Gonzales v. Dankel

United States District Court

EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

ANDREA COLLARD GONZALES, §

KEVIN WHITT, DYMPHNA FERREL, §

and BRITTANY HENDRICKSON, § Civil Action No. 4:22-cv-416

§ Judge Mazzant

Plaintiffs, §

§

v. §

§

AMY DANKEL, CHERRIE SILAS, §

ROBERT MONTGOMERY, FARREL §

RITCHIE, and BRYANT BAILEY,

Defendants.

ORDER AND MEMORANDUM OPINION

Pending before the Court is Defendants McKinney Officers Silas, Bailey, and Ritchie’s

Second Motion and Brief for Summary Judgment (Dkt. #33). Having considered the motion and

the relevant pleadings, the Court finds that Defendants’ motion should be GRANTED.

Additionally, pending before the Court is Plaintiffs’ Rule 56(d) Motion (Dkt. #42). Having

considered the motion and the relevant pleadings, the Court finds that Plaintiffs’ motion should

be DENIED.

BACKGROUND

I. Factual Background

Plaintiffs Kevin Whitt (“Whitt”), Dymphna Ferrel (“Ferrel”), Andrea Collard Gonzales

(“Gonzales”) and Brittany Hendrickson (“Hendrickson”) (collectively, “Plaintiffs”) attended

the McKinney Independent School District (“MISD”) Board of Trustees (the “Board”) meeting

on April 26, 2022 at the MISD Community Event Center (Dkt. #22 at p. 3). Plaintiffs attended the

meeting because they had learned that certain books in the MISD school libraries allegedly

contained sexually explicit material, and they wished to express their view that the books should

be removed from MISD school libraries (Dkt. #22 at p. 4).

Defendant Amy Dankel (“Dankel”), President of the MISD Board, opened the April 26

Board meeting with the following statement, in relevant part:

I would like to welcome everyone to the McKinney ISD monthly board meeting. As

a board, we would like to begin by establishing a few expectations. In light of issues

that we have experienced over the last several board meetings, let me start by saying

that we understand that many of you come to this meeting for different reasons.

Some of you are here for student recognition, some of you are here for public

comment, and others are here to learn more about the topics on the board agenda.

Regardless of your reason for being here, we want you to know – we want you to

feel welcome. I mean, we have said all along many school districts suffer from

apathy of the community and parents. And that certainly is not the case in

McKinney. We have a long-standing tradition in McKinney ISD of respect and

order at our school board meetings, regardless of how contentious or emotional a

topic might have been. In recent months, however, a demonstration of self-control

and decorum at meetings has deteriorated. Over the past five months, multiple

attendees have been escorted out of the meeting for disruptive and inappropriate

behavior.

…

Individuals have interrupted speakers, made rude comments to others in

attendance, and even accosted students and staff and parents.

…

Therefore, please be advised that decorum and order will be maintained during the

meeting. This includes enforcement of the Texas Penal Code and the Texas

Education Code sections which permit law enforcement to remove individuals who

disrupt a public meeting.

Consider this your only warning.

…

The individual will be escorted out, issued a criminal trespass citation, and will no

longer be permitted on MISD property.

…

The public comment of the meeting should be a place where students and

community members feel safe and speak on diverse topics and opinions, absent of

ridicule – ridicule and intimidation. If you would like to show your support for a

speaker during public input, simply raise your hand after they have spoken.

…

To be clear, outbursts or comments made in the audience during public comment

and during the meeting are simply not permitted. Holding side conversations during

the meeting, which is disruptive to other attendees and the board, is not permitted.

All of these are considered a disruption of the meeting and will result in being

removed and issued a citation. We’re confident that everyone will respect these

expectations. And if you feel you may struggle to do so, now would be the time to

exit, because we’re about to start public comment.

(Dkt. #33, Exhibit 1, Exhibit C).

Dankel designated Robert Montgomery, the MISD Director of Safety, Security, and

Transportation to “point out which members of the crowd were violating the rules she set so that

the McKinney Police would know who to remove from the meeting” (Dkt. #22 at p. 4). Plaintiffs

allege that, “prior to the meeting, Dankel and Montgomery had met with the McKinney Chief of

Police, Greg Conley, regarding police enforcement of her rules” (Dkt. #22 at p. 4). Sergeant Farrel

Ritchie (“Sergeant Ritchie”), Officer Bryant Bailey (“Officer Bailey”), and Officer Cherrie Silas

(“Officer Silas”) (collectively, the “McKinney Officers”) were present at the Board meeting (See

Dkt. #22).

According to Plaintiffs, those at the Board meeting wearing the color green supported the

removal of the books, while those wearing blue opposed removal of the books (Dkt. #22 at p. 5).

Plaintiffs contend that the opposing views of the “green group” and the “blue group” were

apparent from the content of their speech and were generally known by Defendants (Dkt. #22 at

p. 5). Plaintiffs allege that individuals in both groups violated the rules for the Board meeting set

forth by Dankel (Dkt. #22 at p. 5). Even so, Plaintiffs contend that “Montgomery only pointed out

individuals in the crowd for removal, who were wearing green, or who were otherwise know to

oppose the books” (Dkt. #22 at pp. 5–6). Plaintiffs further contend that no individuals wearing

blue or who were otherwise known to support the books at issue were identified to be removed,

“despite displaying similar behavior to those wearing green” (Dkt. #22 at p. 6).

A. Factual Background as to Whitt

Plaintiffs allege that during the public comment section of the meeting, a woman read an

excerpt from one of the books at issue in the MISD school libraries (Dkt. #22 at p. 6). Plaintiffs

state that “[a]fter the woman was finished reading and her time was up, Whitt said the word

‘disgusting.’ Upon hearing Whitt’s comment, Dankel stopped the meeting and asked

Montgomery to point out who made the comment. Montgomery pointed out Whitt, and Dankel

instructed the McKinney Police to remove Whitt from the meeting” (Dkt. #22 at p. 6). Sergeant

Ritchie and Officer Bailey removed Whitt from the meeting (Dkt. #22 at p. 6). Officer Silas was

not alleged to be involved (See Dkt. #22).

When Whitt attempted to attend the next MISD Board meeting on May 17, 2022, Sergeant

Ritchie issued Whitt a criminal trespass citation (Dkt. #22 at p. 10).

B. Factual Background as to Ferrel

Plaintiffs allege that Sergeant Ritchie and Officer Bailey “confronted Ferrel and instructed

her to leave” (Dkt. #22 at p. 8). Plaintiffs further allege that, despite Ferrel protesting that she had

done nothing wrong, Sergeant Ritchie and Officer Bailey escorted her from the Board meeting

(Dkt. #22 at p. 8). Officer Silas was not alleged to be involved (See Dkt. #22).

Plaintiffs’ Exhibit G shows that, after a man was removed from the Board meeting for

clapping, Ferrel stated “He clapped, that was his crime” (Dkt. #42, Exhibit G at 1:05).

Montgomery identified Ferrel as having disrupted the meeting and Sergeant Ritchie removed

Ferrel from the Board meeting (Dkt. #42, Exhibit G at 1:16, 1:33). Officer Bailey assisted Sergeant

Ritchie in removing Ferrel from the Board meeting (Dkt. #33 at p. 11).

Ferrel attended the next MISD Board meeting on May 17, 2022 without issue (Dkt. #22 at

p. 11). However, when she attended the May 31, 2022 special session, Plaintiffs allege that a

McKinney police officer instructed her to leave because she was being issued a criminal trespass

citation (Dkt. #22 at p. 11).

C. Factual Background as to Gonzales

Plaintiffs allege that Ferrel appeared nervous after Officer Silas approached her, so

Gonzales “made a statement to her in front of Officer Silas regarding First Amendment

constitutional rights and rights conferred to the public by the Texas Open Meetings Act” (Dkt.

#22 at p. 7). Plaintiffs further allege that Gonzales asked Officer Silas why she was approaching her

and that Gonzales informed Officer Silas that she was there to speak at the meeting (Dkt. #22 at p.

7). According to Plaintiffs, Gonzales showed Officer Silas her speaker form, and Officer Silas asked

her to leave (Dkt. #22 at p. 7–8). Gonzales protested that she had done nothing wrong and refused

to leave, and at that point, Officer Silas removed Gonzales from the Board meeting (Dkt. #22 at p.

8). Sergeant Ritchie and Officer Bailey are not alleged to be involved (See Dkt. #22).

Plaintiffs’ Exhibit G depicts Gonzales stating “she’s not interested in contracting with

you,” and “I’m her constitutional advocate.” (Dkt. #42, Exhibit G at 2:18). Plaintiffs’ Exhibit G

then shows that Montgomery pointed out Gonzales to be escorted from the Board meeting (Dkt.

#42, Exhibit G at 2:22). At that point, Officer Silas removed Gonzales from the Board meeting

(Dkt. #42, Exhibit G at 2:35).

According to Plaintiffs, Gonzales has not attempted to return to a Board meeting (Dkt. #22

at p. 11).

D. Factual Background as to Hendrickson

Plaintiffs allege that Hendrickson was not allowed to speak during the public comment

segment despite filling out the required form and being assured by the Assistant Superintendent of

Student Activities, Health, and Safety for MISD that it was “perfect” (Dkt. #22 at p. 9). At the

beginning of the public comment segment, Dankel explained that six people did not fill out the

entire form, so those people would not be allowed to speak (Dkt. #22 at p. 9). Hendrickson was

one of those who did not fill out her form correctly, and she was not allowed to speak (Dkt. #22 at

p. 10). Indeed, Plaintiffs allege that a review of the carbon copy of Hendrickson’s form showed that

“she had not checked a box on the form to indicate whether she was a student, staff member, MISD

resident, and/or MISD parent/guardian” (Dkt. #22 at p. 10; Dkt. #33, Exhibit E). The McKinney

Officers are not alleged to have removed Hendrickson from the Board meeting or to have otherwise

contacted Hendrickson (See Dkt. #22).

II. Procedural History

On September 23, 2022, the McKinney Officers filed their Second Motion and Brief for

Summary Judgment (Dkt. #33). On September 26, 2022, the McKinney Officers filed their

Amended Motion to Stay Discovery (Dkt. #35) requesting that discovery be stayed until the Court

ruled on their summary judgment motion (Dkt. #35 at p. 1). On October 6, 2022, Plaintiffs

responded in opposition to the motion to stay (Dkt. #41) but appear to agree not to seek any

discovery until the Court ruled on the motion for summary judgment (Dkt. #41 at p. 1) (“Plaintiffs

represent that they will not seek discovery in this matter pending the outcome of the motions for

summary judgment on file.”). However, Plaintiffs also stated that they “oppose[d] the Motion to

Stay to the same extent that they oppose the MSJ” (Dkt. #41 at p. 1).

On October 13, 2022, Plaintiffs filed their Response to Defendants McKinney Officers

Silas, Bailey, and Ritchie’s Second Motion and Brief for Summary Judgment (Dkt. #42). Notably,

in their response to the motion for summary judgment, Plaintiffs argue that they are entitled to

discovery under Federal Rule of Civil Procedure 56(d) because they have set forth a plausible basis

showing that additional facts could exist to defeat Defendants’ motion for summary judgment

(Dkt. #42 at pp. 15–16).

On December 8, 2022, the McKinney Officers filed their Reply for Second Motion for

Summary Judgment (Dkt. #48).

On January 27, 2023, the Court granted the Defendants McKinney Officers’ Amended

Motion to Stay Discovery (Dkt. #51) and indicated it would “take up Plaintiffs’ request for

discovery under Rule 56(d) in its decision on the summary-judgment motions because Plaintiffs

have alternatively requested relief under Rule 56(d) in their responses to those motions” (Dkt. #51

at p. 3). Accordingly, the Court will consider both the McKinney Officers’ summary judgment

motion and Plaintiffs’ Rule 56(d) motion below.

LEGAL STANDARD

The purpose of summary judgment is to isolate and dispose of factually unsupported claims

or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary judgment is proper

under Rule 56(a) of the Federal Rules of Civil Procedure “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(a). A dispute about a material fact is genuine when “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby Inc., 477

U.S. 242, 248 (1986). Substantive law identifies which facts are material. Id. The trial court “must

resolve all reasonable doubts in favor of the party opposing the motion for summary judgment.”

Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981).

The party seeking summary judgment bears the initial burden of informing the court of its

motion and identifying “depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials” that demonstrate the absence of a genuine issue of

material fact. FED. R. CIV. P. 56(c)(1)(A); Celotex, 477 U.S. at 323. If the movant bears the burden

of proof on a claim or defense for which it is moving for summary judgment, it must come forward

with evidence that establishes “beyond peradventure all of the essential elements of the claim or

defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where the nonmovant bears

the burden of proof, the movant may discharge the burden by showing that there is an absence of

evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325; Byers v. Dall. Morning News,

Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden, the nonmovant

must “respond to the motion for summary judgment by setting forth particular facts indicating

there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248–49). A

nonmovant must present affirmative evidence to defeat a properly supported motion for summary

judgment. Anderson, 477 U.S. at 257. Mere denials of material facts, unsworn allegations, or

arguments and assertions in briefs or legal memoranda will not suffice to carry this burden. Rather,

the Court requires “significant probative evidence” from the nonmovant to dismiss a request for

summary judgment. In re Mun. Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1982)

(quoting Ferguson v. Nat’l Broad. Co., 584 F.2d 111, 114 (5th Cir. 1978)). The Court must consider

all of the evidence but “refrain from making any credibility determinations or weighing the

evidence.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).

ANALYSIS

Plaintiffs allege that the McKinney Officers deprived them of their First Amendment rights

in violation of 42 U.S.C. § 1983 and acted in concert to deprive them of their First Amendment

rights in violation of § 1983 (Dkt. #22 at p. 11). Specifically, Plaintiffs allege that the McKinney

Officers “conspired to and did in, in fact, apply the facially neutral1 rules to them unequally because

of their viewpoint . . . for the purpose of (1) preventing Plaintiffs from speaking at the April Meeting

and/or (2) preventing them from speaking at future MISD Board meetings” (Dkt. #42 at p. 5).

Plaintiffs allege facts indicating that they did violate the facially neutral rules established by

Defendant Dankel but argue that the rules were only enforced for those that opposed the books at

issue. The McKinney Officers move for summary judgment on Plaintiffs’ § 1983 claims and,

alternatively, on the grounds of qualified immunity (Dkt. #33 at pp. 15–22, 26). The Court will first

consider whether the McKinney Officers are entitled to qualified immunity before turning to any

remaining summary judgment arguments.

I. The McKinney Officers are entitled to qualified immunity on Plaintiffs’ First

Amendment and conspiracy claims under § 1983.

Qualified immunity is a defense available to government officials sued for constitutional

violations pursuant to § 1983. Johnston v. City of Houston, 14 F.3d 1056, 1059 (5th Cir. 1994). Police

officers are government officials entitled to assert the defense of qualified immunity. Gagne v. City

1 Plaintiffs make clear that they do not dispute that “Defendant Dankel’s time, place, and manner rules were facially

neutral for the purpose to maintain decorum and order” (Dkt. #42 at p. 5) (citation omitted).

of Galveston, 805 F.2d 558, 559 (5th Cir. 1986). Qualified immunity shields government officials

from liability for civil damages so long as their conduct does not violate clearly established rights.

Johnston, 14 F.3d at 1059. The burden is on the plaintiff seeking to defeat qualified immunity to

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. Morgan v. Swanson, 659 F.3d 359, 371

(5th Cir. 2011). “Even if the government official’s conduct violates a clearly established right, the

official is nonetheless entitled to qualified immunity if his conduct was objectively reasonable.”

Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 879 (5th Cir. 2004). The

Court may consider the second analytical prong first. See Pearson v. Callahan, 555 U.S. 223 (2009);

Pasco v. Knoblauch, 566 F.3d 572, 579 (5th Cir. 2009).

With respect to the second prong, a defendant is entitled to qualified immunity when his

conduct was objectively reasonable in light of clearly established law at the time of the conduct at

issue. See Anderson v. Creighton, 483 U.S. 635, 639 (1987); Pfannstiel v. City of Marion, 918 F.2d

1178, 1184 (5th Cir. 1990) (overruled on other grounds by Martin v. Thomas, 973 F.2d 449 (5th Cir.

1992)); Mangieri v. Clifton, 29 F.3d 1012, 1015 (5th Cir. 1994) (“A police officer is entitled to claim

the cloak of qualified immunity ‘unless it is shown that, at the time of the incident, he violated a

clearly established constitutional right.’” (citations omitted)). If the Court determines that the

McKinney Officers’ conduct did not violate clearly established law, then qualified immunity will

shield them from civil liability.

The Court must examine whether the McKinney Officers’ actions were objectively

reasonable - that is, whether in light of the legal rules clearly established at the time, a reasonable

official would understand that what he is doing violates the rights at issue. Pfannstiel, 918 F.2d at

1178. If reasonable public officials could differ on the lawfulness of an officer’s actions, the officer

is entitled to qualified immunity. Id. The issue is an “objective (albeit fact-specific) question

whether a reasonable officer could have believed” that he or she was violating a person’s

constitutionally protected rights under the circumstances of the complained of action. See

Anderson, 483 U.S. at 641. Thus, the Court must determine whether there is a fact issue with

respect to whether the McKinney Officers’ conduct was objectively reasonable in light of clearly

established law regarding the First Amendment rights at issue.

A court should not reserve the objectively reasonable prong of the qualified immunity

standard as a fact question for the jury. Mangieri, 29 F.3d at 1016. Rather, “in evaluating a claim

of qualified immunity, the district court is to make a determination of the objective reasonableness

as a matter of law.” Id. That said, in those circumstances when there are “underlying historical

facts” in dispute that are “material to the resolution of the questions whether the defendants acted

in an objectively reasonable manner,” the court cannot make a determination on the objective

reasonableness and by extension, the applicability of qualified immunity. Id.; Lampkin v. City of

Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993) (“Rule 56 still has vitality in qualified immunity cases

if the underlying historical facts in dispute that are material to the resolution of the questions

whether the defendants acted in an objectively reasonable manner in view of the existing law and

facts available to them.”); Johnston v. City of Houston, 14 F.3d 1056, 1061 (5th Cir. 1994) (denying

summary judgment on the basis of qualified immunity where the parties had different versions of

what had occurred on material issues). Thus, the Court must determine whether there is a

“general agreement” as to the factual events that give rise to the lawsuit. Mangieri, 29 F.3d at

1016. If the Court finds a general agreement as to the material underlying facts, it then may

determine whether the McKinney Officers’ actions were objectively reasonable in light of clearly

established law.

A. The McKinney Officers are entitled to qualified immunity on Whitt, Gonzales,

and Ferrel’s First Amendment claims under § 1983.

There is a general agreement as to the material underlying facts pertaining to the McKinney

Officers. Based on the underlying facts, the McKinney Officers’ actions were objectively

reasonable in light of clearly established law regarding the First Amendment.

1. The underlying historical facts are not in dispute.

The underlying facts that are material to whether the McKinney Officers acted in an

objectively reasonable manner are undisputed. Indeed, there is video footage of the Board meeting

at issue (Dkt. #33, Exhibit 1, Exhibit J) and footage depicting Whitt, Ferrel, and Gonzales being

escorted from the school board meeting by the McKinney Officers (Dkt. #33, Exhibit 3, Exhibit 4,

Exhibit 5; Dkt. #42, Exhibit G). Therefore, there is no question as to the actions the McKinney

Officers took at the Board meeting.

2. The McKinney Officers’ actions were objectively reasonable in light of

clearly established law.

Because there is a general agreement as to the material underlying facts, the Court will now

evaluate whether the McKinney Officers’ actions were objectively reasonable in light of clearly

established law.

The Fifth Circuit has held that a police officer following orders to remove an individual

from a city council meeting is entitled to qualified immunity. See Heaney v. Roberts, 846 F.3d 795

(5th Cir. 2017). In Heaney, Heaney alleged a violation of his First Amendment rights after he was

silenced and ejected at a city council meeting. Id. at 798. At the meeting, Heaney registered to

speak during the time allowed for public comment. Id. Heany and the presiding chairman had a

disagreement during Heaney’s allotted time to speak, and the chairman directed the police officer

on duty to remove Heaney. Id. at 799. The police officer removed Heaney from the meeting. Id.

Heaney filed suit, alleging, among other things, that the police officer violated his First

Amendment rights. Id. at 799–800. The police officer filed a motion for summary judgment,

arguing that he was entitled to qualified immunity. Id. at 803. The district court granted summary

judgment in favor of the police officer on Heany’s First Amendment claim. Id. Heaney appealed,

arguing that the police officer was not entitled to qualified immunity because the police officer was

“the individual who actually effectuated the First Amendment violation by seizing and removing

[him].” Id.

The Fifth Circuit explained that the police officer “had no reason to believe that he was

violating Heaney’s First Amendment rights by following [the chairman’s] order.” Id. at 804.

Further, the Fifth Circuit stated that the police officer “was not required to cross-examine and

second-guess [the chairman] regarding his First Amendment motives before acting.” Id. Thus, the

police officer was “entitled to qualified immunity on the First Amendment claim because his

actions as sergeant-at-arms were not objectively unreasonable in light of clearly established law.”

Id.

Here, Plaintiffs allege that the McKinney Officers are “not entitled to qualified immunity

because they have acted in concert and conspired to exclude Plaintiffs Gonzales, Whitt, and Ferrel

from the April 26 Board meeting and future Board meetings” (Dkt. #22 at p. 15). Further, Plaintiffs

allege that the McKinney Officers “selectively enforced Dankel’s rules by only removing members

of the public whose viewpoint opposed Dankel’s viewpoint” and further “selectively enforced

Dankel’s rules by conspiring to issue criminal trespass warrants to anyone who was removed from

the April 26 Board meeting” (Dkt. #22 at p. 13). Plaintiffs argue that these “facts constitute[] a

violation of clearly established law under long-standing precedent” (Dkt. #42 at p. 12).

The McKinney Officers argue that they were merely maintaining order within the Board

meeting, and that there was no constitutional violation under the first prong of the qualified

immunity analysis (Dkt. #33 at p. 19). The McKinney Officers contend that because there was no

constitutional violation, the Court need not address the second “clearly-established” prong (Dkt.

#33 at p. 19). However, the Court believes in these circumstances that the qualified immunity

determination is best resolved by first looking to whether the McKinney Officers’ conduct was

objectively reasonable in light of clearly established law before turning to any constitutional

analysis.

i. The McKinney Officers’ actions in removing Whitt

It is undisputed that, after Whitt said the word “disgusting” and pursuant to the direction

given by both Dankel and Montgomery, Sergeant Ritchie and Officer Bailey removed Whitt from

the Board meeting (Dkt. #22 at p. 6; Dkt. #33 at p. 9). Officer Silas is not alleged to have been

involved in removing Whitt from the Board meeting (See Dkt. #22 at p. 6).

ii. The McKinney Officers’ actions in removing Ferrel

Plaintiffs allege that Sergeant Ritchie and Officer Bailey “confronted Ferrel and instructed

her to leave”(Dkt. #22 at p. 8). Plaintiffs further allege that, despite Ferrel protesting that she had

done nothing wrong, Sergeant Ritchie and Officer Bailey escorted her from the Board meeting

(Dkt. #22 at p. 8). Officer Silas is not alleged to have been involved in removing Ferrel from the

Board meeting (See Dkt. #22 at p. 8).

Even at the summary judgment stage, a court will assign greater weight “to the facts

evident from video recordings taken at the scene.” Buehler v. Dear, 27 F.4th 969, 979 (5th Cir.

2022). “[A court is] not required to accept factual allegations that are ‘blatantly contradicted’ by

such evidence.” Id. Instead, it will “view[] the facts in the light depicted by the videotape.” Id.

979–80. Accordingly, the Court looks to video evidence submitted by Plaintiffs for a more

comprehensive depiction of the facts. Plaintiffs’ Exhibit G shows that Montgomery identified

Ferrel as having disrupted the meeting (Dkt. #42, Exhibit G at 1:16). At that point, the video shows

that Sergeant Ritchie removed Ferrel from the Board meeting (Dkt. #42, Exhibit G at 1:33).

iii. The McKinney Officers’ actions in removing Gonzales

Plaintiffs allege that Gonzales “made a statement to her in front of Officer Silas regarding

First Amendment constitutional rights and rights conferred to the public by the Texas Open

Meetings Act” (Dkt. #22 at p. 7). According to Plaintiffs, Gonzales also showed Officer Silas her

speaker form, and at that point, Officer Silas asked Gonzales to leave (Dkt. #22 at p. 8). Gonzales

protested that she had done nothing wrong and refused to leave, and Officer Silas removed

Gonzales from the Board meeting (Dkt. #22 at p. 7).

As before, the Court looks to video evidence submitted by Plaintiffs for a more

comprehensive depiction of the facts. Buehler, 27 F.4th at 979. Plaintiffs’ Exhibit G depicts

Gonzales stating, “she’s not interested in contracting with you,” and “I’m her constitutional

advocate.” (Dkt. #42, Exhibit G at 2:18). Exhibit G then shows Montgomery pointing out Gonzales

to be escorted from the Board Meeting (Dkt. #42, Exhibit G at 2:22). At that point, the video shows

that Officer Silas removes Gonzales from the Board meeting (Dkt. #42, Exhibit G at 2:35).

3. Where the McKinney Officers’ actions were objectively reasonable, they are

entitled to qualified immunity.

In Heaney, the Fifth Circuit explained that a police officer would have “no reason to believe

that he was violating [an individual’s] First Amendment rights by following [the chairman’s]

order” to remove the individual from a meeting. 846 F.3d at 804. Moreover, the Fifth Circuit made

clear that a police officer is “not required to cross-examine and second-guess [the chairman who

gave the order] regarding his [or her] First Amendment motives before acting.” Id. In light of that

decision, a reasonable police officer would not understand that removing an individual from a

meeting at the direction of the School Board President or the Director of Safety, Security, and

Transportation violates the individual’s First Amendment right. Stated differently, Heaney

establishes that the McKinney Officers’ actions as sergeant-at-arms were not objectively

unreasonable in light of clearly established law. Therefore, Sergeant Ritchie and Officer Bailey are

entitled to qualified immunity on Whitt’s First Amendment claim under § 1983. Sergeant Ritchie

and Officer Bailey are entitled to qualified immunity on Ferrel’s First Amendment claim under §

1983. And Officer Silas is entitled to qualified immunity on Gonzales’s First Amendment claim

under § 1983.

4. Where the McKinney Officers were not personally involved in the alleged First

Amendment violation, they are entitled to qualified immunity.

“A plaintiff seeking to overcome qualified immunity ‘must specifically identify each

defendant’s personal involvement in the alleged wrongdoing.’” Jimerson v. Lewis, 94 F.4th 423,

428 (5th Cir. 2024) (citing Thomas v. Humfield, 32 F.3d 566, 1994 WL 442484, at *5 (5th Cir.

1994)). Here, Plaintiffs do not point to Officer Silas’s personal involvement in the removal of Whitt

or Ferrel from the Board meeting (See Dkt. #22 at p. 6–8). And Plaintiffs do not point to Sergeant

Ritchie or Officer Bailey’s personal involvement in the removal of Gonzales from the Board

meeting (See Dkt. #22 at p. 7–8). Therefore, Officer Silas is entitled to qualified immunity on Whitt

and Ferrel’s First Amendment claims under § 1983. And Sergeant Ritchie and Officer Bailey are

entitled to qualified immunity on Gonzales’s First Amendment claim under § 1983.

B. The McKinney Officers are entitled to qualified immunity on Plaintiff

Hendrickson’s First Amendment claim under § 1983.

Hendrickson’s allegations arises from circumstances different from that of Whitt, Ferrel,

and Gonzales. Hendrickson was among those not allowed to speak during the public comment

segment of the Board meeting (Dkt. #22 at p. 10). Dankel determined that Hendrickson could not

speak because Hendrickson did not fill out her speaker form correctly (Dkt. #22 at p. 9).

It is undisputed that Hendrickson did not fill out her speaker form correctly (Dkt. #22 at p.

10; Dkt. #33 at p. 13). It is also undisputed that the McKinney officers did not remove Hendrickson

from the meeting (See Dkt. #22; Dkt. #33 at p. 13). Nevertheless, Hendrickson alleges that the

McKinney Officers deprived her of her First Amendment rights.

The McKinney Officers assert that they are entitled to qualified immunity on Plaintiffs’ §

1983 claims (Dkt. #33 at p. 18–22, 26). As previously discussed, “[a] plaintiff seeking to overcome

qualified immunity ‘must specifically identify each defendant’s personal involvement in the

alleged wrongdoing.’” Jimerson, 94 F.4th at 428 (citing Thomas, 1994 WL 442484, at *5).

Here, it is undisputed that the McKinney Officers never came into contact with

Hendrickson at the Board meeting. Therefore, Hendrickson cannot identify the McKinney

Officers’ personal involvement in any alleged deprivation of her First Amendment rights under §

1983. Accordingly, the McKinney Officers are entitled to qualified immunity on Hendrickson’s

First Amendment claim under § 1983.

C. The McKinney Officers are entitled to qualified immunity on Plaintiffs Whitt,

Gonzales, Ferrel, and Hendrickson’s conspiracy claims under § 1983.

Plaintiffs allege that the McKinney Officers conspired with Dankel and Montgomery to

deprive Plaintiffs of their First Amendment rights in violation of § 1983.

“A conspiracy may be charged under section 1983 as the legal mechanism through which

to impose liability on all of the defendants without regard to who committed the particular act.”

Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995) (citation omitted). For a conspiracy claim under

section 1983, a plaintiff must prove “(1) the existence of a conspiracy involving state action and (2)

a deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy.”

Armstrong v. Ashley, 60 F.4th 262, 280 (5th Cir. 2023) (quoting Pfannstiel, 918 F.2d at 1187). “To

establish a cause of action based on conspiracy a plaintiff must show that the defendants agreed to

commit an illegal act.” Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982).

At the summary judgment stage on a § 1983 conspiracy claim, a court “must look first to

determine the objective reasonableness of the state action which is alleged to have caused harm to

the plaintiff. Only if that state action is determined not to be objectively reasonable should we look

to whether the officer’s actions were taken pursuant to a conspiracy.” Pfannstiel, 918 F.2d at 1187.

“If qualified immunity bars [a plaintiff’s] underlying First Amendment claim, there is no need to

reach the issue of whether a conspiracy existed to engage in those actions.” Bevill v. Fletcher, 26

F.4th 270, 275 (5th Cir. 2022). This is because the conspiracy claim is not actionable. See Hale, 45

F.3d at 921 (“[A]ll officers alleged to have violated [the plaintiff’s] First Amendment rights are

entitled to qualified immunity. Therefore, the conspiracy claim is not actionable.”).

If the McKinney Officers’ removal of Whitt, Gonzales, and Ferrel were the only actions

alleged to have deprived them of their First Amendment rights, an analysis of Plaintiffs’ § 1983

conspiracy claim against the McKinney Officers’ would be straightforward. The McKinney

Officers are entitled to qualified immunity on Plaintiffs Whitt, Gonzales, Ferrel, and

Hendrickson’s underlying First Amendment claims because the McKinney Officers’ conduct was

objectively reasonable, so there would be no need to determine whether the McKinney Officers

were a part of a conspiracy to deprive Plaintiffs of their First Amendment rights. The conspiracy

claim against the McKinney Officers would not be actionable.

However, in these circumstances, there are additional state actions by the McKinney

Officers’ alleged co-conspirators that are said to have deprived Plaintiffs of their First Amendment

rights as well. Those additional state actions are: 1) Dankel’s direction to Montgomery to have the

McKinney Officers remove Whitt; 2) Montgomery’s direction to the McKinney Officers to

remove Whitt, Ferrel, and Gonzales; and 3) Dankel’s determination that Hendrickson would not

be allowed to speak during the public comment segment. And as more thoroughly explained in the

Court’s Order on Defendants’ Dankel and Montgomery’s Motion for Summary Judgment on

Qualified Immunity, there is a fact issue regarding Dankel and Montgomery’s subjective intent in

their actions that precludes summary judgment on their qualified immunity defenses for Whitt,

Ferrel, and Gonzales’s First Amendment claims.

Therefore, the Court moves forward in its qualified immunity analysis for the McKinney

Officers to determine whether Plaintiffs have specifically pointed to the McKinney Officers’

personal involvement in any alleged conspiracy to deprive Plaintiffs of their First Amendment

rights. As evidence of an agreement to do so, Plaintiffs’ put forth a declaration of Chad Green

(“Green”).

Green states:

When the Board met in December 2021, I arrived at the MISD Community Events

Center roughly twenty to thirty minutes prior to the Board meeting start time. As I

walked through the office area located adjacent to the meeting hall, I observed Amy

Dankel meeting with Shawn Pratt and someone who appeared to be a high-ranking

member of the McKinney Police Department.

(Dkt. #38, Exhibit A). Green further states that he believes that member of the police department

was Greg Conley, the McKinney Chief of Police, but he “cannot be certain” (Dkt. #38, Exhibit

A). Plaintiffs allege that this member of the police department observed by Green was “the

[McKinney Officers’] superior” (Dkt. #42 at p. 15). Plaintiffs then allege that the McKinney

Officers were “aware of and participated in this conspiracy as indicated by their conduct” (Dkt.

#42 at p. 15). And that “perhaps the [McKinney Officers] were even selected for security at the

meeting because their political views align with Dankel’s on the issue of the books” (Dkt, #42 at

p. 17).

However, to reiterate, “[a] plaintiff seeking to overcome qualified immunity ‘must

specifically identify each defendant’s personal involvement in the alleged wrongdoing.’” Jimerson

v. Lewis, 94 F.4th at 428 (citing Thomas, 1994 WL 442484, at *5). Here, Plaintiffs have not

specifically identified any personal involvement of the McKinney Officers in the alleged

conspiracy, apart from their removal of Whitt, Ferrel, and Gonzales, which was deemed objectively

reasonable conduct. Rather, Plaintiffs have merely speculated that the McKinney Chief of Police

or other high-ranking member of the department was involved in the alleged conspiracy and then

recruited the McKinney Officers to become involved in the alleged conspiracy as well. That is not

enough to overcome a qualified immunity defense. Therefore, the McKinney Officers are entitled

to qualified immunity on Plaintiffs Whitt, Gonzales, Ferrel’s § 1983 conspiracy claims.

As to Hendrickson’s § 1983 conspiracy claim, the McKinney Officers’ entitlement to

qualified immunity is two-fold. First, they are entitled to qualified immunity for the reasons stated

above—Plaintiffs have not pointed to any personal involvement of the McKinney Officers in any

agreement to deprive Hendrickson of her First Amendment rights. Additionally, as more

thoroughly explained in the Court’s Order on Defendants’ Dankel and Montgomery’s Motion for

Summary Judgment on Qualified Immunity, Dankel is entitled to qualified immunity for her action

in determining that Hendrickson would not be allowed to speak during the public comment

segment because this was not a violation of Hendrickson’s constitutional rights as a matter of law.

Accordingly, Hendrickson’s § 1983 conspiracy claim against Dankel and her alleged co-

conspirators, the McKinney Officers, is not actionable.

II. Plaintiffs have not met their burden under Rule 56(d).

In its order granting Defendants’ McKinney Officers Amended Motion to Stay Discovery

(Dkt. #51), the Court indicated it would “take up Plaintiffs’ request for discovery under Rule 56(d)

in its decision on the summary-judgment motions because Plaintiffs have alternatively requested

relief under Rule 56(d) in their responses to those motions” (Dkt. #51 at p. 3). Specifically,

Plaintiffs move for a continuance to conduct additional discovery on the issue of qualified

immunity under Rule 56(d) in the event that their evidence is not sufficient to defeat summary

judgment (Dkt. #42 at p. 3).

Rule 56(d) provides: “If a nonmovant shows by affidavit or declaration that, for specified

reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer

considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take

discovery; or (3) issue any other appropriate order.” FED. R. CIV. P. 56(d).

Rule 56(d) “discovery motions are broadly favored and should be liberally granted.” Raby

v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (internal quotation marks omitted). The Court

generally should grant “a continuance for additional discovery if [the nonmovant]: (i) requested

extended discovery prior to [the Court’s] ruling on summary judgment; (ii) placed [the Court] on

notice that further discovery pertaining to the summary judgment motion was being sought; and

(iii) demonstrated to [the Court] with reasonable specificity how the requested discovery pertained

to the pending motion.” Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1291 (5th Cir. 1994) (citations

omitted) (construing former FED. R. CIV. P. 56(f)).

“To succeed on a Rule 56(d) motion, . . . the party requesting discovery must provide an

affidavit or declaration in support of the request that ‘state[s] with some precision the materials he

hope[s] to obtain with further discovery, and exactly how he expect[s] those materials w[ill] assist

him in opposing summary judgment.’” Whitener v. Pliva, Inc., 606 Fed. App’x 762, 765 (5th Cir.

2015) (quoting Krim v. BancTexas Grp., Inc., 989 F.2d 1435, 1443 (5th Cir. 1993)). And the

nonmovant must “present specific facts explaining his inability to make a substantive response . .

. and specifically demonstrating how postponement of a ruling on the motion will enable him, by

discovery or other means, to rebut the movant’s showing of the absence of a genuine issue of fact”

and defeat summary judgment. Washington, 901 F.2d at 1285 (internal quotations and citations

omitted) (construing former FED. R. CIV. P. 56(f)). The nonmovant “may not simply rely on vague

assertions that additional discovery will produce needed, but unspecified, facts.” Raby, 600 F.3d

at 561 (quoting SEC v. Spence & Green Chem. Co., 612 F.2d 896, 901 (5thCir. 1980)). “Rather, a

request to stay summary judgment under [Rule 56(d)] must ‘set forth a plausible basis for believing

that specified facts, susceptible of collection within a reasonable time frame, probably exist and

indicate how the emergent facts, if adduced, will influence the outcome of the pending summary

judgment motion.’” Id. (quoting C.B. Trucking, Inc. v. Waste Management Inc., 137 F.3d 41, 44 (1st

Cir. 1998)).

The party requesting the additional discovery or extension also must show that relevant

discovery has been diligently pursued. See Wichita Falls Office Assocs. v. Banc One Corp., 978 F.2d

915, 919 (5th Cir. 1992). The Court may properly deny a Rule 56(d) motion where the movant has

“not pursued discovery diligently enough to warrant relief under Rule 56(d).” McKay v. Novartis

Pharm. Corp., 751 F.3d 694, 700 (5th Cir. 2014) (internal quotation marks omitted). Further, “[i]f

it appears that further discovery will not provide evidence creating a genuine issue of material fact,

the district court may grant summary judgment.” Raby, 600 F.3d at 561 (quoting Access Telecom.,

197 F.3d at 720).

The Court may also properly deny a Rule 56(d) where “the party filing the Rule 56(d)

motion has failed to identify sufficiently specific or material evidence to affect a summary judgment

ruling.” Smith v. Reg’l Transit Auth., 827 F.3d 412, 423 (5th Cir. 2016); accord Mendez v. Poitevent,

823 F.3d 326, 337 (5th Cir. 2016) (affirming denial of Rule 56(d) motion where Plaintiffs “vaguely

assert[ed] . . . that deposing the witnesses would have permitted [plaintiffs] to further discover the

facts from the witnesses, ” and “did not demonstrate below how the additional discovery [would]

likely create a genuine issue of material fact . . . “[i]nstead, the result of the discovery they sought

was wholly speculative” (citations and internal quotation marks omitted)).

Here, the Court finds that Plaintiffs have not met their burden under Rule 56(d). The Court

is not convinced that further discovery will provide evidence creating a genuine issue of material

fact as to the McKinney Officers’ actions with respect to Plaintiffs’ § 1983 claims. Therefore,

Plaintiff’s Rule 56(d) motion should be denied.

CONCLUSION

It is ORDERED that Defendants Sergeant Farrel Ritchie, Officer Bryant Bailey, and

Officer Cherrie Silas’s Second Motion and Brief for Summary Judgment (Dkt. #33) is

GRANTED.

It is further ORDERED that Plaintiffs Kevin Whitt, Dymphna Ferrel, Andrea Collard

Gonzales, and Brittany Hendrickson’s § 1983 claims and §1983 conspiracy claims against

Defendants Sergeant Farrel Ritchie, Officer Bryant Bailey, and Officer Cherrie Silas are

DISMISSED with PREJUDICE.

It is further ORDERED that Plaintiffs Kevin Whitt, Dymphna Ferrel, Andrea Collard

Gonzales, and Brittany Hendrickson’s Rule 56(d) Motion (Dkt. #42) is DENIED.

IT IS SO ORDERED.