Opinion
Civil Action No. SA-04-CA-110-XR.
November 15, 2004
ORDER
On this date, the Court considered Defendants' Second 12(b)(6) Motion to Dismiss for Failure to State a Claim (docket no. 27), Defendant Ullevig's Fed.R.Civ.P. 12(b)(6) Second Motion to Dismiss (docket no. 28), and Plaintiffs' responses to each. After careful consideration, the Court will grant in part and deny in part the School District Defendants' Motion (docket no. 27) and will deny Defendant Ullevig's motion (docket no. 28).
I. Facts and Procedural Background
Eric Sanchez was a high-school student at Floresville High School in the Floresville Independent School District (FISD). On January 5, 2004, Eric and his parents, Mark A. Sanchez and Joellen R. Sanchez, filed suit in state court against FISD, numerous employees of the district and school board members in their official and individual capacities, and Brenda Ullevig. The School District and school board and their officials and employees previously filed a motion to dismiss for failure to state a claim under Rule 12(b)(6). Brenda Ullevig also filed a motion to dismiss for failure to state a claim. After considering the motions, the Court ordered Plaintiffs to file a Second Amended Complaint and permitted Defendants to file additional motions to dismiss. See Order of May 10, 2004. Plaintiffs have complied, and Defendants have filed their Second Motions to Dismiss under Rule 12(b)(6).
In its prior Order, the Court also dismissed Plaintiffs' state tort law claims against the Board, the District, and their employees, dismissed Plaintiffs' claim that the Defendants violated their rights under FERPA, and dismissed Plaintiffs' claims for monetary damages for alleged violations of the Texas Constitution's equal protection and due process protections.
II. Analysis
"A Rule 12(b)(6) motion should be granted only if it appears beyond a doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief." ABC Arbitrage Plaintiffs Group v. Tchuruk, 291 F.3d 336, 348 (5th Cir. 2002). In considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court must accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff. McCartney v. First City Bank, 970 F.2d 45, 47 (5th Cir. 1992).A. School District Defendants' Motion to Dismiss
Plaintiffs have sued FISD and seventeen individuals in both their individual and official capacities as employees of FISD or the School Board. Actions against employees in their official capacities are treated as actions against the governmental entity itself. Kentucky v. Graham, 473 U.S. 159, 166 (1985).
1. FISD Official-Capacity Defendants
"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." Piotrowski v. City of Houston, 51 F.3d 512, 515 (5th Cir. 1995) (citation and internal quotations omitted). A local government entity, such as a school district, may not be held liable under a theory of respondeat superior, but it may be held liable under § 1983 for constitutional violations committed pursuant to a governmental policy or custom. Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003); see also Monell v. Dept. of Soc. Servs. of New York, 436 U.S. 658 (1978). Local government entity liability under 42 U.S.C. § 1983 requires proof of: 1) a policymaker; 2) an official policy; and 3) a violation of constitutional rights whose "moving force" is the policy or custom. Rivera, 349 F.3d at 247. Therefore, to sustain liability against the school district under § 1983, the Plaintiffs must point to more than the actions of an employee, they must identify a policymaker with final policymaking authority and a policy that is the "moving force" behind the alleged constitutional violation. Id. "[W]hether a particular official has final policymaking authority is a question of state law." Id. (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (internal quotations omitted)). Under Texas law, final policymaking authority in an independent school district rests with the district's board of trustees. Id. Official policy includes a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the district or by an official to whom the district has delegated policy-making authority, or 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. Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304 (5th Cir. 1995). Actual or constructive knowledge of such custom must be attributable to the governing body of the district or to an official to whom that body had delegated policy-making authority. Id.
Defendants contend that Plaintiffs have failed to state a claim upon which relief can be granted against FISD under § 1983 because Plaintiffs have not set forth or identified a specific custom or policy adopted by an FISD policymaker that caused or was the moving force behind any alleged constitutional violation and because Plaintiffs have alleged that Defendants failed to follow school policy.
Plaintiffs' Second Amended Complaint alleges that the School District "was grossly negligent and/or negligent, and/or acted willfully with respect to failing to follow School Policy, affording student and parents due process of law as well as equal protection under the law, and violated the civil rights of Eric Anthony Sanchez and his parents under 42 U.S.C. § 1983." Plaintiffs further allege that FISD was the "`moving force' (the school policies as formulated and implemented) in creating said policies or allowing application of policies that resulted in the imposition of different punishments and penalties for alleged infractions by Eric Anthony Sanchez as opposed to other students similarly situated as set forth in paragraph 4(p) herein, acting within the special relationship established through the school and its personnel or, in the alternative, through deliberate indifference, in not only failing to correct the discrimination, but participating in the discriminatory actions. The Floresville Independent School District was part of the events in allowing application of policy, as well as part of the `investigation' leading to the discriminatory actions against Eric Sanchez, had meetings, made statements and participated in the discriminatory actions to be taken against Eric Sanchez. The Plaintiffs allege that Eric A. Sanchez's civil rights under State and Federal law have been violated by the Floresville School Board, the Floresville Independent School District and its employees, in that Eric A. Sanchez has been treated differently, with discrimination, when compared to other students and student athletes similarly situated when school rules, regulations, and proposed punishments have been proposed or implemented with students similarly situated as set forth herein and which will be further developed through the discovery process. These incidents violated Eric's due process, equal protection and privacy rights under the Constitution, in that a person is innocent until proven guilty, is entitled to a fair unbiased hearing, is entitled to be treated in the same manner as other students similarly situated, and has a right to privacy."
Further, the Second Amended Complaint states the following with regard to the school board members: "Plaintiffs allege that [school board member] was grossly negligent and/or negligent, and/or acted willfully with respect to failing to follow School Policy, affording student and parents due process of law as well as equal protection under the law, and violated the civil rights of Eric Anthony Sanchez and his parents under 42 U.S.C. § 1983. . . . Plaintiffs allege [school board member] was part of the `moving force' (the school policies as implemented) in creating said policies or allowing application of policies that resulted in the imposition of different punishments and penalties for alleged infractions by Eric Anthony Sanchez as opposed to other students similarly situated as set forth in paragraph 4(p) herein, acting within the special relationship established through the school and its personnel, or in the alternative, through deliberate indifference, in not only failing to correct the discrimination, but participating in the discriminatory actions. [School board member] was part of the events as well as part of the `investigation' leading to the discriminatory actions against Eric Sanchez, had meetings, made statements and participated in the discriminatory actions to be taken against Eric Sanchez."
Though inartfully drafted, Plaintiffs' Second Amended Complaint states a claim against FISD. Though the Complaint alleges that FISD and the board members failed to follow school policy, it also alleges that FISD and the school board members were "part of the `moving force' (the school policies as implemented) in creating said policies or allowing application of policies that resulted in the imposition of different punishments and penalties for alleged infractions by Eric Anthony Sanchez as opposed to other students similarly situated. . . ." Thus, Plaintiffs allege that the school board members, the district policymakers, created policies and/or knowingly allowed the application of policies that resulted in a violation of Eric's right to equal protection. Though they have not identified a specific custom or policy, the Court concludes that this failure will not warrant dismissal in favor of the school district for failure to state a claim under Rule 12(b)(6) because there is no heightened pleading standard applicable to the school district. Accordingly, FISD's motion to dismiss is denied.
"If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e)." Swierkiewicz v. Sorema, 534 U.S. 506, 514 (2002).
2. Individual-capacity Defendants
Plaintiffs also sued each of the employee defendants in their individual capacities, and these defendants have asserted the defense of qualified immunity. The burden is on the plaintiff to overcome a defendant's defense of qualified immunity. Burnes-Toole v. Byrne, 11 F.3d 1270, 1274 (5th Cir. 1994). To do so, the plaintiff must show that the defendants violated clearly established law and that the defendants' conduct was not objectively reasonable. Id. Moreover, the plaintiff must plead specific facts with a level of particularity so that they would, if proved, warrant the relief sought. Id. Plaintiffs must identify defendants who were either personally involved in the constitutional violation or whose acts are causally connected to the constitutional violation alleged. Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439 (5th Cir. 1999). In addition, because there is no respondeat superior liability under § 1983, to the extent that Plaintiffs seek to hold the defendants individually liable as "`the moving force' (the school policies as implemented)," individual officials may be liable only for implementing a policy that is "itself a repudiation of constitutional rights" and "the moving force of the constitutional violation." Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002). Moreover, a plaintiff must identify specific policies and explain how they permitted or encouraged the alleged constitutional violation to survive a Rule 12(b)(6) motion to dismiss claims against the individual-capacity defendants. Id.
Plaintiffs correctly argue that there is no heightened pleading standard applicable to governmental entities and official-capacity defendants, but they do not challenge the applicability of a heightened pleading standard to overcome the individual defendants' qualified immunity defense. After the Supreme Court's 1993 decision in Leatherman, in which the Court held that there was no heightened pleading requirement for section 1983 claims against municipalities, the Fifth Circuit responded by looking to Rule 7 to achieve a "practical working marriage of pleading and qualified immunity" in section 1983 cases against defendants in their individual capacities. See Schultea v. Wood, 47 F.3d 1427, 1432 (5th Cir. 1995). Thus, the Fifth Circuit's answer to Leatherman was to empower the district court to utilize "an array of procedures" to carry the load as far as pleadings can, and the Court specifically directed that the "district court must insist that a plaintiff suing a public official under § 1983 file a short and plain statement of his complaint, a statement that rests on more than conclusions alone. Second, the court may, in its discretion, insist that a plaintiff file a reply tailored to an answer pleading the defense of qualified immunity." Id. at 1433-34. "The district court need not allow any discovery unless it finds that plaintiff has supported his claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant's conduct at the time of the alleged acts." Id. at 1434.
In 2002, the Supreme Court issued its decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), in which it again stressed that Rule 8 requires only a short and plain statement of a plaintiff's claims sufficient to give fair notice to the defendant. A leading commentator has noted that, after Swierkiewicz, some courts of appeals have begun to overrule their precedents that had imposed heightened pleading requirements in constitutional tort cases. See WRIGHT MILLER, FED. PRACTICE PRO. § 1230, at 362-63. The Fifth Circuit has not had occasion to consider whether its "heightened pleading standard" in section 1983 cases involving qualified immunity was affected by Swierkiewicz, though at least one court has questioned whether the heightened pleading requirement survived Swierkiewicz. See, e.g., Johnson v. Ramos, 2003 WL 22995230 (N.D. Tex. 2003) ("In the magistrate judge's opinion the Elliott requirement no longer applies subsequent to the United States Supreme Court's opinion in Swierkiewicz v. Sorema, 534 U.S. 506 (2002)."); Burkins v. Rudloff, 2002 WL 31016514 (N.D. Tex. 2002). Because Swierkiewicz did not involve qualified immunity and does not directly overrule Schultea, this Court will apply the Schultea framework to the qualified immunity defense until the Fifth Circuit or the Supreme Court directs otherwise.
Previously, Defendants requested that, if Plaintiffs were allowed to amend their complaint, they should be required to set out specific facts, with respect to each and every Defendant that, if proven, would demonstrate a constitutional deprivation, and that the amended complaint include claims "made with sufficient precision and factual specificity" to justify any claims under Section 1983 against the individual defendants. The Court agreed, noting that Plaintiffs had not alleged any specific facts concerning the conduct of numerous individual defendants sued in their individual capacities. Accordingly, Plaintiffs were required to replead to allege specific facts with regard to each defendant sued in his or her individual capacity.
Plaintiffs' Second Amended Complaint still fails to allege any specific facts with regard to the following individual-capacity defendants: Jim Davidson, Rosemary Burkette, Sally Mars, Oralia Ramirez, Allison Shoemaker, Rachel Pena, Larry Angle, Edward Hrna, Carlos Ortiz, Tom Ray, and Neysa Choate. With regard to each of these Defendants, Plaintiffs allege only that they were part of the "`moving force' (the school policies as implemented)" that resulted in their alleged constitutional violations. These allegations, which fail to identify any specific policy implemented by the Defendants or how they permitted or possibly encouraged a violation of Eric's constitutional rights, are insufficient to survive a rule 12(b)(6) motion to dismiss claims against the Defendants in their individual capacities. Oliver, 276 F.3d at 742. Plaintiffs also allege that these defendants were "part of the `investigation' leading to the discriminatory actions against Eric Sanchez, had private meetings, wrote letters and set forth [or participated in] the discriminatory actions to be taken against Eric Sanchez." Even if taken as true, these allegations fail to establish a violation of a clearly established right and are insufficient to survive a motion to dismiss based on qualified immunity. Accordingly, Plaintiffs' claims against Jim Davidson, Rosemary Burkette, Sally Mars, Oralia Ramirez, Allison Shoemaker, Rachel Pena, Larry Angle, Edward Hrna, Carlos Ortiz, Tom Ray, and Neysa Choate in their individual capacities are dismissed.
With regard to Defendant Margie Leal, Plaintiffs allege that she "fabricated a charge of profanity" against Eric Sanchez, and that based on this accusation, a school official informed Eric's father that Eric was being assessed thirty days alternative education. Plaintiffs again make the conclusory "moving force" allegations without identifying any specific policy allegedly implemented by Defendant Leal, and allege that "Margie Leal was part of the events as well as part of the `investigation' leading to the discriminatory actions against Eric Sanchez, had private meetings, made false statements, and participated in the discriminatory actions to be taken against Eric Sanchez." At most, Plaintiffs specific factual allegations establish that Margie Leal defamed Eric Sanchez. Injury to reputation, without more, is insufficient to establish a constitutional violation. Accordingly, Plaintiffs' allegations fail to establish the violation of a clearly established right by Margie Leal and fail to overcome the defense of qualified immunity. Plaintiffs' claims against Defendant Margie Leal in her individual capacity are dismissed.
With regard to John Raabe, Plaintiffs allege that Raabe, a member of the FISD school board, was a member of the Floresville Peanut Festival Association for the year 2003. Eric was chosen to represent Floresville as King in the Floresville Peanut Festival of 2003, but "[s]ubsequent to a concerted effort on the part of School officials to falsely accuse Eric of violations of school policy and/or the athletic department's self concocted and directed policies, Eric was then denied the once-in-a-lifetime opportunity to represent the City of Floresville as King of the annual Peanut Festival for 2003." Eric was replaced by an anglo student, son of a Floresville High School counselor, who had been arrested for shoplifting but was not punished or eliminated from sports participation. Plaintiffs' allegations against Defendant Raabe concerning the Peanut Festival do not appear to concern his role as a school board member, and it is not clear whether Raabe's actions as President of the Peanut Festival Association were taken under color of state law, as required for section 1983 liability. However, if Raabe's actions as President of the Peanut Festival Association were taken under color of state law, Plaintiffs' allegations could state an equal protection claim. Accordingly, Plaintiffs' claims against Defendant Raabe will not be dismissed under Rule 12(b)(6).
Raabe may submit an additional motion to dismiss the 1983 claim addressing whether the Floresville Peanut Festival Association is a private, nongovernmental entity.
With regard to Coaches P. Boutwell, Jesse Ramos, and K. Whaley, Plaintiffs allege that, after Eric was accused of stealing candy, he was removed from a school bus by Coaches Boutwell, Ramos, and Whaley, "who proceeded to force Eric into a room on the school grounds, interrogate him roughly and intensely, accusing him of theft, and stripped Eric of his clothing down to his underwear. Eric was then told by these coaches of FISD that he, Eric, was immediately removed from the athletic program for a period of 12 months and would be enrolled in a 90 day elite boot camp." These facts, if true, could establish a violation of Eric's rights under the Fourth Amendment. The constitutional right to be free from unreasonable searches and seizures extends to actions by school officials, but whether such a seizure is unreasonable depends on all relevant contextual circumstances, with particular attention being paid to whether the search or seizure was justified at its inception and reasonable in scope. Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079 (5th Cir. 1995). A search is permissible when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. Plaintiffs' allegation that Eric was stripped of his clothing, if true, could allow a reasonable person to conclude that the Coaches conducted an overly intrusive strip search in violation of the Fourth Amendment. Accordingly, Plaintiffs' claims against Boutwell, Ramos, and Whaley will not be dismissed.
With regard to Craig Stockstill, the Superintendent of Floresville Independent School District, Plaintiffs allege that Stockstill "was grossly negligent and/or negligent" and was "grossly negligent in supervising subordinates who committed wrongful acts." Plaintiffs also allege that Stockstill "personally participated in the violations" of Eric's constitutional rights and that Eric was accused of criminal mischief, being a trouble maker, using vulgar language, and being a thief by Stockstill or school personnel that he supervised. Further, Plaintiffs allege that Stockstill, through school personnel, permitted Ullevig to have Eric's name and permitted her to remove Eric from his scheduled classes. Last, Plaintiffs allege that Stockstill used retaliatory conduct against Eric and/or his parents for speaking out against the discriminatory conduct of the School Board, some coaches and some teachers in FISD by treating Eric differently (inflicting "much more severe punishment") from other students similarly situated in violation of his due process, equal protection, and privacy rights. The extent of Stockstill's involvement in the incidents that Plaintiffs complain of is somewhat unclear, given that their allegations seem to attempt to hold Stockstill liable, at least in part, for the acts of those he supervised under a theory of respondeat superior. As noted, there is no respondeat superior liability under section 1983. However, Plaintiffs also allege that Stockstill personally participated in the violations. Thus, at this point, the Court cannot conclude that Plaintiffs can prove no set of facts that would entitle them to relief. Accordingly, Plaintiffs' claims against Defendant Stockstill will not be dismissed.
B. Defendant Ullevig's Motion to Dismiss
Defendant Brenda Ullevig has also filed a motion to dismiss under Rule 12(b)(6), and asserts that dismissal is appropriate on the basis of qualified immunity.
The doctrine of qualified immunity serves to shield a government official from liability based on the performance of discretionary functions. Thompson v. Upshur County, 245 F.3d 447, 456 (5th Cir. 2001). To establish an entitlement to qualified immunity, a government official must first show that the conduct occurred while she was acting in her official capacity and within the scope of her discretionary authority. Cronen v. Texas Dep't of Human Servs., 977 F.2d 934, 939 (5th Cir. 1992). Once a defendant has properly invoked qualified immunity, the burden rests on the plaintiffs to show that the defense does not apply. See McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc). "To survive a motion to dismiss in cases where the qualified immunity defense is raised, a plaintiff must state facts, which if proven, would defeat the defense." Babb v. Dorman, 33 F.3d 472, 475 n. 5 (5th Cir. 1994).
Courts apply a two-pronged inquiry to determine whether qualified immunity is applicable in a given case. First, the court must determine whether the plaintiff has alleged a violation of a clearly established federal constitutional or statutory right. See McClendon, 305 F.3d at 322-23. Officials sued for violation of constitutional rights do not forfeit immunity by violating some other statute or regulation. Lynch, 801 F.2d at 1372. Second, the court must determine whether the official's conduct was objectively reasonable in light of the clearly established legal rules at the time of the alleged violation. Id. The Fifth Circuit has held that "qualified immunity is a shield from civil liability for `all but the plainly incompetent or those who knowingly violate the law.'" See Jones v. City of Jackson, 203 F.3d 875, 883 (5th Cir. 2000). Indeed, even officials whose conduct "violates some statutory or administrative provision" do not necessarily lose their qualified immunity. See Davis v. Scherer, 486 U.S. 183, 194 (1984).
In their Second Amended Petition, Plaintiffs' assertions concerning Ullevig are as follows:
"At the age of 15 years, Eric Sanchez was improperly removed from his class and illegally detained and interrogated by police officer Brenda Ullevig in a school office as he was physically shoved into a chair, mirandized by officer Ullevig, interrogated for over 45 minutes, and denied his request to call his parents by telephone. No school administrator was present during this interrogation. At the time this event took place, Officer Brenda Ullevig's husband was suing Eric Sanchez's grandfather for several million dollars. . . . Eric's treatment during this episode was in violation of his due process and equal protection rights, school board policy and articulated School District procedures. At later times during Eric Sanchez's tenure as a student at Floresville High School, Brenda Ullevig, with consent of school personnel, removed Eric Sanchez from his classes and proceeded to accuse and interrogate Eric without notifying his parents or his attorney."
"In December, 2000, Eric reported an incident that he became aware of, such report being made through Crime Stoppers. Craig Stockstill, through the assistant principal, Benny Villanueva, assisted Eric in utilizing Crime Stoppers. Craig Stockstill, through school personnel, then permitted a police officer, Brenda Ullevig, to have the name of the student who made the report, Eric Sanchez, and then permitted the officer to remove Eric from his scheduled classes and proceed to falsely accuse Eric of the crime which he had reported through Crime Stoppers, once again ignoring the written instructions to notify Eric's parents and attorney before any such removal from his classes for such interrogation and violating Eric's due process, equal protection and privacy rights under the Constitution."
In their response to Ullevig's motion to dismiss, Plaintiffs claim that Ullevig is not entitled to dismissal on the basis of qualified immunity because Ullevig "deprived Eric Anthony Sanchez his due process and equal protection constitutional rights under privacy rights, as well as fourth amendment rights as applied under the fourteenth amendment, in the manner in which she removed Eric from class and accused and questioned him on more than one occasion. Eric has a right to be left alone, so long as he is not encroaching on another persons [sic] civil rights, to pursue his education, be involved in extra school activities, and to go about his daily school activities without the unwarranted intervention of a uniformed officer acting under the color of law, jerking him out of class for harassing interrogation without notifying his parents or his attorney. There is a bona fide question of fact relating to the objective reasonableness of Ullevig's actions because at the time Ullevig took some of these actions, Ullevig's husband was suing Eric Anthony Sanchez's grandfather for several million dollars."
In its prior Order, the Court noted that Plaintiffs had not alleged any facts supporting a claim that Ullevig violated Eric's right to equal protection as they had not pointed to any other students similarly situated who Ullevig treated differently. In their Second Amended Complaint, Plaintiffs allege that "Eric A. Sanchez has been treated differently by Brenda K. Ullevig, with discrimination, when compared to other students and student athletes similarly situated when school rules, regulations, and proposed punishment have been proposed or implemented with students similarly situated as set forth herein and which will be further developed through the discovery process." Thus, Plaintiffs have now alleged that Ullevig treated similarly situated students differently. Plaintiffs' allegation that Ullevig's conduct was retaliatory given that her husband was suing Eric's grandfather could be construed as an allegation that the difference in treatment was based on an improper and therefore irrational motive.
A "class of one" plaintiff states an equal protection claim if the plaintiff alleges that he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
The Court noted in its prior order that Plaintiffs had raised a possible Fourth Amendment violation. The Fourth Amendment to the United States Constitution provides that the government shall not violate "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . ." The Supreme Court has held that the Fourteenth Amendment extends this constitutional guarantee to searches and seizures by state officers, Elkins v. United States, 364 U.S. 206, 213 (1960), and public school officials, New Jersey v. T.L.O., 469 U.S. 325, 336-337 (1985). The determination of the standard of reasonableness governing any specific class of searches or seizures requires balancing the need to search against the invasion which the search or seizure entails. Id. On one side of the balance are arrayed the individual's legitimate expectations of privacy and personal security; on the other, the government's need for effective methods to deal with breaches of public order. Id.
Plaintiffs have not plead facts to support a due process violation by Ullevig since they have not alleged that Ullevig deprived Eric of a protected property or liberty interest independent of the alleged unlawful seizure. As noted in its prior order, to the extent that Plaintiffs may argue that the Fourteenth Amendment's due process guarantee is applicable to the alleged seizure by Defendant Ullevig, the Court concludes that the Court must apply a Fourth Amendment analysis rather than using the Fourteenth Amendment's more generalized notions of due process. See Blackwell v. Barton, 34 F.3d 298, 302 (5th Cir. 1994).
"Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which the search takes place." New Jersey v. T.L.O., 469 U.S. 325, 336 (1986). The Fourth Amendment applies in schools, but the nature of those rights is what is appropriate for children in school. Milligan v. City of Slidell, 226 F.3d 652, 654 (5th Cir. 2000). Thus, the reasonableness inquiry must take into account the school's "custodial and tutelary responsibility for children." Milligan, 226 F.3d at 654. Students in the school environment have a "lesser expectation of privacy than members of the population generally." Id. On the other hand, the school has a substantial interest in maintaining discipline in the classroom and on school grounds. T.L.O., 469 U.S. at 339. Thus, "maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures." Id. at 340. As a result, the Supreme Court has concluded that "the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject. The warrant requirement, in particular, is unsuited to the school environment." Id. Similarly, strict adherence to the requirement of probable cause is not warranted. Id. at 341. Rather, the legality of a search or seizure should depend simply on the reasonableness, under all the circumstances, of the search. Id.
Outside the school context, a police officer ordinarily may not arrest an individual without probable cause. Plaintiffs have alleged that Defendant Ullevig forcefully shoved Eric into a chair and "mirandized" him. For purposes of the Fourth Amendment, detention or seizure of a person occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968). Plaintiffs have alleged facts that constitute a detention. However, Plaintiffs have not alleged that Ullevig lacked probable cause.
In T.L.O., the Supreme Court expressly left open the question of whether its relaxed standard would apply to situations in which someone other than school officials conduct a search on their own accord: "We here consider only searches carried out by school authorities acting alone and on their own authority. This case does not present the question of the appropriate standard for assessing the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement agencies, and we express no opinion on that question. Cf. Picha v. Wielgos, 410 F. Supp. 1214, 1219-1221 (N.D Ill. 1976) (holding probable-cause standard applicable to searches involving the police)." In this case, the seizures were conducted by a police officer without school administrators being present. It is unclear whether the December 2000 detention was school related, since the Complaint provides no information regarding the incident reported to Crime Stoppers, though the September 2000 detention appears to be related to a car vandalism that occurred on school property at night. The Second Amended Complaint alleges only that Stockstill, through the assistant principal, assisted Eric in utilizing Crime Stoppers to report an incident and that Stockstill, through school personnel, permitted Ullevig to remove Eric from his scheduled classes and falsely accuse Eric of the crime that he had reported to Crime Stoppers. In addition, Defendant Ullevig's motion to dismiss and Plaintiffs' response fail to illuminate the facts and circumstances of the seizures. Thus, as before, the Court is unable to determine the applicable standard for whether Plaintiffs have asserted facts that would give rise to a constitutional violation, nor is the Court able to determine whether Defendant Ullevig's conduct was reasonable in light of the circumstances. Accordingly, the Court cannot conclude that Plaintiffs can prove no set of facts that would entitle them to relief. Defendant Ullevig's motion to dismiss is DENIED. See Wilkerson v. Stalder, 329 F.3d 431, 436 (5th Cir. 2003) (affirming denial of motion to dismiss because the Complaint failed to allege inmates' initial classification and thus Court could not determine whether inmates asserted facts that would give rise to a denial of a liberty interest).
The Court notes, however, that Plaintiffs' repeated emphasis on the fact that Ullevig's husband was suing Eric's grandfather to establish that her conduct was unreasonable is misplaced. The inquiry regarding whether an individual defendant's conduct was reasonable for purposes of qualified immunity is an objective analysis, and thus Ullevig's subjective intent is irrelevant.
III. Conclusion
The school district defendants' motion to dismiss (docket no. 27) is GRANTED IN PART and DENIED IN PART. Plaintiffs' claims against Jim Davidson, Rosemary Burkette, Sally Mars, Oralia Ramirez, Allison Shoemaker, Rachel Pena, Larry Angle, Edward Hrna, Carlos Ortiz, Tom Ray, Neysa Choate, and Margie Leal in their individual capacities are DISMISSED. The motion to dismiss is denied with regard to Plaintiffs' claims against Defendants FISD, Boutwell, Ramos, Whaley, Raabe, and Stockstill. Defendant Ullevig's motion to dismiss (docket no. 28) is DENIED. If appropriate, Defendants may re-urge their qualified immunity defenses in a motion for summary judgment.
The Unopposed Motion to Abate the Current Scheduling Order (docket no. 34) is denied and the Motion for an Expedited Ruling (docket no. 34) is dismissed as moot.