Opinion
23-CV-00034-DC-RCG
06-27-2023
ANTHONY WADE LIKER, Plaintiff, v. TEXAS BOARD OF LAW EXAMINERS, Defendant.
REPORT AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE
RONALD C. GRIFFIN, UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is Defendant Texas Board of Law Examiners' (“Defendant”) Motion to Dismiss. (Doc. 6). This case is before the undersigned through an Order pursuant to 28 U.S.C. § 636 and Appendix C of the Local Court Rules for the Assignment of Duties to United States Magistrate Judges. After due consideration, the undersigned RECOMMENDS that Defendant's Motion to Dismiss be GRANTED. (Doc. 6).
I. Background
On February 21, 2023, Plaintiff Anthony Wade Liker (“Plaintiff”) filed this action against Defendant, alleging that it violated his “religious rights, his right to Free Speech, the First Amendment, Due Process, and Equal Protection, . . . and [Tex. Gov't Code § 2400.002].” (Doc. 1 at 2). Plaintiff claims Defendant violated the aforementioned rights when it allegedly denied his application for admission to the Texas State Bar based on his religious beliefs. Id. at 1. Plaintiff is an individual licensed to practice law in Nevada. Id. at 2. Defendant, according to the Complaint, is “a judicial agency responsible for determining that applicants seeking to be licensed to practice law in Texas meet the qualifications set by the Supreme Court of Texas.” Id. at 3.
The Court recognizes that “filings of pro se litigants [are to be construed] liberally, as a pro se complaint must be held to less stringent standards than formal pleadings drafted by lawyers.” Cano v. Garcia, No. SA-20-CV-01331-OLG, 2021 WL 2582581, at *4 (W.D. Tex. June 22, 2021) (citing Coleman v. U.S., 912 F.3d 824, 828 (5th Cir. 2019)), appeal docketed, No. 5:20-CV-1331 (5th Cir. Aug. 12, 2021).
On June 3, 2021, Plaintiff applied for admittance to the Texas State Bar. Id. Following a hearing in October 2022, Defendant denied Plaintiff's application. (Doc. 1 at 4). Plaintiff alleges that he “only has one discipline . . . on Nevada State Bar record which is a 2019 Public Reprimand with a $1,500 fine from a non[-]client, religious and political opponent.” Id. at 3. Additionally, Plaintiff initially omitted his rejection for admittance to the North Dakota Bar in 2013. Id. Further, “Plaintiff had omitted prior letters of caution, of dismissal, diversion, and/or warning and a private reprimand with a fine of $500.00 [from his Texas State Bar application], as he, in good faith believed that these matters did not need to be disclosed based upon the advice of his attorney . . . as they were all expunged and not on his Nevada Bar discipline record.” Id. Plaintiff also appears to claim that he omitted information regarding prior lawsuits because they were dealt with over ten years ago. Id. at 4.
It is unclear from the Complaint as to the nature of these lawsuits.
Plaintiff claims that Defendant “denied Plaintiff's application wholly (or at least partly)” because of Plaintiff's identification as a Christian. (Doc. 1 at 8). To support this allegation, Plaintiff states that his counsel warned him, prior to his October 2022 hearing, not to speak about “God and Jesus” in front of Defendant. Id. at 6. Moreover, according to the Complaint, Plaintiff saw a mental health professional as part of a “diversion” which was presumably ordered by the Nevada State Bar in 2013. Id. at 4. This “diversion” was allegedly commented upon by Defendant at the October 2022 hearing. Id. at 7. Plaintiff asserts that such comments constituted “an adverse reference to Plaintiff's strong Christian beliefs and his strong belief in the power of leading people to accepting Jesus as their Lord and Savior.” Id.
Once again, the details surrounding such “diversion” are vague.
On May 26, 2023, Defendant filed the instant Motion to Dismiss. (Doc. 6). Plaintiff filed his Response on June 12, 2023. On June 20, 2023, Defendant filed its Reply. (Doc. 12). Consequently, this matter is ripe for disposition.
Although Plaintiff's Response was filed after his initial deadline of June 9, 2023, in the interest of justice, the Court will consider Plaintiff's filing.
II. Legal Standard
Federal Rules of Civil Procedure 12(b)(1) authorizes dismissal of a complaint for “lack of subject-matter jurisdiction.” Under Rule 12(b)(1), “[l]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)). A lack of a valid cause of action does not necessarily defeat a district court's subject matter jurisdiction; “[dismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is ‘so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.'” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998). Furthermore, when a Rule 12(b)(1) motion is accompanied by the filing of another Rule 12 motion, the former should be considered before addressing attacks on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977).
III. Discussion
Defendant makes three arguments for dismissal: 1) the Court lacks subject matter jurisdiction because Plaintiff's claims are barred by sovereign immunity; 2) the Court should not exercise supplemental jurisdiction over Plaintiff's remaining state law claim; and 3) Plaintiff failed to state a claim upon which relief can be granted. (Doc. 6).
A. Lack of Subject Matter Jurisdiction
Defendant argues that Plaintiff's federal claims are barred by Eleventh Amendment sovereign immunity. (Doc. 6 at 5). Plaintiff disagrees, arguing that Defendant's sovereign immunity was waived when the Texas Legislature enacted Tex. Gov't Code § 2400.002(b). (Doc. 10 at 17).
“Generally, States are immune from suit under the terms of the Eleventh Amendment and the doctrine of sovereign immunity.” Whole Women's Health v. Jackson, 142 S.Ct. 522, 532 (2021). However, there are two exceptions to the general rule. A state or state agency may explicitly and unequivocally waive sovereign immunity through “clear declaration.” Hall v. Tex. Comm'n on Law Enf't, 685 Fed.Appx. 337, 339 (5th Cir. 2017) (per curiam) (quoting Sossamon v. Tex., 563 U.S. 277, 284 (2011)). Additionally, “Congress may abrogate sovereign immunity through a clear expression of the intent to do so if it acts ‘pursuant to a valid exercise of power.'” Id. at 340 (quoting Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 55 (1996)).
However, “the Eleventh Amendment does not bar suits for injunctive or declaratory relief against individual state officials acting in violation of federal law.” City of Austin v. Paxton, 943 F.3d 993, 1004 (5th Cir. 2019) (quoting Raj v. La. State Univ., 714 F.3d 322, 328 (5th Cir. 2013)). Thus, if the two exceptions mentioned above do not apply, the plaintiff “must name individual state officials as defendants in their official capacities.” Raj, 714 F.3d at 328 (citing Ky. v. Graham, 473 U.S. 159, 169 n.18 (1985)).
Here, Defendant is a state agency that enjoys sovereign immunity and Plaintiff has failed to identify any applicable waiver. See Locke v. Tex. Bd. of Law Exam'rs, No. 4:21-CV-027-SDJ, 2022 WL 875022, at *1 (E.D. Tex. Mar. 23, 2022) (citing Tex. Gov't Code § 82.001) (“[Defendant] is a statutorily created agency of the State of Texas composed of nine attorneys appointed by the Texas Supreme Court.”). Texas Government Code § 2400.002 prohibits a government entity from taking “any adverse action against any person based wholly or partly on the person's membership in, affiliation with, or contribution, donation, or other support provided to a religious organization.” As to immunity, § 2400.003 waives sovereign immunity as to liability, not suit, to the extent a plaintiff brings a claim pursuant to § 2400.002. Tex. Gov't Code § 2400.003. The language of the statute does not suggest that Texas waived sovereign immunity as to any and all claims that could possibly be brought under federal or state law. Rather, “[a] person who alleges a violation of Section 2400.002” is entitled to sue a government entity in accordance with that specified cause of action. Tex. Gov't Code § 2400.004. Such a waiver does not apply to Plaintiff's federal claims and the Court has not been presented with anything to suggest congressional abrogation.
Lastly, Plaintiff failed to name any individual officials as defendants. Therefore, this Court lacks subject matter jurisdiction over such matters and declines to exercise supplemental jurisdiction over Plaintiff's remaining state law claim. See Locke v. Tex. Bd. of Law Exam'rs, No. 4:21-CV-00027-SDJ-CAN, 2022 WL 879563 (E.D. Tex. Jan. 21, 2022), report and recommendation adopted in part, 2022 WL 875022 (E.D. Tex. Mar. 23, 2022); 28 U.S.C. § 1367; see also Garza v. Tex. Dep't of Aging and Disability Servs., No. A-17-CA-686-SS, 2017 WL 4681799 (W.D. Tex. Oct. 17, 2017). As such, the undersigned RECOMMENDS that Defendant's Motion to Dismiss be GRANTED. (Doc. 6).
Because the undersigned finds the grounds to grant dismissal pursuant to Rule 12(b)(1) sufficient, it will not proceed through an analysis of Defendant's Rule 12(b)(6) argument.
B. Leave to Amend
In his Response, Plaintiff requests that he be granted leave to amend his Complaint should the Court recommend dismissal. (Doc. 10 at 11). Federal Rule of Civil Procedure 15(a)(2) provides “[t]he court should freely give leave when justice so requires.” Although “leave to amend is by no means automatic,” a court should “possess a ‘substantial reason' to deny leave to file an amended complaint.” Lawton v. Osado Water Transfer Co., LLC, No. MO:15-CV-00189-RAJ-DC, 2016 WL 11586133, at *1 (W.D. Tex. Sept. 15, 2016) (citations omitted). Here, given that Plaintiff is proceeding pro se, the Court finds leave to amend proper. Thus, the undersigned RECOMMENDS that Plaintiff's request for leave to amend be GRANTED.
IV. Recommendation
Based on the circumstances present in this case, the undersigned RECOMMENDS that Defendant's Motion to Dismiss be GRANTED. (Doc. 6). Additionally, the undersigned RECOMMENDS that Plaintiff's request for leave to amend be GRANTED. Lastly, the undersigned DIRECTS the Clerk of Court to send a copy of this Report and Recommendation to Anthony Wade Liker via certified mail return receipt requested to 4775 Oakwood Drive, No. 423, Odessa, Texas 79761 . The Court further DIRECTS the Clerk of Court to file the return receipt.
Instructions for Service and Notice of Right to Appeal/Object
In the event that a party has not been served by the Clerk with this Report and Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is ORDERED to mail such party a copy of this Report and Recommendation by certified mail. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to this report must serve and file written objections within fourteen (14) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made; the District Judge need not consider frivolous, conclusive, or general objections. Such party shall file the objections with the Clerk of the Court and serve the objections on all other parties. A party's failure to file such objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the District Judge. Additionally, a party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Judge. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).