United States District Court, N.D. Mississippi, Oxford Division
Court has before it a motion to dismiss [Doc. 35] filed by
Defendants. For the reasons set forth below the Court finds
that the motion should be granted but that Plaintiff should
be allowed to amend his complaint.
Richard Thomas is a former professor at the University of
Mississippi's DeSoto campus. After an internal Title IX
investigation, Thomas was terminated from his employment with
the University. He now brings this action asserting that
University, the Board of Trustees of the State Institution of
Higher Learning ("IHL"), and University employees
Noel Wilkins, Lee Cohen, Rebecca Bressler, Rick Gregory,
Kirsten Dellinger, and Honey Ussery (collectively the
"employee Defendants") both in their official and
individual capacities, violated his Fourteenth Amendment
rights. Specifically, he alleges Defendants deprived him of
his employment contract without due process in terminating
him without a fair investigation and that the Defendants
deprived him of his liberty by using an unfair investigation
to disparage him. Thomas also brings a state law breach of
contract claim against Defendants.
now move to dismiss the amended complaint. They argue the
claims against University, IHL, and the employee Defendants
in their official capacities should be dismissed pursuant to
Fed.R.Civ.P. 12(b)(1) because they enjoy Eleventh Amendment
immunity. Defendants also argue the complaint should be
dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to
state a claim.
12(b)(1) motion allows a party to challenge the Court's
subject matter jurisdiction." '[A] factual attack
under Rule 12(b)(1) may occur at any stage of the
proceedings, and plaintiff bears the burden of proof that
jurisdiction does in fact exist.'" Arena v.
Graybar Elec. Co., 669 F.3d 214, 223 (5th Cir. 2012)
(quoting Menchaca v. Chrysler Credit. Corp., 613
F.2d 507, 511 (5th Cir. 1980) (citations omitted)).
Fifth Circuit has instructed:
A case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case. In considering a
challenge to subject matter jurisdiction, the district court
is free to weigh the evidence and resolve factual disputes in
order to satisfy itself that it has the power to hear the
case. Thus, under Rule 12(b)(1), the district court can
resolve disputed issues of fact to the extent necessary to
Smith v. Reg'l Transit Auth, 756 F.3d 340, 347
(5th Cir. 2014) (quotation marks and citation omitted). In
ruling on a Rule 12(b)(1) motion to dismiss, the Court can
consider: "(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." Tsolmon
v. United States, 841 F.3d 378, 382 (5th Cir. 2016)
(internal quotation marks and citation omitted).
deciding a Rule 12(b)(6) motion to dismiss, the Court is
limited to the allegations set forth in the complaint and any
documents attached to the complaint. Walker v. Webco
Indus., Inc., 562 Fed.Appx. 215, 216-17 (5th Cir. 2014)
(citing Kennedy v. Chase Manhattan Bank USA, NA, 369
F.3d 833, 839 (5th Cir. 2004)). "[A plaintiffs]
complaint therefore 'must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.'" Phillips v. City of
Dallas, Tex., 781 F.3d 772, 775-76 (5th Cir. 2015)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
is facially plausible when the pleaded factual content
"allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing
Bell Atl Corp. v. Twombly, 550 U.S. 544, 556, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "[P]laintiffs must
allege facts that support the elements of the cause of action
in order to make out a valid claim." Webb v.
Morella, 522 Fed.Appx. 238, 241 (5th Cir. 2013) (quoting
City of Clinton, Ark. v. Pilgrim's Pride Corp.,
632 F.3d 148, 152-53 (5th Cir. 2010) (internal quotation
marks omitted)). "[C]onclusory allegations or legal
conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss." Id.
(quoting Fernandez-Montes v. Allied Pilots Ass
'n, 987 F.2d 278, 284 (5th Cir. 1993) (internal
quotation marks omitted)). "Dismissal is appropriate
when the plaintiff has not alleged 'enough facts to state
a claim to relief that is plausible on its face' and has
failed to 'raise a right to relief above the speculative
level.'" Emesowum v. Hous. Police
Dep't, 561 Fed.Appx. 372, 372 (5th Cir. 2014)
(quoting Twombly, 550 U.S. at 555, 570, 127 S.Ct.