Warner

UNITED STATES DISTRICT COURT March 03, 2026

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

CORPUS CHRISTI DIVISION

AMY WARNER, §

§

Plaintiff, §

§

VS. § CIVIL ACTION NO. 2:25-CV-00040

§

CITY OF CORPUS CHRISTI POLICE §

DEPARTMENT, §

§

Defendant. §

MEMORANDUM AND RECOMMENDATION TO DISMISS

Plaintiff Amy Warner, proceeding pro se and in forma pauperis, has filed

this civil rights action under 42 U.S.C. § 1983. (Doc. Nos. 1, 27.) Pending is

whether to retain Plaintiff’s failure to protect claim against the City of Corpus

Christi (the “City”) in her amended complaint. (Doc. No. 27.) Plaintiff has alleged

two causes of action in her amended complaint which are before the Court on

preliminary judicial screening: (1) a substantive due process claim under the

Fourteenth Amendment, and (2) an equal protection claim under the Fourteenth

Amendment. The undersigned recommends the Court: (1) DISMISS Plaintiff’s

substantive due process cause of action, and (2) DISMISS Plaintiff’s equal

protection cause of action

1 / 14

I. JURISDICTION

The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. This case

has been referred to the undersigned magistrate judge for case management and making

recommendations on dispositive motions pursuant to 28 U.S.C. § 636.

II. BACKGROUND

Plaintiff initially brought this lawsuit against the City of Corpus Christi Police

Department (“CCPD”) generally alleging that it failed to protect her from or prosecute her

ex-boyfriend (“DS”) despite repeated criminal actions by that individual. (Doc. No. 1, 11.)

On referral, United States Magistrate Judge Mitchel Neurock recommended dismissing her

complaint in its entirety for naming a nonjural entity as the sole defendant in the case and

because substitution of the City of Corpus Christi would still be futile. (Doc. No. 13, p.

21.) The district court adopted the recommendation in part, dismissing her claims against

CCPD with prejudice. (Doc. No. 17, p. 6.) The Court granted Plaintiff leave, however, to

“amend her complaint to replead her claim for failure to protect against the City of Corpus

Christi to include the allegation raised in her objections.” Id. The district court emphasized

that Plaintiff should replead her objection that “CCPD’s inaction in the face of repeated

warnings deprived her of necessary protection” from DS. Id. at 5 (quoting Doc. No. 15, p.

2.)

After the district court granted Plaintiff leave to file an amended complaint, a

subsequent order was issued requiring Plaintiff to file her complaint by November 12,

2025, or risk having her case recommended for dismissal. (Doc. No. 19.) Plaintiff was

2 / 14

warned not to rehash claims which had already been dismissed, and she was ordered not to

raise “new claims other than her failure to protect claim against the City of Corpus Christi.”

Id. Plaintiff did not meet that filing deadline, and was ordered to show by November 24,

2025, as to why “her remaining failure to protect claim against the City of Corpus Christi

should not be dismissed for failure to comply” with the Court’s orders. (Doc. No. 22.)

After again missing the Court’s deadline, the undersigned recommended dismissal of

Plaintiff’s case. (Doc. No. 24.) On December 1, 2025, Plaintiff moved for an extension

of time to file her amended complaint, which was attached to the motion. The Court

granted her motion and withdrew its memorandum and recommendation. (Doc. No. 26.)

Her amended complaint is now ripe for a second screening.

III. PLAINTIFF’S AMENDED COMPLAINT

Plaintiff’s amended complaint includes two causes of action: (1) failure to protect

in violation of the Fourteenth Amendment’s Equal Protection Clause; (2) failure to protect

in violation of the Fourteenth Amendment’s Due Process Clause. (Doc. No. 27, pp. 2-3.)

She alleges the City is liable under a theory of municipal liability stemming from Monell

v. Department of Social Services of City of New York, 436 U.S. 658 (1978). Id. at 3.

To briefly recount her factual allegations, Plaintiff alleges that “for over four

years” she was a victim of domestic violence, harassment, and terror at the hands of

DS. (Doc. No. 27, p. 2.) Plaintiff includes among this history allegations of

vandalism, armed threats, property damage, physical assault, wrongful arrest of

herself by CCPD, tire slashings, breaking and entering, and a “hammer attack”

3 / 14

during that break in. Id. During this time, Plaintiff allegedly sought protection from

CCPD, routinely making calls for help to no avail. Id. She claims that CCPD “failed

to take meaningful law enforcement action to protect her” or hold DS accountable.

Id. Plaintiff alleges that the CCPD’s “consistent refusal to arrest or charge” DS for

these crimes constitutes a “complete failure to protect” her. Id. Further, the CCPD’s

“repeated pattern of inaction,” Plaintiff alleges, “sent a clear message” to DS that

“his criminal conduct would carry no consequences, which directly and foreseeably

led to the escalation his violence against” her. Id.

In raising an equal protection claim, Plaintiff alleges that the City maintained

a custom and policy of providing a “lower level” of police protection to victims of

domestic assault. (Doc. No. 27, p. 2-3.) This “de facto policy,” Plaintiff claims, of

treating certain forms of assault differently than others amounts to a form of gender

discrimination which “disproportionately affects women, who are the primary

victims of domestic abuse.” Id. She alleges that this discriminatory custom was the

“motivating factor” in the CCPD’s failure to protect her, and this failure was the

direct cause of her physical and emotional harms. Id. at 3.

Turning to her substantive due process claim, Plaintiff alleges that the City

“created and enhanced the danger” that she faced from DS. (Doc. No. 27, p. 3.) By

“choosing” not to arrest DS for these “violent felonies,” Plaintiff claims that the

CCPD made her “more vulnerable than she would have been had the CCPD not

responded at all” by communicating that he would not be punished for his crimes.

4 / 14

Id. This communication, she alleges, directly “emboldened her known abuser”

through their deliberate indifference to Plaintiff’s “life and safety.” Id.

Plaintiff alleges that these constitutional violations form the basis of Monell

claims against the City. (Doc. No. 27, p. 3.) She claims that the CCPD had a

“persistent and widespread” custom of failing to properly investigate domestic

violence complaints and arrest perpetrators of domestic violence. Id. This custom,

Plaintiff alleges, was “so long-standing and well-settled as to have the force of a

municipal policy.” Id. Additionally, Plaintiff claims that the City “demonstrated

deliberate indifference to the constitutional rights of domestic violence victims by

failing to adequately train and supervise its CCPD officers.” Id.

For her damages, Plaintiff seeks compensatory relief for her physical

injuries, emotional distress, and financial losses. (Doc. No. 27, p. 4.) She also seeks

punitive damages against the City and reasonable attorney’s fees.

IV. LEGAL STANDARD

When a plaintiff seeks to proceed in forma pauperis, the court shall evaluate the

complaint and dismiss it if the court finds the complaint frivolous, malicious, fails to state

a claim upon which relief can be granted, or seeks monetary relief from a defendant who

is immune from such relief. 28 U.S.C. § 1915(e)(2)(B) (providing that a court shall review

an in forma pauperis complaint as soon as practicable and dismiss it if it is frivolous or

malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief

from an immune defendant). A claim is frivolous if it has no arguable basis in law or fact.

5 / 14

Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim has no arguable basis in law if it

is based on an indisputably meritless legal theory, “such as if the complaint alleges the

violation of a legal interest which clearly does not exist.” Davis v. Scott, 157 F.3d 1003,

1005 (5th Cir. 1998) (citing McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)).

A claim has no arguable basis in fact if, “after providing the plaintiff the opportunity to

present additional facts when necessary, the facts alleged are clearly baseless.” Talib v.

Gilley, 138 F.3d 211, 213 (5th Cir. 1998) (citing Denton v. Hernandez, 504 U.S. 25, 32-33

(1992)).

“In analyzing the complaint,” a district court will accept all well-pleaded facts as

true, viewing them in the light most favorable to the plaintiff.” Jones v. Greninger, 188

F.3d 322, 324 (5th Cir. 1999) (per curiam) (citations omitted). “The issue is not whether

the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support

his claim. Thus, a court should not dismiss the claim unless the plaintiff would not be

entitled to relief under any set of facts or any possible theory that he could prove consistent

with the allegations in the complaint.” Id. (citing Vander Zee v. Reno, 73 F.3d 1365, 1368

(5th Cir. 1996)).

“Threadbare recitals 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

plaintiff must allege sufficient facts in support of her legal conclusions that give rise to a

reasonable inference that the defendant is liable for the misconduct alleged. Id. (citing Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The factual allegations must raise

6 / 14

the plaintiff’s claim for relief above the level of mere speculation. Twombly, 550 U.S. at

555. As long as a complaint, taken as a whole, gives rise to a plausible inference of

actionable conduct, a plaintiff’s claim should not be dismissed. Id. Furthermore, as

Plaintiff proceeds pro se, the Court construes her complaint liberally in her favor. See

Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2002) (citing Haines, 404 U.S. at 520). “There

is no heightened pleading standard for § 1983 claims against municipalities. To survive a

motion to dismiss, the complaint need not contain detailed factual allegations but still must

state sufficient facts to establish a plausible claim on its face.” Littell v. Hous. Indep. Sch.

Dist., 894 F.3d 616, 622 (5th Cir. 2018)).

V. ANALYSIS

Plaintiff’s amended complaint contains two causes of action, alleging that the City

violated her constitutional rights under § 1983 through a Monell theory of liability. See

Doc. No. 27. She alleges that her due process and equal protection rights under the

Fourteenth Amendment were violated by the City’s policy and custom of discriminating

against victims of domestic violence during calls for service. Id. “To establish municipal

liability under 42 U.S.C. § 1983, a plaintiff must show that (1) an official policy (2)

promulgated by the municipal policymaker (3) was the moving force behind the violation

of a constitutional right.” Savage v. Harris Cnty., Texas, No. 4:24-CV-0666, 2025 WL

1697619, at *8 (S.D. Tex. June 17, 2025) (Ellison, J.) (citing Peterson v. City of Fort

Worth, 588 F.3d 838, 847 (5th Cir. 2009)).

7 / 14

While a municipal liability claim has three elements, “[e]very Monell claim” first

“requires an underlying constitutional violation.” Hicks-Fields v. Harris Cnty., Tex., 860

F.3d 803, 808 (5th Cir. 2017). Essentially, a Monell claim cannot proceed without a

“predicate constitutional violation.” Loftin v. City of Prentiss, Miss., 33 F.4th 774, 783

(5th Cir. 2022) (citing Garza v. Escobar, 972 F.3d 721, 734 (5th Cir. 2020) (cleaned up)).

The constitutional bases for Plaintiff’s two causes of action are thus examined first.

A. Plaintiff’s Due Process Claim

The Due Process Clause provides that “[n]o State shall … deprive any person of

life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The

Fifth Circuit has established a framework for evaluating substantive due process violations

under § 1983:

In order to state a claim for a substantive due process violation under § 1983,

the plaintiffs must demonstrate: (1) they were deprived of a cognizable

constitutional right, see Rios v. City of Del Rio, 444 F.3d 417, 425 (5th Cir.

2006); (2) the State acted with “deliberate indifference” to the protected

right, see Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380

F.3d 872, 880 (5th Cir. 2004); and (3) the policies or practices complained

of were the direct cause of the constitutional deprivation, see Piotrowski v.

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

M. D. by Stukenberg v. Abbott, 907 F.3d 237, 248 (5th Cir. 2018).

Here, Plaintiff’s substantive due process claim fails at the first step because she has

not alleged violation of a cognizable constitutional right. “As a general matter, the State is

under no affirmative obligation to protect its citizens from private harm.” Stukenberg, 907

F.3d 237 at 248 (citing DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189,

8 / 14

197 (1989)). That is because “nothing in the language of the Due Process Clause itself

requires the State to protect the life, liberty, and property of its citizens against invasion by

private actors.” DeShaney, 489 U.S. at 195. Rather, the Due Process Clause “is phrased

as a limitation on the State's power to act, not as a guarantee of certain minimal levels of

safety and security.” Id. While the clause forbids states from depriving individuals of life,

liberty, or property without due process of law, it does not “impose an affirmative

obligation on the [s]tate[s] to ensure that those interests do not come to harm through other

means.” Id.

The only recognized exception to this general rule in this circuit obliges the state to

protect individuals from known threats of harm by private actors where a “special

relationship” exists between the individual and the state. See McKinney v. Irving Indep.

Sch. Dist., 309 F.3d 308, 313 (5th Cir. 2002) (citing Walton v. Alexander, 44 F.3d 1297,

1299 (5th Cir. 1995)). This special relationship includes people who are involuntarily

confined or restrained against their will pursuant to governmental order or by the

affirmative exercise of state power. Id. That narrow exception does not exist here, as

Plaintiff was living in the free world and was not a prisoner or otherwise confined by the

state. The district court should conclude that Plaintiff fails to plausibly allege a viable due

process claim.

9 / 14

B. Plaintiff’s Equal Protection Claim

While DeShaney established that the “Due Process Clause does not require a State

to provide its citizens with particular protective services,” the Court also explained that “a

State may not, of course, selectively deny its protective services to certain disfavored

minorities without violating the Equal Protection Clause.” DeShaney, 489 U.S. at 197 n.3.

The Fifth Circuit has created such a cause of action for victims of domestic violence,

holding that “‘law enforcement policies, practices, and customs toward domestic assault

and abuse cases’ can form the basis for a gender-based equal protection claim.” Banda v.

City of McAllen, Texas, No. 24-40508, 2025 WL 3094122, at *3 (5th Cir. Nov. 4, 2025)

(per curiam) (quoting Shipp v. McMahon, 234 F.3d 907, 914 (5th Cir. 2000)). In Shipp,

the Fifth Circuit 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.

Shipp, 234 F.3d at 914; see also Cook v. Hopkins, 795 F. App’x 906, 915 (5th Cir. 2019);

Kelley v. City of Wake Vill., Texas, 264 F. App’x 437, 442-43 (5th Cir. 2008); Beltran v.

City of El Paso, 367 F.3d 299, 304-05 (5th Cir. 2004).

Plaintiff has not sufficiently alleged an equal protection claim under Shipp because

her complaint does not contain enough relevant facts to establish such a violation. This

case is analogous to Banda v. City of McAllen, Texas, where the Fifth Circuit rejected the

plaintiff’s attempt to make a similar equal protection claim. In Banda, a victim of domestic

assault made repeated “requests for help” to police for months to no avail; she was

10 / 14

ultimately killed by her abuser.1 Banda, 2025 WL 3094122, at *3. In assessing plaintiff’s

Monell claims against the City of McAllen, the court explained that while it “is true that

[plaintiff] alleged a series of events that are likely to establish a pattern or practice,” she

did not provide any facts to establish the three Shipp elements. Id. This was the case

because her allegations were only “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements.” Id. (quoting Iqbal, 556 U.S. at 678). For

example, the court explained that her allegations regarding the second Shipp element failed

because “[t]he only fact [plaintiff] pleaded to show invidious discrimination was her

conclusory assertion that discrimination was the McAllen Police Department’s motivating

factor for its inaction.” Banda, 2025 WL 3094122, at *4. To the court, this was not enough

to state a claim under Shipp.

Banda and Shipp require plaintiffs to allege that the municipality had a custom of

treating victims of domestic assault differently than other forms of assault, with

discriminatory intent against women at the root of that custom. Here, Plaintiff’s complaint

is deficient in those regards. Looking to the first Shipp element, and like Banda, Plaintiff

describes a pattern of behavior by CCPD, but she does not provide any facts regarding how

victims of domestic assault were treated less favorably than victims of other assault. See

Doc. No. 27, pp. 2-3. She claims that DS and “perpetrators” of domestic assault were not

arrested when probable cause was present and that CCPD treated domestic disputes “as a

private matter rather than a serious crime.” Id. at 4. But reading this most favorably to

1 The lawsuit was brought by her estate. Banda, 2025 WL 3094122, at *1.

11 / 14

Plaintiff, these facts do not describe how this practice is different than how they treat other

assaults. Id. at 4. It could be the case that CCPD does not arrest where probable cause is

present for other assaults as well, but Plaintiff did not distinguish the two. Additionally,

though Plaintiff claims that CCPD does not view domestic assault as a “serious crime” she

does not claim that CCPD views other forms of assault as “serious crime[s]” either. Absent

facts that explain how domestic assault is treated differently than other types of assault,

Plaintiff’s claim fails at the first prong. And because her claim fails there, it also

necessarily fails at the third prong which requires plaintiff to connect the policy or custom

to her injury.

For the second element, Plaintiff states that the custom “disproportionately affects

women,” but this does not explain how discriminating against women was the “motivating

factor” behind that custom. (Doc. No. 27, pp. 2.) Plaintiff’s factual account falls short

here. Her complaint describes instances where her abuser was not arrested following calls

for help, but she does not claim that DS was not arrested because he was a man and she is

a woman. Instead, she highlights instances where she made calls for help, but those calls

were not acted upon and did not lead to arrests. Plaintiff claims that she was

“disproportionately affect[ed]” by this custom, but her equal protection claim requires

more than that to state a claim. Cook, 795 F. App'x at 916 (“A discriminatory purpose is

more than intent as volition or intent as aware of consequences. It implies that the

decisionmaker . . . selected or reaffirmed a course of action at least in part because of, not

merely in spite of its adverse effects upon an identifiable group.”) (internal quotations

12 / 14

omitted) (quoting Kelley v. City of Wake Village, 264 F. App'x 437, 442 (Sth Cir.

2008) (per curiam)). In its current form, Plaintiff's complaint does not establish that the

CCPD’s alleged custom was formed to discriminate against women, and her equal

protection cause of action should be dismissed for failing to state an underlying

constitutional violation.

VI. CONCLUSION

Plaintiff's causes of action based on the CCPD’s alleged failure to protect her fall

short of identifying an underlying constitutional violation. First, being that Plaintiff is not

part of a protected class in the due process context, the state had no duty to protect her from

private actors. Second, while a failure to protect claim does exist in the equal protection

context, Plaintiff did not provide enough facts to establish that the CCPD had a custom of

treating victims of domestic assault differently than other forms of assault. Nor did she

provide facts which suggest this custom was formed to discriminate against women. The

district court should: (1) DISMISS Plaintiff's substantive due process cause of action

because she has not alleged a viable constitutional violation, and (2) DISMISS Plaintiffs

equal protection violation because she has not alleged a violation of that constitutional

right.

Respectfully submitted on March 3, 2026.

United States Magistrate Judge

13/14

NOTICE TO PARTIES

The Clerk will file this Memorandum and Recommendation and transmit a copy to

each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of

the Memorandum and Recommendation, a party may file with the Clerk and serve on the

United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ.

P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court

for the Southern District of Texas.

A party’s failure to file written objections to the proposed findings, conclusions, and

recommendation in a magistrate judge’s report and recommendation within FOURTEEN

(14) DAYS after being served with a copy shall bar that party, except upon grounds of

plain error, from attacking on appeal the unobjected-to proposed factual findings and legal

conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass’n, 79 F.3d

1415 (5th Cir. 1996) (en banc).

14 / 14