United States District Court, W.D. Texas, San Antonio Division
THERESA BALDERAS, LEONARDO LEO BALDERAS, AND JOSHUA BALDERAS, Plaintiffs,
SOUTHSIDE INDEPENDENT SCHOOL DISTRICT AND JULIAN DE LA ROSA GONZALES, JOHNNY CANTU JR., MANUEL SANDOVAL, JR., KENNETH BOULDIN JR., AND MARY BANDY, MELONIE IGLEHART-HAMMONS, IN THEIR INDIVIDUAL CAPACITIES Defendants.
Honorable Orlando Garcia Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
RICHARD B. FARRER JUDGE
Report and Recommendation concerns the 12(b)(6) Motion to
Dismiss Plaintiffs' Fourth Amended Original Complaint for
Failure to State a Claim Upon Which Relief Can Be Granted,
filed by Defendants Southside Independent School District
(“SISD”) and individual Defendants Julian de la
Rosa Gonzales, Johnny Cantu, Jr., Manuel Sandoval, Jr.,
Kenneth Bouldin, Jr., Mary Bandy, and Melonie
Iglehart-Hammons, in their individual capacities. Dkt. No.
19. In this First Amendment retaliation case, the District
Court previously dismissed all claims against the individual
defendants in their official capacities. See Dkt. No. 9 at 14
pretrial matters in this case were referred to the
undersigned for disposition pursuant to Western District of
Texas Local Rules CV-72 and 1(c) and (d) to Appendix C, Dkt.
No. 23, and this motion was specifically re-referred to the
undersigned, Dkt. No. 32. The undersigned has authority to enter
this recommendation pursuant to 28 U.S.C. §
considering Defendants' Motion, Dkt. No. 19, the Response
filed by Plaintiffs Theresa Balderas, Leonardo
“Leo” Balderas, Jr., and Joshua Balderas
(collectively, “the Balderases”), Dkt. No. 27,
the Reply filed by Defendants, Dkt. No. 28, the case file,
and the relevant law, the undersigned recommends that the
District Court GRANT IN PART AND DENY IN PART Defendants'
Motion to Dismiss, Dkt. No. 19, as follows: Theresa and Leo
Balderas's First Amendment retaliation claims should
survive the Motion to Dismiss in their entirety. Joshua
Balderas's First Amendment retaliation claims against the
individual board-member Defendants Julian de la Rosa
Gonzales, Johnny Cantu, Jr., Manuel Sandoval, Jr., and
Kenneth Bouldin, Jr., should also survive. Joshua
Balderas's claims against SISD and interim
superintendents Bandy and Iglehart-Hammons, however, should
further clarify, the undersigned's analysis can be broken
down according to the Rule 12(b)(6) arguments advanced by the
various Defendants, as discussed in greater detail in this
report and recommendation, as follows:
• Municipal liability of SISD. Theresa and Leo
Balderas's First Amendment retaliation claims survive
SISD's Rule 12(b)(6) municipal-liability arguments.
Joshua Balderas's claims against SISD do not.
• Qualified immunity of the individual board-member
Defendants. All three of the Balderases' claims
against SISD board members Julian de la Rosa Gonzales, Johnny
Cantu, Jr., Manuel Sandoval, Jr., and Kenneth Bouldin, Jr.
survive the individual board members' arguments on
• Qualified immunity of interim superintendents
Bandy and Iglehart-Hammons. Joshua Balderas's claims
against former SISD interim superintendents Mary Bandy and
Melonie Iglehart-Hammons (only Joshua Balderas asserts claims
against the interim superintendents) fail because he cannot
overcome the interim superintendents' arguments for
• Causation as to the individual board-member
Defendants and SISD. All three of the Balderases'
claims survive the individual board members' arguments on
causation. Theresa and Leo Balderas's claims also survive
SISD's causation arguments. Joshua Balderas's claims
do not survive as to SISD. He has not alleged facts capable
of showing that any alleged adverse employment action he
suffered resulted from action attributable to SISD. His
retaliation claim against SISD therefore fails on this basis
as well as on municipal-liability principles.
• Causation as to Joshua Balderas 's claims
against Bandy and Iglehart-Hammons. Joshua
Balderas's claims also cannot survive the causation
arguments of Defendants Bandy and Iglehart-Hammons. Thus, his
claims against them should be dismissed for this reason as
well as on qualified-immunity grounds.
Factual and Procedural Background
First Amendment retaliation case is brought by three current
and former SISD employees who are all members of the same
family. They allege they suffered retaliation in response to
their open opposition to a faction of the SISD Board of
Trustees that supported former Interim Superintendent Dr. Joe
E. Gonzales during the May 9, 2015 school-board election
(hereafter referred to as the “Gonzales
faction”). The Balderases allege, by way of 42 U.S.C.
§ 1983, violations of their First Amendment rights of
free speech and association.
Balderases initiated this action on March 8, 2016 against
SISD, members of its Board of Trustees Julian de la Rosa
Gonzales, Johnny Cantu, Jr., Manuel Sandoval, Jr., Kenneth
Bouldin, Jr., and former SISD interim superintendents Mary
Bandy and Melonie Iglehart-Hammons, in both their official
and individual capacities. See Dkt. No. 1. Shortly
thereafter, the Balderases amended their complaint, with
leave of court. See Dkt. Nos. 4, 5. Defendants then moved to
dismiss the Balderases' claims in their entirety. They
raised several arguments, including that the claims against
the individual Defendants in their official capacities were
redundant of the claims against SISD. The individual
Defendants, they argued, were entitled to qualified immunity
on the individual-capacity claims. And Defendants further
argued that the Balderases failed to plead a viable
retaliation claim and, even if they had done so, the
allegations in any event did not suggest alleged
constitutional violations resulting from an “official
policy or custom” of SISD, as would be needed to hold
SISD liable under principles of municipal liability. See Dkt.
No. 6. On August 24, 2016, the District Court ruled that the
Balderases had failed to state a claim upon which relief
could be granted. The Court, however, permitted the
Balderases to amend their pleadings, except as to their
claims against the individual Defendants in their official
capacities. See Dkt. No. 9, at 14 & n. 7. The Balderases
have now amended their complaint three times in the wake of
the District Court's August 24, 2016 order. See Dkt. Nos.
9, 10, & 16.
April 25, 2017, Defendants moved to dismiss the
Balderases' Fourth Amended Complaint. See Dkt. No. 19.
Defendants, in their Motion to Dismiss, argue the Balderases
have again failed to plead claims upon which relief may be
granted. In particular, Defendants argue that the
Balderases' allegations, even if taken as true for
purposes of Rule 12(b)(6), could not establish that: (1) the
alleged constitutional violations were the product of a SISD
policy or custom sufficient to impose municipal liability
against SISD; and (2) the individual Defendants sued in their
individual capacities could be subject to liability
notwithstanding their entitlement to qualified immunity.
Id. In their Reply, Defendants argue the
Balderases' claims also fail because they failed to plead
facts that, even if true, could provide the necessary causal
link between the Balderases' engagement in protected
First Amendment activity and any alleged act(s) of
retaliation. See Dkt. No. 28.
15, 2017, Magistrate Judge John W. Primomo recommended that
the case be dismissed pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure because the Balderases failed to
respond timely to Defendants' motion to dismiss, despite
having enjoyed multiple opportunities to amend their
complaint. See Dkt. No. 25. That same day, the Balderases
filed their Response, see Dkt. No. 27, along with objections
to Judge Primomo's recommendation, arguing that their
delay was due to a scheduling error, see Dkt. No. 29. In
light of these filings, the District Court vacated the
memorandum and recommendation, accepted the Balderases'
Response as timely filed, Dkt. No. 27, and re-referred the
case, including the instant motion. See Dkt. No. 32.
undersigned now considers the merits of Defendants'
Motion to Dismiss the Balderases' Fourth Amended
reviewing a motion to dismiss filed pursuant to Federal Rule
of Civil Procedure 12(b)(6), a court “accept[s]
‘all well-pleaded facts as true, viewing them in the
light most favorable to the plaintiff.'” New
Orleans City v. Ambac Assur. Corp., 815 F.3d 196, 200
(5th Cir. 2016) (quoting In re Katrina Canal Breaches Litig.,
495 F.3d 191, 205 (5th Cir. 2007)). But a court need not
credit conclusory allegations or allegations that merely
restate the legal elements of a claim. Chhim v. Univ. of
Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016)
(citing Iqbal, 556 U.S. at 678).
court's review of a motion to dismiss is “limited
to the complaint, any documents attached to the complaint,
and any documents attached to the motion to dismiss that are
central to the claim and referenced by the complaint.”
Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC,594 F.3d 383, 387 (5th Cir. 2010). A court may take judicial
notice of matters of public record. See Norris v. Hearst
Trust,500 F.3d 454, 461 n. 9 (5th Cir. 2007). The
Balderases have attached various exhibits to their Response,
Dkt. No. 27, such as deposition excerpts and reassignment
letters, which purportedly provide evidentiary support for
their arguments. Such evidence generally should not be
considered in evaluating the merits of a motion to dismiss,
and it will not be considered here. See Dorsey v.
Portfolio Equities, Inc.,540 F.3d 333, 341 (5th Cir.