United States District Court, W.D. Texas, San Antonio Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES
Honorable United States District Judge David A. Ezra:
Report and Recommendation concerns Defendants' Motion to
Dismiss Plaintiff's Amended Complaint Pursuant to Federal
Rule of Civil Procedure 12(b)(6) [#27]. All dispositive
pretrial matters in this case have been referred to the
undersigned for disposition pursuant to Western District of
Texas Local Rule CV-72 and Appendix C [#28]. The undersigned
has authority to enter this recommendation pursuant to 28
U.S.C. § 636(b)(1)(B). For the reasons set forth below,
it is recommended that the Motion [#27] be GRANTED.
proceeding pro se, originally filed his Civil Rights
Complaint in the Southern District of Texas, along with a
motion to proceed in forma pauperis (“IFP”) in
this action. Plaintiff is currently incarcerated at the
Nueces County Jail in Corpus Christi, Texas. His Original
Complaint sued DBI Services, Will Schuler, and an unknown
Defendant regarding his former employment with DBI Services
in San Antonio, Texas. The Southern District transferred
Plaintiff's Complaint to the Western District of Texas on
June 12, 2019. This Court thereafter granted Plaintiff's
motion to proceed IFP but ordered Plaintiff to file a more
definite statement regarding his claims. Plaintiff filed his
more definite statement as ordered, and the Court ordered
service of Plaintiff's Complaint on Defendants, finding
that he had asserted at least one non-frivolous claim.
filed a motion to dismiss on October 4, 2019. Plaintiff
failed to respond to the motion by the deadline imposed by
this Court's Local Rules, and the District Court ordered
Plaintiff to respond to the motion by November 12, 2019 or
face dismissal for failure to prosecute. Rather than filing a
response as ordered, Plaintiff filed an Amended Complaint
[#26]. The Amended Complaint is Plaintiff's live pleading
and names only DBI Services and Schuler. Defendants renewed
their arguments for dismissal by filing the second motion to
dismiss that is now before the Court.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “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.” Id.
“Although a complaint “does not need detailed
factual allegations, ” the “allegations must be
enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. The allegations
pleaded must show “more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556 U.S. at
reviewing a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a court “accepts all well-pleaded
facts as true, viewing them in the light most favorable to
the plaintiff.” Martin K. Eby Const. Co. v. Dallas
Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)
(internal quotation omitted). However, a Court need not
credit conclusory allegations or allegations that merely
restate the legal elements of a claim. Chhim v. Univ. of
Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016)
(citing Iqbal, 556 U.S. at 678). In short, a claim should not
be dismissed unless the court determines that it is beyond
doubt that the plaintiff cannot prove a plausible set of
facts that support the claim and would justify relief. See
Twombly, 550 U.S. at 570.
Plaintiff is a pro se litigant, his pleadings are to be
liberally construed and held to a less stringent standard
than formal pleadings drafted by lawyers. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Nonetheless, pro se
litigants, like all other parties, must follow the Federal
Rules of Civil Procedure. See Chhim, 836 F.3d at 469
(“We hold pro se plaintiffs to a more lenient standard
than lawyers when analyzing complaints, but pro se plaintiffs
must still plead factual allegations that raise the right to
relief above the speculative level.”).
Motion to Dismiss was filed on November 18, 2019, meaning
Plaintiff's response to the motion was due on or before
December 5, 2019. See Loc. R. CV-7(e) (responses to
dispositive motions such as a motion to dismiss are due
within fourteen days of motion's filing); Fed.R.Civ.P.
6(a), (d) (adding three days to response deadline for service
by mail). To date, Plaintiff has not filed a response.
Pursuant to Local Rule CV-7(e), if there is no response filed
within the time period prescribed by the rules, the court may
grant the motion as unopposed. Nevertheless, because this is
a dispositive motion, the undersigned will evaluate its
merits as well.
Amended Complaint alleges he was “deliberately singled
out and discriminated against” due to Defendants'
knowledge of his mental state and his medications. (Am.
Compl. [#26] at 3-4.) Plaintiff contends these actions
violate the Americans with Disabilities Act
(“ADA”). Defendants seek dismissal of