IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LEROY PENA, §

Plaintiff, §

§

v. § Civil Action No. 3:22-CV-0987-N-BH

§ 

DALLAS POLICE ASSOCIATION and §

CITY OF DALLAS, §

Defendants. § Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Before the Court for recommendation is Defendant City of Dallas’s Motion to Dismiss

Original Complaint and Brief in Support, filed August 5, 2022 (doc. 13). Based on the relevant

filings and applicable law, the motion to dismiss should be GRANTED.

I. BACKGROUND

Leroy Pena (Plaintiff) sues the Dallas Police Association (Association) and the City of Dallas

(City) (collectively Defendants), for discrimination, harassment, and retaliation under Title VII of

the Civil Rights Act of 1964 (Title VII) and 42 U.S.C. §§ 1981 and 1983. (doc. 3.) He seeks

equitable and injunctive relief, compensatory and punitive damages, front pay, back pay, lost fringe

benefits, attorney’s fees, court costs, and pre-judgment and post-judgment interest. (Id. at 13.)2

 

On or about July 7, 2000, Plaintiff began working as a police officer in the Dallas Police

Department. (Id. at 3.) Throughout his employment with City, he was also a paying member of

Association. (Id.) He alleges that soon after Sergeant Codero (Sergeant) became his supervisor at

an unstated date, a “pattern of discrimination and harassment began.” (Id.) He would make

1

By Special Order No. 3-251, this pro se case has been automatically referred for full case management. 

2

Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page

numbers at the bottom of each filing.

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“degrading and discriminatory comments for the exclusive purpose of harassment” on a daily basis,

including derogatory comments about Plaintiff’s sexual orientation, his sex organs, his “wife’s

infidelity,” and riding a “p***y bike.” (Id. at 3-4.) Sergeant was also “hyper-critical” of Plaintiff’s

work, marking up his reports “only with red ink to shame [him] openly” and resending work for

minor corrections, and he denied Plaintiff overtime hours and access to equipment “necessary and

normal” to perform his job. (Id. at 4.) He “freely grant[ed]” overtime hours to officers of a different

race, color, national origin and gender, however, and he never corrected them “in the same manner

as [Plaintiff] which was openly in front of peers and in a shaming manner.” (Id.)

In or around April 2019, Plaintiff reported Sergeant’s behavior to “Internal Affairs and other

management,” and he “immediately became the target of retaliation from the department.” (Id.)

Plaintiff was “written up and warned several times about illegitimate items” and was “taken off his

job as detective and put on patrol.” (Id.) After meeting with Sergeant and Plaintiff, Lieutenant

Gallagos (Lieutenant) found that Sergeant made “inappropriate harassing comments” and that he

would “take action,” but Sergeant’s “harassing comments and discriminatory behaviors” only

increased. (Id.)

On June 25, 2019, Plaintiff filed a formal complaint against Sergeant “for his daily

harassment and discriminatory and retaliatory behaviors.” (Id. at 5.) An administrative investigation

found that Sergeant made inappropriate comments, and he was issued “a documented write-up[,] but

no further remedy was offered to stop the discrimination, harassment or retaliation against

[Plaintiff].” (Id.) Approximately sixty days after filing his formal discrimination complaint, Plaintiff

“began being written up on a consistent and regular basis.” (Id.) In February 2020, he was placed

on administrative leave for accepting a gift from a citizen he helped, even though he was assured

2

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it was not a department violation. (Id.) He alleges that Lieutenant placed him on administrative leave

“in retaliation for making his complaints.” (Id.) Plaintiff filed an EEOC complaint against

Defendants on February 7, 2020, and he received a right to sue letter on February 2, 2022. (Id. at 2,

6.) He filed this lawsuit on May 5, 2022. (Id. at 1.)

On August 5, 2022, City moved to dismiss under Rule 12(b)(6). (doc. 13.) Plaintiff

responded on September 8, 2022, and City replied on September 22, 2022. (docs. 20; 21.) 

II. RULE 12(b)(6)

City moves to dismiss Plaintiff’s complaint against it under Rule 12(b)(6) for failure to state

a claim upon which relief can be granted. (doc. 13 at 9.)

A. Legal Standard

Rule 12(b)(6) allows motions to dismiss for failure to state a claim upon which relief can be

granted. Fed. R. Civ. P. 12(b)(6). Under the 12(b)(6) standard, a court cannot look beyond the face

of the pleadings. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); see also Spivey v. Robertson,

197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229 (2000). It is well-established that

“pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers.” 

Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981). Nonetheless, regardless of whether the

plaintiff is proceeding pro se or is represented by counsel, pleadings must show specific, wellpleaded facts, not mere conclusory allegations to avoid dismissal. Guidry v. Bank of LaPlace, 954

F.2d 278, 281 (5th Cir. 1992). The court must accept those well-pleaded facts as true and view them

in the light most favorable to the plaintiff. Baker, 75 F.3d at 196. 

“[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof

of [the alleged] facts is improbable, and ‘that a recovery is very remote and unlikely.’” Bell Atl.

3

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Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citation omitted). Nevertheless, a plaintiff must

provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Id. at 555; accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasizing that

“the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions”). The alleged facts must “raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555. In short, a complaint fails to state a claim upon which relief may

be granted when it fails to plead “enough facts to state a claim to relief that is plausible on its face.” 

Id. at 570. 

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. The plausibility standard is not akin to a “probability requirement,” but

it asks for more than a sheer possibility that a defendant has acted unlawfully. Where

a complaint pleads facts that are “merely consistent with” a defendant’s liability, it

“stops short of the line between possibility and plausibility of ‘entitlement to relief.’”

Iqbal, 556 U.S. at 678 (citations omitted). When plaintiffs “have not nudged their claims across the

line from conceivable to plausible, their complaint must be dismissed.” Twombly, 550 U.S. at 570;

accord Iqbal, 556 U.S. at 678.

As noted, a court cannot look beyond the pleadings in deciding a 12(b)(6) motion. Spivey,

197 F.3d at 774; Baker, 75 F.3d at 196. When a party presents “matters outside the pleadings” with

a Rule 12(b)(6) motion to dismiss or in a response to a Rule 12(b)(6) motion to dismiss, a court has

“complete discretion” to either accept or exclude the evidence for purposes of determining the

motion. Isquith ex rel. Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 196 n.3 (5th Cir. 1988); accord

Gen. Retail Servs., Inc. v. Wireless Toyz Franchise, LLC, 255 F. App’x 775, 783 (5th Cir. 2007);

Walch v. Adjutant General’s Dept. of Tex., 533 F.3d 289, 293-94 (5th Cir. 2008). If “matters outside

the pleading[s] are presented to and not excluded by the court, the motion must be treated as one for

4

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summary judgment under Rule 56,” and “[a]ll parties must be given a reasonable opportunity to

present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d).

B. Title VII

1. Discrimination

City argues that Plaintiff has not adequately pled a Title VII discrimination claim because

he “has not alleged that any action was taken against him because of any protected status.” (doc. 13

at 15.)

Title VII makes it unlawful for employers to discriminate against individuals with respect

to their “compensation, terms, conditions, or privileges of employment, because of [their] race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). “A plaintiff can prove intentional

discrimination through either direct or circumstantial evidence.” Wallace v. Methodist Hosp. Sys.,

271 F.3d 212, 219 (5th Cir. 2001). Where the plaintiff offers circumstantial evidence of

discrimination, his discrimination claim is subject to “the burden-shifting analysis introduced in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which first requires [him] to establish a

prima facie case of discrimination.” Saketkoo v. Administrators of Tulane Educ. Fund, 31 F.4th 990,

997 (5th Cir. 2022) (citing Wallace, 271 F.3d at 219). Generally, a plaintiff must establish a prima

facie case of discrimination by showing that he (1) belongs to a protected group; (2) was qualified

for his position; (3) suffered an adverse employment action; and (4) was replaced by or was treated

less favorably than a similarly qualified individual outside the protected class. McCoy v. City of

Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007) (per curiam). 

To satisfy the final element, “the employee must establish that [he] was treated less favorably

than a similarly situated employee outside of [his] protected class in nearly identical circumstances.” 

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Saketkoo, 31 F.4th at 998 (citing Lee v. Kansas City S Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009)).

A plaintiff does so by demonstrating that “the employees being compared held the same job or

responsibilities, shared the same supervisor or had their employment status determined by the same

person, and have essentially comparable violation histories.” Lee, 574 F.3d at 260; see also Dotson

v. Gulf, Civ. A. No. H-05-0106, 2006 WL 44071, at *7 (S.D.Tex. Jan. 9, 2006) (explaining that

“employees with different responsibilities, different supervisors, different capabilities, different

work rule violations, or different disciplinary records are not considered to be ‘nearly identical’”)

(citing Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 514-15 (5th Cir. 2001)).

While a plaintiff’s complaint need not plead a prima facie case of discrimination in the

motion to dismiss context, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002), the prima facie

elements are not entirely irrelevant, and no plaintiff is exempt from his obligation to allege sufficient

facts to state all the elements of his claim, Puente v. Ridge, 324 F. App’x 423, 427-28 (5th Cir.

2009). The ordinary rules for assessing the sufficiency of a complaint apply. Swierkiewicz, 534 U.S.

at 511. It is not sufficient to merely assert a legal conclusion that the plaintiff was discriminated

against because of a protected characteristic. See Landavazo v. Toro Co., 301 F. App’x 333, 336 (5th

Cir. 2008) (per curiam). “When a plaintiff sets out facts that do not seem to have anything to do with

discrimination based on a protected characteristic, the claim is properly dismissed pursuant to Rule

12(b)(6).” Phillips v. United Parcel Serv., No. 3:10-CV-1197-G-BH, 2011 WL 2680725, at *4 (N.D.

Tex. June 21, 2011), adopted by 2011 WL 2678949 (N.D. Tex. July 8, 2011), aff’d by 485 F. App’x

676 (5th Cir. 2012) (citation and quotation omitted).

Here, Plaintiff generally alleges that City discriminated against him based on ethnicity, race,

color, national origin, sexual orientation, and sex, and that he “was treated differently than others

6

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outside his protected classes.” (doc. 3 at 7.) He alleges that his supervisor micromanaged him, was

hyper-critical of his work, marked his reports with red ink, corrected him in a “shaming manner”

before his peers, denied him overtime hours, and restricted him from “necessary and normal”

equipment for his work. (Id. at 4.) He contends that he suffered adverse employment actions as a

result of City’s “discriminatory actions including being demoted, placed on less desirable tasks and

written up falsely.” (Id. at 7.) 

While Plaintiff identifies characteristics that are covered by Title VII, he does not set forth

specific facts that would support the reasonable inference that City took any adverse action because

of any protected status. See, e.g., Raj v. Louisiana State Univ., 714 F.3d 322, 331 (5th Cir. 2013)

(concluding that plaintiff’s “complaint and speculation did not allege any facts, direct or

circumstantial, that would suggest [employer’s] actions were based on [plaintiff’s] race or national

origin”); Whitlock v. Lazer Spot, Inc., 657 F. App’x 284, 287 (5th Cir. 2016) (affirming dismissal

of plaintiff’s race discrimination claim where his “conclusory allegations d[id] not contain sufficient

content to allow us to draw the inference that [defendant] is liable for terminating [plaintiff’s]

employment because of his race”). Further, even though Plaintiff alleges that other officers who

were not in his protected classes were not subject to the same “micromanaging” and “shaming”

actions and received preferential treatment with regards to overtime and equipment approval, he

does not allege that they held the same job and responsibilities, or that they had the same

disciplinary history as him. See Lee, 574 F.3d at 260; Okoye, 245 F.3d at 512; see, e.g., Jones v. City

of Hurst, No. 4:05-CV-798-A, 2006 WL 984197, at *3 (N.D.Tex. Apr. 13, 2006) (granting motion

to dismiss and finding the plaintiff’s “allegation that exceptions were granted to white police officers

is simply too vague and conclusory to withstand defendant’s motion”); Garcia v. Garland Indep.

7

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Sch. Dist., No. 3:11-CV-0502-N-BK, 2011 WL 7473474, at *5 (N.D. Tex. Sept. 26, 2011), adopted

by 2012 WL 779659 (N.D. Tex. Mar. 9, 2012) (dismissing claim where the plaintiff failed to allege

that she was treated less favorably than other employees under the same situations she allegedly

confronted). His conclusory and general claims of discrimination because of his ethnicity, race,

color, national origin, sexual orientation, and sex are not sufficient to state a plausible claim for

discrimination under Title VII. See Landavazo, 301 F. App’x at 336. 

Because Plaintiff has failed to state a claim of discrimination under Title VII, the claim

should be dismissed.3

2. Harassment

City argues that Plaintiff’s Title VII claim for harassment is facially deficient because the

alleged harassment does not implicate his ethnicity, race, color, national origin, sexual orientation,

or sex and is not severely hostile and abusive so as to alter the terms of his employment. (doc. 13

at 19-21.)

Harassment is actionable under Title VII only when “it is so severe or pervasive as to alter

the conditions of [the victim’s] employment and create an abusive working environment.” Clark

Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (quotations omitted). Generally, a plaintiff

must establish a prima facie case of harassment or hostile work environment by showing that (1) he

is a member of a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment

complained of was based on his protected classification; (4) the harassment complained of affected

a term, condition, or privilege of employment; and (5) the employer knew or should have known of

the harassment in question and failed to take prompt remedial action. Bye v. MGM Resorts Int’l, Inc.,

3

Because Plaintiff’s Title VII discrimination claim is otherwise subject to dismissal for failure to state a claim,

it is unnecessary to reach City’s remaining arguments for dismissal.

8

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49 F.4th 918, 923 (5th Cir. 2022) (citing Woods v. Delta Beverage Grp., Inc., 274 F.3d 295, 298 (5th

Cir. 2001)).. A plaintiff is not required to prove the fifth element if the alleged harasser is a

supervisor. Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353-54 (5th Cir. 2001) (citation

omitted).

For harassment to affect a term, condition, or privilege of employment, it must be

“sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an

abusive work environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). “A plaintiff ‘must

subjectively perceive the harassment as sufficiently severe or pervasive, and this subjective

perception must be objectively reasonable.’” Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320,

325 (5th Cir. 2019) (quoting Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir. 2003)). In

determining whether a workplace constitutes a hostile work environment, a court “examines the

totality of circumstances, including the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.” Patton v. Jacobs Eng’g Grp., Inc.,

874 F.3d 437, 445 (5th Cir. 2017) (citation and quotations omitted); see also Hockman v. Westward

Commc’ns, LLC, 407 F.3d 317, 325-26 (5th Cir. 2004) (recognizing that “no single factor is

required”). “[A]llegations of unpleasant work meetings, verbal reprimands, improper work requests,

and unfair treatment do not constitute actionable adverse employment actions as discrimination or

retaliation.” Bye, 49 F.4th at 923 (quoting Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 826

(5th Cir. 2019)). Although verbal intimidation, ridicule, and insults may be sufficiently severe or

pervasive to support a violation of Title VII, simple teasing, offhand comments, and isolated

incidents, unless extremely serious, are not sufficient. See Faragher v. City of Boca Raton, 524 U.S.

9

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775, 788 (1998). 

Here, Plaintiff alleges in conclusory fashion that Sergeant “made harassing comments that

were both severe and pervasive as they occurred on a daily basis and were such an egregious

character and nature as to qualify as legitimate legal harassment creating a hostile working

environment based on race, sex, color and national origin.” (doc. 3 at 7.) The allegedly “degrading

and discriminatory comments” include “comments regarding Plaintiff’s sex orientation, his sex

organs, his wife’s infidelity and characterizing her as a ‘slut’ (which were both untrue), [and] his

motorcycle being a ‘p***y bike.’” (Id. at 3.) He also alleges that Sergeant micro-managed his

workload, was “hyper-critical” of his work, and corrected him “openly in front of peers and in a

shaming manner.” (Id.) There are no factual allegations in the complaint to suggest that the alleged

harassment suffered by Plaintiff was based on race, sex, color, or national origin, however. Zavala

v. Carrollton-Farmers Branch Indep. Sch. Dist., No. 3:16-CV-1034-D, 2017 WL 274133, at *4

(N.D. Tex. Jan. 20, 2017) (explaining that a claim for harassment under Title VII must allege facts

that show a “connection between the allegedly harassing incidents and [plaintiff’s] protected

status”). Even if the alleged actions were taken because of a protected characteristic, they are not

sufficient to create an inference that the harassment was sufficiently severe or pervasive to create

a hostile work environment. See Hockman, 407 F.3d at 328 (finding remarks about a coworker’s

body and requests to be alone with plaintiff are “offhand comments that are boorish and offensive,

but not severe”); Long v. Eastfield College, 88 F.3d 300, 309 (5th Cir. 1996) (finding single joke

involving condoms insufficient to create hostile environment); see also DeAngelis v. El Paso Mun.

Police Officers Ass’n, 51 F.3d 591, 595-96 (5th Cir. 1995) (noting that “mere utterance of an ...

epithet which engenders offensive feelings in an employee” is not enough to constitute hostile

10

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environment harassment). 

Because Plaintiff has failed to state a claim of harassment under Title VII, the claim should

be dismissed.4

3. Retaliation

City argues that Plaintiff has not pled a plausible Title VII claim for retaliation because he

“has not alleged that he engaged in protected activity prior to the alleged retaliation.” (doc. 13 at 23.)

Title VII makes it unlawful for employers to retaliate against an individual because he has

opposed any practice made an unlawful employment practice by the relevant statutes, or because he

has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding,

or hearing under the relevant statute. 42 U.S.C. § 2000e–3(a); Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 59 (2006) (quoting § 2000e–3(a)). Title VII retaliation claims that are based on

circumstantial evidence are analyzed under the familiar burden-shifting framework outlined in

McDonnell Douglas. See Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571, 577 (5th Cir. 2020);

Wheat v. Florida Parish Juvenile Justice Comm’n, 811 F.3d 702, 705 (5th Cir. 2016). A plaintiff

must first establish a prima facie case of retaliation by showing that: (1) he engaged in activity

protected by Title VII; (2) a materially adverse employment action against him occurred; and (3)

there was a causal link between his protected activity and the adverse action. Wheat, 811 F.3d at

705; see also Brown, 969 F.3d at 577.5

4

Because Plaintiff’s Title VII harassment claim is otherwise subject to dismissal for failure to state a claim, it

is unnecessary to reach City’s remaining arguments for dismissal.

5

Although a plaintiff is not required to plead the prima facie case of retaliation, he must plead sufficient facts

on all of “the ultimate elements” of a retaliation claim to make his case plausible. See Jenkins v. State Workforce

Comm’n, 713 F. App’x 242, 245 (5th Cir. 2017) (citing Chhim v. Univ. of Texas, 836 F.3d 467, 470 (5th Cir. 2016)

(explaining that the prima facie elements for retaliation are helpful in analyzing the sufficiency of the complaint)).

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“Protected activity is opposition to any practice rendered unlawful by Title VII, including

making a charge, testifying, assisting, or participating in any investigation, proceeding, or hearing

under Title VII.” Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir. 2000) (citation

omitted); see also 42 U.S.C. § 2000e–3(a). “In a claim of protected opposition, an employee must

at least have referred to conduct that could plausibly be considered discriminatory in intent or effect,

thereby alerting the employer of its discriminatory practices.” Saketkoo, 31 F.4th at 1000 (quoting

Allen v. Envirogreen Landscape Pros., Inc., 721 F. App’x 322, 326 (5th Cir. 2017) (per curiam). If

the conduct complained of by a plaintiff had nothing to do with race, color, religion, sex or national

origin, he cannot maintain a retaliation claim under Title VII. See Arora, 294 F. App’x at 162

(finding no protected activity where the complained of activity did not involve an employee being

treated unfairly due to race or sex); Grey v. Dallas Indep. Sch. Dist., 265 F. App’x 342, 346-47 (5th

Cir. 2008) (per curiam) (finding no protected activity where plaintiff failed to show opposition to

a violation of Title VII). The Fifth Circuit “has consistently held that a vague complaint, without any

reference to an unlawful employment practice under Title VII, does not constitute protected

activity.” Paske v. Fitzgerald, 785 F.3d 977, 986 (5th Cir. 2015) (citation omitted).

Plaintiff’s complaint alleges that City retaliated against him “for making his reports of

discrimination and harassment and initiating investigations”, (doc. 3 at 8), but there are no facts to

plausibly establish that any of his complaints referenced an unlawful employment practice under

Title VII. See Jenkins v. Louisiana Workforce Comm’n, 713 F. App’x 242, 246 (5th Cir. 2017)

(affirming dismissal of retaliation claim where “the complaint ma[de] no allegation that [plaintiff’s]

grievance was opposing or protesting racial or sexual discrimination”). Although he generally

alleges that he made several complaints about Sergeant’s “harassment and discrimination,” there are

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no allegations to suggest that the conduct at issue related to his race, sex, or other characteristics

protected by Title VII. See, e.g., Harris–Childs v. Medco Health Solutions, Inc., 169 F. App’x 913,

916 (5th Cir. 2006) (finding no protected activity where plaintiff’s complaints to her employer did

not allege that she was treated unfairly due to her race or gender). “A general allegation of hostility

is not enough.” Saketkoo, 31 F.4th at 1000. Plaintiff’s conclusory allegations are not sufficient to

create a plausible inference that he was subjected to an adverse employment action because he

participated in a protected activity. See Saketkoo, 31 F.4th at 1000; Paske, 785 F.3d at 986. 

Because Plaintiff has failed to state a claim of retaliation under Title VII, the claim should

be dismissed.6

C. Sections 1981 and 1983

City argues that Plaintiff’s complaint fails to adequately plead a claim of municipal liability

under §§ 1981 and 1983. (doc. 13 at 28.)

“As a general matter, section 1981 serves as a deterrent to employment discrimination and

a means of punishing employers who discriminate on the basis of race.” Carroll v. Gen. Accident

Ins. Co. of Am., 891 F.2d 1174, 1176 (5th Cir. 1990). Section 1981 also encompasses claims of

retaliation. CBOCS W., Inc. v. Humphries, 553 U.S. 442, 457 (2008). 

Section 19837

 provides the sole remedy for claims of racial discrimination and retaliation

against a government entity under § 1981. Oden v. Oktibbeha Cty., Miss., 246 F.3d 458, 462 (5th

6

Because Plaintiff’s Title VII retaliation claim is otherwise subject to dismissal for failure to state a claim, it

is unnecessary to reach City’s remaining arguments for dismissal.

7

Section 1983 “provides a federal cause of action for the deprivation, under color of law, of a citizen’s ‘rights,

privileges, or immunities secured by the Constitution and laws’ of the United States” and “afford[s] redress for violations

of federal statutes, as well as of constitutional norms.” Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). To state a claim

under § 1983, the plaintiff must allege facts that show (1) he has been deprived of a right secured by the Constitution

and the laws of the United States; and (2) the deprivation occurred under color of state law. See Flagg Bros., Inc. v.

Brooks, 436 U.S. 149, 155 (1978); Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005). 

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Cir. 2001) (citing Jett v. Dallas Independent School District, 491 U.S. 701, 731 (1989)). An

employee seeking to recover against a municipal employer under § 1981 “cannot proceed under a

theory of respondeat superior and must instead satisfy the ‘custom or policy’ test fashioned for suits

against a municipality under § 1983.” See Evans v. City of Houston, 246 F.3d 344, 358 (5th Cir.

2001) (citations omitted). “Municipal liability under both Section 1981 and Section 1983 requires

proof of three elements in addition to the underlying claim of a violation of rights: ‘a policymaker;

an official policy; and a violation of constitutional rights whose moving force is the policy or

custom.’” Cox v. City of Dallas, 430 F.3d 734, 748 (5th Cir. 2005) (quoting Piotrowski v. City of

Houston, 237 F.3d 567, 578 (5th Cir. 2001)). 

“Official policy” is defined as:

1. A policy statement, ordinance, regulation, or decision that is officially adopted and

promulgated by the municipality’s lawmaking officers or by an official to whom the

lawmakers have delegated policy-making authority; or

2. A persistent, widespread practice of city officials or employees, which, although

not authorized by officially adopted and promulgated policy, is so common and well

settled as to constitute a custom that fairly represents municipal policy. Actual or

constructive knowledge of such custom must be attributable to the governing body

of the municipality or to an official to whom that body had delegated policy-making

authority. Actions of officers or employees of a municipality do not render the

municipality liable under § 1983 unless they execute official policy as above defined.

Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc); accord Pineda v. City of

Houston, 291 F.3d 325, 328 (5th Cir. 2002). “The description of a policy or custom and its

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

specific facts.” Spiller v. City of Texas City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997) (citing

Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992)).

Here, Plaintiff fails to specifically allege the elements of a municipal liability claim under

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§ 1983. (See doc. 3.) He does not allege a custom or a specific policy officially adopted and

promulgated by City’s lawmaking officers or by an official who had been delegated law-making

authority. See Cox, 430 F.3d at 748. He also fails to allege facts to show that any custom or policy

was the moving force behind a violation of his federally protected rights. See id. Because his

complaint lacks the required specificity, it fails to state a claim for municipal liability under § 1983

for violations of § 1981. See Evans, 246 F.3d at 358; see, e.g., Knox v. City of Monroe, 551 F.

Supp.2d 504, 513 (W.D. La. 2008) (dismissing § 1981 claim where plaintiff “failed to allege a City

policy or custom which resulted in the alleged race discrimination against her”); Hayden v. City of

Fort Worth, No. 4:17-CV-452-A, 2017 WL 4011296, at *3 (N.D. Tex. Sept. 11, 2017) (dismissing

§ 1981 action against city because plaintiff failed to alleged any of the elements necessary for

municipal liability under § 1983). 

Plaintiff’s claims for discrimination, harassment, and retaliation under §§ 1981 and 1983

should be dismissed.8

 

IV. OPPORTUNITY TO AMEND

Notwithstanding their failure to plead sufficient facts, the Fifth Circuit is inclined to give pro

se plaintiffs several opportunities to state a claim upon which relief can be granted. See Scott v.

Byrnes, No. 3:07-CV-1975-D, 2008 WL 398314, at *1 (N.D. Tex. Feb. 13, 2008); Sims v. Tester,

No. 3:00-CV-0863-D, 2001 WL 627600, at *2 (N.D. Tex. Feb. 13, 2001). Courts therefore typically

allow pro se plaintiffs an opportunity to amend their complaints when the action is to be dismissed

pursuant to a court order. See Robinette v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No.

3:96-CV-2923-D, 2004 WL 789870, at *2 (N.D. Tex. Apr. 12, 2004); Sims, 2001 WL 627600, at

8

Because Plaintiff’s claims for discrimination, harassment, and retaliation under §§1981 and 1983 are otherwise

subject to dismissal for failure to state a claim, it is unnecessary to reach City’s remaining arguments for dismissal.

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*2. Courts, nonetheless, may appropriately dismiss an action with prejudice without giving an

opportunity to amend when the plaintiff fails to respond to a motion to dismiss after being

specifically invited to do so by the court, Rodriguez v. United States, 66 F.3d 95, 97 (5th Cir. 1995),

or if it finds that the plaintiff has alleged his or her best case, Jones v. Greninger, 188 F.3d 322, 327

(5th Cir. 1999). When a court “outline[s] in [its] opinion the deficiencies” of plaintiff’s complaint

and “plaintiff nevertheless cannot ... amend to satisfy [the relevant pleading standard,] the court can

then dismiss the complaint with the assurance that plaintiff has been shown all the deference he is

due.” Sims, 2001 WL 627600, at *2-3 (quoting Barber v. G.H. Rodgers, No. CA3-84-1750-D (N.D.

Tex. Sept. 13, 1988)).

Here, Plaintiff has not amended his complaint, and it does not appear that he has pled his best

case against City. He should therefore be accorded an opportunity to amend his complaint to

sufficiently state a claim for relief against City.9

V. RECOMMENDATION

If Plaintiff does not file an amended complaint within the 14 days allotted for objections to

this recommendation, or a deadline otherwise set by the Court, the motion to dismiss under Rule

12(b)(6) should be GRANTED, and all claims against City should be DISMISSED with prejudice

for failure to state a claim. If Plaintiff timely files an amended complaint, however, the motion to

dismiss under Rule 12(b)(6) should be DENIED as moot, and the action should be allowed to

9

Plaintiff’s response “requests the Court to permit him to replead his allegations.” (See doc. 20 at 1.) A party

is not entitled to remedy a pleading deficiency simply by seeking leave to amend in response to a motion to dismiss,

however. Spiller, 130 F.3d at 167. When a party opposes a motion to dismiss on its merits while also asking for leave

to amend should dismissal be deemed proper, the party “may not avoid the implications” of his choices. Id. In addition,

Plaintiff has not sought leave to amend in accordance with LR 15.1. Shabazz v. Franklin, 380 F. Supp.2d 793, 798 (N.D.

Tex. 2005) (accepting recommendation). Even as a pro se litigant, he has a duty to comply with the applicable federal

and local rules of civil procedure. Even if Plaintiff’s request is liberally construed as a motion, however, it is moot

because it has recommended that he be provided an opportunity to amend his complaint.

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proceed against it on the amended complaint.

SO RECOMMENDED on this 17th day of January, 2023.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of these findings, conclusions and recommendation shall be served on all parties in

the manner provided by law. Any party who objects to any part of these findings, conclusions and

recommendation must file specific written objections within 14 days after being served with a copy. 

See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify

the specific finding or recommendation to which objection is made, state the basis for the objection,

and specify the place in the magistrate judge’s findings, conclusions and recommendation where the

disputed determination is found. An objection that merely incorporates by reference or refers to the

briefing before the magistrate judge is not specific. Failure to file specific written objections will

bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate

judge that are accepted or adopted by the district court, except upon grounds of plain error. See

Douglass v. United Servs. Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

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