Summary
dismissing claim barred by the Eleventh Amendment for lack of jurisdiction under Rule 12(b)
Summary of this case from Cooper v. SearsOpinion
Civ. No. 3:98-CV-1140-L.
Filed March 31, 2000.
MEMORANDUM OPINION AND ORDER
The court has before it a pending motion to dismiss from Defendant State of Texas, filed May 18, 1998, and a motion to dismiss and to quash from Defendants Morales, Vega, Durham, Kraatz, Brocato, and Eldred, filed May 18, 1998. The court also has pending before it seven motions by Plaintiff filed on various dates. The court disposes of these matters as set forth herein.
I. Background
Plaintiff, pro se, filed two suits in State district court. They were consolidated, and ultimately removed to United States District Court. Plaintiff alleges that various individuals in the Texas Department of Criminal Justice and the Texas Attorney General's Office, which is providing legal representation for Defendants, are involved in a conspiracy to prevent him from corresponding with an inmate who is incarcerated in the Texas penal system. Specifically, he complains about being placed on a "negative mailing list" which prevents him from corresponding with her. He insists that prison officials' justification for this action, that a previous letter he sent contained a stain which tested positive for a controlled substance, is a sham and pretext to stop the correspondence because further correspondence would reveal more details of the prison system's use of germs to kill certain inmates.
II. Motions to Dismiss and to Quash
On May 18, 1998, Defendant State of Texas ("State") filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim, alleging that it cannot be considered a "person" who may be held liable under 42 U.S.C. § 1983. Defendants Morales, Vega, Durham, Kraatz, Brocato, and Eldred (the "Attorney General Defendants") filed a motion on May 18, 1998, seeking to dismiss and to quash based upon insufficient service of process. For the reasons that follow, Defendant State of Texas' motion is granted, and the Attorney General Defendants' Motion to Quash is granted.
A. State of Texas' Motion
1. Lack of Subject Matter Jurisdiction
The State moves for dismissal pursuant to Fed R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. The Eleventh Amendment to the United States Constitution is an explicit jurisdictional bar to suits against the State in federal court. U.S. Const. amend. XI. The immunity afforded by the Eleventh Amendment applies, in the absence of waiver, regardless of the nature of relief sought. Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Although the Supreme Court has recognized exceptions to Eleventh Amendment immunity, those exceptions extend only to claims against state officials for prospective injunctive relief to prevent a continuing violation of federal law. Puerto Rico Aqueduct and Sewer Authority v. Metcalf Eddy, Inc., 506 U.S. 139, 146 (1993). Since the State's immunity has not been waived in this case, the court lacks subject matter jurisdiction, and the claim must be dismissed pursuant to Fed.R.Civ.P. 12(b)(1).
2. Failure to State a Claim
Even if the court has subject matter jurisdiction, Plaintiff Stokes' claim fails as a matter of law because he has failed to state a claim upon which relief can be granted against the State. Plaintiff Stokes has asserted that the activities of which he complains were "unconstitutional" and "against the laws of the United States." Title 42 U.S.C. § 1983 provides:
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any state . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress. . . .
A state, its agencies, and its officials while acting in their official capacities are not "persons" who may be liable under 42 U.S.C. § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989); see also Cronen v. Texas Dept. of Human Services, 977 F.2d 934, 936 (5th Cir. 1992) (holding that the State of Texas and a state agency were properly dismissed from an action brought under § 1983). Since the State of Texas cannot be considered a "person" who may be held liable under § 1983, Plaintiff Stokes has not stated a claim upon which relief may be granted against the State, and his claim must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6).
B. The Attorney General Defendants' Motion
Pursuant to Rule 12(b)(2) and (5), Fed.R.Civ.P., the Attorney General Defendants state that the service of process upon them was legally insufficient and thus the court has no in personam jurisdiction over them. Specifically, the Attorney General Defendants contend that Plaintiff has not served them in a manner permitted under state or federal law. They move to dismiss this action. Once the validity of service of process has been contested, the serving party bears the burden of establishing the propriety of service. Norlock v. City of Garland, 768 F.2d 654, 656 (5th Cir. 1985); Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992).
Rule 4, Fed.R.Civ.P., does not permit service of a complaint and summons by mail. Rule 4(e)(1), Fed.R.Civ.P., does authorize service pursuant to Texas law; however, absent prior authorization by the trial court, the only methods of service permitted in Texas are service in person or by registered mail. Tex. R. Civ. P. 106(a). A Texas court did not authorize an alternate method of service in this case. Unless the court specifies otherwise, the citation may only be served by a person authorized by Rule 103, Tex. R. Civ. P., which provides that the citation may be served by any sheriff, constable, or other person authorized by law. Additionally, "[n]o person who is a party to or interested in the outcome of a suit shall serve any process." Tex. R. Civ. P. 103. In this case, the copies of the envelope in which the citations and petitions were received by Defendants reflect that they were mailed by Plaintiff Stokes himself, not the clerk, constable, or sheriff as required by the rule. For this reason, the purported service does not comply with the requirements of Texas law and is invalid. See Delta Steamships Lines, Inc. v. Albano, 768 F.2d 728, 730 (5th Cir. 1985) (finding service by certified mail invalid under state law when no officer authorized by Texas law was involved in the attempt to serve by mail).
The Texas rules further direct that "when the citation was served by registered or certified mail as authorized by Rule 106, the return . . . must also contain the return receipt with the addressee's signature." Tex. R. Civ. P. 107. Plaintiff has not produced any return of service bearing the signatures of the Attorney General Defendants. In Webb v. Oberkampf Supply of Lubbock, Inc., 831 S.W.2d 61, 64 (Tex.App.-Amarillo 1992, no writ), the court considered the identical issue and rejected the argument that actual knowledge of a lawsuit by a defendant was sufficient to confer jurisdiction. The court held that jurisdiction is dependent upon citation issued and served in the manner provided by law, and that the lack of the addressee's signature on the receipt violated Rule 107, and therefore the court lacked in personam jurisdiction.
Plaintiff Stokes has failed to meet his burden, in light of the Attorney General Defendants' opposition, that establishes the validity of service on them. The record reflects that service was not effected in a manner prescribed by federal or state law. A district court faced with a Rule 12(b)(5) motion normally has discretion either to dismiss the action or to quash service. Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 (2d Cir. 1985). In this case, however, more than 120 days have elapsed since this action was removed from state court to federal court on May 12, 1998. The court must therefore also consider the requirements of Rule 4(m), Fed.R.Civ.P., which provides that if service upon a defendant has not been made within 120 days after the filing of the complaint, "the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time." Rather than dismiss this action, the court believes that Plaintiff should be given an additional 30 days from the date of this order to effect valid service on the Attorney General Defendants. If Plaintiff Stokes fails to effect proper service within 30 days from the date of this order, his claims against Defendants Morales, Vega, Durham, Kraatz, Brocato, and Eldred will be dismissed without prejudice.
II. Plaintiff's Pending Motions/Requests
Plaintiff has several pending motions. It is extremely difficult, in many instances, to decipher the specific nature of legal relief which Plaintiff's motions seek. The court makes the following ruling as to each motion:
1. Motion for objection to defendants' motion to dismiss and quash, and to liquidate defendants motion to dismiss and quash, to change venue, and for court to apply estoppel of a dismissal, filed August 20, 1998
The court treats this "motion" as a response to the two motions to dismiss and a motion to quash filed by several Defendants on May 18, 1998, because it in essence requests the court to deny the motions. Accordingly, this "motion" is denied. The court considered the "motion" when it ruled on the motions to dismiss and quash.
2. Motion that the Declaration of Independence and the United States Constitution be upheld as first law, filed August 20, 1998
The motion is denied as moot because the court recognizes the United States Constitution as the supreme "Law of the Land."
3. Motion to reconsider all of Plaintiff's motions, to impose sanctions on the Texas Department of Criminal Justice, to add Director's review committee as defendants, and to have equity to the courts, filed August 21, 1998
As Plaintiff has set forth no basis for the court to reverse its order of August 17, 1998, this motion is denied.
4. Motion to return Plaintiff's two sealed envelopes, unopened, as evidence investigation of mail tampering, filed October 13, 1998
The court finds no basis to grant this motion, and it is hereby denied.
5. Motion to return Plaintiff's two sealed envelopes, unopened, "of [his] witness list of names," filed October 13, 1998
The court finds no basis to grant this motion, and it is hereby denied.
6. Motion for the court to demand that the Texas Department of Criminal Justice live within the laws and produce the evidence of drugs on a letter and the letter, filed November 17, 1998
To the extent that Plaintiff is making a discovery request (request for production of documents), all Texas Department Criminal Justice Defendants are directed to produce any information in their possession regarding this matter to the extent it is relevant to an issue in this action and is reasonably calculated to lead to the discovery of admissible evidence. Defendants must respond to Plaintiff within thirty days of this order. If no information is available, Defendants are directed to so state and state the reason why it is unavailable. If Defendants have already provided this information to Plaintiff, they are to so state.
7. Motion that Plaintiff be allowed to show the court an attempt "under falsification and manipulation by TDCJ employee's to crimen falsi [him] and creating crimes against [him], by deceitfulness," filed November 17, 1998
The court is uncertain of the exact relief Plaintiff seeks from the court. To the extent he seeks to obtain information to support his claims in this action, he must avail himself of the discovery process. If this case proceeds to trial, Plaintiff will have an opportunity to prove his claims. At this time, this motion is denied as moot.
III. Conclusion
For the reasons previously stated, Defendant State of Texas' Motion to Dismiss is granted. Accordingly, all claims against the State of Texas are hereby dismissed with prejudice. Defendants Morales, Vega, Durham, Kraatz, Brocato, and Eldred's Motion to Quash is granted. If service is not effected on them in accordance with federal or state law within 30 days of the date of this order, all claims will be dismissed against them without prejudice. With respect to Plaintiff's motions, they are denied or granted as set forth in Section II of this Memorandum Opinion and Order.
It is so ordered this 31st day of March, 2000.