            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 12, 2009

                                       No. 08-40374                    Charles R. Fulbruge III
                                                                               Clerk

DANA ALEGRIA

                                                   Plaintiff-Appellant
v.

LARRY WILLIAMS, In His Individual Capacity; STATE OF TEXAS;
EDDIE KELLY, Supervisor

                                                   Defendants-Appellees




                    Appeal from the United States District Court
                         for the Southern District of Texas
                               USDC No. 3:06-CV-212


Before O’CONNOR, Associate Justice (Ret.),* WIENER and STEWART, Circuit
Judges.
SANDRA DAY O’CONNOR, Associate Justice (Retired):**
       Plaintiff-Appellant Dana Alegria suffered egregious physical and verbal
sexual harassment at the hands of her probation officer. She sued this probation
officer, his supervisor, and the State of Texas, alleging violations of 42 U.S.C.



       *
        The Honorable Sandra Day O’Connor, Associate Justice of the United States Supreme
Court, (Ret.), sitting by designation pursuant to 28 U.S.C. § 294(a).
       **
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-40374

§1983 and Title IX of the Education Act Amendments of 1972. On appeal, she
challenges the grant of summary judgment of her §1983 claims to the State and
both the probation officer and his supervisor in their official capacities. She also
challenges the grant of summary judgment to the State on her Title IX claim.
Because she seeks only monetary damages, her §1983 claims cannot succeed.
Similarly, because she has failed to establish that the State’s probation system
is an “education program or activity” within the ambit of Title IX, 20 U.S.C.
§ 1681(a), her Title IX claim also fails as a matter of law. We thus affirm the
relevant judgments of the district court.
                                         I.
      A. The district court appropriately construed plaintiff’s proffered evidence
and allegations in her favor in light of the procedural posture in which it
confronted them. We briefly summarize the pertinent facts in the same manner:
In 1999 plaintiff Dana Alegria began serving a 10 year term of probation under
the authority of the Galveston County Community Supervision and Corrections
Department. She was placed under the supervision of probation officer Larry
Williams in September 2005.        On multiple occasions, when she met with
Williams in fulfillment of the terms of her probation, he subjected her to
egregious verbal and physical sexual harassment. In January 2006 she reported
his conduct to the Galveston County District Attorney’s office and was advised
to make a surreptitious audio recording of her next encounter with Williams.
She agreed. Later that month she recorded a meeting during which Williams
instructed her to follow him into a stairwell, sexually assaulted her, exposed his
penis, and requested oral sex.     The next week, defendant Eddie Kelly, the
director of the Department and Williams’ supervisor, was informed of the
misconduct. Kelly soon confronted Williams, and Williams resigned shortly
thereafter.



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      In April plaintiff brought suit under (i) 42 U.S.C. §1983, alleging violations
of her rights under the Fourteenth Amendment; and (ii) Title IX of the
Education Act Amendments of 1972, 20 U.S.C. § 1681, et seq. Originally, she
sued Galveston County and Williams in both his professional and personal
capacities. Alegria v. Texas, No. G–06–0212, 2007 WL 2688446, at *1 (S.D. Tex.
Sept. 11, 2007) (memorandum opinion and order). In a first amended complaint,
she dismissed the County, added the State of Texas as a defendant, and dropped
her claims against Williams in his personal capacity, but retained the
professional capacity claims. Id. at *2. Finally, in a “third” amended complaint,
she endeavored to revive her personal capacity claims against Williams and
included claims against Kelly in both his personal and professional capacities.
Id. at *6; Alegria v. Texas, No. G–06–0212, 2006 WL 2591072, at *1 n.1 (S.D.
Tex. Sept. 7, 2006) (order granting in part and denying in part defendant’s
motion to dismiss). Along the way, plaintiff’s theories of liability and prayers for
relief evolved in response to several motions to dismiss or for summary
judgment.    We need not here detail the nature of this evolution nor the
procedural history in which it unfolded. For our purposes, it is sufficient to note
that the district court “allowed the plaintiff extraordinary leeway in submitting
numerous briefs and other written materials” and it “expended considerable time
. . . performing independent research.” Alegria v. Texas, No. G–06–0212, 2008
WL 686161, at *10 n.31 (S.D. Tex. Mar. 7, 2008) (memorandum order and
opinion).
      B. In a series of four orders, the district court disposed of each of plaintiff’s
claims.
      1. Plaintiff’s § 1983 claims.
      The district court granted the State and Kelly and Williams in their
professional capacities summary judgment of plaintiff’s §1983 claims. The court
explained (and plaintiff later conceded) that the State’s sovereign immunity

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under the Eleventh Amendment barred plaintiff’s prayer for monetary damages.
Alegria, 2007 WL 2688446, at *2 & n.5 (Sept. 11, 2007); Alegria, 2006 WL
2591072, at *2 (Sept. 7, 2006). Plaintiff’s early pleadings referenced declaratory
and prospective injunctive relief, though it was “somewhat unclear exactly what
injunctive relief [she was] seeking.” Id. at *2 n.4. Despite the district court’s
“hop[e] that the relief sought . . . and the legal authority allowing such relief
w[ould] be more fully hashed out,” id., plaintiff subsequently abandoned her
claims for such relief. Alegria v. Texas, No. G–06–0212, 2007 WL 3256586, at
*16 (S.D. Tex. Nov. 2, 2007) (memorandum opinion and order) (“The court
construes plaintiff’s statement that she is no longer seeking prospective
injunctive relief as an abandonment of those claims.”).
      The district court also granted Kelly in his personal capacity summary
judgment of plaintiff’s §1983 claims, concluding that he was entitled to qualified
immunity. Alegria, 2007 WL 2688446, at *4–10 (Sept. 11, 2007). The court
concluded that plaintiff failed to present any evidence showing that Kelly
personally participated in the alleged sexual harassment. Id. at *5–6. It also
held that plaintiff failed to raise a genuine issue of material fact for trial as to
whether the constitutional violation of which plaintiff complained was causally
connected to Kelly’s failure to train and/or supervise his employees, or whether
Kelly’s failure to train and/or supervise his employees reflected deliberate
indifference to the risk that plaintiff would suffer sexual harassment at
Williams’ hands. Id. at *6–9.
      Lastly, the district court dismissed without prejudice plaintiff’s §1983
claim against Williams in his personal capacity. Alegria, 2008 WL 686161, at
*10 (Mar. 7, 2008). It explained that Williams had only been served with
plaintiff’s first amended complaint, which only alleged claims against him in his
official capacity. Because plaintiff did not show good cause for her failure to
serve Williams with her third amended complaint, which endeavored to add the

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personal capacity claims against Williams, the district court dismissed those
claims pursuant to F ED. R. C IV. P. 4(m) (“If a defendant is not served within 120
days after the complaint is filed, the court . . . must dismiss the action without
prejudice against that defendant or order that service be made within a specified
time”).
      2. Plaintiff’s Title IX claims.
      The court granted the defendants summary judgment of plaintiff’s Title
IX claims. It first recognized that Title IX claims cannot be asserted against an
individual, but only an “education program or activity receiving Federal
financial assistance,” 20 U.S.C. § 1681(a). Alegria, 2007 WL 3256586, at *6
(Nov. 2, 2007) (citing Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006 (5th
Cir.) (rev’d on other grounds, Davis v. Monroe County Bd. of Ed., 526 U.S. 629
(1999)); see also Fitzgerald v. Barnstable Sch. Comm., 129 S. Ct. 788, 796 (2009)
(“Title IX reaches institutions and programs that receive federal funds, . . . but
it has consistently been interpreted as not authorizing suit against school
officials, teachers, and other individuals[.]”). Plaintiff’s Title IX claims against
Williams and Kelly were thus improperly pleaded. Turning to plaintiff’s Title
IX claim asserted against the State, the court concluded that the State was
entitled to summary judgment because plaintiff failed to present evidence from
which a reasonable trier of fact could conclude that any state official with
supervisory power over Williams had actual knowledge of the alleged
harassment and responded with deliberate indifference.          Alegria, 2007 WL
3256586, at *7–15 (Nov. 2, 2007).
      C. Plaintiff now appeals the grant of summary judgment of: (i) her §1983
claims against Williams and Kelly in their professional capacities and (ii) her
Title IX claim against the State. We note that there is some discussion of the
defense of qualified immunity in plaintiff’s brief.       Appellant Brief 54–58.
However, we do not construe this discussion to present a challenge to the grant

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of summary judgment of plaintiff’s §1983 claim against Kelly in his personal
capacity. Neither plaintiff’s statement of the issues presented nor the structure
of her argument demonstrate an intention to challenge the grant of qualified
immunity in Kelly’s favor; both are limited to the two challenges enumerated
above. Moreover, in her discussion of her §1983 claims, plaintiff explicitly omits
her personal capacity claim against Kelly. Id. at 47 (“As a preliminary matter,
it should be noted that Kelly and Williams were sued in their official capacity
and Williams was sued in his individual capacity.”). Further, plaintiff does not
limit her discussion of qualified immunity to arguments pertaining to her
personal capacity claim against Kelly (and/or Williams). Id. at 55 (discussing
“qualified immunity on behalf of Williams, Kelly, and the State of Texas”).
Lastly, defendants called attention to plaintiff’s failure to challenge the grant of
summary judgment of her personal capacity §1983 claim against Kelly. Appellee
Brief 21 n.11 (“Appellant asserts in her brief to this Court that her section 1983
claim against Kelly is made against him in his official capacity only.”). In her
reply brief, plaintiff did not argue to the contrary.
      We have jurisdiction to review plaintiff’s appeal under 28 U. S. C. §1291,
and we review the district court’s grant of summary judgment de novo. Connors
v. Graves, 538 F.3d 373, 376 (5th Cir. 2008).
                                        II.
      A. Plaintiff’s §1983 claims against Williams and Kelly in their professional
capacities.
      As the district court explained and plaintiff conceded, the State’s Eleventh
Amendment sovereign immunity bars the recovery of monetary damages under
§1983. Alegria, 2007 WL 2688446, at *2 n.5 (Sept. 11, 2007); Alegria, 2006 WL
2591072, at *1 (Sept. 7, 2006); see also, e.g., Hans v. Louisiana, 134 U.S. 1
(1890). This immunity extends to plaintiff’s official capacity claims against
Williams and Kelly. E.g., Monnell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 n.55

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(1978) (“[O]fficial-capacity suits generally represent only another way of
pleading an action against an entity of which an officer is an agent[.]”); Ford
Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 464 (1945) (overruled on other
grounds by Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613 (2002))
(“When the action is in essence one for the recovery of money from the state, the
state is the real, substantial party in interest and is entitled to invoke its
sovereign immunity from suit even though individual officials are nominal
defendants.”); Turner v. Houma Mun. Fire and Police Civil Serv. Bd., 229 F.3d
478, 483 (5th Cir. 2000) (official capacity suit generally an action against the
entity of which the defendant is an agent). The district court concluded that
despite plaintiff’s early allusions to prospective injunctive relief, she abandoned
her effort to secure any relief other than monetary damages. Alegria, 2007 WL
3256586, at *16 (Nov. 2, 2007) (“The court construes plaintiff’s statement that
she is no longer seeking prospective injunctive relief as an abandonment of those
claims.”). The district court granted defendants summary judgment on the basis
of this conclusion, which plaintiff does not challenge on appeal. Indeed, her
briefs fail to make any mention of the relief she seeks. We thus find no basis to
disturb the district court’s disposition of her §1983 claims.
      B. Plaintiff’s Title IX claim against the State.
      On appeal, the parties’ legal arguments pertaining to plaintiff’s Title IX
claim have shifted once again. As noted above, Title IX, which abrogates the
States’ sovereign immunity from suit, extends liability to an “education program
or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a) (emphasis
added). Before the district court, the defendants inexplicably failed to argue that
the Galveston County Community Supervision and Corrections Department is
not an “education program or activity” within the statute’s ambit. Alegria, 2007
WL 3256586, at *8 n.13 (Nov. 2, 2007); Alegria, 2007 WL 2688446, at *12 & n.35
(Sept. 11, 2007). The district court thus “[a]ssum[ed] without deciding” that

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Title IX applied and it granted the State summary judgment after assessing the
merits of plaintiff’s claim. Alegria, 2007 WL 3256586, at *8 (Nov. 2, 2007).
      On appeal, plaintiff has conceded that the probation program at issue is
not “education[al].” This concession was made explicitly by plaintiff’s counsel
during oral argument, and it is at least implicit in plaintiff’s opening and reply
briefs (as discussed below). The State vigorously pursued this contention in its
brief, Appellee Brief 13–14, and during its oral argument. Plaintiff has not
argued to the contrary or objected to the State’s appellate position on waiver or
other grounds. Reply Brief 3 (stating that the State’s jurisdictional argument
as to the scope of Title IX’s abrogation of its sovereign immunity “can be raised
at any stage of the proceeding”). But see Neinast v. Texas, 217 F.3d 275, 279 (5th
Cir. 2000) (in certain circumstances a State may waive its sovereign immunity
defense by failing to raise it). We also note that there is nothing in the record
to suggest that the Galveston County Community Supervision and Corrections
Department is an education program or activity for purposes of Title IX; the
evidence is to the contrary.     E.g., R. 248 (Kelly Aff.) (explaining that the
department is “charged with the supervision of persons sentenced to community
supervision”). We thus accept the parties’ mutual position on this issue.
      We also conclude that it is fatal to plaintiff’s Title IX claim. Title IX
unequivocally applies only to an “education program or activity receiving Federal
financial assistance.” 20 U.S.C. § 1681(a). Plaintiff has offered no support for
her suggestion that we can nonetheless extend its application to the Galveston
County Community Supervision and Corrections Department. Her efforts to this
end are unavailing. Plaintiff contends that “[t]hough most Title IX cases involve
education claims, the parameters of its scope have been broadly interpreted” and
that “[i]t logically follows . . . that a community supervision officer should not be
protected for activities which are proscribed by the statute.” Appellant Brief
34–36. She offers two arguments in support of this contention.

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      First, she suggests that The Civil Rights Restoration Act of 1987 (Pub. L.
No. 100–259, § 3(a), § 908, 102 Stat. 28, 28–29 (1988) (codified at 20 U.S.C.
§ 1687)), eliminated the “education” limitation of Title IX. She is mistaken. The
Act did expand the reach of federal funding for purposes of Title IX by defining
“program or activity” to include “‘all operations of . . . a department, agency,
special purpose district, or other instrumentality of a State or of a local
government . . . any part of which is extended federal financial assistance.’”
Reply Brief 3–4 (quoting 20 U.S.C. § 1687). However, it did nothing to alter Title
IX’s underlying requirement that the program or activity must be educational.
Plaintiff fails to point to any educational program implicated by this dispute (or
otherwise). The Civil Rights Restoration Act thus offers her no support.
      Second, plaintiff stresses that “‘Title IX was modeled after Title VI of the
Civil Rights Act of 1964.’” Reply Brief 9 (quoting Doe v. Smith, 470 F.3d 331,
338 (7th Cir. 2006)). From this fact, she reasons that Title IX’s “education”
requirement should be ignored in light of the requirement’s absence in the Title
VI context. This argument is without merit. Whatever similarities may be
shared by Title VI and Title IX, the statutes’ respective scopes reflect a
difference. Cannon v. Univ. of Chicago, 441 U.S. 677, 695 n.17 (1979) (“Although
Title IX is applicable only to certain educational institutions receiving federal
financial assistance, Title VI is applicable to additional institutions such as
hospitals, highway departments, and housing authorities.”). And while we have
endorsed the unremarkable proposition that “‘[b]ecause Title IX and Title VI use
the same language, they should, as a matter of statutory interpretation, be read
to require the same levels of protection and equality,’” this principle extends only
insofar as the statutes “use the same language.” Flowers v. S. Reg’l Physician
Servs., Inc., 247 F.3d 229, 233 n.4 (5th Cir. 2001) (considering claim under the
Americans With Disabilities Act and quoting Jeldness v. Pearce, 30 F.3d 1220,
1227 (9th Cir.1994)).

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       Because plaintiff has conceded that the Galveston County Community
Supervision and Corrections Department is not an education program or activity
within the meaning of Title IX, her claim against the State fails as a matter of
law.   On this basis alone, we affirm the district court’s grant of summary
judgment.
                                      III.
       Plaintiff’s §1983 claims for monetary damages against the State and its
officials are barred by the Eleventh Amendment. Her Title IX claim against the
State fails as a matter of law because, as she has conceded, the Galveston
County Community Supervision and Corrections Department is not an
“education program or activity” within the statute’s ambit. We thus affirm the
district court’s grant of summary judgment of these claims.
AFFIRMED.




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