Lewis v. Officer Tauch et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
AUSTIN LEWIS,
Plaintiff.
V.
OFFICER TAUCH, et al.,
Defendants.
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CIVIL ACTION NO. 3:25-cv-00201
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
The live pleading is Plaintiff Austin Lewis’s First Amended Complaint. See
Dkt. 17. 	Lewis 	is 	representing 	himself 	in 	this 	litigation. 	Defendants 	Logan
Frankland, Dennis Gardner, Christopher McNeil, and the City of Galveston have
filed a motion to dismiss Lewis’s First Amended Complaint. See Dkt. 19. In his
response to the motion to dismiss, Lewis introduces new factual allegations not
contained in his First Amended Complaint. As a general rule, factual allegations
raised for the first time in a response to a motion to dismiss are not part of the
pleadings to be considered for purposes of the motion to dismiss. See Dorsey v.
Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (“Because the court
reviews only the well-pleaded facts in the complaint, it may not consider new
factual allegations made outside the complaint.”).
“[W]hen a pro se plaintiff raises a new claim for the first time in response to
a motion to dismiss, a court may liberally construe the response as a motion to
amend the complaint.” Egwurube v. Discover Fin. Servs., No. 3:20-cv-00292,
2021 WL 260769, at *4 (S.D. Tex. Jan. 4, 2021) (citing Cash v. Jefferson Assocs.,
Inc., 978 F.2d 217, 218 (5th Cir. 1992)). Given Lewis’s pro se status, see Jackson v.
Reese, 608 F.2d 159, 160 (5th Cir. 1979), and a district court’s obligation to freely
grant leave to allow a plaintiff to file an amended complaint when justice so
requires, see Fed. R. Civ. P. 15(a)(2), I will give Lewis yet another chance to amend
United States District Court
Southern District of Texas
ENTERED
January 23, 2026
Nathan Ochsner, Clerk
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his complaint.1 This is a third bite at the apple. Lewis should include in the Second
Amended Complaint all factual allegations he seeks to advance in this case. To be
clear, this is the last chance Lewis will have to amend his complaint before I test
the sufficiency of the complaint on a motion to dismiss.
Lewis’s Second Amended Complaint must be filed by February 13, 2026.
Defendants must answer the lawsuit or file a motion to dismiss by March 6, 2026.
Lewis must respond to the motion to dismiss by March 27, 2026. Defendants may
file a reply in support of the motion to dismiss by April 3, 2026.
Because I am allowing Lewis to file a Second Amended Complaint, I
recommend Defendants’ motion to dismiss Lewis’s First Amended Complaint
(Dkt. 19) be denied as moot. Because I have recommended that Defendants’
motion to dismiss be denied as moot, Plaintiff’s Motion to Strike Defendants’
Improper Factual Assertions in Support of Their Rule 12(b)(6) Motion (Dkt. 23) is
denied as moot.
The 	parties 	have 	14 	days 	from 	service 	of 	this 	Memorandum 	and
Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R.
Civ. P. 72(b)(2). Failure to file timely objections will preclude appellate review of
factual findings and legal conclusions, except for plain error.
SIGNED this 	day of January 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
1 A motion for leave to amend is a nondispositive pretrial matter properly decided by a
magistrate judge. See Talbert v. Am. Risk Ins. Co., 405 F. App’x. 848, 851 (5th Cir. 2010).
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