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Reply in support of the motion to dismiss (Dkt. 27)

Bass v. TTUHSC, No. 5:25-cv-00244-H-BV (N.D. Tex.) · Dkt. 38 · 2026-03-02 · PDF

Text extracted from the PDF; scanned pages were read by OCR. The PDF is the authoritative copy.

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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.

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CIVIL ACTION NO. 5:25-cv-00244-H-BV

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS
TO THE HONORABLE DISTRICT COURT JUDGE:
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”) submit this Reply in support of their Motion to Dismiss
and respectfully show as follows:
I.

INTRODUCTION

Plaintiff’s Response only confirms that dismissal is required. As no legal theories exist to
overcome the jurisdictional and pleading defects identified in Defendants’ Motion, Plaintiff offers
a sprawling factual narrative, evidentiary appendix, and merits-based disputes that have no place
at the Rule 12 stage. Even accepting Plaintiff’s allegations as true, sovereign immunity bars his
claims against TTUHSC and official-capacity defendants, qualified immunity bars damages

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claims against the Individual Defendants, and the First Amended Complaint fails to plausibly
allege any constitutional or statutory violation. Before the Court can reach Plaintiff’s factual
disputes, it must resolve these threshold jurisdictional and immunity barriers, which are designed
to spare public institutions and officials from the burdens of litigation.
In sum, Plaintiff attempts to constitutionalize an academic and disciplinary dismissal—an
area where courts afford substantial institutional deference and where federal liability arises only
in the most extraordinary circumstances. This case does not approach that threshold. Even if
Plaintiff were permitted to file a third amended complaint, he would be unable to span the chasm
of immunity that exists between any pleaded facts and a legal remedy. Accordingly, the only
remedy that exists is to grant Defendants’ Motion.
II.
A.

REPLY

Sovereign Immunity Bars Claims Against TTUHSC and Official-Capacity
Defendants
Plaintiff does not—and cannot—avoid Eleventh Amendment immunity. State agencies and

state officials sued in their official capacities for damages are immune from suit absent waiver or
valid congressional abrogation. 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). TTUHSC is an arm of the
State of Texas, and Plaintiff identifies no waiver applicable to his claims. Nor does Ex parte Young,
209 U.S. 123 (1908), salvage his official-capacity claims. That doctrine permits only prospective
relief to remedy an ongoing violation of federal law. Plaintiff challenges a completed student
dismissal decision, which he appealed and was denied, and seeks retrospective relief tied to past

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conduct. See First Amended Complaint, p. 12; Plaintiff’s Response, p. 25. Such relief is barred.
See Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002).
Plaintiff attempts to unshackle himself from the natural consequences of his actions by
placing blame on the Defendants for holding him accountable to institutional standards. Plaintiff’s
Response reframes his claims as seeking reputational and forward-looking relief, but the alleged
injury flows from a final student dismissal. Where the challenged action is complete and no
ongoing enforcement is alleged, Young does not apply. Plaintiff does not allege that any Defendant
is presently enforcing an unconstitutional policy against him; rather, he challenges a completed
academic determination.
Accordingly, all claims against TTUHSC and official-capacity defendants should be
dismissed for lack of subject-matter jurisdiction.
B.

Qualified Immunity Bars Individual-Capacity Claims
Qualified immunity shields public officials from damages unless a plaintiff’s well-pleaded

facts show (1) a constitutional violation and (2) that the right was clearly established at the time.
Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009); Pearson v. Callahan, 555 U.S. 223, 232 (2009).
Plaintiff satisfies neither prong. While courts will accept a plaintiff’s well-pled factual allegations
from the complaint, view them in light most favorable to the plaintiff, and hold pro se litigants to
a less-stringent standard than lawyers, “conclusory allegations or legal conclusions masquerading
as factual conclusions will not suffice to prevent a motion to dismiss.” Taylor v. Books A Million,
Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing S. Christian Leadership Conference v. Supreme
Court of the State of La., 252 F.3d 781, 786 (5th Cir.2001)). These conclusory allegations and
legal conclusions masquerading as factual conclusions are precisely what Plaintiff relies upon in
his arguments.

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1.

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No Clearly Established Right

Plaintiff identifies no controlling precedent clearly establishing: (1) a right to a nameclearing hearing following a student dismissal and appeal; (2) a right to disability accommodations
in a student misconduct proceeding absent institutional approval; or (3) a right to be free from
discipline where speech is intertwined with professionalism and conduct findings. To defeat
qualified immunity, precedent must place the constitutional question “beyond debate.” White v.
Pauly, 580 U.S. 73, 79 (2017). Courts are cautioned not to define clearly established law “at a high
level of generality.” Id. Plaintiff instead relies on generalized constitutional principles and out-ofcircuit student-discipline cases, which is insufficient.
2.

The Response Relies on Fact Disputes

Plaintiff’s extensive appendix and evidentiary assertions attempt to litigate factual
disputes. Qualified immunity, however, is designed to resolve insubstantial claims at the pleading
stage—before discovery. Iqbal, 556 U.S. at 672. Because Plaintiff fails to allege violation of
clearly established law, the Individual Defendants are immune from damages.
C.

Plaintiff Fails to State a Constitutional Violation
Even apart from immunity, the pleadings fail under Rule 12(b)(6).
1.

Due Process

Courts afford substantial deference to academic and disciplinary judgments of medical
schools. See Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 90 (1978); Regents of Univ.
of Mich. v. Ewing, 474 U.S. 214, 225 (1985). Plaintiff received notice of the allegations, a
consolidated hearing, an opportunity to present evidence, an opportunity to be heard, and an
appeal. His complaints of witness limits, evidentiary rulings, and hearing structure do not amount
to constitutional violations. See Plummer v. Univ. of Houston, 860 F.3d 767, 774 (5th Cir. 2017).

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In the educational setting, “the requisite elements of procedural due process are not wooden
absolutes applicable to each case regardless of circumstances.” Pham v. Univ. of Louisiana at
Monroe, 194 F. Supp. 3d 534, 544 (W.D. La. 2016), citing U.S. v. Richardson Indep. Sch. Dist.,
483 F. Supp. 80, 85 (N.D.Tex.1979). Courts have repeatedly held “a full-dress judicial hearing,
with the right to cross examine witnesses” is not required. Id., at 544. Additionally, a student is
entitled to a hearing officer that is both neutral and free from bias; however, “[i]n a school
disciplinary context, the level of impartiality required for the decision-maker does not reach the
absolute neutrality required in the criminal justice system.” Id., citing Riggan v. Midland Indep.
Sch. Dist., 86 F.Supp.2d 647, 656 (W.D. Tex. 2000). Ultimately, federal courts do not secondguess academic disciplinary procedures so long as they are fundamentally fair. Consistent with
this deference, courts decline to constitutionalize alleged procedural imperfections in academic
discipline where notice and an opportunity to be heard were provided. Even taking Plaintiff’s
factual at face value, his procedural due process claims fail as the Defendants clearly operated
within the zone of acceptable practice.
2.

First Amendment

Plaintiff attempts to improperly recharacterize his student hearing and professionalism and
misconduct findings as speech retaliation. In doing this, Plaintiff (1) is forced to make unsupported
deductive leaps and (2) seeks this court to conclude any statement he made to be protected First
Amendment speech. But institutions may regulate student conduct, including speech, where it
implicates professional standards, safety concerns, or educational environment obligations. Where
discipline rests on multiple independent grounds—including clinical conduct, interpersonal
interactions, and professionalism evaluations—speech is not the but-for cause of the adverse

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action. Plaintiff’s own allegations acknowledge numerous non-speech complaints and evaluations
supporting dismissal.
Even so, the First Amendment is not unbounded. It does not protect student speech that
“materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509, 513 (1969). One area where the
First Amendment is not unbounded is in “allowing a student to knowingly make comments,
whether oral or written, that reasonably could be perceived as a threat of school violence, whether
general or specific, while on school property during the school day.” Boim v. Fulton Cnty. Sch.
Dist., 494 F.3d 978, 984 (11th Cir. 2007). Courts have found that it is inconsequential whether a
speaker intended to cause a material disruption. What is relevant is whether the reasonable
interpretation of the speech caused a material disruption of classwork or substantial disorder. See
Morse v. Frederick, 551 U.S. 393, 401 (2007) (determining that a school's prediction of how
student speech "would be interpreted by those viewing it" was "a reasonable one" when faced with
the parties' competing interpretations). It is clear from Plaintiff’s First Amended Complaint that
the reasonable interpretation of the Plaintiff’s statements caused a disruption.
3.

Stigma-Plus / Name-Clearing

A stigma-plus claim requires reputational harm coupled with alteration of a legal right or
status. Paul v. Davis, 424 U.S. 693, 711 (1976). From a plain reading of the Complaint and
Plaintiff’s Response, any “harm” alleged by Plaintiff was a natural consequence of his actions.
Again, Plaintiff fails to provide sufficient factual basis to properly allege that his commentary was
the proximate cause of any harm he may have received. See First Amended Complaint, ¶ 33A.
Academic dismissal alone does not constitute stigma-plus, nor does the internal communication of
disciplinary findings. Moreover, any “online backlash” Plaintiff received was clearly due to his

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commentary as Plaintiff does not allege that the “backlash” originated from the Defendants. Id.
Plaintiff alleges no public dissemination rising to the level required under controlling precedent,
and courts routinely reject attempts to constitutionalize academic records or institutional
communications.
4.

Retaliation

Retaliation claims require protected activity, adverse action, and but-for causation. Plaintiff
fails to plausibly allege that his statements or grievances—rather than documented professionalism
and conduct concerns—caused his dismissal. Temporal overlap and subjective belief do not
establish causation, particularly where independent disciplinary bases exist. Where independent
grounds for discipline support the adverse action, a retaliation claim fails as a matter of law.
D.

ADA and Rehabilitation Act Claims Fail
Plaintiff’s statutory claims suffer multiple defects. First, Plaintiff would do well to reach

the holdings of cases he cites rather than relying on a misinterpretation by generative AI. Plaintiff
cites to Pickett v. Texas Tech University Health Sciences Center in his Response but fails to
recognize the distinction between cases. Indeed, Plaintiff misreads Pickett and overlooks the Fifth
Circuit’s holding regarding the structured interactive process. The Fifth Circuit has recognized the
accommodation process for the university student is analogous to the employee process. That is,
ADA accommodations must be an “interactive process” providing for “the input of the [student]
as well as the [university].” Pickett v. Texas Tech University Health Sciences Center, 37 F.4th
1013, 1033 (2022), citing Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 735 (5th Cir. 1999). This
interactive process requires centralization of accommodation request and not an ad hoc process of
submitting requests to faculty members, which would require expertise of the faculty members
that they may not have and “impose an unreasonable burden to accommodate a student’s whims.”

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Id., at 1032-33 (2022). Second, Plaintiff fails to plausibly allege intentional discrimination, which
is required for monetary relief under both Title II and § 504. Third, Plaintiff’s accommodation
theory fails on its face. Plaintiff submitted a disability accommodation request one business day
before the dismissal hearing. Institutional policy required review and approval through the Student
Disability Services office before accommodations could issue. No Letter of Accommodation had
been granted at the time of the hearing. Fourth, institutions may discipline misconduct even where
a student has a disability. The statutes do not immunize students from professionalism or conduct
standards.
Therefore, because Plaintiff pleads neither discriminatory intent nor denial of approved
accommodations, his statutory claims fail.
E.

Leave to Amend Is Procedurally Improper and Futile
Plaintiff alternatively seeks leave to file what he now characterizes as a Third Amended

Complaint. The procedural posture matters.
Under Federal Rule of Civil Procedure 15(a)(1), a plaintiff may amend once “as a matter
of course” within 21 days after serving the complaint or within 21 days after service of a Rule
12(b) motion. Thereafter, Rule 15(a)(2) applies, and amendment requires either written consent of
the opposing party or leave of court.
Here, Plaintiff filed a Motion for Leave to File a Second Amended Complaint on January
20, 2026. Defendants filed their Motion to Dismiss on January 21, 2026. The Court never entered
an order granting leave to amend. Nonetheless, on February 15, 2026, Plaintiff filed a “Motion to
Amend/Correct” his prior motion and attached a Proposed Third Amended Complaint—
effectively seeking leave to amend yet again without any intervening order granting the prior
request.

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Plaintiff has already amended his pleadings once as a matter of course. An ungranted
motion for leave does not create an entitlement to continued amendment. Moreover, Plaintiff is
not entitled to serial amendments without court approval, and Rule 15 does not permit iterative
revisions each time a dispositive motion exposes legal deficiencies. See Foman v. Davis, 371 U.S.
178, 182 (1962) (leave may be denied for futility, undue delay, or repeated failure to cure
deficiencies); Stripling v. Jordan Prod. Co., 234 F.3d 863, 872-73 (5th Cir. 2000) (amendment is
futile if it would not survive a motion to dismiss).
More importantly, amendment would be futile. Even accepting Plaintiff’s proposed
amendments as true and construing them in the light most favorable to him, the fundamental legal
defects remain. Sovereign immunity is not cured by additional factual detail. Qualified immunity
is not overcome by conclusory elaboration. And the deference afforded to academic disciplinary
judgments does not evaporate through recharacterization. These barriers are legal in nature, not
factual, and additional amendment cannot alter that analysis. Plaintiff’s proposed amendments
merely repackage the same theories—speech retaliation, disability accommodation, and
procedural objections to student discipline—without curing the jurisdictional and doctrinal defects
identified in Defendants’ Motion.
Because Plaintiff is neither entitled to amend as a matter of course nor able to cure the
fundamental legal deficiencies in his claims, leave should be denied.
III.

CONCLUSION AND PRAYER

Plaintiff’s Response does not cure the jurisdictional and pleading deficiencies identified in
Defendants’ Motion. Sovereign immunity bars claims against TTUHSC and official-capacity
defendants. Qualified immunity bars damages claims against the Individual Defendants. And the
First Amended Complaint fails to plausibly allege any constitutional or statutory violation. For

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these reasons, and those set forth in Defendants’ Motion, Defendants respectfully request that the
Court grant their Motion to Dismiss in its entirety and dismiss Plaintiff’s claims with prejudice.
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 March 2,
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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