Tilley et al v. Peaster Independent School District et al

Filing 27

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS granting in part and denying in part 13 Motion to Dismiss... the Court concludes that the Tilleys have stated claims against West and Van Rite for (1) unreasonable seizure in violation of the Fourth Amendment and (2) retaliation in violation of the right-to-petition clause of the First Amendment. All other claims against West and Van Rite, however, are either deficiently pleaded or otherwise barred and, therefore, are DISMISSED WI TH PREJUDICE. The Court further concludes that the Tilleys have failed to state any claims against PISD. Therefore, the Tilleys claims against PISD are DISMISSED WITH PREJUDICE... The Tilleys must file a Rule 7 reply to West and Van Rite's asser tion of qualified immunity no later than May 31, 2013... West and Van Rite must file any dispositive motions under Rule 12(c) or 56 based on the defense of qualified immunity no later than June 28, 2013... Discovery is STAYED pending resolution of West's and Van Rite's assertions of the qualified-immunity defense... see Order for further specifics. (Ordered by Judge Terry R Means on 5/7/2013) (krg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
AMBER TILLEY, et al.
VS.
PEASTER INDEPENDENT SCHOOL
DISTRICT, et al.

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§
§
§
§
§

CIVIL ACTION NO. 4:12-CV-408-Y

ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS
Before the Court is the Motion to Dismiss (doc. 13) filed by
defendants Peaster Independent School District (“PISD”), Julie West,
and Debbie Van Rite. After review, the Court will grant the motion
in part and deny it in part.

I.

Background
Plaintiffs are Amber and Michael Tilley, as next friends of their

minor child, P.T., a student in PISD. According to their First Amended
Complaint (doc. 11), the Tilleys have had a “historically contentious
relationship” with PISD, primarily as a result of their frequently
“requesting appropriate educational services” for P.T.’s older brother.
(Pls.’ Am. Compl. ¶ 13.)
Because of this adversarial relationship, allege the Tilleys,
employees of PISD have repeatedly “harassed” and “retaliated” against
P.T. (Id.) According to the Tilleys, this harassment has included
accusing P.T. of “smelling badly” and of being “dirty” and “filthy.”
(Id. ¶ 14.) The Tilleys complain of one incident in particular, which
allegedly occurred on November 15, 2011, in the school nurse’s office

(“the November 2011 incident”). (Id. ¶ 15.) The Tilleys allege that,
on that day, West and Van Rite “instructed P.T. to disrobe and take
a shower, all while they were present[] and another student was in
the office.” (Id. ¶ 16.) After P.T. objected, allege the Tilleys,
“West and Van Rite forced P.T. to partially remove his clothing and
began violently washing his body with a washcloth, scrubbing him over
large portion[s] of his body, [and] [sticking] cotton balls in his
ears, all the while ridiculing and harassing him about being ‘dirty.’”
(Id. ¶ 17.)

The Tilleys allege that “P.T. was then forced to apply

deodorant” and that West and Van Rite told P.T. that if he “ever [came]
to school dirty again [they would] strip [him] buck naked and throw
[him] in the shower and scrub [him] down.”

(Id. ¶ 18.)

West and

Van Rite also allegedly threatened to “spray [P.T.] and his backpack
[every day] so that he [would] not ‘smell’” and told him that the
ingredients in the spray would “kill” him.

(Id. ¶ 19.)

That evening, according to the Tilleys, P.T. was “visibly and
severely distraught.” (Id. ¶ 20.) The Tilleys allege that once they
learned of the incident, they filed a police report with the local
sheriff’s office, but that the sheriff’s office decided to take no
further action.

(Id. ¶ 21.)

The Tilleys further allege that PISD

“began retaliating against P.T.” for filing the police report. (Id.
¶ 22.) This retaliation allegedly consisted of P.T.’s being “excluded
from events and activities that all other students were allowed to
participate in” and being called “naughty” by a PISD employee dressed

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as Santa Claus during a school event.

(Id.)

The Tilleys allege that PISD’s “harassment and retaliation” of
P.T. have caused him “severe emotional trauma,” which has manifested
itself in the form of “OCD-type behaviors, such as taking numerous
baths a day, constantly cleaning his ears, and spraying himself with
large amounts of cologne.”

(Id. ¶ 23.)

To recover for and redress

this alleged harm, the Tilleys filed the instant suit against PISD,
West, and Van Rite (doc. 1). The Tilleys assert claims under 42 U.S.C.
§ 1983 for “invasion of privacy” and “illegal search and seizure”
in violation of the Fourth and Fourteenth Amendments to the United
States Constitution, and for “retaliation” in violation of the First
Amendment. (Id. at 4-7.) The Tilleys also assert claims under Texas
law

for

battery,

false

imprisonment,

child

neglect,

assault,

intentional and negligent infliction of emotional distress, and
negligent hiring, training, and supervision.

PISD, West, and Van

Rite now move to dismiss the Tilleys’ claims under Federal Rule of
Civil Procedure 12(b)(6).

II.

Legal Standard
Rule 12(b)(6) authorizes the dismissal of a complaint that fails

“to state a claim upon which relief can be granted.”

Fed. R. Civ.

P. 12(b)(6). This rule must be interpreted in conjunction with Rule
8(a), which sets forth the requirements for pleading a claim for relief
in federal court.

See Fed. R. Civ. P. 8(a).

3

Rule 8(a) calls for

“a short and plain statement of the claim showing that the pleader
is entitled to relief.”

Fed. R. Civ. P. 8(a)(2); see Swierkiewicz

v. Sorema N.A., 534 U.S. 506, 508 (2002) (holding that Rule 8(a)’s
simplified pleading standard applies to most civil actions).

The

Court must accept as true all well-pleaded, non-conclusory allegations
in the complaint and liberally construe the complaint in favor of
the plaintiff.

Kaiser Aluminum & Chem. Sales, Inc. v. Avondale

Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
The plaintiff must, however, plead specific facts, not mere
conclusory allegations, to avoid dismissal. Guidry v. Bank of LaPlace,
954 F.2d 278, 281 (5th Cir. 1992). Indeed, the plaintiff must plead
“enough facts to state a claim to relief that is plausible on its
face,” and his “[f]actual allegations must be enough to raise a right
to relief above the speculative level, on the assumption that all
the allegations in the complaint are true (even if doubtful in fact).”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 555 (2007) (citations
omitted). The Court need not credit bare conclusory allegations or
“a formulaic recitation of the elements of a cause of action.”

Id.

at 555. Rather, “[a] claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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III. Analysis
A.

Federal Claims

“Title 42 U.S.C. § 1983 provides a vehicle by which a plaintiff
may seek redress for constitutional injuries.”

World Wide St.

Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 752 (5th Cir.
2009).

“To state a claim under 42 U.S.C. § 1983, ‘a plaintiff must

(1) allege a violation of a right secured by the Constitution or laws
of the United States and (2) demonstrate that the alleged deprivation
was committed by a person acting under color of state law.’”

Doe

ex rel. Magee v. Covington Cnty. Sch. Dist., 675 F.3d 849, 854-55
(5th Cir. 2012) (quoting James v. Tex. Collin Cnty., 535 F.3d 365,
373 (5th Cir. 2008)).

“Municipal liability for § 1983 violations

results if a deprivation of constitutional rights was inflicted
pursuant to official custom or policy.”

McKinney v. Irving Indep.

Sch. Dist., 309 F.3d 308, 312 (5th Cir. 2002) (citation omitted).
1.

Constitutional Violations
a.

Fourth Amendment

The Fourth Amendment, made applicable to the states by the
Fourteenth Amendment, proscribes “unreasonable searches and seizures.”
U.S. Const. amend. IV; United States v. Oliver, 630 F.3d 397, 405
(5th Cir. 2011); Severance v. Patterson, 566 F.3d 490, 501 (5th Cir.
2009).1

As an initial matter, the Court observes that the Tilleys

1

If the Tilleys are invoking the Fourteenth Amendment beyond just its
role in making the Fourth Amendment applicable to the states, then it is not
apparent from the amended complaint. Thus, insofar as the Tilleys’ § 1983 claims

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have not alleged that an “illegal search” took place.

“‘Search’

consists of looking for or seeking out that which is otherwise
concealed from view.” Black’s Law Dictionary 1349 (6th ed. 1990).
The Tilleys have not alleged that West or Van Rite looked for anything
on P.T.’s person, only that they forced him to “partially remove his
clothing” so that they could subject him to a “violent[] washing.”
(Pls.’ Am. Compl. ¶ 17.)

Thus, they have not alleged that P.T. was

subjected to a “search” within the meaning of the Fourth Amendment.
By contrast, “[a] ‘seizure’ triggering the Fourth Amendment’s
protections occurs . . . 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)).

The November

2011 incident would appear to fall within this definition, and
Defendants’ motion does not establish otherwise. Furthermore, although
“the rights of children to freely move about, especially within a
public school, are not as extensive as adults’ rights,” their rights
under the Fourth Amendment are “not non-existent.”

Gates v. Tex.

Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 432 (5th Cir.
2008) (citations omitted). Considering “the nature and scope of the
seizure[] at issue,” the Court is satisfied that the Tilleys have

are based on violations of the Fourteenth Amendment (e.g., due process), they are
deficiently pled and should be dismissed.

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alleged an unreasonable seizure in violation of the Fourth Amendment.”2
The Tilleys have not, however, alleged facts sufficient to
establish municipal liability under the Fourth or Fourteenth Amendment.
“Municipal liability under Section 1983 requires proof of three
elements: a policymaker; an official policy; and a violation of
constitutional rights whose moving force is the policy or custom.”
Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 166 (5th Cir.
2010) (quoting Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th
Cir. 2001) (citation omitted)).
In their response, the Tilleys spend a mere paragraph defending
this claim, arguing conclusorily that they “pled the existence of
a policy or custom to violate students’ Constitutional rights” and
“that this policy was known and carried out by policy makers at the
school.” (Pls.’ Resp. 8.) But the Tilleys’ amended complaint simply
does not support this. There are no factual allegations from which
it may reasonably be inferred that West or Van Rite were policy makers
for PISD or that there was an official policy or custom encouraging
conduct such as that alleged to have occurred during the November
2011 incident. See Zarnow , 614 F.3d at 1667 (“A policymaker is ‘one
who takes the place of the governing body in a designated area of

2

West and Van Rite posit that they are entitled to qualified immunity.
But because the instant motion is the first time that they have raised this
defense, the issue has not been adequately briefed. Indeed, West and Van Rite
did not even mention the defense in the parties’ Joint Status Report (doc. 17).
Nevertheless, following entry of this order, the Court will instruct the Tilleys
to file a Rule 7 reply and stay all other matters in this case until the
qualified-immunity issue is resolved.
See Schultea v. Wood, 47 F.3d 1427,
1432-33 (5th Cir. 1995).

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city administration.’” (quoting Webster v. City of Houston, 735 F.2d
838, 841 (5th Cir. 1984))); see also Jett v. Dall. Indep. Sch. Dist.,
7 F.3d 1241, 1245 (5th Cir. 1993) (“Texas law is clear that final
policymaking authority in an independent school district . . . rests
with the district’s board of trustees.”).3
b.

First Amendment

The Tilleys allege that Defendants retaliated against P.T. in
violation of his First Amendment right to petition the government.
“Retaliation based on the exercise of th[e] right [to petition] is
redressable under 42 U.S.C. § 1983.”

Coastal Commc’ns Serv., Inc.

v. City of New York, 658 F. Supp. 2d 425, 455 (E.D.N.Y. 2009) (citing
Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d
83, 90 (2d Cir. 2002)).

To state this type of retaliation claim,

a plaintiff must allege facts “show[ing] that (1) his conduct was
protected by the First Amendment, and (2) such conduct prompted or
substantially caused defendant’s action.”

Dougherty, 282 F.3d at

91; see also Smith v. Hightower, 693 F.2d 359, 366 (5th Cir. 1982)
(“The Court should consider whether the plaintiffs have shown, first,
that the conduct allegedly retaliated against or sought to be deterred
was constitutionally protected, and, second, that the State’s

3

In the event that the Tilleys intend their invasion-of-privacy claim
to be discrete from their claims for illegal search and seizure, that claim is
redundant. “The [Fourth] [A]mendment protects the citizen against invasion of
privacy.” United States v. Brand, 556 F.2d 1312, 1318 (5th Cir. 1977). It does
so by proscribing “unreasonable searches and seizures.” U.S. Const. amend. IV.
Thus, the Tilleys’ claims for unreasonable search and seizure adequately address
P.T.’s rights under the Fourth Amendment, and any discrete claim for “invasion
of privacy” should be dismissed as a redundancy.

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[retaliatory conduct] was motivated at least in part by a purpose
to retaliate for or to deter that conduct.”). It is sufficient, for
purposes of the second element, “to allege facts from which a
retaliatory intent on the part of the defendants reasonably may be
inferred.”

Dougherty, 282 F.3d at 91 (citation omitted).

The Tilleys allege that West and Van Rite, in retaliation for
the Tilleys’ filing a police report, “excluded [P.T.] from events
and activities that all other students were allowed to participate
in.” (Pl.’s Am. Compl. ¶ 22.) In addition, the Tilleys allege that
West, dressed in Santa garb, gestured at a holiday event that P.T.
had been “naughty” and that she did so in retaliation for the Tilleys’
filing a police report. (Id.) Given the law’s bias against dismissal
at the Rule 12(b)(6) stage, the Court is persuaded that the Tilleys
have alleged sufficient facts to establish a violation by West and
Van Rite of the right-to-petition clause of the First Amendment.
See Mazzeo v. Gibbons, 649 F. Supp. 2d 1182, 1194 (D. Nev. 2009)
(“[F]iling a police report may implicate speech that is protected
under the Petition Clause of the First Amendment.” (quoting Doe v.
San Mateo County, Nos. C 07-05596 SI, C 08-02541 SI, 2009 WL 735149,
at *5 (N.D. Cal. Mar. 19, 2009) (internal quotation marks omitted))).
Moreover, the Court notes that Defendants’ motion only addresses the
Tilleys’ claims under the free-speech clause of the First Amendment,
rather than the right-to-petition clause, and, therefore, does not

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establish that dismissal is proper.4 However, for the reasons discussed
in connection with the Court’s analysis of the Tilleys’ Fourth
Amendment claims, the Court concludes that the Tilleys have not alleged
sufficient facts to establish municipal liability against PISD under
the First Amendment.
2.

Under Color of State Law

Once a § 1983 plaintiff has alleged a deprivation of his
constitutional rights, he must then “demonstrate that the alleged
deprivation was committed by a person acting under color of state
law.”

Doe ex rel. Magee, 675 F.3d at 854-55.

But where the

defendant’s challenged conduct constitutes sufficient “state action”
to support a constitutional violation, then it necessarily satisfies
the statutory requirement of “under color of state law.” See Lugar
v. Edmondson Oil Co., Inc., 457 U.S. 922, 935 (1982).

Therefore,

the Court’s earlier conclusion that West and Van Rite were state actors
for purposes of the Tilleys’ Fourth and First Amendment claims compels
the conclusion that those defendants acted under color of state law
for purposes of § 1983.

See Doe v. Rains Cnty. Indep. Sch. Dist.,

66 F.3d 1402, 1406 (5th Cir. 1995) (“[A] showing of state action is
sufficient to establish action under color of state law.”).

4

As noted above, the Court will stay these proceedings upon entry of
this order to evaluate West and Van Rite’s assertion of qualified immunity. See
supra note 2.

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B.

State-law Claims
1.

Claims Against West and Van Rite

Under subsection 101.106(e) of the Texas Civil Practice and
Remedies Code, “[i]f a suit is filed under [the Texas Tort Claims
Act (“Tort Claims Act”)] 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 Ann. § 101.106(e) (West 2013).5 Here, the Tilleys filed
suit against PISD and its employees West and Van Rite, and PISD has
moved to dismiss West and Van Rite from the suit.
The dispositive question, then, is whether the Tilleys’ suit
was filed “under” the Tort Claims Act. See id. And upon consideration,
this question is easily resolved because “any tort claim against the
government is brought ‘under’ the [Tort Claims] Act for purposes of
section 101.106, even if the Act does not waive immunity.”

Franka

v. Velasquez, 332 S.W.3d 367, 375 (Tex. 2011); see also Rodriguez
v. Christus Spohn Health Sys. Corp., 628 F.3d 731, 738 (5th Cir. 2010)
(observing that “[t]he Texas Supreme Court has held that all claims
falling under the Tort Claims Act, not just those for which the Tort
Claims Act waived immunity, trigger the election of remedies provision”
under subsection 101.106(e)).
5
In this regard, subsection 101.106(a) provides that “[t]he filing of
a suit under [the Tort Claims Act] against a governmental unit constitutes an
irrevocable election by the plaintiff and immediately and forever bars any suit
or recovery by the plaintiff against any individual employee of the governmental
unit regarding the same subject matter.” Tex. Civ. Prac. Rem. Code § 101.106(a).

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Therefore, because the Tilleys filed this suit under the Tort
Claims Act against both PISD and its employees West and Van Rite,
and because PISD has moved to dismiss West and Van Rite from this
suit, the Tilleys’ claims under the Tort Claims Act against those
two defendants--which include battery, false imprisonment, child
neglect, and assault--should be dismissed under subsection 101.106(e).6
2.

Claims Against PISD

The Tilleys assert claims against PISD for intentional and
negligent infliction of mental distress and negligent hiring, training,
and supervision. Because PISD is a political subdivision of the State
of Texas, it enjoys governmental immunity insofar as that immunity
has not been waived.

See Wichita Falls State Hosp. v. Taylor, 106

S.W.3d 692, 694 n.3 (Tex. 2003) (“Governmental immunity . . . protects
political subdivisions of the State, including counties, cities, and
school districts.”).7 The Tilleys, nevertheless, have not directed
the Court to any statute waiving PISD’s immunity from suit and
liability in this case. See Harris Cnty. Hosp. Dist. v. Tomball Reg’l
Hosp., 283 S.W.3d 838 (Tex. 2009) (observing that governmental immunity

6

The Tilleys contend that the Tort Claims Act “does not apply to
[their] intentional tort claims, including battery[] [and] false imprisonment.”
(Pls.’ Resp. 13.) But “the Texas [Supreme] [C]ourt held in Garcia that the [the
Tort Claims Act] applied and could bar a plaintiff's intentional tort claim
against an employee when the plaintiff had sued both the employee and the
governmental unit that employed him.” Bustos v. Martini Club Inc., 599 F.3d 458,
463 (5th Cir. 2010) (citing Mission Consol. Indep. Sch. Dist. v. Garcia, 253
S.W.3d 653, 658-59 (Tex. 2008)).
7

“Both sovereign immunity and governmental immunity ‘afford the same
degree of protection and both levels of government are subject to the Tort Claims
Act.’” Rodriguez, 628 F.3d at 734 n.7 (quoting Garcia, 253 S.W.3d at 655 n.2).

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protects political subdivisions of the state from both suit and
liability).
Although the Tort Claims Act waives governmental liability for
certain types of claims, none of those claims is present here. See
Tex. Civ. Prac. & Rem. Code Ann. § 101.021. Indeed, the Tort Claims
Act provides that, “[e]xcept as to motor vehicles, this chapter does
not apply to a school district.” Id. § 101.051. It further provides
that there is no waiver for claims “arising out of assault, battery,
false imprisonment, or any other intentional tort, including a tort
involving disciplinary action by school authorities.” Id. § 101.057.
Therefore, the Tilleys cannot state a claim for relief under state
law against PISD.

IV.

Conclusion
Based on the foregoing, the Court concludes that the Tilleys

have stated claims against West and Van Rite for (1) unreasonable
seizure in violation of the Fourth Amendment and (2) retaliation in
violation of the right-to-petition clause of the First Amendment.
All other claims against West and Van Rite, however, are either
deficiently pleaded or otherwise barred and, therefore, are DISMISSED
WITH PREJUDICE.8

The Court further concludes that the Tilleys have

failed to state any claims against PISD.

8

Therefore, the Tilleys’

Because the Tilleys have amended their complaint once already, the
Court declines to grant them leave to amend.

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claims against PISD are DISMISSED WITH PREJUDICE.
In addition, because West and Van Rite raised the defense of
qualified immunity as part of the instant motion, the following is
hereby ORDERED:
(1) The Tilleys must file a Rule 7 reply to West and Van Rite’s
assertion of qualified immunity no later than May 31, 2013. The
Tilleys’ reply must allege with particularity all material facts
establishing their right to recovery against West and Van Rite as
to their remaining claims, including detailed facts supporting any
contention that the plea of qualified immunity cannot be sustained.
See Schultea v. Wood, 47 F.3d 1427, 1432-33 (5th Cir. 1995).
(2) West and Van Rite must file any dispositive motions under
Rule 12(c) or 56 based on the defense of qualified immunity no later
than June 28, 2013. The Tilleys’ response to any such motion must
be filed in accordance with local civil rule 7.1(e), and West and
Van Rite’s replies to the Tilleys’ response shall be filed in
accordance with local civil rule 7.1(f).
(3) Discovery is STAYED pending resolution of West’s and Van
Rite’s assertions of the qualified-immunity defense. See Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); Schultea, 47 F.3d at 1434.
(4) After the Court issues a ruling on any motion filed by West
and Van Rite on the issue of qualified immunity, or if no such motions
are timely filed, the Court will issue a second scheduling order
governing the conduct of the remaining pretrial proceedings.
SIGNED May 7, 2013.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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