Lopez et al v. Shelton et al

Filing 12

Memorandum Opinion and Order: The court ORDERS that the motion to dismiss of AISD and Shelton is granted as to all claims and causes of action allegedby plaintiff against Shelton and all claims and causes of action alleged by plaintiff against AISD under the constitution or laws of the United States. (See order for specifics). (Ordered by Judge John McBryde on 3/18/2014) (srs)

. ··lCs-~-·OI-::-S=T::-R-1C""'T-CO lJ RT
NORTHERJ.'\T DISTRICT OF TEXAS

FILED
IN THE UNITED STATES DISTRI
NORTHERN DISTRICT OF T
FORT WORTH DIVISION

~sCOT MAR I 8 2014
CLERK, U.S. DISTRICT COURT

G.M., by and through his next
friend, CARMEN LOPEZ,
Plaintiff,

_

DeJlut~

§
§
§
§

VS.
ALEDO INDEPENDENT SCHOOL
DISTRICT AND RON SHELTON,
Defendants.

By _ _--.:::-

§

§
§
§

NO. 4:14-CV-019-A

§
§
§

MEMORANDUM OPINION
and
ORDER
Before the court for consideration and decision is the
motion of defendants, Aledo Independent School District ("AISD H

)

and Ron Shelton ("Shelton"), for dismissal for failure to state a
claim against either of them upon which relief may be granted.
After having considered such motion, the response thereto of
G.M., by and through his next friend, Carmen Lopez ("Lopez"),
("plaintiff"), defendants' reply, plaintiff's complaint, and
pertinent legal authorities, the court has concluded that such
motion should be granted as to all but the state law claims
against AISD.
1.

Background, and the Allegations of Plaintiff's Complaint
The above-captioned action is before this court by reason of
a withdrawal of the reference from the bankruptcy court and a
severance of the action as it now exists from causes of action

asserted by plaintiff in the bankruptcy court against other
parties.

G.M., by and

throug~

his next friend, Lopez, is

plaintiff, and AlSO and Shelton are defendants in this severed
action.

The court refers the reader to the January 22, 2014

order in this action for the procedural history related to the
withdrawal of the reference and severance.

Supplementing that

history, plaintiff's complaint was filed August 8, 2012, when the
action was pending against AlSO, Shelton, and the other parties
as Case No. 4:12-CV-559-A on the docket of this court.

On

January 14, 2013, Case No. 4:12-CV-559-A was transferred to the
bankruptcy court by reason of the filing by one of the
defendants, Terry Lynn Ford, of a petition under Chapter 13 of
the United States Bankruptcy Code.
In summary form, the allegations in the complaint directed
against AlSO and Shelton are as follows:
AlSO operates Stuard Elementary School ("Stuard"), which is
located in Aledo, Parker County, Texas.

Shelton is principal of

Stuard.
G.M., whose mother is Lopez, is a fourth-grade student at
Stuard, and has been a student at Stuard since he was in
kindergarten.

He has been the sUbject of harassment by T.F., a

fellow student, on the premises of Stuard.

The harassment has

included taunting, teasing, bullying, and physical assault, all
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to such a degree that G.M. has suffered physical injury,
emotional trauma, anxiety, depression, and social withdrawal.
Plaintiff and his mother repeatedly contacted and discussed
with teachers and administrators of stuard T.F.'s harassment of
G.M. and the effect that the harassment was having on G.M.

Even

though AISD has been aware of the harassment suffered by G.M. and
has known that T.F. was the perpetrator of the harassment, AISD
has taken no corrective action, or took insufficient action, or
participated themselves in the harassment, all contrary to the
written policies of AISD and applicable state and/or federal law.
The harassment suffered by G.M. has interfered with his
educational environment and deprived him of the educational
opportunities and benefits provided by AISD.
In response to the harassment, teachers and/or
administrators have not only been indifferent to the complaints
of G.M. and Lopez, but have increased the danger that G.M. would
be exposed to further harassment by punishing G.M. for attempting
to defend himself, while imposing no punishment on T.F., and by
informing G.M.'s classmates that they had a shorter recess due to
the complaints made by G.M. and Lopez.

"Defendants have condoned

student on student physical harassment and bullying in the past,
displaying a propensity to down play the acts, blaming the
victims, inadequately investigating the allegations and
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minimizing the severity of the acts by taking little or no
punitive sanction against perpetrators to the point of violating
their own policies and state and federal law./I
~

Compl. at 4,

24.
Based on the facts alleged, as summarized above, G.M.

alleged four causes of action that are pertinent to this
memorandum opinion.

Stated briefly, as alleged those causes of

action were as follows:
First, G.M. asserted what is referred to in the complaint as
a "Civil Rights Violation under 42 U.S.C.
Id. at 4.

§

1983 (Monell Claim)

Plaintiff alleged that "the actions of Defendants

resulted from, and were taken, pursuant to a de facto policy of
Defendant school district./I

Id. at 4,

~

27.

The existence of

such a de facto policy has been known to the "supervisory and
policy making officers and officials of said Defendants for a
substantial period of time./I

Id.,

~

28.

Notwithstanding their

knowledge of such de facto policy, the supervisory and policymaking officials have not taken steps they should have taken.
"G.M. has a clearly established right to equal access to all
benefits and privileges of a public education and a right to be
[free] from offensive harassment in school./I

Id. at 5,

~

30.

The actions and omissions by defendants were deliberate and
intentional, resulting in violations of G.M.'s rights to equal
4

./1

protection and due process, all in violation of the Fourteenth
Amendment to the united States Constitution.

"Defendants'

actions exhibit deliberate indifference to and/or reckless
disregard for the constitutional rights of G.M.," id. at 5,

~

32,

causing him to sustain damages.
The second cause of action alleged by plaintiff, which is
headed "civil Rights Violation, Equal Protection," appears to be
a restatement of the equal protection aspect of plaintiff's first
cause of action.

There is some indication in the language used

in the second cause of action that G.M. also intended to restate
the due process claim he alleged in his first cause of action,
this time asserting that he was deprived of "his rights,
privileges and immunities secured to [him] by the Fifth and
Fourteenth Amendment[s] to the united states Constitution," to
his damage.

Id. at 6,

~

38.

The third cause of action is titled "Negligent Hiring,
Training, & Supervision (Aledo Independent School District
("Aledo"))."

Basically, plaintiff complained by this cause of

action that AISD has breached duties it had not to hire
individuals with a propensity toward committing unlawful acts
against others and to protect the pUblic, such as G.M., from
illegal actions of its own agents, officers, and employees, and

5

others, and to adequately train and supervise its agents,
officers, and employees.
The fourth cause of action, titled "Intentional and
Negligent Infliction of Severe Mental Distress (Aledo Independent
School District ("Aledo"))," appears to be a state law cause of
action seeking recovery from "Defendants" of damages allegedly
resulting from harm and distress suffered by G.M. "[a]s a result
of Defendants' intentional and negligent conduct and omissions."
Id. at 7,

~

48.
II.
Standards Applicable to RUlings
on Defendants' Motion 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 contain "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

6

of action.

Id. 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.
(2009)

See Ashcroft v. Iqbal, 556 U.S. 662, 679

("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
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.

Twombly, 550 U.S. at 566-69.

"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."

Iqbal, 556 U.S. at 679.
III.
Analysis

A.

The Allegations Against Shelton are Insufficient to State a
Claim
So far as the court can tell, the only allegation in the

complaint specific to Shelton is the allegation in paragraph 6 on
page 2 that he is the principal of Stuard and that he is being

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sued individually and in his official capacity as

principal~

The

court cannot find mention of Shelton in any other part of the
complaint.

Several times, allegations were made that

"Defendants" did or failed to do something, but there is no way
to determine from the allegations of the complaint if those
allegations made reference to Shelton.

The meaninglessness of

the use in the allegations of the word "Defendants" is
illustrated by the allegations in the First, Third, and Fourth
causes, which obviously were intended to be directed against
AISD.

Yet, the word "Defendants" was used in describing the

conduct of AISD in each of those alleged causes of action.
No facts are alleged in the complaint which, if accepted as
true, would enable the court to conclude that the complaint
states a plausible claim of relief against Shelton.

Therefore,

the court has concluded that the complaint fails to state a claim
against Shelton upon which relief may be granted.
To the extent Shelton has been sued in his official
capacity, the court is treating those claims to be claims against
his employer, AISD.

The court does not decide the issue raised

by Shelton and AISD that plaintiff has failed to allege facts
that would overcome Shelton's qualified immunity status or his
state law immunity status.

However, the court's tentative

thought is that the allegations of the complaint are insufficient
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for that purpose.

See Reyes v. Sazan, 168 F.3d 158, 161 (5th

cir. 1999).
B.

Plaintiff's Pleadings Against AISD Also are Deficient
1.

The Allegations of a Pertinent Official Policy of AISD
are Insufficient

A governmental entity, such as AISD, can be subjected to
monetary damages or injunctive relief only if one of its official
pOlicies caused a person to be deprived of a federally protected
right.

Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).

AISD cannot be held liable under a theory of respondeat superior
or vicarious liability.

Id. at 694.

The Fifth Circuit has been explicit in its definition of an
"official policy" that can lead to liability on the part of a
governmental entity, giving the following explanation in an
opinion issued en banc in response to a motion for rehearing in
Bennett v. City of Slidell,
A municipality is liable under § 1983 for a
deprivation of rights protected by the Constitution or
federal laws that is inflicted pursuant to official
policy.
Official pOlicy 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

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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 policy-making authority.
Actions of officers or employees of a municipality
do not render the municipality liable under § 1983
unless they execute official policy as above defined.
735 F.2d 861, 862 (5th Cir. 1984) (per curiam) .
"Texas law is clear that final policYmaking authority in an
independent school district . . . rests with the district's board
of trustees.

1I

Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241,

1245 (5th Cir. 1993).

Plaintiff alleged that the actions of

which he and Lopez complain were "contrary to the written
policies of Aledo Independent School District.
~

21.

1I

Compl. at 3,

Presumably that allegation has reference to policies

established by AISD's board of trustees.

Thus, plaintiff has

affirmatively pleaded that the first alternative to the
establishment of an official policy, as expressed in Bennett,
does not exist in this case.
Plaintiff seems to have attempted to bring his claim within
the scope of the alternative method expressed in Bennett for
establishment of an official policy by his allegations that the

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actions of which he complains were taken pursuant to a de facto
pOlicy.

To that end, plaintiff alleged:

27. The actions of Defendants resulted from, and
were taken, pursuant to a de facto policy of Defendant
school district, which is implemented by the
Superintendent, Principals, Assistant principals, Board
members, and other employees of the said Defendants,
all acting under the color of law, who choose to
violate Plaintiff's constitutional rights, without
rightful authority of law.
28. The existence of the de facto policy
described above has been known to supervisory and
policy making officers and officials of said Defendants
for a substantial period of time.
29. Despite their knowledge of the said illegal
pOlicy and practices, supervisory and policy-making
officers and offlcials of the said Defendants have not
taken steps to determine the said practices, have not
disciplined or otherwise properly supervised the
individual employees who engaged in the said practices,
have not effectively trained the Superintendent,
Principals, Assistant Principals, Board members, and
other employees with regard to the proper
constitutional and statutory limits on the exercise of
their authority, and have instead sanctioned the policy
and the practices described therein.
Compl. at 4-5, "

27-29.

Notably absent from plaintiff's complaint is any allegation
that the majority of the board of trustees of AISD were aware of
the conduct of which plaintiff complains, approved of that
conduct, or intended that such conduct represent the policy of
AISD acting through its board of trustees.

Moreover, plaintiff's

pleading lacks the factual particularity that would be required

11

for there to be a meaningful allegation of an official policy
established by custom or practice.

The allegations relative to

the claimed "de facto" policy are purely conclusory, with no
facts alleged that would define such a policy, much less show
that it can be attributed to AISD's governing board of trustees.
Conclusory allegations of "customs, practices, or procedures" are
not sufficient.

See Spiller v. City of Tex. City, Police Dep't,

130 F.3d 162, 167 (5th Cir. 1997).

Nor is there any suggestion

that what plaintiff refers to as a "de facto" policy was a course
of action consciously chosen by the AISD board of trustees among
various alternatives.

In City of Okla. City v. Tuttle, the

Supreme Court explained, in a case in which a municipal policy
was claimed to be established by custom, that "the word 'policy'
generally implies a course of action consciously chosen from
among various alternatives."

471 U.S. 808, 823 (1985).

For the reasons explained above, the court cannot infer from
the allegations of the complaint that the complaint states a
plausible claim for relief against AISD under the Constitution or
laws of the United States inasmuch as it does not allege facts
that, if believed, would support the conclusion that any
violation of plaintiff's rights protected by the Constitution or
laws of the united States was inflicted pursuant to official
pOlicy of AISD, or that any of the actions of the employees of
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AlSD of which plaintiff complains were done in the execution of
an official policy of AlSD.

Therefore, the motion to dismiss

must be granted as to all claims asserted against AlSD under the
Constitution or laws of the united States.
Having decided to rule in favor of AlSD on the basis of the
threshold "official policy" issue, the court is not devoting
attention to a discussion of the other reasons why AlSD contends
that the complaint fails to state claims against it under the
Constitution or laws of the United states.
C.

The Court is Not Granting Leave for Plaintiff to File an
Amended Complaint
Plaintiff puts at the very end of their opposition to the

motion to dismiss an informal request that "in the event that
this Court is inclined to grant any portion of Defendants'
motion, Plaintiffs request leave to amend the Complaint."

Such

an afterthought request for leave to amend fails to comply with
the requirements of the Local Civil Rules of this court.

Rule LR

5.1(c) requires that any document that contains more than one
motion "must clearly identify each included . . . motion . . . in
its title."

The title of plaintiff's opposition to the motion to

dismiss, "opposition to Motion to Dismiss for Failure to State a
Claim," makes no mention of an included motion for leave to amend
plaintiff's complaint.

Moreover, Rule LR 15.1 of the Local civil

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Rules of this court requires that when a party files a motion for
leave to file an amended pleading, the filing party must attach a
copy of the proposed amended pleading as an exhibit to the motion
and must submit with the motion the original and a copy of the
proposed pleading.

Plaintiff did neither of those things.

If plaintiff thought it could allege facts that would cure
his pleading defects, and if he seriously wished to file an
amended complaint alleging those facts, he has known since
January 2013, when Shelton and AISD filed their motion to
dismiss, that he should take steps to cause an amended pleading
to be filed.

The reasons given by the Fifth Circuit for

upholding denial of the request for leave to amend in Spiller,
130 F.3d at 167, apply as additional reasons why this court is
not allowing plaintiff leave to amend.
D.

The Court is Declining to Exercise Supplemental Jurisdiction
Over Whatever State Law Claims Plaintiff Purports to be
Asserting Against AISD in His Complaint
Having determined to dismiss all claims alleged by plaintiff

against Shelton and all claims alleged by plaintiff against AISD
under the Constitution and laws of the united States, the court
is exercising the discretion given to it by 28 U.S.C.
§

1367(c) (3) to decline to continue to exercise supplemental

jurisdiction over whatever state law claims plaintiff purportedly
has alleged against AISD.
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IV.

Order
For the reasons stated above,
The court ORDERS that the motion to dismiss of AISD and
Shelton is granted as to all claims and causes of action alleged
by plaintiff against Shelton and all claims and causes of action
alleged by plaintiff against AISD under the constitution or laws
of the United States.
The court further ORDERS that all claims and causes of
action alleged by plaintiff against Shelton be, and are hereby,
dismissed.
The court further ORDERS that all claims and causes of
action alleged by plaintiff against AISD under the Constitution
or laws of the United States be, and are herebYI dismissed.
The court further ORDERS that all claims and causes of
action alleged by plaintiff against AISD under the laws of the
State of Texas bel and are hereby, dismissed without prejudice to
the refiling of such claims in a court
SIGNED March 18

1

2014.

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