Van Winkle v. Pinecroft Center, L.P. et al

Filing 55

OPINION AND ORDER denying Motions to Dismiss. Defendants' motions to dismiss [10 and 20] are DENIED, but Plaintiff shall replead his complaint within twenty days in a effort to cure the deficiencies cited in the Opinion and Order.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

United States District Court

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
Plaintiff,
§
§
vs.
§
§
PINECROFT CENTER, L.P., ET AL., §
§
Defendants.
§

Southern District of Texas

ENTERED
August 23, 2017
David J. Bradley, Clerk

JAMES VAN WINKLE,

CIVIL ACTION H-16-2694

OPINION AND ORDER
Pending before the Court in the above reference suit, grounded
in the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12101,
et

al.,

and

the

Americans

With

Disability

Act

Accessibility

Guidelines (“ADAAG”), 28 C.F.R. 36, are (1) Defendant Target
Corporation’s (“Target”s”) [Rule] 12(b)(1) motion to dismiss for
lack of subject-matter jurisdiction and [Rule] 12(b)(6) motion to
dismiss for Plaintiff

James Van Winkle’s failure to state a claim

or, in the alternative, [Rule 12(e) motion] for a more definite
statement (instrument #10); and (2) Defendant Pinecroft Limited,
L.P. d/b/a Pinecroft Partners, L.P.’s (“Pinecroft’s”) identical
motion (#20).
Standards of Review
Rule 12(b)(1)
“When a motion to dismiss for lack of jurisdiction ‘is filed
in conjunction with other Rule 12 motions, the court should
consider the Rule 12(b)(1) jurisdictional attack before addressing
any attack on the merits.”

Crenshaw-Logal v. City of Abilene,

Texas, No. 11-10264, 2011 WL 3363872, *1 (5th Cir. Aug. 4, 2011),
quoting Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001);
-1-

see also Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d
(5th Cir. Mar. 15, 2011); Fed. R. Civ. P. 12(h)(3).

757, 762

If a complaint

could be dismissed for both lack of jurisdiction and for failure to
state a claim, “the court should dismiss only on the jurisdictional
ground under [Rule] 12(b)(1), without reaching the question of
failure to state a claim under [Rule] 12(b)(6).”

Crenshaw-Logal,

2011 WL 3363872, *1, quoting Hitt v. City of Pasadena, 561 F.2d
606, 608 (5th Cir. 1977).

The reasons behind this practice are to

preclude courts from issuing advisory opinions and barring courts
without jurisdiction “‘from prematurely dismissing a case with
prejudice.’”.

Id., citing Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 101 (1998), and Ramming v. United States, 281
F.3d 158, 161 (5th Cir. 2001).
Rule 12(b)(1) allows a party to move for dismissal of an
action

for

lack

of

subject

matter

jurisdiction.

The

party

asserting that subject matter exists, here the plaintiff, must bear
the burden of proof by a preponderance of the evidence for a
12(b)(1) motion.

New Orleans & Gulf Coast Ry. Co. v. Barrois, 533

F.3d 321, 327 (5th Cir. 2008); Ramming v. United States, 281 F.3d
158, 161 (5th Cir. 2001).

In reviewing a motion under 12(b)(1) the

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.

Williamson v. Tucker, 645 F.2d 404,

413 (5th Cir. 1981).
A motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) is characterized as either a “facial” attack,
-2-

i.e., the allegations in the complaint are insufficient to invoke
federal jurisdiction, or as a “factual” attack, i.e., the facts in
the

complaint

questioned.

supporting

subject

matter

jurisdiction

are

In re Blue Water Endeavors, LLC, Bankr. No. 08-10466,

Adv. No. 10-1015, 2011 WL 52525, *3 (E.D. Tex. Jan. 6, 2011),
citing Rodriguez v. Texas Comm’n of Arts, 992 F. Supp. 876, 878-79
(N.D. Tex. 1998), aff’d, 199 F.3d 279 (5th Cir. 2000).

A facial

attack happens when a defendant files a Rule 12(b)(1) motion
without accompanying evidence.
521, 523 (5th Cir. 1981).

Paterson v. Weinberger, 644 F.2d

In a facial attack, allegations in the

complaint are taken as true.

Blue Water,

2011 WL 52525 at *3,

citing Saraw Partnership v. United States, 67 F.3d 567, 569 (5th
Cir. 1995).

The two motions to dismiss here are facial attacks.

If it is a factual attack, the Court may consider any evidence
(affidavits, testimony, documents, etc.) submitted by the parties
that is relevant to the issue of jurisdiction.

Id., citing Irwin

v. Veterans Admin., 874 F.2d 1092, 1096 (5th Cir. 1989).

A

defendant making a factual attack on a complaint may provide
supporting affidavits, testimony or other admissible evidence.
Patterson v. Weinberger, 644 F.3d 521, 523 (5th Cir. 1981).

The

plaintiff, to satisfy its burden of proof, may also submit evidence
to show by a preponderance of the evidence that subject matter
jurisdiction exists.

Id.

The court’s consideration of such

matters outside the pleadings does not convert the motion to one
for summary judgment under Rule 56(c).

Robinson v. Paulson, H-06-

4083, 2008 WL 4692392 at *10 (S.D. Tex. Oct. 28, 2008), citing
Garcia, 104 F.3d at 1261.

“Unlike in a facial attack where
-3-

jurisdiction is determined upon the basis of allegations of the
complaint, accepted as true[,] when a factual attack is made upon
federal jurisdiction, no presumption of truthfulness attaches to
the plaintiffs’ jurisdictional allegations, and the court is free
to weigh the evidence and satisfy itself as to the existence of its
power to hear the case.

In a factual attack, the plaintiffs have

the burden of proving that federal jurisdiction does in fact
exist.”

Evans v. Tubbe, 657 F.2d 661, 663 (5th Cir. 1981).

In

resolving a factual attack on subject matter jurisdiction under
Rule 12(b)(1), the district court, which does not address the
merits of the suit,1 has significant authority “‘to weigh the
evidence and satisfy itself as to the existence of its power to
hear the case.’”
4692392,

*10

Robinson v. Paulson, No. H-06-4083, 2008 WL

(S.D.

Tex.

Oct.

22,

2008),

quoting

Garcia

v.

Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997),

1

As the court explained in Taylor v. Dam, 244 F. Supp. 2d
747, 753 (S.D. Tex. 2003),
It is well settled that “a district court has broader
power to decide its own right to hear the case than it
has when the merits of the case are reached.”
[Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.).
cert. denied, 454 U.S. 897 (1981).] “Jurisdictional
issues are for the court--not the jury--to decide,
whether they hinge on legal or factual determinations.
Id. To determine whether jurisdiction exists, the
court will generally resolve any factual disputes from
the pleadings and the affidavits submitted by the
parties. See Espinoza v. Missouri Pac. R.R. Co., 754
F.2d 1247, 1248 n.1 (5th Cir. 1985). The court may
also conduct an evidentiary hearing and “may hear
conflicting written and oral evidence and decide for
itself the factual issues which determine
jurisdiction.” Williamson, 645 F.2d at 413; see
Menchaca v. Chrysler Credit Corp.,613 F.2d 507, 511-12
(5th Cir.), cert. denied, 449 U.S. 953 . . . (1980).
-4-

and citing Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir.
1986).
Rule 12(h)(3) states, “If the court determines at any time
that it lacks subject matter jurisdiction, the court must dismiss
the action.
Rule 8(a)
Rule 8(a) requires that “[a] pleading that states a claim for
relief must contain”
(a) a short and plain statement of the grounds for the
court’s jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional
support;
(b) a short plain statement of the claim showing the
pleader is entitled to relief; and
(c) a demand for the relief sought, which may include
relief in the alternative or different types of relief.
Rule 12(b)(6)
When a district court reviews a motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6), it must construe the complaint in favor
of the plaintiff and take all well-pleaded facts as true. Randall
D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011),
citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009).
plaintiff’s

legal

conclusions

are

not

entitled

to

the

The
same

assumption. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(“The tenet
that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.”), citing Bell
Atlantic Corp. v. Twombly, 556 U.S. 662, 678 (2007); Hinojosa v.
U.S. Bureau of Prisons, 506 Fed. Appx. 280, 283 (5th Cir. Jan. 7,
2012).
“While a complaint attacked by a Rule 12(b)(6) motion to

-5-

dismiss does not need detailed factual allegations, . . . a
plaintiff’s

obligation

‘entitle[ment]

to

to

relief’

provide

the

requires

‘grounds’

more

than

of

his

labels

and

conclusions, and a formulaic recitation of the elements of a cause
of action will not do . . . .” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555(2007)(citations omitted).

“Factual allegations must

be enough to raise a right to relief above the speculative level.”
Id. at 555, citing 5 C. Wright & A. Miller, Federal Practice and
Procedure § 1216, pp. 235-236 (3d ed. 2004)(“[T]he pleading must
contain something more . . . than . . .

a statement of facts that

merely creates a suspicion [of] a legally cognizable right of
action”).

“Twombly

jettisoned

the

minimum

notice

pleading

requirement of Conley v. Gibson, 355 U.S. 41 . . . (1957)[“a
complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief”], and instead required that a complaint allege enough facts
to state a claim that is plausible on its face.”

St. Germain v.

Howard,556 F.3d 261, 263 n.2 (5th Cir. 2009), citing In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)(“To survive
a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough
facts to state a claim to relief that is plausible on its face.’”),
citing Twombly, 550 U.S. at 570. “‘A claim has facial plausibility
when the pleaded factual content allows the court to draw the
reasonable

inference

misconduct alleged.’”

that

the

defendant

is

liable

for

the

Montoya v. FedEx Ground Package System,

Inc., 614 F.3d 145, 148 (5th Cir. 2010), quoting Ashcroft v. Iqbal,
-6-

556 U.S. 662, 678 (2009).
to

a

“probability

The plausibility standard is not akin

requirement,”

but

asks

for

more

“possibility that a defendant has acted unlawfully.”
U.S. at 556.

than

a

Twombly, 550

Dismissal is appropriate when the plaintiff fails to

allege “‘enough facts to state a claim to relief that is plausible
on its face’” and therefore fails to “‘raise a right to relief
above the speculative level.’”

Montoya, 614 F.3d at 148, quoting

Twombly, 550 U.S. at 555, 570.
In Ashcroft v. Iqbal, 556 U.S. at 679, the Supreme Court
stated that “only a complaint that states a plausible claim for
relief survives a motion to dismiss,” a determination involving “a
context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.”

“[T]hreadbare recitals

of the elements of a cause of action, supported by mere conclusory
statements do not suffice” under Rule 12(b).
678.

The

plaintiff

must

plead

specific

conclusory allegations, to avoid dismissal.

Iqbal, 556 U.S. at
facts,

not

merely

Collins v. Morgan

Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). “Dismissal
is proper if the complaint lacks an allegation regarding a required
element necessary to obtain relief . . . .“

Rios v. City of Del

Rio, Texas, 444 F.3d 417, 421 (5th Cir. 2006), cert. denied, 549
U.S. 825 (2006).
When a plaintiff’s complaint fails to state a claim, the court
should generally give the plaintiff at least one chance to amend
the complaint under Rule 15(a) before dismissing the action with
prejudice.

Great Plains Trust Co v. Morgan Stanley Dean Witter &

Co., 313 F.3d 305, 329 (5th Cir. 2002)(“District courts often afford
-7-

plaintiffs at least one opportunity to cure pleading deficiencies
before dismissing a case, unless it is clear that the defects are
incurable

or

the

plaintiffs

unwilling

or

unable

to

advise

amend

in

the
a

court

manner

that

that

they

will

are

avoid

dismissal.”); United States ex rel. Adrian v. Regents of the Univ.
of Cal., 363 F.3d 398, 403 (5th Cir. 2004)(“Leave to amend should
be freely given, and outright refusal to grant leave to amend
without a justification . . . is considered an abuse of discretion.
[citations omitted]”).

The court should deny leave to amend if it

determines that “the proposed change clearly is frivolous or
advances a claim or defense that is legally insufficient on its
face . . . .”

6 Charles A. Wright, Arthur R. Miller & Mary Kay

Kane, Federal Practice and Proc. § 1487 (2d ed. 1990).
Applicable Substantive Law
Title III of the ADA provides, “No individual shall be
discriminated against on the basis of disability in the full and
equal enjoyment of the goods and services, facilities, privileges,
advantages, or accommodations of any place of public accommodation2
by any person who owns, leases (or leases to), or operates a place
of public accommodation.” 42 U.S.C. § 12182(a). Discrimination in
violation of the Act includes ”a failure to remove architectural
barriers . . . in existing facilities . . . where such removal is
‘readily achievable’”3 and “a failure to take such steps as may be

2

42 U.S.C. § 121811(7), lists the types of private entities
that are considered public accommodations.
3

“Readily achievable” means “easily accomplishable and able
to be carried out without much difficulty or expense.” 28 C.F.R.
§ 36.304(a). The regulations list examples of various ways to
-8-

necessary to ensure that no individual with a disability is
excluded,

denied

services,

segregated

or

otherwise

treated

differently than other individuals because of the absence of
auxiliary aids and services, unless the entity can demonstrate that
taking such steps would fundamentally alter the nature of the good
service, facility, privilege, advantage, or accommodation being
offered

or

would

result

in

12182(b)(2)(A)(iii and iv).

an

undue

burden.”

42

U.S.C.

§

The regulation 28 C.F.R. § 36.304(c)

establishes priorities for complying with the removal requirements:
(1) First, a public accommodation should take measures to
provide access to a place of public accommodation from
public sidewalks, parking or public transportation.
These measures include, for example, installing an

remove barriers (§ 36.304(b)):
(1) Installing ramps;
(2) Making curb cuts in sidewalks and entrances;
(3) Repositioning shelves;
(4) Rearranging tables, chairs, vending machines,
display racks, and other furniture;
(5) Repositioning telephones;
(6) Adding raised markings on elevator control buttons;
(7) installing flashing alarm lights;
(8) Widening doors;
(9)Installing offset hinges to widen doorways;
(10) Eliminating a turnstile or providing an
alternative accessible path;
(11) Installing accessible door hardware;
(12) Installing grab bars in toilet stalls;
(13) Rearranging toilet partitions to increase
maneuvering space;
(14) Insulating lavatory pipes under sinks to prevent
burns;
(15) Installing a raised toilet seat;
(16) Installing a full-length bathroom mirror;
(17) Repositioning the paper towel dispenser in the
bathroom;
(18) Creating designated accessible parking spaces;
(19) Installing an accessible paper cup dispenser at an
existing inaccessible water fountain.
(20) Removing high pile, low density carpeting; or
(21) installing vehicle hand controls.
-9-

entrance ramp, widening entrances, and providing
accessible parking spaces.
(2) Second, a public accommodation should take measures
to provide access to those areas of a place of public
accommodation where goods and services are made available
to the public.
These measures include, for example,
adjusting the layout of display racks, rearranging
tables, providing Braille and raised character signage,
widening doors, providing visual alarms, and installing
ramps.
(3) Third, a public accommodation should take measures to
provide access to restroom facilities. These measures
include, for example, removal of obstructing furniture or
vending machines, widening of doors, installation of
ramps, proving accessible signage, widening of toilet
stalls, and installation of grab bars.
(4) Fourth, public accommodation should take any other
measures necessary to provide access to the goods,
services, privileges, advantages, or accommodations of a
place of public accommodation.
The House Report on the ADA stated, “The purpose of the ADA is
to provide a clear and comprehensive national mandate to end
discrimination against individuals with disabilities and to bring
persons with disabilities into the economic and social mainstream
of American life; to provide enforceable standards addressing
discrimination against individuals with disabilities; and to ensure
that the Federal government plays a central role in enforcing these
standards on behalf of individuals with disabilities.” H. Rep. No.
101-485, pt. 2, at 22-23 (1990).
In a very broad grant of standing, 42 U.S.C. § 12188(a)(1)
provides injunctive relief
to any person who is being subjected to discrimination on
the basis of disability in violation of this subchapter
or who has reasonable grounds for believing that such
person is about to be subjected to discrimination in
violation of section 12183 of this title. Nothing in
this section shall require a person with disability to
engage in a futile gestures if such person has actual
notice that a person or organization covered by this
subchapter does not intend to comply with its provision.

-10-

Money damages are not available in a private action against a
private owner of a place of public accommodation under Title III of
the ADA, but only injunctive relief and attorney’s fees.

Section

308(a) of the ADA, 42 U.S.C. §§ 12182(a)(“No individual shall be
discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation
by any person who owns, leases (or leases to), or operates a place
of public accommodation.”) and 12188(a)(1)(“ . . . Nothing in this
section shall require a person with a disability to engage in a
futile gesture if such person has actual notice that a person or
organization covered by this subchapter does not intend to comply
with its provisions.”); 42 U.S.C. § 12205 (“In any action or
administrative proceeding commenced pursuant to this chapter, the
court . . . may allow the prevailing party, other than the United
States, a reasonable attorney’s fee, including litigation expenses,
and costs, and the United States shall be liable for the foregoing
the same as a private individual.”); Gilkerson v. Chasewood Bank,
1 F. Supp. 3d 570, 573-74 & n.5 (S.D. Tex. 2014); Todd v. American
Multi-Cinema, Inc., 222 F.R.D. 118, 120 n.2 (S.D. Tex. 2003).
While

the

statute

does

not

define

“place

of

accommodation,” it does define “public accommodation”:
entities

are

considered

public

accommodations

.

.

public
“private

.

if

the

operations of such entities affect commerce” and “fall into one of
twelve enumerated categories” in 42 U.S.C. § 12181(7).4

4

(7) Public accommodation
-11-

The

Department

of

Justice’s

regulations

define

“place

of

public

The following private entities are considered public
accommodations for purposes of this subchapter, if the operations
of such entities affect commerce-(A) an inn, hotel, motel, or other place of lodging
except for an establishment located within a building
that contains not more than five rooms for rent or hire
and that is actually occupied by the proprietor of such
establishment as the resident of such proprietor;
(B) a restaurant, bar, or other establishment serving
food or drink;
(C) a motion picture house, theater, concert hall,
stadium, or other place of exhibition or entertainment;
(D) an auditorium, convention center, lecture hall, or
other place of public gathering;
(E) bakery, grocery store, clothing store, hardware
store, shopping center, or other sales or rental
establishment;
(F) a laundromat, dry-cleaner, bank, barber shop,
beauty shop, travel service, shoe repair service,
funeral parlor, gas station, office of an accountant or
lawyer, pharmacy, insurance office, professional office
of a healthcare provider, hospital, or other service
establishment;
(G) a terminal, depot, or other station used for
specified public transportation;
(H) a museum, library, gallery, or other place of
public display or collection;
(I) a park, zoo, amusement park, or other place of
recreation;
(J) a nursery, elementary, secondary, undergraduate, or
postgraduate private school, or other place of
education;
(K) a day care center, senior citizen center, homeless
shelter, food bank, adoption agency, or other social
service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf
course, or other place of exercise or recreation.
-12-

accommodations” as “a facility operated by a private entity whose
operations affect commerce and fall within at least one of twelve
enumerated

categories

very

similar

to

those

in

42

U.S.C.

§

12181(7). Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d 530,
532-34 (5th Cir. 2016).
Plaintiff’s Allegations
Plaintiff, whose physical disability substantially limits one
or more major life activities and requires him to use a wheelchair
to move around, sues the lessees, owners, or operators of stores,
restaurants, and other businesses, including restrooms and the
parking lot, at Pinecroft Center II, L.P., all places of public
accommodation, for discriminating against him by denying him access
to

the

premises

and

the

full

and

equal

enjoyment

of

goods,

services, privileges, advantages and accommodations in violation of
the ADA by failing to remove impeding architectural barriers to
individuals

with

disabilities

unless

the

Court

grants

him

injunctive relief.
Plaintiff further states that he “has a real, continuing, and
immediate threat of future discrimination by Defendants’ violation
of and non-compliance with the ADA because he plans on returning to
the Subject Premises in the near future.”

Complaint at ¶ 39.

He

also reveals that he is “a tester for the purpose of asserting his
civil rights by monitoring, ensuring and determining whether places
of public accommodation are in compliance with the ADA.” Complaint
at ¶ 37.
Target’s Rule 12(b)(1) and 12(b)(6) Motion to Dismiss (#10)
On or about 2015, Plaintiff claims that when he visited the
-13-

premises in dispute to purchase items, he found architectural
barriers

barring

him

and

wheelchair-dependent

handicapped

individuals from access in the parking lot and in the stores.
Target

contends

that

(1)

the

Court

lacks

subject-matter

jurisdiction over this case because Plaintiff lacks Article III
standing; and (2) Plaintiff’s complaint fails to provide fair
notice of any of the claims asserted or fails to state plausible
claims,

while

it

“regurgitates--almost

verbatim--the

same

nondescript factual allegations contained in the other 19 lawsuits5
Plaintiff has filed in the United States Southern District of
Texas--Houston Division within the past two years alone.”

#10 at

p. 2.
Target asserts that “Plaintiff is a serial-filer and selfdescribed ‘tester’ who personally seeks out barriers that he
believes violate” the ADA.6

Target lists the nineteen

ADA suits,

with case numbers and the dates that they were purportedly filed by
Plaintiff in this District during the past two years, against local

5

The Court finds that three incorrect case numbers were
provided: H-16-cv-02165, H-16-cv-606, and H-15-cv-1546.
6

In Gilkerson, 1 F. Supp. 3d at 574-75, explains that in a
number of cases around the country disabled individuals, often
“along with an organization dedicated to the rights of the
disabled, are ‘serial plaintiffs’ or ‘testers’ acting a private
attorneys general challenging various entities’ noncompliance in
their places of public accommodation with Title III of the ADA,
leading to a wide and varied spectrum of judicial decisions
addressing complex issues of, and policies regarding, standing.”
The Gilkerson court, id. at n.6, also quotes the definition of a
tester in McConnell v. Canadian Pacific Hills Plaza, 2014 WL
201102, at *1 n.1 (M.D. Pa. Jan. 16, 2014)(“an individual with a
disability who repeatedly visits places of public accommodation
with the dual motivation of verifying ADA compliance along with
availing himself or herself with the goods and/or services
available.”).
-14-

retail establishments, alleging similar if not identical Title III
ADA claims, nearly all of which have settled.

#10 at p. 3.

Target

asserts that in each Plaintiff “mechanically claims that:

(1) he

visited a defendant’s retail establishment; (2) he encountered
‘architectural barriers’ at a defendant’s retail establishment;
(and

[3])

he

establishment.”
Target

intends

to

return

to

the

defendant’s

retail

#10 at p. 3.

maintains

that

Plaintiff

lacks

“the

irreducible

constitutional minimum” of Article III standing, which he bears the
burden of demonstrating his standing by showing (1) that he
“suffered an injury in fact”--an invasion of a legally protected
interest which is (a) concrete and particularized, . . . and (b)
actual or imminent, not ‘conjectural’ or ‘hypothetical[; (2)] “a
causal connection between the injury and the conduct complained of-the injury has to be fairly . . . trace[able] to the challenged
action of the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the court”[; and
(3)] it must be ‘likely,’ as opposed to merely ‘speculative,’ that
the injury will be ‘redressed by a favorable decision,’” what is
generally known as redressibility. Lujan v. Defenders of Wildlife,
504

U.S.

555,

560-61

(1992)(citations

omitted).

“[B]ecause

injunctions regulate future conduct, a party seeking injunctive
relief must allege . . . a real and immediate--as opposed to a
merely conjectural or hypothetical--threat of future injury.”
Wooden v. Bd. of Regents Univ. Sys. of Georgia, 247 F.3d 1262, 1284
(11th

Cir.

2001).

Furthermore,

where

the

plaintiff

seeks

declaratory and injunctive relief, . . . the plaintiff must also
-15-

show a significant possibility of future harm; it is not enough to
show only a prior injury.
(1974).

O’Shea v. Littleton, 414 U.S. 488, 495

Moreover because the ADA provides for injunctive relief,

plaintiffs complaining about architectural barriers at public
accommodations have standing to bring claims only if they show a
plausible intention or desire to return to the place but for the
barriers to access.

Pickern v. Holiday Quality Foods, Inc., 293

F.3d 1133, 1138 (9th Cir. 2002); Shotz v. Cates, 256 F.3d 1077, 1081
(11th Cir. 2001).

Intent to return to the place of injury “some

day” is not sufficient.

Lujan, 504 U.S. at 564 (“Such ‘some day’

intentions-without any description of concrete plans, or even any
specification of when the some day will be--do not support a
finding of the ‘actual or imminent’ injury that our cases require.
[emphasis in original].”7

The court must decide standing based on

7

In Gilkerson, 1 F. Supp. 3d at 581-82, this Court
addressed decisions by courts in the Fifth Circuit finding that
the likelihood of future injury is measured by whether the
plaintiff is likely to return to the defendant’s business and
applying a four-prong test:
Some courts have required that a plaintiff seeking
injunctive relief under Title III must establish
standing by alleging a concrete, particularized, and
plausible plan to return to the out-of-compliance
public accommodation that discriminated against her.
In Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308,
312 (5th Cir. 1997), the Fifth Circuit opined, “To
obtain standing for injunctive relief, a plaintiff must
show that there is a reason to believe that he would
directly benefit from the equitable relief sought. In
other words, a plaintiff must face a threat of present
or future harm [citation omitted].” Therefore [the
plaintiff] must plead facts demonstrating that she
intends, and is likely, to return to [Defendant’s] ATM
by pointing to such factors as its proximity to her
home, her past patronage, the frequency of her travel
near that ATM, and her concrete plans to do so and
when. Davis v. First Nat’l Bank of Trenton, No. 4:12-16-

the facts at the time the suit is filed; thus the plaintiff’s
effort to bolster standing after that time cannot help him. Access
4 All, Inc. v. Wintergreen Commercial P’ship, Ltd., No. 3:05-CV1307, 2005 WL 2989307, at *3 (N.D. Tex. Nov. 7, 2005).

In

considering the likelihood of return, courts consider such factors
as

“(1)

the

proximity

of

the

defendant’s

business

to

the

plaintiff’s residence, (2) the plaintiff’s past patronage of the
defendant’s business, (3) the definitiveness of the plaintiff’s
plans to return, and (4) the plaintiff’s frequency of travel near
the defendant.”

Access 4 All, Inc. v. Wintergreen Commercial

Partnership, Ltd., No. Civ. A. 3:05-CV-1307-G, 2005 WL 2989307, at
*3 (N.D. Tex. Nov. 7, 2005); Gilkerson v. Chasewood Bank, 1 F.
Supp. 3d 570, 594 (S.D. Tex. 2014).

Although Plaintiff claims he

is a resident of Texas, in his Complaint he fails to provide his
address and the proximity of his residence to Target and other
Defendants.

Nor has he given a specific date when he visited

CV-396, 2012 WL 7801707, at *8 (E.D. Tex. Dec. 2012,
citing Access 4 All, Inc. v. Wintergreen Commercial
Partnership, Ltd., No. Civ. A. 3:05-CV-1307-G, 2005 WL
2989307, at *3 (N.D. Tex. Nov. 7, 2005)(“‘’[S]omeday
intentions’--without any description of concrete plans,
or indeed even any specification of when the some day
will be--do not support a finding of the ‘actual or
imminent’ injury that our cases require.’”)(quoting
Lujan, 504 U.S. at 564); Hunter v. Branch Banking and
Trust Co. (“Hunter II”), Civ. A. No. 12-CV-2437-D, 2013
WL 4052411, at *2, 4 (N.D. Tex. Aug. 12, 2013)(“[W]hat
constitutes a sufficiently concrete plan to return must
be evaluated in context. For example, where the
allegedly infringing site is many miles away or
requires reservations, it is reasonable to require more
than a statement that the plaintiff intends to return
in the future. But where the allegedly infringing site
is an ATM in an area the plaintiff frequently visits,
it is unreasonable to impose similar requirements.”).
-17-

Target’s property. “Past exposure to illegal conduct does not
itself show a present case or controversy regarding injunctive
relief . . . if unaccompanied by continuing, present adverse
effect.”

City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983),

citing O’Shea v. Littleton, 414 U.S. 488, 495-96 (1983).
Nor is Plaintiff’s ambiguous pleading of his intent to return
to

Defendant’s

establishment,

the

third

factor,

adequate

to

establish Article III standing–-he does not specify any dates, how
often he intends to visit, or why he intends to visit it.

He does

not provide “concrete” plans to return.8
Last,

Plaintiff

does

not

provide

any

facts

suggesting

Plaintiff frequently travels near Target’s establishment for the
fourth factor.
Plaintiff’s complaint should also be dismissed under Rule
12(b)(6) for failure to state a single claim upon which relief can
be granted.

Plaintiff’s claimed ADA violations of architectural

barriers are merely conclusory and have no relation to Target’s
property.

He has not specified a single act or charge about the

8

This Court notes that the Fifth Circuit has hinted that it
does not limit a showing of standing to evidence that the
plaintiff had the concrete, particularized, plausible plan to
return or likely to return. In Gilkerson, 1 F. Supp.3d at 583,
this Court suggested that it also applies, alternatively, the
“deterrent effect doctrine,” “which holds that an individual
suffers an injury-in-fact sufficient to confer standing if he is
deterred from visiting a public accommodation because it is not
in compliance with the law; plaintiffs need not engage in the
‘futile gesture’ if returning to a building with known barriers
that the owner does not intend to remedy.’” Id. “A disabled
individual also suffers a cognizable injury if he is deterred
from visiting a noncompliant public accommodation because he has
encountered barriers related to his disability there” and shows
knowledge of the barriers. Id.
-18-

alleged violations.

For example, while he alleges that various

curb ramps in Defendants’ parking lot do not meet statutory
requirements, he does not identify the tract or the ramps in or
around handicap parking spaces of which Plaintiff complains.
In the alternative, Target urges that Plaintiff should be
required

to

statement

amend

under

his

Rule

complaint
12(e).

to

provide

Proving

a

specific

more

definite

examples

for

clarification on page 12 of #10, Target finds Plaintiff’s current
complaint to be vague, ambiguous and unable to put Target on fair
notice of his claims against it.
Pinecroft’s Substantially Identical Motion (#20)
Pinecroft’s claims are the same, word for word, as those made
in Target’s motion.

Plaintiff’s Response (#47) to #10 and 20
In response to the identical motions, Plaintiff has provided
Defendants with his address and proximity to the center (he lives
in Montgomery County eighteen miles from the property in dispute),
the date he visited the property (April 2015), his intention to
return to the property after the architectural barriers issue is
resolved), and the frequency of his visits (very frequent because
he has multiple ADA lawsuits against nearby establishments).

See

Houston v. Marod Supermarkets, Inc., 733 F.3d 1323 (11th Cir.
2012)(holding that a distance of 30.5 miles does not make the
threat of future injury conjectural).
If the Court requires Plaintiff to amend, he will include
these facts.

Moreover he argues that he is not required to
-19-

identify a specific date on which he plans to return.

Norkunus v.

Seahorse, 720 F. Supp. 2d 1313, 1318-19 (M.D. Fla. 2010).
Insisting

he

will

return

in

the

near

future,

Plaintiff

maintains that he wants to return to the disputed premises to
assure himself, as a “tester,” that it is in compliance with the
ADA and that individuals with disabilities “will have full and
equal enjoyment of the property without fear of discrimination.”
Finally, Plaintiff points out specific facts that he has alleged
regarding violations of the ADA and the ADAAG.
Target’s Reply (#48)
Noting that Plaintiff’s response was filed one day after the
deadline, Target asserts it is a “technicality that demonstrates
Plaintiff’s continued pattern of disregarding the rules.”
p.2.

#48 at

Not only did Plaintiff fail to appear for the status

conference on January 18, 2017, but he also missed the deadline for
responses to the pending motions to dismiss that was set at that
conference.

Therefore Plaintiff asks the Court to disregard

Plaintiff’s response.
Moreover, argues Target, Plaintiff has admitted inadequacies
in his pleading.

He begins his response by conceding that “the

motions to dismiss are correct” with respect to missing information
that Plaintiff has since provided to Defendants.
Target contends that Plaintiff’s Complaint is still inadequate
and does not provide Target with fair notice.
nine

Defendants;

he

has

alleged

Plaintiff has sued

conclusory

ADA

violations,

including architectural barriers that have no relation to Target’s
property.

Plaintiff has not specified a single act or complaint
-20-

about Target’s alleged violations of Title II violations under the
ADA. He also asserts all claims generically against “Defendants.”
Target insists its tract does not contain alleged ramps in or
around the handicap parking places.

“[A] complaint does not

suffice if it tenders naked assertions devoid of further factual
enhancement.”

Iqbal, 556 U.S. at 678.
Court’s Decision

To satisfy Rule 12(b)(1), Plaintiff bears the burden of
showing the “irreducible constitutional minimum of standing.”
Lujan, 504 U.S.

at 561.

“injury-in-fact,”

i.e.,

He must allege and ultimately prove his
“an

invasion

of

a

legally

protected

interest which is (a) concrete and particularized,” as well as
“actual or imminent, not conjectural or hypothetical.”

Id., at

560. Further he must allege a significant possibility of future
harm, especially since he seeks injunctive relief.

O’Shea v

Littleton, 414 U.S. 488, 495 (1974); Wooden, 247 F.3d at 1284.
Plaintiff’s

complaint

alleges

that

around

2015,

in

what

appears to be his sole trip to Pinecroft Center II, that he
“visited the Subject Premises to conduct business--i.e., purchase
items--and encountered architectural barriers to access at the
parking lot and stores of the Subject Premises.”

Id. at ¶ 29.

He

further complains that he “was not able to access, among other
things, entrance access and path to travel, access to goods and
services or public restrooms at the Subject Premises without
encountering architectural barriers.” Id. at ¶ 33. He claims that
he

“shall

return

to

the

Subject

Premises

once

the

barriers

violating the ADA are removed; however, Plaintiff is currently
-21-

deterred from returning as a result of the barriers to access
present [sic] at the stores and facilities located on the Subject
Premises.”

Id. at ¶ 34.

He also states that he “has a real,

continuing,

and

threat

immediate

of

future

discrimination

by

Defendants’ violation of a non-compliance with the ADA because he
plans on returning to the Subject Premises in the near future.”
Id. at ¶ 39.

He further concedes he is a “tester.”

While Plaintiff recites such vague boilerplate language that
tracks the statute, he also provides very specific examples of
architectural barriers at Pinecroft Center II, including

location

and measurements, that allegedly denied him access to the center
from the parking lot and to the stores, their goods, and their
services.

See Complaint, #1, pp. 8-11.

He does not link any of

these barriers to a particular Defendant, however.
The Court has extensively reviewed case law on standing to
assert claims under Article III of the ADA.

Courts in this

Circuit, as well as elsewhere, have applied different theories to
determine if the plaintiff has standing, and there does not appear
to be an established, definitive approach. Gilkerson, 1 F. Supp.3d
at 580-82.
widely

on

complaint

The Court finds that courts even in this Circuit vary
what
to

factors

establish

they

conclude

standing.

must

Thus

be

the

included
Court

in

a

examines

Plaintiff’s complaint to see if it satisfies any of the tests
employed by district courts in the Fifth Circuit to establish
standing and to state a claim for which relief may be granted.
Some courts recognize the theory that after experiencing a
public

accommodation

that

discriminates
-22-

against

disabled

individuals because of architectural barriers, a plaintiff seeking
injunctive relief under Title III of the ADA must plead a concrete,
particularized

and

plausible

plan

to

return

to

the

public

accommodation discriminating against him because its architectural
barriers are out of compliance with the accommodations mandated by
the statute.

See, e.g., Gilkerson, 1 F. Supp. 3d at 581-82;

Betancourt v. Federated Dept. Stores, 732 F. Supp. 2d 693, 703-06
(W.D. Tex. 2010); Access 4 All, 2005 WL 2989307, at *3.

See, e.g.,

4 All, Inc., 2005 WL 2989307, at *3(“‘[S]uch ‘some day intentions’-without any description of concrete plans, or indeed even any
specifications of when the someday will be--do not support a
finding

of

the

‘actual

or

imminent’

injury

that

our

cases

require.’”), citing Lujan, 504 U.S. at 564.
Some district courts in the Fifth Circuit have applied the
four-prong test to determine whether a plaintiff adequately pleaded
the likelihood of future injury based on the likelihood of the
Plaintiff’s return to the offending premises.

With regard to

showing a likelihood of recurrent discrimination, Plaintiff’s
complaint does not apply nor allege facts that would satisfy all
four prongs of the test: “(1) the proximity of the defendant’s
business to the plaintiff’s residence, (2) the plaintiff’s past
patronage of the defendant’s business, (3) the definitiveness of
the plaintiff’s plans to return, and (4) the plaintiff’s frequency
of travel near the defendant.”
570, 594;

See, e.g., Gilkerson, 1 F. Supp. 3d

Access 4 All, Inc., 2005 WL 2989307, at *3.

Plaintiff

states he has provided some of this information to Defendants, but
has not formally pled, as he must, that he lived eighteen miles
-23-

from

the

property

in

dispute,

which

is

sufficient

proximity

according to a number of courts ruling on the matter to support in
part his claim of standing.

Nevertheless, his complaint does not

state whether he ever visited the shopping center before, he does
not allege a concrete plan for return, but only states that he
intends to return after the barriers are removed, and his pleading
as to frequency of travel to the center is hazy at best.

Thus

these jurisdictional facts suggest that he fails to satisfy this
standing test.

The court in Hunter v. Branch Banking and Trust

Co., Civ. A. No. 3:13-CV-2437-D, 2013 WL 4052411, at *3 (N.D. Tex.
Aug. 12, 2013), observes in a deterrent effect case, “Because the
plaintiff must still prove under the ‘deterrent effect’ method that
she has an intent to return, the four-factor test applied to
‘intent to return’ cases also pertains to ‘deterrent effect’ cases
to determine whether the plaintiff is in fact suffering an injury
because

she

is

being

deterred

from

using

the

noncompliant

accommodation.”
Other, more liberal variations of the deterred effect theory
also exist.

Some district courts in this Circuit have recognized

a more lenient version, which presumes that the impaired individual
suffers the injury of a lack of access to stores if he is deterred
from patronizing a public accommodation because of noncompliant
barriers without addressing a plan to visit it, no less return.
See, e.g., Gilkerson, 1 F. Supp. 3d at 583 (noting that “[a] number
of courts have rejected the ‘intent to return’ or ‘likely to
return’

theory

as

the

only

way

to

demonstrate

standing

for

injunctive relief on the grounds that the odds of the injury
-24-

recurring are certain where a building is not in compliance with
the ADA’ and any person ‘with the same disability’ will face the
same barrier on any visit.’

Instead some courts apply [a variant

of the] ‘deterrent effect doctrine,’ which holds that an individual
suffers an injury-in-fact sufficient to confer standing if he is
deterred from visiting a public accommodation because it is not in
compliance with the law; plaintiffs need not engage in the ‘futile
gesture’ of returning to a building with known barriers that the
owner does not intend to remedy.”); Kramer v. Lakehills South,
L.P., No. A-13-CA-591 LY, 2014 WL 51153, at *4 (W.D. Tex. Jan. 21,
2014); Betancourt, 735 F. Supp. 2d at 602.9

In Betancourt v.

Ingram Park Mall, LP, 735 F. Supp. 2d at 599, the judge recognized
and exhibited a preference for a “broader” view than that the
“plaintiff’s injury must be suffered by direct interaction with
architectural barriers” since the express language of the ADA
states that “plaintiffs need not engage in the ‘futile gesture’ of
alleging an intent to return to a place before it is made ADAcompliant.” He determined that “in an ADA Title III case, the risk
of injury in fact is not speculative so long as the alleged
discriminatory barriers remain in place, the plaintiff remains

9

One published Fifth Circuit case that does discuss
standing, Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308, 312
(5th Cir. 1997), held that usually “a plaintiff seeking
injunctive relief based on an alleged past wrong must show that
there is a real or immediate threat that he will be wronged
again,” but because the plaintiff Plumley died (and was replaced
by his wife as plaintiff), the Court found it “unlikely that
Landmark will wrong Plumley again.” See also Betancourt v.
Ingram Park Mall, LP, 735 F. Supp. 2d 587, 600-01 (W.D. Tex. Aug.
10, 2010); Kramer v. Brodie Oaks Center, Ltd., No. A-13-CA-670
LY, 2014 WL 690629, at *2-3 (W.D. Tex. Feb. 21, 2014).
-25-

disabled, and the plaintiff is ‘able and ready’ to visit the
facility once it is made compliant.

Id. at 604. The plaintiff

“must at least prove knowledge of the barriers and that [he] would
visit the building in the imminent future but for those barriers.”
Id at 599.

Plaintiff’s complaint appears to fit most easily into

this category.
Plaintiff concedes that he is a “tester,” which, as noted
earlier,

Gilkerson

describes

as

“disabled

individuals,

who

frequently along with an organization dedicated to the rights of
disabled,10 are ‘serial plaintiffs’ or ‘testers’ acting as private
attorneys general challenging various entities’ noncompliance in
their places of public accommodation with Title III of the ADA,
leading to a wide and varied spectrum of judicial decisions
addressing complex issues of, and policies regarding, standing.”
1 F. Supp. 3d at 573-74.

Plaintiff’s complaint contains a list of

the ADA cases he has filed just in the Southern District of Texas
to support his claim.

A number of Fifth Circuit district courts

have recognized that tester status alone, or tester status along
with

other

factors,

may

be

sufficient

to

create

standing.

Gilkerson, 1 F. Supp. 3d at 592, citing Access 4 All, Inc., 2006 WL
2109966, at *7 (“Indeed, because Plaintiff Esposito is a frequent
litigant with the stated goal of ensuring ADA compliance, his claim
of

intent

to

return

to

the

Hampton

Inn

to

do

additional

examinations is made more, not less credible.”), and Betancourt,
732 F. Supp. 2d at 710 (“A disabled tester who experiences the

10

The Court observes that Plaintiff’s law firm is named
“Federal Disability Advocates.”
-26-

discrimination

prohibited

by

the

ADA

has

standing

to

seek

relief.”), citing Tandy v. City of Wichita, 380 F.3d 11277, 1287
(10th Cir. 2004); Kramer, 2014 WL 690629, at *5 n.4 (“[T]he fact
that a disabled plaintiff in a Title III case is a ‘tester’ does
not change the analysis or the outcome.”).

Although the Fifth

Circuit has not ruled on whether testers can satisfy the standing
requirement under the ADA for injunctive relief, the Tenth and
Eleventh Circuits have concluded that they can.

Mayes v. PTP,

Investments, LLC, 2014 WL 2155209, at *3 (E.D. La. May 22, 2014),
citing Tandy v. City of Wichita, 380 F.3d 1277, 1287 (10th Cir.
2004); Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1332
(11th Cir. 2013). In California in a series of such “tester” cases,
courts declared that the plaintiffs were “vexatious litigants.”
Molski v Mandarin Touch Restaurant, 347 F. Supp. 2d 860 (C.D. Cal.
2004), Molski v Mandarin Touch Restaurant, 359 F. Supp. 2d 924, 933
(C.D. Cal. 2005)(“Molski II”), and Molski v. Rapazzini Winery, 400
F. Supp. 2d 1208 (N.D. Cal. 2005), but they were not followed.
In this Circuit Gilkerson was filed by a blind serial filer,
Victoria Gilkerson, who had filed twenty-four essentially identical
class action lawsuits seeking declaratory and injunctive relief
against various financial institutions under Title III of the ADA
and Texas law, together with Blind Ambitions Group, which had
joined in thirty-three similar suits with either Gilkerson or a few
other plaintiffs, to make automatic tellers machines (“ATMs”)
accessible to blind and visually impaired individuals.
3d at 576.

1 F. Supp.

Gilkerson observed, “Because the statute does not

authorize an award of damages to a prevailing plaintiff, but only
-27-

equitable relief and an award of attorneys’ fees, concerns about
abusive litigation by plaintiffs’ lawyers must be balanced against
widespread noncompliance with the ADA and inadequate enforcement of
civil rights of individuals with disabilities.”

Id.

This judge

noted that “the Supreme Court recognized deterrence as an injury in
fact sufficient to confer standing for prospective relief in
Friends of the Earth, Inc. v. Laidlaw Envt’l Services, 528 U.S. 167
. . . (2000).”

Id. at 584.

“[T]he risk of injury in fact is not

speculative so long as the alleged discriminatory barriers remain
in place, the plaintiff remains disable, and the plaintiff is ‘able
and ready’ to visit the facility once it is made compliant.

If the

disabled plaintiff returns to the location, the same discrimination
will occur until the facility is made compliant.”
Supp. 3d at 584.

Gilkerson, 1 F.

This judge found that Gilkerson had standing to

seek relief because she was “a disabled tester who experience[d]
the

discrimination

prohibited

by

the

ADA,”

even

if

she

intentionally visited the center for the purpose of filing this
suit.

Id. at 596, quoting

Betancourt, 732 F. Supp. 2d at 710, and

Tandy, 380 F.3d at 1287.

Thus at the very least in the Fifth

Circuit there is authority for the proposition that as long as
Plaintiff qualifies in other ways, e.g., as a patron, tester status
will not prevent him from having standing, and tester status alone
may support standing.
Given this wide spectrum of tests for determining standing to
sue under Title III of the ADA, used by different courts across the
Fifth Circuit, the Court finds that with some refinement in
repleading Plaintiff should be able to meet the requirements of
-28-

Rule 12(b)(1) through one.
In contrast, the Court finds that substantial amendment will
be needed to Plaintiff’s bare-bones complaint to satisfy the
requirements of Rule 12(b)(6) and Twombly, Iqbal, and progeny.
After

carefully

reviewing

the

record,

the

Court

agrees

with

Defendants that Plaintiff’s complaint fatally fails to distinguish
among and give fair notice of each Defendant of his claims against
it, as required by Rule 12(b)(6).

Instead he simply makes vague,

bare-bones, boilerplate charges tracing the wording of Title III of
the ADA against the eight “Defendants” as a group.

The fact that

the two motions to dismiss are identical merely underlines the lack
of any specificity as to what charges apply to what Defendant based
on what facts.
As noted, “[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, . .
.

a

plaintiff’s

‘entitle[ment]

obligation

to

to

relief’

provide

requires

the

more

‘grounds’
than

of

labels

his
and

conclusions, and a formulaic recitation of the elements of a cause
of action will not do . . . .” Twombly, 127 S. Ct. at 1964-65.
“Factual allegations must be enough to raise a right to relief
above the speculative level.”

Id. at 1965, citing 5 C. Wright & A.

Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.
2004).

“To

survive

a

Rule

12(b)(6)

motion

to

dismiss,

the

plaintiff must plead ‘enough facts to state a claim to relief that
is plausible on its face.’”

In re Katrina Canal Breaches Litig.,

495 F.3d 191, 205 (5th Cir. 2007), citing Twombly, 127 S. Ct. at
1974).

“‘A claim has facial plausibility when the pleaded factual
-29-

content allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Montoya v. FedEx
Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir. 2010),
quoting

Ashcroft

v.

Iqbal,

556

U.S.

662,

678

(2009).

The

plausibility standard is not akin to a “probability requirement,”
but asks for more than a “possibility that a defendant has acted
unlawfully.”

Twombly, 550 U.S. at 556.

Here Plaintiff needs to

plead facts showing for what conduct each defendant is reasonably
likely to be liable.

Dismissal is appropriate when the plaintiff

fails to allege “‘enough facts to state a claim to relief that is
plausible on its face’” and therefore fails to “‘raise a right to
relief above the speculative level.’”

Montoya, 614 F.3d at 148,

quoting Twombly, 550 U.S. at 555, 570.
Accordingly, for the reasons stated above, the Court
ORDERS that Defendants’ motions to dismiss (#10 and #20) are
DENIED, but Plaintiff shall replead his complaint within twenty
days in a effort to cure the deficiencies cited above.

The Court

would point out that Plaintiff must similarly state such particular
claims against each Defendant remaining in this suit.

“As a

general rule, ‘[e]ven if a party does not make a formal motion
under

Rule

12(b)(6),

the

district

judge

on

his

or

her

own

initiative may note the inadequacy of the complaint and dismiss it
for failure to state a claim as long as the procedure employed is
fair to the parties.

In the Fifth Circuit, fairness requires that

a litigant have the opportunity to be heard before a claim is
dismissed, except where the claim is patently frivolous.”

Century

Sur. Co. v. Blevins, 799 F.3d 366, 372 (5th Cir. 2015), citing 5B
-30-

Charles

A.

Wright

&

Arthur

R.

Miller,

Federal

Practice

and

Procedure--Civil § 1357 (3d ed. 2004), and Jacquez v. Procunier,
801 F.2d 789, 792 (5th Cir. 1986).
SIGNED at Houston, Texas, this

23rd

day of

August , 2017.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

-31-