UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

LUISA LUPI AND EVA LUPI,

Plaintiffs

v.

TIMOTHY DIVEN, JAIME VON 

SELTMANN, ROCKY REEVES, 

MICHAEL GUETZKE, LAUREN 

VILLARREAL, JERRY FLOYD, EWA 

WEGNER, ALAN SCHWETTMANN, 

JOSHUA VISI, MICHAEL LEWIS 

KING, BRIAN ROBINSON, THOMAS 

HORN, JOSEPH LUCAS, ELIZABETH 

GLIDDEN, MCKENNA KUHR, 

TIMOTHY HEDRICK, STEVE WHITE,

AND CITY OF AUSTIN,

Defendants

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Case No. 1:20-CV-207-RP

ORDER AND REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE ROBERT PITMAN

 UNITED STATES DISTRICT JUDGE

Before the Court are Plaintiffs’ Motion to Compel Defendants Elizabeth Glidden and 

McKenna Kuhr to Comply with Federal Pleading Requirements (Dkt. 43);1 Defendants’ Rule

12(b)(1) Motion to Dismiss (Dkt. 44); Defendant City of Austin’s Motion to Dismiss under Rule 

12(b)(6) (Dkt. 45); Individually Named City Defendants’ 12(b)(6) Motion to Dismiss (Dkt. 46); 

and the parties’ various response and reply briefs. On September 10, 2020, the District Court 

referred the motions to the undersigned for resolution and for Report and Recommendation,

pursuant to 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72, and Rule 1 of Appendix C 

of the Local Rules of the United States District Court for the Western District of Texas.

1 Pro se Defendants Glidden and Kuhr’s Answers comply with the Federal Rules of Civil Procedure. 

Accordingly, Plaintiffs’ Motion to Compel (Dkt. 43) is DENIED. 

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I. General Background

A. Facts

In 2011, Luisa Lupi and her sister Eva Lupi (“Plaintiffs”) purchased a home at 6837 Auckland 

Drive in Austin, Texas. Plaintiffs allege that since then, they have “lawfully exercised their 

constitutional rights to own pets and quietly live with their pets on their property.” Plaintiffs’ First 

Amended Complaint, Dkt. 33 ¶ 2. Plaintiffs allege that Luisa suffers from dyslexia and a mild 

speech impediment, but does not have a mental illness or intellectual disability. Id. ¶ 12. 

In September 2017, Defendant Elizabeth Glidden moved into the house next door to Plaintiffs. 

Plaintiffs allege that, shortly thereafter, Glidden began “willfully and intentionally harassing”

Plaintiffs by “making false, denigrating statements” to the Austin Police Department (“APD”) and 

Texas Adult Protective Services (“APS”). Specifically, Plaintiffs contend that Glidden told APD 

and APS that “Luisa was unable to care for herself because of her mental disabilities, and that she 

was intellectually challenged,” and that Glidden reached over Plaintiffs’ fence to spray their 

backyard with Roundup. Dkt. 33 ¶ 74. Plaintiffs further allege that Glidden conspired with 

Defendant McKenna Kuhr, another woman in their neighborhood “to remove Luisa from her 

property.” Id. ¶ 75

Plaintiffs allege that on March 30, 2018, Kuhr called APD to report that several of Plaintiffs’ 

neighbors had contacted her “about concerns for Luisa, but they wished to remain anonymous.” 

Id. Plaintiffs allege that Kuhr told APD that Eva had moved back to California and abandoned 

Luisa. Kuhr told APD that Luisa’s trash had not been seen on the curb in months, she believed 

Luisa was living in unsanitary conditions and not eating properly, and she described “a foul odor 

coming from inside the house.” Id.

In response to Kuhr’s call, APD Officers Lauren Villarreal and Michael Guetzke drove to 

Plaintiffs’ house that same day to perform a “well-check” on Luisa. Id. ¶ 78. Villarreal stated in 

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her police report that she “smelled a strong odor of urine when Luisa opened the door and observed 

Luisa to be extremely frail and thin with sunken cheeks and very thin hair.” Id. ¶ 80. Villarreal 

also reported that “Luisa’s clothing appeared too large for her and had a strong smell of being 

soiled, and her pants were covered in animal hair.” Id. Villarreal further noted that she saw lice in 

Luisa’s hair. Immediately after the well-check, Villarreal contacted APS and was told that an APS 

officer would check on Luisa within 24 hours. Id. ¶ 86.

Villarreal also met with Glidden, who told Villareal that she “was concerned for Luisa and was 

planning to file a report with APS because she believed that no one was living with Luisa and she 

was unable to care for herself because of her disabilities.” Id. ¶ 91. Glidden further told Villareal 

that she was concerned about the welfare of Luisa’s dogs because one dog had a large sore on its 

face and another dog appeared to be “skin and bones.” Id. After the meeting, Villarreal noted in 

her report that that she was going to request a “Mental Health Unit follow-up” on Luisa. Id. ¶ 92.

Plaintiffs dispute Villarreal’s report and Glidden’s allegations against Luisa. Specifically, 

Plaintiffs contend that Luisa’s clothing was clean and did not smell, and that she was wearing loose 

clothing at home to be comfortable. Dkt. 6 at 5. With respect to Luisa’s weight, Plaintiffs state that 

Luisa has always been slim and weighed a healthy 110 pounds. Id. Plaintiffs take special exception 

to Villarreal’s observation that she could see lice in Luisa’s hair, and contend that is “medically 

impossible” because “the detection of lice requires careful close-up work even by trained doctors, 

sometimes involving a microscope.” Id. Plaintiffs also contend that they “went above and beyond 

to provide love and care for their pets.” Dkt. 33 ¶ 61.

On April 6, 2018, APD’s Crisis Intervention Team (“CIT”) assigned Luisa’s case to Officer 

Jamie Von Seltmann. After reviewing Villarreal and Guetzke’s reports and meeting with other 

officers involved in the case, Von Seltmann determined that Luisa’s case should be reported to 

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APS and CIT for a follow-up “because of Luisa’s physical condition.” Id. at ¶ 99. Von Seltmann

coordinated with APS, APD’s Animal Cruelty Unit, the Austin Code Enforcement Department, 

and the Austin-Travis County EMS Community Health Paramedic Program (“EMS”), and 

scheduled a follow-up mental health visit on Luisa to be performed April 17, 2018. Id. ¶¶ 101-02. 

As planned, officers arrived at Luisa’s home on April 17, 2018, at 9 a.m. After the officers 

knocked on her door, Luisa opened the door and stepped out onto her front porch. Von Seltmann 

and Animal Cruelty Unit Officer Timothy Diven reported that Luisa was wearing clothes “that 

appeared to be soiled and too large for her slender frame,” had issues with her speech and 

“appeared to be mentally challenged.” Id. ¶ 115. The officers also reported smelling urine and that 

they could “see lice on Luisa.” Id. Diven also reported noticing “a strong order of ammonia, urine 

and feces emanating from behind the front door.” Id. ¶ 113. The officers then decided to detain 

Luisa for a mental evaluation under Texas Health and Safety Code § 573.001. Dkt. 6-2 at Exh. G. 

Plaintiffs allege that after Luisa attempted to go back into her house, Von Seltmann and APS 

Officer Rocky Reeves “grabbed Luisa by the wrists and began pulling her off the porch, down the 

driveway, and toward the street.” Dkt. 33 ¶ 116. Plaintiffs allege that the officers did not show her 

a warrant “authorizing the seizure of her person or a warrant to enter and search her home.” Id.

¶ 127. CIT officers then escorted Luisa to an EMS van and took her to Seton Medical Center for a

mental health evaluation. Once Luisa arrived at the hospital, Plaintiffs allege that she was “forced 

to remain in a hot and poorly ventilated room without food or water for several hours” and 

pressured to undergo medical tests Id. ¶ 130. Plaintiffs allege that Luisa passed a “Mini-Mental 

Health Status Exam” at the hospital and that a psychologist opined that “she did not appear to be 

a psychiatric patient.” Id. ¶ 136. Hospital personnel discharged Luisa at 4:51 p.m. the same day.

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Plaintiffs allege that before Luisa was taken to the hospital, she told the officers “not to go into 

her house” and that she “was not consenting to a search of her house.” Id. ¶ 120. Plaintiffs allege 

that the officers proceeded to search their home “without warrants or consent.” Id. ¶ 160. Officer 

Diven described Plaintiffs’ house “as a hoarder house,” with “boxes and boxes of items and trash 

piled from floor to ceiling covering at least 80-90% of the space in the house.” Dkt. 6-2 at Exh. G. 

He further stated that there was “dust, dirt and debris over everything.” Id.

Diven discovered Plaintiffs’ four dogs inside the house and noted that they were missing large 

patches of fur and appeared to be in bad health, unkempt and very thin. Id. Based on the condition 

of the house, the dogs’ physical appearances, and “the horrific living conditions,” Diven concluded 

that the dogs were “cruelly treated.” Dkt. 33 ¶ 154. Accordingly, Diven seized the four dogs and 

transported them to the Austin Animal Center “where they would be cared for.” Id. In addition to 

their dogs, Plaintiffs allege that the officers took several pieces of antique jewelry worth $220,000.

After the dogs arrived at the Austin Animal Center, Dr. Rachel Hays performed a cruelty 

examination on each dog. Dr. Hays reported that the dogs had fleas, skin conditions, tumors, 

tapeworms, dirty and matted coats, overgrown toenails, and mange. Id. ¶¶ 163, 169. She further 

found that two of the dogs were underweight, one was “borderline emaciated,” and another had 

what appeared to be a urinary tract infection. Id. ¶ 166. Plaintiffs dispute Dr. Hays’ findings and 

argue that she deviated from “accepted veterinary standards” in her evaluation of the dogs. Id.

While Plaintiffs allege that officers did not show Luisa a seizure warrant before seizing Luisa 

or the four dogs, Plaintiffs’ Amended Complaint acknowledges that Diven did in fact obtain a 

Warrant for Seizure of Animals at 2:20 p.m. on April 17, 2018, which was executed at 3 p.m. the

same day. Id. ¶ 179. Plaintiffs also acknowledge that Luisa was served with the Warrant and Notice 

of Hearing at 3:30 p.m. the same day, while she was still at the hospital. Id. ¶ 180. 

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On April 24, 2018, Travis County Justice of the Peace Judge Nicholas Chu held a hearing, 

pursuant to Texas Health and Safety Code §§ 821.022(b) and 821.023, “to determine ownership 

of the animals, whether the animals were cruelly treated . . . and to determine disposition of the 

[dogs].” Dkt. 26-1 at 1. Plaintiffs were represented at the hearing by attorney Will Hale. Dkt. 33 

¶ 183. After hearing the evidence, Judge Chu found that Luisa had “cruelly treated the animals . . . 

as defined by Tex. Health & Safety Code § 821.021, by torturing them and by unreasonably 

depriving the animals of necessary food, care and shelter.” Dkt. 26-1 at 2. Judge Chu then ordered 

that “Luisa Monica Lupi and all other owners are hereby divested of ownership of the animals” 

and turned them over to the Austin Animal Center. Id. at 3.

Plaintiffs appealed, and Travis County Court at Law Judge David Phillips held a de novo 

appeal hearing on June 13, 2018. Dkt. 26-2 at 1. After the hearing, Judge Phillips issued an order 

finding that Luisa and Eva were the owners of the four dogs and had treated the dogs cruelly by 

unreasonably depriving them of necessary food, care, and shelter. Judge Phillips affirmed 

Judge Chu’s Order divesting Plaintiffs’ ownership of the dogs and turning the dogs over to the 

Austin Animal Center. Id. at 2-3.

On February 12, 2020, Plaintiffs allege that they received a City Code violation notice for 

“accumulation of rubbish or garbage.” Dkt. 33 ¶ 203. Plaintiffs allege because of “the ongoing 

harassment and their inability to find out anything about their dogs,” they temporarily moved out 

of their home on February 20, 2020. Id. ¶ 204. 

B. Plaintiffs’ Lawsuit

On February 25, 2020, Plaintiffs filed this civil rights lawsuit, pursuant to 42 U.S.C. § 1983, 

against the City of Austin (“City”); APD Officers Diven, Von Seltmann, Guetzke, Villarreal, 

Rocky Reeves, Jerry Floyd, Ewa Wegner, Alan Schwettmann, Joshua Visi, Michael King, and 

Brian Robinson; Code Enforcement Officers Thomas Horn and Joseph Lucas; and EMS Officers 

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Timothy Hedrick and Steve White (collectively, the “Individual City Defendants”); and Glidden 

and Kuhr.2In their Amended Complaint, Plaintiffs allege that the City Defendants’ search of their 

property, seizure of their dogs and jewelry, and emergency detention of Luisa violated their Fourth 

and Fourteenth Amendment rights. Plaintiffs further allege that the City’s inadequate policies, 

training, supervision, and investigation and discipline constituted deliberate indifference to the 

deprivation of Plaintiffs’ constitutional rights. Plaintiffs also contend that Glidden and Kuhr 

conspired with the City Defendants to violate their constitutional rights. Plaintiffs allege that the 

City had “unwritten, unconstitutional customs that police officers enjoyed unconstitutionally 

unfettered discretion” to ignore the requirements for emergency detention under Texas Health and 

Safety Code § 573.001, and to conduct warrantless searches and seizures. Dkt. 33 ¶ 208. Finally, 

Plaintiffs allege that the City discriminated against Luisa because of a perceived mental disability, 

in violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132.

Plaintiffs seek declaratory and injunctive relief and $10 million in monetary damages.3 

On April 3, 2020, the District Court denied Plaintiffs’ motion for preliminary injunction

seeking an order to “immediately release Plaintiffs’ dogs and stolen jewelry items.” Dkt. 41 at 14. 

The District Court determined that it lacked subject matter jurisdiction under the Rooker-Feldman

doctrine to issue a preliminary injunction ordering the return of Plaintiffs’ dogs. Id. at 12. The 

District Court also found that the Plaintiffs were not entitled to a preliminary injunction regarding

the allegedly stolen jewelry because they had failed to demonstrate irreparable harm. Id. at 14. 

2 Plaintiffs’ Original Complaint also named Travis County as a defendant. However, on March 26, 2020,

the County was terminated, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). Dkt. 25.

3 Plaintiffs also have filed two related civil rights lawsuits based on the same underlying events, which are 

currently pending before the District Court. See Lupi v. Cox, 1:20-CV-00712-RP; Lupi v. Cox, 1:20-CV00713-RP. 

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The City and the Individual City Defendants4 move to dismiss this case under Federal Rule of 

Civil Procedure 12(b)(1), arguing that the Court lacks subject matter jurisdiction pursuant to the 

Rooker-Feldman doctrine. Alternatively, the City and Individual City Defendants move to dismiss 

Plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on 

which relief can be granted. The Court makes the following recommendations.

II. Legal Standards

The Court considers in turn Defendants’ arguments under Rule 12(b)(1) and Rule 12(b)(6).

A. Rule 12(b)(1)

Federal district courts are courts of limited jurisdiction and may exercise only such jurisdiction 

as is expressly conferred by the Constitution and federal statutes. Kokkonen v. Guardian Life Ins. 

Co. of Am., 511 U.S. 375, 377 (1994). A federal court has subject matter jurisdiction over civil 

cases “arising under the Constitution, laws, or treaties of the United States,” and over civil cases 

in which the amount in controversy exceeds $75,000, exclusive of interest and costs, and in which 

diversity of citizenship exists between the parties. 28 U.S.C. §§ 1331, 1332. 

Federal Rule of Civil Procedure 12(b)(1) allows a party to assert lack of subject matter 

jurisdiction as a defense to suit. A federal court properly dismisses a case for lack of subject matter 

jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. Home 

Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). “The burden 

of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming v. 

United States, 281 F.3d 158, 161 (5th Cir. 2001). “Ultimately, a motion to dismiss for lack of 

subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot 

prove any set of facts in support of his claim that would entitle plaintiff to relief.” Id. In ruling on 

4

Individual Defendants Glidden and Kuhr have not filed any motions to dismiss as of the date of this Report 

and Recommendation. 

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a Rule 12(b)(1) motion, the court may consider (1) the complaint alone; (2) the complaint plus 

undisputed facts evidenced in the record; or (3) the complaint, undisputed facts, and the court’s 

resolution of disputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). 

B. Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action for failure 

to state a claim on which relief can be granted. In deciding a Rule 12(b)(6) motion to dismiss for 

failure to state a claim, the court “accepts all well-pleaded facts as true, viewing them in the light 

most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 

2007) (internal quotation marks omitted). The Supreme Court has explained that a complaint must 

contain sufficient factual matter “to state a claim to relief that is plausible on its face.” Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 

(2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the 

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Iqbal, 556 U.S. at 678. 

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does 

not need detailed factual allegations, a plaintiff’s obligation to provide 

the grounds of his entitlement to relief requires more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of 

action will not do. Factual allegations must be enough to raise a right 

to relief above the speculative level, on the assumption that all the 

allegations in the complaint are true (even if doubtful in fact).

Twombly, 550 U.S. at 555 (cleaned up). The court’s review is limited to the complaint, any 

documents attached to the complaint, and any documents attached to the motion to dismiss that 

are central to the claim 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).

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III. Defendants’ Rule 12(b)(1) Motion to Dismiss

When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court 

should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.

Ramming, 281 F.3d at 161.

Defendants argue that all of Plaintiffs’ claims are barred by the Rooker-Feldman doctrine.

5 At 

its core, “the Rooker-Feldman doctrine holds that inferior federal courts do not have the power to 

modify or reverse state court judgments except when authorized by Congress.” Burciaga v. 

Deutsche Bank Nat’l Tr. Co., 871 F.3d 380, 384 (5th Cir. 2017). The doctrine is confined to “cases 

brought by state-court losers complaining of injuries caused by state-court judgments rendered 

before the district court proceedings commenced and inviting district court review and rejection 

of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).

In addition to the precise claims presented to the state court, the Rooker-Feldman doctrine 

“prohibits federal court review of claims that are ‘inextricably intertwined’ with a state court 

decision.” Burciaga, 871 F.3d at 384-85 (quoting Feldman, 460 U.S. at 486-87). Thus, litigants 

may not obtain review of state court actions by filing complaints about those actions in lower 

federal courts cast as civil rights suits. As the Fifth Circuit has explained: 

Constitutional questions arising in state proceedings are to be 

resolved by the state courts. If a state trial court errs the judgment is 

not void, it is to be reviewed and corrected by the appropriate state 

appellate court. Thereafter, recourse at the federal level is limited 

solely to an application for a writ of certiorari to the United States 

Supreme Court.

Liedtke v. State Bar of Tex., 18 F.3d 315, 317 (5th Cir. 1994). The doctrine, however, “does not 

prohibit a plaintiff from presenting some independent claim, albeit one that denies a legal 

5 See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 

460 U.S. 462 (1983).

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conclusion that a state court has reached in a case to which he was a party.” Truong v. Bank of 

Am., N.A., 717 F.3d 377, 382 (5th Cir. 2013) (quoting Exxon Mobil, 544 U.S. at 284). In these 

circumstances, state law preclusion principles control. Id.

Most of Plaintiffs’ claims focus on the alleged illegality of Defendants’ search and seizure of 

their dogs, the seizure warrant, and constitutional errors that occurred before and during the hearing 

before the state court. Because Plaintiffs’ constitutional claims are “inextricably intertwined” with 

the state court judgment and proceedings regarding the seizure of the dogs, those claims are barred 

by the Rooker-Feldman doctrine.

6

See Liedtke, 18 F.3d at 318 (holding that court lacked 

jurisdiction over attorney’s civil rights action contending disbarment in disciplinary proceedings 

violated due process rights, where civil rights action was inextricably intertwined with state court 

judgment); Spencer v. Wilson, No. CV 4:18-4563, 2020 WL 822096, at *5 (S.D. Tex. Feb. 18, 

2020) (holding that plaintiffs’ due process and unconstitutional search and seizure claims arising 

from seizure of their cats under § 821.022(a) were barred by Rooker-Feldman because plaintiffs 

attempted to attack state court judgment seizing cats), appeal dismissed pursuant to appellants’ 

motion, 2020 WL 5525159 (5th Cir. June 11, 2020); Paselk v. Texas, No. 4:13-CV-97, 2013 WL 

6187005, at *8 (E.D. Tex. Nov. 26, 2013) (holding that plaintiff’s civil rights suit was barred under 

Rooker-Feldman where all claims were related to state court proceedings seizing animals under § 

821.022(a)); Chambers v. SPCA of Texas, No. 3:06-CV-1957-K, 2007 WL 9712190, at *5 (N.D. 

Tex. June 21, 2007) (holding that court lacked jurisdiction under Rooker-Feldman to review 

6 Plaintiffs attempt to argue that the Rooker-Feldman doctrine should not preclude Eva’s claims attacking 

the seizure of the dogs because she was not at the hearing. However, both the Justice of the Peace and 

County Court at Law Orders state that “Luisa Monica Lupi and all other owners are hereby divested of 

ownership of the animals.” Dkt. 26-1 at 3; Dkt. 26-2 at 3. In addition, the County Court at Law Judge 

specifically stated that Luisa and “Eva Lupi” were “the owners” of the dogs, and were both guilty of cruelly 

treating the dogs, as defined in the Texas Health & Safety Code § 821.021. Accordingly, Plaintiffs’ 

argument is without merit.

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plaintiff’s constitutional claims related to seizure order divesting her of ownership of 121 dogs and 

1 cat), report and recommendation adopted, 2007 WL 9712191 (N.D. Tex. July 9, 2007).

Even if their civil rights were violated by the state court proceedings, Plaintiffs may not 

challenge the state court judgment against them in this Court. Liedtke, 18 F.3d at 318. Any such 

alleged errors in the state court proceedings would have to be reviewed and corrected by the 

appropriate state appellate court. Id. Plaintiffs’ recourse in federal court is limited solely to an 

application for a writ of certiorari to the United States Supreme Court. Id. Accordingly, the Court 

does not have jurisdiction to review Plaintiffs’ Fourth and Fourteenth Amendment claims related 

to the animal seizure warrant, the state court’s animal seizure order, and the state court 

proceedings, and these claims should be dismissed for lack of subject matter jurisdiction under 

Rule 12(b)(1). 

Rooker-Feldman, however, does not prohibit this Court from reviewing independent claims 

unrelated to the animal seizure order. See Truong, 717 F.3d at 383. The Court has subject matter 

jurisdiction to review Plaintiffs’ claims that (1) the individual officers violated Luisa’s Fourth 

Amendment rights by detaining her for a mental health assessment without a warrant, and by 

allegedly taking Plaintiffs’ antique jewelry; (2) the individual officers violated Plaintiffs’

substantive due process rights under the Fourteenth Amendment by arbitrarily and wantonly 

harassing them with false code violations; (3) Defendants participated in a conspiracy under 

§ 1983 to deprive Plaintiffs of their constitutional rights; (4) the City had unconstitutional policies 

and customs with regard to training, supervision, investigation, or discipline in seizing citizens and 

property without a warrant, which caused the violation of Luisa’s constitutional rights; and (5) the 

City discriminated against Luisa because of a perceived mental disability in violation of the ADA.

The Court evaluates these claims under Rule 12(b)(6). 

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IV. Individual City Defendants’ Motion to Dismiss 

The Individual City Defendants argue that they are entitled to qualified immunity as to all of 

Plaintiffs’ claims because Plaintiffs have failed to allege a violation of a constitutional right.

Qualified immunity “shields government officials from liability when they are acting within their 

discretionary authority and their conduct does not violate clearly established statutory or 

constitutional law of which a reasonable person would have known.” Petzold v. Rostollan, 946 

F.3d 242, 255 (5th Cir. 2019). “Qualified immunity shields from liability ‘all but the plainly 

incompetent or those who knowingly violate the law.’” Romero v. City of Grapevine, 888 F.3d 

170, 176 (5th Cir. 2018) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). An official who 

violates a federal right still is entitled to qualified immunity if his or her actions were objectively 

reasonable. Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993). Therefore, “qualified immunity 

represents the norm.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982).

Once a defendant invokes qualified immunity, the burden shifts to the plaintiff to show that 

the defense is not available. Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010). To rebut the 

qualified immunity defense, a plaintiff must show that (1) the allegations make out a violation, and 

(2) the violation was “clearly established” at the time of the defendant’s conduct. Id. To do so, the 

plaintiff “must plead specific facts that both allow the court to draw the reasonable inference that 

the defendant is liable for the harm he has alleged and that defeat a qualified immunity defense 

with equal specificity.” Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). At bottom, a plaintiff 

must show that “no reasonable officer could have believed his actions were proper.” Brown v. 

Callahan, 623 F.3d 249, 253 (5th Cir. 2010).

In determining whether a defendant is entitled to qualified immunity, the court first asks 

whether the facts, taken in the light most favorable to the party asserting the injury, show that the 

defendant's conduct violated a constitutional right. Pearson v. Callahan, 555 U.S. 223, 232 (2009). 

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If so, the court next determines whether the right in question was “clearly established” at the time 

of the violation. Hope v. Pelzer, 536 U.S. 730, 739 (2002). “To make this determination, the court 

applies an objective standard based on the viewpoint of a reasonable official in light of the 

information then available to the defendant and the law that was clearly established at the time of 

the defendant’s actions.” Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007).

The qualified immunity analysis “is limited to the facts that were knowable to the defendant 

officers at the time they engaged in the conduct in question.” Hernandez v. Mesa, 137 S. Ct. 2003, 

2007 (2017). “Facts an officer learns after the incident ends—whether those facts would support 

granting immunity or denying it—are not relevant.” Id.; see also Cole v. Carson, 935 F.3d 444, 

456 (5th Cir. 2019) (en banc) (noting that the only facts relevant to the qualified immunity inquiry 

are “what the officers knew at the time of their challenged conduct”) (quoting Hernandez, 137 

S. Ct. at 2007); Brown, 623 F.3d at 253 (“An official’s actions must be judged in light of the 

circumstances that confronted him, without the benefit of hindsight.”). A defendant is immune if 

the violation is not objectively obvious, or officials of reasonable competence could disagree on 

the issue. Malley, 475 U.S. at 341.

A. Luisa’s Detention

Plaintiffs allege that Officers Von Seltmann, Reeves, Hedrick and White violated Luisa’s 

Fourth Amendment rights by seizing and detaining her for an emergency mental health evaluation 

under Texas Health and Safety Code § 573.001 without a warrant or probable cause.

7

7 Although Plaintiffs appear to bring this claim against all of the Individual City Defendants in this case, 

Plaintiffs’ factual allegations demonstrate that only Officers Von Seltmann, Reeves, Hedrick and White 

were involved in Luisa’s seizure. Accordingly, this claim should be dismissed with regard to all other 

Individual City Defendants. 

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1. Texas Health and Safety Code Section 573.001

The Fourth Amendment of the United States Constitution guarantees “[t]he right of the people 

to be secure in their persons . . . against unreasonable searches and seizures.” U.S. CONST. amend 

IV. A Fourth Amendment seizure is reasonable only if it is supported by probable cause. Dunaway 

v. New York, 442 U.S. 200, 214 (1979). “The probable cause standard applies in the context of a 

seizure of the mentally ill.” Cantrell v. City of Murphy, 666 F.3d 911, 923 n.8 (5th Cir. 2012).

Under § 573.001(a), an officer has probable cause to detain a person for an emergency 

psychiatric evaluation if “(1) the officer has reason to believe and does believe that a person is 

mentally ill and because of that illness there is a substantial risk of serious harm to the person or 

to others unless the person is immediately restrained; and (2) believes that there is not sufficient 

time to obtain a warrant before taking the person into custody.” Id. at 923. The statute defines 

mental illness as an illness, disease, or condition, other than epilepsy, senility, alcoholism, or 

mental deficiency, that (1) substantially impairs a person’s thought, perception of reality, 

emotional process, or judgment; or (2) grossly impairs behavior as demonstrated by recent 

disturbed behavior. TEX. HEALTH & SAFETY CODE § 571.003(14).

A “substantial risk” of serious harm to the person or others may be demonstrated by “(1) the 

person’s behavior, or (2) evidence of severe emotional distress and deterioration in the person’s 

mental condition to the extent that the person cannot remain at liberty.” Rich v. Palko, 920 F.3d 

288, 295 (5th Cir.) (quoting TEX. HEALTH & SAFETY CODE § 573.001(b)), cert. denied, 140 S. Ct. 

388 (2019). An officer may base her belief that the person meets the criteria for apprehension on 

either “a representation of a credible person,” or “the conduct of the apprehended person or the 

circumstances under which the apprehended person is found.” TEX. HEALTH & SAFETY CODE

§ 573.001(c)(1)-(2). An officer who detains a person under those provisions “shall immediately” 

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take the individual to “the nearest appropriate inpatient mental health facility” or an otherwise 

designated mental health or emergency facility. Id. § 573.001(d)(1)(A)-(B). 

The Fifth Circuit has held that police officers had probable cause to detain individuals for 

mental health assessments under § 573.001 where the evidence showed that the individual was 

contemplating suicide, or there was a substantial risk of harm to others. See Rich, 920 F.3d at 295-

96 (finding that police officers had probable cause to detain mentally ill plaintiff who was 

experiencing psychiatric episode and had threatened staff members and other children in group 

home); Cantrell, 666 F.3d at 923 (concluding that officers had probable cause to detain woman 

making suicidal statements after discovering her young child had died accidentally); Sullivan v. 

Cnty. of Hunt, 106 F. App’x 215, 218 (5th Cir. 2004) (finding that officers had probable cause to 

detain plaintiff psychiatrist said “was a suicide risk”); Martinez v. Smith, 200 F.3d 816, 1999 

WL 1095667, at *1-2 (5th Cir. Nov. 4, 1999) (per curiam) (finding probable cause to detain 

individual who had told acquaintance she was suicidal).

2. Lack of Probable Cause

Plaintiffs argue that the Individual City Defendants have failed to establish that the Officers 

had probable cause to detain Luisa because she was not mentally ill, there was not a substantial 

risk of harm to herself or others, and there was sufficient time to obtain a warrant before taking 

her into custody. The undisputed facts available to the Officers at the time of the seizure could 

have caused a reasonable officer to believe that Luisa was mentally ill, based on the neighbor’s 

complaints and the Officers’ own observations of Luisa and the unsanitary condition of Plaintiffs’ 

house. Nonetheless, the Individual City Defendants have failed to identify any evidence showing 

that there was a substantial risk of serious harm to Luisa or other individuals. As Plaintiffs point 

out, there is no evidence in the record that at the time of Luisa’s seizure, she “was doing or saying 

anything that posed a substantial risk of serious harm to herself or others.” Dkt. 65 at 10. Thus, the 

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Individual City Defendants have failed to meet the first factor for legal detention under 

§ 573.001(a)(1). 

The Individual City Defendants also fail to demonstrate the second factor: that the officer 

believed “that there is not sufficient time to obtain a warrant before taking the person into custody.” 

TEX. HEALTH & SAFETY CODE § 573.001(a)(2). Plaintiffs emphasize that Officer Von Seltmann 

stated in her report that, before she was detained, Luisa “was not an imminent threat to herself or 

others.” Dkt. 6-2 at 22. Plaintiffs argue that the Individual City Defendants have identified no

evidence supporting a reasonable belief that there was not sufficient time to obtain a warrant before 

taking Luisa into custody. The Individual City Defendants appear to concede the point by wholly 

failing to respond to this argument. Accordingly, the Individual City Defendants have failed to 

demonstrate that Officers Von Seltmann, Reeves, Hedrick and White had probable cause under 

§ 572.001(a)(2) to detain Luisa. Therefore, Officers Von Seltmann, Reeves, Hedrick and White

are not entitled to qualified immunity with regard to this claim at this time.8

B. Alleged Seizure of Jewelry

Plaintiffs’ Amended Complaint further alleges that the Individual City Defendants violated 

their Fourth Amendment rights by taking $220,000 in antique jewelry from Plaintiffs’ house 

during the alleged illegal search. Dkt. 33 ¶ 267. Plaintiffs have failed to plead any facts to support 

this allegation. In addition, Plaintiffs fail to mention the alleged seizure of the jewelry in their 

response brief, and, therefore, appear to have abandoned this claim. See Colin v. Fort Worth Indep. 

Sch. Dist., 2018 WL 4078272, at *3 (N.D. Tex. Aug. 27, 2018) (concluding that, by failing to 

respond to defendant’s grounds for dismissal of the § 1983 claims asserted against him, plaintiffs

8 The Individual City Defendants do not move for dismissal of Plaintiffs’ supervisory liability claims against 

them based on failure to train and supervise. See Dkt. 33 ¶¶ 274-81. Accordingly, these claims remain

pending against the Individual Defendants with regard to the seizure of Luisa. 

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both abandoned the claim and failed to meet their burden to negate defendant’s qualified immunity

defense). Accordingly, this claim should be dismissed. 

C. Code Violation Claim

Plaintiffs allege that Code Enforcement Officers Lucas and Horn violated Plaintiffs’ 

substantive due process rights under the Fourteenth Amendment by falsely charging them with a 

City code violation for the “accumulation of rubbish or garbage.” Dkt. 65 at 13. The Due Process 

Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, 

liberty or property, without due process of law.” U.S. CONST. amend. XIV, § 1. “To state a cause 

of action under § 1983 for violation of the Due Process Clause, plaintiffs must show that they have 

asserted a recognized liberty or property interest within the purview of the Fourteenth Amendment, 

and that they were intentionally or recklessly deprived of that interest, even temporarily, under 

color of state law.” Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 450 (5th Cir. 1994). The definition 

of “liberty” includes privileges expressly enumerated by the Bill of Rights and the fundamental 

rights implicit in the concept of ordered liberty. Id.

Plaintiffs fail to state a substantive due process violation because they have failed to explain 

how a City code violation for the accumulation of trash denied them a liberty or property interest. 

See Nesmith v. Taylor, 715 F.2d 194, 196 (5th Cir. 1983) (finding that allegedly malicious issuance 

of building code violation did not rise to the level constitutional violation). Accordingly, Plaintiffs’ 

substantive due process right should be dismissed.

D. Section 1983 Conspiracy Claim

Plaintiffs allege that the Individual City Defendants conspired with Glidden and Kuhr “to 

remove Luisa out of her home and the neighborhood” in violation of § 1983. Dkt. 65 at 11. To 

support their conspiracy claim, Plaintiffs must allege facts showing (1) an agreement between the 

Individual City Defendants and Glidden and Kuhr to commit a deprivation of Plaintiffs’ 

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constitutional rights, and (2) an actual deprivation of Plaintiffs’ constitutional rights. Cinel v. 

Connick, 15 F.3d 1338, 1343 (5th Cir. 1994). Conclusory allegations that do not reference specific 

factual allegations tending to show an agreement do not suffice to state a civil rights conspiracy 

claim under § 1983. See Priester v. Lowndes Cnty., 354 F.3d 414, 420 (5th Cir. 2004); Arsenaux 

v. Roberts, 726 F.2d 1022, 1023-24 (5th Cir. 1982). “[M]ere conclusory allegations of conspiracy 

cannot, absent reference to material facts, state a substantial claim of federal conspiracy under 

42 U.S.C. § 1983.” Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir. 1986).

Plaintiffs have failed to allege any facts to support their conclusory allegations that the 

Individual City Defendants had an agreement with Glidden and Kuhr to deprive Plaintiffs of their 

constitutional rights. All of Plaintiffs’ allegations are based on speculation. See Jackson v. City of 

Hearne, Texas, 959 F.3d 194, 205 (5th Cir. 2020) (holding that plaintiff’s allegations based on 

speculation were not specific enough to establish conspiracy); Lynch v. Cannatella, 810 F.2d 1363, 

1369-70 (5th Cir. 1987) (“Plaintiffs who assert conspiracy claims under civil rights statutes must 

plead the operative facts upon which their claim is based. Bald allegations that a conspiracy existed 

are insufficient.”). The conspiracy claim against the Individual Defendants should be dismissed.9

V. City’s Motion to Dismiss under Rule 12(b)(6)

A. Section 1983 Claim10

Plaintiffs allege that the City had “unwritten, unconstitutional customs that police officers 

enjoyed unconstitutionally unfettered and discretion” to violate Plaintiffs’ rights by “abusing or 

9 For the same reasons, Plaintiffs’ conspiracy claim against the City also should be dismissed. 

10 Because Plaintiffs’ only remining claim against the Individual City Defendants is the § 573.001 Fourth 

Amendment claim, the Court addresses the City’s liability only as to this claim. See City of Los Angeles v. 

Heller, 475 U.S. 796, 799 (1986) (holding that there can be no municipal liability against a city under 

§ 1983 if the plaintiff has suffered no constitutional injury at the hands of the individual police officer);

Cook v. Hopkins, 795 F. App’x 906, 918 (5th Cir. 2019) (“[U]nder Heller, because we have found no 

constitutional violations on the part of the Individual Defendants, the City cannot be subjected to municipal 

liability.”), cert. denied, 140 S. Ct. 2643 (2020).

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disregarding” the requirements for detention under § 573.001. Plaintiffs further allege that the City

failed to train, supervise, and discipline its police officers regarding the requirements for detention

under § 573.001, constituting deliberate indifference to the deprivation of Plaintiffs’ constitutional 

rights.

It is well-established that municipalities are not liable under § 1983 on the theory of respondeat 

superior. Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 689 (1978). “A 

municipality is almost never liable for an isolated unconstitutional act on the part of an employee; 

it is liable only for acts directly attributable to it ‘through some official action or imprimatur.’” 

Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 847 (5th Cir. 2009) (quoting Piotrowski v. City 

of Houston, 237 F.3d 567, 578 (5th Cir. 2001)). To establish municipal liability under § 1983, a 

plaintiff must plead facts that plausibly establish (1) an official policy (2) promulgated by the

municipal policymaker (3) that was the “moving force” behind the violation of the constitutional 

right. Piotrowski, 237 F.3d at 578.

An official policy can arise in various forms, including written policy statements, ordinances, 

or regulations, but also may arise in the form of a widespread practice that is “so common and 

well-settled as to constitute a custom that fairly represents municipal policy.” Id. at 579. A policy 

or custom is official only when it results from the decision or acquiescence of the municipal officer 

or body with “final policymaking authority” over the subject matter of the offending policy. Jett 

v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). “Finally, a plaintiff must establish that the 

policy was the moving force behind the violation. In other words, a plaintiff must show direct 

causation.” Peterson, 588 F.3d at 848. This means that “there must be a direct causal link” between 

the policy and the violation, not merely a “but for” coupling between cause and effect. Id.; Fraire 

v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir. 1992).

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To sustain their claim against the City, therefore, Plaintiffs must plead facts plausibly 

establishing a policymaker, an official policy, and a violation of constitutional rights for which the

moving force is the policy or custom. Piotrowski, 237 F.3d at 578. Plaintiffs need not offer proof 

of their allegations at this stage, but still must plead facts that plausibly support each element of 

§ 1983 municipal liability. See Iqbal, 556 U.S. at 678.

Plaintiffs argue that the City had a widespread practice or custom in which police officers 

enjoyed “unconstitutionally unfettered discretion to . . . apprehend a person like Luisa without a 

warrant or consent, or by abusing emergency detention without probable cause.” Dkt. 63 at 14. To 

proceed beyond the pleading stage, “a complaint’s description of a policy or custom and its 

relationship to the underlying constitutional violation . . . cannot be conclusory; it must contain 

specific facts.” Pena v. City of Rio Grande City, 879 F.3d 613, 622 (5th Cir. 2018). While 

Plaintiffs’ Amended Complaint alleges specific facts about Luisa’s seizure and her mental health 

evaluation, Plaintiffs fail to allege any facts that the City had a policy of unconstitutionally seizing 

individuals like Luisa without probable cause. See Dkt. 33 ¶ 282-83; Dkt. 63 at 14. “But plausibly 

to plead a practice ‘so persistent and widespread as to practically have the force of law,’ a plaintiff 

must do more than describe the incident that gave rise to his injury.” Pena, 879 F.3d at 622 (quoting

Connick v. Thompson, 563 U.S. 51, 61 (2011)). Because Plaintiffs’ pleadings contain only specific 

facts regarding the events giving rise to this lawsuit and none related to a City practice or custom, 

Plaintiffs have failed to allege a viable claim against the City that it had a custom of detaining 

individuals under § 573.001 without probable cause. See Ratliff v. Aransas Cnty., Texas, 948 F.3d 

281, 285 (5th Cir. 2020) (holding that arrestee failed to establish that county had official custom 

or policy requiring officers to use excessive force where arrestee’s allegations merely described 

events giving rise to his lawsuit), cert. denied, --- S. Ct. ----, 2020 WL 5883401 (Oct. 5, 2020); 

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Pena, 879 F.3d at 622 (finding that plaintiff failed to allege sufficient facts to show policy where 

she alleged only specific facts regarding incident giving rise to her suit); Spiller v. City of Tex. 

City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997) (finding arrestee’s conclusory allegation that 

police officer who effected arrest without probable cause “was acting in compliance with the 

municipality’s customs, practices or procedures” insufficient to allege municipal liability).

Plaintiffs also allege that the City had a custom of inadequate training and supervision of its 

police officers regarding emergency detentions under § 573.001. To prevail on a failure to train 

theory, Plaintiffs must plead facts plausibly establishing “(1) that the municipality’s training 

procedures were inadequate, (2) that the municipality was deliberately indifferent in adopting its 

training policy, and (3) that the inadequate training policy directly caused the violations in 

question.” Ratliff, 948 F.3d at 285.

Plaintiffs’ pleadings contain no allegations regarding the City’s existing training policies and 

do not identify an inadequate City training policy or procedure. Plaintiffs merely state in 

conclusory fashion that the City “failed to provide more or different training or supervising,” and

that “[t]his failure is evidenced by the multiple officers’ conduct in the instant case.” Dkt. 63 at 

19. However, “[i]n order for liability to attach based on an inadequate training claim, a plaintiff 

must allege with specificity how a particular training program is defective.” Zarnow v. City of 

Wichita Falls, Tex., 614 F.3d 161, 170 (5th Cir. 2010). Plaintiffs’ Amended Complaint fail to meet 

these pleading requirements. 

In addition, Plaintiffs fail to assert any facts showing that an inadequate training policy directly 

caused the alleged constitutional violations. In order to satisfy the third factor, Plaintiffs must make

specific allegations showing that an inadequate training policy directly caused the alleged 

constitutional violations. Ratliff, 948 F.3d at 285. Instead, Plaintiffs simply state that “Plaintiffs’ 

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constitutional rights . . . were directly and proximately caused by the actions and inactions of 

Defendant City of Austin.” Dkt. 33 ¶ 283. “Absent specific allegations supporting a plausible 

causation inference, this legal conclusion does not state a claim for relief and warrants dismissal 

under Rule 12(b)(6).” Ratliff, 948 F.3d at 285. Accordingly, Plaintiffs have failed to allege a 

plausible failure to train claim against the City.11

Plaintiffs also assert that the City had inadequate disciplinary policies, which led to the alleged 

constitutional violations. Like an inadequate training claim, to prevail on an inadequate discipline 

claim, a plaintiff must prove that (1) the municipality’s discipline policy was inadequate; (2) the 

discipline policy was a moving force in causing violation of the plaintiff’s rights; and (3) the 

municipality was deliberately indifferent in adopting its discipline policy. King v. City of Austin, 

Texas, No. A-16-CA-1020-SS, 2018 WL 2027748, at *9 (W.D. Tex. May 1, 2018). In support of 

their inadequate disciplinary claim, Plaintiffs state that the City failed to discipline police officers 

“who are aware of and conceal and/or aid and abet violations of the constitutional and/or statutory 

rights of citizens.” Dkt. 33 ¶ 284. Plaintiffs allege no facts to support this speculative claim. 

Accordingly, Plaintiffs have failed to state a plausible inadequate disciplinary claim. Based on the 

foregoing, the City’s Motion to Dismiss Plaintiffs’ § 1983 claims should be granted.

B. Plaintiffs’ ADA Claim

Finally, Plaintiffs allege that the City discriminated against Luisa because of a perceived 

mental disability, in violation of Title II of the ADA, 42 U.S.C. § 12132. The ADA provides that 

“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 subjected to discrimination by any such entity.” 42 U.S.C. § 12132. In order to show a 

11 Because the Court finds that Plaintiffs have failed to meet the first and third factors, the Court need not 

address the deliberate indifference factor or the single-incident exception. 

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violation of the ADA, a plaintiff must allege that (1) she has a qualifying disability; (2) she is being 

denied the benefits of services, programs, or activities for which the public entity is responsible, 

or is otherwise discriminated against by the public entity; and (3) such discrimination is by reason 

of her disability. Doe v. Columbia-Brazoria Indep. Sch. Dist., 855 F.3d 681, 690 (5th Cir. 2017). 

The Court finds that Plaintiffs have stated sufficient facts to allege a violation of the ADA. 

Because the City acknowledges that the officers involved in Luisa’s detention believed that she 

had a mental disability, Plaintiffs have satisfied the first factor. See Dkt. 67 at 1 (“The mere fact 

that the officers may have known that Luisa had a disability while they performed the emergency 

detention . . . .”). Regarding the second and third factors, Plaintiffs allege that the City 

discriminated against Luisa by detaining her and performing a mental evaluation against her will 

because of her perceived mental disability. Therefore, Plaintiffs have alleged a plausible claim 

under the ADA. 

Relying on Lollar v. Baker, 196 F.3d 603 (5th Cir. 1999), the City argues that Plaintiffs’ ADA 

claim should be dismissed because it is based on the same factual allegations that support 

Plaintiffs’ § 1983 claim. Because Plaintiffs assert their ADA claim against the City and not against 

the Individual Defendants in their individual capacities, the City’s reliance on Lollar is misplaced. 

In Lollar, the Fifth Circuit held that a disabled state employee alleging discrimination could not 

bring a § 1983 action against her supervisor in the supervisor’s individual capacity to enforce rights 

guaranteed under the Rehabilitation Act, 29 U.S.C. § 794, because the Rehabilitation Act, by its 

express terms, provides a comprehensive remedial scheme for the enforcement of its provisions. 

196 F.3d at 608-10. The Fifth Circuit cited with approval the reasoning in cases from the Eighth 

and Eleventh Circuits, both of which held that the ADA’s comprehensive remedial scheme bars 

§ 1983 claims against state officials in their individual capacities. See id. at 610 (citing Alsbrook 

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v. City of Maumelle, 184 F.3d 999, 1010-11 (8th Cir. 1999), and Holbrook v. City of Alpharetta, 

112 F.3d 1522, 1531 (11th Cir. 1997)). As the court explained in Cole v. Velasquez, 67 F. App’x 

252, 2003 WL 21196164, at *2 n.11 (5th Cir. 2003) (per curiam):

[O]ur reasoning in Lollar v. Baker may support the conclusion that 

Cole is precluded from bringing a § 1983 against Velasquez, in her 

individual capacity . . . . We have not had the occasion to decide the 

question of whether a prison inmate, such as Cole, can bring a 

§ 1983 suit against a state prison official, such as Velasquez, in her 

official capacity in order to vindicate or enforce rights guaranteed to 

him by Title II of the ADA.

Accordingly, the City’s Motion to Dismiss Plaintiffs’ ADA claim should be denied.

VI. Order and Recommendation

Based on the foregoing, the undersigned RECOMMENDS that the District Court: 

(1) GRANT Defendants’ Rule 12(b)(1) Motion to Dismiss (Dkt. 44) as to Plaintiffs’ Fourth 

and Fourteenth Amendment claims related to the animal seizure warrant, the state court’s animal 

seizure order, and the state court proceedings for lack of subject matter jurisdiction, but DENY

the Motion with regard to all other claims; 

(2) GRANT Defendant City of Austin’s Rule 12(b)(6) Motion to Dismiss (Dkt. 45) as to 

Plaintiffs’ § 1983 claims, but DENY the Motion as to Plaintiffs’ ADA claim; and 

(3) DENY the Individually Named City Defendants’ Rule 12(b)(6) Motion to Dismiss 

(Dkt. 46) as to Plaintiffs’ Fourth Amendment claim against Officers Von Seltmann, Reeves, 

Hedrick and White related to Luisa Lupi’s detention under the Texas Health and Safety Code

§ 573.001, but GRANT the Motion with regard to all other claims.12

12 If the District Court adopts the undersigned recommendations, the following claims remain pending: 

Plaintiffs’ ADA claim against the City; Fourth Amendment claim against Officers Von Seltmann, Reeves, 

Hedrick and White related to Luisa Lupi’s detention under the Texas Health and Safety Code § 573.001; 

supervisory liability claims against Officers Floyd, Robinson, Von Seltmann, and King; and § 1983 

conspiracy claim against Glidden and Kuhr. 

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The Court DENIES Plaintiffs’ Motion to Compel Defendants Elizabeth Glidden and McKenna 

Kuhr to Comply with Federal Pleading Requirements (Dkt. 43). 

It is FURTHER ORDERED that the Clerk remove this case from the Magistrate Court’s 

docket and RETURN it to the docket of the Honorable Robert Pitman. 

VII. Warnings

The parties may file objections to this Report and Recommendation. A party filing objections 

must specifically identify those findings or recommendations to which objections are being made. 

The District Court need not consider frivolous, conclusive, or general objections. See Battle v. 

United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written 

objections to the proposed findings and recommendations contained in this Report within fourteen 

(14) days after the party is served with a copy of the Report shall bar that party from de novo 

review by the District Court of the proposed findings and recommendations in the Report and, 

except on grounds of plain error, shall bar the party from appellate review of unobjected-to 

proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. 

§ 636(b)(1); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass’n, 

79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

SIGNED on October 27, 2020.

SUSAN HIGHTOWER

UNITED STATES MAGISTRATE JUDGE

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