El-Hussain v. Dallas County

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DONIA EL-HUSSAIN, TAMERA §

HUTCHERSON, and NIDAA LAFI, §

§

Plaintiffs, §

§

v. § CIVIL ACTION NO. 3:24-CV-0737-B

§

DALLAS COUNTY, JANE DOE, JOHN §

DOE 1, and JOHN DOE 2, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Dallas County’s Rule 12(b)(6) Motion to Dismiss. For the

reasons set forth below, the Court GRANTS IN PART and DENIES IN PART the County’s

Motion.

I.

BACKGROUND

This is a civil rights case. On January 8, 2024, Plaintiffs Donia El-Hussain, Tamera

Hutcherson, and Nidaa Lafi were protesting the Israel-Palestine conflict when Dallas Police arrested

them. Doc. 10, Am. Compl., ¶¶ 20–21. Soon after they arrived, El-Hussain and Lafi “were taken to

a holding cell, while Hutcherson remained in the common area.” Id. ¶ 22. Hutcherson, El-Hussain,

and Lafi each wear hijabs—religious head coverings—as part of their sincerely held religious beliefs.

Id. ¶ 15. While still in the common area, a male officer, John Doe 1, ordered Hutcherson to remove

her hijab for a mugshot. Id. ¶ 25. Though Hutcherson explained that removing it would violate her

sincere religious beliefs, Doe again ordered her to remove her head covering. Id. Hutcherson then

removed her hijab, and another male officer took her mugshot. Id. ¶¶ 25–26.

El-Hussain and Lafi were later taken to the common area for their mugshots, where a female

officer, Jane Doe, ordered them to remove their hijabs. Id. ¶ 27. When they refused and explained

their religious objections, Jane Doe responded, “[T]his is part of the process. This can be either easy

or difficult.” Id. ¶ 28. The purpose, she explained, was to “show their hair color.” Id. Doe elaborated,

“Everyone has to do it. We make everyone take off their wigs, weaves, and hats.” Id. ¶ 29. El-Hussain

and Lafi continued to object until Jane Doe explained they would be detained “indefinitely until

they complied.” Id. ¶ 30. “[F]eeling coerced,” they removed their hijabs. Id. ¶ 32. El-Hussain and Lafi

recall being without their hijabs for about five minutes. Id. ¶ 33.

Plaintiffs allege thousands of people have access to their mugshots. Id. ¶ 34. Their photos

were uploaded to an online database, Adult Information System (“AIS”), where they remain. Id.

¶¶ 34, 73. And they allege that AIS is integrated into other law enforcement databases. Id. ¶ 35.

Plaintiffs allege the mugshots also appeared on NBC News and were made available to the Texas

Board of Law Examiners. Id. ¶ 36. “Plaintiffs continue to feel dehumanized” and “violated.” Id. ¶ 37.

To gather facts to support these claims, Plaintiffs allege they submitted a public information

request to the Dallas County Sheriff’s Office. Id. ¶ 38. They requested the County’s “policies and

customs related to the mandatory removal or [sic] religious head or hair coverings, procedures

distinguishing between religious and non-religious headwear, and policies and procedures pertaining

to religious accommodations.” Id. The Sheriff’s Office responded that these “materials were exempt

from disclosure.” Id. ¶ 40.

Plaintiffs assert five claims against Dallas County and three unnamed correctional officers

for violating their religious rights by ordering them to remove their hijabs after their arrest. See Doc.

10, Am. Compl., ¶¶ 25–32, 45–75. The County1 moved to dismiss three of those claims. First,

Plaintiffs sue under 42 U.S.C. § 1983, alleging the County violated their First Amendment religious

freedoms. Id. ¶¶ 54–62. Second, they allege the County violated their freedom of worship under the

Texas Constitution. Id. ¶¶ 63–68. And third, they seek declaratory relief under the Declaratory

Judgment Act, 28 U.S.C. §§ 2201–02, and Federal Rule of Civil Procedure 57. Id. ¶¶ 69–75. The

Court considers the Motion to Dismiss each of these claims below.

II.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Rule 12(b)(6) authorizes

dismissal of a plaintiff’s complaint for “failure to state a claim upon which relief can be granted.”

FED. R. CIV. P. 12(b)(6). In considering a Rule 12(b)(6) motion to dismiss, “[t]he 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) (citation omitted). But the court will “not

look beyond the face of the pleadings to determine whether relief should be granted based on the

alleged facts.” Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).

To survive a motion to dismiss, a plaintiff must plead “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). “Threadbare recitals

1 Since the names of the officers involved “remain unknown,” Doc. 10, Am. Compl., ¶ 18, and Dallas

County is the only named defendant and the only movant, this Order only addresses Dallas County.

of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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. “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.” Id. (quoting

Twombly, 550 U.S. at 556). When well-pleaded facts fail to meet this standard, “the complaint has

alleged—but it has not shown—that the pleader is entitled to relief.” Id. at 679 (internal quotations

omitted).

III.

ANALYSIS

After considering each of the County’s challenges to Plaintiffs’ claims, the Court GRANTS

the Motion to Dismiss Plaintiffs’ § 1983 and Texas constitutional claims and DISMISSES them

WITHOUT PREJUDICE and DENIES the Motion to Dismiss Plaintiffs’ declaratory judgment

claim.

A. The Court Grants Dallas County’s Motion to Dismiss Plaintiffs’ § 1983 Claim.

First, the Court grants the County’s Motion with respect to Plaintiffs’ § 1983 claim and

dismisses it without prejudice. Section 1983 holds liable “[e]very person who, under color of [state

law] . . . , subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation

of any rights, privileges, or immunities secured by the Constitution and laws [of the United States]

. . . .” 42 U.S.C. § 1983. In Monell v. New York City Dep’t of Soc. Servs., the Supreme Court held that

“Congress did intend municipalities and other local government units to be included among those

persons to whom § 1983 applies.” 436 U.S. 658, 690 (1978) (emphasis in original); Littell v. Hous.

Indep. Sch. Dist., 894 F.3d 616, 622 (5th Cir. 2018) (“[M]unicipal entities like the school district

qualify as ‘persons.’” (citation omitted)). But at the same time, the Court “recognized a limitation

on this liability and concluded that a municipality cannot be made liable by application of the

doctrine of respondeat superior.” Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986). Instead,

municipalities incur liability under § 1983 “when, and only when, their official policies cause their

employees to violate another person’s constitutional rights.” City of St. Louis v. Praprotnik, 485 U.S.

112, 122 (1988).

Thus, to prevail against a municipality2 under § 1983, “a plaintiff must show that [1] an

official policy [2] promulgated by a municipal policymaker [3] was the moving force behind the

violation of a constitutional right.” Henderson v. Harris Cnty., 51 F.4th 125, 130 (5th Cir. 2022). An

official policy “usually exists in the form of written policy statements, ordinances, or regulations, but

it 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.” Peterson v. City of Fort Worth, 588 F.3d

838, 847 (5th Cir. 2009) (citation omitted). Plaintiffs present two theories to support their § 1983

claim against the County: an official policy theory and a failure-to-train theory.

1. Official Policy or Custom

i. Existence of an Official Policy or Custom

First, Plaintiffs fail to allege the existence of an official policy or custom. An official policy

“includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and

practices so persistent and widespread as to practically have the force of law.” Connick v. Thompson,

2 Though Plaintiffs sued a county, § 1983 caselaw applies in the same manner to municipalities and

counties, as the Parties note in their briefs. See Doc. 12, Mot., 11 n.8; Doc. 13, Obj., 11 n.1. See also Henderson,

51 F.4th at 130–31 (citing § 1983 cases concerning municipalities to a case against a county).

563 U.S. 51, 61 (2011). For a plaintiff to successfully plead such a policy, “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) (quoting Spiller v. City of Tex. City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997)) (internal

quotations omitted). “[A] plaintiff must do more than describe the incident that gave rise to his

injury.” Peña, 879 F.3d at 622. A plaintiff can allege an unwritten 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.’” Martinez v. Nueces Cnty.,

71 F.4th 385, 389 (5th Cir. 2023) (quoting Peterson, 588 F.3d at 850–51). And the specific facts they

allege “must be similar to the case at hand: ‘[p]rior indications cannot simply be for any and all ‘bad’

or unwise acts, but rather must point to the specific violation in question.’” Johnson v. Harris Cnty.,

83 F.4th 941, 946–47 (5th Cir. 2023) (quoting Martinez, 71 F.4th at 389).

In Peña, the Fifth Circuit affirmed a § 1983 claim’s dismissal because the plaintiff pled only

two facts, and each failed to plausibly allege an official policy. 879 F.3d at 622. The first fact failed

because it was “causally irrelevant” to the plaintiff’s harm. Id. The second fact was “the single incident

in which [the plaintiff] was involved.” Id. Since this single incident was “the only specific fact in the

complaint,” the plaintiff’s § 1983 claim did not survive a county’s motion to dismiss. Id. at 622, 625.

But in Bond v. Nueces County, the Fifth Circuit found a plaintiff’s § 1983 claim of faulty jail

medical care should have survived a motion to dismiss because she alleged twenty-three prior, similar

incidents of inadequate care. No. 20-40050, 2022 WL 4595000, at *5 (5th Cir. Sept. 30, 2022).

Though the plaintiff could not point to a specific policy, she alleged enough facts “to create a

reasonable inference that a policy exist[ed], or that there exist[ed] a failure to have any pertinent

policy.” Id. at *7.

Here, Plaintiffs fail to adequately plead that the County “acted pursuant to a policy or custom

which denies inmates Free Exercise of Religion” when the officers ordered them to remove their

hijabs. Doc. 10, Am. Compl., ¶ 59. They argue this “was a widespread policy and not a one-off

incident” because John Doe 1 first ordered Hutcherson to remove her hijab, and Jane Doe later and

separately instructed El-Hussain and Lafi to remove their hijabs. Id. ¶¶ 25, 27, 43.

The Court is not persuaded. Like the plaintiff’s facts in Peña, the only specific fact alleged

“describe[s] the incident that gave rise to [their] injury.” Peña, 879 F.3d at 622. And just as the Fifth

Circuit held in Peña, merely describing Plaintiffs’ incidents that gave rise to this lawsuit does not

“plausibly plead a practice so persistent and widespread as to practically have the force of law.” Id.

(quoting Connick, 563 U.S. at 61) (internal quotations omitted); see also Davidson v. City of Stafford,

848 F.3d 384 (5th Cir. 2017) (collecting cases where courts found there was not a “policy based on

pattern” when the plaintiffs alleged as many as two to twenty-seven complaints of similar violations).

The officers’ specific statements are also insufficient to infer an official policy. Jane Doe

allegedly said that requiring Plaintiffs to remove their head coverings was “part of the process” and

the officers “make everyone take off their wigs, weaves, and hats.” Doc. 10, Am. Compl., ¶ 28.

Plaintiffs do not allege a written policy, but they could have alleged Doe’s unwritten statement

indicated a policy by pointing to sufficiently numerous incidents that were like theirs. See Martinez,

71 F.4th at 389. But unlike the prior incidents alleged in Bond where other inmates suffered

inadequate medical care, Jane Doe’s statements do not suggest prior, similar incidents. See 2022 WL

4595000, at *5. This is because Jane Doe never referenced incidents requiring arrestees to remove

their religious coverings. Prior commands requiring arrestees to remove nonreligious head coverings do

not constitute “prior indications” that “point to the specific violation in question.” Johnson, 83 F.4th

at 946–47.

ii. Promulgated by a Municipal Policymaker

Even if they had adequately pleaded an official policy existed, Plaintiffs fail to allege that a

municipal policymaker promulgated it. Plaintiffs correctly note that they “need not allege the

identity of chief policymaker(s) at the pleading stage.” Doc. 10, Am. Compl., ¶ 44; Groden v. City of

Dallas, 826 F.3d 280, 284 (5th Cir. 2016). Instead, “the complaint need only allege facts that show

an official policy, promulgated or ratified by the policymaker, under which the municipality is said

to be liable.” Id. But “[a] city cannot be liable for an unwritten custom unless ‘[a]ctual or constructive

knowledge of such custom’ is attributable to a city policymaker.” Peña, 879 F.3d at 623 (quoting

Hicks-Fields v. Harris Cnty., 860 F.3d 803, 808 (5th Cir. 2017)).

Other § 1983 cases are instructive as to when knowledge is “attributable to a city

policymaker.” Peña, 879 F.3d at 623 (internal quotations omitted). In Groden, a plaintiff adequately

pleaded that a municipal policymaker promulgated a policy of authorizing illegal arrests targeting

“annoying speech.” 826 F.3d at 286. There, the plaintiff alleged that a city’s spokesman “publicly

announced a new policy of cracking down on vendors” downtown, and “gave media interviews

describing the new policy.” Groden, 826 F.3d at 286. These claims sufficiently alleged that the policy

was attributable to the city’s policymaker. Id. But in Peña, the plaintiff failed to allege that a

policymaker promulgated “a policy of tasing juvenile non-suspects and moving targets” because her

“complaint invite[d] no more than speculation that any particular policymaker . . . knew about the

alleged custom.” 879 F.3d at 623.

Plaintiffs here also “invite[] no more than speculation that any particular policymaker” knew

of the alleged violation. Id. “[I]n Texas, the county sheriff is the county’s final policymaker in the

area of law enforcement.” Turner v. Upton Cnty., Tex., 915 F.2d 133, 136 (5th Cir. 1990). To support

a policymaker’s knowledge, Plaintiffs allege “Dallas County, vis-à-vis, Dallas County Sheriff’s Office

and Sheriff Marian Brown’s policies, practices, and customs . . . directly violate the First Amendment

as well as other federal and state law.” Doc. 10, Am. Compl., ¶ 15. Plaintiffs also allege that Jane

Doe said that Plaintiffs removing their head covering was “part of the process” to “show their hair

color,” and that “[a]fter stating it was the Dallas County Sheriff’s Office standard process and

procedure to require removal of any head coverings, Jane Doe expounded, ‘Everyone has to do it.’”

Id. ¶¶ 28–29. Plaintiffs equate Doe’s first statement that it was “part of the process,” to Jane Doe

“stating [this requirement] was the Dallas County Sheriff’s Office standard process.” Id. But they

plead no facts to allow the Court to draw a reasonable inference that this process was promulgated

by the Sheriff or any particular policymaker. Unlike in Groden, they point to no public

announcements or other indicators—aside from a vague statement by one officer noting a “process”

exists—to support that this process was attributable to the County’s policymaker. 826 F.3d at 286.

They point to no facts that support the Sheriff even knew of the process, let alone promulgated it.

For this Court to infer that this process is attributable to any final policymaker, Plaintiffs must allege

more than one officer’s statement about it.

2. Failure to Train

Plaintiffs also do not adequately plead a failure-to-train theory for § 1983 liability. A plaintiff

who fails to allege an official policy or custom existed can still assert a § 1983 claim using a failure-

to-train theory. “The failure to train can amount to a policy if there is deliberate indifference to an

obvious need for training where citizens are likely to lose their constitutional rights . . . .” Peterson,

588 F.3d at 849. “[I]n order to state a claim for Monell liability for failure to train or supervise,

plaintiffs must allege that (1) the municipality’s training or supervisory policies or practices were

inadequate, (2) the municipality was deliberately indifferent in adopting those polices or practices,

and (3) the policies or practices caused plaintiffs’ constitutional injuries.” Washington v. Smith, 639

F. Supp. 3d 625, 652 (E.D. La. 2022); Jackson v. Valdez, 852 F. App’x 129, 135 (5th Cir. 2021). A

plaintiff must plausibly plead each element to allege a failure-to-train theory. See Rusanowsky v. City

of Dallas, No. 3:22-CV-01132-K, 2023 WL 2728722, at *5 (N.D. Tex. Mar. 30, 2023) (Kinkeade, J.)

(ending the inquiry when a plaintiff failed to plausibly plead the second element of a failure-to-train

claim). Plaintiffs fail to plead each of these elements.

i. Inadequate training or supervisory policies

To allege a training or supervisory policy or practice was inadequate, a plaintiff “must allege

with specificity how a particular . . . program is defective.” Zarnow v. City of Wichita Falls, 614 F.3d

161, 170 (5th Cir. 2010) (citing Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005)); see

also Doe v. Dallas Indep. Sch. Dist., 194 F. Supp. 3d 551, 563 (N.D. Tex. 2016) (Boyle, J.).

Plaintiffs fail to specifically allege how any Dallas County program is defective. They base

their failure-to-train theory on their contention that Dallas County’s Sheriff “failed to adopt clear

policies and failed to properly train its deputies as to the photographing and booking of those with

religious headwear,” and that this failure caused Plaintiffs’ constitutional violation. Doc. 10, Am.

Compl., ¶¶ 60–61. They do not allege any facts regarding the County’s training or supervisory

policies that permit the Court to plausibly conclude any training was inadequate. Instead, Plaintiffs

plead that the County’s training was merely absent or not “proper[].” Doc. 10, Am. Compl., ¶ 60.

But absent any facts to support their allegation of an absence of training or “fail[ure] to properly

train,” id., the allegation is merely conclusory and insufficient to constitute a plausible pleading

required at this stage. See Peña, 879 F.3d at 622 (quoting Spiller, 130 F.3d at 167) (internal quotations

omitted) (“[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.”).

ii. Deliberate indifference

There are two ways to plead deliberate inference: (1) by alleging a pattern of constitutional

violations, or (2) by alleging a single incident in which “the risk of constitutional violations was or

should have been an obvious or highly predictable consequence of the alleged training inadequacy.”

Littell, 894 F.3d at 624. A plaintiff can allege a pattern of constitutional violations by alleging that

constitutional rights violations happen “so often” that it creates an inference that “the need for

further training must have been plainly obvious to the . . . policymakers.” Id. (quoting City of Canton

v. Harris, 489 U.S. 378, 388 (1989)). In the absence of a pattern of constitutional violations, a

plaintiff may allege “a single violation of federal rights, accompanied by a showing that a municipality

has failed to train its employees to handle recurring situations presenting an obvious potential for

such a violation.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 409 (1997) (citations

omitted). This single-incident exception applies where “the risk of constitutional violations was or

should have been an obvious or highly predictable consequence of the alleged training inadequacy.”

Littell, 894 F.3d at 624 (quotations and citation omitted). “For a violation to be highly predictable,

the municipality must have failed to train its employees concerning a clear constitutional duty

implicated in recurrent situations that a particular employee is certain to face.” Henderson, 51 F.4th

at 131 (quoting Hutcheson v. Dallas Cnty., 994 F.3d 477, 483 (5th Cir. 2021)). The single-incident

exception is “extremely narrow,” and “is generally reserved for those cases in which the government

actor was provided no training whatsoever.” Henderson, 51 F.4th at 131 (emphasis in original) (internal

quotations omitted).

Plaintiffs’ contentions also fail to plead deliberate indifference. Plaintiffs do not allege a

pattern of constitutional violations. Instead, they plead that they were “commanded to remove their

religious headwear to be photographed by potentially different correctional officers.” Doc. 10, Am.

Compl., ¶ 43. But two alleged instances that both occurred on the same night, and only affected the

parties to this lawsuit, do not create a plausible inference of constitutional violations that occurred

“so often” that “the need for further training must have been plainly obvious to the policymakers.”

Littell, 894 F.3d at 624 (citations omitted). Plaintiffs also argue that the officers “made it abundantly

clear . . . that the forced removal of Plaintiffs’ religiously mandated hair-coverings was . . . a

specifically delineated and widely understood policy.” Doc. 10, Am. Compl., ¶ 41. But their only

facts supporting this are the two groups and Jane Doe’s statements discussed above. Id. ¶¶ 28–29.

They do not allege that the correctional officers themselves, let alone policymakers, engaged in or

knew of repeated constitutional violations.

And Plaintiffs fail to plausibly plead that the single-incident exception applies. The Plaintiffs

“do not allege that the [C]ounty provided no training,” Hutcheson, 994 F.3d at 483, but rather that

the Sheriff “failed to adopt clear policies and failed to properly train its deputies.” Doc. 10, Am.

Compl., ¶ 60. Without pleading that there was “no training, . . . they cannot show that the county

was deliberately indifferent.” Hutcheson, 994 F.3d at 483. And in any event, merely stating that the

Sheriff did not “adopt clear policies” or “properly train its deputies,” Doc. 10, Am. Compl., ¶ 60,

are conclusory allegations that lack specific facts, which are insufficient to survive a motion to

dismiss. Peña, 879 F.3d at 622 (quoting Spiller, 130 F.3d at 167) (internal quotations omitted). And

alleging that Dallas County Sheriff’s Office failed to produce policy-related documents in response

to Plaintiffs’ information request does not plausibly plead a failure to train. See Doc. 10, Am.

Compl., ¶¶ 38–40; Henderson, 51 F.4th at 131 (finding a plaintiff failed to plead that officers had

no training regarding constitutional taser use when “[h]er only support for that contention” was that

the County “failed to produce any written policies or procedures governing the conduct of deputy

constables in performing law enforcement” in response to her public information requests).

Plaintiffs also fail to establish that the alleged violation was highly predictable because they

do not plausibly plead that the alleged failure to train regarded “a clear constitutional duty

implicated in recurrent situations that a particular employee is certain to face.” Henderson, 51 F.4th

at 131. Instead, they plead that “forc[ing] Plaintiffs who wear religious head coverings to remove”

them “alienates faith communities throughout Dallas County,” without more. Doc. 10, Am.

Compl., ¶ 15.3 Without alleging facts to support Plaintiffs’ conclusion that this caused alienation,

this claim, too, is “conclusory” and lacks the “specific facts” required at the pleadings stage. Peña,

879 F.3d at 622 (quoting Spiller, 130 F.3d at 167) (internal quotations omitted).

Since Plaintiffs fail to plausibly allege their § 1983 claim, the Court GRANTS the County’s

Motion with respect to this claim and DISMISSES it WITHOUT PREJUDICE.

3 In Plaintiffs’ Response to the Motion to Dismiss (Doc. 14), they explain, “[r]eligiously worn head

coverings are commonplace among various religious populations, . . . and Dallas County has a particularly

large and connected Muslim community.” Doc. 14, Resp., 13. But courts generally consider only the pleadings

when ruling on a motion to dismiss. See Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.

2004) (noting that “[i]f a court considers materials outside of the pleadings, the motion to dismiss must be

treated as a motion for summary judgment under Rule 56(c)”).

B. The Court Grants the County’s Motion to Dismiss Plaintiffs’ Claim Under the Texas Constitution.

Next, the Court grants the County’s Motion to Dismiss the Plaintiffs’ Texas constitutional

claim and dismisses it without prejudice. To plead a claim under the Texas Constitution, a plaintiff

must plausibly allege that her rights under the Texas Constitution were violated4 and that she is

entitled to equitable relief. See Reynolds v. City of Commerce, 853 F. App’x 978, 980 (5th Cir. 2021)

(per curiam) (unpublished) (affirming the lower court’s granting of a motion to dismiss a Texas

constitutional claim because the plaintiff sought “only money damages,” and suits under the Texas

Constitution “are limited to equitable relief”).

Plaintiffs fail to plausibly allege they are entitled to equitable relief. Plaintiffs allege that the

County violated their freedom of worship under the Texas Constitution by “interfere[ing] with their

right to wear their head covering as their religion mandates.” Doc. 10, Am. Compl., ¶ 65; see TEX.

CONST. art. I, § 6. They allege they “sustained damages” as a result. Doc. 10, Am. Compl., ¶ 66. The

County argues Plaintiffs fail to allege a Texas constitutional claim because Plaintiffs allege “they have

sustained damages,” and “the Texas Constitution does not provide a private cause of action to

recover monetary damages for a violation of . . . the Texas Constitution.” Doc. 12, Mot., 15. The

Court agrees. See Reynolds, 853 F. App’x at 980. Though Plaintiffs seek equitable relief in their Prayer

for Relief, they fail to plausibly allege they are entitled to such relief under the Texas Constitution.

See Doc. 10, Am. Compl., ¶¶ 63–66. Plaintiffs thus fail to plead one of two requirements for a

colorable Texas constitutional claim. Therefore, the Court GRANTS the County’s Motion to

Dismiss Plaintiffs’ claim under the Texas Constitution and DISMISSES it WITHOUT

PREJUDICE.

4 Dallas County does not dispute that Plaintiffs plausibly pled that their rights under the Texas

Constitution were violated. See Doc. 12, Mot., 14–15.

C. The Court Denies the County’s Motion to Dismiss Plaintiffs’ Declaratory Judgment Claim.

Finally, the Court denies the County’s Motion to Dismiss Plaintiffs’ claim for declaratory

judgment. “A district court considering a declaratory judgment action must engage in a three-step

inquiry.” Ironshore Specialty Ins. Co. v. Tractor Supply Co., 624 F. App’x 159, 162 (5th Cir. 2015)

(internal quotations omitted). It must determine: (1) whether the declaratory judgment action is

justiciable; (2) whether the court has the authority to grant the declaratory relief; and (3) whether to

exercise its discretion to decide or dismiss the action.” Id. (internal quotations omitted).

1. Justiciability

First, Plaintiffs plead a justiciable declaratory judgment action. To plead a justiciable

declaratory judgment action, plaintiffs must allege an “actual controversy exists between the parties.”

Orix Credit All., Inc. v. Wolfe, 212 F.3d 891, 895 (5th Cir. 2000). The “actual controversy”

requirement is the same as the requirement that a plaintiff plead a “case or controversy” to establish

standing under Article III of the Constitution. See id. at 895. “In order to demonstrate that a case or

controversy exists to meet the Article III standing requirement when a plaintiff is seeking injunctive

or declaratory relief, a plaintiff must allege facts from which it appears there is a substantial

likelihood that he will suffer injury in the future.” Waller v. Hanlon, 922 F.3d 590, 603 (5th Cir.

2019) (quoting Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2003)). But declaratory relief for past

wrongs is also possible, if a plaintiff “demonstrate[s] either continuing harm or a real and immediate

threat of repeated injury in the future.” Id.

Plaintiffs adequately plead justiciability because they allege they are suffering a continuing

harm. See Waller, 922 F.3d at 603 (quoting Bauer, 341 F.3d at 358). Specifically, they allege they “are

entitled to a declaratory judgment that Defendants infringed upon and substantially burdened their

religious free exercise and continue[] to substantially burden their religious free exercise in violation

of federal and state law and the United States Constitution.” Doc. 10, Am. Compl., ¶ 74 (emphasis

added). Additionally, they claim their “photographs were stored in the online database, Adult

Information System (“AIS”),” and “can be accessed by thousands of users.” Id. ¶ 34. They further

allege “[t]he AIS photographs have not been removed or redacted in any way.” Id. ¶ 73.

The County argues Plaintiffs allege only past harm, and therefore Plaintiffs’ declaratory

judgment claim must be dismissed. See Doc. 12, Mot., 17. But the County focuses only on Plaintiffs’

failure to allege that they are likely to suffer future harm by being arrested in the future, comparing

Plaintiffs to the plaintiff in Grizzle v. Robles. Id.; No. 5:22-CV-132-BQ, 2023 WL 7137067, at *3 (N.D.

Tex. Apr. 28, 2023) (Bryant, M.J.), report and recommendation adopted, 2023 WL 7135651, at *1 (N.D.

Tex. Oct. 30, 2023) (Cummings, J.). While in Grizzle, the court found the plaintiff “only [sought]

retrospective declaratory relief,” here, the Plaintiffs seek prospective relief, praying that the Court

“[r]equire Defendants to remove, delete, and permanently destroy” the photographs that they allege

violated their religious freedom. 2023 WL 7137067, at *3; Doc. 10, Am. Compl., Prayer, ¶ 3. And

the County does not address Plaintiffs’ claim that they suffer continuing harm because their

photographs remain on AIS. Doc. 10, Am. Compl., ¶ 73.

Therefore, even though Plaintiffs seek “relief for past wrongs,” their declaratory relief action

is justiciable because they also allege “continuing harm.” See Waller, 922 F.3d at 603 (noting

“declaratory relief for past wrongs” is possible if a plaintiff in part shows “continuing harm”)

(alterations and quotations omitted).

2. Authority

Second, Plaintiffs plausibly allege the Court has authority to grant the requested declaratory

relief. If a court determines the case is justiciable, it must determine “whether the court has the

authority to grant the declaratory relief.” Ironshore, 624 F. App’x at 162. The Fifth Circuit has found

a district court had authority when it had subject matter jurisdiction over the case “and the Anti-

Injunction Act did not apply.” Sherwin-Williams Co. v. Holmes Cnty., 343 F.3d 383, 387 (5th Cir.

2003).

Here, too, the Court finds it has the authority to grant declaratory relief. The Court has

subject-matter jurisdiction, and the Anti-Injunction Act does not apply. Plaintiffs assert federal

claims, so the Court has federal question jurisdiction. See 28 U.S.C. § 1331. And since Plaintiffs’

claims all arise out of the same facts, it has supplemental jurisdiction over Plaintiffs’ state-law claims.

Id. at § 1367. Furthermore, as far as the Court is aware, there is “no pending state court action

between” Plaintiffs and the County. See Sherwin-Williams, 343 F.3d at 387–88 (finding the district

court “properly concluded” that “the Anti–Injunction Act did not apply because there was no

pending state court action between Sherwin-Williams and any of the declaratory judgment

defendants”). Therefore, the Court has authority to grant declaratory relief.

3. Discretion

Third, the Court finds it proper to exercise discretion over Plaintiffs’ declaratory judgment

claim. A district court must decide “whether to exercise its discretion to decide or dismiss” a

declaratory judgment action.” Ironshore, 624 F. App’x at 162. District courts have “broad discretion

to decide or dismiss” such an action. Orix, 212 F.3d at 895. In the Fifth Circuit, district courts use

a list of seven “nonexclusive factors . . . to guide [their] exercise of discretion to accept or decline

jurisdiction over a declaratory judgment suit.” Ironshore, 624 F. App’x at 164 (quoting Sherwin-

Williams, 343 F.3d at 390); see id. (noting the Fifth Circuit “has often held a district court abuses its

discretion by failing to address [these] factors” from St. Paul Ins. Co. v. Trejo, 39 F.3d 585 (5th Cir.

1994)). To carefully weigh whether to exercise its discretion, district courts consider:

1) whether there is a pending state action in which all of the matters in controversy

may be fully litigated,

2) whether the plaintiff filed suit in anticipation of a lawsuit filed by the defendant,

3) whether the plaintiff engaged in forum shopping in bringing the suit,

4) whether possible inequities in allowing the declaratory plaintiff to gain precedence

in time or to change forums exist,

5) whether the federal court is a convenient forum for the parties and witnesses, . . .

6) whether retaining the lawsuit in federal court would serve the purposes of judicial

economy, and . . .

[7)] whether the federal court is being called on to construe a state judicial decree

involving the same parties and entered by the court before whom the parallel state

suit between the same parties is pending.

Ironshore, 624 F. App’x at 164 (quoting Trejo, 39 F.3d at 590–91) (alterations and omissions in

original).

Each Trejo factor supports this Court exercising jurisdiction over Plaintiffs’ claim for

declaratory relief. First, the Court is unaware of any related pending state court action. Second, there

is no indication Plaintiffs filed suit in anticipation of a lawsuit by the County; Plaintiffs bring federal

claims in addition to their claim for declaratory relief, so there is no indication that Plaintiffs are

using their declaratory judgment claim to unfairly access a federal forum. See Doc. 10, Am. Compl.,

¶¶ 55–57. Third, forum shopping is not at issue, because this federal question claim. Fourth,

possible inequities do not counsel against the Court’s jurisdiction because there is no pending state

court litigation over which this action could gain precedence. Fifth, the current forum is likely

convenient for the parties and witnesses because all of the facts alleged occurred in Dallas County.

Doc. 10, Am. Compl., ¶¶ 20, 21, 48. Sixth, because this Court is already exercising jurisdiction over

Plaintiffs’ other claims, judicial economy and efficiency favor the Court exercising jurisdiction.

Seventh, exercising jurisdiction here would not require the Court “to construe a state judicial decree

involving the same parties and entered by the court before whom the parallel state suit between the

same parties is pending.” Ironshore, 624 F. App’x at 164 (internal quotations omitted).

Since each factor weighs against dismissal, this Court finds it proper to exercise its

jurisdiction over Plaintiffs’ declaratory action. See id. at 166 (finding “the district court abused its

discretion” by dismissing a declaratory judgment action when “[a]ll seven of the Trejo factors

weigh[ed] against dismissal”). Therefore, the Court DENIES the County’s Motion as to Plaintiffs’

claim for declaratory judgment.

D. The Court Grants Plaintiffs Leave to Amend the Complaint.

The Court grants leave for Plaintiffs to amend the § 1983 and Texas constitutional claims

in their Amended Complaint. “[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 unwilling or unable to amend in a manner that will avoid

dismissal.” Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.

2002). District courts give plaintiffs leave to amend their complaints “when justice so requires.” FED.

R. CIV. P. 15(a)(2). This liberal standard, however, is “tempered by the necessary power of a district

court to manage a case.” Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003).

When deciding whether to grant leave to amend, district courts consider the following

factors: “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to

cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and

futility of amendment.” Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir. 1998) (citations and

emphasis omitted). Granting leave to amend a complaint is futile if “the amended complaint would

fail to state a claim upon which relief could be granted.” Stripling v. Jordan Prod. Co., 234 F.3d 863,

873 (5th Cir. 2000).

While Plaintiffs did not request leave to amend their Complaint, considering these factors,

the Court will nevertheless grant Plaintiffs leave to do so. First, leave to amend would not be futile

because the Court finds the Plaintiffs could, with more support, state plausible § 1983 and Texas

constitutional claims. And though Plaintiffs have previously amended their Complaint, their single

amendment does not constitute a repeated failure to cure the deficiencies the Court found here.

Accordingly, the Court grants Plaintiffs leave to amend their Complaint.

IV.

CONCLUSION

For the reasons discussed above, the Court GRANTS IN PART and DENIES IN PART

the County’s Motion to Dismiss (Doc. 12). The Motion is GRANTED as to Plaintiffs’ § 1983 and

Texas Constitutional claims, both of which the Court DISMISSES WITHOUT PREJUDICE. The

Motion is DENIED as to Plaintiffs’ claim for declaratory judgment. Should Plaintiffs elect to file an

amended complaint, they must do so on or before MONDAY, OCTOBER 28, 2024.

SO ORDERED.

SIGNED: October 7, 2024.

NITED S€ATES DISTRICT JUDGE

-20-