IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

KYLE DAMOND JONES, § 

 § 

Plaintiff, § 

 § 

V. § No. 3:22-cv-809-G-BN 

 § 

DOLLAR TREE STORES INC., § 

 § 

Defendant. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Plaintiff Kyle Damond Jones, who alleges that he is “autistic and disabled,” 

filed a pro se complaint against Defendant Dollar Tree Stores under Title II of the 

Americans with Disabilities Act (ADA), alleging that, while at a Dollar Tree Store in 

Dallas, he was “punched and attacked due to the failure of Dollar Tree to protect 

disabled customers and others in need of security.” Dkt. No. 3. Jones also moved for 

leave to proceed in forma pauperis (IFP). See Dkt. No. 4. So Senior United States 

District Judge A. Joe Fish referred Jones’s lawsuit to the undersigned United States 

magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing 

order of reference. The Court will grant Jones leave to proceed IFP through a separate 

order. And the undersigned enters these findings of fact, conclusions of law, and 

recommendation that the Court should dismiss this lawsuit for Jones’s failure to 

allege a plausible claim under Title II of the ADA. 

Legal Standards 

A district court is required to screen a civil action filed IFP and may summarily 

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dismiss that action, or any portion of the action, if, for example, it fails to state a claim 

on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). “The language of § 

1915(e)(2)(B)(ii) tracks the language of Federal Rule of Civil Procedure 12(b)(6).” 

Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998) (per curiam). 

Even outside the IFP context, “[i]t is well-established that a district court may 

dismiss a complaint on its own motion under [Rule] 12(b)(6) for failure to state a claim 

upon which relief may granted.” Starrett v. U.S. Dep’t of Defense, No. 3:18-cv-2851-

M-BH, 2018 WL 6069969, at *1 (N.D. Tex. Oct. 30, 2018) (citing Carroll v. Fort James 

Corp., 470 F.3d 1171 (5th Cir. 2006) (citing, in turn, Shawnee Int’l, N.V. v. Hondo 

Drilling Co., 742 F.2d 234, 236 (5th Cir. 1984))), rec. accepted, 2018 WL 6068991 (N.D. 

Tex. Nov. 20, 2018), aff’d, 763 F. App’x 383 (5th Cir.) (per curiam), cert. denied, 140 

S. Ct. 142 (2019). 

A district court may exercise its “inherent authority ... to dismiss a complaint 

on its own motion ... ‘as long as the procedure employed is fair.’” Gaffney v. State Farm 

Fire & Cas. Co., 294 F. App’x 975, 977 (5th Cir. 2008) (per curiam) (quoting Carroll, 

470 F.3d at 1177 (quoting, in turn, Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 

1998)); citation omitted). And the United States Court of Appeals for Fifth Circuit has 

“suggested that fairness in this context requires both notice of the court’s intention 

to dismiss sua sponte and an opportunity to respond.” Id. (cleaned up; quoting Lozano 

v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 643 (5th Cir. 2007) (quoting, in turn, Carroll, 

470 F.3d at 1177)); accord Carver v. Atwood, 18 F.4th 494, 498 (5th Cir. 2021) (“The 

broad rule is that ‘a district court may dismiss a claim on its own motion as long as 

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the procedure employed is fair.’ More specifically, ‘fairness in this context requires 

both notice of the court’s intention and an opportunity to respond’ before dismissing 

sua sponte with prejudice.” (citations omitted)). 

Notice is provided through these findings, conclusions, and recommendations 

(the FCR), and the period to file objections to the FCR (further explained below) 

affords an opportunity to respond. See, e.g., Starrett, 2018 WL 6069969, at *2 

(citations omitted). 

Dismissal for failure to state a claim under either Rule 12(b)(6) or Section 

1915(e)(2)(B)(ii) “turns on the sufficiency of the ‘factual allegations’ in the complaint,” 

Smith v. Bank of Am., N.A., 615 F. App’x 830, 833 (5th Cir. 2015) (per curiam) 

(quoting Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014) (per curiam)), as 

neither the IFP statute nor the Federal Rules of Civil Procedure “countenance 

dismissal of a complaint for imperfect statement of the legal theory supporting the 

claim asserted,” Johnson, 574 U.S. at 11. 

Instead, plaintiffs need only “plead facts sufficient to show” that the claims 

asserted have “substantive plausibility” by stating “simply, concisely, and directly 

events” that they contend entitle them to relief. Id. at 12 (citing FED. R. CIV. P. 8(a)(2)-

(3), (d)(1), (e)). 

“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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility 

standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer 

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possibility that a defendant has acted unlawfully.” Id. And “[a] claim for relief is 

implausible on its face when ‘the well-pleaded facts do not permit the court to infer 

more than the mere possibility of misconduct.’” Harold H. Huggins Realty, Inc. v. 

FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679); see also 

Inclusive Communities Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 899 (5th Cir. 

2019) (“‘Determining whether a complaint states a plausible claim for relief’ is ‘a 

context-specific task that requires the reviewing court to draw on its judicial 

experience and common sense.’” (quoting Iqbal, 556 U.S. at 679; citing Robbins v. 

Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (“[T]he degree of specificity 

necessary to establish plausibility and fair notice, and therefore the need to include 

sufficient factual allegations, depends on context.”))). 

While, under Federal Rule of Civil Procedure 8(a)(2), a complaint need not 

contain detailed factual allegations, a plaintiff must allege more than labels and 

conclusions, and, while a court must accept all of a plaintiff’s allegations as true, it is 

“not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 

556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A 

threadbare or formulaic recitation of the elements of a cause of action, supported by 

mere conclusory statements, will not suffice. See id. 

This rationale has even more force here, as “[p]ro se complaints receive a 

‘liberal construction.’ Even so, ‘mere conclusory allegations on a critical issue are 

insufficient.’” Brown v. Tarrant Cnty., Tex., 985 F.3d 489, 494 (5th Cir. 2021) (quoting 

Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018), then United States v. Woods, 

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870 F.2d 285, 288 n.3 (5th Cir. 1989) (per curiam)). And “liberal construction does not 

require that the Court ... create causes of action where there are none.” Smith v. CVS 

Caremark Corp., No. 3:12-cv-2465-B, 2013 WL 2291886, at *8 (N.D. Tex. May 23, 

2013). “To demand otherwise would require the ‘courts to explore exhaustively all 

potential claims of a pro se plaintiff’” and would “‘transform the district court from its 

legitimate advisory role to the improper role of an advocate seeking out the strongest 

arguments and most successful strategies for a party.’” Jones v. Mangrum, No. 3:16-

cv-3137, 2017 WL 712755, at *1 (M.D. Tenn. Feb. 23, 2017) (quoting Beaudett v. City 

of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)). 

Analysis 

Title II of the ADA “covers discrimination in the provision of public services,” 

Melton v. Dall. Area Rapid Transit, 391 F.3d 669, 671 (5th Cir. 2004) (citing 42 U.S.C. 

§§ 12131, et seq.), and 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; see also 28 C.F.R. 

§ 35.130(a) (“No qualified individual with a disability shall, on the basis 

of 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 public entity”). 

Greer v. Richardson Indep. Sch. Dist., 472 F. App’x 287, 290-91 (5th Cir. 2012) (per 

curiam) (footnote omitted). 

To plausibly allege a claim under Title II of the ADA, a plaintiff must allege 

facts to show – or from which the Court may infer – 

“(1) that he is a qualified individual within the meaning of the ADA; (2) 

that he is being excluded from participation in, or being denied benefits 

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

responsible, or is otherwise being discriminated against by the public 

entity; and (3) that such exclusion, denial of benefits, or discrimination 

is by reason of his disability.” 

Windham v. Harris Cnty., Tex., 875 F.3d 229, 235 (5th Cir. 2017) (quoting Melton, 

391 F.3d at 671-72); accord Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011). 

If a plaintiff does not, the ADA claim should be dismissed. See, e.g., Nelson v. 

Collins, 765 F. App’x 75, 75-76 (5th Cir. 2019) (per curiam) (affirming dismissal of an 

ADA Title II claim where the plaintiff’s “allegations [did] not set forth facts 

supporting a claim that he was discriminated against in any way because of his 

disability”); Mora v. Univ. of Tex. Sw. Med. Ctr., No. 3:09-cv-927-N, 2011 WL 

13183237, at *4 (N.D. Tex. Feb. 10, 2011) (“Mora fails to allege sufficient facts that 

support a plausible claim that she is an individual with a disability. Although she 

offers the conclusory statements that she has an ‘impairment’ that ‘substantially 

limits her major life activities,’ she fails to identify any life activity that her 

alcoholism affects. Although Mora need not plead a prima facie case, she must provide 

grounds demonstrating an entitlement to relief that are more than labels and 

conclusions.” (citations omitted)), aff’d, 469 F. App’x 295 (5th Cir. 2012) (per curiam). 

Here, even if the Court accepts that Jones has a qualifying disability and that 

his allegedly being attacked excluded him from public services provided by the 

defendant, Jones has not alleged facts that demonstrate – or from which the Court 

may infer – that he was attacked (or otherwise discriminated against) because of his 

disability. As to this required element of a plausible ADA claim, Jones only asserts 

his own legal conclusion. See Dkt. No. 3 at 2 (“I am autistic and disabled so upon 

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entering the store I asked an employee who appeared to be a manager where security 

was.... At the store I was punched and attacked due to the failure of Dollar Tree to 

protect disabled customers and others in need of security.”). 

While Jones need not plead a prima facie case of disability discrimination 

under Title II of the ADA at this stage, his complaint must include facts that allow 

the Court to infer more than the mere possibility of disability discrimination. Cf. 

Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016) (per curiam) 

(“Although [the plaintiff] did not have to submit evidence to establish a prima facie 

case of discrimination at [the motion to dismiss] stage, he had to plead sufficient facts 

on all of the ultimate elements of a disparate treatment claim to make his case 

plausible.” (citations omitted)). Because he has not included such facts, his complaint 

should be dismissed. 

The time to file objections to the FCR (further explained below) allows Jones 

an opportunity to explain how he would cure the deficiencies identified above (that is 

provide enough facts to plausibly allege all elements of a claim under Title II of the 

ADA) and thus show the Court that his case should not be dismissed with prejudice 

at this time and that the Court should instead grant him leave to amend his claims. 

See Scott v. U.S. Bank Nat’l Ass’n, 16 F.4th 1204, 1209 (5th Cir. 2021) (per curiam) 

(“A court should freely give leave to amend when justice so requires, FED. R. CIV. P. 

15(a)(2), but a movant must give the court at least some notice of what his or her 

amendments would be and how those amendments would cure the initial complaint’s 

defects. Thomas v. Chevron U.S.A., Inc., 832 F.3d 586, 590 (5th Cir. 2016). If the 

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plaintiff does not provide a copy of the amended complaint nor explain how the defects 

could be cured, a district court may deny leave. McKinney v. Irving Indep. Sch. Dist., 

309 F.3d 308, 315 (5th Cir. 2002) (affirming denial of leave to amend where plaintiffs 

‘failed to amend their complaint as a matter of right, failed to furnish the district 

court with a proposed amended complaint, and failed to alert both the court and the 

defendants to the substance of their proposed amendment’).”). 

If Jones fails to show that leave to amend should be granted, the Court should 

dismiss this case with prejudice. 

Recommendation

The Court should dismiss this action with prejudice unless, within the time to 

file objections, Jones satisfactorily shows that he can amend his complaint to allege 

a plausible claim under Title II of the Americans with Disabilities Act. 

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 

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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. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

DATED: April 14, 2022 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE 

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