Davis-Clewis v. Department of Veterans Affairs

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
VERA DAVIS-CLEWIS,
Plaintiff,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Defendant.
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Case No. 3:25-cv-00529-X-BT
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
This is an employment discrimination lawsuit arising out of pro se Plaintiff
Vera Davis-Clewis’s employment with the Department of Veterans Affairs (VA).
Before the Court is the VA’s Motion to Dismiss and Supporting Brief (ECF No. 30).
Because Davis-Clewis’s Complaint is time barred, the District Judge should
GRANT the VA’s Motion and DISMISS this action WITH PREJUDICE.
Background
Davis-Clewis alleges that she worked as a Medical Supply Technician for the
VA for 16 years until she suffered an on-the-job injury causing a torn rotator cuff
in 2018. Pl.’s Opp. at 2–3, ¶¶ 3, 6 (ECF No. 33). As a result, Davis-Clewis went on
medical leave until May 28, 2019, when she returned to work with permanent
light-duty restrictions per her physician’s orders. Id. ¶¶ 5–6.
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Davis-Clewis again went on medical leave from October 30, 2019, until May
26, 2020, due to complications from her rotator cuff surgery. Id. ¶¶ 8–10. When
asked to return to work, Davis-Clewis requested bereavement leave to mourn the
death of her mother. Id. ¶ 11. However, Human Resources for the VA denied Davis-
Clewis’s request for bereavement leave and “forced [Davis-Clewis] to return to
work under significant emotional and psychological distress.” Id.
After returning to work, the VA placed Davis-Clewis in various positions due
to a purported inability to accommodate her permanent workplace restrictions
prescribed by her physician and deficits in departmental workloads. Id. at 5–7,
¶¶ 16, 21–23. Eventually, in September 2022, the VA offered Davis-Clewis a
position as a Medical Support Assistant at a lower paygrade. Id. at 7–8, ¶ 28. Davis-
Clewis agreed to take the position, but wrote on the acceptance, “I decline[ ] the
decrease in my pay.” Id. at 8, ¶ 29.
Thereafter, Davis-Clewis filed formal complaints of discrimination with the
VA and the U.S. Merit System Protections Board (MSPB), claiming that her
reassignment, and associated reduction in pay, was involuntary and violated
federal anti-discrimination laws. Am. Compl. at 5, 46 (ECF No. 22). On August 30,
2024, the MSPB issued its Initial Decision, which dismissed Davis-Clewis’s appeal
for lack of jurisdiction. Id. at 46–54. The Board found that Davis-Clewis did not
show by a preponderance of the evidence that “her demotion/reduction in pay was
based either on misunderstanding or the ‘result of an agency’s coercive acts.’” Id.
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at 53. In its Notice to Appellant, the MSPB stated that their decision would become
final on October 4, 2024. Id. at 54.
The MSPB included instructions in its decision on how to file a petition for
review with the MSPB, as well as the judicial appellate review process. Id. at 55–
59. Specifically, the MSPB advised:
As a general rule, an appellant seeking judicial review of a final Board
order must file a petition for review with the U.S. Court of Appeals for
the Federal Circuit, which must be received by the court within 60
calendar days of the date this decision becomes final. 5 U.S.C.
§ 7703(b)(1)(A).
. . . .
[I]f you have claimed that you were affected by an action that is
appealable to the Board and that such action was based, in whole or
in part, on unlawful discrimination . . . you may obtain judicial review
of this decision—including disposition of your discrimination claims—
by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar
days after this decision becomes final[.]
Id. at 58–59 (emphasis in original). In other words, Davis-Clewis could either
waive her discrimination claims and file her appeal with the United States Court of
Appeals for the Federal Circuit or retain her discrimination claims and file her
appeal with the appropriate United States district court. Id.
Davis-Clewis filed her appeal with the Federal Circuit on November 25,
2024—52 days after the MSPB’s final decision. Id. at 37. Davis-Clewis indicated to
the Federal Circuit on her Statement Concerning Discrimination that she did not
wish to abandon her discrimination claims. Id. at 41. Accordingly, the Federal
Circuit issued an order on February 28, 2025, stating that the court did not have
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jurisdiction over Davis-Clewis’s claims and transferring the case to this Court. Id.
at 26–27.
Davis-Clewis filed her amended complaint with this Court on April 16, 2025
(ECF No. 22), and the VA’s Motion to Dismiss followed on June 13, 2025 (ECF No.
30). Davis-Clewis filed her Opposition to the VA’s Motion to Dismiss on July 7,
2025 (ECF No. 33),1 followed by the VA’s Reply on July 21, 2025 (ECF No. 34).2
Thus, the Motion is now ripe for adjudication.
Legal Standard
The VA brings its Motion under Rule 12(b)(6). Def.’s Mot. 11-12 (ECF No.
30). To survive a Rule 12(b)(6) motion, a plaintiff’s complaint must contain
sufficient factual matter to state a claim for relief that is plausible on its face. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “To be plausible, the complaint’s
‘[f]actual allegations must be enough to raise a right to relief above the speculative
1 As Davis-Clewis raises new factual allegations in her opposition to the VA’s
Motion, the Court may construe her opposition as an amended complaint. See
Coleman v. Cardona, 2021 WL 1169149, at *1 (N.D. Tex. Mar. 29, 2021) (Fitzwater,
J.) (construing pro se plaintiff’s response and amendments as an amended
complaint), aff’d, 2021 WL 3729653 (5th Cir. Aug. 23, 2021) (per curiam); Blaney
v. Meyers, 2009 WL 400092, at *2 (N.D. Tex. Feb. 17, 2009) (Solis, J.) (“The court
liberally construes Plaintiff’s amended complaint with all possible deference due
[to] a pro se litigant.”). The arguments in the VA’s Motion to Dismiss apply with
equal force to Davis-Clewis’s allegations in her amended complaint.
2 Davis-Clewis improperly filed a sur-reply (ECF No. 40) after the briefing period
for the VA’s Motion had closed. Accordingly, the Court STRIKES this filing for
failure to comply with this District’s Local Civil Rules. N.D. Tex. Loc. Civ. R. 56.7
(“[A] 	party 	may 	not, 	without 	the 	permission 	of 	the 	presiding 	judge, 	file
supplemental pleadings, briefs, authorities, or evidence.”).
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level.’” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010)
(quoting Twombly, 550 U.S. at 555).
This pleading standard does not require “detailed factual allegations,” but it
does demand more than an unadorned accusation devoid of factual support.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw a reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[A] formulaic
recitation of the elements of a cause of action will not do[.]” Twombly, 550 U.S. at
555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). And “[w]hile legal
conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Iqbal, 556 U.S. at 679. Ultimately, where the facts do not
permit the Court to infer more than the mere possibility of misconduct, the
complaint has stopped short of showing that the plaintiff is plausibly entitled to
relief. Id. at 678 (citing Twombly, 550 U.S. at 557).
When applying the plausibility standard, the Court “accepts all well-pleaded
facts as true, viewing them in the light most favorable to the plaintiff.” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (cleaned up). A
court may not look beyond the pleadings. Spivey v. Robertson, 197 F.3d 772, 774
(5th Cir. 1999). Review is “limited to the complaint, any documents attached to the
complaint, and any documents attached to the [motion to dismiss] that are central
to the claim and referenced by the complaint.” Smith v. Buffalo Wild Wings, 2021
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WL 4265849, at *2 (N.D. Tex. Sept. 20, 2021) (Fitzwater, J.) (citing Lone Star
Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)); see
also Inclusive Communities Project, Inc. v. Heartland Cmty. Ass’n, Inc., 399 F.
Supp. 3d 657, 665 (N.D. Tex. 2019) (“In ruling on [a Rule 12(b)(6)] motion, the
court cannot look beyond the pleadings. The pleadings include the complaint and
any documents attached to it.”) (internal citations omitted), aff’d, 824 F. App’x 210
(5th Cir. 2020) (per curiam).
Analysis
The VA argues that Davis-Clewis’s case is subject to dismissal because she
failed to file her appeal for judicial review of the MSPB’s decision within the 30-
day deadline set out in 5 U.S.C. § 7703(b)(2). See Def.’s Mot. at 1 (ECF No. 30).
Further, the VA states that equitable tolling does not save Davis-Clewis’s suit
because her complaint “does not allege facts that would provide a basis for applying
equitable tolling.” Id. The Court agrees that Davis-Clewis’s suit is time barred.
A. Timeliness
“The Civil Service Reform Act of 1978 . . . establishes a framework for
evaluating personnel actions taken against federal employees.” Kloechner v. Solis,
568 U.S. 41, 44 (2012). A federal employee who experiences a serious personnel
action “has a right to appeal the agency’s decision to the MSPB, an independent
adjudicator of federal employment disputes.” Id.
Under 5 U.S.C. § 7703(b)(1)(A), a petition for review of a final order or
decision of the MSPB “shall be filed in the United States Court of Appeals for the
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Federal Circuit . . . within 60 days after the Board issues notice of the final order
or 	decision 	of 	the 	Board.” 	However, 	under 	§ 7703(b)(2), 	“[c]ases 	of
discrimination . . . must be filed within 30 days after the date the individual filing
the 	case 	received 	notice 	of 	the 	judicially 	reviewable 	action[.]” 	Cases 	of
discrimination must be filed as civil actions in district court. Kloeckner, 568 U.S.
at 44. Finally, cases asserting both an action appealable to the MSPB and alleged
discrimination are “mixed cases” governed by § 7703(b)(2) and must be filed in
district court. Id.; see also Gause v. Shanahan, 801 F. App’x 247, 249–50 (5th Cir.
2020) (describing a “mixed case”).
The parties do not dispute that this is a “mixed case” due to Davis-Clewis’s
allegations of an involuntary personnel action and unlawful discrimination. See
Pl.’s Opp. at 15 (ECF No. 33) (“Plaintiff does not dispute that this is a mixed
case[.]”); Def.’s Mot. at 10 (ECF No. 30) (stating that this is a mixed case); see also
Am. Compl. at 2 (ECF No. 22) (asserting claims of discrimination and involuntary
demotion). As a result, the timeliness of Davis-Clewis’s appeal is governed by
§ 7703(b)(2), 	and 	thus, 	she 	was 	required 	to 	seek 	judicial 	review 	with 	the
appropriate district court within 30 days after the date she received notice of the
judicially reviewable action. However, Davis-Clewis did not meet this deadline.
Davis-Clewis is deemed to have received the MSPB’s final order on October
4, 2024, the date it was issued. Am. Compl. at 54 (ECF No. 22). Ballard v.
Tennessee Valley Auth., 768 F.2d 756, 764 (6th Cir. 1985); see also, e.g., James v.
U.S. Postal Serv., 835 F.2d 1265, 1266 (8th Cir. 1988); Cansler v. Tennessee Valley
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Auth., 774 F.2d 432, 433 (11th Cir. 1985) (per curiam); Tolliver v. Deniro, 790 F.2d
1394, 1397 (9th Cir. 1986); Lucero v. Conner, 536 F. Supp. 2d 672, 676–77 (W.D.
Tex. 2008) (all applying Ballard). From that date, she had 30 days to file her
request for judicial review with the appropriate district court, or until November
4, 2024.3 5 U.S.C. 7703(b)(2); Am. Compl. at 54 (ECF No. 22). However, instead
of filing a civil action with the district court, Davis-Clewis filed an appeal with the
Federal Circuit on November 25, 2024. Am. Compl. at 37 (ECF No. 22).
While a request for judicial review from the Federal Circuit may be filed
within 60 days, the Federal Circuit does not have jurisdiction over Davis-Clewis’s
claims of discrimination, which she expressly did not waive. 5 U.S.C. § 7703(b)(1)–
(2); Am. Compl. at 41 (ECF No. 22) (acknowledging that she does “not wish to
abandon [her] discrimination claims) (emphasis in original). In other words,
Davis-Clewis was within the time window for judicial review of the Federal Circuit,
but the Federal Circuit was not the right venue for her claims. Rather, because this
is a “mixed case,” Davis-Clewis must have filed her appeal within 30 days of
3 Thirty days from October 4, 2024, is Sunday, November 3, 2024. As this deadline
fell on a Sunday, Davis-Clewis’s deadline was the following Monday, November 4,
2024. See Fed. R. Civ. P. 6(a)(1)(C). Further, the fact that Davis-Clewis filed an
untimely appeal to the MSPB does not change the finality of the Board’s decision,
and in turn, Davis-Clewis’s deadline to file her appeal with this Court. Def.’s Mot.
at 13–14 (ECF No. 30); see 5 U.S.C. § 7701(e)(1) (stating that any MSPB decision is
final unless a party “petitions the Board for review within 30 days after the receipt
of the decision” or “the Board reopens and reconsiders a case on its own motion”);
Lilly v. MSPB, 2023 WL 7381455, at *2 (Fed. Cir. Nov. 8, 2023) (“The untimely
submission of a petition for review and motion for an extension of time to the
Board does not prevent the initial decision of the administrative judge from
remaining the final decision of the Board.”) (cleaned up).
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receiving notice of the MSPB’s final order and decision. Therefore, because Davis-
Clewis did not comply with § 7703(b)(2)’s 30-day window for judicial review, her
claims are time barred. See Hightower v. U.S. Postal Serv., 2025 WL 1895549, at
*3 (W.D. Va. July 9, 2025).
B. Equitable Tolling
Even though her claims are time barred, Davis-Clewis asserts that she “has
alleged specific and compelling facts that support equitable tolling.” Pl.’s Opp. at
16 (ECF No. 33). Specifically, Davis-Clewis states that the following facts support
equitable tolling: (1) “[c]onfusing and misleading communications” by the VA’s
Human 	Resources 	Department 	and 	the 	Office 	of 	Workers’ 	Compensation
Programs, 	(2) 	“[b]eing 	forced 	to 	choose 	between 	her 	job 	and 	her 	medical
limitations under duress,” (3) “undergoing a major surgery during the critical time
period,” (4) “being denied bereavement leave following her mother’s death,” and
(5) confusing administrative procedures and reliance on counsel. Id. at 17; Pl.’s
Sur-Reply at 4 (ECF No. 40). None of these allegations support equitable tolling.
The deadline for filing an appeal under § 7703(b)(2) is non-jurisdictional,
and therefore, can be subject to equitable tolling. See Harrow v. Dep’t of Def., 601
U.S. 480, 489–90 (2024). However, equitable tolling only provides a plaintiff relief
in “rare and exceptional circumstances.” Strunk v. Methanex USA, L.L.C., 2024
WL 366173, at *2 (5th Cir. Jan. 31, 2024) (per curiam) (quoting Harris v. Boyd
Tunica, Inc., 628 F.3d 237, 239 (5th Cir. 2010)). The Fifth Circuit has noted that
“[e]quitable tolling is to be applied ‘sparingly’” and “[t]he plaintiff has the burden
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to provide justification for equitable tolling.” Granger v. Aaron’s Inc., 636 F.3d
708, 712 (5th Cir. 2011) (per curiam) (citations omitted).
Misleading Statements
Davis-Clewis first contends that equitable tolling applies because “the
agency’s 	inconsistent 	and 	confusing 	communications 	prevented 	her 	from
understanding her options or filing sooner.” Pl.’s Opp. at 16 (ECF No. 33). In
response, the VA argues that this alleged confusing testimony has “nothing to do
with the deadline for Ms. Davis-Clewis to file suit,” and therefore, “is irrelevant for
purposes of equitable tolling.” Def.’s Reply at 4–5 (ECF No. 34).
“Equitable tolling applies principally where the plaintiff is actively misled by
the defendant about the cause of action or is prevented in some extraordinary way
from asserting [her] rights.” Roe v. United States, 839 F. App’x 836, 843 (5th Cir.
2020) (per curiam) (cleaned up). When a plaintiff invokes equitable tolling based
on the defendant’s conduct, she must show “(1) concealment by the defendant, and
(2) that the plaintiff failed, despite the exercise of due diligence, to discover the
relevant facts that form the basis of [her] claim.” Id.
While the MSPB 	acknowledged 	that 	the 	VA’s 	Workers 	Compensation
Specialist, Tyrone Freeman, presented confusing testimony as to whether he told
Plaintiff she would lose her job for not accepting her new position, see Am. Compl.
at 53, n.2 (ECF No. 22), this testimony concerns her substantive claims, not the
deadline for filing an appeal. Davis-Clewis has not shown that the VA concealed
facts from her or affirmatively misled her about the reasons underlying her
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demotion. Rivers v. Geithner, 548 F. App’x 1013, 1019 (5th Cir. 2013) (finding that
the employer did not “actively mislead [the plaintiff] to prevent her from filing a
discrimination claim by proffering misleading reasons for her termination”);
Metwalli v. Salcomp, 2025 WL 2933521, at *5 (N.D. Tex. Sept. 25, 2025) (Horan,
J.) (“[H]ow an employer characterizes a termination should not matter where an
employee is aware of the underlying facts necessary to file a case.”).
Here, Davis-Clewis has not averred that the Defendant concealed from her
any fact that would prevent her from meeting the filing deadline, or that she failed
to discover relevant facts for the basis of her claim despite due diligence. See Pl.’s
Opp. (ECF No. 33); Harrison v. Estes Express Lines, 211 F. App’x 261, 265 (5th
Cir. 2006) (per curiam) (determining that equitable tolling was not appropriate
because the counselor did not discourage the plaintiff from filing a claim, err in the
explanation of law or requirements for filing a claim, or mislead the plaintiff on the
nature of the plaintiff’s rights). In fact, Davis-Clewis was plainly put on notice by
the MSPB’s Notice of Appeal Rights that she needed to file her appeal by November
4, 2024. See Am. Compl. at 59 (ECF No. 22); see also Farmer v. D & O Contractors,
Inc., 640 F. App’x 302, 305 (5th Cir. 2016) (“And we have found ‘no compelling
equities to justify tolling’ where a plaintiff ‘could have filed [her] claim properly
with even a modicum of due diligence’ but failed to timely preserve [her] claim for
litigation.”) (quoting Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir.
1996)). As such, equitable tolling is not warranted on Davis-Clewis’s first ground.
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Duress
Davis-Clewis next states that equitable tolling is appropriate because she
was allegedly “forced to choose between her job and her medical limitations under
duress.” Pl.’s Opp. at 17 (ECF No. 33). Although not entirely clear, Davis-Clewis
appears to be referring to her acceptance of the position of medical support
assistant in 2022—2 years before her filing deadline. Id. at 7–8, ¶¶ 28–29.
As stated above, equitable tolling principally applies “where the plaintiff is
actively misled by the defendant about the cause of action or is prevented in some
extraordinary 	way 	from 	asserting 	[her] rights.” 	Roe, 	839 	F. 	App’x 	at 843
(emphasis added). While Davis-Clewis alleges that she accepted the demotion
under duress, there is no discernable connection between this alleged event and
Davis-Clewis’s untimely appeal over 2 years later. Davis-Clewis provides no
arguments for how this event constitutes a rare and extraordinary circumstance
warranting equitable tolling. Therefore, Davis-Clewis is not entitled to equitable
tolling on this basis.
Injuries and Surgery
Davis-Clewis also argues that equitable tolling applies to her case because
“she was recovering from a job-related injury [and] undergoing surgery.” Pl.’s Opp.
at 16 (ECF No. 33). Specifically, Davis-Clewis states that between January 6, 2025,
and January 30, 2025, she underwent “a series of medical tests and evaluation,”
which resulted in a major back surgery on January 14, 2025. Id. at 11. This back
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injury—in 	2025—allegedly 	prevented 	Davis-Clewis 	from 	timely 	filing 	her
complaint—in November 2024. Id. at 11, 16.
To find relief under the doctrine of equitable tolling due to a medical
condition, the plaintiff must make a specific showing regarding “the impact of [her]
medical condition on [her] ability to file a timely application.” Caldwell v. Dretke,
182 Fed. App’x 346, 347 (5th Cir. 2006) (per curiam); see also Fisher v. Johnson,
174 F.3d 710, 715 (5th Cir. 1999) (holding that “a brief period of incapacity during
a one-year statute of limitations, even though rare, does not necessarily warrant
equitable tolling”).
Davis-Clewis’s medical issues related to her back admittedly occurred in
January 2025—two months after her deadline to file her appeal with the district
court expired. Davis-Clewis cannot argue that an injury and surgery that occurred
after the filing deadline prevented her from meeting that deadline. See Bennings
v. UT Sw. Med. Ctr., 2019 WL 2330652, at *5 (N.D. Tex. May 16, 2019) (Horan, J.)
(rejecting allegation that a meeting, which occurred a month after the filing
deadline, entitled the plaintiff to equitable tolling), adopted by 2019 WL 2326116
(N.D. Tex. May 31, 2019) (Lindsay, J.). Indeed, Davis-Clewis has not set forth any
specific facts plausibly explaining why her purported back injury or surgery
prevented her from meeting her filing deadline. Therefore, Davis-Clewis’s injuries
and surgery do not entitle her to equitable tolling.
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Bereavement Leave
Davis-Clewis next states that her claims should be equitably tolled because
she was “denied bereavement leave following her mother’s death.” Pl.’s Opp. at 17
(ECF No. 33). Specifically, Davis-Clewis alleges that during the deadline to file her
appeal, she was “under significant mental and emotional distress while grieving
her mother’s death.” Id. at 16. But Davis-Clewis requested bereavement leave in
May 2020, Pl.’s Opp. at 4, ¶ 11 (ECF No. 33), and she has not explained how this
circumstance, which occurred 4 years prior to the deadline for filing an appeal,
prevented her from timely filing her appeal. See McHenry v. Dir., Tex. Dep’t of
Crim. Just., 2024 WL 2703041, at *3 (N.D. Tex. Apr. 24, 2024) (Reno, J.)
(“Unsupported, conclusory assertions of mental illness cannot support equitable
tolling.”), adopted by 2024 WL 2702662 (N.D. Tex. May 24, 2024) (Kacsmaryk,
J.). Therefore, Davis-Clewis is not entitled to equitable tolling due to the alleged
denial of bereavement leave.
Reliance on Counsel
In Davis-Clewis’s last effort, she states that equitable tolling applies to her
case because she “was represented by counsel and reasonably relied on that
process.” Pl.’s Sur-Reply at 4 (ECF No. 40). Although Davis-Clewis asserts this
argument in an impermissible sur-reply, see supra note 2, the Court notes that
attorney negligence or inadvertence is not a basis for equitable tolling. See Johnson
v. Capital One, N.A., 2014 WL 879564, at *3 (N.D. Tex. Mar. 4, 2014) (Lynn, J.)
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(“Any alleged error on the part of [p]laintiff’s attorney also does not state a basis
for equitable tolling.”) (citing Harris, 628 F.3d at 240).
Opportunity to Amend
While a pro se plaintiff is ordinarily granted leave to amend her complaint
before dismissal, leave is not required “if the plaintiff has already pleaded [her]
best case.” Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009) (citing Bazrowx
v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (per curiam)). Davis-Clewis has twice
amended her complaint, see supra note 1, and there is no set of facts that could
cure the defects cited by the Court. Therefore, the District Judge should dismiss
Davis-Clewis’s claims with prejudice because the face of her pleading makes it clear
that her claims are time barred. See Edwards v. Fed. Nat’l Mortg. Ass’n, 2021 WL
3195487, at *1 (N.D. Tex. July 7, 2021) (Toliver, J.) (“[A] dismissal without
prejudice has the same effect as a dismissal with prejudice if the statute of
limitations would prevent a party from refiling their case.”) (citation omitted),
adopted by 2021 WL 3192174 (N.D. Tex. July 29, 2021) (Scholer, J.).
Recommendation
In conclusion, the District Judge should GRANT the Defendant’s Motion to
Dismiss (ECF No. 30) and DISMISS WITH PREJUDICE Plaintiff’s Complaint as
time barred.
SO RECOMMENDED.
December 31, 2025.
REBECCA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE
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INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation shall be served on all parties in
the manner provided by law. Any party who objects to any part of this report and
recommendation must file specific written objections within 14 days after being
served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). To be specific,
an objection must identify the specific finding or recommendation to which
objection is made, state the basis for the objection, and specify the place in the
magistrate judge’s report and recommendation where the disputed determination
is found. An objection that merely incorporates by reference or refers to the
briefing before the magistrate judge is not specific. Failure to file specific written
objections will bar the aggrieved party from appealing the factual findings and legal
conclusions of the magistrate judge that are accepted or adopted by the district
judge, except upon grounds of plain error. See Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
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