MEMORANDUM OPINION AND ORDER

SIDNEY FITZWATER, District Judge

Defendants move under Fed.R.Civ.P. 12(b)(6) to dismiss this action by plaintiff John A. Hoskins, V ("Hoskins"), a terminated public school police officer who alleges claims under the Texas Whistleblower Act ("Whistleblower Act"), Tex. Gov't Code Ann. §§ 554.001-.010 (Vernon 1994 Supp. 2003), and 42 U.S.C. § 1983 (for a First Amendment free speech violation), and for breach of contract. For the reasons that follow, the court dismisses Hoskins' Whistleblower Act claim against the individual defendants, dismisses his § 1983 cause of action against defendant Kaufman Independent School District ("KISD") (with leave to replead), dismisses his § 1983 claim against the individual defendants to the extent they are sued in their official capacity, and dismisses his claim against KISD for punitive damages for breach of contract and under § 1983. The court also requires Hoskins to file a Rule 7(a) reply to address the individual defendants' defense of qualified immunity from the § 1983 claim, but it otherwise denies the motion.

I

According to Hoskins' complaint, KISD hired him as a police officer in 2002 for a four-year term under the auspices of a C.O.P.S. grant made by the United States Department of Justice. KISD assigned Hoskins to work at O.P. Norman Junior High School ("NJHS"). Shortly after he began working there, a minor female student ("first victim") reported that she had been sexually groped and touched by another minor student, John Doe ("Doe"), during school hours and on school property. She stated that Doe had engaged in the same conduct in 2001, he had been allowed to return to school following an internal investigation, and he had not been expelled for his conduct or charged with a criminal offense. The first victim also advised Hoskins that in 2001 KISD had not reported the offense to law enforcement. Hoskins avers that KISD did not, as Texas state law required, contact law enforcement, report the offense to Texas Child Protective Services ("TCPS"), or expel Doe from school.

Hoskins asserts that following receipt of the report, he immediately notified Eddie Crouch ("Crouch"), the principal of NJHS, and contacted TCPS, as required by Texas law and KISD policy. He also arrested Doe, provided the Kaufman County Juvenile Probation Office copies of his preliminary offense report and of the first victim's statement, and transported Doe to a juvenile detention center, during which Doe admitted that he had committed the same offense against the first victim in September 2001.

Doe was released from detention because his prior offenses had not been reported by KISD. Despite his insistence that Texas law and KISD policy required that Doe be expelled, KISD (and Wood) refused to hold an expulsion hearing and instead processed Doe for assignment to an alternative school.

Hoskins notified Nixon about Doe's current and prior conduct toward the first victim and of KISD's failure to report the 2001 offense to law enforcement and TCPS in 2001. Nixon warned Hoskins to be careful where he went with the investigation of KISD's failure in 2001 to report the offense and the action against Doe.

Hoskins later learned that his salary had been decreased, for no apparent reason, from $29,088.00 per annum to $25,578.00, retroactive to his hire date. He was also instructed not to discuss his salary with other officers and informed that he would not receive overtime pay. KISD also provided him an employment form that, once signed, prevented him from disputing his pay and that, if not signed, would have resulted in his immediate termination.

Thereafter, a second minor female ("second victim") reported to Hoskins that Doe had victimized her in 2001 and 2002. KISD officials had not reported this offense to TCPS or law enforcement. Hoskins contacted TCPS and notified a justice of the peace regarding the second victim's complaint. He informed the judge that Wood had refused to expel Doe, as required by law. The judge then asked Hoskins to arrest Doe and requested that KISD hold an expulsion hearing. Hoskins also notified NJHS principal Crouch of Doe's offense.

Hoskins arrested Doe and continued his investigation of the offenses against the first and second victims. He also obtained Doe's records from the alternative school to which he had been assigned. Hoskins learned that the KISD administration had directed in 2001 that Doe's earlier offenses not be reported to law enforcement. He informed his supervisor, Nixon, of this failure and provided her a memorandum and evidence that the offenses had not been reported. Another KISD employee confirmed that these offenses had gone unreported. Nixon advised Hoskins that the parents would resolve the problem without the school's assistance.

Nixon informed Hoskins the next day that, due to these events, Johnson had informed her that Hoskins would be reassigned to the alternative learning center and replaced at NJHS. Crouch intervened, however, and the planned reassignment did not take place. He also contacted KISD's outside legal counsel to obtain advice concerning KISD's civil liability for failing to expel Doe. A hearing was held shortly thereafter, and Doe was expelled.

A few days before the hearing, Hoskins delivered his report on the offenses against the first and second victims to law enforcement authorities and Nixon. Following the hearing, he informed Wood that Doe had committed the same offenses against the same victims in 2001 and that KISD had not reported Doe's conduct to law enforcement.

Two days after he delivered his report, Nixon berated Hoskins during a meeting in her office. She stated that he needed to "back off" his investigation of the offenses and of KISD's failure to report the abuse of 2001, that his work was "creating problems" for him, and that he was now under her and Johnson's microscope. A week after the first meeting, Nixon continued to retaliate against him by berating him during a meeting in which she ordered him to back off work on the offenses and the fact that KISD had failed to report the abuse in 2001 and to discontinue pursuing the cases further.

Two days after the second meeting, Nixon ordered Hoskins to turn over all documents, statements, and copies that he possessed regarding his knowledge about KISD violations of the law and again ordered him to stop work on the offenses and KISD's failure to report the 2001 offenses. Later that day, she advised him that Johnson had told her that he had received complaints about Hoskins and that he was about to be reassigned to another campus. Hoskins asked Crouch about the reassignment and he, in turn, called Johnson, who denied knowing anything about potential reassignments or complaints. Crouch informed Hoskins that he was doing a good job and did not want him reassigned. Johnson agreed not to transfer him.

Later that day, Nixon again told Hoskins to back off and stop taking action on the cases because these matters did not concern him. That night, Nixon gave Hoskins permission to leave early from working security at a football game due to illness. Despite granting such permission, she later criticized him for doing so.

Several days later, another KISD officer warned Hoskins that he was creating career problems for himself. It was apparent to Hoskins that this officer and Nixon were communicating and that the warning was a thinly-veiled threat to his job for working on the investigations and KISD's failure to report the 2001 offense.

About one week later, Johnson contacted Crouch to inquire about Hoskins' job performance, and he received a favorable report. Johnson advised Crouch that he was meeting with Hoskins the following day. Nixon directed Hoskins to meet her at Johnson's office. Johnson terminated his employment for the stated reason that it was "in the best interest of the district." When Hoskins requested an explanation for his termination, he received none.

Immediately following the meeting, Nixon told Hoskins his knowledge of events within KISD created a liability for the district that it could not afford. Hoskins then went home to change into civilian clothes and retrieve KISD property. When he returned, Nixon demanded that he submit a letter of resignation, which he did under duress. Crouch and the assistant principal of NJHS later provided glowing letters of recommendation for Hoskins, but Nixon, on behalf of KISD, contested his claim for unemployment benefits.

Hoskins sues all defendants to recover under the Whistleblower Act, sues KISD for breach of contract, and sues all defendants under § 1983, alleging retaliation and harassment in response to his protected speech, in violation of the First Amendment. Defendants move to dismiss under Rule 12(b)(6) for failure to state a claim on which relief can be granted.

II

"`[T]he motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted.'" Kaiser Aluminum Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (quoting Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1357, at 598 (1969)). "[D]ismissal of a claim on the basis of barebones pleadings is a `precarious disposition with a high mortality rate.'" Id. (quoting Barber v. Motor Vessel "Blue Cat," 372 F.2d 626, 627 (5th Cir. 1967)). "The court may dismiss a claim when it is clear that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam) (Rule 12(c) decision) (citing Fee v. Herndon, 900 F.2d 804, 807 (5th Cir. 1990)). "In analyzing the complaint, [the court] will accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." Id. (citing Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996)). "The issue is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claim." Id. (citing Doe, 81 F.3d at 1401). "Thus, the court should not dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint." Id. (citing Vander Zee v. Reno, 73 F.3d 1365, 1368 (5th Cir. 1996)).

III

Defendants maintain that Hoskins cannot recover under the Whistleblower Act against the individual defendants because there is no private right of action against them. They also argue that KISD is not liable under the Act because Hoskins does not fall within the definition of "whistleblower."

A

All defendants except KISD are entitled to dismissal of Hoskins' Whistleblower Act claim. As a matter of law, they cannot be liable under the Act in a suit brought by a private party. The Whistleblower Act "does not create a cause of action against employees of a public agency. Instead, the statute creates a cause of action against state local or governmental agencies." Rodriguez v. Laredo Indep. Sch. Dist., 82 F. Supp.2d 679, 688 (S.D. Tex. 2000), reconsideration denied, 143 F. Supp.2d 727 (S.D. Tex. 2001); accord Thompson v. City of Arlington, Tex., 838 F. Supp. 1137, 1153 (N.D. Tex. 1993) (McBryde, J.); Tex. Dep't of Human Servs. v. Green, 855 S.W.2d 136, 142 (Tex.App. 1993, writ denied).

Hoskins maintains that there is no clear, binding precedent on the issue of individual liability and that the only Texas appellate court that has addressed the issue in a case that is on all fours with the present one has held that individuals can be held liable. That opinion, Dallas Independent School District v. Lee, 1999 WL 682052, at *2-3 (Tex.App. Sept. 2, 1999) (not designated for publication), is unpublished, however, and therefore lacks precedential value. See Tex. R. App. P. 47.7 ("Opinions not designated for publication . . . have no precedential value[.]") Federal cases interpreting the Whistleblower Act, including a published decision by a member of this court, have reached a contrary conclusion.

The court therefore dismisses Hoskins' Whistleblower Act claim against all defendants except KISD.

B

KISD contends that Hoskins cannot recover against it under the Whistleblower Act because he does not qualify as a "whistleblower." It posits that, according to his complaint, he only reported wrongdoing by Doe — a student — not wrongdoing by KISD. KISD maintains that the Act protects the employment of a public employee who "in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority." Whistleblower Act § 554.002(a) (Vernon Supp. 2003).

"In order to prevail under the Texas Whistleblower Act, a plaintiff must demonstrate: 1) he is a public employee; 2) he acted in good faith in making a report; 3) the report involved a violation of law by an agency or employee; 4) the report was made to an appropriate law enforcement authority; and 5) he suffered retaliation." Tharling v. City of Port Lavaca, 329 F.3d 422, 428 (5th Cir. 2003). At the Rule 12(b)(6) stage, this court must apply the highly deferential standard of Conley v. Gibson, 355 U.S. 41, 45-46 (1957), and view the allegations of Hoskins' complaint in the light most favorable to him, see, e.g., Royal Bank of Canada v. FDIC, 733 F. Supp. 1091, 1094 (N.D. Tex. 1990) (Fitzwater, J.). The court is unable to say that Hoskins can prove no set of facts, consistent with the allegations of his complaint, that would entitle him to relief. In particular, Hoskins alleges that KISD failed to report instances of child sexual abuse as required under law. See, e.g., Compl. ¶¶ 20, 25, 27.

Therefore, the court denies the motion to dismiss to the extent it seeks dismissal of the Whistleblower Act claim against KISD.

IV

KISD moves to dismiss Hoskins' breach of contract claim on the ground that KISD did not have a contract with him since he was an at-will employee and the complaint nowhere alleges that he had a contract. It argues that the assertion that he was "offered a four year position," even if true, does not state a claim because it would be barred by the statute of frauds and not binding as a matter of law. KISD also posits that Hoskins has failed to plead that the KISD Board of Trustees approved a contract and that, as a new employee, he was required to hold a probationary contract of one-year duration. KISD then assumes arguendo that Hoskins did have a binding contract, and it moves for dismissal on the ground that he failed to exhaust his administrative remedies.

Assuming KISD's legal arguments are correct, they must be presented by motion for summary judgment. Applying the Conley standard, and viewing the allegations of the complaint favorably to Hoskins, the court cannot conclude as a matter of law from the complaint that Hoskins did not enter into a written agreement for employment for four years, that the KISD Board of Trustees did not approve the contract, or that he was a probationary employee. Moreover, Hoskins alleges that he exhausted his administrative remedies, see Compl. ¶¶ 10-16, and, although he relies on the Texas Government Code rather than the Texas Education Code, KISD has not established that, as a police officer rather than as a teacher, Hoskins was required to exhaust administrative remedies under the procedures — if different — of the Texas Education Code.

Therefore, the motion to dismiss Hoskins' breach of contract claim against KISD is denied.

V

Defendants move on several grounds to dismiss Hoskins' § 1983 First Amendment cause of action. They contend he did not speak on a matter of public concern and spoke strictly as an employee, not as a member of the public; KISD cannot be held liable because Hoskins cannot show that he suffered a constitutional free speech injury caused by an official KISD policy or custom; and the individual defendants are entitled to qualified immunity.

A

To be protected, a government employee's speech must be on a matter of public concern. Waters v. Churchill, 511 U.S. 661 (1994). The determination whether speech concerns a matter of public concern requires a case-by-case analysis into the content, context, and form of the statement. Stewart v. Parish of Jefferson, 951 F.2d 681, 683 (5th Cir. 1992). "When a public employee speaks as an employee rather than as a citizen on matters that address his personal employment conditions, First Amendment protection is not invoked absent unusual circumstances." Id.

Hoskins asserts, inter alia, that he exercised his free speech rights when he "reported the illegal activity of KISD in failing to report the criminal offense of indecency with a child by sexual contact, as well as other criminal matters occurring at KISD." See Compl. ¶ 56. Applying the deferential Rule 12(b) (6) standard, the court holds that Hoskins has asserted that he spoke on a matter of public concern. See Wilson v. UT Health Ctr., 973 F.2d 1263, 1269 (5th Cir. 1992) (holding that reports of sexual harassment perpetrated on plaintiff and other women were of great public concern); Sharp v. City of Houston, 960 F. Supp. 1164, 1178 (S.D. Tex. 1997) (stating that reporting official misconduct and sexual harassment on part of public employees is manifestly a matter of public concern). Nor can the court say as a matter of law from the allegations of the complaint alone that Hoskins was speaking strictly as an employee.

B

KISD maintains that it cannot be held liable because Hoskins cannot show that he suffered a constitutional free speech injury caused by an official policy or custom.

A governmental entity such as KISD can be sued and subjected to monetary damages and injunctive relief under § 1983 only if its official policy or custom caused a person to be deprived of a federally protected right. See Bd. of County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403 (1997); Monell v. Dep't of Social Servs., 436 U.S. 658, 694 (1978). A government entity cannot be liable for civil rights violations under a theory of respondeat superior or vicarious liability. See Monell, 436 U.S. at 694; Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979)

An official policy can be found in two forms: "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."

"Liability under section 1983 attaches where a deprivation of a right protected by the Constitution or by federal law is caused by an official policy." Id. at *3. A plaintiff must identify the purported policy said to constitute a violation of his rights, show that the policy is attributable to the governmental entity itself, and establish that he incurred an injury because of the application of that specific policy. See Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984) (en banc). He must demonstrate that the government entity, through its deliberate conduct, was the moving force behind the injury or harm suffered, and he must establish a direct causal link between the governmental entity's action and the deprivation of a federally protected right. Brown, 520 U.S. at 403-04.

Liability must rest on official policy, meaning the governmental entity's policy, not the policy of an individual official. Bennett, 728 F.2d at 769. The official complained of must possess

final authority to establish [school district] policy with respect to the action ordered. . . . The official must also be responsible for establishing final government policy respecting such activity before the [school district] can be held liable. . . . [W]hether an official had final policymaking authority is a question of state law.

Under Texas law, the final policymaking authority in an independent school district rests with the district's trustees. See Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1245 (5th Cir. 1993). An employee, agency, or board of a governmental entity is not a policymaker unless the governmental entity, through its lawmakers, has delegated exclusive policymaking authority to that employee, agency, or board and cannot review the action or decision of the employee, agency, or board. See City of St. Louis v. Praprotnik, 485 U.S. 112, 130 (1988); Worsham v. City of Pasadena, 881 F.2d 1336, 1340-41 (5th Cir. 1989). In Jett the Fifth Circuit held that, under the Texas Education Code, the School Board, rather than the Superintendent, is the policymaking authority for the school district absent specific contrary arrangements. See Jett, 7 F.3d at 1245-46.

Regarding liability based on custom, there must be "[a] persistent, widespread practice of [district] 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 [district] policy." Burge, ___ F.3d at ___, 2003 WL 21464835, at *4. "[A] plaintiff must demonstrate `[a]ctual or constructive knowledge of such custom . . . attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority.'" Id. (quoting Bennett, 728 F.2d at 862).

Taking the allegations of Hoskins' complaint as true, he has failed to allege that his First Amendment free speech rights were violated by a KISD policy or custom. The allegations of his § 1983 claim say nothing about this requirement for district liability. See Compl. ¶¶ 54-58. Although the claim expressly incorporates ¶¶ 17-45 of his complaint, see id. at ¶ 54, these paragraphs likewise fail to assert facts that, assumed to be true, identify the purported policy, show that the policy is attributable to KISD, and establish that Hoskins incurred an injury because of the application of that specific policy. Accordingly, Hoskins' § 1983 claim is dismissed against KISD.

Although the court grants the motion to dismiss, it will allow Hoskins leave to replead so that, if he has a good faith factual basis to do so, he can assert the policy or custom requirement necessary to establish that KISD is liable under § 1983.

In view of the consequences of dismissal on the complaint alone, and the pull to decide cases on the merits rather than on the sufficiency of pleadings, district courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwilling or unable to amend in a manner that will avoid dismissal.

C

The individual defendants move to dismiss the § 1983 cause of action based on qualified immunity. Hoskins does not explicitly address this argument in his response. See P. Br. at 10-15. Nevertheless, the court declines at the Rule 12(b)(6) stage to dismiss his complaint on this basis without first requiring a Rule 7(a) reply and then affording defendants a chance to move to dismiss or for summary judgment once they have reviewed the reply.

Hoskins is not required to anticipate the defense of qualified immunity and provide greater specificity in his complaint. Todd v. Hawk, 72 F.3d 443, 446 (5th Cir. 1995) (per curiam) (citing Schultea v. Wood, 47 F.3d 1427, 1433-34 (5th Cir. 1995) (en banc)). Instead, a two-step procedure applies. The plaintiff must initially "file a short and plain statement of his claim pursuant to Rule 8(a)(2)." Id. This pleading is then "followed by a more particularized reply pursuant to Rule 7[.]" Id. Where, as here, the public official "pleads the affirmative defense of qualified immunity in his answer, the district court may, on the official's motion or on its own, require the plaintiff to reply to that defense in detail." Schultea, 47 F.3d at 1433. "[T]he reply must be tailored to the assertion of qualified immunity and fairly engage its allegations." Id. "Heightened pleading requires allegations of fact focusing specifically on the conduct of the individual who caused the plaintiff['s] injury." Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999).

Accordingly, Hoskins must file a Rule 7(a) reply within 30 days of this date this memorandum opinion and order is filed.

VI

KISD contends that all claims against it for punitive damages must be dismissed because it is entitled to sovereign immunity. See Ds. Mot. at 2, ¶ 10 ("All claims against KISD for punitive damages must be dismissed because KISD possesses sovereign immunity from same."). Hoskins has not responded to this argument.

A

The court rejects KISD's contention that sovereign immunity protects it from immunity for punitive damages to the extent this assertion is directed at the Whistleblower Act. In fact, given the well-settled law to the contrary, it is difficult to discern why KISD advances this contention.

More than ten years ago the Fifth Circuit addressed this issue in Knowlton v. Greenwood Independent School District, 957 F.2d 1172, 1182 (5th Cir. 1992):

We reject, however, the contention that punitive damages cannot be awarded under the Whistle Blower Act. Specifically, it contends that, as a quasi-municipal corporation, it is not liable for such damages under Texas law. The plain language of the Act torpedoes this claim — [a] public employee who sues under this Act may recover . . . exemplary damages. It provides public employees a cause of action against, inter alia, a local governmental body, which it states includes a public school district.

Accordingly, the court denies KISD's motion to the extent it seeks dismissal of Hoskins' punitive damages claim under the Whistleblower Act.

B

Although the court does not agree with KISD's reliance on "sovereign immunity" to defeat the balance of Hoskins' claim for punitive damages, it does agree that KISD cannot be held liable for such damages for breach of contract or under § 1983.

Texas follows the rule that exemplary damages cannot be recovered for a simple breach of contract, even though the breach is malicious, intentional, or capricious. See Boelens v. Redman Homes, Inc., 748 F.2d 1058, 1069-70 (5th Cir. 1984) (exemplary damages cannot be awarded under Texas law for breach of contract); Amoco Prod. Co. v. Alexander, 622 S.W.2d 563, 571 (Tex. 1981). The law awards punitive damages for the accompanying tort, not for the breach of contract itself and, for this reason, an independent tort must be separately pleaded and proved. Amoco, 622 S.W.2d at 571. Texas law does not allow punitive damages for a breach of contract per se. Boelens, 748 F.2d at 1070-71. Hoskins is not entitled to recover punitive damages against KISD under his breach of contract claim.

Moreover, it is well settled that punitive damages are not available against KISD under § 1983. The Supreme Court has concluded "that considerations of history and policy do not support exposing a municipality to punitive damages for the bad faith actions of its officials" and held that "a municipality is immune from punitive damages under 42 U.S.C. § 1983." City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). This principal applies to a school district as well. See, e.g., Schultzen v. Woodbury Cent. Cmty. Sch. Dist., 187 F. Supp.2d 1099, 1104 (N.D. Iowa 2002) ("The court agrees with the parties that an award of punitive damages is not available against the school district under . . . section 1983[.]").

* * *

The court grants in part and denies in part defendants' March 17, 2003 motion to dismiss. Hoskins is granted leave to file an amended complaint no later than 30 days from the date this memorandum opinion and order is filed. Regardless whether he files an amended complaint, he must file a Rule 7(a) reply no later than 30 days after this memorandum opinion and order is filed.

SO ORDERED.