UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

ROBERT FUENTES,

Plaintiff,

v.

TEXAS DEPARTMENT OF 

CRIMINAL JUSTICE (TDCJ),

Defendant.

§

§

§

§

§

§

§

§

§

§

Civil Action No. 7:22-cv-00038-O

ORDER AND OPINION

Before the Court are Defendant’s Motion to Dismiss Plaintiff’s USERRA Claims (ECF 

No. 24), filed February 10, 2023; Plaintiff’s response (ECF No. 28), filed March 17, 2023; and 

Defendant’s reply (ECF No. 29), filed March 31, 2023. For the reasons contained herein, 

Defendant’s motion is hereby GRANTED. However, the Court further GRANTS Plaintiff leave 

to file a motion to amend. 

I. Factual and Procedural Background1

Plaintiff Robert Fuentes is a military veteran, serving on active duty from 2009 until 2015 

and remaining on the IRR until 2019. Plaintiff has been diagnosed with PTSD related to his 

honorable military service. Due to his PTSD, Plaintiff has been prescribed the medication Prozac, 

which he takes daily. According to Plaintiff’s Amended Complaint, Prozac (or Fluoxetine) is 

known to cause false positive drug test results for LSD, Amphetamine, and Methamphetamine.

2

1 The Court’s recitation of the factual background is taken from Plaintiff’s Amended Complaint. See Am. 

Compl., ECF No. 22. At the motion to dismiss stage, all well-pleaded facts are taken as true. Ashcroft v. 

Iqbal, 556 U.S. 662, 678–79 (2009).

2

Id. at ¶ 14. 

Case 7:22-cv-00038-O Document 34 Filed 08/04/23 Page 1 of 8 PageID 175
2

Plaintiff was employed by Defendant Texas Department of Criminal Justice (“TDCJ”) as 

a Correctional Officer IV at the James V. Allred Unit from September of 2019 until August of 

2021. 

In May 2021, Plaintiff submitted to a random drug screen urine test. Soon after, Plaintiff 

was contacted by the TDCJ Medical Review Officer (MRO) regarding a positive test for 

Amphetamines and/or Methamphetamines. Plaintiff informed the MRO that he takes Prozac, 

known to give false positive test results for Amphetamines and Methamphetamines, as well as a 

nasal inhaler for allergies and sinus congestion, also known to provide a positive test result for 

Amphetamines. The MRO told Plaintiff that Prozac is not on Defendant’s list of medications that 

will produce a false positive test. Plaintiff states that the MRO then denied Plaintiff the ability to 

provide medical documentation and refused to engage in any dialog with Plaintiff’s physician or 

consider any of the multiple medical reports that show Prozac produces a false positive test for 

Amphetamines. The MRO informed Plaintiff that she would be reporting to Defendant that 

Plaintiff had tested positive for Amphetamines and/or Methamphetamines.

Defendant’s Warden Hooper later called Plaintiff to inform him that Plaintiff needed to

report to his unit to give a statement for disciplinary action. At the subsequent meeting, Plaintiff 

states he provided the warden with all medical documentation, including Plaintiff’s prescription 

list, medical journals stating Prozac is known to cause positive tests for Amphetamines, a written 

statement from Plaintiff’s doctor that he prescribed Prozac to Plaintiff and that Prozac causes false 

positive tests for Amphetamines, and Plaintiff also provided his own written statement indicating 

that he has never used recreational drugs and that the test result in question was a result of the 

prescription medication he is taking for his PTSD. 

Case 7:22-cv-00038-O Document 34 Filed 08/04/23 Page 2 of 8 PageID 176
3

In June 2021, a disciplinary hearing packet was delivered to Plaintiff via certified mail. 

Included in the packet were noteswritten by the warden which Plaintiffstates inaccurately reported 

the timeline of events, as well as the medical journals and prescription list provided by Plaintiff. 

The packet included notes indicating that Plaintiff had provided medical documentation to 

Defendant regarding the fact that Plaintiff takes prescription Prozac for his PTSD, and that Prozac 

can cause a false positive for Amphetamines. Despite this record, Defendant recommended that 

Plaintiff be immediately removed from duty with a disciplinary hearing set for June 21, 2021. 

Plaintiff was eventually terminated from his position.3

On April 14, 2022, Plaintiff filed this lawsuit against Defendant, alleging claims under the 

Rehabilitation Act.4 As Plaintiff initially filed this lawsuit using the pseudonym “John Doe,” the 

Court ordered the parties to brief whether Plaintiff should be able to proceed anonymously.5 On 

January 12, 2023, the Court denied Plaintiff’s motion to proceed anonymously and ordered him 

to file an amended complaint without pseudonyms.6 On January 27, 2023, Plaintiff filed an 

amended complaint, adding claims under the Uniformed Services Employment and 

Reemployment Rights Act (“USERRA”) for compensatory and declarative relief.7 On February 

10, 2023, Defendant filed its motion to dismiss for lack of subject matter jurisdiction under Federal 

Rule 12(b)(1).8 Plaintiff filed his response on March 17, 2023.9 Defendant filed its reply on March 

31, 2023.10 The motion is now ripe for the Court’s review. 

3 The Amended Complaint does not clearly state the date Plaintiff was terminated. 

4 See Compl., ECF No. 1. 

5 See ECF No. 5. 

6 Order, ECF No. 20. 

7 Am. Compl., ECF No. 22. 

8 Def. Mot., ECF No. 24. 

9 Pl. Resp., ECF No. 28. 

10 Def. Reply, ECF No. 29. 

Case 7:22-cv-00038-O Document 34 Filed 08/04/23 Page 3 of 8 PageID 177
4

II. Legal Standard

Federal district courts are courts of limited jurisdiction; thus, unless proven otherwise, it is 

presumed that the case is outside the scope of a district court's jurisdiction. See Kokkonen v. 

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A motion to dismiss under Rule 12(b)(1) 

of the Federal Rules of Civil Procedure challenges a federal court's subject matter jurisdiction. 

FED. R. CIV. P. 12(b)(1). A court must dismiss a complaint if it lacks subject matter jurisdiction. In 

re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286 (5th Cir. 2012). A plaintiff 

always has the burden to show jurisdiction exists. Ramming v. United States, 281 F.3d 158, 161 

(5th Cir. 2001) (citation omitted). A court may dismiss a claim for lack of subject matter 

jurisdiction based on: “(1) the complaint alone; (2) the complaint supplemented by undisputed 

facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the 

court's resolution of disputed facts.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).

III. Analysis

Defendant TDCJ moves to dismiss Plaintiff’s USERRA causes of action for lack of subject 

matter jurisdiction under Rule 12(b)(1).11 Defendant contends that Plaintiff’s USERRA claims are 

barred as USERRA does not contain an abrogation of sovereign immunity for a cause of action 

brought by a private person against a state employer in federal court, and thus, the Court lacks

subject matter jurisdiction over Plaintiff’s USERRA claims.

12

The Supreme Court has “made clear that the Constitution does not provide for federal 

jurisdiction over suits against nonconsenting states.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 

(2000). Such suits are barred by sovereign immunity “absent waiver by the State or valid 

congressional override.” Kentucky v. Graham, 473 U.S. 159, 169 (1985). For claims to be barred 

11 Def. Mot. 1, ECF No. 24. 

12 Id. at 2. 

Case 7:22-cv-00038-O Document 34 Filed 08/04/23 Page 4 of 8 PageID 178
5

by sovereign immunity, “the state need not be the named party in a federal lawsuit, for a state's 

Eleventh Amendment immunity extends to any state agency or entity deemed an ‘alter ego’ or 

‘arm’ of the state.” Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 (5th Cir. 2002) (citing 

Vogt v. Bd. of Commissioners of the Orleans Levee District, 294 F3d 684, 688–89 (5th Cir. 2002)).

USERRA is “a federal law that protects employees from being discriminated against by 

their employers because of their military service.” McIntosh v. Partridge, 540 F.3d 315, 320 (5th 

Cir. 2008) (citing 38 U.S.C. § 4311). The language of USERRA states clearly that “[i]n the case 

of an action against a State (as an employer) by a person, the action may be brought in a State court 

of competent jurisdiction in accordance with the laws of State.” 38 U.S.C. § 4323(b)(2). In this 

case, Plaintiff brings his USERRA claims against Defendant TDCJ, which is “an arm of the state 

of Texas and thus entitled to sovereign immunity.” Valentine v. Collier, 993 F.3d 270, 280 (5th 

Cir. 2021). Accordingly, Defendant contends that Plaintiff’s USERRA claims must be brought in 

state court.13

In Mcintosh v. Partridge, the Fifth Circuit held that the language of USERRA § 4323(b)(2) 

provides no indication that Congress intended for these claims to be brought in federal court. See

McIntosh, 540 F.3d at 321. In its reasoning, the Fifth Circuit compared the language of 38 U.S.C. 

§ 4323(b)(2) to the language of neighboring provisions §§ 4323(b)(1) and (b)(3), where Congress

explicitly provided for federal jurisdiction in cases where the federal government brings a 

USERRA claim or when the defendant is a private employer. Id. The Fifth Circuit stated that these 

neighboring provisions “demonstrate that Congress knew how to provide for federal jurisdiction 

but specifically chose not to do so for USERRA claims brought by individuals against states as 

employers.” Id. The Fifth Circuit further considered the effect of the 1998 amendments to 

13 Def. Mot. 4, ECF No. 24. 

Case 7:22-cv-00038-O Document 34 Filed 08/04/23 Page 5 of 8 PageID 179
6

USERRA, which added the current jurisdictional language of § 4323(b)(2). Id. The Fifth Circuit 

reasoned that, after examining the text of the statute in its current and prior forms, there is “no 

‘unmistakably clear’ intention by Congress to abrogate state sovereign immunity by allowing 

individuals to bring USERRA claims against states as employers in federal court.” Id. Therefore, 

the Fifth Circuit held that it did not have jurisdiction over the plaintiff’s USERRA claim. Id. 

Plaintiff bases much of its argument for jurisdiction around the 2022 Supreme Court case 

Torres v. Texas Department of Public Safety, wherein the Supreme Court held that State employers 

waive sovereign immunity against USERRA claims. 142 S. Ct. 2455, 2466–69 (2022).14 However, 

in that case, Texas invoked sovereign immunity against a USERRA claim brought in state court. 

Id. at 2461. The plaintiff brought the suit in state court, litigating through the Texas court system 

before appealing to the United States Supreme Court. Id. The Supreme Court in Torres does not 

state that federal courts have jurisdiction over individuals’ USERRA claims. Rather, the Supreme 

Court in Torres, when discussing USERRA’s jurisdictional clause, stated: “Congress’ clarification 

that suits proceed ‘in a State court of competent jurisdiction in accordance with the laws of the 

State’ merely addresses the fact that USERRA suits must be brought in state (rather than federal) 

court.” Id. at 2466 (quoting 38 U.S.C. § 4323(b)(2)) (emphasis added). Therefore, the Court 

declines to interpret Torres as conferring federal jurisdiction over individuals’ USERRA claims 

against state employers. 

Plaintiff further discusses the 1998 amendments to USERRA and the cases following the 

amendments, arguing that, in light of the Supreme Court’s decision in Torres, the amendments and 

these cases should be understood as exhibiting Congress’s intention of ensuring that USERRA 

protections are as wide as possible for veterans employed by state employers.15 However, none of 

14 Pl. Resp. 2–8, ECF No. 28. 

15 Pl. Resp. 3–8, ECF No. 28. 

Case 7:22-cv-00038-O Document 34 Filed 08/04/23 Page 6 of 8 PageID 180
7

the cases Plaintiff cites concluded that federal courts have jurisdiction over individuals’ USERRA 

claims against State employers. See Townsend v. University of Alaska, 543 F.3d 478 (9th Cir. 

2008); Risner v. Ohio Dep’t of Rehabilitation and Correction, 577 F. Supp. 2d 953 (N.D. Ohio 

2008); Mims v. Arrow Financial Services, LLC, 565 U.S. 368 (2012); Trimble v. Louisiana State 

Univ. Sys., No. 22-351-SDD-RLB, 2023 WL 1808355 (M.D. La. Jan. 4, 2023), report and 

recommendation adopted, No. 22-351-SDD-RLB, 2023 WL 1802405 (M.D. La. Feb. 7, 2023). 

Rather, three of the cases cited concluded the opposite – that federal courts do not have 

jurisdiction over an individual’s USERRA claims against a State employer. See Townsend, 543 

F.3d at 484–85; Risner, 577 F. Supp. 2d at 961; Trimble, 2023 WL 1808355, at *5. And the 

remaining case, Mims, did not involve USERRA, but rather, that case involved the Telephone 

Consumer Protection Act, and therefore the case did not discuss or involve the jurisdictional clause 

of 38 U.S.C. § 4323(b)(2). See Mims, 565 U.S. 368. 

Accordingly, considering the existing caselaw, the Court finds that Plaintiff fails to 

establish the Court has jurisdiction over his USERRA claims. Accordingly, Plaintiff’s USERRA 

claims against Defendant must be DISMISSED without prejudice.

***

Plaintiff secondly requests leave to amend to bring his USERRA claims against the 

individual state actors responsible for the alleged violations under the Ex Parte Young doctrine.

16

The Ex Parte Young doctrine grants a federal court jurisdiction over a lawsuit against a “state 

official in his official capacity if the suit seeks prospective relief to redress an ongoing violation 

of federal law.” Planned Parenthood Gulf Coast, Inc. v. Phillips, 24 F.4th 442, 451 (5th Cir. 2022)

(quoting Williams On Behalf of J.E. v. Reeves, 954 F.3d 729, 736 (5th Cir. 2020)). 

16 Pl. Resp. 8, ECF No. 28. 

Case 7:22-cv-00038-O Document 34 Filed 08/04/23 Page 7 of 8 PageID 181
8

Federal Rule 15(a)(2) states that “[t]he court should freely grant leave when justice so 

requires.” FED. R. CIV. P. 15(a)(2). Whether to grant leave to amend under Rule 15(a) is within the 

discretion of the trial court. Garcia v. Zale Corp., No. 3:04-CV-1917-D, 2006 WL 298156, at *1 

(N.D. Tex. Feb. 1, 2006). "In deciding whether to grant leave to file an amended pleading, the

district court may consider such factors as undue delay, bad faith or dilatory motive on the part of

the movant, repeated failure to cure deficiencies by amendments previously allowed, undue 

prejudice to the opposing party, and futility of amendment.” Wimm v. Jack Eckerd Corp., 3 

F.3d 137, 139 (5th Cir. 1993) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

At this point, the Court does not have enough information to decide whether such 

amendment would be futile. The Court does not detect that Plaintiff is acting with undue delay, 

bad faith, or dilatory motive. Further, the present Amended Complaint (ECF No. 22) is 

Plaintiff’s first complaint to include the USERRA claims. Therefore, the Court GRANTS

Plaintiff leave to file a motion to amend. Any such motion SHALL be filed on or before August 

18, 2023. At that time, the Court will assess Plaintiff’s proposed pleadings to determine

whether allowing such amendment would be futile. 

IV. Conclusion

Accordingly, the Court finds it does not have subject matter jurisdiction over Plaintiff’s 

USERRA claims. Therefore, Plaintiff’s USERRA claims against Defendant TDCJ is

DISMISSED without prejudice. However, the Court GRANTS Plaintiff leave to file a motion 

to amend to bring his USERRA claims against the individual state actors involved. Any such 

motion SHALL be filed on or before August 18, 2023. 

SO ORDERED on this 4th day of August, 2023.

Case 7:22-cv-00038-O Document 34 Filed 08/04/23 Page 8 of 8 PageID 182