In the Interest of N.L.P., a Child

Filing 85

MEMORANDUM OPINION AND ORDER. It is ORDERED that Defendants Motion for Summary Judgment (Dkt. # 82 ) is GRANTED IN PART as follows: Plaintiff's claims against Defendants Kevin Lester, Lewis Tatum, Dustanna Rabe, and North Hopkins County Independent School are DISMISSED WITH PREJUDICE; and Defendants' request for attorneys' fees is DENIED at this time, subject to reurging with proper supporting documentation. Signed by District Judge Amos L. Mazzant, III on 8/14/2019. (rpc, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

SHANE PERRY,
v.
NORTH HOPKINS INDEPENDENT
SCHOOL DISTRICT, ET AL.1

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Civil Action No. 4:17-cv-236
CONSOLIDATED
JURY DEMANDED

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants’ Motion for Summary Judgment (Dkt. #82). The
Court, having considered the pleadings and relevant evidence, finds that the motion for summary
judgment should be granted in part.
BACKGROUND
Plaintiff Shane Perry is in a custody dispute with his ex-wife Kelli Boles for their daughter
(“N.L.P.”). On December 2, 2016, Plaintiff was scheduled to pick up N.L.P. from school. Before
the exchange occurred, N.L.P. informed the superintendent Dr. Darin Jolly that she did not want
to go with her father. Anticipating that an issue might arise, Dr. Jolly asked that a deputy be
present on the school grounds during the exchange, and Defendant Hopkins County Deputy Kevin
Lester responded to the request. Upon arriving at the scene, Deputy Lester was informed that
“N.L.P. was afraid and did not want to go with [Plaintiff].” (Dkt. #82-1 at p. 1). Dr. Jolly also
notified Deputy Lester that Plaintiff potentially had an active warrant, which Deputy Lester
thereafter contacted Dispatch and confirmed was true. Deputy Lester informed Dr. Jolly that
Plaintiff would be arrested if Plaintiff entered the premises.

The Court notes that this action was removed with the case caption “IN THE INTEREST OF N.L.P. A CHILD.”
See (Dkt. #1). The case-style as set forth herein reflects the proper parties to this action.
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At approximately 7:00 p.m., Plaintiff’s girlfriend Lizett Pugliese arrived to pick up N.L.P.
from the school. Pugliese was met by Deputy Lester, who informed her that N.L.P. did not want
to go to Plaintiff’s house. Deputy Lester spoke with Plaintiff by phone and told Plaintiff that “[he
was] not getting involved” with the ongoing issue. (Dkt. #82 at p. 2). Deputy Lester then contacted
Defendant Hopkins County Attorney Dustanna Rabe and Defendant Sheriff Lewis Tatum. County
Attorney Rabe advised Deputy Lester that “if NLP did not want to go with Plaintiff’s girlfriend,
she could not be taken kicking and screaming,” and Sheriff Tatum stated that “the child could not
be forced to stay or leave.” (Dkt. #82 at p. 4). Deputy Lester informed Pugliese that he could not
force N.L.P. to leave with her and stayed with N.L.P. until Boles returned to pick her up.
Plaintiff initially brought this action in the County Court at Law of Hopkins County, Texas.
On April 7, 2017, this action was removed to the United States District Court for the Eastern
District of Texas (Dkt. #1). Plaintiff asserts state law claims alleging gross negligence and tortious
interference with possession of a child and claims under 42 U.S.C. § 1983 against Deputy Lester,
Sheriff Tatum, County Attorney Rabe (“Individual Defendants”), and Defendant Hopkins County
(collectively, “Defendants”). On September 24, 2018, Defendants filed the present Motion for
Summary Judgement (Dkt. #82). Plaintiff failed to file a response.2
LEGAL STANDARD
The purpose of summary judgment is to isolate and dispose of factually unsupported claims
or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary judgment is proper
under Rule 56(a) of the Federal Rules of Civil Procedure “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Eastern District of Texas Local Rule 7(d) provides that “a party’s failure to oppose a motion in the manner prescribed
. . . creates a presumption that the party does not controvert the facts set out by movant and has no evidence to offer
in opposition to the motion.”
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FED. R. CIV. P. 56(a). A dispute about a material fact is genuine when “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby Inc.,
477 U.S. 242, 248 (1986). Substantive law identifies which facts are material. Id. The trial court
“must resolve all reasonable doubts in favor of the party opposing the motion for summary
judgment.” Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981).
The party seeking summary judgment bears the initial burden of informing the court of its
motion and identifying “depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials” that demonstrate the absence of a genuine issue of
material fact. FED. R. CIV. P. 56(c)(1)(A); Celotex, 477 U.S. at 323. If the movant bears the burden
of proof on a claim or defense for which it is moving for summary judgment, it must come forward
with evidence that establishes “beyond peradventure all of the essential elements of the claim or
defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where the nonmovant
bears the burden of proof, the movant may discharge the burden by showing that there is an absence
of evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325; Byers v. Dall. Morning
News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden, the
nonmovant must “respond to the motion for summary judgment by setting forth particular facts
indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at
248–49). A nonmovant must present affirmative evidence to defeat a properly supported motion
for summary judgment. Anderson, 477 U.S. at 257. Mere denials of material facts, unsworn
allegations, or arguments and assertions in briefs or legal memoranda will not suffice to carry this
burden. Rather, the Court requires “significant probative evidence” from the nonmovant to dismiss
a request for summary judgment. In re Mun. Bond Reporting Antitrust Litig., 672 F.2d 436, 440

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(5th Cir. 1982) (quoting Ferguson v. Nat’l Broad. Co., 584 F.2d 111, 114 (5th Cir. 1978)). The
Court must consider all of the evidence but “refrain from making any credibility determinations or
weighing the evidence.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.
2007).
ANALYSIS
Defendants move for summary judgment on Plaintiff’s claims brought under 42 U.S.C. §
1983 and under state law. Plaintiff failed to respond to the present motion; therefore, the Court
the Court will consider the facts set forth in Defendants’ motion for summary as undisputed. The
Court will analyze first whether Defendants are entitled to summary judgment on Plaintiff’s § 1983
claims and then turn to whether Defendants are entitled to such relief on Plaintiff’s state law
claims.
I. Plaintiff’s § 1983 Claims
Plaintiff asserts claims under § 1983, which provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in such officer's judicial
capacity, injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable.
42 U.S.C. § 1983 (2018).
Plaintiff alleges that Defendants violated his First, Fourth, and Fourteenth Amendment
rights. Defendants argues that (1) Plaintiff cannot establish a valid claim under § 1983 and (2)
Individual Defendants are entitled to qualified immunity.
The Court addresses each argument in turn.

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A. Municipal Liability Under § 1983
Defendants argue, and the Court agrees, that to the extent that Plaintiff asserts § 1983
claims against Individual Defendants in their official capacities, those claims should be construed
as claims against Hopkins County.

See Kentucky v. Graham, 473 U.S. 159, 165 (1985).

Defendants contend that Plaintiff failed to demonstrate that Hopkins County—a municipality—
can be held liable for the alleged violations of Plaintiff’s constitutional rights.
To impose municipal liability in a § 1983 action, a plaintiff must show that “an official
policy maker with actual or constructive knowledge of the constitutional violation acted on behalf
of the municipality” and that the “action alleged to be unconstitutional implements or executes a
policy statement, ordinance, regulation, or decision officially adopted or promulgated by those
whose edicts or acts may fairly be said to represent official policy.” Zarnow v. City of Wichita
Falls, Texas, 614 F.3d 161, 167 (5th Cir. 2010); Monell v. Dep’t of Soc. Servs. of the City of New
York, 436 U.S. 658, 659 (1978). When considering if there was an official policy, the Court must
determine if there is
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 attributable to the governing
body of the municipality or to an official to whom that body had delegated policymaking authority.
Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984).
A plaintiff asserting § 1983 claims is required to plead specific facts, not merely conclusory
allegations, with sufficient particularity to meet all elements of recovery. See Fraire v. City of
Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992). “This heightened pleading requirement applies to

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allegations of municipal custom or policy.” Id. Here, Plaintiff has neither pleaded facts with
sufficient particularity nor provided proper, or any, summary judgment evidence about any
Hopkins County custom or policy.
Plaintiff alleges that both Sheriff Tatum and County Attorney Rabe instructed Deputy
Lester to follow a policy that would violate Plaintiff’s “right of association under the First
Amendment [and] right of privacy in family matters under the Fourth Amendment.” (Dkt. #40 at
p. 26). Plaintiff, however, fails specify a supposed policy implemented by Defendants. Instead,
Plaintiff only (1) offers a conclusory assertion that Individual Defendants made a deliberate choice
to engage in a policy that would specifically violate his constitutional rights and (2) provides
alternate courses of action that, Plaintiff believes, would have respected his rights, as opposed to
the course of action taken by Defendants. The Court finds that Plaintiff has failed to satisfy the
first definition for “official policy.”3
Plaintiff likewise fails to satisfy the second definition. Plaintiff alleges that this supposed
policy was formed to specifically violate his rights and has failed to argue that the practice was in
any manner widespread or persistent.

Plaintiff’s Second Amended Complaint is void of

allegations of a specific custom or practice. Further, Plaintiff fails to provide proper summary
judgment evidence to support his allegations. The Court finds that Defendants has shown, and
Plaintiff does not contest, that there are no genuine disputes of material fact as to Plaintiff’s § 1983
claims against Hopkins County.
The Court next considers Plaintiff’s § 1983 claims against Individual Defendants.

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Defendants additionally argue that Plaintiff has failed to identify an official policymaker, stating that neither
Defendant County Attorney Rabe nor Defendant Sheriff Tatum serve such a role. The motion for summary judgment
and the facts therein are uncontested; therefore, Plaintiff has waived the ability to dispute this argument. See Audler
v. CBC Innovis Inc., 519 F.3d 239, 255 (5th Cir. 2008) (quoting Castro v. McCord, 259 F. App’x 664, 665 (5th Cir.
2007) (“A party waives an issue if he fails to adequately brief it.”)). As a result, Plaintiff’s argument would likely fail
to satisfy the first definition of “official policy,” regardless of whether he could identify the policy that violated his
rights.

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B. Plaintiff’s § 1983 Claims Against Individual Defendants Based on Fourth
Amendment Violations
Plaintiff alleges that Defendants violated his Fourth Amendment right of privacy in family
matters. Defendants contend that they are entitled to summary judgment because Plaintiff has
failed to provide proof on essential elements of his claims—specifically, as to Plaintiff’s standing.
In order to invoke the Fourth Amendment in this instance, Plaintiff must show that he was
the subject of “an unreasonable search or seizure.” U.S. Const. Amend. IV. The Supreme Court
has stated that “[a] ‘seizure’ triggering the Fourth Amendment’s protections occurs only when
government actors have, ‘by means of physical force or show of authority . . . in some way
restrained the liberty of a citizen.’” Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (quoting
Terry v. Ohio, 392 U.S. 1, 19, n.16 (1968)). If a search or seizure is established, the Court must
then evaluate the reasonableness of the search or seizure “under the Fourth Amendment’s
‘objective reasonableness’ standard,” which “‘requires a careful balancing of the nature and quality
of the intrusion on the individual’s Fourth Amendment interests against the countervailing
governmental interests at stake.’” Graham, 490 U.S. at 386; Plumhoff v. Rickard, 572 U.S. 765,
774 (quoting Graham, 490 U.S. at 396).
“Fourth Amendment rights are personal rights which may be enforced only by the person
whose rights were infringed.’” Garza v. City of Donna, No. 7:16-CV-00558, 2017 WL 2861456,
at *4 (S.D. Tex. July 5, 2017) (quoting United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010),
modified on denial of reh’g, 622 F.3d 383 (5th Cir. 2010) (citing Rakas v. Illinois, 439 U.S. 128,
99 (1978)). “Consequently, a party generally has no standing to enforce another person’s Fourth
Amendment rights vicariously. If a party lacks standing to bring a claim, then there exists no case
or controversy with regards to that claim, and a federal court has no subject matter jurisdiction to
entertain it.” Id. (internal citations omitted).
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It is unclear, and appears doubtful, that Plaintiff has standing to bring his challenge, as
pleaded; however, the Court need not decide this question because Plaintiff’s Second Amended
Complaint is void of specific allegations against Individual Defendants. While Plaintiff “alleges
that the Defendants jointly and or severally conspired to deprive the Plaintiff of his . . . right of
privacy in family matters,” (Dkt. #40 at p. 25-26), he fails to provide proper summary judgment,
or any, evidence to support his allegation that Defendants seized any right that he may, or may not,
have in privacy in family matters. Plaintiff’s allegations regarding his right to privacy are limited
to only his state law claim against Defendant Israel Lewis, who is not a party to the present motion.
Regarding Lewis, Plaintiff’s Second Amended Complaint alleges only that on December 2, 2016,
Lewis, a licensed counselor, questioned N.L.P. about “Plaintiff’s relationships, personal life,
sexual relationships, and other embarrassing information which was intended for the sole purpose
of impending litigation against Plaintiff in the parent-child relationship.” (Dkt. #40 at p. 23).
Plaintiff neither alleges facts nor provides evidence that Individual Defendants played any
role in this alleged seizure. In fact, Plaintiff’s Second Amended Complaint does not allege
Individual Defendants took part, were present, or facilitated the questioning in any way. The Court
finds that Defendants has shown, and Plaintiff does not contest, that there are no genuine disputes
of material fact and Defendants are entitled to summary judgment on Plaintiff’s § 1983 claim that
Individual Defendants violated his Fourth Amendment rights.
C. Plaintiff’s § 1983 Claims Against Individual Defendants Based on First and
Fourteenth Amendment Violations
Plaintiff alleges that Defendants violated his First Amendment right of association and his
Fourteenth Amendment right to familial association. Defendants argue that they are entitled to
summary judgment because (1) Plaintiff has failed to provide proof on multiple essential elements
of his claims and (2) Individual Defendants are entitled to qualified immunity.
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This Court has recognized that “‘[t]he right to familial association or family integrity is a
form of liberty guaranteed by the due process clause of the Fourteenth Amendment.’” (Dkt. #56
at p 17) (quoting Dallas Indep. Sch. Dist., 194 F. Supp. 3d at 564) (internal quotation marks
omitted). To show a violation of the right to familial association, a plaintiff must show (1) that
“some ‘state action (or inaction) physically separates family members from one another” and 92)
that this action or inaction “purposefully interfere[s] with the family relationship.” (Dkt. #56 at p
17) (quoting Dallas Indep. Sch. Dist., 194 F. Supp. 3d at 564) (internal quotation marks omitted);
(Dkt. #58).
Plaintiff’s § 1983 claims premised on violations of his First and Fourteenth Amendment
rights relies on the allegation that N.L.P. was locked in the school building when Pugliese
attempted to pick her up. Plaintiff argues that this constitutes a purposeful interference of the
father-child relationship by Defendants. Defendants, however, argue that
County Attorney Rabe spoke to Deputy Lester to provide him with legal instruction
about what he could and could not do in the situation, Sheriff Tatum[’s] sole intent
and purpose was to maintain safety on the North Hopkins School campus, and
Deputy Lester was present to protect the students and adults on the school campus
in the event of a disturbance and to serve an arrest warrant.
(Dkt. #82 at p. 15). Accordingly, the Court finds that Defendants have shown, and Plaintiff does
not contest, that there are no genuine disputes of material fact as to Plaintiff’s allegations that
Individual Defendants engaged in any action or inaction with the intent to “purposefully interfere
with the family relationship.”4 (Dkt. #56 at p 17) (quoting Dallas Indep. Sch. Dist., 194 F. Supp.
3d at 564) (internal quotation marks omitted).

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Defendants also allege that Plaintiff has failed to allege that a physical separation took place, since Plaintiff was
never present during the incident. (Dkt. #82 at p. 14). Because Plaintiff has both failed to establish the requisite intent
and overcome Defendants’ assertion of qualified immunity on behalf of Individual Defendants, the Court will not
address this argument.

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Even if Plaintiff did not face the above hurdle, Defendants are likely entitled to qualified
immunity, which would be sufficient grounds for summary judgment. In determining whether an
official is entitled to qualified immunity, the Court must determine: (1) whether a clearly
established right was violated and (2) whether the conduct was objectively reasonable. Mullenix
v. Luna, 136 S. Ct. 305, 306–08 (2015). A clearly established right has been defined as “one that
is ‘sufficiently clear that every reasonable official would have understood that what he is doing
violates that right.” Id. at 308 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). The
analysis of whether a right is clearly established must begin “‘in light of the specific context of the
case, not as a broad general proposition.’” Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 198
(2004) (per curiam)). Further, “[t]he objective reasonableness of the official’s conduct is measured
by the clearly established right at the time of the incident.” Scott v. Godwin, 147 S.W.3d 609, 620
(Tex. App. — Corpus Christi–Edinburg [13th Dist.] 2004, no pet.).
“[T]he contours of the right [of familial association] have been described as ‘nebulous and
undefined.’” (Dkt. #56 at p. 17) (quoting Rolen v. City of Brownfield, Tex., 182 Fed. Appx. 362,
364 (5th Cir. 2006)); (Dkt. #58). While Plaintiff correctly asserts that there is a general right of
family integrity, he has failed to provide evidence of, or even allege, any specific conduct by an
individual violated a clearly established portion of the right. See Ruiz v. Tex. Dep’t of Protective
& Regulatory Servs., 984 F. Supp. 2d 657, 665 (S.D. Tex. 2013). In consideration of the “nebulous
and undefined nature” of the right, the Court finds that County Attorney Rabe and Sheriff Tatum
advising Deputy Lester of his inability to force N.L.P. to stay or to go with Pugliese is not in
violation of any clearly established right.

Likewise, Deputy Lester is entitled to qualified

immunity, since his refusal to force N.L.P to go with Pugliese did not violate a clearly established
right. Further, the Court finds that it is apparent that a nebulous and undefined right is not

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“‘sufficiently clear [so] that every reasonable official would have understood that what he is doing
violates that right.’” Mullenix, 136 S.Ct at 308 (2015) (quoting Reichle v. Howards, 566 U.S. 658,
664 (2012)).
Accordingly, the Court finds that Individual Defendants’ conduct was objectively
reasonable.

Therefore, the Court finds that Individual Defendants are entitled to qualified

immunity are entitled to summary judgment on Plaintiff’s § 1983 claim for the violation of his
right to familial association.
II. Plaintiff’s State Law Claims
Plaintiff asserts state law claims against Defendants for tortious interference with
possession of a child and gross negligence. Defendants respond that (1) the Texas Tort Claims
Act (TTCA) requires the dismissal of Plaintiff’s state law claims against Individual Defendants
and (2) Hopkins County is entitled to governmental immunity under the TTCA.
The Election of Remedies provision of the TTCA provides that when “a suit is filed under
this chapter against both a governmental unit and any of its employees, the employees shall
immediately be dismissed on the filing of a motion by the governmental unit.” Tex. Civ. Prac. &
Rem. Code § 101.106(e). An “employee” under the TTCA is defined as “a person, including an
officer or agent, who is in the paid service of a governmental unit by competent authority, but does
not include an independent contractor, an agent or employee of an independent contractor, or a
person who performs tasks the details of which the governmental unit does not have the legal right
to control.” Tex. Civ. Prac. & Rem. Code § 101.001(2).
Further, the TTCA provides for governmental immunity against all intentional torts and
permits a waiver of governmental immunity in all other claims that satisfy the acts enumerated
requirements. Tex. Civ. Prac. & Rem. Code § 101.057(2), 101.021.

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A. State Law Claims Against the Defendant Hopkins County
Plaintiff asserts both a tortious interference with possession of child and a gross negligence
claim against Hopkins County. Defendants aver Hopkins County is entitled to governmental
immunity and are therefore entitled to summary judgment as a matter of law.
The TTCA provides that governmental immunity be waived in instances where a personal
injury is caused by a “wrongful act or omission or the negligence of an employee acting within his
scope of employment if. . .” it is “caused by a condition or use of tangible personal or real property
if the governmental unit would, were it a person, be liable to the claimant according to Texas law.”
Tex. Civ. Prac. & Rem. Code § 101.021. Notwithstanding the aforementioned provision, the
TTCA bars the waiver of governmental immunity for all intentional torts. Tex. Civ. Prac. & Rem.
Code § 101.057(2).
Plaintiff’s tortious interference with possession of a child claim is premised on an
intentional tort, and, as such, § 101.057(2) of the TTCA prohibits a waiver of governmental
immunity. Accordingly, the Court finds that Hopkins County is entitled to governmental immunity
for this claim.
Plaintiff’s gross negligence claim argues that Defendants used the school building as a
means to willfully violate a temporary order, which required that N.L.P. be transferred into the
custody of her father. Specifically, Plaintiff’s Second Amended Complaint alleges that N.L.P. was
locked in the school building and that Deputy Lester refused to allow Pugliese to enter the building.
Defendants, however, assert that no County official or employee locked the child within the school
and provide a timeline in which Pugliese was never denied entry by Deputy Lester. Consequently,
Plaintiff has failed to establish that any government employee or official “used” real property to
commit the alleged act of gross negligence, which would be necessary to establish a waiver of

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governmental immunity. The Court, therefore, finds that governmental immunity has not been
waived and Hopkins County is entitled to summary judgment for Plaintiff’s state law claims.
B. Plaintiff’s State Law Claims Against Individual Defendants
The Supreme Court of Texas has held that “any tort claim against the government, even
those for which immunity has not been waived, falls ‘under [the TTCA]’ because the Torts Claims
Act is the only means to sue the government for a tort.” Franka v. Velasquez, 332 S.W.3d 367,
390 (Tex. 2011). Plaintiff asserts state law claims against both Hopkins County and Individual
Defendants; therefore, the Court finds that both claims are subject to the Election of Remedies
provision of the TTCA. See University of Texas M.D. Anderson Cancer Ctr. v. Stewart, 2017 WL
2590230 at p. * 4 (Tex. App.—Houston [1st Dist] June 15, 2017, no pet.) (mem. op.) (granting a
motion to dismiss a gross negligence claim under the Election of Remedies provision of the TTCA
following a motion by a governmental unit).
The Court finds that Plaintiff’s state law claims against Individual Defendants should be
dismissed for two reasons. First, because Plaintiff filed suit against Defendant Hopkins County
and Defendants argue, and Plaintiff does not contest that Individual Defendants are employees, the
TTCA mandates that Individual Defendants be dismissed. Second, Individual Defendants are
likely entitled to Official Immunity in accordance with §101.106(e).5
III. Attorney Fees
Defendants also request attorneys’ fees and costs of suit under 42 U.S.C. § 1988. The Court
finds that Defendants’ request should be denied at this point, subject to Defendants re-urging their
request by motion with the proper supporting documents.

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Defendants also raise the affirmative defense of official immunity. The Court, having determined that the state law
claims against Individual Defendants must be dismissed on other grounds, finds it unnecessary to fully address this
argument.

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CONCLUSION
It is therefore ORDERED that Defendants Motion for Summary Judgment (Dkt. #82) is

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GRANTED IN PART as follows: Plaintiff’s claims against Defendants Kevin Lester, Lewis
Tatum, Dustanna Rabe, and North Hopkins County Independent School are DISMISSED WITH
PREJUDICE; and Defendants’ request for attorneys’ fees is DENIED at this time, subject to reurging with proper supporting documentation.

SIGNED this 14th day of August, 2019.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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