Adamore v. Southwest Airlines et al

Filing 53

MEMORANDUM AND ORDER granting 40 MOTION to Dismiss, 20 MOTION to Dismiss and in the alternative, Motion for More Definite Statement, 39 MOTION to Dismiss 5 Amended Complaint/Counterclaim/Crossclaim etc.,, MOTION for More Definite Statement, 21 MOTION to Dismiss or in the alternative, Motion for More Definite Statement.(Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LORRINE ADAMORE,1

§
§
Plaintiff,
§
§
v.
§
§
SOUTHWEST AIRLINES CORP.,
§
CUSTOMER SERVICE, CHRISTINA DOE,§
THE CITY OF HOUSTON, ANISE
§
PARKER, TRANSPORTATION SECURITY §
ADMINISTRATION, DEPARTMENT OF
§
HOMELAND SECURITY, WM. P. HOBBY §
AIRPORT, FEDERAL AVIATION
§
ADMINISTRATION, J. RANDOLPH
§
BABBITT, CATHERINE EMERSON,
§
DAVID WEINGART, DAVID GRIZZIE, §
SASHA JOHNSON, FANNY RIVERA,
§
MARGARET GILLIGAN, CHRISTA
§
FORNAROTTO, PAULA LEWIS, MARY
§
CASE, JANE DOE, JOHN DOE,
§
ANGEL MORENO, ERIC HOLDER, JR., §
RICK PERRY, GENE KELLY,
§
DEPARTMENT OF TRANSPORTATION,
§
JOHN DOE TSA, MARGO SCHLANGER, §
and MARILEE MCINNIS,
§
§
Defendants.
§

1

CIVIL ACTION NO. H-11-0564

“Bernice Adamore (Deceased)” was named by Plaintiff Adamore
as an additional plaintiff. Federal Rule of Civil Procedure 17(b)
provides that “[c]apacity to sue or be sued is determined . . . by
the law of the state where the court is located.” FED . R. CIV . P.
17(b)(3).
Texas law does not allow suits by or against the
deceased. See Stinson v. King, 83 S.W.2d 398, 399 (Tex. Civ. App.-Dallas 1935, writ dism’d w.o.j.) (“[S]uits can be maintained by
and against only parties having an actual or legal existence . . .
.
No suit can lawfully be prosecuted save in the name of a
plaintiff and against a defendant having a legal entity either as
a natural or as an artificial person. There must be a real
plaintiff and a real defendant.”); see also Bluebonnet Savings Bank
v. Jones Country, Inc., 911 S.W.2d 871, 880 (Tex. App.--Beaumont
1995), rev’d on other grounds, 920 S.W.2d 679 (Tex. 1996).
Accordingly, the case is properly captioned with the name of only
Lorrine Adamore as Plaintiff.

MEMORANDUM AND ORDER
Pending

are:

Defendants

City

of

Houston’s,

Mayor Annise

Parker’s, and Mary Case’s Motion to Dismiss Pursuant to Federal
Rule of Civil Procedure 12(b)(6), and, in the Alternative, Motion
for A More Definite Statement Pursuant to Federal Rule of Civil
Procedure 12(e) (Document No. 20); Defendants Southwest Airlines,
Co.’s, Gary Kelly’s, and Marilee McInnis’s Motion to Dismiss and,
in the Alternative, Motion for A More Definite Statement (Document
No. 21); Defendant Rick Perry’s Motion to Dismiss and in the
Alternative Motion for More Definite Statement (Document No. 39);
and Motion to Dismiss by Defendants U.S. Department of Homeland
Security (“DHS”), Transportation Security Administration (“TSA”),
Federal

Aviation

Transportation

Administration

(“DOT”),

Eric

(“FAA”),

Holder,

Jr.,

U.S.
Jose

Department
Angel

of

Moreno,

Catherine Emerson, David Weingart, David Grizzle, Sasha Johnson,
Fanny Rivera, Margaret Gilligan, Christa Fornarotto, and Paula R.
Lewis (Document No. 40).

Plaintiff has not filed responses to

oppose any of these motions, nor has she moved to amend once again
her

Amended

Complaint

to

overcome

2

the

defects

argued

by

Defendants.2

After considering the motions, the applicable law,

and the pleadings on file, the Court concludes as follows.
I.
Pro

se

Plaintiff

Background

and

first-time

flyer

Lorrine

Adamore

(“Plaintiff”) had a frustrating and emotionally charged day at the
William P. Hobby Airport in Houston on February 1, 2010, from where
she planned to fly to Chicago to visit her dying mother, Bernice
Adamore. Her first problem was at the security checkpoint when the
Transportation Security Administration (“TSA”) agent did not accept

2

On October 11, 2011, Defendant Rick Perry (“Governor Perry”)
filed an Advisory to the Court, Document No. 50, in which he
explains that he first served Plaintiff with a copy of his Motion
to Dismiss on August 9, 2011, but that it was returned to him
unclaimed on August 31, 2011. See Document No. 50 at 1 & ex. B.
Governor Perry further represents that he re-mailed the Motion to
Dismiss on September 1, 2011, via certified mail, return receipt
requested. See id. at 2. According to track and confirm records
of the United States Postal Service, notice of this mailing was
left at Plaintiff’s address on September 3, 2011, and was returned
unclaimed to Governor Perry on September 20, 2011. See id., ex. E.
Rule 5 provides that “[a] paper is served under this rule by . . .
mailing it to the person’s last known address–-in which event
service is complete upon mailing.”
FED . R. CIV . P. 5(b)(2)(C).
Plaintiff’s pro se status does not exempt her from compliance with
the procedural rules. Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.
1981) (citing Faretta v. California, 95 S. Ct. 2525, 2540 n.46
(1975)). Therefore, Governor Perry’s Motion to Dismiss was served
upon mailing it to Plaintiff’s last known address provided by her
to the clerk of this Court.
Moreover, “[i]t is incumbent upon
litigants to inform the court of address changes, for it is
manifest that communications between the clerk and the parties or
their counsel will be conducted principally by mail. In addition
to keeping the clerk informed of any change of address, parties are
obliged to make timely status inquiries.” Beene v. Alford, No.
1:09cv170, 2010 WL 2036464, at *1 (E.D. Tex. Mar. 23, 2010)
(quotation omitted).
3

Plaintiff’s identification (“I.D.”), which consisted of a State of
Texas temporary I.D. and a State of Illinois notarized birth
certificate from the Bureau of Vital Statistics.3
eventually

allowed

Plaintiff

to

pass

fingerprints and conducting a search.4

after

The TSA agent
obtaining

her

By this time Plaintiff’s

Southwest Airlines flight to Chicago was already boarding.5

TSA

officials summoned an airport transport cart to take Plaintiff
directly to her gate, but the two airport personnel who operated
the cart let her off at the wrong gate after arguing with each
other about where the correct gate was located.6

Plaintiff did not

realize this mistake until her brother called and informed her that
her flight had already departed.

Plaintiff then sought help from

a customer service representative for Southwest Airlines, who
allegedly showed no sympathy for Plaintiff and told her that she
was unable to book another flight that day without paying an
additional fare of $600 for an upgraded seat.7

Plaintiff explained

that she had no more money, her mother was dying, and she needed to
get to Chicago; the Southwest agent then allegedly re-booked
Plaintiff on a flight for the next day and threatened to charge her

3

Document No. 5 at 3 ¶ 12; id. at 9 (Document No. 5-1 at 5).

4

Id. at 9.

5

Id.

6

Id.

7

See Document No. 5 at 10 (Document No. 5-1 at 6).
4

a fee to upgrade her ticket.8

Plaintiff was so distraught by the

agent’s refusal to place Plaintiff on another flight that same
night at no extra charge and her demand for Plaintiff to leave the
airport premises that Plaintiff “fell face forward to floor and
started crying out Momma, Momma, Momma.”9

Plaintiff left the

airport after Houston Police Officers acquired a cab for her and
contributed the funds necessary to pay the $40.00 fare for her ride
home.10 Plaintiff later called Southwest Airlines to complain about
her treatment at the airport, and Southwest Airlines re-booked
Plaintiff on a flight “with a revised discounted ticket” for
February 2, 2010.11

Plaintiff’s mother died that day before

Plaintiff was able to see her.12
Plaintiff filed this suit after hearing on the news that a
Southwest Airlines pilot had held a flight at Los Angeles Airport
(LAX) for twelve minutes to allow a grieving white grandfather to
make his flight to see his dying grandson.13

According to the

8

See id. Plaintiff also alleges that there was a mix-up with
her baggage, but does not allege that her baggage was permanently
lost. See Document No. 5 at 2-3 ¶¶ 8-10.
9

10

Id. at 2 ¶ 8.
Id. at 4 ¶ 14.

11

Id. at 3 ¶ 11.
Plaintiff does not allege that she
ultimately had to pay any additional money to get to Chicago.
12

Id. ¶ 13.

13

Document No. 5 at 3 ¶ 14.
5

internet news reports filed by Plaintiff as part of her pleadings,
Mark Dickinson, who was delayed in security, “held back tears as he
pleaded with TSA and Southwest Airlines staff to fast-track him
through the lines that were moving like molasses.

Even though

missing his flight could mean missing a final chance to see his
grandson, no one seemed to care.”14 However, “in the meantime, wife
Nancy Dickinson had decided to call the airline to see if there was
any way Southwest could hold the flight.”15 Mark Dickinson was able
to make the flight because the Southwest pilot had decided to wait
for him.16
Plaintiff, a black female over the age of forty, who asserts
that she is disabled, alleges that she was treated differently from
Mark Dickinson and that she is entitled to over $41 million per
count in damages.17
higher

airfares,

Plaintiff asserts attempted extortion for

retaliation,

and

intentional

infliction

of

emotional distress against the Southwest Defendants for the actions
of their gate agent, and further asserts race, sex, and age

14

Document No. 5, ex. 6 (Document No. 5-2 at 8). As Plaintiff
attached these documents to her amended complaint, they are
considered a part of her pleadings. See FED . R. CIV . P. 10(c) (“A
copy of a written instrument that is an exhibit to a pleading is a
part of the pleading for all purposes.”).
15

Document No. 5, ex. 8 (Document No. 5-2 at 10).

16

Id.

17

Plaintiff seeks $41.5 million per count, and alleges at
least nine counts against the numerous defendants named above. See
Document No. 5 at 11 (Document No. 5-1 at 7).
6

discrimination under the Civil Rights Act of 1964, Discrimination
in Public Accommodations (42 U.S.C. 2000a et seq.),18 42 U.S.C.
§§ 1983 and 1985, and violations of the Fourteenth Amendment of the
United States Constitution, the Americans with Disabilities Act,
42 U.S.C. § 12101 et seq., and 18 U.S.C. §§ 241 and 24219 against
all Defendants.

Four general groups of Defendants have filed four

motions to dismiss, asserting that Plaintiff has not stated a claim
for which relief can be granted.20

Additionally, the Federal

Defendants and Governor Perry challenge this Court’s subject matter
jurisdiction

over

Plaintiff’s

claims

against

them,

asserting

sovereign immunity.
18

The Court construes Plaintiff’s “Discrimination in Public
Accommodations” claim to refer to Title II of the Civil Rights Act
of 1964, 42 U.S.C. § 2000a et seq.
19

Both 18 U.S.C. §§ 241 and 242 are criminal statutes; as such
they are not enforceable in this civil action against any
Defendant. See Pierre v. Guidry, 75 F. App’x 300, 300 (5th Cir.
Sept. 17, 2003) (unpublished op.) (“[Plaintiff] has no right to
bring a private action under federal criminal statutes.” (citations
omitted)); see also Florence v. Buchmeyer, 500 F. Supp. 2d 618, 626
(N.D. Tex. 2007) (a plaintiff cannot enforce criminal statutes in
a civil action); Phillips v. United Parcel Service, No. 3:10-CV1197-G-BH, 2011 WL 2680725, at *10 (N.D. Tex. June 21, 2011)
(neither 18 U.S.C. §§ 241 nor 242 conveys a private cause of
action). Accordingly, Plaintiff’s claims under 18 U.S.C. §§ 241
and 242 will be dismissed against all Defendants for failure to
state a claim for which relief can be granted.
20

The four groups of Defendants are: (1) the “Southwest
Defendants,” comprising Southwest Airlines Corporation, Gene Kelly,
and Marilee McInnis; (2) Rick Perry (“Governor Perry”), in his
official capacity as Governor of the State of Texas; (3) the “City
of Houston Defendants,” comprised of the City of Houston, Mayor
Annise Parker, and Mary Case; and (4) the “Federal Defendants,”
comprised of the TSA agent, and the several federal agencies and
agency heads named above.
7

II.
“Because

Legal Standards

sovereign

immunity

deprives

the

court

of

jurisdiction, the claims barred by sovereign immunity can be
dismissed

only

under

Rule

12(b)(1)

and

not

with

prejudice.”

Warnock v. Pecos Cnty., Tex., 88 F.3d 341, 343 (5th Cir. 1996).
Under Rule 12(b)(1), a party can seek dismissal of an action for
lack of subject matter jurisdiction.

FED . R. CIV . P. 12(b)(1).

The

burden of establishing subject matter jurisdiction is on the party
seeking to invoke it.
(5th Cir. 2001).

Ramming v. United States, 281 F.3d 158, 161

Rule 12(b)(1) challenges to subject matter

jurisdiction come in two forms: “facial” attacks and “factual”
attacks.

See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.

1981); Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990).
A

facial

attack,

unaccompanied

by

which

consists

supporting

of

evidence,

a

12(b)(1)

challenges

jurisdiction based solely on the pleadings.
523.

Rule

the

motion
court’s

Paterson, 644 F.2d at

When presented with a facial challenge to subject matter

jurisdiction, the court examines whether the allegations in the
pleadings are sufficient to invoke the court’s subject matter
jurisdiction, assuming the allegations to be true. Id.; Simmang v.
Tex. Bd. of Law Examiners, 346 F. Supp. 2d 874, 880 (W.D. Tex.
2004).

When a Rule 12(b)(1) motion is filed in conjunction with

other Rule 12 motions, the Court should consider the Rule 12(b)(1)

8

jurisdictional attack before addressing the attack on the merits.
Ramming, 281 F.3d at 161; see also Simmang, 346 F. Supp. 2d at 880.
Rule 12(b)(6) provides for dismissal of an action for “failure
to state a claim upon which relief can be granted.”
12(b)(6).

FED . R. CIV . P.

When a district court reviews the sufficiency of a

complaint before it receives any evidence either by affidavit or
admission, its task is inevitably a limited one.

See Scheuer v.

Rhodes, 94 S. Ct. 1683, 1686 (1974), abrogated on other grounds by
Harlow v. Fitzgerald, 102 S. Ct. 2727 (1982).

The issue is not

whether the plaintiff ultimately will prevail, but whether the
plaintiff is entitled to offer evidence to support the claims. Id.
In considering a motion to dismiss under Rule 12(b)(6), the
district court must construe the allegations in the complaint
favorably to the pleader and must accept as true all well-pleaded
facts in the complaint.

See Lowrey v. Tex. A&M Univ. Sys.,

117 F.3d 242, 247 (5th Cir. 1997).

To survive dismissal, a

complaint must plead “enough facts to state a claim to relief that
is plausible on its face.”
1955, 1974 (2007).

Bell Atl. Corp. v. Twombly, 127 S. Ct.

“A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the
reasonable

inference

misconduct alleged.”
(2009).

While

a

that

the

defendant

is

liable

for

the

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

complaint

“does

not

need

detailed

factual

allegations . . . [the] allegations must be enough to raise a right

9

to relief above the speculative level, on the assumption that all
the allegations in the complaint are true (even if doubtful in
fact).”

Twombly, 127 S. Ct. at 1964-65 (citations and internal

footnote omitted).
“If a complaint is ambiguous or does not contain sufficient
information to allow a responsive pleading to be framed, the proper
remedy is a motion for a more definite statement under Rule 12(e).”
Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir.
1999).

“A party may move for a more definite statement of a

pleading to which a responsive pleading is allowed but which is so
vague or ambiguous that the party cannot reasonably prepare a
response.”

FED. R. CIV . P. 12(e).

The motion “must point out the

defects complained of and the details desired.”
III.
A.

Id.

Motions to Dismiss

Southwest Defendants
The Southwest Defendants move to dismiss under Rule 12(b)(6),

asserting that Plaintiff has not stated a valid claim against
them.21
1.

Plaintiff’s Tort Claims

Plaintiff alleges that the Southwest Defendants are liable for
intentional
21

infliction

of

emotional

Document No. 21 at 9.
10

distress

and

attempted

extortion of higher air fares, based on the actions of their
customer service representative, whom Plaintiff calls “Christina
Doe.” The Airline Deregulation Act preempts state tort claims when
they “relate to” airline services.

49 U.S.C. § 41713(b)(1) (“[A]

State . . . may not enact or enforce a law, regulation, or other
provision having the force and effect of law related to a price,
route, or service of an air carrier . . . .”).

The Supreme Court

has construed this provision broadly to preempt all state law
claims that have “a connection with or reference to” an airlines’s
rates, routes, or services.
Inc.,

112

S.

Deregulation
intentional

Ct.

Act

2031,

2037

preempts

infliction

See Morales v. Trans World Airlines,

of

(1992).

Plaintiff’s
emotional

Whether
attempted

distress

the

Airline

extortion

claims

and

therefore

depends upon whether the claims refer to or have a connection with
Defendants’ services.
The

Airline

Deregulation

Act

does

not

define

the

term

“service,” but the Fifth Circuit has held that it includes “‘items
such as ticketing, boarding procedures, provision of food and
drink, and baggage handling, in addition to the transportation
itself.’”

Casas v. Am. Airlines, Inc., 304 F.3d 517, 525 (5th Cir.

2002) (quoting Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336
(5th Cir. 1995) (en banc)).

“Undoubtedly, boarding procedures are

a service rendered by an airline,” and courts agree that an
intentional

tort

claim

premised

11

upon

an

airline’s

boarding

practices, such as an airline’s decision to prevent a passenger
from boarding a flight, relates to an airline service and is
therefore preempted by the Airline Deregulation Act.
Comair,

Inc.,

134

F.3d

Smith v.

254,

259

(4th

Cir.

1998)

(citations

Deregulation

Act

does

not,

however,

omitted).
The

Airline

preempt

intentional tort claims premised upon an airline’s unreasonable
conduct too tenuously related or unnecessary to the provision of an
airline service. See id. (citing Rombom v. United Air Lines, Inc.,
867

F.

Supp.

214,

221-22

(S.D.N.Y.

1994)

(explaining

that

preemption occurs where (1) the activity at issue in the claim is
an airline service, (2) the claim directly affects that service,
and (3) the service was provided in manner that falls within a
spectrum of reasonable conduct)).
Plaintiff’s attempted extortion and intentional infliction of
emotional distress claims are based on Plaintiff’s allegations that
Christina Doe “denied the [Plaintiff] any flight out not paid for
upgraded for future flying and demanded for the [Plaintiff] to
leave the airport premises . . . .”22
claims are preempted.

Both of these state law

Airline agents often deal with passengers

who have missed their flights and have to handle re-booking and reticketing decisions as a matter of course; these activities relate
to

“services”

22

or

“rates”

within

Document No. 5 at 2 ¶ 8.
12

the

meaning

of

the

Airline

Deregulation Act.

See Onoh v. Northwest Airlines, Inc., 613 F.3d

596, 599-600 (5th Cir. 2010) (plaintiff’s intentional infliction of
emotional distress claim based on airline agent’s refusal to allow
plaintiff to board the plane “related to” airline services); Travel
All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423,
1434 (7th Cir. 1996) (finding that “services” included all elements
of the air carrier service bargain and holding an airline’s refusal
to transport passengers who had booked their flights through a
travel agent, rather than the airline itself, related to airline
services).

“Yet the proper examination under Morales is not why

the airline refused to provide its services, but whether the claims
at issue either expressly refer to the airline’s services (which
they clearly do) or would have a significant economic effect on the
airline’s services.”

Travel All Over the World, 73 F.3d at 1434

(citing Morales, 112 S. Ct. at 2039).

Plaintiff labels Christina

Doe’s refusal to issue a new ticket free of charge as “attempted
extortion,” but her cause of action centers around a dispute over
the rate, or price, of a ticket and the availability of a discount
seat on an airplane, which directly relates to “services, rates, or
routes” and is preempted under the Airline Deregulation Act.

See

Morales, 112 S. Ct. at 2040 (“In order for this marketing process
to work, and for it ultimately to redound to the benefit of priceconscious travelers, the airlines must be able to place substantial
restrictions

on

the

availability

13

of

the

lower

priced

seats

. . . .”).

Moreover, Plaintiff pleads that Southwest Airlines re-

issued a ticket to Chicago for a flight on the next day, and does
not allege that the new ticket cost her any more money.23
Accepting as true Plaintiff’s allegations that Christina Doe
was “very hostile,” “uncompassionate,” and that she “threatened”
Plaintiff with a higher fare and thereafter asked her to leave the
premises, the agent’s rude, demanding, and crass conduct in this
context is not so unrelated to airline services that it falls
outside the preemptive scope of the Airline Deregulation Act.

See

Ruta v. Delta Airlines, Inc., 322 F. Supp. 2d 391, 401 (S.D.N.Y.
2004) (holding that the Airline Deregulation Act preempted claims
based on flight attendant’s rude comments to plaintiff at the
boarding gate because unprofessional conduct “cannot be categorized
as outrageous or unreasonable”); Rombom, 867 F. Supp. at 223
(holding that Airline Deregulation Act preempted claims arising out
of allegedly “rude” and unprofessional manner in which flight
attendant instructed plaintiff to be quiet); Cannava v. USAir,
Inc., Civ. A No. 91-30003-F, 1993 WL 565341, at *4-6 (D. Mass. Jan.
7, 1993) (holding that the Airline Deregulation Act preempted
claims based on ticketing agent’s conduct in grabbing and tearing
up plaintiff’s bereavement fare ticket, treating plaintiff rudely,
and

threatening

23

to

call

airport

Document No. 5 at 3 ¶ 11.
14

security).

Accordingly,

Plaintiff’s

state

tort

claims

are

preempted

by

the

Airline

Deregulation Act and therefore must be dismissed.24
2.

Race, Sex, and Age Discrimination Claims

Although Plaintiff’s state tort actions against the Southwest
Defendants

are

preempted

by

the

Airline

Plaintiff’s claims for discrimination are not.

Deregulation

Act,

See, e.g., Farash

v. Continental Airlines, Inc., 574 F. Supp. 2d 356, 365 (S.D.N.Y.
2008) (holding that plaintiff’s claims for discrimination were not
sufficiently related to airline rates, routes, or services and
were therefore not preempted by the Airline Deregulation Act).
Plaintiff asserts discrimination claims under 42 U.S.C. § 1983
(deprivation of rights), § 1985 (conspiracy to interfere with civil
rights), and § 2000a et seq. (discrimination in public accommodations). Each of these statutes requires a plaintiff to plead facts
to support intentional discrimination.

See Malik v. Continental

Airlines, Inc., 305 F. App’x 165, 169 (5th Cir. 2008).

24

To the extent that Plaintiff alleges claims against
Southwest Airlines and its supervisors based on vicarious
liability, failure to train, and failure to supervise, such are
derived entirely from Christina Doe’s handling of Plaintiff’s
request to be placed on the next flight, directly implicate a
boarding or ticketing decision, and are preempted by the Airline
Deregulation Act because they relate to airline services.
See
Morales, 112 S. Ct. at 2037; see also Qayyum v. U.S. Airways, Inc.,
No. 3:08-0996, 2008 WL 4879401, at *4 (S.D.W.Va. Nov. 12, 2008)
(holding that plaintiff’s negligent supervision and training causes
of action were preempted by the Airline Deregulation Act because
they directly related to boarding decisions).
15

“Conclusory allegations or legal conclusions masquerading as
factual

conclusions

dismiss.”

will

not

suffice

to

prevent

a

motion

to

Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278,

284 (5th Cir. 1993).

Plaintiff’s Amended Complaint does not state

facts from which the Court may infer that any constitutionally
or statutorily proscribed discrimination occurred.

Plaintiff’s

subjective belief that Defendants discriminated against her on the
basis of race, sex, disability, or age,25 without specific facts
pointing to impermissible bias as the motivation, is insufficient
to maintain a claim of discrimination.

See id.; Elliott v. Grp.

Med. & Surgical Serv., 714 F.2d 556, 567 (5th Cir. 1983) (“a
subjective belief of discrimination, however genuine, [cannot] be
the basis of judicial relief”); Wherry v. BBWS, No. 7:09-CV-25-O,
2009 WL 513221, at *2 (N.D. Tex. Feb. 27, 2009) (holding that
plaintiff’s
discriminatory

“mere
intent

suspicion
is

not

or
enough

belief”
to

of

prevent

defendant’s
a

motion

to

dismiss); Drake v. St. Paul Travelers Ins., No. 6:08-CV-301, 2009
WL 815999 at * 7-8 (E.D. Tex. Mar. 26, 2009) (holding that
plaintiff’s conclusory allegations were insufficient to state a
claim because he offered no reason to suspect that the defendant’s

25

42 U.S.C. § 2000a prohibits discrimination on the basis of
“race, color, religion, or national origin,” but does not list sex
or age as prohibited grounds. See 42 U.S.C. § 2000a. However, 49
U.S.C. § 40127 prohibits discrimination in air travel “on the basis
of race, color, national origin, religion, sex, or ancestry.” 49
U.S.C. § 40127.
Both statutes require proof of intentional
discrimination. Malik, 305 F. App’x at 169.
16

actions had anything to do with the plaintiff’s protected class).
Because Plaintiff does not plead any facts to suggest that race,
sex, disability, or age had any connection to her treatment at the
airport,
dismissal.
165,

170

airline’s

Plaintiff’s

discrimination

claims

are

subject

to

See Malik v. Continental Airlines, Inc., 305 F. App’x
(5th

Cir.

treatment

2008)
of

(unsupported

plaintiff

was

speculation

evidence

of

that

the

intentional

discrimination, based only upon the fact that the plaintiff was a
minority, is insufficient to support a plaintiff’s discrimination
claims).

Plaintiff’s discrimination claims must therefore be

dismissed.
Plaintiff

also

alleges

a

retaliation

claim

against

the

Southwest Defendants, presumably under 42 U.S.C. 2000a-2, which
provides:
No person shall . . . (b) intimidate, threaten, or
coerce, or attempt to intimidate, threaten, or coerce any
person with the purpose of interfering with any right or
privilege secured by section 2000a or 2000a-1 of this
title, or (c) punish or attempt to punish any person for
exercising or attempting to exercise any right or
privilege secured by section 2000a or 2000a-1 of this
title.
42 U.S.C. 2000a-2.

To support her retaliation claim, Plaintiff

alleges that Christina Doe on “02/01/10 at Southwest Airline
Corporation [at] Hobby Airport in the city did make her threats

17

effective by depriving the Movant of Rights.”26

Plaintiff does not

plead facts to indicate that she was subjected to discrimination on
the basis of race, color, religion, or national origin, and further
does not allege facts to indicate that Christina Doe threatened or
punished her for exercising her rights under 42 U.S.C. § 2000a to
be free from acts of discrimination on those grounds.

Therefore

her retaliation claim is subject to dismissal.
Additionally, Plaintiff has not stated a valid discrimination
claim against the Southwest Defendants under 42 U.S.C. § 1983
because the Southwest Defendants are not state actors. See West v.
Atkins, 108 S. Ct. 2250, 2254-55 (1988) (“To state a claim under
§ 1983, a plaintiff must allege the violation of a right secured by
the Constitution or laws of the United States, and must show that
the alleged deprivation was committed by a person acting under
color of state law.” (citations omitted)); see also Atteberry v.
Nocona Gen. Hosp., 430 F.3d 245, 252-53 (5th Cir. 2005) (same).
Accordingly,

Plaintiff’s

§

1983

claim

against

the

Southwest

Defendants will be dismissed.
Plaintiff also does not state a claim against Southwest
Defendants or any other Defendant under Title 42 U.S.C. § 1985.
Plaintiff

26

cites

§

1985

without

Document No. 5-9 at 1.
18

specifying

any

of

its

three

subsections, but evidently relies on § 1985(3).27

To state a claim

under Section 1985(3), Plaintiff must allege:
(1) the defendants conspired (2) for the purposes of
depriving, either directly or indirectly, any person or
class of persons of the equal protection of the laws, or
of equal privileges and immunities under the laws, and
(3) one more of the conspirators committed some act in
furtherance of the conspiracy; whereby (4) another person
is injured in his person or property or deprived of
having and exercising any right or privilege of a citizen
of the United States; and (5) the action of the
conspirators is motivated by a racial animus.
Horaist v. Doctor’s Hosp. of Opelousas, 255 F.3d 261, 270 n.12 (5th
Cir. 2001) (quoting Wong v. Stripling, 881 F.2d 200, 202-03 (5th
Cir. 1989)).

To support her claims under § 1985, Plaintiff

alleges: “Movant(s) were deprived of privileges/rights and equal
protection

of

statu[t]es

for

the
the

laws,

ordinances,

city

of

Defendant(s) on 02/01/10.”28

Houston,

regulations,
state

of

codes,

Texas

by

U.S.
the

Plaintiff does not allege that two or

more specific persons agreed to deprive her of any rights, nor does
she

allege

“a

racial

or

otherwise

class-based

invidiously

discriminatory animus behind the conspirators’ action.” Bradt, 634

27

Section 1985(1) cannot apply because Plaintiff is not a
federal official, see Benningfield v. City of Houston, 157 F.3d
369, 278 (5th Cir. 1998) and Section 1985(2) is inapposite because
no conspiracy between two or more people “to deprive the plaintiff
of [her] right in [federal] court by physical or economic means.”
Mitchell v. Johnson, No. 07-40996, 2008 WL 3244283, at *4 (5th Cir.
Aug. 8, 2008).
28

Document No. 5-5 at 1 (“Count # (04) Title 42 U.S.[C.]
§ 1985 Conspiracy to Interfer[e] With Rights.”).
19

F.2d at 801 (citing Griffin v. Breckenridge, 91 S. Ct. 1790, 179598 (1971)).

As previously observed, Plaintiff does not plead any

facts to support claims of racial bias on the part of any of
Defendants.

Therefore, Plaintiff has stated no cause of action

under § 1985 upon which relief may be granted.

Accordingly,

Plaintiff’s claim under 42 U.S.C. § 1985 will be dismissed as to
all Defendants.
3.

Americans with Disabilities Act Claim

Plaintiff

also

asserts

a

claim

against

the

Southwest

Defendants under Title III of the Americans with Disabilities Act,
42 U.S.C. § 12182(a) et seq.29
individual

shall

be

Title III provides that “[n]o

discriminated

against

on

the

basis

of

disability in the full and equal enjoyment of the goods, service,
facilities, privileges, advantages, or accommodations of any place

29

Although governmental entities may be found liable under
Title II for violations of the Act, Plaintiff does not allege that
she was subjected to discrimination or lack of accommodation based
on any actions or omissions of the state or municipal entities
listed in this case. Therefore, any claim under the Americans with
Disabilities Act against Governor Perry and the City of Houston
Defendants will be dismissed. Further, as discussed below, the
Federal Defendants have not waived sovereign immunity for monetary
damages under the Americans with Disabilities Act, and therefore
Plaintiff’s claim against them fails as a matter of law. See 42
U.S.C. § 12131 (defining “public entity” to include local or state
governmental entities and omitting federal governmental entities
from the definition); see also Sherman v. Black, 510 F. Supp. 2d
193, 197 (E.D.N.Y. 2007), aff’d, 315 F. App’x 347 (2d Cir. 2009)
(Title II of the Americans with Disabilities Act does not apply to
the federal government).
20

of public accommodation by any person who owns, leases (or leases
to), or operates a place of public accommodation.”
§ 12182(a).

42 U.S.C.

To assert a viable claim under Title III, Plaintiff

must plead facts to allege that: (1) she has a disability within
the meaning of the Act; (2) the defendant is a private entity that
owns, leases, or operates a place of public accommodation; (3) the
plaintiff was denied public accommodations by the defendant because
of her disability. Griffin v. Public Access Comm. Television, 2010
WL 3815797, at *1 (W.D. Tex. Sept. 27, 2010) (citing 42 U.S.C.
§ 12182(a)).

Although Plaintiff summarily states that she is

disabled, she does not identify her disability and pleads no facts
linking her alleged disability to any mistreatment or lack of
accommodation.

Plaintiff fails to plead facts beyond “labels and

conclusions” that would “raise [her] right to relief above a
speculative level,” and therefore fails to state a claim for which
relief may be granted under the Americans with Disabilities Act.
Twombly, 127 S. Ct. at 1964-65.
B.

The Federal Defendants
Plaintiff’s claims against the Federal Defendants include:

(1) discrimination in public accommodations, 42 U.S.C. § 2000a;
(2)

violations

of

the

Americans

with

Disabilities

Act;

(3) violations of 42 U.S.C. §§ 1983 and 1985; (4) extortion;
(5) vicarious liability in respondeat superior; (6) retaliation;
and (7) violations of the Fourteenth Amendment.
21

Plaintiff generally alleges extortion against all Defendants
(although Southwest seems to be the real target for this claim).
Tort claims against the Federal Defendants, that is, claims for
money damages for injury or loss of property “caused by the
negligent or wrongful act or omission of any employee of the
government

while

acting

within

the

scope

of

his

office

or

employment,” including any claims based on vicarious liability or
respondeat superior, must be brought under the Federal Tort Claims
Act.

28 U.S.C. § 2675.

assertion

of

government.”

tort

This is the “exclusive vehicle for the

claims

for

damages

against

the

federal

In re Supreme Beef Processors, Inc., 468 F.3d 248,

252 (5th Cir. 2006) (en banc) (citing 28 U.S.C. §§ 2679(a)-(b)(1)).
Plaintiff does not allege that she exhausted her administrative
remedies as required by the Federal Tort Claims Act under 28 U.S.C.
§ 2675(a); therefore any of her claims that lie in tort are subject
to dismissal.
Plaintiff’s claims under 42 U.S.C. §§ 1983 and 1985 do not
apply to the Federal Defendants.30

See Resident Council of Allen

Parkway Village v. U.S. Dept. of Housing and Urban Dev., 980 F.2d
1043, 1053 (5th Cir. 1993), cert. denied, 114 S. Ct. 75 (1993)
(federal officials acting under color of federal law are not
subject to suit under § 1983); Biase v. Kaplan, 852 F. Supp. 268,

30

Further, as discussed previously, Plaintiff does not state
a claim against any defendant, including the Federal Defendants,
under 42 U.S.C. § 1985. See supra at 19-21.
22

280 (D.N.J. 1994) (“[N]either § 1985 nor any other provision of the
Civil Rights Act may provide the basis for an action against the
United States or a Federal agency.”); see also Graves v. United
States, 961 F. Supp. 314, 318 (D.D.C. 1997) (United States may not
be sued pursuant to 42 U.S.C. § 1985).
Plaintiff’s

claims

for

monetary

damages

under

42

U.S.C.

§ 2000a and the Americans with Disabilities Act are barred by
sovereign

immunity.

“The

doctrine

of

sovereign

immunity

is

inherent in our constitutional structure and . . . renders the
United States [and] its departments . . . immune from suit except
as the United States has consented to be sued.”

Williamson v. U.S.

Dept. of Agriculture, 815 F.2d 368, 373 (5th Cir. 1987).

“In a

suit against the United States, there cannot be a right to money
damages without a waiver of sovereign immunity.”
Testan, 96 S. Ct. 948, 954 (1976).

United States v.

“It is well settled . . . that

a waiver of sovereign immunity must be specific and explicit and
cannot

be

implied

by

construction

of

an

ambiguous

statute.”

Petterway v. Veterans Admin. Hosp., 495 F.2d 1223, 1225 n.3 (5th
Cir. 1974) (citations omitted).

Nothing in the text of 42 U.S.C.

§ 2000a et seq. explicitly and unequivocally states that the
federal government has waived its sovereign immunity.

See 42

U.S.C. § 2000a et seq.; see also Zhu v. Gonzales, No. 04-1408(RMC),
2006 WL 1274767, at *5 (D.D.C. May 8, 2006) (Collyer, J.) (“42
U.S.C. §§ 2000a to 2000a-2 . . . do not explicitly state that the
federal government has waived its sovereign immunity.”); Friday v.
23

United States, No. 92-888-FR, 1993 WL 165656, at *2 (D. Or. May 7,
1993), aff’d, 21 F.3d 1113 (9th Cir. 1994) (the United States did
not

waive

its

immunity

for

constitutional

torts

such

as

discrimination in public accommodations under 42 U.S.C. § 2000a-2).
Plaintiff’s claims for money damages asserted under the Americans
with Disabilities Act against the Federal Defendants is similarly
infirm, because the “United States, its agencies, and employees are
not public entities under the ADA.”

Sherman v. Black, 510 F. Supp.

2d 193, 197 (E.D.N.Y. 2007), aff’d, 315 F. App’x 347 (2d Cir.
2009); see also 42 U.S.C. § 12131(1) (“public entities” are defined
in Title II of the Americans with Disabilities Act to include
state and local government entities but do not mention federal
government entities).
Likewise, Plaintiff’s constitutional claims for money damages
are also barred by sovereign immunity, except insofar as she can
state a claim against a specific government agent in his individual
capacity pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 91 S. Ct. 1999 (1971), which she has not done.
See F.D.I.C. v. Meyer, 114 S. Ct. 996, 1005-06 (1994) (holding that
a Bivens action may be brought against individual federal agents
but not against federal agencies); Garcia v. United States, 666
F.2d 960, 966 (5th Cir. 1982), cert. denied, 103 S. Ct. 73 (1982)
(“[A] suit for damages against the United States based on the
Constitution is not contemplated by Bivens and its progeny.”);

24

Reinbold v. Evers, 187 F.3d 348, 355 n.7 (4th Cir. 1999) (“While
Bivens actions allow for recovery of money damages against federal
officials who violate the United States Constitution in their
individual capacities, Bivens does not allow for recovery of money
damages, or suits in general, against the government itself.”
(citing Keene Corp. v. United States, 700 F.2d 836, 845 n.13 (2d
Cir. 1983))); Nwangoro v. Dept. of the Army, 952 F. Supp. 394, 397
(N.D. Tex. 1996) (“The United States has not, however, waived its
sovereign immunity with respect to constitutional torts.”).
The

only

allegations

in

Plaintiff’s

complaint

that

specifically apply to any individual federal employee are:
T.S.A. caused a major delay for movant to initially board
the plane on 02-01-10 because their employee, agent who
spoke broken English had an[sic] language barrier and
could not understand the movant’s identification
documents and refused to allow the movant to pass through
his area(s) stating he could not and would not accept my
state of Texas government issued temporary I.D. along
with my birth certificate from Chicago Illinois causing
the movant to miss the initial flight scheduled for
02/01/10 and be at bedside with mother while she was
alive.31
Plaintiff’s

complaint

against

the

TSA

agent

at

the

security

checkpoint, whom she calls “John Doe TSA agent,” is based on the
delay caused by the agent’s initial rejection of Plaintiff’s I.D.
TSA

agents

are

charged

with

maintaining

the

security

of

air

transportation and routinely must verify passengers’ identities and

31

Document No. 5 at 3 ¶ 12.
25

allow only authorized individuals to pass.32 In fact, the TSA agent
had a duty to check Plaintiff’s I.D., ask Plaintiff questions, or
subject her to a search in order to assess whether she was the
named ticket holder or posed a security threat.

See Corbett v.

United States, No. 10-24106-CIV, 2011 WL 1226074, at *5 (S.D. Fla.
Mar. 2, 2011) (“Congress tasked TSA with protecting the public from
violence

and

piracy

aboard

aircrafts.”

(citing

49

U.S.C.

§ 44903(b))). The TSA information page which Plaintiff included as
an exhibit to her pleadings states:
Passengers who do not or cannot present an acceptable ID
will have to provide information to the Transportation
Security Officer performing Travel Document Checking
duties in order to verify their identity. Passengers who
are cleared through this process may be subject to
additional screening. Passengers whose identity cannot
be verified by TSA may not be allowed to enter the
screening checkpoint or onto an airplane.33
Plaintiff complains only that TSA delayed her and erred in deciding
that her I.D. was insufficient; she does not allege any connection
between that mistake, and her race, sex, age, or disability, or
that she suffered any other negative treatment because of her
protected

class;

hence

Plaintiff

fails

to

state

any

viable

constitutional Bivens claim against John Doe TSA agent. Williamson
v. U.S. Dept. Of Agriculture, 815 F.2d 368, 381 (5th Cir. 1987)

32

Document No. 5, ex. 1 (Document No. 5-2 at 2) (TSA “ID
Requirements for Airport Checkpoints”).
33

Document No. 5, ex. 1.
26

(“The Constitution is not implicated unless the decision goes
beyond mere error to an intentional or reckless disregard of the
constitutional rights of the person against whom the administrative
decision was made.”

(quotation omitted)).

Moreover, John Doe TSA agent’s asserted qualified immunity
defense

protects

“[G]overnment

him

officials

from

liability

performing

for

civil

discretionary

damages.
functions

generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.’”

Kinney v. Weaver, 367 F.3d 337, 349 (5th Cir. 2004) (en

banc); see also Malley v. Briggs, 106 S. Ct. 1092, 1096 (1986)
(qualified immunity protects “all but the plainly incompetent or
those who knowingly violate the law”).

As observed above, none of

John Doe TSA agent’s alleged actions rises to the level of a
“clearly

established

statutory

or

constitutional

therefore the agent has qualified immunity.

right,”

and

Plaintiff’s action

against “John Doe TSA” must therefore be dismissed.
C.

Claims Against Governor Perry
Plaintiff does not allege any wrongdoing by Governor Perry

individually.

He is not alleged to have been present at Hobby

Airport nor to have directed any of the activities of which
Plaintiff complains.

To the extent that Plaintiff sues Governor

Perry in his official capacity as the Governor of the State of
27

Texas, the Eleventh Amendment bars actions against a state entity
in federal court by private parties seeking monetary relief, absent
waiver by the State or abrogation by Congress.

See Ganther v.

Ingle, 75 F.3d 207, 209-10 (5th Cir. 1996) (Texas has not waived
its immunity to claims arising out of intentional torts or its
immunity to federal claims seeking monetary damages); Aguilar v.
Tex. Dept. of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir 1998),
cert. denied, 120 S. Ct. 130 (1999) (“Section 1983 does not waive
states’ sovereign immunity . . . and Texas has not consented to
this suit.” (internal citations omitted)); Chacko v. Tex. A & M
Univ., 960 F. Supp. 1180, 1197-99 (S.D. Tex. 1997), aff’d, 149 F.3d
1175 (5th Cir. 1998) (state employees in their official capacities
are immune from § 1983 claims for monetary relief); Baldwin v.
Univ. of Tex. Med. Branch at Galveston, 945 F. Supp. 1022, 1030
(S.D. Tex. 1996) (“Congress did not abrogate the states’ Eleventh
Amendment
1985.”).

immunity

by

enacting

42

U.S.C.

§§

1981,

1983,

and

Where the state has not consented to suit, the Eleventh

Amendment bars a claim for money damages from state employees in
their official capacity.
(5th Cir. 2002).

See Oliver v. Scott, 276 F.3d 736, 742

Therefore, Plaintiff’s claims, for which she

seeks monetary damages against Governor Perry in his official
capacity as a state employee, are barred by the Eleventh Amendment
and will be dismissed for lack of subject matter jurisdiction.
D.

City of Houston Defendants
28

Plaintiff names William P. Hobby Airport as a defendant, but
the airport is not a corporate entity separate from the City of
Houston, which owns it.

Plaintiff does not allege any wrongdoing

or tortious conduct on the part of any of the City of Houston
Defendants.

Plaintiff does allege that members of the Houston

Police Department acquired a cab and paid the fare–-$40.00--to
provide her with a taxi ride home.

This charitable act does not

state an actionable claim against the City of Houston or its
employees under 42 U.S.C. §§ 1983, 1985, or any other cause of
action.

Accordingly, Plaintiff’s claims against the City of

Houston Defendants will be dismissed for failure to state a claim
upon which relief can be granted.
IV.

Order

Accordingly, it is hereby
ORDERED

that

Defendants

City

of

Houston’s,

Mayor

Annise

Parker’s and Mary Case’s Motion to Dismiss Pursuant to Federal Rule
of

Civil

Procedure

12(b)(6),

(“City

of

Houston

Defendants”)

(Document No. 20), Defendants Southwest Airlines, Co.’s, Gary
Kelly’s, and Marilee McInnis’s (the “Southwest Defendants”) Motion
to Dismiss (Document No. 21), Defendant Rick Perry’s Motion to
Dismiss (Document No. 39), and the Motion to Dismiss by Defendants
U.S.

Department

of

Homeland

Security

(“DHS”),

Transportation

Security Administration (“TSA”), Federal Aviation Administration

29

(“FAA”), U.S. Department of Transportation (“DOT”), Eric Holder,
Jr., Jose Angel Moreno, Catherine Emerson, David Weingart, David
Grizzle, Sasha Johnson, Fanny Rivera, Margaret Gilligan, Christa
Fornarotto, and Paula R. Lewis (the “Federal Defendants”) (Document
No. 40), are all GRANTED, and all causes of action against the City
of Houston Defendants, the Southwest Defendants and “John Doe TSA,”
are DISMISSED WITH PREJUDICE, and all claims against Rick Perry and
the remaining Federal Defendants are DISMISSED for lack of subject
matter jurisdiction.
The Clerk will enter this Order and send copies to all counsel
of record.
SIGNED at Houston, Texas, on this 15th day of December, 2011.

____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE

30