     Case: 19-50515      Document: 00515207110         Page: 1    Date Filed: 11/20/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                   United States Court of Appeals

                                    No. 19-50515
                                                                            Fifth Circuit


                                  Summary Calendar
                                                                          FILED
                                                                  November 20, 2019
                                                                     Lyle W. Cayce
IRMA ROSAS,                                                               Clerk

              Plaintiff - Appellant

v.

UNIVERSITY OF TEXAS AT SAN ANTONIO, also known as UTSA;
UNIVERSITY OF TEXAS AT AUSTIN, also known as UT,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                            U.S.D.C. No. 5:18-CV-536


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       Proceeding pro se and in forma pauperis, Appellant Irma Rosas appeals
the district court’s dismissal of her Title VI, VII, and VIII and 42 U.S.C.
§§ 1983, 1985, and 1986 claims with prejudice. We AFFIRM the district court’s
judgment.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 19-50515       Document: 00515207110         Page: 2    Date Filed: 11/20/2019



                                       No. 19-50515
                                  I.    Background
       In June of 2018, 1 Rosas filed a complaint against the University of Texas
at San Antonio (“UTSA”), alleging that it “discriminated against her because
she identified as Chicana” in violation of 42 U.S.C. §§ 1983, 1985, and 1986.
Pursuant to 28 U.S.C. § 1915(e), a magistrate judge screened the complaint for
frivolousness and ordered Rosas to file a more definite statement of her claims.
Rosas filed an amended complaint against UTSA and the University of Texas
at Austin (“UT”), alleging violations of Titles VI and VIII of the Civil Rights
Act of 1964 and 42 U.S.C. §§ 1983, 1985, and 1986.
       UTSA moved to dismiss under Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6). Under Rule 12(b)(1), UTSA argued that the district court lacked
subject matter jurisdiction over the §§ 1983, 1985, and 1986 claims because
UTSA was entitled to sovereign immunity. Under Rule 12(b)(6), UTSA argued
that Rosas failed to state §§ 1983, 1985, and 1986 claims because the statute
of limitations had run. Additionally, UTSA contended that Rosas failed to
allege facts sufficient to support any of her claims. Rosas did not respond to
UTSA’s motion to dismiss.
       The magistrate judge reviewed UTSA’s motion to dismiss and
recommended that the district court grant the motion. Rosas objected to the
magistrate judge’s recommendations and moved to return the case to district
court, arguing that her Title VI claim was not subject to sovereign immunity.
UTSA responded, again arguing that Rosas’s claims were barred by sovereign
immunity and the statute of limitations. In her reply to the motion (“Reply”),
she claimed that she “suffered from mental illness” and could provide, at the




       1  Rosas’s first filings in the district court were on May 31, 2018, but her complaint
was filed on June 13, 2018.
                                             2
    Case: 19-50515      Document: 00515207110        Page: 3    Date Filed: 11/20/2019



                                     No. 19-50515
court’s request, “documentary evidence to [that] effect” to toll the statute of
limitations.
      The district court independently reviewed the motions before it.                It
liberally construed Rosas’s pro se complaint, which claimed a cause of action
under Title VIII of the Civil Rights Act of 1964, as instead alleging claims
under Title VII of the Civil Rights Act of 1964 and Title VIII of the Civil Rights
Act of 1968. The district court granted UTSA’s motion to dismiss, finding that
(1) it lacked subject matter jurisdiction over Rosas’s Title VIII and §§ 1983,
1985, and 1986 claims because those claims were barred by state sovereign
immunity, and (2) Rosas failed to state viable Title VI and VII claims because
they were, on their face, barred by the statute of limitations. 2         The district
court did not address Rosas’s Reply.
      Additionally, the district court sua sponte dismissed Rosas’s claims
against UT. Pursuant to Federal Rule of Civil Procedure 12(h)(3), the court
held that it lacked subject matter jurisdiction over Rosas’s Title VIII and
§§ 1983, 1985, and 1986 claims against UT because UT had sovereign
immunity. The court dismissed Rosas’s Title VI and VII claims against UT
under 28 U.S.C. § 1915(e)(2)(B)(ii) because Rosas made “no allegations
concerning any discrimination against her undertaken by UT.” Thus, the
district court dismissed all of Rosas’s claims with prejudice. Rosas timely
appealed.
                               II.    Jurisdiction
      For those claims not barred by sovereign immunity, the district court
had federal question jurisdiction under 28 U.S.C. § 1331.             This court has
jurisdiction over the appeal under 28 U.S.C. § 1291. Additionally, we always


      2   The district court also denied Rosas’s motion to return as moot because “[t]he
substance of the case was never properly before the Magistrate Judge.” Thus, the issues
raised about the magistrate judge’s recommendations are irrelevant here.
                                           3
    Case: 19-50515     Document: 00515207110       Page: 4   Date Filed: 11/20/2019



                                    No. 19-50515
have “jurisdiction to determine jurisdiction.” Cargill Ferrous Int’l. v. SEA
PHOENIX MV, 325 F.3d 695, 704 (5th Cir. 2003).
                             III.    Discussion
        Rosas appeals the district court’s dismissal of (1) her Title VI and VII
claims against UTSA under the statute of limitations; (2) her Title VIII and
§§ 1983, 1985, and 1986 claims against UTSA and UT under sovereign
immunity; and (3) her Title VI and VII claims against UT for failure to state a
claim.
   A.     Statute of Limitations
        Rosas does not contest the accrual dates for her Title VI and Title VII
claims, which the district court determined began on September 26, 2012, at
the latest. Thus, absent an exception or a tolling period, her claims are facially
barred by the statute of limitations, given her filing almost six years after the
statute ran. Rosas alleges that her claims should be equitably tolled under
Texas Civil Practice and Remedies Code § 16.001 and that the district court
“suppress[ed] . . . information” in her Reply, where she claimed to have
documentary evidence of mental illness that could toll the statute of
limitations. We liberally construe Rosas’s brief as arguing that the district
court erred by not allowing her to amend her complaint when she filed her
Reply. See Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008) (per curiam)
(stating that “pro se briefs are afforded liberal construction”); McGruder v.
Phelps, 608 F.2d 1023, 1025 (5th Cir. 1979) (holding “that the district judge
should have treated the [objections to a magistrate’s report] . . . , however
denominated, as an amendment to [the plaintiff’s] complaint or an addition in
the nature of an amendment”).
        We review the district court’s dismissal of a complaint without granting
leave to amend for abuse of discretion. See Brewster v. Dretke, 587 F.3d 764,
768 (5th Cir. 2009) (per curiam). “Generally, . . . a pro se litigant should be
                                         4
     Case: 19-50515       Document: 00515207110         Page: 5    Date Filed: 11/20/2019



                                      No. 19-50515
offered an opportunity to amend his complaint before it is dismissed.” Id. at
767–68. However, a district court acts within its discretion when it dismisses
a futile motion to amend. See Legate v. Livingston, 822 F.3d 207, 211 (5th Cir.
2016). “[A]n amendment is considered futile if it would fail to state a claim
upon which relief could be granted.” Id.
       Rosas alleges only that she was mentally incapacitated beginning in
January 2014 and thus could not file a complaint by September 26, 2014. 3
Section 16.001 applies only to Rosas’s Title VI claim because the state statute
of limitations provisions does not apply to Title VII claims. We “borrow” the
relevant state statute of limitations for statutes that do not set forth a
limitations period and where the claim in question was not “made possible by”
a post-1990 Congressional enactment. See Frazier v. Garrison I.S.D., 980 F.2d
1514, 1521–22 (5th Cir. 1993); cf. Jones v. R.R. Donnelley & Sons Co., 541 U.S.
369, 382 (2004) (explaining that 28 U.S.C. § 1658, a four-year statute, applies
to claims “made possible by” a post-1990 amendment). “In applying the forum
state’s statute of limitations,” we also give effect to the state’s tolling
provisions. See Smith v. Reg’l Transit Auth., 827 F.3d 412, 421 (5th Cir. 2016).
Although Title VI does not set forth a limitations period and the claim in
question was not “made possible by” a post-1990 Congressional enactment, see
Frazier, 980 F.2d at 1521, Title VII does set forth express deadlines that were
not met in this case. 42 U.S.C. § 2000e-5(e)(1). “A plaintiff may bring a claim
for discrimination under Title VII only if she has filed a claim with the [Equal
Employment Opportunity Commission (“EEOC”)] within 180 days of the


       3 Rosas alleges that the two-year statute of limitations ran until September 12, 2014.
However, the district court concluded that Rosas had until September 26, 2014, to file her
Title VI claim and until December 25, 2012, to file a charge of discrimination with the Equal
Employment Opportunity Commission related to her Title VII claim. Liberally construing
Rosas’s brief, we conclude that Rosas meant the September 26 date. These two weeks would
not affect the outcome here, in any event.
                                             5
     Case: 19-50515        Document: 00515207110          Page: 6     Date Filed: 11/20/2019



                                        No. 19-50515
alleged unlawful act, or within 300 days if the plaintiff first filed a complaint
with a state or local agency.” Ikossi-Anastasiou v. Bd. of Supervisors of La.
State Univ., 579 F.3d 546, 549 (5th Cir. 2009). The plaintiff then has 90 days
to bring a civil action in court following the receipt of a “right to sue” notice
from the EEOC. 42 U.S.C. § 2000e-5(f)(1). 4 Rosas did not file a claim with the
EEOC, state, or local agency. Thus, her Title VII claim is untimely.
       Moreover, Section 16.001 tolls the limitations period only “[i]f a person
entitled to bring a personal action is under a legal disability when the cause of
action accrues . . . .” TEX. CIV. PRAC. & REM. CODE ANN. § 16.001(b). “A
disability that arises after a limitations period starts does not suspend the
running of the period.” Id. § 16.001(d). Thus, we have held that a plaintiff’s
suit was barred by the statute of limitations where the plaintiff became a
person of unsound mind after the limitations period began. Roman v. A.H.
Robins Co., 518 F.2d 970, 972 (5th Cir. 1975) (per curiam). 5 Similarly, Rosas’s
Title VI claim cannot be tolled under § 16.001 because her alleged disability
did not begin until after the limitations period started. We hold that the
district court did not abuse its discretion in denying Rosas an opportunity to


       4   The Supreme Court recently ruled that these deadlines are not jurisdictional, so
they can be waived. Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1850–51 (2019). UTSA raised
a statute of limitations argument to all claims in its motion to dismiss. Rosas’s complaint
had not explicitly raised a Title VII claim, but the district court chose to liberally construe
her complaint as raising a Title VII claim when issuing its decision. Thus, it also addressed
UTSA’s limitations defense as applied to Rosas’s Title VII claim, analyzing Rosas’s failure to
timely (or at all) file a claim with the EEOC. On appeal, UTSA continued to argue that the
statute of limitations barred Rosas’s Title VII claim because she failed to file a claim with the
EEOC. Cf. United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (holding that
arguments not raised on appeal are waived). Thus, UTSA did not waive this issue, and Rosas
does not argue otherwise.
       5 TEX. CIV. PRAC. & REM. CODE ANN. § 16.001 succeeded TEX. REV. CIV. STAT. ANN.
art. 5535, the statute of limitations provision at issue in Roman. See Ali v. Higgs, 892 F.2d
438, 439 (5th Cir. 1990). In replacing art. 5535 with § 16.001, the state legislature only
“delete[d] imprisonment as a disability in regard to the running of limitations” and did not
amend how a disability may toll the limitations period. Id.
                                               6
     Case: 19-50515      Document: 00515207110        Page: 7     Date Filed: 11/20/2019



                                     No. 19-50515
amend her complaint with documentary evidence of mental illness. We also
affirm the determination that these claims are barred by the statute of
limitations.
   B.       Sovereign Immunity
        Rosas also argues that her Title VIII and §§ 1983, 1985, and 1986 claims
against UTSA and UT are not barred by sovereign immunity. We review a
district court’s dismissal for lack of subject matter jurisdiction de novo. Raj v.
La. State Univ., 714 F.3d 322, 327 (5th Cir. 2013).
        Congress may abrogate state sovereign immunity for conduct that
actually violates the Fourteenth Amendment. 6              United States v. Georgia,
546 U.S. 151, 158–59 (2006); see also Moore v. La. Bd. of Elementary and
Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014). Congress did not abrogate
state sovereign immunity for Title VIII or §§ 1983, 1985, or 1986 claims.
McCardell v. U.S. Dep’t of Hous. and Urban Dev., 794 F.3d 510, 522 (5th Cir.
2015) (holding that Congress did not abrogate state sovereign immunity from
suits brought under Title VIII); Affiliated Prof’l Home Health Care Agency v.
Shalala, 164 F.3d 282, 286 (5th Cir. 1999) (per curiam) (holding that Congress
did not abrogate state sovereign immunity from suits brought under §§ 1983,
1985, and 1986).
        Although Rosas points to Fisher v. University of Texas at Austin, 570 U.S.
297 (2013), and Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016),
as support that her claims are not barred by sovereign immunity, her reliance
on the Fisher cases is misplaced. UT did not raise sovereign immunity as a


        6As Texas agencies, UTSA and UT are entitled to sovereign immunity. See U.S. Oil
Recovery Site Potential Responsible Parties Grp. v. R.R. Comm’n of Tex., 898 F.3d 497, 501–
02 (5th Cir. 2018). In addition to Congress abrogating sovereign immunity, states may also
waive it. See Moore v. La. Bd. of Elementary and Secondary Educ., 743 F.3d 959, 963 (5th
Cir. 2014). However, neither UTSA nor UT has waived immunity, and Rosas does not claim
that they have.
                                            7
    Case: 19-50515      Document: 00515207110        Page: 8    Date Filed: 11/20/2019



                                    No. 19-50515
defense in the Fisher cases, and the Supreme Court did not address this issue. 7
See Adam D. Chandler, How (Not) To Bring an Affirmative-Action Challenge,
122 YALE L.J. ONLINE 85, 91–92 (2012). We hold that Rosas’s Title VIII and
§§ 1983, 1985, and 1986 claims against UTSA and UT are barred by sovereign
immunity, and we affirm the district court’s dismissal of those claims.
   C.       Claims Against UT
        Rosas contests the district court’s finding that she “ma[de] no allegations
concerning any discrimination against her undertaken by UT[.]” She states
that UT contacted UTSA after receiving complaints about her and that UTSA
then used that information against her. Under 28 U.S.C. § 1915(e)(2)(B)(ii), a
court “shall dismiss [a] case at any time if [it] determines that the action or
appeal fails to state a claim on which relief may be granted[.]” Applying the
same standard as that under Federal Rule of Civil Procedure 12(b)(6), we
review the dismissal de novo and will uphold a dismissal if, “taking the
plaintiff’s allegations as true, it appears that no relief could be granted based
on the plaintiff’s alleged facts.” Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir.
1999) (per curiam).
        To state a claim under Title VI or Title VII, a plaintiff must prove that
the defendant acted in an intentionally discriminatory manner. Canutillo
Indep. Sch. Dist. v. Leija, 101 F.3d 393, 397 (5th Cir. 1996) (stating that “a
Title VI plaintiff must prove discriminatory intent”); Chhim v. Univ. of Tex. at
Austin, 836 F.3d 467, 470 (5th Cir. 2016) (per curiam) (stating that a Title VII
plaintiff must “plead sufficient facts on all of the ultimate elements of a
disparate treatment claim”). Rosas did not allege any facts showing that UT’s
actions were motivated by discrimination. Even if she had, her Title VI and


        7Nevertheless, the Supreme Court inarguably had subject matter jurisdiction over
Fisher’s Title VI claim against UT. See Adam D. Chandler, How (Not) To Bring an
Affirmative-Action Challenge, 122 YALE L.J. ONLINE 85, 92 (2012).
                                           8
    Case: 19-50515    Document: 00515207110      Page: 9   Date Filed: 11/20/2019



                                  No. 19-50515
VII claims against UT would be barred by the statute of limitations as
discussed above. See LLEH, Inc. v. Wichita Cty., 289 F.3d 358, 364 (5th Cir.
2002) (“We may affirm for reasons other than those relied upon by the district
court.”) (brackets omitted). Thus, the district court did not err in dismissing
Rosas’s Title VI and VII claims against UT.
                            IV.    Conclusion
      For the foregoing reasons, we AFFIRM the district court’s dismissal of
Rosas’s claims with prejudice.




                                       9
