IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20571

PROVIDENCE BEHAVIORAL HEALTH; TEXAS PROVIDENCE 

INVESTMENTS,

Plaintiffs - Appellants Cross-Appellees,

v.

GRANT ROAD PUBLIC UTILITY DISTRICT, ROBERT KRZESZKIEWICZ, 

in his official capacity; WILLIAM ROCK, in his official capacity; JACK SCOTT, 

in his official capacity; JOHN ONEACRE, in his official capacity; THOMAS 

BREEDLOVE, in his official capacity,

Defendants - Appellees Cross-Appellants

BOARD OF DIRECTORS OF THE GRANT ROAD PUBLIC UTILITIES 

DISTRICT,

Defendant - Appellee

Appeals from the United States District Court

for the Southern District of Texas

Before STEWART, Chief Judge, and JONES and ENGELHARDT, Circuit 

Judges.

CARL E. STEWART, Chief Judge:

Providence Behavioral Health (“Providence Health”) and Texas 

Providence Investments (“Providence Investments”) (collectively, 

“Providence”) brought this lawsuit against Grant Road Public Utility District, 

the Board of Directors of the Grant Road Public Utility District (“Grant Road 

United States Court of Appeals

Fifth Circuit

FILED

August 28, 2018

Lyle W. Cayce

Clerk

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Board”), and Grant Road Board members, Robert Krzeszkiewicz 

(“Krzeszkiewicz”), William Rock (“Rock”), Jack Scott (“Scott”), John Oneacre 

(“Oneacre”), and Thomas Breedlove (“Breedlove”), in their official capacities

(collectively, “Grant Road”) after Grant Road denied water, drainage, and 

septic services to Providence’s intended psychiatric facility. Providence 

believes improper, discriminatory motives played a role in Grant Road’s 

decision to deny Providence access to water, drainage, and septic services. 

Providence contends that Grant Road’s actions constituted violations of the

Americans with Disabilities Act (“ADA”), federal Fair Housing Act (“FHA”), 

and Texas Fair Housing Act (“TFHA”).

Following a three-day bench trial, where both parties presented evidence 

relating to whether there were discriminatory motives underlying Grant 

Road’s decision, the district court issued findings of fact and conclusions of law 

to support its judgment dismissing Providence’s claims. On appeal, Providence 

asserts that the district court erroneously concluded that Grant Road’s denial 

decision was not discriminatory. For the reasons set out below, we AFFIRM

the district court’s judgment.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

a. Factual Background

The issues in this case revolve around Providence’s application to Grant 

Road seeking annexation for its Providence Health facility to obtain water, 

drainage, and septic services. After all, without water, drainage, and sewage 

capabilities, the Providence Health facility cannot function as it should.

1. Providence Investments and Providence Health

Providence Investments owns a 12.9 acre tract of land in Cypress, Texas 

where it currently is constructing a facility that will be operated by Providence 

Health. The facility is intended to be a for-profit mental health treatment 

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center for patients under eighteen years of age who have mental health 

diagnoses, including autism spectrum disorder, bipolar disorder, and 

schizophrenia. Dr. Luis Valdes (“Dr. Valdes”) and Dr. Javier Ruiz (“Dr. Ruiz”) 

are expected to lead operations of the Providence Health facility. The 

Providence Health facility aims to provide more than just outpatient 

psychiatric care for its patients. One of the featured aspirations for the facility 

is to create a home-like atmosphere where patients have the option to live at 

the facility for up to a year’s time, if necessary. 

2. Grant Road and the Annexation Process

At its core, Grant Road is a water well and distribution system, and a 

sewer collection and treatment system. The mission of Grant Road is to provide 

water, septic, and drainage services to properties within the boundaries of its 

district. Grant Road is funded by water and sewage revenues and ad valorem 

taxes from properties within Grant Road’s district. If a piece of property 

outside of Grant Road’s district boundaries wishes to come under the umbrella 

of services that Grant Road provides, then the land developer or representative

for the property must request annexation of the property by Grant Road. 

Specifically, “annexation” is bringing into Grant Road’s water district a 

property that lies outside of Grant Road’s district boundaries for purposes of 

providing utility services to that property. Typically, Grant Road has no

obligation to provide annexation to property outside of Grant Road’s

jurisdictional boundaries. The Grant Road Board, a five-person elected board 

of directors, governs the Grant Road Public Utility District and is centrally 

involved in the annexation decision-making process. 

3. Grant Road’s Refusal to Annex Providence’s Facility

In the summer of 2009, Providence hired Steven Grossman (“Grossman”) 

as a project architect to assist with the building process for the Providence 

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Health facility. At the bench trial, Grossman testified that before Grant Road’s 

annexation denial in 2014, he had never been connected to a building project 

that resulted in an annexation denial by a public utility district. Grossman 

contacted Grant Road so that the topic of annexation for the Providence Health 

facility could be placed on the agenda for the Grant Road Board meeting for 

October 2009. At the October 2009 meeting, Grossman presented to the Grant 

Road Board full-scale drawings, features, and general dimensions of the 

Providence Health facility. At trial, Grossman described that the Grant Road 

Board members “were interested” and he thought the reaction to the 

presentation “was absolutely favorable.” In February 2010, Grant Road sent a 

letter to Providence noting its preliminary approval of the annexation for the 

Providence Health facility and advising Providence of the additional 

requirements Providence needed to satisfy to complete the process. 

This included paying a customary deposit to Grant Road, projected to be 

$7,500. However, delays in the construction project due to financing issues, 

and professional challenges for the operators of the Providence Health facility, 

caused the 2009–10 annexation process to be derailed and later terminated by 

Providence. 

In the summer of 2014, Providence again set the annexation process in 

motion for its Providence Health facility. Grossman’s expectation for this new 

annexation proposal for the Providence Health facility was “the same song, 

second verse” ending with Providence obtaining approval for annexation. This 

time around, though, the building project included some new features not 

present when Providence submitted the 2009–10 annexation proposal. For 

example, the building project proposal from 2009–10 entailed a twenty-four 

bed facility that was expandable to accommodate thirty-two beds. In contrast, 

the new 2014 annexation proposal for the facility was proposed as a thirty-six 

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bed facility able to expand to accommodate fifty-two beds. The additional beds 

added to the facility increased the amount of service units for the facility from 

twenty-seven to thirty-one.1

In September 2014, Grossman, accompanied by Dr. Valdes as one of the 

principal operators for the facility, presented to the Grant Road Board once 

more, requesting that the Providence Health facility be annexed. Grossman 

testified at the bench trial that, although the 2014 annexation presentation 

was more extensive than the 2009–10 annexation presentation that received

preliminary approval, the Grant Road Board was “hostile” to the 2014 

presentation, and he and Dr. Valdes received little questioning from the board 

members. Grossman described that “the members would turn their back on the 

presentation. Some would look out the window. They were . . . disinterested in 

entertaining our proposal whatsoever or had prejudged the case or something 

to that effect.” Grossman went on to articulate that the Grant Road Board 

asked no questions about tax abatements, project history, investors, or 

financing. The Grant Road Board did, however, ask questions about the 

individuals anticipated to receive mental health treatment at the Providence 

Health facility. 

Providence’s hopes to achieve preliminary approval for annexation were 

soon dashed. After Grossman and Dr. Valdes presented to the Grant Road

Board at the September 2014 meeting, the Grant Road Board met and 

unanimously voted against annexation for the Providence Health facility. The 

Grant Road Board did not state any specific reasons for its rejection of the 

annexation request. Testimony from board members Scott and Krzeszkiewicz 

at the bench trial revealed that over a thirty-year period, out of the 

 

1 Service units are a calculation metric utilized by Grant Road to estimate usage of 

water in gallons per day for the facility. 

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approximately twelve to fifteen annexation requests that the Grant Road 

Board received, annexation had only been denied on two other occasions.

At the bench trial, Grant Road Board members testified about why they 

voted to reject the annexation request, focusing on financial implications posed 

by annexing the property. Particularly, board members explained they were 

concerned that tax abatements for the facility would ultimately impact the 

revenue of the district. The Grant Road Board believed that medical facilities 

are usually one of the types of facilities able to get tax abatements. Testimony 

from the bench trial further revealed that a high-end residential development 

annexed into the Grant Road district was projected to produce more revenue 

to the Grant Road tax base than a single facility, like the Providence Health 

facility. Additionally, the Providence Health facility was said to have other 

feasible avenues for obtaining water and sewage, such as obtaining a well and 

septic system permit or a Texas Commission on Environmental Quality permit 

for an onsite sewage and wastewater treatment plant. At a subsequent 

November 2014 Grant Road Board meeting, the Grant Road Board reheard a 

presentation from Providence and declined to reconsider its decision to deny 

annexation for the facility. 

Providence asserts that Grant Road is using financial concerns as a 

pretext for the actual discriminatory reasons underlying the decision against 

annexation. Prior to the November 2014 board meeting, Grant Road’s retained 

attorney, who functionally served as Grant Road’s general counsel at the time,

received an email from Providence threatening to sue Grant Road for 

discrimination because of the annexation denial. Attached to the email was a 

draft complaint where Providence alleged claims for violations of the ADA, 

FHA, and TFHA. Providence learned that there was possibly community 

pressure driven by a prominent local commercial real estate developer, urging

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the Grant Road Board to reject annexation for the Providence Health facility 

because it would treat youths suffering from various mental illnesses. 

Providence further alleged that community members raised concerns that the 

Providence Health facility would create a negative public perception of the 

community and decrease property values. Additionally, after the annexation 

denial, Dr. Valdes called Grant Road’s attorney, who indicated that the Grant 

Road Board had recently been through a contested election process and was 

sensitive to the community’s scrutiny. Grant Road’s attorney further allegedly 

expressed that the Grant Road Board was facing an upcoming bond election 

and needed the community’s support to vote for additional bonds to serve other 

developments that had been brought into Grant Road’s district.

As an alternative to Grant Road approving annexation, Providence 

applied to the Harris County Engineering Department for permits for a well 

and septic system. Providence only succeeded in receiving a permit for a well 

system. Because a septic system permit is necessary for the Providence Health 

facility to be operational, Providence applied to the Texas Commission of 

Environmental Quality for a permit to operate a sewage wastewater treatment 

plant at the facility, called a “package plant.” At oral argument, Providence 

explained that it recently obtained a permit from the Texas Commission of 

Environmental Quality to operate a package plant at the Providence Health 

facility. However, operating a package plant at the Providence Health facility 

would drastically change Providence’s design for the building project. 

Providence alleges that the inability to obtain wastewater treatment from 

Grant Road has stymied the construction of the Providence Health facility.

b. Procedural History

After Grant Road’s denial of the annexation request, Providence filed 

this lawsuit in March 2015. Providence alleged that the Grant Road Public 

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Utility District, Krzeszkiewicz, Rock, Scott, Oneacre, and Breedlove in their 

official capacities, and the Grant Road Board, violated the ADA, FHA, TFHA, 

and Fourteenth Amendment by denying annexation for the Providence Health 

facility. Providence sought injunctive relief to compel Grant Road to annex the 

facility. 

In August 2017, after a bench trial addressing the merits of Providence’s 

claims, the district court entered judgment in favor of Grant Road. 

The district court held that Providence failed to prove its ADA, FHA, TFHA, 

and Fourteenth Amendment claims, and denied Providence’s request for 

injunctive relief. Providence timely appealed.

II. DISCUSSION

On appeal, Providence asserts that the district court erred in holding 

Providence failed to prove its claims. Particularly, Providence argues that it 

proved by a preponderance of the evidence that Grant Road: (1) intentionally 

discriminated against it in violation of the ADA, FHA, and TFHA; and (2) 

denied it reasonable accommodations in violation of the ADA and FHA.2 Grant 

Road subsequently cross appealed, asserting that the district court erred by 

failing to hold that Grant Road was entitled to recover reasonable and 

necessary attorneys’ fees from Providence.

a. Standard of Review for Providence’s Claims 

“The standard of review for a bench trial is well established: findings of 

fact are reviewed for clear error and legal issues are reviewed de novo.” Coe v. 

 

2 On appeal, Providence does not raise any arguments relating to its Fourteenth 

Amendment claim. Thus, the issue is waived. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th 

Cir. 1994) (“An appellant abandons all issues not raised and argued in its initial brief on 

appeal . . . A party who inadequately briefs an issue is considered to have abandoned the 

claim.”).

Moreover, because of the similarities between the ADA, FHA, and TFHA, this opinion

will address the claims relating to these statutes collectively. The slight differences in the 

respective statutes do not impact the analysis for this case.

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Chesapeake Exploration, L.L.C., 695 F.3d 311, 316 (5th Cir. 2012); see also Fed. 

R. Civ. P. 52(a)(6). A finding made by the district court “is clearly erroneous 

when although there is evidence to support it, the reviewing court on the entire 

evidence is left with the definite and firm conviction that a mistake has been 

committed.” Guzman v. Hacienda Records & Recording Studio, Inc., 808 F.3d 

1031, 1036 (5th Cir. 2015) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 

573 (1985)). Put differently, “[a] finding is clearly erroneous if it is without 

substantial evidence to support it, the court misinterpreted the effect of the 

evidence, or this court is convinced that the findings are against the 

preponderance of credible testimony.” Petrohawk Prop., L.P. v. Chesapeake 

Louisiana, L.P., 689 F.3d 380, 388 (5th Cir. 2012). Moreover, when the findings 

of fact by the district court are largely based on the credibility of individuals 

testifying at trial, “the reviewing court must give due regard to the trial court’s 

opportunity to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6); see also 

Thomas v. Napolitano, 542 F. App’x 316, 320 (5th Cir. 2013) (unpublished). 

“[F]or only the trial judge can be aware of the variations in demeanor and tone 

of voice that bear so heavily on the listener’s understanding of and belief in 

what is said.” Anderson, 470 U.S. at 575 (citing Wainwright v. Witt, 469 U.S. 

412, 428 (1985)).

b. Grant Road’s Eleventh Amendment Sovereign Immunity 

Defense

Grant Road argues that it is incapable of being sued in federal court 

because it is an instrumentality of the state of Texas and, therefore, protected 

by Eleventh Amendment sovereign immunity.3 See Cozzo v. Tangipahoa Par. 

Council—President Gov’t, 279 F.3d 273, 280–81 (5th Cir. 2002) (“When a state 

agency is the named defendant, the Eleventh Amendment bars suits for both 

 

3 Grant Road raised this argument before the district court and, therefore, preserved 

it on appeal. 

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money damages and injunctive relief unless the state has waived its 

immunity.”). Providence does not challenge Grant Road’s assertion that it is 

an instrumentality of the state. Regardless, this court has a duty to analyze its 

own jurisdiction de novo. See Smith v. Booth, 823 F.2d 94, 96 (5th Cir. 1987).

And after reviewing the record, we are persuaded that Grant Road does not 

enjoy Eleventh Amendment sovereign immunity because it is a local 

government entity, not an instrumentality of the state of Texas.

While instrumentalities of the state enjoy sovereign immunity, “the 

Eleventh Amendment does not extend its immunity to units of local 

government.” Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 369 

(2001). To determine whether a unit of government belongs to state or local 

government, we employ the six-factor test developed in Clark v. Tarrant Cty., 

Tex., 798 F.2d 736 (5th Cir. 1986). The six factors are:

1. Whether the state statutes and case law view the agency as an 

arm of the state;

2. The source of the entity’s funding;

3. The entity’s degree of local autonomy;

4. Whether the entity is concerned primarily with local as opposed 

to statewide, problems;

5. Whether the entity has the authority to sue and be sued in its 

own name; and

6. Whether the entity has the right to hold and use property.

Hudson v. City of New Orleans, 174 F.3d 677, 681 (5th Cir. 1999).

The goal of this test is to determine “whether the suit is in reality a suit 

against the state itself.” Id. at 682 (quoting Laje v. R.E. Thomason Gen. Hosp., 

665 F.2d 724, 727 (5th Cir. 1982)). Though the test is not necessarily precise, 

it helps us “balance the equities and determine as a general matter” how the 

entity should be classified. Id.

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Applying our six-factor test, we are convinced, on balance, that Grant 

Road is not an instrumentality of the state. First, while Grant Road was 

created under the auspices of state law, this fact proves too much—“every 

entity claiming Eleventh Amendment immunity is a ‘creature’ of some state 

law.” Sw. Bell Tel. Co. v. City of El Paso, 243 F.3d 936, 939 (5th Cir. 2001). 

Second, and most importantly, Grant Road’s funding comes from its own 

revenue, as well as local taxes and fees, all of which are independent of the 

Texas state treasury. Williams v. Dall. Area Rapid Transit, 242 F.3d 315, 320 

(5th Cir. 2001) (holding that the second factor—source of funds—is “the most 

important one”). Third, Grant Road is generally autonomous because its 

members are locally elected, not appointed by state officials. While Grant Road 

is “subject to oversight” by the Texas Commission on Environmental Quality, 

such oversight does not necessarily amount to meaningful state control. Cf. id.

at 321 (finding periodic state audits to undermine only slightly a local entity’s 

autonomy). Fourth, Grant Road is tasked with regulating water and 

controlling soil pollution, both of which are functions of statewide interest 

according to the Texas Supreme Court. Bennett v. Brown Cty. Water Imp. Dist. 

No. 1, 272 S.W.2d 498, 502–03 (1954). The fifth and sixth factors—Grant 

Road’s authority to sue and be sued in its own name and its right to hold and 

use property—both suggest Grant Road is a local entity. 

In sum, these factors, including the important source-of-funding factor, 

indicate, on the whole, that Grant Road is a local entity and, therefore, not 

entitled to sovereign immunity.

c. Providence’s Intentional Discrimination Claims

Providence argues that deference to the trial court is not automatic and 

that the district court’s conclusion that there was no discrimination was 

unsupported by any evidence presented during the bench trial. Moreover, 

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Providence contends that it proved discrimination by showing that Grant Road 

had animosity towards Providence Health’s potential psychiatric clients and 

that community pressure influenced the Grant Road Board’s decision. We 

disagree. After allowing both sides to present evidence to support their 

respective positions during a three-day bench trial, the district court rested its 

conclusion on testimony from Grant Road Board members who stated that they 

based their decision on financial considerations rather than on the disabilities 

of the potential patients of Providence. 

The ADA, FHA, and TFHA all prohibit governmental entities from 

discriminating against individuals with disabilities. See 42 U.S.C. § 12132 

(Title II of the ADA states “no qualified individual with a disability shall, by 

reason of such disability, be excluded from participation in or be denied the 

benefits of the services, programs, or activities of a public entity, or be subject 

to discrimination by any such entity”); 42 U.S.C. § 3604(f)(1) (the FHA makes 

it unlawful “to discriminate in the sale or rental, or to otherwise make 

unavailable or deny, a dwelling to any buyer or renter because of a handicap”); 

Tex. Prop. Code Ann. § 301.025 (the TFHA makes it unlawful to “discriminate 

in the sale or rental of, or make unavailable or deny, a dwelling to any buyer 

or renter because of a disability”). To establish intentional discrimination 

based on a disability, Providence must prove by a preponderance of the 

evidence: “(1) that [Providence’s potential patients have] a qualifying 

disability; (2) that [Providence] is being denied the benefits of services, 

programs, or activities for which the public entity is responsible, or is otherwise 

discriminated against by [Grant Road]; and (3) that such discrimination is by 

reason of [Providence’s potential patient’s] disability.” Doe v. ColumbiaBrazoria Indep. Sch. Dist. by & through Bd. of Trs., 855 F.3d 681, 690 (5th Cir. 

2017) (citing Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011)).

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Despite Providence’s arguments, the district court found the testimony 

supporting Grant Road’s position to be more convincing. Here, based on its

factual findings, the district court determined that Providence failed to carry 

its burden in proving that Grant Road discriminated against Providence. After 

Grant Road presented evidence, the district court found that the Grant Road 

Board considered the value of the building project, the demand on the current 

utility system, and the value that the Providence Health facility building 

project would add to Grant Road’s district. Importantly, when asked during 

the bench trial, “with respect to the population of the patients, did that issue 

play a role in your part to deny annexation?” Krzeszkiewicz replied, “No.” 

Similarly, when Scott was asked, “did you have any reaction to the fact that 

the facility was going to be a psychiatric care facility?” Scott responded, “No.” 

The testimony of Krzeszkiewicz and Scott also provided support for the 

financial reasons that Grant Road pointed to for the annexation denial.

Krzeszkiewicz, a retired accountant and Grant Road Board member for thirty 

years, testified during the bench trial that he considered financial implications, 

such as what the value of the property is and what value that the annexation 

adds to the current tax base when making the annexation decision. 

Krzeszkiewicz explained that if the entity fails, Grant Road “would possibly be 

left holding the bag for any construction costs for the infrastructure as well as 

a loss of revenue to [Grant Road’s] tax base.” Similarly, Scott, a Grant Road 

Board member for over forty years, articulated that if the Providence Health 

facility building project failed, Grant Road would not have had any way to 

recoup the costs of running the pipes for the water and sewage services to the 

Providence Health facility. Since Providence was not as experienced with 

developing land, the Grant Road Board projected a higher possible likelihood 

that the Providence Health building project would fail.

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In relation to Providence’s presentation to the Grant Road Board, 

Krzeszkiewicz explained that the presentation from Providence was also 

“poorly developed” and he “would expect that the plaintiff would have done 

more homework as far as going to the board, providing some . . . financial 

information.” Moreover, Scott noted that the presentation to the Grant Road 

Board was poorly developed because financial information relating to water 

usage and return on investment for the construction project was missing. 

Grant Road also cited tax abatements for the Providence Health facility

as a reason for how annexation could decrease the amount of revenue 

contributed to the tax base. Scott testified that the main reason for his decision 

against annexation of the Providence Health facility was because “[t]here just 

wasn’t going to be enough tax return.” Scott stated that although he did not 

ask questions relating to tax abatements during the September 2014 Grant 

Road Board meeting, he realized that the Providence Health facility would 

likely receive tax abatements which bring down the taxable value. 

All of the evidence of discrimination presented by Providence was based 

on speculation rather than actual proof of Grant Road’s discriminatory 

motives. Providence presented evidence attempting to show that a combination 

of events involving community pressure, politics, and lack of questioning 

proved Grant Road discriminated. Providence highlights that Grant Road’s 

discriminatory motives were displayed when the Grant Road Board only 

primarily asked about the population of psychiatric patients intended to be

treated at the facility when evaluating whether to approve annexation. 

Testimony from Grant Road’s attorney also revealed that he speculated to Dr. 

Valdes that reasons for the Grant Road Board’s annexation denial could be 

attributed to the negative perception a mental health facility created for the 

community. Providence presented evidence that a local real estate developer 

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contacted the Grant Road Board and allegedly later spread negative 

information about a mental health facility being present in the community. 

Grant Road’s attorney further speculated that the annexation decision might 

have been swayed by politics within the Grant Road Board positioning for a 

favorable bond election vote in November 2014. All of the reasons provided by 

Providence, however, only speculatively point to possible discriminatory

motives.

During the bench trial, Providence presented its theory for why there 

was discrimination by Grant Road, and alternatively Grant Road presented its

theory for why the annexation request was denied. Considering the evidence 

presented by Providence and Grant Road, the district court then made findings 

of fact and concluded that Providence failed to carry its burden to prove its 

discrimination claims. Simply put, the district court gave Providence every 

opportunity to make its case and Providence failed to do so. “[W]hen a trial 

judge’s finding is based on his decision to credit the testimony of one of two or 

more witnesses, each of whom has told a coherent and facially plausible story 

that is not contradicted by extrinsic evidence, that finding, if not internally 

inconsistent, can virtually never be clear error.” Anderson, 470 U.S. at 575; see 

also Thomas, 542 F. App’x at 320 (“[T]he reviewing court must give due regard 

to the trial court’s opportunity to judge the witnesses’ credibility . . . for only 

the trial judge can be aware of the variations in demeanor and tone of voice 

that bear so heavily on the listener’s understanding of and belief in what is 

said.”). Thus, the district court did not commit reversible error when

dismissing Providence’s intentional discrimination claims under the ADA, 

FHA, and TFHA.

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d. Providence’s Reasonable Accommodation Claims

Providence lodges the claim that Grant Road failed to provide a 

reasonable accommodation to Providence and its potential patients because 

the facility was denied access to water, drainage, and septic services. 

Providence asserts that even though access to utilities did not negate the 

disabilities of the potential patients that Providence planned to treat at the 

facility, the access to sewage and water constituted a reasonable 

accommodation for individuals who had mental illness to have access to the

local community.

To prove its reasonable accommodation claims under the ADA, 

Providence was required to show by a preponderance of the evidence that: “(1) 

[Providence’s potential patients are] qualified individual[s] with a disability; 

(2) the disability and its consequential limitations were known by [Grant 

Road]; and (3) [Grant Road] failed to make reasonable accommodations for 

such known limitations.” See Jin Choi v. Univ. of Tex. Health Sci. Ctr. of San 

Antonio, 633 F. App’x 214, 215 (5th Cir. 2015) (per curiam) (unpublished)

(citing Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242, 247 (5th Cir. 2013)); see 

also 42 U.S.C. § 12131(2). Under the FHA, a public entity engages in a 

discriminatory practice if it refuses to make a “reasonable accommodation” to 

“rules, policies, practices or services when such accommodation may be 

necessary to afford [a disabled person] equal opportunity to use and enjoy a 

dwelling.” 42 U.S.C. § 3604(f)(3)(B). Reasonable accommodation claims under 

the FHA and ADA both require that a reasonable accommodation be provided 

to the plaintiffs if necessary to allow the plaintiffs to have usage and enjoyment

in a facility equivalent to individuals who are not disabled.

Here, providing water, drainage, and septic services has no relation to 

accommodating the expected disabilities of the patients planned to be treated 

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at the Providence Health facility. Contrary to Providence’s argument that the 

district court neglected to address the reasonable accommodation issues, the 

district court found “[i]rrespective of whether the [Providence Health facility] 

was to be developed into a psychiatric hospital, an office building, or a condo 

development, it would need water and wastewater services . . . The need for 

water and wastewater is not unique to the fact that the [Providence Health 

facility] will be a psychiatric facility.” Importantly, the failure to provide 

sewage and water services to the Providence Health facility did not create a 

situation where disabled individuals had an unequal ability to use and enjoy

the facility compared to individuals who do not have a disability. See 42 U.S.C. 

§ 3604(f)(3)(B); 42 U.S.C. § 12131(2). 

Moreover, Providence’s theory that Grant Road failed to make 

reasonable accommodations under the ADA and FHA for the facility is 

unsupported. Providence does not cite to a case from this circuit or any other 

circuit which supports that the denial of utilities for a facility intended to serve 

disabled individuals amounts to a reasonable accommodation claim. 

Accordingly, the district court did not err when it dismissed the reasonable 

accommodation claims raised by Providence. See, e.g., Good Shepherd Manor 

Found., Inc. v. City of Momence, 323 F.3d 557, 562 (7th Cir. 2003) (“The whole 

purpose behind the FHA[] and ADA reasonable accommodation provisions is 

to prohibit local governments from applying land use regulations in a manner 

that will . . . give disabled people less opportunity to live in certain 

neighborhoods than people without disabilities . . . . Cutting off water prevents 

anyone from living in a dwelling, not just handicapped people, and therefore 

the prohibitions found in the FHA[] and the ADA do not apply to this case.”)

(quotation marks and citation omitted).

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e. Grant Road’s Cross Appeal for Attorneys’ Fees

The ADA and FHA authorize the court in its discretion to award 

attorneys’ fees to a “prevailing party.” See 42 U.S.C. § 12205 (“[T]he court . . . 

in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee, 

including litigation expenses, and costs.”); 42 U.S.C. § 3613(c) (“[T]he court, in 

its discretion, may allow the prevailing party . . . a reasonable attorney’s fee 

and costs.”). In Christiansburg Garment Co. v. Equal Employment Opportunity 

Commission, the Supreme Court established that a prevailing defendant may 

not receive attorneys’ fees “unless a court finds that [the plaintiff’s] claim was 

frivolous, unreasonable, or groundless, or that the plaintiff continued to 

litigate after it clearly became so.” 434 U.S. 412, 422 (1978). “In contrast to 

prevailing plaintiffs in civil rights actions, who should ordinarily recover an 

attorney’s fee unless special circumstances would render such an award unjust

. . . prevailing defendants may receive fees.” Vitale v. Ga. Gulf Corp., 82 F. 

App’x 873, 876 (5th Cir. 2003) (emphasis in original) (quotation marks and 

citation omitted) (unpublished) (citing Christiansburg Garment Co., 434 U.S. 

at 422).

Grant Road argues that because it was clear throughout the litigation 

that Providence had not suffered irreparable harm, the district court erred by 

not finding Providence’s claims to be “frivolous, unreasonable, or groundless, 

or that [Providence] continued to litigate the case after it clearly became so.” 

See Christiansburg Garment Co., 434 U.S. at 422. Grant Road additionally 

asserts that it never actually moved for attorneys’ fees as required by Federal 

Rule of Civil Procedure 54(d)(2) because the district court never found Grant 

Road to be a “prevailing party” under the FHA and ADA. Grant Road’s 

arguments for attorneys’ fees are unavailing. Even if Grant Road was correct 

in asserting that the district court erred by failing to find Grant Road to be a 

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No. 17-20571

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“prevailing party,” Providence’s lawsuit against Grant Road is not frivolous, 

unreasonable, or groundless. 

“Here, the district court issued its final ruling only after a contested 

bench trial where both parties presented a case—a fact that weighs against a 

finding of frivolousness.” Braud v. Spell, 667 F. App’x 443, 444 (5th Cir. 2016) 

(per curiam) (unpublished). First, the district court had a preliminary 

injunction hearing where the district court addressed the necessary elements 

for Providence to receive injunctive relief, including whether Providence would 

suffer irreparable harm if the injunction were to be denied. Later at the bench 

trial, the parties continued to debate whether Providence acquiring a well and 

septic system permit from the Harris County Engineering Department or a 

permit from the Texas Commission on Environmental Quality for a package

plant at the Providence Health facility was a viable form of alternative relief. 

Thus, the district court did not abuse its discretion when it declined to hold 

that Grant Road was entitled to attorneys’ fees. See Vitale, 82 F. App’x at 876 

(holding the district court did not abuse its “sound discretion” in denying the 

prevailing defendant attorneys’ fees that the defendant sought in connection 

with the district court’s grant of its motion for judgment as a matter of law 

dismissing the plaintiff’s ADA claims).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment 

dismissing Providence’s claims and denying Grant Road attorneys’ fees.

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