Isaiah Smith v. Tarrant County College District

Filing 12

Memorandum Opinion and Order...all claims by pltf dismissed pursuant to 28 USC 1915(e)(2)(B); all claims by ptlf based on the laws of the State of Texas dismissed pursuant to 28 USC 1367(c)(3) (Ordered by Judge John McBryde on 12/23/2016) (wrb)

li.S. DISTRICT COiiRT
NORTH Eta~ n:·.·;-·;H,iCTOFTF\'\S

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Fitt!\D

IN THE UNITED STATES DISTRICT C URT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
ISAIAH SMITH,

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§

§

vs.

§
§

NO. 4:16-CV-832-A

TARRANT COUNTY COLLEGE DISTRICT,§
ET AL.,
§
§
§
Defendants.
MEMORANDUM OPINION
and
ORDER
After having reviewed the contents of the complaint by which
plaintiff, Isaiah Smith, initiated the above-captioned action on
September 7, 2016, the exhibits that accompanied the complaint,
and pertinent legal authorities, the court has concluded that all
claims asserted by plaintiff under 42 U.S.C.

§

1983 in such

complaint should be dismissed pursuant to the authority of 28
U.S.C.

§

1915(e) (2), and that the court should exercise its

discretion under 28

u.s.c.

§ 1367(c) (3) to dismiss all of

plaintiff's state law claims.
I.

General Nature of Plaintiff's Complaint, and the
Identities of the Defendants Named in the Complaint,
and the Causes of Action Alleged
A.

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§
§

Plaintiff,

DEC 2 32016

General Nature of Complaint
In late 2015, plaintiff, a twenty-one-year-old homeless

person living on the streets, became a student at the Trinity

River Campus ("TRC") of defendant Tarrant County College District
("TCCD").

Doc. 1 at ECF 6,

~

20. 1

The allegations of the

complaint disclose that he perceives that his problems at TRC
started when a professor of psychology at TRC, defendant Mark
Evans ("Evans"), befriended plaintiff by providing him food and
discussing alternative living situations for plaintiff, which
included giving plaintiff access to the TRC at nighttime.
ECF 5-8, ~~ 19-28.

Id. at

Plaintiff alleged that Evans gave him his

school key and his ID badge that would allow plaintiff to have
access to the TRC campus building,
ECF 6,

~

21.

"preferably at night."

Id. at

Those alleged generosities of Evans seem to have

led to everything about which plaintiff complains.
He summed up the nature of his complaints in the first
numbered paragraph of the complaint as follows:
Plaintiff Isaiah Smith was subjected to numerous
intrusive and harassing investigations for engaging in
lawful activities and through and by the actions and
the conduct as to the defendants, the Plaintiff has
suffered and continues to suffer to this day a loss of
liberty, property and not being able to be treated
equally and lawfully by college officials.
Id. at ECF 2-3.

'The "Doc._, at ECF __" references are to the numbers assigned to the referenced item on
the clerk's docket and to the ECF page number that appears at the top of each of the pages of the item.
The references to the ECF page numbers is necessary because plaintiff did not provide pagination on his
forty-three page complaint or on the 303 pages of exhibits that accompanied the complaint.
2

B.

Defendants
Plaintiff named as defendants:
( 1)

TCCD;

(2)

Eugene Giovannini ("Giovannini"), Chancellor of TCCD;

(3)

Angela Robinson ("Robinson"), Acting Chancellor of TCCD
while plaintiff was a student there, and now Vice
Chancellor for Administration and General Counsel of
TCCD;

(4)

Stephen Madison ("Madison"), President of TRC Campus of
TCCD;

(5)

Keith Whetstone ("Whetstone"), Public Information
Officer of TCCD;

( 6)

Adrian Rodriguez ("Rodriguez") , Vice President for
Student Development Services at the TRC Campus of TCCD;

(7)

Kateeka Harris ("Harris"), Coordinator of Student
Support and student Development Services at the TRC
Campus of TCCD;

(8)

Mayra Oliveres-Urueta ("Oliveres-Urueta"), Director of
Student Development Services at the TRC Campus of TCCD;

(9)

Jerome Albritton ("Albritton"), Supervisor of the
Police Officials at the TRC Campus of TCCD;

(10) Shamika Denson ("Denson"), a Police Officer employed
and commissioned by TCCD; and
3

(11) Evans, a Professor employed by TCCD.
Id. at 3-4, ~~ 2-12.

Each of the individuals, numbers 2-11 named

above, is sued in his/her individual and official capacities.
C.

Causes of Action
Plaintiff alleged that "[t]his is a civil rights action that

raises federal questions under the First and the Fourteenth
Amendments to the United States Constitution, 42 U.S.C.
Id. at 5, , 13.

§

1983."

He asserted state law claims that he contended

are subject to this court's supplemental jurisdiction "to hear
the related claims as to the State law of Texas arising from the
same facts pursuant to 28 U.S.C.

§

1367."

Id., , 16.

After a twenty-seven page recitation of "FACTS," plaintiff
described his causes of action in seven counts, as follows:
"COUNT I As-Applied Violation of Plaintiffs'

[Sic]

Rights to Free Speech under the First and Fourteenth
Amendments

(42 U.S.C. § 1983) (All Defendants)";

Doc. 1 at ECF 33.
"County [sic] II Violation of Plaintiff's Civil
Rights Pursuant to 42 United States Code §1983

(EQUAL

PROTECTION) (All Defendants)";
Id. at ECF 34.
"County [sic] III As-Applied Violation of
Plaintiff's Right to Free Speech Under the First and
4

Fourteenth Amendments (42 U.S.C.

§

1983)

- Retaliation

(All Defendants)";
Id. at ECF 36.
"COUNT IV As-Applied Deprivation of Plaintiff's
Procedural and Substantive Due Process (42
§

u.s.c.

1983) (All Defendants)";

Id. at ECF 37.
"COUNT V DEFEMATION [sic] , LIBEL, SLANDER (All
Defendants)";
Id. at ECF 38.
"COUNT VI

(Section 27 of the Texas State

Constitution Rights of Assembly; Petition for Redress
of Grievances) (Defendants Stephen Madison and Jerome
Albritton)"; and
Id. at ECF 39.
COUNT VII

(Negligence) (All Defendants).

Id. at ECF 40.

5

II.

Statutory and Case Authorities for the Sua Sponte Dismissals
Plaintiff applied to proceed in forma pauperis, and the
court authorized him to do so.

Docs. 2 & 7. 2

Section 1915 of

Title 28 United States Code directs that in such a case,
the court shall dismiss the case at any
time if the court determines that-(2 )

(B)

the action . . .
(i)
is frivolous or malicious;
(ii) fails to state a claim on which relief
may be granted; or
(iii) seeks monetary relief against a
defendant who is immune from such relief.

28 U.S.C.

§

1915(e) (2) (B).

The factors to be considered in

determining whether the court should dismiss a case for one of
the statutory reasons mentioned above are as follows:
A.

Frivolousness
A claim is frivolous if it "lacks an arguable basis either

in law or in fact.•
(1989).

Neitzke v. Williams, 490 u.s. 319, 325

The "term 'frivolous,' when applied to a complaint,

embraces not only the inarguable legal conclusion, but also the
fanciful factual allegation."

Id.

2

The "Doc. _ " references are to the numbers assigned to the referenced items on the docket in
this Case No. 4:16-CV-832-A.
6

When evaluating the frivolousness issue, the court is to
bear in mind that the

§

1915 review provisions for possible sua

sponte dismissal are "designed largely to discourage the filing
of, and waste of judicial and private resources upon, baseless
lawsuits that paying litigants generally do not initiate because
of the costs of bringing suit and because of the threat of
sanctions for bringing vexatious suits . . .

"

Id. at 327.

To

that end, the statute "accords judges . . . the unusual power to
pierce the veil of the complaint's factual allegations and
dismiss those claims whose factual contentions are clearly
baseless."

Id.; see also Denton v. Hernandez, 504 U.S. 25, 32

(1992).
With respect to a district court's evaluation as to whether
facts alleged are "clearly baseless," the Supreme Court in
Denton, in response to a request that it define the "clearly
baseless" guidepost with more precision, said "we are confident
that the district courts, who are 'all too familiar' with
factually frivolous claims, are in the best position to determine
which cases fall into this category," and thus declined "the
invitation to reduce the 'clearly baseless' inquiry to a
monolithic standard."

Denton, 506 U.S. at 33

(citation omitted).

The Neitzke and Denton decisions both dealt with a version
of 28

u.s.c.

§

1915 that contained in its subsection (d) an
7

authorization for the district court to dismiss a claim filed in
forma pauperis "if satisfied that the action is frivolous."
Neitzke, 490 U.S. at 324; Denton, 504 U.S. at 27.
version of

§

The current

1915 still mandates in its subsection (e) (2) (B) (i)

dismissal of an in forma pauperis complaint if it is frivolous.
B.

Maliciousness
There are court decisions upholding a sua sponte dismissal

for maliciousness pursuant to the authority of

§

1915 where the

action before the court "involves a duplicative action arising
from the same series of events and alleging many of the same
facts as an earlier suit."

See,

~.

Brown v. Texas Bd. of

Nursing, 554 F. App'x 268, 269 (5th Cir. 2014).
does not apply here.'

That situation

Pertinent to this action is the conclusion

expressed by the court in Spencer v. Rhodes, 656 F. Supp. 458,
464

(E.D.N.C. 1987), that if a person brings a suit "merely to

satisfy his desire for vengeance against the Defendants, and not
to rectify any wrong done to him, then the suit is a MALICIOUS
one."

Under those circumstances, the court has "broad

discretionary authority to DISMISS," and such a dismissal would

'While plaintiff has two other suits now pending before this court claiming violations of his civil
rights, Case No. 4:15-CV-818-A, Smith v. Birdville Independent School District, filed October 28,2015,
and Case No. 4:16-CV-176-A, Smith v. Management and Training Corporation, filed March 2, 2016,
neither of those cases is duplicative of the claims plaintiff is making in the instant action. The first is a
complaint that plaintiff was inappropriately bnllied while attending Birdville High School, and the
second is a claim of sex discrimination against a former employer of plaintiff.
8

be consistent with the legislative intent expressed in
Id.

§

1915.

In Ballentine v. Crawford, 563 F. Supp. 627, 628-29 (N.D.

Ind. 1983), the court held that "a complaint plainly abusive of
the judicial process is properly typed 'malicious' within the
context of Section 1915(d) which authorizes immediate dismissal
of the same."

A suit brought for the purpose of harassing the

defendants is brought maliciously.

Daves v. Scranton, 66 F.R.D.

5, 8 (E.D. Pa. 1975).
C.

Failure to State a Claim
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
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
9

unsupported by any factual underpinnings.
556 U.S. 662, 679 (2009)

See Ashcroft v. Iqbal,

("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 under Rule 12(b) (6), 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.
u.s. at 566-69.

Twombly, 550

"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.

The pleading standards stated above apply separately to each
claim and each defendant in a plaintiff's complaint.
D.

Immunity From Relief
Each of the individual defendants is eligible to assert the

qualified immunity defense as to each claim asserted against
him/her under 42 U.S.C.

§

1983.

Although a

pl~intiff

is not

obligated to anticipate such a defense in his complaint at the
risk of dismissal under Rule 12 of the Federal Rules of Civil
Procedure, see Schultea v. Wood, 47 F.3d 1427, 1430 (5th Cir.
10

1995), the wording of

1915 (e) (2) (B) (iii) suggests that

§

qualified immunity is a factor the court should consider as part
of the

§

1915 review process.

Qualified immunity insulates a government official from
civil damages liability when the official's actions do not
•violate clearly established statutory or constitutional rights
of which a reasonable person would have known.•
fitzgerald, 457 U.S. 800, 818 (1982).

Harlow v.

For a right to be "clearly

established," the right's contours must be •sufficiently clear
that a reasonable official would understand that what he is doing
violates that right."
(1987).

Anderson v. Creighton, 483 U.S. 635, 640

Individual liability thus turns on the objective legal

reasonableness of the defendant's actions assessed in light of
clearly established law at the time.

Hunter v. Bryant, 502 U.S.

224, 228 (1991); Anderson, 483 U.S. at 639-40.
In Harlow, the court explained that a key question is
"whether that law was clearly established at the time an action
occurred" because "[i]f the law at that time was not clearly
established, an official could not reasonably be expected to
anticipate subsequent legal developments, nor could he fairly be
said to 'know' that the law forbade conduct not previously
identified as unlawful."

457 u.s. at 818.

In assessing whether

the law was clearly established at the time, the court is to
11

consider all relevant legal authority, whether cited by the
parties or not.

Elder v. Holloway, 510

u.s.

510, 512

(1994).

If public officials of reasonable competence could differ on
the lawfulness of a defendant's actions, the defendant is
entitled to qualified immunity.

Malley v. Briggs, 475 U.S. 335,

341 (1986); Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th
Cir. 1992).

"[A]n allegation of malice is not sufficient to

defeat immunity if the defendant acted in an objectively
reasonable manner."

Malley, 475 U.S. at 341.

In analyzing whether an individual defendant is entitled to
qualified immunity, the court considers whether plaintiff has
alleged any violation of a clearly established right, and, if so,
whether the individual defendant's conduct was objectively
reasonable.

Siegert v. Gilley, 500 U.S. 226, 231 (1991); Duckett

v. City of Cedar Park, 950 F.2d 272, 276-80 (5th Cir. 1992).

In

so doing, the court should not assume that plaintiff has stated a
claim, i.e., asserted a violation of a constitutional right.
Siegert, 500 U.S. at 232.

Rather, the court must be certain

that, if the facts alleged by plaintiff are true, a violation has
clearly occurred.
(5th Cir. 1989).

Connelly v. Comptroller, 876 F.2d 1209, 1212
A mistake in judgment does not cause an officer

12

to lose his qualified immunity defense.

In Hunter, the Supreme

Court explained:
The qualified immunity standard "gives ample room for
mistaken judgments" by protecting "all but the plainly
incompetent or those who knowingly violate the law."
Malley, [475 U.S.] at 343. . .
This accommodation for
reasonable error exists because "officials should not err
always on the side of caution" because they fear being sued.

502 U.S. at 229.
There are two aspects to the qualified immunity inquiry.
One is a decision as to whether the facts alleged and shown make
out a violation of a constitutional right, and the other is
whether the right at issue was clearly established at the time of
the defendant's alleged conduct.

In Pearson v. Callahan, the

Supreme Court held that district courts are authorized to
determine the order of deciding the two aspects.
242

555 U.S. 223,

(2009). Inasmuch as the qualified immunity defense creates

entitlement to "immunity from suit rather than a mere defense to
liability

it is effectively lost if a case is erroneously

permitted to go to trial."

Id. at 231 (emphasis added).
III.

Official Capacity Claims Aqainst Individual Defendants
Are Claims Against TCCD
As all of the official capacity claims against the
individual defendants are considered to be claims against their

13

employer, defendant, TCCD, Kentucky v. Graham, 473

u.s.

159, 165-

66 (1985); see also Will v. Michigan Dep't of State Police, 491
U.S. 58, 71 (1989).

The official capacity claims are redundant

inasmuch as TCCD is separately named as a defendant.

The court

is considering all of them to be claims against TCCD.

IV.
Plaintiff's § 1983 Claims Against the
Individual Defendants Must Be Dismissed
Section 1983 is not a source of substantive rights, but
merely provides a method of vindicating federal rights conferred
elsewhere.

Albright v. Oliver, 510 U.S. 266, 271 (1994). To

state a claim for relief under

§

1983, the plaintiff must allege

facts plausibly establishing that an individual acting under
color of state law caused the deprivation of a specific right
secured by the Constitution or laws of the United States. Id.;
West v. Atkins, 487 U.S. 42, 48 (1988).

As discussed below,

plaintiff has failed to make such allegations as to any of the
individual defendants.
A.

Allegations Against Individual Defendants
1.

Giovannini

There is no allegation of fact as to anything Giovannini did
that affected plaintiff.

Plaintiff alleged that Giovannini is

Chancellor of TCCD, and that under his authority, and through and

14

pursuant to his authority, plaintiff continues "a denial as to
his liberty, property, and has not had any of his student record
cleared as to unconstitutional actions and conduct that the
defendant has engaged in."

Doc. 1 at ECF 3, ~ 3.

An award of

punitive damages is sought by plaintiff against Giovannini "for
his intentional, knowing, or reckless disregard to Plaintiff's
constitutional rights."

Id. at ECF 41, ~ 12.

According to the

allegations of the complaint, Giovannini was not even Chancellor
of TCCD when plaintiff was a student there.

Id. at ECF 3, ~ 4.

No facts are alleged that would suggest that there is a rational
basis for any claim made by plaintiff against Giovannini.
Certainly there is no allegation of facts plausibly establishing
that Giovannini caused a deprivation of a specific right of
plaintiff secured by the Constitution or laws of the United
States.
2.

Robinson

Plaintiff alleged that Robinson was the Acting Chancellor of
TCCD while plaintiff was a student there, and that she is
currently the Vice Chancellor for Administration and General
Counsel of TCCD.

Id. at ECF 3,

~

4.

An award of punitive

damages was sought by plaintiff from Robinson "for he:t
intentional, knowing, or reckless disregard of Plaintiff's
constitutional rights."

Id. at ECF 42,
15

~

13.

No facts are

alleged that would rationally lead to the conclusion that
Robinson did anything to cause a deprivation of any specific
right of plaintiff secured by the Constitution or laws of the
United States.
3.

Madison

Plaintiff alleged that Madison is President of the TRC
Campus of TCCD.

Id. at ECF 4, ~ 5.

several paragraphs of the complaint.
ECF 18,

~~

73 & 74, ECF 26-27,

~

Madison is mentioned in
Id. at ECF 10, ~~ 39 & 40,

106, ECF 29,

~

116.

However, no

allegation is made in any of those paragraphs of anything Madison
did that could be construed as a deprivation by Madison of any
specific right of plaintiff secured by the Constitution or laws
of the United States.

The thrust of plaintiff's complaints

against Madison is that he did not respond as promptly as
plaintiff thought he should have responded to plaintiff's
requests or demands.

Plaintiff sought an award of punitive

damages from Madison "for his intentional, knowing, or reckless
disregard to Plaintiff's constitutional rights."
~

Id. at ECF 42,

14.
4.

Whetstone

Plaintiff makes allegations about Whetstone only twice in
the complaint.

First, the identification of him as the Public

Information Officer of TCCD, id. at ECF 4, , 6; and the second
16

time to make known that he wanted an award of punitive damages
from Whetstone "for his intentional, knowing, or reckless
disregard to Plaintiff's constitutional rights," id. at ECF 42,
, 15.

There is no allegation of fact that would support a

conclusion that Whetstone deprived plaintiff of any specific
rights secured by the Constitution or laws of the United States.
5.

Rodriguez

Plaintiff identified Rodriguez as the Vice President for
Student Development Services at the TRC Campus of TCCD. Id. at
ECF 4, , 7.

Thereafter, plaintiff mentioned Rodriguez in five

paragraphs of his complaint.

Id. at ECF 15-16, , 63, ECF 26,

, , 104 & 105, ECF 31-32, , 127, ECF 42, , 16.

Plaintiff includes

in his complaints about Rodriguez that plaintiff was told by
another person that that person had had a meeting with Rodriguez
about plaintiff destroying the ISIS flag, and that Rodriguez told
the other person that he would deny plaintiff the right to do
that.

Apparently, according to the allegations, Rodriguez played

a role in the decision to issue the criminal trespass suspension
of plaintiff from the campus, and refused to drop the suspension.
Plaintiff also complained that details Rodriguez listed in the
criminal trespass warning issued to plaintiff were inconsistent
with the statement made by another person.

The final mention of

Rodriguez in the complaint was the assertion by plaintiff that he
17

was seeking an award of punitive damages from Rodriguez

~for

his

intentional, knowing, or reckless disregard to Plaintiff's
constitutional rights."

Id. at ECF 42,

~

16.

There is no

allegation of fact that would support a conclusion that Rodriguez
deprived plaintiff of any specific rights secured by the
Constitution or laws of the United states.
6.

Harris

Plaintiff described Harris as the Coordinator of Student
Support and Student Development Services at the TRC Campus of
TCCD.

Id. at ECF 4,

~

8.

Harris was mentioned in several

paragraphs of the complaint.

The alleged criticisms plaintiff

had about her were that she declined to release to him documents
that she thought were confidential records, id. at ECF 9, ~ 34;
that she presented the disciplinary board panel with a new charge
that he was not informed about, and he was not able to properly
prepare for an effective defense due to not having knowledge of
the new charge until the last minute, id. at ECF 10, ~ 39; that
plaintiff was served with an administrative summons to appear
before Harris,

~as

to potential violations of the TCCD Student

Code of conduct," id. at 11, , 45; that Harris sent him an email
that included a letter attachment informing him that he was
temporarily suspended from college campus, which explained why
the suspension occurred, which letter told him to contact Harris
18

to learn of his hearing options, and that once he had selected a
hearing format, the hearing would be scheduled, and that if he
failed to contact Harris by a specified date, a hearing format
would be chosen for him, and he would be notified of a hearing
date and time, id. at ECF 22,

~

90; that on January 8, 2016,

Harris sent plaintiff a letter concerning a challenge by him of
his disciplinary suspension, id. at ECF 27,

~

109; that in a

letter dated January 8, 2016, Harris informed him of the
accusations against him concerning violations of TCCD's Student
Handbook policies, and that his requests for a board hearing had
been scheduled for January 12, 2016, at 2:00p.m. to address his
alleged violations, and inviting him to bring any evidence and/or
witnesses with him at that time, id. at ECF 27-28,

~,

110 & 113;

and that Harris told plaintiff that he could appeal a
disciplinary decision if he submitted written correspondence to
the Campus President, in response to which plaintiff sent Madison
a written appeal of his disciplinary decision, id. at ECF 29, ,
115.
Plaintiff requested that he be given an award of punitive
damages against Harris for her "intentional, knowing, or reckless
disregard to Plaintiff's constitutional rights."
, 17.

Id. at ECF 42,

There is no allegation of fact that would support a

19

conclusion that Harris deprived plaintiff of any specific rights
secured by the Constitution or laws of the United States.
7.

Oliveres-Urueta

Plaintiff alleged that Oliveres-Urueta is the Director of
student Development Services of the TRC campus of TCCD.
ECF 4,

~

9.

Id. at

He said he was told that the only way he would be

able to pass out magazines in the hallways of the campus would be
to obtain approval from Oliveres-urueta, who did not respond to
his requests for approval.

Id. at ECF 14, ~~ 55 & 57.

Plaintiff

sought an award of punitive damages against Oliveres-Urueta for
her "intentional, knowing, or reckless disregard to Plaintiff's
constitutional rights."

Id. at ECF 42, ~ 18.

There is no

allegation of fact that would support a conclusion that OliveresUrueta deprived plaintiff of any specific rights secured by the
Constitution or laws of the United States.
8.

Albritton

Plaintiff alleged that Albritton is the Supervisor of the
Police Officials at the TRC Campus of TCCD.

Id. at ECF 4, ~ 10.

Plaintiff complained that Albritton notified plaintiff that
plaintiff could not burn or destroy an ISIS flag at the public
college due to offending the Muslim students and because doing so
would destroy the diversity of the campus, and he threatened to
arrest plaintiff if plaintiff destroyed the ISIS flag on the
20

campus and informed plaintiff that any proposal would be denied
by the officials who were responsible for approving student First
Amendment activities.

Id. at ECF 13,

~52.

On December 15,

2015, plaintiff communicated with Albritton concerning what
Albritton had told him, and requested an informal resolution with
Albritton over that issue; and, plaintiff alleged that Albritton
did not respond to plaintiff's request for an informal
resolution, following which plaintiff sent Albritton a
communication, reminding Albritton of plaintiff's earlier
communications to him requesting an informal resolution meeting
with Albritton.

~~

Id. at ECF 15-16,

62-66.

Plaintiff made

further allegations concerning Albritton's non-responsiveness to
plaintiff's demands or requests for informal resolutions of
matters of concern to plaintiff.
79, 81, 107,

&

Id. at ECF 16-27, ~~ 67-72, 77-

108.

Plaintiff sought an award of punitive damages from Albritton
for his "intentional, knowing, or reckless disregard to
Plaintiff's constitutional rights."

Id. at ECF 42, , 19.

There

is no allegation of fact that would support a conclusion that
Albritton deprived plaintiff of any specific rights secured by
the Constitution or laws of the United States.

21

9.

Denson

Denson is a Police Officer employed and commissioned by
TCCD.

Id. at ECF 4, ~ 11.

On December 13, 2015, plaintiff

noticed that Denson was following him on the campus, so he
decided to record her because he was not sure why she was
following him; later that day,

"he noticed that it appeared that

Defendant Denson was 'slaking' him however he remained calm and
cool."

Id. at ECF 20, ~ 85.

On that same day Denson made

contact with plaintiff, and was very rude and loud, so plaintiff
began to video record Denson and Denson was already recording
plaintiff.

Id. at ECF 20-21, ~~ 84-86.

Plaintiff expressed

disagreement with a written statement and report against
plaintiff that Denson wrote, and that resulted in plaintiff being
trespassed from TCCD; plaintiff claimed that Denson's statement
was different from what is shown on the video of her police body
camera and from a statement by Raymong Aldridge, who had
complained about plaintiff taking his picture; plaintiff filed a
complaint against Denson with the Tarrant County District
Attorney's Office and with the TCCD.
102.

Id. at ECF 25-26,

~~

101-

Plaintiff requested punitive damages from Denson for her

"intentional, knowing, or reckless disregard to Plaintiff's
constitutional rights."

Id. at ECF 42,

~

20.

There is no

allegation of fact that would support a conclusion that Denson
22

deprived plaintiff of any specific rights secured by the
Constitution or laws of the United States.
10.

Evans

Plaintiff alleged that Evans is a professor in the employ of
TCCD.

Id. at ECF 4,

~

12.

Most of the mentions by plaintiff of

Evans in the complaint are concerning the facts that Evans
befriended plaintiff and provided plaintiff food and shelter, and
that one of the problems plaintiff had with TCCD personnel was as
a result of taking advantage of the privileges he said Evans
extended to him.

Id. at ECF 5-8, ~~ 19-31, ECF 20, ~~ 82-83.

Plaintiff expressed concern that, when confronted by officials of
TCCD, Evans denied plaintiff's assertion that he had given
plaintiff permission to stay on campus overnight.
~

31 & ECF 20,

~

Id. at ECF 8,

82.

Plaintiff did not request punitive damages against Evans,
but alleged in his Count III

§

1983 count that:

By attempting to silence Plaintiff from filing a
lawsuit and a written grievance against school
officials violating his rights, Defendant Evans
violated a clearly established constitutional right of
which all reasonable college administrators, faculty,
and staff should have known, rendering him liable to
Plaintiff under 42 U.S.C. § 1983.
Id. at ECF 37,

~

7.

As has been true concerning plaintiff's

allegations against each of the individual defendants, his
allegations against Evans are purely conclusory.
23

There are no

allegations of fact against Evans that could be construed as a
deprivation by Evans of any specific right of plaintiff secured
by the Constitution or laws of the United States.

* * * * *
The exhibits plaintiff filed with his complaint provide
insight into some of the circumstances to which plaintiff made
reference in the allegations of his complaint.

His exhibit 13

was a report on a TCCD Incident Reporting Form that was submitted
on November 13, 2015, by a Student Life Center Student Worker,
which gave as the Reasons for Report "Scholastic Dishonesty;
Distressed Student; Violations of Student Handbook," and
described the following incident:
This student, Isaiah Smith, has been harrasing
[sic] the student workers concerning a series of
questions that have no relevance to the purpose of his
visit on most occasions. On Monday, November 9th, he
called to ask a number of things and a few minutes
later he physically came into the office to ask where
he can receive a permit to express his 2nd amendment,
that being, to burn the I.S.I.S. flag on the public
sidewalk in front of the campus with a group of
students. We then directed him to the Police
Department because that was not in our jurisdiction.
Doc. 1 (Doc. 1-2 at ECF 23).

On November 23, 2015, Harris, as

Coordinator of Student Support, transmitted electronically to
plaintiff a letter that said, inter alia, the following:
Our office received information regarding alleged
violations of the Tarrant County College District
(TCCD) student Handbook stemming from an incident on or
24

about November 9, 2015, in or around Trinity River
Campus, involving disruption of educational activities.
More specifically, you were allegedly harassing the
student workers concerning a series of questions that
have no relevance to the purpose of his visit on most
occasions. Then again on November 13, 2015 you came
into the office asking about freedom of speech permits
and says he was told to come to our office in order to
get them.
The specific alleged violations are:
VII. STUDENT DISCIPLINE: 7. Behavior that
interrupts or disrupts educational activities
VI. STUDENT RIGHTS AND RESPONSIBILITIES:
Discrimination, Harassment, Retaliation
Doc. 1 (Doc. 1-2 at ECF 20).

The letter informed plaintiff that

he should contact Harris by December 1 to schedule a conference
for the purpose of reviewing the allegations and potential
charges, the Student Handbook, plaintiff's hearing options, the
student conduct process, possible sanctions, and to answer any
questions Harris might have.

Id.

He was told that he would be

given an opportunity to accept any responsibility or not to
accept responsibility for the violations, and he was given a
telephone contact number for Harris if he had any questions.

Id.

The letter was accompanied by a TCCD Statement of Student Rights
and Responsibilities, which clearly outlined procedures that
provided plaintiff due process related to his alleged violation.
Id.

(Doc. 1-2 at ECF 21-22).

Included in Exhibit 12 is another

Incident Reporting Form that gives a further description of what

25

was viewed to be the inappropriate conduct of plaintiff on
November 9, 2015.

Id.

(Doc. 1-2 at ECF 16-17).

On December 2 and again on December 15, plaintiff sent
communications to Madison and Albritton requesting meetings to
discuss the complaints that had been made against him.
1-3 at ECF 26

&

Id.

(Doc.

27).

There are exhibits to the complaint that could be viewed to
be substantiation of plaintiff's allegations concerning the
generosity Evans showed to plaintiff as a homeless person.
Doc. 1 at ECF 47-50, and Doc. 1 (Doc. 1-1 at ECF 1-3).

On

December 11, 2015, Jannet R. Ponder provided a handwritten
statement that was worded as follows:
12/11 - For the last couple of days, I have notice
that a student, Isiah, has been stashing his item
underneath an instructor's (Mark Evan) desk on the 5th
floor.
I was not sure of this arrangement but I let it
go until a coworker brought it up today.
Isiah came onto our floor around 4:30ish and one
of our SI people spoke to him, stating that the
particular instructor was not here, Isiah left.
We
(the Admin Assts) got concerned because we were leaving
at 5 and Isiah's stuff was underneath the desk, so I
texted the instructor, Mark Evans, to find out if the
student has permission to do so.
Mark texted me back
stating he asked him not to.
So Angela, another admin,
called the police to have his items picked up.
Doc. 1 (Doc. 1-3 at ECF 42) (errors in original).

26

On December 13, 2015, Denson made a report of suspicious
activity pertaining to plaintiff, that read as follows:
On Sunday, December 13, 2015, at approximately
1650 hours, I, Officer Denson #282, a Peace Officer
with Tarrant County College District (TCCD), currently
assigned to the Trinity River Campus at 300 Trinity
Campus Circle, Fort Worth, Texas 76102 was securing the
Tahita Fulkerson Library at TREF 2302 when I overheard
a male voice speaking loudly as if he was in distress.
At this time, I walked outside of the library into
the hallway and observed Isaiah Xavier Smith, Jr. (see
involved parties) standing at approximately four feet
away from Raymon T. Aldridge, a GCA Service Group
employee (see involved parties).
Smith was holding a
silver cell phone at approximately arm's length away
from Aldridge's face. Aldridge asked Smith, "What are
you doing? I have not given you permission to take my
picture." Smith ignored Aldridge's request not to
photograph him, and continued to hold the cell phone in
Aldridge's face.
I advised Smith to leave Aldridge
alone.
Smith, then stated, "Okay, then I will video
you."
I advised Aldridge to ignore Smith's conduct and
walk away from Smith's presence.
I then advised Smith
to stop what he was doing and walk away. Aldridge was
upset because he believed Smith was retaliating against
him (Aldridge) for reporting him to the TCCD Police
Department (Please reference TCCD Police Report 151168
for additional details) . I then asked Aldridge to
explain to me what happen to him prior to my arrival.
Aldridge advised the following: While he was en
route to the Trinity River East Fork Building from the
second floor near the library, he noticed that Smith
was walking in his direction.
Before Aldridge was able
to pass by Smith, he noticed that Smith had pulled out
his cell phone and began to take pictures of him
without his consent. Aldridge verbally advised Smith
to stop taking his picture, but Smith ignored his
request and kept holding the cell phone in front of his
face without making any remarks. Aldridge stated on
Tuesday, December 1, 2015, around 2302 hours, he found
Smith hidden inside TREF 5228A Huddle Room and reported
27

Smith to the TCCD Police. Therefore, Aldridge believes
that Smith was trying to provoke a negative response
from him.
I advised Aldridge to complete a voluntary
statement and I would attached his statement to this
report in Other Media.
Id.

(Doc. 1-4 at ECF 1-2) (errors in original).
On December 17, 2015, officials of TCCD issued a Criminal

Trespass Warning to plaintiff that, in effect, prohibited him
from entering, or remaining, on property of TCCD, stating that
the warning would be in effect until plaintiff received notice
that it had been rescinded, and giving as reasons for the warning
the following:
Reason:
Incident that took place on December 11, 2015 in
which you are alleged to have entered into an
instructor's office and stored your personal belongings
under the desk without permission then failed to comply
with the directive of a College Official when asked to
remove your belongings. Then on December 13, 2015 you
allegedly harassed and took unsolicited photos, and
video with your cell phone of an individual who had
previously reported you for misconduct.
VI. STUDENT RIGHTS AND RESPONSIBILITIES:
Discrimination, Harassment, Retaliation
VII. STUDENT DISCIPLINE: 10. Repeated and
deliberate failure to comply with directives of
College Officials, including police officers, in
the performance of their duties.

28

Id.

(Doc. 1-3 at ECF 43).

On that same date, Harris

electronically communicated a letter to plaintiff, which, in
pertinent part, provided as follows:
This letter is in regard to an incidents that took
place on December 11, 2015 in which you are alleged to
have entered into an instructors office and stored your
personal belongings under the desk without permission
then failed to comply with the directive of a College
Official when asked to remove your belongings. Then on
December 13, 2015 you are allegedly harassed and took
unsolicited photos, and video with your cell phone of
an individual who had previously reported you for
misconduct. Because of the serious level of accusation
you are being placed on Temporary Suspension effective
immediately. Your status of temporary suspension
shall remain in place until your conduct hearing is
completed and a formal outcome can be determined.
Potential policy violations include:
VII. STUDENT DISCIPLINE: 7. Behavior that
interrupts or disrupts educational activities
VI. STUDENT RIGHTS AND RESPONSIBILITIES:
Discrimination, Harassment, Retaliation
VII. STUDENT DISCIPLINE: 10. Repeated and
deliberate failure to comply with directives of
College Officials, including police officers, in
the per.formance of their duties
Conditions of this temporary suspension are as
follows:
You are Criminally Trespassed and prohibited from
being on ALL Tarrant County College property including
but not limited to all classrooms, parking garage,
dining/food areas, bookstore, hallways, library, labs
and offices.
You are prohibited from attending all classes,
meetings, and appointments or conducting any other

29

business you may have with the College during the
suspension.
Failure to abide by these conditions may result
in your immediate suspension or expulsion from the
college.
Id.

(Doc. 1-3 at ECF 47-48) (errors in original).

The letter went

on to inform plaintiff that he had the right to have a hearing to
determine if there had been a violation of the Student Conduct
Code, and gave him options of the kind of hearing procedure he
would prefer, id., and he was instructed to contact Harris at the
telephone number provided in the letter to communicate his
hearing format option and concerning the scheduling of the
hearing, id.
The December 17, 2015 letter mentioned above was followed by
another series of communications from plaintiff to officials of
TCCD demanding that they have informal resolution meetings with
plaintiff.

Id.

(Doc. 1-3 at ECF 28-31, ECF 32-35, ECF 39-41)

(Doc. 1-5 at ECF 17-21, ECF 43-46).
On January 8, 2016, Rodriguez electronically sent a letter
to plaintiff informing him of the time, date, and location for a
disciplinary hearing that had been scheduled, that the outcome of
the hearing would determine if he was responsible for violating
the TCCD student Handbook, and that he would have an opportunity
to appeal the outcome of the decision if he deemed it necessary.

30

Id.

(Doc. 1-5 at ECF 22-23).

The letter provided plaintiff an

explanation of the process of appealing the hearing decision, and
invited him to contact Harris if he had further questions.

Id.

On January 20, 2016, the Coordinator of student support sent
a letter electronically to plaintiff providing him the following
information concerning the outcome of his disciplinary hearing:
After careful review of the information provided,
and your statement provided during your Disciplinary
Hearing on January 12, 2016, the following
determination has been made related to the violation(s)
of the Tarrant County College District Handbook for
which you were charged:
VII. STUDENT DISCIPLINE: 7. Behavior that
interrupts or disrupts educational activities
Violation
VI. STUDENT RIGHTS AND RESPONSIBILITIES:
Discrimination, Harassment, Retaliation -Violation -- Violation
VII. STUDENT DISCIPLINE: 10. Repeated and
deliberate failure to comply with directives of
College Officials, including police officers, in
the performance of their duties -- Violation
Based on this determination, you have been issued
the following sanction(s):
You are on Disciplinary Suspension effective
January 12, 201.6 through May 15, 2016. As a result of
an incident of misconduct, a student may be immediately
suspended by the College for a period of time, when
there is evidence that the continuing presence of the
student may be disruptive to the College operations.
Established disciplinary hearing procedures will be
followed to determine the final outcome of the
student's case.

31

With respect to the information listed above, the
following additional sanctions/stipulations apply:
Student is placed on disciplinary suspension for
the Spring 2016 semester with conditional admission for
the summer 2016 term.
Student also has no contact order for GCA Employee
Mr. Aldridge.
You do have the option to appeal this decision.
A
written request to appeal this decision must be filed
by you with the Vice President for Student Development
Services within 10 days after the initial decision was
made.
The final date to submit an appeal will be
January 30, 2016.
The campus President may affirm the
initial action, refer the case back to the initial
hearing agent for further hearing in part or whole,
request further findings and recommendation, or reduce
the discipline imposed upon the student involved. The
campus President's decision is final and ends the
appeals process.
Id.

(Doc. 1-5 at ECF 49-50).
Most of the remaining exhibits that accompanied plaintiff's

complaint pertain to attempts by plaintiff to cause the Tarrant
County District Attorney to institute criminal action against
defendants Whetstone, Denson, and other officials of TCCD because
of their failure to comply with his requests to TCCD for
information.

The initial request made by plaintiff was directed

to Whetstone on March 24, 2016, asking for a copy of the
application of defendant Evans for employment and the
disciplinary file of TCCD pertaining to Evans.
ECF 11-12).

Id.

(Doc. 1-6 at

When plaintiff did not receive a response that he

32

thought satisfactory, he made a complaint to the Texas Attorney
General.

Id.

(Doc. 1-6 at ECF 21-22).

Plaintiff's next move was

to encourage the Tarrant County District Attorney to file
criminal charges, and to prosecute, Whetstone and all other
officials of TCCD who had failed to provide him the information
he requested about Evans.

Id.

(Doc. 1-6 at ECF 7-9).

Plaintiff

persisted in his efforts to cause Whetstone and other TCCD
officials to be criminally prosecuted, by following up with
another letter to the Office of the Tarrant County District
Attorney on May 16, 2016.

Id~

(Doc. 1-6 at ECF 25-26).

Then plaintiff made, on June 14, 2016, another request for
information by a letter directed to Whetstone, this time for
records pertaining to the events that led to TCCD's decision to
ban plaintiff from its campus.

Id.

(Doc. 1-3 at ECF 44-46).

Plaintiff followed-·up with another records request directed to
Whetstone on July 18, 2016, this time requesting records
reflecting communications by plaintiff to Whetstone.

Id.

(Doc.

1-6 at ECF 4-6).

On July 18, 2016, plaintiff sent a letter, with accompanying
items, to the Tarrant County District Attorney in an attempt to
cause defendant Denson to be criminally prosecuted.
1-4 at ECF 5-50 & Doc. 1-5 at ECF 1-16).

33

Id.

(Doc.

As late as August 11, 2016, less than thirty days before the
instant action was filed by plaintiff, he was still encouraging
the Tarrant County District Attorney's office to criminally
prosecute Whetstone and "other responsible individuals as for
violating the Texas Public Information Act."

Id.

(Doc. 1-6 at

ECF 2-3) .
B.

All Factors Reguiring Dismissal Specified in § 1915 (e) (2) (B)
Exist as to the § 1983 Claims Against the Individual
Defendants
The court has concluded that plaintiff brought this action

against the individual defendants frivolously and maliciously,
that plaintiff has failed to state a claim upon which relief may
be granted against any of the individual defendants, and that the
record suggests that each of the individual defendants enjoys
immunity from liability by virtue of the qualified immunity
doctrine.
1.

Frivolousness and Maliciousness

The court has concluded that plaintiff's claims against all
the defendants are clearly baseless and, therefore,

frivolous.

Plaintiff has alleged no facts that would support any claim
against any of the individual defendants.

Not only was the

action brought against the individual defendants frivolously, the
court is satisfied, and finds,

that it was brought maliciously.

34

The attempts by plaintiff to criminally prosecute individual
defendants and the requests by plaintiff for punitive damages
against all individual defendants other than Evans tend to
confirm what is otherwise indicated by the contents of
plaintiff's filings that plaintiff brought this action against
the individual defendants to satisfy his desire for vengeance
against everyone associated with TCCD who played any role in
interfering with plaintiff's plan for, and acts of, disruption at
the TRC Campus.

The record suggests that plaintiff was given,

and took advantage of, an opportunity to present his side of the
story at a duly scheduled hearing as to each of the on-campus
events about which he complains and that this action is but an
abuse of the judicial process by plaintiff in an attempt to prove
to the officials and employees of TCCD that they should not mess
with plaintiff and should allow him to conduct himself on the
college campus as he might choose.

Put simply, a purpose

plaintiff had in bringing this action was to harass and punish
the individual defendants.
2.

Failure to State a Claim

As the court has noted in the discussions of the allegations
against the individual defendants in section IV.A. above, no
facts are alleged against any individual defendant that would
provide a plausible basis for any claim made by plaintiff against
35

that defendant.

There is no allegation of fact against any

individual defendant establishing that the defendant caused a
deprivation of a specific right of plaintiff secured by the
Constitution or the laws of the United States.

Moreover,

plaintiff's allegations are woefully short of the specificity,
particularity, and plausibility required by the Supreme Court
decisions in Twombly, 550 U.S. at 555, and Iqbal, 556 u.s. at
679.

Plaintiff's repeated references to activities of
"Defendants," without specifying or identifying a particular
defendant (such as the allegations in many of the paragraphs
under the heading "CAUSES OF ACTION" in the complaint (Doc. 1 at
ECF 33-37, ~~ 137-41, 144-54, Count III ~~ 3 & 6, Count IV~~ 7 &
8, Count V

~,

3-5, Count VI,~ 3 & 4)), are to be ignored in an

evaluation of whether facts are alleged from which the court
could plausibly conclude that any individual defendant did or
failed to do something that would give plaintiff justification
for suing him/her.
694,

699

See Griggs v. State Farm Lloyds, 181 F.3d

(5'h Cir. 1999).

Nor are plaintiff's conclusory

allegations to be considered.
The exhibits that accompanied the complaint show
affirmatively that whatever due process rights plaintiff had
related to the matters about which he complains were recognized
36

and honored by the individual defendants who were involved in any
of the decision-making about which plaintiff complains.

The

exhibits disclose that the TCCD personnel were careful to see
that plaintiff had notice of complaints against him and had the
opportunity to tell his side of the story.

There is no

suggestion in any of the facts alleged in the complaint that any
of the TCCD personnel who were involved in the taking of any
action about which plaintiff complains were acting arbitrarily or
capriciously.

Nor is there any suggestion in any of the

allegations of plaintiff's complaint or the related exhibits that
plaintiff was treated differently from any other TCCD student who
had engaged in conduct comparable to his.
Plaintiff's approach in his complaint seems to be that every
one of the individual defendants has responsibility for conduct
of other employees or officials of TCCD affecting plaintiff,
perhaps based on some theory of vicarious liability.

Such an

approach fails because a theory of respondeat superior or
vicarious liability is not available in a case such as this.

See

Monell v. New York city Dep't of Soc. Servs., 436 U.S. 558, 691
(1978); see also Williams v. Luna,
1990).

909 F.2d 121, 123

(st"

Cir.

The court adds that even if some kind of vicarious

liability theory could be invoked, plaintiff would be no better
off because he has not pleaded facts that would create liability
37

on the part of any person who conceivably could be the source of
liability sought to be imposed on any other party.
3.

Immunity From Relief

Each of the defendants, as an employee or official of a
governmental unit, is entitled to the qualified immunity defense.
None of plaintiff's allegations suggests that any of the
individual defendants did anything in relation to plaintiff that
an objectively reasonable government employee or official would
understand violated a constitutional right of plaintiff.

The

conclusion cannot be reached from the allegations of plaintiff's
complaint that any of the individual defendants engaged in
conduct in relation to plaintiff that was not objectively
reasonable under the circumstances.

There is no suggestion in

any of the allegations of the complaint that any of the
individual defendants violated any constitutional right of
plaintiff that was clearly established at the time of the
defendant's conduct.
of

§

Therefore, the immunity-from-relief prong

1915(e) (2) (B) (iii) provides yet another reason why

plaintiff's claims against the individual defendants should be
dismissed.

* * * * *
For the reasons given above, all of plaintiff's

§

1983

claims against the individual defendants must be dismissed.
38

v.
Plaintiff's

§

1983 Claims Against TCCD Must Be Dismissed

Plaintiff's claims against TCCD are subject to dismissal for
the same frivolousness, maliciousness, and failure-to-state-aclaim reasons discussed in the immediately preceding section.
The court is satisfied that this action was brought for improper
purposes, and with wrongful motives, against all defendants.
Moreover, the reasons for dismissal previously discussed under
the failure-to-state-a-claim subsection apply as well to TCCD.
Furthermore, a governmental entity, such as TCCD, can be
subjected to relief under

§

1983 only if one of its official

policies caused a person to be deprived of a federally protected
right.

Monell, 436 U.S. at 694.

TCCD cannot be held liable

under a theory of respondeat superior or vicarious liability.
Id.

Instead, liability may be imposed against a government

entity under

§

1983 only "if the governmental body itself

subjects a person to a deprivation of rights or causes a person
to be subjected to such deprivation."
u.s.

51, 60 (2011)

Connick v. Thompson, 563

(quoting Monell, 436 U.S. at 692)

quotation marks omitted) .

To hold TCCD liable under

(internal
§

1983 thus

requires plaintiff to "initially allege that an official policy
or custom was a cause in fact of the deprivation of rights
inflicted." Spiller v. City of Texas City, Police Dep't, 130 F.3d
39

162, 167 (5th Cir. 1997)

(internal quotation marks and citation

omitted). Therefore, liability against TCCD pursuant to

§

1983

requires allegations and proof of a policymaker, an official
policy, and a violation of constitutional rights whose "moving
force" is the policy or custom.

Piotrowski v. City of Houston,

237 F. 3d 567, 578 (5th Cir. 2001).
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 bane in response to a motion for rehearing in
Bennett v. City of Slidell:
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 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)

40

(per curiam).

For the reasons given above, all of plaintiff's § 1983
claims against TCCD must be dismissed.
VI.
The Court is Exercising Its Discretion
to Dismiss Plaintiff's State Law Claims
In dismissing plaintiff's § 1983 claims, the court has given
proper effect to the mandatory "shall dismiss" wording Congress
used in§ 1915(e) (2).

The argument might be made that dismissal

of plaintiff's state law claims also is required if any of the
determinations set forth in § 1915 (e) (2)
claims.

(B)

exist as to those

The court is inclined to think that one or more of those

determinations does exist as to all of the state law claims, but
in recognition of what this court understands the preference of
the Fifth Circuit to be, see Watson v. City of Allen, Tex., 821
F.3d 634, 642 (5th cir. 2016), the court is not dismissing the
state law claims for that reason but, instead, is dismissing them
as an exercise of the court's discretion under§ 1367(c) (3).
VII.

Order
For the reasons stated above,
The court ORDERS that all claims and causes of action
asserted by plaintiff in the above-captioned action under

41

42 U.S.C.

§

1983 be, and are hereby, dismissed pursuant to the

authority of 28 u.s.c.

§

1915(e) (2) (B)'; and

The court further ORDERS that all claims and causes of
action asserted by plaintiff in the above-captioned action based
on the laws of the state of Texas be, and are hereby, dismissed
pursuant to the authority of 28 U.S.C.

§

1367(c) (3) . 5

SIGNED December 23, 2016.

'This dismissal includes all claims made by plaintiff in Counts I, II, III, and IV of his complaint.
'This dismissal includes all claims made by plaintiff in Counts V, VI, and VII of his complaint.

42