Thorne v. Way Service, Ltd.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Jaron Thorne,
Plaintiff,
v.
Way Service, Ltd.,
Defendant.
§
§
§
§
§
§
§
Civil Action H-25-4825
MEMORANDUM AND RECOMMENDATION
This case has been referred to the undersigned magistrate
judge pursuant to 28 U.S.C. § 636(b)(1). ECF No. 5. Pending before
the court is Defendant Way Service, Ltd.’s Motion to Dismiss, ECF
No. 15. The court recommends that the motion be GRANTED and
that Thorne’s claims be dismissed with prejudice for failure to
state a claim.
1. Background
Plaintiff Jaron Thorne worked for Defendant Way Service,
Ltd. from August 2013 until he resigned on March 5, 2025. ECF
No. 13 at 3, 8, 10. Thorne is an African American man who now
brings claims against Way Service for race-based discrimination,
hostile work environment, wage discrimination, and constructive
discharge in violation of Title VII of the Civil Rights Act of 1964
(Title VII) and Chapter 21 of the Texas Labor Code (known as the
Texas Commission on Human Rights Act, “TCHRA”). ECF No. 13
at 9–10.
According to Thorne, Way Service failed to promote him in
July 2023, denied him a bonus for the fourth quarter of 2024, and
constructively discharged him on March 5, 2025. ECF No. 13
at 4–8. Thorne also alleges that he was subjected to various forms
of mistreatment, which he argues amounted to a hostile work
United States District Court
Southern District of Texas
ENTERED
July 13, 2026
Nathan Ochsner, Clerk
Case 4:25-cv-04825 Document 18 Filed 07/13/26 in TXSD Page 1 of 14

2
environment. Id. at 6–7. Thorne filed a Charge of Discrimination
with the Equal Employment Opportunity Commission (EEOC)
and the Texas Workforce Commission on March 5, 2025. ECF
No. 15-1 at 4.
Way Service attached Thorne’s EEOC charge to its motion.
ECF No. 15-1. When considering a motion to dismiss, the court
must limit itself to: (1) the facts in the complaint; (2) documents
attached to the complaint; and (3) matters of which the court may
take judicial notice. Walker v. Beaumont Indep. Sch. Dist., 938
F.3d 	724, 	735 	(5th 	Cir. 	2019). 	“The 	court 	may 	also 	consider
documents attached to either a motion to dismiss or an opposition
to that motion when the documents are referred to in the pleadings
and are central to a plaintiff’s claims.” Brand Coupon Network,
L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014).
Here, Thorne refers to his EEOC charge in his complaint, and his
EEOC charge is central to his claims. ECF No. 13 at 9; cf. Carter
v. Target Corp., 541 F. App’x 413, 415 (5th Cir. 2013) (holding that
consideration of the EEOC charge is appropriate at the 12(b)(6)
stage where the plaintiff references the charge in their complaint).
Thus, the court may properly consider the EEOC charge in its
analysis.
In his Second Amended Complaint, Thorne alleges that he
held many roles while employed by Way Service and that he
consistently met or exceeded performance expectations during his
employment. ECF No. 13 at 3. According to Thorne, he 	was
qualified for a promotion to General Manager, and he applied for
a General Manager position in July 2023. Id. at 3–4. Thorne states
in his EEOC charge that Way Service informed Thorne that he was
not qualified for the position because he did not have any sales
experience. ECF No. 15-1 at 2. Way service then hired another
individual outside of Thorne’s protected group, Justin Lonzo, for
Case 4:25-cv-04825 Document 18 Filed 07/13/26 in TXSD Page 2 of 14

3
the position. Id. Thorne later learned that Lonzo did not have sales
experience prior to being hired as General Manager. Id.
Thorne alleges facts related to an allegedly hostile work
environment. 	For 	example, 	on 	one 	occasion, 	Amy 	Way, 	an
individual 	at 	Way 	Service 	“questioned 	Plaintiff’s 	professional
credibility by stating to Plaintiff, ‘What are you trying to do, make
this the Thorne companies?’” ECF No. 13 at 6. Thorne also alleges
that his General Manager “repeatedly questioned Plaintiff’s daily
activities and scrutinized Plaintiff’s work hours despite Plaintiff’s
Business 	Development 	role 	requiring 	flexible 	scheduling.” 	Id.
Management once told Thorne that “he was on their ‘shit list[]’”
after 	Thorne 	missed 	a 	meeting 	to 	attend 	a 	family 	member’s
funeral. Id.
Management 	labeled 	Thorne’s 	projects 	as 	“failing,” 	but
Thorne 	believes 	his 	projects 	were 	subject 	to 	“management
interference, lack of staffing, and withholding of resources.” ECF
No. 	13 	at 	6–7. 	Another 	employee 	informed 	Thorne 	that
management intentionally understaffed Thorne’s projects so that
the projects would fail. Id. at 7.
Thorne also alleges that he was entitled to a bonus of $6,000
in 2024. ECF No. 13 at 7. Thorne clarifies in his EEOC charge that
Lonzo and the owner of Way Service offered Thorne a $6,000 bonus
at the end of the fourth quarter of 2024 “if they hit more than that
incentive total[.]” ECF No. 15-1 at 2. Thorne states that he “did not
make 	the 	total 	due 	to 	lack 	of 	talent 	in 	the 	field 	and
mismanagement of operations.” Id. Thorne explains that he did not
receive the $6,000 bonus, and he resigned soon after. Id.; ECF
No. 13 at 7. Thorne states that Maurice Mullins, an employee
outside Thorne’s protected group, “who was similarly situated in
role and bonus eligibility” was paid his bonus in full. ECF No. 13
at 7.
Case 4:25-cv-04825 Document 18 Filed 07/13/26 in TXSD Page 3 of 14

4
Thorne identifies several alleged comparators in his Second
Amended 	Complaint: 	Jeffrey 	Lovejoy, 	Justin 	Lonzo, 	and 	Jon
Garcia. ECF No. 13 at 4–5. According to Thorne, each of those
individuals was promoted to General Manager despite being less
qualified than Thorne. Id.
Thorne filed his complaint against Way Service in state
court and Way Service removed the case to federal court in October
2025. ECF No. 1. Thorne thereafter filed an amended complaint.
ECF No. 3. Way Service filed a Motion to Dismiss, which the court
denied as 	moot, 	and the court allowed Thorne 	to amend his
complaint a second time. ECF Nos. 9 and 14. The court warned
Thorne that further leave to amend to address issues already
raised in Defendant’s motion was unlikely to be granted. ECF
No. 9. 	Way 	Service 	now 	moves 	to 	dismiss 	Thorne’s 	Second
Amended Complaint under Rule 12(b)(6). ECF No. 15.
2. Legal Standard
Rule 12(b)(6) authorizes the court to dismiss a complaint for
“failure 	to 	state 	a 	claim 	upon 	which 	relief 	can 	be 	granted.”
Fed. R. Civ. P. 12(b)(6). Generally, the court is constrained to the
“four corners of the complaint” to determine whether the plaintiff
has stated a claim. Morgan v. Swanson, 659 F.3d 359, 401 (5th Cir.
2011); see also Loofbourrow v. Comm’r, 208 F. Supp. 2d 698, 708
(S.D. Tex. 2002) (“[T]he court may not look beyond the four corners
of the plaintiff’s pleadings.”).
Under 	Rule 	12(b)(6), 	the 	court 	determines 	whether 	the
plaintiff’s complaint contains “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (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.” Calogero v. Shows, Cali & Walsh, L.L.P.,
Case 4:25-cv-04825 Document 18 Filed 07/13/26 in TXSD Page 4 of 14

5
970 F.3d 576, 	580 	(5th 	Cir. 	2020) 	(quoting 	Ashcroft 	v. 	Iqbal,
556 U.S. 662, 678 (2009)). “The plausibility standard is not akin to
a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S.
at 678. Ultimately, the “[f]actual allegations [in the complaint]
must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555 (internal citation omitted).
The court liberally construes pro se pleadings. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Courts accept “all well-pleaded
facts as true” and “view[] them in the light most favorable to the
plaintiff.” Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 177 (5th
Cir. 2018) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.
1999)). “A plaintiff need only plausibly allege facts going to the
ultimate elements of the claim to survive a motion to dismiss.”
Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 768 (5th Cir.
2019). “Factual allegations must be enough to raise a right to relief
above 	the 	speculative 	level . . . on 	the 	assumption 	that 	all
allegations in the complaint are true (even if doubtful in fact).”
Twombly, 	550 	U.S. 	at 555. 	“[A] 	well-pleaded 	complaint 	may
proceed even if it strikes a savvy judge that actual proof of those
facts is improbable[.]” Id. at 556.
Only statements of fact are to be taken as true. “Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Conclusory allegations are “disentitled . . . to the presumption of
truth.” Id. at 681. Thus, the court, in reviewing the plaintiff’s
complaint, may neither “accept conclusory allegations” nor “strain
to find inferences favorable to the plaintiffs.” Southland Sec. Corp.
v. INSpire Ins. Sols., Inc., 365 F.3d 353, 361 (5th Cir. 2004).
Case 4:25-cv-04825 Document 18 Filed 07/13/26 in TXSD Page 5 of 14

6
3. Analysis
The law governing claims under Title VII and the TCHRA is
“functionally identical.” Shackelford v. Deloitte & Touche, LLP,
190 F.3d 398, 403 n.2 (5th Cir. 1999). Accordingly, the court does
not always distinguish between the two statutes in its analysis.
A. Exhaustion
Way service argues that Thorne did not exhaust his hostile
work environment claim and that Thorne failed to timely exhaust
his failure to promote allegation based on conduct from July 2023.
ECF No. 15 at 10–12.
Aggrieved 	employees 	filing 	suit 	under 	Title 	VII 	or 	the
TCHRA must first exhaust their administrative remedies. Bunker
v. Dow Chem. Co., 111 F.4th 683, 686 (5th Cir. 2024); Davis v. Fort
Bend Cnty., 893 F.3d 300 (5th Cir. 2018), aff’d, 587 U.S. 541 (2019).
The purpose of exhaustion is to provide employers notice of the
existence and general substance of the discrimination allegations.
Manning v. Chevron Chem. Co., 332 F.3d 874, 878 (5th Cir. 2003);
see also Walcott v. Tex. S. Univ., No. 12-00355-CV, 2013 WL
593488, at *10 (Tex. App.—Houston [1st Dist.] Feb. 14, 2013, no
pet.).
A 	Title 	VII 	plaintiff 	in 	Texas 	must 	file 	a 	charge 	of
discrimination with the EEOC within 300 days of the alleged
wrongful 	conduct. 	Weathers 	v. 	Houston 	Methodist 	Hosp., 	116
F.4th 324, 329 (5th Cir. 2024); 42 U.S.C. § 2000e-5(e)(1). Among
other 	things, 	the 	charge 	must 	include 	a 	clear 	and 	concise
statement 	of 	the 	facts 	constituting 	the 	alleged 	unlawful
employment practices. Weathers, 116 F.4th at 329. After filing an
EEOC charge, a plaintiff may file suit within ninety days of receipt
of a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1).
To determine whether a plaintiff has exhausted a claim,
courts liberally construe the scope of an EEOC charge. Melgar v.
Case 4:25-cv-04825 Document 18 Filed 07/13/26 in TXSD Page 6 of 14

7
T.B. Butler Publ’g. Co., 931 F.3d 375, 379 (5th Cir. 2019). Courts
should consider “the scope of the EEOC investigation which can
reasonably 	be 	expected 	to 	grow 	out 	of 	the 	charge 	of
discrimination.” Id. (citing Pacheco v. Mineta, 448 F.3d 783 (5th
Cir. 2006)). In determining whether an allegation in a complaint
falls within the scope of an EEOC charge for exhaustion purposes,
courts must engage in a “fact-intensive analysis of the statement
given by 	the plaintiff in the administrative charge, 	and 	look
slightly beyond its four corners, to its substance rather than its
label.” Pacheco, 448 F.3d at 789. Failure to properly exhaust a
claim will result in dismissal. See id. at 792.
In his EEOC charge, Thorne states that, in July 2023, Way
Service informed Thorne that he was not qualified to be a General
Manager because he did not have any sales experience. ECF
No. 15-1 at 2. Way service then hired Lonzo for the position, and
Thorne later learned that Lonzo did not have sales experience
prior to being hired as General Manager. Id.
Thorne also describes in his charge that he was offered a
bonus if he met an “incentive total.” ECF No. 15-1 at 2. Thorne
describes that he “did not make the total due to lack of talent in
the field and mismanagement of operations.” Id. Thorne states
that 	he 	did 	not 	receive 	the 	$6,000 	bonus, 	and 	that 	he 	then
resigned. Id. at 2–3. Thorne states in the charge that he believes
he was discriminated against based on his race. Id. at 3. Thorne’s
charge 	does 	not 	contain 	any 	other 	relevant 	facts 	about 	his
employment or about Way Service.
Way Service argues that Thorne’s hostile work environment
claim is barred for failure to exhaust. ECF No. 15 at 11. Way
Service argues that Thorne’s charge of discrimination fails to
include 	any 	allegations 	of 	harassment 	or 	hostile 	work
environment. Id. at 12. According to Way Service, “Thorne only
Case 4:25-cv-04825 Document 18 Filed 07/13/26 in TXSD Page 7 of 14

8
asserts allegations of discrete acts of discrimination that cannot
reasonably yield an inference of a hostile work environment.” Id.
Thorne 	argues 	that 	his 	EEOC 	charge 	“alleges 	unequal
scrutiny, 	discriminatory 	promotion 	practices, 	denial 	of
compensation, and escalating conduct leading to resignation[,]” all
of which reasonably encompass a hostile work environment. ECF
No. 16 at 1.
In his charge of discrimination, Thorne did not raise a hostile
work environment claim or otherwise allege any facts that might
support a hostile work environment claim. The substance of the
charge 	and 	the 	scope 	of 	the 	EEOC 	investigation 	that 	can
reasonably be expected to grow out of the charge do not encompass
any facts related to a hostile work environment. “For a claim of
hostile work environment to reasonably be expected to grow out of
an employee’s charge of discrimination, the employee must allege
more than just discrete acts of discrimination.” Trevino v. SAIA
Motor Freight Line, LLC, No. 20-CV-00825, 2021 WL 1009317,
at *4 (N.D. Tex. Jan. 26, 2021), R. & R. adopted, 2021 WL 977096
(N.D. Tex. Mar. 16, 2021); Gates v. Lyondell Petrochemical Co., 227
F. App’x 409, 409 (5th Cir. 2007). Thorne did not exhaust his
hostile work environment claim. Therefore, Way Service’s motion
should be GRANTED as to Thorne’s hostile work environment
claim.
Way Service also argues that Thorne’s failure-to-promote
claim based on conduct from July 2023 is time barred. ECF No. 15
at 	10–11. 	Thorne 	argues 	that 	he 	“plausibly 	alleges 	delayed
discovery and equitable tolling because he was misled regarding
qualifications[.]” ECF No. 16 at 1.
Thorne’s charge of discrimination is dated March 5, 2025.
ECF No. 15-1 at 4. Thus, any discriminatory acts that occurred
more than 300 days before March 5, 2025, are time barred unless
equitable tolling applies. See Weathers, 116 F.4th at 329–30. The
Case 4:25-cv-04825 Document 18 Filed 07/13/26 in TXSD Page 8 of 14

9
Fifth Circuit has identified three circumstances when equitable
tolling is appropriate in Title VII cases: “(1) the pendency of a suit
between the same parties in the wrong forum; (2) the plaintiff’s
unawareness of the facts giving rise to the claim because of the
defendant’s intentional concealment of them; and (3) the EEOC’s
misleading the plaintiff about the nature of her rights.” Id. at 330.
At issue here is the second circumstance, whether Thorne was
unaware of the facts giving rise to his claim because Way Service
intentionally concealed them.
Thorne does not plausibly allege any facts in his complaint
or EEOC charge that support equitable tolling. As to his failure-
to-promote claim, Thorne states that in July 2023, Way Service
misled him about the necessary qualifications to become a General
Manager. ECF No. 15-1 at 2. Then, in October 2024, Thorne
learned 	that 	Lonzo, 	who 	had 	received 	the 	General 	Manager
position in July 2023, did not have sales experience. Id.
Thorne does not allege any facts showing that Way Service
intentionally concealed relevant facts from Thorne. Thorne was
aware that Lonzo received the position in July 2023. Although
Thorne alleges that Way Service incorrectly informed Thorn of the
requirements to become General Manager, there are no facts
supporting 	a 	finding 	that 	Way 	Service 	concealed 	facts 	about
Lonzo’s background or qualifications from Thorne. The facts as
alleged do not support equitable tolling. Thus, to the extent that
Thorne alleges a claim for failure to promote, Thorne failed to
timely exhaust that claim and Way Service’s motion should be
GRANTED.
B. Thorne 	did 	not 	sufficiently 	allege 	race
discrimination
Thorne states that his discrimination claim is based on his
failure-to-promote claim, his constructive discharge, the denial of
his bonus, and his hostile work environment claim. ECF No. 13
Case 4:25-cv-04825 Document 18 Filed 07/13/26 in TXSD Page 9 of 14

10
at 9. Way Service argues that Thorne failed to state a claim for
race discrimination. ECF No. 15 at 12–15. Thorne responds that
his 	allegations 	are 	sufficient, 	but 	he 	does 	not 	provide 	any
meaningful discussion or analysis. ECF No. 16 at 2.
“To plead a disparate-treatment claim under Title VII, a
plaintiff 	must 	allege 	facts 	plausibly 	showing 	‘(1) 	an 	adverse
employment action, (2) taken against a plaintiff because of [his]
protected status.’” Hamilton v. Dallas Cnty., 79 F.4th 494, 502 (5th
Cir. 2023). “[A] plaintiff need not make out a prima facie case of
discrimination in order to survive a Rule 12(b)(6) motion to dismiss
for failure to state a claim.” Jenkins v. La. Workforce Comm’n, 713
F. App’x 242, 244 (5th Cir. 2017). Even so, the prima facie standard
has “some relevance at the motion-to-dismiss stage.” Id. A plaintiff
need not establish or explicitly plead each element of his claim, but
he must at least plead facts giving rise to a reasonable inference of
plausibility for the ultimate elements of his claim. Id. at 245.
“A 	court 	thus 	inappropriately 	heightens 	the 	pleading
standard by subjecting a plaintiff’s allegations to a rigorous factual
or evidentiary analysis under the McDonnell Douglas framework
in response to a motion to dismiss.” Cicalese v. Univ. of Tex. Med.
Branch, 924 F.3d 762, 767 (5th Cir. 2019). Bearing in mind the
correct standard at the motion to dismiss stage, the prima facie
case of race discrimination requires a plaintiff to show that he (1)
is a member of a protected group, (2) was qualified for his position,
(3) was subject to an adverse employment action, and (4) was
replaced by someone outside his protected group or was treated
less favorably than other similarly situated employees outside his
protected group. Ernst v. Methodist Hosp. Sys., 1 F.4th 333, 339
(5th Cir. 2021).
Way service argues that Thorne fails to allege that he was
subject to an adverse employment action and that he was replaced
by 	someone 	outside 	his 	protected 	group 	or 	was 	treated 	less
Case 4:25-cv-04825 Document 18 Filed 07/13/26 in TXSD Page 10 of 14

11
favorably than other similarly situated employees outside his
protected group. ECF No. 15 at 12–13.
As the court found above, Thorne’s hostile work environment
claim is barred for failure to exhaust and Thorne’s failure-to-
promote claim based on conduct from July 2023 is time barred.
Thorne does not identify any other instances of Way Service’s
failure 	to 	promote 	him. 	Thus, 	the 	court 	turns 	to 	Thorne’s
allegations related to his constructive discharge and the denial of
his bonus.
i. 	Constructive Discharge
As 	to 	Thorne’s 	constructive 	discharge 	allegation, 	Way
Service 	argues 	that 	“Thorne 	cannot 	establish 	his 	resignation
constitutes an adverse action.” ECF No. 15 at 13. Way Service
argues that Thorne has not alleged 	any facts to support his
allegation that he was constructively discharged. Id. at 13–14.
“To state a claim of constructive discharge, a plaintiff must
allege 	that 	working 	conditions 	became 	‘so 	intolerable 	that 	a
reasonable 	person 	would 	have 	felt 	compelled 	to 	resign.’”
Mandujano v. City of Pharr, Tex., 786 F. App’x 434, 437 (5th Cir.
2019) (quoting Pa. State Police v. Suders, 542 U.S. 129, 147 (2004)).
In deciding if a plaintiff was constructively discharged, the Fifth
Circuit considers whether the plaintiff suffered a demotion; a
reduction 	in 	salary; 	a 	reduction 	in 	job 	responsibilities; 	a
reassignment 	to 	menial 	or 	degrading 	work; 	badgering,
harassment, 	or 	humiliation 	at 	the 	hands 	of 	the 	employer
“calculated to encourage the employee’s resignation;” or “offers of
early retirement that would make the employee worse off whether
the offer were accepted or not.” Bye v. MGM Resorts Int’l, Inc., 49
F.4th 918, 924 (5th Cir. 2022) (quoting Stover v. Hattiesburg Pub.
Sch. Dist., 549 F.3d 985, 991 (5th Cir. 2008)).
Case 4:25-cv-04825 Document 18 Filed 07/13/26 in TXSD Page 11 of 14

12
The court agrees that Thorne has not sufficiently alleged
that he was constructively discharged. Thorne describes little
more than a work environment that he found unpleasant. He
complains 	about 	being 	criticized 	and 	questioned 	and 	being
required to justify his duties. ECF No. 13 at 6–7. He gives little
factual description of these events. Thorne’s allegations do not
otherwise describe working conditions that were so intolerable
that a reasonable employee would feel compelled to resign. Cf.
Burchfield v. S. Louisiana Med. Associates, No. CV 23-1501, 2025
WL 	2460165, 	at *3–7 	(E.D. 	La. 	Aug. 	26, 	2025) 	(finding 	that
plaintiff did not sufficiently allege “harassment so extreme that a
reasonable 	employee 	would 	have 	felt 	compelled 	to 	resign”).
Thorne’s 	conclusory 	assertion 	that 	Way 	Service 	intentionally
created intolerable working conditions forcing Thorne to resign is
insufficient. ECF No. 13 at 10. Thorne’s complaints do not rise to
the level of constructive discharge.
ii. Denial of Bonus Payment
The court turns to Thorne’s allegation that Way Service
improperly withheld his bonus. Way Service argues that Thorne
“failed to plead facts to show he failed to receive an alleged bonus
because of his race.” ECF No. 15 at 14. The court agrees. Thorne
admits in his EEOC charge that he did not meet the required
incentive total to obtain his bonus. ECF No. 15-1 at 2. Thorne does
not allege any facts to support a reasonable inference that the
denial of a bonus was based on his race. Thorne implies that he
was unable to meet the incentive total because of Way Service’s
management decisions. But, again, Thorne does not allege facts to
support an inference that Way Service’s management decisions
were in any way based Thorne’s race.
Thorne states that Maurice Mullens, who is outside Thorne’s
protected group, received a bonus, but Thorne does not state
Case 4:25-cv-04825 Document 18 Filed 07/13/26 in TXSD Page 12 of 14

13
whether Mullins was subject to the same requirements as Thorne
to receive a bonus, nor does he state whether Mullins met any
required 	incentive 	total. 	Thorne’s 	allegations 	are 	insufficient.
Thorne has not sufficiently pleaded his discrimination claim. The
court need not address Way 	Service’s arguments 	as 	to 	other
similarly situated employees. Way Service’s motion should be
GRANTED.
C. Leave to Amend is Denied
“Dismissing an action after giving the plaintiff only one
opportunity to state his case is ordinarily unjustified.” Davoodi v.
Austin Indep. Sch. Dist., 755 F.3d 307, 310 (5th Cir. 2014) (quoting
Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986)). If the
plaintiff seeks leave to amend, he “must give the court at least
some notice of what . . . [his] amendments would be and how those
amendments would cure the initial complaint’s defects.” Scott v.
U.S. Bank Nat’l Ass’n, 16 F.4th 1204, 1209 (5th Cir. 2021) (citation
omitted). The court may deny leave “[i]f the plaintiff does not
provide a copy of the amended complaint [or] explain how the
defects could be cured[.]” Id. (citation omitted). The court may also
deny leave to amend when amendment would be futile or when the
plaintiff chooses to stand on his complaint and argues that it
satisfies 	the 	pleading 	requirements. 	See 	Khoury 	v. 	Thota,
No. 20-20578, 2021 WL 3919248, at *4 (5th Cir. Sep. 1, 2021)
(affirming the district court’s denial of leave to amend when the
plaintiff 	chose 	to 	stand 	on 	his 	complaint 	and 	argued 	that 	it
satisfied the pleading requirements); Wimm v. Jack Eckerd Corp.,
3 F.3d 137, 139 (5th Cir. 1993) (discussing futility of amendment
as justification for denying leave to amend).
Here, 	the 	court 	granted 	Thorne 	leave 	to 	amend 	his
complaint. ECF No. 9. The court ordered that “[t]he amended
complaint 	must 	address 	all 	of 	the 	deficiencies 	identified 	in
Case 4:25-cv-04825 Document 18 Filed 07/13/26 in TXSD Page 13 of 14

14
Defendant’s Motion to Dismiss[.] The court is not likely to grant
further 	leave 	to 	amend 	to 	address 	issues 	already 	raised 	in
Defendant’s pending motion.” Id. Thorne then filed his Second
Amended Complaint, which is his third attempt to plead his case.
ECF No. 13. In response to Way Service’s pending Motion to
Dismiss, Thorne states that he requests leave to amend. ECF
No. 16 at 2. Thorne does not provide any information about the
substance of any such amendment, nor does he attach a proposed
amendment to his response. The court has no reason to believe that
Thorne could further amend his complaint in such a way to remedy
its defects. Amendment would be futile. Thus, his request for leave
to amend is DENIED.
4. Conclusion
The court recommends that Defendant’s Motion to Dismiss,
ECF No. 15, be GRANTED and that Thorne’s claims be dismissed
with prejudice for failure to state a claim.
The 	parties 	have 	fourteen 	days 	from 	service 	of 	this
Memorandum and Recommendation to file written objections. 28
U.S.C. 	§ 636(b)(1); 	Fed. 	R. 	Civ. 	P. 	72. 	Failure 	to 	timely 	file
objections will preclude appellate review of factual findings or legal
conclusions, except for plain error. See Thomas v. Arn, 474 U.S.
140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th
Cir. 1988).
Signed at Houston, Texas, on July 13, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
Case 4:25-cv-04825 Document 18 Filed 07/13/26 in TXSD Page 14 of 14