Case 3:10-cv-01095-P Document 17 Filed 08/02/10 Page 1 of 6 PageID 108

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

PAUL C. WOODFIELD §
Plaintiff, §
§
v. § 3:10-CV-01095-P
§
CITY OF DALLAS, DALLAS §
COUNTY, and STATE OF TEXAS §
§
Defendants. §

ORDER

Now before the Court is Defendant the State of Texas’s Renewed Motion to Dismiss

pursuant to Rules 12(b)(1) and 12(b)(6), filed on June 24, 2010. Plaintiff filed a Response on

July 2, 2010. Defendant filed a Reply on July 15, 2010. After reviewing the parties’ briefing,

the evidence, and the applicable law, the Court GRANTS Defendant’s Motion to Dismiss.

I. Background

Plaintiff Paul C. Woodfield (“Woodfield” or “Plaintiff”) challenges City of Dallas

Ordinance No. 22764 (the “Ordinance”), which regulates the use of bicycle helmets.

Specifically, Plaintiff claims the Ordinance is unconstitutionally vague, preempted by state law,

in violation of his right to assemble, financially burdensome, and facially void. (Compl. 2-6.)

As such, Plaintiff seeks declaratory and injunctive relief to halt the enforcement of the Ordinance

and to declare it unconstitutional. Defendant State of Texas (“Defendant” or “the State”) moves

to dismiss Plaintiff’s claim on the grounds of Eleventh Amendment immunity.

Order
3:10-CV- 01095-P
Page 1 of 6
 Case 3:10-cv-01095-P Document 17 Filed 08/02/10 Page 2 of 6 PageID 109

II. Legal Standard & Analysis

A. 12(b)(1) and 12(b)(6) Standard

When a motion to dismiss is predicated on both Fed. R. Civ. P. 12(b)(1) and (6), the

Court should first resolve the jurisdictional attack before addressing an attack on the merits of

the claim. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

A party can bring a motion to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject

matter jurisdiction. A court must have jurisdiction over a case or controversy to be able to render

a judgment and provide a party with relief. See Steel Co. v. Citizens for a Better Environment,

523 U.S. 83, 94-95 (1998) (“The requirement that jurisdiction be established as a threshold

matter . . . ‘is inflexible and without exception’”) (quoting Mansfield, C. & L.M.R. Co. v. Swan,

111 U.S. 379, 382 (1884)). The Declaratory Judgment Act recognizes and respects the

constitutional limitation that federal courts may only exercise jurisdiction over “cases” and

“controversies”. U.S. CONST. art. 1, § 2, cl. 1; 22 U.S.C. § 2201. In a declaratory judgment

action, a controversy exists, “where the facts alleged ... show that there is a substantial

controversy, between parties having adverse legal interests, of sufficient immediacy and reality

to warrant the issuance of a declaratory judgment.” Maryland Casualty Co. v. Pacific Coal & Oil

Co., 312 U.S. 270, 273, (1941).

When addressing a lack of subject matter defense, the Court can base its decision upon

“(1) the complaint standing 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.” Montez v. Dept. of Navy, 392 F.3d 147, 149 (5th Cir.2004) (citing Robinson v.

TCI/US West Commc’ns, Inc., 117 F.3d 900, 904 (5th Cir.1997)).

Order
3:10-CV- 01095-P
Page 2 of 6
 Case 3:10-cv-01095-P Document 17 Filed 08/02/10 Page 3 of 6 PageID 110

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint when

a defendant shows that the plaintiff has failed to state a claim for which relief can be granted.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to 'state a claim to relief that is plausible on its face.’” Iqbal v. Ashcroft, - - - U.S. - - - 129

S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The

factual matter contained in the complaint must allege actual facts, not legal conclusions

masquerading as facts. Id. at 1949-50 (“Although for the purposes of a motion to dismiss we

must take all of the factual allegations in the complaint as true, we ‘are not bound to accept as

true a legal conclusion couched as a factual allegation.’”) (quoting Twombly, 550 U.S. at 555).

Additionally, the factual allegations of a complaint must state a plausible claim for relief.

Id. A complaint states a “plausible claim for relief” when the factual allegations contained

therein infer actual misconduct on the part of the defendant, not a “mere possibility of

misconduct.” Id.; see also Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir. 1986).

B. Pro Se Standard

The Court initially notes that Plaintiff proceeds pro se. Accordingly, his complaint and

pleadings will not be held to the same standard as an attorney. While Plaintiff is not excused

from pleading and providing evidence he “should not be punished for lacking the skills of a

trained lawyer, rather, courts have adopted the rule that the briefs and allegations of pro se

litigants should be construed liberally.” Coins v. Potter, No. 3:04-CV-1623-P, 2005 U.S. Dist.

LEXIS 26662, at *5 (N.D. Tex. Nov. 3, 2005); see also Haines v. Kerner, 404 U.S. 519, 520

(1972); Perez v. United States, 312 F.3d 191, 194-95 (5th Cir. 2002).

Order
3:10-CV- 01095-P
Page 3 of 6
 Case 3:10-cv-01095-P Document 17 Filed 08/02/10 Page 4 of 6 PageID 111

C. Analysis

Defendant first argues this Court should dismiss Plaintiff’s claim because the state of

Texas is not a person capable of being sued under 42 U.S.C. §1983. See Will v. Michigan Dept.

of State Police, 491 U.S. 58, 71 (1989). Plaintiff attempts to amend his pleadings to seek relief

against the proper state officers in his Response to the State’s Motion to Dismiss. (Pl.’s

Response 1.)

Plaintiff cannot amend his pleading in a response in opposition to a motion to dismiss

absent some particular grounds on which the amendment is sought. See Confederate Mem’l

Ass’n, Inc. v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993) (a “bare request [to amend a complaint]

in an opposition to a motion to dismiss—without any indication of the particular grounds on

which the amendment is sought . . . does not constitute a motion within the contemplation of

Rule 15(a)”); U.S. ex rel. Willard v. Humana Health Plan, 336 F.3d 375, 387 (5th Cir. 2003).

However, a court may make leave for a party to amend their pleading pursuant to Fed. R. Civ. P.

15(a)(2). Nevertheless, such a determination is unnecessary in this case because the State enjoys

immunity from suit under the Eleventh Amendment.

Plaintiff argues the State is not immune to suit in this action due to an Ex parte Young

exception to the Eleventh Amendment.1 In Young, 209 U.S. 123 (1908), the Supreme Court

determined that there was an exception to the Eleventh Amendment:

[F]or officers of the state . . . clothed with some duty in regard to the enforcement
of the laws of the state, and who threaten and are about to commence proceedings,
either of a civil or criminal nature, to enforce against parties affected [by] an

1
The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or
by Citizens or subjects of any Foreign State. U.S. CONST. amend. XI. The Supreme Court has determined that the
Eleventh Amendment also bars suits brought against a State by its own citizens in Federal Court. See Hans v.
Louisiana, 134 U.S. 1 (1890).

Order
3:10-CV- 01095-P
Page 4 of 6
 Case 3:10-cv-01095-P Document 17 Filed 08/02/10 Page 5 of 6 PageID 112

unconstitutional act, violating the Federal Constitution, may be enjoined by a

Federal court of equity from such action.

Young, 209 U.S. at 155-56. For there to be an Ex parte Young exception, a connection must exist

between the officer of the state and the enforcement of the act. Id. at 157 (“[I]t is plain that such

officer must have some connection with the enforcement of the act, or else it is merely making

him a party as a representative of the state, and thereby attempting to make the state a party . . .

.”).

The Fifth Circuit determined the Ex parte Young exception does not include a state

official with the general powers to enforce state law, such as an attorney general. In Okpalobi v.

Foster, the Fifth Circuit held it is “not merely the general duty to see that the laws of the state are

implemented that substantiates the required ‘connection,’ but the particular duty to enforce the

statute in question and a demonstrated willingness to exercise that duty.” Okpalobi v. Foster, 244

F.3d 405, 416 (5th Cir. 2001) (determining how close the connection must be between the

enforcement of a statute and an officer of the state to qualify as an Ex parte Young exception);

see also Hamilton v. Fotti, No. 08-30408, 2010 U.S. App. LEXIS 6586 (5th Cir. March 30,

2010) (rejecting argument that Louisiana Attorney General’s state constitutional duty to enforce

all laws of the state is sufficient to satisfy Ex parte Young exception).

In this case, the Texas Attorney General has the constitutional duty to uphold the laws of

the state of Texas. The Dallas city ordinance in question, however, does not specifically task the

Attorney General or the state of Texas with upholding Dallas’s bike helmet law. As such, there

is not a close enough connection between the Dallas ordinance and the Texas Attorney General

such that an Ex parte Young exception to the Eleventh Amendment would exist. Accordingly,

Order
3:10-CV- 01095-P
Page 5 of 6
 Case 3:10-cv-01095-P Document 17 Filed 08/02/10 Page 6 of 6 PageID 113

this Court lacks jurisdiction to grant Plaintiff relief he seeks in his complaint and the Defendant

State of Texas’s Motion to dismiss is granted.

III. Conclusion

For the foregoing reasons, the Court GRANTS Defendant the State of Texas’s Motion to

Dismiss.

IT IS SO ORDERED.

Signed this 2nd day of August 2010.

_________________________________
JORGE A. SOLIS
UNITED STATES DISTRICT JUDGE

Order
3:10-CV- 01095-P
Page 6 of 6