The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
KALETTE HALEY, ET AL. CIVIL ACTION NO. 20-0476
VERSUS JUDGE S. MAURICE HICKS, JR.
DESOTO PARISH SCHOOL MAGISTRATE JUDGE HAYES
BOARD, ET AL.
MEMORANDUM RULING
Before the Court are two Motions to Dismiss (Record Documents 4 & 13) each
filed by Defendants Stephanie Brewer, Toras Hill, and the DeSoto Parish School Board
(“the Defendants”). The Defendants move to dismiss both the Plaintiffs’ Original and
Amended Complaints (Record Documents 1 & 8) pursuant to Federal Rule of Civil
Procedure 12(b)(6). Plaintiffs Kalette Haley, Shakisha Handy, and Kemo Wyatt,
individually and on behalf of their minor children, oppose the Motions. See Record
Documents 9 and 15. For the reasons set forth below, Defendants’ Motions to Dismiss
are GRANTED IN PART and DENIED IN PART.
A. BACKGROUND1
Plaintiffs are three parents whose children were members of the Mansfield High
School cheerleading squad. In July 2019, the squad attended a summer cheerleading
camp hosted by the Universal Cheerleading Association in Lafayette, Louisiana. On or
about July 26, 2019, the team was practicing a routine while under the supervision of
coach, Defendant Stephanie Brewer (“Brewer”). During this practice, Plaintiffs’ children
began to speak out against Brewer’s “bullying and profanity.” Record Document 1. In
1 “[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations
contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007) (citations
omitted).
response, Brewer threatened to tape the girls’ mouths shut should they continue to
distract from practice. The children persisted and, as result, Brewer placed pieces of white
athletic tape over the mouths of each team member. Notably, the child of Plaintiff Handy
was not subjected to the taping. Brewer then required the team to perform the routine
while their mouths remained taped. At one point, a cheerleader removed the tape and
asked Brewer if she could call her parents. Brewer answered no and told the child to
replace the tape.
Following the summer camp, Plaintiffs’ children were treated differently because
they reported the taping incident to their parents. Plaintiffs point to Brewer’s treatment of
the children at the jamboree football game against North DeSoto High School during
which Brewer yelled at the team to “shet [shut] the fuck-up!!” Record Document 1. Later
that Fall, Plaintiff Handy made a surprise visit to the cheerleaders’ practice and witnessed
what she believed to be a “hostile environment.” Record Document 1. Both Plaintiff
Handy’s and Plaintiff Haley’s children began to receive demerits and were removed from
their officer positions on the team. Ultimately, the children left the team altogether.
Plaintiff Haley met with Defendant Principal Toras Hill (“Principal Hill”), Brewer, and
Nakia Graham (another faculty sponsor of the cheerleading team) to discuss the taping
incident. Plaintiff Haley again met with Principal Hill on September 2, 2019, to voice her
concerns for her child’s safety in the presence of Brewer. Plaintiff Haley had a third
meeting by telephone with Lillie Giles, supervisor for the DeSoto Parish School Board
Office, who apologized on behalf of the School Board for the treatment received by
Plaintiff Haley’s child. Plaintiff Wyatt also met with Principal Hill and Chris Hill, a
supervisor, regarding the taping incident. According to the Plaintiffs, Chris Hill informed
Plaintiff Wyatt that he would be “barred from the school if [Plaintiff Wyatt] pursued claims
herein.” Record Document 8.
On April 16, 2020, Plaintiffs filed their Original Complaint against the DeSoto
Parish School Board, Brewer, and Principal Hill alleging numerous claims requesting both
injunctive and monetary relief. First, Plaintiffs bring claims under 42 U.S.C. § 1983
asserting that Brewer and Hill, acting as state actors under color of state law, infringed
upon both the First Amendment free speech rights of their children as well as their
Fourteenth Amendment rights to due process when Brewer taped the children’s mouths
shut. Plaintiffs also allege the children were unfairly retaliated against for reporting the
taping incident to their parents. Plaintiffs further contend the DeSoto Parish School Board
participated in these constitutional violations through the actions of its employees/agents.
In addition to their section 1983 claims, Plaintiffs argue the DeSoto Parish School Board
violated the Title IX antidiscrimination law when they subjected the female cheerleaders
to disparate treatment from their male counterparts.2 Finally, Plaintiffs contend Brewer
and Hill are responsible for the state law torts of assault and battery. Plaintiffs
subsequently filed an Amended Complaint (Record Document 8) realleging their original
claims while including Kemo Wyatt as an additional Plaintiff, individually and on behalf of
his minor child.
Defendants responded to Plaintiffs’ Complaints by filing the instant Motions to
Dismiss (Record Documents 4 & 13) pursuant to Federal Rule of Civil Procedure 12(b)(6)
for Plaintiffs’ failure to state claims upon which relief may be granted.
2 On information and belief, Plaintiffs contend that male cheerleaders once performed for the Mansfield
High School cheerleading squad. See Record Document 8 at p. 11.
II. LAW AND ANALYSIS
A. Pleading and 12(b)(6) Motion to Dismiss Standards
Rule 8(a)(2) of the Federal Rules of Civil Procedure governs the pleading
requirements to state a claim for relief. A pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” F. R. C. P. 8(a)(2).
The standard for the adequacy of complaints under Rule 8(a)(2) is one of “plausibility.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007). Under this standard,
“factual allegations must be enough to raise a right to relief above the speculative level
. . . on the assumption that all the allegations in the complaint are true (even if doubtful in
fact).” Id. at 555–56, 127 S. Ct. at 1965. If a pleading only contains “labels and
conclusions” and “a formulaic recitation of the elements of a cause of action,” the pleading
does not meet the standards of Rule 8(a)(2). Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 1949 (2009) (citation omitted).
In conjunction with Rule 8, Federal Rule of Civil Procedure 12(b)(6) allows parties
to seek dismissal of a party's pleading for failure to state a claim upon which relief may
be granted. A court does not evaluate a plaintiff’s likelihood for success, but instead
determines whether a plaintiff has pleaded a legally cognizable claim. See Thompson v.
City of Waco, Tex., 764 F.3d 500, 503 (5th Cir. 2014). Courts considering a motion to
dismiss under Rule 12(b)(6) are only obligated to allow those complaints that are facially
plausible under the Iqbal and Twombly standard to survive such a motion. See Iqbal, 556
U.S. at 678–79, 129 S. Ct. at 1949. If the complaint does not meet this standard, it can
be dismissed. See id. Such a dismissal ends the case “at the point of minimum
expenditure of time and money by the parties and the court.” Twombly, 550 U.S. at 558,
127 S. Ct. at 1966.
B. Analysis
In their Motions, the Defendants request this Court to dismiss the Plaintiffs’
Complaint pursuant to Rule 12(b)(6) or, alternatively, grant summary judgment in favor of
the Defendants under Federal Rule of Civil Procedure 56. The Court believes summary
judgment is premature at this stage. Instead, the Court will resolve the present issues
pursuant to Rule 12 and will address each claim individually.
a. Section 1983
Plaintiffs allege that Brewer, Hill and the DeSoto Parish School Board, while acting
under color of state law, violated the children’s freedom of speech, retaliated against the
children for reporting, and violated their right to be free from bodily interreference without
due process of law.
Turning first to the Plaintiffs’ claims against the School Board, Plaintiffs’ arguments
appear to be based on a theory of respondeat superior or vicarious liability. While a school
board is generally considered to be a “person” under section 1983, a school board may
not be held responsible simply because it employs a tortfeasor. See Monell v. Dept. of
Social Serv. of City of New York, 436 U.S. 658, 692, 98 S.Ct. 2018, 2037 (1978). The
political subdivision must have effectuated a policy or custom that, when carried out by a
policymaker, results in a constitutional violation. See Barrow v. Greenville Ind. Sch. Dist.,
480 F.3d 377, 380 (5th Cir. 2007). In order to hold the school board liable, a plaintiff must
establish the existence of a policymaker, an official policy, and a violation of constitutional
right whose “moving force” is the policy or custom. Pitrowski v. City of Houston, 237 F.3d
567, 578 (5th Cir. 2001). Specifically, to defeat a Rule 12(b)(6) motion, a plaintiff must
plead facts to show that “the statutorily authorized policymaker promulgated an
unconstitutional policy.” Groden v. City of Dallas, 826 F.3d 280, 285 (5th Cir. 2016).
Regarding the alleged violations of free speech and due process, Plaintiffs fail to
point to any policy created by Defendant Hill, Brewer or the DeSoto Parish School Board
which essentially fosters and condones constitutional violations of the kind alleged. The
same is true regarding Plaintiffs’ claim of retaliation against the children for exercising
their right to speak freely. Plaintiffs claim the School Board is the policymaker for the
school district, but there is no identified policy that unconstitutionally violated the
children’s rights. As result, the Defendants’ Motions to Dismiss the section 1983 claims
against the DeSoto Parish School Board are GRANTED. Furthermore, the Motions to
Dismiss are GRANTED with regards to Plaintiffs’ claims against Hill and Brewer in their
official capacities because they are duplicative to those against the School Board.
As for the Plaintiffs’ claims against Hill and Brewer in their individual capacities,
first, it is noted by the Court that Plaintiff Handy’s child was not a victim of the mouth
taping. As result, the Court finds that Plaintiff Handy, individually and on behalf of her
minor child, is not entitled to relief for the violation of the right to free speech or due
process. The Defendants’ Motions to Dismiss Plaintiff Handy’s claims of free speech and
due process are GRANTED. Second, Plaintiffs argue that Hill and Brewer collectively are
responsible for the alleged violations of free speech and due process. However, Hill was
not present for the taping incident and had no role in preventing the children from
speaking or restraining them. As result, the Defendants’ Motions to Dismiss Plaintiffs’
section 1983 claims for free speech and due process violations by Hill are GRANTED.
Third, Defendants contend they are protected by qualified immunity. A defendant
is entitled to qualified immunity if his “conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Harlow
v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 (1982). There need not be precedent
exactly on point to defeat immunity, rather, the unlawfulness of the defendant’s action
must merely be apparent to a reasonable person. See Porter v. Ascension Parish Sch.
Bd., 393 F.3d 608, 618 (5th Cir. 2004). To overcome the presumption of immunity, a
plaintiff must state a claim for the violation of a constitutional right and then must prove
the right was “clearly established” at the time the conduct occurred. As result of the
holding in Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808 (2009), the Court does not
have to strictly follow a particular order in assessing the existence of qualified immunity.
In fact, the Supreme Court has encouraged courts to avoid engaging in unnecessary
constitutional analysis and instead take the easier route of determining whether a right
was clearly established at all. See generally Camreta v. Greene, 563 U.S. 692, 131 S.Ct.
2020 (2011).
At this stage, this Court believes the Plaintiffs have pleaded facts sufficient to show
that Brewer was put on notice of the children’s rights to free speech. The First Amendment
“prohibits not only direct limitations on speech but also adverse government action
against an individual because of her exercise of First Amendment freedoms.” Colson v.
Grohman, 174 F.3d 498, 508 (5th Cir. 1999). The United States Supreme Court, in Tinker
v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733
(1969), confirmed that an individual’s right to free speech is available to students and
teachers. As a reasonable school official, Brewer knew taping the children’s mouths,
literally silencing their comments, infringed upon their right to speak freely. Because it is
plausible that the children’s free speech right was clearly established, Defendants’
Motions to Dismiss the section 1983 claims against Brewer for violation of free speech
are DENIED.3
The Court believes Brewer is entitled to qualified immunity against the section
1983 claim for violation of due process. The Plaintiffs point to Doe v. Taylor Independent
School District, 15 F.3d 443, 455 (5th Cir. 1994), to argue the right to Due Process was
clearly established; however, this Court thinks Doe is distinguishable from the present
matter. In Doe, the Fifth Circuit held that a student’s substantive due process right to be
free from sexual abuse and violation of bodily integrity by her teacher was clearly
established because no reasonable public school official at that time would have assumed
he could sexually molest a minor student with the protection of constitutional immunity.
See Doe, 15 F.3d at 455. The Fifth Circuit has also found clearly established constitutional
rights to bodily integrity in cases where a teacher strapped a student to a chair for two
days, see Jefferson v. Ysleta Ind. School Dist., 817 F.2d 303, 305 (5th Cir. 1987), or
where the teacher arbitrarily paddled students, see Fee v. Herndon, 900 F.2d 804, 808
(5th Cir. 1990). Yet, the Court does not believe such extreme cases clarify the parameters
of the present situation. While Brewer did tape the mouths of the children, Plaintiffs’ own
Complaints explain how the children were able to remove the tape and wore the tape for
3 The Court recognizes that the Tinker question of whether the children’s speech in the instant matter falls
under the protection of the First Amendment at all remains unanswered. The Tinker court maintained that
a student’s speech is protected by the First Amendment unless the state can show that the speech
“materially and substantially interfered with requirements of appropriate discipline in operation of the school”
and that regulation of the speech stems from more than a “mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint.” Tinker, 393 U.S. at 509, 89 S.Ct. at 738.
Presently, the Court finds that the Plaintiffs have pleaded facts sufficient to pass the motion to dismiss stage
and will not entertain the constitutional question of whether the students’ speech was protected under the
First Amendment until such time as a motion for summary judgment is submitted.
no more than half an hour. (Record Documents 1 & 8). Because the Court does not
believe there exists sufficient guidance to confirm whether the right is clearly established
in a scenario such as the instant one, Brewer is entitled to qualified immunity. The Motions
to Dismiss Plaintiffs’ section 1983 claims for due process against Brewer are GRANTED.
To succeed on a retaliation claim, a plaintiff must prove “(1) they were engaged in
constitutionally protected activity, (2) the defendants’ actions caused them to suffer an
injury that would chill a person of ordinary firmness from continuing to engage in that
activity, and (3) the defendants’ adverse actions were substantially motivated against the
plaintiffs’ exercise of constitutionally protected conduct.” Brinsdon v. McAllen Ind. Sch.
Dist., 863 F.3d 338, 351 (5th Cir. 2017), citing Keenan v. Tejeda, 290 F.3d 252, 258 (5th
Cir. 2002). Plaintiffs claim their children were retaliated against and were treated with
hostility because they reported the taping incident. Plaintiffs Handy and Haley contend
their children were removed from their officer positions and decided to leave the
cheerleading team because of the hostile treatment they experienced. The Court finds
that the Plaintiffs have provided enough evidence of retaliation to meet the 12(b)(6)
standard. Defendants’ Motions to Dismiss Plaintiffs’ claims of retaliation against Hill and
Brewer are DENIED.4
b. Title IX
Title IX provides in relevant part that “[n]o person in the United States shall, on the
basis of sex, be excluded from participation in, be denied the benefits of, or be subjected
to discrimination under any education program or activity receiving Federal financial
4 As in the above discussion, the Court declines to determine whether the children were engaging in
constitutionally protected activity. The question calls for an analysis of whether their reports were protected
speech contemplated by the First Amendment. The Court will not entertain such a question until the
summary judgment stage.
assistance.” 20 U.S.C. § 1681(a). A plaintiff seeking relief under Title IX need only meet
the threshold requirement of “plausibility” for his or her claim to survive a motion to
dismiss. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992 (2002). Plaintiffs
need not prove all the elements of a prima facie case. See id.
Here, Plaintiffs allege the Defendants committed gender discrimination against
their children by subjecting the cheerleaders to different treatment from the male students
of Mansfield High School. In their Complaints, Plaintiffs support their presumption that the
children were mistreated based on their gender by throwing out the blanket accusation
that Mansfield High never taped the mouths of their male students shut. The Court finds
such conclusory statements do not amount to a plausible claim to relief. Without any
factual basis linking the disciplinary action taken against the cheerleaders to
discrimination based on gender, Defendants’ Motions to Dismiss Plaintiffs’ Title IX claim
against the DeSoto Parish School Board are GRANTED.
c. State Tort Actions
Lastly, Plaintiffs assert that Defendants Hill and Brewer are responsible for the
state law torts of assault and battery according to Louisiana Civil Code article 2315.
Defendants counter Plaintiffs’ claim by arguing they have statutory immunity from civil
liability under La. R.S. 17:439(A) which grants immunity to any school employee
subjected to suit for any statement or action taken by the school employee in the course
and scope of his/her employment.5 The Louisiana Supreme Court has held that a school
5 The Court emphasizes that Louisiana’s statutory immunity, like the qualified immunity available to
defendants under section 1983, is not an absolute shield. “The purpose of [the statute] was to provide for
the limitation of liability for school employees….” Credit v. Richland Parish School Bd., 46,163 (La. 2d Cir.
App 04/13/11); 61 So.3d 861, 867. However, the Court underscores that qualified immunity and statutory
immunity are not synonymous. A party must meet the requirements of each individual immunity in order to
enjoy its protection.
employee may invoke the statutory immunity by establishing “(1) the cause of action
against the employee is based on a statement made or action taken by the employee, (2)
the action or statement was made in the course and scope of the employee’s duties as
defined by the school board, and (3) the action or statement must be within the specific
guidelines for school employee behavior as established by the school board.” Credit v.
Richland Parish Sch. Bd., 2011-1003 (La. 03/13/12); 85 S0.3d 669, 675-76. Further, the
statutory immunity precludes a cause of action against a school employee for both acts
of commission and omission committed within the course and scope of employment. See
id. at 678. However, this protection of immunity stops short for those actions or statements
made that are “maliciously, willfully, and deliberately intended to cause bodily harm to a
student or to harass or intimidate a student.” La. R.S. 17:439(C).
Plaintiffs have made no showing that Principal Hill actively participated in taping
the children’s mouths shut. As result, Plaintiffs claims for state tort liability against Hill are
DISMISSED. In contrast, Plaintiffs have shown that Brewer “haz[ed]…beyond any act of
reasonable discipline” and retaliated against the children for reporting the incident to their
parents. As result, the Defendants’ Motions to Dismiss Plaintiffs’ state tort claims against
Brewer are DENIED.
III. Conclusion
Based on the foregoing reasons, Defendants’ Motions to Dismiss (Record
Documents 4 & 13) are GRANTED in part and DENIED in part.
Plaintiffs’ section 1983 and Title IX claims against the DeSoto Parish School Board
are DISMISSED. Plaintiffs’ section 1983 claims for free speech and due process against
Hill in his individual capacity, Plaintiffs’ section 1983 claims against Hill in his official
capacity, Plaintiffs’ state tort claims against Hill are DISMISSED. Plaintiffs’ section 1983
claims for due process against Brewer in her individual capacity, Plaintiffs’ section 1983
claims against Brewer in her official capacity, and Plaintiff Handy’s free speech claim
against Brewer in her individual capacity are DISMISSED.
Plaintiffs’ section 1983 claims for retaliation against Hill and Brewer in their
individual capacities, section 1983 claims for free speech against Brewer in her individual
Capacity, and state tort claims against Brewer may proceed.
An Order consistent with the terms of the instant Memorandum Ruling will issue
herewith.
THUS DONE AND SIGNED in Shreveport, Louisiana this 26th day of January,
2021.
Law on [pln /
S. MAURICE HICKS, JR., CHIEF JUD
UNITED STATES DISTRICT COURT
12