Hebrew v. Gonzalez ( 2022 )

Case: 21-20585 Document: 00516305601 Page: 1 Date Filed: 05/03/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 3, 2022
No. 21-20585
Lyle W. Cayce
Summary Calendar
Clerk
Elimelech Shmi Hebrew,
Plaintiff—Appellant,
versus
Ed Gonzalez, Harris County Sheriff; Thomas Pasket;
Harris County Sheriff's Office; Mariel Rosario,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CV-3679
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant (Plaintiff) Elimelech Schmi Hebrew filed a pro se
complaint against Defendants-Appellants (Defendants) Ed Gonzalez,
Thomas Pasket, Mariel Rosario, and the Harris County Sherriff’s Office.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-20585 Document: 00516305601 Page: 2 Date Filed: 05/03/2022
No. 21-20585
Plaintiff alleged that Defendants discriminated against him on the basis of his
religion, in violation Title VII of the Civil Rights Act of 1964. After the parties
consented to having a magistrate judge hear the case and enter judgment,
Defendants moved to dismiss under Federal Rule of Civil Procedure
12(b)(6). The magistrate judge granted the motions, explaining that
individuals cannot be held liable under Title VII and that the Harris County
Sherriff’s office is not a legal entity with the capacity to be sued. laintiff
appealed.
“Appellate courts conduct a de novo review of a district court’s
dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6).”
Inclusive Communities Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 899 (5th
Cir. 2019). “Rule 12(b)(6) authorizes the filing of motions to dismiss
asserting, as a defense, a plaintiff’s ‘failure to state a claim upon which relief
can be granted.’ Thus, claims may be dismissed under Rule 12(b)(6) ‘on the
basis of a dispositive issue of law.’” Id. (citations omitted).
As the magistrate judge observed, “[i]ndividuals are not liable under
Title VII in either their individual or official capacities.” Ackel v. Nat’l
Commc’ns, Inc., 339 F.3d 376, 381 n.1 (5th Cir. 2003). Accordingly, the
magistrate judge correctly dismissed Plaintiff’s suit against Gonzalez, Pasket,
and Rosario.
The magistrate judge also correctly observed that in order for a
plaintiff to sue a city or county department, the department “must ‘enjoy a
separate legal existence.’” Darby v. Pasadena Police Dep’t, 939 F.2d 311, 313
(5th Cir. 1991) (citation omitted); see also id. (“[U]nless the true political
entity has taken explicit steps to grant the servient agency with jural
authority, the agency cannot engage in any litigation except in concert with
the government itself.”); Fed. R. Civ. P. 17(b) (providing that an entity’s
capacity to sue and be sued is determined under state law). On appeal,
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Case: 21-20585 Document: 00516305601 Page: 3 Date Filed: 05/03/2022
No. 21-20585
Plaintiff does not challenge the magistrate judge’s finding that “the Harris
County Sheriff’s Office is not a legal entity and, therefore, lacks the legal
capacity to sue or be sued.” See also Gragert v. Harris Cty., No. 4:09-CV-
2063, 2010 WL 11538411, at *4 (S.D. Tex. Aug. 11, 2010) (“[T]he Harris
County Sheriff's Office is not a legal entity under Rule 17(b) and therefore,
lacks the legal existence and capacity to be sued for the violations alleged.”).
Because Plaintiff “has failed to show that [Harris County] ever granted its
[sheriff’s] department the capacity to engage in separate litigation,” the
magistrate judge correctly dismissed Plaintiff’s suit against the Harris
County Sheriff’s Office. See Darby, 939 F.2d at 314.
For the foregoing reasons, the judgment of the magistrate judge is
AFFIRMED.
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