Hunter v. First Transit et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Robert Hunter,
Plaintiff,
v.
First Transit, Inc. and Transdev,
Defendants.
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Civil Action No. 4:26-cv-02201
MEMORANDUM, RECOMMENDATION, AND ORDER
This is an employment discrimination case. 	Plaintiff Robert Hunter
brought ADA claims against Defendants First Transit, Inc. and Transdev.
Dkt. 1. 	He also applied to proceed in forma pauperis (“IFP”). 	Dkt. 2. 	After
carefully reviewing the application, the pleadings, and the applicable law, it is
ordered that Hunter’s IFP application be granted, but it is recommended that
his claims be dismissed without prejudice under 28 U.S.C. § 1915(e)(2)(B).
Legal standard
“[A]ny court of the United States may authorize the commencement,
prosecution or defense of any suit, action or proceeding, civil or criminal, or
appeal therein, without prepayment of fees or security 	therefor” upon a
showing that “the person is unable to pay such fees or give security therefor.”
28 U.S.C. § 1915(a)(1). 	But the right to proceed IFP is not absolute. 	“Under
United States District Court
Southern District of Texas
ENTERED
April 28, 2026
Nathan Ochsner, Clerk
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§ 1915(e)(2)(B), the district court is required to dismiss an IFP case ‘at any
time’ if it determines that the case is ‘frivolous or malicious’ or ‘fails to state a
claim on which relief may be granted.” 	Doe v. Charter Commc’ns, LLC, 131
F.4th 323, 327 (5th Cir. 2025) (quoting 28 U.S.C. § 1915(e)(2)(B)(i), (ii)). 	This
limitation applies equally to prisoner and non-prisoner cases. See Newsome v.
E.E.O.C., 	301 F.3d 	227, 231-33 	(5th 	Cir. 2002) (affirming district court’s
dismissal of former employee’s claims under 28 U.S.C. § 1915(e)(2)); Walters v.
Scott, 2014 WL 5878494, at *1 (S.D. Tex. Nov. 11, 2014) (citing Newsome for
this principle).
A complaint fails to state a claim upon which relief may be granted if it
alleges insufficient facts, when taken as true, to state a basis for relief that is
plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A
claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 	550 	U.S. 	at 	556); 	see 	also, 	e.g., 	Amrhein 	v. 	United 	States,
740 F. App’x 65, 66 (5th Cir. 2018) (per curiam) (applying Iqbal’s standard
when examining a court’s sua sponte dismissal under Section 1915(e)(2)(B)).
Pro se pleadings are liberally construed. 	Butler v. S. Porter, 999 F.3d
287, 292 (5th Cir. 2021) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)
(per curiam)). 	But “regardless of whether the plaintiff is proceeding pro se or
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is 	represented 	by 	counsel, 	conclusory 	allegations 	or 	legal 	conclusions
masquerading as factual conclusions will not suffice to prevent a motion to
dismiss.” 	Prescott v. UTMB Galveston Tex., 73 F.4th 315, 318 (5th Cir. 2023)
(quoting Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)); see
also Chhim v. Univ. of Tex. at Aus., 836 F.3d 467, 469 (5th Cir. 2016) (per
curiam) (“[P]ro se plaintiffs must still plead factual allegations that raise the
right to relief above the speculative level.”).
Analysis
Hunter’s financial resources support his request for leave to proceed IFP.
But this raises the question of whether he has stated a plausible claim for
relief. 	The answer is no. 	Accordingly, this case should be dismissed under
28 U.S.C. § 1915(e)(2)(B). But this dismissal should be without prejudice.
I. 	The IFP application is granted.
Hunter has filed a motion to proceed in forma pauperis under 28 U.S.C.
§ 1915, which would allow him to proceed with this case without prepaying fees
or costs. 	Dkt. 2. 	To proceed without paying the filing fee, an applicant must
show that he is financially “unable to pay such fees.” 	28 U.S.C. § 1915(a).
Although an applicant need not “be absolutely destitute,” he must demonstrate
by affidavit that his financial condition renders him unable to “pay or give
security for the costs ... and still 	be 	able to provide 	[himself] 	and [his]
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dependents with the necessities of life.” 	Adkins v. DuPont Co., 335 U.S. 331,
339 (1948).
After reviewing the application, the Court finds that Hunter cannot
afford the costs of this litigation while continuing to support himself. 	He is
economically eligible to proceed IFP.
II. 	The complaint does not meet federal pleading requirements.
Under 	28 	U.S.C. 	§ 	1915(e)(2)(B), 	however, 	this 	Court 	also 	must
scrutinize Hunter’s case to determine if he has pleaded a basis for relief. 	The
complaint raises discrimination, retaliation, and harassment claims under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. 	Dkt. 1 at
2-3. But Hunter has failed to plead sufficient facts to support recovery.
First, 	discrimination 	claims 	are 	subject 	to 	dismissal 	under 	Section
1915(e)(2) 	if 	the 	litigant 	has 	not 	satisfied 	administrative 	exhaustion
requirements. 	See Searcy v. Crowley Indep. Sch. Dist., 2023 WL 6393901, at
*1 (5th Cir. Oct. 2, 2023) (citing Dao v. Auchan Hypermarket, 96 F.3d 787, 789
(5th Cir. 1996)) (affirming dismissal under Section 1915(e)(2)(B) “for failure to
state a claim based on failure to exhaust administrative remedies”). 	Hunter
claims that he received a right-to-sue letter from the Equal Employment
Opportunity Commission (“EEOC”) on December 19, 2025. 	Dkt. 1 at 1. 	But
he does not attach the letter to the complaint or describe the nature of his
EEOC charge. 	So it is unclear if any of his ADA claims were properly
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exhausted. Adams v. Columbia/HCA of New Orleans, Inc., 2023 WL 2346241,
at *2 (5th Cir. Mar. 3, 2023) (the scope of an ADA claim “is limited to
‘discrimination like or related to the [EEOC] charge’s allegations,’ and ‘the
scope of the EEOC investigation that could reasonably be expected to grow out
of the initial charges of discrimination.’” (quoting Fellows v. Universal Rests.,
Inc., 701 F.2d 447, 451 (5th Cir. 1983))).
Even assuming Hunter properly exhausted administrative remedies, his
allegations do not support a viable ADA claim, whether for discrimination,
failure-to-accommodate, retaliation, or harassment. Each of those theories has
detailed requirements. 	As a starting point, Hunter must allege that he has a
qualifying disability under the ADA. A “disability” is (1) a physical or mental
impairment that substantially limits one or more of the major life activities,
(2) 	a 	record 	of 	such 	impairment, 	or 	(3) 	being 	regarded 	as 	having 	such
impairment. 42 U.S.C. § 12102(1). “[M]ajor life activities include … caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, 	lifting, 	bending, 	speaking, 	breathing, 	learning, 	reading,
concentrating, thinking, communicating, and working.” Id. § 12102(2)(A).
A 	prima 	facie 	disability 	discrimination 	claim 	requires 	allegations
“(1) that [Hunter] has a disability; (2) that he was qualified for the job; [and]
(3) that he was subject to an adverse employment decision on account of his
disability.” 	E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014)
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(quotation 	omitted). 	To 	properly 	allege 	that 	an 	employer 	failed 	to
accommodate a disability requires allegations that “(1) [the plaintiff] is a
qualified individual with a disability; (2) the disability and its consequential
limitations were known by the covered employer; and (3) the employer failed
to make reasonable accommodations for such known limitations.” Feist v. La.
Dep’t of Just., Off. of the Att’y Gen., 730 F.3d 450, 452 (5th Cir. 2013)
(quotations omitted). 	A prima facie retaliation case requires “(1) engagement
in an activity protected by the ADA, (2) an adverse employment action, and
(3) a causal connection between the protected act and the adverse action.”
Strife v. Aldine Indep. Sch. Dist., 138 F.4th 237, 249 (5th Cir. 2025) (quoting
Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999)). 	And, to state a
disability-based harassment claim, a plaintiff must plead “(1) that [he] belongs
to a protected group; (2) that [he] was subjected to unwelcome harassment;
(3) that 	the 	harassment 	complained 	of 	was 	based 	on 	[his] 	disability 	or
disabilities; (4) that the harassment complained of affected a term, condition,
or privilege of employment; and (5) that the employer knew or should have
known of the harassment and failed to take prompt, remedial action.” Credeur
v. Louisiana, 860 F.3d 785, 795-96 (5th Cir. 2017) (quoting Flowers v. S. Reg’l
Physician Servs., Inc., 247 F.3d 229, 235-36 (5th Cir. 2001)).
Even construing Hunter’s complaint liberally, nowhere does he plead the
essential facts for any of the foregoing ADA theories. 	Hunter alleges that he
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reported discrimination, harassment, and a hostile work environment on
September 9, 2024. Dkt. 1 at 2. But he includes no facts suggesting that those
reports have anything to do with the ADA, much less any other statute. 	He
also maintains that dispatch and management retaliated against him by
ignoring, targeting, and bullying him. 	Id. 	No supporting facts are provided
about 	this, 	either. 	Hunter 	further 	pleaded 	that 	Defendants 	failed 	to
investigate his complaints or accommodate his unnamed disability. See id. Yet
there is no indication that Hunter has a qualifying disability or properly
requested accommodation. And although Hunter complains that his employer
later terminated him, he offers no facts sufficient to link that action to
anything that the ADA would protect. See id.
In short, Hunter provides no factual allegations supporting the elements
of recovery under any ADA theory. 	His barebones assertions fail to state a
basis for relief, thereby meriting dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii).
III. 	Hunter is granted leave to amend his pleadings.
Because is at least conceivable that the pleading deficiencies could be
rectified, this Court grants Hunter an opportunity to amend. “[D]istrict courts
often afford plaintiffs at least one opportunity to cure pleading deficiencies
before dismissing a case, unless it is clear that the defects are incurable or the
plaintiffs advise the court that they are ... unable to amend in a manner that
will avoid dismissal.” 	Great Plains Tr. Co. v. Morgan Stanley Dean Witter &
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Co., 313 F.3d 305, 329 (5th Cir. 2002). 	The same is true when a Court
dismisses cases under Section 1915(e)(2). 	See Carmouche v. Hooper, 77 F.4th
362, 368 (5th Cir. 2023) (“[B]efore sua sponte dismissing a pro se litigant’s case
with prejudice, a district court ordinarily must provide an opportunity to
amend the complaint to remedy the deficiencies.”); see also, e.g., Griffin v.
Amazon Inc., 2024 WL 3466805, at *3 (W.D. Tex. July 19, 2024) (dismissing
ADA claims without prejudice under 28 U.S.C. § 1915(e)(2)).
This case is still in its early stages. No defendant has appeared. At this
juncture, the Court cannot conclude that the pleading defects are incurable or
that Hunter is unwilling to amend. 	The proper course is to dismiss Hunter’s
current claims without prejudice and grant him leave to amend.
Order and Recommendation
For 	the 	foregoing 	reasons, 	it 	is 	ORDERED 	that 	Plaintiff 	Robert
Hunter’s application to proceed in forma pauperis (Dkt. 2) be GRANTED.
It is further RECOMMENDED that, under 28 U.S.C. § 1915(e)(2)(B),
Hunter’s ADA claims be DISMISSED WITHOUT PREJUDICE with leave
to amend. 	Hunter is ORDERED to file an amended complaint by May 12,
2026. Failure to do so will result in dismissal of his claims with prejudice.
The Clerk of Court is directed to email and mail a copy of this opinion to
Plaintiff at his record addresses.
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The parties have fourteen days from service of this Report and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed.
R. 	Civ. 	P. 	72(b). 	Failure 	to 	file 	timely 	objections 	will 	preclude
appellate review of factual findings and legal conclusions, except for
plain error. 	Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 825
(5th Cir. 2015).
Signed on April 28, 2026, at Houston, Texas.
__________________________________
Yvonne Y. Ho
United States Magistrate Judge
_________________________________________
Y	Yvvvoon	n	nne Y. Hooo
United States Magistrate Judge
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