Response to Motion to Dismiss; diagnosis terms blacked out on this copy¶

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

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

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
KEVIN N. BASS,
Plaintiff,

§
§
§
§ Civil Action No. 5:25-cv-00244-H-BV
§
§
§
§

v.
TEXAS TECH UNIVERSITY HEALTH
SCIENCES CENTER, et al.,
Defendants.

PLAINTIFF'S RESPONSE AND BRIEF IN OPPOSITION TO DEFENDANTS' MOTION
TO DISMISS (DOC. 27) AND IN SUPPORT OF PLAINTIFF'S MOTION FOR LEAVE
TO FILE THIRD AMENDED COMPLAINT (DOC. 26)
Use of Generative Artificial Intelligence
Plaintiff used generative artificial intelligence to assist in drafting this
brief. Plaintiff has reviewed this brief and is responsible for its content.

1

TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................7
PART I: THE FIRST AMENDED COMPLAINT STATES PLAUSIBLE CLAIMS ...................8
I.

The Record Before the Court.......................................................................................8

II.

Requested Disposition .................................................................................................8

III.

Legal Standards ...........................................................................................................9
A. Rule 12(b)(6) .......................................................................................................9
B. Rule 15 Futility / Qualified Immunity.................................................................9
C. Defendants' Brief Departs from Its Own Cited Standard ....................................9

IV.

Count-by-Count Survival.........................................................................................11
Count 1: Section 504 (Rehabilitation Act).............................................................12
Count 2: Title II (ADA) Prospective Relief ...........................................................14
Count 3: Procedural Due Process ..........................................................................15
Count 4: Stigma-Plus .............................................................................................17
Count 5: First Amendment Retaliation ..................................................................18
Count 6: ADA/Section 504 Retaliation .................................................................21
Count 7: Name-Clearing Hearing ..........................................................................22

V.

Qualified Immunity Cannot Be Resolved at Rule 12 ..............................................22
A. Rights Were Clearly Established ......................................................................22
B. The FAC's Allegations Defeat QI .....................................................................24
C. Board Policy Changes Demonstrate Feasibility and Undermine QI .................24
D. Schultea Safety Net ...........................................................................................24

VI.

Sovereign Immunity / Proper Defendants ...............................................................25

VII.

Anticipated Defenses ...............................................................................................26

Part I Conclusion............................................................................................................................29
PART II: THE TAC CURES ANY DEFICIENCY AND LEAVE TO AMEND SHOULD BE
GRANTED ....................................................................................................................................29
VIII. Rule 15 Framework .................................................................................................29
IX.

What the TAC Adds ................................................................................................30

X.

Futility Analysis .......................................................................................................31

Conclusion and Relief Requested ..................................................................................................31

2

Certificate
Certificate of
of Compliance
Compliance..............................................................................................................31
........................................................................................................31
Certificate
of Service
Certificate of
Service .....................................................................................................................32
................................................................................................................32

3

3

TABLE OF AUTHORITIES
CASES
A.J.T. v. Osseo Area Schools, 605 U.S. 335 (2025)
Alexander v. Choate, 469 U.S. 287 (1985)
Ashcroft v. Iqbal, 556 U.S. 662 (2009)
Babinski v. Sosnowsky, 79 F.4th 515 (5th Cir. 2023)
Bailey v. Iles, 87 F.4th 275 (5th Cir. 2023)
Bellard v. Gautreaux, 675 F.3d 454 (5th Cir. 2012)
Bevill v. Wheeler, 103 F.4th 363 (5th Cir. 2024)
Borough of Duryea v. Guarnieri, 564 U.S. 379 (2011)
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)
Butz v. Economou, 438 U.S. 478 (1978)
Cain v. White, 937 F.3d 446 (5th Cir. 2019)
Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009)
City of Austin v. Paxton, 943 F.3d 993 (5th Cir. 2019)
Cleavinger v. Saxner, 474 U.S. 193 (1985)
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
Connick v. Myers, 461 U.S. 138 (1983)
Corbett v. TTUHSC, No. 5:21-CV-281-H, Doc. 60 (N.D. Tex. 2023) (Hendrix, J.)
Counterman v. Colorado, 600 U.S. 66 (2023)
Doe v. Baum, 903 F.3d 575 (6th Cir. 2018)
Doe v. Purdue Univ., 928 F.3d 652 (7th Cir. 2019)
Doe v. William Marsh Rice University, 67 F.4th 702 (5th Cir. 2023)
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)
EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606 (5th Cir. 2009)
Esfeller v. O'Keefe, 391 F. App'x 337 (5th Cir. 2010)
Ex parte Young, 209 U.S. 123 (1908)
Filarsky v. Delia, 566 U.S. 377 (2012)
Flynn v. Distinctive Home Care, 812 F.3d 422 (5th Cir. 2016)
Foman v. Davis, 371 U.S. 178 (1962)
Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992)
Garcetti v. Ceballos, 547 U.S. 410 (2006)
Gibson v. Berryhill, 411 U.S. 564 (1973)
Gilani v. UTSW, No. 25-10451 (5th Cir. Jan. 30, 2026)
4

Goldberg v. Kelly, 397 U.S. 254 (1970)
Gonzalez v. Trevino, 602 U.S. 653 (2024)
Goss v. Lopez, 419 U.S. 565 (1975)
Haidak v. Univ. of Mass. Amherst, 933 F.3d 56 (1st Cir. 2019)
Haines v. Kerner, 404 U.S. 519 (1972)
Hope v. Pelzer, 536 U.S. 730 (2002)
Hughes v. City of Garland, 204 F.3d 223 (5th Cir. 2000)
Jackson v. Wright, 82 F.4th 362 (5th Cir. 2023)
Keenan v. Tejeda, 290 F.3d 252 (5th Cir. 2002)
Kinney v. Weaver, 367 F.3d 337 (5th Cir. 2004) (en banc)
Lapides v. Board of Regents, 535 U.S. 613 (2002)
Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383 (5th Cir. 2010)
Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180 (2021)
McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407 (5th Cir. 2004)
McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2002) (en banc)
Morris v. Livingston, 739 F.3d 740 (5th Cir. 2014)
Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977)
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)
Nieves v. Bartlett, 587 U.S. 391 (2019)
Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) (en banc)
Pickett v. Texas Tech Univ. Health Sciences Center, 37 F.4th 1013 (5th Cir. 2022)
Rosenstein v. City of Dallas, 876 F.2d 392 (5th Cir. 1989), aff'd en banc, 901 F.2d 61 (5th Cir.
1990)
Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995) (en banc)
Shurb v. Univ. of Texas Health Sci. Ctr., 63 F. Supp. 3d 700 (S.D. Tex. 2014)
Speech First, Inc. v. Fenves, 979 F.3d 319 (5th Cir. 2020)
Speech First, Inc. v. McCall, No. 23-50633 (5th Cir. May 14, 2025)
Stewart v. TTUHSC, No. 5:23-cv-00007-H (N.D. Tex. 2025)
Stripling v. Jordan Prod. Co., 234 F.3d 863 (5th Cir. 2000)
Students for Justice in Palestine v. Abbott, No. 1:24-cv-00523-RP (W.D. Tex. 2024)
Taylor v. Riojas, 592 U.S. 7 (2020)
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)
Tolan v. Cotton, 572 U.S. 650 (2014)
United States v. Georgia, 546 U.S. 151 (2006)
Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021)
5

Van Overdam v. Texas A&M Univ., 43 F.4th 522 (5th Cir. 2022)
Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635 (2002)
Walsh v. Hodge, 975 F.3d 475 (5th Cir. 2020)
Windham v. Harris County, 875 F.3d 229 (5th Cir. 2017)
Winter v. NRDC, 555 U.S. 7 (2008)
Woods v. Smith, 60 F.3d 1161 (5th Cir. 1995)
STATUTES
29 U.S.C. § 794 (Section 504 of the Rehabilitation Act)
42 U.S.C. § 1983
42 U.S.C. § 2000d-7
42 U.S.C. § 12131 et seq. (Title II, ADA)
42 U.S.C. § 12203
RULES
Fed. R. Civ. P. 7(a)
Fed. R. Civ. P. 8(d)(2)
Fed. R. Civ. P. 12(b)(6)
Fed. R. Civ. P. 12(d)
Fed. R. Civ. P. 15(a)(2)
Fed. R. Evid. 201(b)(2)
Fed. R. Evid. 407(b)
Fed. R. Evid. 408(b)
Fed. R. Evid. 801(d)(2)
N.D. Tex. LR 7.2(c)

6

Plaintiff Kevin N. Bass files this response pro se and respectfully requests that the Court construe
his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
This Response proceeds in two parts. Part I demonstrates that the First Amended
Complaint states plausible claims under all seven counts on its own merits, relying on the FAC's
well-pleaded allegations, Defendants' twelve attached exhibits, and documents central to and
referenced by the complaint.1 Part II demonstrates that the Proposed Third Amended Complaint
cures any arguable deficiency and leave to amend should be granted under Rule 15(a)(2). A
separately filed Appendix presents the full evidentiary record supporting Part II.2 Part II is
presented in the alternative under Fed. R. Civ. P. 8(d)(2) and does not concede any deficiency in
Part I. Plaintiff's primary position is that the FAC survives dismissal on its own merits.
Defendants present this as a routine disciplinary case. It is not. Plaintiff does not seek
reinstatement or readmission. This case is about what Defendants did with the stigma they
created: they branded Plaintiff as dangerous, disseminated that label through six channels—
including emails to thirty-plus recipients (FAC ¶35A), campus-wide BOLO ("Be On the Look
Out") postings (FAC ¶34), and a class-wide broadcast (FAC ¶34; see TAC ¶¶122, 177 for full
enumeration)—and refused any process to clear his name, while that characterization follows
him into every professional context. The institutional labels—unprofessional, unremediable,
dangerous, unfit—leave Plaintiff worse off than if he had never attended medical school: too
dangerous to complete a medical credential, a permanent mark in every credentialing inquiry.
That harm requires correction.

Part I relies on (a) the FAC's well-pleaded allegations, (b) Defendants' twelve exhibits, and (c)
documents "central to" and "referenced by" the complaint. Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). These include Plaintiff's notes from posthearing review of the hearing recording (FAC ¶¶27, 42, 42A); contemporaneous recordings
(FAC ¶¶27A, 27B, 39); institutional communications (FAC ¶¶25-26, 33, 35A, 37); FERPAindexed records (FAC ¶¶29, 36A-36B); and TTUHSC policies (FAC ¶¶28, 40). "FERPA Doc
####" = Plaintiff's identifier for FERPA inspection records.
2
The Appendix is properly before the Court: documents "central to the claim and referenced by
the complaint" are cognizable at Rule 12(b)(6), Lone Star Fund V, 594 F.3d at 387; Rule 12(d)
permits conversion; and the Appendix supports the Rule 15(a)(2) futility analysis for Doc. 26.
See Appendix introduction.
1

7

Three of the four consolidated complaints involve speech—social media posts, emails to
faculty, and policy criticism. Defendants omit what followed: "dangerousness" warnings,
emergency exclusion, a proceeding where the Hearing Officer acknowledged "First Amendment
issues" and the Threat Assessment found no actual threat, and denial of name-clearing.
They also omit what they knew: that Plaintiff had a documented disability they refused to
accommodate while punishing conduct as "professionalism" violations. Every item Defendants
characterize as "unprofessional" is either protected speech, protected petitioning, or conduct that
Defendants identified as disability-related yet refused to accommodate—no residual misconduct
exists outside protected activity.

PART I: THE FIRST AMENDED COMPLAINT STATES PLAUSIBLE CLAIMS
I. THE RECORD BEFORE THE COURT
The FAC's allegations and Defendants' exhibits establish the following.¹
Defendants' Exhibit 7 concludes Plaintiff's condition "is not indicative of... violence"—"a
sensitive and gentle individual" (TTUHSC-0000068); no official identified an actual threat (FAC
¶¶31A-C; Defs' Ex. 8). Three of four consolidated complaints involve protected speech; the
Hearing Officer acknowledged "First Amendment issues" (FAC ¶¶27, 32-33, 39). Plaintiff's
fourteen-hour hearing barred contemporaneous objections, excluded defense witnesses including
his neuropsychological evaluator, and reversed the promised structure morning-of (FAC ¶¶27,
27A, 29, 42A).
II. REQUESTED DISPOSITION
1. DENY Defendants' Motion to Dismiss (Doc. 27) on the merits;
2. Alternatively, GRANT Plaintiff's Motion for Leave (Doc. 26) and DENY Doc. 27 as
moot;
3. At minimum, deny dismissal with prejudice.
8

The FAC states plausible claims on its own merits (Part I). If the Court identifies any
deficiency, Part II demonstrates the TAC cures it and leave should be freely granted. Foman v.
Davis, 371 U.S. 178, 182 (1962); Stripling v. Jordan Prod. Co., 234 F.3d 863, 872 (5th Cir.
2000). In no event should dismissal be with prejudice where Plaintiff sought leave to amend
before the MTD was filed.
III. LEGAL STANDARDS
A. Rule 12(b)(6)
A motion to dismiss tests plausibility—not proof. The Court must accept well-pleaded
factual allegations as true and draw reasonable inferences in Plaintiff's favor. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Courts must not weigh competing narratives or credit defendants'
characterizations. Tolan v. Cotton, 572 U.S. 650, 660 (2014) (per curiam). Defendants' MTD
asks this Court to accept their post-hoc "professionalism" narrative over well-pleaded allegations
supported by Defendants' contemporaneous admissions. Tolan forbids that.3
B. Rule 15 Futility / Qualified Immunity
Futility applies the same 12(b)(6) standard. Foman, 371 U.S. at 182. Qualified immunity
may be resolved on a motion to dismiss only when the complaint itself establishes the defense.
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc). The Fifth Circuit
has held: "government retaliation against a private citizen for exercise of First Amendment rights
cannot be objectively reasonable." Keenan v. Tejeda, 290 F.3d 252, 262 (5th Cir. 2002).
C. Defendants' Brief Departs from Its Own Cited Standard
Defendants repeatedly violate their own standard by attributing fabricated language to the
Complaint and misrepresenting the FAC's allegations:

Defendants claim allegations are "conclusory." But the FAC pleads specific dates, named
actors, quoted statements, and described events—detailed factual narrative.
3

9

Fabricated citation: Footnote 5 attributes "crude personal communications" to the
Complaint. The words "bodily," "crude," "diarrhea," and "vomit" appear zero times in any
version of the Complaint. The characterization derives entirely from Defendants' own Exhibits 2
and 8.
Disability knowledge: "Plaintiff provides no evidence or claim that... anyone... had any
knowledge about his alleged disability." Doc. 27 at 9. The FAC alleges constructive knowledge
through MRFA evaluations, Erwin's assessment, and Wilson's recognition. FAC ¶25; TAC
¶¶39(a)-(e).
Publication: Plaintiff "does not plead the publication of a materially false statement by
any specific Defendant." Doc. 27 at 14. The FAC names Forbes and identifies specific
publications with dates and recipients. FAC ¶¶35A, 34.
Protected speech: Plaintiff "does not identify with any specificity what speech" triggered
actions. Doc. 27 at 15-16. The FAC identifies the specific speech—the November 3, 2023
tweet—and describes its content. FAC ¶31A.
Retaliatory animus: "No specific allegations that any of the individuals had any
retaliatory animus." Doc. 27 at 18. The FAC alleges Forbes's "check his Twitter" broadcast (FAC
¶33), Williams urging Plaintiff to curtail protected online speech (FAC ¶37), and Cobbs urging
the same (FAC ¶36). Documents central to the FAC further establish Williams's "obviously
protected speech" acknowledgment and a multi-year surveillance chain.¹
Phantom citation: Doc. 27 at 17 cites "Exhibit 4, at pp. 3-17" for "unprofessional
personal communications." Exhibit 4 is HSC OP 77.14—a two-page disability accommodations
policy. Pages 3-17 do not exist.
Exhibit mislabeling: Footnote 2 identifies Exhibit 1 as a "Hearing Notice" dated
"November 9, 2023." Exhibit 1 is captioned "Notice of Consolidation." The actual hearing notice
is Exhibit 2, dated November 16.
Handbook year: Doc. 27 at 12 cites the "Student Handbook (2024-2025)." Exhibit 9's
cover page reads "2023-2024."
10

Appendix Tab G catalogues twenty-nine such instances.4
IV. COUNT-BY-COUNT SURVIVAL
Every item Defendants characterize as "unprofessional" is protected speech, protected
association, protected petitioning, or manufactured pretext. Even the patient boundary
complaint—the one item not facially connected to speech or petitioning—was constructed
through the same selective-reporting pattern: Wilson acknowledged ethical ambiguity in a
contemporaneous conversation ("blurred lines," "I think you're okay"), then filed a one-sided
report omitting her statements (FAC ¶36A). Defendants face a fundamental dilemma: if the
"professionalism" charges are genuine, they describe conduct that Defendants' own records link
to a documented disability they refused to accommodate (Counts 1-2, 6). If they are not genuine,
they are pretext for retaliation against protected speech (Count 5). Either way, the "independent
grounds" for dismissal fail—which is why Count 3's procedural violations matter, why Count 4's
stigma publications matter, and why Count 7's name-clearing denial matters. Count 1 establishes
what was denied; Count 3, how the process was structured; Count 5, why it was done; Count 4,
what was published; Count 7, what remains unremedied; Counts 2 and 6, that it continues.
The record reveals a single pipeline from recognition to dismissal: Defendants recognized
traits consistent with disability throughout 2023—Erwin: "probably

";

Wilson: "a personality thing"—initiated no accommodations or interactive process, generated
complaints and evaluations through processes with documented defects at every level (evaluator
coordination, self-investigation, zero student interviews), suppressed the one expert evaluation
that would have provided clinical context, overrode a passing grade, then found Plaintiff
"incapable of remediating" based on testimony from the very officials who recognized disability
indicators for months without acting. The "independent grounds" are downstream products of
Defendants' own failures. (See Appendix Tab K-14.)

4

Defendants' Footnote 5 characterization satisfies neither criterion of their Footnote 1 standard.
11

Count 1: Section 504 (Rehabilitation Act)
Elements Met: Documented

disability (FAC ¶25); medical student

in good standing before retaliation; TTUHSC receives federal funds (FAC ¶14); no SDS
determination before 14-hour hearing, accommodations excluded as "outside scope" (FAC ¶¶2526). Section 504 requires "meaningful access to the benefit that the grantee offers." Alexander v.
Choate, 469 U.S. 287, 301 (1985).
Deliberate Indifference: Damages under § 504 require deliberate indifference—not "bad
faith or gross misjudgment." A.J.T. v. Osseo Area Schools, 605 U.S. 335 (2025) (unanimous).
The FAC and Defendants' exhibits establish it: December 8 written notice to SDS (FAC ¶25);
proceeded without accommodations December 11 (FAC ¶26); accommodations content excluded
as "outside the Board's scope" (FAC ¶42). That is deliberate choice.
Board's Own Filing: Exhibit 8 states the Board "determined that Dr. Bass's diagnosis...
was not a proper basis for retroactive leniency"—knowledge, consideration, and conscious
rejection. Disability accommodation is not "leniency"—it is a legal obligation. Pickett v. Texas
Tech University Health Sciences Center, 37 F.4th 1013, 1027 (5th Cir. 2022) (holding this
defendant cannot invoke "legitimate, nondiscriminatory reasons" at the pleading stage).
Disability Knowledge Predated the Hearing: The Board's determination references
Plaintiff's "pre-existing

diagnosis"—an admission that TTUHSC knew of a qualifying

disability before December 2023 and never initiated the interactive process. Exhibit 8 claimed
disability was "not disclosed until the morning of the hearing"—a three-day misrepresentation,
since Plaintiff's attorney notified TTUHSC December 8 (FAC ¶25). The institution's
professionalism coach documented that coaching was "utterly ineffective if the mental health
issues are not resolved" (coaching notes, central to FAC ¶¶25-26)—yet no referral to SDS was
made.5
ᵇ Defendants cite Shurb v. Univ. of Texas Health Sci. Ctr., 63 F. Supp. 3d 700 (S.D. Tex. 2014),
for the proposition that late accommodation requests excuse inaction. Shurb is distinguishable:
5

12

Expert Suppression and Board's Own Finding: Exhibit 7 concluded the
condition "is not indicative of... violence"—yet the Hearing Officer
excluded it as "outside scope" and redacted accommodation recommendations. (FAC ¶26.)
Exhibit 8 then found Plaintiff "incapable of remediating"—using testimony from Erwin and
Wilson, the very officials who recognized disability indicators for months without
accommodating them. The Board relied on witnesses who knew Plaintiff "probably" had
and that his behavior was "not malicious" and "a personality thing"—and treated their testimony
as proof of irremediable deficiency. This is deliberate indifference.
Gibson's Same-Day Double Standard: Gibson allowed the University to add Dr. Erwin
that morning—"I'm going to allow Dr. [Erwin] to be added as a witness"—while denying
Plaintiff's neuropsychologist because "the university did not have time to identify [a] rebuttal
witness." When the only disability expert is excluded while adverse witnesses are freely added,
the suppression is intentional.
Structural Denial of Accommodation: OP 77.14 requires registration, documentation
review ("up to two weeks"), an interactive meeting, and a Letter of Accommodation—impossible
in three days. Defendants concede SDS is "the only office authorized" to grant accommodations
and claim "no requirement" to provide them before completion (Doc. 27 at 9)—admitting
categorical denial. § 504 rights are not suspended by internal processing timelines. Gibson's midhearing accommodations—water, snacks, breaks—were performative, not disability
accommodations for a

condition in a 14-hour adversarial proceeding.

Defendants' assertion that Plaintiff "had three years to request accommodations" (Doc. 27
at 9) inverts the interactive process. The Rehabilitation Act imposes a bilateral obligation:
institutions with disability knowledge must engage. EEOC v. Chevron Phillips Chem. Co., 570

the plaintiff there had no prior indication of disability and no constructive knowledge existed.
Here, TTUHSC personnel documented disability indicators for seven months without referring
Plaintiff to SDS—the institution's own failure to initiate the interactive process created the
timing problem it now cites as a defense.
13

F.3d 606, 621 (5th Cir. 2009). TTUHSC's professionalism coach wrote Plaintiff was "probably
" and never referred him to SDS. The interactive process was not
"prevented" by Plaintiff—the institution that recognized the disability never initiated it.⁴ᵇ Doc.
27's assertion that Plaintiff "never again inquired" about the application (Doc. 27 at 7) is outside
the pleadings and, in any event, immaterial: Plaintiff filed the application December 8; the
institution proceeded to hearing December 11 without processing it; and Plaintiff was dismissed
twelve business days later. Under the bilateral interactive-process obligation, the institution that
received the application bore the duty to act—not the applicant to chase it.
Count 2: Title II (ADA) Prospective Relief
Plaintiff seeks only prospective relief under Ex parte Young, 209 U.S. 123 (1908), against
officials with implementation authority. McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 41213 (5th Cir. 2004). Ongoing harm: each transcript request republishes stigmatizing status (FAC
¶34A); BOLO/exclusion directives remain unrescinded (FAC ¶¶34, 35); name-clearing hearing
denied (FAC ¶60). The relief sought is surgical: (1) a constitutionally adequate name-clearing
hearing; (2) cease publishing unsupported threat characterizations; (3) Title II-compliant
accommodations in any future hearing.
Defendants argue that Plaintiff's withdrawal of his TRO request "independently defeats
standing for prospective relief." Doc. 27 at 12. That conflates two distinct remedies. A
preliminary injunction requires showing irreparable harm before trial. Winter v. NRDC, 555 U.S.
7, 20 (2008). Permanent injunctive relief requires only prevailing on the merits and showing an
inadequate legal remedy. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
Declining emergency pre-trial relief says nothing about permanent-relief standing. Uzuegbunam
v. Preczewski, 141 S. Ct. 792, 802 (2021) (standing persists where plaintiff seeks nominal
damages for completed violation). Standing is established by those ongoing injuries (see above),
not by the procedural posture of preliminary relief. Nor is the relief "retrospective in substance."
Doc. 27 at 12. Each requested remedy addresses those same ongoing conditions. Prospective

14

relief halting a continuing violation is the paradigmatic application of Ex parte Young—even
when the violation originated in a past act. Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535
U.S. 635, 645 (2002).
Count 3: Procedural Due Process
Plaintiff alleges three independent constitutional deprivations, each sufficient: (A) notice
that violated Goss v. Lopez, 419 U.S. 565, 579 (1975)—Forbes wrote "NO SPECIFICS WILL
BE GIVEN" regarding incident-level notice, and four complaints were consolidated without
consent; (B) a financially conflicted decisionmaker in violation of Caperton v. A.T. Massey Coal
Co., 556 U.S. 868, 876 (2009), and Cain v. White, 937 F.3d 446, 453 (5th Cir. 2019)—Gibson's
$393K+ in OCC contracts with the prosecuting institution created an unconstitutional probability
of actual bias; and (C) a criminal trespass warning imposed with zero pre- or post-deprivation
process, enforced for twelve months through September 2024.
Defendants rely on Van Overdam v. Texas A&M Univ., 43 F.4th 522 (5th Cir. 2022), for
the proposition that students need only "notice and an opportunity to be heard."6 But Van
Overdam actually helps Plaintiff—every safeguard the Fifth Circuit relied on to uphold Texas
A&M's process was absent here:
Van Overdam (Upheld)
"advanced notice of [the] allegations"
"permitted to call witnesses"
"neutral panel"
"represented by counsel throughout"
"[accuser's] description of allegations
directly"
"unlimited number of questions"

Bass (Deficient)
No incident-level notice (FAC ¶¶27, 29)
All defense witnesses denied (FAC ¶42A)
Gibson—Littler Mendelson attorney—
presided alone (FAC ¶¶28, 42A)
Counsel barred from questioning (FAC ¶26)
Matters consolidated without consent (FAC
¶¶27A, 29)
Written questions subject to unilateral
rejection (FAC ¶27)

Rice University, 67 F.4th 702 (5th Cir. 2023), holds formally adequate procedures violate
due process when substantively one-sided. Notice (Loudermill, 470 U.S. at 546), reasonable
6

Defendants cite this case as "43 F.4th 310." (Doc. 27 at 13.) The correct starting page is 522.
15

calculation (Mullane, 339 U.S. at 314), and impartiality (Goldberg, 397 U.S. at 266-71)—each
was violated.
Systematic Exclusion from Grievance Investigations: Plaintiff filed seven formal
mistreatment grievances. In six—all those filed against faculty and administrators—respondents
were interviewed; Plaintiff—the complainant—was not. All six were consolidated into the
December 11 hearing and denied. (FAC ¶37A.) The pattern is structural: respondents were heard,
the complainant was not.
Biased Decisionmaker: Gibson identified himself as a "retained" Littler Mendelson
attorney (Plaintiff's notes from post-hearing review of the hearing recording)—the language of a
paid contractor, not an independent judicial officer. Under Cleavinger v. Saxner, 474 U.S. 193,
206 (1985), institutional adjudicators receive only qualified immunity—not absolute. Gibson's
$393K+ in OCC contracts created an unconstitutional probability of actual bias. (See Appendix
Tab D-1.) Gibson promised rules would be "applied equally both parties"—then systematically
violated that promise. (See §V.A.) Walsh v. Hodge, 975 F.3d 475, 484-85 (5th Cir. 2020),
requires meaningful credibility testing where "the sanction imposed would result in loss of
employment and likely future opportunities." See also Doe v. Purdue Univ., 928 F.3d 652, 663
(7th Cir. 2019) (Barrett, J.); Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018) (Thapar, J.).
The "Threat" Was Grievance-Filing, Not Violence: Wilson testified that faculty fear
was "fear of retaliation"—meaning Plaintiff would file complaints about them, not that he
posed physical danger. (Plaintiff's notes from post-hearing review of the hearing recording.)
When the "threat" justifying emergency procedures is that a student might exercise his right to
petition, due process is violated at its foundation.
TTUHSC Violated Its Own Threat Assessment Protocol: The institution's written
decision tree mandates: if no "Physical or Other Credible Evidence (e.g., Injuries, Witness
Statements, Video Surveillance)" exists, the required outcome is "No Security Hold or Criminal
Trespass is Issued." No injuries existed; no witness identified a specific person threatened;
16

Williams's Q5 answered "No" to terroristic threats. The protocol required neither security hold
nor criminal trespass warning. TTUHSC issued both—enforced for twelve months—a direct
violation of its own written procedure.7
Count 4: Stigma-Plus
The Fifth Circuit applies a seven-element stigma-plus test. Rosenstein v. City of Dallas,
876 F.2d 392 (5th Cir. 1989), aff'd en banc, 901 F.2d 61 (5th Cir. 1990); Bellard v. Gautreaux,
675 F.3d 454, 462 (5th Cir. 2012).
Element
Stigma
Falsity

Publication

Plus
Name-clearing denied

FAC Evidence
BOLO characterizing Plaintiff as dangerous
(FAC ¶34)
Tweet did not threaten violence (FAC ¶31A);
Defs' Ex. 7: "not indicative of violence"; Ex.
8: no criminal charges
Forbes email to 30+ recipients (FAC ¶35A);
BOLO campus-wide (FAC ¶34); class-wide
broadcast (FAC ¶34); transcript notation
(FAC ¶34A)
Emergency removal, CTW, dismissal,
transcript notation (FAC ¶¶34A, 35)
Oct 19, 2025 request; no hearing provided
(FAC ¶60)

Hughes v. City of Garland, 204 F.3d 223, 226-28 (5th Cir. 2000), requires the
stigmatizing charges be false—not that enrollment status be false. The falsity is the
dangerousness characterization, contradicted by Exhibit 7 and by Williams's Interim Suspension
Questionnaire, in which Williams checked "No" to Question 5: "Does this involve criminal
felony charges related to weapons, drugs, aggravated assault, and/or terroristic threats?"
Williams's determination—November 3-4, 2023—confirms this was not a terroristic threat case,
yet the same-day BOLO stated "threatening statements" and "call 911 for life-or-death situation."
The falsity is the contradiction between Defendants' internal assessment (no terroristic threat)

See Appendix Tabs B, C, D, K-11 for the full procedural record including the Threat
Assessment Questionnaire and protocol violation.
7

17

and external publication (life-or-death emergency). The Dec. 11 hearing was not a name-clearing
proceeding—zero BOLO references throughout. Under Bellard, a name-clearing hearing must
address the specific stigmatizing charge. (FAC ¶60A.)8
Real-World Impact: The CTW required police coordination for Plaintiff to access his
child's school on TTU property (FAC ¶35), enforced twelve months through September 2024.
An institution maintaining armed-police exclusion of a parent—while its Threat Assessment
found "no threat"—has stigmatized beyond any safety justification. See Appendix Tab E.
Count 5: First Amendment Retaliation
Protected Activity: Plaintiff's public commentary on medical education addresses
matters of public concern. Connick v. Myers, 461 U.S. 138, 145 (1983). Plaintiff's Newsweek
opinion essay—"It's Time for the Scientific Community to Admit We Were Wrong About
COVID and It Cost Lives" (Jan. 30, 2023)—separate from the November 3 tweet—was widely
circulated within days of publication and shared by Robert F. Kennedy Jr., Jay Bhattacharya,
Marty Makary, and Vinay Prasad, who, at the time of this filing, are HHS Secretary, NIH
Director, FDA Commissioner, and CBER Director. TTUHSC catalogued this article in a
compiled dossier—yet Defendants dismissed as "unprofessional" the same commentary the
nation's senior health officials amplified. Plaintiff's TPIA requests, FERPA complaints, and
grievances are protected petitioning. Borough of Duryea v. Guarnieri, 564 U.S. 379, 382 (2011).
Garcetti does not apply—Plaintiff is a student, not an employee—and expressly reserved
"speech related to scholarship or teaching." 547 U.S. at 425.
TTUHSC's Policies Protect Plaintiff's Speech: The Handbook recognizes "freedom of
speech and expression as a fundamental right" (Part VII.A), provides that speech provisions
"shall control" over the conduct code (Part VII.A), and carves expression out entirely (Part
II.D.5.f). TTUS Reg. 07.04 §9 independently protects "speech or expression protected by the

8

See Appendix Tab E for the full publication chain and eight officials' recorded threat denials.
18

First Amendment." Defendants charged Plaintiff under misconduct provisions that the Handbook
says do not govern expression. See Appendix Tab H-1.
Prima Facie Case (Keenan, 290 F.3d at 258): (1) protected speech and petitioning (FAC
¶¶31A, 32); (2) emergency removal, CTW, BOLO, dismissal (FAC ¶¶34, 35); (3) causation:
tweet Nov 3 → removal Nov 4 (24 hours); Williams "urged Plaintiff to curtail protected online
speech" (FAC ¶37); Forbes broadcast: "check his Twitter" (FAC ¶33).
Defendants' Own Risk Assessment Proves Retaliatory Motive: TTUHSC's Interim
Suspension Questionnaire, Question 8, asked: "Does this involve retaliatory harm,
discrimination, or harassment?" Williams answered: "Yes. Dr. Bass has filed numerous
grievances against members of the TTUHSC faculty and staff in response to their
assessments of his professional behavior and against members of the staff who reported his
behavior." Wilson separately confirmed the faculty fear was "fear of retaliation"—meaning
Plaintiff would file complaints, not that he posed physical danger (Plaintiff's notes from posthearing review of the hearing recording). The same questionnaire answered "No" to terroristic
threats (Q5) and "No" to sexual misconduct (Q4). Every "Yes" answer characterizes protected
activity as threatening conduct—revealing the institution's actual motive. Three of the four
consolidated complaints targeted communications with officials who were themselves grievance
targets. Borough of Duryea, 564 U.S. at 382.
General Counsel Admission Establishes Causation: In the recorded November 2023
meeting referenced in FAC ¶27A, General Counsel Posey stated: "The outcome of the tweet and
the perceived threat of that tweet is the reason he is not allowed on campus right now." Posey
confirmed the removal was handled as an "interim suspension" under university policies, not
under Chapter 51's withdrawal-of-consent procedures—deliberately bypassing the statutory
framework governing speech-based threats.9 When the university's lawyer identifies a tweet as

The November 16, 2023 recording is "central to" and "referenced by" the FAC (¶27A),
cognizable at 12(b)(6). Lone Star Fund V, 594 F.3d at 387. Posey's causation admission:
9

19

the cause and concedes it sidestepped its statutory framework, causation is established by
binding admission. FRE 801(d)(2)(D). (See Appendix Tab K-2.)10
"True Threat" Fails: Counterman, 600 U.S. at 66, requires subjective awareness. No
Defendant alleges Plaintiff intended a threat. Williams's own Questionnaire Q5 answered "No"
to terroristic threats. Officials continued meeting Plaintiff in ordinary settings; no lockdown or
emergency protocols were activated. (FAC ¶31B.) (See Appendix Tab B.)
No Substantial Disruption: Mahanoy, 594 U.S. 180 (2021), limits authority over offcampus speech. Speech First, Inc. v. McCall, No. 23-50633 (5th Cir. May 14, 2025), holds vague
university policies chill student expression. Even under Tinker, no disruption occurred. Every
"disruption" Defendants cite was self-created. Forsyth County, 505 U.S. 123, 134 (1992).
Defendants cite Students for Justice in Palestine v. Abbott, No. 1:24-cv-00523-RP (W.D.
Tex. Oct. 28, 2024), applying Tinker to grant qualified immunity. That case involved coordinated
campus protests—collective action reasonably forecast to disrupt operations. Here, Plaintiff
posted a philosophical reflection about mortality on personal social media while off campus—no
disruption followed. SJP reinforces the distinction: coordinated on-campus action may satisfy
Tinker; an individual's off-campus philosophical post cannot.
The Professionalism Coach Admitted It Was About Speech: Erwin wrote: "They raise
issues of constitutional free speech... He seems to be taking his First Amendment rights to make
an idiot of himself." (FERPA Doc 0124.) Her private notes characterized protected speech as
personality pathology: "intellectual narcissism," "paranoia" (FERPA Doc 0083). Before
testifying, she pre-concluded every complaint "stem[med] from his resentment." An institutional
document states the objective: "Outcome: moderating his behavior, especially his
communications with others." (FERPA Doc 0132, last saved December 11, 2023.) Continued

00:01:20–00:02:04; Chapter 51 acknowledgment: 00:03:41. The Student Conduct Administrator
identifies "Ms. Posey" by name at 00:04:35.
10
The TAC further details Posey's admissions with the full 3-year speech chain, 19 admissions,
and Mt. Healthy analysis. See Appendix Tabs A, F.
20

enrollment was conditioned on speech modification—viewpoint discrimination embedded in the
remediation mechanism. (See Appendix Tabs A-3, K-10.)
Chilling Effect: Five months before the tweet, Plaintiff locked his social media accounts
and notified the institution. Nunez responded: "this meeting has nothing to do with your social
media"—while CC'ing Williams and Forbes, who knew otherwise. Erwin's notes document the
institution demanding Plaintiff cease social media, which Plaintiff recognized as "a coercive
request." (See Appendix Tab K-1.)
Count 6: ADA/Section 504 Retaliation
Prima Facie Case: (1) accommodation requests and filing lawsuit (FAC ¶¶25, 65-66);
(2) proceeding without accommodations, excluding accommodation evidence, terminating
support (FAC ¶¶26, 42, 66); (3) Dec 8 notice → Dec 11 hearing without accommodations (3
days). 42 U.S.C. § 12203; Burlington Northern, 548 U.S. at 68.
Six-Link Causation Chain: (1) disability indicators disclosed throughout 2023
coaching; (2) formal disability notification Dec. 8; (3) Gibson excluded disability evidence Dec.
11; (4) Cobbs terminated Plaintiff's only support relationship upon learning of lawsuit—Erwin
testified: "Dr. Cobbs informed me that Kevin has filed a legal complaint against TTUHSC and
all further correspondence must go through [legal]" (TAC ¶205); (5) SDS never processed Dec. 8
application or Dec. 11 accommodation request; (6) Board rejected disability as "retroactive
leniency." Plaintiff has a decade of ADA-protected activity (2014–2023). (See Appendix Tabs
A-5, F.)
TTUHSC's Anti-Retaliation Regulation: TTUS Reg. 07.10 §5.e: retaliation against
anyone who opposes a discriminatory practice or files a complaint "is strictly prohibited,"
including "adverse actions related to an individual's... education." Defendants' regulatory
framework condemns the conduct alleged.

21

Defendants Do Not Challenge the Retaliation Elements. Defendants addressed Count
6 only on sovereign immunity grounds—not ADA retaliation elements or § 12203. (Doc. 27 at
19-20.) Post-filing debt escalation further confirms retaliatory motive. (See Appendix Tabs A-5,
F, K-16.)
Count 7: Name-Clearing Hearing
The dangerousness stigma requires its own remedial process. The Dec. 11 hearing was
not noticed or structured to address the BOLO's "threatening statements" characterization—zero
BOLO references throughout. Under Bellard v. Gautreaux, 675 F.3d 454 (5th Cir. 2012), a
name-clearing hearing must address the specific stigmatizing charge. A "professionalism"
hearing cannot clear a name stigmatized with "call 911 for life-or-death situation." The CTW
was enforced for twelve months (FAC ¶35; see Count 4). No process ever addressed the
"threatening statements" characterization. Each transcript request republishes the stigmatizing
status (FAC ¶34A)—a continuing violation. Plaintiff requested a dedicated name-clearing
hearing October 19, 2025; Defendants refused. (FAC ¶60.)
V. QUALIFIED IMMUNITY CANNOT BE RESOLVED AT RULE 12
A. Rights Were Clearly Established
Defendants argue qualified immunity under Babinski, 79 F.4th 515, requiring "high
factual specificity." The Supreme Court has rejected this—three times correcting the Fifth
Circuit alone: Hope v. Pelzer, 536 U.S. 730, 741 (2002); Taylor v. Riojas, 592 U.S. 7 (2020) (per
curiam) (summarily reversing); Gonzalez v. Trevino, 602 U.S. 653 (2024) (vacating). The claims
involve core requirements—neutral decisionmaker, meaningful opportunity to be heard, freedom
from retaliation—clearly established for decades.
Clearly established law. The Fifth Circuit has denied QI where officials retaliated
against protected speech: Kinney v. Weaver, 367 F.3d 337 (5th Cir. 2004) (en banc); Keenan, 290

22

F.3d at 262 ("cannot be objectively reasonable"); Bevill v. Wheeler, 103 F.4th 363 (5th Cir.
2024); Bailey v. Iles, 87 F.4th 275 (5th Cir. 2023) (social media post not a "true threat"). Walsh,
975 F.3d at 487, requires meaningful credibility-testing where sanction and credibility are
intertwined. Accord Doe v. Baum, 903 F.3d at 582; Haidak, 933 F.3d at 69.
General Counsel training defeats "reasonable belief." In August 2020, Associate
Provost Justyna emailed defendant Cobbs: "After our training with General Counsel recently
regarding free speech I know there is little we can do when students express opinions, even very
unfortunate or out of the mainstream ones." (FERPA Doc 1432.) Cobbs confirmed she knew
Plaintiff that same day. (FERPA Doc 1437.) Berk was separately mobilizing Williams and
Schneider about the identical tweets. Officials who received legal training confirming their
conduct violates constitutional rights cannot claim objectively reasonable belief.
Defendants' own cases support Plaintiff. Woods v. Smith, 60 F.3d 1161, 1166
(requiring "independent disciplinary grounds"—here, derived from conduct Defendants linked to
a disability they refused to accommodate); Keenan, 290 F.3d at 262 (retaliation "cannot be
objectively reasonable"); Nieves v. Bartlett, 587 U.S. 391 (recognizing exception where
"objective evidence" demonstrates retaliatory motive). Defendants' most-cited authority, Esfeller,
391 F. App'x 337, is non-precedential.
Gibson fails the Butz v. Economou, 438 U.S. 478 (1978), functional test for absolute
immunity: no safeguards (eliminated objections and cross-examination); no insulation ($393K+
contracts); no adversarial features (banned mechanisms making hearings judicial); no appellate
correctability. See Filarsky v. Delia, 566 U.S. 377 (2012) (private attorneys retained by
government receive only qualified immunity). Where adjudicators possess pecuniary interests,
disqualification is required. Gibson v. Berryhill, 411 U.S. 564, 578-79 (1973); Caperton, 556
U.S. at 876. (See Appendix Tabs D-1, D-2.)

23

B. The FAC's Allegations Defeat QI
The FAC establishes Defendants acted with knowledge: Williams "urged Plaintiff to
curtail protected online speech" (FAC ¶37); within a week, charges issued (FAC ¶33); Forbes
directed recipients to "check his Twitter" (FAC ¶33); officials met Plaintiff without security
measures (FAC ¶31B); the Board used only "perceived threat" qualifiers (FAC ¶31C); the
Hearing Officer acknowledged "First Amendment issues" (FAC ¶¶27, 42); Exhibit 7 concluded
"not indicative of violence."11
C. Board Policy Changes Demonstrate Feasibility and Undermine QI
In August 2023—while Plaintiff's disciplinary matter was pending—the Board approved
emergency policy changes: (1) added "which loses legal protection" to the speech-based
suspension standard; (2) removed the CIRT monitoring student "expressive activities"; (3) added
"legal definition of harassment" requirement; (4) modified involuntary withdrawal to require
"individualized assessments." Officials who modify policies to add constitutional safeguards
cannot credibly claim ignorance of those rights. Speech First, Inc. v. Fenves, 979 F.3d 319, 33038 (5th Cir. 2020). See also Stewart v. TTUHSC, No. 5:23-cv-00007-H (N.D. Tex. 2025) (same
defendants, same judge, settled with AG-approved due process release signed by Rice-Spearman
individually).12
D. Schultea Safety Net
Even if the Court finds the current pleading insufficient to resolve QI, the proper remedy
is not dismissal with prejudice. Under Schultea v. Wood, 47 F.3d 1427, 1433-34 (5th Cir. 1995)
(en banc), a Rule 7(a) reply should be ordered.

See Appendix Tab A (19 contemporaneous admissions). Party admissions: FRE 801(d)(2).
Plausibility, not admissibility, governs. Tolan, 572 U.S. at 660.
12
Stewart cited under FRE 408(b) (consciousness of liability) and 201(b)(2) (judicial notice);
policy changes under FRE 407(b) (feasibility).
11

24

VI. SOVEREIGN IMMUNITY / PROPER DEFENDANTS
Plaintiff does not dispute TTUHSC is a state arm. But sovereign immunity does not bar
any count. (1) § 504 waiver for Count 1: 42 U.S.C. § 2000d-7(a)(1). (2) Title II abrogation for
Counts 2 and 7: United States v. Georgia, 546 U.S. 151, 159 (2006) (unanimous). (3) § 1983
individual-capacity suits for Counts 3-5. This Court has already held TTUHSC waives sovereign
immunity by removing to federal court. Corbett v. TTUHSC, No. 5:21-CV-281-H, Doc. 60 (N.D.
Tex. 2023) (Hendrix, J.) (citing Lapides, 535 U.S. at 618-19).
Ex parte Young: The FAC alleges ongoing violations and seeks prospective relief. Each
official-capacity Defendant has a direct enforcement connection. Jackson v. Wright, 82 F.4th
362, 369 (5th Cir. 2023) (only "a mere scintilla of enforcement" necessary).
Defendant
Enforcement Connection
Relief Nexus
Executive authority;
Cease threat characterization;
Rice-Spearman
Handbook Part I.C (FAC
authorize name-clearing
¶20A)
Provost; final appellate
Vacate appeal denial;
D'Agostino
authority (Handbook Part
authorize rehearing
II.F.4.p-q); designated Kruse
to decide appeal (FERPA
Doc 1510) (FAC ¶20B)
Registrar; records custodian
Enjoin ongoing republication
McSween
(OP 77.13 §4.d(1)(a)) (FAC
of stigmatizing transcript
¶15)
notation
SDS Director; sole
Process accommodation
Mancini
gatekeeper (OP 77.14 §3.b)
requests
(FAC ¶18)
Student Affairs; distributed
Rescind BOLO; cease
Cobbs
BOLO (FAC ¶16)
exclusion directives
Financial Aid (OP 77.13
Resolve financial aid
Myers
§4.d(3)(b)) (FAC ¶19)
ineligibility
Academic Affairs; signed
Rescind emergency
Williams
emergency removal (FAC
removal/CTW
¶17)

25

Each official controls the challenged communications, records, or accommodation
processes. Okpalobi, City of Austin, and Morris involve officials with no enforcement role; here,
each connection exceeds Jackson's "mere scintilla."
Firewall Provisions: Neither the FAC nor the TAC seeks OP 77.13 / Tex. Gov't Code §
559.004 enforcement, retrospective transcript correction, or education record amendments. The
McSween relief is prospective: each transcript request republishes the stigmatizing notation
(FAC ¶34A), and the injunction sought would halt that ongoing dissemination—not retroactively
alter existing records.
VII. ANTICIPATED DEFENSES
Defendants' anticipated arguments are each defeated by the record.
1. "Plaintiff's own conduct caused dismissal" — *Mt. Healthy* fails.
Under Mt. Healthy, 429 U.S. 274 (1977), once a plaintiff shows protected activity was a
motivating factor, the burden shifts to defendants to prove they would have taken the same action
regardless. Defendants cite three grounds: four complaints, six evaluations, and a prior SPPCC
warning. Each fails.
The four complaints. Each is either constitutionally protected speech (Complaint 4 — the
tweet; Williams acknowledged "no problems with your tweets" sixty-two days earlier; Posey
conceded the process was "prompted by Social Media post"; Justyna identified the tweet as the
sole "credible evidence"), affirmatively disputed by contemporaneous recordings (Complaints 2
and 3 — Wilson's own recorded words prove she acknowledged ambiguity before filing onesided reports at Forbes's direction), or investigated without interviewing the accused by an
official who characterized counter-grievance filing as "retaliation" (Complaint 1). Defendants
consolidated all four into a single hearing; they cannot disaggregate them into independent
justifications now. The complaint-by-complaint evidence is compiled at Appendix Tab K-9.

26

The six evaluations — institutional bootstrapping. TTUHSC's retaliatory campaign
contaminated every evaluation it now cites. Disciplinary meetings caused Jensen's documented
"absences"; what Eboh characterized as "spaced out" coincided with an active investigation by
multiple administrators. Walker's most serious allegation was hearsay from nursing staff she
could not verify. Nunez recharacterized patient advocacy as insubordination and volunteered it
had "nothing to do with social media"—an unprompted denial revealing her actual concern. Vo's
evaluation is strictly derivative of Complaint 1. Five of six originated from Pediatrics, where
Forbes controlled the campus and Wilson—whose appointment as Assistant Vice Dean Forbes
announced in the same email celebrating Plaintiff's dismissal—controlled the department. The
temporal clustering is notable: Walker and Wilson filed on the same day; Eboh discussed
Plaintiff's conduct with Wilson before filing; Jensen—a PGY-2 resident on a different team—
described the same incident Nunez reported. When the institution creates the conditions it cites
as grounds, those grounds are downstream of the protected conduct—not "independent." See
Appendix Tab K-12.
The grievances and SPPCC warning. Grievance-filing is protected petitioning. Borough
of Duryea v. Guarnieri, 564 U.S. 379, 382 (2011). The investigator (Bates) never interviewed
Plaintiff for any investigation and characterized counter-grievance filing as "retaliation" under
TTUS Reg 07.06. The Board's Threat Assessment (Question 8) identifies grievance-filing as the
motivating "retaliatory harm." When an institution classifies the exercise of petition rights as
evidence of dangerousness, then cites rejection of those petitions as "independent grounds," it
reveals its actual motive—not safety, but suppression. The SPPCC warning pathologized
protected speech — Erwin's coaching notes characterize protected commentary as "intellectual
narcissism" and "paranoia" (FERPA Doc 0083). See Appendix Tab K-12 (evaluations), Tab K13 (grievances).
Grade manipulation, comparator evidence, and institutional campaign. The
manufactured nature of these "independent grounds" is confirmed by TTUHSC's own records,
which state that Plaintiff "will receive a grade of Fail for his Pediatric clerkship despite the
27

numerical calculation resulting in a Pass." (TAC ¶172(c); App. Tab K-18.) When an
institution overrides its own grading system to impose a failing grade, the result is not an
academic basis for dismissal—it is evidence of predetermined outcome. The comparator
evidence is equally telling: the institution's own Threat Assessment reviewer testified that a prior
student misconduct case "was handled between school administrators and the student, and this
one actually turned out in the student's favor. And no one knew." Plaintiff's case, by contrast,
was "escalated into public domain." (TAC ¶191; App. Tab K-20.) Same institution, opposite
treatment—the differentiating factor is speech. And the institutional campaign predated the tweet
by eight months: in March 2023, Plaintiff's PhD advisor reported being "constantly told" by
administration that he "should not whitewash" when discussing Plaintiff—a standing instruction
to suppress favorable information. (TAC ¶110; App. Tab A-3.)
Even if some baseline concerns existed, partial taint defeats Mt. Healthy at the pleading
stage. Whether any ground reflects untainted judgment is a factual question for discovery. Tolan
v. Cotton, 572 U.S. 650, 660 (2014).
2-7. Remaining defenses:
Defense
Dispositive Answer
Detail
Ex. 8: "Non-Academic
"Academic deference"
App. Tab H-5
Dismissal" (3x); 87
disciplinary, 0 academic refs;
counsel controlled 11 of 12
decision points from Feb
2023 through Dec 2023—
including Berk routing speech
to legal, General Counsel
rewriting policies, Posey
designing hearing structure,
academics' plan abandoned
morning-of, and Gibson
(retained outside counsel)
present during Board
deliberations while Student
Conduct Administrator
excluded—leaving no
academic judgment for this
Court to defer to (TAC ¶¶53,
53A, 64, 75, 128A, 132, 138,
28

"Out of context" /
"Emergency"
"Eleventh-hour
accommodation"
"No standing"
"Time-barred"

"Failed to exhaust"

205; App. Tab H-5a); Pickett
v. TTUHSC binding; Gilani
distinguishable (unpublished,
no speech/disability claims)
Factual disputes for
discovery. Tolan, 572 U.S. at
660
Three days' notice. A.J.T.,
605 U.S. 335 (2025)
16 discrete acts within
window; ongoing publication
Morgan: each discrete act
restarts clock; 16 within
window
No exhaustion for §504/Title
II; 6 grievances uniformly
denied = futility

—

—
App. Tab F-2
App. Tab F

App. Tab F

PART I CONCLUSION
Contemporaneous admissions defeat Defendants on every count: disability discrimination
(1), procedural deprivations exceeding Van Overdam (3), false dangerousness (4), speech
retaliation with direct admissions (5), unchallenged disability retaliation (6), and unremedied
stigma (7). Qualified immunity cannot be resolved at Rule 12. Sovereign immunity does not bar
any count. The Motion should be DENIED.

PART II: THE TAC CURES ANY DEFICIENCY AND
LEAVE TO AMEND SHOULD BE GRANTED
VIII. RULE 15 FRAMEWORK
Part II is presented in the alternative under Fed. R. Civ. P. 8(d)(2) and does not concede
any deficiency in Part I. None of the five Foman factors applies: Doc. 26 preceded Doc. 27; no
prior amendment denied; no scheduling order; and the TAC's 215 paragraphs demonstrate
diligence. If leave is granted, Doc. 27 becomes moot.

29

IX. WHAT THE TAC ADDS
The TAC's 215 paragraphs cure every arguable deficiency. The complete evidentiary
record is in the separately filed Appendix.
A. Disability (Counts 1-2). Seven-month constructive knowledge chain; Board's "not
disclosed until morning" is a three-day misrepresentation; structural impossibility of OP 77.14
compliance in one business day; "independent grounds" constructed from the disability
Defendants refused to accommodate. See Appendix Tabs A-5, K-14.
B. Due Process (Count 3). Gibson's $393K+ OCC contracts; 18-to-0 witness asymmetry
(15 pre-listed, 3 added day-of); Williams drafted the appeal decision (FERPA Doc 949); Trotter
promised grievances heard first for "most protection," then structure reversed morning-of
hearing. See Appendix Tabs C, D, F-3.
C. First Amendment (Count 5). Nineteen admissions across a 3-year surveillance chain;
Cobbs's August 2023 notes: "It is not a dispute that he has a right to say whatever he wishes.
However as a matter of professionalism he does not have a right to disrupt the learning
environment." (TAC ¶72; Ex. E-002.) See Appendix Tabs A-1 through A-3, F.
D. Stigma-Plus and Name-Clearing (Counts 4, 7). Eight officials denied threat;
publication reached 200+ recipients; Forbes recall attempt; St. James and St. Matthew's rejected
transfer applications. See Appendix Tabs E, K-7.
E. Mt. Healthy Defeat. Three of four complaints target protected activity; Plaintiff
offered least restrictive alternatives twenty-five days before the hearing—Defendants refused all.
(TAC ¶114.) Twenty-five hours of clinical audio contradict evaluations and pipeline-dependent
scoring pattern defeats Mt. Healthy. See Appendix Tabs K-5, K-8, K-9.
F. ADA/504 Retaliation (Count 6). Six-link causation chain from disability disclosure
through dismissal; Defendants did not challenge Count 6's elements or cite § 12203 in Doc. 27—
the claim stands unchallenged. See Appendix Tabs A-5, F.

30

X. FUTILITY ANALYSIS
The TAC is not futile. Under Foman, 371 U.S. at 182, futility is the sole basis Defendants
can invoke. Every element of every count is supported by Defendants' records. The Appendix
maps the TAC's 215 paragraphs to specific, sourced allegations through Tabs A-K. Leave to
amend should be granted.
CONCLUSION AND RELIEF REQUESTED
For the foregoing reasons, Plaintiff respectfully requests that the Court:
1. DENY Defendants' Motion to Dismiss (Doc. 27) on the merits;
2. Alternatively, GRANT Plaintiff's Motion for Leave (Doc. 26) and DENY Doc. 27 as
moot;
3. At minimum, deny dismissal with prejudice and grant leave to amend.
The FAC survives on its own. The TAC eliminates any arguable doubt. If the Court
identifies any gap, leave should be freely granted under Foman. Defendants' Motion should be
denied.
CERTIFICATE OF COMPLIANCE
Pursuant to N.D. Tex. LR 7.2(c), this Response does not exceed 25 pages, exclusive of the table
of contents, table of authorities, certificate of service, and this certificate. The separately filed
Appendix supports Doc. 26's futility analysis under Rule 15(a)(2) and consists primarily of
documentary evidence, tabulated records, and source references rather than legal argument.
Dated: February 14, 2026
Respectfully submitted,
/s/ Kevin N. Bass
Kevin N. Bass

31

Email: kbassphiladelphia@gmail.com
Phone: 512-333-4092
Pro Se Plaintiff
CERTIFICATE OF SERVICE
I certify that on February 14, 2026, I served this Response and Brief by the method of service
authorized by the Court and applicable rules on counsel for Defendants of record (if any have
appeared).
/s/ Kevin N. Bass
Kevin N. Bass

32