     Case: 18-11461      Document: 00514993112         Page: 1    Date Filed: 06/12/2019




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

                                    No. 18-11461                            FILED
                                  Summary Calendar                      June 12, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
BILLY ROY HIGH, JR.,

              Plaintiff – Appellant,

v.

VISTASP KARBHARI, President, University of Texas at Arlington;
ELISABETH CAWTHON, Dean, College of Liberal Arts; KENT KERLEY,
Department Chair, Department of Criminology and Criminal Justice,

              Defendants – Appellees.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:17-CV-841


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
       A former graduate student at the University of Texas at Arlington filed
suit against three university officials, alleging various statutory and
constitutional violations. The district court granted the university’s motion to




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 18-11461
dismiss based on lack of standing, sovereign immunity, and failure to state a
claim. We AFFIRM.
                                              I.
       Billy High, Jr. enrolled in the Criminology and Criminal Justice
graduate program at UT Arlington in the spring of 2014. High alleges that
throughout his time in the program, the university discriminated against him
on the basis of age, color, gender, sexual orientation, and disability. He also
alleges, inter alia, that the university refused to provide him reasonable
accommodations for his disability and denied him access to his academic
records and that several faculty members gave him incorrect information about
course requirements.
       In March 2017, High filed a complaint with the Board of Regents of the
University of Texas about these issues. The Board forwarded the complaint to
UT Arlington’s Office of University Compliance and Legal Affairs (Legal
Affairs) for review. Two months later, High notified the President of UT
Arlington, Vistasp Karbhari, of the same issues. Karbhari also routed the
information to Legal Affairs and asked the director of that office to investigate
the complaint. While the investigation was pending, High was dismissed from
the Criminology and Criminal Justice graduate program. 1 Shortly afterward,
Legal Affairs dismissed his complaint, having concluded that no discrimination
had occurred.
       High filed suit against Karbhari; the Dean of the College of Liberal Arts,
Elisabeth Cawthon; and the Chair of the Department of Criminology and
Criminal Justice, Kent Kerley. The live pleadings in the case assert various



       1 UT Arlington’s brief explains that High was dismissed for failing to meet the
minimum grade point average requirements for the program. High’s complaint notes that
his dismissal came shortly after he received a poor grade in a course, but it does not cite his
GPA as the reason for his dismissal.
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                                    No. 18-11461
statutory and constitutional civil rights claims based on three sets of facts:
(1) the discrimination and other misconduct that High alleged in the complaint
he filed with the university; (2) Legal Affairs’ alleged mishandling of that
complaint; and (3) High’s dismissal from the graduate program. High requests
various forms of relief, including the removal of the “dismissed” designation
from his transcript, grade changes, access to his full educational record, and
$150,000 in damages.
      Karbhari, Cawthon, and Kerley filed a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6), arguing that High lacks standing, that some
of his claims are barred by sovereign immunity, and that he failed to state any
cognizable claim upon which relief could be granted.          High then filed an
amended complaint, which the district court struck due to High’s failure to
obtain consent from the defendants or leave from the court. In October 2018,
the district court dismissed High’s claims with prejudice for the reasons set out
in the defendants’ motion to dismiss. High now appeals.
                                        II.
      We review a district court’s dismissal under Rule 12(b)(1) for lack of
subject matter jurisdiction de novo. Meyers ex rel. Benzing v. Texas, 410 F.3d
236, 240 (5th Cir. 2005). Dismissal on this basis is appropriate if the plaintiff
lacks standing or if the claims asserted are barred by a state’s sovereign
immunity. Little v. KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009); Meyers, 410
F.3d at 240. When a Rule 12(b)(1) challenge is raised alongside other Rule 12
challenges, the court should address the Rule 12(b)(1) issues before reaching
the merits. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
      A Rule 12(b)(6) dismissal for failure to state a claim is also reviewed de
novo. Raj v. La. State Univ., 714 F.3d 322, 329–30 (5th Cir. 2013). We accept
the well-pleaded facts in the complaint as true and view them in the light most
favorable to the plaintiff.   Id.    While “pro se complaints are held to less
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stringent standards than formal pleadings drafted by lawyers,” conclusory
allegations will not defeat a motion to dismiss. Taylor v. Books A Million, Inc.,
296 F.3d 376, 378 (5th Cir. 2002). A district court may properly dismiss a claim
when the plaintiff has not alleged any set of facts that would plausibly entitle
him to relief. Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (plaintiff
must plead facts that “allow[] the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged”).
                                             III.
       Liberally construed, High’s brief on appeal challenges all three of the
district court’s grounds for dismissing his claims: (1) that he lacks standing to
sue; (2) that state sovereign immunity bars at least some of his claims; and
(3) that any remaining claims are not adequately alleged. 2
                                              A.
       To establish standing, “the plaintiff must demonstrate injury in fact that
is fairly traceable to the defendant’s conduct and that would be redressed by a
favorable judicial decision.” NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 396
(5th Cir. 2015). The party seeking to invoke federal jurisdiction bears the
burden of establishing these elements. Little, 575 F.3d at 540. “At the pleading
stage, allegations of injury are liberally construed,” but allegations of
conjectural or hypothetical injury are not sufficient to establish standing. Id.
(citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344–46, 350 (2006)).
Importantly, if “the injury’s existence depends on the decisions of third parties
not before the court,” it is conjectural or hypothetical and does not establish
standing. Id.


       2  High also complains that Assistant Attorney General Dominique Stafford, who
appeared on behalf of the defendants, is not properly admitted before the Northern District
of Texas. However, pursuant to the local rules in the Northern District of Texas, “an attorney
appearing on behalf of . . . the Attorney General of the State of Texas” who is otherwise
eligible to appear is exempt from applying for admission pro hac vice. N.D. Tex. Civ. R. 83.11.
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      In his brief on appeal, High emphasizes that he has sued Karbhari,
Cawthon, and Kerley in their individual capacities as well as their official
capacities. To have standing to proceed against these defendants individually,
High was required to allege facts tending to establish that his injuries are
fairly traceable to misconduct engaged in by these specific defendants. See
NiGen Biotech, 804 F.3d at 396; see also Lujan v. Defenders of Wildlife, 504
U.S. 555, 560–61 (1992). High’s pleadings do not mention either Cawthon or
Kerley by name, so he has failed to adequately plead that he has standing to
sue these individuals. In addition, the only specific allegation High directs at
Karbhari is that Karbhari “assigned the investigation of [High’s] complaint to
the Director of [Legal Affairs].” High does not explain how this act is “fairly
traceable” to any of his alleged injuries.       Instead, the attachment to his
complaint makes clear that the existence of the injuries he complains of
“depends on the decisions of third parties not before the court,” such as his
professors and other university employees.            Little, 575 F.3d at 540.
Accordingly, the district court did not err in finding that High “fail[ed] to allege
any facts tending to demonstrate that he has standing to sue” Karbhari,
Cawthon, and Kerley individually. High’s claims against the defendants in
their individual capacities were properly dismissed.
                                        B.
      High has also sued Karbhari, Cawthon, and Kerley in their official
capacities as representatives of UT Arlington. Because UT Arlington is a state
university, High’s suit is thus treated as a suit against the State of Texas and
is therefore subject to the bar of state sovereign immunity. See Nelson v. Univ.
of Tex. at Dallas, 535 F.3d 318, 320 (5th Cir. 2008). “Federal courts are without
jurisdiction over suits against a state, a state agency, or a state official in his
official capacity unless that state has waived its sovereign immunity or
Congress has clearly abrogated it.”          NiGen Biotech, 804 F.3d at 393–94
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(quoting Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 963
(5th Cir. 2014)); see also U.S. Const. amend. XI.
      In his pleadings, High attempts to state claims under an array of federal
and state statutes and constitutional provisions, including the Fourth and
Fourteenth Amendments to the U.S. Constitution, the Americans with
Disabilities Act, the Family Educational Rights and Privacy Act, 42 U.S.C.
§ 1985, the Texas Education Code, and the Texas Penal Code. As the district
court explained, High fails to plead facts indicating that his claims are not
barred by sovereign immunity: he does not assert that the State of Texas has
waived immunity from liability, nor does he state that Congress has expressly
abrogated it. See NiGen Biotech, 804 F.3d at 393–94. Accordingly, High’s
claims are barred by sovereign immunity.
                                       C.
      To the extent High has alleged other claims not disposed of by our
conclusions above, we agree that they are inadequately pleaded for the reasons
set out by the district court. High has not pleaded any set of facts that would
plausibly entitle him to relief or “allow[] the court to draw the reasonable
inference that the defendant[s are] liable for the misconduct alleged.” See
Iqbal, 556 U.S. at 678. Thus, the district court did not err in dismissing High’s
claims under Rule 12(b)(6).
                                      IV.
      For the reasons described, we AFFIRM the district court’s judgment of
dismissal.




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