DeCossas et al v. St. Tammany Parish School Board et al

Filing 88

ORDER granting in part and denying in part 62 Motion for Summary Judgment. FURTHER ORDERED that Plaintiffs are granted leave to amend their complaintwithin 14 days to provide a more definite statement as to any alleged state law claims. Signed by Judge Nannette Jolivette Brown. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DeCOSSAS, et al.

CIVIL ACTION

VERSUS

CASE NO. 16-3786

ST. TAMMANY PARISH SCHOOL BOARD, et al.

SECTION: “G” (5)

ORDER
This litigation arises out of the expulsion1 of M.D.,2 a minor child who attended a public
high school in St. Tammany Parish.3 Pending before the Court is Defendants St. Tammany Parish
School Board (“the School Board”), Keven R. Darouse (“Darouse”), W.L. Folse, III (“Folse”),
Leonard Tridico (“Tridico”), Neal M. Hennegan (“Hennegan”), Peter J. Jabbia (“Jabbia”), and
Michael Astugue’s (“Astugue”) (collectively, “Movants”) “Motion for Summary Judgment.”4
Having considered the motion, the memoranda in support and in opposition and reply, and the
applicable law, the Court grants the motion in part to the extent that it requests summary judgment
on Plaintiffs’ claims against the Movants in both their individual and official capacities pursuant
to 42 U.S.C. § 1983. The Court denies the motion in part regarding Movants’ request that the court
either dismiss any alleged state law claims or decline to exercise supplemental jurisdiction over
any remaining state law claims against Movants. The Court hereby grants Plaintiffs leave to amend

1

Although Plaintiffs refer to the actions against M.D. throughout the complaint and opposition as a
“suspension,” it appears M.D. was in fact expelled although provided an alternative learning environment.
2

Out of respect for Plaintiffs’ minor child’s privacy and pursuant to Federal Rule of Civil Procedure 5.2, the
Court will refer to Plaintiffs’ child using only the child’s initials, M.D. See Fed. R. Civ. P. 5.2(a) (“Unless the court
orders otherwise, an electronic or paper filing with the court that contains . . . the name of an individual known to be
a minor . . . a party or nonparty making the filing may only include . . . the minor’s initials . . . .”).
3

Rec. Doc. 15.

4

Rec. Doc. 62.

1

their complaint within 14 days of this order to provide a more definite statement as to their state
law claims.
The Court also denies the motion in part to the extent that it requests summary judgment
on Plaintiffs’ claims against the School Board pursuant to 42 U.S.C. § 1983 because Plaintiffs
have challenged the constitutionality of Louisiana Revised Statute § 17:416, which is the statute
that the School Board allegedly relied upon in its decision to expel M.D. The Court will rule on
the School Board’s liability after it decides the constitutionality of Louisiana Revised Statute §
17:416.
I. Background
A.

Factual Background
In this litigation, Plaintiffs allege a variety of claims stemming from the questioning,

search, and eventual expulsion of their minor child M.D. for the child’s alleged drug-related
misconduct on school grounds.5 Specifically, Plaintiffs allege violations of the First, Fourth, Fifth,
and Fourteenth Amendments.6 Plaintiffs name as Defendants the St. Tammany Parish School
Board, as well as the following individuals: Deputy Bryan Gerchow, St. Tammany Parish Sheriff’s
Deputy; Darouse, supervisor of administration for the School Board; Folse, supervisor of the
School Board; Tridico, chief disciplinarian at M.D.’s high school; Hennegan, elected member of
the School Board; Jabbia, assistant supervisor for the School Board; and Astugue, assistant
principal at M.D.’s high school.7

5

Rec. Doc. 15 at 1.

6

Id. at 1–2.

7

Id.

2

Plaintiffs allege that on January 8, 2016, M.D. was ordered to Tridico’s office.8 Plaintiffs
allege that Tridico, in the presence of Deputy Gerchow, interrogated M.D. regarding drug
allegations and searched M.D.9 Plaintiffs further allege that Tridico seized a cellphone that M.D.
was carrying and demanded that M.D. unlock the cellphone, which M.D. eventually did.10
According to Plaintiffs, Deputy Gerchow, Tridico, and Astugue then searched the contents of the
cellphone.11 Plaintiffs allege that Astugue and Tridico recognized the number of another student,
A.G., on the cellphone and then questioned and forced A.G. to sign an untrue statement.12 Plaintiffs
further assert that Tridico and Astugue then confronted M.D. with A.G.’s statement and also forced
M.D. to sign untrue statements.13 Plaintiffs allege that Deputy Gerchow and Tridico “assaulted
and battered” and threatened to arrest M.D., even though they had no reasonable belief that M.D.
had committed an offense.14 Plaintiffs allege that the “intensive search” of M.D. “resulted in
absolutely no evidence of wrongdoing, drugs, or other prohibited materials or violations of
school’s policy.”15 Plaintiffs also allege that Astugue, Tridico, and Deputy Gerchow interrogated
M.D. without issuing a Miranda warning first.16
Plaintiffs allege that Defendants did not notify M.D.’s parents during the interrogation and
search and that they were only advised of the allegations after M.D. had been suspended with a

8

Id. at 8.

9

Id.

10

Id. at 9, 11.

11

Id. at 11.

12

Id. at 12.

13

Id. at 12–13.

14

Id. at 14.

15

Id. at 11.

16

Id. at 13.

3

recommendation for expulsion on “disciplinary and drug allegations.”17 Plaintiffs further allege
that on January 14, 2016, the School Board and the other Defendants held a constitutionally
inadequate hearing at which Tridico and Astugue stated “unfounded opinions and cited illegal
evidence based on illegally obtained . . . information” from M.D.’s father’s cellphone.18 Plaintiffs
allege that Darouse ordered the expulsion of M.D.19 According to Plaintiffs, an appeal of M.D.’s
expulsion was denied.20 Plaintiffs also appear to allege that Defendants’ hearings for expulsion
and disciplinary actions violated their right to due process.21 Finally, Plaintiffs challenge the
constitutionality of Louisiana Revised Statute § 17:416, which requires a student found guilty of
possession or distribution of a controlled substance to be expelled for a minimum of four complete
school semesters.22
B.

Procedural Background
On April 29, 2016, Plaintiffs filed the instant action pursuant to 42 U.S.C. § 1983, alleging

federal constitutional violations and seeking expungement of all relevant records, reversal of the
suspension, and general and punitive damages against all Defendants.23 On July 15, 2016, Deputy
Gerchow filed an answer to the complaint.24 On July 18, 2016, Movants filed a “Rule 12(b)(6)
Motion to Dismiss, or in the Alternative, Motion for a More Definite Statement Pursuant to FRCP

17

Id. at 20, 23.

18

Id. at 24.

19

Id. at 25.

20

Id.

21

Id. at 6.

22

See id. at 7. See also La. Rev. Stat. § 17:416 C(2)(a)(ii).

23

Rec. Doc. 1.

24

Rec. Doc. 3.

4

Rule 12(e).”25 On March 27, 2017, the Court granted the motion in part to the extent that it
requested a more definite statement and granted Plaintiffs 21 days to amend the complaint to
provide a more definite statement of: “(1) their federal and state law claims against the School
Board; (2) their claims against the individual Movants for relief under Section 1983, including a
non-conclusory statement of the specific conduct in which individual Movants engaged to violate
their rights and whether they are suing the individual Movants in their personal or official
capacities; and (3) their claims for relief against the individual Movants under state law.”26 On
April 17, 2017, Plaintiffs filed an amended complaint.27 On August 10, 2017, the Court granted
Deputy Gerchow’s motion for summary judgment to the extent that it requested summary
judgment on Plaintiffs’ claims against him under 42 U.S.C. § 1983.28
Movants filed the instant motion for summary judgment on July 17, 2017.29 Plaintiffs filed
an opposition on July 25, 2017.30 With leave of Court, Movants filed a reply on August 2, 2017.31
II. Parties’ Arguments
A.

Movants’ Arguments in Support of the Motion
The remaining Defendants move the Court for summary judgment on all of the claims that

Plaintiffs have brought against them.32 In support of the motion, Movants state that Plaintiffs

25

Rec. Doc. 4. Deputy Gerchow did not join the motion.

26

Rec. Doc. 14 at 26.

27

Rec. Doc. 15.

28

Rec. Doc. 81.

29

Rec. Doc. 62.

30

Rec. Doc. 69.

31

Rec. Doc. 79.

32

Rec. Doc. 62 at 1.

5

apparently attempt to raise the following claims for relief against Movants: (1) First Amendment
claims against Tridico, Astugue, and Deputy Gerchow;33 (2) Fourth Amendment claims against all
named Defendants; (3) Fifth and Fourteenth Amendment substantive and procedural due process
claims for relief against all named Defendants; (4) Fourteenth Amendment claims against all
named Defendants; and (5) various state law tort claims.34 Plaintiffs have not disputed Movants’
characterization of these claims.35
Movants first argue that Plaintiffs have not alleged any facts to support their First
Amendment claims.36 Moreover, Movants aver that there is no evidence of any violation of the
First Amendment.37 Because there are no allegations or evidence implicating the First Amendment
“in any way other than the conclusory assertions made by Plaintiffs,” Movants contend that
Plaintiffs’ claims for violations of the First Amendment should be dismissed.38
Next, Movants argue that Plaintiffs’ claims under the Fourth Amendment are not supported
by competent evidence and should therefore be dismissed.39 According to Movants, the search of
a student by school officials does not require probable cause and is instead justified where there
are reasonable grounds for suspecting that the search will result in the discovery of evidence that

33

Deputy Gerchow has already been dismissed from this action. See Rec. Doc. 81.

34

Rec. Doc. 62-1 at 2–3.

35
Although the Defendants/Movants did not identify the issue, Plaintiffs also appear to challenge the
constitutionality of Louisiana Revised Statute § 17:416. Therefore, in accordance with Federal Rule of Civil
Procedure 5.1(b) and 28 U.S.C. § 2403(b), the Court has certified the constitutional challenge and given notice to the
State attorney general.
36

Id. at 4.

37

Id.

38

Id.

39

Id. at 5.

6

the student is violating the law or the rules of the school.40 Movants argue that there is nothing
alleged in the amended complaint and presumably no evidence now being offered that suggests
there were not reasonable grounds for suspecting a violation of school rules.41 Movants aver that
the undisputed evidence shows Tridico had reasonable grounds to search M.D.’s phone due to
evidence of participation in the purchase, use, sale, and/or possession of illegal drugs.42 Movants
further assert that it is undisputed that M.D. was not authorized to carry and use a phone at school
and that M.D. consented to the search of the phone, as he gave school officials the code to enter
the phone.43 Moreover, Movants assert that it is undisputed that M.D. admitted that he violated
school rules giving rise to “mandatory discipline” for possession or use of drugs under Louisiana
Revised Statute § 17:416.44 Movants additionally argue that the search of the phone was
reasonable, as it “had a moderate chance of finding evidence of wrongdoing.”45 Further, Movants
assert that Tridico had reasonable grounds to question M.D., and this questioning led to M.D.’s
admission to violating the law and school policy.46 Movants also assert that all of the events took
place on school property and during school hours.47 Finally, Movants contend that there is no
evidence of arrest or seizure of M.D. in this case such that the Fourth Amendment is implicated.48
Movants contend that there is no basis either in law or in fact to allow recovery by Plaintiffs against

40

Id. at 6 (citing New Jersey v. T.L.O., 469 U.S. 325, 341 (1985)).

41

Id.

42

Id. (citing Rec. Docs. 45-2, 62-2, 62-3).

43

Id. (citing Rec. Doc. 33-8 at 29–30).

44

Id.

45

Id. at 6 n.25 (citing Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 371 (2009)).

46

Id. at 6.

47

Id. at 7.

48

Id.

7

Movants for a violation of the Fourth Amendment.49
Next, Movants contend that there is no evidence that there was a violation of Plaintiffs’
substantive due process rights under the Fifth and Fourteenth Amendments.50 According to
Movants, a plaintiff who brings a substantive due process claim must allege a deprivation of a
constitutionally protected right and must demonstrate that the government action is not rationally
related to a legitimate government interest.51 Here, Movants contend that Plaintiffs cannot
“reasonably state” that the investigation by school personnel of a student for purchase and
possession of drugs at school is not rationally related to a government interest.52 Movants argue
that even taking the facts of the case as alleged by Plaintiffs as true and accepting the evidence
submitted, “it cannot be said that a student consenting to a search of his phone (or his father’s
phone) that provides evidence of [a] violation of school policy and purchase and possession of
drugs, is something that would ‘shock the conscience’ such that there is a violation of any
substantive due process.”53 Likewise, Movants aver that even if the individual Movants instituted
an unlawful inspection of a cellphone, which Movants allege is unsupported by the evidence, this
matter does not rise to the level of a deprivation of substantive due process.54 Moreover, Movants
assert that there is no allegation that what individual Movants did was arbitrary, capricious, or

49

Id.

50
Id. at 8. Movants also incorporate Deputy Gerchow’s argument with respect to M.D.’s mother’s claims for
violation of due process in his memorandum in support of his motion to dismiss. Id. at 7 n.26 (citing Rec. Doc. 17-1
at 4–5).
51
Id. at 9 (citing Cripps v. La. Dep’t of Agric. & Forestry, 819 F.3d 221, 232 (5th Cir. 2016); Mikeska v. City
of Galveston, 451 F.3d 376 (5th Cir. 2006)).
52

Id.

53

Id. (citing Cripps, 819 F.3d at 232).

54

Id.

8

unrelated to the legitimate goal of maintaining an atmosphere conducive to learning.55
Movants further argue that the evidence demonstrates that M.D. was offered “ongoing
education” such that he was not at risk of being deprived of a constitutionally protected property
interest.56 Movants aver that the Fifth Circuit has recognized that Louisiana’s public education
system includes alternative education in cases involving recommended expulsions and does not
implicate a Fourteenth Amendment interest.57 Movants argue that Plaintiffs have not alleged that
M.D. was denied a right covered by the 14th Amendment, education or otherwise, which Movants
assert is a “necessary requisite of any substantive due process claim.”58 Moreover, Movants
contend that a state remedy exists for addressing unlawful expulsions, and therefore, no violation
of Plaintiffs’ substantive due process rights occurred.59
Next, Movants contend that the evidence demonstrates that procedural due process was not
violated.60 According to Movants, the evidence in the record shows that there was no danger of
total exclusion of M.D. from school and that Plaintiffs received adequate process.61 Movants
contend that Plaintiffs were entitled to oral notice of the charges against M.D. and an explanation
of the evidence with an opportunity to present M.D.’s side of the story.62 Movants further aver that
the School Board is not required to offer counsel to Plaintiffs, and that Plaintiffs’ allegations of a

55

Id. at 10 (citing Fee v. Herndon, 900 F.2d 804, 808 (5th Cir. 1990)).

56

Id. (citing Rec. Doc. 62-2).

57

Id. at 10–11 (citing Harris ex rel. Harris v. Pontotoc Cnty. Sch. Dist., 653 F.3d 685, 690 (5th Cir. 2011);
Swindle v. Livingston Parish Sch. Bd., 655 F.3d 386, 395 (5th Cir. 2011)).
58

Id. at 11–12 (citing Swindle, 655 F.3d at 394).

59

Id. (citing La. Rev. Stat. § 17:416(C)(5)).

60

Id. at 13.

61

Id.

62

Id. (citing Goss v. Lopez, 419 U.S. 565, 581 (1975)).

9

policy designed to “avoid due process hearings for suspensions and disciplinary actions”
contradicts other allegations set out in the amended complaint as well as evidence in the record.63
Movants argue that there is no allegation or evidence in the record that Plaintiffs offered any
information to Movants that Movants refused to consider.64 According to Movants, the evidence
demonstrates that School Board members questioned M.D. about his involvement in the incident
at issue at the appeal but that M.D. refused to provide any responsive information.65
Because, Movants argue, Plaintiffs cannot show a deprivation or potential deprivation of a
property interest and Plaintiffs were provided with all of the procedural safeguards to which they
were entitled, Plaintiffs cannot prevail on claims against any Movant for violation of their
substantive or procedural due process rights.66 Movants submit that there is no evidence of any
violation of law during the Movants’ interactions with M.D. and his parents and that Plaintiffs’
claims instead “fall within the purview of Louisiana tort law, not Constitutional violations.”67
Next, Movants argue that Darouse and Hennegan, as decision makers at the School Board
disciplinary hearings, are entitled to qualified immunity, and Plaintiffs’ amended complaint related
to the sufficiency of the evidence at those hearings does not overcome the defense of qualified
immunity.68 Movants aver that Darouse, the hearing officer for the School Board in connection
with student disciplinary proceedings, is immune from suit while acting in his role as the hearing
officer and that Hennegan is immune from suit while acting as one of the School Board members

63

Id.

64

Id.

65

Id.

66

Id. at 14.

67

Id. at 9. Movants also deny that there is even a claim in tort. See id. at 9 n.27.

68

Id. at 14, 16–17.

10

adjudicating appeals.69 Movants argue that the allegations against Hennegan are “completely
innocuous,” as he merely offered his opinion to Plaintiffs regarding this matter as a School Board
member and decision maker.70 According to Movants, Plaintiffs allege that School Board members
“implored Plaintiffs to provide information to allow the Board to address their concerns, to no
avail.”71 Thus, Movants argue that Hennegan is entitled to qualified immunity.72
Movants further aver that Plaintiffs allege that Darouse and Hennegan, in their respective
decision-making roles, were “faced with evidence that M.D. had in fact done something in
violation of school rules, and in accordance with the mandates of Louisiana State Law, excluded
the student from his regular education setting in accordance with law.”73 According to Movants,
Plaintiffs’ claims that the evidence at the hearings was insufficient does not give rise to a claim
under Section 1983 that would overcome Darouse and Hennegan’s defense of qualified
immunity.74
Movants further contend that all of the individual Movants are entitled to qualified
immunity, because Plaintiffs cannot make out a violation of a constitutional right.75 Movants assert
that Plaintiffs allege that looking at the evidence on the cellphone in M.D.’s possession is a
constitutional violation.76 However, Movants argue that Plaintiffs cannot meet the first

69

Id. at 14.

70

Id. at 16.

71

Id.

72

Id.

73

Id.

74

Id. at 16–17 (citing Wood v. Strickland, 420 U.S. 308, 319–320 (1975)).

75

Id. at 17.

76

Id.

11

requirement to overcome qualified immunity, because they have not stated a violation of a
constitutional right.77 Movants argue that a court order is not required for a search of a student by
school employees on school grounds and that the evidence demonstrates that there was reasonable
cause for the search of M.D.’s person and cellphone in this instance.78 Additionally, Movants
argue, there can be no constitutional violation where, as here, M.D. actually agreed to unlock the
cellphone and allow a limited search of the contents.79 Movants argue that while Plaintiffs allege
that the phone belonged to M.D.’s father, M.D. had apparent authority over the phone, and
therefore, any constitutional violation claimed by M.D.’s father is groundless.80 Moreover, even if
there was a constitutional violation, Movants argue that it was not clearly established that M.D.
had a “right to use a phone in the context of a school setting for drug transactions at school.”81
According to Movants, because courts have not outlined specific requirements of hearing
officers in the context of school discipline, Movants cannot be shown to have violated any clearly
established law regarding disciplinary hearings.82 Movants also contend that there is simply no
evidence in the record to support a claim against Folse or Jabbia, as neither one made the decisions
at issue in this case.83 Thus, Movants aver that the individual movants are entitled to qualified
immunity and that the claims against the individual Movants should be dismissed on the basis of

77

Id. at 18.

78

Id.

79

Id.

80

Id. at 18 n.38.

81

Id. at 18.

82

Id.

83

Id. at 19.

12

qualified immunity alone.84
Finally, Movants argue that Plaintiffs appear to raise but cannot prevail on any state law
claims against them.85 Movants argue that Plaintiffs cannot recover on any state law claims,
because the individual Movants were all performing their duties with the School Board at the time
of the act or omission allegedly giving rise to Plaintiffs’ claims.86 Moreover, Movants contend that
neither the factual allegations nor the evidence in the record give rise to claims under state tort
law.87 Movants further contend that in the absence of a federal claim, the Court should decline to
exercise jurisdiction over any remaining state law claims.88 Movants argue that Plaintiffs have not
produced any evidence of injury to M.D. as a result of any action by Movants.89 According to
Movants, Plaintiffs have not submitted evidence that M.D. was denied an education or that he
underwent medical or psychiatric treatment.90
B.

Plaintiffs’ Arguments in Opposition to the Motion
In opposition, without citing to any evidence in the record and only submitting affidavits

by Plaintiffs M.D. and M.D.’s mother, Plaintiffs argue that the case is “full of triable disputed
facts.”91 Plaintiffs argue that Movants’ memorandum in support of the motion for summary
judgment is “replete with canned language incorporated from other sources indicating that

84

Id. at 18.

85
Id. Specifically, Movants identify potential claims of intentional infliction of emotional distress,
harassment, assault and battery, and false imprisonment.
86

Id. at 19–20 (citing La. Rev. Stat. § 17:439).

87

Id. at 20–22.

88

Id. at 22.

89

Id.

90

Id.

91

Rec. Doc. 69 at 1.

13

members of the School Board have no legal or constitutional obligations or limits, and those that
deal with school boards are told to leave their constitutional rights outside because the School
Board employees do not have to pay any attention to them.”92 Plaintiffs aver that the actions of
Tridico, Astugue, and Darouse demonstrate a knowing disregard of Plaintiffs’ rights.93 Plaintiffs
contend that M.D.’s status as a minor without any representation made it easier to “enforce their
will on him.”94 According to Plaintiffs, there were no drugs found, but “they” invaded the
cellphone, “which is clearly protected under the First Amendment.”95 Plaintiffs argue that there
was no evidence that there were “any drug issues at any time on the school grounds or during
school hours” and that there was never a voluntary confession about drugs.96 According to
Plaintiffs, the School Board’s authority is “clearly limited” by state statute, so the investigation in
this case exceeded “the jurisdictional authority given.”97 Because the School Board exceeded its
jurisdiction, Plaintiffs contend, it waived “any protection there might have been for just ‘doing’
their job.”98
Plaintiffs aver that the argument that Darouse “was a hearing officer and immune from suit
is ridiculous,” because a hearing officer for the School Board cannot intentionally ignore statutory
and constitutional due process standards and intentionally tell Plaintiffs the wrong information

92

Id. at 2.

93

Id.

94

Id.

95

Id.

96

Id.

97

Id. at 2–3 (citing La. Rev. Stat. § 17:416).

98

Id. at 3.

14

about hearings.99 Plaintiffs further argue that Hennegan, as an elected member of the School Board,
cannot escape liability as he stepped out of his role as “judge” when he advised Plaintiffs not to
listen to their attorney and not to file suit.100 Next, Plaintiffs contend that Folse cannot escape
liability, as he was in charge of the training and daily activities of Tridico, Astugue, and Darouse,
who filled in for Folse at hearings such as M.D.’s hearing in this case.101 According to Plaintiffs,
Folse inadequately prepared Darouse, which prevented Plaintiffs from receiving due process.102
Plaintiffs assert that Folse wrote Plaintiffs letters approving what Darouse had done and was
“obviously staying up to date on the detailed activities.”103
Plaintiffs next aver that the cases cited by Movants are dated, as smart phones did not exist
at the time of those decisions.104 Plaintiffs argue that Riley v. California dealt with “improper cell
phone demands by the authorities.”105 Plaintiffs argue that “Tridico, Astague [sic], Darouse, et.
al.” used Deputy Gerchow “as the muscle” to detain M.D. and intimidate M.D. “with threats of
physical violence, arrest, or both.”106 According to Plaintiffs, they knowingly violated Plaintiffs’
rights by unlocking M.D.’s father’s cellphone and illegally copying and printing “constitutionally
protected private data under the First Amendment” and forced M.D. to be a witness against himself
in violation of the Fifth Amendment.107 Plaintiffs further contend that they used the evidence to

99

Id.

100

Id.

101

Id.

102

Id. at 3–4.

103

Id. at 4.

104

Id.

105

Id. (citing 573 U.S. 1 (2014)).

106

Id. at 4–5.

107

Id. at 5.

15

intimidate M.D. into signing fabricated statements.108 Plaintiffs attach affidavits of M.D.’s mother
and M.D., which Plaintiffs aver “clearly demonstrate” that the motion for summary judgment is
premature and that multiple “justiciable issues of triable facts” exist.109
C.

Movants’ Reply in Further Support of the Motion
In reply, Movants argue that Plaintiffs cite no record evidence to contest the statement of

uncontested material facts submitted by Movants.110 According to Movants, Rule 56 requires a
party asserting that a fact is genuinely disputed to cite to particular material in the record.111
Movants further argue that Plaintiffs do not point to any authority or evidence to support a claim
for violation of the First or Fourth Amendments.112 Movants argue that Plaintiffs’ suggestion that
there was no reasonable cause for the search of M.D. and the cellphone, without pointing to any
evidence, does not create a genuine dispute of material fact.113
Next, Movants argue that Plaintiffs do not cite to any evidence to raise a genuine dispute
of material fact as to Plaintiffs’ due process claims.114 Movants maintain that the Fifth Circuit has
recognized that a student’s transfer to an alternative education program does not deny access to
public education.115 Moreover, Movants argue that Plaintiffs are not entitled to a full scale hearing
with cross examination and discovery prior to disciplinary hearings.116 Because Plaintiffs had

108

Id.

109

Id.

110

Rec. Doc. 79 at 1–2.

111

Id. at 2 (citing Fed. R. Civ. P. 56(a)).

112

Id.at 2–3.

113

Id. at 3 (citing Rec. Doc. 70-1).

114

Id. at 4.

115

Id. (citing Swindle, 655 F.3d at 394).

116

Id. (citing Whiteside v. Kay, 446 F.Supp. 716, 720 (W.D. La. 1978)).

16

notice and an opportunity to be heard, Movants contend that they are entitled to summary judgment
on Plaintiffs’ claims for violations of their rights to due process.117
Movants further argue that Plaintiffs cite to no legal or factual authority to dispute that
Movants are entitled to qualified immunity.118 Movants note that Plaintiffs’ argument that a School
Board member gave Plaintiffs incorrect information regarding the timing of the appeal is of no
moment, as Plaintiffs timely appealed to the School Board and had an appeal hearing before the
Board.119 Moreover, Movants assert that a School Board member speaking to a student and his
parents at a disciplinary hearing is not a constitutional violation.120 Movants argue that Plaintiffs
point to no evidence that Folse’s employees did anything wrong or that they were improperly
trained.121 Finally, Movants argue that Plaintiffs have provided no evidence to raise a genuine
dispute of material fact as to Plaintiffs’ claims under state law.122 Accordingly, Movants contend
that they are entitled to summary judgment on all claims against them based on the facts, law, and
the doctrine of qualified immunity.123
D.

“Denied” and Undisputed Material Facts
Plaintiffs admit to the following material facts set forth in Movants’ “Statement of

Uncontested Material Facts:”124


Kevin Darouse is presently employed by the St. Tammany Parish School Board as

117

Id. at 4–5.

118

Id. at 5.

119

Id.

120

Id.

121

Id.

122

Id.

123

Id. at 6.

124

Rec. Doc. 62-4.

17

Supervisor of Administration, and has worked in that capacity since July 2010. Before
that, he was Assistant Principal at Fontainebleau High School which is operated by the
St. Tammany Parish School Board.125


Kevin Darouse’s responsibilities as Supervisor of Administration include acting as the
hearing officer for St. Tammany Parish School Board on behalf of the Superintendent
of the St. Tammany Parish Public School System in connection with certain
disciplinary actions and proceedings involving students. In connection with his
responsibility as a hearing officer, he gathers facts and makes determinations
concerning student misconduct.126



The St. Tammany Parish School Board has, in the past, and since February 2016,
reversed, or sometimes modified the decisions of the Superintendent or his designee on
expulsions, including the shortening of an expulsion with a return to the regular
education setting.127



It is a violation of the St. Tammany Parish School Board policy for a student to possess
a phone at school.128

Without citing to any evidence in the record or even their own affidavits attached to
Plaintiffs’ opposition to the motion, Plaintiffs deny the following material facts set forth in
Movants’ “Statement of Uncontested Material Facts:”129


In his capacity as Supervisor of Administration for the St. Tammany Parish School
Board, Kevin Darouse acted as the Superintendent’s designee and hearing officer and
was personally involved with and conducted the administrative proceeding on January
14, 2016, relating to investigation and discipline of M.D. for violation of school rules,
in particular the purchase and/or possession of a controlled substance, Vyvance in
December 2015 and January 2016.130



After an investigation, M.D. was found by School Administrators to have purchased
and possessed a controlled substance, Vyvance in December 2015 and January 2016,
and M.D. admitted to these offenses and gave written statements of the offenses.131

125

Id. at 1 (citing Rec. Doc. 62-2).

126

Id.

127

Id. at 3 (citing Rec. Doc. 62-2).

128

Id. at 4 (citing Rec. Doc. 62-3, Rec. Doc. 45-2, Rec. Doc. 45-3).

129

Rec. Doc. 62-4.

130

Id. at 2 (citing Rec. Doc. 62-2).

131

Id. (citing Rec. Doc. 62-2, Rec. Doc. 45-2 at 5–6).

18



The admissions of M.D. resulted in the School Administrator suspending M.D. and
recommending expulsion, as is required by law.132



As a result of the recommendation for expulsion, a hearing was conducted on January
14, 2016 by Kevin Darouse, following which M.D. was found guilty of his offense and
was expelled for 4 complete semesters, in accordance with law.133



The St. Tammany Parish School Board has instituted, in accordance with law, a system
whereby students subject to discipline, even in the event of an expulsion, are not denied
or deprived of their education. Students are placed in an alternative education program
and school such that they are not denied or deprived of an education. M.D. was not,
during the course of disciplinary proceedings, subject to being excluded from the
educational process.134



M.D. was not, during the course of proceedings, subject to being out of school for a
period greater than 10 days, and the alternative school setting ensured that he was given
a free and appropriate public education in accordance with law. M.D. was actually
enrolled and continued attending school until he withdrew on February 24, 2016.
Neither M.D. nor his parents, ever sought any return to St. Tammany Parish School
Board for an education.135



At the hearing conducted by Kevin Darouse, M.D. was given notice of the charges that
had been levied against him, and M.D. was given an opportunity to tell Kevin Darouse
his side of the story. Neither M.D. nor his parents ever requested an attorney be present
at the January 14, 2016 expulsion hearing, nor were they denied the right to be present.
M.D. and his mother were allowed to present their side of the story and each of them
admitted that M.D. purchased and possessed drugs in violation of School Board policy.
Only then was the decision to expel made by Kevin Darouse.136



M.D. had given written statements at school, and confirmed the information in the
written statements at the hearing. M.D. and his mother admitted that M.D. was guilty
of the conduct, purchase and possession of drugs illegally at school, that, in accordance
with law, requires expulsion.137



In performing the hearing involving M.D., Kevin Darouse was just performing his job

132

Id. (citing Rec. Doc. 62-2).

133

Id. (citing Rec. Doc. 62-2).

134

Id. (citing Rec. Doc. 62-2).

135

Id. (citing Rec. Doc. 62-2).

136

Id. (citing Rec. Doc. 62-2).

137

Id. at 3 (citing Rec. Doc. 62-2, Rec. Doc. 45-2 at 5–6).

19

as a Supervisor of Administration. At the hearing, Kevin Darouse advised M.D. and
his parents of charges against M.D., and M.D., with his parents and other supporters
present, were [sic] allowed to address what was alleged to have occurred.138


In connection with the proceeding involving M.D., M.D. was given notice of what he
was accused of doing and given an opportunity to respond. M.D. was not deprived of
his education and was not in danger of being deprived of his education as a result of
any hearing involving Kevin Darouse. M.D. was given an opportunity to respond at the
hearing and the discipline meted out, as mandated by law. M.D. was offered an
alternative school setting, and utilized this setting for a time, until he withdrew from
school with the St. Tammany Parish School Board.139



M.D., through his parents, was given notice of Kevin Darouse’s decision, given notice
of their right to appeal to the St. Tammany Parish School Board, and appealed the
expulsion to the St. Tammany Parish School Board, which appeal hearing was
undertaken before the St. Tammany Parish School Board on February 18, 2016.140



At the appeal hearing before the St. Tammany Parish School Board on February 18,
2016, on which Neal Hennegan, School Board Member for District 1 was one of 12
members present to decide the appeal, Plaintiffs’ counsel was present, and neither M.D.
nor his parents provided any evidence or information to refute the finding made by
Kevin Darouse at the January 14, 2016 hearing. According to M.D.’s mother, no
evidence was offered by Plaintiffs to the School Board or its members in mitigation of
M.D.’s offense.141



According to M.D.’s mother, neither she nor M.D. were providing information based
on advice of Plaintiffs’ attorney.142



There being no evidence provided to the St. Tammany Parish School Board, it voted to
affirm the decision of expulsion set out by law.143



Neither the St. Tammany Parish School Board, nor Superintendent Folse or Associate
Superintendent Jabbia had actually participated in the expulsion hearing that Kevin
Darouse had undertaken and neither Superintendent Folse or Associate Superintendent
Jabbia, refused to allow Plaintiffs or M.D. to provide evidence.144

138

Id. (citing Rec. Doc. 62-2).

139

Id. (citing Rec. Doc. 62-2).

140

Id. (citing Rec. Doc. 62-2).

141

Id. (citing Rec. Doc. 62-2).

142

Id. (citing Rec. Doc. 62-2).

143

Id. at 4 (citing Rec. Doc. 62-2).

144

Id. (citing Rec. Doc. 62-2).

20



At the time M.D. was called to the office, it was to investigate M.D. and his
participation in the purchase, use, sale and/or possession of illegal substances in
violation of school policy, and because, based on the information in Leonard Tridico’s
possession, M.D. had been discussing the purchase, use, sale and/or possession of drugs
at school with other students on his phone, including via text messages.145



Leonard Tridico and Michael Astugue did not touch, physically accost or brutalize
M.D. in any way.146



Leonard Tridico and Michael Astugue did not and have not ever physically threatened
M.D. during their dealings with him.147



Leonard Tridico and Michael Astugue did not and have not ever forcibly detained M.D.
during their dealings with him.148



Leonard Tridico and Michael Astugue did not and have not ever threatened to arrest
M.D.149



Leonard Tridico and Michael Astugue did not fabricate and have not ever fabricated a
statement for M.D. The two statements that M.D. wrote were in his own handwriting,
and M.D. provided this same information to Leonard Tridico and Michael Astugue
verbally.150



Neither Leonard Tridico, nor any other School Administrator or employee, nor the
School Resource Officer harmed M.D. in any way during the course of the day on
January 8, 2016.151



At the end of the school day on Janaury 8, 2016, the cell phone that was in the
possession of M.D. that day was turned over to his parent.152

145

Id. (citing Rec. Doc. 62-3, Rec. Doc. 45-2, Rec. Doc. 45-3).

146

Id. (citing Rec. Doc. 62-3, Rec. Doc. 45-2, Rec. Doc. 45-3).

147

Id. (citing Rec. Doc. 62-3, Rec. Doc. 45-2, Rec. Doc. 45-3).

148

Id. (citing Rec. Doc. 62-3, Rec. Doc. 45-2, Rec. Doc. 45-3).

149

Id. (citing Rec. Doc. 62-3, Rec. Doc. 45-2, Rec. Doc. 45-3).

150

Id. (citing Rec. Doc. 62-3, Rec. Doc. 45-2, Rec. Doc. 45-3).

151

Id. at 5 (citing Rec. Doc. 62-3).

152

Id. (citing Rec. Doc. 62-3, Rec. Doc. 45-2).

21

III. Law and Analysis
A.

Legal Standard for Motion for Summary Judgment under Rule 56
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits

show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.”153 When assessing whether a dispute as to any material fact exists, a court
considers “all of the evidence in the record but refrains from making credibility determinations or
weighing the evidence.”154 All reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”155
If the record, as a whole, could not lead a rational trier of fact to find for the non-moving party,
then no genuine issue of fact exists, and the moving party is entitled to judgment as a matter of
law.156
On a motion for summary judgment, the moving party bears the initial burden of
identifying those portions of the record that it believes demonstrate the absence of a genuine issue
of material fact.157 Where the non-moving party bears the burden of proof at trial, as here, the party
moving for summary judgment may meet its burden by showing the Court that there is an absence
of evidence to support the non-moving party’s case.158 Thereafter, if the moving party satisfies its
initial burden, the burden shifts to the non-moving party to “identify specific evidence in the

153

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
154

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

155

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

156

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).

157

Celotex, 477 U.S. at 323.

158

Id. at 325.

22

record, and articulate” precisely how that evidence supports his claims.159 In doing so, the nonmoving party may not rest upon mere allegations or denials in his pleadings, but rather must set
forth “specific facts showing the existence of a ‘genuine’ issue concerning every essential
component of its case.”160 A party seeking to establish that a fact is genuinely disputed must
support such an assertion by reference to “materials in the record, including depositions,
documents . . . affidavits or declarations . . . admissions, interrogatory answers, or other
materials.”161 The nonmovant’s burden of demonstrating a genuine issue of material fact is not
satisfied merely by creating “some metaphysical doubt as to the material facts,” “by conclusory
allegations,” by “unsubstantiated assertions,” or “by only a scintilla of evidence.”162 There is no
genuine issue for trial “unless there is sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party.”163
B.

Applicable Law on the First Amendment
The First Amendment provides that Congress shall not make laws abridging the freedom

of speech.164 In Tinker v. Des Moines Independent Community School District, et al., the Supreme
Court held that students do not forfeit their First Amendment rights to freedom of speech and
expression at school.165 However, the First Amendment “does not provide students absolute rights

159

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris
v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
160

Morris, 144 F.3d at 380 (citing Thomas v. Price, 975 F.2d 231, 235 (5th Cir. 1992)); see also Bellard v.
Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
161

Fed. R. Civ. P. (c)(1).

162

Little, 37 F.3d at 1075.

163

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citing First Nat’l Bank of Ariz. v. Cities Serv.
Co., 391 U.S. 253, 288–89 (1968)).
164

U.S. Const. amend. I.

165

Tinker v. Des Moines Indep. Comm. Sch. Dist., et al., 393 U.S. 503, 506 (1969).

23

to such freedoms, and those rights must be tempered in the light [sic] of a school official’s duty to,
inter alia, ‘teach[] students the boundaries of socially appropriate behavior,’ and ‘protect those
entrusted to their care.’”166 “Therefore, because ‘the constitutional rights of students in public
school are not automatically coextensive with the rights of adults in other settings,’ certain speech,
which would be protected in other settings, might not be afforded First Amendment protection in
the school setting.”167 Under the standard set forth in Tinker, a student “may express his opinions
. . . if he does so without materially and substantially interfer[ing] with the requirements of
appropriate discipline in the operation of the school.”168 “Put another way, conduct by a student,
in class or out of it, which for any reason . . . materially disrupts classwork or involves substantial
disorder or invasion of the rights of others is, of course, not immunized [.]”169
The Fifth Circuit has held the standard established in Tinker “can be satisfied by either
showing a disruption has occurred or by showing demonstrable factors that would give rise to any
reasonable forecast by the school administration of substantial and material disruption.’”170 The
Supreme Court has revisited the issue of student speech “on several occasions, each time carving
out narrow exceptions to the general Tinker standard based on certain characteristics or content of
the speech.”171 In Morse v. Frederick, the Supreme Court considered whether a school infringed
upon a student’s First Amendment right of free speech when it disciplined the student for holding

166

Bell v. Itawamba Cnty. Sch. Bd., 799 F.3d 379, 389 (5th Cir. 2015) (citing Bethel Sch. Dist. No. 403 v.
Fraser, 478 U.S. 675, 681 (1986); Morse v. Frederick, 551 U.S. 393, 408 (2007)).
167

Id. at 390 (quoting Fraser, 478 U.S. at 682).

168

Id. (quoting Tinker, 393 U.S. at 513) (internal quotations omitted).

169

Id. (citing Tinker, 393 U.S. at 513).

170

Id. (quoting Shanley v. N.E. Indep. Sch. Dist., Bexar Cnty., Tex., 462 F.2d 960, 974 (5th Cir. 1972)).

171

Id. (citing Morse v. Frederick, 551 U.S. 393, 408 (2007); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S.
260, 273 (1988); Fraser, 478 U.S. at 685).

24

up a banner that stated “BONG HITS 4 JESUS” at a school-sponsored event.172 The Court held
that the principal of the school could “consistent with the First Amendment, restrict student speech
at a school event, when that speech is reasonably viewed as promoting illegal drug use.”173 In
reaching its conclusion, the Court recognized that preventing drug use by school children is an
“important—indeed, perhaps compelling interest.”174 Thus, the “special characteristics of the
school environment, and the governmental interest in stopping student drug abuse . . . allow
schools to restrict student expression that they reasonably regard as promoting illegal drug use.”175
C.

Applicable Law on the Fourth Amendment
The Fourth Amendment establishes the “right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.”176 In New Jersey v.
T.L.O., the Supreme Court held that school officials need not obtain a warrant before searching a
student who is under their authority.177 Rather, the Supreme Court held that the legality of a search
of a student should depend on the reasonableness of the search, under all of the circumstances.178
In determining the reasonableness of a search of a student, the Supreme Court held that the search:
(1) must be “justified at its inception” by the presence of “reasonable grounds for suspecting that
the search will turn up evidence that the student has violated or is violating either the law or the

172

551 U.S. at 397–98.

173

Id. at 403.

174

Id at 406 (quoting Veronia Sch. Dist. 47J v. Acton, 515 U.S. 646, 661 (1995) (internal quotation marks

omitted)).
175

Id. at 407 (quoting Tinker, 393 U.S. at 506) (internal quotation marks omitted)).

176

U.S. Const. amend. IV.

177

459 U.S. 325, 340 (1985).

178

Id. at 341. See also Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 370 (2009) (recognizing
that the Supreme Court has applied a standard of reasonableness rather than probable cause in the school context)
(internal citation omitted).

25

rules of the school;”179 and (2) must be “permissible in scope” such that “the measures adopted are
reasonably related to the objectives of the search and not excessively intrusive in light of the age
and sex of the student and the nature of the infraction.”180 The Fifth Circuit has held that “[s]tudents
at school have a significantly lesser expectation of privacy in regard to the temporary ‘seizure’ of
their persons than does the general population.”181
D.

Applicable Law on the Fifth Amendment
The Fifth Amendment establishes that no person “shall be compelled in any criminal case

to be a witness against himself.”182 In Miranda v. Arizona, the Supreme Court held that the
statements given by a defendant during a custodial interrogation are inadmissible at trial unless,
prior to questioning, the suspect “[is] warned that he has a right to remain silent, that any statement
he does make may be used as evidence against him, and that he has a right to the presence of an
attorney, either retained or appointed.”183 As the Fifth Circuit has recognized, “Miranda warnings
must be administered prior to ‘custodial interrogation.’”184 “Custodial interrogation is ‘questioning
initiated by law enforcement officers after a person has been taken into custody.’”185 To determine

179

Id. at 342.

180
Id. The Court notes that Plaintiffs also cite to the Supreme Court’s decision in Riley v. California, 134 S.
Ct. 2473 (2014). In Riley, the Supreme Court simply held that a cellphone could not be searched without a warrant
incident to arrest but did not address the issue of searches of cellphones in school. See id. at 2493. Moreover, Riley
does not create a blanket prohibition on warrantless searches of cellphones in all circumstances, as illustrated by the
Fifth Circuit’s recent decision upholding a warrantless search of a cellphone at a border crossing. United States v.
Escarcega, No. 15-51090, 2017 WL 1380555, at *1 (5th Cir. Apr. 17, 2017) (per curiam).
181

Id.

182

U.S. Const. amend. V.

183

384 U.S. 436, 444 (1966).

184
U.S. v. Coleman, 610 F. App’x 347, 353 (5th Cir. 2015) (per curiam) (citing U.S. v. Bengivenga, 845 F.2d
593, 595 (5th Cir. 1988) (en banc)).
185

U.S. v. Wright, 777 F.3d 769, 774 (5th Cir. 2015) (quoting U.S. v. Salinas, 543 F. App’x 458, 462 (5th

Cir. 2013)).

26

whether a suspect was in custody for Miranda purposes, a court must “examine all of the
circumstances surrounding the interrogation.”186 A suspect’s age may be considered in conducting
the custody analysis, though a child’s age will not necessarily be “a determinative, or even a
significant, factor in every case.”187
A plaintiff may not base a Section 1983 claim on a Miranda violation alone, as the
“prophylactic Miranda warnings are not themselves rights protected by the constitution but [are]
instead measures to insure that the right against compulsory self-incrimination is protected.”188 In
Chavez v. Martinez, the Supreme Court held that a police officer’s alleged coercive questioning of
a plaintiff did not violate the self-incrimination clause of the Fifth Amendment, absent the use of
the plaintiff’s compelled statements in a criminal case against him.189 The Fifth Circuit has
likewise held that the failure to give a suspect his Miranda warnings does not “in and of itself,
amount to a constitutional violation.”190 Rather, potential constitutional violations occur “only
upon the admission of unwarned statements into evidence at trial.”191 At that point, “[t]he
exclusion of unwarned statements . . . is a complete and sufficient remedy for any perceived
Miranda violation.”192

186

Stansbury v. California, 511 U.S. 318, 322 (1994).

187
J.D.B. v. California, 564 U.S. 261, 277 (2011) (considering appeal of minor who had been charged in
juvenile court and had unsuccessfully moved to suppress his statements on the basis that he had been interrogated by
police and school administrators without the issuance of a Miranda warning).
188
U.S. v. Smith, 7 F.3d 1164, 1170 (5th Cir. 1993) (quoting Duckworth v. Eagan, 492 U.S. 195 (1989)
(internal quotation marks omitted)). See also U.S. v. Patane, 542 U.S. 630, 636, 641 (2004).
189

538 U.S. 760, 772–73 (2003) (holding that “the absence of a ‘criminal case’ in which [the plaintiff] was
compelled to be a ‘witness’ against himself defeats his core Fifth Amendment claim”). While the Chavez plurality did
not define exactly when a criminal case commences, the Supreme Court determined that at the very least, it requires
“the initiation of a legal proceeding.” Id. at 766–67.
190

See Smith, 7 F.3d at 1170.

191

Patane, 542 U.S. at 641.

192

Id. at 641–42 (citing Chavez v. Martinez, 538 U.S. 760, 790 (2003) (internal quotation marks omitted)).

27

E.

Applicable Law on Procedural Due Process
The Due Process Clause of the Fourteenth Amendment provides: “[N]or shall any State

deprive any person of life, liberty, or property, without due process of law.”193 The right to an
education, once extended by the state, constitutes a property interest protected by the Due Process
Clause of the Fourteenth Amendment, and “a State ‘may not withdraw that right on grounds of
misconduct absent [] fundamentally fair procedures to determine whether the misconduct has
occurred.’”194 As to the procedural due process required, in the case of shorter suspensions from
school, the Supreme Court has held that a student is entitled to “oral or written notice of the charges
against him” and “an explanation of the evidence the authorities have and an opportunity to present
his side of the story.”195 For longer suspensions or expulsions, the Supreme Court noted that more
formal procedures may be required.196 Considering the standard set by the Supreme Court, the
Fifth Circuit has found that where a student is at risk of being deprived of an alternative education,
and therefore at risk of being excluded from public education entirely, he or she is entitled to notice
and hearing before being deprived of an alternative education.197
F.

Applicable Law on Substantive Due Process
To prevail on a substantive due process claim, a plaintiff must first establish that he held a

constitutionally protected right or property interest to which the Fourteenth Amendment’s due
process protection applies.198 As noted supra, the right to an education, once extended by the state,

193

U.S. Const. amend. XIV.

194

Harris ex rel. Harris v. Pontotoc Cnty. Sch. Dist., 635 F.3d 685, 690 (5th Cir. 2011) (citing Goss v. Lopez,
419 U.S. 565, 574 (1975)).
195

Id. at 581.

196

Id. at 584.

197

Swindle v. Livingston Par. Sch. Bd., 655 F.3d 386, 394, 399 (5th Cir. 2011).

198

Simi Inv. Co., Inc. v. Harris Cnty., Tex., 236 F.3d 240, 249 (5th Cir. 2000).

28

constitutes a property interest.199 Once the right has been established, the Court must consider
whether the denial of the right is rationally related to a legitimate government interest.200
“Government action comports with substantive due process if the action is rationally related to a
legitimate governmental interest.”201 “Protection against governmental arbitrariness is at the core
of due process, including substantive due process, but only the most egregious executive action
can be said to be ‘arbitrary’ in the constitutional sense; the cognizable level of executive abuse is
that which shocks the conscience.”202
The Fifth Circuit has recognized that “[a] student’s transfer to an alternative education
program does not deny access to public education and therefore does not violate a Fourteenth
Amendment interest.”203 The Fifth Circuit has found that “[t]his rule is consistent with Goss’s
directive that, where state law creates an entitlement to public education, it is a student’s ‘total
exclusion from the educational process for more than a trivial period’ that constitutes a deprivation
of protected property and liberty interests subject to due process constraints.”204 The Fifth Circuit
has also recognized that Louisiana law provides, as a general rule, “that when a child is suspended

199

Goss, 419 U.S. at 579.

200

Simi Inv. Co., 236 F.3d at 249.

201

FM Prop. Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th Cir. 1996). See also Fee v. Herndon, 900
F.2d 804, 808 (5th Cir. 1990) (citing Woodard v. Los Fresnos Ind. Sch. Dist., 732 F.2d 1243, 1246 (5th Cir. 1984)
(recognizing that corporal punishment in schools “is a deprivation of substantive due process when it is arbitrary,
capricious, or wholly unrelated to the legitimate state goal of maintaining an atmosphere conducive of learning”);
Moore v. Willis Ind. Sch. Dist., 233 F.3d 871 (5th Cir. 2000).
202

Cnty. of Sacramento v. Lewis, 523 U.S. 833, 834 (1998) (internal quotation marks omitted).

203
Harris, 635 F.3d at 690 (citing Nevares v. San Marcos Consol. Indep. Sch. Dist., 111 F.3d 25, 26–27 (5th
Cir. 1997)). See also Swindle v. Livingston Par. Sch. Bd., 655 F.3d 386, 394 (5th Cir. 2011) (internal citations omitted)
(“This court has consistently held that a student who is removed from her regular public school, but is given access to
an alternative education program, has not been denied her entitled to public education.”).
204

Swindle, 655 F.3d at 394 (citing Goss, 419 U.S. at 576).

29

or expelled, [he] is not automatically deprived of all further public educational benefits.”205 Rather,
a student generally remains “under the supervision of the governing authority of the city, parish,
or local public school system taking such action using alternative education programs.”206
G.

Immunity from Suit for School Board Members Acting as Adjudicators in the School
Discipline Context
In Wood v. Strickland, the Supreme Court recognized that school board members “function

at different times in the nature of legislators and adjudicators in the school disciplinary process.”207
The Supreme Court further recognized that “[s]chool board members, among other duties, must
judge whether there have been violations of school regulations and, if so, the appropriate sanctions
for the violations. Denying any measure of immunity in these circumstances ‘would contribute not
to principled and fearless decision-making but to intimidation.’”208 After recognizing that school
board members acting in their capacity as adjudicators should be entitled to some form of
immunity, the Supreme Court concluded that board members acting as adjudicators are to be
protected by qualified, rather than absolute, immunity.209
Specifically, the Court concluded that “absolute immunity would not be justified since it
would not sufficiently increase the ability of school officials to exercise their discretion in a
forthright manner to warrant the absence of a remedy for students subjected to intentional or
otherwise inexcusable deprivations.”210 Thus, in the “specific context of school discipline,” the

205

Swindle, 655 F.3d at 395.

206

Id. (citing La. Rev. Stat. § 17:416.2(A)(1))

207

Wood v. Strickland, 420 U.S. 308, 319 (1975).

208

Id. (quoting Pierson v. Ray, 386 U.S. 547, 548 (1967)).

209

Id.

210

Id. at 320. See also Cleavinger v. Saxner, 474 U.S. 193, 204–205 (1985).

30

Court held that a school official could be liable under Section 1983 only “if he knew or reasonably
should have known that the action he took within his sphere of official responsibility would violate
the constitutional rights of the student affected, or if he took the action with the malicious intention
to cause a deprivation of constitutional rights or other injury to the student.”211
H.

Legal Standard on Qualified Immunity
The doctrine of qualified immunity protects government officials “from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”212 Qualified immunity is an “immunity
from suit rather than a mere defense to liability.”213 In this manner, “[o]ne of the most salient
benefits of qualified immunity is protection from pretrial discovery, which is costly, timeconsuming, and intrusive.”214 Once a defendant invokes the defense of qualified immunity, the
plaintiff carries the burden of demonstrating its inapplicability.215
In Saucier v. Katz, the Supreme Court set forth a two-part framework for analyzing whether
a defendant was entitled to qualified immunity. 216 Part one asks the following question: “Taken in
the light most favorable to the party asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right?”217 Part two inquires whether the allegedly violated right
is “clearly established” in that “it would be clear to a reasonable officer that his conduct was

211

Id. at 322.

212

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

213

Pearson v. Callahan, 555 U.S. 223, 237 (2009).

214

Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).

215

Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009).

216

533 U.S. 194 (2001).

217

Id. at 201.

31

unlawful in the situation he confronted.”218 The Court does not have to address these two questions
sequentially; it can proceed with either inquiry first.219
I.

Analysis
In the motion for summary judgment, Movants request summary judgment on all of

Plaintiffs’ claims against them.220 Specifically, Movants argue: (1) that they are entitled to
summary judgment to the extent that Plaintiffs claim they are liable in their official capacities
under 42 U.S.C. § 1983 because Plaintiffs have also sued the government entity for which they are
employed; (2) that they are entitled to summary judgment on Plaintiffs’ claims against them
personally under 42 U.S.C. § 1983, as Plaintiffs have not pointed to evidence to raise a genuine
dispute of material fact to demonstrate that they are liable; and because they are entitled to qualified
immunity; and (3) that Movants are entitled to summary judgment on any state law claims against
them, or the Court should decline to exercise supplemental jurisdiction over Plaintiffs’ state law
claims.221 In opposition to the motion, without pointing to any evidence in the record but providing
two affidavits from Plaintiffs, M.D. and M.D.’s mother, Plaintiffs argue that the motion for
summary judgment should be denied, as multiple “justiciable issues of triable facts” exist.222 The
Court will address the parties’ arguments in turn.

218

Id. at 202.

219

See Pearson, 555 U.S. at 236 (“On reconsidering the procedure required in Saucier, we conclude that,
while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory.”); see also Cutler
v. Stephen F. Austin State Univ., 767 F.3d 462, 469 (5th Cir. 2014).
220

Rec. Doc. 62 at 1.

221

Rec. Doc. 62-1 at 7, 12, 14, 19.

222

Rec. Doc. 69 at 1.

32

1.

Whether Movants are Entitled to Summary Judgment on Plaintiffs’ Claims
under Section 1983 against the Individual Movants in their Official Capacities

Movants request summary judgment on Plaintiffs’ claims against the individual Movants
in their official capacities under Section 1983.223 The Supreme Court and Fifth Circuit have both
recognized that suits against a public official in his official capacity “generally represent another
way of pleading an action against an entity of which an officer is an agent.”224 “As long as the
government entity receives notice and an opportunity to respond, an official-capacity suit is, in all
respects other than name, to be treated as a suit against the entity.”225 The Fifth Circuit has further
concluded that district courts may properly dismiss claims against municipal officers in their
official capacities when they are duplicative of claims against the governmental entities
themselves.226 Here, Plaintiffs have sued both the individual Movants, in their official capacities,
and the School Board, and Plaintiffs have not set forth any argument or evidence as to why both
the claims against the individual Movants and the government entity should be maintained.227
Because “it is proper to dismiss allegations against municipal officers in their official capacities

223
Rec. Doc. 62 at 1. The Court notes that Movants request summary judgment “dismissing all claims of the
Plaintiffs . . . against the Defendants” but do not offer specific argument in the motion as to why they are entitled to
summary judgment on the claims against the individual Movants in their official capacities under Section 1983.
224
Burge v. Par. of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999) (citing Monell v. Dep't of Soc. Servs. of
City of N.Y., 436 U.S. 658, 691 (1978)).
225

Kentucky v. Graham, 473 U.S. 159, 166 (1985).

226

Castro Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001) (“The district court was also correct in
dismissing the allegations against all of the municipal officers and two of the employees of the Corps of Engineers in
their official capacities, as these allegations duplicate claims against the respective governmental entities
themselves.”) (citing Flores v. Cameron County, Tex., 92 F.3d 258, 261 (5th Cir. 1996)). See e.g., Moton v. Wilkinson,
No. 08-1356, 2009 WL 498487, at *1 (E.D. La. Feb. 26, 2009) (Vance, J.) (noting that the Fifth Circuit has generally
held that a plaintiff cannot maintain an action against an employer and its agent in his official capacity in other
contexts, and that this principle also applies to suits against a municipality and its officers) (citing Smith v. Amedisys,
Inc., 298 F.3d 434, 449 (5th Cir. 2002); Romero, 256 F.3d at 355; Indest v. Freeman Decorating, Inc., 164 F.3d 258,
262 (5th Cir. 1999)).
227

Rec. Doc. 15 at 5.

33

when the allegations duplicate claims against the governmental entity itself,”228 and the School
Board has received notice and an opportunity to respond, Movants are entitled to summary
judgment on Plaintiffs’ claims against the individual Movants in their official capacities under
Section 1983.229
2.

Whether Movants are Entitled to Summary Judgment on Plaintiffs’ Claims
under Section 1983 against the Individual Movants in their Personal
Capacities

As noted above, Plaintiffs’ amended complaint alleges that they are suing the individual
Movants in both their individual and official capacities.230 Movants argue that Plaintiffs’ claims
under Section 1983 against the individual Movants in their personal capacities should be
dismissed, as Plaintiffs can point to no evidence in the record to demonstrate that Movants violated
Plaintiffs’ constitutional rights, and furthermore, that the individual Movants are entitled to
qualified immunity.231 In opposition, Plaintiffs argue that there remain facts in dispute and that the
individual Movants are liable to Plaintiffs.232 As noted supra, Movants have identified the
following claims for relief under Section 1983: (1) First Amendment claims against Tridico,
Astugue, and Deputy Gerchow;233 (2) Fourth Amendment claims against all named Defendants;

228
Thompson v. Connick, 578 F.3d 293, 297 n.4 (5th Cir. 2009), rev'd on other grounds, 563 U.S. 51, 131 S.
Ct. 1350, 179 L. Ed. 2d 417 (2011); see e.g., U.S. ex rel. Bias v. Tangipahoa Par. Sch. Bd., No. 12-2202, 2014 WL
1512001, at *9 (E.D. La. Mar. 26, 2014) (Fallon, J.); Derischebourg v. Clark, No. 15-1712, 2016 WL 98617, at *8
(E.D. La. Jan. 8, 2016) (Africk, J.) (“This Court has previously dismissed official-capacity claims against officers of
an entity which were redundant of other claims in a lawsuit.”).
229

See generally Section 1983 Litigation (3d ed.) 2014 (“[W]hen a § 1983 complaint asserts a claim against
a municipal entity and municipal official in her official capacity, federal district courts routinely dismiss the official
capacity claim as duplicative or redundant.”).
230

Rec. Doc. 15 at 2.

231

Rec. Doc. 62-1 at 14, 23.

232

Rec. Doc. 69 at 1–2.

233

Deputy Gerchow has already been dismissed from this action. See Rec. Doc. 81.

34

(3) Fifth and Fourteenth Amendment substantive and procedural due process claims for relief
against all named Defendants; and (4) Fourteenth Amendment claims against all named
Defendants.234 Plaintiffs have not objected to Movants’ characterization of their claims. The Court
will address the parties’ arguments in turn to determine whether Movants are entitled to summary
judgment on the claims against the individual Movants under Section 1983 in their personal
capacities.
a. First Amendment
Movants argue that there is no evidence to show that any of the individual Movants violated
Plaintiffs’ First Amendment rights.235 Because Plaintiffs have not alleged facts or pointed to any
evidence that would support a claim for violation of the First Amendment, Movants contend that
Plaintiffs’ claims for violation of the First Amendment against Tridico and Astugue in their
individual capacities should be dismissed.236 Additionally, Movants argue that Tridico and
Astugue are entitled to qualified immunity.237 In opposition, without citing to any evidence or
authority, Plaintiffs argue that Tridico and Astugue searched the cellphone that was in M.D.’s
possession and that the cellphone “is clearly protected under the First Amendment.”238 Plaintiffs
appear to allege in the amended complaint that the information on the cellphone in M.D.’s
possession was constitutionally protected by the First Amendment.239 In M.D.’s affidavit, which
Plaintiffs attach to their opposition, M.D. asserts that after he unlocked the cellphone in his

234

Rec. Doc. 62-1 at 2–3.

235

Id. at 4.

236

Id. at 5.

237

Id. at 17.

238

Rec. Doc. 69 at 2.

239

Rec. Doc. 15 at 22.

35

possession, he later returned to Tridico’s office and discovered that “someone had printed out a
series of eight text messages, none of which had occurred that day, and none were exchanged on
school grounds during school hours.”240
As noted supra, the Supreme Court has held that students do not forfeit their First
Amendment rights to freedom of speech and expression at school.241 However, the First
Amendment “does not provide students absolute rights to such freedoms, and those rights must be
tempered in the light of a school official’s duty to, inter alia, ‘teach[] students the boundaries of
socially appropriate behavior,’ and ‘protect those entrusted to their care.’”242 Moreover, in Morse
v. Frederick, the Supreme Court held that the “special characteristics of the school environment,
and the governmental interest in stopping student drug abuse . . . allow schools to restrict student
expression that they reasonably regard as promoting illegal drug use.”243
Here, Plaintiffs appear to contend that the information on the cellphone in M.D.’s
possession was constitutionally protected by the First Amendment and that Tridico and Astugue
violated Plaintiffs’ rights to freedom of speech under the First Amendment by viewing text
messages on the cellphone and by considering the information in recommending disciplinary
action against M.D. As an initial matter, Plaintiffs do not allege facts indicating in what manner
and to what extent M.D.’s right to free speech was restricted. Even assuming that Tridico and
Astugue did limit M.D.’s speech in some way, however, the Supreme Court has made clear that

240

Rec. Doc. 69-3 at 2.

241

Tinker v. Des Moines Indep. Comm. Sch. Dist., et al., 393 U.S. 503, 506 (1969).

242

Bell v. Itawamba Cnty. Sch. Bd., 799 F.3d 379, 389 (5th Cir. 2015) (citing Bethel Sch. Dist. No. 403 v.
Fraser, 478 U.S. 675, 681 (1986); Morse v. Frederick, 551 U.S. 393, 408 (2007)).
243

551 U.S. at 407.

36

students do not have unfettered rights to free speech under the First Amendment.244 The
uncontroverted evidence in the record here is that it was a violation of School Board policy for a
student to possess a phone at school and that Tridico had received information from another student
indicating that M.D. was involved in the purchase or sale of a controlled dangerous substance.245
Plaintiffs have not shown that M.D. had a right under the First Amendment to have a cellphone on
a school campus in violation of school policy, or that his communications on such a cellphone are
entitled to protections under the First Amendment. Thus, Plaintiffs have not pointed to sufficient
evidence to create a genuine dispute of material fact as to whether Tridico and Astugue violated a
right of Plaintiffs under the First Amendment.
Moreover, even assuming that Tridico and Astugue did violate a right of Plaintiffs under
the First Amendment by looking at text messages on the cellphone, Plaintiffs have cited to no
authority, and the Court has found none, demonstrating that it was clearly established at the time
of Tridico and Astugue’s actions that viewing the contents of a cellphone possessed by a student
who is suspected of drug infractions at school constitutes a violation of a right under the First
Amendment. As stated above, a constitutional right must be clearly established in order to defeat
a defense of qualified immunity.246 When deciding whether a right allegedly violated was “clearly
established,” the Court asks whether the law so clearly and unambiguously prohibited the conduct
such that a reasonable official would understand that what he was doing violated the law.247 As
noted supra, the Supreme Court has held that school officials may regulate student speech

244

Tinker, 393 U.S. at 506.

245

Rec. Doc. 62-3 at 2.

246

See McClendon, 305 F.3d at 323; Saucier, 533 U.S.at 207–208.

247

May v. Strain, 55 F.Supp.3d 885, 897 (E.D. La. 2014) (Brown, J.) (citing Wyatt v. Fletcher, 718 F.3d 496,
503 (5th Cir. 2014)).

37

reasonably regarded as promoting illegal drug use.248 Because Plaintiffs have not pointed to
sufficient evidence or authority to demonstrate that Tridico and Astugue’s alleged conduct was
unambiguously prohibited under clearly established law, Tridico and Astugue are entitled to
qualified immunity on Plaintiffs’ claims against them for violations of the First Amendment.
b. Fourth Amendment
Movants argue that Plaintiffs’ claims against the individual Movants for violation of the
Fourth Amendment is without merit and should be dismissed.249 In particular, Movants argue that
there was a reasonable basis for the search of M.D. and the cellphone in his possession and that
there was no seizure of M.D. in this case such that the Fourth Amendment would be implicated.250
In opposition, Plaintiffs, without citing to evidence in the record, argue that “Tridico, Astugue and
Darouse, et al.” used Deputy Gerchow “as the muscle” to detain M.D. for long periods and that
they unlocked the cellphone in M.D.’s possession, even though there were no drugs found on
M.D.’s person.251 Plaintiffs appear to allege in the amended complaint that Tridico and Astugue
violated the Fourth Amendment by searching and questioning M.D. and by searching the cellphone
in M.D.’s possession.252
Movants present evidence that the alleged searches in this case occurred in response to
information received by Tridico from another student at M.D.’s school that M.D. was involved in
the purchase or sale of a “controlled dangerous substance.”253 By contrast, Plaintiffs offer no

248

Morse, 551 U.S. at 407.

249

Rec. Doc. 62-1 at 5.

250

Id. at 6–7.

251

Rec. Doc. 69 at 2, 4–5.

252

Rec. Doc. 15 at 13–16.

253

Rec. Doc. 62-3 at 2.

38

evidence challenging this assertion. The Court notes that Plaintiffs attach the affidavits of M.D.
and M.D.’s mother to their opposition memorandum but do not articulate how the affidavits create
a genuine dispute of material fact as to Tridico and Astugue’s personal involvement in any alleged
deprivation of Plaintiffs’ Fourth Amendment rights.254 In M.D.’s affidavit, he asserts the following
as to the alleged search and investigation of M.D. on January 8, 2015: (1) Tridico stated he was
looking for drugs and searched M.D.’s person and effects in the presence of Deputy Gerchow but
found no drugs; (2) M.D. was “subject to rigorous interrogation” by Tridico and that M.D. was
afraid that Tridico was going to harm him or have him arrested; (3) Tridico and Astugue demanded
that M.D. unlock the cellphone in his possession, and M.D. eventually unlocked it because he
believed that he would never be permitted to leave or that he would be arrested; and (4) later that
day, when M.D. returned to Tridico’s office, “someone had printed out a series of eight text
messages.”255
As noted supra, the Fifth Circuit has “repeatedly held that self-serving affidavits, without
more, will not defeat a motion for summary judgment.”256 Even assuming the truth of the assertions
in M.D.’s affidavit, Plaintiffs have not pointed to sufficient evidence to raise a genuine issue of
material fact that suggests: (1) Movants’ conduct violated Plaintiffs’ Fourth Amendment rights;
and (2) Movants’ actions were objectively unreasonable in light of the law that was clearly

254

Rec. Docs. 69-2, 69-3.

255

Rec. Doc. 69-3 at 1–2. The Court notes that M.D.’s mother’s assertions in her affidavit regarding Tridico
and Astugue’s alleged conduct, as reported by M.D., are based on hearsay and are not based on personal knowledge.
As such, M.D.’s mother’s assertions based on statements made by M.D. to her do not constitute proper summary
judgment evidence. Moreover, they are essentially identical to M.D.’s statements about Tridico and Astugue’s alleged
conduct. See Rec. Doc. 69-2 at 1–2. The Court would therefore reach the same conclusion regardless of whether it
considered the assertions regarding Tridico and Astugue’s conduct towards M.D. in M.D.’s mother’s affidavit.
256

Tyler, 426 F. App’x at 307 (internal citation omitted); Lawrence, 276 F.3d at 197.

39

established at the time of the incident.257
The Fourth Amendment establishes the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.”258 As to M.D.’s assertion
that Tridico searched his person for drugs in the presence of a school resource officer, the Supreme
Court held in New Jersey v. T.L.O., that a warrant is not required for searches of students in schools
by school officials.259 Rather, the Supreme Court held that the legality of a search of a student
depends on the reasonableness of the search, under all the circumstances.260 The Court notes that
the Fifth Circuit has not spoken directly to the question of the appropriate standard for assessing
the legality of searches conducted by school officials in conjunction with law enforcement officers.
However, the Eighth Circuit has held that the reasonableness standard articulated by the Supreme
Court in T.L.O., not probable cause, applies where a school official searched a student in
conjunction with a law enforcement officer acting as a school liaison officer.261 This Court finds
the Eighth Circuit’s rationale to be persuasive and applies it here.
Therefore, even assuming the truth of M.D.’s assertions that Tridico searched M.D.’s
person and effects in the presence of a school resource officer, the uncontroverted evidence in the
record indicates that such a search was reasonable, as Movants have pointed to evidence that
another student informed Tridico that M.D. was involved in the purchase or sale of a controlled

257

McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002); see Saucier, 533 U.S. at 207–208.

258

U.S. Const. amend. IV.

259

459 U.S. 325, 340 (1985).

260

Id. at 341.

261

Shade v. City of Farmington, 309 F.3d 1054, 1060 (8th Cir. 2002). A court in the Southern District of
Illinois likewise has held that a search by a deputy acting as a school resource officer was governed by the
reasonableness standard enunciated in T.L.O. and not be the higher probable cause standard. See Wilson ex rel. Adams
v. Cahokia Sch. Dist. No. 187, 470 F.Supp.2d 897, 910 (S.D. Ill. 2007) (reviewing cases and finding that “the weight
of the authority” holds that a search of a student on school grounds by a school resource officer should be subject to
the reasonableness standard).

40

substance at school.262 Plaintiffs have pointed to no evidence contradicting the reason for the
search of M.D. or creating a genuine dispute of material fact that it was unreasonable under the
standard established in T.L.O. for Tridico to search M.D. for drugs or view his cellphone for
evidence of the purchase or sale of drugs.263 Moreover, even if such conduct did constitute a
constitutional violation, Plaintiffs have pointed to no authority that such conduct was objectively
unreasonable in light of clearly established law.264
In M.D.’s affidavit, M.D. asserts that Astugue and Tridico threatened M.D. to unlock the
cellphone in his possession.265 However, M.D. does not describe the actions taken by Astugue and
Tridico or why those alleged actions were perceived as a threat.266 Therefore, Plaintiffs have not
asserted sufficient facts to demonstrate that the search was unreasonable under T.L.O. Even
assuming the accuracy of Plaintiffs’ interpretation of the facts, due to the same factual and
evidentiary deficiencies, Plaintiffs have not demonstrated that Tridico and Astugue’s conduct in
searching the cellphone in M.D.’s possession without M.D.’s consent violated a constitutional
right or that such conduct was objectively unreasonable in light of clearly established law, as
required to overcome Tridico and Astugue’s qualified immunity defense.267
The Court notes that Plaintiffs cite several cases outside of the Fifth Circuit holding that
certain searches conducted by school officials were unreasonable. This Court is bound by the law

262

Rec. Doc. 62-1 at 6 (citing Rec. Doc. 45-2).

263

See T.L.O., 459 U.S. at 340.

264

See McClendon, 305 F.3d at 323.

265

See Rec. Doc. 69-3 at 2.

266
See Rec. Doc. 69-3 (M.D.’s affidavit in which he asserts: “I initially rejected the demands to unlock my
father’s cellphone, but with Tridico, Astugue, and Deputy Gerchow threatening me, I eventually capitulated because
I believed that I would never be permitted to leave or that I would be arrested by Gerchow).
267

See McClendon, 305 F.3d at 323; Saucier, 533 U.S.at 207–208.

41

of the Fifth Circuit. In a case within the Fifth Circuit, J.W. v. Desoto County School District, a
district court in the Northern District of Mississippi granted the individual school employee
defendants’ motion to dismiss and/or for summary judgment where a school employee confiscated
the phone of a student who was seen using the phone in class in violation of school policy.268 After
confiscating the phone, the school employees then looked at pictures on the phone.269 The student
was suspended for having gang-related pictures on his cellphone.270 Reviewing the relevant case
law, the J.W. court found that the search was reasonable under Supreme Court precedent and that,
“more importantly,” it was not clearly established that such a search violated the Fourth
Amendment.271
Plaintiffs cite to two district court cases from outside the Fifth Circuit in which the courts
determined at the motion to dismiss stage that school employees’ searches of students’ cellphones
were not reasonable on the face of the complaint under the standard set forth in T.L.O.272 However,
those decisions are non-binding and occurred at the motion to dismiss stage where it could not be
determined that the searches were reasonable on the face of the complaint. In the instant case,
which is at the summary judgment stage, Movants have pointed to uncontroverted evidence in the
record that the search of M.D. occurred in response to a specific allegation of M.D.’s purchase,

268

No. 09-1055, 2010 WL 4394059, *1 (N.D. Miss. Nov. 1, 2010).

269

Id.

270

Id.

271

Id. at *4–5.

272

See Gallimore v. Henrico Cnty. Sch. Bd., 38 F.Supp.3d 721, 725 (E.D. Va. 2014) (finding that the facts
as alleged in the complaint did not indicate that the search of the cellphone was reasonable but noting that the defendant
school employee could have had reasonable cause for the search and could bring forth such evidence on a motion for
summary judgment); Klump v. Nazareth Area Sch. Dist., 425 F.Supp.2d 622, 630 (E.D. Pa. 2006) (denying school
employees’ motion to dismiss where school employees were alleged to have seized a student’s cellphone and used the
student’s cellphone to call other students to determine if they were violating the school’s cellphone policy).

42

sale, and possession of a controlled dangerous substance reported to Tridico by another student.273
Plaintiffs also cite to a Sixth Circuit decision reversing a grant of summary judgment in
favor of defendant school employees after finding that the search of a student’s cellphone was not
reasonable at its inception, because the defendant school employees had only general background
knowledge of a student’s drug use or depressive tendencies to justify the search of the student’s
cellphone.274 By contrast, as noted supra, the uncontroverted evidence in the record in this case,
at the summary judgment stage, is that M.D.’s cellphone was not searched pursuant to general
background knowledge, but rather in relation to specific allegations of M.D.’s purchase, sale, and
possession of drugs, which appears reasonable and certainly not in violation of clearly established
law.275
The Court further notes that one commentator has argued that the unique characteristics of
a cellphone should prompt reconsideration of the Supreme Court’s decision in T.L.O. as applied
to the search of cellphones in school.276 However, the commentator also recognized that
“[c]urrently, courts have allowed a warrantless search of a cell phone based on the original rule
from T.L.O.”277 This further supports the Court’s conclusion that Tridico and Astugue’s alleged

273

See Rec. Doc. 62-3 at 2.

274

G.C. v. Owensboro Pub. Sch., 711 F.3d 623 (6th Cir. 2013).

275

Rec. Doc. 62-3 at 2. The Court notes that Plaintiffs also cite to the Supreme Court’s decision in Riley v.
California, 134 S. Ct. 2473 (2014). However, in Riley, the Supreme Court simply held that a cellphone could not be
searched without a warrant incident to arrest. See id. at 2493. As noted above, the standard applied to school searches
on school grounds has been established by the Supreme Court in T.L.O. and is the reasonableness of the search, under
all the circumstances. See 459 U.S. at 340. Riley does not create a blanket prohibition on warrantless searches of
cellphones in all circumstances, as illustrated by the Fifth Circuit’s recent decision upholding a warrantless search of
a cellphone at a border crossing. United States v. Escarcega, No. 15-51090, 2017 WL 1380555, at *1 (5th Cir. Apr.
17, 2017) (per curiam).
276

Ross Hoogstraten, Implications on the Constitutionality of Student Cellphone Searches Following Riley
v. California, 24 Wm. & Mary Bill Rts. J. 879, 897.
277

Id. (citing J.W., 2010 WL 4394059, *1).

43

conduct, if established, did not violate a clearly established right under the Fourth Amendment.
When deciding whether a right allegedly violated was “clearly established,” the Court asks
whether the law so clearly and unambiguously prohibited the conduct such that a reasonable
official would understand that what he was doing violated the law.278 “Answering in the
affirmative requires the court to be able to point to controlling authority—or a robust consensus of
persuasive authority—that defines the contours of the right in question with a high degree of
particularity. This requirement establishes a high bar.”279 In this case, there is simply no controlling
authority or “robust consensus of persuasive authority” prohibiting the search of student
cellphones on school grounds such that Tridico and Astugue’s conduct, as alleged by Plaintiffs,
could be considered objectively unreasonable under clearly established law. Therefore, even
assuming the truth of Plaintiffs’ assertion that Tridico and Astugue searched the cellphone,
Plaintiffs have not met their burden to overcome Tridico and Astugue’s defense of qualified
immunity.
Finally, the Court notes that it appears that Plaintiffs allege that the detention of M.D. for
questioning by Tridico and Astugue violated the Fourth Amendment.280 In opposition to the instant
motion, Plaintiffs argue that M.D. was detained “for long periods.”281 The Court notes that in
M.D.’s affidavit, M.D. asserts that he in fact returned to class twice over the course of the alleged
questioning and search of M.D.282 In Milligan v. City of Slidell, the Fifth Circuit held that students

278

May v. Strain, 55 F.Supp.3d 885, 897 (E.D. La. 2014) (Brown, J.) (citing Wyatt v. Fletcher, 718 F.3d 496,
503 (5th Cir. 2014)).
279

Id.

280

See Rec. Doc. 15 at 13.

281

Rec. Doc. 69 at 5.

282

Rec. Doc. 69-3 at 1–2.

44

at school “have a significantly lesser expectation of privacy in regard to temporary ‘seizure’ of
their persons than does the general population.”283 Thus, the Fifth Circuit noted that “it is not at all
clear that [students] have some privacy right not to be summoned to and detained in a school
official’s office for questioning on matters of school discipline.”284 In Milligan, the Fifth Circuit
found that, even assuming such a right to not be detained by school personnel “exists at a low
level,” students’ Fourth Amendment rights were not violated when they were called into a school
official’s office for questioning by police officers about a possible fight.285
In this case, given M.D.’s “lesser expectation of privacy” in the school environment, it
appears that Tridico and Astugue’s temporary detention of M.D. to question him regarding drug
allegations was reasonable and therefore did not violate M.D.’s right to be free from unreasonable
seizure under the Fourth Amendment. Even assuming that the temporary detention was a
constitutional violation, Plaintiffs have not pointed to any authority, and the Court has found none,
demonstrating that Tridico and Astugue’s conduct in temporarily detaining M.D. for questioning
regarding drug allegations was objectively unreasonable under clearly established law.
c. Fifth Amendment
Movants argue that Plaintiffs’ claims under the Fifth Amendment against Movants in their
individual capacities should be dismissed, as Plaintiffs have not pointed to facts demonstrating a
violation of the Fifth Amendment, and the individual Movants are entitled to qualified
immunity.286 In opposition to the motion, Plaintiffs argue that Tridico and Astugue forced M.D. to
become a witness against himself and intimidated M.D. into signing fabricated statements in
283

Milligan v. City of Slidell, 226 F.3d 652, 656 (2000).

284

Id. at 655.

285

Id. at 656.

286

Rec. Doc. 62-1 at 23.

45

violation of the Fifth Amendment.287 In M.D.’s affidavit, M.D. asserts that he was subjected to
“rigorous interrogation” by Tridico and that Tridico and Astugue “kept badgering” M.D. and
forced him to write out and sign two statements that they dictated but that were untrue.288 In the
amended complaint, Plaintiffs allege that Tridico and Astugue interrogated M.D. without
administering a Miranda warning first.289
As noted supra, the Fifth Amendment establishes that no person “shall be compelled in
any criminal case to be a witness against himself.”290 In Miranda v. Arizona, the Supreme Court
held that the statements a defendant gives during a custodial interrogation are inadmissible at trial
unless, prior to questioning, the suspect “[is] warned that he has a right to remain silent, that any
statement he does make may be used as evidence against him, and that he has a right to the presence
of an attorney, either retained or appointed.”291 The Fifth Circuit has instructed that “Miranda
warnings must be administered prior to ‘custodial interrogation.’”292 In Chavez v. Martinez, the
Supreme Court held that a police officer’s alleged coercive questioning of a plaintiff did not violate
the self-incrimination clause of the Fifth Amendment, absent the use of the plaintiff’s compelled
statements in a criminal case against him.293 Likewise, a plaintiff may not base a Section 1983

287

Rec. Doc. 69 at 5.

288
Rec. Doc. 69-3 at 1, 2. The Court notes that Plaintiffs produced an email in discovery in which M.D.’s
mother asserts that M.D. was completely honest with the school disciplinary staff. See Rec. Doc. 44-4. Without citing
to any evidence in the record, Plaintiffs deny that the email was ever written. Rec. Doc. 70-1 at 2.
289

Rec. Doc. 15 at 8, 13, 22.

290

U.S. Const. amend. V.

291

384 U.S. 436, 444 (1966).

292

U.S. v. Coleman, 610 F. App’x 347, 353 (5th Cir. 2015) (per curiam) (citing U.S. v. Bengivenga, 845 F.2d
593, 595 (5th Cir. 1988) (en banc)).
293

538 U.S. 760, 772–73 (2003) (holding that “the absence of a ‘criminal case’ in which [the plaintiff] was
compelled to be a ‘witness’ against himself defeats his core Fifth Amendment claim”). While the Chavez plurality did
not define exactly when a criminal case commences, the Supreme Court determined that at the very least, it requires
“the initiation of a legal proceeding.” Id. at 766–67.

46

claim on a Miranda violation alone, as the “prophylactic Miranda warnings are not themselves
rights protected by the constitution but [are] instead measures to insure that the right against
compulsory self-incrimination is protected.”294 The Fifth Circuit has held that the failure to give a
suspect his Miranda warnings does not “in and of itself, amount to a constitutional violation.”295
Rather, potential constitutional violations occur “only upon the admission of unwarned statements
into evidence at trial.”296 At that point, “[t]he exclusion of unwarned statements . . . is a complete
and sufficient remedy for any perceived Miranda violation.”297
In this case, Plaintiffs argue that M.D.’s right against self-incrimination was violated,
because he was forced to write out and sign a confession.298 As noted supra, the only evidence
presented by Plaintiffs in support of their opposition to the instant motion are the affidavits of
M.D. and M.D.’s mother.299 However, Plaintiffs do not explain how exactly the affidavits
demonstrate a violation of the Fifth Amendment. The Court notes that M.D.’s affidavit contains
an assertion that Tridico and Astugue “kept badgering” M.D. and forced him into signing an untrue
statement.300 As noted supra, the Fifth Circuit has “repeatedly held that self-serving affidavits,
without more, will not defeat a motion for summary judgment.”301 Moreover, the nonmovant’s
burden of demonstrating a genuine issue of material fact is not satisfied merely by creating “some

294

U.S. v. Smith, 7 F.3d 1164, 1170 (5th Cir. 1993) (quoting Duckworth v. Eagan, 492 U.S. 195 (1989)
(internal quotation marks omitted)). See also U.S. v. Patane, 542 U.S. 630, 636, 641 (2004).
295

See Smith, 7 F.3d at 1170.

296

Patane, 542 U.S. at 641.

297

Id. at 641–42 (citing Chavez v. Martinez, 538 U.S. 760, 790 (2003) (internal quotation marks omitted)).

298

See Rec. Doc. 69 at 2; Rec. Doc. 69-3 at 2.

299

Rec. Docs. 69-2, 69-3.

300

See Rec. Doc. 69-3 at 2.

301

Tyler, 426 F. App’x at 307 (internal citation omitted); Lawrence, 276 F.3d at 197.

47

metaphysical doubt as to the material facts,” “by conclusory allegations,” by “unsubstantiated
assertions,” or “by only a scintilla of evidence.”302
Even assuming the truth of the conclusory assertions in the affidavit, the Fifth Circuit has
held that “[p]roving that a confession was coerced requires showing that the confession resulted
from coercive police conduct[.]”303 In this case, Plaintiffs have pointed to no evidence that Tridico
and Astugue were acting at the behest of law enforcement or that M.D.’s signed statements were
the result of coercive police conduct.304 Moreover, even if M.D.’s written statements are assumed
to be involuntary, there is no evidence or allegation in the record that M.D. was ever criminally
prosecuted or that any of M.D.’s statements were used against him in a criminal proceeding. As
noted supra, it is not until compelled statements are used in a criminal case that a violation of the
Fifth Amendment’s self-incrimination clause occurs.305 Accordingly, even where a suspect was
alleged to have been subjected to coercive police questioning, the Supreme Court found no Fifth
Amendment violation in the absence of criminal prosecution.306
The Court notes that Plaintiffs also argue that M.D. was questioned by school officials
without issuance of a Miranda warning. Plaintiffs have pointed to no authority, and the Court has
found none, that school officials must administer a Miranda warning before questioning a student
regarding suspected disciplinary infractions at school. Even assuming that M.D. would have

302

Little, 37 F.3d at 1075.

303

Hopkins v. Cockrell, 325 F.3d 579, 583 (5th Cir. 2003).

304

M.D. asserts in his affidavit that Deputy Gerchow was present at some points during the questioning and
search of M.D. and that Deputy Gerchow questioned him about drug use. See Rec. Doc. 69-3 at 2. However, M.D.
does not assert in the affidavit, and Plaintiffs point to no evidence, that Deputy Gerchow was involved in any way in
obtaining the written statements from M.D.
305

See Chavez, 538 U.S. at 767.

306

Id. at 766.

48

somehow been entitled to a Miranda warning before questioning, the failure to give a suspect
Miranda warnings does not “in and of itself, amount to a constitutional violation.”307 Rather,
potential constitutional violations occur “only upon the admission of unwarned statements into
evidence at trial.”308 Plaintiffs cannot bring a Section 1983 claim on the basis of the failure to issue
a Miranda warning to M.D., as Plaintiffs have neither alleged nor pointed to any evidence that
M.D.’s statements were admitted into evidence during a criminal proceeding. Thus, Plaintiffs have
failed to point to evidence to create a genuine dispute of material fact that Movants violated M.D.’s
right against self-incrimination.
Even if Tridico and Astugue’s alleged conduct in questioning M.D. without a Miranda
warning and “badgering” and forcing him to sign statements did constitute a violation of the Fifth
Amendment, Plaintiffs have not cited any authority that such conduct was objectively
unreasonable under clearly established law such that Tridico and Astugue would not be entitled to
qualified immunity. Indeed, the Court notes that the Sixth Circuit has held that a school official
who was not acting at the behest of law enforcement did not violate the Fifth Amendment and was
not required to administer Miranda warnings where the school official obtained a written statement
from a student admitting that she gave an Adderall pill to another classmate, even though the
statement was later given to a school resource officer and the student was ultimately charged in
juvenile court with a trafficking violation.309 Because Plaintiffs have not pointed to any evidence

307

See Smith, 7 F.3d at 1170.

308

Patane, 542 U.S. at 641.

309

S.E. v. Grant Cnty. Bd. of Ed., 544 F.3d 633, 641 (6th Cir. 2008). See also Pollnow v. Glennon, 594
F.Supp. 220, 224 (S.D.N.Y. 1984), aff’d , 757 F.2d 496 (2d Cir. 1985) (holding that a student questioned by school
officials regarding an alleged assault was not entitled to a Miranda warning); K.A. ex rel. J.A. v. Abington Heights
Sch. Dist., 28 F.Supp.3d 356, 365 (M.D. Penn. 2014) (collecting cases and noting that students facing disciplinary
action in public schools are not entitled to Miranda warnings); Crawford v. Deer Creek Pub. Schools, 228 F.Supp.3d
1262, 1270 (W.D. Okl. 2017) (finding no violation of student’s Fifth Amendment right against self-incrimination
where a principal obtained a written confession from a student admitting to sexual assault after the principal suggested

49

or authority that Tridico and Astugue’s alleged conduct violated clearly established law under the
Fifth Amendment, Tridico and Astugue are entitled to qualified immunity on Plaintiffs’ claims for
violation of M.D.’s right against self-incrimination under the Fifth Amendment.
d. Substantive Due Process
Movants argue that Plaintiffs have not pointed to any evidence of a violation of substantive
due process, as the evidence demonstrates that M.D. was offered ongoing education after he was
expelled.310 Plaintiffs do not directly respond to Movants’ argument regarding their claim for
violation of their substantive due process rights. In the amended complaint, Plaintiffs appear to
allege that Defendants’ disciplinary proceedings violated Plaintiffs’ substantive due process
rights.311 As noted supra, to prevail on a substantive due process claim, a plaintiff must first
establish that he held a constitutionally protected right or property interest to which the Fourteenth
Amendment’s due process protection applies.312 The Fifth Circuit has recognized that “[a]
student’s transfer to an alternative education program does not deny access to public education
and therefore does not violate a Fourteenth Amendment interest.”313 The Fifth Circuit has also
recognized that Louisiana law provides, as a general rule, “that when a child is suspended or
expelled, [he] is not automatically deprived of all further public educational benefits.”314
Here, Movants have pointed to evidence that M.D. was provided with an alternative school

that such a confession would reduce his punishment and where student was put on long-term suspension).
310

Rec. Doc. 62-1 at 10.

311

Rec. Doc. 15 at 29.

312

Simi Inv. Co., Inc. v. Harris Cnty., Tex., 236 F.3d 240, 249 (5th Cir. 2000).

313
Harris, 635 F.3d at 690 (citing Nevares v. San Marcos Consol. Indep. Sch. Dist., 111 F.3d 25, 26–27 (5th
Cir. 1997)). See also Swindle v. Livingston Par. Sch. Bd., 655 F.3d 386, 394 (5th Cir. 2011) (internal citations omitted)
(“This court has consistently held that a student who is removed from her regular public school, but is given access to
an alternative education program, has not been denied her entitled to public education.”).
314

Swindle v. Livingston Par. Sch. Bd., 655 F.3d 386, 395 (5th Cir. 2011).

50

setting such that he was not at risk of being deprived of a public education.315 Plaintiffs have
offered no evidence or argument to contradict Movants’ evidence that M.D. was provided with an
alternative educational setting. Accordingly, under Fifth Circuit precedent, because the
uncontroverted evidence in the record demonstrates that M.D. was provided with an alternative
school setting and was therefore not denied access to public education, Plaintiffs have not
established that the expulsion of M.D. violated Plaintiffs’ substantive due process rights.316
The Court notes that it also appears that Plaintiffs allege that Tridico and Astugue’s search
of the cellphone violated M.D.’s father’s substantive due process rights.317 However, the
undisputed evidence demonstrates that the cellphone was returned to M.D.’s parent at the end of
the school day during which he was questioned.318
Plaintiffs have not demonstrated that M.D.’s father had a constitutionally protected
property right in not having the cellphone taken away from M.D., who had it on campus in
violation of School Board policy. Moreover, even if Plaintiffs could demonstrate such a property
interest, as noted supra, the Court must then consider whether the denial of that interest is rationally
related to a legitimate government interest.319 “Government action comports with substantive due
process if the action is rationally related to a legitimate governmental interest.”320 “Protection

315

See Rec. Docs. 62-4 at 2, 62-2 at 8.

316

Swindle, 655 F.3d at 394.

317

Rec. Doc. 15 at 21.

318

See Rec. Docs. 62-3 at 4, 69-1 at 5.

319

Id.

320

FM Prop. Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th Cir. 1996). See also Fee v. Herndon, 900
F.2d 804, 808 (5th Cir. 1990) (citing Woodard v. Los Fresnos Ind. Sch. Dist., 732 F.2d 1243, 1246 (5th Cir. 1984)
(recognizing that corporal punishment in schools “is a deprivation of substantive due process when it is arbitrary,
capricious, or wholly unrelated to the legitimate state goal of maintaining an atmosphere conducive of learning”);
Moore v. Willis Ind. Sch. Dist., 233 F.3d 871 (5th Cir. 2000).

51

against governmental arbitrariness is at the core of due process, including substantive due process,
but only the most egregious executive action can be said to be ‘arbitrary’ in the constitutional
sense; the cognizable level of executive abuse is that which shocks the conscience.”321 In this case,
the conduct of Tridico and Astugue in temporarily seizing a cellphone in possession of a student
who was being investigated regarding drug allegations cannot be said to be unrelated to a
legitimate government interest or shock the conscience. Accordingly, Plaintiffs have failed to point
to sufficient evidence to create a genuine dispute of material fact that they are entitled to relief on
their claims for violation of their substantive due process rights.
e. Procedural Due Process
Movants argue that the allegations and evidence in this case demonstrate that Plaintiffs
received adequate notice and an opportunity to be heard and that they are therefore entitled to
summary judgment on Plaintiffs’ claims for violation of procedural due process.322 Movants
additionally argue that the hearing officers at M.D.’s expulsion hearings, individual Movants
Darouse and Hennegan, are entitled to qualified immunity as adjudicators in the disciplinary
process.323 Additionally, Movants argue that it is unclear from the amended complaint and
evidence what, if any, liability falls on Jabbia, as he was not involved in any of the disciplinary
proceedings involving M.D.324 In opposition, Plaintiffs argue, without citing to any evidence in
the record, that Darouse is not entitled to qualified immunity, because he intentionally ignored due
process obligations and told Plaintiffs incorrect information regarding the disciplinary hearings.325

321

Cnty. of Sacramento v. Lewis, 523 U.S. 833, 834 (1998) (internal quotation marks omitted).

322

Rec. Doc. 62-1 at 13.

323

Id. at 14.

324

Id. at 18–19.

325

Rec. Doc. 69 at 3.

52

Plaintiffs further argue that Hennegan stepped out of his role as adjudicator when he told Plaintiffs
not to listen to their attorney and to not file suit in court.326 Plaintiffs do not address Movants’
arguments regarding Jabbia in their opposition memorandum.
The evidence in the record demonstrates the following regarding the disciplinary process
provided to Plaintiffs: (1) M.D. was suspended with a recommendation for expulsion after school
personnel found that he had purchased and possessed a controlled substance;327 (2) M.D.’s mother
was contacted by Tridico and later by Astugue advising her that M.D. had been suspended;328 (3)
Plaintiffs were provided with a hearing before School Board Supervisor of Administration Darouse
who found M.D. guilty of the use or possession of a controlled dangerous substance and
recommended expulsion in accordance with state law;329 and (4) Plaintiffs timely appealed the
decision to the School Board during which M.D. was instructed by counsel to not answer any
questions and the School Board voted to affirm the decision as to M.D.’s expulsion.330
As noted supra, in the case of shorter suspensions from school, the Supreme Court has held
that a student is entitled to “oral or written notice of the charges against him” and “an explanation
of the evidence the authorities have and an opportunity to present his side of the story.”331 For
longer suspensions or expulsions, the Supreme Court noted that more formal procedures may be
required.332 Considering the standard set by the Supreme Court, the Fifth Circuit has found that

326

Id.

327

Rec. Doc. 62-2 at 2.

328

Rec. Doc. 69-2 at 1.

329

Rec. Doc. 69-2 at 3; Rec. Doc. 62-2 at 2, 5.

330

Rec. Doc. 62-2 at 3, Rec. Doc. 69-2 at 3.

331

Goss, 419 U.S. at 581.

332

Id. at 584.

53

where a student is at risk of being deprived of an alternative education, and therefore at risk of
being excluded from public education entirely, he or she is entitled to notice and hearing before
being deprived of an alternative education.333 Considering the foregoing uncontroverted evidence
that Plaintiffs were provided with notice of the charges against M.D., a hearing, and an appeal
before the School Board and the uncontroverted evidence that M.D. was provided with an
alternative education setting,334 the Court finds that Plaintiffs have not demonstrated that Movants
violated their constitutional rights to procedural due process.
The Court notes that M.D.’s mother states in her affidavit that at the initial hearing
conducted by Darouse, he did not advise her that she “could have a lawyer, ask questions, provide
evidence, examine witnesses or otherwise participate.”335 The affidavit further states that the “only
evidence was the fabricated evidence and statements forced from M.D. which he repudiated” and
that Darouse “already had the matter decided” and “pulled a signed ruling from his stack of papers
affirming the suspension.”336 However, Plaintiffs have not pointed to any authority that Darouse
was required to inform Plaintiffs that they could have a lawyer participate in the hearing, and
indeed, the Fifth Circuit has held that plaintiffs are not entitled to “the technicalities of criminal
procedure” in the context of school disciplinary hearings.337
Plaintiffs allege that Darouse pulled a prepared ruling from Darouse’s stack of papers

333

Swindle v. Livingston Par. Sch. Bd., 655 F.3d 386, 394, 399 (5th Cir. 2011).

334

See Rec. Doc.

335

Rec. Doc. 69-2 at 3.

336

Id.

337

Brewer by Dreyfus v. Austin Indep. Sch. Dist., 779 F.2d 260, 263 (5th Cir. 1985) (rejecting student’s
argument that a school board panel at a disciplinary hearing should not have considered evidence of student’s drug
activity at school because the student did not have an opportunity to confront and cross-examine witnesses). See also
Jenkins v. Louisiana State Bd. of Ed., 506 F.2d 992, 1000 (5th Cir. 1975) (holding that due process in the context of a
school disciplinary hearing is “not to be equated with that essential to a criminal trial”).

54

affirming the suspension and by doing so violated Plaintiffs’ procedural due process rights and
prevented Plaintiffs from receiving a meaningful hearing. However, Plaintiffs have not pointed to
any evidence that Plaintiffs presented and that Darouse did not consider in the hearing. While
Plaintiffs have not pointed to any evidence that they presented to Darouse at the hearing that
allegedly was not considered or given proper weight, Movants have submitted evidence indicating
that M.D. admitted at the hearing to purchasing a controlled substance and that Darouse also
considered statements from M.D.’s mother, father, grandmother, and teachers.338 Plaintiffs have
not pointed to any evidence in the record or otherwise to contradict Defendants’ evidence.
Finally, in her affidavit, M.D.’s mother asserts that Darouse provided her with an incorrect
date for the appeal to the School Board.339 As it is undisputed, however, that Plaintiffs ultimately
filed a timely appeal, Plaintiffs have failed to demonstrate how this alleged conduct by Darouse
violated Plaintiffs’ right to procedural due process.
The Court further notes that M.D.’s mother also asserts in her affidavit that Jabbia
“conducted the activities [at M.D.’s appeal to the School Board] and told [her] attorney that he had
to sit down and shut up; that he could not comment, object, file evidence or examine or call any
witnesses.”340 M.D.’s mother also asserts in her affidavit that at the appeal to the School Board
Hennegan told her and her husband at the hearing that they should not pay attention to their
attorney and should not file suit because the School Board “never lost a case.”341 Movants have
submitted the affidavit of Darouse in which he asserts that Jabbia never participated in the

338

Rec. Doc. 62-2 at 6 (Comments from the Expulsion Hearing).

339

Rec. Doc. 69-2 at 3.

340

Id.

341

Id.

55

expulsion hearing.342 Plaintiffs have the burden at the motion for summary judgment stage to come
forward with evidence that Jabbia was in fact at or in some way participated in the appeal, e.g.,
School Board hearing minutes or an affidavit from another witness at the hearing. The
nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied merely by
creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,” by
“unsubstantiated assertions,” or “by only a scintilla of evidence.”343
Even assuming the truth of the assertions in M.D.’s mother’s affidavit, however, Plaintiffs
have failed to demonstrate what evidence her attorney would have presented at the appeal.
Moreover, the Court finds that Plaintiffs have failed to demonstrate how Hennegan’s comments to
Plaintiffs that they should not file suit violated their procedural due process rights or interfered
with Plaintiffs’ ability to be heard at the appeal before the School Board. Indeed, the Court notes
that the evidence demonstrates that Plaintiffs presented no new evidence to the School Board at
the appeal even though they had the opportunity to do so.344
Accordingly, based on the foregoing, Movants are entitled to summary judgment on
Plaintiffs’ claims against the individual movants in their personal capacities for violations of
procedural due process.
f. Failure to Train
Movants argue that it is unclear from the amended complaint and evidence what, if any,
liability falls on Folse, that the claims against him should be dismissed, and that Folse is entitled
to qualified immunity.345 In opposition to the motion, Plaintiffs argue that Folse failed to properly
342

Rec. Doc. 62-2 at 4.

343

Little, 37 F.3d at 1075.

344

Rec. Docs. 62-2 at 3; 69-2 at 3.

345

Rec. Doc. 62-1 at 18–19.

56

train and supervise Darouse, Tridico, and Astugue.346 Plaintiffs further argue that Folse wrote
letters to Plaintiffs approving what Darouse did at M.D.’s disciplinary hearing.347
“Under section 1983, supervisory officials are not liable for the actions of subordinates on
any theory of vicarious liability.”348 Accordingly, the Fifth Circuit has determined that a supervisor
may be held personally liable if there exists either: (1) “his personal involvement in the
constitutional deprivation;” or (2) “a sufficient causal connection between the supervisor’s
wrongful conduct and the constitutional violation.”349 More specifically, to succeed on a failure to
supervise or train claim, a plaintiff must show that: “(1) the supervisor either failed to supervise or
train the subordinate official; (2) a causal link exists between the failure to train or supervise and
the violation of the plaintiff’s rights; and (3) the failure to train or supervise amounts to deliberate
indifference.”350
Plaintiffs have not cited to any specific evidence in the record as to Folse’s personal
involvement in the alleged constitutional violations. In fact, the only evidence submitted by
Plaintiffs in opposition to the motion, i.e. the affidavits of M.D.’s mother and M.D., do not mention
Folse at all.351 Plaintiffs argue in opposition, without citing to any specific evidence in the record,
that Folse sent Plaintiffs letters “approving what Darouse had done to them and was obviously

346

Rec. Doc. 69 at 3–4.

347

Id. at 4.

348

Thompkins v. Belt, 828 F.2d 298, 303–04 (5th Cir. 1987) (citing Pembaur v. City of Cincinnati, 475 U.S.
469 (1986); Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir. 1985) (per curiam)); see also Smallwood v. New
Orleans City, No. 15-1887, 2016 WL 54934, at *7 (E.D. La. Jan. 5, 2016) (Barbier, J.).
349

Thompkins, 828 F.2d at 304 (citing Harvey v. Andrist, 754 F.2d 569, 572 (5th Cir. 1985)); see also Jones
v. Lowndes Cnty., Miss., 678 F.3d 344, 349 (5th Cir. 2012) (quoting James v. Tex. Collin Cnty., 535 F.3d 365, 373
(5th Cir. 2008) (internal quotation marks omitted)); Evett v. DETNTFF, 330 F.3d 681, 689 (5th Cir. 2003).
350

Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 435 (5th Cir. 2008) (quoting
Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009)).
351

Rec. Docs. 69-2, 69-3.

57

staying up to date on the detailed activities.”352 However, Plaintiffs have failed to show how
approving a letter confirming the outcome of a disciplinary hearing demonstrates a failure to train
or supervise subordinates on the part of Folse.353
Moreover, Plaintiffs have pointed to no evidence or authority that Folse’s alleged actions
amounted to deliberate indifference, as required for a claim for failure to train. The Fifth Circuit
has held that deliberate indifference is an “extremely high” standard to meet, as “the official must
both be aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.”354 That is, the “deliberate indifference” standard
requires proof that the supervisor “disregarded a known or obvious consequence of his action.”355
Actions that are “merely inept, erroneous, ineffective, or negligent do not amount to deliberate
indifference.”356
Plaintiffs generally argue, without citing to the record, that Folse failed to train his
subordinates. As noted supra, however, at the summary judgment stage, the non-moving party
may not rest upon mere allegations or denials in his pleadings, but rather must set forth “specific
facts showing the existence of a ‘genuine’ issue concerning every essential component of its
case.”357 The nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied

352

Rec. Doc. 69 at 4. The Court notes that Movants have attached a letter to their motion for summary
judgment dated January 19, 2016, and addressed to Plaintiffs, in which Darouse confirms “the disciplinary action
taken as a result of the expulsion hearing of January 14, 2016.” The letter is signed “Sincerely, Kevin R. Darouse”
and also contains Folse’s signature under the words “Approved by.” See Rec. Doc. 69-3 at 8.
353

See Gates, 537 F.3d at 435.

354

Brewster v. Dretke, 587 F.3d 764, 770 (5th Cir. 2009); See also Whitley v. Hanna, 726 F.3d 631, 641 (5th
Cir. 2013) (noting that an official must “know of and disregard an excessive risk to the victim’s health or safety” to
constitute “deliberate indifference”); Estate of Davis ex rel. McCully, 406 F.3d at 381.
355

Evett, 330 F.3d at 689.

356

Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998).

357

Morris, 144 F.3d at 380 (citing Thomas v. Price, 975 F.2d 231, 235 (5th Cir. 1992)); see also Bellard v.

58

merely by creating “some metaphysical doubt as to the material facts,” “by conclusory
allegations,” by “unsubstantiated assertions,” or “by only a scintilla of evidence.”358 Plaintiffs have
not pointed to evidence to raise a genuine dispute of material fact as to any essential element of
their claim against Folse for failure to train. Conclusory allegations that Folse was aware of the
activities surrounding M.D.’s suspension and that he failed to train School Board employees are
not sufficient at the summary judgment stage. Accordingly, Movants are entitled to summary
judgment on Plaintiffs’ claim against Folse in his personal capacity under Section 1983 for failure
to train.
Even assuming Plaintiffs had pointed to sufficient evidence to raise a genuine dispute of
material fact as to their claim against Folse, Plaintiffs have not cited to any authority to overcome
Folse’s defense of qualified immunity. As noted supra, to determine if qualified immunity is
appropriate, the Court examines the summary judgment record and considers whether Plaintiffs
have pointed to sufficient evidence to raise a genuine issue of material fact that suggests: (1)
Folse’s conduct violated Plaintiffs’ constitutional rights; and (2) Folse’s actions were objectively
unreasonable in light of the law that was clearly established at the time of the incident.359 Plaintiffs
have failed to point to any evidence that Folse violated Plaintiffs’ constitutional rights by failing
to train his employees. Nor have Plaintiffs pointed to any authority, and the Court has found none,
that Folse’s conduct in approving a letter to M.D.’s parents was objectively unreasonable under
clearly established law at the time of the events at issue. Accordingly, Plaintiffs have not overcome
Folse’s defense of qualified immunity.

Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
358

Little, 37 F.3d at 1075.

359

See McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002); see also Saucier, 533 U.S.at 207–

208.

59

Therefore, based on the foregoing, the Court finds that Movants are entitled to summary
judgment on Plaintiffs’ claims against the individual Movants in their personal capacities under
Section 1983.
3.

Whether Movants are Entitled to Summary Judgment on Plaintiffs’ Claims
against the School Board under Section 1983

Movants argue that Plaintiffs’ claims under Section 1983 against the School Board should
be dismissed, as M.D. was disciplined as mandated by Louisiana Revised Statute § 17: 416, which
requires a student found guilty of possession or distribution of a controlled substance to be
suspended for a minimum of four complete school semesters.360 In opposition, Plaintiffs argue that
the School Board clearly exceeded its authority under Louisiana Revised Statute § 17:416 and that
§ 17:416 is unconstitutional.361 In the amended complaint, Plaintiffs further allege that the School
Board is responsible for the violations of Plaintiffs’ civil rights by its employees and that the
School Board implemented a policy “designed . . . to avoid due process hearings” and “to evade
compliance with constitutional due process.”362 Plaintiffs further allege that the School Board
failed to exercise reasonable care in hiring and training its officials.363
Plaintiffs have challenged the constitutionality of Louisiana Revised Statute § 17:416.364
Therefore, in accordance with Federal Rule of Civil Procedure 5.1(b) and 28 U.S.C. § 2403(b), the
Court has certified the constitutional challenge and given notice to the state attorney general.365

360

Rec. Doc. 62 at 23.

361

Rec. Doc. 69 at 3.

362

Rec. Doc. 15 at 6.

363

Id. at 17.

364

See Rec. Doc. 15 at 7.

365

See Rec. Doc. 84.

60

Thus, at this time, the Court will defer its ruling on Plaintiffs’ claims under Section 1983 against
the School Board as it awaits the state attorney general’s intervention in the instant action and has
an opportunity to rule on the constitutionality of Louisiana Revised Statute § 17:416.
4.

Whether the Court should Exercise Supplemental Jurisdiction over any
Remaining State Law Claims against Movants

Finally, Movants argue that the individual Movants are entitled to qualified immunity as
to any state law claims against them, or that the Court should decline to exercise supplemental
jurisdiction over the remaining state law claims pursuant to 1367(c).366 Plaintiffs do not directly
address Movants’ arguments regarding any potential state law claims.
A district court, in its discretion, may decline to exercise supplemental jurisdiction over
state law claims pursuant to 28 U.S.C. § 1367(c).367 However, considering there remains a federal
constitutional challenge to Louisiana Revised Statute § 17:416, and, therefore, a federal cause of
action remains, the court will defer its decision on whether to decline the exercise of supplemental
jurisdiction over any state law claims at this time. Moreover, Plaintiffs’ amended complaint does
not sufficiently explain its state law claims, and Plaintiffs failed to elaborate on them in its
opposition to this motion.
IV. Conclusion
Based on the foregoing, the Court finds that Movants are entitled to summary judgment on
Plaintiffs’ claims against them in both their individual and official capacities under 42 U.S.C. §
1983. The Court denies Defendants’ motion to the extent it requests dismissal of Plaintiffs’ state
law claims or in the alternative requests the court to decline to exercise supplemental jurisdiction
over any remaining state law claims at this time. Finally, the Court denies Defendants’ request for

366

Rec. Doc. 62-1 at 22.

367

28 U.S.C. § 1367(c).

61

summary judgment on Plaintiffs’ claims pursuant to Section 1983 against the School Board, as the
Court declines to decide that issue pending this Court’s decision regarding the constitutionality of
Louisiana Revised Statute § 17:416. Finally, the Court grants Plaintiffs leave to amend their
complaint within 14 days of this order to provide a more definite statement regarding their state
law claims.
Accordingly,
IT IS HEREBY ORDERED that Movants’ “Motion for Summary Judgment”368 is
GRANTED IN PART as Plaintiffs’ claims pursuant to 42 U.S.C. § 1983 against Keven R.
Darouse, W.L. Folse, III, Leonard Tridico, Neal M. Hennegan, Peter J. Jabbia, and Michael
Astugue in both their individual and official capacities are hereby DISMISSED; and
IT IS FURTHER ORDERED that Movants’ “Motion for Summary Judgment” is
DENIED IN PART to the extent it requests this Court dismiss Plaintiffs’ state law claims or, in
the alternative, decline the exercise of supplemental jurisdiction over Plaintiffs’ state law claims.
IT IS FURTHER ORDERED that Plaintffs are granted leave to amend their complaint
within 14 days to provide a more definite statement as to any alleged state law claims.
IT IS FURTHER ORDERED that Movants’ “Motion for Summary Judgment” is
DENIED IN PART regarding Movants’ request for summary judgment on claims against St.
Tammany Parish School Board.
NEW ORLEANS, LOUISIANA, this _____ day of September, 2017.
8th
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

368

Rec. Doc. 62.

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