Banda v. City of McAllen, TX

Case: 24-40508 Document: 74-1 Page: 1 Date Filed: 11/04/2025

United States Court of Appeals

Fifth Circuit

United States Court of Appeals November

FILED

4, 2025

for the Fifth Circuit Lyle W. Cayce

____________ Clerk

No. 24-40508

____________

Cynthia Banda, as Representative of the Estate of Melissa

Banda,

Plaintiff—Appellant,

versus

City of McAllen, Texas,

Defendant—Appellee.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:23-CV-341

______________________________

Before Smith, Stewart, and Ramirez, Circuit Judges.

Per Curiam: *

After a tragic incident at the hands of Melissa Banda’s ex-husband,

Banda’s estate (“Banda”) brought suit against the City of McAllen, Texas

(the “City”), alleging a Monell 1 gender-based equal protection claim. The

City removed the suit to federal court on the basis of federal question

jurisdiction, where the district court ultimately dismissed Banda’s complaint

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

1

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

Case: 24-40508 Document: 74-1 Page: 2 Date Filed: 11/04/2025

No. 24-40508

for failure to state a claim and denied her leave to amend. Because the City

did not waive its right of removal, and because Banda’s fifth amended

complaint failed to state a plausible equal protection claim, we AFFIRM.

I

A

On November 7, 2019, Melissa Banda filed for divorce from, and a

temporary restraining order against, her then-husband Richard Ford, Jr. 2 In

the months that followed, Banda made repeated complaints to the McAllen

Police Department about physical abuse and stalking by Ford. This included

complaints that Ford: was on his way to her home after being served with

divorce papers (November 21, 2019); physically assaulted her (February 28,

2020); violated Banda’s protective orders (April 18, 2020, and June 30,

2020); watched and stalked her (June 8, 2020, and July 7, 2020);

appropriated her name and impersonated her online (July 7 and 20, 2020);

repeatedly called her cell phone (July 17, 2020); and took a vehicle from her

home (August 5, 2020). As a result of these incidents, Ford was arrested only

one time, on February 29, 2020, and was released the following day. On

August 6, 2020, Ford kidnapped and murdered Banda. Ford was tried, found

guilty of capital murder, and sentenced to life imprisonment without the

possibility of parole.

B

Banda filed suit in the 476th District Court in Hidalgo County, Texas,

alleging a wrongful death claim, a survival action, and a claim under the Texas

Tort Claims Act (“TTCA”). She later filed a first amended petition, which

_____________________

2

Because this appeal is presented to the court at the Rule 12(b)(6) stage, we accept

all non-conclusory factual allegations in the complaint as true. Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).

2

Case: 24-40508 Document: 74-1 Page: 3 Date Filed: 11/04/2025

No. 24-40508

removed the survival action. In response to the first amended petition, the

City filed a plea to the jurisdiction, arguing that it retained governmental

immunity against Banda’s claims. The district court scheduled a hearing

regarding the plea to the jurisdiction.

Approximately twenty-nine minutes before the scheduled hearing,

Banda filed a second amended petition deleting the TTCA claims, adding

back the survival action, and alleging a gender-based equal protection Monell

claim under 42 U.S.C. § 1983. At the hearing, the City asked the court to rule

on the plea to the jurisdiction by holding that it was immune from suit under

the TTCA. Banda argued that the plea to the jurisdiction was moot because

the first amended petition was no longer operative. Banda acknowledged that

because she pleaded a federal claim, the City had thirty days to remove the

case to federal court. The court mooted the plea to jurisdiction without

prejudice to refiling a plea or removal. In the week that followed, Banda filed

third and fourth amended petitions.

C

On October 5, 2023, the City removed the suit to federal court based

on federal question jurisdiction. Under the operative complaint, the only

remaining claim was that for municipal liability under § 1983 based on the

City’s law enforcement policies, practices, and customs regarding domestic

assault and abuse. Banda filed a motion to remand, arguing that the City

waived its right to removal by participating in the state court hearing and

asking that court to rule on its plea to the jurisdiction regarding her first

amended petition. The district court denied Banda’s motion to remand.

The City filed a motion to dismiss for failure to state a claim pursuant

to Rule 12(b)(6), arguing that Banda’s remaining § 1983 claim was barred by

the statute of limitations and that Banda alleged insufficient facts to state a

claim. Banda opposed the motion to dismiss, arguing that her claims were not

3

Case: 24-40508 Document: 74-1 Page: 4 Date Filed: 11/04/2025

No. 24-40508

barred, that she pleaded sufficient facts, and alternatively requesting leave to

amend if her complaint was found deficient. The court rejected the City’s

argument regarding the statute of limitations. However, with regard to the

City’s argument that Banda alleged insufficient facts, the court denied the

motion and granted Banda leave to amend her complaint. The court noted

that Banda’s amended complaint “shall set forth all of the relevant facts that

she believes support her Monell claim.”

Banda subsequently filed a fifth amended complaint and the City filed

a second motion to dismiss that complaint. Banda opposed the motion to

dismiss, arguing that she pleaded sufficient facts and again alternatively

requesting lave to amend if her complaint was found deficient. The court

determined that Banda’s complaint did not state a claim, denied her

alternative request for leave to amend, and entered judgment for the City.

Banda timely appealed. This court has jurisdiction under 28 U.S.C. § 1291

because the district court entered a final judgment disposing of all claims.

II

We first consider whether this suit was properly removed to federal

court. In doing so, we review the district court’s denial of the motion to

remand de novo. Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 182 (5th Cir.

2018).

A case can be removed to federal court based on federal question

jurisdiction where it raises a predominating “claim arising under the

Constitution, laws, or treaties of the United States.” 28 U.S.C. §§ 1441(c),

1331. After removal, a case may be remanded to state court based on (1) lack

of subject matter jurisdiction or (2) a defect. 28 U.S.C. § 1447(c). “The

removing party bears the burden of showing that federal jurisdiction exists

and that removal was proper.” Manguno v. Prudential Prop. & Cas. Ins. Co.,

4

Case: 24-40508 Document: 74-1 Page: 5 Date Filed: 11/04/2025

No. 24-40508

276 F.3d 720, 723 (5th Cir. 2002) (citing De Aguilar v. Boeing Co., 47 F.3d

1404, 1408 (5th Cir. 1995)).

A defendant can waive their right to removal. However, “[w]aiver, in

our circuit, is no casual affair.” Abraham Watkins Nichols Agosto Aziz &

Stogner v. Festeryga, No. 23-20337, 2025 WL 2621301, at *3 (5th Cir. Sept. 11,

2025). As this court recently had the opportunity to explain:

A defendant’s intent to remain in state court must . . . “be clear

and unequivocal,” and “the right of removal is not lost by

action in the state court short of proceeding to an adjudication

on the merits.” In practical terms, waiver occurs only when a

defendant has “invok[ed] the jurisdiction of the state court in

resolving the issues presented by the original complaint.”

Anything less—mere procedural skirmishing—does not

suffice.

Id. (alteration in original) (footnotes omitted).

Banda argues that the City’s statements during the state court hearing

on its plea to the jurisdiction are sufficient to constitute a waiver. Banda

points out that the City asked the court to rule on its plea to the jurisdiction

and hold that the City was immune from Banda’s TTCA claims. She

characterizes this as “substantial defensive action.” 3 Banda suggests that in

order to preserve its right to remove to federal court, the City would have had

to abandon its plea to the jurisdiction. In so arguing, Banda relies heavily on

Schell v. Food Machinery Corp., 87 F.2d 385, 388 (5th Cir. 1937), cert. denied,

300 U.S. 679 (1937), and Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir.

1986).

_____________________

3

Banda also argues that the City “urged” the court to “dismiss Banda’s federal

municipal liability claim with prejudice.” However, a plain reading of the transcript makes

clear that the City made no such request.

5

Case: 24-40508 Document: 74-1 Page: 6 Date Filed: 11/04/2025

No. 24-40508

Banda’s arguments are unpersuasive. The City’s actions and

statements were certainly not a “clear and unequivocal” waiver of its right

to removal. See Festeryga, 2025 WL 2621301, at *3. In participating in the

state court hearing, the City asked only that the state court accept its plea to

the jurisdiction as to Banda’s state court claims—a reasonable request,

particularly given that Banda’s amended petition was filed less than thirty

minute before that hearing. And notably, that plea to the jurisdiction was

relevant to Banda’s then-nonoperative complaint. During the hearing, the

City, the judge, and Banda’s counsel discussed that given the addition of the

federal claim, the suit had become removable to federal court.

The cases on which Banda relies are inapposite. In Brown, the

defendants “tested state-court waters for four years,” during which period

“[t]hey filed answers, amended answers, motions of various kinds, third

party demands, cross claims, amended cross claims, and participated in

discovery and depositions.” 792 F.2d at 481–82. In Schell, the defendant

similarly filed motions to dismiss and to vacate a temporary injunction,

participated in a hearing arguing the modification of a temporary injunction,

and filed an answer and cross-complaint, among other actions. 87 F.2d at

387–88.

The Schell and Brown defendants’ lengthy, defensive actions are

clearly distinguishable from the City’s request for a state court finding that it

was immune to a claim that had since been removed from Banda’s petition.

Cf. Tedford v. Warner-Lambert Co., 327 F.3d 423, 428 (5th Cir. 2003)

(holding that removal was proper even where the defendant had “mov[ed] to

transfer venue . . . [,] mov[ed] for entry of a confidentiality order, . . . mov[ed]

to consolidate under Texas Rule of Civil Procedure 11, and . . . fil[ed] special

exceptions” in state court). In short, “[a] waiver of the right to remove must

be clear and unequivocal; the right to removal is not lost by participating in

state court proceedings short of seeking an adjudication on the merits.”

6

Case: 24-40508 Document: 74-1 Page: 7 Date Filed: 11/04/2025

No. 24-40508

Tedford, 327 F.3d at 428. Accordingly, we hold that the district court did not

err in allowing removal of Banda’s suit.

III

A

We next consider the merits of Banda’s claim, first determining

whether the district court erred in dismissing her gender-based equal

protection claim under 42 U.S.C. § 1983.

A district court’s order on a motion to dismiss is reviewed de novo.

McKay v. LaCroix, 117 F.4th 741, 746 (5th Cir. 2024) (citing Petrobras Am.,

Inc. v. Samsung Heavy Indus. Co., Ltd., 9 F.4th 247, 253 (5th Cir. 2021)). “To

survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough

facts to state a claim to relief that is plausible on its face.’” In re Katrina Canal

Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). In evaluating a Rule 12(b)(6) motion, a

court must accept all non-conclusory factual allegations in the complaint as

true, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and draw all inferences in

favor of the nonmoving party, Kelson v. Clark, 1 F.4th 411, 416 (5th Cir. 2021).

A theory of municipal liability under § 1983 requires “proof of three

elements.” Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).

Those three elements are: “a policymaker; an official policy; and a violation

of constitutional rights whose ‘moving force’ is the policy or custom.” 4 Id.

at 578 (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). This

court has held that “law enforcement policies, practices, and customs toward

_____________________

4

As explained infra, Banda does not plead facts sufficient to show that there was

an official policy nor that the policy was the moving force behind her injury. Thus, we do

not consider the parties’ arguments regarding whether Banda properly identified a

policymaker.

7

Case: 24-40508 Document: 74-1 Page: 8 Date Filed: 11/04/2025

No. 24-40508

domestic assault and abuse cases” can form the basis for a gender-based equal

protection claim. Shipp v. McMahon (Shipp), 234 F.3d 907, 914 (5th Cir.

2000), overruled in part on other grounds by McClendon v. City of Columbia, 305

F.3d 314 (5th Cir. 2002) (en banc) (per curiam). In Shipp, we explained that

to state such a claim

a plaintiff must show: (1) the existence of a policy, practice, or

custom of law enforcement to provide less protection to

victims of domestic assault than to victims of other assaults;

(2) that discrimination against women was a motivating factor;

and (3) that the plaintiff was injured by the policy, custom, or

practice.

Id.

Banda argues that the district court erred in holding that she failed to

plead sufficient facts to establish each of the Shipp elements. Banda points to

allegations in her complaint that she regularly called the McAllen Police

Department over a period of months about Ford’s harassment, arguing that

those facts constitute a pattern sufficient to satisfy Shipp’s first element.

Alternatively, she contends that even if those requests for help were

insufficient to form a pattern, there was at least one incident (Banda’s

kidnapping and death) that was so severe to be considered a “policy.” Banda

argues that she pleaded the second element through her allegations that

“[d]iscrimination against women and/or Hispanic women was a motivating

factor” for the custom, and that the City provided little protection to women

experiencing domestic violence.

As to the first Shipp element, it is true that Banda alleged a series of

events that are likely sufficient to establish a pattern or practice, that is,

reported incidents of domestic violence that did not result in arrest or other

action. However, Banda did not provide any facts to establish that victims of

domestic violence received “less protection . . . than . . . victims of other

8

Case: 24-40508 Document: 74-1 Page: 9 Date Filed: 11/04/2025

No. 24-40508

assaults.” Shipp, 234 F.3d at 914 (emphasis added). This is fatal to her claim.

As the magistrate judge explained in recommending dismissal, “Banda must

show that the police department’s policy was to treat victims of domestic

assault less favorably than victims of other types of assault. There are no facts

alleged by which the court can compare the McAllen Police Department’s

treatment of domestic assault to its treatment of other assaults.” In other

words, nowhere in Banda’s complaint does she provide facts that make the

showing required by Shipp’s first element other than her bare assertion that

it is so. But we need not accept conclusory statements as true. Iqbal instructs

that “[t]hreadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.” 556 U.S. at 678. Thus, Banda

fails to satisfy the first element of Shipp.

For similar reasons, Banda’s pleadings fail to establish the second

Shipp element. The only fact Banda pleaded to show invidious discrimination

was her conclusory assertion that discrimination was the McAllen Police

Department’s motivating factor for its inaction. But again, conclusory

statements are insufficient to meet Banda’s burden as to the second Shipp

element. Banda provides no facts to establish the City’s discriminatory

intent. 5 See, e.g., Beltran v. City of El Paso, 367 F.3d 299, 305 (5th Cir. 2004).

Because Banda failed to state a gender-based equal protection claim

under Monell, the district court did not err in granting dismissal.

_____________________

5

Banda argues that the court should compare this case to Cook v. City of Dallas,

No. 12-CV-3788, 2015 WL 13851115, at *4 (N.D. Tex. Oct. 14, 2015). But that district court

case does not provide her with any support. The plaintiffs there pleaded more facts as to

both the first and second Shipp elements, and the district court ultimately concluded

without explanation that the plaintiffs pleaded “just enough fact[s]” to survive the Rule

12(b)(6) stage. See id. at *1–2, 4.

9

Case: 24-40508 Document: 74-1 Page: 10 Date Filed: 11/04/2025

No. 24-40508

B

Finally, we consider whether the district court erred in denying Banda

leave to amend her complaint before dismissal. “We review denials of leave

to amend for abuse of discretion bounded by the Federal Rules of Civil

Procedure.” Martinez v. Nueces Cnty., 71 F.4th 385, 391 (5th Cir. 2023)

(citing Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 245 (5th Cir. 1997)).

However, “when a court denies leave to amend for futility of amendment

alone, our analysis mimics that of a motion to dismiss.” Id. (citing Ariyan,

Inc. v. Sewerage & Water Bd. of New Orleans, 29 F.4th 226, 229 (5th Cir.

2022)).

Generally, a court should “freely give leave to amend when justice so

requires.” Scott v. U.S. Bank Nat’l Ass’n, 16 F.4th 1204, 1209 (5th Cir. 2021),

as revised (Nov. 26, 2021) (citing Fed. R. Civ. P. 15(a)(2)). But that does

not mean that any plaintiff requesting leave is entitled to it. A movant seeking

to cure an initial complaint’s defects “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.” Id. (citing Thomas v. Chevron

U.S.A., Inc., 832 F.3d 586, 590 (5th Cir. 2016)). “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.” Id. (citing McKinney v. Irving

Indep. Sch. Dist., 309 F.3d 308, 315 (5th Cir. 2002)).

Banda argues that the district court erred in denying her leave to

amend. She argues that this denial “violat[ed] . . . the rule that a plaintiff be

given at least one opportunity to cure a pleading deficiency before dismissing

a case.” Also according to Banda, the district court did not explain why

amendment would be futile.

The court first observes that Banda was in fact offered an opportunity

to amend her complaint to plead facts regarding her Monell claim. In denying

10

Case: 24-40508 Document: 74-1 Page: 11 Date Filed: 11/04/2025

No. 24-40508

the City’s first motion to dismiss, the magistrate judge granted Banda leave

to amend and directed that her amended complaint “set forth all of the

relevant facts that she believes support her Monell claim” and “address all

the deficiencies that [were] identified in the City’s motion to dismiss. Banda

subsequently filed an amended complaint (her fifth amended complaint). As

the magistrate judge pointed out when he recommended dismissal, Banda—

unlike most complainants who are granted leave to amend—had the benefit

of discovery before she filed her fifth amended complaint. Thus, Banda was

offered a direct opportunity to state facts necessary to plead a viable Monell

claim but was unable to do so successfully.

Banda argues that the magistrate judge’s grant of leave to amend after

the City’s first motion to dismiss was unhelpful because the City “did not

point out any pleading deficiencies with respect to” her equal protection

claim that she could cure in her amended pleadings. This argument is clearly

refuted by the record. In its first motion to dismiss in the district court, the

City specifically argued that Banda “simply ma[de] general, unconnected

and conclusory statements about unfounded theories regarding disparate

treatment of females but provides no justification for the conclusion.” And

indeed, in Banda’s opposition to the City’s motion, she explicitly

acknowledged and attempted to refute the City’s argument that she did not

sufficiently plead her Monell claim.

But even if the magistrate judge’s warning was insufficient (which it

was not), Banda still would have been denied leave to amend. Banda argues

that she told the district court about the additional facts she would have

pleaded if given leave to amend before the dismissal at issue here.

Specifically, she notified the court that “new information about [the City’s]

conduct . . . c[a]me to light” during Ford’s murder trial. However, Banda did

not provide the district court with any inclination of what facts could have

come to light during Ford’s murder trial that would have reflected on the

11

Case: 24-40508 Document: 74-1 Page: 12 Date Filed: 11/04/2025

No. 24-40508

City’s policies and customs regarding response to domestic violence

matters—let alone provide the court with any proposed amended pleading or

an explanation of how that pleading would be sufficient to cure the defects

raised in the City’s motion to dismiss. Scott, 16 F.4th at 1209.

Regardless of whether we consider the district court’s denial of leave

to amend as solely based on futility of amendment (which would trigger a de

novo standard of review), a studied analysis reveals that even under that

heightened standard of review, the district court did not err in denying Banda

leave to amend her complaint.

IV

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

12