Ortiz et al v. Kingsville Independent School District

Filing 20

ORDER OF DISMISSAL granting 16 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ALFREDO ORTIZ, et al,

§
§
Plaintiffs,
§
VS.
§ CIVIL ACTION NO. 2:15-CV-146
§
KINGSVILLE INDEPENDENT SCHOOL §
DISTRICT,
§
§
Defendant.
§
ORDER DISMISSING ACTION
Plaintiffs, Alfredo Ortiz, Noemi Ortiz, and Adrian Lucas Ortiz, filed this action
against Defendant, Kingsville Independent School District (KISD), alleging violations of
their free speech, due process, and equal protection rights related to the processing of
grievances arising from discriminatory treatment of their family. Pending before the
Court is KISD’s Second Rule 12(b)(6) Motion to Dismiss (D.E. 16), together with
Plaintiffs’ Response (D.E. 17) and KISD’s Reply (D.E. 18). For the reasons set out

below, the Court GRANTS the motion (D.E. 16) and DISMISSES this action.
STANDARD OF REVIEW
The test of pleadings under Rule 12(b)(6) is devised to balance a party’s right to
redress against the interests of all parties and the court in minimizing expenditure of time,
money, and resources devoted to meritless claims. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 558 (2007). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Furthermore,
“Pleadings must be construed so as to do justice.” Rule 8(e). The requirement that the
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pleader show that he is entitled to relief requires “more than labels and conclusions[;] a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S.
at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Factual allegations are required, sufficient to raise the entitlement to relief above
the level of mere speculation. Twombly, 550 U.S. at 555. Those factual allegations must
then be taken as true, even if doubtful. Id. In other words, the pleader must make
allegations that take the claim from conclusory to factual and beyond possible to
plausible.

Id., 550 U.S. at 557.

The Twombly court stated, “[W]e do not require

heightened fact pleading of specifics, but only enough facts to state a claim to relief that
is plausible on its face.” 550 U.S. at 570.
The Supreme Court, elaborating on Twombly, stated, “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. In dismissing the claim in Iqbal, the Court stated, “It is
the conclusory nature of respondent's allegations, rather than their extravagantly fanciful
nature, that disentitles them to the presumption of truth.” 556 U.S. at 681.
FACTS
Taking Plaintiffs’ allegations in their second amended complaint (D.E. 15) as true,
the following serves as the basis for the constitutional allegations against KISD. While a
junior at H.M. King High School (a KISD campus), Adrian Ortiz performed well
academically and was highly regarded. In connection with his educational endeavors, he
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competed against Kaylie Windham, the daughter of KISD School Board President,
Melissa Windham. The Ortiz family is Latino and the Windham family is Anglo.
On or about November 28, 2012, at a Parent/Student meeting, Adrian Ortiz was
told that Melissa Windham had said that if Adrian Ortiz were selected to represent KISD
at a certain leadership conference, her daughter Kaylie Windham probably would not
attend. It is not clear whether Adrian Ortiz then withdrew from attending the leadership
conference or was removed from the roster, but his spot was later filled by an Anglo male
student without any explanation. Plaintiffs protested Melissa Windham’s comment and
challenged the decision to replace Adrian Ortiz in the leadership conference. That protest
was made to his high school principal John Jenkins (Jenkins) and KISD’s superintendent
Edward Blaha (Blaha). After that challenge and after Plaintiffs sought legal advice,
Adrian Ortiz was restored to his position and was permitted to attend the leadership
conference.
Thereafter, Jenkins began a new pattern of activity, ending his open door policy
with respect to Adrian Ortiz and generally avoiding him except when, now routinely,
monitoring Adrian Ortiz during his English class. On December 5, 2012, Plaintiffs
registered an informal complaint with Blaha about Melissa Windham’s comments. At
their ensuing conference, Plaintiffs asserted their belief that Windham was trying to
discriminate against Adrian Ortiz in particular, as well as all Hispanic students, based on
their Hispanic national origin.

The conference did not result in any action.

Consequently, Plaintiffs began filing grievances (for a total of five) under the KISD
complaint procedure.
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At about the same time, Plaintiffs complained that Adrian Ortiz’s grade in one
class had been tampered with in order to allow a failing Anglo student to participate in a
livestock show. Plaintiffs further sought security to protect Adrian Ortiz when Melissa
Windham visited the King High School campus. Yet on February 20, 2013, it was
Alfredo Ortiz who was forced to leave the campus when he went to pick up transcripts
for his sons.
On February 14, 2013, Plaintiffs filed their First Complaint challenging Melissa
Windham’s compliance with KISD’s school board ethics when speaking in public about
students in a manner that discriminated against Hispanic students. They requested a full
investigation of the matter, including obtaining a written statement from Kaylie Windham
about her mother’s comments and the leadership conference issue.
On February 28, 2013, KISD gave Plaintiffs’ first grievance a Level II Hearing
with Carol G. Perez, Ed.D., Assistant Superintendent for Curriculum and Instruction for
KISD. Plaintiffs requested an apology from Melissa Windham, the institution of an
affirmation and pledge stating that discrimination would not be tolerated, and a public
statement that the school board disapproved of Windham’s behavior. Plaintiffs’ concerns
were not resolved. On March 8, 2013, Plaintiffs received written notice that their Level
II grievance was denied, so they filed a Level III Appeal on March 27, 2013.
On March 30, 2013, Plaintiffs filed their Second Complaint alleging systematic
discrimination and the cover-up of discriminatory behavior, including failure to fully
investigate complaints of discrimination in reference to the treatment of their first
grievance. Four days later, on April 3, 2013, Plaintiffs filed their Third Complaint
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protesting the hearing and outcome of the first grievance and repeating the complaints in
the second grievance. Each grievance alleged discrimination on a broader scale within
KISD.
On April 11, 2013, KISD issued a Level III Hearing Notice contrary to the
grievance policy in that it eliminated the Level I conference and Level II appeal phases
regarding the second and third complaints and consolidated the final appeal procedure for
the first, second, and third grievances. On April 24, 2013, KISD conducted the Level III
Hearing on First, Second, and Third Grievances, without differentiating between the
first three grievances and without separate investigations and fact-findings. KISD denied
any relief to Plaintiffs.
The consolidated procedure used for the first three grievances prompted Plaintiffs
to file their Fourth Complaint on April 26, 2013, challenging the procedural defects and
the denial of the investigation, fact-finding, and decision-making in the intermediate
stage of the grievance process. After a Level I Conference, KISD denied the fourth
grievance on May 30, 2013, and Plaintiffs filed their Level II Appeal. The Level II
Hearing was conducted on July 16, 2013, after which KISD issued its August 1, 2013
decision denying the grievance. Plaintiffs’ Level III Appeal was heard September 2,
2013, after which relief was denied.
Plaintiffs filed their Fifth Complaint on May 28, 2014, complaining of a teacher’s
tampering with, and manipulation of, one of Plaintiff Adrian Ortiz’s grades in a manner
unlike her treatment of the grades of Anglo students. They alleged that this improper
grading scheme reduced his grade point average and class standing and they demanded a
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new report card and new transcript correcting the error. After a Level I Conference, the
grievance was denied on June 23, 2014. The Level II Appeal and Hearing resulted in
an August 13, 2014 denial. The Level III Appeal was heard on October 15, 2014,
apparently resulting in a denial. This lawsuit was filed on March 26, 2015.
DISCUSSION
Plaintiffs bring this action in four counts1 pursuant to the Civil Rights Act, 42
U.S.C. § 1983. To state a claim under § 1983, a plaintiff must (1) allege a violation of
rights secured by the Constitution or laws of the United States, and (2) demonstrate that
the alleged deprivation was committed by a person acting under color of state law. West
v. Atkins, 487 U.S. 42, 48 (1988). Plaintiffs allege in their response that the constitutional
issues are: (a) Fourteenth Amendment due process rights; (b) First Amendment right to
freedom of speech; and (c) Fourteenth Amendment equal protection guarantees.
While KISD challenges Plaintiffs’ ability to prove that any of these constitutional
rights have been violated, it also challenges whether Plaintiffs have a claim against KISD
as a person acting under color of state law—the second prong of the § 1983 test. Section
1983 liability does not attach to local government units2 by virtue of the doctrine of
respondeat superior. Monell v. Dept. of Social Services, 436 U.S. 658, 691 (1978);
1

The counts state: (1) the deprivation of property rights by decisions made through non-uniform application of
KISD’s grievance policies; (2) the violation of Plaintiffs’ First Amendment rights through KISD’s non-uniform
application of its grievance policy; (3) the failure to provide an opportunity to challenge the process by which
grievances are considered; and (4) KISD’s failure to enforce the grievance procedures as published, which causes
some grieved individuals to lose their remedies in violation of the First Amendment. D.E. 15, pp. 12-13. These
broad complaints are encapsulated somewhat in Plaintiffs’ response as alleging (1) KISD’s interaction with
Plaintiffs was discriminatory on the basis of national origin, and (2) KISD’s failure to follow all of the steps of the
grievance procedure for each grievance Plaintiffs filed was calculated to defeat Plaintiffs’ invocation of the
grievance process. D.E. 17, p. 2.
2

Independent school districts are local government units under Monell. Leffall v. Dallas Indep. School Dist., 28
F.3d 521, 525 (5th Cir. 1994).

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Rivera v. Houston Indep. School Dist., 349 F.3d 244, 247 (5th Cir. 2003) (equating a
school district’s liability with that of a municipality).
Instead, to hold a school district liable under § 1983, Plaintiffs must be able to
show: (1) an official policymaker (2) adopted an official policy (3) that was the “moving
force” behind the violation of constitutional rights. Piotrowski v. City of Houston, 237
F.3d 567, 578 (5th Cir. 2001); Leffall v. Dallas Indep. School Dist., 28 F.3d 521, 525 (5th
Cir. 1994). The official policymaker for a school district is its Board of Trustees. Tex.
Educ. Code § 11.151; Jett v. Dallas Indep. School Dist., 7 F.3d 1241, 1244-45 (5th Cir.
1993) (noting that “policymaker” is not equivalent to “decisionmaker” and that a single
decision by a decisionmaker such as a superintendent does not make a Board policy).
Plaintiffs have not alleged any wrongdoing by the Board of Trustees.
Moreover, the only KISD policy identified in this case is the grievance policy that
provides for the procedural steps that Plaintiffs would like to see enforced—the policy is
favorable to them. They have not alleged that there is any identifiable policy by which
KISD allowed, encouraged, or turned a blind eye to known violations of the stated
grievance policy or its procedures. Plaintiffs have not alleged any pattern of eliminating
steps in the grievance process other than the single instance in which their second and
third grievances were rolled into the first grievance and advanced to the Level III Appeal
Hearing. Their first, fourth, and fifth grievances each proceeded through every step of
the grievance process.
While Plaintiffs may complain of widespread discrimination, stifling of free
speech, or denial of due process within KISD, these complaints are without sufficient
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factual allegations to support a conclusion that the claims are plausible against KISD
under Twombly and Iqbal when there is no allegation of a policy decision that interfered
with Plaintiffs’ rights. Plaintiffs have not sued any individuals who actively participated
in the way their grievances were ushered through the system. They have only sued
KISD. And they have done so without factual allegations that are necessary to trigger
liability against KISD for its own conduct. For that reason, dismissal for failure to state a
claim is appropriate.
CONCLUSION
For the reasons set out above, the Court GRANTS the motion to dismiss (D.E. 16)
because Plaintiffs have not alleged sufficient facts related to a policy choice on which a §
1983 claim can be brought against the school district. The Court does not reach KISD’s
grounds for dismissal that address the particular constitutional violations alleged. This
action is DISMISSED.

ORDERED this 15th day of September, 2015.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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