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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1211

## Text

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

|

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0411%3A2. Public record. Not legal advice.