# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 20550

**Shannon Mark Douthit,**
Plaintiff

— Appellant **,**

versus **Bryan Collier; Robert Herrera; Felipe J. Peralta, Jr.; Mitchell D. Kroll; Sergio Perez,** 
Defendants

— Appellees

**.**

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:19

- cv
- 1712

Before **Graves, Willett,** and **En gelhardt,**  Circuit Judges

**. Per Curiam**  **:** * Shannon Mark Douthit, Texas prisoner #453033, sued the executive director of the Texas Department of Criminal Justice ( **TDCJ** ) , plus a warden, two lieutenants, a sergeant, and a major , all in their official capacities

. Construed liberally, Douthit ’s pro se C omplaint also included

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 5, 2022

Lyle W. Cayce Clerk Case: 20-20550 Document: 00516498026 Page: 1 Date Filed: 10/05/2022No. 20

- 20550

2 claims against the S tate of Texas and the Correctional Institutions Division of the TDCJ

. 1
Douthit ’s C omplaint states that he is obese and sensitive to heat and that he has an amputated leg. He claim s D efendants violated Title **II** of the Americans with Disabilities Act ( **ADA** ), 42 U.S.C. § 121 31 et seq ., in two ways: (1) forcing him to carry his personal belongings during unit

- wide “shakedowns” (searches of personal property for contraband) ; and (2) denying him air

- conditioned accommodations as required by a court order issued in Cole v. Collier , a separate class action in which Douthit is a class member. 2 Constru ing Douthit’s C omplaint liberally, the district court interpreted the C omplaint as including claims under 42 U.S.C. § 1983 for unconstitutional retaliation by prison officials in response to Douthit’ s participation in the class action.
The district court dismissed Douthit’s **ADA** and § 1983 claim s pursuant to Federal Rule s of Civil Procedure Rule 12(b)(6) for failure to state a claim and Rule 12(b)(1) for lack of subject

- matter jurisdiction

. Douthit v. Texas , No. 4:19

- cv
- 1712, 2020 WL 5894180, at * 8 (S.D. Tex. Oct. 2, 2020)

. Specifically, the district court said that Douthit failed to state an **ADA** claim because he did not allege specific facts that would give rise to the reasonable inference that Defendants “intentionally discriminated against him because of any disability.” Id. at *4

. The district court also held that it lacked subject

matter juri sdiction over the **ADA** claim s because “Douthit’s ADA claims are barred by state sovereign immunity.” Id . at *7. As to Douthit’s retaliation claim s , the district court held that Douthit “has not sufficiently alleged a

1 Douthit listed the S tate of Texas and the Correctional Institutions Division of the TDCJ in the caption , but not the parties section , of his C omplaint.

2 No. 4:14

- cv
- 1698, 2018 WL 2766028 (S.D. Tex. Jun. 8, 2018)

. Case: 20-20550 Document: 00516498026 Page: 2 Date Filed: 10/05/2022No. 20

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3 retaliatory motive by the Defendants, and he has not alleged a chronology of events from which retaliation may be plausibly inferred. ” Id

. W e **AFFIRM** the district court’s judgment on Douthit’s § 1983 claims because Douthit forfeited any challenge to the district court’s ruling
on t hose claims by failing to brief the issue in his opening brief on appeal

. See United States v. Rodriguez , 602 F.3d 346, 360 (5th Cir. 2010). We **AFFIRM** the dismissal of Douthit’s ADA claims related to air

- conditioned accommodations . We **AFFIRM** the dismissal of all ADA claims as to Bryan Collier, Executive Director of the TDCJ, and Robert Herrera, Warden of the Pack Unit 1

. As to Douthit’s shakedown

- related ADA claims against Defendants other than Collier and Herrera, we **VACATE** the judgment and **REMAND** for further proceedings.
**I** We review dismissals under Rule 12(b)( 6) and Rule 12(b)(1) de novo

. See Smith v. Hood , 900 F.3d 180, 184 (5th Cir. 2018). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the speculative level. ” Bell Atl

. Corp. v. Twombly , 550 U.S. 544, 555 (2007). And we “accept as true the well -ple aded factual allegations in the complaint.” Causey v. Sewell Cadillac -Chevrolet , Inc ., 394 F.3d 285, 288 (5th Cir. 2004). In assessing subject

- matter jurisdiction, a court may consider : “ (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. ” Barrera

– Montenegro v. United States , 74 F.3d 657, 659 (5th Cir. 1996) (quoting Voluntary Purchasing Grps

. , Inc. v. Reilly , 889 F.2d 1380, 1384 (5th Cir. 1989)). A pro se litigant’s pleadings must be construed liberally. Jennings v. Towers Watson , 11 F.4th 335, 341 (5th Cir. 2021) (citing Butler v. Porter , 999 F.3d 287, 292 (5th Cir. 2021))

. Case: 20-20550 Document: 00516498026 Page: 3 Date Filed: 10/05/2022No. 20

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4 **II**
We hold that Douthit’s pro se C omplaint contained sufficient facts to
state plausible ADA claims as to all D efendants except **TDCJ** Executive Director Bryan Collier and Warden Robert Herrera.
While Douthit did not explicitly p lead a failure

- to

- accommodate theory, the circumstances included in his liberally construed complaint best fit into a failure

- to

- accommodate framework under the **ADA**

. “To succeed on a failure

- to

- accommodate claim, a plaintiff must prove: (1) he is a qualified individual with a disability; (2) the disability and its consequential limitations were known by the covered entity; and (3) the entity failed to make reasonable a ccommodations.” Ball v. LeBlanc , 792 F.3d 584, 596 n.9 (5th Cir. 2015). To recover compensatory damages under the **ADA** , a p laintiff must make a showing of intentional discrimination. Miraglia v. Bd. of Supervisors of La. State Museum , 901 F.3d 565, 574 (5th Cir. 2018). Precedent has not “delineate[d] the precise contours” of this showing, but at bottom, “ intent requires that the defendant at least have actual notice.” Id . a 575.
In his C ompla int, Douthit allege s that he has an amputated leg along with the “ heat sensitive medical condition ” of obesity

. He allege s that despite a medical lifting restriction, he was forced on two occasions to carry his personal property, leading him to “injure[] his stump.” Douthit claim s that, on both occasions, he told prison officials of his disability and medical restrictions, but officials angrily dismissed him and refused to accommodate him

. 3 Thus, as to his shakedown

- related claims, Douthit has met the three

3 The C omplaint allege s that D efendants Perez, Temple, and Kroll were aware that Douthit could not carry his personal proper ty during the security shakedown because of his amputated leg. Although the pleadings do not allege that Defendant Peralta was informed of Douthit’s need for accommodation, it is plausible that the need was obvious given Douthit’s amputated leg. Case: 20-20550 Document: 00516498026 Page: 4 Date Filed: 10/05/2022No. 20

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5 elements required for an **ADA** failure

- to

- accommodate claim

— qualifying disability (obesity and amputated leg) , notice ( Douthit ’s statements to Defendants and filed grievances) , and failure to provid e reasonable accommodation (Defendants’ failure to act)

. LeBlanc , 792 F.3d at 596 n.9

. Not all of Douthit’s claims survive dismissal , though

. His **ADA** claim for failure to provide air

- conditioning alleges that he was left behind when other heat

- sensitive members of the Cole v. Collier class were transferred to air

- conditioned lodgings pursuant to a court order issued in that case

. However, Douthit does not allege that any of the Defendants in the current action had actual knowledge that the order from the class action lawsuit applied to him. Therefore, he failed to plead the notice prong of an **ADA** failure

- to

- accommodate claim. The claims against Executive Director Collier and Warden Herrera similarly fail . While Douthit pleaded particularized facts as to the actions of all other d efendants, he included only one conclusory statement about Collier and Herrera. 4
**III** The district court alternatively held that sovereign immunity barred Douthit’s **ADA** claim s. 5 We hold that Douthit’s C omplaint contained sufficient facts to state a claim that immunity was abrogated. As a threshold

4 The only line in Douthit ’s C omplaint regarding Collier and Herrera’s involvement reads: “Defendants: Bryan Collier and Robert Herrera were deliberately indifferent to Plaintiff’s heat sensitive condition: Obesity with BMI over 30.”

5 Th e parties dispute whether the district court viewed sovereign immunity as an alternative basis for dismissal. Douthit contends that the district court’s sovereign

immunity discussion was “confusing[]” and that it failed to discuss his claims against the in stitutional defendants. Defendants contend that sovereign immunity was indeed an “independent justification for dismissal.” W hile the organization of the district court opinion creates some uncertainty , we view the district court’s discussion of sovereign immunity as an alternative justification for dismissal. Case: 20-20550 Document: 00516498026 Page: 5 Date Filed: 10/05/2022No. 20

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6 matter, Defendants point out that Douthit’s counseled brief, which is not entitled to liberal construction, see Beasley v. McCotter , 798 F.2d 116, 118 (5th Cir . 1986), does not discuss the immunity issue. While Defendants are correct, we use our discretion to address sovereign immunity for two reasons: (1) t here is no prejudice as Defendants have briefed the issue , and ( 2) the district court’s ruling lacks clarity concerning whether it included an alternative dismissal of Douthit’s **ADA** claims on the basis of immunity. See United States v. Rodriguez , 602 F.3d 346, 360

– 61 (5th Cir. 2010). We thus proceed to address sovereig n immunity.
Douthit’s **ADA** claim s seek money damages against Defendants in their official capacities. The Eleventh Amendment bars such suits unless the state has waived or Congress has validly abrogated sovereign immunity

. See Edelman v. Jordan, 415 U.S. 651 (1974) (concluding that the Ele venth Amendment bars claims for money damages against state officials where the state is regarded as the real party in interest and any liability would have to be paid out of public funds) ; Pickett v. Tex

. Tech Univ

. Health Sci . Ctr. , 37 F.4th 1013 , 1025 (5th Cir. 2022) (explaining that ADA claims for money damages against a state are barred unless sovereign immunity has been waived by the state or abrogated by Congress)

. Here, Texas has not waived sovereign immunity , so the question is whether Congre ss has validly abrogated.
Title **II** of the **ADA** abrogates state sovereign immunity where it prohibits conduct that violates the Fourteenth Amendment or where Congress ’ s abrogation power is “nevertheless valid.” United States v. Georgia , 546 U.S. 151, 158

– 59 (2006). “ Congress ’ s abrogation power is

‘ nevertheless valid ’ where Title II imposes requirements that are ‘ congruent and proportional ’ to an identified ‘ pattern of [unconstitutional] exclusion and discriminat ion ’— even if it sweeps in some conduct that is not itself Case: 20-20550 Document: 00516498026 Page: 6 Date Filed: 10/05/2022No. 20

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7 unconstitutional. ” Pickett , 37 F.4th 1013 , 10 26 (alteration in original) (citing Tennessee v. Lane , 541 U.S. 509, 531 (2004 )). It thus becomes necessary to evaluate whether the particularized fact s that Douthit pleaded state a claim under the Fourteenth Amendment or whether Congress’s abrogation power is nevertheless valid

. “Because the Eighth Amendment applies to the states through the Fourteenth Amendment, an ADA violation that is also an Eighth Amendment violation actually violates the Fourteenth Amendment.” Valentine v. Collier , 993 F.3d
2 70, 281 (5th Cir. 2021)

. A prison official ’s “deliberate indifference” to a substantial risk of serious harm to an inmate violates the Eighth Amendment. See Helling v. McKinney , 509 U.S. 25, 32 (1993). In a constitutional claim alleging deliberate indifference to the conditions of a priso ner ’ s confinement, the plaintiff must satisfy both the “subjective and objective requirements” of the Eighth Amendment inquiry. Farmer v. Brennan , 511 U.S. 825, 846 (1994)

. To satisfy the objective requirement, the plaintiff must show an “objectively intolerable risk of harm.” Id . To satisfy the subjective requirement, the plaintiff must show that the defendant: “(1) was ‘aware of facts from which the inference could be drawn that a substantial risk of serious harm exists’; (2) subjectively ‘dr[e]w the inference’ that the risk existed; and (3) disregarded the risk.” Cleveland v. Bell , 938 F.3d 672, 676 (5th Cir. 2019) (alteration in original) (quoting Farmer , 511 U.S. at 837 ).
We do not decide whether a constitutional violation actually occurred, but only whether the Title **II** violations that Douthit pleaded in his C omplaint are also sufficient to state a claim under the Fourteenth Amendment, thereby abrogating sovereign immunity

. Construed liberally, Douthit ’s pleadings are sufficient to state a claim under the Fourteenth Amendment

. The analysis is similar to that of the **ADA** claim. Douthit pleaded an “objectively intolerable risk of harm”

— being forced to carry personal belongings despite serious disabilities and a medical lifting Case: 20-20550 Document: 00516498026 Page: 7 Date Filed: 10/05/2022No. 20

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8 restriction. See Farmer , 511 U.S. at 846. Douthit also allege s that Defendants were aware of the risk but disregarded it

. See i d . at 837. Douthit also claims that d espite his formal grievances and statements alerting prison officials to his disabilities and the risks he faced, Defendants did not mitigate the risks. In light of these allegations, Douthit’s pleadings plausibly allege d that D efendants’ misconduct violated the Fourteenth Amendment

. **IV** To recap:
We **AFFIRM** the district court’s judgment on Douthit’s § 1983 claims

. We **AFFIRM** the dismissal of Douthit’s **ADA** claims related to air

conditioned accommodations

. We **AFFIRM** the dismissal of all **ADA** claims as to Bryan Collier, Executive Director of the TDCJ, and Robert Herrera, Warden of the Pack Unit 1.
As to Douthit’s shakedown

- related **ADA** claims against Defendants other than Collier and Herrera, we **VACATE** the judgment and **REMAND** for further proceedings. Case: 20-20550 Document: 00516498026 Page: 8 Date Filed: 10/05/2022