Atkinson v. Pustilnik

UNITED STATES DISTRICT COURT October 08, 2025

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

YVETTE S. ATKINSON, §

§

Plaintiff. §

§

V. § CIVIL ACTION NO. 4:22-cv-04315

§

STEPHEN PUSTILNIK, et al., §

§

Defendants. §

OPINION AND ORDER

This case arises out of the tragic death of Simon J. Atkinson

(“Mr. Atkinson”). His widow, Plaintiff Yvette S. Atkinson (“Ms. Atkinson”), alleges

that Fort Bend County Medical Examiner Stephen Pustilnik, M.D. (“Dr. Pustilnik”)

improperly delayed issuing her husband’s final death certificate and then, in

retaliation for Ms. Atkinson’s filing of this lawsuit, falsely classified Mr. Atkinson’s

death as a homicide. Ms. Atkinson brings claims under 42 U.S.C. § 1983 against

Dr. Pustilnik in his individual capacity for First Amendment retaliation; violation

of her equal protection rights; and violation of her procedural and substantive due

process rights.1 Ms. Atkinson advances the same claims against the Fort Bend

Defendants2 under theories of ratification, supervisor liability, and bystander

liability. Ms. Atkinson seeks actual damages, punitive damages, and attorneys’

fees. The Individual Fort Bend Defendants are sued in their individual capacities.3

1 Throughout the Third Amended Complaint, Plaintiff repeatedly refers to “18 U.S.C.

§ 1983,” which is a nonexistent statutory provision.

2 The Fort Bend Defendants are Fort Bend County Judge KP George (“Judge George”)—

incorrectly named by Ms. Atkinson as “J.P. George”—Fort Bend County Commissioners

Vincent Morales (“Morales”), Grady Prestage (“Prestage”), W.A. “Andy” Meyers

(“Meyers”), Dexter L. McCoy (“McCoy”), and Kenneth R. DeMerchant (“DeMerchant”)

(collectively “the Individual Fort Bend Defendants”), and Fort Bend County.

3 Ms. Atkinson specifies that each of the Individual Fort Bend Defendants, except for

McCoy, is sued in his individual capacity. The Third Amended Complaint, the live

pleading in this case, does not indicate whether McCoy is sued in his individual capacity,

Pending before me are two motions to dismiss—one filed by Dr. Pustilnik

and the other filed by the Fort Bend Defendants. See Dkts. 76, 77. Having reviewed

the briefing and applicable law, I grant both motions.

BACKGROUND4

On June 5, 2020, Mr. Atkinson died of a gunshot wound in Sugar Land,

Texas. A forensic pathologist, Dr. William McClain (“Dr. McClain”), “performed an

autopsy within days [of Mr. Atkinson’s death] and found no evidence of foul play.”

Dkt. 75 at 3. The Sugar Land Police Department (“SLPD”) investigated

Mr. Atkinson’s death and concluded that Mr. Atkinson died by suicide. The SLPD’s

investigation included a firearms test using the gun found near Mr. Atkinson’s

body and the ammunition found in Mr. Atkinson’s pocket. SLPD determined

“(1) that the gun found near Mr. Atkinson’s body was the gun that he used to kill

himself and (2) that the ammunition in his pocket matched the fatal bullet.” Id. at

4. Mr. Atkinson’s body was released to his family and cremated.

For Ms. Atkinson, obtaining a final death certificate was important because

she stood to receive $1 million in life insurance benefits. Delayed issuance of

Mr. Atkinson’s final death certificate would, Ms. Atkinson claims, delay her

recovery of insurance proceeds.

Approximately a week after the autopsy, no death certificate had been

issued. Ms. Atkinson’s brother, Steven Sanchez, called Dr. Pustilnik to inquire why

a death certificate had yet to be issued. The conversation allegedly became a

“heated argument.” Id.

official capacity, or both. I will assume for the sake of argument that McCoy is sued in

both his individual and official capacities. Regardless, because Fort Bend County is a

named defendant, an official capacity suit against McCoy is redundant. See Kentucky v.

Graham, 473 U.S. 159, 166 (1985) (“As long as the government entity receives notice and

an opportunity to respond, an official-capacity suit is, in all respects other than name, to

be treated as a suit against the entity.”).

4 This section recounts the allegations set forth in the Third Amended Complaint, the live

pleading.

A few days later, on June 16, 2020, an initial death certificate for

Mr. Atkinson was released, signed by Dr. McClain. The death certificate stated that

both Mr. Atkinson’s cause and manner of death were “Pending Investigation,” and

that autopsy findings were not available to complete the cause of death.5 Dkt. 76-1

at 3. Ms. Atkinson claims that Dr. Pustilnik, upset by his phone conversation with

Sanchez, “retaliated by refusing to list a cause of death on Mr. Atkinson’s death

certificate.” Dkt. 75 at 4–5. A few months later, Sanchez contacted Judge George

on behalf of Ms. Atkinson. Judge George told Sanchez that he could not do

anything because of an ongoing investigation into Mr. Atkinson’s death.

More than a year after Mr. Atkinson died, Dr. Pustilnik convened an inquest

into Mr. Atkinson’s death. Ms. Atkinson alleges that Dr. Pustilnik “ordered [her]

to produce all ammunition in the Atkinson household that had been purchased for

the firearm that Mr. Atkinson used to kill himself, purportedly so

[Dr.] Pustilnik . . . could conduct his own firearms test” on the gun that allegedly

killed Mr. Atkinson. Id. at 6–7. Ms. Atkinson argued to a local Justice of the Peace

that Dr. Pustilnik did not need the ammunition in her house, but the JP ordered

Ms. Atkinson to produce the ammunition. Ms. Atkinson ultimately produced the

ammunition on June 1, 2022.

After the inquest, months passed without any word from Dr. Pustilnik on the

cause and manner of Mr. Atkinson’s death. In October 2022, Ms. Atkinson’s

counsel sent several communications to Fort Bend County officials, complaining

about the delay and threatening litigation. On October 13, 2022, Fort Bend

County’s counsel sent an email to Ms. Atkinson’s counsel promising that

Dr. Pustilnik would soon be issuing an amended death certificate listing the cause

and manner of death.

5 It is important not to confuse cause of death with manner of death. The possible causes

of death are as innumerable as the diseases and conditions that afflict humanity. In

contrast, there are only four manners of death: natural, accidental, suicide, and homicide.

See, e.g., Reliastar Life Ins. Co. v. Thompson, No. M-07-cv-140, 2008 WL 4327259, at *3

(S.D. Tex. Sept. 16, 2008); see also Dkt. 76-1 at 3.

On December 13, 2022, still awaiting Mr. Atkinson’s final death certificate,

Ms. Atkinson filed this lawsuit. On January 19, 2023, Dr. Pustilnik finally issued

an amended death certificate that lists Mr. Atkinson’s cause of death as a gunshot

wound of the head, and his manner of death as homicide. See Dkt. 76-1 at 3. It took

958 days—or 2 years, 7 months, 14 days—for Dr. Pustilnik to determine

Mr. Atkinson’s cause and manner of death. Ms. Atkinson claims that Dr. Pustilnik

falsely classified Mr. Atkinson’s manner of death as homicide in retaliation for

Ms. Atkinson filing this lawsuit.

On April 21, 2023, Dr. Pustilnik and the Fort Bend Defendants filed motions

to dismiss. See Dkts. 27, 28. On May 2, 2024, I issued an opinion and order that

denied Dr. Pustilnik’s motion to dismiss as to Ms. Atkinson’s First Amendment

retaliation claim but granted the motion in all other respects. See Atkinson v.

Pustilnik, No. 4:22-cv-04315, 2024 WL 1937860, at *16 (S.D. Tex. May 2, 2024). I

granted the Fort Bend Defendants’ motion to dismiss as to all claims. See id.

On November 13, 2024, I gave Ms. Atkinson leave to file a third amended

complaint. See Dkt. 64. The Third Amended Complaint is the operative pleading.

See Dkt. 75. Defendants have again moved to dismiss, advancing similar

arguments to those made during the first round of motion to dismiss briefing.

Dr. Pustilnik argues that he is entitled to qualified immunity and insists that he

has not violated a statutory or constitutional right. Even if he did, Dr. Pustilnik

contends that any such right was not clearly established at the time he issued

Mr. Atkinson’s death certificate. The Fort Bend Defendants have also moved to

dismiss, arguing that Ms. Atkinson has failed to state a claim under any theory of

liability: ratification, supervisor liability, or bystander liability. The Individual Fort

Bend Defendants assert that they are also protected by qualified immunity.

LEGAL STANDARDS

A. RULE 12(b)(6)

To avoid early dismissal of a lawsuit, a plaintiff must file a complaint that

provides “a short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). If the plaintiff fails “to state a claim upon

which relief can be granted,” dismissal is appropriate. Fed. R. Civ. P. 12(b)(6).

Overcoming this initial hurdle requires the plaintiff to 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). “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).

This standard is lower than “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). At this stage, I accept “all well-pled facts as true, construing all

reasonable inferences in the complaint in the light most favorable to the plaintiff.”

White v. U.S. Corr., L.L.C., 996 F.3d 302, 306–07 (5th Cir. 2021).

“In ruling on a Rule 12(b)(6) motion, a court generally limits its review to

the face of the pleadings, accepting as true all well-pleaded facts and viewing them

in the light most favorable to the plaintiff.” Tex. Health & Hum. Servs. Comm’n v.

United States, 193 F. Supp. 3d 733, 738 (N.D. Tex. 2016). “A written document that

is attached to a complaint as an exhibit is considered part of the complaint and

may be considered in a 12(b)(6) dismissal proceeding.” Ferrer v. Chevron Corp.,

484 F.3d 776, 780 (5th Cir. 2007). There are also limited categories of documents

outside of the pleadings that I may consider. First, I am permitted “to rely on

documents incorporated into the complaint by reference, and matters of which a

court may take judicial notice.” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333,

338 (5th Cir. 2008) (quotation omitted). Second, I may consider “documents

attached to a motion to dismiss that are referred to in the plaintiff’s complaint and

are central to the plaintiff’s claim.” Sullivan v. Leor Energy, LLC, 600 F.3d 542,

546 (5th Cir. 2010) (quotation omitted). Finally, I “may permissibly refer to

matters of public record” without converting a motion to dismiss into a motion for

summary judgment. Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994).

B. 42 U.S.C. § 1983

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State . . . , 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, shall

be liable to the party injured in an action at law, suit in equity, or other

proper proceeding for redress.

42 U.S.C. § 1983. “Section 1983 is not itself a source of substantive rights, but

merely provides a method for vindicating federal rights elsewhere conferred.”

Albright v. Oliver, 510 U.S. 266, 271 (1994) (quotation omitted).

“To state a claim under § 1983, a plaintiff must (1) allege a violation of a right

secured by the Constitution or laws of the United States and (2) demonstrate that

the alleged deprivation was committed by a person acting under color of state law.”

Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000). Local

governing bodies are not liable under § 1983 based merely on the actions of their

employees. See Valle v. City of Houston, 613 F.3d 536, 541 (5th Cir. 2010). A

plaintiff may sue a local governmental body under § 1983 only where “the action

that is alleged to be unconstitutional implements or executes a policy statement,

ordinance, regulation, or decision officially adopted and promulgated by that

body’s officers.” Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658, 690

(1978). Direct municipal liability under § 1983 requires a plaintiff to identify:

“(1) an official policy (or custom), of which (2) a policymaker can be charged with

actual or constructive knowledge, and (3) a constitutional violation whose moving

force is that policy or custom.” Valle, 613 F.3d at 541–42 (quotation omitted).

C. QUALIFIED IMMUNITY

Government officials sued in their individual capacity under § 1983 are

entitled to qualified immunity, which is “an immunity from suit rather than a mere

defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). “Qualified

immunity protects government officials from civil liability in their individual

capacity to the extent that their conduct does not violate clearly established

statutory or constitutional rights.” Cass v. City of Abilene, 814 F.3d 721, 728 (5th

Cir. 2016). It is a judicially created doctrine designed to avoid “the expenses of

litigation, the diversion of official energy from pressing public issues, and the

deterrence of able citizens from acceptance of public office.” Harlow v. Fitzgerald,

457 U.S. 800, 814 (1982). The doctrine arises from “the danger that fear of being

sued will dampen the ardor of all but the most resolute, or the most irresponsible

public officials, in the unflinching discharge of their duties.” Id. (citation

modified).

To overcome qualified immunity, a plaintiff must allege facts showing:

“(1) that the official violated a statutory or constitutional right, and (2) that the

right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v.

al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow, 457 U.S. at 818). “These steps

may be considered in either order.” Shumpert v. City of Tupelo, 905 F.3d 310, 320

(5th Cir. 2018).

The first prong of the qualified immunity inquiry asks whether the facts

alleged “show the officer’s conduct violated a constitutional right.” Saucier v. Katz,

533 U.S. 194, 201 (2001). If a plaintiff’s allegations, viewed favorably, do not

establish a constitutional violation, no further inquiry is necessary. See id. “To

surmount this barrier at the motion to dismiss stage, the plaintiffs must plead

specific facts that both allow the court to draw the reasonable inference that the

defendant is liable for the harm they have alleged and that defeat a qualified

immunity defense with equal specificity.” Torns v. City of Jackson, 622 F. App’x

414, 416 (5th Cir. 2015) (citation modified).

“The second prong of the qualified-immunity analysis asks whether the right

in question was clearly established at the time of the violation.” Tolan v. Cotton,

572 U.S. 650, 656 (2014) (quotation omitted). Governmental actors are “shielded

from liability for civil damages if their actions did not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.”

Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quotation omitted). “[T]he salient

question . . . is whether the state of the law” at the time of an incident provided

“fair warning” to the defendants “that their alleged [conduct] was

unconstitutional.” Id. at 741. A plaintiff bears a heavy burden on this prong because

a right is clearly established only if relevant precedent “ha[s] placed

the . . . constitutional question beyond debate.” al-Kidd, 563 U.S. at 741.

ANALYSIS

Because every individual defendant asserts qualified immunity, I must

conduct the qualified immunity analysis described above. For each claim, I begin

by ascertaining whether Ms. Atkinson has established the violation of a statutory

or constitutional right.

A. FIRST AMENDMENT RETALIATION

Ms. Atkinson claims that Dr. Pustilnik retaliated against her when, a few

weeks after she filed this lawsuit, Dr. Pustilnik issued a final death certificate

designating Mr. Atkinson’s manner of death as homicide. Ms. Atkinson seeks to

hold Dr. Pustilnik directly liable for this alleged retaliation. She also seeks to hold

the Fort Bend Defendants liable for this alleged retaliation under theories of

ratification, supervisor liability, and bystander liability.

“[T]he First Amendment prohibits not only direct limitations on speech but

also adverse government action against an individual because of her exercise of

First Amendment freedoms.” Colson v. Grohman, 174 F.3d 498, 508 (5th Cir.

1999). To state a claim for First Amendment retaliation, Ms. Atkinson must plead

that “(1) [she] engaged in constitutionally protected activity, (2) the defendants’

actions caused [her] to suffer an injury that would chill a person of ordinary

firmness from continuing to engage in that activity, and (3) the defendants’

adverse actions were substantially motivated against [her] exercise of

constitutionally protected conduct.” Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir.

2002). The second element “requires some showing that [Ms. Atkinson’s] exercise

of free speech has been curtailed.” Id. at 259.

“It is by now well established that access to the courts is protected by the

First Amendment right to petition for redress of grievances.” Wilson v. Thompson,

593 F.2d 1375, 1387 (5th Cir. 1979). Thus, there is no question that Ms. Atkinson

satisfies the first element of her claim—she clearly engaged in a constitutionally

protected activity when she filed this lawsuit. Defendants do not contest that the

first element is satisfied. Nor do Defendants contest that an allegedly falsified

death certificate constitutes an adverse action. Thus, the first and third elements

are not in dispute. Dr. Pustilnik advances a single argument, which the Fort Bend

Defendants have adopted,6 as to why Ms. Atkinson’s First Amendment retaliation

claim fails now, despite previously surviving a motion to dismiss: Ms. Atkinson

fails to allege the second element—that her speech was curtailed—even though she

advanced such an allegation in previous complaints.

In ruling on Dr. Pustilnik’s first motion to dismiss, I found that Ms. Atkinson

alleged curtailment because she pleaded “that ‘if another family member dies in

Fort Bend County (God forbid), [she] now knows that she had better not make any

complaint to or about [Dr.] Pustilnik lest he retaliate again.’” Atkinson, 2024 WL

1937860, at *8 (quoting Dkt. 21 at 17). Ms. Atkinson inexplicably omitted this

allegation from the operative pleading. Dr. Pustilnik argues that this omission is

fatal to Ms. Atkinson’s First Amendment retaliation claim. Ms. Atkinson retorts

that I have already permitted her First Amendment claim to proceed; she “has not

waived” that claim; and “[Dr.] Pustilnik is well aware of the prior pleadings and the

Court’s holding in the [May 2, 2024] Opinion and Order.” Dkt. 78 at 6 (citation

modified). None of Ms. Atkinson’s arguments are availing.

A prior “complaint, once voluntarily amended, cannot be used to cure the

defects in an amended complaint.” Boelens v. Redman Homes, Inc., 759 F.2d 504,

508 n.3 (5th Cir. 1985). Ms. Atkinson argues that her First Amendment retaliation

“claim did not become less plausible on its face because she did not expressly

incorporate by reference each and every word of the prior pleadings.” Dkt. 78 at 7.

6 “The ‘Fort Bend Defendants’ incorporate by reference and adopt as if fully stated

verbatim the statements, arguments and authorities set forth in Dr. Pustilnik’s Motion to

Dismiss Plaintiff’s Third Amended Complaint Under Rule 12(b)(6).” Dkt. 77 at 1.

But it did. Fifth Circuit precedent clearly establishes that “[a]n amended complaint

supersedes the original complaint and renders it of no legal effect unless the

amended complaint specifically refers to and adopts or incorporates by reference

the earlier pleading.” King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). Because

Ms. Atkinson did not specifically refer to and adopt or incorporate by reference her

earlier pleadings, I cannot consider them.

From the Defendants’ perspective, Ms. Atkinson’s “withdrawal, in [her

Third] Amended Complaint, of [her] previous factual allegations [concerning

curtailment of speech] could have been not due to a mistake . . . but due to . . . the

duties imposed on [her] counsel pursuant to Rule 11 of the Federal Rules of Civil

Procedure.” Jones v. McMahon, No. 5:98-cv-0374, 2007 WL 2027910, at *7, 9

(N.D.N.Y. July 11, 2007) (refusing to consider superseded allegations from an

earlier complaint, stating that “The Court cannot replead Plaintiffs’ case for them.”

(citation modified)). Dr. Pustilnik advances such an argument, contending that

Ms. Atkinson’s “insistence not to include these necessary allegations is evidence

that the [retaliation] claim: (i) lacks evidentiary support and (ii) will not have

evidentiary support after a reasonable opportunity for further investigation or

discovery. Fed. R. Civ. P. 11(b)(3).” Dkt. 80 at 5.

It is not for me to speculate why Ms. Atkinson omitted this necessary

allegation from her amended complaint. What is important is that

(1) Ms. Atkinson is not proceeding pro se—she is represented by qualified counsel;

(2) she has been afforded three opportunities to amend her complaint, including

after a motion to dismiss in which I explicitly credited her allegation of curtailment

as a reason why her retaliation claim should survive; (3) despite this, she failed to

allege curtailment in the operative pleading; and (4) she failed to adopt or

incorporate by reference her earlier pleadings, which have been superseded.

Because Ms. Atkinson does not allege that Dr. Pustilnik’s alleged actions

curtailed her speech, she fails to state a First Amendment retaliation claim.

Without an underlying constitutional violation, Dr. Pustilnik cannot be found

liable for First Amendment retaliation; nor can the Fort Bend Defendants be held

liable for Dr. Pustilnik’s actions. See Pena v. Givens, 637 F. App’x 775, 785 (5th Cir.

2015) (“Supervisory liability requires a constitutional violation by a subordinate.”).

In sum, Ms. Atkinson’s First Amendment retaliation claims against Defendants

must be dismissed because Ms. Atkinson “fails to plead that the Defendants’

retaliatory conduct actually curtailed [her] speech.” McLin v. Ard, 866 F.3d 682,

696 (5th Cir. 2017).

B. VIOLATION OF EQUAL PROTECTION RIGHTS

Ms. Atkinson claims that Defendants violated her right to equal protection.

“An equal protection claim depends on either identifying a class or showing that

the aggrieved party is a ‘class of one.’” Gil Ramirez Grp., L.L.C. v. Houston Indep.

Sch. Dist., 786 F.3d 400, 419 (5th Cir. 2015) (citation modified). It is unclear which

of these avenues Ms. Atkinson is pursuing. On the one hand, Ms. Atkinson asserts

that “Dr. Pustilnik classified Mr. Atkinson’s death a homicide” because “he was

motivated by ethnic, racial and/or gender animus.” Dkt. 75 at 14. That suggests

Ms. Atkinson is claiming to be a member of a class. Yet, Ms. Atkinson also alleges

that Dr. Pustilnik “singled [her] out” and treated her differently from “other

County residents whose next-of-kin died from a gunshot wounds [sic] and had a

property interest in timely issued and accurate death certificates.” Id. at 16, 18.

That sounds like a “class of one.” There is no need, however, to determine whether

Ms. Atkinson is alleging an equal protection violation based on her membership in

a protected class or as a “class of one.” Her equal protection claim fails either way.

1. Class-of-One Claim

“The Equal Protection Clause [of the Fourteenth Amendment] directs that

persons similarly situated should be treated alike.” Williams v. Bramer, 180 F.3d

699, 705 (5th Cir. 1999). In Village of Willowbrook v. Olech, the Supreme Court

reiterated that equal protection claims based on a “class of one” are cognizable.

528 U.S. 562, 564 (2000). To state such a claim, the plaintiff must sufficiently

allege that “(1) he or she was treated differently from others similarly situated and

(2) there was no rational basis for the disparate treatment.” Stotter v. Univ. of Tex.

at San Antonio, 508 F.3d 812, 824 (5th Cir. 2007).

Ms. Atkinson has failed to sufficiently allege that she was treated differently

than other similarly situated individuals. The Fifth Circuit has explained that this

inquiry is highly fact-specific:

The legal requirement that a class-of-one plaintiff’s

comparators be similarly situated is not a requirement susceptible to

rigid, mechanical application—there is no precise formula to

determine whether an individual is similarly situated to comparators.

Several of our sister circuits, confronting this issue, have stated that,

in order to be similarly situated, comparators must be prima facie

identical in all relevant aspects. But this statement simply raises new

questions. What aspects of a particular case are relevant? What is

relevant in one case might not be relevant in another, for example, and

the degree to which others are viewed as similarly situated necessarily

will depend substantially on the facts and context of the case. In short,

the inquiry is case-specific and requires us to consider the full variety

of factors than an objectively reasonable decisionmaker would have

found relevant in making the challenged decision.

Lindquist v. City of Pasadena, 669 F.3d 225, 233–34 (5th Cir. 2012) (citation

modified).

In the operative pleading, Ms. Atkinson discusses the number of days

between each homicide and suicide that took place in Sugar Land in calendar year

2022—the year Mr. Atkinson died—and the issuance of a final death certificate for

those decedents. Ms. Atkinson discusses twelve of these decedents by name,

including the circumstances of their death. See Dkt. 75 at 16–18. This data shows

that the time between Mr. Atkinson’s death and the issuance of his final death

certificate was 679 more days than “the second-longest period for issuance of a

death certificate since 2020.” Id. at 16. Yet, Ms. Atkinson never explains how

decedents can be similarly situated comparators to her, a living person. Indeed,

Ms. Atkinson claims to be comparing herself to “County residents whose next-of-

kin died from a gunshot wounds [sic] and had a property interest in timely issued

and accurate death certificates.” Id. at 18. Yet, Ms. Atkinson does not identify any

County residents or discuss any of the survivors of any of these decedents. Rather,

she identifies only people who died in Sugar Land. The dead are not Ms. Atkinson’s

comparators. It is Ms. Atkinson who is asserting an equal protection claim, not her

deceased husband. Ms. Atkinson’s failure to identify individuals similarly situated

to her dooms her claim.

But there is another, simpler reason that Ms. Atkinson’s class-of-one claim

fails. “The class-of-one rationale does not apply to ‘forms of state action which by

their nature involve discretionary decision-making based on a vast array of

subjective, individualized assessments.’” Gil Ramirez Grp., L.L.C. v. Houston

Indep. Sch. Dist., 786 F.3d 400, 419 (5th Cir. 2015) (quoting Engquist v. Or. Dep’t

of Agr., 553 U.S. 591, 603 (2008) (citation modified)). Courts should be “wary of

turning even quotidian exercises of government discretion into constitutional

causes.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011)

(quotation omitted). As the Tenth Circuit Court of Appeals has explained:

These concerns are magnified with challenges to low-level

government decision-making, which often involves a great deal of

discretion. The latitude afforded police officers, IRS agents, university

administrators, zoning officials, and other, similar government actors

necessarily results in a sizeable amount of random variation in

outcome. If even innocuous inconsistencies gave rise to equal

protection litigation, government action would be paralyzed.

Id. at 1216–17.

In Engquist, the Supreme Court held that class-of-one equal protection

claims are not cognizable in the context of public employment. See 553 U.S. at 609.

The Fifth Circuit has since extended that holding to “a city’s decision to purchase

services from private companies”; 7 the state’s decision to re-test pentobarbital for

some prisoners sentenced to death but not others;8 and a city’s decision to revoke

a permit.9 District courts within the Fifth Circuit have found these precedents to

7 Integrity Collision Ctr. v. City of Fulshear, 837 F.3d 581, 587 (5th Cir. 2016).

8 See Wood v. Collier, 836 F.3d 534, 541 (5th Cir. 2016).

9 See Rountree v. Dyson, 892 F.3d 681, 684 (5th Cir. 2018).

extend to a wide range of prison officials’ decisions;10 officials’ decisions to arrest,

incarcerate, search, or prosecute an individual;11 a city’s decision to deny a

plaintiff’s request to initiate a review process for removal of a statue;12 the state’s

decision to subject a public school official to a recall vote;13 a sheriff’s decision to

remove someone from the bail bond writing list;14 and the decision to impose a

coaching suspension.15 Other circuits have made analogous determinations. For

example, the Eighth Circuit has held that “while a police officer’s investigative

decisions remain subject to traditional class-based equal protection analysis, they

may not be attacked in a class-of-one equal protection claim.” Flowers v. City of

Minneapolis, 558 F.3d 794, 799–800 (8th Cir. 2009). If a police officer’s

investigative decisions cannot be attacked in a class-of-one claim, I do not see how

an attack on a medical examiner’s investigative decisions should fare any better.

Admittedly, I have found no cases addressing whether class-of-one claims

are available in the context of challenging a medical examiner’s decisions.16 Even

10 See Striz v. Collier, No. 3:18-cv-202, 2020 WL 7868102, at *13 (S.D. Tex. Nov. 24,

2020) (Brown, J.) (decision to confine inmate to administrative segregation), aff’d, No.

20-40878, 2022 WL 1421834 (5th Cir. May 5, 2022); Milton v. Smith, No. CV 19-0214,

2019 WL 1852688, at *5 (W.D. La. Apr. 10, 2019) (decision to grant or deny work release);

Billiot v. Roche, No. CV 20-61, 2021 WL 7906831, at *2 (M.D. La. Dec. 29, 2021)

(disciplinary or parole proceedings).

11 See Hartman v. Walker, No. 1:13-cv-355, 2015 WL 5470261, at *21–22 (E.D. Tex. Sept.

16, 2015), aff’d, 685 F. App’x. 366 (5th Cir. 2017).

12 See Monumental Task Comm., Inc. v. Foxx, No. 16-12495, 2016 WL 5780194, at *6

(E.D. La. Oct. 4, 2016).

13 See Smith v. N. Bolivar Sch. Dist., No. 2:07-cv-51, 2009 WL 10675322, at *3 (N.D. Miss.

Jan. 30, 2009).

14 See Morgan v. Hamp, No. 3:17-cv-102, 2018 WL 2422322, at *3 (N.D. Miss. May 29,

2018).

15 See Burkhart v. Univ. Interscholastic League, No. 1:22-cv-1026, 2023 WL 2940026, at

*7 (W.D. Tex. Apr. 13, 2023).

16 I have struggled to locate a case like this case. Most cases that mention medical

examiners and death certificates concern either evidentiary errors at trial or issues with

the Confrontation Clause—not § 1983 claims against a medical examiner for civil rights

violations. This fact suggests that, even if a class-of-one claim were available in this

context, the individual defendants would likely be entitled to qualified immunity.

so, I am confident that, if confronted with the question, the Fifth Circuit will hold

that the discretionary decision to classify a decedent’s manner of death has no

“clear standard against which departures, even for a single plaintiff, [may] be

readily assessed.” Integrity, 837 F.3d at 587. Thus, a class-of-one equal protection

claim is not cognizable in the context of challenging medical examiner’s decisions

regarding the issuance of death certificates. For this reason, Ms. Atkinson’s class-

of-one equal protection claim against every defendant must be dismissed for

failure to state a claim.

2. Disparate Treatment Equal Protection Claim

To the extent Ms. Atkinson is not advancing a class-of-one claim but a claim

based on her membership in some protected class, that claim also fails.

“To establish discriminatory intent, a plaintiff must show that the decision

maker singled out a particular group for disparate treatment and selected his

course of action at least in part for the purpose of causing its adverse effect on an

identifiable group.” Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 412 (5th

Cir. 2015) (quotation omitted). “Allegations of discriminatory intent that are

merely conclusory, without reference to specific facts, will not suffice.” Jd. (citation

modified). But conclusory allegations are all that Ms. Atkinson has advanced.

These are the only allegations in the operative pleading that pertain to

discriminatory intent:

e “Plaintiff is a woman of Mexican origin whose maiden name is

Sanchez.”

e “Dr. Pustilnik knows that Plaintiff is of Mexican origin (her

maiden name is Sanchez, which is also her brother’s last name)

and displayed vicious and unbridled animus against her as a

result of her ethnic background.”

° “[Dr. Pustilnik] was motivated by ethnic, racial and/or gender

animus against Plaintiff.”

e “In addition, there is prima facie evidence that Dr. Pustilnik

was animated by ethnic animus against Plaintiff and his

violation of Plaintiffs equal protection rights is therefore

subject to strict scrutiny.”

15

e “The County Defendants had months to step in and exercise the

power they had over Dr. Pustilnik to cause a death certificate to

be issued in a non-discriminatory manner consistent with the

ordinary length of time for the issuance of a death certificate,

without an irrational and duplicative firearms study conducted

by a medical doctor and without bias against a resident of Fort

Bend County of Mexican descent.”

Dkt. 75 at 2, 7, 14, 34, 38. Nothing about these allegations suggests discriminatory

intent. “Allegations that are merely conclusory, without reference to specific facts,

will not suffice.” Priester v. Lowndes County, 354 F.3d 414, 420 (5th Cir. 2004).

Accordingly, to the extent that Ms. Atkinson’s equal protection claim is based upon

her membership in a protected class, that claim must be dismissed as to all

defendants for failure to state a claim.

C. VIOLATION OF PROCEDURAL AND SUBSTANTIVE DUE PROCESS RIGHTS

Ms. Atkinson next claims that Dr. Pustilnik violated her procedural and

substantive due process rights when he failed to timely and accurately issue

Mr. Atkinson’s death certificate. In addition to Dr. Pustilnik’s alleged direct

liability, Ms. Atkinson seeks to hold the Fort Bend Defendants liable for these

alleged due process violations under theories of ratification, supervisor liability,

and bystander liability.

The Fourteenth Amendment provides that no state shall deprive any person

of “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV,

§ 1. The Due Process Clause embodies two “distinct” concepts: procedural due

process and substantive due process. Cleveland Bd. of Educ. v. Loudermill, 470

U.S. 532, 541 (1985). “Procedural due process requires the government to follow

appropriate procedures before it deprives a person of an interest in life, liberty, or

property; substantive due process ensures that, regardless of the fairness of the

procedures used, the government does not use its power for oppressive purposes.”

Patterson v. Def. POW/MIA Acct. Agency, 398 F. Supp. 3d 102, 116 (W.D. Tex.

2019) (citing Daniels v. Williams, 474 U.S. 327, 331 (1986)). “In other words,

procedural due process guarantees that a state proceeding which results in a

16

deprivation of property is fair, while substantive due process ensures that such

state action is not arbitrary and capricious.” Id. (quotation omitted). To prevail on

either claim, Ms. Atkinson must establish a protected interest. Here, Ms. Atkinson

claims a property interest “in the timely and accurate issuance of a death

certificate.” Dkt. 75 at 27.

“[F]or a person to have a property interest within the ambit of the

Fourteenth Amendment, he ‘must have more than an abstract need or desire for it.

He must have more than a unilateral expectation of it. He must, instead, have a

legitimate claim of entitlement to it.’” Blackburn v. City of Marshall, 42 F.3d 925,

936 (5th Cir. 1995) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,

577 (1972)). “Property interests are not created by the Constitution; rather, they

stem from independent sources such as state statutes, local ordinances, existing

rules, contractual provisions, or mutually explicit understandings.” Blackburn, 42

F.3d at 936–37. But “the sufficiency of the claim of entitlement must be decided by

reference to state law.” Bishop v. Wood, 426 U.S. 341, 344 (1976).

Ms. Atkinson contends, without reference to any state law, that she has

“property rights in the timely and accurate issuance of a death certificate.” Dkt. 75

at 27. Dr. Pustilnik counters that “[t]here is no constitutional right to have access

to particular government information.” Dkt. 80 at 7 (quoting Houchins v. KQED,

Inc., 438 U.S. 1, 14 (1978)). Houchins concerned “whether the news media have a

constitutional right of access to a county jail, over and above that of other persons,

to interview inmates and make sound recordings, films, and photographs for

publication and broadcasting by newspapers, radio, and television.” 438 U.S. at 3.

Houchins did not refer to state law or property rights—in fact, the word “property”

does not even appear in the Houchins opinion, concurrence, or dissent—and is

readily distinguishable from the case at bar. Although the parties have been of little

assistance, I have no trouble concluding that Texas state law vests Ms. Atkinson

with a property interest in Mr. Atkinson’s physical death certificate.

The Texas Health and Safety Code provides that “the state registrar shall

supply to a properly qualified applicant, on request, a certified copy of a record, or

part of a record, of a birth, death, or fetal death registered under this title.” Tex.

Health & Safety Code Ann. § 191.051(a). As Mr. Atkinson’s “immediate family

member” by marriage, Ms. Atkinson is a properly qualified applicant to whom the

state registrar must supply a certified copy of Mr. Atkinson’s death certificate. 25

Tex. Admin. Code § 181.1(21). Thus, Texas state law grants Ms. Atkinson a property

right in Mr. Atkinson’s death certificate. Yet, Ms. Atkinson has had access to a

physical death certificate since June 16, 2020, when Dr. McClain issued the initial

death certificate. See Dkt. 76-1 at 3. To the extent Ms. Atkinson claims that she was

deprived of her property interest in a physical death certificate, that claim fails on

its face.

Beyond the physical death certificate itself, Ms. Atkinson asserts a property

interest in “the timely and accurate issuance of a death certificate.” Dkt. 75 at 27.

Ms. Atkinson does not, however, in the operative pleading or her response to the

motion to dismiss, point me to any state law that creates such a property interest.

See Blackburn, 42 F.3d at 936–37. The few Texas cases I have found where

plaintiffs seek mandamus “to compel the medical examiner to change the official

cause of death” have uniformly held that such a decision is discretionary and not

subject to mandamus relief. Erazo v. Sanchez, 502 S.W.3d 894, 900 n.4 (Tex.

App.—Houston [14th Dist.] 2016, no pet.) (citing Lauer v. Travis Cnty. Med.

Examiners, No. 13-13-00610-CV, 2014 WL 4402233, at *2 (Tex. App.—Corpus

Christi–Edinburg Sept. 2, 2014, no pet.)). In other words, a medical examiner’s

“conclusion as to manner of death . . . is an opinion reached through the exercise

of discretion.” Wallbro v. Nolte, 511 P.3d 348, 355 (N.M. Ct. App. 2021).

In Texas, “[c]ourts are split as to whether findings such as ‘suicide’ or

‘accident’ in a death certificate are facts or opinions.” Tex. Workers’ Comp.

Comm’n v. Wausau Underwriters Ins., 127 S.W.3d 50, 60 n.9 (Tex. App.—

Houston [1st Dist.] 2003, pet. denied) (collecting cases from Texas state courts and

the Fifth Circuit). But, as with the death certificate in Wallbro, Mr. Atkinson’s

death certificate states: “On the basis of examination, and/or investigation, in my

opinion, death occurred at the time, date and place, and due to the cause(s) and

manner stated.” Dkt. 76-1 at 3 (emphasis added). I cannot fathom the Fifth Circuit

holding that anyone has a property interest in an opinion. See, e.g., Cantu v. Austin

Police Dep’t, No. 1:21-cv-00084, 2021 WL 5599648, at *11 (W.D. Tex. Nov. 30,

2021) (“Plaintiffs have not stated a claim for a fundamental interest in a forensic

death investigation carried out in the manner they prefer and have not alleged any

property interest relating to [the decedent]’s autopsy that would support a due

process violation.”). Because Ms. Atkinson did not establish a constitutionally

protected property interest, she cannot state a due process claim against

Defendants.

CONCLUSION

Because Ms. Atkinson has failed to state any constitutional violation against

any defendant, Dr. Pustilnik’s motion to dismiss (Dkt. 76) and the Fort Bend

Defendants’ motion to dismiss (Dkt. 77) are granted. This case is dismissed.

The pending motion to quash (Dkt. 95) is denied as moot. I will issue a final

judgment separately.

SIGNED this ___ day of October 2025.

______________________________

ANDREW M. EDISON

UNITED STATES MAGISTRATE JUDGE