ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

November 19, 2007

The Honorable Denny Chin
United States District Judge
Daniel Patrick Moynihan
United States Courthouse
500 Pearl Street, Room 1020
New York, New York 10007

Sloan v. Truong, et al., No. 07 CV 8537 (DC)

Dear Judge Chin:

I represent defendant Texas Tech University ("TTU") in the above-
captioned lawsuit. This letter is written to apprise the Court of my
anticipated motion to dismiss the case against TTU pursuant to Fed. R.
Civ. P. 12(b)(1) and 12(b)(6), and to request a pre-motion conference
pursuant to the Court's Individual Practice 2(A).

I intend to move to dismiss the case both for four reasons:

1. Plaintiff alleges no specific cause of action against Texas Tech
University.

2. Texas Tech University has 11th Amendment immunity from Plaintiffs §
1983 claim.

3. Texas Tech University is not a person within the meaning of § 1983.

4. Texas Tech University is immune from suit under 47 U.S.C. § 230.

As a threshold requirement, the Complaint does not explain what, if
anything, is the basis for Sloan's claim against TTU. Plaintiff
presents five (5) causes of action, and in none of these is any
wrongdoing by TTU identified. Plaintiffs claim against TTU is that TTU
owned computers from which allegedly defamatory material was sent.
This is not described in any of the causes of action. Defamation, by
itself, is not typically a federal cause of action, but in conjunction
with a showing of additional protected interests, it can be. When
those instances occur, the proper vehicle for relief is 42 U.S.C. §
1983. While TTU does not believe that any of these additional
protected interests are involved in this lawsuit, even if the court
decides that they were, Plaintiff presents an action under 42 U.S.C. §
1983.

If the Plaintiff has sufficient facts pled that this Court believes
Plaintiff has articulated a § 1983 claim, TTU has immunity under the
11th Amendment to the United States constitution. The Eleventh
Amendment deprives a federal court of jurisdiction to hear a suit
against the State of Texas, regardless of the relief sought, unless
sovereign immunity is expressly waived. Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 100-02,104 S.Ct 900, 908-09 (1984); Edelman
v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355-56 (1974). State
universities are afforded Eleventh Amendment immunity as a matter of
law. See Dube v. State University of New York, 900 F.2d 587, 594 (2d
Cir.1990). Section 1983 does not abrogate a state's Eleventh Amendment
immunity and there has been no waiver for § 1983 claims on the part of
the State. See Quern v. Jordan, 440 U.S. 332 (1979). Nor has Texas
waived its immunity to suit in federal court under constitutional tort
statutes such as §§ 1981, 1983, 1985 and 1986. See e.g., Aguilar v.
Texas Dept. of Crim. Justice, Inst. Div., 160 F.3d 1052, 1054 (5th
Cir. 1998), cert. denied, 120 S.Ct. 130 (1999).

Plaintiff may not recover in an action against TTU even if he can
prove a waiver of Eleventh Amendment immunity for § 1983 claims,
because TTU is not a "person" within the meaning of § 1983. See, e.g.,
Na(-,r v. Melo, 502 U.S. 21, 22-23, 112 S.Ct. 358, 360 (1991); Will v.
Michigan Dept. Of State Police, 491 U.S. 58, 71,109 S.Ct. 2304, 2312
(1989); Pennhurst, 465 U.S. at 101, 104 S.Ct. at 908-09.

Although TTU specifically denies that any alleged defamatory messages
in this case were sent from any TTU computer, even if such messages
were sent from a TTU computer, any potential claim by Plaintiff
against TTU in this case is barred by the Communications Decency Act
of 1996 ("CDA"), 47 U.S.C. § 230, et seq. Section 230 provides that
"[n]o provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by
another information content provider," § 230(c)(1), and that "[n]o
cause of action may be brought and no liability may be imposed under
any State or local law that is inconsistent with this section," id. §
230(e)(3). By its plain language, § 230 creates a federal immunity to
any cause of action that would make service providers liable for
information originating with a third party user of the service. See
Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir.1997).
Specifically, § 230 precludes courts from entertaining claims that
would place a computer service provider in a publisher's role. Zeran
at 330. The Zeran quotation, in context, refers to defamation and
other forms of tort liability. Gucci Am.. Inc. at 415.

In the instant case, TTU operates only in the role of an interactive
computer service. § 230 (f)(2) defines "Interactive computer service"
as:

The term "interactive computer service" means any information service,
system, or access software provider that provides or enables computer
access by multiple users to a computer server, including specifically
a service or system that provides access to the Internet and such
systems operated or services offered by libraries or educational
institutions.

Clearly in this case, the allegation that TTU allowed other Defendants
to use TTU computers puts TTU in the role of an interactive computer
service. Consequently, under Zeran and the other authority cited
supra, TTU is immune from the claims of this suit, and is entitled to
dismissal.

I believe that these arguments compel the dismissal of the case
against Texas Tech University under Rule 12(b)(1) and 12(b)(6), FED.
R. C1v. P., and request that the Court schedule a pre-motion
conference. Please contact me at (512) 463-2120, to schedule the pre-
motion conference.

Respectfully submitted,

SCOT M. GRAYDON

Assistant Attorney General
General Litigation Division

cc: Samuel H. Sloan
Jeremy Brown, Esq.
Patrick M. O'Brien, Esq.
Client

POST OFFICE Box 12548, AUSTIN, TEXAS 78711-2548 TEL: (512)463-2100
WEB: WWW.OAG.STATE. TX.US
An Equal Employment Opportunity Employer -Printed on Recycled Paper

POST OFFICE BOX 12548, AUSTIN, TEXAS 7871 1-2548 TEL: (512)463-2100
WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer Printed on Recycled Paper
The Honorable Denny Chin November 19, 2007 Page Two (2)

http://www.samsloan.com/texas-ag.pdf