Patricia Grant v. Deborah Seabron, et al

Filing

UNPUBLISHED OPINION FILED. [16-50101 Affirmed] Judge: WED, Judge: LHS, Judge: SAH. Mandate pull date is 05/26/2017 [16-50101]

Case: 16-50101

Document: 00513981528

Page: 1

Date Filed: 05/05/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-50101
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
May 5, 2017
Lyle W. Cayce
Clerk

PATRICIA A. GRANT, Ph.D.,
Plaintiff-Appellant
v.

DEBORAH E. SEABRON; SHIRLEY SMITH; STANLEY B. GRANT; TERRY
E. LUNA; HAROLD J. GRANT; BOB KERR, Regent Care Oakwell Farms, also
known as Robert or Bobby; ERIC TIMAEUS, Texas Department of Aging and
Disability Services; ERIC GREEN, Texas Department of Aging and Disability
Services; GAYE GEORGE, Texas Department of Aging and Disability Services;
PATTY DUCAYET, Texas Department of Aging and Disability Services-State
Long-Term Care Ombudsman; LAURA HALL, (Lori); SANDRA MARTINEZ,
Texas Department of Family and Protective Services; THERESA THOMSON,
Texas Department of Aging and Disability Services-State Long-Term Care
Ombudsman; THOMAS SARGENT, Texas Department of Family and
Protective Services; TEXAS DEPARTMENT OF AGING AND DISABILITY
SERVICES; TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE
SERVICES, Adult Protective Services; TEXAS DEPARTMENT OF AGING
AND DISABILITY SERVICES, State Long-Term Care Ombudsman; REGENT
CARE CENTER OF SAN ANTONIO II, L.P., doing business as Regent Care
Center Oakwell Farms, doing business as RCCSA II, Incorporated;
DISCOVERABLE JANE AND JOHN DOES,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:15-CV-964
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

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PER CURIAM: *
Patricia A. Grant filed a complaint against several members of her
family, various Texas state agencies and their employees, and a private
nursing home and its employees, asserting a litany of federal and state claims
arising out of disputes regarding her elderly father’s care. The district court
granted her motion to proceed in forma pauperis (IFP) but dismissed the
complaint under 28 U.S.C. § 1915(e)(2)(B) as frivolous and for failure to state
a claim for relief, a decision we review de novo. See Samford v. Dretke, 562
F.3d 674, 678 (5th Cir. 2009).
The brief that Grant filed on appeal generally restates the allegations
that she made in her complaint. It does not address the bases on which the
district court dismissed many of her claims, including that she lacked standing,
some defendants were entitled to sovereign immunity, certain statutes she
referenced did not provide her with a private right of action, and supplemental
jurisdiction over her state law claims was not warranted. Accordingly, she has
abandoned these issues. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993);
Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). Read liberally, however, see Haines v. Kerner, 404 U.S. 519, 520 (1972),
her brief appears to argue that the district court erred in determining that the
complaint failed to state a claim for relief under the Americans with
Disabilities Act (ADA) and for constitutional violations under 42 U.S.C. § 1983
against defendants who were not immune from suit. To avoid dismissal of her
complaint, a plaintiff must allege “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Pursuant to 5TH CIR. R. 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. R. 47.5.4.
*

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As relevant here, the ADA prohibits discrimination against disabled
individuals in public services and public accommodations. PGA Tour, Inc. v.
Martin, 532 U.S. 661, 675 (2001). In her complaint, Grant alleges that she is
“a 100% disabled veteran with a mental-behavioral health diagnosis and
disability.” Even if, as the magistrate judge and district court apparently
assumed, Grant was disabled for purposes of the ADA, she did not allege any
facts that would plausibly suggest that a public entity or place of public
accommodation discriminated against her because of her disability.

See

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“The well-pleaded facts” in the
complaint must “permit the court to infer more than the mere possibility of
misconduct.”); see also 42 U.S.C. §§ 12131, 12132, 12182.
The § 1983 claims fail for the same reason. To state a claim for relief,
Grant was required to allege that she was deprived of a constitutional right by
those acting under the color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S.
149, 155 (1978). Grant alleges that her family members and nursing home
defendants violated her civil rights, but she did not say in her complaint, nor
is it apparent, how they acted under the color of state law. See id. Though she
was unhappy with the manner in which state agencies resolved her grievances,
nothing in her complaint suggests that they violated her constitutional rights.
Thus, she did not put forward sufficient factual allegations to permit the
district court to draw a reasonable inference that she was entitled to relief. See
Iqbal, 556 U.S. at 678.
Finally, though Grant moved to amend her complaint, the district court
did not permit her to do so. Before dismissing a pro se litigant’s case for failure
to state a claim, a district court ordinarily must provide an opportunity to
amend the complaint to remedy the deficiencies unless the plaintiff has
pleaded her best case. Hale v. King, 642 F.3d 492, 503 (5th Cir. 2011); see

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Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). However, in neither her
proposed amended complaint nor her brief on appeal does Grant allege
material facts that would have stated a claim for relief. The bare allegations
offered only “labels and conclusions” that lacked sufficient “factual
enhancement” that would support a claim for relief. Iqbal, 556 U.S. at 678
(internal quotation marks and citation omitted).

Because Grant has not

explained what additional facts she could allege that would state a viable
claim, she has already pleaded her best case, any amendment would have been
futile, and the district court did not abuse its discretion in denying her the
opportunity to amend her complaint. See Ackerson v. Bean Dredging LLC, 589
F.3d 196, 208 (5th Cir. 2009); Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir.
2009).
AFFIRMED.

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