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Wright v. Denison Independent School District

United States District Court, E.D. Texas, Sherman Division

May 24, 2017

MICHAEL WRIGHT, AS NEXT FRIEND OF HIS MINOR CHILD, B.W.
v.
DENISON INDEPENDENT SCHOOL DISTRICT, ET AL.

          Judge, Nowak

          MEMORANDUM ADOPTING IN PART REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

         Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On April 19, 2017, the report of the Magistrate Judge (Dkt. #36) was entered containing proposed findings of fact and recommendations that Defendant Denison Independent School District's Motion to Dismiss Plaintiff's Complaint (Dkt. #9) be denied and that Defendants Charles Bollinger's, Chad Rogers's, Henry Scott's, and David Kirkbride's Motion to Dismiss Plaintiff's Complaint (Dkt. #10) be granted in part and denied in part. Having received the report and recommendation of the Magistrate Judge (Dkt. #36), having considered Plaintiff Michael Wright, as next friend of his minor child, B.W.'s objections (Dkt. #38) and Defendants' response thereto (Dkt. #39), and having conducted a de novo review, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct. The Court adopts the Magistrate Judge's report (Dkt. #36) in part and rejects it in part as set forth below.

         RELEVANT BACKGROUND

         The Court sets forth herein only those facts pertinent to Plaintiff's objections. Plaintiff filed this lawsuit as next friend of his minor son, B.W., on August 17, 2016, asserting claims against Defendants Denison Independent School District (“DISD”), Charles Bollinger (a baseball coach at Denison High School), Chad Rogers (athletic director at Denison High School), Henry Scott (DISD superintendent), and David Kirkbride (DISD assistant superintendent) (Bollinger, Rogers, Scott, and Kirkbride are hereinafter and collectively referred to as the “Individual Defendants”). Plaintiff alleges Bollinger made inappropriate sexual comments about B.W.'s mother to B.W. in front of others on several occasions while B.W. was at school, and that Bollinger also encouraged B.W. to cheat while playing baseball for DISD. B.W. refused to cheat and then, along with his parents, reported Bollinger's sexual comments and cheating directives to Scott. Plaintiff claims that, after B.W. (and B.W.'s parents) reported Bollinger to Superintendent Scott (who relayed the reports to Athletic Director Rogers), DISD failed to act to ameliorate B.W.'s situation. Indeed, Plaintiff alleges DISD never took corrective action against Bollinger, who retaliated against B.W. by benching B.W. “without cause or explanation” and announcing to other members of the team B.W. would be benched. B.W. and his parents met with Rogers about Bollinger's treatment of B.W. several times to no avail before also meeting with Scott and Kirkbride. At the meeting with Scott and Kirkbride, Plaintiff alleges Scott warned Plaintiff “that B.W. would be kicked out of the baseball program for causing ‘this mess with the coach' if ‘things didn't change'” and that, when asked, clarified that B.W. would be removed from the baseball team if Plaintiff did not drop the allegations regarding Bollinger's treatment of B.W. At the end-of-season athletics banquet, B.W. received no recognition for his performance as pitcher for the DISD team (Dkt. #30 at 3-7).

         Plaintiff raises four distinct claims by and through his suit. First, Plaintiff claims the Individual Defendants acted pursuant to a “de facto policy” in violating B.W.'s constitutional rights, rendering DISD liable under 42 U.S.C. § 1983 via Monell. Plaintiff asserts DISD is liable (A) for failing to “take[] steps to meaningfully investigate” Bollinger's treatment of B.W. and the other Individual Defendants' unsatisfying responses to Bollinger's actions and (B) for failing to “effectively train[]” the Individual Defendants to respond to such behavior (Dkt. #30 at 7-8). Further, Plaintiff claims such “actions and omissions . . . were deliberate and intentional” (Dkt. #30 at 8). Plaintiff alleges “policy makers, including Defendant Bollinger” chose to engage in these unlawful acts, but notable herein Plaintiff's live pleading does not allege any involvement on the part of DISD's Board of Trustees (see Dkt. #30 passim). Second, Plaintiff claims DISD and the Individual Defendants retaliated against him for engaging in activity protected by the first amendment, namely for his complaints to Rogers, Scott, and Kirkbride regarding Bollinger's conduct (Dkt. #30 at 8-12). Third, Plaintiff asserts substantive due process and equal protection violations under the fourteenth amendment on the part of DISD and the Individual Defendants (both in their individual and official capacities), arguing that “B.W.'s opportunity to participate in the baseball program through DISD education program is a liberty interest” Defendants took from B.W. and further that Defendants harmed B.W.'s reputation through their actions (Dkt. #30 at 12-15). Fourth, Plaintiff claims the Individual Defendants in their individual capacities harmed B.W. through intentional infliction of emotional distress (Dkt. #30 at 15-17).

         On April 19, 2017, the Magistrate Judge entered a report and recommendation (Dkt. #36), recommending that DISD's Motion (Dkt. #9) be granted and that the Individual Defendants' Motion to Dismiss (Dkt. #10) be granted in part and denied in part. Plaintiff filed his objections to the report and recommendation on May 4, 2017 (Dkt. #38), and Defendants filed their response to Plaintiff's objections on May 17, 2017 (Dkt. #39).

         PLAINTIFF'S OBJECTIONS

         A party who files timely written objections to a magistrate judge's report and recommendation is entitled to a de novo review of those findings or recommendations to which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(2)-(3). The Magistrate Judge's report concluded first that Plaintiff's claims against DISD and the Individual Defendants in their official capacities under 42 U.S.C. § 1983 should be dismissed for Plaintiff's failure to allege he suffered harm as the result of a “policy” crafted or endorsed by the DISD Board of Trustees. Specifically, the Magistrate Judge found “the Amended Complaint does not allege that any custom or policy at issue was ever presented to and/or approved by the [DISD Board], or that the [DISD Board] had any knowledge of Plaintiff's complaints or any ‘custom' of ignoring these complaints” (Dkt. #36 at 8-12). Second, the Magistrate Judge found as follows regarding Plaintiff's claims against the Individual Defendants in their individual capacities under 42 U.S.C. § 1983: (a) Plaintiff's substantive due process claims should be dismissed because Plaintiff failed to allege a cognizable right protected by the fourteenth amendment (Dkt. #36 at 12-15); (b) Plaintiff's claims of first amendment retaliation should survive dismissal (Dkt. #36 at 15-21); and (c) Plaintiff's equal protection claims should be dismissed (to the extent he asserts any at all) because the Amended Complaint “is devoid of any facts to support such claim” (Dkt. #36 at 21-23). Finally, the Magistrate Judge found Plaintiff's intentional infliction of emotional distress claims should be dismissed because Texas statutory law proscribes such claim against the Individual Defendants in their individual capacities under the circumstances and because DISD has immunity against such claim (Dkt. #36 at 23-26). Plaintiff specifically objects to the Magistrate Judge's first finding, in part, regarding his § 1983 claim against DISD and also to the Magistrate Judge's finding that Plaintiff failed to allege a cognizable due process right (Dkt. #38). Neither party objects to the Magistrate Judge's findings that Plaintiff's § 1983 equal protection claims against the Individual Defendants in their official capacities (and against Individual Defendants in their individual capacities, to the extent such is asserted) should be dismissed, that Plaintiff's claims for intentional infliction of emotional distress should be dismissed, or that Plaintiff's first amendment retaliation claims should survive the Motions to Dismiss (see Dkt. #38).. As such, the Court adopts these findings and proceeds to evaluate only Plaintiff's claims against DISD under § 1983 and Plaintiff's substantive due process claims under § 1983 against the Individual Defendants in their individual capacities.

         Objection 1: DISD (Monell) Liability

         Plaintiff objects to the Magistrate Judge's finding that Plaintiff fails to state a claim against DISD because Plaintiff fails to allege in the Amended Complaint “any custom or policy . . . was ever presented to and/or approved by the [DISD Board], or that the [DISD Board] had any knowledge of Plaintiff's complaints or any ‘custom' of ignoring these complaints.” Plaintiff argues the Magistrate Judge applies the wrong standard for municipal liability and that the Amended Complaint meets the proper standard for pleading municipal liability (Dkt. #38 at 3-6). Specifically, Plaintiff claims “boilerplate” allegations of an unconstitutional municipal (here, school board) policy will suffice to state a claim under Monell, and that the allegations contained in the Amended Complaint meet this threshold (Dkt. #38 at 3-6). Plaintiff also alleges for the first time in his objections that he “emailed each board member a full, detailed account just days before Defendants Scott and Kirkbride requested the meeting where they threatened to ‘kick [B.W.] out' for ‘this mess with the coach'” (Dkt. #38 at 5 & n.3). Defendants assert there is a split of authority regarding the proper pleading standard for municipal liability but that, in any event, the Fifth Circuit has in G.M. v. Shelton, 595 F. App'x 262 (5th Cir. 2014), upheld dismissal at the motion to dismiss stage of similar claims couched in nearly identical pleadings (Dkt. #39 at 2-5). Further, Defendants contend the Court should disregard Plaintiff's new allegations concerning the email he purportedly sent to the DISD Board prior to the Scott/Kirkbride meeting; Defendants point out that the Magistrate Judge afforded Plaintiff an opportunity to amend his complaint prior to ruling on the Motions to Dismiss and yet Plaintiff failed to include within the Amended Complaint any allegation regarding the email (Dkt. #39 at 5 n.15).

         As an initial matter, the Magistrate Judge correctly summarized the standards governing municipal liability (see Dkt. #36 at 8-10). A plaintiff may make no claim of respondeat superior under § 1983 against a government entity. Deville v. Marcantel, 567 F.3d 156, 170 (5th Cir. 2009) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)). Instead, a plaintiff must show the government entity “itself causes the constitutional violation at issue.” City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citing Monell, 436 U.S. at 694-95). The Fifth Circuit has required as a result that a plaintiff must establish the entity's “official policy” caused the plaintiff's harm. Deville, 567 F.3d at 170. The Fifth Circuit has explained that an “[o]fficial policy is:

1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the ...

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