Fjeld et al v. HEB Grocery Company, LP

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
WADE H. FJELD, et al.,
Plaintiffs,
VS.
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 2:25-CV-00330
HEB GROCERY COMPANY, LP, et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION TO DISMISS
Plaintiffs Wade H. Fjeld and Christopher Vaughn are proceeding pro se and in
forma pauperis (“ifp”) in this civil action. This case is subject to screening pursuant to the
in forma pauperis statute. 18 U.S.C. §§ 1915(e)(2).1 For the reasons set forth below, the
undersigned respectfully recommends all of Plaintiffs’ claims be DISMISSED with
prejudice under 28 U.S.C. § 1915(e)(2)(B) because Plaintiffs fail to state claims on which
relief may be granted.
I. JURISDICTION
The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. This case has
been referred to the undersigned magistrate judge for case management and making
recommendations on dispositive motions pursuant to 28 U.S.C. § 636.
1 Plaintiffs are civilians who are not in custody. Nevertheless, section 1915(e)(2)(B)screening
applies equally to prisoner as well as non-prisoner in forma pauperis cases. See Newsome v. Equal
Emp’t Opportunity Comm’n, 301 F.3d 227, 231–33 (5th Cir. 2002) (affirming dismissal of non-
prisoner claims for frivolity and failure to state a claim under § 1915(e)(2)(B)(i) and (ii)).
United States District Court
Southern District of Texas
ENTERED
March 26, 2026
Nathan Ochsner, Clerk
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II. BACKGROUND AND PLAINTIFFS’ ALLEGATIONS
Plaintiffs, proceeding pro se, filed a complaint and applications to proceed ifp on
December 12, 2025. (D.E. 1, D.E. 2, D.E. 3). The undersigned held a hearing on Plaintiffs’
ifp applications on January 13, 2026, at which the Plaintiffs appeared in person. Plaintiffs
testified about their financial status, inability to pay the filing fee, and about the factual
background of their claims. The undersigned granted Plaintiffs’ ifp applications. (D.E. 11).
During the hearing on Plaintiffs’ ifp applications, Plaintiffs testified about the
underlying facts of their case. In summary, Plaintiffs are a gay couple who were
experiencing financial difficulties in November and December 2023. Plaintiffs were
temporarily without internet or cellular telephone service and, thus, they frequently used
the publicly available and free internet network at their neighborhood HEB grocery store,
Defendants. Typically, Plaintiffs would access Defendant’s internet network from their
vehicle which they parked in the HEB parking lot. The Court understands the internet
network at issue to be the one Defendants made available to its customers. Plaintiffs
testified they always made a practice of purchasing something when they used the HEB
internet service. On around December 12, 2023, Plaintiffs were approached by an HEB
security guard2 inquiring about their presence on the premises. An HEB employee had
requested the security guard to make the inquiry. (D.E. 1). This encounter was “brief and
informal” and otherwise without incident. (D.E. 1). However, the next day on December
2In their complaint, Plaintiffs described the security guard as “an Allied Universal security guard.”
(D.E. 13, Page 2). Therefore, it appears the security guard may be employed by Allied Universal
and contracted with by HEB to provide security.
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13, 2023, an HEB security guard “engaged in stalking behavior” and “glared excessively”
at Plaintiffs and then followed them off the premises in a marked vehicle. (D.E. 1). On
December 13, 2023, Plaintiffs again returned to Defendant’s store. A security guard made
contact with Plaintiffs again and informed them they were being banned from the store
based on an unspecified HEB manager determining Plaintiffs “were looking at the males.”
(D.E. 1, p. 2). Plaintiffs were both issued criminal trespass warnings from the Corpus
Christi Police Department. (D.E. 1-2). Plaintiffs later learned that Defendant circulated
Plaintiffs’ names and photographs to other HEB stores “warning” them about Plaintiffs.
(D.E. 1, p. 2). Plaintiffs complain this incident was humiliating and discriminatory.
Additionally, being banned from their neighborhood grocery store has resulted in certain
hardships based on the distance they must now travel to purchase groceries.
During the hearing on Plaintiffs’ ifp applications, the undersigned admonished
Plaintiffs their complaint was legally and factually deficient and was subject to dismissal.
The undersigned also entered a written order admonishing Plaintiffs:
Plaintiffs’ complaint is currently deficient as it does not contain sufficient
facts to make their claims plausible nor does it state any sufficient legal basis
for their claims or for this Court’s jurisdiction. Further, it appears Plaintiffs
are also attempting to bring a civil rights claim arising under 42 U.S.C. §
1983. Section 1983 provides a vehicle for redressing the violation of federal
law by those acting under color of state law. Nelson v. Campbell, 541 U.S.
637, 643 (2004). To prevail on a § 1983 claim, the plaintiff must prove that
a person acting under the color of state law deprived him of a right secured
by the Constitution or laws of the United States. 42 U.S.C. § 1983; West v.
Atkins, 487 U.S. 42, 48 (1988). Plaintiffs’ current complaint does not
sufficiently allege a constitutional violation. Plaintiffs are, therefore,
CAUTIONED that their complaint is factually and legally deficient and is
subject to being dismissed.
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(D.E. 11). Despite these deficiencies, the undersigned found Plaintiffs should be given
one opportunity to file an amended complaint to try and cure these defects. (D.E. 11).
The Court received Plaintiffs’ Amended Complaint on February 13, 2026. (D.E.
13). In Plaintiffs’ Amended Complaint, they name HEB Grocery Company, LP and H.E.
Butt Grocery Company as Defendants. Plaintiffs rely on the same basic factual
background, with some additional detail. For example, when Plaintiffs received the no
trespass warning from the Corpus Christi Police Officers, the officers told Plaintiffs HEB
management had reported Plaintiffs were “looking at males,” “looking at people,” and
“giving people weird looks.” (D.E. 13, p. 3).3 Plaintiffs were later told by HEB employees
that photographs of Plaintiffs were circulated, and Defendants’ employees were instructed
to contact security if Plaintiffs were seen on the property. (D.E. 13, p. 3). Another
employee reported to Plaintiffs the employee had been instructed not to sell to “that old
gay couple” as they had been characterized as “gay predators.” (D.E. 13, pp. 3-4).
Plaintiffs identify their claims as “counts.” They allege the following Counts:
3 Plaintiffs attach exhibits to their amended complaint. Exhibits A and B are the criminal trespass
warnings Plaintiffs received. Exhibit C is a transcript summary of the body camera footage of a
Corpus Christi Police Officer. The security guard reported to the officer, “So we told them to leave
and not to, like, come back, and they are understanding of that.” (D.E. 13-1, p. 3). The security
guard further reported approaching the Plaintiffs a couple of times, “but they just take off.” (D.E.
13-1, p. 3). A later portion of the transcript reflects that an HEB employee reported to the officers,
“They are just hanging out on the property for hours on end, and you know, we’re not to sure what
they’re up to.” (D.E. 13-1, p. 12). The employee continues, “Well, yeah, because they hang out.
For a while, they were right in front of the curbside door. We didn’t know, like, they were watching
one of our, you know, the male partners going out . . . And every time we did approach them, they
kind of just, like, ended up taking off. So we just didn’t. Just made everyone uneasy is all.” (D.E.
13-1, p 13). The security guard further reports to the officer, they tried to approach the Plaintiffs
before to tell Plaintiffs, “hey, you can’t be hanging out all day or loitering, and they come back
several times a day. So, and by then they not even shopping. They’re just, you know, so you just
can’t be hanging out on the property all day . . .)” (D.E. 13-1, p. 13).
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• Count I: Violation of 42 U.S.C. § 1983, violation of equal protection.
Plaintiffs allege they were subjected to sex-based or sexual-orientation-based
discrimination.
• Count II: Violation of Title II of the Civil Rights Act of 1964, 42 USC §
2000a. Plaintiffs allege they were excluded from HEB, including gasoline
sales, because of sex-based or sexual-orientation-based discrimination.
• Count III: Intentional Infliction of Emotional Distress. Plaintiffs allege the
initiation of police enforcement without basis, the circulation of their
photographs and characterization as “gay predators” was extreme or
outrageous conduct that was either intentional or done with the reckless
disregard for the probability of causing severe emotional harm.
• Count IV: Pattern of Intimidation. Plaintiffs allege the facts described in their
complaint show a pattern of conduct evidencing a discriminatory motive.
Plaintiff alleges this count is not pleaded as an independent claim, but as
support for Plaintiffs’ constitutional and statutory claims.
(D.E. 13, p. 4-7).
III. LEGAL STANDARDS
Plaintiffs have been permitted to proceed IFP and therefore, their complaint is
subject to screening under 28 U.S.C. § 1915(e)(2)(B), which imposes a screening
responsibility on the district court when the plaintiff has been granted IFP status. That
section provides for sua sponte dismissal of a complaint if the Court finds that it (1) is
frivolous or malicious; (2) fails to state a claim upon which relief may be granted, or (3)
seeks monetary relief against a defendant who is immune from such relief.
A complaint is frivolous when “it lacks an arguable basis either in law or fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim is legally frivolous under § 1915
when it is based on an “indisputably meritless legal theory.” Id. at 327. A court may
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dismiss a complaint as frivolous if, after providing the plaintiff with the opportunity to
present additional facts, when necessary, the facts alleged are clearly baseless. Denton v.
Hernandez, 504 U.S. 25, 32-34 (1992). A claim is factually frivolous if the facts are
“clearly baseless, a category encompassing allegations that are ‘fanciful,’ ‘fantastic,’ and
‘delusional.’” Hicks v. Garner, 69 F.3d 22, 25 (5th Cir. 1995) (quoting Denton v.
Hernandez, 504 U.S. 25, 33-34 (1992) (citations omitted).
A complaint fails to state a claim upon which relief may be granted if the factual
allegations are not sufficient to raise a right to relief above the speculation level. Bell
Atlantic Corp. v. Twombly, 500 U.S. 544, 555 (2007). Dismissal for failure to state a claim
is appropriate when the plaintiff has failed to plead “enough facts to state a claim to relief
that is plausible on its face.” Id. at 570. Plaintiffs must state enough facts to “nudge[] their
claims across the line from conceivable to plausible.” Id. In considering whether to
dismiss a complaint for failing to state a claim upon which relief may be granted, all factual
allegations in the complaint must be taken as true and construed favorably to the plaintiff.
Fernandez-Montez v. Allied Pilots Assoc., 987 F.2d 278, 284 (5th Cir. 1993) (citation
omitted). Further, pro se pleadings are reviewed under a less stringent standard than those
drafted by attorneys, and such pleadings are entitled to a liberal construction that includes
all reasonable inferences that can be drawn from them. Haines v. Kerner, 404 U.S. 519,
520 (1972). However, “conclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice” to prevent dismissal for failure to state a claim.
Fernandez-Montez, 987 F.2d at 284. The complaint must state more than “an unadorned,
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the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted). Dismissal is appropriate “only if it appears that no relief could
be granted under any set of facts that could be proven consistent with the allegations.”
Newsome, 301 F.3d at 231.
Regarding Count I, Section 1983 of Title 42 of the United States Code provides a
vehicle for redressing the violation of federal law by those acting under color of state law.
Nelson v. Campbell, 541 U.S. 637, 643 (2004). To prevail on a § 1983 claim, the plaintiff
must prove that a person acting under the color of state law deprived him of a right secured
by the Constitution or laws of the United States. 42 U.S.C. § 1983; West v. Atkins, 487
U.S. 42, 48 (1988). A defendant acts under color of state law if he misuses or abuses
official power and if there is a nexus between the victim, the improper conduct, and the
defendant’s performance of official duties. Townsend v. Moya, 291 F.3d 859, 861 (5th Cir.
2002).
Count II alleges a violation of 42 U.S.C. § 2000a, also known as Title II of the Civil
Rights Act. Title II prohibits discrimination in public accommodations. Title II provides:
All persons shall be entitled to the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, and accommodations of any place
of public accommodation, as defined in this section, without discrimination
or segregation on the ground of race, color, religion, or national origin.
Fahim v. Marriott Hotel Services, Inc., 551 F.3d 344, 349 (5th Cir. 2008) (citing 42 U.S.C.
§ 2000a); Heart of Atlanta Motel, Inc., v. United States, 379 U.S. 241 (1964).
A Plaintiff may establish a prima facia case under Title II by showing: (1) he is a member
of a protected class; (2) he attempted to contract for the services of a public
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accommodation; (3) he was denied those services; and (4) the services were made available
to similarly situated persons outside his protected class. Fahim, 551 F.3d at 350; Hager v.
Brinker Tex., Inc., 102 F.4th 692, 700 (5th Cir. 2024).
Count III is a state law claim for intentional infliction of emotional distress. The
Court may exercise jurisdiction over this state law claim because the Court has original
jurisdiction over the federal claims which form part of the same controversy. 28 U.S.C. §
1367. The tort of intentional infliction of emotional distress has four elements: (1) the
defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous;
(3) the actions caused the plaintiff emotional distress; and (4) the emotional distress was
severe. Hersh v. Tatum, 526 S.W.3d 462, 468 (Tex. 2017). To meet the second element, a
defendant's conduct must be “‘so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.’” Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.
1993) (quoting Restatement (Second) of Torts § 46 (1965)). Intentional infliction of
emotional distress is a “gap-filler” tort that was judicially created to allow recovery in those
rare instances in which a defendant intentionally inflicts severe emotional distress in a
manner so unusual that the victim has no other recognized theory of redress. Hoffmann-La
Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004).
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IV. ANALYSIS
A. Plaintiffs’ 1983 Claim
In Count I, Plaintiffs seek to raise a Section 1983 claim for a violation of equal
protection based on sex-discrimination or discrimination based on Plaintiffs’ sexual
orientation. Section 1983 of Title 42 of the United States Code provides a vehicle for
redressing the violation of federal law by those acting under color of state law. Nelson v.
Campbell, 541 U.S. 637, 643 (2004). To prevail on a § 1983 claim, the plaintiff must prove
that a person acting under the color of state law deprived him of a right secured by the
Constitution or laws of the United States. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42,
48 (1988). A defendant acts under color of state law if he misuses or abuses official power
and if there is a nexus between the victim, the improper conduct, and the defendant’s
performance of official duties. Townsend v. Moya, 291 F.3d 859, 861 (5th Cir. 2002).
The HEB Defendants, as a grocery company, would not typically be considered a
state actor or an entity acting under the color of state law. However, the Fifth Circuit has
recognized situations where a private citizen can be considered to be acting under the color
of state law, but such actions must be “fairly attributable to the State.” Priester v. Lowndes
Cty., 354 F.3d 414, 423 (5th Cir. 2004). For non-state actors to be liable under § 1983, the
plaintiff must show a conspiracy between those defendants and state actors. Id. at 420.
Conclusory allegations will not suffice. “Conclusory allegations that do not reference
specific” facts tending to show an agreement are insufficient. Duke v. Collier, No. 6:24-
CV-85-JDK-KNM, 2025 WL 1605026, at *3 (E.D. Tex. June 6, 2025) (quoting
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Montgomery v. Walton, 759 F. App’x 312, 314 (5th Cir. 2019)). Plaintiffs allege the
involvement of the Corpus Christi Police Officers in issuing the no trespass warnings
amounts to sufficient state action. Plaintiffs cite Morris v. Dillard’s, Inc. 277 F.3d 743 (5th
Cir. 2001). In Morris, the Fifth Circuit explained its precedent recognizing there are some
circumstances where private defendants may be liable under Section 1983 where there is a
close nexus between the state and the challenged action such that the private action may be
deemed as the action of the state. Id. at 747-48. Plaintiffs’ authority is inapplicable to the
present factual allegations. All cases cited by the Fifth Circuit involved customers either
being detained, searched or arrested by off duty police officers or an employee of the
merchant. In Morris, the Court explained a merchant is not a state actor unless the conduct
on the part of a guard or officer giving rise to the claimed deprivation occurred based solely
on designation of suspicion by the merchant and was not accompanied by any independent
investigation by the officer and the merchant and police had a pre-conceived policy by
which shoplifters would be arrested solely based on the complaint of the merchant.
In the present case, the Corpus Christi Police Officers responded to the Defendants’
complaint, investigated, and issued Plaintiffs no trespass warnings. Plaintiffs’ allegation
that there was a conspiracy is entirely conclusory. Plaintiffs’ own exhibits and transcripts
indicate the reporting officer interviewed both Plaintiffs and the Defendants’ security
guard. Additionally, the officer did not arrest Plaintiffs. Rather, the officer presented
Plaintiffs with notice that the Defendants did not want Plaintiffs on their property. The
undersigned recommends the Court find the transmittal of a no-trespassing warning by an
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on-duty police officer does not amount to sufficient state action or “color of authority”
under Section 1983.
Additionally, Plaintiffs’ 1983 claim that equal protection rights were violated are
fatally conclusory and speculative to raise a plausible claim. Plaintiffs’ complaint,
attachment, and testimony indicate they frequently went to Defendants’ premises for the
purposes of using Defendants’ internet network. Plaintiffs’ frequent presence on the
premises, sitting in their vehicle for hours without apparent business in the store made
Defendants’ employees uncomfortable. The employees were so uncomfortable they
reported Plaintiffs’ presence to the Defendants’ managers and its security guard. On at least
one occasion, when the security guard attempted to investigate, Plaintiffs left the premises
in their vehicle and “drove evasively for an extended period” thwarting the security guard’s
ability to investigate. (D.E. 13, p. 2). Plaintiffs’ conduct resulted in the police being called
by Defendants’ employee. Plaintiffs have not alleged any constitutional violation by
Defendants. Accepting all Plaintiffs’ allegations as true, for purposes of this analysis,
Plaintiffs belief they were treated differently or unlawfully based on their sexual orientation
is a conclusion or assumption not supported by sufficient facts to raise a plausible claim.
The facts alleged by Plaintiffs fail to raise a claim that Defendants violated any
constitutional or statutory right of Plaintiffs. Rather, the alleged facts indicate Plaintiffs
were excluded from Defendants’ property because Plaintiffs were habitual loiterers.
Plaintiffs’ belief that the no trespass warnings were issued because of a discriminatory
intent is conclusory, speculative, and the allegations fail to raise a plausible claim.
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B. Plaintiffs’ Title II, Public Accommodation Claim
In Bostock v. Clayton Cty., Ga., 590 U.S. 644, 650-53 (2020) the Court held Title
VII prohibits discrimination based on sexual orientation in the context of employment. The
Court found the language of Title VII which includes “because of sex” terminology should
be read to include “sexual orientation” and “gender identity” discrimination in
employment. See generally Id. Title II does not include the “because of sex” terminology
and it is not entirely clear whether Title II prohibits sexual orientation discrimination in the
public accommodation context. However, while not deciding the issue and for limited
purposes of this screening memorandum and recommendation, the undersigned proceeds
with the screening analysis as though Title II prohibits discrimination in the context of
public accommodations.
Nevertheless, Title II does not identify a grocery store as a place of public
accommodation. Davis v. Food Lion, LLC, No. 4:23CV147, 2024 WL 3653063, at *3–4
(E.D. Va. July 23, 2024), aff’d, No. 24-1723, 2024 WL 5200157 (4th Cir. Dec. 23, 2024)
(citing McArthur v. C-Town Super Market, No. 3:21cv972, 2022 U.S. Dist. LEXIS 134050,
at *6, 2022 WL 2981573 (D. Conn. July 28, 2022)). The survey of the law cited in Davis
relating to whether a grocery store is a place of public accommodation is instructive.
“[C]ourts have excluded grocery stores from [Title II’s] protections where
they are retail establishments that do not serve food for on-premises
consumption.” McArthur, 2022 U.S. Dist. LEXIS 134050, at *6–7, 2022 WL
2981573; see Chandler v. Pay-N-Save, Inc., No. 21-1228, 2022 U.S. Dist.
LEXIS 159400, at *11–12 (D.N.M. Sept. 2, 2022) (concluding that a grocery
store that did not “sell[ ] food for consumption on the premises” was not
covered by Title II); Of-Allodium v. Lantman’s Mkt., No. 2:21cv17, 2021
U.S. Dist. LEXIS 180337, at *9, 2021 WL 4312058 (D. Vt. Sept. 22, 2021)
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(explaining that “retail establishments such as grocery stores are not public
accommodations” when they are “not principally engaged in selling food for
on-site consumption”); Amiri v. Safeway, Inc., No. 98-176, 1999 U.S. Dist.
LEXIS 933, at *3 (D.D.C. Jan. 26, 1999) (concluding that a grocery store
that “principally engaged in the sale of groceries for consumption off the
premises” and did not contain a restaurant, cafeteria, lunch room, food
counters, or table areas, was “not a place of public accommodation for
purposes of Title II liability”); cf. Armstrong v. Target Corp., No. 10-1340,
2010 U.S. Dist. LEXIS 121051, at *11–12, 2010 WL 4721062 (D. Minn.
Nov. 15, 2010) (finding that a grocery store that “has a restaurant on its
premises” is a covered establishment under Title II).
Davis, 2022 U.S. Dist. LEXIS 134050, at *4.
Under certain circumstances, a grocery store may be considered a place of public
accommodation, for instance, if a grocery store operates a restaurant on its premises. 42
U.S.C. § 2000a(b). Plaintiffs have failed to allege sufficient facts that Defendants’ grocery
store is a place of public accommodation as defined by Title II and should be dismissed for
that reason.
Even if Defendants’ grocery store were considered a place of public accommodation
and assuming sexual orientation is a protected class, Plaintiffs have not alleged sufficient
facts to indicate they were discriminated against for being gay. Plaintiffs draw this
conclusion because one of Defendants’ employees reported Plaintiffs were looking at men
and Plaintiffs were described by unidentified personnel employed by Defendant as “that
gay couple” or as “gay predators.” (D.E. 13, pp 3-4). The description of Plaintiffs as a “gay
couple” is neither offensive nor discriminatory. The description of Plaintiffs as “gay
predators” is unfortunate and offensive. However, the offensive description of Plaintiffs is
not sufficient to raise a plausible claim they were discriminated against based on sexual
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orientation. Again, the facts indicate Plaintiffs frequented Defendants’ business for hours
and left the scene when the security guard investigated. Simply put, Plaintiffs were
loitering, and they were treated as loiterers, and they also happened to be gay. Finally,
Plaintiffs have not alleged the services were made available to similarly situated persons
outside his protected class. Fahim, 551 F.3d at 350. Plaintiffs have not alleged that persons
who are not gay were not issued no trespass warnings or were otherwise treated differently
than Plaintiffs. The undersigned recommends Plaintiffs’ Title II public accommodation
claims be dismissed with prejudice.
C. Plaintiffs’ State Law Claim
In Count III Plaintiffs seek to raise a state law claim for intentional infliction of
emotional distress. Plaintiffs’ state law claim is just as devoid of a factual basis as their
federal claims and are also subject to dismissal. Additionally, the facts alleged by Plaintiffs
do not allege the type of extreme conduct meant to be captured by an intentional infliction
of emotional distress action.
The facts indicate Plaintiffs were loitering on Defendants’ property, Defendants
investigated, and Plaintiffs were issued warnings not to trespass on the property. Plaintiffs
make a fair argument that banning Plaintiffs from the property was unnecessary and
Defendants’ management overreacted to Plaintiffs’ frequent presence on the premises.
However, an alternative argument can be made that the facts alleged by Plaintiffs indicate
the Defendants acted appropriately in order to protect their employees from the nuisance
of loiterers. However, the issue before the Court is not whether Defendants over-reacted
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or could have resolved the situation differently. The issue as to Count III is whether
Plaintiffs have alleged a plausible claim for intentional infliction of emotional distress.
Even if the Court accepts Plaintiffs’ conclusion that the Defendants actions were
unnecessary, Plaintiffs have not alleged sufficiently extreme conduct on behalf of the
Defendants to raise a plausible claim of intentional infliction of emotional distress.
Therefore, the undersigned recommends Plaintiffs’ state law claim for intentional infliction
of emotional distress be dismissed with prejudice.4 However, the Court may alternatively
decide to decline to exercise supplemental jurisdiction and dismiss the state law claim
without prejudice.
V. Other Claims Not Specifically Addressed in this Memorandum
To ensure justice and access to the courts, courts interpret pleadings of pro se
litigants liberally. See United States v. Robinson, 78 F.3d 172, 174 (5th Cir. 1996) (citing
United States v. Santora, 711 F.2d 41, 42 (5th Cir. 1983)). Pro se actions will not be
dismissed based on technical pleading defects and should be construed to ensure such
claims are given fair and meaningful consideration despite the unrepresented litigant’s
unfamiliarity with the law. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); See also
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (Pro se parties are normally accorded more
leniency in the construction of their pleadings).
4 When a district court dismisses all federal claims in a lawsuit, “the court generally retains
discretion to exercise supplemental jurisdiction, pursuant to § 1367, over pendent state-law
claims.” Del–Ray Battery Co. v. Douglas Battery Co., 635 F.3d 725, 731 (5th Cir.2011).
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The undersigned has attempted to articulate and analyze Plaintiffs’ claims in an
impartial manner consistent with providing appropriate leniency to pro se litigants while at
the same time requiring compliance with applicable pleading and screening standards. To
the extent Plaintiffs are attempting to raise a claim not specifically addressed by the
undersigned in this Memorandum and Recommendation, Plaintiffs have failed to state such
claim with sufficient factual detail or clarity to allow the claim to be identified, understood,
or analyzed by the Court.
As stated previously, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Again,
Plaintiff must allege sufficient facts in support of its legal conclusions that give rise to a
reasonable inference that Defendant is liable. Id.; Twombly, 550 U.S. at 556. Further, the
factual allegations must raise Plaintiffs’ claim for relief above the level of mere
speculation. Twombly, 550 U.S. at 555.
Plaintiffs are further advised that any claim not addressed in this Memorandum and
Recommendation is not currently before this Court because Plaintiff has failed to allege
sufficient facts or state such claims clearly.
The undersigned further recommends Plaintiffs not be given leave to amend because
they were provided with an opportunity to explain her claims at an evidentiary hearing,
they were admonished their original complaint was deficient, and they have filed an
amended complaint. The undersigned has considered Plaintiffs’ testimony and finds any
amendment would be futile because Plaintiffs’ claims lack merit.
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VI. RECOMMENDATION
It is recommended that all of Plaintiffs’ claims in this action be DISMISSED with
prejudice under 28 U.S.C. § 1915(e)(2)(B).
Respectfully submitted on March 26, 2026.
_______________________________
Jason B. Libby
United States Magistrate Judge
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (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 Judge and all parties, written objections, pursuant to Fed. R. Civ.
P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court
for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within FOURTEEN
(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. Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415 (5th Cir. 1996) (en banc).
Case 2:25-cv-00330 Document 14 Filed 03/26/26 in TXSD Page 18 of 18