John Doe, et al v. Silsbee ISD, et al

Filing

UNPUBLISHED OPINION FILED. [09-41075 Affirmed ] Judge: EMG , Judge: EBC , Judge: PRO Mandate pull date is 10/07/2010 [09-41075]

John Doe, et al v. Silsbee ISD, et al

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Case: 09-41075

Document: 00511235594

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Date Filed: 09/16/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
September 16, 2010 N o . 09-41075 S u m m a r y Calendar Lyle W. Cayce Clerk

J O H N DOE, Father of Minor Daughter H.S.; JANE DOE, Mother of Minor D a u g h t e r H.S.; H. S., Minor Daughter of John and Jane Doe, P la in t iffs - Appellants v. S I L S B E E INDEPENDENT SCHOOL DISTRICT; RICHARD BAIN, JR., S u p e r in t e n d e n t ; GAYE LOKEY, Principal; SISSY MCINNIS; RAKHEEM B O L T O N ; DAVID SHEFFIELD, D e fe n d a n t s - Appellees

A p p e a l from the United States District Court for the Eastern District of Texas N o . 1:09-CV-374

B e fo r e GARZA, CLEMENT, and OWEN, Circuit Judges. P E R CURIAM:* P a r e n t s John and Jane Doe, and their minor daughter, H.S. (collectively, " A p p e lla n t s "), appeal the district court's FED. R. CIV. P. 12(b)(6) dismissal of their 4 2 U.S.C. § 1983 claims against District Attorney David Sheffield ("Sheffield"),

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 09-41075

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No. 09-41075 S ils b e e Independent School District ("SISD"), Richard Bain, Jr., Gaye Lokey, S is s y McInnis (collectively, "Appellees"), and Rakheem Bolton.1 T h is claim arises from John and Jane Doe's allegation that their daughter, H .S ., was sexually assaulted at a party by Bolton and Christian Rountree,2 fe llo w students at H.S.'s high school. Appellants claim that after the arrest, S h e ffie ld told them that despite having enough evidence to go to trial, the grand ju r y was racially divided and therefore would not vote to return an indictment a g a in s t Rountree and Bolton, who were African-American. The grand jury u lt im a te ly voted against indicting Rountree and Bolton. Appellants claim that a ft e r the vote, they heard derogatory comments in the community about H.S. t h a t indicated a detailed knowledge of the official investigation and grand jury p r o c e e d in g s . As a cheerleader for SISD, H.S. was contractually required to cheer for the b a s k e t b a ll team, whose roster included Bolton. At a February game, H.S.

c h e e r e d for the team but refused to cheer for Bolton individually. As a result, B a in and Lokey told H.S. that she had either to cheer when the others cheered o r to go home. H.S. chose to leave, and McInnis subsequently removed her from t h e squad for the rest of the year. H.S. was permitted to try out for the squad a g a in the following year. A p p e lla n t s originally filed a complaint under 42 U.S.C. § 1983. Appellees file d FED. R. CIV. P. 12(b)(6) motions for failure to state a claim. The district c o u r t denied Appellees' motions but requested that Appellants file an amended c o m p la in t that "clearly and concisely state[d] factual allegations that support[ed] t h e elements of the asserted causes of action." Appellants filed an amended

Pursuant to supplemental state law claims, Bolton is a party to this appeal. He has not filed any briefing on appeal.
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Rountree is no longer a party to this appeal.

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No. 09-41075 c o m p la in t . Appellees again moved to dismiss for failure to state a claim. This t im e , the district court granted the motion to dismiss. This appeal followed. We review de novo a Rule 12(b)(6) dismissal of a claim, "accepting all wellp le a d e d facts as true and viewing those facts in the light most favorable to the p la in t iff." True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009) (internal quotation m a r k s and citation omitted). FED R. CIV. P. 8(a)(2) requires that a pleading c o n t a in a "short and plain statement of the claim showing that the pleader is e n tit le d to relief." A Rule 12(b)(6) dismissal for failure to state a claim is

a p p r o p r ia te when the plaintiff has not alleged enough facts to state a claim to r e lie f that is plausible on its face, and when the plaintiff fails to plead facts " e n o u g h to raise a right to relief above the speculative level, on the assumption t h a t all the allegations in the complaint are true (even if doubtful in fact)." Bell A tla n tic Corp. v. Twombly, 550 U.S. 544, 555­56 (2007). T o state a claim under § 1983, a plaintiff must allege that a state actor has v io la t e d "a right secured by the Constitution and laws of the United States." West v. Atkins, 487 U.S. 42, 48 (1988) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1 9 8 1 )). Appellants claim that Sheffield deprived H.S. of her right to freedom fr o m bodily injury and stigmatization, which Appellants allege are protected lib e r t y interests under the Fourteenth Amendment. Specifically, they argue that s u b s e q u e n t to the grand jury's decision not to indict Rountree and Bolton, S h e ffie ld "defamed" H.S. in a press conference and illegally revealed details of th e indictment hearing. Appellants are correct that "bodily integrity" constitutes a protected liberty interest under the Fourteenth Amendment. See, e.g., Doe v. T a y lo r Indep. Sch. Dist., 15 F.3d 443, 450­51 (5th Cir. 1994) (holding that a s t u d e n t was deprived of a protected liberty interest when sexually assaulted by h e r teacher). However, psychological injury alone does not constitute a violation o f bodily integrity as contemplated under the Fourteenth Amendment. See P a r h a m v. J.R., 442 U.S. 584 (1979) (involving physical confinement); Ingraham 3

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No. 09-41075 v . Wright, 430 U.S. 651 (1977) (involving corporal punishment); Spacek v. C h a r le s , 928 S.W.2d 88 (Tex. App.))Houston 1996) (involving corporal p u n is h m e n t). Furthermore, freedom from false stigmatization does not

c o n s t it u t e a protected liberty interest under the Fourteenth Amendment. Our c a s e law "does not establish the proposition that reputation alone, apart from s o m e more tangible interest such as employment, is either `liberty' or `property' b y itself sufficient to invoke the procedural protection of the Due Process C la u s e ." Paul v. Davis, 424 U.S. 693, 701 (1976). Accordingly, Appellants have n o t stated valid claims for violation of any liberty interests protected by the F o u r t e e n t h Amendment. Appellants also contend that SISD, Bain, Lokey, and McInnis deprived H .S . of a property interest protected by the Fourteenth Amendment. Specifically, they claim that H.S. had a property interest in her position on the c h e e r squad, and Lokey and McInnis deprived H.S. of that interest when they r e m o v e d her from the cheer squad. "[S]tudents do not possess a constitutionally p r o t e c t e d interest in their participation in extracurricular activities." NCAA v. Y e o , 171 S.W.3d 863, 865 (Tex. 2005). Moreover, according to the terms of H.S.'s c h e e r le a d in g contract, her failure to cheer constituted valid grounds for her r e m o v a l from the cheer squad. Accordingly, the district court was correct in d is m is s in g Appellants' claim for unconstitutional deprivation of property. A p p e lla n t s further argue that SISD, Bain, Lokey, and McInnis violated H . S . 's right to equal protection. Specifically, they claim H.S. was treated

d i f f e r e n t ly "because she is a female." "It is well established that a showing of d is c r im in a t o r y intent or purpose is required to establish a valid equal protection c la im ." U.S. v. Crew, 916 F.2d 980, 984 (5th Cir. 1990) (citing Washington v. D a v is , 426 U.S. 229 (1976), and Village of Arlington Heights v. Metro. Hous. Dev. C o r p ., 429 U.S. 252 (1977)). Because Appellants make no showing that H.S.'s

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No. 09-41075 g e n d e r motivated any of Appellees' actions, their equal protection argument fa ils . A p p e lla n t s allege Sheffield deprived H.S. of her First Amendment right to fr e e d o m of speech by retaliating against her for filing sexual assault charges a g a in s t Bolton and Rountree. However, Appellants make no showing that

S h e ffie ld 's alleged retaliatory acts relate to H.S.'s accusations against Rountree a n d Bolton. Accordingly, the district court properly dismissed this claim on S h e ffie ld 's Rule 12(b)(6) motion. F in a lly , Appellants claim SISD, Bain, Lokey, and McInnis violated H.S.'s r ig h t to free speech under the First Amendment because H.S.'s decision not to c h e e r constituted protected speech inasmuch as it was a symbolic expression of h e r disapproval of Bolton's and Rountree's behavior. Courts have long held that p u b lic school students do not "shed their constitutional rights to freedom of s p e e c h or expression at the schoolhouse gate." Tinker v. Des Moines Ind.

C o m m u n ity Sch. Dist., 393 U.S. 503, 511 (1969). In order to determine whether c o n d u c t "possesses sufficient communicative elements to bring the First A m e n d m e n t into play, [we] must ask whether an intent to convey a p a r tic u la r iz e d message was present, and whether the likelihood was great that t h e message would be understood by those who viewed it." Canady v Bossier P a r is h School Board, 240 F.3d 437, 440 (5th Cir. 2001) (citing Texas v. Johnson, 4 9 1 U.S. 397, 404 (1989)). A p p e lla n t s contend the district court erred in holding that H.S. "did not c o n v e y the sort of particularized message that symbolic conduct must convey to b e protected speech." Even assuming arguendo that H.S.'s speech was

s u ffic ie n t ly particularized to warrant First Amendment protection, student s p e e c h is not protected when that speech would "substantially interfere with the w o r k of the school." Tinker, 393 U.S. at 509. "The question whether the First A m e n d m e n t requires a school to tolerate particular student speech . . . is 5

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No. 09-41075 d iffe r e n t from the question whether [it] requires a school affirmatively to p r o m o t e particular speech." Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 2 7 0 (1988). In her capacity as cheerleader, H.S. served as a mouthpiece through w h ic h SISD could disseminate speech))namely, support for its athletic teams. Insofar as the First Amendment does not require schools to promote particular s t u d e n t speech, SISD had no duty to promote H.S.'s message by allowing her to c h e e r or not cheer, as she saw fit. Moreover, this act constituted substantial in t e r fe r e n c e with the work of the school because, as a cheerleader, H.S. was at t h e basketball game for the purpose of cheering, a position she undertook v o lu n t a r ily . Accordingly, we affirm the district court's dismissal of Appellants' F ir s t Amendment claim against SISD, Bain, Lokey, and McInnis. Neither Appellants' complaint, nor any of their subsequent filings, assert c o n s t it u t io n a l violations against Sheffield, SISD, Bain, Lokey, or McInnis upon w h ic h Appellants could plausibly recover under 42 U.S.C. § 1983. Therefore, the d is t r ic t court did not err in dismissing Appellants' claims. Furthermore, the d is t r ic t court was within its discretion to decline to exercise supplemental ju r is d ic t io n over Appellants' state law claims against Bolton. AFFIRMED.

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