Plea to the Jurisdiction or, in the Alternative, Plea in Abatement, with exhibits; diagnosis terms blacked out on this copy¶
Bass v. D'Agostino and McSween, No. DC-2025-CV-1817 / No. 15-26-00132-CV · 2026-02-09 · PDF
Text extracted from the PDF; scanned pages were read by OCR. The PDF is the authoritative copy.
Filed 2/9/2026 5:11 PM
Sara L. Smith
Lubbock County - 237th District Court
Lubbock County, Texas
TB
CAUSE NO. DC-2025-CV-1817
KEVIN N. BASS,
Plaintiff,
vs.
DARRIN D’AGOSTINO, D.O.,
M.P.H., M.B.A., in his official capacity
as Provost and Executive Vice
President of Academics of Texas Tech
University Health Sciences Center; and
AMANDA McSWEEN, in her official
capacity as Managing Director of
Enrollment Services and University
Registrar of Texas Tech University
Health Sciences Center,
Defendants.
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IN THE DISTRICT COURT
OF LUBBOCK COUNTY, TEXAS
237th JUDICIAL DISTRICT
DEFENDANTS’ PLEA TO THE JURISDICTION OR, IN THE ALTERNATIVE,
PLEA IN ABATEMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, DARRIN D’AGOSTINO, D.O., M.P.H., M.B.A., in his official capacity as
Provost and Executive Vice President of Academics of Texas Tech University Health Sciences
Center, and AMANDA McSWEEN, in her official capacity as Managing Director of Enrollment
Services and University Registrar of Texas Tech University Health Sciences Center (collectively,
“Defendants”) in the above-entitled and numbered cause, and file this Plea to the Jurisdiction or,
in the alternative, Plea in Abatement, and would respectfully show the Court as follows:
I.
INTRODUCTION
This case presents a threshold jurisdictional and procedural defect arising from Plaintiff’s
attempt to litigate the same academic disciplinary controversy simultaneously in two sovereign
forums. Plaintiff first filed this state-court action on November 5, 2025, seeking prospective ultra
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vires relief relating to education-record access and transcript procedures following his dismissal
from Texas Tech University Health Sciences Center (“TTUHSC”). 1 Two days later, on November
7, 2025, Plaintiff initiated a parallel federal civil-rights lawsuit in the United States District Court
for the Northern District of Texas challenging the same disciplinary proceedings, dismissal
decision, and transcript consequences that underlie this case. 2
Although this Court was the first to acquire jurisdiction, the subsequently filed federal
action asserts broader constitutional and statutory claims against overlapping institutional
defendants and university officials and raises threshold sovereign-immunity defenses that are
presently pending. Allowing Plaintiff to prosecute duplicative claims against the same university
officials—including Dr. D’Agostino and Ms. McSween—in parallel sovereign forums creates a
substantial risk of inconsistent rulings, nullifies immunity protections, and imposes precisely the
litigation burdens sovereign immunity is designed to prevent. Texas courts have repeatedly
cautioned against parallel proceedings that fracture a single controversy across multiple courts.
See Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988); Van Dyke v. Boswell, O’Toole,
Davis & Pickering, 697 S.W.2d 381, 383 (Tex. 1985).
For these reasons, and those set forth below, this Court should dismiss this action for lack
of jurisdiction or, at minimum, abate proceedings pending federal disposition.
1
See Plaintiff’s First Amended Verified Original Petition and Application for Temporary Injunction, filed November
5, 2025, in the state-court action, attached hereto as Exhibit 1. Plaintiff’s First Amended Petition, page 5, explains
that Plaintiff’s first attempt at filing was “rejected for procedural reasons.” Plaintiff then re-filed moments later as the
First Amended Verified Original Petition and Application for Temporary Injunction. It is Defendants’ understanding
that no “Original Petition” is filed with this Court.
2
See Plaintiff’s Verified Complaint for Damages, Declaratory, and Injunctive Relief, filed November 7, 2025, in the
federal action, attached hereto as Exhibit 2.
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II.
A.
FACTUAL AND PROCEDURAL BACKGROUND
The State-Court Action
Plaintiff filed this lawsuit against TTUHSC officials in their official capacities seeking
prospective injunctive relief concerning education-record inspection, amendment procedures, and
transcript-related processes arising from his academic dismissal. Although framed as a “procedureonly” ultra vires action, the petition expressly arises from the transcript dismissal notation and the
institutional education records generated by TTUHSC’s disciplinary proceedings. Plaintiff seeks
court intervention into the manner in which those records are maintained, reviewed, and annotated.
Thus, while the petition 3 disclaims a direct merits challenge to the dismissal itself, the relief
sought necessarily implicates the academic determinations and disciplinary outcomes reflected in
those records.
B.
The Subsequently Filed Federal Action
Two days after initiating this lawsuit, Plaintiff filed a parallel civil action in the United
States District Court for the Northern District of Texas styled Kevin N. Bass v. Texas Tech
University Health Sciences Center, et al., Civil Action No. 5:25-cv-00244-H-BV. The federal
complaint asserts claims under 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act,
and § 504 of the Rehabilitation Act, and seeks declaratory and injunctive relief arising from the
same disciplinary proceedings, dismissal decision, and transcript consequences at issue here.
Defendants have filed a Motion to Dismiss in the federal action pursuant to Rules 12(b)(1) and
12(b)(6), asserting sovereign immunity, qualified immunity, and failure to state a claim. 4
That motion remains pending.
3
At present, the live pleading in the state-court action is Plaintiff’s Third Amended Petition, which is on file with the
papers in this cause and incorporated by reference herein.
4
See Defendants’ Motion to Dismiss, filed January 21, 2026, attached hereto as Exhibit 3.
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C.
Identity of Parties Across Parallel Proceedings
The duplicative nature of Plaintiff’s litigation is underscored by the identity of parties
named in both forums. In this state action, Plaintiff sues Darrin D’Agostino, D.O., in his official
capacity as Provost and Executive Vice President of Academics of Texas Tech University Health
Sciences Center, and Amanda McSween, in her official capacity as Managing Director of
Enrollment Services and University Registrar. These same officials are likewise named
defendants in Plaintiff’s federal lawsuit arising from the same disciplinary proceedings and
academic actions. Thus, Plaintiff is prosecuting parallel claims against the same university
officials, arising from the same disciplinary dismissal and transcript consequences, in two separate
sovereign forums.
The identity of parties across proceedings is a critical factor in determining whether suits
are inherently interrelated. Texas courts focus on whether the parties and controversies are “the
same or interrelated,” not whether the pleadings are identically framed. In re J.B. Hunt Transp.,
Inc., 492 S.W.3d 287, 294 (Tex. 2016). Where, as here, the same university officials are haled into
dual sovereign forums arising from the same disciplinary nucleus, duplicative litigation concerns
are at their apex. Such parallel proceedings expose state officials to inconsistent obligations,
duplicative discovery burdens, and conflicting judicial directives—the precise harms abatement
doctrine is designed to prevent.
III.
PLEA TO THE JURISDICTION
Having established the procedural posture and overlapping party structure of the parallel
proceedings, Defendants now address this Court’s subject-matter jurisdiction. Sovereign immunity
from suit deprives Texas courts of jurisdiction absent legislative waiver or a valid ultra vires claim.
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Because immunity
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implicates the Court’s power to adjudicate the dispute at all, it is properly raised through a plea to
the jurisdiction and must be resolved at the threshold before the parties are subjected to litigation
burdens.
A.
Ultra Vires Jurisdiction is Narrow and Limited
To overcome sovereign immunity, Plaintiff must plead a viable ultra vires claim falling
within the narrow exception recognized by the Texas Supreme Court. That burden is substantial,
and courts must look beyond artful pleading to determine whether a plaintiff is attempting to
control discretionary governmental conduct through procedural reframing. See City of El Paso v.
Heinrich, 284 S.W.3d 366, 372-73 (Tex. 2009).
Plaintiff attempts to invoke the ultra vires exception to sovereign immunity. However, that
exception is “narrow” and carefully circumscribed. See id. It permits prospective relief only where
an official acts without legal authority or fails to perform a purely ministerial duty. It does not
authorize courts to second-guess discretionary governmental decision-making or to entertain
collateral attacks on institutional determinations recast as procedural grievances.
Accordingly, courts must scrutinize ultra vires pleadings to ensure that plaintiffs are not
merely repackaging discretionary grievances as ministerial violations to circumvent immunity.
When the substance of the claim targets institutional judgment, the ultra vires exception does not
apply.
B.
Plaintiff’s Claims Impermissibly Target Discretionary Academic Judgments
Although Plaintiff characterizes this suit as a records-procedure dispute, the relief sought
necessarily implicates TTUHSC’s disciplinary dismissal and transcript notation. Academic
discipline, transcript designations, and student status determinations are quintessential
discretionary institutional judgments entitled to judicial deference. Indeed, Plaintiff’s federal
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lawsuit challenges those same academic determinations directly, asserting constitutional and
statutory claims arising from the disciplinary proceedings and resulting dismissal. Ultra vires
jurisdiction cannot be used as an indirect vehicle to re-litigate discretionary academic decisions.
Texas courts likewise recognize that academic and disciplinary determinations fall within
the discretionary authority of educational institutions and are entitled to substantial judicial
deference. See, e.g., Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985) (courts should
defer to academic decisions unless a substantial departure from accepted academic norms exists);
University of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 931 (Tex. 1995) (recognizing
judicial reluctance to interfere with academic decision-making and institutional disciplinary
determinations); see also Alcorn v. Vaksman, 877 S.W.2d 390, 403 (Tex. App.—Houston [1st
Dist.] 1994, writ denied) (courts defer to academic judgments absent arbitrary or capricious
action).
This deference is particularly strong in the higher-education disciplinary context, where
courts lack institutional competence to reweigh academic determinations. See Than, 901 S.W.2d
at 931. Plaintiff’s requested relief would necessarily require this Court to intrude into academic
classification and disciplinary judgment—relief sovereign immunity squarely prohibits. Plaintiff
cannot circumvent sovereign immunity by recasting that same academic controversy as a
ministerial records dispute in state court.
C.
No Ministerial Duty Exists
A ministerial act is one “where the law clearly spells out the duty to be performed…with
such certainty that nothing is left to the exercise of discretion.” Anderson v. City of Seven Points,
806 S.W.2d 791, 793 (Tex. 1991). Texas courts consistently hold that acts involving judgment,
policy application, or professional evaluation are discretionary—not ministerial. See City of
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Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994). Academic classification, disciplinary
determinations, and transcript designations necessarily involve evaluative institutional judgment
and therefore fall outside ultra vires jurisdiction.
Because Plaintiff identifies no statute imposing a nondiscretionary obligation to alter
transcript notations or disciplinary classifications, his claims fall outside the ultra vires exception
as a matter of law. See Heinrich, 284 S.W.3d at 372-73. Sovereign immunity therefore deprives
this Court of jurisdiction, and dismissal is required.
D.
This Case is Not Ripe
Even if Plaintiff could surmount sovereign immunity—which he cannot—this Court would
still lack jurisdiction because the claims are not ripe. Ripeness is a component of subject-matter
jurisdiction designed to prevent courts from entangling themselves in abstract disagreements over
administrative processes. Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998).
Ripeness further requires that an agency or official reach a final, definitive position before judicial
intervention is appropriate. Texas Dep’t of Protective & Regulatory Servs. v. Mega Child Care,
Inc., 145 S.W.3d 170, 198 (Tex. 2004). Here, Plaintiff’s petition confirms that institutional review
processes concerning education records remain ongoing and available. Where administrative
avenues remain open, courts lack jurisdiction to intervene.
Because sovereign immunity and ripeness defects independently deprive this Court of
jurisdiction, dismissal is warranted. However, even assuming arguendo that jurisdiction existed,
the Court should not permit duplicative litigation against the same officials to proceed
simultaneously in dual forums. Where administrative review mechanisms remain ongoing and no
final institutional refusal has occurred, courts lack jurisdiction to intervene. See Mega Child Care,
145 S.W.3d at 198.
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Plaintiff’s claims are therefore premature, rendering this dispute non-justiciable and
subject to dismissal.
IV.
PLEA IN ABATEMENT
Texas courts possess inherent authority to abate proceedings to avoid duplicative litigation,
prevent inconsistent judgments, and promote judicial economy. See Wyatt, 760 S.W.2d at 248;
Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974). The purpose of abatement is to avoid “a
multiplicity of suits and the possibility of conflicting judgments.” Wyatt, 760 S.W.2d at 248. Even
where the state court first acquires jurisdiction, abatement is appropriate when a subsequently filed
action involving the same parties and controversy may resolve threshold jurisdictional or immunity
issues dispositive of the dispute.
A.
The Federal and State Actions are Inherently Interrelated
The interrelationship between the two proceedings is unmistakable. Both suits arise from
(1) the same disciplinary hearing, (2) the same dismissal decision, (3) the same transcript notation,
and (4) the same institutional records. Furthermore, both name overlapping university officials—
including D’Agostino and McSween—as defendants. Courts assessing abatement examine
whether the controversies are “inherently interrelated,” not whether the legal theories are identical.
In re J.B. Hunt, 492 S.W.3d at 294.
Given the identical disciplinary nucleus, overlapping institutional records, and the presence
of Dr. D’Agostino and Ms. McSween as defendants in both proceedings, the two suits are not
merely interrelated—they are functionally duplicative. Permitting both to proceed invites
conflicting adjudications concerning the same academic determinations and record consequences.
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B.
Immunity Sequencing Warrants Abatement
The federal court is presently considering sovereign-immunity and qualified-immunity
defenses asserted by the same institutional defendants named here. Immunity is not merely a
defense to liability—it is an entitlement not to stand trial or face the burdens of litigation. See
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Texas courts likewise recognize that immunity is
intended to shield governmental officials not only from liability but from the burdens of litigation
itself. See Harris Cty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004). Permitting parallel litigation to
proceed while immunity defenses remain pending would undermine the very purpose of
immunity—protection from the burdens of suit itself. Furthermore, if immunity is granted
federally, this action may be rendered moot or substantially narrowed.
C.
Claim-Splitting Supports Abatement
Plaintiff divided a single disciplinary controversy into dual sovereign forums within forty-
eight hours. Texas law disfavors claim-splitting because it breeds litigation, multiplies costs, and
needlessly burdens courts and parties. See Van Dyke, 697 S.W.2d at 383. Such litigation
fragmentation undermines judicial economy and warrants discretionary abatement to preserve
orderly adjudication. See id.
D.
Comity and Judicial Economy Favor Abatement
Federal–state comity further supports staying this case. The Northern District of Texas is
positioned to resolve the following: (1) constitutional claims, (2) institutional authority issues, and
(3) immunity defenses. Allowing both cases to proceed risks inconsistent rulings and unnecessary
expenditure of judicial resources. Abatement promotes orderly adjudication.
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V.
CONCLUSION AND PRAYER FOR RELIEF
For all of these reasons—including sovereign immunity, the narrow limits of ultra vires
jurisdiction, lack of ripeness, duplicative party identity, claim-splitting, and the pendency of
dispositive federal immunity rulings involving the same officials—this Court should decline to
exercise jurisdiction over this parallel proceeding.
At minimum, fundamental principles of comity, judicial economy, and immunity
sequencing warrant abatement pending federal disposition, where threshold jurisdictional defenses
designed to shield state officials from litigation burdens are currently under consideration.
WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request that the
Court:
1.
Grant this Plea to the Jurisdiction and dismiss Plaintiff’s claims without prejudice;
or
2.
Alternatively, grant the Plea in Abatement and stay all proceedings pending final
disposition of the federal action; and
3.
Grant all other and further relief to which Defendants are entitled.
Respectfully submitted,
KEN PAXTON
Attorney General
BRENT WEBSTER
First Assistant Attorney General
RALPH MOLINA
Deputy First Assistant Attorney General
AUSTIN KINGHORN
Deputy Attorney General for Civil Litigation
KIMBERLY GDULA
Chief, General Litigation Division
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/s/ Scott D. Smith
SCOTT D. SMITH
Assistant Attorney General
Texas Bar No. 24011874
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 917-3132
Division Fax: (512) 477-2348
Email: scott.smith@oag.texas.gov
Counsel for Defendants
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CERTIFICATE OF SERVICE
This will certify that a true and correct copy of the foregoing instrument was served in
accordance with Rule 21a of the Texas Rules of Civil Procedure upon the party of record below
on this 9th day of February, 2026.
Kevin N. Bass
Phone: 512-333-4092
Email: kbassphiladelphia@gmail.com
Pro Se Plaintiff
/s/ Scott D. Smith________
SCOTT D. SMITH
Assistant Attorney General
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EXHIBIT 1
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Filed 11/5/2025 11:54 PM
Sara L. Smith
Lubbock County - 237th District Court
Lubbock County, Texas
SG
DC-2025-CV-1817
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c. Amanda McSween, Managing Director of Enrollment Services & University
Registrar (custodian of academic records/transcripts; implements
annotations/appendments).
d. Lauren Cobbs, M.D., M.Ed., F.A.C.P., Senior Associate Dean for Student
Affairs, School of Medicine (school-level implementation/scheduling coordination).
e. Tamara Mancini, M.Ed., Director, Student Disability Services (ADA/§504
accommodations at the hearing).
f. Simon Williams, Ph.D., Senior Associate Dean for Academic Affairs, School of
Medicine (school-level implementation for academic status processes).
For service of process on each official: Texas Tech University Health Sciences
Center,
3601 4th Street, Lubbock, Texas 79430 (their usual place of business).
3. Jurisdiction & Venue. This Court has jurisdiction over claims for prospective
relief requiring state officers to comply with
constitutional/statutory duties (ultra vires). Venue is mandatory in Lubbock
County because this suit primarily seeks
injunctive relief against resident state officers. Tex. Civ. Prac. & Rem. Code §
65.023(a). Governmental immunity does not bar
prospective, official-capacity ultra vires claims. See, e.g., City of El Paso v.
Heinrich, 284 S.W.3d 366 (Tex. 2009).
II. INTRODUCTION AND NATURE OF THE ACTION
4. University officials authorized or issued communications portraying Plaintiff as
·threatening· or otherwise dangerous and
imposed exclusion measures. Those statements were false. The University later
acknowledged Plaintiff was not a threat, yet
the initial stigma persisted in official channels and foreseeably reached
outsiders.
5. Plaintiff repeatedly requested a public, on-the-record opportunity to clear his
name and to correct or annotate affected
records; officials did not provide that process.
III. FACTS (Exhibit-Free; Dates/Actors/Quotes Included)
A. Government publication (official channels; class-wide broadcast)
6. On October 19, 2025, Plaintiff requested a public name-clearing hearing, interim
transcript relief, ADA/§ 504 accommodations,
and preservation; the request set an October 21, 2025, 5:00 p.m. CT deadline to
identify the scheduling official and procedures.
The deadline passed without the required action.
7. Around this period, official statements were disseminated to students and other
recipients. Two publications are central:
(i) on January 1, 2024, a public-facing post stated that a committee had voted to
expel Plaintiff; and (ii) at 7:46 a.m. on
January 7, 2024, the Assistant Vice Dean for Student Affairs sent a class-wide
broadcast stating ·we are one student lighter
than last week,· instructing recipients to ·check his Twitter.· System records
reflect a recall attempt of that message. These
are agency publications, not private rumor.
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notation was transmitted to third-party institutions; at least one recipient
B. Status change and exclusion measures (Emergency Removal; CTW)
8. On and after November 4, 2023, the University imposed Emergency Removal and
issued a criminal trespass warning (CTW)
barring Plaintiff from TTUHSC campus or property pending further process.
Although the CTW later expired, while in force it
operated as an official restriction on Plaintiff·s access and movement.
9. While the CTW was in effect, Plaintiff was required to coordinate any campus
presence through Texas Tech Police (including
CDRC drop-off/pick-up), often resulting in visible police escort. That visible
involvement signaled to others that Plaintiff
was dangerous, causing stigma and humiliation and deterring him from visiting
campus-based witnesses or offices to gather
evidence. The Emergency Removal/CTW thus imposed concrete, intimidating burdens
on ordinary activities and on case
preparation·part of the ·status-change· plus·while the ongoing reputational harm
and publication are addressed below.
C. Present-tense dissemination via official records (transcript notation;
third-party recipients)
10. On October 16, 2025, TTUHSC issued an official transcript listing
·Administrative Dismissal Effective 01-11-2024.· That
declined to offer an interview. This is ongoing
publication via official records, warranting annotation/appendment of a
corrective hearing record to any future disclosure.
D. ADA/§ 504 context (notice; policy anchors; why prior process was not a
name-clearing hearing)
11. Plaintiff gave Student Disability Services notice on December 8, 2023 and
requested accommodations consistent with TTUHSC
policy. The prior internal proceeding did not function as a public name-clearing
hearing: accommodations evidence was treated
outside scope, questioning was time-limited, and recording ceased before
deliberations.
E. Request and denial (element satisfied)
12. Plaintiff requested a name-clearing hearing (¶ 6); the October 21 deadline
passed without scheduling, and subsequent follow-ups
failed to secure the hearing. Request and denial are adequately alleged.
IV. CLAIMS FOR PROSPECTIVE RELIEF (Official-Capacity Only; No Damages)
COUNT 1 · Texas Due Course of Law (Tex. Const. art. I, § 19): Stigma-Plus /
Name-Clearing
13. Government publication of false, stigmatizing charges tied to a status change
triggers a right to a public name-clearing hearing
and to a corrective record appended to future disclosures.
COUNT 2 · Ultra Vires Injunctive Relief (Prospective Only)
14. Under TTUHSC·s Student Education Records policy (HSC OP 77.13 or successor), the
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EVPAA (Provost) or designee must arrange a
hearing upon request, and the President or designee must appoint the hearing
official/committee; if no change is ordered, the
student·s statement must be maintained with, and disclosed with, the contested
portion. Defendants with these duties act without
legal authority when they refuse to perform them or decline to implement lawful
correction/annotation. Prospective injunctions
should compel compliance.
COUNT 3 · Statutory Annotation/Correction (Tex. Gov·t Code § 559.004)
15. Section 559.004 requires a reasonable correction/annotation procedure for
incorrect personal information. Refusal to apply that
procedure warrants prospective orders implementing it here, including appendment
of the hearing record or student statement to
any future disclosure.
V. APPLICATION FOR TEMPORARY INJUNCTION
16. Probable right to relief: ¶¶ 6-12 allege stigmatizing publication, status
change, falsity, lack of an adequate prior public
hearing, request, and denial.
17. Probable, imminent, irreparable injury; no adequate remedy at law: Ongoing
dissemination of disputed stigma via official
records/transcripts to third parties is non-compensable reputational and
opportunity harm; Plaintiff seeks equitable process.
Although the CTW has expired, the current harm arises from TTUHSC·s ongoing
dissemination of stigmatizing information through
official records/transcripts to third parties, which equitable relief can remedy
by ordering a public name-clearing/FERPA
amendment hearing and record annotation.
18. Requested interim relief pending final judgment:
(a) Order the President (or designee) to identify and appoint the hearing
official/committee by a date certain, and order the
EVPAA/Provost (or designee) to schedule a public
name-clearing/FERPA-amendment hearing on a near date certain, with ADA/§ 504
accommodations coordinated by Student Disability Services.
(b) Order the Registrar to implement a neutral interim transcript notation
stating ·Disputed; correction/annotation process pending·
until the hearing occurs, and after the hearing, to append the corrective
hearing record (or, if no change is ordered,
Plaintiff·s statement) to any future disclosure of the affected record(s).
(c) Preservation of relevant records.
(d) Bond: set a nominal bond under TRCP 684.
VI. PRAYER
19. Plaintiff asks the Court to:
(a) order a prompt, public, ADA-accommodated name-clearing/FERPA amendment
hearing under HSC OP 77.13, with a preserved public record;
(b) order implementation of Tex. Gov·t Code § 559.004 by directing the Registrar
to correct or annotate records so any future
transcript/records disclosure includes the corrective hearing record or
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Plaintiff·s statement;
(c) tax costs; and
(d) grant such further prospective relief as justice requires.
Respectfully submitted,
/s/ Kevin Bass
Kevin Bass (pro se)
Phone: 512-333-4092 | Email: kbassphiladelphia@gmail.com
Note regarding timing:
Plaintiff originally transmitted this petition for electronic filing through the
eFileTexas system on November 5, 2025, at approximately 12:00 a.m. Central
Time·within minutes of the target date of November 4, 2025. Because the original
envelope was later rejected for procedural reasons (caption, filing office, and
signature block), Plaintiff re-filed promptly in the correct form and venue. This
note is included to demonstrate diligence and good-faith compliance; Plaintiff does
not concede any untimeliness.
VERIFICATION (Tex. Civ. Prac. & Rem. Code § 132.001)
My name is Kevin Bass. My date of birth is 12/07/1984. My address is
I declare under penalty of perjury that the facts stated in paragraphs 6-12 of this
First Amended Petition are true and correct.
Executed in Lubbock County, Texas, on 11/05/2025, 2025.
/s/ Kevin Bass
Kevin Bass
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EXHIBIT 2
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Receipt # 50000 1548
Case 5:25-cv-00244-H-BV Document 1 Filed 11/07/25 Page 1 of 17 PageID 1
UNITED STATES DISTRICT COURT
NOV 7 2025 PM3:53
NORTHERN DISTRICT OF TEXAS
FILED - USDC - NDTX - LU
LUBBOCK DIVISION
KEVIN N. BASS,
Plaintiff,
5-25CV-244-H
v.
Civil Action No. ______________
TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER;
AMANDA McSWEEN, in her individual and official capacities as University Registrar;
LAUREN COBBS, M.D., M.Ed., FACP, in her individual and official capacities as Senior Associate
Dean for Student Affairs (SOM);
SIMON WILLIAMS, Ph.D., in his individual and official capacities as Senior Associate Dean for
Academic Affairs (SOM);
TAMARA MANCINI, M.Ed., in her official capacity as Director of Student Disability Services;
MIA MYERS, in her official capacity as Associate Managing Director, Student Financial Aid;
JOHN/JANE DOE, in his/her official capacity as TTUHSC ADA Title II Coordinator;
DOE HEARING OFFICER 1, in his/her individual capacity; and
DOES 2·10, in their individual capacities,
Defendants.
VERIFIED COMPLAINT FOR DAMAGES, DECLARATORY (28 U.S.C. §§ 2201·02), AND
INJUNCTIVE RELIEF
INTRODUCTION
1. This civil action challenges Defendants' disability-based denial of meaningful access to a high-stakes
student disciplinary hearing; selective departures from written procedures; publication of stigmatizing
accusations tied to a status-changing transcript notation; and retaliation for protected speech and
disability-rights activity.
2. Plaintiff seeks: (a) damages and declaratory relief under § 504 of the Rehabilitation Act against
TTUHSC as a federal-funds recipient; (b) prospective relief under Title II of the ADA against appropriate
officials pursuant to Ex parte Young, 209 U.S. 123 (1908); and (c) damages and declaratory relief under
42 U.S.C. § 1983 against individual-capacity officials for violations of the First and Fourteenth
Amendments.
JURISDICTION, VENUE, AND AUTHORITY FOR RELIEF
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Case 5:25-cv-00244-H-BV Document 1 Filed 11/07/25 Page 2 of 17 PageID 2
3. This Court has federal-question jurisdiction under 28 U.S.C. §§ 1331 and 1343.
4. Venue is proper in this District and Division under 28 U.S.C. § 1391(b)(1)·(2) because a substantial
part of the events or omissions giving rise to the claims occurred here and at least one defendant resides
or is found here.
5. Declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201·02 and Fed. R. Civ. P. 57 and 65.
Costs are authorized by 28 U.S.C. § 1920; and, if counsel appears, reasonable attorney·s fees from
counsel·s appearance forward are authorized by 42 U.S.C. §§ 1988 and 12205 and 29 U.S.C. § 794a(b).
Post-judgment interest is authorized by 28 U.S.C. § 1961.
SOVEREIGN IMMUNITY, REMEDIAL FRAMEWORK, AND EXHAUSTION
6. Plaintiff does not seek § 1983 money damages against TTUHSC or against officials in their official
capacities. See Will v. Michigan Dep·t of State Police, 491 U.S. 58, 71 (1989).
7. TTUHSC·s receipt of federal funds waives Eleventh Amendment immunity for § 504 claims. 42 U.S.C.
§ 2000d-7; Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 280·89 (5th Cir. 2005) (en banc). TTUHSC is
an arm of the State of Texas and therefore a Title II ·public entity,· 42 U.S.C. § 12131(1)(B), and a § 504
·program or activity,· 29 U.S.C. § 794(b)(2)(A).
8. Plaintiff seeks prospective, non-monetary relief under Title II against appropriate officials with a
sufficient enforcement connection under Ex parte Young. See Verizon Md., Inc. v. Pub. Serv. Comm·n of
Md., 535 U.S. 635, 645·46 (2002).
9. Consistent with Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562 (2022), and Barnes v.
Gorman, 536 U.S. 181 (2002), Plaintiff does not seek punitive or emotional-distress damages under
ADA/§ 504. He seeks economic losses and, where permitted, nominal damages. Punitive damages are
sought, if at all, only on § 1983 claims against individual-capacity defendants where allowed by law.
10. No administrative exhaustion is required for the Title II or § 504 claims pleaded here.
STATUTE OF LIMITATIONS AND TIMELINESS
11. The events at issue occurred primarily between December 2023 and January 2024, with continuing
effects thereafter.
12. Texas·s two-year personal-injury limitations period applies to § 1983, Title II, and § 504 claims. See
Frame v. City of Arlington, 657 F.3d 215, 237·38 (5th Cir. 2011) (en banc); Piotrowski v. City of
Houston, 237 F.3d 567, 576 (5th Cir. 2001). This action is timely.
PARTIES
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13. Plaintiff Kevin N. Bass is a qualified individual with disabilities within the meaning of § 504 and Title
II.
14. Defendant Texas Tech University Health Sciences Center ("TTUHSC") is a public entity that receives
federal financial assistance and is an arm of the State of Texas. It is therefore a Title II "public entity," 42
U.S.C. § 12131(1)(B), and a § 504 "program or activity," 29 U.S.C. § 794(b)(2)(A). Federal-funds proof
includes TTUHSC's Title IV participation (Federal School Code 016024), annual Single Audit reporting,
and Texas Comptroller records showing federal expenditures for agency 739.
15. Defendant Amanda McSween is TTUHSC's University Registrar. She is sued in her individual
capacity (damages under § 1983) and in her official capacity (prospective Title II relief).
16. Defendant Lauren Cobbs, M.D., M.Ed., FACP, is Senior Associate Dean for Student Affairs (School
of Medicine). She is sued in her individual capacity (damages under § 1983) and in her official capacity
(prospective Title II relief).
17. Defendant Simon Williams, Ph.D., is Senior Associate Dean for Academic Affairs (School of
Medicine). He is sued in his individual capacity (damages under § 1983) and in his official capacity
(prospective Title II relief).
18. Defendant Tamara Mancini, M.Ed., is Director of Student Disability Services. She is sued in her
official capacity (prospective Title II relief).
19. Defendant Mia Myers is Associate Managing Director, Student Financial Aid. She is sued in her
official capacity (prospective Title II relief related to status reporting/holds interfaces).
20. Defendant John/Jane Doe is TTUHSC's ADA Title II Coordinator (identity presently unknown).
He/she is sued in official capacity to implement injunctive relief.
21. Defendant DOE Hearing Officer 1 presided over Plaintiff's hearing and is sued in his/her individual
capacity.
21A. The Hearing Officer who presided over Plaintiff's December 11, 2023 hearing was Darren G.
Gibson, an outside attorney to whom the Student Conduct Board Chair delegated procedural authority;
Mr. Gibson acted under color of state law in performing a delegated public function. Plaintiff will amend
to substitute service information when confirmed.
22. Defendants DOES 2-10 are presently unidentified TTUHSC officials who participated in the events
alleged below. They are sued in their individual capacities.
DEFENDANTS (IDENTIFICATION & ROLES FOR RELIEF)
23. For clarity regarding implementation of prospective relief, the institutional roles implicated include:
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· TTUHSC · entity defendant for § 504 (federal-funds recipient).
· AMANDA McSWEEN · University Registrar: transcript issuance/notations/holds.
· LAUREN COBBS, M.D., M.Ed., FACP · Senior Associate Dean for Student Affairs (SOM):
student-discipline logistics, hearing administration.
· SIMON WILLIAMS, Ph.D. · Senior Associate Dean for Academic Affairs (SOM): emergency
removal/academic-affairs process triggers.
· TAMARA MANCINI, M.Ed. · Director, Student Disability Services: ADA
effective-communication/modifications execution.
· MIA MYERS · Associate Managing Director, Student Financial Aid: Title IV
(R2T4)/enrollment-status reporting and holds workflows.
· ADA TITLE II COORDINATOR · 28 C.F.R. § 35.107 coordination of Title II compliance and
central implementation of injunctive relief.
FEDERAL·STATE COORDINATION / NON-INTERFERENCE
24. Plaintiff maintains a separate, exhibit-free state action seeking only a prompt, public
name-clearing/FERPA-amendment hearing and neutral annotation; no damages are sought there. The
federal claims here (§ 504/Title II/§ 1983) seek distinct remedies and do not require this Court to enjoin or
review any state-court order. No relief requested here would interfere with any state proceeding or order,
and abstention is unwarranted.
FACTUAL ALLEGATIONS
A. Disability notice and requested accommodations
25. Before a December 11, 2023 disciplinary hearing, Plaintiff provided written notice of
iagnoses, lodged accommodation requests through Student Disability Services
(·SDS·), and supplied a neuropsychological evaluation recommending communication supports,
including limited attorney-assisted questioning to cue/clarify. On December 8, 2023, Plaintiff and counsel
called SDS to initiate accommodations under TTUHSC HSC OP 77.14, which recognizes a Letter of
Accommodation (LOA) as the university-approved mechanism and provides that, once an LOA is issued,
no further proof should be required and classroom accommodations should be implemented within one
week (five business days).
26. Officials acknowledged the SDS process on the record. The Hearing Officer admitted only a redacted
evaluation·excluding the accommodations section as ·outside the Board·s scope··and categorically
barred counsel from questioning witnesses directly even as a communication aid. This contravened OP
77.14·s effective-communication framework and Plaintiff·s documented functional limitations
(processing speed/executive function under sustained adversarial sessions; need for orderly turn-taking;
benefit from written copies; predictable breaks).
B. Hearing structure and departures from written rules
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27. The hearing lasted roughly fourteen hours and involved ten witnesses plus Plaintiff. Published hearing
materials set 10-minute openings, 30 minutes per witness per side, and confirmed recording protocols; yet
the presider barred contemporaneous objections; required party questions to be submitted in writing;
asserted unilateral authority to limit Plaintiff's questioning for "relevance"; and applied time limits and
sequencing asymmetrically against Plaintiff, contrary to the published rules promising equal time limits,
Board questions first, and no objections.
28. On information and belief, TTUHSC retained an outside Hearing Officer for Plaintiff's proceeding
who lacked neutrality and operated under constraints that materially favored the administration, including
restricting Plaintiff's questioning and applying time limits asymmetrically, contrary to published
procedures.
C. Evidence gating and record access
29. Defendants consolidated matters without consent; denied requested separate hearings; restricted
defense witnesses; accepted late/redacted evidence favorable to the administration while excluding
comparable defense evidence.
30. TTUHSC controlled the recording, which contained apparent discontinuities. Access to the "official"
record was delayed and limited to in-person audio review. Plaintiff seeks native audio/video files with
hashes, access logs, and chain-of-custody.
D. "Direct threat" framing without individualized assessment
31. The Hearing Officer invoked ADA "direct threat" concepts but did not conduct an individualized
assessment grounded in current medical knowledge or best available objective evidence, nor did he/she
consider whether reasonable modifications could mitigate any risk. See 28 C.F.R. § 35.139(b); Bragdon v.
Abbott, 524 U.S. 624, 649-50 (1998); EEOC v. Exxon Corp., 203 F.3d 871, 873-74 (5th Cir. 2000).
E. Protected speech and retaliation context
32. Plaintiff publicly criticized COVID-19 policies and filed grievances-speech and petitioning on
matters of public concern.
33. Within days of administrators urging him to stop posting online, professionalism charges issued; an
interim removal/trespass notice referenced his speech "context"; and witnesses reported being coached to
"document the most damaging" version. Class-wide messaging on January 7, 2024 explicitly told
recipients to "check his Twitter," underscoring retaliatory animus and selective enforcement.
F. Publication and ongoing harm
34. Before the hearing, administrators issued a campus-wide "BOLO" message. After the hearing,
administrators circulated a class-wide message-"we are one student lighter... check his Twitter"-and
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TTUHSC placed an "Administrative Dismissal Effective 01-11-2024" notation on Plaintiff's transcript,
which third-party recipients reported caused application denials. Plaintiff suffered significant educational,
economic, and reputational harm. Evidence includes (i) a January 1, 2024 public post stating "we did it,
Kevin Bass' medical committee voted to expel him," (ii) the January 7, 2024 class-wide broadcast (7:46
a.m.) with a later recall request, and (iii) BOLO/ban echoes such as "not letting this student onto
campus," attributable to or echoing agency communications.
34A. On October 16, 2025, TTUHSC issued an official transcript bearing the notation "Administrative
Dismissal Effective 01-11-2024." Third-party recipients reported adverse decisions after receiving
transcripts with that notation. Ongoing transcript issuance constitutes continued publication by the
agency.
G. Exclusion and campus-access restrictions (status change)
35. TTUHSC issued an Emergency Removal and campus ban·stating Plaintiff was not allowed on HSC
property during the investigation·and a Criminal Trespass Warning that required police coordination
even to access his child's school on TTU property. These restrictions coincided with the stigmatizing
publications described above.
35A. On November 4, 2023, the Assistant Vice Dean for Student Affairs emailed more than thirty
recipients·including Covenant Branch campus and affiliate-hospital gatekeepers·stating: "do not allow
Kevin Bass into the Covenant Branch office nor badge him in at any of the hospitals," pending "further
notice." On information and belief, several recipients were non-TTUHSC clinical-affiliate personnel,
reflecting an agency directive that barred access before any adjudication and circulated beyond the
University.
H. Individual defendants' personal participation (non-exhaustive)
36. Lauren Cobbs: Oversaw the student-discipline process and the selection/instructions of the Hearing
Officer; denied or ratified denials of separate hearings and evaluator testimony; enforced or ratified
asymmetric time limits and question-filtering; urged Plaintiff to curtail protected online speech; and
participated in class-wide communications about Plaintiff.
37. Simon Williams: Initiated or ratified interim removal measures; invoked "direct threat" framing
without individualized assessment; approved consolidation; and enforced or ratified procedures that
limited Plaintiff's ability to be heard.
38. Amanda McSween: Published and/or caused to be published the transcript notation "Administrative
Dismissal Effective 01-11-2024"; communicated or caused the communication of the status to third
parties; and maintained transcript holds/notations despite Plaintiff's objections and pending review.
Evidence of third-party reliance includes denials of opportunities upon receipt of transcripts bearing the
notation.
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39. DOE Hearing Officer 1: Presided over the hearing; barred real-time objections; filtered or refused
Plaintiff's submitted questions; cut Plaintiff's questioning short; and admitted administrative evidence
while excluding comparable defense evidence.
40. Tamara Mancini (official capacity): Received Plaintiff's SDS notice and requests; failed to give
primary consideration to Plaintiff's requested auxiliary aids; and did not implement reasonable
modifications to ensure effective communication at the hearing under OP 77.14's LOA and
implementation benchmarks.
41. Mia Myers (official capacity): Maintains Title IV/enrollment-status reporting and related holds; has
operational control over processes implicated by transcript notations and status communications and is a
necessary official-capacity implementer of prospective relief. Following status change, TTUHSC
cancelled $3,524.00 in aid, revoked $20,118.11 in scholarship, and posted a $24,316.56 balance·all
flowing from the stigmatizing dismissal status and notation.
I. Dismissal determination and scope
42. TTUHSC's Board letter states the hearing lasted approximately 14 hours and that the Board "reviewed
... additional documentation ... including a medical assessment," yet the accommodations content was
excluded as "outside the Board's scope," denying a meaningful chance for disability-appropriate
presentation.
J. Publication logs, recipients, and continuing effects
43. Plaintiff has compiled publication logs and will seek metadata/listserv expansion logs and meeting
artifacts (calendars, Zoom/Teams recordings) to identify recipients and authenticate channels (email,
LMS/Canvas, Teams/Slack, GroupMe/WhatsApp, and other student-facing platforms). These materials
support both the publication element of "stigma-plus" and the need for targeted, publication-only
expedited discovery.
K. Ongoing violations; basis for prospective relief and expedited preservation
44. Plaintiff faces ongoing harm from current policies and practices governing transcript notations and
status communications, access to and preservation of hearing records, and rules that will govern any
renewed adjudication or credentialing communications. Targeted preservation and Rule 26(d) expedited
discovery (publication-only) are warranted to capture message headers, listserv logs, audit trails, and
collaboration-platform exports and to enable corrective notices after judgment.
CLAIMS FOR RELIEF
(Each Count incorporates ¶¶ 1-44 by reference.)
COUNT 1 · Rehabilitation Act § 504 (Damages & Declaratory Relief) · Against TTUHSC
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45. Section 504 prohibits disability discrimination in any "program or activity" receiving federal financial
assistance. 29 U.S.C. § 794(a), (b)(2)(A). Elements: (1) disability; (2) otherwise qualified; (3) exclusion
from participation in, denial of benefits of, or discrimination under a federally funded program; and (4)
exclusion by reason of disability (and, to the extent § 504 is construed to require it, solely by reason of
disability, as construed in the Fifth Circuit). See Delano-Pyle v. Victoria Cnty., 302 F.3d 567, 574 (5th Cir.
2002).
46. Monetary relief requires intentional discrimination, satisfied at least by deliberate indifference to
known, necessary accommodations. See Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 454·55 (5th
Cir. 2005); Cadena v. El Paso Cnty., 946 F.3d 717, 724·27 (5th Cir. 2020); Windham v. Harris Cnty., 875
F.3d 229, 235·37 (5th Cir. 2017).
47. TTUHSC·through officials with authority to provide accommodations and to rectify denials,
including SDS Director Mancini and Senior Associate Deans Cobbs and Williams, and through the
Hearing Officer·had actual knowledge of Plaintiff's
communication needs yet (a)
excluded the accommodations section of his evaluation; (b) barred attorney-assisted questioning as a
communication aid; (c) applied time limits and filters asymmetrically; and (d) refused modest
schedule/format modifications·denying meaningful access to the adjudication. See 28 C.F.R. §
35.160(a)(2) (effective communication); § 35.139 (direct threat). This deliberate indifference proximately
caused economic losses including Title IV balance due, lost scholarship funds, lost stipends, exam and
application fees, and delays in credentialing.
48. Plaintiff seeks economic damages proximately caused by the violations and, where permitted, nominal
damages. No punitive or emotional-distress damages are sought under § 504.
COUNT 2 · ADA Title II (Prospective Relief) · Against Official-Capacity Defendants (ADA
Coordinator; Registrar; Senior Associate Deans Cobbs and Williams; SDS Director Mancini;
Financial-Aid Official Myers)
49. This claim arises under 42 U.S.C. § 12132 and is enforceable through 42 U.S.C. § 12133. Title II
obligates public entities to make reasonable modifications in policies, practices, or procedures when
necessary to avoid discrimination, unless doing so would fundamentally alter the service. 28 C.F.R. §
35.130(b)(7)(i).
50. Title II also requires effective communication and obligates the entity to give primary consideration to
the individual's requested auxiliary aids. 28 C.F.R. § 35.160(a)(2). Primary consideration means honoring
the individual's chosen auxiliary aid unless an equally effective alternative is available or provision would
cause a fundamental alteration or undue financial/administrative burden. Where "direct threat" is asserted,
the entity must conduct an individualized assessment based on current medical knowledge or best
available objective evidence and consider whether reasonable modifications can mitigate risk. 28 C.F.R. §
35.139(b); Bragdon v. Abbott, 524 U.S. 624, 649·50 (1998); EEOC v. Exxon Corp., 203 F.3d 871,
873·74 (5th Cir. 2000).
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51. Defendants failed to provide reasonable modifications and effective-communication measures
necessary for Plaintiff's participation (e.g., limited attorney-assisted questioning as a communication aid;
equitable time allocations keyed to documented limitations; admission of evaluator testimony; timely
disclosure; and record-access protocols). Each named official has a sufficient enforcement connection for
Ex parte Young relief: the Registrar controls transcript notations and issuance/holds; the Senior Associate
Deans oversee hearing administration and emergency-removal processes; the SDS Director implements
ADA accommodations across proceedings; the Financial-Aid official controls status reporting and holds
interfacing with Title IV systems; and the ADA Coordinator orchestrates Title II compliance
(28 C.F.R. § 35.107). For complete prospective relief, the President (appointment of a hearing
official/committee) and Provost/EVPAA (hearing scheduling and FERPA-amendment processing) possess
direct enforcement connections under TTUHSC student-records policy and may be added if necessary.
52. Plaintiff seeks a narrowly tailored injunction requiring compliance with §§ 35.130(b)(7)(i), 35.160,
and 35.139(b) in any ongoing or future proceedings, including: (a) designation of the ADA Coordinator
as a centralized point-of-contact to implement accommodations across Student
Affairs/Registrar/Academic Affairs; (b) preservation and access to native audio/video files and associated
hashes, access logs, and chain-of-custody records; (c) FERPA-aligned protections; (d) procedures
ensuring that transcript notations and status communications are generated, maintained, and
communicated in a manner consistent with Title II going forward; and (e) if TTUHSC conducts any
renewed adjudication concerning the events alleged herein, it must do so under an ADA-compliant
framework that includes equal time allocation, reasonable auxiliary aids, disclosure timelines, and access
to a complete, continuous record. See Tennessee v. Lane, 541 U.S. 509, 531·34 (2004); United States v.
Georgia, 546 U.S. 151, 159 (2006).
52A. The injunction should also require primary consideration for Plaintiff's requested auxiliary
aids·including limited attorney-assisted questioning as a communication aid, predictable breaks,
CART/closed captioning, and written copies of verbal information·consistent with OP 77.14 and 28
C.F.R. § 35.160.
COUNT 3 · Procedural Due Process (Fourteenth Amendment) via 42 U.S.C. § 1983 (Damages &
Declaratory Relief) · Against Cobbs, Williams, DOE Hearing Officer 1, and DOES 2·10 (individual
capacities)
53. At all relevant times, Defendants Cobbs, Williams, DOE Hearing Officer 1, and DOES 2·10 acted
under color of state law as officials of a public university. Students facing serious disciplinary sanctions
are entitled to notice and a meaningful opportunity to be heard, evaluated under Mathews v. Eldridge's
balancing. See Dixon v. Alabama State Bd. of Educ., 294 F.2d 150, 157·59 (5th Cir. 1961); Mathews v.
Eldridge, 424 U.S. 319, 334·35 (1976); Goss v. Lopez, 419 U.S. 565 (1975). This case concerns
disciplinary, not academic, sanctions. Cf. Bd. of Curators v. Horowitz, 435 U.S. 78 (1978).
54. Plaintiff alleges both (i) a liberty interest in his good name, reputation, and honor, the deprivation of
which was accompanied by a change of legal status (loss of student status and a transcript notation), and
(ii) to the extent recognized under Texas law and TTUHSC policies, a state-created property interest in
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continued enrollment. See Hughes v. City of Garland, 204 F.3d 223, 226·28 (5th Cir. 2000); Bledsoe v.
City of Horn Lake, 449 F.3d 650, 653·55 (5th Cir. 2006). The liberty-interest and Mathews risk-of-error
theories are primary.
55. Plaintiff does not claim a categorical right to attorney-led cross-examination. See Plummer v. Univ. of
Houston, 860 F.3d 767 (5th Cir. 2017); Van Overdam v. Texas A&M Univ., 43 F.4th 522 (5th Cir. 2022).
Rather, Plaintiff challenges selective departures from written rules and communication-related restrictions
that, given his disabilities, denied a meaningful opportunity to be heard and materially increased the risk
of erroneous deprivation at minimal administrative cost. Cf. Walsh v. Hodge, 975 F.3d 475, 484·85 (5th
Cir. 2020).
56. Defendants amplified the risk of error by (i) prohibiting contemporaneous objections; (ii)
categorically barring counsel·s limited questioning as an auxiliary communication aid; (iii) imposing
asymmetric time limits and surprise witnesses; (iv) favoring administrative evidence while gating defense
evidence; and (v) restricting and delaying access to a complete, continuous record.
57. Clearly Established Law / Qualified Immunity. At the time, it was clearly established that public
universities imposing serious disciplinary sanctions must provide notice and a meaningful opportunity to
be heard under Dixon and Mathews, and officials may not employ arbitrary hearing restrictions that
materially increase the risk of erroneous deprivation at minimal administrative cost. On the facts alleged,
Defendants are not entitled to qualified immunity at the pleading stage.
COUNT 4 · ·Stigma-Plus· (Fourteenth Amendment Liberty Interest) via 42 U.S.C. § 1983 (Damages &
Declaratory Relief) · Against McSween and DOES who published stigmatizing statements (individual
capacities)
58. At all relevant times, Defendants McSween and DOES 2·10 who published or caused publication of
the statements at issue acted under color of state law as officials of a public university. Reputation alone is
not a protected interest, but a claim lies where the government publishes materially false, stigmatizing
facts in connection with an alteration of legal status. Paul v. Davis, 424 U.S. 693 (1976); Codd v. Velger,
429 U.S. 624 (1977); Hughes, 204 F.3d at 226·28; Bledsoe, 449 F.3d at 653·55.
59. On January 7, 2024 at approximately 7:46 a.m., the School of Medicine·s Office of Student Affairs,
acting under the direction of Senior Associate Dean Cobbs, sent a class-wide broadcast stating: ·we are
one student lighter than last week · if anyone has any further questions, just check his Twitter; I am sure
he will update everyone.· A recall attempt followed, as reflected in message headers. Defendants also
published an official transcript notation, ·Administrative Dismissal Effective 01-11-2024,· which third
parties used to deny opportunities. Together with campus-wide BOLO/ban echoes, these publications
conveyed dangerousness and coincided with the loss of student status. The statements and insinuations
were materially false and stigmatizing, and Plaintiff alleges falsity and causation, satisfying stigma-plus
elements. Evidence includes publication logs and header captures showing the 7:46 a.m. blast and recall,
as well as reports of third-party reliance.
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59A. TTUHSC also disseminated exclusion directives to affiliate hospitals, foreclosing clinical
opportunities and conveying dangerousness-for example, an instruction on November 4, 2023 not to
permit Plaintiff into the Covenant Branch office or badge him at any hospital. This constitutes publication
by the agency to third parties in connection with a status change.
60. Plaintiff requested a name-clearing hearing on October 19, 2025 and demanded confirmation by
October 21, 2025, with a hearing within 14 days; Defendants failed to provide the hearing.
Post-publication hearings are proper in the Fifth Circuit. See Wells v. Hico Indep. Sch. Dist., 736 F.2d 243
(5th Cir. 1984); In re Selcraig, 705 F.2d 789 (5th Cir. 1983); White v. Thomas, 660 F.2d 680 (5th Cir.
1981). Plaintiff seeks declaratory relief and damages.
COUNT 5 - First Amendment Retaliation via 42 U.S.C. § 1983 (Damages, Declaratory & Limited
Injunctive Relief) - Against Cobbs, Williams, DOE Hearing Officer 1, and DOES 2-10 (individual
capacities)
61. At all relevant times, Defendants Cobbs, Williams, DOE Hearing Officer 1, and DOES 2-10 acted
under color of state law as officials of a public university. Plaintiff must show (1) protected speech; (2) an
adverse action that would deter a person of ordinary firmness; and (3) speech was a substantial or
motivating factor. See Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002); Mt. Healthy City Sch. Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).
62. Plaintiff criticized public-health policy and filed grievances. Within days of being told to stop posting,
professionalism charges issued; the interim removal/trespass notice cited his speech "context"; and
selective enforcement followed. Temporal proximity, contemporaneous references to his posts ("check his
Twitter"), and selective departures from rules plausibly show causation.
63. Plaintiff seeks damages and a narrow anti-retaliation injunction barring adverse action for engaging in
protected speech about this dispute, litigating this case, or filing/granting public-records
requests-without restricting neutrally applied, lawful rules.
63A. Plaintiff intends to continue speaking publicly on the matters at issue and to request records and
accommodations, and he faces a credible threat of further retaliatory adverse actions absent prospective
injunctive relief.
64. Clearly Established Law / Qualified Immunity. It was clearly established that officials may not take
adverse action in retaliation for a student's protected speech on matters of public concern, and that Mt.
Healthy burden-shifting applies. On the facts alleged, Defendants are not entitled to qualified immunity at
the pleading stage.
COUNT 6-ADA Title II and § 504 Retaliation/Interference (Damages under § 504; Prospective Relief
under Title II) - Against TTUHSC (damages) and Official-Capacity Defendants (prospective relief)
65. The ADA and its regulations prohibit retaliation and interference against individuals who request
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remedies incorporated by § 504 authorize damages against a federal-funds recipient; prospective relief is
available against officials under Ex parte Young.
66. After Plaintiff notified SDS of his diagnoses and requested communication supports, Defendants
escalated adverse actions·including interim removal, selective rule enforcement, gating of the
accommodations content, and status-affecting transcript notations·actions that would deter a reasonable
person from engaging in ADA/§ 504 activity and are causally connected to Plaintiff's protected requests.
67. Plaintiff seeks (a) damages against TTUHSC for economic losses proximately caused by retaliation;
and (b) prospective injunctive relief under Count 2 to prevent further retaliation or interference and to
require Title II-compliant processes going forward.
IMMEDIATE NEED FOR INTERIM RELIEF (Rule 65)
68. Plaintiff seeks a narrowly tailored preliminary injunction to prevent irreparable injury pending
judgment. The Canal Authority factors favor relief: (1) a substantial likelihood of success on Count 4
(agency publication, request/denial of name-clearing hearing, transcript notation) and Counts 1·2
(effective-communication failures under OP 77.14 and Title II/§ 504); (2) irreparable injury to
professional reputation and training trajectory through continuing publication and transcript notation; (3)
the balance of equities favors preventing further dissemination and ensuring a corrective process; and (4)
the public interest favors compliance with the Constitution and the ADA. See Canal Authority of the State
of Florida v. Callaway, 489 F.2d 567, 572·73 (5th Cir. 1974). Where the current status quo itself inflicts
irreparable harm, courts may alter it to prevent injury.
69. Plaintiff requests the Court·s straightforward Ex parte Young inquiry for prospective relief against
appropriate officials, limited to halting ongoing violations and setting a prompt, ADA-compliant
name-clearing process. See Verizon Md., Inc., 535 U.S. at 645·46. Plaintiff is prepared to post a nominal
bond in any amount the Court deems appropriate under Rule 65(c).
69A. Pending judgment, the Court should (i) order the Registrar to annotate any issued transcript with
·Disputed; correction/annotation process pending,· and after the ordered name-clearing process, to
append the corrective hearing record (or, if no change is ordered, Plaintiff·s statement) to future
disclosures; and (ii) enjoin new or continued dissemination of outbound CTW/ban/exclusion directives to
affiliates (including badge/door-access restrictions tied to the publications at issue), except as required by
law, while the name-clearing process proceeds.
PRAYER FOR RELIEF
Plaintiff respectfully requests that the Court enter judgment in his favor and:
A. Declare that Defendants violated Plaintiff·s rights under § 504, Title II, the First Amendment, and the
Fourteenth Amendment;
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B. Award compensatory damages under § 504 (economic/educational losses·e.g., Title IV balance of
$24,316.56, lost scholarship $20,118.11, returned aid $3,524.00, fees/stipends, and other provable
economic losses·and, where permitted, nominal damages) against TTUHSC; and award damages (and,
where appropriate, punitive damages) under § 1983 against individual-capacity defendants; no punitive or
emotional-distress damages are sought under ADA/§ 504;
C. Issue a narrow anti-retaliation injunction barring adverse action for (i) litigating this case, (ii) pursuing
public-records requests, (iii) requesting or using ADA/§ 504 accommodations, or (iv) engaging in
protected speech about this dispute, while preserving neutrally applied, lawful rules;
D. Enter prospective Title II relief (pursuant to Ex parte Young, 209 U.S. 123 (1908), against officials
with a sufficient enforcement connection) requiring compliance with 28 C.F.R. §§ 35.130(b)(7)(i),
35.160, and 35.139(b) in any ongoing or future proceedings; designate TTUHSC·s ADA Coordinator (28
C.F.R. § 35.107) as the point-of-contact to implement accommodations across Student
Affairs/Registrar/Academic Affairs with timelines and reporting; and require primary consideration for
requested auxiliary aids consistent with OP 77.14·s LOA framework and five-business-day
implementation benchmarks;
E. Order Defendants to schedule and conduct a post-publication name-clearing hearing for Plaintiff within
14 days of the Court·s order, with reasonable accommodations as required by Title II and § 504 and with a
written decision issued promptly thereafter;
F. Order preservation (not collection at this time) of native hearing-recording files (audio/video),
associated hashes, access logs, and chain-of-custody records under a FERPA-aligned protective order; and
extend preservation to publication-related ESI (class-wide broadcasts; listserv/LMS/Teams/Slack posts;
social-media-linked communications; calendars/Zoom/Teams meeting artifacts; metadata-only CSVs
showing Message-ID/from/to/cc/bcc/subject/thread IDs), including suspension of auto-deletion and
documentation of systems searched. Plaintiff will file any request for expedited discovery as a separate
motion with a supporting brief consistent with the Local Rules. Such preservation and any subsequent
productions shall be subject to Fed. R. Civ. P. 5.2 and a FERPA-aligned protective order;
G. Order interim annotation/issuance of a corrected transcript pending the name-clearing hearing
(non-stigmatizing, status-neutral · e.g., ·Disputed; correction/annotation process pending·), identify
prior transcript recipients, and, upon final judgment for Plaintiff on Count 4 and/or ADA/§ 504 claims,
expunge or amend the ·Administrative Dismissal Effective 01-11-2024· notation and require TTUHSC to
notify, at its expense, all third parties to whom the notation or stigmatizing statements were disseminated
during the limitations period that the notation has been removed or corrected.
H. Prospectively order that, if TTUHSC conducts any renewed disciplinary adjudication concerning the
events at issue, it must do so under an ADA-compliant framework (effective-communication and
reasonable-modification measures), with equal time allocation keyed to functional limitations, fair
disclosure timelines, and access to a complete, continuous, native record;
74
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Case 5:25-cv-00244-H-BV Document 1 Filed 11/07/25 Page 14 of 17 PageID 14
I. Award taxable costs as permitted by 28 U.S.C. § 1920 and, if counsel appears, reasonable attorney's
fees from counsel's appearance forward under 42 U.S.C. §§ 1988 and 12205 and 29 U.S.C. § 794a(b);
J. Award prejudgment interest as allowed by law and post-judgment interest under 28 U.S.C. § 1961; and
K. Grant all further relief the Court deems just and proper, including nominal damages where
compensatory damages may be unavailable. See Uzuegbunam v. Preczewski, 141 S. Ct. 792, 802 (2021).
L. Pending judgment, enjoin dissemination to third-party clinical affiliates of CTW/ban/exclusion
directives concerning Plaintiff, except as required by law; require any necessary safety communications to
be neutral and non-stigmatizing while the name-clearing process proceeds.
COMPLIANCE NOTE
Filed with a completed Civil Cover Sheet (JS-44) and Certificate of Interested Persons per N.D. Tex. LR
3.1/3.2.
SERVICE NOTE
Service on TTUHSC must comply with Fed. R. Civ. P. 4(j)(2) (or, via Rule 4(e)(1), any state-law
method), and service on individuals must comply with Rule 4(e). If Plaintiff elects service pursuant to
state law under Rule 4(e)(1) and 4(j)(2), he will effect service on the Texas Attorney General and on the
agency as required.
JURY DEMAND
Plaintiff demands a jury on all issues so triable.
DATED: November 7, 2025
Respectfully submitted,
Kevin N. Bass
Phone: 512-333-4092
Email: kbassphiladelphia@gmail.com
Pro Se Plaintiff
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Case 5:25-cv-00244-H-BV Document 1 Filed 11/07/25 Page 15 of 17 PageID 15
VERIFICATION (28 U.S.C. § 1746)
I, Kevin N. Bass, declare under penalty of perjury that the foregoing is true and correct based on my
personal knowledge, except as to matters stated on information and belief, and as to those I believe them
to be true.
Executed on November 7, 2025.
Kevin N. Bass
76
76
Case 5:25-cv-00244-H-BV Document 1 Filed 11/07/25 Page 16 of 17 PageID 16
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
KEVIN N. BASS, §
Plaintiff, §
§
v. § Civil Action No. ________
§
TEXAS TECH UNIVERSITY HEALTH §
SCIENCES CENTER; et al., §
Defendants. §
NOTICE OF CLARIFICATION REGARDING PLEADING CONVENTIONS
Plaintif KevinN.Bas respectfulyfilesthisNoticesolelytoclarifythepleadingconventionsap licabletotheconcurentlyfiledVerifiedComplaint.ThisNoticedoesnotad oramendanyparty,claim,factualalegation,orrequestforreliefandisoferedonlyforavoidanceofdoubt.
PleadingConventions.Unles otherwisestated,alegationsarebasedonPlaintif'spersonalknowledge;wheremattersliewithinDefendants'exclusivecontrol(e.g.,listservmembership,messageheaders,internallogs),alegationsaremadeoninformationandbeliefandwil likelyhaveevidentiarysup ortafterdiscovery.
Plaintif respectful y requests that the Court deem this clarification incorporated by reference into the Verified Complaint. No other relief is requested.
Dated: November 7, 2025
Respectfully submitted,
[signature]
77
77
Case 5:25-cv-00244-H-BV Document 1 Filed 11/07/25 Page 17 of 17 PageID 17
Kevin N. Bass (pro se)
Phone: 512-333-4092
Email: kbassphiladelphia@gmail.com
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Notice will be served on each Defendant
together with the summons and Verified Complaint in accordance with Fed. R. Civ. P. 4.
Kevin N. Bass
78
78
EXHIBIT 3
79
79
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
KEVIN N. BASS,
Plaintiff,
v.
TEXAS TECH UNIVERSITY HEALTH
SCIENCES CENTER, et al.
Defendants.
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 5:25-cv-00244-H-BV
DEFENDANTS’ MOTION TO DISMISS
TO THE HONORABLE DISTRICT COURT JUDGE:
NOW COME Defendants Texas Tech University Health Sciences Center (“TTUHSC”),
Amanda McSween, individually and in her official capacity, Lauren Cobbs, individually and in
her official capacity, Simon Williams, individually and in his official capacity, Tamara Mancini,
in her official capacity, Mia Myers, in her official capacity, Lori Rice-Spearman, in her official
capacity, Darrin D’Agostino, in his official capacity, Darren G. Gibson, in his individual capacity,
Jennifer Wilson, in her individual capacity, and Rachel Forbes, in her individual capacity (the
“Individual Defendants”) (collectively, “Defendants”) and move to dismiss Plaintiff’s First
Amended Complaint (hereinafter, referred to as the “Complaint”) in its entirety under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6), and respectfully show the Court as follows:
This lawsuit seeks to transform academic and student-disciplinary decisions into federal
constitutional and statutory claims. The Complaint is barred in significant part by sovereign
immunity as to Plaintiff’s claims against TTUHSC and qualified immunity as to Plaintiff’s claims
against the Individual Defendants. Independently, the Complaint fails to state any claim upon
which relief may be granted. Accordingly, and for the reasons set forth more fully below, because
80
immunity is “an entitlement not to stand trial or face the other burdens of litigation,” Ashcroft v.
Iqbal, 556 U.S. 662, 672 (2009), dismissal at the pleading stage is required.
I.
PRELIMINARY STATEMENT
Plaintiff sues a Texas state agency and numerous university officials—some in their
official capacities, some in their individual capacities—asserting claims under 42 U.S.C. § 1983
for alleged constitutional violations, Title II of the ADA, and § 504 of the Rehabilitation Act.
Plaintiff’s claims arise from TTUHSC’s response to his student misconduct and related
administrative actions affecting Plaintiff’s enrollment status and educational record.
Even accepting Plaintiff’s allegations as true, this case fails as a matter of law. First, the
Eleventh Amendment bars damages claims against TTUHSC and against officials in their official
capacities. Second, qualified immunity bars the § 1983 damages claims against the Individual
Defendants because Plaintiff does not plead a violation of clearly established federal law. Third,
Plaintiff’s remaining statutory claims fail under Rule 12(b)(6) because the pleading does not
plausibly allege the required elements, including intentional discrimination for monetary relief and
a proper Ex parte Young basis for the extraordinary prospective injunctive relief requested.
Because sovereign immunity and qualified immunity are threshold jurisdictional and quasijurisdictional defenses designed to spare public entities and officials from litigation burdens, these
issues should be resolved at the pleadings stage.
Accordingly, all of Plaintiff’s claims should be dismissed as a matter of law.
II.
FACTUAL BACKGROUND 1
Plaintiff challenges TTUHSC’s response to allegations and the outcome of student
misconduct and related safety concerns. Complaint, ¶¶ 1, 34-35. In 2023, Plaintiff was a third-
1
The factual background is drawn from the First Amended Complaint and the documents the Plaintiff referenced
therein. “When reviewing a motion to dismiss, a district court must consider the complaint in its entirety, as well as
81
year medical student at TTUHSC. Between August 1, 2023 and October 27, 2023, three (3)
Student Code of Conduct complaints were filed against Plaintiff, and Plaintiff lodged six (6)
complaints against a number of TTUHSC employees. Given the overlapping facts and bases of
the complaints lodged by and against Plaintiff, TTUHSC School of Medicine consolidated all
allegations into a single hearing. Notice of the consolidated hearing was provided to Plaintiff on
November 9, 2023. See Notice of Consolidation of Outstanding Student Matters, dated November
9, 2023, attached as Exhibit 1. That notice informed Plaintiff that he would be “afforded maximum
due process” and that the consolidated hearing would follow the procedures outlined in TTHHSC
Handbook, Part II, Code of Conduct. See id. On November 16, 2023, Plaintiff was notified by
the TTUHSC School of Medicine of the date, time, and location of the hearing, as well as the
Student Conduct Board members pursuant to the TTUHSC Handbook, Part II, F.4.b. See Hearing
Notice, dated November 16, 2023, attached as Exhibit 2, at p. 1.
That notice also outlined four complaints filed against the Plaintiff and the “Below
Expectations” evaluations he received for professionalism during his clerkships. 2 See id., at p. 5.
The four complaints of misconduct included: (1) unprofessional conduct by expressing romantic
feelings toward a resident, (2) unprofessional conduct by sending photos of his own diarrhea and
vomit to the clerkship director and Assistant Vice Dean, (3) unprofessional conduct by entering
into a personal relationship with a patient during his Psychiatry clerkship, and (4) unprofessional
conduct by posting a message on social media on November 3, 2023, that represented a perceived
threat to the TTUHSC community. Specifically, that message read in part, “Each and every one
other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents
incorporated into the complaint by reference and matters of which a court may take judicial notice.” Funk v. Stryker
Corp., 631 F.3d 777, 783 (5th Cir. 2011). This may include “any documents attached to the motion to dismiss that are
central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d
383, 387 (5th Cir. 2010). Defendants do not concede the accuracy of Plaintiff’s allegations.
2
The November 9, 2023 Hearing Notice informed Plaintiff of a fourth allegation that pertained to a November 3, 2023
unprofessional post by Plaintiff on social media.
82
of us is going to be dead someday very, very soon. […] These other people, too, are going to be
dead very, very, soon.” Id., at pp. 3-17.
On Friday, December 8, 2023, at 2:19 PM, one (1) business day before the consolidated
hearing, Plaintiff submitted an online disability services application. He requested
“accommodation generally, but in particular concerning a student conduct hearing scheduled for
Dec.11 at 8am.” See Disability Services Application Submission, dated December 12, 2023,
attached as Exhibit 3, at p. 2. Plaintiff asserted he had never before used classroom
accommodations or assistive technology while at TTUHSC. His application was routed to the
Student Disability Services (SDS) Office. In accordance with TTUHSC’s accommodations policy,
TTUHSC OP 77.14, SDS is the only office authorized to grant student requests for Letters of
Accommodation (“LOAs”) for disabilities. TTUHSC OP 77.14 states the process may take up to
two (2) weeks and “No requirement exists that accommodation be made prior to completion of the
approved university process.” See TTUHSC OP 77.14, Establishing Reasonable Accommodations
for Students with Disabilities, attached as Exhibit 4, at pp. 1-2. Only after an LOA is issued, may
a student avail himself of the approved accommodation. No LOA was ever issued to Plaintiff.
The following Monday, December 11, 2023, Plaintiff appeared at the dismissal hearing
with his attorney. All parties were provided the “Hearing Process and Rules of Decorum” by the
Hearing Officer. See TTUHSC’s Hearing Process and Rules of Decorum, dated December 11,
2023, attached as Exhibit 5. Plaintiff asked the Hearing Officer for the same accommodations he
requested, but which had not been approved by the SDS. The Hearing Officer explained he did
not have the authority to grant disability accommodations but permitted portions of the
neuropsychological evaluation to be admitted that pertained to potential explanations for Plaintiff’s
behavior at issue in the hearing. Other portions related to Plaintiff’s request for accommodations,
83
which was before the SDS, were redacted as being “outside the Board’s scope.” See Complaint,
¶ 26; Neuropsychological Evaluation, dated December 6, 2023, attached as Exhibit 6 (redacted). 3
The hearing proceeded for approximately 14 hours following the procedures outlined in Part II of
the TTUHSC Handbook. After the hearing concluded, the Student Conduct Board went into
closed deliberations.
On December 27, 2023, the Student Conduct Board issued its Findings and
Recommendations (“Report”) and provided a copy to Plaintiff. See Findings and
Recommendations of Student Conduct Board, dated December 27, 2023, attached as Exhibit 8.
The Report summarized the allegations made by and against Plaintiff and the substandard
evaluations. It documented the dismissal hearing process, Plaintiff’s request for accommodations,
and his attempt to submit untimely evidence consisting of the neuropsychological evaluation. The
Report also noted the Hearing Officer admitted portions of the evaluation, despite the untimely
submission. See id.
The Board found, by unanimous vote, that Plaintiff violated the Code of Conduct for each
of the four (4) allegations against him. The Board agreed, by unanimous vote, that the six (6)
substandard evaluations Plaintiff received constituted a further basis of action against Plaintiff.
The Board found, by unanimous vote, the six (6) grievances made by Plaintiff against TTUHSC
personnel were unsubstantiated. Id., at pp. 11-12. The Board’s final unanimous recommendation
was that Plaintiff “be dismissed as a student from the TTUHSC School of Medicine.” Id., at p.
12. Specifically, the Board recommended, “Non-Academic Dismissal from the TTUHSC School
of Medicine, without the option to apply for readmission, with a notation on Dr. Bass’s transcript
3
Exhibit 7 is the unredacted Neuropsychological Evaluation submitted by Plaintiff.
84
reflecting the nature of the dismissal (i.e. Non-Academic Dismissal – Ineligible to Re-Enroll), as
described in the Code of Conduct, Part II.G.2.g.” Id., at p. 13. The Board specifically noted:
In making these recommendations, the Board considered all the evidence
presented, including the neuropsychological evaluation and diagnosis
submitted by Dr. Bass. The Board determined that Dr. Bass’s diagnosis, which
was not disclosed until the morning of the hearing, was not a proper basis for
retroactive leniency for Dr. Bass, particularly given that Dr. Bass had been
provided numerous opportunities to remedy his behavior, had been provided
the professionalism resources of Dr. Erwin, and had been advised to see
medical professionals in the months he was exhibiting unprofessional
behavior and leading up to his November 3, 2023 tweet.
Id.
Pursuant to the Code of Conduct, Part II.F.4.o, the Report was then forwarded to the Dean
of the School of Medicine, Dr. John DeToledo. See TTUHSC Student Handbook, Code of
Professional Conduct, 2024-2025, attached as Exhibit 9, at p. 17. On December 29, 2023, Dean
DeToledo notified Plaintiff that he reviewed the Report, the video recording of the hearing, and
all supporting evidence.
After a thorough review, Dean DeToledo, supported the Board’s
recommendation and upheld the dismissal. The notification informed Plaintiff that he may appeal
any claim of procedural deviation that substantially affected the outcome or present new
information to the Provost within five (5) business days. See Dismissal Letter, dated December
29, 2023, attached as Exhibit 10. Plaintiff appealed. On January 11, 2024, the Vice Provost
notified Plaintiff his appeal was denied. The Vice Provost determined no “procedural deviation
occurred that substantially affected the outcome” and that no “new information exists to
sufficiently alter the findings reviewed in the original hearing.” See Letter re: Appeal of Dismissal,
dated January 11, 2024, attached as Exhibit 11. Plaintiff’s dismissal became effective January 11,
2024. See Dismissal Memorandum, dated January 12, 2024, attached as Exhibit 12. Additionally,
85
after submitting the initial Disability Services Application to the SDS on December 8, 2023,
Plaintiff never again inquired about the application’s status.
III.
A.
ARGUMENT AND AUTHORITIES
Legal Standard.
Eleventh Amendment immunity is jurisdictional and deprives federal courts of
official capacities for damages. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01
(1984); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54-55 (1996). A plaintiff bears the burden
of establishing a clear waiver of immunity or a valid congressional abrogation. Coll. Sav. Bank v.
Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675-76 (1999).
Qualified immunity shields government officials from damages unless a plaintiff plausibly
alleges that (1) the defendant violated a constitutional right and (2) the right was clearly established
at the time of the challenged conduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts
may resolve cases on either prong or
Id.
at 236. A right is clearly established only if existing precedent places the constitutional question
beyond debate. Ashcr
, 563 U.S. 731, 741 (2011). The inquiry must be conducted in
the specific factual context, not at a high level of generality. Mullenix v. Luna, 577 U.S. 7, 12
(2015).
To survive a Rule 12(b)(6) motion, a complaint must plead sufficient factual matter to state
a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007).
Iqbal, 556 U.S. at 678-79. Where a complaint fails to allege facts supporting each element of a
claim, dismissal is required.
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B.
Plaintiff Fails to State a Claim Under the Rehabilitation Act (Count 1).
1.
Plaintiff does not plausibly plead exclusion/denial of benefits “by reason of”
disability.
To state a § 504 claim, a plaintiff must plausibly allege (1) he has a disability; (2) he is
otherwise qualified; (3) he was excluded from participation in, denied the benefits of, or subjected
to discrimination under a federally funded program; and (4) the exclusion or discrimination was
by reason of (and in this Circuit, in many formulations, “solely by reason of”) disability. DelanoPyle v. Victoria Cty., 302 F.3d 567, 574 (5th Cir. 2002). To establish actionable disability
discrimination, a plaintiff must show denial of “meaningful access” to the benefits of the program,
not merely dissatisfaction with the procedures used or disagreement with the outcome. See
Alexander v. Choate, 469 U.S. 287, 301 (1985); Cadena v. El Paso County, 946 F.3d 717, 724
(5th Cir. 2020).
Even accepting Plaintiff’s allegations, he pleads that he participated in the disciplinary
hearing (indeed, he alleges it lasted roughly 14 hours and involved extensive witness testimony),
was represented by counsel, and presented his position.
See Complaint, ¶¶ 25-30, 42.
Additionally, the Hearing Officer admitted, over the TTUHSC representative’s objection, a
redacted
version
of
Plaintiff’s
untimely-submitted neuropsychological
evaluation
by
Dr. Wierzchowski, which the Board specifically considered. Exhibit 8, at pp. 6, 13. Those facts
negate a plausible inference that TTUHSC denied him “meaningful access” to the proceeding
because of his alleged disability, with the only plausible inference being that TTUHSC applied
neutral procedural limits in a disciplinary process addressing alleged conduct and safety concerns.
See Complaint, ¶¶ 31-31C (describing “direct threat” framing) and ¶¶ 27-29 (procedural rules
disputes). Additionally, Plaintiff was offered and accepted the opportunity to appeal the Dean’s
decision regarding the Board’s recommendation. See Exhibit(s) 8, p. 13 and 10.
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2.
Damages require intentional discrimination; Plaintiff pleads, at most, a
disagreement about process and preferred accommodations.
Monetary damages under § 504 require “intentional discrimination,” which in this Circuit
is satisfied—if at all—by deliberate indifference: actual knowledge of a substantial likelihood of
a statutory violation and a deliberate choice not to act. Bennett-Nelson v. La. Bd. of Regents, 431
F.3d 448, 454-55 (5th Cir. 2005); Cadena, 946 F.3d at 724-27. But there was no statutory or policy
violation by the Defendants. It was the Plaintiff who deviated from the process. Plaintiff was first
notified of the consolidated board hearing on November 9, 2023 and a week later he received a
second hearing notice informing him the hearing would be held on December 11. See Exhibit(s)
1 and 2. Arguably Plaintiff had three years to request disability accommodations but specifically,
he was on notice of the consolidated hearing for four weeks, ample time for him to submit his
accommodation request and for the SDS to complete its process. But Plaintiff failed to act until
one business day prior to the hearing date.
Plaintiff provides no evidence or claim that prior to submitting his request to SDS in the
late afternoon on Friday, December 8, 2023 that anyone—and specifically Mancini, Cobbs,
Williams, and Gibson—had any knowledge about his alleged disability. Plaintiff’s eleventh-hour
request prevented Defendants from completing the interactive process contemplated by federal
law and TTUHSC policy, which requires documentation review and individualized assessment
before accommodations are approved. See Shurb v. Univ. of Texas Health Sci. Ctr. at HoustonSch. of Med., 63 F. Supp. 3d 700, 709 (S.D. Tex. 2014) (citing Aragona v. Berry, 3:10-CV-1610G, 2012 WL 467069, at *10 (N.D. Tex. Feb. 14, 2012)).
Plaintiff’s Count 1 theory is that TTUHSC should have provided his preferred method of
participation (e.g., “limited attorney-assisted questioning”) and other format adjustments at the
eleventh hour without SDS verifying his disability and engaging in an interactive process with
88
Plaintiff, in accordance with TTUHSC policy. See Complaint, ¶¶ 45-48. But the Rehabilitation
Act does not create liability merely because the Plaintiff prefers a different procedure, different
accommodation, or approval timeline than that which is established under policy and comports
with the law.
And Plaintiff’s own allegations—including that officials acknowledged the
disability-services process and SDS’s authority and proceeded with the hearing—do not plausibly
show the kind of deliberate, knowing refusal required for damages. See Complaint, ¶¶ 25-27, 40,
42.
Because Plaintiff has not plausibly alleged intentional discrimination, Count 1 should be
dismissed under Rule 12(b)(6).
C.
Plaintiff Fails to State (and Lacks Standing for) Title II Prospective Relief (Count 2).
1.
Plaintiff does not allege a real and immediate threat of future injury; the requested
injunction is aimed at past events or speculative future proceedings.
Article III requires that a plaintiff seeking injunctive relief plausibly allege a real and
immediate threat of future injury—past exposure to alleged illegality is not enough. See City of
Los Angeles v. Lyons, 461 U.S. 95, 105-06 (1983). Count 2 is expressly framed as “prospective
relief,” but the relief Plaintiff requests is largely tethered to the already-completed December 2023
hearing and the consequences of his dismissal (record preservation, transcript practices, and
procedures “in any renewed adjudication”). See Complaint, ¶¶ 52-52A. 4
Further, Plaintiff does not plausibly allege that TTUHSC is about to convene a new
dismissal hearing or imminently subject him to the same process again. To be certain, Plaintiff
exhausted the administrative appeal process afforded to him. See Exhibit 11. At most, Count 2
4
Notably, after filing the First Amended Complaint, Plaintiff affirmatively withdrew “any request for temporary or
preliminary injunctive relief,” including the request embedded in the Complaint. See Plaintiff’s Response to the
Findings, Conclusions, and Recommendation, ECF No. 24 at 1–2. Plaintiff further stated that he “is not seeking a
TRO or a preliminary injunction at this time” and does not presently pursue expedited discovery. Id. This withdrawal
confirms that Plaintiff does not allege a real and immediate threat of future injury—as required for injunctive relief—
and independently defeats standing for prospective relief under Article III and Ex parte Young.
89
seeks court supervision of how TTUHSC would conduct hypothetical future proceedings. That is
not a justiciable basis for injunctive relief, and therefore, Count 2 should be dismissed.
2.
Ex parte Young is not satisfied as pleaded: generalized “supervisory” authority is
not an enforcement connection.
Even when a plaintiff seeks prospective relief, Ex parte Young applies only where the
named officials have “some connection” to the enforcement of the challenged act—general
supervisory authority is not enough. Ex parte Young, 209 U.S. 123 (1908); Okpalobi v. Foster,
244 F.3d 405, 414-16 (5th Cir. 2001) (en banc).
Here, Plaintiff sues a wide array of officials—up to and including the President and
Provost—based on broad descriptions of institutional oversight. See Complaint, ¶¶ 20A-20B, 51.
That is precisely the sort of generalized connection Fifth Circuit precedent rejects. See City of
Austin v. Paxton, 943 F.3d 993, 1001-02 (5th Cir. 2019). Courts likewise reject Ex parte Young
claims against senior university administrators based solely on institutional oversight where the
official lacks direct enforcement authority over the challenged disciplinary decision. See Morris
v. Livingston, 739 F.3d 740, 746-47 (5th Cir. 2014).
Count 2 therefore fails to invoke a valid Ex parte Young pathway and should be dismissed.
3.
Much of the requested relief is retrospective in substance (therefore barred), even
if labeled “prospective”.
The Court should look to the substance of the requested relief. Relief that is retrospective—
seeking to remedy past alleged wrongs—does not fit Ex parte Young even if styled as an injunction.
See Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645-46 (2002) (Young applies
only to ongoing violations and prospective relief); Papasan v. Allain, 478 U.S. 265, 277-78 (1986).
Here, Plaintiff’s requested injunction is aimed at undoing or re-litigating the consequences
of a past disciplinary process and regulating past-publication fallout (transcript notations, record
90
access, and “corrective” processes). See Complaint, ¶¶ 52-52A, 52B. That relief is retrospective
in substance and falls outside Ex parte Young. Accordingly, Count 2 should be dismissed.
D.
Qualified Immunity Bars All § 1983 Claims Against the Individual Defendants
(Counts 3-5).
Plaintiff’s constitutional claims attempt to recast routine academic discipline, campus-
safety enforcement, and professionalism determinations as federal civil-rights violations.
Qualified immunity exists to prevent precisely this type of litigation absent a clear showing that
officials violated clearly established constitutional law. Pearson v. Callahan, 555 U.S. 223, 231–
32 (2009).
To overcome qualified immunity, Plaintiff must plausibly allege both (1) the violation of
a constitutional right and (2) that the right was clearly established at the time of the challenged
conduct. al-
, 563 U.S. at 735. This inquiry must be conducted at a high level of factual
specificity—not by reference to abstract constitutional principles—and requires precedent placing
the alleged violation “beyond debate.” Mullenix v. Luna, 577 U.S. 7, 12 (2015); Babinski v.
Sosnowsky, 79 F.4th 515, 524 (5th Cir. 2023).
In the higher-education context, Fifth Circuit precedent affords substantial deference to
university officials charged with maintaining campus safety, enforcing professionalism standards,
and administering student disciplinary processes. Absent extraordinary circumstances, educators
and administrators are entitled to qualified immunity unless no reasonable official could have
believed the challenged conduct was lawful. Brinsdon v. McAllen Indep. Sch. Dist., 863 F.3d 338,
347 (5th Cir. 2017) (citing Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011)).
Here, Plaintiff fails to meet either prong of the qualified-immunity analysis for any of his
§ 1983 claims. As set forth below, Plaintiff’s own allegations demonstrate that he received
constitutionally adequate process in connection with the disciplinary proceedings, and his
91
retaliation theory rests on vague and undefined speech allegations that are not clearly protected by
controlling precedent. Because Plaintiff cannot identify any clearly established constitutional right
violated by the Individual Defendants, Counts 3, 4, and 5 must be dismissed.
1.
Procedural Due Process.
As for his Procedural Due Process claim (Count 3), Plaintiff’s own allegations establish
that he received notice of the charges, a 14-hour hearing, representation by counsel, and an
opportunity to present evidence. See Complaint, ¶¶ 21-23. Furthermore, the Board’s decision also
makes clear that Defendants provided Plaintiff with more than sufficient due process. See Exhibit
8. The Fifth Circuit has repeatedly held that students facing discipline are entitled only to notice
and an opportunity to be heard—not trial-like procedures. There is no clearly established right to
attorney-led cross-examination, formal evidentiary rules, or any particular hearing format. At
minimum, due process in the student disciplinary context requires only notice and an opportunity
to be heard at a meaningful time and in a meaningful manner. See Goss v. Lopez, 419 U.S. 565,
579 (1975); Plummer v. Univ. of Houston, 860 F.3d 767, 773-74 (5th Cir. 2017); Van Overdam v.
Texas A&M Univ., 43 F.4th 310 (5th Cir. 2022).
Here, Plaintiff affirmatively alleges that he was represented by counsel throughout the
proceedings, submitted evidence, participated in a 14-hour hearing, and received the opportunity
to appeal—facts that independently defeat any claim of constitutionally inadequate process. See
Complaint, ¶¶ 21-23. Qualified immunity therefore applies.
For example, Plaintiff alleges that Defendant Gibson, in serving as the outside Hearing
Officer, “barred real-time objections” and purportedly “organized the hearing in a manner contrary
to the Student Handbook,” among other alleged slights to Plaintiff. See Complaint, ¶ 39A.
However, Plaintiff has not presented any clearly established law that establishes a right for a
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student to make “real-time objections” to evidence during the course of a student misconduct
hearing, similar to objections lodged during a courtroom trial. Rather, “the Fifth Circuit has held
that disciplinary proceedings do not require formal rules of evidence or all the procedural
protections of a trial.” Plummer, 860 F.3d at 773-74; see also Esfeller v. O’
e, 391 F. App’x
337 (5th Cir. 2010) (holding that a state university which held a hearing in a student’s absence and
barred his attorney from observing or participating in the hearing was nevertheless compliant with
procedural due process because the student was otherwise heard on a number of occasions by
different university officials).
Furthermore, even if the hearing did not comply with the procedures set forth in the Student
Handbook (which it did), that does not constitute a violation of due process. Courts in the Fifth
Circuit have made clear that “a University’s departure from its own rules and regulations does not,
by itself, violate procedural due process unless the rule or regulation codifies the pertinent
constitutional standard.” Pham v. Univ. of La. Monroe, 194 F.Supp.3d 534, 544 (W.D. La. 2016)
(citing cases); see also Levitt v. Univ. of Tex. at El Paso, 759 F.2d 1224, 1230 (5th Cir. 1985)
(holding that failure to follow internal university procedures does not itself establish a due process
violation). “A plaintiff has no due process right to state-implemented procedures. The relevant
inquiry at all times is whether or not a plaintiff has been afforded constitutionally adequate notice
and a constitutionally adequate hearing.” Pham, 194 F.Supp.3d at 544. Accordingly, alleged
violations of internal policy cannot transform routine disciplinary procedures into constitutional
claims.
Here, the allegations indicate that Plaintiff was afforded constitutionally adequate notice
and a constitutionally adequate hearing, and he has certainly not presented allegations reflecting a
violation of any clearly established right by the Individual Defendants. Therefore, Count 3 of
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Plaintiff’s claims must be dismissed under Rule 12(b)(6) because qualified immunity applies.
Because Plaintiff cannot identify any clearly established constitutional requirement governing the
format, structure, or evidentiary rules of a university disciplinary hearing, his remaining
constitutional theories likewise fail to overcome qualified immunity.
2.
Stigma-Plus Due Process.
As for his Stigma-Plus Due Process claim (Count 4), Plaintiff alleges reputational harm
based on transcript notations and communications. See Complaint, ¶¶ 34–35. He does not,
however, plead the publication of a materially false statement by any specific Defendant, as
required
Paul v. Davis, 424 U.S. 693, 701-12 (1976). An accurate
description of a student’s enrollment status or disciplinary outcome—even if unfavorable—cannot
constitute a false statement as a matter of law. Hughes v. City of Garland, 204 F.3d 223, 226-28
(5th Cir. 2000) (stigma-plus requires publication of false and stigmatizing charges in connection
with a change of legal status; if the statement is not false, the claim fails); see also Codd v. Velger,
429 U.S. 624, 627-28 (1977) (no name-clearing hearing required absent a dispute that the
stigmatizing information is false). Plaintiff also fails to plead a separate “plus” deprivation
independent of the disciplinary action itself, which cannot serve as both the alleged stigma and the
required alteration of legal status. See Blackburn v. City of Marshall, 42 F.3d 925, 936 (5th Cir.
1995). Accordingly, Count 4 fails as a matter of law and should be dismissed.
3.
Plaintiff’s Retaliation Claim Fails Because He Does Not Plead Clearly Protected
Speech or a Clearly Established First Amendment Violation.
Just as Plaintiff cannot identify any clearly established procedural right governing the
format or conduct of a university disciplinary hearing, he likewise fails to identify any clearly
established First Amendment right that would have put reasonable university officials on notice
that enforcing professionalism standards, addressing perceived safety concerns, or proceeding with
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student discipline constituted unlawful retaliation. Plaintiff’s retaliation claim fails at the threshold
because he does not plausibly allege that Defendants retaliated against constitutionally protected
speech, much less speech protected by clearly established law. To state a First Amendment
retaliation claim, a plaintiff must allege (1) engagement in protected activity, (2) an adverse action
that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) a
causal connection between the two. Buchanan v. Alexander, 919 F.3d 847, 852 (5th Cir. 2019).
When qualified immunity is asserted, the burden rests on Plaintiff to show that the specific speech
at issue was clearly protected and that existing precedent placed the alleged violation “beyond
debate.” al-
, 563 U.S. at 741. 5
Here, Plaintiff’s own pleading fails to identify with any specificity what speech allegedly
triggered the challenged disciplinary actions. Instead, the Complaint relies on vague references to
“posts,” generalized policy criticism, and non-specific allegations that administrators urged
Plaintiff to “stop posting online.” See Complaint, ¶¶ 32-33A. Such conclusory allegations are
insufficient to establish protected activity or to overcome qualified immunity. See Iqbal, 556 U.S.
at 678; Babinski, 79 F.4th at 524 (requiring a high degree of factual and legal specificity to defeat
qualified immunity).
Moreover, Plaintiff affirmatively pleads that the conduct at issue included a mortalitythemed social media post that was perceived as threatening by members of the university
5
Plaintiff’s own allegations demonstrate the absence of clearly protected speech. The Complaint references (i) a
generalized comment about mortality that did not address any governmental policy, (ii) crude personal
communications sent directly to faculty members involving bodily fluids, and (iii) vague criticism of COVID-19
vaccination policies without identifying the content, timing, or audience of the alleged statements. Speech consisting
of personal workplace communications or ambiguous statements untethered to matters of public concern is not
categorically protected by the First Amendment. See Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (not all speech by
individuals interacting with government institutions is constitutionally protected); Buchanan v. Alexander, 919 F.3d
847, 852-53 (5th Cir. 2019) (context and manner of speech are critical to protected-speech analysis). To the extent
Plaintiff relies on unspecified “posts” criticizing institutional vaccine policies, his failure to plead what was said, when
it was said, or how it allegedly motivated the challenged actions is fatal at the Rule 12 stage and independently
insufficient to overcome qualified immunity. See Iqbal, 556 U.S. at 678; Babinski, 79 F.4th at 524.
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community, as well as unprofessional personal communications directed to faculty. See
Complaint, ¶¶ 31A-31C; see also Exhibit 4, at pp. 3-17. Even accepting Plaintiff’s characterization
of these communications, the Fifth Circuit has not clearly established that such speech—
particularly in a professional academic setting governed by codes of conduct and safety
obligations—is constitutionally protected. Because Plaintiff cannot identify clearly established
precedent placing Defendants’ conduct outside the bounds of lawful disciplinary authority,
qualified immunity bars Count 5 as a matter of law. Accordingly, Plaintiff’s retaliation claim
should be dismissed.
In Count 5, Plaintiff alleges retaliation based on protected speech but pleads no facts
plausibly showing that any Individual Defendant acted because of protected activity rather than
alleged misconduct and safety concerns. See Complaint, ¶¶ 1, 34–35. To support such a claim, a
plaintiff must plead a “causal connection” between the government defendant’s “retaliatory
animus” and the plaintiff’s “subsequent injury.” Nieves v. Bartlett, 587 U.S. 391, 398-99 (2019)
(citing Hartman v. Moore, 547 U.S. 250, 259 (2006)). Specifically, it must be a “but-for” cause,
meaning that the adverse action against the plaintiff would not have been taken absent the
retaliatory motive. Id. at 399. Stated differently, a plaintiff must show that they engaged in
protected speech and that it is “plausible,” not merely possible, that the adverse act in question was
driven by retaliatory animus for his protected speech and not by some other factor. Moreover,
temporal proximity alone is insufficient, and no clearly established law prohibits academic
discipline under these circumstances. See Anderson v. Valdez, 845 F.3d 580, 590–92 (5th Cir.
2016); see also Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007) (holding
that temporal proximity, without more, is insufficient to establish causation). Where independent
disciplinary grounds exist, retaliation claims fail as a matter of law absent facts plausibly negating
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legitimate non-retaliatory motives. See Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
Further, conclusory assertions of motive are insufficient to overcome qualified immunity.
Anderson, 845 F.3d at 590-92 (First Amendment retaliation requires plausible allegations that
protected speech was a substantial/motivating factor; conclusory assertions of retaliatory motive
do not overcome qualified immunity);
, 290 F.3d 252, 258-59 (5th Cir.
2002) (same elements; causation must be plausibly pleaded).
Here, there are no specific allegations that any of the individuals had any retaliatory animus
against Plaintiff’s allegedly protected speech.
While Plaintiff alleges that the Individual
Defendants were aware of his speech, he does not allege that the alleged retaliatory acts were taken
“because of” his speech based on the defendant’s purported retaliatory animus.
See, e.g.,
Complaint, ¶¶ 36, 36A, 37, 39A (no allegation Cobbs or Gibson acted out of retaliatory animus;
conclusory allegation of intent against Wilson, Williams, and Cobbs). Rather, Plaintiff alleges
that Defendants were aware of his speech and concludes, ipse dixit, that Defendants’ actions related
to his discipline hearing and dismissal must have been in retaliation to that speech. Such vague
allegations are insufficient to defeat qualified immunity.
Furthermore, even if the Court were to find that Plaintiff’s social media post constitutes
speech protected by the First Amendment, Defendants would nevertheless be protected by
qualified immunity, because such actions in response to Plaintiff’s post would still be reasonable
in light of the “foreseeable substantial disruption of or material interference with school activities.”
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969). In Tinker, the Supreme
Court recognized that a school official can regulate and prohibit student speech when “facts might
reasonably have led school authorities to forecast [that the proscribed speech would cause]
substantial disruption of or material interference with school activities.” Id. The Court recognizes
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that acts which “materially disrupts the classwork or involves a substantial disorder or invasion of
the rights of others is . . . not immunized by the [First Amendment].” Id. at 513; see also A.M. ex
rel. McAllum v. Cash, 585 F.3d 214, 221-22 (5th Cir. 2009) (applying Tinker, holding racial
tension and hostility justified the defendants’ ban on display of the Confederate flag and did not
constitute a First Amendment violation).
In short, Tinker governs a school’s content- or viewpoint-based restrictions, and the Fifth
Circuit and other circuit courts have applied Tinker to First Amendment higher education cases. 6
For example, in
, the Fifth Circuit held that the university’s Code of Conduct
that limited speech that “intrudes upon … the rights of other students,” was not facially
unconstitutional under Tinker. 391 F. App’x 337, 341 (5th Cir. 2010). As a result, Plaintiff cannot
establish that the Individual Defendants personally violated clearly established law in taking action
against Plaintiff due to his threatening social media post.
In sum, Plaintiff’s § 1983 claims rest on an effort to transform academic discipline and
campus-safety decisions into constitutional violations. Fifth Circuit precedent does not clearly
establish a right to trial-like disciplinary procedures, a right to dictate hearing format, or a right to
engage in the types of speech alleged here without professional or institutional consequence.
Because Plaintiff has failed to plausibly allege the violation of any clearly established
constitutional right, all claims against the Individual Defendants are barred by qualified immunity.
Counts 3, 4, and 5 should therefore be dismissed with prejudice.
6
, 391 F. App’x 337, 341-42 (5th Cir. 2010); Shamloo v. Mississippi State Bd. of Tr. of Insts. of
Higher Learning, 620 F.2d 516, 521–24 (5th Cir. 1980); Students for Justice in Palestine, at the University of Houston,
et al. v. Abbott, Case No. 1:24-cv-00523-RP, ECF 62, at 11 (W.D. Tex. Oct. 28, 2024) (applying Tinker to dismiss
claims on qualified immunity grounds); see also Daniel B. Dreyfus, A Common Judicial Standard for Student Speech
Regulations, 102 Tex. L. Rev. 1059, 1075 (2024) (citing circuit court cases that applied or confirmed Tinker’s
applicability to First Amendment cases involving universities).
98
E.
Sovereign Immunity Bars Claims Against TTUHSC (Counts 6-7).
TTUHSC is an arm of the State of Texas and is immune from suit absent waiver. Public
medical universities qualify as arms of the state for Eleventh Amendment purposes.
LSU, 714 F.3d 322, 328 (5th Cir. 2013). Section 1983 claims fail because states are not “persons”
under the statute. Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989). Plaintiff seeks monetary
relief under Title II of the ADA and § 504 of the Rehabilitation Act. Although Congress has
conditioned receipt of federal funds on a waiver of sovereign immunity for certain § 504 claims,
monetary relief nevertheless requires a plausible allegation of intentional discrimination, which
Plaintiff has not pleaded. Delano-Pyle, 302 F.3d at 574.
As to Title II, damages remain barred absent a pleaded constitutional violation or valid
abrogation under United States v. Georgia, 546 U.S. 151, 159 (2006), which Plaintiff has not
plausibly alleged. Here, Plaintiff alleges, at most, disagreement over accommodations, which is
insufficient as a matter of law. See Complaint, ¶¶ 6–10.
Accordingly, Counts 6 and 7 must be dismissed.
IV.
DISMISSAL WITHOUT/WITH PREJUDICE
Claims dismissed under Rule 12(b)(1) should be dismissed without prejudice, while claims
dismissed on immunity and merits grounds under Rule 12(b)(6) should be dismissed with prejudice
where amendment would be futile. Block v. Tex. Bd. of Law Exam’rs, 952 F.3d 613, 620 (5th Cir.
2020). But where, as here, claims fail as a matter of law and are independently barred by qualified
immunity, dismissal with prejudice is appropriate because amendment would be futile. Cox v.
City of Dallas, 430 F.3d 734, 748 (5th Cir. 2005).
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V.
PRAYER AND REQUEST FOR RELIEF
Based on the foregoing, Defendants respectfully request that the Court grant this Motion,
dismiss all claims against all Defendants under Rules 12(b)(1) and 12(b)(6), dismiss claims barred
by sovereign immunity or qualified immunity with prejudice where appropriate, and grant all
further relief to which Defendants are justly entitled.
Respectfully submitted,
KEN PAXTON
Attorney General
BRENT WEBSTER
First Assistant Attorney General
RALPH MOLINA
Deputy First Assistant Attorney General
AUSTIN KINGHORN
Deputy Attorney General for Civil Litigation
KIMBERLY GDULA
Chief, General Litigation Division
/s/ Scott D. Smith______________
SCOTT D. SMITH
Assistant Attorney General
Texas Bar No. 24011874
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711 2548
Telephone: (512) 917-3132
Division Fax: (512) 477-2348
Email: scott.smith@oag.texas.gov
Counsel for Defendants
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CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document was served on January 21,
2026, via the Court’s ECF system to:
Kevin N. Bass
Phone: 512-333-4092
Email: kbassphiladelphia@gmail.com
Pro Se Plaintiff
/s/ Scott D. Smith________
SCOTT D. SMITH
Assistant Attorney General
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This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Tristan Garza on behalf of Scott Smith
Bar No. 24011874
tristan.garza@oag.texas.gov
Envelope ID: 111042880
Filing Code Description: PLJV - Plea To Jurisdiction / Venue
Filing Description: DEFENDANTS PLEA TO THE JURISDICTION OR, IN
THE ALTERNATIVE, PLEA IN ABATEMENT
Status as of 2/10/2026 8:07 AM CST
Associated Case Party: Darrin D'Agostino
Scott D. Smith
scott.smith@oag.texas.gov
2/9/2026 5:11:53 PM
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Karla Gutierrez
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2/9/2026 5:11:53 PM
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Tristan AGarza
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2/9/2026 5:11:53 PM
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Associated Case Party: Kevin Bass
Kevin N. Bass
kbassphiladelphi@gmail.com
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