IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20015

Summary Calendar

LIZZIE YOUNG, 

 Plaintiff - Appellant

v.

CITY OF HOUSTON, 

 Defendant - Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:12-CV-3533

Before HIGGINBOTHAM, JONES and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:*

Lizzie Young appeals an order granting the City of Houston’s motion to 

dismiss Young’s 42 U.S.C. § 1983 action for damages and equitable relief. She 

also appeals the denial of post-judgment relief. We AFFIRM.

In October 2012, Young filed suit in Texas state court alleging that the 

City of Houston (the “City”) acted under the color of state law and violated her 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 13, 2015

Lyle W. Cayce

Clerk

 

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No. 14-20015

rights when it terminated her from a program to provide dental care. Young 

alleged that her income and age qualified her for a dental program funded by 

the state and administered by the City, and that termination violated her 

rights. Young was terminated when she would not agree to a treatment plan

developed after consultations with numerous dentists.

The City answered the complaint and then removed to federal court. 

Both parties consented to proceed before a magistrate judge. The magistrate 

judge granted the City’s motion to dismiss, finding that Young had not shown 

that the City had a policy, practice, or custom of violating her rights, or that 

Young had a private right of action cognizable under § 1983.1 The magistrate 

judge denied Young’s motion to vacate the dismissal and her motion to 

reconsider the denial. Young timely appealed.

We first address Young’s contention that dismissal pursuant to Rule 

12(b)(6) was void because the City had already filed its answer. We agree that 

12(b)(6) relief was unavailable here because the City’s motion was made after 

it had filed a responsive pleading. See Fed. R. Civ. P. 12(b); Jones v. Greninger, 

188 F.3d 322, 324 (5th Cir. 1999). However, a defense of failure to state a claim 

upon which relief can be granted may also be raised by a Rule 12(c) motion. 

See Fed. R. Civ. P. 12(h). We therefore construe the City’s motion as a Rule 

12(c) motion for judgment on the pleadings raising this defense. See Edwards 

v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).

Viewing the City’s motion as a 12(c) motion has no effect on our review, 

because a “motion for judgment on the pleadings under Rule 12(c) is subject to 

the same standard as a motion to dismiss under Rule 12(b)(6).” Doe v. 

1 The City brought its motion under Fed R. Civ. P. 12(b)(1), but the magistrate judge 

construed it as a 12(b)(6) motion to dismiss for failure to state a claim. The magistrate judge 

noted that the court has subject matter jurisdiction over § 1983 claims and the City had 

conceded jurisdiction when it removed the case to federal court.

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MySpace, Inc., 528 F.3d 413, 417 (5th Cir. 2008). We review the district court’s 

grant of judgment on the pleadings de novo. Id. We assess whether, accepting 

the factual allegations as true, the complaint states a plausible claim for relief. 

See id.

Young appeals the dismissal of her § 1983 claim.2 Section 1983 “provides 

a claim against anyone who, under color of state law, deprives another of his 

or her constitutional rights.” Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 452 

(5th Cir. 1994) (internal quotation marks and citations omitted). Section 1983 

applies to municipalities like the City of Houston, but municipalities are not 

liable under a theory of respondeat superior. See Bd. of Cnty. Com’rs. of Bryan 

Cnty., Okla. v. Brown, 520 U.S. 397, 403 (1997) (citing Monell v. New York City 

Dep’t of Social Servs., 436 U.S. 658, 690 (1978)). In order to state a claim 

against a municipality, a plaintiff must “identify a municipal ‘policy’ or ‘custom’

that caused the plaintiff’s injury.” Brown, 520 U.S. at 403. “Locating a ‘policy’ 

ensures that a municipality is held liable only for those deprivations resulting 

from the decisions of its duly constituted legislative body or of those officials 

whose acts may fairly be said to be those of the municipality.” Id. at 403–04.

Young’s complaint does not allege that the City had a policy or custom 

that caused Young’s injury. On the contrary, the complaint alleges that Young 

was injured despite policies in place to prevent injury. The complaint alleges 

that the City maintains policies to train its officials to serve the elderly 

population, to educate employees to protect elderly rights, and to ensure 

employees are qualified. Young alleges that her injury stemmed from City 

employees’ disregard of these city policies. Essentially, Young alleges that the 

2 To the extent Young appeals claims brought under other constitutional or statutory 

provisions, or against unnamed defendants, they are waived because Young does not raise or 

brief them on appeal. See Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 653 (5th 

Cir. 2004).

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City is liable because its employees did not abide by the City’s policies intended 

to ensure proper treatment of elderly persons. This respondeat superior claim 

is not cognizable under § 1983. See City of Canton, Ohio v. Harris, 489 U.S. 

378, 389 (1989); Piotrowski v. City of Houston, 51 F.3d 512, 517 (5th Cir. 1995)

(holding that plaintiff did not state a § 1983 claim when she alleged injury 

caused by actions of individual police officers, not by a city policy or custom).

In her brief on appeal, plaintiff attempts to recharacterize her injury as 

having been caused by the City’s policies, arguing that her injuries resulted 

from the City’s “custom” of permitting ill-trained and unknowledgeable 

employees to run the dental program. Our inquiry into whether Young has 

adequately stated a claim for relief is limited to the four corners of the 

complaint, and Young did not amend her complaint despite being given 

fourteen days to do so by the magistrate judge. See Spivey v. Robertson, 197 

F.3d 772, 774 (5th Cir. 1999). In any event, even Young’s brief confirms that 

she is attempting to impose liability based on respondeat superior; Young 

states that the City has acted “in total disregard of written policies.”3

Young also argues that the dismissal and denial of post-dismissal relief 

violated her due process rights. First, Young argues that the magistrate judge

erred by failing to ensure she had pled her “best case” before dismissing the 

complaint with prejudice. See Hale v. King, 642 F.3d 492, 503 (5th Cir. 2011).

Young’s argument is without basis because the magistrate judge did provide 

Young an opportunity to amend her complaint. Second, Young takes issue with 

the magistrate judge’s “sua sponte dismissal” of the complaint, but the 

3 Our policy of liberally construing pro se litigants’ complaints does not relieve Young 

from her obligation to state a claim for relief. See Taylor v. Books A Million, Inc., 296 F.3d 

376, 378 (5th Cir. 2002) (“[R]egardless of whether the plaintiff is proceeding pro se or is 

represented by counsel, conclusory allegations or legal conclusions masquerading as factual 

conclusions will not suffice to prevent a motion to dismiss.”) (internal quotation marks and 

citations omitted).

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magistrate judge did not act sua sponte. The City moved to dismiss for failure 

to state a claim, Young responded, and the magistrate judge granted the 

motion. Moreover, after dismissal, Young was afforded the opportunity to 

amend the complaint. Third, Young claims that the City’s filing of an answer 

guaranteed her a jury trial. But federal procedural rules apply to this action, 

and many rules—including Rules 12(c) and 56 of the Federal Rules of Civil 

Procedure—permit judgment as a matter of law. Fourth, the magistrate judge 

did not abuse her discretion by denying Young’s motions for post-judgment 

relief. Young’s due process rights were not violated.

For the foregoing reasons, we AFFIRM.

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