# Berry v. Texas Woman's University

> District Court, E.D. Texas · March 25, 2021

URL: https://www.frixlaw.com/law-library/cases/10443938

## Case

- **Court:** District Court, E.D. Texas
- **Decided:** March 25, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10443938

## How later opinions describe it (automated extraction)

- reversing a district court’s denial of qualified immunity because the court “defined clearly established law too generally for any controlling relevance in this case”
- rejecting as too general the plaintiffs’ argument that there is a clearly established right “to be free from deadly force where he was not attempting to flee and did not pose an immediate threat to the officers, nor anyone else”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

D’ANDRE F. BERRY, §
§
Plaintiff, § CASE NO. 4:19-CV-00409-RWS-CAN
v. §
§
TEXAS WOMAN’S UNIVERSITY, ET §
AL., §
§
Defendants. §

ORDER

Plaintiff D’Andre F. Berry (“Berry”) asserts five claims in his live pleading. Docket
No. 38. Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) and
12(b)(6). Docket No. 40. The Magistrate Judge recommends granting in part and denying in part
the motion. Docket No. 49 (“Report and Recommendation”). Berry filed an objection to the
Report and Recommendation. Docket No. 50. The Magistrate Judge ordered Defendants to file a
response, but Defendants declined to do so. Docket No. 51. The Court conducted a de novo review
of the Magistrate Judge’s findings and conclusions.
BACKGROUND
Berry originally filed his Complaint in the Eastern District of Texas on June 4, 2019.
Docket No. 2. After the Court dismissed certain claims, Berry filed an Amended Complaint.
Docket Nos. 37, 38. The live pleading asserts five claims: (1) under § 1983 for prospective relief
against the Individual Defendants in their official capacities; (2) under § 1983 for monetary
damages against the Individual Defendants in the individual capacities; (3) under Title VII against
Defendant TWU; (4) under the FMLA for prospective relief against Defendant TWU and the
Individual Defendants in their official capacities; and (5) under the FMLA for monetary damages
against the Individual Defendants in their individual capacities. Docket No. 38. Defendants’
Second Motion to Dismiss asks the Court to dismiss Berry’s claims for lack of subject-matter
jurisdiction, qualified immunity, and failure to state a claim. Docket No. 40.
REPORT AND RECOMMENDATION

On February 22, 2021, the Magistrate Judge recommended the Court grant in part and deny
in part Defendants’ Second Motion to Dismiss. Docket No. 49. Specifically, the Magistrate Judge
recommends (1) Berry’s § 1983 claims against the Individual Defendants in their individual
capacities be dismissed with prejudice on the basis of qualified immunity; (2) Berry’s § 1983 claim
against the Individual Defendants in their official capacities as to Berry’s requests related to
reinstatement/rehire survive dismissal; (3) all other relief requested in connection with Berry’s
§ 1983 claim against the Individual Defendants in their official capacities has already been
dismissed or should be dismissed without prejudice as barred by Eleventh Amendment immunity;
and (4) Berry’s FMLA and Title VII claims remain.
Berry has raised a single objection to the Report and Recommendation. Berry objects to

the recommendation for dismissal of his claims under 42 U.S.C § 1983 against the Individual
Defendants in their individual capacities on the basis of qualified immunity. Notably, the
Magistrate Judge explicitly declined to make a recommendation on Berry’s FMLA claims related
to qualified immunity because “the Individual Defendants do not move for dismissal of Plaintiff’s
FMLA claims based on qualified immunity[.]” Docket No. 49 at 18. But as to Berry’s § 1983
claims, the Magistrate Judge detailed Berry’s general allegations, lack of authority cited in his
Rule 7(a) Reply, and failure “to delineate such specific, concrete facts or to provide precedent in
the Supreme Court or this circuit that demonstrates the Individual Defendants’ conduct violated
clearly established law.” Id. at 18–20. For such reasons, the Magistrate Judge concluded that
Berry failed to carry his burden of rebutting the Individual Defendants’ assertion of qualified
immunity. Id. at 18–22.
DE NOVO REVIEW
After entry of the report, Berry timely filed an objection. Docket No. 50. As set forth

supra, he raises a single objection: the Magistrate Judge incorrectly concluded that Berry “declined
to delineate such specific, concrete facts or to provide precedent in the Supreme Court o[r] this
circuit that demonstrates the Individual Defendants’ conduct violated clearly established law.” Id.
at 3. It is Berry’s belief that he met his burden “in overcoming [the Individual Defendants’]
defense of qualified immunity in their individual capacities under a Section 1983 claim.” Id. at 3–
4. In support, he points to the following allegations in his live pleading that (a) William Patten
and Anthony Yardley were his “direct supervisors”; (b) Anthony Yardley “was the Director of
Employee Relations, HR & Equity”; and (c) William Patten violated the FMLA Compliance
Policy. Id. at 4. Thus, according to Berry, “Yardley and Patten, by virtue of their positions with
TWU, and pursuant to the policies of TWU relating to the FMLA, would be well aware of [Berry’s]

FMLA protections, a statutory and constitutional right.” Id. at 5. Berry points to no caselaw
supporting his objection. And further his objection is devoid of any arguments about the remaining
four Individual Defendants against whom this claim is asserted: Tomlinson, Benavides, Ramirez,
and Sheeder. Dismissal as to these four Individual Defendants is warranted, and the Court
addresses Berry’s objection directed to Yardley and Patten.
“To defeat a claim of qualified-immunity, the plaintiff has the burden to demonstrate the
inapplicability of the defense.” Mayfield v. Currie, 976 F.3d 482, 486 (5th Cir. 2020) (quoting
McLin v. Ard, 866 F.3d 682, 689 (5th Cir. 2017)). “The plaintiff must show ‘(1) that the official
violated a statutory or constitutional right, and (2) that the right was clearly established at the time
of the challenged conduct.’” Mayfield, 976 F.3d at 486 (quoting Whitley v. Hanna, 726 F.3d 631,
638 (5th Cir. 2013)). A court has discretion as to “which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the particular case at
hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

The Court starts with the second prong—whether the right was clearly established. “The
‘clearly established’ prong is difficult to satisfy.” Cunningham v. Castloo, 983 F.3d 185, 191 (5th
Cir. 2020) (citing Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019)). “A clearly established
right is one that is ‘sufficiently clear that every reasonable official would have understood that
what he is doing violates that right.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Reichle v.
Howards, 566 U.S. 658, 664 (2012)). Whether a right is clearly established “must be undertaken
in light of the specific context of the case, not as a broad general proposition.” Mullenix, 577 U.S.
at 12 (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)). Thus, a court should
not “define clearly established law at a high level of generality.” Mullenix, 577 U.S. at 12 (quoting
Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011)). Merely referencing a constitutional or statutory

right is not sufficient. Rather, a court “must frame the clearly established law question with
specificity and granularity” because “the dispositive question is whether the violative nature of
particular conduct is clearly established.” Brown v. Tarrant Cty., Tex., 985 F.3d 489, 495 (5th
Cir. 2021) (quoting Morrow, 917 F.3d at 874–75) (alterations omitted) (emphasis in original).
To reiterate, Berry argues “[a]ny reasonable official working for a university would
understand or know of the existence of § 1983 and the FMLA,” “the Individual Defendants’
actions were not objectively reasonable and that a reasonable official would understand that what
they were doing violated Plaintiff’s § 1983 and FMLA rights.” Docket No. 43 at 20–21. Berry
broadly points to accompanying allegations that two of the Individual Defendants were his
supervisors, violated the FMLA Compliance Policy, and would have been aware of the FMLA
protections.
But that is not enough. “[G]eneral propositions of law defined at ‘high levels of generality’
are insufficient to define clearly established law for purposes of defeating qualified immunity.”

Perniciaro v. Lea, 901 F.3d 241, 256 (5th Cir. 2018) (quoting al–Kidd, 563 U.S. at 742) (alteration
omitted). Indeed, the Fifth Circuit has continually warned lower courts not to define clearly
established law too generally. See, e.g., Cunningham, 983 F.3d at 193 (reversing a district court’s
denial of qualified immunity because the court “defined clearly established law too generally for
any controlling relevance in this case”); Garcia v. Blevins, 957 F.3d 596, 601 (5th Cir. 2020)
(rejecting as too general the plaintiffs’ argument that there is a clearly established right “to be free
from deadly force where he was not attempting to flee and did not pose an immediate threat to the
officers, nor anyone else”).
Berry also points to no caselaw related to his claims under § 1983 and to support his
objection. That presents a problem because it is his “burden to find a case in his favor that does

not define the law at a ‘high level of generality.’” Vann v. City of Southaven, Miss., 884 F.3d 307,
310 (5th Cir. 2018) (citing Cass v. City of Abilene, 814 F.3d 721, 732–33 (5th Cir. 2016)). Without
more, the Court is unable to discern “whether the violative nature of [this] particular conduct is
clearly established.” See Brown, 985 F.3d at 495 (emphasis added). This is because “clearly
established law must be ‘particularized’ to the facts of the case.” White v. Pauly, 137 S. Ct. 548,
552, 196 L. Ed. 2d 463 (2017) (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034,
97 L.Ed.2d 523 (1987)). Otherwise, a plaintiff “would be able to convert the rule of qualified
immunity into a rule of virtually unqualified liability simply by alleging violation of extremely
abstract rights.” White, 137 S. Ct. at 552 (citing Anderson, 483 U.S. at 639).
Consider Bernabe v. Rosenbaum. There, the plaintiff sued an official under § 1983 and
argued “it was clearly established that tasing someone who is not actively resisting arrest and
unarmed violates the Fourth Amendment.” No. 4:18-CV-00580-O, 2021 WL 1056453, at *10
(N.D. Tex. Mar. 18, 2021). The Northern District of Texas, reiterating that it is improper to define

“clearly established law” at “a high level of generality,” stated that the plaintiff “must point to case
law clearly establishing Defendants acted unreasonably based on facts similar to the particular
circumstances they faced—the use of a taser where a person suspected of a felony leads officers
on an extended foot chase and ignores repeated warnings to stop and get to the ground.” Id.
(emphasis added). “Reciting an abstract right at a high level of generality will not suffice.” Ehlers
v. City of Rapid City, 846 F.3d 1002, 1008 (8th Cir. 2017) (citing Anderson, 483 U.S. at 639–40).
Berry’s more “general proposition[s are] of little help in determining whether the violative
nature of particular conduct is clearly established.” McCreary v. Richardson, 738 F.3d 651, 656
(5th Cir. 2013) (quoting al–Kidd, 563 U.S. at 742). Berry has failed to carry his burden; the
Individual Defendants in their individual capacities are entitled to qualified immunity as to Berry’s

§ 1983 claims. See generally Spivey v. Wilson, No. 5:17-CV-00094-RWS, 2019 WL 5095629, at
*11 (E.D. Tex. Sept. 27, 2019) (concluding the defendants were entitled to qualified immunity
when the plaintiff “failed to meet his burden of showing the violation of a clearly established
right”).
CONCLUSION
Having conducted a de novo review, the Court finds Berry’s objection is without merit and
OVERRULES it. The Court is also of the opinion that the findings and conclusions of the
Magistrate Judge are correct. The Court hereby ADOPTS the Report and Recommendation of the
United States Magistrate Judge (Docket No. 49) as the findings and conclusions of this Court.
Accordingly, it is hereby
ORDERED that Defendants’ Second Motion to Dismiss (Docket No. 40) is GRANTED-
IN-PART and DENIED-IN-PART, as follows:
(1) Berry’s § 1983 claims against the Individual Defendants in their individual capacities
are DISMISSED WITH PREJUDICE on the basis of qualified immunity;
(2) Berry’s § 1983 claim against the Individual Defendants in their official capacities as to
Berry’s requests related to reinstatement/rehire remains;
(3) All other relief requested in connection with Berry’s § 1983 claim against the Individual
Defendants in their official capacities has already been dismissed or is DISMISSED
WITHOUT PREJUDICE as barred by Eleventh Amendment immunity; and
(4) Berry’s FMLA and Title VII claims remain.
It is further
ORDERED that, within fourteen days of the date of this Order, the Parties shall jointly
submit a proposed scheduling order, exchange their initial disclosures, and communicate with the
Magistrate Judge to schedule a management or scheduling conference.

So ORDERED and SIGNED this 25th day of March, 2021.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10443938. Public record. Not legal advice.