limitations for personal injury actions.”9 Texas has a two-year statute of

6 Anderson v. Octapharma Plasma, Inc., No. 3:19-CV-2311-D, 2021 WL 1894689, at *7 (N.D.

Tex. May 11, 2021) (Fitzwater, J.) (citing FED. R. CIV. P. 8(c)(1)), clarified on denial of

reconsideration, No. 3:19-CV-2311-D, 2021 WL 4219700 (N.D. Tex. Sept. 16, 2021), appeal filed sub

nom. Jackson v. CSL Plasma, No. 21-11038 (5th Cir. Oct. 15, 2021); see also EPCO Carbon Dioxide

Prods., Inc. v. JP Morgan Chase Bank, NA, 467 F.3d 466, 470 (5th Cir. 2006) (“Although dismissal

under [R]ule 12(b)(6) may be appropriate based on a successful affirmative defense, that defense must

appear on the face of the complaint.”).

7 Anderson, 2021 WL 1894689, at *7 (cleaned up).

8 Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003).

9 Sewell v. Monroe City Sch. Bd., 974 F.3d 577, 583 (5th Cir. 2020); Matter of Hoffman, 955

F.3d 440, 443 (5th Cir. 2020) (“Because [section] 1983 does not prescribe a statute of limitations, courts

must borrow the relevant state’s statute of limitations for personal injury actions.” (cleaned up)).

limitations for personal injury claims.10 So the limitations period for Gilani’s section

1983 and Title VI claims is two years. “Federal law determines when a cause of action

under [section] 1983 accrues.”11 And under federal law, “[a] claim accrues when the

plaintiff knows or has reason to know of the injury giving rise to the claim.”12 The

parties agree that Gilani’s claims accrued on March 25, 2019, the date of his

dismissal.

“Under Texas law, a plaintiff must both file suit and serve process on the

defendant within the limitations period or [his] claim is time-barred.”13 But “[i]f a

[plaintiff] files suit within the limitations period, and then diligently and continually

attempts to serve the defendant but is unable to do so until after the limitations

period expires, the date of service will relate back to the date suit was filed.”14 To

prove diligence, “[a] plaintiff must satisfactorily ‘present evidence regarding the

efforts that were made to serve the defendant, and to explain every lapse in effort or

period of delay.’”15

The parties agree that the section 1983 and Title VI claims were timely filed.

But the defendants argue that Gilani was not diligent in serving process on the

defendants and therefore, his claims are barred. Gilani argues that his diligence is a

10 TEX. CIV. PRAC. & REM. CODE § 16.003(a).

11 Matter of Hoffman, 955 F.3d at 444.

12 Sewell, 974 F.3d at 583.

13 Henderson v. Republic of Tex., 672 F. App’x 383, 384 (5th Cir. 2016) (citing Rigo Mfg. Co. v.

Thomas, 458 S.W.2d 180, 182 (Tex. 1970)).

14 Id. at 385.

15 Id. (quoting Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007)).

factual issue that cannot be resolved at the motion to dismiss stage. But he says that

“[i]f and when the allegation is properly raised, [he] will demonstrate through

admissible evidence that he served the Defendants as soon as he obtained citations

from the state court clerk, that any delay in service resulted from that clerk’s error,

and that [he] diligently sought to correct that error.”16

The defendants correctly note that the Court’s record (including the state-court

docket) shows that Gilani did not request citations from the state court clerk until six

weeks after he filed the suit. But the operative pleading does not demonstrate “on

[its] face” that these claims are time barred.17 Accordingly, the Court cannot resolve

this argument at the Rule 12(c) stage—although it may be properly asserted at the

summary judgment stage. Therefore, the Court denies the motion for judgment on

the pleadings on the ground that Gilani did not diligently serve the defendants with

respect to his section 1983 and Title VI claims.

However, Gilani concedes that his defamation claim is barred by the one-year

statute of limitations and that it can be properly raised and ruled on at the Rule 12(c)

stage. The Court agrees, grants the defendants’ motion, and dismisses Gilani’s

defamation claim.18

16 Id.

17 Anderson, 2021 WL 1894689, at *7.

18 Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 741 (5th Cir. 2019) (“Under Texas law,

defamation claims generally are subject to a one-year statute of limitations.”).

B. Immunity from the Section 1983 Claim

The defendants next move for judgment on the pleadings on the ground that

they have sovereign or qualified immunity from liability. Gilani concedes in his

response that the defendants’ motion should be granted as to the section 1983 claim

against UT Southwestern. So the Court grants the defendants’ motion as to Gilani’s

section 1983 claim against UT Southwestern and turns to his claims against the

individual defendants.

First, as a threshold issue, Gilani contends that the defendants forfeited all

immunity defenses because they filed an answer and affirmative defenses in state

court before removing the case to federal court. Under Fifth Circuit precedent, the

defendants’ removal to federal court forfeited their sovereign immunity from suit, but

(possibly, as explained more below) not sovereign immunity from liability.19 The

defendants properly pled their qualified-immunity and sovereign-immunity-from-

liability defenses, so the Court will consider them here.20

Second, the defendants argue that it is unclear whether Gilani’s section 1983

claim is against them in their official or individual capacities (which is why they

assert both sovereign and qualified immunity). The Court sees no ambiguity in

Gilani’s complaint: he clearly sued the individual defendants in their official

19 Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 255 (5th Cir. 2005) (“[W]hen Texas removed

this case to federal court it voluntarily invoked the jurisdiction of the federal courts and waived its

immunity from suit in federal court. Whether Texas has retained a separate immunity from liability

is an issue that must be decided according to that state’s law.” (citation omitted)).

20 Cephus v. Tex. Health & Hum. Servs. Comm’n, 146 F. Supp. 3d 818, 827 (S.D. Tex. 2015)

(citing Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006)).

capacities only.21 However, in response to the defendants’ motion, Gilani seeks leave

to amend his complaint to sue the individual defendants in their individual

capacities.22 The Court grants Gilani leave to amend his complaint to sue the

individual defendants in their individual capacities, in addition to their official

capacities.23 And if he does so, the defendants may reassert their qualified immunity

defense.

Third, as for the defendants’ immunity in their official capacities, it is unclear

what relief is requested from the individual defendants. Gilani requests injunctive

relief from and a declaration against “the City,” and generally requests $8 million in

damages without specifying the cause of action or the defendant he seeks this remedy

from. His proposed amended complaint partially addresses this issue by clarifying

the specific injunctive relief he seeks against the individual defendants. So, the Court

again grants Gilani leave to amend his complaint to clarify the relief he is seeking

against each defendant and in what capacity.24 Accordingly, the Court will not

address the defendants’ sovereign immunity from liability defense at this time.

21 See Doc. No. 2-3 at 7.

22 Doc. No. 10-2 at 13.

23 Great Plains Tr. Co., 313 F.3d at 329 (“In view of the consequences of dismissal on the

complaint alone, and the pull to decide cases on the merits rather than on the sufficiency of pleadings,

district courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before

dismissing a case . . . .”).

24 The Court appreciates Gilani filing his proposed amended complaint. But because this Order

addresses more changes than the proposed amended complaint makes, the Court will allow Gilani to

make the changes this Order requires within twenty-eight days—rather than docketing the proposed

amended pleading as the live pleading.

While the defendants concede that they forfeited sovereign immunity from suit

by removing the case to this Court, they assert that they maintain sovereign

immunity from liability. And there are plenty of cases supporting a state official’s

sovereign immunity from suit when sued in her official capacity.25 It’s also clear that

under Texas law, “sovereign immunity encompasses both immunity from suit and

immunity from liability.”26 “[W]aiver of one form of immunity does not necessarily

operate as a waiver of the other.’”27 “[I]mmunity from liability is waived if either the

Legislature waived this immunity by clear and unambiguous language, or if the

defendant failed to assert sovereign immunity as an affirmative defense.”28 But the

defendants haven’t connected the dots between the cases supporting immunity from

suit and their argument that they are immune from liability as to the section 1983

claim.

25 See Daniel v. Univ. of Tex. Sw. Med. Ctr., 960 F.3d 253, 259 (5th Cir. 2020) (“In employing

the Clark factors, we conclude that [UT Southwestern Medical Center] is entitled to arm-of-the-state

status . . . .”); Planned Parenthood Gulf Coast, Inc. v. Phillips, 24 F.4th 442, 450 (5th Cir. 2022) (“[T]he

Eleventh Amendment generally deprives federal courts of jurisdiction to hear suits by

individuals . . . against state officials in their official capacities.” (cleaned up)); id. at 451 (noting the

Ex parte Young exception, which “grants a federal court jurisdiction over a lawsuit against a state

official in his official capacity if the suit seeks prospective relief to redress an ongoing violation of

federal law.” (cleaned up)).

26 Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 121 (Tex. 2015). The Fifth Circuit

explained that a state has the “prerogative, by its own law, to treat its immunity from liability as

separate from its immunity from suit.” Meyers ex rel. Benzing, 410 F.3d at 255 (“[T]he Constitution

permits and protects a state’s right to relinquish its immunity from suit while retaining its immunity

from liability . . . .”). And this is issue is decided by Texas law. Id. (“Whether Texas has retained a

separate immunity from liability is an issue that must be decided according to [Texas] law.”).

27 Carty v. State Office of Risk Mgmt., 733 F.3d 550, 553 (5th Cir. 2013).

28 Skinner v. Gragg, 650 F. App’x 214, 218 (5th Cir. 2016) (cleaned up).

After Gilani has filed his amended complaint and assuming that he maintains

his suit against the individual defendants in their official capacities, the defendants

will be able to file any appropriate motion addressing these issues.29

C. Failure to State a Title VI Claim

Gilani concedes in his response that the defendants’ motion should be granted

as to the Title VI claim against the individual defendants but contends that his Title

VI claim against UT Southwestern should survive. So, the Court dismisses the Title

VI claim against the individual defendants and now considers whether Gilani has

stated a Title VI claim against UT Southwestern.

To state a claim under Title VI, Gilani must allege (1) intentional

discrimination30 and (2) that UT Southwestern received federal funding.31 First, UT

Southwestern argues and is correct that Gilani’s complaint fails to allege that UT

Southwestern received federal funding.32 Second, UT Southwestern also argues that

Gilani has not alleged sufficient facts to create a reasonable inference that he failed

two courses because the defendants intentionally discriminated against him in a

prohibited way. Gilani does not specifically respond to this argument other than

29 See also Section III.A (noting that a motion for summary judgment would be the earliest

appropriate vehicle for arguing that Gilani was delinquent in serving the defendants).

30 Rollerson v. Brazos River Harbor Navigation Dist. of Brazoria Cnty., 6 F.4th 633, 639 (5th

Cir. 2021) (citing Alexander v. Sandoval, 532 U.S. 275, 280 (2001)).

31 Mayorga Santamaria ex rel. Doe Child. 1-3 v. Dall. Indep. Sch. Dist., No. CIV.A.3:06CV692-

L, 2006 WL 3350194, at *48 (N.D. Tex. Nov. 16, 2006) (Lindsay, J.) (“To state a claim for damages

under Title VI, a plaintiff must allege that (1) the entity involved is engaging in racial discrimination;

and (2) the entity involved is receiving federal financial assistance.”).

32 Gilani does so in its response to the defendants’ motion for judgment on the pleadings.

stating that the defendants’ “denials create fact issues, rather than demonstrating

implausibility.”

“Title VI does not protect individuals from unfair decisions, but only decisions

that are made with discriminatory intent.”33 Accordingly, to adequately plead a Title

VI claim, a complaint must contain “specific allegations of acts that were taken with

discriminatory intent.”34 “Discriminatory intent may be proven (among other ways)

by departures from procedural norms, a history of discrimination against others

similarly situated, or by circumstantial evidence, such as a pattern of conduct

inexplicable on grounds other than race.”35 Gilani’s complaint alleges that (1) he was

“treated the way he was due to his ethnicity”; (2) other “students (of different races),

whose foreign trips were demonstrably less productive than and involved

substantially more travel than Mr. Gilani’s, suffered no ramifications of any kind and

have since graduated”; and (3) other “students (of different races), who failed more

central courses without the need for administrative giggery pokery to produce such

results, were not expelled and have since graduated.”

But Gilani pleads no facts to support these conclusory allegations and fails to

point to specific acts that were taken with prohibited discriminatory intent.36 At this

33 Muthukumar v. Univ. of Tex. at Dall., No. 3:10-CV-0115-B, 2010 WL 5287530, at *4 (N.D.

Tex. Dec. 27, 2010) (Boyle, J.) (cleaned up).

34 Mohamed for A.M. v. Irving Indep. Sch. Dist., 252 F. Supp. 3d 602, 627 (N.D. Tex. 2017)

(Lindsay, J.) (cleaned up).

35 DuVall v. Att’y Gen. of Tex., No. A-07-CA-1017-SS, 2008 WL 11453691, at *3 (W.D. Tex. Apr.

15, 2008), aff’d sub nom. DuVall v. Att’y Gen. Office of Tex., 325 F. App’x 329 (5th Cir. 2009).

36 Id. at *3 (finding that plaintiff failed to state a claim under Title VI because the complaint

was “devoid of any specific factual allegation”); Muthukumar, 2010 WL 5287530, at *5 (dismissing

stage, the Court does not accept as true “conclusory allegations, unwarranted factual

inferences, or legal conclusions.”?7 However, the Court finds that Gilani may be able

to cure these deficiencies in his amended complaint, and the Court allows him to do

sO.

IV. Conclusion

The Court GRANTS IN PART the defendants’ motion for judgment on the

pleadings and DISMISSES WITHOUT PREJUDICE Gilani’s claims. The Court

grants Gilani leave to amend his complaint to correct the specific deficiencies

identified by this order. He may clarify that his section 1983 claim is against the

individual defendants also in their individual capacities, and he may correct the

deficiencies the Court identified with respect to his Title VI claim.?8 Gilani has

twenty-eight days to file an amended complaint.

IT ISSO ORDERED this 25th day of March, 2022.

BRANTLEY S#ARR

UNITED SPATES DISTRICT JUDGE

plaintiffs claim because its complaint failed to “provide specific allegations of acts that were taken

with discriminatory intent”).

37 Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007) (cleaned up).

38 Of course, Gilani may not include in the amended complaint the defamation claim, the

section 1983 claim against UT Southwestern, or the Title VI claim against the individual defendants.

The Court can dismiss any portions of the amended complaint that were not permitted by this order.

11