King v. City of Dallas Texas et al

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ERICK KING, individually and on 	§
behalf of TINMAN, 	§
§
Plaintiffs, 	§
§
V. 	§ 	No. 3:26-cv-226-K-BN
§
CITY OF DALLAS, ET AL., 	§
§
Defendants. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Plaintiff Erick King, individually and on behalf of TinMan – alleged to be “a
mobile automotive service network that provides vehicle maintenance and repair
services at public venues” that King operates – filed this pro se lawsuit claiming that
the City of Dallas and its director and deputy director of parks and recreation, in their
official capacities, violated the United States Constitution (specifically the Equal
Protection Clause and Due Process Clause of the Fourteenth Amendment), the City’s
Business Inclusion and Development (“BID”) Policy, and Texas law. Dkt. No. 3.
King applied for leave to proceed in forma pauperis (“IFP”). See Dkt. No. 4.
And, so, United States District Judge Ed Kinkeade referred this lawsuit to the
undersigned United States magistrate judge for pretrial management under 28
U.S.C. § 636(b) and a standing order of reference.
The Court will grant King individually leave to proceed IFP under 28 U.S.C. §
1915 through a separate order.
And, having carefully reviewed the complaint, the undersigned recommends
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that the Court dismiss this case for the reasons and to the extent set out below.
Legal Standards
Section 1915(e)(2) requires that the Court “dismiss the case at any time” if it
“fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
Under this standard, a pro se complaint need not contain detailed factual
allegations – just “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).
“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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
But, “[w]here a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of
entitlement to relief.” Id. (cleaned up; quoting Twombly, 550 U.S. at 557).
On the other hand, “[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.” Id.
And, while a court must accept a plaintiff’s allegations as true, it is “not bound
to accept as true a legal conclusion couched as a factual allegation.” Id. (quoting
Twombly, 550 U.S. at 555).
In fact, “the court does not ‘presume true a number of categories of statements,
including,’” in addition to legal conclusions, “‘mere labels; threadbare recitals of the
elements of a cause of action; conclusory statements; and naked assertions devoid of
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further factual enhancement.’” Armstrong v. Ashley, 60 F.4th 262, 269 (5th Cir. 2023)
(quoting Harmon v. City of Arlington, Tex., 16 F.4th 1159, 1162-63 (5th Cir. 2021)).
So, to avoid dismissal, plaintiffs must “plead facts sufficient to show” that the
claims asserted have “substantive plausibility” by stating “simply, concisely, and
directly events” that they contend entitle them to relief. Johnson v. City of Shelby,
Miss., 574 U.S. 10, 12 (2014) (per curiam) (citing FED . R. CIV. P. 8(a)(2)-(3), (d)(1), (e));
see also Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (“The burden is
on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to
suggest’ that he or she is entitled to relief.” (quoting Twombly, 550 U.S. at 556)); cf.
Brown v. Tarrant Cnty., Tex., 985 F.3d 489, 494 (5th Cir. 2021) (While “[p]ro se
complaints receive a ‘liberal construction,’” “mere conclusory allegations on a critical
issue are insufficient.” (cleaned up)).
Analysis
To start, King (who has not shown that he is an attorney licensed to practice
in this Court) filed this lawsuit pro se individually and on behalf of an entity, TinMan.
A natural person may proceed pro se, but an entity may not. See Rowland v.
Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 201-02 (1993)
(“[L]ower courts have uniformly held that 28 U.S.C. § 1654 ... does not allow
corporations, partnerships, or associations to appear in federal court otherwise than
by licensed counsel.”); Donovan v. Road Rangers Country Junction, Inc., 736 F.2d
1004, 1005 (5th Cir. 1984) (per curiam) (“The ‘clear’ rule is ‘that a corporation as a
fictional legal person can only be represented by licensed counsel.’” (quoting K.M.A.,
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Inc. v. Gen. Motors Acceptance Corp., 652 F.2d 398, 399 (5th Cir. 1982) (“This is so
even when the person seeking to represent the corporation is its president and major
stockholder.” (citation omitted)))); Joe Hand Promotions, Inc. v. Behind the Fence,
LLC, No. 16-00196, 2016 WL 5416836 (W.D. La. Aug. 22, 2016) (“Under settled
interpretations applicable to 28 U.S.C. § 1654, an LLC may not appear pro se or
through a non-attorney in federal court.”).
So, for present purposes, the undersigned can only consider King’s individual
claims.
And, if this lawsuit continues in federal court, the Court will require TinMan
to either obtain counsel or face dismissal of its claims.
But, for now, the Court lacks jurisdiction to consider any TinMan’s claims. So,
if this lawsuit is dismissed on screening, TinMan’s claims should be dismissed
without prejudice. See Memon v. Allied Domecq QSR, 385 F.3d 871, 873 (5th Cir.
2004) (“In virtually every case in which a district court dismissed the claims (or struck
the pleadings) of a corporation that appeared without counsel, the court expressly
warned the corporation that it must retain counsel or formally ordered it to do so
before dismissing the case. Other courts have dismissed such cases without prejudice,
allowing the corporation to re-file after acquiring a lawyer.” (collecting cases)).
Focusing next on King’s individual claims that a Texas municipality and two
of its employees in their official capacities violated provisions of the Constitution,
“[m]unicipalities can be held liable for violating a person’s constitutional rights under
[42 U.S.C.] § 1983.” Sanchez v. Young Cnty., Tex., 956 F.3d 785, 791 (5th Cir. 2020)
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(“Sanchez II”) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)).
And, as King brings claims against the individual defendants in their official
capacities, 	those 	claims 	“essentially 	merge” 	with 	“the 	claims 	against 	the
governmental entity.” Harmon v. Dall. Cnty., Tex., 927 F.3d 884, 891 (5th Cir. 2019)
(cleaned up).
The general pleading standards set out above apply to such claims against a
municipality and its employees sued in their official capacities. See Hutcheson v. Dall.
Cnty., Tex., 994 F.3d 477, 482 (5th Cir. 2021) (“There is no heightened pleading
standard for § 1983 claims against municipalities. To survive a motion to dismiss, the
complaint need not contain detailed factual allegations but still must state sufficient
facts to establish a plausible claim on its face.” (citing Littell v. Hous. Indep. Sch.
Dist., 894 F.3d 616, 622 (5th Cir. 2018))).
But, because “[a] person may sue a municipality that violates his or her
constitutional rights [only] ‘under color of any statute, ordinance, regulation, custom,
or usage,’” id. (quoting Section 1983; citing Monell, 436 U.S. at 690), a plaintiff
alleging 	a 	Monell 	claim 	“has 	two 	burdens: 	to 	[plausibly 	allege] 	(1) 	that 	a
constitutional violation occurred and (2) that a municipal policy was the moving force
behind the violation,” Sanchez II, 956 F.3d at 791 (citing Monell, 436 U.S. at 694); see
also Cope v. Coleman Cnty., No. 23-10414, 2024 WL 3177781, at *3 (5th Cir. June 26,
2024) (per curiam) (“A municipality may be held liable for a constitutional violation
‘when execution of a government’s policy or custom, whether made by its lawmakers
or by those whose edicts or acts may fairly be said to represent official policy, inflicts
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the injury.’” (quoting Monell, 436 U.S. at 694)); Byrum v. City of Mesquite, 126 F.
App’x 670, 671 (5th Cir. 2005) (per curiam) (“A governmental entity or municipality,
as well as officers thereof acting in their official capacity, can be held liable under §
1983 only if official policy or custom caused the deprivation of a constitutional right.”
(citations omitted)).
To plausibly allege that a policy was the moving force,
a plaintiff must identify “(1) an official policy (or custom), of which (2) a
policy maker can be charged with actual or constructive knowledge, and
(3) a constitutional violation whose moving force is that policy (or
custom).” Pineda v. City of Hous., 291 F.3d 325, 328 (5th Cir. 2002)
(cleaned up). Municipalities are not liable “on the theory of respondeat
superior” and are “almost never liable for an isolated unconstitutional
act on the part of an employee.” Peterson v. City of Fort Worth, 588 F.3d
838, 847 (5th Cir. 2009).
Hutcheson, 994 F.3d at 482.
These elements are “necessary to distinguish individual violations perpetrated
by local government employees from those that can be fairly identified as actions of
the government itself.” Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001).
And, where a plaintiff’s claim fails as to one prong, a court “need not consider
whether [the plaintiff’s] claim also fails the other two Monell prongs.” Brown, 985
F.3d at 494 & n.11 (citing Zarnow v. City of Wichita Falls, 614 F.3d 161, 168-69 (5th
Cir. 2010)).
“Official policy can arise in various forms. It usually exists in the form of
written policy statements, ordinances, or regulations, but may also arise in the form
of a widespread practice that is ‘so common and well-settled as to constitute a custom
that fairly represents municipal policy.’” James v. Harris Cnty., 577 F.3d 612, 617
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(5th Cir. 2009) (citations omitted).
And, in rare circumstances, “a single decision by a policymaker may …
constitute a policy for which a municipality may be liable,” where (1) the “decision
was made by a final policymaker, and (2) a plainly obvious consequence of the decision
is a constitutional violation.” Doe v. Englewood Indep. Sch. Dist., 964 F.3d 351, 366
(5th Cir. 2020) (cleaned up); see also Johnson v. Harris Cnty., 83 F.4th 941, 946 (5th
Cir. 2023) (“[A]n official policy includes the decisions of a government’s law-makers,
the acts of its policymaking officials, and practices so persistent and widespread as to
practically have the force of law.” (cleaned up)).
“Under the second requirement, a plaintiff must show ‘[a]ctual or constructive
knowledge 	of 	[a] 	custom’ 	that 	is 	‘attributable 	to 	the 	governing 	body 	of 	the
municipality or to an official to whom that body ha[s] delegated policy-making
authority.’” Allen v. Hays, 65 F.4th 736, 749 (5th Cir. 2023) (citation omitted).
A plaintiff must then “allege ‘moving force’ causation by showing first, ‘that the
municipal action was taken with the requisite degree of culpability and must
demonstrate a direct causal link between the municipal action and the deprivation of
federal rights.’” Id. (citation omitted).
As to the causation required, “[t]his connection must be more than a mere ‘but
for’ coupling between cause and effect.” Fraire v. City of Arlington, 957 F.2d 1268,
1281 (5th Cir. 1992) (footnote omitted). That is because the “moving force” is the
“catalyst” for the injury in question, not merely a “contributing factor.” Johnson v.
Cook Cnty., 526 F. App’x 692, 695-96 (7th Cir. 2013) (per curiam).
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“The ratification theory provides another way of holding a city liable under §
1983” but only “if the policymaker approves a subordinate’s decision and the basis for
it, as this ‘ratification’ renders the subordinate’s decision a final decision by the
policymaker.” Allen, 65 F.4th at 749 (footnote omitted).
And, regardless the theory of municipal liability, “[t]o proceed beyond the
pleading stage, a complaint’s ‘description of a policy or custom and its relationship to
the underlying constitutional violation ... cannot be conclusory; it must contain
specific facts.’” Peña v. City of Rio Grande City, 879 F.3d 613, 622 (5th Cir. 2018)
(citation and footnote omitted).
That is because “[t]he causal link ‘moving force’ requirement and the degree of
culpability ‘deliberate indifference’ requirement must not be diluted, for ‘where a
court fails to adhere to rigorous requirements of culpability and causation, municipal
liability collapses into respondeat superior liability.’” Alvarez v. City of Brownsville,
904 F.3d 382, 390 (5th Cir. 2018) (en banc) (quoting Snyder v. Trepagnier, 142 F.3d
791, 796 (5th Cir. 1998) (quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520
U.S. 397, 415 (1997))).
The undersigned first notes that the Monell liability standards are commonly
applied to cases like King’s, in which plaintiffs allege that a municipality violated the
constitutional guarantees of equal protection and due process. See, e.g., Pipkins v.
Stewart, 105 F.4th 358, 360-62 (5th Cir. 2024); Doe v. Beaumont Indep. Sch. Dist.,
615 F. Supp. 3d 471, 495-98 (E.D. Tex. 2022).
So, starting with Monell’s policy prong, King may believe that alleging that the
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City violated one of its own policies, such as its BID Policy, satisfies this requirement.
And it’s true that “even a single decision by [a properly constituted municipal
legislative] body unquestionably constitutes an act of official government policy.”
Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).
So, when the alleged policy is “facially unconstitutional,” “it necessarily follows
that a constitutional violation will most likely occur,” and the “policy’s mere existence
[also] 	satisfies 	the 	moving-force 	requirement 	that 	is 	Monell’s 	third 	element.”
Edwards v. Balch Springs, Tex., 70 F.4th 302, 308 (5th Cir. 2023) (cleaned up).
But 	“[a]n 	official, 	written 	policy 	is 	‘itself’ 	unconstitutional 	only 	if 	it
affirmatively allows or compels unconstitutional conduct.” Id. at 309 (citing Doe v.
United States, 831 F.3d 309, 318 (5th Cir. 2016)).
And, “where an alleged policy is facially innocuous,” as opposed to facially
unconstitutional, the plaintiff must show “that the policy was implemented with
‘deliberate indifference’ to the ‘known or obvious consequences’ that constitutional
violations would result.” Covington v. City of Madisonville, Tex., 812 F. App’x 219,
225 (5th Cir. 2020) (per curiam).
King has not alleged facts from which the Court may infer that the BID Policy
itself 	(or 	any 	other 	official 	written 	policy 	of 	the 	City 	of 	Dallas) 	compels
unconstitutional conduct.
Nor has King alleged facts that raise the reasonable inference that a facially
innocuous City policy has been implemented with deliberate indifference – which “is
a stringent standard of fault, requiring proof that a municipal actor disregarded a
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known or obvious consequence of his action.” Brown, 520 U.S. at 410; cf. Convington,
812 F. App’x at 225 (“Establishing deliberate indifference generally requires a
‘pattern of similar violations’ arising from a policy ‘so clearly inadequate as to be
obviously likely to result in a constitutional violation.’” (cleaned up; quoting Burge v.
St. Tammany Par., 336 F.3d 363, 370 (5th Cir. 2003)); Alvarez, 904 F.3d at 390
(similar).
Absent an official written policy, Monell’s policy prong may still be plausibly
pleaded based on an unwritten practice or custom.
But a municipality “cannot be liable for an unwritten custom unless ‘[a]ctual
or constructive knowledge of such custom’ is attributable to [its] policymaker.” Peña,
879 F.3d at 623 (quoting Hicks-Fields v. Harris Cnty., Tex., 860 F.3d 803, 808 (5th
Cir. 2017)); see also Robinson v. Midland Cnty., Tex., 80 F.4th 704, 711 (5th Cir. 2023)
(“[P]laintiffs’ theory hinges entirely on the idea that if enough individuals do
something, it becomes the fault of the policymaker. [But, w]ithout a showing of
knowledge and acquiescence, such a theory is no more than vicarious liability and
cannot survive a motion to dismiss.” (citation omitted)).
“To establish a custom, a plaintiff must demonstrate (and, at the pleading
stage, must plausibly plead) ‘a pattern of abuses that transcends the error made in a
single case.’” Pinedo, 2015 WL 5021393, at *5 (quoting Piotrowski, 237 F.3d at 582).
And a pattern requires “sufficiently numerous incidents,” as opposed to
“isolated instances.” McConney v. City of Hous., 863 F.2d 1180, 1184 (5th Cir. 1989)
(cleaned up).
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Which is why allegations “limited to the events surrounding the plaintiff” – the
scope of the allegations pleaded by King – cannot constitute “an allegation of a de
facto policy … by [a municipality],” Culbertson v. Lykos, 790 F.3d 608, 629 (5th Cir.
2015); accord Hutcheson, 994 F.3d at 482, as such allegations do “not plausibly allege
any pattern of conduct – much less a pattern of similar violations,” Johnson, 83 F.4th
at 947 (emphasis in original).
[Instead, a] plaintiff can establish a policy by pointing to similar
incidents that are sufficiently numerous and have occurred for so long
or so frequently that the course of conduct warrants the attribution to
the governing body of knowledge that the objectionable conduct is the
expected, accepted practice of city employees. That knowledge, coupled
with a failure to act, can show the existence of a municipal policy.
Robinson, 80 F.4th at 710 (cleaned up); accord Webb v. Twn. of Saint Joseph, 925 F.3d
209, 214 (5th Cir. 2019) (“While municipalities can be sued directly under § 1983,
Monell establishes that they cannot be found liable on a theory of vicarious liability
or respondeat superior” – and, so, “the unconstitutional conduct must be directly
attributable to the municipality through some sort of official action or imprimatur;
isolated unconstitutional actions by municipal employees will almost never trigger
liability.” (cleaned up)).
In sum, King has not plausibly pleaded that the defendants are liable for the
alleged constitutional wrongs that provide for the Court’s subject matter jurisdiction
over this lawsuit. See 28 U.S.C. § 1331.
And, if the Court agrees that these claims should be dismissed, there will no
longer 	be 	an 	“independent 	basis 	of 	subject 	matter 	jurisdiction” 	to 	allow 	for
supplemental jurisdiction under 28 U.S.C. § 1367 for the remaining state law counts.
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Atkins v. Propst, No. 22-10609, 2023 WL 2658852, at *2 (5th Cir. Mar. 28, 2023) (per
curiam) (citing Arena v. Graybar Elec. Co., Inc., 669 F.3d 214 (5th Cir. 2012)).
And, under these circumstances, a balance of the applicable factors favors
relinquishing jurisdiction over the remaining state law claims at this initial stage, so
the Court should decline to exercise supplemental jurisdiction over the alleged
violations of Texas law. See 28 U.S.C. § 1367(c); Enochs v. Lampasas Cnty., 641 F.3d
155, 158-59 (5th Cir. 2011); Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir. 2008).
The Court should therefore dismiss King’s individual claims under Section
1915(e) for failure to state a claim on which relief may be granted, dismissing the
federal law claims with prejudice and the state law claims without prejudice.
But the opportunity to file objections to these findings, conclusions, and
recommendation (as further explained below) allows King an opportunity to show
that this case should not be so dismissed and that the Court should instead grant
leave to amend. See Scott v. U.S. Bank Nat’l Ass’n, 16 F.4th 1204, 1209 (5th Cir. 2021)
(per curiam) (“A court should freely give leave to amend when justice so requires, but
a movant must give the court at least some notice of what his or her amendments
would be and how those amendments would cure the initial complaint’s defects. If the
plaintiff does not provide a copy of the amended complaint nor explain how the defects
could be cured, a district court may deny leave.” (citations omitted)).
Recommendation
Unless Plaintiff Erick King shows through timely objections a basis to amend
the complaint to allege a plausible claim under federal law, the Court should dismiss
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King’s individual claims under 28 U.S.C. § 1915(e)(2) for failure to state a claim on
which relief may be granted to the extent that it should dismiss his claims arising
under federal law with prejudice and relinquish jurisdiction over his remaining state
law claims, dismissing those claims without prejudice.
And the Court should dismiss any claims by TinMan, an entity currently
proceeding pro se, without prejudice for lack of jurisdiction.
A copy of these findings, conclusions, and recommendation shall be served on
all parties in the manner provided by law. Any party who objects to any part of these
findings, conclusions, 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). In order 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 findings, conclusions, 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 court, except upon grounds of plain error. See Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: February 5, 2026
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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