Wright v. Denison Independent School District et al

Filing 99

MEMORANDUM OPINION AND ORDER. The DISD Defendants' Motion for Summary Judgment (Dkt. 74) and the Individual Defendants' Motion for Summary Judgment (Dkt. 75) are both GRANTED, and Plaintiff shall take nothing by his claims here. Signed by Magistrate Judge Kimberly C Priest Johnson on 8/20/2018. (daj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
BRAEDEN M. WRIGHT,
Plaintiff,
v.
DENISON INDEPENDENT SCHOOL
DISTRICT, ET AL.,
Defendants.

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Case No. 4:16-cv-615-KPJ

MEMORANDUM OPINION AND ORDER
Before the Court is Defendants Denison Independent School District (“DISD”) and Charles
Bollinger (“Bollinger”), Chad Rogers (“Rogers”), and Henry Scott’s (“Scott”), in their official
capacities, (collectively, the “DISD Defendants”) Motion for Summary Judgment (the “DISD
Motion”) (Dkt. 74). Plaintiff Braeden M. Wright (“Plaintiff”) filed a response (Dkt. 83), and the
DISD Defendants filed a reply (Dkt. 88). Also before the Court is Defendants Bollinger, Rogers,
and Scott’s, in their individual capacities, (collectively, the “Individual Defendants”) Motion for
Summary Judgment (the “Individual Defendants’ Motion”) (Dkt. 75). Plaintiff filed a response
(Dkt. 85), and the Individual Defendants filed a reply (Dkt. 89). Additionally, the DISD
Defendants and the Individual Defendants (collectively, “Defendants”) filed Objections to
Plaintiff’s Summary Judgment Evidence (“Defendants’ Objections”) (Dkt. 87), to which Plaintiff
filed a response ((Dkt. 90).
This matter was referred to the undersigned for all proceedings, including the entry of
judgment, in accordance with 28 U.S.C. Section 636(c) and the consent of the parties. See Dkt. 67.
Having reviewed the DISD Motion (Dkt. 74) and the Individual Defendants’ Motion (Dkt. 75), as
well as the responses thereto, and all relevant filings, the Court finds the DISD Motion (Dkt. 74)

is GRANTED, and the Individual Defendants’ Motion (Dkt. 75) is GRANTED. Additionally, the
Court finds Defendants’ Objections (Dkt. 87) are OVERRULED.
I.

BACKGROUND

Plaintiff’s Third Amended Complaint (the “Complaint”) (Dkt. 55), the operative complaint
herein, asserts two claims under 42 U.S.C. § 1983 (“Section 1983”): (1) a Monell claim1 against
DISD (see Dkt. 55 at ¶ 44); and (2) a First Amendment retaliation claim against all Defendants
(Id. at ¶¶ 58-60). The Complaint alleges that Plaintiff “faced bullying and suffered unfair penalties”
by Defendants after he reported “inappropriate sexually-laced comments” and incidents of
cheating he observed while he was a member of Denison High School’s (“DHS”) varsity baseball
team. See Dkt. 55 at ¶¶ 21-26.
Defendant Bollinger is a baseball coach at DHS; Defendant Rogers is the DHS athletic
director; and Defendant Scott is the DISD superintendent. The incidents recited in the Complaint
arose during the 2015-2016 academic year. Plaintiff alleges that on February 27, 2016, Bollinger
made inappropriate sexual comments about Plaintiff’s mother and made sexual comments about
Plaintiff’s mother in front of others on several occasions. Id. at ¶¶ 19-21. Plaintiff also alleges that
on March 22, 2016, Bollinger encouraged Plaintiff to cheat while playing baseball for DHS.2 Id.
at ¶¶ 22-25. Thereafter, Plaintiff, along with his parents, reported Bollinger’s alleged sexual
comments and cheating directives to Scott. Id. at ¶ 26. Plaintiff claims that after he and his parents
reported Bollinger’s allegedly inappropriate behavior to Scott, DISD failed to take any corrective
action against Bollinger and that Bollinger retaliated against Plaintiff by benching Plaintiff

1

Under Monell, a plaintiff seeking to impose liability on a municipality under Section 1983 is required to identify a
municipal “policy” or “custom” that caused the plaintiff's injury. Monell v. Department of Social Services, 436 U.S.
658 (1978).
2
The cheating allegation arose from an incident on March 22, 2016, during which Bollinger allegedly approached
Plaintiff with Vaseline on his fingers and instructed Plaintiff to put the Vaseline on his glove (the “Vaseline Incident”).
See Dkt. 55 at ¶¶ 22-25.

2

“without cause or explanation” and announcing to other members of the team that Plaintiff would
be benched. Id. at ¶¶ 28-29, 32-34.
According to the Complaint, after Plaintiff and his parents met several times with Rogers
to discuss Bollinger’s treatment of Plaintiff to no avail, Plaintiff’s father (“Mr. Wright”) sent an
email to every member of the DISD school board on May 3, 2016, outlining the details of the
alleged retaliation against Plaintiff. On May 10, 2016, Mr. Wright met with Scott and DISD
assistant superintendent David Kirkbride3 (“Kirkbride”). Plaintiff alleges that during this meeting,
Scott told Plaintiff that if things didn’t change, he would be kicked out of the baseball program for
causing “this mess with the coach.” Id. at ¶ 39. The Complaint further alleges that at the end-ofseason athletics banquet, Plaintiff received no recognition for his performance as pitcher even
though “[he] was the top performing pitcher on the team.” Id at ¶ 41.
As noted above, Plaintiff asserts that the DISD Defendants are liable for alleged
constitutional violations under Monell and that all Defendants are liable for alleged retaliation in
violation of the First Amendment. See generally Dkt. 55. Plaintiff seeks damages, costs, and
reasonable attorney’s fees as a result of the alleged violations of his civil rights. Id.
II. LEGAL STANDARD
Summary judgment is appropriate when, viewing the evidence and all justifiable inferences
in the light most favorable to the non-moving party, there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Hunt v.
Cromartie, 526 U.S. 541, 549 (1999). The appropriate inquiry is “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

3

On November 3, 2017, Kirkbride was dismissed from this lawsuit with prejudice pursuant to an agreed stipulation
of dismissal. See Dkt. 72.

3

The party moving for summary judgment has the initial burden to prove there are no
genuine issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984,
991 (5th Cir. 2001). In sustaining this burden, the movant must identify those portions of
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The moving party, however, “need not negate
the elements of the nonmovant’s case.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (en banc). The movant’s burden is only to point out the absence of evidence supporting the
nonmoving party’s case. Stults v. Conoco, Inc., 76 F.3d 651, 655 (5th Cir. 1996).
In response, the nonmovant’s motion “may not rest upon mere allegations contained in the
pleadings, but must set forth and support by summary judgment evidence specific facts showing
the existence of a genuine issue for trial.” Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455,
458 (5th Cir. 1998) (citing Anderson, 477 U.S. at 255-57). Once the moving party makes a
properly supported motion for summary judgment, the nonmoving party must look beyond the
pleadings and designate specific facts in the record to show that there is a genuine issue for trial.
Stults, 76 F.3d at 655. The citations to evidence must be specific, as the district court is not required
to “scour the record” to determine whether the evidence raises a genuine issue of material fact.
E.D. TEX. LOCAL R. CV-56(d). Neither “conclusory allegations” nor “unsubstantiated assertions”
will satisfy the nonmovant’s burden. Stults, 76 F.3d at 655. As the Supreme Court has recognized,
“the clear-and-convincing standard of proof should be taken into account in ruling on summary
judgment motions. . . . ” Anderson, 477 U.S. at 255.

4

III. ANALYSIS
A. OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE
In Defendants’ Objections, Defendants assert several objections to Plaintiff’s summary
judgment evidence (Dkt. 87), to which Plaintiff filed a response (Dkt. 90). The Court has made its
own independent analysis of the evidence and relies on only relevant and admissible evidence
pursuant to the Federal Rules of Civil Procedure and the Federal Rules of Evidence. Accordingly,
the Objections (Dkt. 87) are OVERRULED.
B. FIRST AMENDMENT RETALIATON
The DISD Defendants, as well as the Individual Defendants, argue that Plaintiff's First
Amendment retaliation claim fails because Plaintiff has not suffered an actionable constitutional
harm. See generally Dkts. 74, 75. Thus, the Court will first address whether Plaintiff has
established an actionable constitutional violation. Plaintiff asserts a violation of his rights under
the First Amendment. Claims under Section 1983 require that a plaintiff was “deprived of a right
or interest secured by the Constitution and the laws of the United States” and “that the deprivation
occurred under color of state law.” Doe v. Rains Cnty. Indep. Sch. Dist., 66 F.3d 1402, 1406 (5th
Cir. 1995) (citing West v. Atkins, 487 U.S. 42, 28 (1988)).
The First Amendment protects not only direct government action limiting free speech, but
also protects against retaliatory government action meant to inhibit free speech because if the
government could achieve through indirect means what it could not achieve through direct action,
the government could stymie free speech. Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002).
When the plaintiff is not a government employee or otherwise contractually involved with
government actors, he must satisfy the elements of an “ordinary citizen” claim: (1) he was engaged
in a constitutionally protected activity; (2) the defendants’ actions caused him to suffer an injury
that would chill a person of ordinary firmness from continuing to engage in that activity; and
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(3) the defendants’ adverse actions were substantially motivated against the plaintiff’s exercise of
constitutionally protected conduct. Culbertson v. Lykos, 790 F.3d 608, 618 (5th Cir. 2015). Thus,
a plaintiff must be able to show that his exercise of free speech was, in some way, curtailed.
Keenan, 290 F.3d at 259. Furthermore, there must be a causal connection between the allegedly
retaliatory conduct and Plaintiff’s alleged injury. Cripps v. La. Dep’t of Agric. & Forestry, 819
F.3d 221, 229 (5th Cir. 2016).
When the allegations are made in the context of a school setting, the plaintiff's First
Amendment rights must be interpreted “in light of the special characteristics of the school
environment.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988). Even in the school
environment, however, not all allegedly retaliatory conduct will give rise to an actionable First
Amendment claim; rather, “some retaliatory actions—even if they actually have the effect of
chilling the plaintiff's speech—are too trivial or minor to be actionable as a violation of the First
Amendment.” Keenan, 290 F.3d at 258. Thus, the Court analyzes Plaintiff’s First Amendment
retaliation claim with respect to the actions of the Individual Defendants under the framework of
the special characteristics of the school environment.
1. Alleged Retaliatory Conduct by Bollinger
Plaintiff primarily alleges that Bollinger retaliated against him by not playing him at first
base and not talking to him. See Dkts. 75 at 15; 78-9 at 15. The Individual Defendants posit that
these “trivial slights” arising from “coaching decisions and interactions between coaches and
players” do not give rise to an actionable First Amendment retaliation claim. Dkt. 75 at 16 (citing
Dorsett v. Bd. of Trustees for State Colleges & Universities, 940 F.2d 121, 123-24 (5th Cir. 1991)).
The Individual Defendants reason that just as there is no room for federal courts to “micromanage”
disputes over “teaching assignments, room assignments, administrative duties, classroom
equipment, teacher recognition, and a host of other relatively trivial matters,” neither should
6

federal courts micromanage playing time, coaching decisions, and interactions between players
and coaches in a high school extracurricular sports program. Dkt. 75 at 16 (quoting Dorsett, 940
F.2d at 123-24). The Court agrees. If education and faculty appointments are ill suited for federal
court supervision, disputes involving playing time, coaching decisions, and interactions between
players and coaches at the high school level are even less suited. Furthermore, “the established
policy and precedent of this circuit” cautions against micromanagement of such matters. Miller v.
Bunce, 220 F.3d 584 (5th Cir. 2000) (citing Dorsett, 940 F.2d at 123-24).
Plaintiff’s arguments in opposition to the Individual Defendants’ Motion for Summary
Judgment are insufficient to overcome Fifth Circuit policy and precedent regarding claims of
retaliation in the school environment. Plaintiff contends that Bollinger’s actions are beyond trivial
because Bollinger had a position of authority, and as such, was in a position to wield substantial
power over Plaintiff’s future. See Dkt. 85 at 23. Citing Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d
755, 771 (9th Cir. 2006), Plaintiff suggests that a coach’s actions similar to Coach Bollinger’s
actions here are sufficient to chill the speech of an ordinary athlete. See id. As an initial matter, the
Court finds Pinard neither binding on, nor persuasive to, this Court. More importantly, however,
Pinard is factually dissimilar from the present case.
The first distinguishing factor is that the boys’ basketball coach in Pinard was found to be
verbally abusive and highly intimidating to the entire team, eventually resulting in a petition signed
by all but one of the players (the coach’s son) calling for the coach to resign. See Pinard, 467 F.3d
at 760-61. Second, while the Pinard court found that the players’ petition and complaints against
their coach were protected speech, their refusal to board the bus to attend an away game—even if
assumed to be expressive conduct—was properly punishable as unprotected speech because it
substantially disrupted and materially interfered with the operation of the basketball program. Id.
at 772. The final distinguishing factor is that the players in Pinard who chose not to board the bus
7

were permanently suspended from the team. Id. at 761-62. Based on the foregoing, Pinard is
inapposite to the instant case. Here, the allegations involve only one player, Plaintiff; there are no
allegations of verbal abuse or intimidation; and Plaintiff was never suspended from the team.
Additionally, Plaintiff’s allegation that Bollinger stopped talking to him is not supported
by the evidence in the record. Bollinger testified that he and his assistant tried to talk to Plaintiff
but Plaintiff “isolated himself” doing “his own thing in practice.” Dkt. 78-11 at 2-3. Bollinger
further testified that he gave Plaintiff positive feedback in front of the team. Id. Evidence of
Plaintiff isolating himself from the team is corroborated by Scott. See Dkt. 78-3 at 2 (describing
Plaintiff’s behavior as noncompliant based on Plaintiff’s refusal to lift weights with the team;
taking direction from his privately hired trainer instead of from Bollinger; leaving practice early;
and sitting in the dugout when the team was taking batting practice). Plaintiff failed to submit any
evidence to contradict Bollinger and Scott’s characterization of Bollinger’s efforts to communicate
with Plaintiff. Moreover, the Court finds that Plaintiff’s allegations of retaliation, even if true, are
at most, trivial matters common to interactions between coaches and players— especially as it
relates to disagreement with coaching decisions—and therefore, as a matter of law, do not give
rise to an actionable First Amendment retaliation claim. See Dorsett, 940 F.2d at 123-24.
Plaintiff also alleges that Bollinger retaliated against him because Plaintiff did not play first
base following the Vaseline Incident on March 22, 2016. Id.; see also Dkt. 78-9 at 15. Bollinger,
however, asserts he made this decision prior to any report about the Vaseline Incident. See Dkt.
78-2 at 2. Furthermore, there is evidence establishing there were games prior to March 22, 2016,
where Plaintiff did not play first base. See Dkt. 78-1 at 35-42, 47-48, 59-60. The evidence also
established that Plaintiff pitched in six of the remaining twelve games following the Vaseline
Incident on March 22, 2016 (see id. at 61-88). And although the Individual Defendants
acknowledge that Plaintiff did not play first base after March 19, 2016, they attribute this to a
8

“strategic coaching decision.” Dkts. 75 at 18; 78-2 at 89-90. The Individual Defendants also point
out that Plaintiff was not the only member of the team that did not play in every game that season.
See Dkts. 75 at 18; 78-1 at 25-88.
Plaintiff’s belief—supported only by his own affidavit (Dkt. 84-1)—that he was “due, by
pattern, to play first base on March 24, 2016, and to pitch again on March 29, 2016” (Dkt. 85 at
21-22) establishes only that Plaintiff disagreed with Bollinger’s coaching decisions, see Dorsett,
940 F.2d at 123-24, not that Bollinger’s actions were motivated by Plaintiff’s reports about the
Vaseline Incident. Plaintiff also concedes that he was the starting pitcher in the March 29, 2016,
game and pitched in other games during the remainder of the season. Dkt. 85 at 22. Although
Plaintiff argues that Bollinger “wielded power over [his] opportunities to play,” he fails to establish
that Bollinger’s actions were due to anything other than strategic coaching decisions—decisions
that Bollinger, as the coach, was entitled to make.
Adverse actions in a retaliation claim must be material, and not merely “petty indignities.”
Colman v. Faucher, 128 F. Supp. 3d 487, 500 (D.R.I. 2015) (citing Ahern v. Shinseki, 629 F.3d
49, 56 (1st Cir.2010) (internal citation omitted)). “While being shuffled around in a lineup and
losing playing time is not petty to an athlete, it is a normal course of events during an athletic
team’s season, and not every unjust, unfair, or unpleasant experience is actionable.” Id. (internal
quotation marks omitted). Additionally, regardless of Plaintiff’s belief that Bollinger’s coaching
decisions diminished his attractiveness to college scouts, this impact is entirely speculative.
Plaintiff’s claim fails to establish a causal relationship between any protected activities and the
alleged retaliatory activity. Even assuming all of Plaintiff’s claims about his baseball abilities and
his potential collegiate scholarship opportunities were true, he has failed to submit evidence to
establish that Bollinger’s coaching decisions regarding Plaintiff were motivated by animus against
Plaintiff and not by strategic considerations relating to the team as a whole. Thus, even if Plaintiff’s
9

claims of retaliation give rise to an actionable First Amendment claim, Plaintiff cannot establish
that these actions were substantially motivated by any protected activity. See Dkt. 75 at 17.
Plaintiff also alleges that Bollinger retaliated against Plaintiff “by denying him a pitching
award and interfering with his transfer.” Dkt. 89 at 24. Although the allegation about the pitching
award is briefly mentioned in the Complaint (see Dkt. 55 at ¶ 41), there is no mention in the
Complaint of any allegations of interference with Plaintiff’s transfer. In any event, these
allegations are not supported by any competent summary judgment evidence. Nothing in the record
establishes that Plaintiff was entitled to a pitching award that was later rescinded in retaliation for
his protected activity; nor is there evidence that Bollinger interfered with Plaintiff’s transfer as
Plaintiff alleges. See Dkt. 85 at 21-26. To the extent that Plaintiff attempts to argue that these
actions, along with other “minor actions” by Bollinger (such as announcing to the team that
Plaintiff would not be pitching), may “in the aggregate, rise [to] the level of a constructive adverse
action sufficient to chill speech” (Dkt. 85 at 23-24), these arguments are, at best, speculative, and
therefore, unpersuasive. As previously noted, there is no evidence of Plaintiff’s entitlement to a
pitching award, and Plaintiff’s speculation that Bollinger’s announcement that Plaintiff would not
pitch was “perhaps an attempt to humiliate [him] or make an example out of him” (Dkt. 85 at 24)
is not evidence of retaliation.
Plaintiff’s temporal proximity arguments are likewise unpersuasive. See Dkt. 85 at 25-26.
The cases Plaintiff cites in support of this position,4 are all in the context of establishing a prima
facie case of First Amendment retaliation in the employment context,5 which is not the applicable

4

Plaintiff cites Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1181 (5th Cir. 1997) (evaluating a Title VII
employment claim) and Evans v. City of Houston, 245 F.3d 344, 347 (5th Cir. 2001) (evaluating a Title VII and ADEA
claim).
5
To prevail on a First Amendment retaliation claim in the employment context, a plaintiff must show: (1) he suffered
an adverse employment action; (2) his speech involved a matter of public concern; (3) his interest in speaking
outweighed the employer's interest in promoting efficiency in the workplace; and (4) the speech motivated the

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test in this case, and also fails to consider the “special characteristics” of the school environment.
Hazelwood, 484 U.S. at 266. The context here involves a dispute over coaching decisions. And, as
previously discussed, involving the courts in the minutia of evaluating coaching decisions in the
context of First Amendment retaliation claims is exactly the type of exercise the Fifth Circuit
consciously avoided in Dorsett, and which case law makes clear are not actionable under the First
Amendment. See Dorsett, 940 F.2d at 123-24; Keenan, 290 F.3d at 258.
Finally, Plaintiff has not established that his speech was curtailed as a result of Bollinger’s
alleged retaliatory actions since the record establishes that Plaintiff filed multiple grievances with
DISD after the alleged retaliatory conduct. See Dkts. 78-1 at 2-3; 87-88; 78-6 at 1; 78-7 at 1-2; 788 at 1-2. For all the foregoing reasons, the Court finds that Plaintiff has not established that he
suffered a constitutional violation as a result of Bollinger’s actions.
2. Alleged Retaliatory Conduct by Scott and Rogers
For similar reasons, the Court finds that the retaliatory actions alleged by Plaintiff against
Defendants Scott and Rogers do not establish the requisite constitutional harm. Plaintiff’s
retaliation allegation against Scott is that he participated in the retaliation by threatening to remove
Plaintiff from the baseball team. See Dkt. 84-22 at 2. The Individual Defendants respond that even
if true, “retaliatory threats are just hot air” that do not give rise to an actionable First Amendment
retaliation claim. See Dkt. 75 at 19 (citing Breaux v. City of Garland, 205 F.3d 150, 159 (5th Cir.
2000)). While Breaux involved threats of termination in the employment context, the Individual
Defendants argue that the principle applies equally in this context. See Dkt. at 19.
Although Scott admits that during the meeting on May 10, 2016 (the “May 10 Meeting”),
he told Mr. Wright that if he had been the coach he would have removed Plaintiff from the team,

employer's adverse employment action. Mooney v. Lafayette Cty. Sch. Dist., 538 F. App’x 447, 453 (5th Cir. 2013)
(internal citations omitted).

11

Scott asserts his rationale was not for any retaliatory reason but, rather, because of Plaintiff’s noncompliant behavior, such as refusing to lift weights with the team, following the direction of his
privately hired trainer instead of taking direction from Bollinger, leaving practice early, and sitting
in the dugout when the team was taking batting practice. See Dkts. 78-2 at 2; 78-3 at 2. Plaintiff
presents no evidence to contradict Scott’s characterization of his comments during the May 10
Meeting. Furthermore, Scott’s characterization is corroborated by Kirkbride, who stated that
during the May 10 Meeting, Scott expressed concerns regarding Plaintiff’s non-compliance with
Bollinger’s direction and Plaintiff’s general lack of cooperation with the team. See Dkts. 78-1 at
2; 84-22 at 2; 78-2 at 2; 78-3 at 2.
Scott’s alleged threats notwithstanding, it is undisputed that Plaintiff was not removed from
the team. See Dkt. 78-9 at 15-16. Furthermore, Plaintiff does not otherwise establish a causal
connection between Plaintiff’s complaints about Bollinger and Scott’s allegedly retaliatory
actions. Plaintiff argues that Scott’s threat was more than “hot air” because Scott was “an authority
figure who ha[d] the power to make [the threat] happen.” Dkt. 85 at 26. However, Plaintiff fails to
establish that Plaintiff’s First Amendment rights were chilled as a result of Scott's alleged actions.
Therefore, Plaintiff has not established the second prong of his First Amendment retaliation claim
with respect to Defendant Scott.
It appears that Plaintiff’s only allegation with respect to Defendant Rogers is that he is
liable as Bollinger's supervisor for the alleged constitutional violation against Plaintiff. The Court
notes that Plaintiff also attempts to hold Scott liable under a theory of supervisory liability. See
Dkt. 85 at 27-30. However, for Defendants Scott and Rogers to be held liable for Bollinger’s
actions, Plaintiff must first establish that Bollinger’s actions constituted an actionable
constitutional harm. Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (“A supervisory official
may be held liable . . . only if (1) he affirmatively participates in the acts that cause the
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constitutional deprivation, or (2) he implements unconstitutional policies that causally result in the
constitutional injury.”). Here, there are no allegations that Scott or Rogers participated in
Bollinger's alleged retaliatory conduct. Furthermore, as set forth above, Plaintiff failed to establish
an underlying actionable constitutional violation with respect to alleged retaliatory actions by
Bollinger. Therefore, the Court need not proceed further as to Plaintiff’s supervisory liability
theory.
3. Alleged Retaliatory Conduct by DISD
Although Plaintiff separately alleges a retaliation claim and a municipal liability claim
under Section 1983 against DISD, both claims turn on the same analysis. The Court must consider
two separate issues: (1) whether the plaintiff's harm was caused by a constitutional violation, and
if so, (2) whether the school district is responsible for that violation. Collins v. City of Harker
Heights, 503 U.S. 115, 121-22 (1992). The second inquiry is of particular relevance here because
municipalities (such as school districts) may not be held liable for constitutional violations solely
based on the actions of their employees. Id. at 121 (citing Monell, 436 U.S. at 691). As the Supreme
Court explained:
[In Monell], the Court held that Congress intended municipalities and other local
government entities to be included among those persons to whom § 1983 applies.
At the same time, the Court made it clear that municipalities may not be held liable
“unless action pursuant to official municipal policy of some nature caused a
constitutional tort.” The Court emphasized that a municipality cannot be held liable
solely because it employs a tortfeasor—or, in other words, a municipality cannot
be held liable under § 1983 on a respondeat superior theory.
Id. (internal citations and quotations omitted)
As an initial matter, the Court will dispose of Plaintiff's claims against Defendants
Bollinger, Scott, and Rogers in their official capacities. As explained by the Supreme Court,
official-capacity suits “generally represent only another way of pleading an action against an entity
of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (internal
13

citations omitted). Such suits are “to be treated as a suit against the entity.” Id. Therefore, Plaintiff's
claims against the Individual Defendants in their official capacities are redundant and fail as a
matter of law because the real party in interest is DISD, not Defendants Bollinger, Scott, and
Rogers. See id.
Although the Court has already determined that Plaintiff failed to establish a viable First
Amendment retaliation claim with respect to the actions of Bollinger, Scott, and Rogers, the Court
will, nevertheless, analyze whether Plaintiff can establish municipal liability, as required to
maintain a constitutional claim against DISD under Section 1983. In order for a governmental
entity to be liable under Section 1983, the plaintiff must establish: “1) a policymaker; 2) an official
policy; 3) and a violation of constitutional rights whose ‘moving force’ is the policy or custom.”
Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003) (citing Piotrowski v. City
of Houston, 237 F.3d 567, 578 (5th Cir. 2001)). The policymaker must be one with the authority
to make final decisions regarding policy. City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).
In Texas, the only policymaker for a school district is the Board of Trustees. TEX. EDUC. CODE §
11.151(b); Rivera, 349 F.3d at 247. “‘Policy’ consists of a ‘policy statement, ordinance, regulation,
or decision officially adopted and promulgated by that body’s officers.’” Gonzalez v. Ysleta Indep.
Sch. Dist., 996 F.2d 745, 753 (5th Cir. 1993) (quoting Monell, 436 U.S. at 690). As explained
below, the Court finds that Plaintiff has not met this requirement.
The Fifth Circuit has defined “official policy” as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted
and promulgated by the municipality’s lawmaking officers or by an official to
whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of city officials or employees, which,
although not authorized by officially adopted and promulgated policy, is so
common and well settled as to constitute a custom that fairly represents
municipal policy. Actual or constructive knowledge of such custom must be

14

attributable to the governing body of the municipality or to an official to whom
that body had delegated policy-making authority.
Nobby Lobby, Inc. v. City of Dallas, 970 F.2d 82, 92 (5th Cir. 1992)
Plaintiff provides no evidence that the DISD Board of Trustees—DISD’s final policymaker
as a matter of law—officially adopted and promulgated, with deliberate indifference, any policy
that was the moving force behind the alleged violation of Plaintiff’s First Amendment right to be
free from retaliation. See Rivera, 349 F.3d at 247 (“Texas law unequivocally delegates to the Board
‘the exclusive power and duty to govern and oversee the management of the public schools of the
district.’” (quoting TEX. EDUC. CODE §§ 11.151(b))). Therefore, in order to establish municipal
liability, Plaintiff must rest his policy claim on a pattern, which “must have occurred for so long
or so frequently that the course of conduct warrants the attribution to the governing body of
knowledge and that the objectionable conduct is the expected, accepted practice of [District]
employees.” Davidson v. City of Stafford, 848 F.3d 384, 396 (5th Cir. 2017). Additionally, “[a]
pattern requires similarity, specificity, and sufficiently numerous prior incidents.” Id. Plaintiff has
failed to make this showing.
With the exception of an incident involving another student that occurred after the events
underlying the present lawsuit, Plaintiff relies primarily on incidents surrounding his own
allegations of retaliation in an attempt to establish municipal liability through a widespread
practice or custom. See Dkt. 83 at 23-29. However, Plaintiff's argument is entirely misplaced. As
the Fifth Circuit has explained:
A pattern is tantamount to official policy when it is so common and well-settled as
to constitute a custom that fairly represents municipal policy. Where prior incidents
are used to prove a pattern, they must have occurred for so long or so frequently
that the course of conduct warrants the attribution to the governing body of
knowledge that the objectionable conduct is the expected, accepted practice of city
employees. It is thus clear that a plaintiff must demonstrate a pattern of abuses that
transcends the error made in a single case. A pattern requires similarity and
specificity; [p]rior indications cannot simply be for any and all bad or unwise acts,
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but rather must point to the specific violation in question. A pattern also requires
sufficiently numerous prior incidents, as opposed to isolated instances.
Peterson v. City of Fort Worth, 588 F.3d 838, 850-51 (5th Cir. 2009) (internal citations and
quotation marks omitted).
Plaintiff has provided no evidence of a past “pattern and practice of retaliation and failure
to respond to employee misconduct” that would give rise to an actionable custom. Nor has Plaintiff
provided evidence that the conduct in question “has become a traditional way of carrying out
policy and has acquired the force of law.” Bennett v. City of Slidell, 728 F.2d 762, 768 (5th Cir.
1984). Indeed, while Plaintiff claims there are numerous instances of conduct establishing a pattern
constituting a policy, all of the recited incidents relate to Plaintiff’s complaints. See Dkt. 83 at 2426. The Court finds this is insufficient to establish a pattern or custom giving rise to a policy for
purpose of municipal liability. See Peterson, 588 F.3d at 850-51; see also Piotrowski, 237 F.3d at
581 (“Taken together, [the alleged policies] express no single municipal policy but only a series
of adversarial conclusions by [the plaintiff] . . . relating to her individual case.”). The alleged
policies identified in Piotrowski are directly analogous to the present case. Plaintiff’s attempt to
aggregate isolated incidents in his own case to show a policy or pattern is contrary to Fifth Circuit
precedent. Accordingly, the Court finds that DISD is entitled to summary judgment as a matter of
law.
4. Qualified Immunity Defense
Even where an action exists under Section 1983, a government official may be protected
by qualified immunity. “The doctrine of qualified immunity protects government officials from
civil damages liability when their actions could reasonably have been believed to be legal.”
Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc). Qualified immunity protects “all
but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S.

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335, 341 (1986). “Therefore, a plaintiff seeking to overcome qualified immunity must show: (1)
that the official violated a statutory or constitutional right, and (2) that the right was clearly
established at the time of the challenged conduct.” Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir.
2013) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (internal quotation marks
omitted)). Courts may “exercise their sound discretion in deciding which of the two prongs should
be addressed first in light of circumstances in the particular case at hand.” Pearson v. Callahan,
555 U.S. 223, 226 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Qualified immunity
is a high standard for Plaintiff to overcome as “[e]ven if the official's conduct violated a
constitutional right, he is entitled to qualified immunity if the conduct was objectively reasonable.”
Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993).
The Court finds the Individual Defendants are entitled to qualified immunity because, as
explained above, Plaintiff has failed to establish an actionable violation of his rights under the First
Amendment. The Court has already concluded that the Individual Defendants’ alleged retaliatory
actions would not chill a person of ordinary firmness from continuing to engage in a protected
activity. Not only that, but the record establishes that Plaintiff, in fact, did continue to engage in
protected speech after the alleged retaliatory actions. Furthermore, Plaintiff failed to establish that
the alleged retaliatory actions were substantially motivated by any protected activity. Moreover,
as explained above, the alleged retaliatory actions (Bollinger’s coaching decisions and his
interactions with Plaintiff), even if true, were too trivial to support a First Amendment retaliation
claim. While the Court understands that these actions were not petty to Plaintiff, it is the normal
course of events in organized athletics that players (and their parents) will disagree with coaching
decisions and believe they have been treated unfairly by such decisions. However, not every unfair
or unpleasant experience is actionable. Colman, 128 F. Supp. 3d at 510. Accordingly, the Court
finds the Fifth Circuit’s rationale in Dorsett is applicable in the present case and concludes there
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is no place here for this Court “to undertake to micromanage” high school athletics. Dorsett, 940
F.2d at 124. Because there is no constitutional violation, the Court finds the Individual Defendants
are entitled to qualified immunity and need not consider the second step of the qualified immunity
analysis.
IV. CONCLUSION
.

Based on the foregoing, the DISD Defendants’ Motion for Summary Judgment (Dkt. 74)
and the Individual Defendants’ Motion for Summary Judgment (Dkt. 75) are both GRANTED,
and Plaintiff shall take nothing by his claims here.
IT IS SO ORDERED.
SIGNED this 20th day of August, 2018.
.

____________________________________
KIMBERLY C. PRIEST JOHNSON
UNITED STATES MAGISTRATE JUDGE

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