Opinion
SA-23-CV-870-FB (HJB)
07-24-2024
EDDIE MUNOZ, Plaintiff, v. SOUTHERN FOODSERVICE MANAGEMENT, INC., and BROOKE ARMY MEDICAL CENTER, Defendants.
TO THE HONORABLE UNITED STATES DISTRICT JUDGE FRED BIERY:
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HENRY J. BEMPORAD UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation concerns two motions to dismiss-one filed by Defendant Southern Foodservice Management, Inc. (“SFM”) (Docket Entry 17), and the other by Defendant Brooke Army Medical Center (“BAMC”) (Docket Entry 24). Pretrial matters have been referred to the undersigned for consideration. (Docket Entry 14.) For the reasons set out below, I recommend that SFM's motion (Docket Entry 17) be GRANTED, and that BAMC's motion (Docket Entry 24) be GRANTED IN PART and DISMISSED AS MOOT IN PART.
I. Jurisdiction.
Plaintiff Eddie Munoz's sole claim is that he was fired for engaging in political speech protected under the First Amendment, in violation of 42 U.S.C. § 1983. The Court has original jurisdiction over § 1983 claims pursuant to 28 U.S.C. § 1331. The undersigned issues this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
Although BAMC moves to dismiss in part for lack of subject matter jurisdiction, “a federal court always has jurisdiction to determine its own jurisdiction.” United States v. Ruiz, 536 U.S. 622, 628 (2002).
As Defendants seek dismissal at the pleadings stage, the Court simply adopts the well-pleaded facts from Plaintiff's complaint. See Sewell v. Monroe City Sch. Bd., 974 F.3d 577, 581 (5th Cir. 2020).
On June 1, 2022, Plaintiff began working for SFM as a food service worker. (Docket Entry 1, at 2.) SFM is a private corporation that contracts with BAMC-a healthcare organization within the United States Department of Defense-to manage BAMC's dining facility and patient room service at Fort Sam Houston, Texas. (Id.) On work days, Plaintiff would park his personal vehicle in the BAMC visitor and staff garage. (Id.) Affixed to his vehicle was a bumper sticker, expressing a critical attitude toward the President: viz., “F[American flag graphic]K Biden.” (Id. at 3.)
On or around June 21, 2022, while he was off work, Plaintiff received a phone call from his shift supervisor, Camille Huber. (Docket Entry 1, at 2.) Huber told Plaintiff that a high-ranking officer filed a complaint with the Provost Marshall about Plaintiff's bumper sticker. (Id.) Huber explained that if Plaintiff refused to remove the sticker, he would lose his driving privileges, his car would get towed if parked in the garage, and his employment could even be terminated. (Id.) Shortly thereafter, Plaintiff called his project manager, Matilda Ramirez-Gallegos, and she confirmed everything Huber had told him. (Id. at 3.)
The next day, Plaintiff called James L. Hobson Jr., the Chief Provost Marshall of BAMC, to ask whether there were any regulations, memoranda, or laws that prohibited his having a political bumper sticker on his personal vehicle. (Docket Entry 1, at 3.) Hobson responded by giving Plaintiff an ultimatum: remove the sticker or lose his job. (Id.) The next day-while Plaintiff was off work and at home-Ramirez-Gallegos called to notify him that his employment had been terminated at the request of Anabel C. Siler, BAMC Contracting Officer. (Id.) Later that day, Ramirez-Gallegos emailed Plaintiff a copy of SFM's termination letter. (Id.) The letter stated that his termination “was requested by the BAMC Contracting Officer due to his refusal to remove the sticker from his vehicle in violation of BAMC standards.” (Id. at 4.) The letter did not identify any such standards but explained that “when the government says we must take a certain action, we have to comply.” (Id.)
On July 10, 2022, Plaintiff submitted an application for unemployment benefits to the Texas Workforce Commission (“TWC”). (Docket Entry 1, at 4.) SFM protested Plaintiff's application, alleging he was terminated for employee misconduct. (Docket Entry 1, at 4.) On July 29, 2022, the TWC disqualified Plaintiff from receiving benefits based on SFM's allegation. (Id.) Plaintiff appealed the decision the next day. (Id.) On August 24, 2022, the TWC reversed its disqualification decision, finding that Plaintiff had not engaged in any employee misconduct. (Id.)
Plaintiff filed suit on July 14, 2023, asserting that, by firing him for expressing a political message, “Defendants deprived Plaintiff of his right to free speech, . . . in violation of 42 U.S.C. § 1983.” (Docket Entry 1, at 6.) SFM filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (See Docket Entry 17.) BAMC also filed its own motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), for lack of subject matter jurisdiction and for failure to state a claim, respectively. (See Docket Entry 24.) Plaintiff has responded to both motions (see Docket Entries 20 and 34), and Defendants have replied (see Docket Entries 23 and 35).
III. Analysis.
This Report and Recommendation addresses BAMC's motion before turning to SFM's. In addressing the former, the undersigned begins with BAMC's attack on the Court's subject matter jurisdiction. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam) (“When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.”).
A. BAMC's 12(b)(1) Motion to Dismiss.
BAMC contends that, as a federal agency, it has sovereign immunity from suits for claims arising under 42 U.S.C. § 1983. (Docket Entry 24, at 5.) “Sovereign immunity is jurisdictional in nature.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). “[T]he United States cannot be sued at all without the consent of Congress.” Freeman v. United States, 556 F.3d 326, 334 (5th Cir. 2009) (quoting Block v. N. Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983)). Thus, “[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” Meyer, 510 U.S. at 475 (citing Loeffler v. Frank, 486 U.S. 549, 554 (1988)).
Plaintiff has alleged-and it is undisputed-that BAMC is a federal agency. (See Docket Entry 1, at 2; Docket Entry 24, at 3; Docket Entry 34, at 6.) As a federal agency, BAMC is immune from suits arising under 42 U.S.C. § 1983. See, e.g., Hoffman v. U.S. Dep't of Hous. & Urb. Dev., 519 F.2d 1160, 1165 (5th Cir. 1975) (“[A] federal agency is . . . excluded from the scope of section 1983 liability.”); Steele v. United States, No. PE:22-CV-00004-DC, 2022 WL 1521599, at *4 (W.D. Tex. Apr. 25, 2022) (“The United States has not waived immunity to a suit brought against it for a violation of a constitutional right.”) (citing Meyer); Lollis v. HUD, No. 3-12-CV-0392-D, 2012 WL 1252568, at *2 (N.D. Tex. Mar. 14, 2012) (“Federal agencies . . . cannot be sued for civil rights violations.”) (citing Govea v. ATF, 207 Fed.Appx. 369, 373 (5th Cir. 2006)), report and recommendation adopted, No. 3:12-CV-0392-D, 2012 WL 1267852 (N.D. Tex. Apr. 13, 2012). Accordingly, Plaintiff's § 1983 claim against BAMC fails as a matter of law.
Because BAMC has sovereign immunity-and hence the Court has no subject matter jurisdiction over Plaintiff's § 1983 claim against it-the undersigned does not address BAMC's argument on the merits under Rule 12(b)(6). See Brownback v. King, 592 U.S. 209, 218 (2021) (“Ordinarily, a court cannot issue a ruling on the merits ‘when it has no jurisdiction' because ‘to do so is, by very definition, for a court to act ultra vires.'”).
B. SFM's 12(b)6) Motion to Dismiss.
Claims may be dismissed under Rule 12(b)(6) “on the basis of a dispositive issue of law,” Neitzke v. Williams, 490 U.S. 319, 326 (1989), or based on a plaintiff's failure to allege “enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
In reviewing a Rule 12(b)(6) motion, the Court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. United States ex rel. Vavra v. Kellogg Brown & Root, Inc., 727 F.3d 343, 344 (5th Cir. 2013). However, the Court does not extend this presumption of veracity to “conclusory allegations, unwarranted factual inferences, or legal conclusions.” Arnold v. Williams, 979 F.3d 262, 266 (5th Cir. 2020) (citations omitted).
SFM contends that Plaintiff has failed to state a claim because SFM is a private corporation and, thus, beyond the reach of 42 U.S.C. § 1983. (Docket Entry 17, at 4.) To state a § 1983 claim, a plaintiff must plausibly allege (1) a deprivation of a right secured by the Constitution or federal statute and (2) that the alleged deprivation was committed by a person acting under color of state law. Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013). Thus, § 1983 reaches neither “[f]ederal officials acting under color of federal law . . . nor . . . purely private conduct.” Doe v. United States, 831 F.3d 309, 314 (5th Cir. 2016) (citing D.C. v. Carter, 409 U.S. 418, 424-25 (1973)). A private actor can only be liable if their conduct is “fairly attributable to the State.” Doe, 831 F.3d at 314 (quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)).
Here, Plaintiff alleges-and it is undisputed-that SFM is a private corporation that operates as a government contractor for BAMC- a federal agency. (See Docket Entry 1, at 2; Docket Entry 17, at 4; Docket Entry 20, at 5; Docket Entry 23, at 1.) Because SFM contracted with a federal, as opposed to state, agency, its conduct cannot be fairly attributed to the State of Texas. While SFM's conduct may plausibly be attributable to BAMC, § 1983 claims cannot be maintained against federal agencies or federal officials acting under color of federal law. See, e.g., Doe, 831 F.3d at 314; Hoffman, 519 F.2d at 1165; Lollis, 2012 WL 1252568, at *2. Accordingly, Plaintiff's § 1983 claim against SFM likewise fails as a matter of law. See Neitzke, 490 U.S. at 326.
IV. Conclusion and Recommendation.
Based on the foregoing, I recommend that SFM's Motion to Dismiss (Docket Entry 17) be GRANTED, and that BAMC's Motion to Dismiss (Docket Entry 24) be GRANTED IN PART and DISMISSED AS MOOT IN PART. To the extent that BAMC moves to dismiss for lack of subject matter jurisdiction, the motion should be granted; to the extent it moves to dismiss for failure to state a claim, the Court lacks jurisdiction and the motion should be dismissed as moot. See MA LEG Partners 1 v. City of Dallas, 442 F.Supp.3d 958, 971 (N.D. Tex. 2020) (dismissing as moot city's motion to dismiss for failure to state a claim after granting its motion to dismiss for lack of subject matter jurisdiction and thereby dismissing plaintiff's complaint without prejudice).
Moreover, because Plaintiff's § 1983 claims against both Defendants are “not actionable as a matter of law,” granting Plaintiff leave to amend his complaint “would be futile.” See Taubenfeld v. Hotels.com, 385 F.Supp.2d 587, 592 (N.D. Tex. 2004). Accordingly, I recommend that Plaintiff not be given leave to amend his complaint, and that this case be dismissed-with prejudice as to SFM, see id. (“A dismissal with prejudice is appropriate when amending a complaint would be futile.”), and without prejudice as to BAMC, see Ezell v. Dep't of the Army, No. 5:16-CV-938, 2017 WL 2671091, at *2 (W.D. Tex. June 20, 2017) (“Claims barred by sovereign immunity ‘can be dismissed only under Rule 12(b)(1) and not with prejudice.'”) (quoting Warnock v. Pecos Cnty., 88 F.3d 341, 343 (5th Cir. 1996)).
V. Notice of Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the Clerk of Court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of the same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The parties shall file any objections with the Clerk of the Court and serve the objections on all other parties. An objecting party must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass 'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).