United States Court of Appeals

for 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 Engelhardt, 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 Complaint also included

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 5, 2022

Lyle W. Cayce

Clerk

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2 

claims against the State of Texas and the Correctional Institutions Division 

of the TDCJ.

1

 

Douthit’s Complaint states that he is obese and sensitive to heat and 

that he has an amputated leg. He claims Defendants violated Title II of the 

Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 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 Construing Douthit’s Complaint liberally, the district court

interpreted the Complaint 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 claims 

pursuant to Federal Rules 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 subjectmatter jurisdiction over the ADA claims because “Douthit’s ADA claims 

are barred by state sovereign immunity.” Id. at *7. As to Douthit’s retaliation 

claims, the district court held that Douthit “has not sufficiently alleged a 

1 Douthit listed the State of Texas and the Correctional Institutions Division of the

TDCJ in the caption, but not the parties section, of his Complaint. 

2 No. 4:14-cv-1698, 2018 WL 2766028 (S.D. Tex. Jun. 8, 2018). 

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retaliatory motive by the Defendants, and he has not alleged a chronology of 

events from which retaliation may be plausibly inferred.” Id. 

We AFFIRM the district court’s judgment on Douthit’s § 1983

claims because Douthit forfeited any challenge to the district court’s ruling 

on those 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-pleaded 

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 selitigant’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)). 

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II

We hold that Douthit’s pro se Complaint contained sufficient facts to 

state plausible ADA claims as to all Defendants except TDCJ Executive 

Director Bryan Collier and Warden Robert Herrera. 

While Douthit did not explicitly plead 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 accommodations.” Ball v. LeBlanc, 792 F.3d 584, 596 n.9 (5th Cir. 

2015). To recover compensatory damages under the ADA, a plaintiff 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 Complaint, Douthit alleges that he has an amputated leg along 

with the “heat sensitive medical condition” of obesity. He alleges that 

despite a medical lifting restriction, he was forced on two occasions to carry 

his personal property, leading him to “injure[] his stump.” Douthit claims 

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 Complaint alleges that Defendants Perez, Temple, and Kroll were aware that 

Douthit could not carry his personal property 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.

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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 provide 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 defendants, he included only one conclusory 

statement about Collier and Herrera.4

III

 The district court alternatively held that sovereign immunity barred 

Douthit’s ADA claims.5 We hold that Douthit’s Complaint contained 

sufficient facts to state a claim that immunity was abrogated. As a threshold 

4 The only line in Douthit’s Complaint 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

 The parties dispute whether the district court viewed sovereign immunity as an 

alternative basis for dismissal. Douthit contends that the district court’s sovereignimmunity discussion was “confusing[]” and that it failed to discuss his claims against the 

institutional defendants. Defendants contend that sovereign immunity was indeed an 

“independent justification for dismissal.” While 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. 

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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) there 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 sovereign immunity. 

Douthit’s ADA claims 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 Eleventh 

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 Congress 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 discrimination’—even if it sweeps in some conduct that is not itself 

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unconstitutional.” Pickett, 37 F.4th 1013, 1026 (alteration in original) (citing 

Tennessee v. Lane, 541 U.S. 509, 531 (2004)). 

It thus becomes necessary to evaluate whether the particularized facts 

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 

270, 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 prisoner’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 

Complaint 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 

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restriction. See Farmer, 511 U.S. at 846. Douthit also alleges that Defendants 

were aware of the risk but disregarded it. See id. at 837. Douthit also claims 

that despite 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 alleged that

Defendants’ 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 airconditioned 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.

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