United States District Court, S.D. Texas, McAllen Division
BIMAL K. BANIK, Plaintiff,
ANGEL TAMEZ, et al, Defendants.
OPINION & ORDER
Micaela Alvarez, United States District Judge.
Court now considers Terence Thompson ("Thompson"),
Robert Nelsen ("Nelsen"), Havidán
Rodríguez ("Rodríguez"), Guy Bailey
("Bailey"), Paul Foster, William Powell, R. Steven
Hicks, Ernest Aliseda, Alex Cranberg, Wallace Hall, Jr.,
Jeffery Hildebrand, Brenda Pejovich and Robert
Stillwell's (collectively, "University
Defendants") partial motion to dismiss,  as well as Bimal
Banik's ("Plaintiff) response. After duly
considering the record and authorities, the court
GRANTS the motion.
Defendants move to dismiss Plaintiffs First Amendment
retaliation claim against them. Plaintiffs claim rests upon
three instances of alleged protected speech, and thus the
Court proceeds to first examine Plaintiffs factual
allegations to identify the statements Plaintiff claims are
Statements to Ybarra
was a tenured chemistry professor at the University of Texas
Pan-American ("UTPA"). One of his students-Amanda
Ybarra ("Ybarra")-met with him to discuss "her
grade in his class, and its impact on her ability to graduate
. . . ." Evidently, Plaintiff "noted to the
student that she faced particular challenges to graduation
because of her personal situation."Thereafter, Ybarra
lodged a formal complaint with UTPA officials against
Plaintiff for making "a number of disparaging comments
about [her] personal life . . . ."
Statements to Angel Tamez
allegations concerning his statement(s) to student Angel
Tamez ("Tamez") are obtuse. Only by implication
does Plaintiff appear to admit that he referenced an "ad
for Stilettos Cabaret, a local gentleman's club, that ran
in the UTPA student newspaper with scantily clad women . . .
Statements concerning Hassan Ahmad
alleges that Hassan Ahmad ("Ahmad"), one of his
co-workers, wiretapped Plaintiff's office. Plaintiff further
alleges that he "made contact with the UTPA Police
Department" and "discussed this matter with UTPA
officials . . . ." Plaintiff also alleges that
"[o]n more than one occasion, after learning that
[Plaintiff] complained of the crime committed by Ahmad,
[Plaintiff]'s job was threatened. Additionally, there
were a number of attempts made to coerce [Plaintiff] to drop
the complaint made against Ahmad. Despite repeated attempts,
however, [Plaintiff] refused to do so." Plaintiff
also alleges that he "was pressured to sign an affidavit
of non-prosecution by UTPA officials . . .
." Plaintiff characterizes his speech as
that "concerning criminal activity on a public
university campus . . . ."
alleges that he was eventually terminated from UTPA and that
his application to the University of Texas Rio Grande Valley
("UTRGV") was rejected because of his
(aforementioned) speech. Plaintiff filed suit in state court,
amending his petition ten times before the case was removed
to federal Court. Plaintiff amended his petition an
eleventh time in this Court,  and through various dismissal
motions and orders, this case was substantially
narrowed. University Defendants filed the instant
motion on July 27, 2017,  and Plaintiff timely
responded,  rendering the motion ripe for review.
The Court now turns to its analysis.
survive a Rule 12(b)(6) motion, a plaintiff must plead
"enough facts to state a claim to relief that is
plausible on its face." This does not require detailed
factual allegations, but it does require "more than
labels and conclusions" or "a formulaic recitation
of the elements of a cause of action." Courts first
disregard from their analysis any conclusory allegations as
not entitled to the assumption of truth,  and then
undertake the "context-specific" task of
determining whether the remaining well-pled allegations give
rise to an entitlement of relief to an extent that is
plausible, rather than merely possible or
conceivable. Courts regard all such well-pled facts
as true and view them in the light most favorable to the
plaintiff. Notably, "federal pleading
standards require a plaintiff to give specific instances of
speech, " in the First Amendment retaliation
Eleventh Amended Complaint, for the first time, makes clear
that he is alleging a First Amendment retaliation
claim. In this public-employee context,
Plaintiff must establish, among other elements, that he spoke
as a citizen on a matter of public concern. In making
this determination, the Court must consider the content,
form, and context of a given statement. In light of
the very limited factual allegations, the Court first
examines each of these three considerations as to the Ybarra
and Tamez "speech."
Statements to Ybarra
Eleventh Amended Complaint conspicuously omits the content of
his speech uttered to Ybarra. Plaintiff does allege that
"a student engaged [Plaintiff] in a conversation"
but does not provide the content of that conversation.
Plaintiff later alleges that he "noted to the student
that she faced particular challenges to graduation because of
her personal situation."This is the total sum of the
content of the speech that Plaintiff admits to in his
complaint. Plaintiff does provide the form-oral, and
context-a student's conversation with her professor about
her grades. Plaintiff, however, attempts to convert this
speech into a matter of public concern by labeling this
section of his complaint "University Attrition
Rates" and claiming that
"if [he] made any statements, they were
comprised of speech concerning attrition rates and the impact
one's personal situational challenges can have on
successfully graduating a public
university." Yet, nowhere does Plaintiff provide the
content of this alleged speech on attrition rates beyond what
the Court has already noted. Clearly, the content, form and
context dictate that Plaintiff was speaking as a UTPA
professor to one of his students regarding her performance in
school. There is nothing about Ybarra's personal
grades, personal life, and personal chance
of graduation that is public in nature.
attempt to provide the content of Plaintiff s speech by
reference to Ybarra's University complaint against
Plaintiff. Plaintiff himself provides the content of
Ybarra's complaint in a footnote to Plaintiffs Eleventh
Amended Complaint. Nonetheless, Plaintiff "vehemently
denies that he made the statements alleged" by
Ybarra. Additionally, Plaintiff objects to the
Court considering the statements attributed to him by
Ybarra. Nevertheless, Plaintiff does not claim
that any of the statements Ybarra attributed to him are
protected by the First Amendment. Thus, the Court relies on
Plaintiffs allegations in his complaint, scant though they
extent that Defendants considered the statements Ybarra
contends Plaintiff made, it is clear that such statements are
not protected speech. Ybarra's complaint alleges that
Plaintiff made the following statements to her:
• she looked like she would "have a lot of
• [Plaintiff] asked if she "regretted having a
• she made "a big mistake in having a child;"
• it was going to be "extremely hard for [her] to
be here at school, and possibly graduate;"
• if everyone found out she was a mother, they would
"think [she's] corrupt;"
• if other girls knew about her situation, they would
"look down on [her] and feel superior;"
• if other professors in the science department found
out, they would "probably not like [her];"
• [Plaintiff] hoped she "learned [her] lesson by
having a child, instead of being like all the other girls
having sex with a lot of guys."
statements are all extremely personal in nature. They are
specifically directed at Ybarra, and have no place in the
marketplace of ideas or public forum. They are not matters of
public concern. Thus, as to any of Ybarra's statements,
Plaintiff has failed to meet his burden to allege facts that
show he spoke on a matter of public concern. In sum,