Zimmer v. Estrada et al

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KEVIN ZIMMER, 	§
§
Plaintiff, 	§
§
V. 	§ 	No. 3:24-cv-2505-G-BN
§
HEATHER ESTRADA, ET AL., 	§
§
Defendants. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Love Field is an airport owned by the City of Dallas. Plaintiff Kevin Zimmer,
who alleges that he was diagnosed with autism as a child, was a volunteer at Love
Field through the Love Helpers Volunteer Program. Zimmer filed this lawsuit pro se
alleging that City employees removed him from the Love Helpers program and
revoked his Love Field airport identification associated with that program in violation
of the Fourteenth Amendment to the United States Constitution, Title II of the
Americans with Disabilities Act (“Title II” or the “ADA”), 42 U.S.C. § 12131 et seq.,
and Section 504 of the Rehabilitation Act of 1973 (“Section 504” or the “RA”), 29
U.S.C. § 701 et seq. Zimmer also brings state law tort claims.
Senior United States District Judge A. Joe Fish referred Zimmer’s lawsuit to
the undersigned United States magistrate judge for pretrial management under 28
U.S.C. § 636(b) and a standing order of reference.
Defendants Heather Estrada, Michael Turner, and Courtly Parker moved to
dismiss Zimmer’s original complaint under Federal Rule of Civil Procedure 12(b)(6).
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See Dkt. No. 12.
Zimmer responded by filing a timely first amended complaint against the
individual defendants and added as a defendant the City of Dallas. See Dkt. No. 17;
FED . R. CIV. P. 15(a)(1)(B).
The City and the individual defendants then moved to dismiss the first
amended complaint under Rule 12(b)(6). See Dkt. Nos. 23-26. And the parties have
briefed those motions. See Dkt. Nos. 27-31.
For the following reasons, the undersigned now recommends that the Court
grant the motions to dismiss, and – because Zimmer has demonstrated that he has
pleaded his “best case” by filing an amended complaint in response to motions to
dismiss – the Court should dismiss this lawsuit with prejudice.
Legal Standards
Considering a motion under Rule 12(b)(6), the Court “accepts all well-pleaded
facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205-06 (5th Cir. 2007).
Even so, a plaintiff must plead “enough facts to state a claim to relief that is
plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and must
plead those facts with enough specificity “to raise a right to relief above the
speculative level,” id. at 555.
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); cf. Bryant v. Ditech
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Fin., L.L.C., No. 23-10416, 2024 WL 890122, at *3 (5th Cir. Mar. 1, 2024) (“[J]ust as
plaintiffs cannot state a claim using speculation, defendants cannot defeat plausible
inferences using speculation.”).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556
U.S. at 678.
So, “[w]here a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of
entitlement to relief.” Id. (cleaned up; quoting Twombly, 550 U.S. at 557); see, e.g.,
Parker v. Landry, 935 F.3d 9, 17 (1st Cir. 2019) (Where “a complaint reveals random
puffs of smoke but nothing resembling real signs of fire, the plausibility standard is
not satisfied.”).
And, while Federal Rule of Civil Procedure 8(a)(2) does not mandate detailed
factual allegations, it does require that a plaintiff allege more than labels and
conclusions, and, so, while a court must accept a plaintiff’s factual allegations as true,
it is “not bound to accept as true a legal conclusion couched as a factual allegation.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Consequently, a threadbare or formulaic recitation of the elements of a cause
of 	action, 	supported 	by 	mere 	conclusory 	statements, 	will 	not 	suffice. 	See 	id.;
Armstrong v. Ashley, 60 F.4th 262, 269 (5th Cir. 2023) (“[T]he court does not ‘presume
true a number of categories of statements, including legal conclusions; mere labels;
threadbare recitals of the elements of a cause of action; conclusory statements; and
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naked assertions devoid of further factual enhancement.’” (quoting Harmon v. City of
Arlington, Tex., 16 F.4th 1159, 1162-63 (5th Cir. 2021))).
And, so, “to survive a motion to dismiss” under Twombly and Iqbal, plaintiffs
must “plead facts sufficient to show” that the claims asserted have “substantive
plausibility” by stating “simply, concisely, and directly events” that they contend
entitle them to relief. Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014) (per
curiam) (citing FED . R. CIV. P. 8(a)(2)-(3), (d)(1), (e)); cf. Brown v. Tarrant Cnty., Tex.,
985 F.3d 489, 494 (5th Cir. 2021) (While “[p]ro se complaints receive a ‘liberal
construction,’” “mere conclusory allegations on a critical issue are insufficient.”
(cleaned up)).
Aside from “matters of which judicial notice may be taken under Federal Rule
of Evidence 201,” Inclusive Communities Project, Inc. v. Lincoln Prop. Co., 920 F.3d
890, 900 (5th Cir. 2019) (citations omitted), a court cannot look beyond the pleadings
in deciding a Rule 12(b)(6) motion, see Spivey v. Robertson, 197 F.3d 772, 774 (5th
Cir. 1999); see also Basic Capital Mgmt., Inc. v. Dynex Capital, Inc., 976 F.3d 585,
589 (5th Cir. 2020) (Federal Rule of Evidence 201(d) “expressly provides that a court
‘may take judicial notice at any stage of the proceeding,’ and our precedents confirm
judicially noticed facts may be considered in ruling on a 12(b)(6) motion.” (citations
omitted)).
But 	pleadings 	in 	the 	Rule 	12(b)(6) 	context 	include 	attachments 	to 	the
complaint. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007); see
also Gill as Next Friend of K.C.R. v. Judd, 941 F.3d 504, 511 (11th Cir. 2019) (“The
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Civil Rules provide that an attachment to a complaint generally becomes ‘part of the
pleading for all purposes,’ including for ruling on a motion to dismiss.” (quoting FED .
R. CIV. P. 10(c); citations omitted)).
And, “[w]hen an allegation is contradicted by the contents of an exhibit
attached to the pleading,” “the exhibit and not the allegation controls.” Rogers v. City
of Yoakrum, 660 F. App’x 279, 285 n.6 (5th Cir. 2016) (per curiam) (cleaned up;
quoting United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 377
(5th Cir. 2004) (citing Simmons v. Peavy-Welsh Lumber Co., 113 F.2d 812, 813 (5th
Cir. 1940))).
Analysis
I. 	The Court should dismiss Zimmer’s claims under the ADA and Section 504.
Starting with the disability discrimination claims, “[t]he ADA is a broad
mandate of comprehensive character and sweeping purpose intended to eliminate
discrimination against disabled individuals and to integrate them into the economic
and social mainstream of American life.” Clark v. Dep’t of Pub. Safety, 63 F.4th 466,
470 (5th Cir. 2023) (per curiam) (quoting Frame v. City of Arlington, 657 F.3d 215,
223 (5th Cir. 2011)); see, e.g., Luke v. Texas, 46 F.4th 301, 304 (5th Cir. 2022) (“The
question is whether denying a deaf defendant an interpreter during his criminal
proceedings violates the Americans with Disabilities Act. The answer is yes.”).
The focus of Title II of the ADA is the provision of public services. Title
II provides that “no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
Likewise, Section 504 of the Rehabilitation Act prohibits disability
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discrimination by recipients of federal funding. Section 504 provides
that no qualified individual with a disability “shall, solely by reason of
her or his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
Clark, 63 F.4th at 470.
Where claims are made under both Title II and Section 504, courts typically
“focus on Title II,” applying that analysis to the Section 504 claim, since the ADA and
the RA “‘generally are interpreted in pari materia.’” Id. (quoting Frame, 657 F.3d at
223); see also Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 287-88 & n.76 (5th Cir.
2005) (en banc) (“This circuit, as well as others, has noted that, because the rights
and remedies under both statutes are the same, case law interpreting one statute can
be applied to the other.” (citations omitted)); J.W. v. Paley, 81 F.4th 440, 449 (5th Cir.
2023) (“The only material difference between [Section 504 and Title II of the ADA]
lies in their respective causation requirements’” – while Section 504 “requires that
the plaintiff’s disability be the ‘sole reason’ for the exclusion or denial of benefits, the
ADA’s standard is less stringent.”).
To plausibly allege a Title II violation, Zimmer must provide factual content to
show – or from which the Court may infer –
“(1) that he is a qualified individual within the meaning of the ADA; (2)
that he is being excluded from participation in, or being denied benefits
of, services, programs, or activities for which the public entity is
responsible, or is otherwise being discriminated against by the public
entity; and (3) that such exclusion, denial of benefits, or discrimination
is by reason of his disability.”
Windham v. Harris Cnty., Tex., 875 F.3d 229, 235 (5th Cir. 2017) (quoting Melton v.
Dall. Area Rapid Transit, 391 F.3d 669, 671-72 (5th Cir. 2004)); accord T.O. v. Fort
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Bend Indep. Sch. Dist., 2 F.4th 407, 417 (5th Cir. 2021).
In the related context of employment discrimination claims under Title I of the
ADA, when a court applies Rule 12(b)(6)’s standards, the complaint “need not contain
specific facts establishing a prima facie case of discrimination under the framework
set forth ... in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Norsworthy
v. Hous. Indep. Sch. Dist., 70 F.4th 332, 336 (5th Cir. 2023) (cleaned up); accord
Hamilton v. Dall. Cnty., 79 F.4th 494, 502 n.45 (5th Cir. 2023) (en banc); see also, e.g.,
S.B. on behalf of S.B. v. Jefferson Par. Sch. Bd., No. 22-30139, 2023 WL 3723625, at
*3 (5th Cir. May 30, 2023) (per curiam) (“To be sure, we have held that a plaintiff
need not allege a comparator at the pleading stage in order to advance her
discrimination claims under the ADA and § 504.” (citing Pickett v. Texas Tech Univ.
Health Scis. Ctr., 37 F.4th 1013, 1019 (5th Cir. 2022))).
“But a plaintiff is still required to plead sufficient facts on all of the ultimate
elements of [each] claim.” Norsworthy, 70 F.4th at 336 (cleaned up; emphasis in
original); see, e.g., T.O., 2 F.4th at 417 (“The trouble is that none of the factual
allegations contained in the complaint permit the inference that T.O. was ever
discriminated against because of his disability.”); Nelson v. Collins, 765 F. App’x 75,
75-76 (5th Cir. 2019) (per curiam) (affirming dismissal of an ADA Title II claim where
the plaintiff’s “allegations [did] not set forth facts supporting a claim that he was
discriminated against in any way because of his disability”).
Defendants do not challenge the first two ultimate elements. But they do assert
that Zimmer has not plausibly alleged that his removal from the Love Helpers
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program and the associated loss of his airport identification were because of his
autism.
As to this element, “[a]t this stage, [Zimmer] must plead facts making it
plausible that he was discriminated against because of – but not necessarily solely
because of – his disability.” S.B., 2023 WL 3723625, at *3 (cleaned up; quoting
Olivarez v. T-Mobile USA, Inc., 997 F.3d 595, 601 (5th Cir. 2021) (quoting Cicalese v.
Univ. of Tex. Med. Branch, 924 F.3d 762, 767 (5th Cir. 2019))); see also Stankevich v.
Miss. Coll. Sch. of Law, No. 24-60087, 2024 WL 4056610, at *2 (5th Cir. Sept. 5, 2024)
(per curiam) (“To be sure, [a plaintiff’s] disability need not have been [the] ‘sole’
motivation,” “[b]ut it still must have been a ‘motivating factor.’” (quoting Pinkerton v.
Spellings, 529 F.3d 513, 519 (5th Cir. 2008) (per curiam))).
As Defendants explain,
Plaintiff does not allege that anyone at the City was aware of his
disability. Instead, he avers that the City’s employees were motivated
by a desire to punish behavior they viewed as “odd.” (ECF No. 17 ¶¶ 10-
11). In fact, Plaintiff affirmatively pleads that Heather Estrada “was
able to tell that Plaintiff was odd and socially awkward. Harboring
disdain for people with such characteristics, Defendant Estrada was cold
to Plaintiff in her interactions with him.” (ECF No. 17 ¶ 10). This
allegation does not equate to animus based on disability, as appearing
“odd” is neither a disability nor a trait that is unique to persons with
disabilities. Plaintiff further pleads that “Defendant Parker himself
views people who are odd, strange, or otherwise socially awkward as
bad, nefarious people who are necessarily suspicious or a ‘red flag,’ and
he treats them as such.” (ECF No. 17 ¶ 11). This, like the allegation
made against Estrada, does not infer that any actions were based on a
disability that Parker and Estrada are not even alleged to have known
about. Rather, Plaintiff affirmatively pleads Parker and Estrada were
acting in response to Plaintiff’s “red flag” behavior.
E.g., Dkt. No. 23 at 9-10; see also id. at 10 (“In this case, Plaintiff pleads that the
employees of the City removed his airport identification card and dismissed him from
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the Love Helpers Volunteer Program, accusing Plaintiff of violating rules regarding
the use of his airport identification card and for other suspicious activities that raised
‘red flags.’ (ECF No. 17 ¶ 12-23). Based on the allegations in the Complaint, City
employees took these actions, not because Plaintiff is autistic, but because he violated
rules and engaged in suspicious activity.”).
Defendants are correct that, without more, reactions to – or consequences
because of – behaviors that may be manifestations of a disability do not allow for the
reasonable inference that such reactions or consequences amount to discrimination
by reason of a disability. See S.B., 2023 WL 3723625, at *3 (“Although S.B.’s autism
was the root cause of her classroom outbursts, it cannot be inferred that Rowell’s and
Nick’s reactions were influenced by her disability. Rather, these claims suggest that
S.B. wasn’t disciplined due to her disability but to address her disruptive conduct in
class. Therefore, punishing S.B. for her disruptive behavior is not the same as
treating her differently due to her disability.” (characterizing that case as “no
different from T.O.”; citing T.O., 2 F.4th at 412-18)); see also Landry v. St. Tammany
Par. Sch. Bd., Civ. A. No. 24-2096, 2025 WL 1742202, at *4 (E.D. La. June 5, 2025)
(“This Court is bound by the very clear Fifth Circuit precedent on this issue…. As was
the case in both S.B. and T.O., Plaintiffs fail to provide any facts sufficient to indicate
that L.T. was mistreated because of her disability, and instead, the only facts
Plaintiffs plead indicate that L.T. was mistreated because of her inappropriate
behavior in which she hit, spit, kicked, refused to move, eloped, and refused to comply
with tasks. Because Plaintiffs have not adequately alleged that any complained of
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behavior was based upon L.T.’s disability, Plaintiffs’ ADA and Rehabilitation Act
claims must be dismissed.”), rec. adopted, 2025 WL 1735401 (E.D. La. June 23, 2025);
cf. Newbery v. E. Tex. State Univ., 161 F.3d 276, 279-80 (5th Cir. 1998) (“[W]here an
employee engages in conduct that is legitimately a basis for dismissal, and the
employer believes that the employee’s conduct is symptomatic of disability, the
employer may fire the employee on the basis of the conduct itself, as long as the
collateral assessment of disability plays no role in the decision to dismiss.”).
And, so, Zimmer has not plausibly alleged factual content from which the Court
may reasonably infer that he experienced discriminated because of his autism where
he alleges that he felt that the individual defendants were cold toward him because
he was odd, strange, or socially awkward or that the individual defendants, in
Zimmer’s opinion, perceived his behavior as suspicious.
But Zimmer attempts to clean up his theory of disability discrimination
through his response.
And, while the Court should not allow a plaintiff to amend his allegations
through a response to a motion to dismiss, see, e.g., Klaizner v. Countrywide Fin., No.
2:14-CV-1543 JCM (PAL), 2015 WL 627927, at *10 (D. Nev. Feb. 12, 2015) (“All claims
for relief must be contained in a pleading. A response to a motion is not a pleading
and it is improper for the court to consider causes of action not contained in the
pleadings.” (citations omitted)), considering that Zimmer is proceeding pro se and
notwithstanding that he already amended his complaint once in response to a motion
to dismiss – and, so, he likely has stated his “best case” and leave to amend need not
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be granted, see, e.g., Allen v. Navy Fed. Credit Union, No. 3:24-cv-949-L-BN, 2025 WL
484818, at *13 (N.D. Tex. Feb. 13, 2025) (“Granting leave to amend … is not necessary
when the plaintiff has pleaded his or her ‘best case’ after being apprised of pleading
deficiencies. Likewise, a district court need not grant a motion to amend if doing so
would be an exercise in futility.” (citations omitted)) – the undersigned will address
Zimmer’s attempt to recast his ADA and/or Section 504 allegations as supporting a
disparate-impact claim.
According to Zimmer, he
has advanced a disparate impact theory of liability in his operative
complaint. While perhaps Plaintiff could have been a bit more clear and
concise about this in retrospect, the main idea of this disparate impact
theory of liability can be summarized as follows: Defendants view
individuals who are “odd” or “socially awkward” as “red flags” and have
an attendant practice of treating such people less favorably and taking
adverse actions against them on that basis. And because these traits are
far more prevalent among autistic people as compared to the population
as a whole, such a practice (even if facially neutral) will inevitably have
a disparate impact upon autistic people.
Dkt. No. 28 at 3-4 (cleaned up).
“Both disparate-treatment and disparate-impact claims are cognizable under
the ADA.” Raytheon Co. v. Hernandez, 540 U.S. 44, 53 (2003) (citing 42 U.S.C. §
12112(b)); see also Brennan v. Stewart, 834 F.2d 1248, 1261 (5th Cir. 1988) (“In
another unanimous decision, Alexander v. Choate, 469 U.S. 287 (1985), the Supreme
Court held that some sorts of restrictions with ‘disparate impact’ could be actionable
under the Rehabilitation Act without a showing of intentional discrimination.”).
“Disparate impact claims do not require proof of discriminatory intent” because
they instead “focus on those facially neutral employment practices that create
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statistical disparities which disadvantage members of protected classes at a level
functionally equivalent to intentional discrimination.” Crawford v. U.S. Dep’t of
Homeland Sec., 245 F. App’x 369, 379 (5th Cir. 2007) (per curiam) (citing Munoz v.
Orr, 200 F.3d 291, 299 (5th Cir. 2000)).
And, at least as to a claim under Title I of the ADA, “[t]o establish a prima facie
case of discrimination under a disparate-impact theory, a plaintiff must show: (1) an
identifiable, facially neutral personnel policy or practice; (2) a disparate effect on
members of a protected class; and (3) a causal connection between the two.” Canada
v. Tex. Mut. Ins. Co., 766 F. App’x 74, 78 (5th Cir. 2019) (per curiam) (quoting McClain
v. Lufkin Indus., Inc., 519 F.3d 264, 275 (5th Cir. 2008))).
But Zimmer’s conclusory assertions as to disparate impact support none of
these requirements. See Smith v. City of Jackson, Miss., 544 U.S. 228, 241 (2005)
(“[I]t is not enough to simply allege that there is a disparate impact on workers or
point to a generalized policy that leads to such an impact. Rather, the employee is
responsible for isolating and identifying the specific employment practices that are
allegedly responsible for any observed statistical disparities.” (cleaned up)).
And Zimmer’s failure to identify a specific policy or practice and – if he had
specified a policy or practice – to allege facts from which the Court could infer that
that policy or practice has resulted in prohibited discrimination would be fatal to any
effort to recast his disability discrimination claims as outlined in his response. See
Scott v. U.S. Bank Nat’l Ass’n, 16 F.4th 1204, 1209 (5th Cir. 2021) (per curiam) (For
a court to “freely give leave to amend,” “a movant must give the court at least some
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notice of what his or her amendments would be and how those amendments would
cure the initial complaint’s defects.” (citations omitted)); cf. Canada, 766 F. App’x at
78 (“Satisfying the second element typically requires establishing that the practice or
policy had a statistically significant adverse impact on the protected class.” (citing
Stout v. Baxter Healthcare Corp., 282 F.3d 856, 860 (5th Cir. 2002))).
II. 	The Court should dismiss Zimmer’s constitutional claims.
Zimmer also alleges that removing him from the Love Helpers program and
the resultant loss of his airport identification violated his right to due process under
the Fourteenth Amendment.
“The 	Fourteenth 	Amendment’s 	Due 	Process 	Clause 	protects
against deprivations of life, liberty, or property; and those who seek to
invoke 	its 	procedural 	protection 	must 	establish 	that 	one 	of 	these
interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
Accordingly, to state a claim for a due process violation, a plaintiff must
allege “(1) the deprivation of a protected property or liberty interest, and
(2) that the deprivation occurred without due process of law.” Holden v.
Perkins, 398 F. Supp. 3d 16, 23 (E.D. La. 2019) (citing Grimes v. Pearl
River Valley Water Supply Dist., 930 F.2d 441, 444 (5th Cir. 1991)).
Liberty interests come from two sources: (1) “the Constitution
itself, by reason of guarantees implicit in the word ‘liberty’”; and (2) “an
expectation or interest created by state laws or policies.” Id. (citations
omitted). Despite only providing two sources for discerning liberty
interests, the Supreme Court has recognized that “[i]n a Constitution for
a free people, there can be no doubt that the meaning of ‘liberty’ must
be broad indeed.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,
572 (1972).
Adams v. City of Harahan, 95 F.4th 908, 913 (5th Cir. 2024).
First, “there is no constitutionally cognizable interest in a volunteer position.”
Hale v. Bexar Cnty., Tex., 342 F. App’x 921, 927 (5th Cir. 2009) (per curiam) (citations
omitted); Reed v. Rawlings, No. 3:18-cv-1032-B, 2018 WL 5113143, at *5 (N.D. Tex.
Oct. 19, 2018) (“Plaintiffs’ volunteer work with the Assembly and the Committee is
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insufficient to create a cognizable interest.” (citing Hale, 342 F. App’x at 927)).
And, to the extent that Zimmer’s interests in the Love Helpers program and
the associated airport identification is broader – because, for example, Zimmer
contends that his chosen profession is related to working at an airport, and, so, the
interest at issue could be construed as an occupational liberty – “[t]he mere existence
of that right” “is insufficient for [Zimmer] to bring his suit against the City” and its
employees. Adams, 95 F.4th at 915.
Zimmer “must also sufficiently allege facts demonstrating that the City
violated his occupational liberty interest.” Id.
To do so, he “must plead facts showing that Defendants ‘effectively foreclosed’
him from practicing his chosen profession.” Ghedi v. Mayorkas, 16 F.4th 456, 467 (5th
Cir. 2021) (citing Martin v. Mem’l Hosp. at Gulfport, 130 F.3d 1143, 1148 (5th Cir.
1997)); accord Adams, 95 F.4th at 915 (“[D]eprivation of occupational liberty only
occurs when the government has ‘effectively foreclosed’ the ability for someone to
work in his desired field.” (citation omitted)).
As to a plaintiff’s burden in this regard, even alleging that governmental action
“made it ‘nearly impossible to do’ [a] job” is not enough to deprive a plaintiff “of his
right to work in his chosen field.” Id. (quoting Ghedi, 16 F.4th at 467).
Because Zimmer has not met this burden, he has not alleged a plausible
violation of the Fourteenth Amendment’s Due Process Clause based on the facts set
out in the operative complaint.
And, even if he had, he still has not alleged that the City of Dallas, a
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municipality, is liable for such a violation.
“Municipalities can be held liable for violating a person’s constitutional rights
under [42 U.S.C.] § 1983.” Sanchez v. Young Cnty., Tex., 956 F.3d 785, 791 (5th Cir.
2020) (“Sanchez II”) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)).
And the general pleading standards set out above apply to such a claim against
a municipality. See Hutcheson v. Dall. Cnty., Tex., 994 F.3d 477, 482 (5th Cir. 2021)
(“There is no heightened pleading standard for § 1983 claims against municipalities.
To survive a motion to dismiss, the complaint need not contain detailed factual
allegations but still must state sufficient facts to establish a plausible claim on its
face.” (citing Littell v. Hous. Indep. Sch. Dist., 894 F.3d 616, 622 (5th Cir. 2018))).
But, because “[a] person may sue a municipality that violates his or her
constitutional rights [only] ‘under color of any statute, ordinance, regulation, custom,
or usage,’” id. (quoting Section 1983; citing Monell, 436 U.S. at 690), a plaintiff
alleging 	a 	Monell 	claim 	“has 	two 	burdens: 	to 	[plausibly 	allege] 	(1) 	that 	a
constitutional violation occurred and (2) that a municipal policy was the moving force
behind the violation,” Sanchez II, 956 F.3d at 791 (citing Monell, 436 U.S. at 694); see
also Cope v. Coleman Cnty., No. 23-10414, 2024 WL 3177781, at *3 (5th Cir. June 26,
2024) (per curiam) (“A municipality may be held liable for a constitutional violation
‘when execution of a government’s policy or custom, whether made by its lawmakers
or by those whose edicts or acts may fairly be said to represent official policy, inflicts
the injury.’” (quoting Monell, 436 U.S. at 694)).
To plausibly allege that a policy was the moving force,
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a plaintiff must identify “(1) an official policy (or custom), of which (2) a
policy maker can be charged with actual or constructive knowledge, and
(3) a constitutional violation whose moving force is that policy (or
custom).” Pineda v. City of Hous., 291 F.3d 325, 328 (5th Cir. 2002)
(cleaned up). Municipalities are not liable “on the theory of respondeat
superior” and are “almost never liable for an isolated unconstitutional
act on the part of an employee.” Peterson v. City of Fort Worth, 588 F.3d
838, 847 (5th Cir. 2009).
Hutcheson, 994 F.3d at 482.
These elements are “necessary to distinguish individual violations perpetrated
by local government employees from those that can be fairly identified as actions of
the government itself.” Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001).
And, where a plaintiff’s claim fails as to one prong, a court “need not consider
whether [her] claim also fails the other two Monell prongs.” Brown v. Tarrant Cnty.,
Tex., 985 F.3d 489, 494 & n.11 (5th Cir. 2021) (citing Zarnow v. City of Wichita Falls,
614 F.3d 161, 168-69 (5th Cir. 2010)).
Focusing on Monell’s policy prong, “[o]fficial policy can arise in various forms.
It usually exists in the form of written policy statements, ordinances, or regulations,
but may also arise in the form of a widespread practice that is ‘so common and well-
settled as to constitute a custom that fairly represents municipal policy.’” James v.
Harris Cnty., 577 F.3d 612, 617 (5th Cir. 2009) (citations omitted).
And, in rare circumstances, “a single decision by a policymaker may …
constitute a policy for which a municipality may be liable,” where (1) the “decision
was made by a final policymaker, and (2) a plainly obvious consequence of the decision
is a constitutional violation.” Doe v. Englewood Indep. Sch. Dist., 964 F.3d 351, 366
(5th Cir. 2020) (cleaned up); see also Johnson v. Harris Cnty., 83 F.4th 941, 946 (5th
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Cir. 2023) (“[A]n official policy includes the decisions of a government’s law-makers,
the acts of its policymaking officials, and practices so persistent and widespread as to
practically have the force of law.” (cleaned up)).
In short, Zimmer’s operative pleading fails to plausibly allege a Section 1983
claim against the City because he fails to provide factual content that allows the
Court to draw the reasonable inference that a municipal policy was the moving force
behind the constitutional violation he alleges.
First, Zimmer has not alleged that the actions taken against him were due to
an official policy. And a municipality “cannot be liable for an unwritten custom unless
‘[a]ctual 	or 	constructive 	knowledge 	of 	such 	custom’ 	is 	attributable 	to 	[its]
policymaker.” Peña, 879 F.3d at 623 (quoting Hicks-Fields v. Harris Cnty., Tex., 860
F.3d 803, 808 (5th Cir. 2017)); see also Robinson v. Midland Cnty., Tex., 80 F.4th 704,
711 (5th Cir. 2023) (“[P]laintiffs’ theory hinges entirely on the idea that if enough
individuals do something, it becomes the fault of the policymaker. [But, w]ithout a
showing of knowledge and acquiescence, such a theory is no more than vicarious
liability and cannot survive a motion to dismiss.” (citation omitted)).
“To establish a custom, a plaintiff must demonstrate (and, at the pleading
stage, must plausibly plead) ‘a pattern of abuses that transcends the error made in a
single case.’” Pinedo v. City of Dall., Tex., No. 3:14-cv-958-D, 2015 WL 5021393, at *5
(N.D. Tex. Aug. 25, 2015) (quoting Piotrowski, 237 F.3d at 582). And a pattern
requires 	“sufficiently 	numerous 	incidents,” 	as 	opposed 	to 	“isolated 	instances.”
McConney v. City of Hous., 863 F.2d 1180, 1184 (5th Cir. 1989) (cleaned up).
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Which is why allegations “limited to the events surrounding the plaintiff” – the
scope of the allegations pleaded by Zimmer – cannot constitute “an allegation of a de
facto policy … by [a municipality],” Culbertson v. Lykos, 790 F.3d 608, 629 (5th Cir.
2015); accord Hutcheson, 994 F.3d at 482, as such allegations do “not plausibly allege
any pattern of conduct – much less a pattern of similar violations,” Johnson, 83 F.4th
at 947 (emphasis in original).
[Instead, a] plaintiff can establish a policy by pointing to similar
incidents that are sufficiently numerous and have occurred for so long
or so frequently that the course of conduct warrants the attribution to
the governing body of knowledge that the objectionable conduct is the
expected, accepted practice of city employees. That knowledge, coupled
with a failure to act, can show the existence of a municipal policy.
Robinson, 80 F.4th at 710 (cleaned up); accord Webb v. Twn. of Saint Joseph, 925 F.3d
209, 214 (5th Cir. 2019) (“While municipalities can be sued directly under § 1983,
Monell establishes that they cannot be found liable on a theory of vicarious liability
or respondeat superior” – and, so, “the unconstitutional conduct must be directly
attributable to the municipality through some sort of official action or imprimatur;
isolated unconstitutional actions by municipal employees will almost never trigger
liability.” (cleaned up)).
And, 	to 	the 	extent 	that 	Zimmer 	brings 	claims 	against 	the 	individual
defendants in their official capacities, those claims “essentially merge” with “the
claims against the governmental entity.” Harmon v. Dall. Cnty., Tex., 927 F.3d 884,
891 (5th Cir. 2019) (cleaned up).
And, so, Zimmer’s failure to plausibly allege Monell liability means that the
official capacity claims should be dismissed too. See, e.g., Byrum v. City of Mesquite,
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126 F. App’x 670, 671 (5th Cir. 2005) (per curiam) (“A governmental entity or
municipality, as well as officers thereof acting in their official capacity, can be held
liable under § 1983 only if official policy or custom caused the deprivation of a
constitutional right.” (citations omitted)).
And, while the individual defendants assert qualified immunity as a defense
to Zimmer’s Fourteenth Amendment claims, Zimmer clarifies through his briefing
that he does not seek monetary damages, and, so, qualified immunity is not available.
Dkt. No. 29 at 9.
Zimmer is correct. See Waller v. Hanlon, 922 F.3d 590, 598 (5th Cir. 2019)
(“[Q]ualified immunity applies only to claims for money damages.” (citing Morgan v.
Swanson, 659 F.3d 359, 365 n.3 (5th Cir. 2011) (en banc))).
But it’s also true that he may not obtain injunctive relief from state actors
(such as individuals employed by the City of Dallas who Zimmer names as defendants
here) in their individual capacities. See, e.g., Scott v. Flowers, 910 F.2d 201, 213 (5th
Cir. 1990).
In sum, the constitutional claims should be dismissed with prejudice.
III. 	The Court should dismiss Zimmer’s state tort claims.
Zimmer finally alleges that Estrada and Parker libeled him while Turner
slandered him. And Defendants move to dismiss these intentional tort claims under
Section 101.106(f) of the Texas Tort Claims Act (the “TTCA”).
The TTCA “provides a limited waiver of immunity for certain tort claims
against the government.” Benfer v. City of Baytown, Tex., 120 F.4th 1272, 1284 (5th
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Cir. 2024) (quoting Tex. Adjutant Gen.’s Off. v. Ngakoue, 408 S.W.3d 350, 354 (Tex.
2013)).
But the TTCA “render[s] municipalities within Texas immune from liability
for all intentional torts,” Johnson v. City of Dall., Tex., No. 3:99-cv-2153-D, 2001 WL
332021, *3 (N.D. Tex. Apr. 3, 2001), as the “TTCA’s limited waiver of sovereign
immunity does not apply to [an] intentional tort,” Mathis v. City of Dall., No. 3:20-cv-
655-M-BH, 2020 WL 8172748, at *4 (N.D. Tex. Dec. 30, 2020), rec. accepted, 2021 WL
135990 (N.D. Tex. Jan. 14, 2021).
And “Section 101.106(f) of the [TTCA] ‘affords state employees governmental
immunity.’” Frias v. Hernandez, 142 F.4th 803, 807 (5th Cir. 2025) (quoting Wilkerson
v. Univ. of N. Tex. ex rel. Bd. of Regents, 878 F.3d 147, 159 (5th Cir. 2017)).
Under Section 101.016(f), such “a defendant is entitled to dismissal upon proof
that the plaintiff’s suit is (1) based on conduct within the scope of the defendant’s
employment with a governmental unit and (2) could have been brought against the
governmental unit under the [TTCA].” Frias, 142 F.4th at 808 (quoting Laverie v.
Wetherbe, 517 S.W.3d 748, 752 (Tex. 2017)).
And the Court “may dismiss claims on the pleadings when the facts alleged
establish that the conduct at issue fell within the scope of employment.” Id. (citing
Smith v. Heap, 31 F.4th 905, 913-14 (5th Cir. 2022)).
First, these claims could have been brought against the City of Dallas under
the TTCA, as each “is in tort and not under another statute that independently
waives immunity.” Franka v. Velasquez, 332 S.W.3d 367, 381 (Tex. 2011); Chalmers
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v. City of Dall., No. 3:14-cv-36-N, 2014 WL 1778946, at *4 (N.D. Tex. May 5, 2014)
(finding that libel and slander are “intentional torts that would be barred by
sovereign immunity” or, as to a Texas municipality, its governmental immunity);
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003) (“Sovereign
immunity refers to the State’s immunity from suit and liability. In addition to
protecting the State from liability, it also protects the various divisions of state
government, including agencies, boards, hospitals, and universities. Governmental
immunity, on the other hand, protects political subdivisions of the State, including
counties, cities, and school districts.” (citations omitted)).
Zimmer has alleged factual content showing that each tort is based on conduct
falling within the scope of the Defendants’ employment. See, e.g., Dkt. No. 17, ¶¶ 2,
15, 39, 40, 42, 43, & 48.
And, while Zimmer argues that an ultra vires exception applies, see, e.g., id., ¶
54 (“Defendant Turner’s defamatory statements were ultra vires, as no part of his job
responsibilities include leveling plainly baseless defamatory statements against
members of the public.”), “[t]o fall within [this] exception, a suit must not complain of
a government officer’s exercise of discretion, but rather must allege, and ultimately
prove, that the officer acted without legal authority or failed to perform a purely
ministerial act,” Zeng v. Tex. Tech Univ. Health Sci. Ctr. at El Paso, 836 F. App’x 203,
213 (5th Cir. 2020) (per curiam) (quoting City of El Paso v. Heinrich, 284 S.W.3d 366,
372 (Tex. 2009)). Zimmer has neither alleged that these defendants failed to perform
a purely ministerial act nor plausibly alleged that they acted without legal authority,
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considering that “[a]cting without legal authority means that the government actor
must have violated statutory or constitutional provisions.” Id. (cleaned up). And, so,
the ultra vires exception cannot apply.
Recommendation
The Court should grant the motions to dismiss the first amended complaint
[Dkt. Nos. 23 & 25] and dismiss this lawsuit with prejudice.
A copy of these findings, conclusions, and recommendation shall be served on
all parties in the manner provided by law. Any party who objects to any part of these
findings, conclusions, and recommendation must file specific written objections
within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED . R. CIV.
P. 72(b). In order to be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and
specify the place in the magistrate judge’s findings, conclusions, and recommendation
where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the magistrate judge is not specific. Failure
to file specific written objections will bar the aggrieved party from appealing the
factual findings and legal conclusions of the magistrate judge that are accepted or
adopted by the district court, except upon grounds of plain error. See Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: November 13, 2025
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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