McCully v. Stephenville Independent School District et al
Filing
46
Memorandum Opinion and Order The Corrected 19 Motion to Dismiss filed by Stephenville Independent School District is granted; 21 Motion to Dismiss filed by Rachel Carter, William Joe Carter is granted...the ruling on the remaining grounds of Stephenville ISD's motion to dismiss for failure to state a claim is held in abeyance as is the motion filed by Stephenville IDS to dismiss for lack of capacity. (Ordered by Judge John McBryde on 11/13/2013) (wrb)
U.S. J)ISTRICT COURT
N?RTHERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT OtlR'I~;?' ., FILED
NORTHERN DISTRICT OF TEXAS
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FORT WORTH DIVISION
KEVIN MCCULLY, as next friend
of daughters, c. MCCULLY AND
M. McCULLY
Plaintiffs,
vs.
STEPHENVILLE INDEPENDENT
SCHOOL DISTRICT, ET AL.,
Defendants.
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CLERK, U.S. DISTRICT cc
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NO. 4:13-CV-702-A
MEMORANDUM OPINION
and
ORDER
The above-captioned action was initiated by the filing by
plaintiffs, c. Mccully and M. Mccully, acting through their
father, Kevin Mccully, as their next friend, of their compliant
against defendants, Stephenville Independent School District
(Stephenville ISD), and William Joe Carter and Rachel Carter
(together, the "Carter defendants").
On September 23, 2013,
Stephenville ISD filed a motion to dismiss for lack of capacity
and a corrected motion to dismiss pursuant to Rule 12(b) (6) of
the Federal Rules of Civil Procedure.
On October 25, 2013,
plaintiffs filed a response to Stephenville ISD's corrected
motion to dismiss, and on November 8, 2013, Stephenville ISD
filed a reply.
On September 27, 2013, the Carter defendants
filed a motion to dismiss pursuant to Rule 12(b) (6) of the
Federal Rules of Civil Procedure, and as of the date of the
signing of this memorandum opinion and order, plaintiffs have
filed no response to the Carter defendants' motion even though
plaintiffs requested and were granted two extensions of time to
file a response. 1
Having now considered each motion, the
responsive pleadings, and applicable legal authorities, the court
concludes that the Carter defendants' motion to dismiss should be
granted, that the ground of Stephenville ISD's motion to dismiss
for failure to state a claim directed to Count II of the
complaint should be granted and Count II dismissed as to
Stephenville ISD, that the remaining grounds of Stephenville
ISD's motion to dismiss for failure to state a claim should be
held in abeyance pending the court's decision on a recently filed
motion by plaintiffs to file an amended complaint, and that
Stephenville ISD's motion to dismiss for lack of capacity should
be held in abeyance, subject to a ruling that could be affected
by future events.
1
Having concluded that plaintiffs had been given adequate time to file their response, the court
denied a third motion for extension of time by an order signed on November 8, 2013.
2
I.
Allegations of the Complaint 2
A.
History Allegations
In summary form, plaintiffs made the following historical
allegations in their complaint:
C. Mccully and M. Mccully are sisters who attend Henderson
Junior High in the Stephenville ISD.
They are or will be
participating in athletics in the district.
Their father began
complaining to administrators at Stephenville !SD of gender
discrimination at Henderson Junior High in early September 2012.
He filed grievances with Stephenville ISD on March 8, 2013,
completing the grievance process in July 2013.
"Defendant has
made some changes," but "has backtracked on two commitments."
Compl. at 4.
The female athletes at Henderson Junior High have fewer
opportunities to participate in sports than boys and inferior
benefits when they do participate, such as non-traditional
seasons, fewer coaches, inferior coaches, inadequate practice
facilities, inferior locker rooms and other facilities,
2
0n the date of the signing of this memorandum opinion and order, the court received a motion
filed by plaintiffs, over the signature of Kevin Mccully as next friend of C. McCully and M. McCully,
for leave to file a first amended complaint. The court is ordering Stephenville ISO to file an expedited
response to such motion. If such motion is denied, the court will follow-up with a ruling on the grounds
of Stephenville ISD's motion to dismiss for failure to state a claim upon which relief may be granted that
have not been resolved by this memorandum opinion and order.
3
discriminatory practice times and schedules, inadequate
publicity, different recruitment of girls, inadequate survey of
girls to determine their interests, the discriminatory
environment of the Quad County Conference, the discriminatory
environment of the University Interscholastic League,
stereotypical assumptions about the interests and abilities of
female athletes, and allowing unequal support to the boys'
athletics through booster clubs, donations, and commercial
agreements.
The Carter defendants are employees of Stephenville ISD, who
are being sued in their capacities as agents for Stephenville !SD
and in their individual capacities.
They "used the power vested
in them by SISD to remove and/or force the coach to remove M.
Mccully from the basketball team."
Compl. at 10.
Plaintiff was
informed that "M. Mccully could not be on the team because her
parents were involved in a lawsuit against the school."
B.
Id.
Allegations Defining the Legal Basis for the Alleged Claims
In the introductory paragraph of the complaint, plaintiffs
alleged that they are filing "for relief under the Education
Amendments of 1972, 5901, 20 U.S.C.A.
§
1681 (Title IX)."
They
explained that Stephenville ISD "in violation of federal law, has
failed to provide equal athletic facilities to females in the
Stephenville Independent School Dlstrict, Stephenville, Texas,
4
based on Plaintiffs' gender" and that the Carter defendants, "in
their individual capacities, as well as their capacities as
agents for Stevenville [sic] I.S.D., in violation of federal law
have retaliated against Plaintiff (s) ."
Compl. at 1-2.
Notwithstanding the clear statement in the introductory
paragraph of the nature of the litigation, in the "Jurisdiction
and Venue" section of the complaint, plaintiffs alleged that
"[t]he rights, privileges and immunities sought to be redressed
are those secured by . . . the Constitution of the United States
of America, in particular, the Fourteenth Amendment thereto" and
that "[t]his Court further has supplemental jurisdiction of the
subject matter of this claim under 28 U.S.C. §1367, as to all
claim arising under the laws and Constitution of the State of
Texas, that are related to the claim of which this Court has
original jurisdiction and which form part of the same case or
controversy."
Id. at 2,
~
1.
A similar reference to
supplemental jurisdiction under 28 U.S.C. § 1367 was made under
the heading "Parties" of the complaint.
Id. at 3-4,
~
6.
However, nowhere in the complaint is any claim identified as
being based on the Fourteenth Amendment or any state law or
constitutional provision.
complaint.
Two cbunts are alleged in the
Count I is titled "Violation of Title IX, Education
Amendments of 1972.8 901.20 U.S.C. 8 1681."
5
Count II is titled
"Retaliation."
While the allegations in Count II failed to make
reference to any statute, constitutional provision, or case law,
a fair reading of Count II is that it is intended to assert a
retaliation claim under the authority of Title IX.
The prayer of the complaint alleged that "Plaintiffs have
been damaged by Defendant as a result of each violation alleged
above . . . . "
Id. at 11.
The complaint does not contain any
allegation that any of the defendants violated any law or
constitution of the State of Texas or the Fourteenth Amendment to
the Constitution of the United States.
Therefore, the court is
treating the complaint as claiming no more than a violation of
Title IX based on gender discrimination in its Count I and Title
IX retaliation in its Count II. 3
3
Plaintiffa made no reference in their response in opposition to Stephenville ISD's motion to
dismiss to any claim of violation by defendants of any state law or constitutional provision. The
response makes clear that plaintiffs' retaliation claim is based on Title IX. Resp. at 14-16. The response
does make reference to the possibility that the plaintiffs could seek relief under 42 U.S.C. § 1983 as well
as under Title IX. Id. at 7-8. That section of the response concludes with the statement that "[t]here is a
circuit court split on the issue of whether a Plaintiff can seek relief under both 42 U.S.C. § 1983 and Title
IX." Id. at 8. Notabiy, plaintiffs do not say in their response that, in fact, they are asserting a claim
under 42 U.S.C. § 1983. Plaintiffs failed to make any allegation in their complaint that would suggest
that plaintiffs intended to bring a§ 1983 claim of the kind recognized by the Supreme Court in Fitzgerald
v. Barnstable Sch. Comm., 555 U.S. 246, 256-58 (2009).
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II.
Analysis
A.
Legal Standards Applicable to Motions to Dismiss
Rule 8(a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint cont.ain "a short . and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. 8 (a) (2), "in order to give the defendant fair
notice of what the claim is and the grounds upon which it rests."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
quotation marks and ellipsis omitted).
(internal
Although a complaint need
not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
of action.
Twombly, 550 U.S. at 555 & n.3.
Thus, while a court
must accept all of the factual allegations in the complaint as
true, it need not credit bare legal conclusions that are
unsupported by any factual underpinnings.
556 U.S. 662, 679 (2009)
See Ashcroft v. Igbal,
("While legal conclusions can provide
the framework of a complaint, they must be supported by factual
allegations.").
Moreover, to survive a motion to dismiss for failure to
state a claim, the facts pleaded must allow the court to infer
7
that the plaintiff's right to relief is plausible.
Id.
To
allege a plausible right to relief, the facts pleaded must
suggest liability; allegations that are merely consistent with
unlawful conduct are insufficient.
550 U.S. at 557).
Id. at 678 (citing Twombly,
"Determining whether a complaint states a
plausible claim for relief . . . [is] a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense."
Igbal, 556 U.S. at 679.
In
adjudicating defendant's motion, the court may consider the
complaint and its proper attachments.
B.
The Count II Retaliation Claims
The court has concluded that plaintiffs' retaliation claims,
as alleged in Count II of the complaint, should be dismissed as
to all defendants for the reasons given below.
1.
As to the Carter Defendants
The allegations of the complaint in which the claim against
the Carter defendants is described are found in paragraph 37,
under the heading "Retaliation," which is worded as follows:
37. William Joe Carter and Rachel Carter are
Stephenville Independent School District employees who
have used their position with the SISD to apply
pressure on those who do not agree with them
politically. Because they had access to a gymnasium
without cost, given to them in violation of SISD board
policy by SISD administration, they were in a position
to control who was on the same basketball team as their
daughter. M. Mccully was invited to play on that
8
basketball team approximately sometime in June, 2013.
M. Mccully accepted the invitation to play on the team.
However, on or about July 17, 2013, Plaintiff was
informed that M. Mccully could not be on the team
because her parents were involved in a lawsuit against
the school. On or about July 23, 2013, Plaintiff was
told that Carter's [sic] said that 'if the Mccully girl
is on the team then our daughter will not be' or
something substantially similar. William Joe Carter
and/or Rachel Carter used the power vested in them by
SISD to remove and/or force the coach to remove M.
Mccully from the basketball team.
Id. at 3-4, 10.
Using a degree of imagination, the court can surmise that
plaintiffs contend that the Carter defendants had some level of
participation, perhaps through their daughter, .in a basketball
team that was permitted to use a Stephenville !SD gymnasium
during the summer months; that someone told "Plaintiff" that the
Carter defendants said that they did not want their daughter to
be on that team if M. Mccully was on it, or something like that;
that someone told Plaintiff on July 17, 2013, that M. Mccully
could not be on the team because her parents were involved in a
lawsuit against the school; and that the Carter defendants played
a role in causing the coach of the team to remove M. Mccully from
the team.
While a retaliation claim can be brought on the basis of
Title IX, see Jackson v. Birmingham Bd. of Educ., 544 U.S. 167,
173-74 (2005), the Supreme Court has held that Title IX does not
9
authorize a suit against school officials, teachers, and other
individuals, see Fitzgerald v. Barnstable Sch. Comm., 555 U.S.
246, 257 (2009).
Summed up, no facts were pleaded in the complaint that would
allow the court to inf er that plaintiffs have a right of relief
against the Carter defendants.
Therefore, the claims asserted
against the Carter defendants in their individual capacities are
being dismissed with prejudice.
The claims against the Carter
defendants in their capacities as agents for Stephenville ISD
must be dismissed because they are to be construed as claims
against Stephenville ISD.
See Kentucky v. Graham, 473 U.S. 159,
165-66 (1985).
2.
As to Stephenville ISD
After having alleged retaliation against the carter
defendants in paragraph 37 of the complaint, plaintiffs alleged
in paragraph 38 that "[a]s a result of the illegal retaliation
against Complainant M. Mccully by all Defendants, Plaintiffs have
incurred costs and attorney fees."
Compl. at 10,
~
38.
The
court is assuming that plaintiffs intended to allege that the
things they described in paragraph 37 of the complaint
constituted retaliation against M. Mccully by Stephenville ISD as
well as by the Carter defendants.
Plaintiffs fare no better in
their retaliation claim against the school district than they did
10
in their claim against the Carter defendants.
No facts were
alleged from which the court can infer that plaintiffs have a
right of relief against Stephenville ISD based on a retaliation
theory.
There is no suggestion in the allegations of the complaint
that the basketball team referenced in paragraph 37 was a team
sponsored by Stephenville ISD; there is no suggestion that the
person who removed M. Mccully from the basketball team, or the
one who caused her to be removed, was acting on behalf of
Stephenville ISD; nor, is there any suggestion in the facts
alleged that any remarks made against M. McCully's participation
on the team resulted from the complaints by plaintiffs or their
father of actual or perceived gender discrimination by
Stephenville ISD in violation of Title IX.
There is no allegation that Stephenville ISD had any role in
determining membership on the summer recess basketball team.
Nor
is there any suggestion in the complaint as to the identity,
status, reliability, or anything else about the informant
referred to by the allegation that "on or about July 17, 2013,
Plaintiff was informed that M. Mccully could not be on the team
11
because her parents were involved in a lawsuit against the
school." 4
Compl. at 10, , 37.
For all one can discern from the allegations of the
complaint, the recitations of what "[p]laintiff [sic] was
informed" and "was told" could as likely as not be unfounded
gossip or rumor.
Even if they otherwise had legal significance,
those allegations are not sufficient to allow the court to infer
that the retaliation claim asserted by plaintiffs against
Stephenville ISD is plausible.
Therefore, the retaliation claim
as against Stephenville ISD is being dismissed with prejudice.
III.
Order
Therefore,
The court ORDERS that the motion to dismiss filed by the
Carter defendants be, and is hereby, granted, and that all claims
and causes of action asserted by plaintiffs against the Carter
defendants be, and are hereby, dismissed with prejudice.
The court determines there is no just reason for delay in,
and hereby directs, entry of final judgment as to such dismissal
4
The allegation "on or about July 17, 2013, Plaintiff was informed that M. McCully could not be
on the team because her parents were involved in a lawsuit against the school" would appear to refer to
some lawsuit other than the instant one inasmuch as the instant action was not filed until August 27,
2013. There is nothing in the complaint that suggests that the lawsuit to which the allegation refers was
one complaining of gender discrimination in violation of Title IX.
12
of the claims and causes of action asserted by plaintiffs against
the Carter defendants.
The court further ORDERS that the corrected motion to
dismiss filed by Stephenville ISD be, and is hereby, granted, as
to the claims and causes of action asserted by plaintiffs against
Stephenville ISD in Count II of the complaint, and that all such
claims and causes of action be, and are hereby, dismissed with
prejudice.
The court further ORDERS that the ruling on the remaining
grounds of Stephenville ISD's motion to dismiss for failure to
state a claim be, and is hereby, held in abeyance, as is the
motion filed by Stephenville ISD to dismiss for lack of capacity.
SIGNED November 13, 2013.
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