United States Court of Appeals

for the Fifth Circuit ____________

No. 22-30763

Summary Calendar

____________

Kendall Summers, 

Plaintiff—Appellant, 

versus

State of Louisiana, Louisiana Department of Health and Hospitals, as 

the political entity responsible for the Eastern Louisiana Mental Health System; 

Stephen Robert Russo, Doctor, 

Defendants—Appellees. 

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Appeal from the United States District Court 

for the Middle District of Louisiana

USDC No. 3:20-CV-21

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Before Davis, Smith, and Douglas, Circuit Judges.

Per Curiam:*

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* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

June 29, 2023

Lyle W. Cayce

Clerk

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Plaintiff-Appellant Kendall Summers, proceeding pro se,

1 appeals the 

district court’s dismissal of his complaint under Federal Rule of Civil 

Procedure 12(b)(1) for lack of Article III standing. We AFFIRM.

I. BACKGROUND

Summers is committed to the custody of the East Louisiana Mental 

Health System (“ELMHS”) in Jackson, Louisiana, after being adjudged not 

guilty by reason of insanity. Summers filed this action against the State of 

Louisiana, through the Department of Health (“LDOH”), and Courtney N. 

Phillips, the Secretary of the Louisiana Department of Health (collectively 

“Defendants”) alleging violations of Title II of the Americans with 

Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and Section 

1557 of the Patient Protection and Affordable Care Act. Summers seeks 

injunctive and declaratory relief requiring LDOH to develop a 

comprehensive outpatient treatment system in compliance with federal 

disability laws and to order LDOH to provide him with the reasonable 

accommodations he “may need to function in an outpatient basis.” 

Summers also seeks damages for the discriminatory harm already caused by 

LDOH. 

The district court consolidated Summers’ case for all purposes other 

than trial with substantively similar suits filed by seven other plaintiffs. 

Following consolidation, Defendants filed a superseding motion to dismiss 

plaintiffs’ claims for lack of jurisdiction and failure to state a claim. The 

district court granted Defendants’ motion to dismiss on the grounds that 

plaintiffs lacked standing to pursue their claims. The court gave plaintiffs 

twenty-eight days to amend their complaints to cure the deficiencies 

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1 Although Summers is pro se on appeal, he was represented by counsel throughout 

the proceedings in the district court. 

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identified in its judgment. Summers did not file a third amended complaint 

to cure these deficiencies. He did, however, timely appeal the court’s 

judgment of dismissal.

II. DISCUSSION

We review de novo a district court’s Rule 12(b)(1) dismissal for lack of 

standing.2 The party invoking federal jurisdiction has the burden of proof to 

show standing.3

 “To establish Article III standing, a plaintiff must show 

(1) an injury in fact, (2) a sufficient causal connection between the injury and 

the conduct complained of, and (3) a likel[ihood] that the injury will be 

redressed by a favorable decision.”4

Liberally construed,5 Summers’ brief on appeal (1) challenges the 

district court’s consolidation of his case with seven other plaintiffs, and (2) 

reasserts his arguments on standing. As to Summers’ assertion that the 

pretrial consolidation of his case violated his due process rights, we note that 

he did not raise this objection before the district court. Instead, in response 

to Defendants’ motion to consolidate, plaintiffs, including Summers, stated 

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2 Cornerstone Christian Sch. v. Univ. Interscholastic League, 563 F.3d 127, 133 (5th 

Cir. 2009).

3 Crane v. Johnson, 783 F.3d 244, 251 (5th Cir. 2015).

4 Id. (internal quotation marks and citation omitted).

5 Defendants assert that because Summers did not identify any error in the district 

court’s judgment, he has abandoned his appeal. However, as recognized by Defendants, 

Summers’ brief on appeal does include arguments from his district court brief in opposition 

to Defendants’ motion to dismiss for lack of standing. Accordingly, in light of Summers’ 

pro se status and the need to construe his filings liberally, we find that Summers has not 

abandoned his appeal. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (noting 

that “[a] document filed pro se is to be liberally construed” (internal quotation marks and 

citation omitted)).

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that they did not oppose consolidation for purposes of “briefing legal issues 

and discovery.” Accordingly, Summers’ consolidation argument is waived.6

Additionally, the district court correctly concluded that Summers 

lacks standing to pursue his claims against Defendants for damages, 

injunctive, and declaratory relief. “At the pleading stage, allegations of 

injury are liberally construed,” but allegations of injury that are “merely 

conjectural or hypothetical do not suffice to confer standing.”7

 Although 

Summers asserts that he has “stated a claim for monetary relief,” he does 

not challenge the district court’s conclusion that he failed to allege a prior 

injury that is fairly traceable to the conduct of the Defendants. Specifically, 

Summers does not allege that he was previously eligible for community-based 

treatment but was denied the opportunity to participate because of 

Defendants’ failure to develop and implement a community-based program. 

Instead, Summers appears to argue that he was injured by his unlawful 

detention at ELMHS. However, Defendants lack the power to release 

Summers absent a court order. Accordingly, to the extent Summers has 

alleged a prior injury, such injury is not “fairly traceable” to Defendants’ 

challenged actions.8

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6 See Keelan v. Majesco Software, Inc., 407 F.3d 332, 339-40 (5th Cir. 2005) (“If a 

party wishes to preserve an argument on appeal, the party must press and not merely 

intimate the argument during the proceedings before the district court. An argument must 

be raised to such a degree that the district court has an opportunity to rule on it.” (internal 

quotation marks and citation omitted)).

7 Little v. KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009) (citations omitted).

8 See Lujan v. Defs. of Wildlife, 504 U.S. 555, 506 (1992) (emphasizing that a 

plaintiff’s injury must be fairly traceable to the conduct of the defendant and not the result 

of “the independent action of some third party not before the court” (internal quotation 

marks and citation omitted)); Little, 575 F.3d at 540 (“A claim of injury generally is too 

conjectural or hypothetical to confer standing when the injury’s existence depends on the 

decisions of third parties not before the court.”).

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Summers’ appeal brief also lacks any argument challenging the district 

court’s dismissal of his injunctive and declaratory relief claims. In seeking 

injunctive relief, a plaintiff’s injury must be more than speculative, it must be 

“certainly impending.”9 As explained by the district court, because 

Summers does not allege that he is currently (or will be imminently) qualified 

for community-based placement, any future injury from Defendants’ alleged 

lack of a community-based treatment program is hypothetical and 

speculative. Thus, Summers has not alleged an injury-in-fact sufficient to 

confer standing to pursue his claims for declaratory and injunctive relief.

Accordingly, the district court’s dismissal for lack of standing is 

AFFIRMED.

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9 Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013).

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