United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Bonham Independent School
District's (“Bonham ISD”) Motion for Partial
Dismissal of Plaintiff's First Amended Complaint (Dkt.
#20). Having reviewed the motion and Plaintiff's First
Amended Complaint, the Court finds that the motion should be
Norman Shelton worked for Bonham ISD for approximately twelve
years, and at the time of his termination was a groundkeeper
in the maintenance department. According to Plaintiff,
John Shackelford, Plaintiff's supervisor and the Director
of Transportation/Maintenance, was under investigation for
the personal sale of district equipment. In August 2016,
Plaintiff was asked to write a statement regarding the
Shackelford situation. After writing the statement, Plaintiff
was asked not to discuss the matter with anyone.
Subsequently, Plaintiff attended an event, which was not an
event related to Bonham ISD. At the event, an attendee
approached Plaintiff and asked about the Shackelford
situation, to which Plaintiff claimed he could not discuss
the matter. However, Jim Currin (“Currin”),
Bonham ISD's electrician, overheard the conversation and
began to detail the investigation of Shackelford to the
on September 7, 2016, Claude Lewis (“Lewis”), the
interim Director of Maintenance, informed Plaintiff that Bill
Wakefield (“Wakefield”), the Director of
Operations, ordered Plaintiff not to discuss the Shackelford
investigation with any reporters or he would lose his job.
Shortly thereafter, a police officer called Plaintiff into
the station to discuss the matter. He was called in on two
separate occasions. After his last visit, Currin approached
Plaintiff at his second job at the Bonham VFW asking what
happened during his visits at the police station. Wakefield
and Lewis were the only ones who knew Plaintiff was called
into the station. Currin also told Plaintiff that Wakefield
asked whether Plaintiff was involved in Shackelford's
scheme. The following week Kelly Trompler, an Assistant
Superintendent, and Wakefield terminated Plaintiff and
Wakefield stated the reason was because Plaintiff discussed
the investigation. Two days later, Plaintiff went to
Wakefield to pick up his final paycheck. At that time,
Wakefield told Plaintiff that Bonham ISD terminated Plaintiff
because of insubordination. Plaintiff protested that others
had discussed the investigation and were not punished. When
asked who had discussed the investigation, Plaintiff provided
Currin's name and Wakefield told Plaintiff that he needed
to be able to back up the accusation.
October 24, 2017, Plaintiff filed his complaint based on his
termination from Bonham ISD for violation of the Age
Discrimination in Employment Act of 1967 and violations of 42
U.S.C. § 1983 based on First Amendment retaliation. On
February 14, 2018, Defendant filed the present partial motion
to dismiss Plaintiff's § 1983 claims (Dkt. #20).
Plaintiff filed a response on February 28, 2018 (Dkt. #22).
Finally, Bonham ISD filed its reply on March 7, 2018 (Dkt.
Federal Rules of Civil Procedure require that each claim in a
complaint include a “short and plain statement . . .
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Each claim must include enough factual
allegations “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
12(b)(6) motion allows a party to move for dismissal of an
action when the complaint fails to state a claim upon which
relief can be granted. Fed.R.Civ.P. 12(b)(6). When
considering a motion to dismiss under Rule 12(b)(6), the
Court must accept as true all well-pleaded facts in
plaintiff's complaint and view those facts in the light
most favorable to the plaintiff. Bowlby v. City of
Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court
may consider “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).
The Court must then determine whether the complaint states a
claim for relief that is plausible on its face.
‘“A claim has facial plausibility when the
plaintiff pleads factual content that allows the [C]ourt to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Gonzalez v.
Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“But where the well-pleaded facts do not permit the
[C]ourt to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Iqbal, 556 U.S. at 679 (quoting
Iqbal, the Supreme Court established a two-step
approach for assessing the sufficiency of a complaint in the
context of a Rule 12(b)(6) motion. First, the Court should
identify and disregard conclusory allegations, for they are
“not entitled to the assumption of truth.”
Iqbal, 556 U.S. at 664. Second, the Court
“consider[s] the factual allegations in [the complaint]
to determine if they plausibly suggest an entitlement to
relief.” Id. “This standard
‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of the
necessary claims or elements.'” Morgan v.
Hubert, 335 Fed.Appx. 466, 470 (5th Cir. 2009) (citation
omitted). This evaluation will “be a context-specific
task that requires the reviewing [C]ourt to draw on its
judicial experience and common sense.” Iqbal,
556 U.S. at 679.
“[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.”' Id. at 678 (quoting
Twombly, 550 U.S. at 570).
ISD moves for dismissal of Plaintiff's claim for First
Amendment retaliation. Bonham ISD argues that Plaintiff has
failed to plead a proper policymaker and an official policy.
Plaintiff responds that he has given fair notice to Bonham
ISD of his First Amendment retaliation claim and that these
arguments are more appropriate for summary judgment.
Court previously noted in Wright v. Denison Independent
School District, when alleging a § 1983 claim, a
plaintiff may not establish liability against a government
entity through respondeat superior. 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)); Wright, No. 4:16-cv-615, 2017 WL
2262778, at *3 (E.D. Tex. May 24, 2017), memorandum
adopting in part, No. 4:16-cv-615, Dkt. #36 (E.D. Tex.
Apr. 19, 2017). Accordingly, plaintiffs must plead and prove
that 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). To establish that the
government entity caused the ...