Flores v. Aransas County et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
EDWARD FLORES, eta!., 	§
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§
§
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§
§
§
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Plaintiffs,
V. 	Case-No. 2:25-cv-00162
ARANSAS COUNTY, et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This case has been referred to United States Magistrate Judge Mitc~el Neurock for case
management and recommendations on dispositive matters, see 28 U.S.C. § 636, but with Judge
Neurock's consent and in accordance with Special Order C-2023-l, 1 United States Magistrate
Judge Jason B. Libby enters the following.
Plaintiffs Edward and Beatrice Flores filed this civil rights action under 42 U.S.C.
§ 1983. (Doc. No. 1.) They brought the lawsuit on behalf of the estate of Lewis Flores
("Lewis"), their son. Id. at 1-2. Plaintiffs' lawsuit raises claims against Aransas County, Texas
(the "County") and two of its employees: Aransas County Attorney Amanda Oster ("County
Attorney Oster") and Director of Animal Care ("Animal Control") Caitlan Frazier ("Director
Frazier") (collectively, "Defendants"). Id. at 4-5. Plaintiffs' claims against County Attorney
Oster and Director Frazier are raised against them in their official capacity. Id. at 5.
1 Special Order C-2023-1 is a standing order concerning civil matters referred to magistrate judges in this division.
The order allows magistrate judges to assist each other on any referred matter by agreement, including entering •
orders, notices, recommendations, and presiding over judicial proceedings.
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United States District Court
Southern District of Texas
ENTERED
November 18, 2025
Nathan Ochsner, Clerk
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Plaintiffs' claims arise from the death of Lewis. (Doc. No. 1, pp. 1-5.) They allege that
Aransas County, County Attorney Oster, and Director Frazier violated Lewis' constitutional
rights by failing to contain what Plaintiffs describe as a pack of "loose, aggressive dogs" "at
large." Id. at 5. For the reasons discussed below, the undersigned recommends that Defendants'
motion to dismiss (Doc .. No. 12) be GRANTED.
A. Proceedings and background.
Plaintiffs filed their complaint on June 20, 2025. (Doc. No. 1.) Defendants timely filed a
motion to dismiss Plaintiffs' complaint under Federal Rule of Civil Procedure 12(b)(6). (Doc.
No. 12.) In the same document, Defendants also moved to strike certain photographs contained
in the complaint, under Federal Rule of Civil Procedure 12(±). Id. Plaintiffs responded to the
motions (Doc. No. 20), and Defendants filed a reply. (Doc. No. 21.)
B. Plaintiffs' allegations, legal claims, and requested relief.
1. Plaintiffs' allegations.
Plaintiffs allege that Lewis was attacked and killed by a pack of five dogs on Monkey
Road in Rockport, Texas. (Doc. No. 1, p. 5.) While walking to work, Lewis was allegedly
surprised by the pack; a call for help was made by a passerby, and police responded to the scene.
Id. Lewis succumbed to his injuries after being transported to the hospital. Id.
Plaintiffs claim that "[t]he Aransas County Sheriff's Office and the Aransas County
Animal Control staff had actual notice that the area of Monkey Road had an ongoing problem
with loose, aggressive dogs." (Doc. No. 1, p. 5.) Defendants had notice, Plaintiffs claim,
because "the Aransas County Sheriff and Aransas County Animal Control received dozens of
calls" regarding aggressive dogs, bites, and animals at large, near the location where Lewis was
attacked. Id.
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Plaintiffs allege that Defendants' failure to address these calls amounted to "deliberate
indifference to the safety and welfare of the public," including Lewis. (Doc. No. 1, p. 7.) This
deliberate indifference, Plaintiffs claim, violated Lewis' Fourteenth Amendment rights. Id at 8-
9.
2. Plaintiffs' legal claims and requested relief.
Plaintiffs assert six causes of action in their complaint.
a. Count 1 - Fourteenth Amendment substantive and procedural due
process.
In Count 1, Plaintiffs allege a violation of Lewis' Fourteenth Amendment procedural and
substantive due process rights by all Defendants. (Doc. No. 1, p. 8.) Plaintiffs claim that the
County "was deliberately indifferent to the known dangers posed by the dogs, resulting in a
violation" of Lewis' due process rights. Id at 8-9. And because Defendants knew about the
history of the dog attacks, Plaintiffs allege that the County deprived Lewis of his "right to be free
from undue harm and danger." Id at 9. Plaintiffs also allege that Lewis' procedural due process
rights were violated because the County was obliged to follow "fair and transparent procedures"
in addressing complaints regarding loose dogs. Id.
h. Count 2 - Fourteenth Amendment equal protection.
In Count 2, Plaintiffs allege a violation of Lewis' Fourteenth Amendment equal
protection rights by all Defendants. (Doc. No. 1, p. 10.) Plaintiffs claim that "[t]he County
disproportionately refused to apply statutory protections to individuals on the south-side of
Rockport, which is largely comprised of low-income families." Id at 10. Plaintiffs allege that
this unequal treatment led to Aransas County's failure to properly contain dogs that were in that
area Id at 10. And by "diverting critical resources away from this low-income area" and using
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them in higher-income neighborhoods, Plaintiffs allege that Lewis and others on the south side
of Rockport were discriminated against. Id at 10-11.
c. Count 3 - Monell:/ailure to train and supervise.
In Count 3, Plaintiffs allege, under a Monell theory ofliability, 2 that the County has
"inadequate policies of training and supervising Animal Control officers and officials regarding
the handling of dangerous animals." (Doc. No. 1, p. 11.) Under Plaintiffs' theory, the County's
unofficial policies, customs, and practices led to insufficient training in spotting dangerous dogs
and how to handle complaints about those dogs. Id at 11-12.. Additionally, these unofficial
policies,. customs, and practices resulted in a failure to properly supervise the officers in charge
of handling complaints about loose animals. Id
d. Count 4 - Monell:/ailure to protect.
In Count 4, Plaintiffs allege, through another Monell claim, that Aransas County had a
duty to protect Lewis from the acts and omissions of Aransas County Animal Control. (Doc. No.
1, p. 12.) Plaintiffs claim that the County has inadequate policies, customs, and practices in
place for protecting "all individuals equally" from "dangerous animals." Id. at 13. Plaintiffs
claim that these policies proximately caused Lewis' death. Id. Additionally, Plaintiffs allege
that the "governmental policy-makers" knew of the existence of these policies, and that the
policies served as the moving force behind the alleged constitutional violations. Id
e. Count 5 - wrongful death and survival
In Count 5, Plaintiffs allege a survival claim on the basis that Lewis would have been
able to bring this suit himself had he survived. (Doc. No. 1, pp. 13-14.) Plaintiffs further allege
that Lewis' "death resulted from the County's willful acts or omissions as described herein or
2 See Monell v. New York City Department of Social Services, 436 U.S. 658 (1978).
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from Defendants' gross malfeasance." Id. at 14. They bring the claim under Texas law. See
Tex. Civ. Prac. & Rem. Code§§ 71.021, 71.002(b).
f. 	Count 6 - State-created danger.
In their sixth claim, Plaintiffs allege that "Defendants' failure to properly investigate,
classify, and manage the dangerous dogs constitutes a violation of Plaintiffs' due process rights."
(Doc. No. 1, p. 14.) Further, Plaintiffs contend that Defendants "created and enhanced" the
danger posed to Lewis by failing to respond to the reports of dangerous animals, failing to
capture the dogs, and failing to classify the dogs as dangerous. Id. at 15. Plaintiffs list several
measures in their complaint that they believe the County should have taken to prevent loose dog
attacks, and they allege that "[a]ny and all of these measures would have prevented the incident
from occurring." Id. 	To Plaintiffs, the County's failure to take these steps proximately caused
Lewis' death. Id.
3. Requested relief.
Plaintiffs request compensatory and punitive damages, along with attorneys' fees. (Doc.
No. 1, pp. 16-17144-45.) They also seek an injunction directing the County to "comply with
proper procedures for managing dangerous animals." Id. at 16140.
C. The dismissal motion, the response, and the reply.
1. Defendants' motion.
Defendants move to dismiss Plaintiffs' complaint under Federal Rule of Civil Procedure
12(b)(6). (Doc. No. 12.) Defendants first argue that Plaintiffs' complaint should be dismissed
because "they have not alleged any facts pertaining to the actions of any of the Defendants which
amount to an actual constitutional violation." Id. at 4. They further argue that Plaintiffs' claims
do not identify a cognizable constitutional right because they "are not aware" of any
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constitutional duty to have policies in place that prevent attacks from dogs owned by "private"
people. Id at 5. These failures to allege pertinent facts and constitutional claims, Defendants
argue, result in a failure to satisfy the pleading requirements in Federal Rule of Civil Procedure
8(a). Id
Defendants' second argument is that Plaintiffs fail to properly allege causation. (Doc.
No. 12, p. 6-7.) Citing Texas case law, Defendants argue that even if the County or Animal
Control had policies in place relating to preventing dog attacks, Lewis could still have been
attacked. Id. at 7. Because the policies would not have prevented Lewis' injuries, Defendants
claim, Plaintiffs' theory of causation is too speculative to prevail. Id.
Third, Defendants argue that the claims against County Attorney Oster and Director
Frazier are duplicative and should be dismissed. (Doc. No. 12, p. 7-8.) Plaintiffs' complaint
raises claims against County Attorney Oster and Director Frazier in their official capacity,
Defendants argue, making them duplicative of their claims against Aransas County. Id.
But even if the claims against those defendants are not dismissed for that reason,
Defendants' fourth argument is that County Attorney Oster is entitled to absolute immunity from
suit because her involvement in policing the dogs would have been in her prosecutorial role. Id.
at 8. Defendants raise a similar argument in their fifth point, that the Aransas County's Sheriffs
Department and Animal Control are immune to suit because they are not legal entities capable of
being sued. 3
Turning to Plaintiffs' Monell claims, Defendants argue that Plaintiffs' claims are
conclusory and not supported by facts. (Doc. No. 12, pp. 11-13.) They further attack Plaintiffs'
3 Plaintiffs have not named Aransas County Animal Care or the Aransas County Sheriffs Department as
defendants. See Doc. No. 1, p. 1. Instead, they sue the County as the "policy makers vested with the authority to
make policy within the Animal Care Services Department." Id. at 4.
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Fourteenth Amendment claims by ~guing that there is no due process right to protection from
private harms. Id. at 14. Neither, Defendants argue, have Plaintiffs properly identified a policy
that suggests that Aransas County disproportionately addressed animal complaints based on
socioeconomic status in violation of Lewis's equal protection rights. Id. at 14-15.
Defendants also argue that Plaintiffs' failure-to-train claims fail because their actions or
inactions did not amount to deliberate indifference, as required by Supreme Court precedent.
(Doc. No. 12, pp. 15-17) (citing City a/Canton v. Harris, 489 U.S. 378 (1989)). Defendants
further assert that Plaintiffs' failure-to-protect claims fail because DeShaney v. Winnebago
County Department of Social Services, 489 U.S. 189 (1989), precludes a municipality's duty to
protect citizens absent a special relationship. Id. at 17-18. Accordingly, Defendants· argue, no
special relationship with Lewis existed. Id.
Defendants also argue that Plaintiffs' state-created danger claims must fail because such a
theory is not recognized in the Fifth Circuit. (Doc. No. 12, p. 18) (citing Fisher v. Moore, 73
F.4th 367,372 n.13 (5th Cir. 2023)) .. And even if such a t~eory did exist, Defendants argue, it
would fail because Plaintiffs have not identified any state actor who knowingly put Lewis in
danger. (Doc. No. 12, p. 18) (citing Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel.
Keys, 675 F.3d 849, 855-56 (5th Cir. 2012)).
Finally, Defendants move to strike the photos of the dogs on pages 6 and 7 of Plaintiffs'
complaint. (Doc. No. 12, pp. 18-19.) Defendants argue that Plaintiffdoes not claim that the
pictured dogs are the dogs that attacked Lewis, and thus that the photos are immaterial to the
case. Id. at 19.
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2. Plaintiffs' response.
Plaintiffs timely responded to Defendants' motion. (Doc. No. 20.) Plaintiffs start their
response by addressing Defendants' arguments that no right exists to be safe from dog attacks.
Id at 3. Plaintiffs argue that this misstates their position, and that the violation of rights they are
alleging is based on the Equal Protection Clause. Id 	The constitutional violation occurred,
Plaintiffs argue, through the County's diversion of resources, "including those necessary for
Animal Care to properly perform necessary, basic, life-saving functions," away from the south
side of Rockport. Id 	To Plaintiffs, using those resources in more prosperous areas amounts to a
violation of Lewis' equal protection rights. Id. Notably, however, Plaintiffs do not comment on
Defendants' arguments regarding the existence of a constitutional right to be free from attacks by
loose dogs. See id.
Responding to Defendants' Monell arguments, Plaintiffs argue that they properly alleged _
a policy or custom because they pointed to the County's failure to respond to dozens of calls for
service preceding the attack on Lewis. (Doc. No. 20, p. 4.) And because the Aransas County
Animal Control office was in charge of handling those calls and complaints, Plaintiffs argue that
it is the final policymaker in not responding to such calls. Id
Turning to their claims brought under Texas law, Plaintiffs first argue that the Court
should consider their wrongful death claim. (Doc. No. 20, p. 5.) This is the case, they argue,
because the "County was aware of the aggressive, dangerous, and deadly dogs," yet Defendants
"failed to respond appropriately and perform the job widely known and accepted tasks" that
allegedly would have prevented Lewis' death. Id.
Plaintiffs argue that the Court should consider its state-created danger argument because
it "remains an open question before the Fifth Circuit," as established by Fisher v. Moore. (Doc.
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No. 20, p. 6.) Alleging that an "overwhelming circuit consensus" exists, Plaintiffs believe there
is a "good faith basis for extending, modifying, or reversing existing law and wishes to preserve
this matter for further review on appeal, if necessary." Id
Plaintiffs lastly contend that the Court should not strike the photos in their complaint, as
the photos "demonstrate that the County was well aware of the dangerous and loose dog"
problem. (Doc. No. 20, p. 9.)
3. Defendants' reply.
In their reply (Do~. No. 21), Defendants repeat their argument that Plaintiffs' complaint
failed to properly allege causation "because it is too speculative to conclude that simply not
spending enough money in the area" where Lewis was allegedly attacked constituted an equal
protection violation. Id at 1.
Defendants also reiterate their objections to the inclusion of County Attorney Oster and
Director Frazier in the lawsuit, specifically refuting Plaintiffs' claims that they were involved in
the funding decisions for Animal Control. (Doc. No. 21, p. 2.) Instead, Defendants argue,
Aransas County Commissioners set the budget, not County Attorney Oster or Director Frazier.
Id 	Relatedly, Defendants argue that Plaintiffs fail to overcome County Attorney Oster's
presumption of absolute immunity, and that she therefore should be immune from suit. Id
Lastly, Defendants reiterate their position that Plaintiffs failed to properly allege a state-
created danger claim in their complaint. (Doc. No. 21, p. 3.) Defendants argue that the County
had no· special relationship with Lewis, and that Plaintiffs did not properly allege causation, so
there were no foreseeable injuries that could have established a state-created danger claim. Id. at
3-4.
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D. Legal standards governing the motion to dismiss.
When considering a motion for dismissal under Federal Rule of Civil Procedure 12(b)(6),
a reviewing court must determine whether the plaintiff has pleaded "enough facts to state a claim
to relief that is plausible on its face." Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The
plaintiff must plead those facts specifically enough to raise a right to relief that exceeds mere
speculation. See id. at 555. The facial plausibility standard is met when a plaintiff pleads facts
that allow the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This does not require the
plaintiff to demonstrate probability, but the plaintiff must allege something more than a sheer
possibility that a defendant has acted unlawfully. See id.
Reviewing courts are to accept all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff. See Martin K Eby Constr. Co. v. Dall. Area Rapid Transit, 369
F.3d 464,467 (5th Cir. 2004). But legal conclusions are not entitled to such acceptance, nor are
threadbare recitals of elements of a cause of action supported by mere conclusory statements.
See Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Conclusory allegations and
unwarranted deductions of fact are not accepted as true: the plaintiff must plead "'specific facts,
not mere conclusory allegations' to state a claim for relief that is facially plausible." See Powers
v. Northside Indep. Sch. Dist., 951 F.3d 298,305 (5th Cir. 2020) (quoting Tuchman v. DSC
Commc'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994)). Legal conclusions masquerading as
factual conclusions likewise will not suffice to prevent the granting of a motion to dismiss. See
Fernandez-Montes v. Allied Pilots Ass 'n, 987 F.2d 278, 284 (5th Cir. 1993).
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E. Analysis.
J. 	The official-capacity defendants should be dismissed.
The district court should dismiss Plaintiffs' claims against County Attorney Oster and
Director Frazier in their official capacities. A suit against a government official in his or her
official capacity is a suit against that official's office, and it is no different from a suit against the
governmental unit that employs that individual. See Will v. Michigan Dep 't of State Police, 491
U.S. 58, 71 (1989). An official-capacity suit generally represents only another way of pleading
an action against an entity of which an officer is an agent. See Monell, 436 U.S. at 690 n.55.
Here, Plaintiffs are suing the County directly while asserting the same claims against
County Attorney Oster and Director Frazier in their official capacities.· Plaintiffs' official- •
capacity claims are therefore duplicative and should be dismissed with prejudice as to those
individual defendants. See Savage v. Harris Cnty., Tex., Civ. No. 4:24-CV-0666, 2025 WL
1697619, at *10 (S.D. Tex. June 17, 2025) (Ellison, J.); Harville v. Texas A&M Univ., 833 F.
Supp. 2d 645,659 n.8 (S.D. Tex. 2011) (Hoyt, J.).
2. The district court should dismiss the due process and failure-to-protect claims.
Plaintiffs allege violations of Lewis' substantive and procedural due process rights under
the Fourteenth Amendment. (Doc. No. 1, pp. 9-11.) Plaintiffs' Fourteenth Amendment due
process claims (Count 1) and their failure-to-protect claim (Count 4) should be dismissed
because Plaintiffs fail to plausibly allege that Lewis had a right to be protected from dogs that
did not belong to or were controlled by the County.
The Due Process Clause provides: ''No State shall ... deprive any person of life, liberty,
or property, without due process oflaw." U.S. Const., amend. XN, § 1. "Procedural due
process requires the government to follow appropriate procedures before it deprives a person of
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an interest in life, liberty, or property; substantive due process ensures that, regardless of the
fairness of the procedures used, the government does not use its power for oppressive purposes."
Patterson v. Def POW/MIA Acct. Agency, 398 F. Supp. 3d 102 (W.D. Tex. 2019) (citing Daniels
v. Williams, 474 U.S. 327,331 (1986)).
Here, Plaintiffs' claims do not plausibly allege a violation of Lewis' procedural or
substantive due process rights. The Due Process Clause does not generally require the
government to protect its citizens from the acts of private actors. See McKinney v. Irving lndep.
Sch. Dist., 309 F.3d 308,312 (5th Cir. 2002) (citing DeShaney, 489 U.S. at 195 ("nothing in the
language of the Due Process Clause itself requires the State to protect the life, liberty, and
property of its citizens against invasion by private actors")); see also Kovacic v. Villarreal, 628
F.3d 209,213 (5th Cir. 2010); Williby v. City of Oakland, 357 F. App'x 880, 881-82 (9th Cir.
2009) (affirming summary judgment against plaintiff who alleged that city violated his due
process rights by failing to respond adequately to his request for assistance after being attacked
by a dog).
Rather, the Due Process Clause "is phrased as a limitation on the State's power to act, not
as a guarantee of certain minimal levels of safety and security." DeShaney, 489 U.S. at 195. So,
while the clause forbids states from depriving individuals of life, liberty, or property without due
process oflaw, it does not "impose an affirmative obligation on the [s]tate[s] to ensure that those
interests do not come to harm through other means." Id. 	In other words, although there is a
"recognized substantive due process right for individuals to be free from bodily harm caused by
the state," there is "no constitutional duty that requires state officials to protect persons from
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private harms." Kovacic, 628 F.3d at 213 (5th Cir. 2010) (citing DeShaney, 489 U.S. at 196-
97). 4
In Jaramillo v. City of McAllen, Texas, 306 F. App'x 140 (5th Cir. 2009) (per curiam),
the Fifth Circuit held that a municipality's failure to enforce an animal control ordinance
regarding loose dogs was not a violation of the Due Process Clause. There, the plaintiff alleged
a due process violation against the city for not enforcing an animal control ordinance against a
resident's dog that the city allegedly knew to be violent. Id at 142. The plaintiff alleged that
this failure to address the recurring problem created a custom and policy of maliciously and
intentionally creating dangers of injury and death. Id 	The Fifth Circuit rejected the plaintiff's
claims because she did not allege that the city intentionally injured her or knew that there was a
specific risk of injury to her; thus, the state was not required to prevent any attacks in the first
place. Id. at 142-43 (citing Saenz v. Heldenfels Bros. Inc., 183 F.3d 389 (5th Cir. 1999)). This
case presents an even weaker situation for Plaintiffs than in Villarreal, for Plaintiffs do not cite
any specific ordinance or other law that any county official failed to enforce.
The only recognized exception to this general rule in this circuit obliges the state to
protect individuals from known threats of harm by private actors where a "special relationship"
exists between the individual and the state, such as for people who are involuntarily confined or
restrained against their will pursuant to governmental order or by the affirmative exercise of state
power. See McKinney, 309 F.3d at 313 (citing Walton v. Alexander, 44 F.3d 1297, 1299 (5th
Cir. 1995)). That narrow exception does not exist here, as Lewis was living in the free world and
4 The Fifth Circuit does not recognize "state-created danger" as an exception to this rule. That topic is discussed
further below.
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was not a prisoner or otherwise confined by the state. The district court should therefore
conclude that Plaintiffs fail to plausibly allege a viable due process claim.
Plaintiffs' failure-to-protect claim (Count 4) suffers from the same malady as their due
process claims. Plaintiffs allege that the County had a duty to protect Lewis "from the acts and
omissions of its Animal Control officers, which violated [Lewis'] constitutionally protected
rights .... " (Doc. No. 1, p. 12-13 ,r,r 27-28.) Because the law recognizes no such duty, Plaintiffs'
failure-to-protect claim should be dismissed as well.
3. The district court should dismiss the equal protection claim.
Plaintiffs' Fourteenth Amendment equal protection claim (Count 2) is likewise subject to
dismissal.
To successfully plead an equal protection violation, a plaintiff must present factually
supported allegations that (1) "he was treated differently than persons similarly situated to him,"
and (2) "that such treatment stemmed from discriminatory intent." Taylor v. Johnson, 257 F.3d
470 (5th Cir. 2001) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439-40
(1985)). Discriminatory intent requires a showing that ''the decision maker singled out a
particular group for disparate treatment and selected his course of action at least in part for the
purpose of causing its adverse effect on an identifiable group." Lavernia v. Lynaugh, 845 F.2d
493, 496 (5th Cir. 1988).
In their complaint, Plaintiffs contend that the County "disproportionately refused to apply
statutory protections to individuals on the south-side of Rockport." (Doc. No. 1, p. 10 ,r 19.) 	•
The County also allegedly "diverted necessary resources, including those necessary for [Animal
Control], to properly perform its functions, away from this economically disadvantaged
community," instead directing those "resources" to more affluent areas of town. Id.
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Plaintiffs' allegations do not plausibly allege an equal protection violation. First,
Plaintiffs do not identify what "statutory protections" they mean - they do not claim that there is
any statute that required the County to provide resources to afford protection from loose dogs.
And Plaintiffs' allegation of diversion ofresources is conclusory: through facile phrasing, they
contend that the south side of Rockport generally received less in the way of resources than other
areas of Rockport- not that the County deliberately redirected animal control funding away from
the south side to other locales. See Doc. No. 1, p. 10 ~ 19. Second, even if Plaintiffs had made
an allegation about animal control funding, they fail to identify with specificity what resources
(type or amount) were expended for the benefit of more affluent areas of Rockport that were not
also expended for the benefit ofRockport's south side. And Plaintiffs further fail to allege, much
less plausibly allege, how any difference in the quantity or type of resources expended, without
more, resulted in any difference in treatment - that the County responded to complaints about
loose dogs in other locales while ignoring them on the south side of Rockport.
Finally, Plaintiffs fail to make any plausible allegation of discriminatory intent-that any
policymaker decided to single out the south side of Rockport for different treatment with the
intent of causing an adverse effect for people on the south side. The district court should
therefore dismiss Plaintiffs' equal protection claim. Cf Williby, 357 F. App'x at 882 (affirming
summary judgment against plaintiff who claimed equal protection violation because he failed to
raise triable issue whether he was treated differently from similarly situated persons). 5
5 Although Williby was a summary judgment case, it is nonetheless apt here because it demonstrates that a plaintiff
must both plausibly allege and then prove intentionally different treatment in the context of failure to respond to a
request for the city's assistance from a dog attack.
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4. 	The district court should dismiss the Monell claims.
Plaintiffs raise two Monell claims (Counts 3 and 4). The district court should dismiss
both.
To establish Monell liability, "a plaintiff must show that an official policy promulgated
by a municipal policymaker was the moving force behind the violation of a constitutional right."
Henderson v. Harris Cnty., Texas, 51 F.4th 125, 130 (5th Cir. 2022) (per curiam) (citing
Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009)); see also Piotrowski v. City of
Houston, 237 F.3d 567, 579 (5th Cir. 2001). A plausible Monell allegation must identify "(l) an
official policy (or custom), of which (2) a policymaker can be charged with actual or
constructive knowledge, and (3) a constitutional violation whose 'moving force' is that policy or
custom." Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010) (quoting Pineda v. City
of Houston, 291 F.3d 325,328 (5th Cir. 2002)). Isolated unconstitutional actions by municipal
employees will almost never trigger municipal liability. See Winegarner v. City of Irving Tex.,
No. 3:24-cv-02171, 2025 WL 2608241, at *3 (N.D. Tex. Aug. 20, 2025), adopted, 2025 WL
2606991 (N.D. Tex. Sept. 8, 2025) (citing Piotrowski, 237 F.3d at 578).
Monell's "policy" requirement recognizes the possibility of unofficial policies, but those
must "be in the form of a widespread practice that is so common and well-settled as to constitute
a custom that fairly represents municipal policy." James v. Harris Cnty., 577 F.3d 612, 617 (5th
Cir. 2009). When the municipal actors are not policymakers, a "pattern of conduct" showing
both similarity and specificity must be plausibly alleged, and "cannot be conclusory; it must
contain specific facts." See Winegarner, 2025 WL 2608241, at *3 (quoting Zarnow v. City of
Wichita Falls, 614 F.3d 161, 169 (5th Cir. 2010) and Pena v. City of Rio Grande City, 879 F.3d
613,622 (5th Cir. 2018) (cleaned up)).
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To survive a dismissal motion, then, a plaintiffs complaint must contain non-conclusory
"specific facts" describing "a policy or custom and its relationship to the underlying
constitutional violation." Henderson, 51 F.4th at 30 (quoting Pena v. City of Rio Grande City,
879 F.3d 613,622 (5th Cir. 2018)). "Every Monell claim requires an underlying constitutional
violation," Hicks-Fields v. Harris Cnty., Tex., 860 F.3d 803, 808 (5th Cir. 2017), so a Monell
claim cannot proceed without a "predicate constitutional violation." Loftin v. City of Prentiss,
Miss., 33 F.4th 774, 783 (5th Cir. 2022) (citing Garza v. Escobar, 972 F.3d 721, 734 (5th Cir.
2020) (cleaned up)).
Here, Plaintiffs' first Monell claim (Count 3) alleges that the County has an unofficial
policy or custom of failing to train and supervise its officers on how to properly handle
dangerous dogs. (Doc. No. 1, p. 11.) Plaintiffs' second Monell claim (Count 4) alleges that the
County had an unofficial policy or custom of failing to protect individuals like Lewis. (Doc. No.
1, pp.12-13.) But as discussed above, Plaintiffs have failed to plausibly allege either due
process or equal protection violations. Because there is no plausible allegation of a "predicate
constitutional violation," there is likewise no plausible allegation of a Monell violation, and so
the district court should dismiss Plaintiffs' Monell claims. See Loftin, 33 F.4th at 783; Zinsou v.
Fort Bend Cnty., No. 22-20423, 2023 WL 4559365, at *3 (5th Cir. July 17, 2023) (quoting
Whitley v. Hanna, 726 F.3d 631,648 (5th Cir. 2013) ("every Monell claim 'fail[s] without an
underlying constitutional violation"')).
Plaintiffs' Monell claims also fail because they are inadequately pleaded. Failure-to-train
theories can form a legitimate basis for municipal liability under Monell, see Hutcheson v. Dallas .
Cnty., 994 F.3d 477, 482 (5th Cir. 2021), but to establish liability on such a theory a plaintiff
must prove that "(l) the city failed to train or supervise the officers involved; (2) there is a causal
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connection between the alleged failure to supervise or train and the alleged violation of the
plaintiffs rights; and (3) the failure to train or supervise constituted deliberate indifference to the
plaintiffs constitutional rights." Henderson, 51 F.4th at 30 (quoting Hutcheson, 994 F.3d at 477)
(cleaned up)). Here, Plaintiffs have failed to allege a custom or policy that would establish
municipal liability under Monell: while Plaintiffs allege instances of calls made regarding
dangerous dogs on Monkey Road, they do not explain how the alleged failure to answer these
calls gave rise to a pattern, policy, or unofficial custom sufficient to impose municipal liability.
Cf Savage, 2025 WL 1697619 at *10 ("Although Plaintiff broadly alleges numerous similar
incidents of Jail officials failing to protect detainees, she does not provide any factual detail to
establish a plausible pattern."); Carson v. Cnty. of Warren, Miss., No. 3:21-CV-593, 2023 WL
9120471, at *8 (S.D. Miss. June 23, 2023) ("[Plaintff] only alleges Defendants acted pursuant to
a policy or custom in failing to protect him and does not otherwise explain, with specific facts,
that Warren County has a policy of failing to protect inmates.").
This case resembles Najera v. City of San Antonio, No. 5:24-CV-01005 (W.D. Tex.).
There, the plaintiffs' decedent was allegedly killed by a pair of dogs that had already been
impounded following several other attacks. Najera, Doc. No. 24 (Jan. 10, 2025) (second
amended complaint, attached as Appendix A). Despite allegedly having knowledge of the dogs'
violent history, the City's Animal Control Department released the dogs to their owner, and the
dogs got loose and killed the decedent after their release. Id at 4-6. Nonetheless, the district
court dismissed plaintiffs' complaint for failing to plausibly allege a constitutional violation. See
Najera, Doc. No. 36, pp. 4-6 (dismissal order, attached as Appendix B). Even though the City of
San Antonio and its Animal Control Department allegedly had knowledge that those specific
dogs had been violent (an allegation not leveled by Plaintiffs in this case), the district court still
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found no underlying constitutional violation and dismissed the Monell claims. Id. at 4. That
there had been prior complaints and impoundment did not change the fact that the defendants did
not ''use [their] power for oppressive purposes" or treat the decedent differently than similarly
situated individuals by releasing the dogs and failing to protect the decedent from them. Id
(cleaned up).
Plaintiffs have not properly alleged Monell claims under their theory of failure to train
and supervise or failure to protect. Accordingly, the district court should dismiss the Monell
claims (Counts 3 and 4).
5. 	The district court should dismiss the wrongful death claim.
Plaintiffs attempt to bring a wrongful death and survivorship claim brought under section
71.002(b) of the Texas Civil Practice and Remedies Code (Count 5). Texas' wrongful death
statute provides that "[a] person is liable for damages arising from an injury that causes an
individual's death if the injury was caused by the person's or his agent's or servant's wrongful
act, neglect, carelessness, unskillfulness, or default." Id
A plaintiff suing under this statute in federal court generally would need to satisfy the
requirements of28 U.S.C. § 1367(a) for supplemental jurisdiction in federal question cases. See
Rodgers v. Lancaster Police & Fire Dep't, 819 F.3d 205,208 (5th Cir. 2016). But federal
question jurisdiction is extended by incorporating state wrongful-death statutes, so "an individual
may bring a claim under federal civil-rights laws through Texas's wrongful-death statute." Id
(quoting Rhyne v. Henderson Cty., 973 F.2d 386,391 (5th Cir.1992)). This includes claims
brought under 42 U.S.C. § 1983. See id at 209 (citing Grandstaffv. City ofBorger, Tex., 767
F.2d 161, 172 (5th Cir. 1985)).
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In Slade v. City of Marshall, Texas, the Fifth Circuit held that plaintiffs seeking to
recover on a wrongful death claim under § 1983 must prove both the underlying constitutional
violation and the causal link between that violation and the defendant's conduct. 814 F.3d 263,
265 (5th Cir.. 2016) (quoting Phillips ex rel. Phillips v. Monroe County, 311 F.3d 369, 374 (5th
Cir. 2002)). Further, a plaintiff must show that the defendant's wrongful actions "more likely
than not caused the death," not just that they reduced the deceased' s chance of survival. Id. at
264-65 n.2 (quoting Kramer v. Lewisville Mem 'l Hosp., 858 S.W.2d 397, 404 (Tex. 1993)).
Plaintiffs' complaint makes plain that their wrongful death claim is based solely on the
alleged constitutional violations they level in Counts 1 through 4 under§ 1983. See Doc. No. 1,
p. 13 ,r 31 ("[Lewis] died as a result of the County's wrongful conduct explained herein. . . . The
County's conduct that caused [Lewis'] death was a producing cause of injury to Plaintiffs, which
resulted in damages .... "). To prevail on their wrongful death claim, then, Plaintiffs were
required to plausibly allege an underlying constitutional violation. As discussed, they have
failed to do this, so their wrongful death claim (Count 5) should be dismissed as well. 6
6. 	The district court should dismiss the state-created danger claim.
Plaintiffs' final claim (Count 6) is based on a "state-created danger" theory and alleges
that Defendants "created and enhanced" the danger posed to Lewis by failing to respond to the
reports of dangerous animals, failing to capture the dogs, and failing to classify the dogs as
dangerous. (Doc. No. 1, pp. 15-16.) The district court should dismiss this claim.
6 To the extent Plaintiffs attempt to raise a survival "claim" as a separate cause of action, it cannot proceed. Texas'
survival statute does not create a new cause of action, unlike its wrongful death statute. The survival statute merely
allows a personal injury suit to survive the death of the injured party, allowing the suit to be prosecuted as if the
decedent were still alive. See Nuncio v. Webb Cnty., No. 5:20-CV-92, 2021 WL 4442518, at *2 n.1 (S.D. Tex. Sept.
28, 2021) (Garcia Marmolejo, J.) (citing Packv. Crossroads, Inc., 53 S.W.3d 492,515 (Tex. App. -Fort Worth
2001, pet. denied)) (noting that survival actions are not technically "claims" and do not form an additional basis for
liability).
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As discussed, the general rule is that the state does not have a duty to protect individuals
from private violence. See DeShaney, 489 U.S. 189 at 197. Some other circuits have recognized
an exception to this general rule; under that additional exception, a state actor who knowingly
places a citizen in danger may be accountable for foreseeable injuries that result. See Fisher, 73
F .4th at 372 (citing, as an example, Gregory v. City of Rogers, Ark, 97 4 F .2d 1006, 1010 (8th
Cir. 1992) (en bane)). The state-created danger doctrine, however, has never been recognized in
this circuit. Additionally, the United States Court of Appeals for the Fifth Circuit has indicated
that the theory, if adopted, would likely require a plaintiff to show that the defendants used their
authority to create a dangerous environment for the plaintiff, one that would not otherwise have
existed for the third party's crime to occur. See id. (citing Doe, 675 F.3d at 865).
Here, Plaintiffs allege only that the County failed to properly supervise its animal control
function or to respond to calls for assistance. They do not make any nonconclusory allegation
that the County exercised its authority in any affirmative way. Rather, they claim that the
County created the danger by failing to "properly investigate, classify, and manage the
dangerous dogs." (Doc. No. 1, p. 14136.) This is insufficient. Even if the state-created danger
doctrine were recognized in this circuit, which it is not, Plaintiffs would be required to plausibly
allege some affirmative act, rather than mere inaction or omission, that created the complained-
of danger. Cf Phillips v. Cnty. ofAllegheny, 515 F .3d 224, 236 (3d Cir. 2008) (plaintiff must
identify "an affirmative action, rather than inaction or omission").
Plaintiffs' state-created danger claim (Count 6) is not available in this circuit, and even if
it were, it is insufficiently pleaded. The district court should dismiss it.
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7. The motion to strike.
Defendants have moved under Rule 12(±) to strike the photographs of the dogs pictured in
Plaintiffs' complaint. (Doc. No. 12, pp. 18-19.) Federal Rule ofCivil Procedure 12(±) provides
that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter." Generally, motions to strike are viewed with disfavor and
infrequently granted. See Augustus v. Board of Public Instruction of Escambia, Fla., 306 F.2d
862, 868 (5th Cir. 1962). Here, because all of Plaintiffs' claims should be dismissed, the district
court should deny this motion as moot.
8. Leave to amend?
Leave to amend need not be granted if amendment would be futile - for example, if an
amended complaint would still fail to state a claim upon which relief may be granted. See
Foman v. Davis, 371 U.S. 178, 182 (1962) (futility of amendment is adequate justification to
refuse to grant leave to amend). Here, Plaintiffs appear to have pleaded their best case, and thus
it may be futile for Plaintiffs to attempt to amend those claims. But Plaintiffs will have an
opportunity to object to the undersigned's recommendations, and can specify in those objections
how they would amend their complaint to cure the deficiencies noted here. If Plaintiffs are
unable to so explain, the district court should deny leave to amend.
F. Conclusion and recommendation.
The district court should GRANT Defendants' motion to dismiss (Doc. No. 12).
G. Notice.
The Clerk will file this Memorandum and Recommendat1.on and transmit a copy to each
party or counsel. Within 14 days after being served with a copy of the Memorandum and
Recommendation, a party may file with the Clerk and serve on the United States Magistrate
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Judge and all parties, written objections, pursuant to Fed. R. Civ. P. 72(b), 28 U.S.C. § 636(b)(l),
and General Order No. 2002-13, United States District Court for the Southern District of Texas.
A failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge's report and recommendation within 14 days after being
served with a copy shall bar that party, except upon grounds of plain error, from attacking on
appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District
Court. See Douglass v. United Servs. Auto Ass 'n, 79 F.3d 1415 (5th Cir. 1996) (en bane).
SIGNED on November .Jl, 2025.
as 	B. Libby
nited States Magistrate Judge
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