Findings, Conclusions, and Recommendation (Dkt. 54); diagnosis terms blacked out on this copy¶
Bass v. TTUHSC, No. 5:25-cv-00244-H-BV (N.D. Tex.) · 2026-07-14 · 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
No. 5:25-CV-244-H-BV
= §
SCIENCES CENTER, ef al.,
§
Defendants.
:
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Pro se Plaintiff Kevin Bass was a medical student at Texas Tech University Health
Sciences Center (TTUHSC).
See Dkt. No, 14 at 7.' He apparently engaged in
objectionable conduct, and after making a social media post that TTUHSC staff and
students perceived as threatening, the university commenced disciplinary action. [d. at
7-10.
Following a lengthy hearing at which he was represented by counsel, Bass was
dismissed from medical school. Jd. He now sues TTUHSC and others for disability
discrimination and civil-rights violations.
Je.
Defendants move to dismiss Bass’s claims, asserting sovereign and qualified
immunity.
Dkt. No. 27. They also assert that Bass has failed to state a claim. /d. Bass
responded and seeks leave to amend his complaint in the event the Court finds his
pleading deficient.
Dkt. Nos. 33, 43.
' Bass did not paginate his filing, so the page numbers herein refer to the electronically assigned page
number in the Court’s ECF system.
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For the reasons discussed below, the undersigned recommends that the United
States District Judge GRANT Defendants’ motion to dismiss. The undersigned further
recommends that the district judge DENY Bass leave to file a second amended complaint
because amendment would be futile.
1,
Background
A. Factual Allegations
Bass’s operative pleading is his first amended complaint.
Dkt. No. 14. But this
pleading lacks basic facts, making it difficult to construct a narrative. See id. Although
the extraneous information submitted by the parties provides factual context for the
events forming the basis of Bass’s lawsuit, the Court has not relied on that information
for the reasons explained below. Instead, the undersigned relies on the well-pleaded facts
in Bass’s first amended complaint. See id.
Bass was a medical student at TTUHSC and has “a
Jd. at 6, 7,9.
disability
On November 3, 2023, he made a social-media
post that he describes as “a short philosophical reflection on mortality” and another
criticizing COVID-19 policies. Jd. at 8-9. But TTUHSC believed at least one post to be
a potential threat because it prompted some faculty and students to “report[ a] concern for
personal safety[.]” Jd. at 8; see also id. at 8-9 (asserting that TTUHSC’s framing of the
post as a violation of the student conduct code was unreasonable given that the post was
philosophical and did not identify a plan, weapon, or target).
Shortly thereafter, TTUHSC initiated disciplinary proceedings against Bass and
issued an Emergency Removal and Criminal Trespass Warning that prohibited him from
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being on campus pending a hearing scheduled for December 11, 2023. Jd. at 7-8, 10. On
November 4, 2023, Defendant Rachel Forbes, Assistant Vice Dean for Student Affairs,
emailed representatives of Covenant medical facilities and others, including some “nonTTUHSC clinical-affiliate personnel,” that Bass was not to be permitted in the facilities.
Td. at 10-11.
Three calendar days before the December 11 hearing—but only one business day
prior-—Bass submitted an accommodation request for his disability to the TTUHSC
Student Disability Services (SDS).?
Jd. at 6-7.
Bass’s accommodation request was based
on a neuropsychological evaluation and included “communication supports” like “limited
attorney-assisted questioning to cue/clarify.” Jd. at 6. SDS did not issue a letter of
accommodation before the hearing, nor does Bass allege it acknowledged his request.
See id. But Bass infers that individuals at his hearing knew of his request because
“folfficials acknowledged the SDS process on the record.” Jd. at 7.
On December 11, 2023, TTUHSC conducted the disciplinary hearing, which
lasted about fourteen hours and involved eleven witnesses, including Bass. Jd. at 7. At
the hearing, officials apparently considered numerous issues, including the alleged codeof-conduct violation based on Bass’s social media posts, professionalism complaints
against Bass, and Bass’s grievances against TTUHSC staff. See id. at 7-8, 10-11.
“[A]n
outside hearing officer”-—-Defendant Darren Gibson—conducted the proceedings, and a
2 Bass contends he submitted his accommodation request to SDS on December 8, 2023, which was a
Friday. Dkt, No. 14 at 6. The hearing took place the following Monday, December 11. Jd. Bass does
not allege that he ever notified SDS or TTUHSC about his disability or the need for accommodation prior
to this date, See id.
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Student Conduct Board (Board) issued findings regarding the allegations. Jd. at 5, 7, 1112.
The Board was chaired by Dr. Felix Morales, Associate Dean of Admissions, and
included four additional voting members—two faculty physicians and two fourth-year
medical students. Id. at 12. Bass was represented by counsel at the hearing.
See id. at 7.
Weeks before the hearing, Dr. David Trotter, a student conduct administrator, told
Bass that the Board would begin by considering Bass’s grievances against TTUHSC
staff, followed by deliberation of “conduct complaints and negative evaluations” against
Bass. Jd.
But Gibson and/or the Board did not follow this agenda and instead “stacked
hours of adverse testimony and conduct allegations before allowing any meaningful
opportunity for [Bass] to present his grievances or a coherent response.” Id.
Bass contends that Gibson was not a neutral party, as evidenced by his procedural
decisions during the hearing. /d, Bass alleges that although Gibson admitted a redacted
version of the neuropsychological evaluation, Gibson did not adopt the recommended
accommodations and “barred [Bass’s] counsel from questioning witnesses directly even
as a communication aid.” Jd. Gibson also prohibited “contemporaneous objections;
required counsel’s questions to be submitted in writing; asserted unilateral authority to
limit [Bass’s] questioning for ‘relevance’; and applied time limits and sequencing
asymmetrically against [Bass], contrary to the published rules promising equal time
limits.” Jd. In addition, Bass asserts that Gibson denied his request for separate hearings,
restricted defense witnesses, and permitted late/redacted evidence from TTUHSC but not
from Bass.
Jd. at 8, 11-12.
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The Board unanimously recommended that Bass be non-academically dismissed
from TTUHSC.
/d. at 12. As a result, Bass’s transcript notes an “Administrative
Dismissal Effective 01-11-2024.” Jd. at 9.
After the hearing, Forbes allegedly emailed Bass’s class “stating that the class was
‘one student lighter’ and directing recipients to ‘check his Twitter.’” Jd. at 9, 11. Bass
also contends there was “a January 1, 2024 public post stating ‘we did it, Kevin Bass’
medical committee voted to expel him,’” but Bass does not specify who made that post or
on what platform.
Jd. at 9.
B. Procedural History
|
Bass filed suit in November 2025, and before Defendants were served, he filed a
|
first amended complaint. Dkt. Nos. 1, 14. His complaint alleges violations of: (1) the
Rehabilitation Act of 1973 (RA) against TTUHSC; (2) the Americans with Disabilities
Act (ADA) against Defendants Doe, the ADA coordinator, Amanda McSween, Lauren
Cobbs, Simon Williams, Tamara Mancini, Mia Myers, Lori Rice-Spearman, and Darrin
D’ Agostino, all in their official capacities; (3) 42 U.S.C. § 1983, by violating his
procedural due-process rights under the Fourteenth Amendment, against Cobbs,
Williams, Gibson, and Does 2-10, in their individual capacities; (4) the Fourteenth
Amendment due-process protections on a “stigma-plus” theory against McSween,
Forbes, and Does, in their individual capacities; and (5) 42 U.S.C. § 1983, by retaliating
in violation of the First Amendment, against Cobbs, Williams, Gibson, Wilson, Forbes,
and Does 2-10, in their individual capacities. Jd. at 13-19. Bass seeks injunctive and
declaratory relief and money damages. /d. at 19-20.
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Defendants move to dismiss Bass’s claims under Rules 12(b)(1) and (6). Dkt. No.
27. Defendants argue that all claims should be dismissed with prejudice because (1) Bass
has failed to plead sufficient facts to state a claim, (2) sovereign immunity bars some
claims, and (3) the individual-capacity Defendants are entitled to qualified immunity on
the § 1983 claims. Jd. at 1-2, 20-21.
The Court granted Bass leave to file an out-of-time response, to which Defendants
have replied. See Dkt. Nos. 29, 31, 33, 38, 52. Both parties filed extraneous documents
in support of the motion and opposition that they want the Court to consider in reviewing
the motion to dismiss, See Dkt. Nos. 27-1-12, 33-1~2,
Bass also moves for leave to file
a second amended complaint—a request Defendants oppose.
Dkt. Nos. 33, 43, 48, 49.
The motions to dismiss and for leave to amend are now ripe for consideration.
2.
Legal Standards
A. Motion to Dismiss under Rule 12(b)(1)
Under Rule 12(b)(1), a party may move to dismiss claims for lack of subject-
matter jurisdiction.
“Dismissal under Rule 12(b)(1) is appropriate if a claim is barred by
state sovereign or Eleventh Amendment immunity.” Shaikh v. Tex. A&M Coll. of Med.,
739 F, App’x 215, 217 (Sth Cir. 2018) (per curiam) (citations omitted).
The party
asserting jurisdiction bears the burden of demonstrating its existence. Jd. (citation
omitted),
“A court may dismiss under Rule 12(b)(1) on any one of three separate bases:
(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in
the record; or (3) the complaint supplemented by undisputed facts plus the court’s
resolution of disputed facts.” Jd. at 217-18 (citation and internal quotation marks
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omitted).
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“When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12
motions, the court should consider the Rule 12(b)(1) jurisdictional attack before
addressing any attack on the merits.” Jd. at 218 (citation omitted).
B. Motion to Dismiss under Rule 12(b)(6)
To survive a Rule 12(b)(6) motion, a plaintiff must allege sufficient facts “to state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007); see Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 252 (5th Cir.
2011). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In considering
12(b)(6) motions, courts must accept well-pleaded facts—but not conclusory
allegations—as true and view them in the light most favorable to the plaintiff.
Twombly,
550 U.S. at 555 (explaining that a plaintiff must provide “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do”);
Snow Ingredients, Inc. v. SnoWizard, Inc., 833 F.3d 512, 520 (Sth Cir. 2016) (stating that
courts accept all well-pleaded facts as true, but “‘[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements’ cannot establish facial
plausibility” (quoting Zgbal, 556 U.S. at 678)). A plaintiff’s “[fjactual allegations must
be enough to raise a right to relief above the speculative level, on the assumption that all
the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at
555 (internal citations omitted). “The court’s review is limited to the complaint, any
documents attached to the complaint, and any documents attached to the motion to
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dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V
(U.S), LP. v. Barclays Bank PLC, 594 F.3d 383, 387 (Sth Cir. 2010).
3.
Discussion
A. The undersigned has not considered materials attached to the parties’
motion and response.
Both parties cited and attached documents to their filings that they use to support
their respective positions. The parties do not supply the documents to assist the Court in
evaluating the Rule 12(b)(1) motion.
Instead, they argue that because the documents are
“central to” Bass’s first amended complaint, the Court should consider them in evaluating
whether Bass has pleaded sufficient facts to state a claim. See, e.g., Dkt. Nos. 27 at 2~3
n.1; 33 at 12. This is an overbroad reading of a narrow exception.
When evaluating a Rule 12(b)(6) motion, “a district court must [typically] limit
itself to the contents of the pleadings, including attachments thereto.”
Stanley Dean Witter, 224 F.3d 496, 498 (Sth Cir. 2000).
Collins v. Morgan
The district court can also take
judicial notice of “of directly relevant public records.” Biliouris ex rel. Biliouris v,
Patman, 751 F. App’x 603, 604 (Sth Cir. 2019) (per curiam) (citing Funk v. Stryker
Corp., 631 F.3d 777, 783 (Sth Cir, 2011)).
“Although the district court may not go outside the complaint, th{e] [Fifth Circuit]
has recognized one limited exception.” Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536
(5th Cir, 2003). “When a defendant attaches documents to its motion that are referred to
in the complaint and are central to the plaintiff's claims, the court may also properly
consider those documents.”
Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735
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(Sth Cir. 2019); see also Meyers v, Textron, Inc., 540 F. App’x 408, 409 (Sth Cir. 2013)
(per curiam) (“[A] district court may take into account documents incorporated into the
complaint by reference or integral to the claim, items subject to judicial notice, matters of
public record, orders, items appearing in the record of the case, and exhibits attached to
the complaint whose authenticity is unquestioned.”).
The Fifth Circuit has not set forth a test for determining whether a document is
“central” to a plaintiff's claims, but “case law suggests that documents are central when
they are necessary to establish an element of one of the plaintiff's claims.” Kaye v. Lone
Star Fund V (U.S.), L.P., 453 B.R. 645, 662 (N.D. Tex. 2011); see Payne v. City of
Houston, No. 24-20150, 2025 WL 999085, at *2 (Sth Cir. Apr. 3, 2025) (“For a
document to be ‘central’ to a plaintiffs claims, th[e] [Fifth Circuit] has indicated that it
must be evidence the plaintiff substantially relies on to prove their claims.”),
Conversely,
when a document “is merely evidence of an element of the plaintiff's claim, then the
court may not incorporate it into the complaint.” Kaye, 453 B.R. at 662 (citing Scanlan,
343 F.3d at 536-37). Regardless, “when matters outside the pleading are presented with a
motion to dismiss under Rule 12(b)(6), a district court has complete discretion to either
accept or exclude the evidence.” Gen. Retail Servs., Inc. v. Wireless Toyz Franchise,
LLC, 255 F. App’x 775, 783 (Sth Cir. 2007) (internal quotation marks and citation
omitted).
The materials cited by the parties were not attached to Bass’s first amended
complaint, nor are they central to his claims. See Dkt. No. 14. In fact, some of the
documents are not even referenced in Bass’s pleading, see, e.g., Dkt, Nos. 27-10; 27-11,
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27-12, and he blended summaries, demonstratives, and legal arguments into “evidence.”
See Dkt. Nos. 33-1, 33-2. The parties rely on this information to provide context and
evidence regarding Bass’s claims, which is not permissible at this stage. See Neukranz v.
Conestoga Settlement Servs., LLC, No. 3:19-CV-1681-L, 2022 WL
19518462, at *11
(N.D. Tex. Nov. 23, 2022) (explaining the court would not consider documents that
provided context for plaintiffs’ claims but were not necessary to establish an element of
their claims), R. & R. adopted by 2023 WL 2555551 (N.D. Tex. Mar. 16, 2023); Douglas
v. Dorchester Props. Ltd., No. 3:22-cv-100-K-BN, 2023 WL 5156337, at *3 (N.D. Tex.
May 17, 2023) (declining to consider emails attached to plaintiffs complaint and in
defendant’s appendix to motion to dismiss because they were evidence of, not central to,
plaintiff's claims), R. & R. adopted by 2023 WL 5155287 (N.D. Tex. Aug. 9, 2023).
In effect, the parties seem to want the Court to improperly evaluate Bass’s
pleading under a summary-judgment standard at the motion-to-dismiss stage. However,
even if the parties had moved to convert Defendants’ motion to one for summary
judgment, the undersigned would recommend denial of that request given the case’s early
stage. See Isquith ex rel. Isquith vy. Middle S. Utils., Inc., 847 F.2d 186, 193 n.3 (5th Cir,
1988) (explaining that a district court has “complete discretion to determine whether or
not to accept any material beyond the pleadings” and that consideration of non-pleading
materials converts the motion to one for summary judgment (citations omitted)). Thus,
the undersigned has not considered any of the attachments in evaluating Defendants’
Rule 12(b)(6) motion.
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B. Bass has not stated a claim against TTUHSC under the RA for
discrimination and/or failure-to-accommodate.
The Fifth Circuit has recognized that “[jJurisprudence interpreting either [the ADA
or RA] is applicable to both.” Hainze v. Richards, 207 F.3d 795, 799 (Sth Cir, 2000).
This is because “the rights and remedies afforded plaintiffs under Title II of the ADA are
almost entirely duplicative of those provided under § 504 of the Rehabilitation Act.”
Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 454 (Sth Cir. 2005).
Thus, the
undersigned relies on cases discussing both statutes in evaluating whether Bass has
pleaded sufficient facts to state an RA claim?
Bass’s pleading does not make clear whether he is asserting an RA claim for
failure-to-accommodate, disability discrimination, or both. See Dkt. No. 14 at 13
(reciting elements for disability discrimination but complaining about lack of
accommodation),
Regardless, TTUHSC contends that Bass’s claim fails for two reasons:
(1) he has not shown that he was excluded from the disciplinary hearing “by reason of”
his disability; and (2) he is not entitled to money damages because he has not pleaded
facts showing intentional discrimination.
Dkt. No. 27 at 8-10.
To establish a prima facie case for disability discrimination, a plaintiff must
demonstrate that he was: “(1) an individual with a disability; (2) otherwise qualified for
3 TTUHSC moves for dismissal of Bass’s RA claim under Rule 12(b)(6). See Dkt. No. 27 at 8-10. In
reply, however, it argues that “all claims against TTUHSC . . . should be dismissed for lack of subjectmatter jurisdiction” because they are barred by sovereign immunity.
Dkt. No. 38 at 2-3,
Buta
state’s
receipt of federal funds waives sovereign immunity as to discrimination claims arising under Section 504
of the RA. See Miller vy. Tex. Tech Univ. Health Scis. Ctr., 421 F.3d 342, 345 (Sth Cir. 2005).
Defendants make no argument that TTUHSC does not accept federal funding. Thus, the undersigned has
only considered whether Bass’s allegations state a plausible claim for relief under the RA.
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the program; and (3) excluded from, denied the benefits of, or otherwise subjected to
discrimination under the program solely by reason of .. . his disability.” Shaikh, 739 F.
App’x at 219 (internal quotation marks omitted) (quoting 29 U.S.C. § 794(a)).
To show exclusion from “ a program solely by reason of . . . his disability,” a
plaintiff must allege: “(1) there is a causal connection between his disability and the
discriminatory action; and (2) his disability was the only cause of the discriminatory
action.” Jd, at 222 (internal quotation marks and citation omitted),
“The causal
connection between the individual’s disability and the discriminatory action ‘need not be
direct’ in order to satisfy the ‘sole reason’ requirement: it is sufficient that the disability
caused the individual to do or not do something, which, in turn, caused the discriminatory
action.” Jd. (internal quotation marks and citation omitted). But to meet the “the ‘solely’
part of the ‘solely by reason of? element, the disability must have been the only cause of
the... conduct that triggered the discriminatory action.” Jd. (brackets, and citation
omitted),
As for a claim based on a failure to accommodate, Title II of the ADA and the RA
do not expressly codify such a theory, but the Fifth Circuit has adopted the standard used
in Title I cases. See Windham v. Harris Cnty., 875 F.3d 229, 235 (Sth Cir. 2017)
(explaining that Fifth Circuit case law “recognize[s] that a public entity’s failure
reasonably to accommodate the known limitations of persons with disabilities can also
constitute disability discrimination under Title II” and citing cases in support); Campbell
v. Lamar Inst. of Tech., 842 F.3d 375, 380 (Sth Cir. 2016) (explaining that in evaluating
an RA claim, “[d]iscrimination includes a failure to make reasonable accommodations”).
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“A claim for failure to accommodate under the ADA [or RA] has the following elements:
(1) the plaintiff is a qualified individual with a disability; (2) the disability and its
consequential limitations were known by the covered institution; and (3) the covered
institution failed to make reasonable accommodations for such known limitations.” Choi
v. Univ. of Tex. Health Scis. Ctr. at San Antonio, 633 F. App’x 214, 215 (Sth Cir. 2015)
(per curiam).
By reason of: Bass alleges that he was excluded from participating in the
disciplinary hearing when Gibson did not permit accommodation, “applied time limits
and filters asymmetrically,” and “refused modest schedule/format modifications.” Dkt.
No. 14 at 13. TTUHSC argues that Bass “participated in the disciplinary hearing ...,
was represented by counsel, and presented his position.” Dkt. No. 27 at 8.
“Additionally, [Gibson] .. . admitted, over the TTUHSC representative’s objection, a
redacted version of [Bass’s] untimely-submitted neuropsychological evaluation . . . ,
which the Board specifically considered.” Jd. Thus, Bass was not “denied...
‘meaningful access’ to the proceeding because of his alleged disability.” Jd.
The undersigned agrees that Bass has not pleaded facts showing TTUHSC denied
him participation in the disciplinary hearing solely by reason of his disability. Bass’s
own allegations show that he attended the hearing and was represented by counsel.
Dkt.
No. 14 at 6-8. That is, Bass had someone present to represent his interests and arguably
was not excluded from the hearing.
Moreover, Bass attributes his denial of meaningful participation in the hearing to
much more than his disability. Bass complains that Gibson’s purported bias influenced
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Jd. at 7, Further, Bass suggests that TTUHSC’s actions
(via Gibson) were at least in part motivated by disagreement with Bass’s social media
posts. See id. at 11. That is, Bass asserts that Gibson and/or TTUHSC acted for reasons
other than Bass’s disability, and those actions impacted his ability to participate.
Because Bass has not alleged facts showing TTUHSC excluded him from the
disciplinary hearing solely by reason of his disability, Bass’s disability discrimination
claim under the RA fails.’ See, e.g., Shaikh, 739 F. App’x at 222 (explaining that “to
satisfy the solely part of the solely by reason of element, the disability must have been
the only cause of the conduct that triggered the discriminatory action” (internal quotation
marks, alterations, and citation omitted)); Johnson v. Forney Indep. Sch. Dist., No. 3:23CV-2010-B, 2024 WL 5089565, at *2 (N.D. Tex. Dec. 12, 2024) (granting defendant’s
motion to dismiss plaintiff's ADA and RA claims where plaintiff “offer[ed] no
allegations to support any plausible connection between the [defendant’s] conduct and”
plaintiff's disability); Wren v. Midwestern State Univ., No. 7:18-cv-00060-O-BP, 2019
WL 501920, at *9 (N.D. Tex. Jan. 23, 2019) (recommending dismissal of plaintiff's RA
claim based on allegation that university dismissed her from nursing program based on
her disability, where plaintiff's allegations showed her disability was “not the only cause
4 Bass’s allegations blur the line between claims for disability discrimination and failure-to-accommodate.
He identifies a lack of accommodation as the way in which Defendants discriminated. Under a failure-toaccommodate theory, the cause of the discrimination is irrelevant, so the sole-causation requirement does
not apply. Harmon vy, Collier, 158 F.4th 595, 608 (Sth Cir. 2025). However, because Bass recites the
elements of a disability-discrimination claim, and TTUHSC moves for dismissal on the “by reason of”
element, the undersigned has considered whether Bass states such a claim.
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of [djefendants’ allegedly discriminatory conduct”), R. & R. adopted by 2019 WL
499571 (N.D. Tex. Feb. 8, 2019).
Similarly, any failure-to-accommodate claim must be dismissed. TTUHSC only
expressly mentions Bass’s accommodation claim in its reply. See Dkt. Nos. 27 at 8-10;
38 at 8 (arguing that Bass’s failure-to-accommodate claim “fails on its face” because
Bass submitted a request for accommodation only one business day prior to the
disciplinary hearing).
However, the Fifth Circuit “has explained that a plaintiff can
establish the third prong of the prima facie case—discrimination ‘by reason of his
disability’—by showing that the defendants have failed to make reasonable
accommodations.”
omitted),
Valentine v, Collier, 993 F.3d 270, 290 (Sth Cir. 2021) (citation
Because TTUHSC generally moves to dismiss on this third element, and Bass
had notice of the potential dismissal as reflected by his response to the motion, the
undersigned construes TTUHSC’s motion as challenging the failure-to-accommodate
claim.
See Dkt. No. 33 at 12 (responding that he has stated a plausible accommodation
claim because he was not given accommodation at the hearing and citing {J 25-26 of the
first amended complaint in support), 13-14 (alleging TTUHSC had knowledge of his
disability but failed to engage in an interactive process).
Bass alleges that one business day prior to the hearing, he submitted an
accommodation request to SDS for “limited attorney-assisted questioning to cue/clarify”
at the disciplinary hearing.
Dkt. No. 14 at 6; see also id. at 13 (stating that TTUHSC
should have also accommodated him by applying equal time limits and permitting
formatting modifications), 14 (asserting that TTUHSC should provide “limited attorney-
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assisted questioning as a communication aid, predictable breaks, CART/closed
captioning, and written copies of verbal information” at any hearing in the future). Bass
does not explain what his requested accommodation even means, but his own allegations
demonstrate that his attorney was permitted to submit written questions. Jd. at 7. Bass
was also permitted to question witnesses, id. at 7, 11, and he does not contend that his
attorney was prevented from helping Bass with that questioning. See id. Thus, it appears
TTUHSC provided the preferred accommodation, which means Bass cannot establish
element three of a failure-to-accommodate claim,
Bass’s claim also fails at elements two and three for other reasons. “To satisfy the
knowledge requirement [of a failure-to-accommodate claim], the entity must understand
the limitations a plaintiff experienced as a result of his disability.”
Valentine, 993 F.3d at
290. “The burden falls on the plaintiffto identify the disability, the limitation, and to
request an accommodation in ‘direct and specific’ terms.” Jd. (citation omitted). “When
a plaintiff fails to request an accommodation in this manner, he can prevail only by
showing that the disability, resulting limitation, and necessary reasonable accommodation
were open, obvious, and apparent to the entity’s relevant agents.” Jd. (internal quotation
marks and citation omitted).
Bass alleges that TTUHSC had the requisite knowledge because he (1) submitted a
request to SDS one business day before the hearing and (2) submitted a
neuropsychological report to Gibson the day of the hearing. See Dkt. No. 14 at 6-7. Even
assuming Bass’s submission to SDS—the centralized entity tasked with processing such
requests, id. at 14—notified TTUHSC of Bass’s disability and accommodation request,
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Bass pleads no facts showing he notified TTUHSC of his disability’s limitations.
Jd. at
6 (indicating only that the neuropsychological evaluation, which he submitted with his
request, recommended certain communication supports—not that it explained Bass’s
limitations due to his disability), 12 (stating that SDS’s Director, Tamara Mancini, was
aware of his “SDS notice and requests” for “auxiliary aids” but failing to include any
allegation that he notified her of his limitations).
Nor has Bass shown that TTUHSC failed to accommodate him. The provision of
reasonable accommodations is “an interactive process that includes the input of the
[plaintiff] as well as the [entity].” Pickett v. Tex. Tech Univ. Health Scis. Ctr., 37 F 4th
1013, 1033 (Sth Cir. 2022) (internal quotation marks and citation omitted).
This is
because “[t]he objective of the reasonable-accommodation requirement is to find a
solution that works for both parties.” Jd.
Bass’s last-minute submission prevented SDS from engaging in this interactive
process. Bass had been enrolled in medical school for some time without ever having
notified TTUHSC of his disability, its limitations, or need for accommodation.
See Dkt.
No. 14 at 6, 9, 13. Yet, he waited until the last moment—the last business day before his
disciplinary hearing—to request accommodation at the hearing for a previously
undisclosed disability, which strains the bounds of what can reasonably amount to a
denial of accommodation.
If Bass’s allegation is that SDS and/or TTUHSC should have
continued the hearing to consider his accommodation request, Bass does not allege that
he asked for a continuation.
See id. at 6~7. In any event, the undersigned finds no
controlling authority to support the conclusion that these circumstances amount to a
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failure to accommodate.
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Cf Trahan v. Wayfair Maine, LLC, 957 F.3d 54, 65 (ist Cir.
2020) (explaining that an accommodation request lodged after misconduct “is better
understood as a plea either for forgiveness or for a second chance’); Cutrera v. Bd. of
Supervisors of La. State Univ,, 429 F.3d 108, 112 (Sth Cir. 2005) (explaining in the Title
I context that “when an employer’s unwillingness to engage in a good faith interactive
process leads to a failure to reasonably accommodate an employee, the employer violates
the ADA”); Grodman y. Tex. Tech Univ. Health Scis. Ctr., 816 F. Supp. 3d 602, 613,
619-20 (N.D. Tex. 2025) (Hendrix, J.) (holding that medical resident’s accommodation
request submitted the same day a board voted to terminate him based on incidents that
happened before the request did not trigger TTUHSC’s obligation to engage in interactive
process).
As for Bass’s purported request the morning of the hearing, Gibson “is an attorney
who served as the outside hearing officer,” and Bass makes no allegation that Gibson or
the Board are associated with SDS such that TTUHSC can be charged with knowledge.
Dkt. No. 14 at 5 (cleaned up). The undersigned reaches this conclusion based on the
Fifth Circuit’s holding in Pickett. There, the plaintiff alleged that TTUHSC failed to
accommodate her when her advisor did not modify deadlines.
Pickett, 37 F.4th at 1032.
However, the plaintiff “did not tell [TTUHSC’s] ADA Office that she needed those
deadlines extended.” Jd. The Fifth Circuit concluded that the plaintiff failed to state a
claim against TTUHSC because she did not ask the ADA office for accommodation but
only asked her advisor, who was not the appropriate person for evaluating
accommodation requests. /d. at 1033.
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Here, too, Bass’s requests for accommodation at the hearing to officials
unaffiliated with the ADA office—i.e., SDS—does not impute knowledge to TTUHSC.
This is because Bass “did not ensure, in ‘direct and specific terms,’ that” his limitations
were ‘known by the covered entity.’” Jd. (quoting Smith v. Harris Cnty., 956 F.3d 311,
317 (Sth Cir. 2020)).
In sum, Bass has failed to plead sufficient facts establishing an RA claim under
either a discrimination or failure-to-accommodate theory.
Intentional discrimination: Bass “seeks economic damages” and “nominal
damages,” as well as declaratory relief, in connection with his RA claim,
Dkt. No. 14 at
13. Bass wants the Court to “declare that Defendants violated [his] rights under” the RA.
Id. at 19 (cleaned up). TTUHSC moves to dismiss Bass’s RA claim for monetary
damages because Bass has not pleaded facts showing TTUHSC intentionally
discriminated.
Dkt. No. 27 at 9-10.
“Even when plaintiffs successfully prove a disability-discrimination or a failureto-accommodate claim, they may only recover compensatory damages upon a showing of
intentional discrimination.” Smith, 956 F.3d at 318 (internal quotation marks and citation
omitted), The Fifth Circuit has “not delineated the precise contours of this showing,” but
it has “relied on the widely accepted principle that intent requires that the defendant at
least have actual notice.” /d. (internal quotation marks, alterations, and citation omitted).
Deliberate indifference is not enough.
Jd.
Bass alleges that TTUHSC knew he needed “limited attorney-assisted
questioning” and that the failure to provide such would deny Bass the opportunity to
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participate in the disciplinary hearing. See Dkt. No. 14 at 6, 13. As discussed above,
however, Bass’s attorney was permitted to submit written questions. /d. at 7. And even
assuming that Bass is a qualified individual and that he requested reasonable
accommodations, he still fails to allege any facts showing that TTUHSC had actual
knowledge that failing to provide those accommodations would cause Bass to be
effectively “excluded” from participating in his own hearing.
In sum, Bass’s allegations
do not show TTUHSC knew that he needed accommodation beyond his attorney
submitting written questions or that TTUHSC had “actual knowledge that” the other
accommodations were necessary.
Smith, 956 F.3d at 319.
Because Bass fails to adequately allege facts showing intentional discrimination,
he cannot recover compensatory damages on his RA claims. Delano-Pyle v. Victoria
Cnty., 302 F.3d 567, 574 (Sth Cir, 2002),
Further, although the Fifth Circuit has not
determined whether a claim for nominal damages requires a showing of intentional
discrimination, at least one district court has held that it does, See Lockwood v. Our Lady
of the Lake Hosp., Inc., 467 F. Supp. 3d 435, 438 (M.D. La. 2020); see also Francois v.
Our Lady of the Lake Hosp., Inc., 8 F 4th 370, 381 (Sth Cir. 2021) (affirming application
of the intentional-discrimination standard to a nominal-damages claim where plaintiff
never argued in the district court or on appeal that a different standard should apply); cf
Tolbert v. Queens Coll., 242 F.3d 58, 70-74, 78 (2d Cir. 2001) (holding there was
sufficient evidence to support a jury finding that plaintiff suffered intentional racial
discrimination in violation of Title VI and awarding nominal damages).
Applying this
standard makes sense because “a person who is awarded nominal damages receives relief
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on the merits of his claim and may demand payment for nominal damages no less than he
may demand payment for millions of dollars in compensatory damages.”
Uzuegbunam v.
Preczewski, 592 U.S. 279, 290-91 (2021) (internal quotation marks and citation omitted)
(defining nominal damages as “the damages awarded by default until the plaintiff
establishes entitlement to some other form of damages, such as compensatory or statutory
damages”).
Thus, the undersigned recommends dismissal of Bass’s RA claims for
nominal and compensatory damages because he has failed to plead facts showing
intentional discrimination.
Related to the RA claims, Bass also seeks declaratory relief, which does not
require a showing of intentional discrimination.
Francois, 8 F.4th at 379 n.7 (observing
that “[a] claim for declaratory relief is equitable in nature and not subject to
the intentional-discrimination standard”). But Bass’s claims for declaratory relief fail
because he wants retrospective relief. Dkt. Nos. 14 at 19 (asking for a declaration “that
Defendants violated Plaintiff's rights under § 504” of the RA); 27 at 10-12.
Without
demonstrating that TTUHSC is likely to again violate Bass’s rights under the RA, the
mere declaration of a past wrong is not a viable form of declaratory relief because it will
not remedy the violation that has already occurred. See, e.g., Waller v. Hanlon, 922 F.3d
590, 603-04 (5th Cir. 2019); Malik v. U.S. Dep’t of Homeland Sec., 619 F. Supp. 3d 652,
657-59 (N.D. Tex. 2022).
In sum, the undersigned recommends that the district judge dismiss Bass’s RA
claims for monetary damages for failure to state a claim and for declaratory relief for lack
of subject-matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (stating that “[i]f the court
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determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
action”),
C. Bass’s ADA claim seeking injunctive relief must be dismissed.
Bass seeks prospective injunctive relief against certain Defendants in their official
capacities in connection with his Title II ADA claim. Dkt. No. 14 at 13-15, 19.
He asks
the Court to grant injunctive relief by: (1) designating an ADA coordinator as the
centralized point of contact; (2) preserving and allowing access to files; (3) imposing
“FERPA-aligned protections”; (4) ensuring “transcript notations and status
communications are generated, maintained, and communicated in a manner consistent
with Title II going forward”; (5) requiring TTUHSC to comply with Title II if it conducts
anew disciplinary hearing; and (6) requiring Rice-Spearman and D’ Agostino to comply
with TTUHSC policy regarding records. /d. Defendants seek dismissal of the ADA
claim, alleging first that Bass has not established Article III standing because he seeks to
remedy past wrongs. Dkt. No. 27 at 10-11. Defendants further maintain that Ex parte
Young’s exception does not apply because Bass seeks an injunction against officials who
cannot enforce it, and the relief is primarily retrospective in nature. Jd. at 11-12; Dkt.
No. 38 at 2~3. Thus, Defendants assert that they are entitled to sovereign immunity.
“Standing is a component of subject matter jurisdiction.” James v. Hegar, 86
F.4th 1076, 1081 (Sth Cir. 2023) (citing Ortiz v. Am. Airlines, Inc., 5 F 4th 622, 627 (sth
Cir. 2021)).
“[T]o demonstrate that a case or controversy exists to meet the Article III
standing requirement when a plaintiff is seeking injunctive or declaratory relief, a
plaintiff must allege facts from which it appears there is a substantial likelihood that he
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will suffer injury in the future.” Waller, 922 F.3d at 603 (citation omitted), “To obtain
[declaratory or injunctive] relief for past wrongs, a plaintiff must demonstrate either
continuing harm or a real and immediate threat of repeated injury in the future.” Id.
(citation omitted); accord James, 86 F 4th at 1081 (same).
A plaintiff “must demonstrate
standing for each claim that [he] presses against each defendant, and for each form of
relief that [he] seeks.” Greenwald v. Murrill, No. 24-30661, 2026 WL 500139, at *3 (5th
Cir. Feb. 23, 2026) (per curiam) (internal quotation marks, brackets, and citation omitted)
(cleaned up).
“Article II standing analysis and Ex parte Young analysis significantly overlap.”
James, 86 F 4th at 1081 (internal quotation marks, brackets, and citation omitted).
Under
Ex parte Young, courts recognize an exception to the general rule that the Eleventh
Amendment bars private suits against a non-consenting state in federal court.
Green
Valley Special Util. Dist. v. City of Schertz, 969 F.3d 460, 471 (Sth Cir, 2020); see also
McCarthy ex rel. Travis vy. Hawkins, 381 F.3d 407, 417 (Sth Cir. 2004) (holding that the
Eleventh Amendment does not bar Title II suits for prospective injunctive relief against
state officers in their official capacities under Ex parte Young),
Under this exception, a
plaintiff may sue for prospective relief against a state official who is violating federal
law. Id. “The Ex parte Young exception is ‘focused on cases in which a violation of
federal law by a state official is ongoing as opposed to cases in which federal law has
been violated at one time or over a period of time in the past.’”
Williams ex rel. JE. v.
Reeves, 954 F.3d 729, 737 (Sth Cir. 2020) (quoting Papasan v. Allain, 478 U.S. 265, 277
(1986)).
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Here, Bass does not allege an ongoing violation of the ADA, and the injunctive
relief he seeks relates to past wrongs.
was dismissed from TTUHSC.
The disciplinary hearing has concluded, and Bass
See Dkt. Nos. 14 at 7, 9; 33 at 7. Bass pleads no facts
showing that TTUHSC continues to violate his rights under the ADA.
Instead, Bass
complains of an ongoing injury from the transcript notation regarding his dismissal and
damage to his reputation, as well as TTUHSC’s failure to rescind the notice to Covenant.
Dkt. No. 33 at 14, 25. While these may be continuing injuries, they stem from an alleged
violation of the ADA that occurred in the past and are not themselves violations of the
ADA.
“The residual effects of a prior [violation] do not constitute an ongoing violation
for Ex parte Young purposes,” nor do they confer standing. Ambriz v. Hancock, No. 2350582, 2025 WL 2945681, at *3 (Sth Cir. Oct. 17, 2025) (per curiam) (citing Papasan,
478 U.S. at 277-78); James, 86 F 4th at 1082 (holding plaintiffs lacked standing based on
allegation that government took their property and rejecting argument that the continued
retention of the property amounted to an ongoing violation). Absent an allegation that
there is a substantial risk of an ADA injury in the future or that Defendants are currently
violating the ADA, Bass lacks standing.
Moreover, some of the relief Bass seeks is retrospective.
Although Bass does not
expressly ask this Court to vacate the disciplinary finding and dismissal, that would be a
prerequisite to granting some of the relief he seeks. See Dkt. No. 14 at 14 (asking for
injunctive relief in the event TTUHSC conducts a “renewed adjudication,” which would
necessarily require invalidation of the first hearing), 20 (asking for an “interim
annotation/issuance of a corrected transcript pending the name-clearing hearing .. . and,
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upon final judgment
for Plaintiff on... [the] ADA/§ 504 claims, expunge or amend the”
transcript notation).
“[I]njunctions that are packaged as prospective relief but require ‘the
voiding of a final state’ official’s action are ‘quintessentially retrospective and thus out of
bounds under Young.’” Fisher v. Campbell, No. 5:26-CV-0073-X, 2026 WL 1298072, at
*4 (N.D. Tex. May 12, 2026) (quoting Green Valley, 969 F.3d at 473).
Finally, some of Bass’s proposed injunctive relief merely requires TTUHSC to
comply with the ADA and the Family Educational Rights and Privacy Act (FERPA)—
something the law already requires. See Dkt. No. 14 at 14, 19-20 (asking for “FERPAaligned protections” and TTUHSC’s compliance with the ADA if it conducts another
disciplinary hearing and when making transcript notations).
In sum, even if Bass seeks injunctive relief against the appropriate officials, he
“allege[s] no impending future injury,” so he does not have standing to obtain this relief.
James, 86 F 4th at 1082. Similarly, the Ex parte Young exception does not apply because
he fails to allege an ongoing violation of the ADA, and he séeks retrospective relief.
Thus, the Court lacks subject-matter jurisdiction, and Bass’s claims are barred by
sovereign immunity.
D. Bass’s RA and ADA retaliation and interference claims must be dismissed.
Bass asserts claims for retaliation and interference under the ADA and RA.
Dkt.
No. 14 at 18. He seeks damages against TTUHSC under the RA and prospective relief
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against the official-capacity Defendants under the ADA.
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Jd. Defendants assert they are
entitled to sovereign immunity. Dkt. No. 27 at 20.5
Regarding the ADA retaliation and interference claims, Bass asks for “prospective
injunctive relief under Count 2 to prevent further retaliation or interference and to require
Title If compliant processes going forward.” Dkt. No. 14 at 18 (cleaned up). That is,
Bass seeks the same injunctive relief as in Count 2, as well as an order requiring
Defendants to comply with the ADA.
See id. For the same reasons discussed in Section
3.C above, the undersigned concludes Defendants are entitled to sovereign immunity on
Bass’s ADA interference and retaliation claims.
Bass does not have standing, and the Ex
parte Young exception does not apply.
But Defendants are not entitled to sovereign immunity on the RA claims,
“[A]
State is amenable to suit where it operates a program in violation of the Rehabilitation
Act and accepts federal financial assistance for that state program.” Sullivan y. Tex.
A&M Univ, Sys., 986 F.3d 593, 597 (Sth Cir. 2021) (citing Pace v. Bogalusa City Sch.
Bd., 403 F.3d 272, 288-89 (5th Cir. 2005) (en banc)).
Defendants do not challenge
Bass’s allegation that TTUHSC accepts federal funding. See Dkt. Nos. 14 at 18; 27.
Thus, sovereign immunity does not bar retaliation and interference claims under the RA.
This conclusion could end the inquiry. But Bass addresses the sufficiency of his
allegations in his response, which shows he has notice.
Dkt. No, 33 at 21-22.
5 Confusingly, Defendants refer to these claims as Counts 6 and 7, Dkt. No. 27 at 20.
Moreover,
Bass, however,
labels them together as Count 6. Dkt. No. 14 at 18. Bass then contributes to the confusion, referring to a
Count 7 “Name-Clearing Hearing” in his response, Dkt. No, 33 at 22, but there is no Count 7 in the first
amended complaint. See Dkt. No. 14 at 18. The undersigned relies on the labels Bass assigned to claims
in the first amended complaint and has only considered the claims expressly raised.
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the Court can “dismiss a claim sua sponte after giving the adverse party notice and an
opportunity to respond.” Jones v. City of Dallas, No. 24-10803, 2025 WL 2491127, at *6
(5th Cir, Aug. 29, 2025).
These findings, conclusions, and recommendation (FCR) will
also give Bass the requisite notice and an opportunity to respond. /d. (recognizing that
“Ta] magistrate judge’s report and recommendation constitutes sufficient notice and
opportunity, as the parties can submit objections to the recommended findings and
conclusions.”).
Thus, the undersigned evaluates whether Bass has pleaded sufficient
facts to state a claim.
The RA prohibits “retaliation for opposing any practice made unlawful” under the
act, 29 C.F.R. § 1614.101(b).
To state a claim, a plaintiff must show that: “(1) []he
engaged in a protected activity; (2) [Jhe suffered a materially adverse action, and (3) a
causal connection exists between the protected activity and the adverse action.” Jeudy v.
Hous. Cmty, Coll., No. 4:23-CV-4758, 2026 WL 675683, at *4 (S.D. Tex. Mar. 2, 2026)
(applying elements to nursing student’s RA retaliation claim).
Bass alleges that his accommodation request to SDS on December 8, 2023,
prompted the retaliation. Dkt. No. 14 at 18. Requesting a reasonable accommodation
“constitutes participating in an activity protected under the [RA].”
Way v. City of Mo.
City, 133 F 4th 509, 522 (Sth Cir. 2025) (internal quotation marks, brackets, and citation
omitted) (discussing retaliation claim made by employee).
However, Bass has not
pleaded any facts showing that Defendants retaliated because of the accommodation
request—i.e.,
a causal connection.
Bass claims that the “interim removal, selective rule
enforcement, gating of the accommodations content, and status-affecting transcript
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Dkt. No. 14 at 18. This is a conclusory allegation
because Bass includes no well-pleaded facts showing how TTUHSC’s actions are
connected to his request.
The factual allegations he does make do not add up. For example, his “interim
removal” from campus happened before he made the accommodations request, making it
impossible for the request to be the cause of his removal.
Jd. at 8, 10. Additionally,
Gibson—the alleged perpetrator of the “selective rule enforcement”—is not affiliated
with SDS, so even assuming Bass’s accommodation request to SDS or Gibson
constituted protected activity, Bass has not pleaded facts showing any causal link—i.e.,
that Gibson made the procedural decisions because of the protected activity. See id. at 5,
7, 9,
11-12 (indicating that Gibson helped TTUHSC and acted because of Bass’s social
media commentary).
Bass’s contention that TTUHSC “gat[ed] . . . accommodations
content” is vague and devoid of factual support, but assuming it is a reference to Gibson’s
redaction of the neuropsychologist’s recommendation, it fails for the same reason. Id. at
18. Finally, the transcript notation appeared only after the Board found Bass violated the
student conduct code for posting a threat and recommended dismissal on that basis. See
id, at 8-9, 12. Bass has not alleged TTUHSC made the notation because of his protected
activity. Thus, Bass’s retaliation claim under the RA fails.
Similarly, Bass cannot state an interference claim. To start, it is unclear whether
Bass intends to raise such a claim.
He makes no attempt to address the elements in either
his first amended complaint or his response to the motion to dismiss.
Dkt. Nos. 14 at 18;
33 at 21-22. Moreover, the RA does not expressly prohibit interference with an
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individual’s exercise of a disability right (unlike the ADA), see 29 U.S.C. § 794, and the
law is unsettled as to whether a plaintiff can assert such a claim, much less one outside
the employment context.
Compare Frakes v. Peoria Sch. Dist. No. 150, 872 F.3d 545,
550 (7th Cir. 2017) (explaining that “Section 504 employment discrimination is
controlled by the standards of the ADA and a claim for ‘interference’ pursuant to Section
504 is established pursuant to the standards of the ADA”), with Smith v. Mich. Dep’t of
Corr,, 159 F.4th 1067, 1079, 1082 (6th Cir. 2025) (observing that the RA “contains no
express anti-retaliation provision” and therefore holding that it “does not provide a
private right of action for retaliation”—a holding that would seemingly also apply to an
interference claim given the lack of an anti-interference provision in the RA).
Setting these issues aside, Bass has not alleged facts showing that TTUHSC
interfered with a right protected under the RA.
Strife v. Aldine Indep. Sch. Dist., 138
F.4th 237, 251 (Sth Cir. 2025) (explaining that although Fifth Circuit has no “articulated
test for evaluating ADA interference claims,” it has at least three elements based on
statutory language).
Bass complains that SDS did not process his accommodations
request before the disciplinary hearing.
But the purported failure to process a request in
less than one business day can hardly be categorized as “interference.” See, e.g., Huber
v. Blue Cross & Blue Shield of Fla., Inc., No. 20-3059, 2022 WL 1528564, at *6 (E.D.
La. May 13, 2022) (defining interference by its “dictionary definition, i-e., ‘the act of
meddling in or hampering an activity or process’” (quoting Walker v. City of Lakewood,
272 F.3d 1114, 1128 (9th Cir. 2001))).
Thus, Bass has failed to state a claim, even if he
can raise one under the RA.
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In sum, Defendants are entitled to sovereign immunity on Bass’s retaliation and
interference claims under the ADA.
retaliation under the RA.
And he fails to state claims for interference and
Thus, all these claims should be dismissed.
LE. The individual Defendants are entitled to qualified immunity on Bass’s
§ 1983 claims.
Bass asserts the following § 1983 claims against Defendants in their individual
capacities: (1) procedural due process under the Fourteenth Amendment; (2) “stigma
plus” due process violation; and (3) retaliation in violation of the First Amendment.
No. 14 at 15-18.
Defendants assert they are entitled to qualified immunity.
Dkt.
Dkt. No. 27
at 12-19,
“Qualified immunity protects public officials from suit unless their conduct
violates a clearly established constitutional right.” Brumfield v. Hollins, 551 F.3d 322,
326 (Sth Cir. 2008) (citation omitted),
When a public official raises the affirmative
defense of qualified immunity, a court conducts a two-step analysis to determine whether
(1) the plaintiff has demonstrated that an official’s conduct violated a constitutional or
statutory right, and (2) the right was “clearly established” at the time of the violation.
Pearson v. Callahan, 555 U.S, 223, 232 (2009). A court may address these prongs in the
order it deems appropriate based on the circumstances particular to the case. Jd. at 236;
see Lytle v. Bexar Cnty., 560 F.3d 404, 409 (Sth Cir. 2009) (noting that the “rigid ‘order
of battle’—requiring courts to always address the constitutional issue of whether alleged
conduct violated the constitution—is now advisory under Pearson’).
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A plaintiff bears the burden of negating a properly asserted qualified-immunity
defense.
Brumfield, 551 F.3d at 326.
When a defendant raises qualified immunity in a
motion to dismiss, “it is the defendant’s conduct as alleged in the complaint that is
scrutinized for ‘objective legal reasonableness.’” Behrens y. Pelletier, 516 U.S. 299, 309
(1996) (emphasis omitted); see McClendon v. City of Columbia, 305 F.3d 314, 323 (Sth
Cir. 2002) (per curiam).
Procedural Due Process: Bass alleges that Defendants violated his rights to
procedural due process by deviating from TTUHSC policies and applying rules
inequitably during the disciplinary hearing.
Dkt. No. 14 at 15-16.
He asserts that he has
a liberty interest in his good name and reputation, which was harmed by his improper
dismissal from medical school. Jd. at 15, He further contends that he has a state-created
property interest in his continued enrollment at TTUHSC.
Jd. According to Bass, it was
clearly established at the time of the incident that public universities must give notice and
a meaningful opportunity to be heard before a disciplinary dismissal and that “officials
may not employ arbitrary hearing restrictions.” Jd, at 16.
To state a procedural due process claim, a plaintiff must show “that (1) he was
deprived of a life, liberty, or property interest (2) without the process that was due.”
Saucedo-Falls v. Kunkle, 299 F. App’x 315, 319 (Sth Cir. 2008) (per curiam).
The
Supreme Court and the Fifth Circuit have assumed that students have a liberty or property
interest in graduate higher education.
See, e.g., Bd. of Curators of Univ. of Mo. v.
Horowitz, 435 U.S. 78, 84-85 (1978) (assuming existence of a liberty or property interest
in higher education and concluding medical student was “awarded at least as much due
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process as the Fourteenth Amendment requires” before her academic dismissal); Shaikh,
739 F. App’x at 225 (assuming student possessed a property interest in higher education);
Davis v. Mann, 882 F.2d 967, 97 (Sth Cir. 1989) (“Like the Supreme Court in...
Horowitz, we need not decide what type of interest [dental school resident] had in the
[residency] program, because even assuming the existence of a liberty or property
interest, [resident] received all the process he was entitled to under the Fourteenth
Amendment... .” (internal quotation marks omitted)).
The Fifth Circuit has also
recognized a student’s “cognizable liberty interest in seeking to restore his reputation and
clear his student disciplinary record.”
Van Overdam v. Tex. A&M Univ., 43 F.4th 522,
529 (Sth Cir. 2022) (per curiam).
Defendants do not argue Bass lacks a protected liberty or property interest. See
Dkt. No, 27 at 13-15.
Therefore, consistent with higher courts, the undersigned assumes
he possesses such an interest. Nevertheless, Bass’s claim fails because he pleads no facts
showing he received constitutionally inadequate process.
“{D]ue process requires notice and some opportunity for hearing before a student
at a tax-supported college is expelled for misconduct.” Plummer v. Univ. of Hous., 860
F.3d 767, 773 (Sth Cir. 2017) (citation omitted).
When a student faces disciplinary—as
opposed to academic—-sanctions, “due process requires an ‘oral or written notice of the
charges against him and, if he denies them, an explanation of the evidence... and an
opportunity to present his side of the story.” Babinski v. Sosnowsky, 79 F 4th 515, 521
(5th Cir. 2023) (quoting Goss v. Lopez, 419 U.S. 565, 581 (1975)).
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evaluate whether a university afforded sufficient process in a disciplinary proceeding
“based on a sliding scale that considers three factors,” known as the Mathews factors:
(a) the student’s interests that will be affected; (b) the risk of an erroneous
deprivation of such interests through the procedures used and the probable
value, if any, of additional or substitute procedural safeguards; and (c) the
university’s interests, including the burden that additional procedures
would entail.
Plummer, 860 F.3d at 773 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
TTUHSC notified Bass approximately one month in advance of the disciplinary
hearing, and Bass asserts no facts in his first amended complaint disputing that he
received notice. See Dkt. No. 14 at 7 (indicating that as of November 2023 he was aware
of an upcoming hearing), 15-16 (alleging that the procedures were inadequate but
making no allegation he did not have notice of the hearing).
that
Bass claims in his response
27 and 29 of the first amended complaint show that he in fact challenges notice,
But those paragraphs contain no allegations regarding deficient notice and instead relate
to his dissatisfaction with the procedures employed during the hearing, and in particular,
his complaint that he relied on a prior conversation about the hearing format to prepare
for the hearing. /d. at 7~8, Dissatisfaction with the hearing format does not equal a lack
of notice, and absent any specific argument to the contrary, the undersigned recommends
that the district judge find that Bass received adequate notice.
Turning then to the Mathews factors, Bass’s dismissal “could have a substantial
lasting impact on [his] personal [life], educational and employment opportunities, and
reputation[] in the community.”
omitted).
Plummer, 860 F.3d at 773 (internal quotation marks
“On the other hand, [TTUHSC] has a strong interest in the educational process,
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including maintaining a safe learning environment for all its students, while preserving its
limited administrative resources.” Jd. (internal quotation marks and citation omitted).
On balance, the first and third factors do not tip the scale in either direction.
Regarding the second factor, Bass lodges several complaints about the disciplinary
hearing’s procedures: deviations from “written rules”; consolidating hearings on Bass’s
grievances and TTUHSC’s disciplinary charges; denial of “attorney-led cross
examination” or “attorney-assisted questioning”; no contemporaneous objections;
“asymmetric time limits and surprise witnesses”; “favoring administrative evidence while
gating defense evidence”; and “restricting and delaying access to a complete, continuous
record” after the hearing. /d. at 7-8, 15-16. Bass attributes many of these purported
deviations to Gibson, who Bass claims “lacked neutrality and operated under constraints
that materially favored the administration.” Jd, at 7.
Gibson conducted the hearing and apparently controlled its procedures, but he did
not make a recommendation concerning Bass’s enrollment. Jd. at 5, 11. The Board made
the recommendation for dismissal. Jd. at 12. Bass pleads no facts showing that the
Board—an associate dean, two students, and two professors—would have reached a
different result but for Gibson’s allegedly “asymmetric” application of rules, Id.
Moreover, other than the fact that TTUHSC
“retained” Gibson to conduct the
hearing, Bass pleads no facts connecting Gibson’s procedural decisions to any improper
agenda or bias, nor does he allege that TTUHSC’s payment to Gibson was contingent on
a particular outcome. See id. at 5; see also Dkt. No. 33 at 16 (referencing Gibson’s pay).
“Alleged prejudice of university hearing bodies must be based on more than
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Walsh v. Hodge, 975 F.3d 475, 482-83 (Sth
Cir. 2020) (citation omitted); see Pham v. Blaylock, 712 F. App’x 360, 363 (Sth Cir.
2017) (per curiam) (explaining that “[a] decisionmaker is unconstitutionally biased when
he has a pecuniary interest in the outcome or has been the target of personal abuse or
criticism from the party under scrutiny” (internal quotation marks and citation omitted)).
“To prove bias, [Bass] must overcome a presumption of honesty and integrity in those
serving as adjudicators.” Pham, 712 F. App’x at 364 (internal quotation marks, brackets,
and citation omitted). Bass’s conclusory allegations of Gibson’s alleged bias do not
overcome this presumption, particularly given that Gibson was not the decisionmaker.
The other allegedly unlawful procedures also fail to demonstrate a due process
violation.
Defendants’ failure to follow written school policies is insufficient to show a
constitutional violation. See id. at 363 (quoting Levitt v. Univ. of Tex. at El Paso, 759
F.2d 1224, 1231 (Sth Cir. 1985)); Shah v. Univ. of Tex. Sw. Med. Sch., 54 F. Supp. 3d
681, 695 n.15 (N.D. Tex. 2014) (citation omitted), Regarding witnesses and evidence,
the only information Bass contends was excluded was testimony from Bass’s
neuropsychologist and portions of the neuropsychologist’s report making
recommendations on accommodations for Bass’s disabilities, as well as testimony from
Dr. Trotter. See Dkt. No. 14 at 7-8, 12. But Bass does not allege that Dr. Trotter or his
neuropsychologist had any personal knowledge of Bass’s conduct violations or
grievances against TTUHSC staff, which were the bases for the hearing. See id. at 6-7
(stating that his neuropsychologist opined on “communication supports”), 7 (alleging that
Dr. Trotter, a student conduct administrator, advised Bass about the format of the hearing
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in November 2023, but Gibson did not follow that format).
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In short, Bass has not
pleaded facts showing how the exclusion of this testimony or evidence contributed to an
erroneous dismissal from TTUHSC for violations of the student code of conduct.
Similarly, Bass has not linked his remaining criticisms of the procedures to any
erroneous dismissal or shown that additional safeguards would have altered the outcome.
Cf Plummer, 860 F.3d at 774—75 (holding that plaintiffs did not meet their summary
judgment burden on second Mathews factor where there was no evidence that “further
procedural safeguards would not have lessened the risk of an erroneous deprivation of
[plaintiffs’]
. . interests or otherwise altered the outcome”).
Bass disagrees with the
procedural decisions, but he has not shown that they were constitutionally defective.
To
the contrary, his own allegations show that he was afforded many of the same procedural
protections as those the Fifth Circuit has concluded satisfy the Constitution. In Van
Overdam, for example, the Court held that where a plaintiff received advanced notice of
the allegations against him, “was permitted to call witnesses and submit relevant, nonharassing evidence of his innocence to a neutral panel of administrators,” 99 66 “was
represented by counsel throughout the entirety of his disciplinary proceeding[,]” “had the
benefit of listening to [his accuser’s] description of the allegations directly[,]” and was
able, with counsel, “to submit an unlimited number of questions to the disciplinary
panel[,]” there was no due process violation. Van Overdam, 43 F.4th at 530.
Here, Bass received advanced notice of the allegations, was represented by
counsel, listened to the accusations against him, was able—with counsel—to submit
relevant questions for the witnesses, although perhaps not in the format or with the
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extensiveness that Bass preferred, and was able to testify on his own behalf. See Dkt. No.
14 at 7, 11-12 (stating that his counsel was able to submit written questions and that Bass
questioned witnesses, although some questions were excluded based on relevance),
The
hearing spanned fourteen hours, suggesting that it was sufficiently thorough to allow the
Board to hear the arguments of both sides in detail. 7d. at 5. At least one of the
infractions related to Bass’s social-media post, which the Board could have evaluated on
its face to determine whether it was “disruptive and reasonably perceived as a potential
threat to members of the TTUHSC community.” Jd, at 8. Finally, the recommendation
for dismissal was made by the Board—an associate dean, two students, two professors—
not by Gibson, who merely managed the proceeding.
Jd. at 12. Bass does not allege that
the Board acted improperly. See id. These procedures, akin to the ones approved by the
Fifth Circuit in Van Overdam, are sufficient to ensure that Bass received due process.
In sum, Bass’s conclusory allegations reflect his mere disagreement with the
procedures employed.
But “[a] university is not a court of law, and it is neither practical
nor desirable it be one.” Plummer, 860 F.3d at 773 (citation omitted), Thus, the Court
“must focus on ensuring the presence of fundamentally fair procedures to determine
whether the misconduct has occurred.” Jd. (internal quotation marks and citation
omitted). And here, Bass has not pleaded facts showing that additional procedural
safeguards would have lessened the risk of an erroneous deprivation or that they would
have altered the outcome of the hearing. He has also failed to even hint that these
procedures were somehow fundamentally unfair. Bass has therefore failed to plead an
actionable due process violation.
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Even if Bass had done so, however, Defendants would be entitled to qualified
immunity because it was not clearly established that their conduct was unconstitutional.
Bass argues that his right to notice and a meaningful opportunity to be heard was clearly
established under Dixon v. Ala. State Bd. of Educ., 294 F.2d 150 (Sth Cir. 1961) and
Mathews, 424 U.S. 319.
Dkt. No. 14 at 16; see also Dkt. No. 33 at 15-16, 22 (citing
three other 5th Circuit cases).
While he is correct that these cases stand for the general
proposition that due process requires notice and an opportunity to be heard, he is
mistaken about the breadth of the application of these cases here.
In Mathews, the Supreme Court determined that a social security claimant
received adequate due process under then-existing administrative procedures.
424 US. at
323. But the adequacy of those administrative procedures in the disability-benefits
context says very little about the adequacy of the procedures employed by TTUHSC
except to the extent that both the Social Security Administration and TTUHSC provided
the impacted individual with notice and an opportunity to be heard. See id. at 344-46
(discussing claimant’s opportunity to answer a questionnaire, submit medical
information, and challenge the accuracy of medical information in his case file). Indeed,
from Bass’s own pleadings, it appears that TTUHSC provided more opportunity to be
heard than was provided to the claimant in Mathews because Bass was given a 14-hour
hearing before being deprived of any protected interest.
Bass’s reliance on Dixon is also inapt. There, a university expelled students who
had engaged in protests or demonstrations without providing specific notice of the
charges or giving them hearings prior to their expulsion. 294 F.2d at 152-54. The Fifth
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Circuit held that students are entitled to notice of the specific grounds justifying
expulsion, the presentation of evidence, and an opportunity to be heard before they are
suspended or expelled—the same process Bass’s own allegations show he received. Id.
at 158.
Thus, while the cases support that university students have a right to due process
before expulsion and identify factors the courts should consider in evaluating whether
any process received was sufficient, these cases do not demonstrate that Defendants were
“on notice” regarding the particular alleged deficiencies in Bass’s disciplinary hearing.
Indeed, Fifth Circuit precedent—by which this Court is bound—“forecloses [Bass’s]
argument that the mere existence of his right to due process provides fair warning to
[Defendants] for all conduct that he alleges might violate that right.” Babinski, 79 F.4th
at 523; see Dkt. No. 33 at 22 (arguing that the Fifth Circuit incorrectly held in Babinski
that “there must be adequate authority at a sufficiently high level of specificity” to
constitute clearly established law).
The other cases Bass cites fare no better.
Van Overdam involved a student
accused of sexual assault and required the court to determine whether due process
required the opportunity for attorney-led cross-examination of the student’s accuser, 43
F.4th at 526. Bass does not contend that his disciplinary charges involved sexual assault,
nor does he allege he lacked an opportunity to question the individuals who lodged
complaints against him.
Moreover, the Fifth Circuit held that the student’s due process
rights were not violated by the lack of attorney-led cross-examination, and Bass does not
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make such a claim here. Id. at 529; see Dkt. No. 14 at 15 (confirming that “Plaintiff does
not claim a categorical right to attorney-led cross examination”).
Similarly, Doe v. William Marsh Rice University did not involve a due process
claim. 67 F.4th 702, 705 (Sth Cir. 2023). And in Walsh, the plaintiff was a university
professor who was terminated for sexually harassing several students in violation of
policy.
975 F.3d at 478-80.
The Fifth Circuit rejected the plaintiff's argument that his
due process rights were violated because one member of the committee was biased. Jd. at
482-83.
That court also held that “due process in the university disciplinary setting
requires some opportunity for real-time cross-examination, even if only through a hearing
panel.” /d. at 485 (internal quotation marks and citation omitted), But here, Bass does
not contend that he was wholesale denied the opportunity for real-time crossexamination.
See Dkt. No. 14 at 7, 11 (stating that counsel was permitted to submit
written questions and that both Bass and TTUHSC administration were permitted to ask
questions), 15—16 (making no mention of a cross-examination issue),
These cases do not show Defendants were on notice that their actions—including
barring contemporaneous objections and counsel’s verbal questions, as well as “imposing
asymmetric time limits and [allowing] surprise witnesses”—violated the law. Dkt. No.
14 at 15. Because Bass has failed to point to “an appropriately analogous case of greater
specificity,” he has not shown the law was clearly established. Babinski, 79 F 4th at 523.
Defendants are entitled to qualified immunity, and the district judge should dismiss
Bass’s claim.
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Stigma-Plus: “To make out a stigma-plus claim, a plaintiff must demonstrate that
(1) he has suffered a stigma from some government action, plus (2) he experienced the
extinguishment of a right of status previously recognized by state law.” Jd. at 519 n.3.
“To fulfill the stigma aspect of the equation, a claimant must prove that the stigma was
caused by a false communication.”
San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 708
(5th Cir. 1991) (internal quotation marks and citation omitted). The Fifth Circuit “has
found sufficient ‘stigma’ only in concrete, false factual representations or assertions, by a
state actor, of wrongdoing on the part of the claimant.” Jd. (citation omitted).
“To
establish the infringement portion ..., a claimant must establish that the state sought to
remove or significantly alter a life, liberty, or property interest recognized and protected
by state law or guaranteed by one of the provisions of the Bill of Rights that has been
incorporated.” Jd.
Bass identifies several communications that he believes were false: (1) the
“campus-wide and affiliate-hospital BOLO/ban”; (2) “a January 7, 2024 class-wide
broadcast stating that the class was ‘one student lighter than last week’ and directing
recipients to ‘check his Twitter’”; and (3) the transcript notation reflecting his nonacademic dismissal as of January 11, 2024. Dkt. No. 14 at 16. However, Bass has not
shown how these communications were false. A directive that Bass not be permitted on
campus or allowed to badge-in at clinics or hospitals, standing alone, contains no false
statement—he was, indeed, banned from these facilities pending his hearing. See id. at
10 (alleging that the message to hospitals stated, “do not allow Kevin Bass into the
Covenant Branch office nor badge him in at any of the hospitals, pending further notice”
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And Bass was, in fact, dismissed from medical
school for non-academic reasons, so nothing about the transcript notation or the January
7, 2024 student-body email was false, even though some may find the email distasteful or
unprofessional. Jd, at 12. Bass even acknowledges the lack of false statements, arguing
that the materials “insinuated” or “suggested” that he was dangerous—not that they
actually said that. See id. at 16; Dkt. No. 33 at 17.
Bass’s claim fails as a matter of law, and Defendants are entitled to qualified
immunity.
The undersigned recommends that the district judge dismiss this claim.
Retaliation: To state a viable First Amendment retaliation claim, a plaintiff must
demonstrate the following: “(1) [he was] engaged in constitutionally protected activity,
(2) the defendants’ actions caused [him] to suffer an injury that would chill a person of
ordinary firmness from continuing to engage in that activity, and (3) the defendants’
adverse actions were substantially motivated against the plaintiff[’s] exercise of
constitutionally protected conduct.” Keenan v. Tejeda, 290 F.3d 252, 258 (Sth Cir.
2002).
Bass argues that his social-media commentary and grievances about TTUHSC
staff were constitutionally protected activities. See Dkt. Nos. 14 at 17; 33 at 18-19.
Bass
does not, however, have a constitutional right to engage in speech that is “reasonably
understood by school officials to threaten, harass, and intimidate [the school community],
even when such speech originated, and was disseminated, off-campus without the use of
school resources.” Bell v. Itawamba Cnty. Sch. Bd., 799 F.3d 379, 396 (Sth Cir. 2015).
Bass apparently engaged in speech that TTUHSC staff and students perceived as
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threatening, but because Bass elected not to include the specific language of his post, the
undersigned cannot evaluate it. See Dkt. No. 14 at 8 (characterizing the post as “a short
philosophical reflection on mortality” and asserting that the Board’s treating it was a
“threat of harm was unreasonable” given that others only “perceived” it as a threat).
Bass also fails to describe the nature of his other social media posts, as well as his
grievances against staff. See, e.g., id. at 9 (“Plaintiff publicly criticized COVID19 [sic]
policies and filed grievances—speech and petitioning on matters of public concern.”), 10
(stating officials encouraged him “to curtail protected online speech” without describing
it), 11 (asserting generally that the grievances related to “learner mistreatment”).
Grievances can be constitutionally protected, but the content of them is relevant to
determining whether they are protected.
See, e.g., Davis v. Angelina Coll. Bd. of Trs.,
No. 9:17-CV-00179, 2018 WL 10111001, at *6-8 (E.D. Tex. June 1, 2018) (concluding
student’s grievances were not protected speech because they were not matters of public
concern and disrupted institution and invaded rights of staff); see also Dkt. No. 14 at 11
(indicating that some of his grievances were denied because they “violated policy”).
Bass’s failure to plead adequate facts showing that his speech was protected means he has
not established the first retaliation element.
See Chhim vy. Univ. of Tex. at Aus., 836 F.3d
467, 469 (Sth Cir. 2016) (per curiam) (emphasizing that “pro se plaintiffs must still plead
factual allegations that raise the right to relief above the speculative level’’).
Bass’s conclusory allegations also fail to show causation.
“[A] plaintiff must
establish a causal connection between the government defendant’s retaliatory animus and
the plaintiff's subsequent injury.” Nieves v. Bartlett, 587 U.S. 391, 398 (2019) (internal
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“It is not enough to show that an official acted
with a retaliatory motive and that the plaintiff was injured—the motive must cause the
injury.” Jd. “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.” Jd. at 399.
Bass acknowledges that Defendants acted at least in part because of his November
2023 post that others perceived as threatening. See Dkt. No. 14 at 8 (explaining that the
November 2023 post was “the catalyst for the Emergency Removal and Criminal
Tresspass Warning” and that he was dismissed for, among other reasons, the post, which
the Board found was a violation of the student conduct code), 9 (opining that his social
media presence “contributed to [Defendants’] decision to characterize his November 3,
2023 post as a ‘threat’”). Even if Defendants were partially motivated by their
disagreement over Bass’s COVID-19 posts or filing of grievances, they imposed the
campus and hospital ban and initiated disciplinary charges only after the post that others
perceived as threatening, and Bass was dismissed based on the Board’s finding that the
November 2023 post violated the code of conduct.® He also indicates that he was facing
other “conduct complaints and negative evaluations.” Jd. at 7; see also id. at 10 (alleging
that Wilson “filed multiple professionalism complaints against him” and thereafter
advocated for imposition of the campus ban). Because Bass’s first amended complaint
6 Bass’s reference in his response to material outside the pleadings to support his causation argument is
not properly before the Court, so the undersigned has not considered it. See Dkt. No. 33 at 19-20
(referencing conversation with TTUHSC’s general counsel, who was never mentioned in complaint, and
arguing that TTUHSC “deliberately bypass[ed] the statutory framework governing speech-based
threats”).
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shows that Defendants’ retaliatory animus was not the but-for cause of their actions, Bass
cannot establish causation.
Finally, Bass has failed to meet his burden of showing that the law was clearly
established. He cites general cases regarding retaliation. See Dkt. Nos. 14 at 18; 33 at
18-23. But he points to no case giving Defendants “fair warning” that they could not
lawfully discipline a medical student who was facing conduct complaints and negative
evaluations at the same time the student was making controversial social media posts and
who then made a post that the school community perceived as threatening. Babinski, 79
F 4th at 524,
Defendants are entitled to qualified immunity on Bass’s retaliation claim because
he has not met his burden on either prong.
The undersigned recommends the district
grant Defendants’ motion to dismiss on this claim.
F. Bass has pleaded his best case, and his motion to amend should be denied
as futile.
Bass asks that in the event the Court finds his pleading deficient that he be granted
leave to amend.
Dkt. No, 33 at 29, 31. He has also filed a motion for leave to amend
with a proposed second amended complaint.
Dkt. No. 43. Defendants oppose Bass’s
motion, arguing that amendment would be futile. Dkt. Nos. 38 at 8-9; 48.
“[{D]istrict courts often afford plaintiffs at least one opportunity to cure pleading
deficiencies before dismissing a case, unless it is clear that the defects are incurable or the
plaintiffs advise the court that they are unwilling or unable to amend in a manner that will
avoid dismissal.” Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d
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305, 329 (Sth Cir. 2002); see Brewster v. Dretke, 587 F.3d 764, 767-68 (Sth Cir. 2009)
(per curiam) (“[A] pro se litigant should be offered an opportunity to amend his
complaint before it is dismissed.”). However, a court need not grant leave “if allowing an
amendment would be futile.” Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic Ass'n,
751 F.3d 368, 378 (Sth Cir. 2014).
“An amendment is futile if it would fail to survive
a Rule 12(b)(6) motion.” Jd. Thus, a proposed amended complaint should be evaluated
“under the same standard of legal sufficiency as applies under Rule 12(b)(6).” Za.
(internal quotation marks and citation omitted).
Bass moves to amend “to comply with Rule 8, add [David] Trotter [as a
defendant], and present each claim with the legal specificity that Rule 8’s ‘short and plain
statement’ requires.” Dkt. No. 43 at 3. But “[t]he claims asserted are the same statutory
and constitutional theories already at issue in the operative complaint.” Jd. at 2-3.
Bass’s proposed amendment recites the facts in chronological order and contains
detail that his operative pleading omitted, making it easier to understand. Yet, Bass’s
proposed amendments still fail to cure the deficiencies identified in Defendants’ motion
to dismiss, as the undersigned discusses below.
RA: The factual allegations underpinning Bass’s RA claim remain essentially
unchanged. See Dkt. No. 43-1 at 10-12. He does add that sometime between May and
October 2023, his professionalism coach “assessed [him] as having characteristics
consistent with a
condition,” but “TTUHSC made no referral to a
specialist, no accommodation inquiry, and no interactive process determination despite
this clinical assessment.” Jd. at 6. Bass additionally claims that he “had a pre-existing
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diagnosis known to TTUHSC,” but he does not explain when or how TTUHSC
became aware of the diagnosis or whether he requested accommodations related to the
diagnosis. Jd. Unlike his operative pleading, his proposed amendment appears to assert
only a claim for failure-to-accommodate.
See id. at 17-18.
Bass contends that “TTUHSC’s conduct constitutes intentional discrimination
because the Board (a) received the disability documentation, (b) considered it, and
(c) consciously rejected accommodation, characterizing it as ‘retroactive leniency.’” Dkt.
No. 43-1 at 18. In Bass’s view, “[w]here accommodation is required and the entity
simply denies it, the entity is liable.” Jd. He further claims that “TTUHSC’s denial of
required hearing accommodations was the sole cause of [his] inability to meaningfully
participate in the proceeding that determined his dismissal.” Jd.; see also id. at 12
(alleging that “[t]he denial of accommodations produced the harm” and that “by the final
hours, Plaintiff was unable to follow the majority of proceedings and could not formulate
adequate cross-examination”).
Bass’s proposed amendments do not cure the deficiencies identified by
Defendants’ motion and discussed herein. First, unlike his first amended complaint, Bass
does not specify what accommodations he allegedly requested either from SDS or on the
morning of his disciplinary hearing. See id. at 10, 18. Thus, he has not pleaded facts
showing that his requested accommodations were reasonable—a necessary element. See
Bennett-Nelson, 431 F.3d at 455 (explaining that “the existence of a violation depends on
whether under... the [RA]... , the demanded accommodation is in fact reasonable and
therefore required”); Smith, 956 F.3d at 317 (observing that “[t]o succeed on a failure-to-
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accommodate claim, a plaintiff must prove [that] ... the entity failed to make reasonable
accommodations” (citation omitted)).
Moreover, Bass wants to hold TTUHSC liable for its alleged failure to
accommodate based on the Board’s and/or Gibson’s decision not to consider Bass’s
neuropsychologist’s report, which included recommended accommodations. Dkt. No.
43-at 10, 18. But still, Bass pleads no facts showing that he timely submitted his request
or that Gibson and the Board were the proper authorities for reviewing and approving
accommodation requests. Id.; see Pickett, 37 F.4th at 1032—33 (explaining that covered
institution cannot be charged with knowledge when plaintiff submits accommodation
request to incorrect person),
And even if they were, Bass pleads no facts showing that he
“requested an accommodation in direct and specific terms.” Smith, 956 F.3d at 317; see
Dkt. No. 43-1 at 11 (indicating that he gave Gibson a copy of his neuropsychologist’s
report that included “accommodation recommendations” but failing to describe what
accommodations were recommended and giving no indication that he communicated his
limitations to Gibson along with a specific accommodation request).
Bass’s attempt to blame TTUHSC related to the accommodation process also fails.
At most, Bass alleges TTUHSC suspected he was
and had an
diagnosis.
Dkt. No. 43-1 at 6, 17. “Mere knowledge of the disability is not enough” to state a claim.
Windham, 875 F.3d at 236. The plaintiff must “specifically identify the disability and
resulting limitations, and . . . request an accommodation in direct and specific terms.” Jd.
at 237 (internal quotation marks and citations omitted); see Choi, 633 F. App’x at 216
(affirming dismissal of plaintiffs failure-to-accommodate claim because he never alleged
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that he informed university of limitations resulting from his disability—he only informed
school of his diagnosis). Bass pleads no facts showing that he made TTUHSC aware of
his disability or any resulting limitations or made a request for accommodation prior to
December 8, 2023—-one business day before the hearing. Jd. at 10.
Alternatively, Bass has not alleged that his mental disabilities, “resulting
limitations, and necessary reasonable accommodation[s] were open, obvious, and
apparent to the entity’s relevant agents” such that TTUHSC had an obligation to
accommodate despite Bass’s failure to request accommodation prior to December 8.
Smith, 956 F.3d at 318 (internal quotation marks and citation omitted) (acknowledging
that if the plaintiff does not specifically request accommodation, he can only prevail if he
meets the “open, obvious, and apparent” exception).
Thus, Bass’s failure-to-accommodate claim boils down to a single allegation that
TTUHSC should have delayed the disciplinary hearing to consider Bass’s December 8
accommodation request.
Dkt. No. 43-1 at 10. As discussed above, TTUHSC’s lack of
action in the hours between Bass’s eleventh-hour request and the start of the disciplinary
hearing do not, standing alone, show that TTUHSC failed to engage in the interactive
process and refused to accommodate Bass. Nor has Bass alleged that he asked for a
delay of the hearing as an accommodation or that any delay would have been reasonable
given Bass’s lack of accommodation request in the one month leading up to the hearing
or at any time during his tenure in medical school.
Further, Bass’s proposed amendment is deficient because he has not established
that he is a qualified individual with a disability.
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See id. at 6. However, Bass pleads no facts showing
that those potential disabilities “substantially limit[] one or more of [his] major life
activities.” See 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102(1)(A).
Bass does not explain
how his disabilities limit a life activity. See Dkt. No. 43-1. If anything, Bass claims that
he was not limited by his disabilities. Jd. at 6 (alleging that he “performed competently in
clinical rotations, with supervising physicians assessing his clinical skills as meeting
expectations”), 17 (asserting that “(h]e performed competently in clinical rotations before
the events described above”).
Finally, unlike his first amended complaint, Bass only seeks compensatory
damages for TTUHSC’s purported RA violation. Jd, at 18. But see id. at 25 (including a
request for declaratory relief that defendants violated the RA). However, like his
operative complaint, the proposed amendment fails to plead facts showing that TTUHSC
intentionally discriminated. See id. at 17—18 (alleging that the Board intentionally
discriminated, which does not impute the requisite knowledge to TTUHSC).
Therefore,
even if he had stated an RA violation, his claim would fail.
For all these reasons, amendment would be futile as the proposed amendment
would not survive a Rule 12(b)(6) motion to dismiss.
ADA: Bass’s proposed amendment does not cure the deficiencies identified in
Defendants’ motion to dismiss or this
FCR. See Dkt. No. 43-1 at 18-19. He lacks
standing and seeks injunctive relief to remedy past harms, despite his labeling of the
relief as prospective.
Jd. Amendment would therefore be futile.
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ADA and RA Retaliation and Interference: Bass adds two new allegations in
his proposed amendment.
First, he says that “Cobbs directed [Bass’s] professionalism
coach to cease all contact with [Bass], terminating his only support relationship during
the critical pre-hearing period,” because Bass filed a state lawsuit. Jd. at 24. Next, he
attributes “escalation” of his student-loan debt to his public information requests. Jd.
Neither of these new allegations overcome Defendants’ assertion of sovereign
immunity as to claims under the ADA, for the same reasons discussed above.
As for the RA claims, the new allegation that Bass’s professionalism coach could
not talk to him because of a pending lawsuit fails to show that action was materially
adverse. See Higbie v. Kerry, 605 F. App’x 304, 308 (Sth Cir. 2015) (per curiam)
(describing “[a]n adverse employment action [a]s one that ‘a reasonable employee would
have found . . . materially adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination’”
(quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)); cf
Hamilton y. Dallas Cnty., 79 F 4th 494, 497 (5th Cir. 2023) (holding that for Title VII
claims, a materially adverse action is one related to the “hiring, firing, compensation, or
the ‘terms, conditions, or privileges’ of [plaintiff's] employment”).
Bass has not alleged
that the lack of communication with his coach dissuaded him from filing complaints
about disability discrimination.
Moreover, Bass has not shown that a public information request—even if it
involved documents related to his ADA and RA claims—is protected by the RA. Thus,
his claim fails at the first element.
See 29 C.F.R. § 1614.101(b); Jeudy, 2026 WL
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675683, at *4. It also fails at the third element because Bass has not pleaded facts
showing that but for his protected activity, TTUHSC would not have escalated his debt.
See Dkt. No. 43-1 at 16-17 (alleging that he did not make a payment for fifteen months).
For these reasons, Bass’s proposed amendments would be futile.
Procedural Due Process: Bass’s allegations remain essentially unchanged.
id. at 19-20.
See
He does, however, include additional facts about the purported misconduct
of certain individuals—Gibson, Lauren Cobbs, Simon Williams, and Trotter.
Bass says
that in addition to Gibson serving as the hearing officer, he “remained in the deliberation
room during the Board’s deliberations and authored the Board’s determination letter.” Jd.
at 11. According to Bass, Gibson has a contract with TTUHSC that “requires him to
‘represent’ the university and to ‘keep [the] Agency fully informed about all material
matters.’” Id.
As for Cobbs, Bass alleges that she “participated in the complaint process at every
stage, blocked an investigator from obtaining evaluations, and developed a documented
strategy to use professionalism standards as a basis for action against [Bass’s] protected
speech.” Jd. at 19. Williams purportedly “predetermined the process by drafting the
Dean’s appeal response on the same day [Bass] prevailed in a prior internal proceeding,”
and Trotter “abandoned the negotiated hearing structure without notice and altered the
procedural framework to [Bass’s] detriment.” Jd. at 20.
Bass’s proposed amendment emphasizes Gibson’s alleged bias, along with the
alleged misconduct of others involved in the disciplinary process.
Missing from Bass’s
new allegations, however, are facts showing that he did not receive an adequate hearing
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or that he was denied the opportunity to tell his side of the story. Babinski, 79 F Ath at
521. Bass’s allegations about Gibson—that he has a contract with TTUHSC to represent
it and that he participated in the deliberations—do not overcome the presumption of
integrity. Pham, 712 F. App’x at 364. Bass does not allege, for example, that Gibson’s
salary was contingent upon a particular outcome; he merely alleges TTUHSC paid
Gibson for his time and in return, Gibson represented the university and kept it informed.
See Dkt. No. 43-1 at 1.
Bass’s allegations against the other Defendants fail to show that the outcome of
the hearing would have been different. Bass indicates that due to “double-counting and
undisclosed evaluations,” “formal proceedings” were triggered, which eventually led to
the disciplinary hearing.
Dkt. No. 43-1 at 12-14.
However, it was Bass’s November
2023 post that prompted TTUHSC officials to take immediate action. See id. at 8-9,
Bass was dismissed in part because the Board found that post violated the student
conduct code. The Dean affirmed the Board’s recommendation, and Bass’s appeal of
that affirmation was denied. Jd. at 15.
Bass disputes the characterization of the post as a threat, but he does not otherwise
assert that he did not receive a fair hearing as to that infraction. See id. at 8-15. Nor
does he plead facts showing that the Dean’s affirmance or the appeal was tainted. See id.
at 15; see also id. at 13-14 (asserting that Williams participated in the appeal process of a
sexual misconduct allegation, not that Williams was involved in the disciplinary appeal).
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Finally, even if Bass’s proposed amendment stated a viable procedural due process
claim, he fails to cite any case showing that the law was clearly established that
Defendants’ conduct was unlawful. Jd. at 19-20. He only points to cases standing for
general propositions of law. Jd. at 20. Bass’s proposed amendment would not survive a
motion to dismiss, so amendment would be futile.
Stigma-Plus: Bass attempts to show that TTUHSC’s publications were false
because some people felt he was not a threat. Jd. at 21. But the proposed amendment
still fails to identify any false information.
See id. at 21-22.
Amendment would be
futile.
Retaliation: Bass tries to establish a causal connection by alleging that he posted
about “matters of public concern . . . and published writings on public health policy.” Id.
at 22. Thereafter, “Defendants took adverse action against Plaintiff: emergency removal,
campus ban, criminal trespass warning, BOLO distribution, disciplinary hearing, and
dismissal.” /d. The alleged adverse actions, however, were in response to Bass’s post
that members of the TTUHSC community perceived as threatening—unprotected speech.
See id. at 8-9 (asserting that “[w]ithin 24 hours” of his November 2023 post, officials
entered an emergency removal and soon thereafter also issued the trespass warning and
BOLO).
Moreover, Bass still fails to explain the content of his other posts, so his legal
conclusion that the posts were of “public concern” is unsupported by fact. Similarly, he
does not discuss the contents of his grievances.
Finally, even if he engaged in protected speech, his proposed amendment includes
no facts showing that Defendants would not have taken the allegedly adverse actions but
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Bass faced numerous professionalism
complaints and made what others perceived as a threatening post. Jd. at 8-9, 12-15.
He
has not shown that any protected speech was the “but for” cause of Defendants’ actions.
Moreover, even if Bass had made such a showing, he has not identified a case
showing that the law was clearly established that Defendants’ conduct was unlawful in
similar circumstances. See id. at 23. Thus, his proposed amendment would be futile.
Count 7: Bass adds a Count 7 to his proposed amended complaint. Jd. at 24. He
sues Gibson in his individual capacity for a due process violation based on his alleged
misconduct.
Jd. The claim, however, is based on the same conduct discussed in
connection with Bass’s procedural due process claim. For the same reasons discussed
above, amendment to include a new count would be futile.
In sum, Bass has had ample opportunity to plead his best case. He amended his
complaint once. And despite being put on notice of deficiencies in his first amended
complaint via Defendants’ motion to dismiss, Bass’s proposed second amended
complaint does not cure those deficiencies.
As discussed above, granting Bass leave to
file a second amended complaint would be futile,and Bass has not shown that he can
plead sufficient facts to overcome the deficiencies such that he should be permitted to
amend further. Norman v. Apache Corp., 19 F.3d 1017, 1021 (Sth Cir. 1994) (providing
that granting leave to amend under Rule 15(a) “is entrusted to the sound discretion of the
district court”); Schiller Physicians Res. Grp. Inc., 342 F.3d 563, 566 (Sth Cir. 2003)
(providing that in deciding whether to grant leave, a court may consider factors including
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“repeated failures to cure deficiencies by amendments previously allowed . . . and futility
of the amendment”).
4.
Recommendation
For the foregoing reasons, the undersigned recommends that the United States
District Judge GRANT Defendants’ motion to dismiss and dismiss without prejudice
Bass’s ADA claims and claim for declaratory relief under the RA. All other claims
should be dismissed with prejudice.
Finally, the undersigned recommends that the
district judge DENY Bass’s motion for leave to file a second amended complaint because
amendment would be futile. Dkt. No. 43.
5.
Right to Object
A copy of these findings, conclusions, and recommendation will be served on all
parties in the manner provided by law. Any party who objects to any part of these
findings, conclusions, and recommendation must file specific written objections within
fourteen days after being served with a copy.
See 28 U.S.C. § 636(b)(1) (2016); Fed. R.
Civ. P. 72(b). To be specific, an objection must identify the specific finding, conclusion,
or recommendation to which objection is made, state the basis for the objection, and
specify the place in the magistrate judge’s Findings, Conclusions, and Recommendation
where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the magistrate judge is not specific. Failure to
file specific written objections will bar the aggrieved party from appealing the factual
findings and legal conclusions of the magistrate judge that are accepted or adopted by the
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district court, except upon grounds of plain error, See Douglass v. United Servs. Auto.
Ass'n, 79 F.3d 1415, 1417 (Sth Cir, 1996).
Dated: July i. 2026.
AMANEA ‘AMY’ R. BURCH
UNITED STATES MAGISTRATE JUDGE
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