Opposition Brief — Shinn ex rel. Shinn v. College Station Independent School District

Supreme Court, U.S. |

FILED |

|

APR 11 1997 !

No. 97-1450 |

ae OFFICE OF THE CLERK !

———— le

In The

Supreme Court of the United States

October Term, 1996

7 —

JOYCE YVONNE SHINN,

on behalf of Jonathan Daniel Shinn,

and

JOHN EUGENE SHINN,

on behalf of Jonathan Daniel Shinn,

Petitioners,

Vs.

COLLEGE STATION INDEPENDENT SCHOOL

DISTRICT, KENNETH WILBANKS, RAY CHANCELLOR,

BOB CURRY and WILLIAM DORNBURG,

Respondents.

ee

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

+

RESPONDENTS’ BRIEF IN OPPOSITION

-¢

Tom M. Davis, Jr.

Counsel of Record for Respondents

Davis & SHANK, P.C.

1415 Louisiana, Suite 4200

Houston, Texas 77002

(713) 659-1010

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

QUESTION NUMBER ONE:

Whether the Fifth Circuit Court of Appeals erred in hold-

ing that Petitioners failed to state a proper claim or

defense under 42 U.S.C. § 1983 regarding:

A. Jonathan Shinn’s liberty interest in being free

from emotional harassment;

B. Jonathan Shinn’s liberty interest in being free

from punishment absent personal guilt;

C. Jonathan Shinn’s exercise of protected speech;

and

D. Respondents’ entitlement to qualified immunity.

QUESTION NUMBER TWO:

Whether the Fifth Circuit Court of Appeals erred in hold-

ing that Petitioners’ appeal was frivolous.

il

LIST OF INTERESTED PARTIES

The Petitioners in this case are Joyce Yvonne Shinn

and John Eugene Shinn, on behalf of Jonathan Daniel

Shinn. Petitioners’ counsel of record is Laurence W.

Watts. Upon information and belief, Wayne T. Rife of

West, Webb, Allbritton & Gentry is also counsel for Peti-

tioners.

Respondents are correctly identified in the caption.

Tom M. Davis, Jr. of Davis & Shank, P.C. is counsel of

record for all respondents. Juliann H. Panagos and M.

Lucille Anderson are also counsel for respondents. Each

of the respondents join in this brief in opposition.

lee TET ALOE

EDN O MOINS TH LY

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ili

TABLE OF CONTENTS

Page

Questions Presented for Review ................... i

re re il

Rs a OL a te se ck Wow oan ee RA iii

ne as pad nk ek bab ee EN Oem Vv

ee i uae eee wan heaseew ress 1]

A. Course of Proceedings and Disposition of the

SEE I rea Ge eT re ree ere 1

B. Correction of Misstatements in the Petition... 2

meneons POS Tretia TS VET ww. oe ce cee 4

I. The Court of Appeals Correctly Held That Peti-

tioners Failed to State A Proper Claim Under 42

ae UE NS oe oa hae ocd hash 4 bk owed Rees 5

A. Petitioners Failed To State a Proper Claim

Under 42 U.S.C. § 1983 Regarding Jonathan

Shinn’s Alleged Liberty Interest in Being

“Free from Emotional Harassment.” ....... 8

B. Petitioners Failed to State a Proper Claim

Under 42 U.S.C. § 1983 Regarding Jonathan

Shinn’s Alleged Liberty Interest in Being

Free from Punishment Absent Personal Guilt

ER eee rer ee rey oe hee E eee ere ty emer 9

C. Petitioners Failed to State a Proper Claim

Under 42 U.S.C. § 1983 Regarding Jonathan

Shinn’s Alleged Exercise of His Right to Pro-

SN I Siu Sk itn Kk noe vd cacbase nn eha's 10

D. Petitioners Failed to State a Proper Claim

Under 42 U.S.C. § 1983 Regarding Respondents

Wilbanks, Chancellor, Curry and Dornburg’

Entitlement to Qualified Immunity .......... 12

iv

TABLE OF CONTENTS - Continued

Page

II. The Court of Appeals Correctly Held That Peti-

tioners’ Appeal was Frivolous ................. 15

RN Fos cs See ee ean CauROEREER ete 19

:

é

§

TABLE OF CITATIONS

CASES CITED:

Anderson v. Creighton, 483 U.S. 635 (1987) ........... 12

Blue v. United States Dept. of the Army, 914 F.2d 525

(4th Cir. 1990), cert. denied, 499 U.S. 959, 111

PRs TOD LED ORD: cx 05 sana pad ve Landay e saree ens 18

Christiansburg Garment Co. v. EEOC, 434 U.S. 412

EWN hard kes oaek oS bE REDS CADE ORS DLE EERE LOSS 15

Continental Casualty Company v. McAllen Indepen-

dent School District, 850 F.2d 1044 (5th Cir. 1988)

NOS CUTE i565 ee uaa BS oa a ee l6a

Crain v. C.I.R., 737 F.2d 1417 (5th Cir. 1984)......... 16

Doe v. Taylor I.S.D., 15 F.3d 443 (5th Cir. 1994), cert.

denied, __ U.S. __, 130 L.Ed.2d 25, 115 S.Ct. 70

| PE EEE Te oC Rae ee eg ee ee IN tat OE Be Nae 8

Eugene v. Alief Independent School District, 65 F.3d

1299 (5th Cir. 1995), cert denied, 134 L.Ed. 782,

Fa Cs SO CHEE 05 ks sae eckes wareUA aon 13, 16a

Fowler v. Smith and Angelton Independent School

puttrict, GE F.3d 126 (Sth (ie. 1998S) oo ccc sis. 16a

Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075

(5th Cir.), cert. denied, __ U.S. ___, 116 S.Ct. 532

A Da geeees eran go Ee mer pam nat Cire One 12

Haverkamp v. Unified Sch. Dist. No. 380, 689 F.Supp.

Fe SPI SOE 84 s's ee hepa ah yes eleriniaes 11

Jefferson v. Ysleta Independent School District, 817

Pee ae CON LOM, SOI os oo hak bo kw tah eee 6, 9

Kline v. North Texas State University, 782 F.2d 1229

EP ah Ris = erase ess 04a we reeds Fes aelaa tin 18a

vi

TABLE OF CITATIONS - Continued ;

Langoria v City of Bay City, Texas, 779 F.2d 1136 (Sth |

Re: BOE .0sn kane kth needae heeaelaeeAeMene ens 17a

Lopez v. Houston Independent School District, 817

gr 8 fe pee ere reee ee re 9, 14

McAdams v. Matagorda County Appraisal District,

oo Ee ee | errr rT rere 18a

Meadowbriar Home For Children, Inc. v. Gunn, 81

ae ee GN SG TI i inh sans saskosaepeneeais 14 :

Montgomery v. Trinity Independent School District,

pe BB Be ey See er ree 17a

Noyola v. Texas Department of Human Resources, 846 i

ae Sk GME. RD esc kineua deus eccacavep es 17a :

Olympia Co., Inc. v. Celotex Corp., 771 F.2d 888 (5th

Cir. 1985), cert. denied, 493 U.S. 818 (1989) ....... 15 |

Spacek v. Charles, 928 S.W.2d 88 (Tex. App. -

Houston [14th Dist.] 1996, n.w.h.)....... 3. & 7: & io

St. Ann v. Palisi, 495 F.2d 423 (5th Cir. 1974)........ 10

Taylor v. Sentry Life Ins. Co., 729 F.2d 652 (9th Cir.

cp SEE eee ee ee eae ee er eee Pree 15

Thomas v. Harris County, 784 F.2d 648 (5th Cir.

1986) (per curium), cert denied, 122 L.Ed.2d 669,

i § 7 & Be 2). SER e Rye. Foe oRs 18a

United States v. Santa Fe Engineers, Inc., 567 F.2d

S66 (Sth Cis. 1976) (per curiam)... 2.6. e.cccceees 15

Wilson v. UT Health Center, 973 F.2d 1263 (5th Cir.

1992), cert. denied, 507 U.S. 1004 (1993)............ 11

‘

t

'

4

i

Ee ee

Vii

TABLE OF CITATIONS — Continued

STATUTE CITED:

De Ae OE RS de esa Naeem h VEL SEA aa eS aa passim

Rutes CIrep:

OA OB a Ae are are ir etn dne 1, 18

ee Ae oS pee PP Eee eet eerie pee meme 2

MISCELLANEOUS:

TEX. DISCIPLINARY RULES OF PROFESSIONAL CONDUCT 3.01,

3.02 (1989), reprinted in TEX. Gov’T CODE ANN., tit 2

subtit. G app. (Vernon Supp. 1996) (State Bar

POOR DIG Bg Me Oi nds esi o pce ls cc aes e eevins vurens 17

The Texas Lawyer’s Creed - A Mandate for Profession-

RENN SIC RINOE 7, TOG 6 ks o's a $h00e 0 woke inde ad co 17

APPENDIX

Appendix A — Order of the United States Court of

Appeals for the Fifth Circuit Entered November

8 OS Rater ag eee mae Ih marge eatin yr Meee gare e eee ae la

Appendix B — Order of the United States District

Court for the Southern District of Texas,

Houston Division Entered March 28, 1995......... 3a

Appendix C - List of Similar Cases Brought by

Plaintiffs’ Counsel and Disposition on Appeal.... 16a

7 en

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents request that the Court deny the Petition

for writ of certiorari seeking review of an opinion of the

United States Court of Appeals for the Fifth Circuit. The

court of appeals’ opinion is reported at 96 F.3d 783 (Sth

Cir. 1996), petition for writ of cert. filed, 65 U.S.L.W. 37 (U.S.

April 1, 1997) (No. 96-1450). (For the Court's cunvenience,

all citations to the October 3, 1996 opinion will be to the

copy attached at Appendix 1-12 of the petition).

+

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition of the Case

Below.

Petitioners appealed to the Court of Appeals for the

Fifth Circuit after Respondents’ Motion for Summary

Judgment was granted in the United States District Court

for the Southern District of Texas. By its October 3, 1996

Memorandum to Counsel, the court of appeals affirmed the

district court’s decision that Petitioners failed to state a

claim upon which relief could be granted. (Pet. App. 10).

The court of appeals also concluded that Petitioners’

appeal was frivolous and ordered that reasonable attor-

ney’s fees and double costs be awarded to Respondents

as damages, pursuant to Fep. R. App. P. 38. (App. 1a).

Petitioners appeal from the decision of the court of

appeals.

B. Correction of Misstatements in the Petition.

The October 4, 1996 opinion of the court of appeals

correctly sets forth the facts of this case. The opinion

accurately reflects the concerns Petitioners had with the

high school band director’s conduct during the 1992-93

academic year and the actions taken by Petitioners as a

result of their concerns. In the interest of brevity, Respon-

dents respectfully direct the Court’s attention to the

appellate court’s opinion. (Pet. App. 1-12).

Pursuant to United States Supreme Court Rule 15.1,

Respondents bring to the Court’s attention the following

misstatements of fact contained in the petition.

Petitioners mischaracterize the incidents surrounding

Wilbanks’ prior employment as a “very controversial and

troubled work history” on page 4 of the petition. In

actuality, Petitioners’ first amended complaint in this case

refers only to information allegedly obtained from Super-

intendent Chancellor regarding two of band director

Wilbanks’ prior places of employment. First, Petitioners

allege in their complaint that Wilbanks had questionable

band instrument inventory problems at the end of the

school year, a bad rapport with students and administra-

tors, and verbally abused the choir director. Second, at

Thomas Jefferson High School, Petitioners allege that

Wilbanks had the same questionable band instrument

inventory problem. Petitioners’ subjective speculation

about Wilbanks’ undescribed behavior at West Columbia

High School and at Thomas Jefferson High School, with-

out more, does not amount to a “very controversial and

troubled work history” as characterized by Petitioners on

page 4 of the petition.

Further, Petitioners provide no record references for

the following assertions on page 4 of their factual state-

ment:

Because tensions were running high between

Wilbanks and the band, it was feared that Wil-

banks might actually harm someone. By mid-

October 1992, Wilbanks had focused increas-

ingly more hostility at Jon. On October 16, Wil-

banks verbally abused and ridiculed Jon in front

of others. This public ridicule and abuse began

taking its toll on Jon, and continually decreased

his ability to perform well.

Because the above statements alleging Wilbanks’

increased hostility towards Jon, public ridicule of Jon and

resulting decrease in Jon’s ability to perform well are not

supported in the record and were not available to the

district court or the court of appeals in this case, such

statements should not provide any basis for a decision on

the petition in this case.

Petitioners provide an incomplete account of the TEA

investigation results on pages 4-5 of their petition. Con-

trary to the impression left by Petitioners’ statement of

facts, the TEA expressly refused to sustain any of Peti-

tioners’ four allegations. (Pet. App. 33). The TEA investi-

gation also specifically revealed that the “rumor”

Petitioners allude to on page 4 was unsubstantiated

because there was no evidence that Wilbanks and Princi-

pal Curry forced the assistant band director McSpadden

to write a letter and McSpadden felt no pressure to sign

any document with which he strongly disagreed. (Pet.

App. 31). Any references to findings made in the TEA

investigation should be read in conjunction with the

agency’s conclusions provided as an appendix to the

petition. (Pet. App. 30-33).

Finally, Petitioners provide no record reference for

the proposition that despite an order of reassignment, the

administration allowed Wilbanks to teach a percussion

~ class at Oakwood Middle School. (Petition at 5). Such

information was not provided to the district court nor to

the court of appeals in this case, nor is such information

contained either in the TEA investigation or Petitioner

Joyce Yvonne Shinn’s affidavit. (Pet. App. 13-33). Like-

wise, Petitioners’ conclusion that the Board ratified Wil-

banks’ actions and “systems” by reinstating him to the

classroom is a legal conclusion unsupported by any facts

in the TEA report, Joyce Yvonne Shinn’s affidavit or the

Petitioners’ first amended complaint. (Petition at 5). Both

references should be disregarded by this Court as unsup-

ported by the record in this case.

a

REASONS FOR DENYING THE WRIT

The United States Court of Appeals for the Fifth

Circuit properly affirmed entry of summary judgment in

favor of Respondents and ordered that reasonable attor-

ney’s fees and double costs be awarded to Respondents

for defending Petitioners’ frivolous appeal of legal points

not arguable on the merits. Petitioners stated no recogni-

zable cause of action under federal law or the Texas

Constitution because Petitioners failed to show a viola-

tion of a clearly established constitutional right. Further-

more, the individual Respondents are immune from suit

under the Doctrine of Qualified Immunity based upon

their official capacities with a local school district of the

State of Texas. The entire dispute between the parties

rests upon Petitioners’ perception that Wilbanks exhib-

ited “unprofessional behavior” as band director which

resulted in a “poor year for the band” and “the infliction

of severe emotional distress upon many of the [uniden-

tified] students, including Jon Shinn.” (Pet. App. 8-9).

Because Petitioners have cited no authority for their posi-

tion that Jonathan Shinn’s constitutional rights have been

violated, the writ of certiorari should be denied.

THE COURT OF APPEALS CORRECTLY HELD THAT

PETITIONERS FAILED TO STATE A PROPER CLAIM

UNDER 42 U.S.C. § 1983.

To establish their position that Texas law creates a

constitutional claim under 42 U.S.C. § 1983, Petitioners

rely only on a recent Texas state court decision, Spacek v.

Charles, 928 S.W.2d 88, 93 (Tex. App. — Houston [14th

Dist.] 1996, n.w.h.). In Spacek, a student sued his high

school athletic coaches, asserting federal and state claims

related to the coaches’ behavior, including alleged

threats, use of physical force and placing a gun against

the student’s head. The Spacek court first recognized that

Section 1983 imposes liability for violations of rights pro-

tected by the United States Constitution, but not for

violations of duties of care arising under state tort law. Id.

at 92. The court then affirmed the lower court's denial of

defendants’ motion for summary judgment on two of the

plaintiff’s four constitutional claims because the defen-

dants did not address those two claims in the district

court. Id. at 93-94. Procedurally, these two constitutional

claims were not subject to summary judgment.

The Spacek decision does not stand for the proposi-

tion that there is a recognized liberty interest to be free

from emotional harassment caused by intentional and/or

reckless behavior. To the contrary, the Spacek court holds

that mere words — however violent — do not constitute a

simple assault and do not rise to the level of a constitu-

tional violation of a liberty interest under Section 1983. Id.

at 93. The Spacek court also held that whether an injury is

more than de minimis so as to implicate a constitutional

violation “is determined within the context of contempor-

ary standards of decency, and not by the significance of

the injury.” Id. Only where there is a recognized constitu-

tional violation is actual physical injury to the plaintiff

not required. Id.!

Coach Spacek’s motion for summary judgment on

failure to state a claim under Section 1983 was denied not

because the student established a violation of a recog-

nized constitutional right, but rather because Spacek did

not address the plaintiff’s Fifth Amendment substantive

due process and Fourteenth Amendment equal protection

claims in his motion. Id. at 94. Coach Spacek thereby

failed to meet his burden to prove immunity as to those

claims. Id. Furthermore, the record in Spacek reflected a

' In the “injury” portion its opinion, the Spacek court relied

exclusively on Jefferson v. Ysleta Independent School District, 817

F.2d 303, 304 (5th Cir. 1987), a case where a student was tied to a

chair for two days in school. The Ysleta case was addressed and

distinguished on its facts in both Respondents’ brief on appeal

and in oral argument before the court of appeals in this case.

fact issue regarding whether the coaches’ actions went

beyond mere words in disciplining the student with

respect to the plaintiff’s Fourth and Eighth Amendment

claims. Id. at 93.

The Spacek opinion was decided after the district

court granted Respondents’ motion for summary judg-

ment in this case, but before oral argument in the court of

appeals. Petitioners chose not to cite or rely upon Spacek

in the court of appeals. Nevertheless, the Spacek decision

does not recognize a liberty interest to be free from

emotional harassment caused by intentional and/or reck-

less behavior or severe emotional distress.

On March 28, 1995, in its lengthy Order granting

defendants’ Motion for Summary Judgment in the instant

case; the district court concluded:

Personality disputes and. problems with

teachers throwing away [band] equipment do

not rise to the level of rights so fundamental as

to call Constitutional jurisprudence into play. 42

U.S.C. § 1983 was enacted as part of the Ku Klux

Klan Act in 1871 tc provide a federal forum for

the formerly enslaved, and has expanded to

embrace the ideals of a nation, not to settle what

is basically a local, school district-governed dis-

pute.

The Court declines Plaintiff's invitation to

include the right to be free from mean teachers,

if such vengeful behavior in fact existed, on the

list of fundamental rights the United States

Supreme Court has found to be protected by

substantive due process. Matters such as ineffec-

tive teaching and personality conflicts are best

addressed by local school boards and not by

federal courts.

(App. 14a). The instant case does not involve a student

threatened with death by hanging, as in Spacek, but rather

is one of an off-beat band director and a student who

wanted to play many band instruments - not just the

b-flat clarinet as Wilbanks had, in his discretion, decided.

(Pet. App. 13). The court of appeals correctly noted that

Petitioners conceded at oral argument that this case is not

one that implicates the Texas Constitution. (Pet. App. 12).

Likewise, nothing in the Spacek decision changes the

unavailability of claims for Petitioners under the United

States Constitution. Spacek does not support Petitioners’

claim that their constitutional rights have been violated.

The court of appeals correctly held that Petitioners failed

to state a claim under Section 1983.

[.A.

Petitioners Failed To State a Proper Claim Under 42

U.S.C. § 1983 Regarding Jonathan Shinn’s Alleged Lib-

erty Interest in Being “Free from Emotional Harass-

ment.”

In their petition for writ of certiorari, Petitioners cite

several cases for the proposition that Jonathan Shinn had

a constitutional liberty interest in being free from emo-

tional harassment. Each of these cases involves severe

physical abuse much graver than the “misbehavior” char-

acterized by Petitioners in this case. It is illogical for

Petitioners to suggest that Wilbanks’ conduct is akin to

the sexual molestation of a student that occurred in Doe v.

Taylor I.S.D., 15 F.3d 443 (5th Cir. 1994), cert. denied, __

U.S. __, 130 L.Ed.2d 25, 115 S.Ct. 70 (1994). Similarly, the

severe physical abuse at issue in Jefferson v. Ysleta Indepen-

dent School District, 817 F.2d 303 (5th Cir. 1987), where a

teacher lashed a second grade student to a chair for two

days, without breaks, is also well beyond the scope of

Petitioners’ allegations. When viewed alongside Lopez v.

Houston I1.S.D., 817 F.2d 1351 (5th Cir. 1987), where a

school employee failed to intervene in the beating of a

student on the school bus by a third person, Wilbanks’

letting band students stay up late on an overnight trip

pales by comparison. (Pet. App. 17). Each of these cases

cited by Petitioners involves physical harm more severe

than the alleged “lack of leadership and discipline” and

to the Petitioners’ “alleged extreme dissatisfaction with

Wilbanks’ performance as band director.” (Pet. App. 7-8).

After considering the case law cited by Petitioners, the

district court held there is no constitutional “right to be

free from mean teachers.” (Appendix 14a). The court of

appeals disapproved of grafting the rights recognized in

Doe, Ysleta and Lopez onto the instant case by holding that

there is “no constitutional right to be free from emotional

distress.” (Pet. App. 9). Petitioners’ continued repetition

of their claims in each successive appellate forum cannot

alter their inability to support their claims under state or

federal law.

I.B.

Petitioners Failed to State a Proper Claim Under 42

U.S.C. § 1983 Regarding Jonathan Shinn’s Alleged Lib-

erty Interest in Being Free from Punishment Absent

Personal Guilt.

The right to be free from punishment absent personal

guilt is actionable under 42 U.S.C. § 1983 only when that

10

punishment deprives the plaintiff of a constitutionally

protected right. (Pet. App. 9). Petitioners made no such

allegation in this case. Petitioners base their entire argu-

ment that Jonathan Shinn has a liberty interest in being

free from punishment absent personal guilt on one case

that was decided over 20 years ago in the United States

Court of Appeals for the Fifth Circuit — St. Ann v. Palisi,

495 F.2d 423 (5th Cir. 1974).

The St. Ann case is distinguishable from the present

case because it involved a written school board regulation

providing that students could be suspended or punished

by reason of their parents’ conduct, which the court

found to be unconstitutional. Id. at 428. In the instant

case, the district court agreed with Respondents’ distinc-

tion that Petitioners’ allegations involve neither a written

school board policy nor punishment in the form of sus-

pension from school. (Appendix 10a-1la). The court of

appeals likewise held that the right to be free from pun-

ishment absent personal guilt is only actionable when

that punishment deprives the plaintiff of a constitu-

tionally protected right. (Pet. App. 9). Because Petitioners

in this case do not allege facts sufficient to prove that

punishment has deprived them of a constitutionally pro-

tected right, Petitioners’ claims fail.

5

Petitioners Failed to State a Proper Claim Under 42

U.S.C. § 1983 Regarding Jonathan Shinn’s Alleged Exer-

cise of itis Right to Protected Speech.

The court of appeals noted that Petitioners “have not

alleged what speech Jonathan engaged in, nor have they

11

alleged facts indicating that Wilbanks’ action amounted

to retaliation or infringement on Jonathan’s first amend-

ment rights.” (Pet. App. 10). Therefore, the court of

appeals correctly held that Petitioners failed to state a

proper claim under 42 U.S.C. § 1983 regarding Jonathan

Shinn’s alleged exercise of his right to protected speech.

In assigning such error, Petitioners fail to allege, even at

this late date, what speech Jonathan may have exercised

that infringed on his First Amendment rights. Petitioners

cite only one record reference — the affidavit of Yvonne

Shinn — for the proposition that “Jonathan Shinn reported

Wilbanks’ behavior to his mother.” (Pet. App. 13). Peti-

tioners state that “it is a reasonable inference that Wilb-

anks deduced Jonathan Shinn to have been of [sic]

reporter of his, Wilbanks’, school behavior and thus a

source of his problems” and then infer that Wilbanks

punished Jonathan Shinn for making a report to his

mother. (Petition at 13-14).

The tenuous causal relationship proposed by Peti-

tioners does not illuminate what speech Jonathan Shinn

may have uttered “to his mother” or whether any such

speech deserves constitutional protection. Petitioners also

fail to allege any facts indicating that Wilbank’s actions

amounted to retaliation or infringement on Jonathan’s

First Amendment rights. (Pet. App. 10), citing Haverkamp

v. Unified Sch. Dist. No. 380, 689 F.Supp. 1055, 1058-59

(D.Kan. 1986) (dismissing plaintiff's First Amendment

claim where the complaint did not indicate retaliation by

school officials or a restriction of plaintiff’s First Amend-

ment rights); see also Wilson v. UT Health Center, 973 F.2d

1263, 1270 (Sth Cir. 1992) (upholding directed verdict on

12

First Amendment claim because plaintiff produced insuf-

ficient evidence that certain defendants “retaliated

against her for her speech”), cert. denied, 507 U.S. 1004

(1993). Finally, Petitioners fail to cite any authority for the

proposition that a student’s complaints to his mother and

the possible consequences of such complaints deserve

constitutional protection. Because Petitioners gave the

court of appeals no evidence of any speech Jonathan

Shinn may have uttered nor evidence that would indicate

retaliation for any such speech, Petitioners’ claims

regarding free speech must fail.

I.D.

Petitioners Failed to State a Proper Claim Under 42

U.S.C. § 1983 Regarding Respondents Wilbanks, Chan-

cellor, Curry and Dornburg’ Entitlement to Qualified

Immunity.

The court of appeals found that because Petitioners

have failed to establish the violation of a clearly estab-

lished constitutional right, the Respondents, in their indi-

vidual capacities, are entitled to qualified immunity. (Pet.

App. 12), citing Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d

1075, 1079 (5th Cir.) (stating standard for qualified immu-

nity), cert. denied, __ U.S. ___, 116 S.Ct. 532 (1995). Peti-

tioners do not point to claims in their petition that would

establish the violation of a clearly established constitu-

tional right. Instead, Petitioners merely cite the objective

test for application of qualified immunity - whether “a

constitutional right is clearly established if in light of pre-

existing law the unlawfulness is apparent” — that is based

on this Court’s holding in Anderson v. Creighton, 483 U.S.

635, 640 (1987). As established in Anderson v. Creighton,

13

immunity may be waived if the constitutional right the

official is alleged to have violated is “clearly established,”

in the sense that a reasonable official would understand

that what he is doing violates that right, and in light of

pre-existing !aw the unlawfulness must be apparent. Id. If

both the district court and the court of appeals were

unable to recognize the constitutional rights Petitioners

claim were violated in this case, it follows that a reason-

able official would not be able to understand that what he

is doing violates the alleged rights, in light of the law

existing at the time the complained-of events took place.

Even the Spacek trial court, which Petitioners argue

created a constitutional right applicable to this case,

granted the school district’s motion for summary judg-

ment on its immunity defense under facts involving

death threats toward a student. Summary judgment was

denied for the remaining defendant school coaches in

Spacek because there was a question of fact concerning

their use of excessive force (i.e., holding the student in a

headlock, threatening to kill him by pointing a gun to his

head and reaching for an electrical cord to hang him). The

denial of the coaches’ motions for summary judgment

based on their qualified immunity defense was affirmed

in part (as to Fifth and Fourteenth Amendment claims)

and reversed in part (as to those claims not properly

raised in the trial court — the Fourth and Eighth Amend-

ment claims).

The United States Court of Appeals for the Fifth

Circuit in several recent decisions has upheld the immu-

nity defense on claims similar to the present claims by

Petitioners. In Eugene v. Alief Independent School District,

the court of appeals affirmed the district court’s dismissal

ee |

14

of plaintiffs’ claims of federal and constitutional viola-

tions against the school district and school officials

because there could be no state constitutional tort claims

and plaintiffs did not show that the school district acted

in accordance with any official policy. 65 F.3d 1299 (5th

Cir. 1995), cert. denied, 134 L.Ed.2d 782, 116 S.Ct. 1680

(1986). Likewise, in Lopez v. Houston Independent School

District, the court of appeals affirmed the district court’s

dismissal of plaintiffs’ claims of federal and constitu-

tional violations against the school district and its offi-

cials because there was no evidence of any official policy

or widespread practice throughout the district which

deprived constitutional rights and plaintiffs could not

bring suit against the district's officials in their individual

capacities. 817 F.2d 1351 (5th Cir. 1987). Both of the fore-

going cases were brought by plaintiffs who were repre-

sented by Petitioners’ counsel in this case.

Even if this Court were to find a violation of a

constitutional right, Petitioners have never alleged and

do not now allege that Respondents Wilbanks, Chancel-

lor, Curry and Dornburg acted pursuant to an official

custom or policy of the Respondent school district, or

that the school district implemented such an official cus-

tom or policy. Based upon such failure to allege that

Wilbanks, Chancellor, Curry and Dornburg acted pur-

suant to an official custom or policy of the school district,

or that the school district implemented such an official

custom, the court of appeals found that there could be no

Section 1983 liability for the school district or for the

Respondents in their individual capacities. (Pet. App. 12),

citing Meadowbriar Home For Children, Inc. v. Gunn, 81 F.3d

15

521, 533 (5th Cir. 1996). Without more than blanket asser-

tions ghat constitutional rights have been violated, there

can be no liability for any of the individual Respondents

in their official capacities.

II.

THE COURT OF APPEALS CORRECTLY HELD THAT

PETITIONERS’ APPEAL WAS FRIVOLOUS

In their petition, Petitioners recognize that a “frivo-

lous appeal is one which involves legal points not argu-

able on the merits.” Olympia Co., Inc. v. Celotex Corp., 771

F.2d 888, 893 (5th Cir. 1985), cert. denied, 493 U.S. 818

(1989). Frivolous appeals are disfavored because “[o]ur

society in general, and appellate courts in particular,

labor under a heavy burden of litigation which is ‘need-

lessly aggravated when frivolous appeals are taken.’ ”

Taylor v. Sentry Life Ins. Co., 729 F.2d 652, 656 (9th Cir.

1984), citing United States v. Santa Fe Engineers, Inc., 567

F.2d 860, 861 (9th Cir. 1978) (per curiam). The standard

for the imposition of penalty for pursuing a “frivolous

appeal” is whether the appeal is found groundless, with-

out foundation and without merit, regardless of whether

it was brought in bad faith. Christiansburg Garment Co. v.

EEOC, 434 U.S.412, 421 (1978).

Petitioners assert that their appeal to the Fifth Circuit

was based upon arguable and valid legal points, pre-

sumably that Petitioners have constitutionally protected

interests under state and federal law that have been vio-

lated. However, Petitioners argued to the court of appeals

that “an appeal which simply lacks merit is not always

frivolous,” effectively conceding that their appeal lacked

16

merit. Appellants’ Response to Court’s Order to Show

Cause, or, alternatively, Petition for Rehearing at 4, citing

Crain v. C.I.R., 737 F.2d 1417, 1418 (5th Cir. 1984). In

presenting Question No. 2 to the Court, Petitioners pro-

vide no support for their blanket statement that their

appeal to the Fifth Circuit was based on arguable and

valid legal points. The court of appeals recognized in

footnote 1 of the October 3, 1996 opinion in this case that:

[T]he attorney who brought this appeal did not

appear at oral argument. Instead, he sent a col-

league who conceded at oral argument that the

Plaintiffs’ claims under the Texas Constitution

were without merit.

(Pet. App. 12). Petitioners now contend that they should

not be burdened with the consequences of pursuing

issues first on appeal and now on Petition for writ of

certiorari which were “conceded” at oral argument as

being without merit, regardless of whether they were

brought “in good faith.”2

In the court of appeals, Petitioners’ counsel stated

that his clients requested an appeal in this case, which he

felt obligated to pursue, to his and his clients’ ultimate

detriment. Petitioners’ counsel argued that he had a duty

to appeal as follows:

It is the client who determines whether an

appeal shall be taken. 7A C.J.S. § 203, citing

Hawkeye-Security Ins. Co. v. Indemnity Ins. Co. of

North America, 260 F.2d 361, 363, 91 A.L.R.2d 618

2 A list of reported cases over the past 10 years in which

Petitioners’ counsel brought claims identical to the claims he

has brought in this case. In each case, Petitioners’ counsel's

claims were rejected on appeal. See Appendix C.

17

(10th Cir. 1958). See Jones v. Banner Creamery, 214

S.W.2d 487 (Tex. Civ. App. 1948); Ex Parte Wood,

87 S.W.2d 487 (Tex. Crim. App. 1935); Ex Parte

Maple, 33 S.W.2d 734 (Tex. Crim. App. 1930). In

this case, the client, Plaintiff-Appellants,

-equested an appeal. Accordingly, counsel for

Plaintiff-Appellants submitted their appeal in

good faith, and based on issues of substance.

“An attorney authorized to take appellate pro-

ceedings cannot abandon or withdraw the same

after they have been taken.” 7A C.J.S. § 203.

Counsel had no intent to offend this Court by

complying with Plaintiff-Appellants’ wishes,

and submitting the appeal. Therefore, counsel

for Plaintiff-Appellants respectfully request the

Court to forego punishment, and find that this

appeal was substantive such that it did not rise

to the level of frivolous.

Appellants’ Response to Court’s Order to Show Cause, or,

alternatively, Petition for Rehearing at 11. Despite the

foregoing argument, Petitioners’ counsel has no right, let

alone a duty, to bring a frivolous appeal in Texas. TEx.

DISCIPLINARY RULES OF PROFESSIONAL CONDUCT 3.01, 3.02

(1989), reprinted in TEx. Gov’T CODE ANN., tit 2 subtit. G app.

(Vernon Supp. 1996) (State Bar Rules art X, § 9). One

guideline for Texas attorneys’ conduct is The Texas Law-

yers’ Creed which provides “I will advise my client that

we will not pursue any course of action without merit.”

The Supreme Court of the State of Texas, The Texas Law-

yer’s Creed - A Mandate for Professionalism (November 7,

1989). After a judgment has been entered, an attorney has

the duty and obligation to (1) advise a client of the right

to file an appeal of an adverse judgment and (2) to inform —

the client whether the attorney will pursue the appeal.

18

An experienced civil rights attorney must be account-

able for maintaining a “plainly baseless suit” and “charg-

ing forth with the litigation in disregard of its manifest

lack of merit.” Blue v. United States Dept. of the Army, 914

F.2d 525, 546-48, 550 (4th Cir. 1990), cert. denied, 499 U.S.

959, 111 S.Ct. 1580 (1991) (upholding sanctions award of

reasonable attorneys’ fees and double costs against an

experienced and distinguished litigator). Petitioners’

counsel over the past ten years has brought at least ten

reported cases before the Court of Appeals for the Fifth

Circuit on similar, if not identical, claims. (See App. C). In

each case, the claims and Appellants’ counsel’s argu-

ments on appeal synonymous to those presented in this

case were rejected by the court of appeals. To date, this

Court has not granted certiorari in any such case and

denied certiorari in two of the cases.

The standard for determining whether an appeal is

frivolous is whether “the court of appeals determines that

an appeal is frivolous.” Fep R. App. P. 38. In this case, the

court of appeals made the determination that Petitioners’

appeal was frivolous and that counsel failed to show

cause why sanctions should not issue. Under the applica-

ble “abuse of discretion” standard, this Court should

deny Petitioners’ request for certiorari on this issue and

allow the decision of the court of appeals to stand.

+

19

CONCLUSION

Respondents respectfully request that the writ of cer-

tiorari be denied.

Respectfully submitted,

Counsel of Record for Respondents

Tom M. Davis, Jr.

Davis & SHANK, P.C.

1415 Louisiana, Suite 4200

Houston, Texas 77002

(713) 659-1010

la

APPENDIX A

SHINN v. COLLEGE STATION

INDEPENDENT SCHOOL DIST.

Yvonne SHINN, on behalf of Jonathan Daniel

SHINN; John Eugene Shinn, on behalf of Jonathan

Daniel Shinn, Plaintiff-Appellants.

Vv.

COLLEGE STATION INDEPENDENT SCHOOL

DISTRICT; Kenneth Wilbanks; Ray Chancellor;

Bob Curry; William Dornburg, Defendants-Appellees.

No. 95-20328.

United States Court of Appeals,

Fifth Circuit.

Nov. 22, 1996.

Appeal from the United States District Court for the

Southern District of Texas, John D. Rainey, Judge.

ON PETITION FOR REHEARING

(Opinion Oct. 3, 1996, 5th Cir.,

1996, 96 F.3d 783.)

Before GARWOOD, EMILIO M. GARZA and

DENNIS, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the motion for leave to file

request for rehearing out of time is GRANTED. IT IS

FURTHER ORDERED that the petition for rehearing is

DENIED. The court has reviewed the authority cited in

the petition and finds that none raises disagreemei.'s

with a high school band director to the level of a violation

of the First or Fourteenth Amendments.

2a

IT IS FURTHER ORDERED that, counsel having

failed to show cause why sanctions should not issue,

double costs and reasonable attorney’s fees are hereby

awarded to Defendants pursuant to Fep.R.App.P. 38.

Defendants should submit to this court their attorney’s

fees statement and costs within two weeks of entry of this

order.

3a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

JOYCE YVONNE SHINN and §

JOHN EUGENE SHINN, on §

behalf of JONATHAN DANIEL §

SHINN, § CIVIL ACTION

eee § NO.

Plaintiff g H-93-3055

VS. §

(Filed

COLLEGE STATION LS.D., et al, § Mar. 30, 1995)

Defendants. :

ORDER

Pending before this Court is a Motion for Summary

Judgment (Docket Entry #22) filed by Defendants College

Station Independent School District, Kenneth Wilbanks,

Ray Chancellor, Bob Curry and William Dornburg, all in

their independent and official capacities (collectively,

“Defendants”). After consideration of the pleadings, the

responses, and the applicable law, it is the Court’s opin-

ion that this motion be GRANTED.

I. Statement of the Case

Plaintiff Jonathan Daniel Shinn (“Plaintiff”) was a

freshman member of the A & M Consolidated High

School Band. Plaintiff, through his parents and their law-

yer, filed a complaint in this Court alleging that his

Constitutional rights were violated by Defendant Ken-

neth Wilbanks’ behavior as A & M Consolidated’s Band

4a

Director. Plaintiff alleges eight full pages of wrongs per-

petrated by Wilbanks, ranging from his alleged “insis-

tence” that Plaintiff play only the B-flat clarinet to his

alleged “showing [of] disrespect” to the assistant band

director to failing to hand out band rules until six entire

weeks after the start of practice and failing to provide

parents with “information” about the marching band

competition in Killeen, Texas — which resulted in Plain-

tiff’s parents arriving at the competition four hours and

fifteen minutes early. Plaintiff claims that Wilbanks did

not handle the school’s band instruments properly, and

that Plaintiff was “yelled at” when he tried to turn in his

instrument. Plaintiff further alleges that other students -

who notably do not join this complaint - were mistreated

by Wilbanks, and that Wilbanks on at least one occasion

yelled at Plaintiff more than the other students. All in all,

Plaintiff complains, the band had “a bad year.” Plaintiff

then, on the basis of these alleged incidents, proceeded to

file a federal lawsuit claiming causes of action under the

First and Fourteenth Amendments to the United States

Constitution (brought pursuant to 42 U.S.C. §1983) and

under the Texas Constitution. Plaintiff has also requested

- attorney’s fees pursuant to 42 U.S.C. §1988. Defendants

have moved for summary judgment on all causes of

action.

II. Summary Judgment Standard

Rule 56(c) provides that “[summary] judgment shall

be rendered forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

5a

party is entitled to judgment as a matter of law.” Fen. R.

Civ. P. 56(c). A party seeking summary judgment bears

the initial burden of informing the district court of the

basis for its motion, and identifying those portions of the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

which it believes demonstrate the absence of a genuine

issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The

burden is not on the movant to produce evidence show-

ing the absence of a genuine issue of material fact. See id.,

477 U.S. at 323-28, 106 S.Ct. at 2553-54; International Ass'n

of Machinists & Aerospace Workers, Lodge No. 2504 v. Inter-

continental Mfg. Co., 812 F.2d 219, 222 (5th Cir. 1987). A

defendant who moves for summary judgment may rely

on the absence of evidence to support an essential ele-

ment of the plaintiff’s case. Celotex Corp. v. Catrett, 477

U.S. at 323, 106 S.Ct. at 2553.

If the movant satisfies this prima facie burden, the

burden shifts to the nonmovant, who must “set forth facts

showing that there is a genuine issue for trial.” See Ander-

son v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505,

2511, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indust. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356,

89 L.Ed.2d 538 (1986); Willis v. Roche Biomedical Labs, Inc.,

21 F.3d 1368, 1371 (5th Cir. 1994). The nonmovant must

“do more than simply show that there is some metaphysi-

cal doubt as to the material facts.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. at 586-87, 106 S.Ct. at

1356. When the facts presented by the nonmovant could

not “lead a rational trier of fact to find for the non-

moving party,” there “is no genuine issue for trial.” Id.

6a

When considering a motion for summary judgment,

the district court must view the evidence through the

prism of the substantive evidentiary burden. Anderson v.

Liberty Lobby, Inc., 477 U.S. at 254, 106 S.Ct. at 2513. The

standard for summary judgment “mirrors the standard

for a [motion for judgment as a matter of law]! under

Federal Rule of Civil Procedure 50(a).” Id., 477 U.S. at

250, 106 S.Ct. at 2511. The evidence of the nonmovant is

to be believed, and all justifiable inferences are to be

drawn in his favor. Id., 477 U.S. at 255, 106 S.Ct. at 2513.

The inferences to be drawn from the underlying facts

must be viewed in the light most favorable to the party

opposing the motion. Matsushita Electric Industrial Co. v.

Zenith Radio Corp., 475 U.S. at 257, 106 S.Ct. at 1356.

Summary judgment is appropriate if “under the govern-

ing law, there can be but one reasonable conclusion as to

1 Fep. R. Civ. P. 50(a) and (b) were amended, effective Dec.

1, 1991, to create a single motion for “judgment as a matter of

law,” available to the parties conducting a jury trial, which if

denied, the moving party may renew after trial. Prior to the

amendment, a Rule 50(a) preverdict motion was termed a

motion for “directed verdict,” while a postverdict motion was

termed a motion for “judgment notwithstanding the verdict.”

The change in the rule has not altered the substantive standard

that governs whether a party to a jury trial is entitled to

judgment as a matter of law - the nonmovant must “ha[ve] been

fully heard on an issue,” and there must be “no legally sufficient

evidentiary basis for a reasonable jury to find for [the

nonmovant] on that issue.” Fep. R. Civ. P. 50(a) & advisory

committee’s 1991 note (“The term ‘judgment as a matter of law’

is an almost equally familiar term and appears in the text of

Rule 56; its use in Rule 50 calls attention to the relationship

between the two rules... . It effects no change in the governing

standard.”).

7a

the verdict;” if “reasonable minds can differ as to the

import of the evidence,” however, summary judgment

should not be granted. Anderson v. Liberty Lobby, Inc., 477

U.S. at 250-51, 106 S.Ct. at 2511. McGregor v. Louisiana

State Univ. Bd. of Supervisors, 3 F.3d 850, 855 (5th Cir.

1993).

Ill. Analysis

A. Claims Under the Texas Constitution

As previously noted, Defendants have moved for

summary judgment on all counts. Plaintiff has alleged

that Defendants have violated his rights under both the

United States Constitution and the Constitution of Texas.

The Court first notes the Texas Supreme Court recently

held that Texas law does not recognize a “constitutional

tort” analogous to 42 U.S.C. §1983 or a Bivens-type action

entitling the pursuit of a private cause of action for

damages. City of Beaumont v. Bouillion, __ S.W.2d __,

1995 WL 64173, *5 (February 15, 1995). The Fifth Circuit

and other Texas courts have taken the same position. See,

Gillum v. City of Kerrville, 5 F.3d 117, 122 (Sth Cir. 1994)

(cert. denied, __ U.S. __, 114 S.Ct. 881 (1994); Bagg v.

Univ. of Tex. Medical Branch, 726 S.W.2d 582, 584 n.1

(Tex.App. - Houston [14th Dist.] 1987, writ ref’d n.r.e.)

(citations omitted); Albertson’s, Inc. v. Ortiz, 856 S.W.2d

836, 839 (Tex.App.— Austin 1993, writ denied); Mitchell v.

Amarillo Hosp. Dist., 855 S.W.2d 857, 872-3 (Tex.App. -

Amarillo 1993, writ denied); Tutt v. City of Abilene, 877

S.W.2d 86, 88 (Tex. App. — Eastland 1994, writ requested).

This Court declines Plaintiff’s invitation to break new

ground in Texas case law. Summary judgment should be

8a

granted on Plaintiff’s claims under the Texas Constitu-

tion.

B. Claims Under The United States Constitution

Plaintiff has stated his causes of action under two

headings: (1) “Liberty interest” and (2) “Freedom of

Speech.” Under Liberty Interest, Plaintiff claims (a) a

“consistently (sic) protected liberty interest to be free

from emotional harassment caused by the intentional

an(sic)/or reckless behavior of Defendant Wilbanks;” (b)

“the right to be free from punishment absent personal

guilt for exercising his freedom of speech” and (c) “the

reckless behavior of all the defendants violated [his] con-

stitutional rights by failing to protect him against emo-

tional distress and harassment.” Under Freedom of

Speech, Plaintiff claims (a) “a constitutionally protected

right to be free from retaliation motivated by the exercise

of his freedom of speech” and that (b) “[he] was directly

retaliated against . . . for his parents, involvement with

the TEA investigation and resulting newspaper article.”

2 The Court notes that although the complaint states that

his parents were the people who spoke out about the band

director, Plaintiff appears to be asserting that he has a

Constitutionally-protected right to be free from retaliation from

exercising his right to free speech. As the Court is bound to draw

all inferences in faver of the nonmovant, the Court will examine

this claim as stated.

9a

1. “Liberty Interest” Ciaims

42 U.S.C. §1983 allows private parties to bring suit in

the federal courts to recover damages for violations of

constitutional rights. As §1983 does not list those rights

which are actionable, the extent of the rights protected

has largely been left to the federal courts to define. In

addition to the rights explicitly stated in the Constitution,

the Fifth and Fourteenth Amendments have been inter-

preted to have substantive content and protect rights

“that have little or no textual support in the constitu-

tional language.” Bowers v. Hardwick, 478 U.S. 183, 191

(1986). The United States Supreme Court has stated that

the rights which qualify for “heightened judicial protec-

tion” are those “fundamental liberties that are ‘implicit in

the concept of ordered liberty’ such that ‘neither liberty

nor justice would exist if [they] were sacrificed’ ” Id. at

191-92, quoting Palko v. Connecticut, 302 U.S. 319, 325, 326

(1937). Stated differently, these “substantive due process”

liberties have been characterized as those freedoms that

are “deeply rooted in this Nation’s history and tradition.”

Id. at 192, quoting Moore v. East Cleveland, 431 U.S. 494,

503 (1977).

In Bowers, the Supreme Court counseled the lower

courts to proceed with caution in expanding upon these

fundamental liberties:

Nor are we inclined to take a more expansive

view of our authority to discover new funda-

mental rights imbedded in the Due Process

Clause . . . There should be great resistance to

expand the substantive reach of those Clauses,

particularly if it requires redefining the category

of rights deemed to be fundamental. Otherwise,

10a

the Judiciary necessarily takes to itself further

authority to govern the country without express

constitutional authority. The claimed right

pressed on us today falls far short of overcom-

ing this resistance.

Bowers at 194-95.

Plaintiff asks this Court to find “the right to be free

from emotional harassment caused by the intentional

an(sic)/or reckless behavior of Defendant Wilbanks” and

“the right to be free from punishment absent personal

guilt for exercising his freedom of speech” to be among

these fundamental rights. Plaintiff cites Jane Doe v. Taylor

ISD, 15 F.3d 443 (5th Cir. 1994), Gonzalez v. Ysleta ISD, 996

F.2d 745 (5th Cir. 1993), and St. Ann v. Palisi, 495 F.2d 423

(5th Cir. 1974) as support for his position that a constitu-

tional case exists on these facts. However, the Court is in

agreement with Defendants that the above-cited cases are

clearly distinguishable. Doe and Gonzalez found that stu-

dents have a constitutionally-protected liberty interest in

being free from unwanted sexual advances by teachers.

Plaintiff would have the court compare the case, under

the best possible reading of the facts, of a band director

being mean to him with sexual abuse. This we decline to

do.

St. Ann involved school children who were sus-

pended then transferred pursuant to a school district

regulation after their mother struck an assistant principal.

The author of this twenty-year-old 2-1 decision relied on

criminal cases in reaching the decision that the children

had the fundamental right to be free from punishment

absent personal guilt. St. Ann has since been interpreted

lla

as standing for the proposition that students have a prop-

erty right in attending public school; the punishment

(depriving them of attending school) thus amounted to a

deprivation of a constitutionally-protected right. Burris v.

Willis ISD, 713 F.2d 1087, 1093, n. 3 (5th Cir. 1983). The

facts in this case, which are not in dispute, show that

Plaintiff was not deprived of his right to attend school;

moreover, the Court fails to see how being yelled at and

scowled at more than the other students and being trans-

ferred pursuant to an official policy can be compared as

“punishment.”

Plaintiff’s claim under “Liberty Interest” of “failure

to protect” applies to the individual defendants and is

discussed in Paragraph C below.

2. “Freedom of Speech”

After examining the responses to the motions for

summary judgment it appears to the Court that this cause

of action has fallen by the wayside. However, it was

raised in the complaint and therefore will be addressed.

This case has been styled from its inception “Joyce

Yvonne Shinn & John Eugene Shinn on behalf of Jonathan

Daniel Shinn.” This has led the Court to believe that one

plaintiff exists in this case, Jonathan Daniel Shinn. Subse-

quent filings in this case seem to indicate that his parents

are also plaintiffs in their own right. However, the pro-

cedural confusion does not change the Court’s opinion

that the facts, viewed in the light most favorable to

whomever the plaintiffs are, do not state a constitutional

violation.

12a

According to the complaint, Plaintiff’s parents spoke

to a local newspaper about the band director. The band

director allegedly lectured the students about the news-

paper story at a band meeting and “directed his com-

ments at Jon Shinn.” The cause of action “Freedom of

Speech” says at (a) that “Plaintiff has a... right to be free

from retaliation motivated by the exercise of his freedom

of speech” then at (b) that “Plaintiff was directly retali-

ated against . . . for his parents’ involvement.” The court

is unsure if “Plaintiff” is saying that he spoke and was

punished for it (a fair reading of (a)) or that he was

punished for his parents’ speech (a fair reading of (b)).

Suffice it to say that no facts were pled indicating that

Jonathan Daniel Shinn spoke and was punished for his

speech nor that his parents spoke and were punished for

their speech, so no cause of action may be maintained

under such a theory.

The Court believes that (b) must be a more accurate

statement of Plaintiff's complaint: that the child has a

constitutionally-protected right in not being retaliated

against for his parents’ speaking to the press about the

band director. This cause of action looks strikingly like

Plaintiff’s earlier argument that he has a fundamental

right to be free from punishment absent personal guilt.

This cause of action fails again for the same reasons

stated above.

C. Individual Defendants

Plaintiff has also sued Defendants Kenneth Wilbanks,

Ray Chancellor, Bob Curry and William Dornburg in both

their official and individual capacities, the latter three

13a

apparently for “failing to protect” Plaintiff from the for-

mer’s alleged “emotional harassment.” The Court finds

that suit against these defendants in their official capaci-

ties is tantamount to Plaintiff’s suit against CSISD, which

the Court has found meritless.

As to Plaintiff’s suit against these defendants indi-

vidually, qualified immunity shields state officials from

individual liability under 42 U.S.C. §1983 unless the offi-

cial’s conduct violates “clearly established constitutional

rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1981). The exam-

ination of a claim of qualified immunity involves a two-

step process. The first inquiry is whether the plaintiff has

alleged a violation of a constitutional right. Siegert v.

Gilley, 500 U.S. 226, 232 (1991). The next step is to deter-

mine whether that right was clearly established at the

time the events took place. Id. A review of the record

reveals that Plaintiff has failed to allege any facts impli-

cating these defendants individually in any violation of a

clearly established constitutional right. The Court reite-

rates that the facts, of which there is no genuine issue,

show that Plaintiff was not deprived of any substantive

due process rights.

D. Attorney’s Fees

Since the Court has found that Plaintiff’s civil rights

claims fail in their entirety, Plaintiff's claim for attorney’s

fees must also fail, as he is not a prevailing party. See,

Farrar v. Hobby, __ U.S. __, 113 S.Ct. 566 (1992); Pembroke

v. Wood County, 981 F.2d 225, 230 (5th Cir. 1993) cert.

denied, 113 S.Ct. 2965 (1993).

l4a

IV. Conclusion

Personality disputes and problems with teachers

throwing away equipment do not rise to the level of

rights so fundamental as to call Constitutional jurispru-

dence into play. 42 U.S.C. §1983 was originally enacted as

part of the Ku Klux Klan Act in 1871 to provide a federal

forum for the formerly enslaved, and has expanded to

embrace the ideals of a nation, not to settle what is

basically a local, school district-governed dispute. See,

Monroe v. Pape, 365 U.S. 167, 174-175 (1961). As the Sixth

Circuit has stated, “[S]ubstantive due process is not con-

cerned with the garden variety issues . . . [it] affords only

those protections so rooted in the traditions and con-

science of our people as to be ranked as fundamen-

tal... ” Charles v. Baesler, 910 F.2d 1349 (6th Cir. 1990)

(internal quotations omitted).

The Court declines Plaintiff’s invitation to include

the right to be free from mean teachers, if such vengeful

behavior in fact existed, on the list of fundamental rights

the United States Supreme Court has found to be pro-

tected by substantive due process. Matters such as inef-

fective teaching and personality conflicts are best

addressed by local school boards and not by federal

courts.

The Court finds that there is no genuine issue of

material fact as to whether Plaintiff’s constitutional rights

were violated, and that Defendants are entitled to judg-

ment on each of these claims as a matter of law.

For the foregoing reasons, it is ORDERED that Defen-

dant’s Motion for Summary Judgment be GRANTED.

|

15a

The Clerk shall enter this Order and provide a true

copy to all parties.

Signed this 28th day of March, 1995.

/s/ John D. Rainey

JOHN D. RAINEY

UNITED STATES

DISTRICT JUDGE

16a

APPENDIX C

The following is a list of reported cases over the past 10

years in which Petitioners’ counsel brought identical

claims to those he brought in this case. In each case,

Petitioners’ counsel’s claims were rejected by the court of

appeals.

Fowler v. Smith and Angelton Independent School District,

68 F.3d 124 (5th Cir. 1995):

Plaintiff’s claims for violations of First Amend-

ment freedoms and substantive and procedural

due process against school district, superinten-

dent and other school officials. The district

court’s summary judgment for defendants was

affirmed by the court of appeals.

Eugene v. Alief Independent School District,

65 F.3d 1299 (5th Cir. 1995),

cert denied, 134 L.Ed. 782, 116 S.Ct. 1680 (1996):

The court of appeals affirmed the district court’s

dismissal of plaintiffs’ claims of federal and con-

stitutional violations against the school district

and school officials because there can be no state

constitutional tort claims and plaintiffs did not

show that the school district acted in accordance

with any official policy.

Continental Casualty Company v. McAllen Independent

School District,

850 F.2d 1044 (5th Cir. 1988) (per curiam):

The court of appeals rejects student’s claim that

the injuries to his body (burns suffered at

school) were “constitutional” and therefore, not

excluded under the school district's liability pol-

icy exclusion for bodily injury. The district

17a

court’s judgment that school district’s liability

policy does not cover the student’s damages is

affirmed.

Noyola v. Texas Department of Human Resources,

846 F.2d 1021 (5th Cir. 1988):

District court denied individual defendant's

motion for summary judgment based upon the

defense of qualified immunity from plaintiff's

claims for violation of First Amendment free-

doms. Stating that plaintiff’s “case remains once

of nuance” and that “no Fifth Circuit case as of

1981 has found a first amendment violation on

facts like these,” the court of appeals reversed

and remanded for judgment in favor of the

defendants.

Lopez v. Houston Independent School District,

817 F.2d 1351 (5th Cir. 1987):

The court of appeals affirmed the district court's

dismissal of plaintiffs’ claims of federal and con-

stitutional violations against the school district

and its officials because there was no evidence

of any official policy or widespread practice

throughout the district which deprived constitu-

tional rights and plaintiffs could not bring suit

against the district’s officials in their individual

capacities.

Montgomery v. Trinity Independent School District,

809 F.2d 1058 (5th Cir. 1987):

Plaintiff claimed her probationary contract was

not renewed in retaliation for her disagreement

with policies, involvement in a Texas teachers’

association and for her husband’s “outspoken-

ness” regarding tax measures. The district court

granted a directed verdict for the school district

18a

and its officials. The court of appeals affirmed

because the teacher failed to present any facts in

support of her allegations.

McAdams v. Matagorda County Appraisal District,

798 F.2d 842 (5th Cir. 1986):

Plaintiff sued the district and its board members

for terminating him for the exercise speech pro-

tected by the First Amendment. The district

court granted summary judgment for defen-

dants on plaintiff’s due process claim and

entered judgment not withstanding the verdict

on the free speech claim. The court of appeals

affirmed noting that plaintiff made only private

statements to the board.

Thomas v. Harris County,

784 F.2d 648 (5th Cir. 1986) (per curiam),

cert denied, 122 L.Ed. 669 113 S.Ct. 1275 (1993):

Plaintiff claimed he was transferred for criticiz-

ing the police department and brought suit for

violation of his constitutional rights and con-

spiracy against the county, the city, the police

department, the district attorney, the mayor, the

chief of police, the former chief of police, var-

ious city officials and a subdivision association.

The district court granted summary judgment

for the defendants. Summary judgment affirmed

by the court of appeals for those defendants

against whom no claims were made and who

were immune from liability. 4

Kline v. North Texas State University, E

782 F.2d 1229 (5th Cir. 1986):

Plaintiff college professor brought suit for con-

structive discharge in violation of his First

Amendment rights against university and its

,

19a

officials for “failing to act.” The court of appeals

reversed and rendered the jury’s verdict for the

plaintiff based on the expiration of the statute of

limitations and plaintiff's failure to show how

the defendants created any “intolerable situa-

tion” or failed to exercise any applicable duty.

Langoria v City of Bay City, Texas,

779 F.2d 1136 (5th Cir. 1986):

Homeowners brought suit against city and var-

ious city officials for conspiracy to deprive them

of constitutional property rights through fraud-

ulent representations. The district court granted

summary judgment based on limitations. The

court of appeals affirmed and did not reach the

constitutional issues.