JANE DOE v. KYLE BONATH GEORGE STOLTZ ERIC BENTLEY ANDREW VALDEZ TEXAS TECH UNIVERSITY SYSTEM TEXAS TECH UNIVERSITY HEALTH SCIENCE CENTER OF EL PASO TEXAS TECH POLICE DEPARTMENT CARLOS MACIAS MICHAEL PARSA WILLIAM WEBSTER TANIS HOGG LINDA ELLIS FRANK GONZALES (2023)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

Before the court are “Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint” [ECF No. 47], filed December 5, 2022, by the Defendants collectively and Plaintiff's “Response to Motion to Dismiss” [ECF No. 101], filed September 13, 2023, by Plaintiff. Therein, the Defendants request that Plaintiff's second amended complaint be dismissed on the jurisdictional grounds of sovereign immunity and/or for failure to state a claim.¹ The court wants to point out that most of Plaintiff's response to the motion to dismiss is an attempt to introduce new facts outside of the second-amended complaint.² The court will not consider any factual allegations in Plaintiff's response and will only look at the facts in her second-amended complaint. For the following reasons, the court GRANTS in part and DENIES in part Defendants' motion to dismiss.

I. BACKGROUND

Parsing out Plaintiff's lengthy complaint yields the following summary of the facts: Jane Doe (“Plaintiff”) is a former medical student at the Paul L. Foster School of Medicine at Texas Tech University Health Science Center El Paso (“TTUHSC EP”).³ The Paul L. Foster School of Medicine is one of the best in the state of Texas and Plaintiff was accepted given her strong academic record and active volunteer efforts. Her first semester began in the fall of 2020.⁴ She quickly integrated herself in the school and was elected as vice president of her class, among other volunteer and school community service positions.⁵ She met and exceeded her first semester evaluations, but during the month of September 2020, she was diagnosed with bipolar disorder, generalized anxiety disorder, and post-traumatic stress disorder.⁶

Plaintiff scheduled an appointment through TTUHSC EP's Department of Psychiatry to start medication for her diagnosis. March 2021, Plaintiff registered her disabilities through the school's Academic Success and Accessibility Office.⁷ Plaintiff sought support by confiding with some classmates and faculty regarding her disability. Soon thereafter, she learned of rumors spreading around the school regarding her disability.⁸ In response, she became an activist around campus for mental health awareness, the lack of mental health resources, and suicide awareness.⁹ She states that her advocacy was met with significant pushback and discrimination from faculty and staff.¹⁰

This culminated in a leave of absence (“LOA”) that was issued in August of 2021.¹¹ Dr. Linda Ellis, the Associate Dean of Student Affairs of the medical school, was the one who issued the LOA with the intention that Plaintiff take time to receive psychiatric help because Plaintiff was, allegedly, not attending therapy.¹² Plaintiff contested her LOA and on December 1, 2021, Plaintiff met with Dr. Ellis and Dr. Martin in her office regarding the LOA and other perceived discrimination from the faculty.¹³ Additionally, Plaintiff felt wronged because following this LOA she lost access to her school email and school resources.¹⁴ An action not taken against other students on LOAs.

At the meeting, Plaintiff was asking Dr. Ellis why she lost her school access and reasons behind the LOA. Making statements like, “you don't take away other people's email access.”¹⁵ Eventually, Officer Macias and Officer Perez of the Texas Tech Police Department entered Dr. Ellis' office and ordered Plaintiff to leave.¹⁶ Plaintiff peacefully left the office. Officer Perez spoke with Dr. Ellis who confirmed she wanted to issue a criminal trespass warning (“CTW”) on Plaintiff.¹⁷ Dr. Ellis states Plaintiff is not a student and Officer Macias starts escorting Plaintiff out stating, “I'm going to give you a criminal trespass.”¹⁸ Officer Macias was forcing Plaintiff to exit from the front of the school and Plaintiff was protesting as to why she was being escorted out when she was a student; then, Officer Macias pinned Plaintiff to the wall and handcuffed her as Officer Perez took her student badge.¹⁹ For most of this encounter, Plaintiff refused to give up her student badge because she was still a student.

After being brought to the police station, Plaintiff was held for an hour before she was given her criminal trespass warning.²⁰ Plaintiff was put on another involuntary LOA based on Michael Parsa's proclamation that she was unfit to be in the program until she demonstrated 6 months of emotional stability. This culminated in a Grading and Promotions Committee hearing on April 20, 2022, in which the attending staff voted unanimously to dismiss Plaintiff from the program. Plaintiff asserts she was not informed of the ability to appeal her CTW or dismissal hearing.²¹

Following her dismissal from the school, Plaintiff submitted over 200 public record requests to Texas Tech University from April 2022 to September 2022.²² Her requests were handled by Eric Bentley, Frank Gonzales, and William Webster, collectively the general counsel of the school.²³ These requests centered around her dismissal and CTW. Plaintiff attests that most of her requests were denied even after Attorney General Opinions were given to the contrary.²⁴ Plaintiff states general counsel acted in malicious ways to deny her requests including: requesting her to narrow or clarify her requests, delaying their responses, and arguing that Plaintiff should be denied public records because she was behind an anonymous Instagram account that was being used to discredit and harass the school.²⁵ Plaintiff asserts general counsel did not have evidence that she was behind the Instagram account.²⁶

Plaintiff planned to pass out flyers and put-up posters the week of July 11, 2022, at TTUHSC EP.²⁷ Plaintiff ensured her posters were viewpoint-neutral and spoke with Lieutenant Stoltz and Texas Tech Police to ensure she complied with school rules on public speech.²⁸ While putting up these posters and flyers, Plaintiff was met with harassment from staff and faculty. She states that faculty would make frivolous calls to the police, changed the locks to the offices, and improperly narrowed the “public spaces” she could access.²⁹ Ultimately, on July 19, 2022, the Texas Tech Police gave Plaintiff a second criminal trespass warning due to her activities.³⁰ Plaintiff says she was given the second CTW following a police report from Tanis Hogg regarding a social media post. Plaintiff states that no one had evidence she was the one behind the social media post.³¹ Plaintiff continues that the social media post was a metaphor that contained no obscenity, true threat, or defamation.³² She exclaims she was not given an opportunity to be heard or contest the second CTW.

Plaintiff applied to speak at the, then, upcoming Board of Regents meeting which was held on August 11, 2022.³³ On August 8, 2022, Plaintiff sent an official application to speak at the board meeting, but Mr. Bentley responded she could not attend given her recent criminal trespass warning.³⁴ Plaintiff was going through an appeal for her second CTW and believed that it was being purposefully delayed to keep her out of the board meeting.³⁵ Chief Bonath was handling her appeal and stated she was not allowed on Texas Tech property given the CTW and if she appeared then she would be arrested.³⁶ Plaintiff was given an alternative to record a video of her points and send it to Mr. Bentley along with a written submission, but Plaintiff felt these alternatives were not good substitutes for speaking in person.³⁷

In the end, Plaintiff lost her CTW appeal on August 22, 2022, and did not attend the board meeting.³⁸

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(1) governs motions to dismiss for lack of subject matter jurisdiction. A federal court must dismiss a case for lack of subject-matter jurisdiction if it lacks statutory or constitutional power to adjudicate the case.³⁹ The party invoking federal jurisdiction bears the burden to show standing.⁴⁰ To that end, “sovereign immunity is not merely a defense on the merits—it is jurisdictional in nature. If sovereign immunity exists, then the court lacks both personal and subject-matter jurisdiction to hear the case and must enter an order of dismissal.⁴¹

Federal Rule of Civil Procedure 12(b)(6) allows dismissal of a complaint for “failure to state a claim for which relief can be granted.”⁴² “The central issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief.”⁴³ To survive a motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”⁴⁴ “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.”⁴⁵ “[F]acial plausibility” exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”⁴⁶ Therefore, a complaint is not required to set out “detailed factual allegations,” but it must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.”⁴⁷ Although the court must accept well-pleaded allegations in a complaint as true, it does not afford conclusory allegations similar treatment.⁴⁸

III. DISCUSSION

Plaintiff raises a host of claims against a plethora of Defendants including institutional bodies and individual agents and employees of the school. These claims include a Title II ADA claim, Rehabilitation Act claim (“Rehab Act”), state official oppression, state intentional infliction of emotional distress, and three § 1983 claims under the Fourth Amendment, First Amendment, and Fourteenth Amendment. The institutional Defendants include Texas Tech University System, Texas Tech University Health Science Center of El Paso, and Texas Tech Police Department. The individual Defendants include Kyle K. Bonath, George C. Stoltz, Eric D. Bentley, Andrew Valdez, Carlos Macias, Michael Parsa, William Webster, Tanis Hogg, Linda Ellis, and Frank Gonzales. For the sake of the analysis the court will specify when it is addressing the institutional Defendants and when it is addressing the individual Defendants. The first step is to address the sovereign immunity defense as to the institutional Defendants.

A. Sovereign Immunity

The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”⁴⁹ In the seminal case, Hans v. Louisiana, the Supreme Court held that a federal court could not entertain a suit brought by a citizen against his own State.⁵⁰ Since Hans, the federal courts have repeatedly held that “the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given.”⁵¹ In order for a citizen to sue a State, the State must either waive its sovereign immunity, unequivocally express consent to the suit in federal court, or Congress validly abrogated State immunity through statute.⁵²

As the Fourteenth Amendment came after the Eleventh and the Fourteenth Amendment was specifically designed to restrain the states, The Supreme Court has held that Congress has the power to abrogate state sovereign immunity in order to enforce the rights and protections of the Fourteenth.⁵³ Therefore, a legitimate Fourteenth Amendment § 5 statute can set aside state sovereign immunity for private citizen suits against States.⁵⁴ However, the abrogation must come from an unequivocal expression of congressional intent to do so within said statute.⁵⁵ In Quern v. Jordan, the Supreme Court specifically held that 42 U.S.C. § 1983 does not abrogate States' Eleventh Amendment immunity.⁵⁶

An additional question is whether a suit against a state official is, in actuality, a suit against the State itself. If a suit against state officials is in fact a suit against a State, then it is barred regardless of whether it seeks damages or injunctive relief.⁵⁷ An important exception to this rule is Ex Parte Young. The Supreme Court in Ex Parte Young established that a suit challenging the constitutionality of a state official's action is not one against the State.⁵⁸

Texas Tech University has long been established as an arm of the state of Texas.⁵⁹ Therefore, Texas Tech University can wield Texas' sovereign immunity. The state has not waived its sovereign immunity nor has it consented to suit in federal court.⁶⁰ Additionally, the Supreme Court has explicitly held that § 1983 does not abrogate state sovereign immunity.⁶¹ Therefore, the institutional Defendants enjoy sovereign immunity and the Defendants' requested dismissal, as it pertains to the institutional Defendants, of Plaintiff's § 1983 claims is granted.

Another topic which needs to be addressed is Plaintiff's claims against the Texas Tech Police Department. As raised by the Defendants, Texas Tech Police Department is a non-jural entity. A plaintiff cannot bring an action against an entity that does not have the capacity to sue or be sued.⁶² The determination of whether an entity has such capacity is determined by the law of the state in which the district court is held.⁶³ In Cain v. Texas Tech Health Sciences Center, a plaintiff was unable to bring suit against Texas Tech Health Sciences Center because it is not a jural entity distinct from Texas Tech University.⁶⁴ Similarly, Texas Tech Police Department is not a jural entity distinct from Texas Tech University; therefore, all claims for relief against the Texas Tech Police Department are dismissed.

B. State Law Claims

a. IIED

Plaintiff brought multiple state law claims against both the institutional and individual Defendants. The first of which is an Intentional Infliction of Emotional Distress (“IIED”) claim. The Defendants argue that sovereign immunity completely bars Plaintiff's IIED claim. The Supreme Court has held that a state law claim—claiming jurisdiction through supplemental jurisdiction—must independently get past a sovereign immunity defense.⁶⁵ A state law claim does not get a free pass past sovereign immunity so long as another claim, in this case federal, would get past immunity.

Thus, the preliminary inquiry is whether there is a waiver of sovereign immunity for the state law claim.⁶⁶ The only applicable waiver is the Texas Tort Claims Act (“TTCA”). The TTCA is a limited waiver of immunity that makes a governmental unit liable for “property damage, personal injury, and death proximately caused by the wrongful act․or negligence of an employee acting within his scope of employment if․(A) the harm arises from the use of a motor-driven vehicle, and (B) the employee would be personally liable under Texas law.”⁶⁷ Additionally, a governmental unit is liable for harm caused by a “condition or use of tangible personal or real property.”⁶⁸ Most relevant, the TTCA states that a “suit under this chapter shall be brought in state court.”⁶⁹

Therefore, the Plaintiff faces two fatal issues: (1) the TTCA does not waive sovereign immunity for an IIED claim, and (2) the TTCA only waives sovereign immunity for State Court and not Federal Court. The Fifth Circuit held as such. “A state does not waive Eleventh Amendment immunity in federal courts merely by waiving sovereign immunity in its own courts.”⁷⁰ “The Texas Tort Claims Act does not waive sovereign immunity for federal courts only state courts.”⁷¹ The statute also lays out that it does not apply to intentional torts.⁷² IIED is an intentional tort meaning the waiver of sovereign immunity does not apply. Clearly, Plaintiff's claim of IIED must be dismissed against both the institutional and individual Defendants on the basis of sovereign immunity.

b. Official Oppression

Plaintiff's next state law claim is Official Oppression. Official Oppression is a Texas Penal Statute which holds a public servant acting under the color of his office or employment criminally liable for abusing his power.⁷³ The law is very clear that official oppression is a criminal offense and does not create a civil cause of action.⁷⁴ “As a general rule, criminal statutes do not create civil liability․ Official Oppression is not an actionable tort claim under Texas common law.”⁷⁵

Because Official Oppression does not give rise to a civil cause of action—and Plaintiff filed a civil lawsuit—Plaintiff's Official Oppression cause of action must be dismissed against all Defendants.

C. Title II of the ADA

a. Making out a Plausible Title II Claim

The Defendants argue that sovereign immunity bars Plaintiff's Title II ADA claims. To determine the validity of that defense, the court must engage in a rigorous Title II analysis. The Supreme Court held that Title I of the ADA does not abrogate state sovereign immunity in private suits seeking money damages for state violations.⁷⁶ However, the Court left open the question on whether that concept applies to Title II of the ADA. Following Tennessee v. Lane and then U.S. v. Georgia, the Court answered that question. This answer is the Georgia analysis, in which a court should consider: (1) which aspects of the State's alleged conduct violated Title II; (2) To what extent such misconduct also violated the Fourteenth Amendment; and (3) whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.⁷⁷ If the State's conduct violates Title II and the Fourteenth Amendment, then sovereign immunity is abrogated. If the State's conduct violates Title II but does not violate the Fourteenth Amendment, then sovereign immunity is still abrogated if abrogation as to that class of conduct is nevertheless valid.⁷⁸

This left an open question regarding whether—at the first step of the analysis—a court needed to conduct a 12(b)(6) analysis or assume arguendo that the Plaintiff has a valid Title II claim in order to stick to the jurisdictional questions. The Fifth Circuit left that question open.⁷⁹ However, reviewing Fifth Circuit precedent since has shown that this Circuit engages in a 12(b)(6) analysis at the first step.⁸⁰ Which means the first step of this court's analysis is determining whether Plaintiff made out a valid Title II claim based on the plausibility standard.

In conducting this analysis, the court will not consider the allegations the Defendants make in their briefing. As the Fifth Circuit stated, in a Title II situation such as this, “the jurisdiction question is the merits question with extra steps on the back end.”⁸¹ Just like the Fifth Circuit in Pickett v. Texas Tech University Health Sciences Center, this court will consider Plaintiff's well-pleaded allegations as true and consider them in the light most favorable to her.

To make out a valid Title II ADA claim, a Plaintiff must allege: (1) that she has a qualifying disability; (2) that she is being denied the benefits of services, programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity, and (3) that such discrimination is by reason of her disability.⁸² Defendants do not contest element one or two; whether saying “[e]ven if” means they contest those elements, Defendants provide no supporting arguments.⁸³ Defendants contest just the third element, whether Plaintiff was discriminated against by reason of her disability.⁸⁴

Defendants argue that what happened to Plaintiff was not based on her disability but rather other factors. Factors that this court cannot take into account at the motion to dismiss stage. Additionally, Defendant argues that Plaintiff's allegations are not sufficient to establish her disability actually played a role in what transpired. The Fifth Circuit faced similar arguments in Pickett, when the Court noted this formulation “smacks of summary judgment.”⁸⁵

When it comes to evaluating Plaintiff's complaint, it is pertinent to state that she is pro se. As such, her complaint is held to a “less stringent standard” and the court must give it a “liberal construction.”⁸⁶ Giving Plaintiff's complaint a liberal construction yields two types of Title II discriminatory claims by reason of her disability. Plaintiff alleges a failure-to-accommodate claim and a conscious discrimination claim. The Title I failure to accommodate test is incorporated in Title II.⁸⁷ Failure-to-accommodate claims require that a Plaintiff be (1) a qualified individual with a disability; (2) the disability and its consequential limitations were known by the covered entity; and (3) the entity failed to make reasonable accommodations.⁸⁸ Ultimately, Plaintiff fails to plausibly allege a failure-to-accommodate claim.

Plaintiff's disability is bipolar disorder which she was diagnosed with in September 2020. Plaintiff scheduled an appointment with the school's Department of Psychiatry to start medication, and she registered her disability through the school's Academic Success and Accessibility Office.⁸⁹ However, Plaintiff fails to sufficiently allege a plausible failure-to-accommodate claim because nowhere in her second amended complaint are factual allegations that she requested reasonable accommodations.

The institution may have been aware of Plaintiff's disability, since she was diagnosed and received treatment from the school, but Plaintiff did not request for accommodations in “direct and specific terms.” “Mere knowledge of the disability is not enough, parties must know the limitations and accommodations needed or requested that are reasonable.”⁹⁰ In Windham v. Harris Cnty., Texas, a police officer was informed of the man's disability but not that he could not lift his head without risk of injury. Thus, the officer was not liable for the damage the man suffered after lifting his head to perform a nystagmus test. Knowledge of a disability is different from knowledge of the resulting limitations.⁹¹ Therefore, Plaintiff's factual allegations that she informed the school's Academic Success and Accessibility Office or “confided with some faculty” is not enough to make out a plausible failure-to-accommodate claim.

Plaintiff's next potential Title II claim is a conscious discrimination claim. To plead a conscious discrimination claim, Plaintiff must show that her disability “ ‘play[ed] a role’ in the defendant's ‘decision making process and [had] a determinative influence on the outcome.’ ”⁹² “Disability-related animus ‘need not be the sole reason’ for the challenged decision.”⁹³ “The plaintiff must plead facts making it ‘plausible that he was discriminated against ‘because of’—but not necessarily solely because of—his disability.’ ”⁹⁴ In a motion to dismiss review, a person can be discriminated against because of their disability—if they plead sufficient facts stating as much—so long as there is no obvious alternative explanation for the decision based on their pleadings.⁹⁵

The school decisions challenged are the two criminal trespass warnings, her denied Public Information Act (“PIA”) requests, her dismissal as a student, and the denial to let her appear in person at the board of regents meeting. There is an obvious alternative explanation for both her dismissal as a student and her denial of an in-person appearance at the board of regents meeting, that explanation are her two criminal trespass warnings. Plaintiff was issued her first criminal trespass warning on December 1, 2021. She was subsequently dismissed from the school's medical program. However, Plaintiff alleges that the criminal trespass warning was given unjustifiably and solely on the basis of her disability and public advocacy about said disability.⁹⁶ The dismissal is justified—at least partially—on the criminal trespass warning, if the criminal trespass warning was tainted by discrimination, then the dismissal is not free of scrutiny.

A similar set of alleged facts revolve around the second criminal trespass warning and denial of in-person appearance at the board of regents meeting. Plaintiff's second criminal trespass warning came on July 19, 2022.⁹⁷ Plaintiff wanted to attend the school's Board of Regents meeting, but Chief Bonath told her she was not allowed on any Texas Tech property given her criminal trespass warning.⁹⁸ While this would normally be an alternative reason to deny an individual's access to the meeting, beyond just denying her based on her disability, Plaintiff alleges that the second criminal trespass warning was given on the basis of discrimination against her. Specifically, Plaintiff alleges that she was on campus—although not a student anymore—to protest and spread awareness regarding denial of due process in school procedure.⁹⁹ She states that she followed all school rules while on campus and met with the school police to make sure what she was doing was not violating any school policies.¹⁰⁰ While the court can reasonably infer that the school may have issued Plaintiff a second criminal trespass warning because she is a former student that they had issues with, Plaintiff still makes out a plausible allegation that she was following all the rules and was given a second warning partly by reason of her disability.

With that said, the school offered Plaintiff the opportunity to record herself and submit the video and a written statement which would be forwarded to the Board of Regents.¹⁰¹ Plaintiff did not want to do that because she felt speaking in-person was necessary to convey body language and other cues. While the Fifth Circuit has stated that if context shows decision-makers deviating from its own policies to accomplish a discriminatory goal, a plausible claim of discrimination can exist,¹⁰² the school did not do so in denying Plaintiff's Board of Regents meeting request. Plaintiff lays out that she was the first person to request to speak at a Board of Regents meeting.¹⁰³ As such, there was not an established practice or procedure, and the school's offer of a virtual and written statement was a reasonable alternative. The court cannot infer that denying Plaintiff the ability to speak in person, while still providing a valid alternative, amounts to discrimination, even in part, as to her disability.

Plaintiff alleges the school's denial of the majority of her two hundred PIA requests are based on a First Amendment violation and not her Title II claims; therefore, these allegations will be reviewed in the § 1983 portion of this order. Additionally, the Fifth Circuit has stated that “educational harassment” is not a legally cognizable disability discrimination claim.¹⁰⁴

Similar to the Fifth Circuit's analysis in Pickett, Plaintiff in this case has made out a plausible claim of conscious discrimination because she asserts that faculty started giving her pushback and discriminating against her after her diagnosis and mental health advocacy work.¹⁰⁵ Dr. Ellis put her on an involuntary leave of absence based solely on her disability and not her performance.¹⁰⁶ She was issued multiple unjustified criminal trespass warnings.¹⁰⁷ She was dismissed from the school even though she was maintaining her course load, and the school broke policy by not informing her of her right to appeal her criminal trespass warnings until months later.¹⁰⁸ All of which “nudged [her] claims of invidious discrimination across the line from conceivable to plausible.”¹⁰⁹

b. Steps Two and Three of the Georgia Analysis

Because Plaintiff has made out a plausible Title II claim, the court must now address the next steps of the Georgia Analysis. This is because, regardless of whether Plaintiff has made out a valid Title II claim, if state sovereign immunity applies then Plaintiff's Title II claim must be dismissed as to the institutional Defendants. The next step of the analysis is to determine what extent such misconduct also violated the Fourteenth Amendment; and—if not violative of the Fourteenth Amendment—whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.¹¹⁰

Plaintiff puts forth three arguments invoking violations of the Fourteenth Amendment, (1) Plaintiff was denied due process of law, and (2) violation of the Plaintiff's Fourth Amendment right to be free of an unreasonable seizure as incorporated into the due process clause of the Fourteenth Amendment. The court will address each in turn beginning with due process.

While the court must construe Plaintiff's pleadings liberally, she has not properly made out a procedural due process nor substantive due process claim. Even under the forgiving standard of plausibility pleading at the motion to dismiss stage, Plaintiff does not make out the required elements.

The Constitution guarantees that “No person shall be ․ deprived of life, liberty, or property, without due process of law.” Due process covers both a substantive sphere and procedural requirements.¹¹¹ “The touchstone of due process is protection of the individual against arbitrary actions of government.”¹¹² Thus, procedural due process “imposes constraints on governmental decisions which deprive individuals” of guaranteed rights.¹¹³ For procedural due process we must ask if the process itself is “fair” in relation to protecting substantive rights. However, “[t]he first inquiry in every due process challenge—whether procedural or substantive—is whether the plaintiff has been deprived of a protected interest in property or liberty.”¹¹⁴ If the plaintiff has been deprived of a protected property or liberty interest then the second inquiry is what process is constitutionally due. If no protected interest exists, then “no right to due process accrues.”¹¹⁵

The modern law for determining the existence of a protected property interest arose in Board of Regents of State Colleges v. Roth. In Roth, The Supreme Court articulated that “[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must, instead, have a legitimate claim of entitlement to it.”¹¹⁶ A legitimate claim of entitlement is created by existing rules or understandings which, in turn, “stem from an independent source such as state law.”¹¹⁷ As such, property interests have been found in the form of welfare, disability payments, good time credits, parole, and a public education, among others.¹¹⁸ Each of these interests have the common thread of being established by state law.

However, the Supreme Court has also established that a property or liberty interest is not manifest if the state fails to place substantive limits on official discretion.¹¹⁹ In other words, a statute must lay out specified substantive predicates for an individual to receive the benefit and “explicitly mandatory language” in which officials must then provide said benefit once the substantive predicate qualifications or steps are met.¹²⁰ In Kentucky Department of Corrections v. Thompson, the Court held that inmates did not have a liberty or property interest in visitation because the regulations did not have mandatory language.¹²¹ The Court noted that “[v]istors may be excluded if they fall within one of the described categories, but they need not be.”¹²² Thus, an inmate did not have an objective expectation that a visit would occur or be able to enforce a visit against prison officials should they deny it.¹²³ Likewise, the Court ruled on similar grounds in Town of Castle Rock, Colorado v. Gonzales, when it determined that enforcement of a restraining order is not a property right because the local police had the discretion to not enforce it and Colorado did not use “stronger language․ to mandate police action.”¹²⁴

It is at the first hurdle of making a due process claim Plaintiff trips and falls. She has not plausibly alleged a protected property or liberty interest. In Plaintiff's second amended complaint she uses the phrase “due process” more than twenty-five times; however, the vast majority boils down to nothing more than recitation of legally conclusory phrases.¹²⁵ Plaintiff does not allege the independent source of law from which her “due process” rights originate. Therefore, Plaintiff has failed to properly allege a procedural due process claim.

Construing Plaintiff's complaint liberally, she argues the following are protected property and liberty interests: (1) freedom from criminal trespass warnings without a way to appeal, (2) property interest in pursuing her education at TTUHSC EP, (3) liberty interest in her name and reputation.¹²⁶ The latter two can be dealt with quickly. Plaintiff has not put forth any pleadings illuminating law that establishes her objective expectation in pursuing her education at TTUHSC EP. Without such pleading she has failed to make out a claim regarding that potential property interest.

As to her liberty interest, the Supreme Court in Paul v. Davis ruled that an individual did not have a “liberty interest” in their reputation when a government official publicly revealed him as an “active shoplifter”.¹²⁷ “Rather his interest in reputation is simply one of a number which the State may protect against injury by virtue of its tort law․ any harm or injury to that interest, even where as here inflicted by an officer of the State, does not result in a deprivation of any ‘liberty’ or ‘property’ recognized by state or federal law.”¹²⁸ In this case, Plaintiff alleges significantly less than the plaintiff in Davis. In Davis, the plaintiff argued that his “liberty interest in his reputation” was violated when a government official listed his name and picture on a public flyer.¹²⁹ Here, Plaintiff does not put forth any allegations regarding how any official at the school disparaged her reputation publicly, which, of course, would not have been enough anyway following Davis.¹³⁰ Therefore, Plaintiff has failed to plausibly plead any infringement of a supposed due process interest in her good name and reputation.

Plaintiff's last supposed property interest is in being free from receiving a criminal trespass warning without being given due process to challenge it. This claim is premised off the logical conclusion that once Plaintiff receives a CTW she is effectively denied access to the university because the school would then have grounds to criminally charge her if she violates the warning. This purported interest has some legs to it, but Plaintiff's own contradictory allegations fail to establish she was denied due process in connection with the CTWs.

When Plaintiff received her first criminal trespass warning she argues she was not informed of a way to appeal or fight the imposition of a wrongful warning. However, Plaintiff's complaint states that the first criminal trespass warning caused her “to miss two months of classes until the withdrawal was reversed.”¹³¹ Therefore, she clearly did engage in some appeals process and got the first warning removed. She also does not lay out the process she went through in order to get her first warning removed; therefore, the court cannot determine if the school's process was violative of due process in order to make out a claim.

Plaintiff states she was given a second criminal trespass warning suddenly and it did not list a reason for why it was issued.¹³² Plaintiff continues that she “was not given any opportunity to be heard about my ban from all TTUS property,” and she was “not informed of an appeal process.”¹³³ While an allegation like that may warrant the finding of a plausible due process claim, Plaintiff follows up by stating “I also specifically asked if he could discuss my criminal trespass warning appeal with Chief Bonath because it seemed they were deliberately putting off the decision.”¹³⁴ Plaintiff's second statement directly contradicts the first. Taking both as true, as the court must at this stage, Plaintiff was clearly going through an appeal for her second criminal trespass warning. Plaintiff just subjectively believed that her appeal was being unduly delayed. However, she was receiving some type of due process, but she gives no specifics as to what process the school was providing. All she provides is that the appeal was taking “over three weeks” to reach a decision.¹³⁵ Overall, she has failed to sufficiently allege a violation for this final due process “interest” because her allegations establish that she was being provided some process, but not to what degree in order for the court to reach a conclusion that a plausible deprivation of due process occurred.

More critical than procedural due process, Plaintiff does not even come close to sufficiently pleading a substantive right under due process. The substantive component of the due process clause protects two categories of rights from government intrusion unless a higher standard of review is met: (1) “rights guaranteed by the first eight amendments”; and (2) “a list of fundamental rights that are not mentioned anywhere in the Constitution” but are essential to our Nation's “scheme of ordered liberty.”¹³⁶ Plaintiff's due process concerns do not stem from her alleged First Amendment retaliation claim or her Fourth Amendment false arrest claim, they stem from her ability to pursue an education at TTUHSC EP, her desire to protect her good name and reputation, and her desire to be at TTUS property. She has not alleged an unenumerated fundamental right that is essential to our Nation's scheme of ordered liberty that has been infringed by the university's actions.

A somewhat similar case is Board of Curators of the University of Missouri v. Horowitz. It involved a medical student that was dismissed from medical school, and she argued she had a protected liberty interest at school and was denied due process following her dismissal.¹³⁷ The Supreme Court laid out that it has rejected the theory that the mere fact of dismissal, absent some publicizing of the reasons for the action, could amount to stigma infringing one's liberty.¹³⁸ The Court, assuming the existence of a liberty or property interest, ruled that respondent had been awarded at least as much due process as the Fourteenth Amendment requires.¹³⁹ Plaintiff in Horowitz laid out, in detail, the process she went through.¹⁴⁰

The court wants to make clear that it in no way proclaims that Plaintiff must plead facts similar to Horowitz in order to plausibly plead a claim. The standard to survive a motion to dismiss was laid out above. However, Plaintiff has not sufficiently pleaded even the bare elements for a procedural or substantive due process claim nor the procedures, or lack thereof, offered. As such, Plaintiff comes nowhere close to alleging a plausible due process claim.

Plaintiff's second argument is that her Fourth Amendment rights were violated when she was seized by campus police. The relevant facts stem from her first criminal trespass warning. Plaintiff was scheduled to meet with Dr. Ellis on December 1, 2021, regarding an involuntary leave of absence.¹⁴¹ Plaintiff alleges that at this meeting she stated to Dr. Ellis, “if you're going to put [someone] on a LOA, you can treat them all the same and take away everyone's email access.”¹⁴² Plaintiff's main concern for this meeting is that the latest LOA resulted in her access to school resources and school email being revoked. She appears to allege, or merely imply, that other students put on an LOA, who do not have a disability, did not have their access revoked. Dr. Ellis did not provide Plaintiff an answer for why her access was revoked. Plaintiff further alleges that during their meeting, four officers abruptly came into Dr. Ellis' office and ordered Plaintiff to leave.¹⁴³

Plaintiff states she did not ask questions or fight back against the officers. She says she immediately left the office when asked to leave.¹⁴⁴ However, Officer Macias acted in an aggressive manner saying, “[w]alk or I'm going to walk you․ [l]et's go or I'm going to put you in handcuffs.” Officer Perez then spoke with Dr. Ellis, and she appeared to confirm that she wanted to issue a criminal trespass warning against Plaintiff.¹⁴⁵ Plaintiff maintains that she did nothing wrong, complied with orders, and had a right to be on campus.¹⁴⁶ At some point, the officers wanted to confiscate Plaintiff's student badge. Plaintiff asked why, stating that she was still a student.¹⁴⁷ Then Officer Macias grabbed Plaintiff's arm and pushed her against a wall, Officer Perez took her student badge from her pants, and Officer Macias forcibly put Plaintiff in handcuffs.¹⁴⁸ The officers took Plaintiff to the police station and had her stay there for over an hour before issuing a criminal trespass warning.¹⁴⁹ Plaintiff alleges that the officers and Dr. Ellis discussed how or what to charge Plaintiff with and Dr. Ellis admitted that Plaintiff was still a student at that time. Lieutenant Stoltz said, “just do [the criminal trespass warning]․ let's get the hell out of here.”¹⁵⁰

Probable cause is the legal standard that protects an individual from an unreasonable search or seizure. Meaning, if an individual is seized by an officer without probable cause, then it is an unreasonable seizure under the Fourth Amendment. The formula for probable cause is well established: “[p]robable cause exists where ‘the facts and circumstances within their (the officers) knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.’ ”¹⁵¹ Probable cause is a fact based inquiry, and one must look at all facts collectively and in totality to determine probable cause; one should not look at each fact individually.¹⁵² The key for probable cause is what the officers knew at the time based on the facts.

It is beyond question that a detainment occurred, and Plaintiff was seized.¹⁵³ “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”¹⁵⁴ Thus, the open question is whether Plaintiff has plausibly plead that the officers seized her without the legal authority to do so.

There are exceptions to the probable cause requirement prior to a seizure. In Michigan v. Summers, the Supreme Court held that officers executing a search warrant are permitted “to detain the occupants of the premises while a proper search is conducted.”¹⁵⁵ The other important exception stems from the seminal case Terry v. Ohio. A Terry stop allows a limited search and seizure when an officer has reasonable suspicion that an individual has a weapon, or for a limited investigatory purpose.¹⁵⁶ These types of stops are defined by their brief nature and limited scope.¹⁵⁷

These exceptions do not apply here. The officers did not “seize” Plaintiff in connection with the proper search of a premises. Nor did the officers detain Plaintiff for a brief amount of time to frisk for weapons or perform a brief line of questioning. Here, the Plaintiff has made out a plausible claim that the officers detained her without probable cause. Under Texas law, to charge someone with criminal trespass:

[T]he person enters or remains on or in property of another, including residential land, agricultural land, a recreational vehicle park, a building, a general residential operation operating as a residential treatment center, or an aircraft or other vehicle, without effective consent and the person (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do so.158

Taking Plaintiff's allegations as true, she informed the officers that she was a student and still had a student badge on her person; therefore, she was allowed to be on campus. Additionally, she was not informed to leave the school; merely, to leave Dr. Ellis' office. Plaintiff further alleges that she left the office peacefully and was complying with the officers' orders to walk out of the building. Plaintiff states she was trying to de-escalate the situation and explain that she was a student, but officer Macias then forcefully handcuffed her, walked her out of the building, and took her to the station where she remained for over an hour. The only allegation in favor of the officers' actions is the statement that officer Perez went to speak with Dr. Ellis, and she told him to issue a criminal trespass warning.

Reviewing these facts in totality, there is a plausible argument that the officers did not have sufficient facts to conclude a crime was or was in the process of being committed. Other than Dr. Ellis' statement to officer Perez, every other fact supports the inference that Plaintiff was a student and was allowed to be at the school building. This inference is further supported by the allegations that officer Macias, Dr. Ellis, Richard Lange, and Lieutenant Stoltz spent considerable time debating what to issue Plaintiff at the station because they couldn't come to a quick conclusion as to what crime Plaintiff committed. Ultimately, deciding to issue Plaintiff a criminal trespass warning and not charge her with any crime.

It is important to put this within the context of a motion to dismiss review; as such, the court goes no farther than deciding Plaintiff has plausibly pleaded a Fourth Amendment violation. The Fifth Circuit has found plausible violations of other Constitutional rights as violative of the Fourteenth Amendment via the legal principle of incorporation.¹⁵⁹ Therefore, the Fourth Amendment violation is also violative of the Fourteenth Amendment—which is also part of Plaintiff's ADA claim—and satisfies the second prong of the Georgia analysis.

With the first and second prongs satisfied, the court does not need to address the third prong. The third prong of Georgia involves reviewing if Congress's abrogation of sovereign immunity is nevertheless valid even though the misconduct involved does not violate the Fourteenth Amendment.¹⁶⁰ Thus, as to Plaintiff's plausibly pleaded Title II ADA claim, sovereign immunity is abrogated, and Plaintiff can maintain that claim against the institutional Defendants.

c. Cause of Action to Sue Individual Defendants under the Title II of the ADA

It is axiomatic that Title II of the ADA gives an individual the right to sue public institutions for purported infringements of the act's provisions. However, it is an open question, in this circuit, whether Title II of the ADA gives an individual the right to sue individuals in their personal capacity for purported infringements. Based on Fifth Circuit precedent approaching the question and other circuits direct rulings on this question, the court believes Title II of the ADA does not give an individual the right to sue other individuals in their personal capacity.

Title II of the ADA states:

Subject to the provisions of this subchapter, 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.161

The question is based on whether the term “public entity” under Title II includes a public official in their personal capacity. While the Fifth Circuit has not conclusively ruled on this question, there is clear precedent that warrants the conclusion that “public entity” does not include a public official in their personal capacity. The Fifth Circuit has stated on several occasions that Title II of the ADA is the same as § 504 (Rehab Act) except in two respects, (1) the two statutes have different causation requirements, and (2) § 504 has an explicit requirement of showing federal funding for the public institution.¹⁶² In addition, the Fifth Circuit has conclusively stated that § 504 does not allow for individual liability.¹⁶³ Thus, if the ADA tracks the Rehab Act in almost every way, it is logically sound to conclude that the ADA does not provide for individual liability in the same way the Rehab Act does not. The Fifth Circuit comes close to making this proclamation in Prim v. Stein, when it notes, “Janet's Title II claim against Pavilion fails because the Pavilion is a private entity, not a public entity within the meaning of the ADA.”¹⁶⁴

While this may be an open question in this circuit, many other circuits have affirmatively ruled that the ADA does not provide for individual liability. The Second Circuit, in Garcia v. S.U.N.Y. Health Science Center of Brooklyn, declared, “Insofar as Garcia is suing the individual defendants in their individual capacities, neither Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual capacity suits against state officials.”¹⁶⁵ The Eight Circuit in Alsbrook v. City of Maumelle, ruled that the ADA does not provide a cause of action against public officials in their individual capacities.¹⁶⁶ Likewise, the Ninth Circuit stated, “a plaintiff cannot bring an action under 42 U.S.C. § 1983 against a state official in her individual capacity to vindicate rights created by Title II of the ADA or section 504 of the Rehabilitation Act.”¹⁶⁷ The Eleventh Circuit has also reached the same conclusion.¹⁶⁸

Given the great weight of precedent of other circuits and the logical conclusion under binding Fifth Circuit precedent, this court finds that there is no individual liability under Title II of the ADA. Therefore, all of Plaintiff's Title II claims against public officials in their personal capacity are dismissed.

D. Rehab Act

The Plaintiff's next cause of action is under the Rehab Act. There is a point that can be quickly dispensed of following this court's analysis earlier, there is no individual liability under the Rehab Act. The Rehabilitation Act does not provide a cause of action for individual capacity suits against state officials.¹⁶⁹ The Rehabilitation Act provides that no individual with a disability shall be discriminated against solely based on their disability by “any program receiving Federal financial assistance.”¹⁷⁰ The individual Defendants are clearly not “a program” receiving Federal financial assistance, therefore, Plaintiff's claims against the individual Defendants under the Rehab Act must be dismissed

In order to make out a valid Rehab Act claim, a plaintiff must establish a prima facie case that, (1) she is an “individual with a disability”; (2) who is “otherwise qualified”; (3) who worked for a “program or activity receiving Federal financial assistance”; and (4) that she was discriminated against “solely by reason of her or his disability.”¹⁷¹ The Fifth Circuit has recognized that “[j]urisprudence interpreting either [the ADA or RA] is applicable to both”¹⁷² This is because “the rights and remedies afforded plaintiffs under Title II of the ADA are almost entirely duplicative of those provided under § 504 of the Rehabilitation Act.”¹⁷³ The major difference between Title II of the ADA and the Rehab Act is that the ADA requires that an individual's disability be a factor in some capacity, while the Rehab Act requires that the disability be the sole reason for the discrimination.

To be a “sole reason” does not require that discrimination be based solely on invidious discrimination.¹⁷⁴ Meaning, Plaintiff does not have to show the school discriminated against her because it is prejudiced against people with bipolar disorder and wanted to be rid of them. As the Supreme Court observed, “[d]iscrimination against the handicapped is most often not the product of invidious animus but rather of thoughtlessness and indifference—of benign neglect.”¹⁷⁵ In Shaikh v. Texas A&M University College of Medicine, the Fifth Circuit declared that the plaintiff plausibly plead “sole reason” because the plaintiff plead his disability was the sole reason he failed to retake his USMLE Step 1 test and that this triggered the College's decision to dismiss him from the program.¹⁷⁶ The Court continued that the “possibility of additional, or alternative, reasons for the College's decision does not detract from the plausibility of Shaikh's allegation that his disability was the ‘sole reason’ he was denied readmission.”¹⁷⁷

Likewise, Plaintiff claims that the school discriminated against her when it gave her the criminal trespass warnings—the first warning ultimately led to her dismissal as a student. Like Shaikh, it may be possible that there are other reasons for these warnings, but that does not take away from Plaintiff plausibly pleading that these warnings were given based solely on her disability. This conclusion is buttressed with Plaintiff's alleged facts that her first criminal trespass order was justified on the basis of “false reports stating that I was mentally impaired and on the basis of my disability.” Much like in Shaikh where the Dean of Admission's statement that Shaikh was “a liability for psychiatric reasons” was consistent with the conclusion that Shaikh was discriminated against by his disability.¹⁷⁸

Therefore, like Plaintiff's claims under Title II of the ADA, a discrimination claim under the Rehab Act has been plausibly plead. This Rehab Act discrimination claim will proceed past the motion to dismiss stage against just the institutional Defendants. It will be dismissed as to the individual Defendants.

E. 1983 Claims Against Individuals and Qualified Immunity

Lastly, the court addresses Plaintiff's various § 1983 claims. She puts forth several § 1983 claims including: (1) violation of her procedural and/or substantive due process rights; (2) violation of her Fourth Amendment rights; and (3) violation of her First Amendment rights. Defendants argue that each of these claims should be dismissed for failure to state a claim and that the public officials are entitled to qualified immunity.¹⁷⁹ Thus, the applicability of qualified immunity is the next question on deck.

a. Application of Qualified Immunity

The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”¹⁸⁰ Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly—and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.¹⁸¹ The protection of qualified immunity applies regardless of whether the government official's error is “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”¹⁸²

Qualified immunity is “an immunity from suit rather than a mere defense to liability․ it is effectively lost if a case is erroneously permitted to go to trial.”¹⁸³ The Supreme Court has stressed that the doctrine of qualified immunity is designed to ensure that “insubstantial claims' against government officials [will] be resolved prior to discovery.”¹⁸⁴ Thus, the question of qualified immunity must be resolved when raised.

Determination of the application of qualified immunity involves analysis under the two-step test of Saucier. First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right.¹⁸⁵ Second, the court must decide whether the right at issue was “clearly established’ at the time of defendant's alleged misconduct.¹⁸⁶ Qualified immunity is applicable unless the Plaintiff makes out a violation of a constitutional right and the official's conduct violated a clearly established constitutional right. The Supreme Court in Pearson v. Callahan held that Saucier's two-step test is not mandatory in its order.¹⁸⁷ Judges should still adhere to it in some order, but judges are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”¹⁸⁸

When determining whether the law was “clearly established for purposes of qualified immunity, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”¹⁸⁹ The central concept is that of “fair warning.”¹⁹⁰ The inquiry focuses on “whether a reasonable officer could have believed [his or her conduct] to be lawful, in light of clearly established law and the information the․ officers possessed.”¹⁹¹

The determination of what precedent “clearly establishes” the law of which a reasonable officer should be aware is a nuanced subject. The Fifth Circuit has made it clear that Supreme Court and Fifth Circuit precedent could give an officer notice, but general statements of the law do not inherently give fair and clear warning, nor are they incapable of giving fair warning.¹⁹² The Fifth Circuit has also proclaimed, “ ‘[t]here need not be commanding precedent’ that holds that the ‘very action in question’ is unlawful; the unlawfulness need only be ‘readily apparent from relevant precedent in sufficiently similar situation.’ ”¹⁹³ Extrapolating from this precedent, there need not be a one-to-one case that has ruled the exact same action is unlawful; however, “clearly established” law is generally law of a fairly similar factual situation. As an example, if the facts involve a police officer who tased an individual attempting to commit suicide, “clearly established law” does not include cases where an officer's conduct was ruled unlawful when they tased handcuffed individuals.¹⁹⁴ Precedent of the latter would not inform an officer, faced with the former situation, fair notice that his taser use was clearly wrong.

Additionally, law can be clearly established if other circuits or appellate state courts have ruled on the issue. The Supreme Court in Pearson, stated that the officers' actions were determined lawful under the “consent-once removed” doctrine, which had been accepted by three Federal Courts of Appeals and two State Supreme Courts starting in the early 1980's prior to the Tenth Circuit's decision to the contrary (the Circuit from which the case originated).¹⁹⁵ The Court continued, “[t]he officers here were entitled to rely on these cases, even though their own Federal Circuit had not yet ruled on ‘consent-once-removed’ entries.”¹⁹⁶ Finally, Plaintiff has the burden of proving that the law was clearly established.¹⁹⁷

Plaintiff's due process claims were addressed earlier, and it has been established that Plaintiff has failed to plausibly plead a procedural or substantive due process claim. Therefore, she has failed on the first step of Saucier. However, even if the court didn't reach that conclusion, Plaintiff would fail at the second step of Saucier as well. Again, as the court pointed out earlier, neither the Supreme Court nor Fifth Circuit has ruled that the right to education at the University one is accepted to and enrolled in is a property right. Therefore, had Plaintiff made out a plausible due process claim, the constitutional right has not been “clearly established” so qualified immunity applies either way.

While the Plaintiff has plausibly pleaded a general Fourth Amendment violation. Similar to the Fifth Circuit's opinion in Keller v. Fleming, the Plaintiff has—at the motion to dismiss stage—alleged an unreasonable seizure under the Fourth Amendment when Officer Macias forcefully handcuffed and escorted Plaintiff to the station for her first criminal trespass warning.¹⁹⁸ She has failed to carry her burden in establishing Officer Macias' actions violated “clearly established” law.

As mentioned earlier, and as the Defendants point out in their motion to dismiss, when qualified immunity is raised, the Plaintiff has the burden to prove a public official's actions violated “clearly established” law. The Fifth Circuit has made this clear.¹⁹⁹ Plaintiff has failed to meet her burden; therefore, Defendants are entitled to qualified immunity from Plaintiff's § 1983 Fourth Amendment claim. Plaintiff did not cite a single case in her second-amended complaint arguing that Defendants violated “clearly established” law when they performed their constitutionally impermissible actions. More poignantly, in Plaintiff's response to Defendants' motion to dismiss, she did not have a single sentence addressing qualified immunity.²⁰⁰ Plaintiff has clearly failed to carry her qualified immunity burden as dictated by the Fifth Circuit.

A court is allowed to order narrowly tailored discovery on the question of qualified immunity, but the Fifth Circuit has said that such discovery “must not proceed until the district court first finds that the plaintiff's pleadings assert facts which, if true, would overcome the defense of qualified immunity.”²⁰¹ This rule was reaffirmed in Backe v. LeBlanc, where the Fifth Circuit proclaimed, “a plaintiff seeking to overcome qualified immunity must plead specific facts that both allow the court to draw a reasonable inference that the defendant is liable for the harm he has alleged and that defeat a qualified immunity defense with equal specificity.”²⁰² While Plaintiff has plausibly pleaded a Fourth Amendment violation, she has not pled facts that defeat a qualified immunity defense because she does not plead that the Defendants violated “clearly established” law. As such, this court must not grant narrowly tailored qualified immunity discovery.

The same result is warranted for Plaintiff's § 1983 First Amendment retaliation claim. Again, following Pearson, a judge is permitted to use their discretion in deciding which of the two qualified immunity prongs should be addressed first.²⁰³ The Supreme Court's rationale centered on the expenditure of judicial resources on difficult constitutional questions at the first prong when it would have no effect on the outcome because a plaintiff may have no chance to succeed on the second prong.²⁰⁴ Here, it would certainly be a waste of judicial resources to determine if Plaintiff has made out a plausible First Amendment retaliation claim because her failure at the second prong is conclusive. Just as her Fourth Amendment claim, she has not met her burden of providing law that shows—plausibly—that Defendants' actions were objectively unreasonable when they retaliated against her because of her First Amendment activities. As such, Defendants are entitled to qualified immunity on Plaintiff's § 1983 First Amendment claim.

The court is sympathetic to Plaintiff as this outcome is likely based on her lack of education and experience in the law. The Supreme Court has stressed that “[sic] a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”²⁰⁵ However, a harsh result is still warranted when liberal pleading standards conclude so.²⁰⁶ The court allowed Plaintiff to respond to Defendants' motion to dismiss more than eight months from when it was first filed.²⁰⁷ Affording plenty of time to research and address the motion to dismiss. Yet, Plaintiff's actual response to the motion made up only three of the sixty-eight pages she filed and was only a recitation of the standard of review and a conclusory statement: “details that were sufficient to raise the inference that Defendant was culpable.”²⁰⁸

Plaintiff's liberally construed complaint has plausibly pleaded some of her claims. However, there are also some unavoidable conclusions that are warranted.

Lastly, Defendants put forth arguments, in their motion to dismiss, against a preliminary injunction. But there is no need to address the applicability of a preliminary injunction because Plaintiff has failed to request one in her second-amended complaint. Additionally, Plaintiff has failed to plead the necessary elements of a preliminary injunction, and she makes no mention of it in her response to the motion to dismiss.²⁰⁹ Therefore, no preliminary injunction is warranted here.

IV. CONCLUSION

The conclusions of the court are: (1) individual Defendants are entitled to qualified immunity as to all of Plaintiff's § 1983 claims; (2) Sovereign Immunity applies to Plaintiff's § 1983 claims against the institutional Defendants; (3) Sovereign Immunity applies to Plaintiff's IIED claim; (4) Plaintiff's Official Oppression claim is dismissed against all Defendants because it does not have a civil liability component; (5) Sovereign Immunity is abrogated for Plaintiff's ADA Title II claim and she has made out a plausible conscious discrimination claim; (6) Plaintiff has made out a plausible discrimination claim under the Rehab Act, and; (7) Plaintiff's Title II and Rehab Act claims are dismissed against the individual Defendants in their personal capacities because neither statute provides for individual liability. Accordingly,

1. It is HEREBY ORDERED that “Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint” [ECF No. 47] is GRANTED IN PART and DENIED IN PART.

2. It is FURTHER ORDERED that Plaintiff's § 1983 claims against the institutional Defendants, and Plaintiff's IIED claim against all Defendants are DISMISSED WITHOUT PREJUDICE on sovereign immunity grounds.

3. It is FURTHER ORDERED that Plaintiff's § 1983 claims against the individual Defendants are DISMISSED WITH PREJUDICE on qualified immunity grounds.

4. It is FURTHER ORDERED that Plaintiff's Official Oppression claim, and Title II and Rehabilitation Act claims against individual defendants in their personal capacities are DISMISSED WITH PREJUDICE.

5. Defendants' motion to dismiss is DENIED as to Plaintiff's Rehabilitation Act claim of discrimination and, solely, to a conscious discrimination claim under Title II of the ADA against the institutional Defendants and individuals in their official capacity excluding the Texas Tech Police Department.

SIGNED AND ENTERED this 7th day of November 2023.

FOOTNOTES

1.   “Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint” 4, ECF No. 47, filed Dec. 5, 2022.

2.   See generally “Response to Motion to Dismiss” 2–64, ECF No. 101, filed Sep. 13, 2023.

3.   “Plaintiff's Second Amended Complaint Response to Motion to Dismiss” (“Complaint”) 6, ECF No. 27, filed Oct. 6, 2022.

4.   Id.

5.   Id.

6.   Id. at 7.

7.   Id.

8.   Id. at 8.

9.   Id.

10.   Id.

11.   Id.

12.   Id.

13.   Id.

14.   Id. at 9.

15.   Id.

16.   Id.

17.   Id. at 10.

18.   Id. at 11.

19.   Id. at 12.

20.   Id. at 13.

21.   Id. at 28.

22.   Id. at 15.

23.   Id.

24.   Id. at 15–16.

25.   Id. at 16–17.

26.   Id.

27.   Id. at 19.

28.   Id. at 19–20.

29.   Id. at 22.

30.   Id. at 20–21.

31.   Id. at 23.

32.   Id. at 24.

33.   Id. at 25.

34.   Id.

35.   Id. at 27.

36.   Id. at 29.

37.   Id.

38.   Id. at 38.

39.   Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998).

40.   Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

41.   de Sanchez v. Banco Cent. de Nicaragua, 770 F.2d 1385, 1389 (5th Cir. 1985).

42.   FED. R. CIV. P. 12(b)(6).

43.   Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 (5th Cir. 2002) (internal quotation marks and citation omitted); see also In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).

44.   Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

45.   Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

46.   Id. (citing Twombly, 550 U.S. at 556).

47.   Twombly, 550 U.S. at 555.

48.   See Kaiser Aluminum & Chem. Sales, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (citing Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir. 1974)).

49.   U.S. CONST. amend. XI.

50.   See Hans v. Louisiana, 134 U.S. 1, 10 (1890).

51.   Ex parte State of New York No. 1, 256 U.S. 490, 497 (1921).

52.   Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984); See also Clark v. Barnard, 108 U.S. 436, 446–47 (1883) (outlining that the State of Rhode Island consented to suit in federal court).

53.   See Fitzpatrick v. Bitzer, 427 U.S. 445, 454 (1976).

54.   See City of Boerne v. Flores, 521 U.S. 507, 518–19 (1997).

55.   Quern v. Jordan, 440 U.S. 332, 342 (1979).

56.   Id.

57.   See Cory v. White, 457 U.S. 85, 91 (1982).

58.   See Ex parte Young, 209 U.S. 123, 161 (1908).

59.   See United States v. Texas Tech Univ., 171 F.3d 279, 281 (5th Cir. 1999).

60.   “Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint” 5, ECF No. 47, filed Dec. 5, 2022.

61.   Quern, 440 U.S. at 342.

62.   Darby v. Pasadena Police Dep't, 939 F.2d 311, 313 (5th Cir. 1991).

63.   Id.

64.   Cain v. Texas Tech Health Scis. Ctr., 2022 WL 677069 *4 (N.D. Tex. Feb. 11, 2022), report and recommendation adopted, 2022 WL 675810 (N.D. Tex. Mar. 7, 2022).

65.   See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 120–21 (1984).

66.   The Defendants do not clearly express consent to the state law claims, and a common law state law claim would not fall under Congresses Fourteenth Amendment § 5 powers which can be used to abrogate State sovereign immunity.

67.   TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1) (West).

68.   TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (West).

69.   TEX. CIV. PRAC. & REM. CODE ANN. § 101.102 (West).

70.   Sherwinski v. Peterson, 98 F.3d 849, 851–52 (5th Cir. 1996).

71.   Id.

72.   TEX. CIV. PRAC. & REM. CODE ANN. § 101.057 (West).

73.   See TEX. PENAL CODE § 39.03 (West 1994).

74.   Hulett v. City of Dallas, 2000 WL 1010674 *8 (N.D. Tex. July 20, 2000).

75.   Vasquez v. San Benito Consol. Indep. Sch. Dist., 2006 WL 8446897 *1 (S.D. Tex. June 15, 2006); see also Hutchison v. Brookshire Bros., 205 F. Supp. 2d 629, 644 (E.D. Tex. 2002) (“Official oppression is a criminal offense rather than an intentional tort. Official oppression does not give a cause of action for a civil lawsuit.”).

76.   Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 360 (2001).

77.   Hale v. King, 642 F.3d 492, 498 (5th Cir. 2011).

78.   Id.

79.   Id. at 498.

80.   See Luke v. Texas, 46 F.4th 301, 305 (5th Cir. 2022) (Fifth Circuit implied that step one of the Georgia analysis is a 12(b)(6) analysis.); see also Pickett v. Texas Tech Univ. Health Scis. Ctr., 37 F.4th 1013, 1027 (5th Cir. 2022) (Step one of the Georgia analysis is the merits question and the court should consider Plaintiff's well-pleaded complaint allegations as true.).

81.   Id.

82.   Hale, 642 F.3d at 499.

83.   “Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint” 7, ECF No. 47, filed on Dec. 5, 2022.

84.   Id.

85.   Pickett, 37 F.4th at 1034.

86.   Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quotation omitted).

87.   See Windham v. Harris Cnty., Texas, 875 F.3d 229, 235 (5th Cir. 2017) (“[O]ur cases recognize that a public entity's failure reasonably to accommodate the known limitations of persons with disabilities can also constitute disability discrimination under Title II.”).

88.   Pickett, 37 F.4th at 1032.

89.   “Plaintiff's Second Amended Complaint Response to Motion to Dismiss” 6–7, ECF No. 27, filed Oct. 6, 2022.

90.   Windham, 875 F.3d at 237.

91.   Id. at 238.

92.   Ahrens v. Perot Sys. Corp., 205 F.3d 831, 835 (5th Cir. 2000).

93.   Id. at 835.

94.   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)).

95.   See Pickett, 37 F.4th at 1034.

96.   Complaint at 13.

97.   Id. at 18.

98.   Id. at 29.

99.   Id. at 19.

100.   Id. at 20.

101.   Id. at 29.

102.   Rollerson v. Brazos River Harbor Navigation Dist., 6 F.4th 633, 640 (5th Cir. 2021).

103.   Id. at 25.

104.   Campbell v. Lamar Inst. of Tech., 842 F.3d 375, 382 n.5 (5th Cir. 2016).

105.   Complaint at 8.

106.   Id.

107.   Id. at 10–11.

108.   Id. at 28.

109.   Picket, 37 F.4th at 1035 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009)).

110.   Hale, 642 F.3d at 498.

111.   See County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998).

112.   Jauch v. Choctaw County, 874 F.3d 425, 430 (5th Cir. 2017) (quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974)).

113.   See Mathews v. Eldridge, 424 U.S. 319, 332 (1976).

114.   James v. Cleveland Sch. Dist., 45 F.4th 860, 867 (5th Cir. 2022) (quoting Edionwe v. Bailey, 860 F.3d 287, 283 (5th Cir. 2017).

115.   DePree v. Saunders, 588 F.3d 282, 289 (5th Cir. 2009).

116.   Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).

117.   Id. (Deciding that Plaintiff Roth did not have a protected property interest in returning as an assistant professor after his one-year term concluded. Roth's employment was determined by his contract, and his contract did not provide for further employment after the set end date.).

118.   See Goldberg v. Kelly, 397 U.S. 254, 259–60 (1970); see also Eldridge, 424 U.S. at 332; see also McDonnell, 418 U.S. at 571; see also Morrissey v. Brewer, 408 U.S. 471, 482 (1972) (Stating that a parolee's liberty is valuable and must be seen as within the protection of the Fourteenth Amendment.); see also Goss v. Lopez, 419 U.S. 565, 574 (1975).

119.   See Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 462 (1989).

120.   Id. at 463.

121.   Id. at 464.

122.   Id.

123.   Id. at 465.

124.   See Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 763–64 (2005).

125.   Some of Plaintiff's conclusory use of the term “due process” and “due process rights” include the following examples: (1) “For both criminal trespass warnings I was not given any opportunity to be heard about my ban from all TTUS property․ implicating I was not afforded procedural due process”; (2) “[n]either TTPD, TTUHSC EP, or TTUS has a written policy in regard to criminal trespass warnings, which is unconstitutionally vague and violates due process”; (3) “I would like to bring up other common theme of TTUS not giving me proper due process and I would appreciate it if you could ensure that I am given due process for my CTW appeal”; (4) “For each criminal trespass warning I was not afforded my due process rights”; (5) “It is well-established that I had a protected right to due process of law in my public institution”; (6) “I had a protected interest in pursuing my education, as well as in my future educational employment opportunities, of which cannot be deprived by state without due process.” See generally Complaint.

126.   Id. 35–37.

127.   See Paul v. Davis, 424 U.S. 693, 712 (1976) (“For these reasons we hold that the interest in reputation asserted in this case is neither “liberty” nor “property” guaranteed against state deprivation without due process of law.”).

128.   Id.

129.   Id. at 695.

130.   See also Bishop v. Wood, 426 U.S. 341, 349 (1976) (Ruling that the government did not violate a fired police officer's liberty due process right to reputation when the reasons for his release were stated to him in private, and thus had no impact on his reputation.).

131.   Complaint at 14.

132.   Id. at 20–21.

133.   Id. at 24–25.

134.   Id. at 27.

135.   Id.

136.   See Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228, 2246 (2022).

137.   See Bd. of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 80–82 (1978).

138.   Id. at 83.

139.   Id. at 85.

140.   Id. at 81 (Respondent's performance was below that of her peers in all clinical patient-oriented settings and the Council of Evaluation (consisting of faculty and students) recommended she advance to her final year on a probationary basis. Respondent continued to perform poorly, and the Council concluded that respondent should not be considered for graduation and wanted to determine if she should be dropped from the school. Respondent was given an opportunity to appeal the decision by submitting a set of oral and practical examinations and meeting with seven practicing physicians. The physicians then gave reports to the Council where 5 of 7 recommended at least holding her back from graduation. The Council reaffirmed its positions. Then after reviewing one more set of respondent's rotations the Council decided to drop respondent from the school. The Coordinating Committee and the Dean approved the recommendation. Respondent appealed the decision from the Dean in writing and lost.).

141.   Complaint at 9 (Plaintiff's complaint lists a meeting date of December 1, 2022, but her complaint is not consistent with the dates. Construing the complaint, as this court must, December 1, 2021, appears like the correct date since Plaintiff states she was given the first criminal trespass warning on December 1, 2021, and she further states that the criminal trespass warning stemmed directly from this meeting.).

142.   Id.

143.   Id.

144.   Id.

145.   Id. at 10.

146.   Id. at 10–11 (She states she was still a student at the time, had a student badge, and informed the officers she was still a student.).

147.   Id. at 12.

148.   Id. at 12–13.

149.   Id. at 13–14.

150.   Id.

151.   Brinegar v. U.S., 338 U.S. 160, 175–76 (1949).

152.   See District of Columbia v. Wesby, 138 S.Ct. 577, 588 (2018).

153.   (A seizure occurs if “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”) U.S. v. Mendenhall, 446 U.S. 544, 554 (1980).

154.   Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891).

155.   Michigan v. Summers, 452 U.S. 692, 705 (1981). (Limiting this exception when the Supreme Court ruled that detainment under Summers is limited to the “immediate vicinity of a premises to be searched.” Bailey v. U.S., 568 U.S. 186, 201 (2013)).

156.   See Terry v. Ohio, 392 U.S. 1, 30 (1968) (“Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized.”).

157.   Id. at 33 (Harlan, J., concurring) (“Just as a full search incident to a lawful arrest requires no additional justification, a limited frisk incident to a lawful stop must often be rapid and routine.”).

158.   TEX. PENAL CODE § 30.05(a).

159.   See Douthit v. Collier, No. 20-20550, 2022 WL 5240152 (5th Cir. Oct. 5, 2022); see also Valentine v. Collier, 993 F.3d 270, 280–81 (5th Cir. 2021) (“Because the Eight Amendment applies to the states through the Fourteenth Amendment, an ADA violation that is also an Eighth Amendment violation actually violates the Fourteenth Amendment.”).

160.   Georgia, 546 U.S. at 159.

161.   42 U.S.C.A. § 12132 (West) (emphasis added).

162.   See Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 291 (5th Cir. 2005) (“The primary difference between the ADA and § 504 is that § 504 applies only to recipients of federal funds); see also Pinkerton v. Spellings, 529 F.3d 513, 517 (5th Cir. 2008) (Rejecting an argument that the causation standard for § 504 is also the causation standard for Title II of the ADA given the extensive similarities between the two statutes.); see also J.W. v. Paley, No. 21-20671, 2023 WL 5526787, at *5 (5th Cir. Aug. 28, 2023) (“ ‘The language in the ADA generally tracks the language set forth in [§ 504].’ And the ADA expressly provides that ‘[t]he remedies, procedures, and rights’ available under the Rehabilitation Act are also accessible under the ADA. Thus, we ‘equate [ ] liability standards under § 504 [of the Rehabilitation Act] and the ADA.’ ”).

163.   Lollar v. Baker, 196 F.3d 603, 609 (5th Cir. 1999) (“Here it is clear that SMRC—not Baker—is the program recipient of the federal financial assistance. Consequently, Lollar cannot sue Baker, individually, under the Act.”)

164.   Prim v. Stein, 6 F.4th 584, 594 (5th Cir. 2021).

165.   Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001).

166.   See Alsbrook v. City of Maumelle, 184 F.3d 999, 1011 (8th Cir. 1999) (“More fundamentally, we find that Alsbrook cannot bring a section 1983 claim against the commissioners in their individual capacities when, as we have earlier concluded, he could not do so directly under the ADA.”).

167.   Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002).

168.   See Badillo v. Thorpe, 158 F. App'x 208, 211 (11th Cir. 2005) (“To the extent that Badillo seeks to hold Benefiel personally liable, there is no individual capacity liability under Title II of the ADA or RA.).

169.   See Lollar, 196 F.3d at 609; see also Garcia, 280 F.3d at 107.

170.   29 U.S.C.A. § 794(a) (West).

171.   Houston v. Texas Dep't of Agric., 17 F.4th 576, 586 (5th Cir. 2021).

172.   Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000).

173.   Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005).

174.   Shaikh v. Texas A&M Univ. Coll. of Med., 739 F. App'x 215, 222 (5th Cir. 2018).

175.   See Id. at 223 (quoting Alexander v. Choate, 469 U.S. 287, 295—97 (1985).

176.   Id.

177.   Id.

178.   Id.

179.   “Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint” 16–17, ECF No. 47, filed Dec. 5, 2022.

180.   Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

181.   Pearson v. Callahan, 555 U.S. 223, 231 (2009).

182.   Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting).

183.   Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis deleted).

184.   Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987).

185.   Saucier v. Katz, 533 U.S. 194, 201 (2001).

186.   Id.

187.   Pearson, 555 U.S. at 236.

188.   Id.

189.   Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008).

190.   Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).

191.   Anderson, 483 U.S. at 641.

192.   See Keller v. Fleming, 952 F.3d 216, 225 (5th Cir. 2020) (citing Hope v. Pelzer, 536 U.S. 730, 741 (2002)); see also Brown, 519 F.3d at 237–38 (determining that a lab technician was properly denied qualified immunity because it is well settled that a criminal defendant has a right to be free from false or fabricated evidence as determined by the Fifth Circuit and other Circuits.).

193.   Id.

194.   See generally Ramirez v. Escajeda, 44 F.4th 287, 293 (5th Cir. 2022).

195.   Pearson, 555 U.S. at 244.

196.   Id.

197.   See Keller, 952 F.3d at 225.

198.   Id. at 224. (“Accordingly, without a valid exception to the probable cause requirement, the seizure is therefore presumptively unreasonable, and a constitutional violation is present.”).

199.   Id. at 221 (“Plaintiffs bear the burden to rebut Deputy Fleming's qualified Immunity defense and demonstrate that there were Fourth and Fourteenth Amendment rights that were clearly established at the time of the constitutional violation.); see also Kovacic v. Villarreal, 628 F.3d 209, 214 (5th Cir. 2010) (“Plaintiffs have not referenced a single case in either the district courts or the court of appeals of this circuit in which state actors were held liable for private harm caused to an individual after he was released from custody․ [a]s stated above, once a defendant invokes qualified immunity, the burden shifts to the plaintiff to show that the defendant is not entitled to qualified immunity.”).

200.   See generally “Response to Motion to Dismiss” 66–68, ECF No. 101, filed Sep. 13, 2023.

201.   Wicks v. Mississippi State Emp. Servs., 41 F.3d 991, 994 (5th Cir. 1995).

202.   Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012) (emphasis added).

203.   Pearson, 555 U.S. 223 at 236.

204.   Id. at 237.

205.   Erickson v. Pardus, 551 U.S. 89, 94 (2007).

206.   See Simmons v. United States, 142 S.Ct. 23, 25 (2021).

207.   “Order Granting Time to Respond to Motion to Dismiss” 1–2, ECF No. 100, entered Aug. 22, 2023.

208.   See generally “Response to Motion to Dismiss” 65–68, ECF No. 101, filed Sep. 13, 2023.

209.   Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”).

FRANK MONTALVO SENIOR UNITED STATES DISTRICT JUDGE