Citations
- 300 F. Supp. 3d 857
Full opinion text
Sam A. Lindsay, United States District Judge
Before the court are: Defendant City of Irving's Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. 35), filed June 6, 2017; Defendant Irving Independent School District's Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. 38), filed June 29, 2017; Defendant Daniel Cummings's Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. 39), filed June 29, 2017; Defendants Miller's and Mitchell's Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. 42), filed July 18, 2017; Defendant Taylor's Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. 49), filed September 6, 2017; and Defendant Howman's Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. 52), filed September 12, 2017. Having considered the motions, responses, replies, pleadings, record, and applicable law, the court grants Defendant City of Irving's Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. 35); grants Defendant Irving Independent School District's Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. 38); grants Defendant Daniel Cummings's Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. 39); grants Defendants Miller's and Mitchell's Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. 42); grants Defendant Taylor's Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. 49); and grants Defendant Howman's Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. 52).
I. Background
This civil rights action stems from the September 14, 2015 suspension and arrest of A.M., a fourteen-year-old African-American Muslim freshman attending McArthur High School ("McArthur") in Irving, Texas. He was suspended from school and arrested on charges of bringing a "hoax bomb" to school. Mohamed Elhassan Mohamed ("Mr. Mohamed" or "Plaintiff"), as next friend for his minor son, A.M., filed this action on August 8, 2016, seeking monetary and injunctive relief against the City of Irving (the "City"), the Irving Independent School District (the "IISD"), and school principal Daniel Cummings ("Principal Cummings"). Mr. Mohamed alleged that Principal Cummings subjected A.M. to discriminatory discipline based on race and religion when he suspended A.M. for three days and, pursuant to 42 U.S.C. § 1983, sued him for alleged violations of A.M.'s constitutionally protected right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution. Alleging that Principal Cummings was acting pursuant to an unconstitutional practice of discriminatory discipline against African-American students sanctioned by the IISD's Board of Trustees, Mr. Mohamed also sued the IISD for Fourteenth Amendment violations as well for allegedly violating Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("Title VI"), by discriminating against A.M. on the basis of his race and religion. Although Mr. Mohamed did not sue any of the individual police officers involved in A.M.'s arrest, he sued the City under section 1983 alleging that it had failed to properly train and supervise its officers with respect to determining probable cause for arrest, and that these inadequacies caused the police officers' alleged violations of A.M.'s constitutionally protected rights under the Fourth and Fifth Amendments to the United States Constitution.
On May 18, 2017, the court issued a memorandum opinion and order granting the City's, Principal Cummings's, and the IISD's respective motions to dismiss, and dismissed all claims without prejudice, with the exception of Mr. Mohamed's section 1983 claim against the City premised on alleged violations of the Fifth Amendment and his Title VI claim against the IISD premised on religious discrimination, which were dismissed with prejudice, "as there [was] no legal basis for those claims." Mohamed v. Irving Indep. Sch. Dist. , 252 F.Supp.3d 602, 629 (N.D. Tex. 2017) (" Mohamed I "). The court granted Mr. Mohamed leave to file an amended pleading by June 1, 2017, as to all claims dismissed without prejudice. Id.
On June 1, 2017, Mr. Mohamed filed Plaintiff's First Amended Original Complaint (Doc. 27), and on June 15, 2017, the court granted Mr. Mohamed's motion for leave to file a Second Amended Complaint and to add as Defendants four City of Irving police officers: Robin Howman ("Officer Howman") and Charles Taylor ("Officer Taylor"), who were working as school resource officers at McArthur on the date of the incident; and Sergeant Richie Miller ("Sgt. Miller") and Sergeant Jeff Mitchell ("Sgt. Mitchell"), both of whom ultimately made the decision to arrest A.M.
On June 15, 2017, Mr. Mohamed, as next friend of A.M., filed Plaintiff's Second Amended Complaint ("Second Amended Complaint"), the live pleading. See Sec. Am. Compl. (Doc. 34). In addition to amending his pleadings in an attempt to overcome the pleading deficiencies identified by the court in Mohamed I with respect to his claims against the City, the IISD, and Principal Cummings, Mr. Mohamed brings claims against Officer Howman, Officer Taylor, Sgt. Miller, and Sgt. Mitchell (sometimes collectively, the "Officer Defendants") pursuant to section 1983, alleging that they violated the Fourth Amendment to the United States Constitution by arresting A.M. without probable cause on charges of bringing a "hoax bomb" to school in violation of section 46.08 of the Texas Penal Code and by using excessive force against him during the arrest. Mr. Mohamed asserts that Defendants are jointly and severally liable and, in addition to actual and compensatory damages, seeks declaratory and injunctive relief, exemplary damages, attorney's fees, and costs.
All Defendants have filed motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The City and the IISD contend that, although permitted an opportunity to amend his pleadings twice, Mr. Mohamed has failed to cure the pleading deficiencies noted by the court in Mohamed I and that his additional allegations are conclusory and insufficient to state a claim. Principal Cummings similarly argues that the amended pleadings are insufficient to overcome his entitlement to qualified immunity. The City, the IISD, and Principal Cummings request that all claims be dismissed with prejudice, as Mr. Mohamed has already had two previous opportunities to amend.
Sgt. Miller and Sgt. Mitchell, who were not parties in Mohamed I , assert their entitlement to qualified immunity and contend that Mr. Mohamed's section 1983 claim against them for unlawful arrest and excessive force in violation of the Fourth Amendment must be dismissed because he fails to allege any underlying Fourth Amendment violation and because they did not violate clearly established law of which a reasonable law enforcement officer would have known. Officers Taylor and Howman also assert their entitlement to qualified immunity and make similar arguments to those made by Sgt. Miller and Sgt. Mitchell. In addition, Officers Taylor and Howman contend that dismissal is required on the face of the pleadings, as Mr. Mohamed alleges that it was Sgt. Miller and Sgt. Mitchell who made the decision to arrest A.M. and who used force against A.M., rather than either of them, thereby defeating any Fourth Amendment claim against them for arrest without probable cause or excessive force.
Mr. Mohamed counters that the allegations in the Second Amended Complaint are factually and legally sufficient to withstand a Rule 12(b)(6) motion to dismiss. He urges the court to deny the motions to dismiss.
The court now sets forth the allegations drawn from the Second Amended Complaint. In its recitation of the facts, the court applies the legal standard set forth in Section II of this Memorandum Opinion and Order and accepts all well-pleaded facts as true and views them in the light most favorable to Mr. Mohamed. Sonnier v. State Farm Mut. Auto. Ins. Co. , 509 F.3d 673, 675 (5th Cir. 2007).
A. Allegations Relating to September 14, 2015 Arrest and Suspension of A.M.
On September 14, 2015, A.M., then a 14-year-old freshman, brought a homemade device to school in an "8 ½? by 5? Vaultz pencil box" that included "a 7 segment display, a pcb board, a 9 volt battery, some wires (from a media player that wasn't working), a 120-240 volt transformer, [and] a button board." Sec. Am. Compl. ¶ 57. A.M. showed the device to his Geometry teacher, Mr. Lemons, who told him that it was "really nice" and advised him to keep it in his backpack. Id. ¶ 58. Later that same day, notwithstanding Mr. Lemon's instruction, A.M. removed the device from his backpack and showed it to another student during his fourth period English class. Id. The device made a beeping sound and caught the attention of his English teacher, Erin West ("Ms. West"). Id. Ms. West heard the beeping noise but did not know whence it came. Id. After class, A.M. approached Ms. West with the device and reminded her that the prior Friday he had told her he was going to build her something that weekend and bring it to school to show her. Id. When A.M. showed her the device, she asked: "[I]s that a bomb?" Id. A.M. was surprised and confused by her question, since he had built many contraptions over the years and taken them to school to show teachers, and he replied, "no, it's an alarm clock, see?" Id. Ms. West took the device from A.M., told him she would give it back to him at the end of the day, and placed it in her desk. Id. "For the next several hours, the homemade clock was out of A.M.'s hands." Id. Notwithstanding that McArthur had a bomb threat protocol, Ms. West did nothing to engage the protocol. Id. ¶ 59. "There was no alarm raised, no evacuation, [and] no bomb squad called." Id. ¶ 58. A few weeks later, a person called in a bomb threat and the entire school was evacuated in accordance with the emergency protocol. Id. ¶ 59.
Ms. West continued to conduct her classes. Id. ¶ 60. At 12:45 p.m., Ms. West sent an e-mail to Officer Howman stating: "I confiscated something from a student in my classroom that I would like for you or Officer Taylor to take a look at. I can't come down until 8th period. Is there a way for one of you to stop by Room (804) before this." See Joint App. in Supp. of Daniel Cummings's and IISD's Mot. to Dismiss Pl.'s Sec. Am. Compl. ("Joint App.") at Ex. A (September 14, 2015 e-mail) (Doc. 40 at 2). Officer Howman told Ms. West that he would come to her room after he finished eating in ten to fifteen minutes. Sec. Am. Compl. ¶ 60. When Officer Howman arrived, Ms. West took the device into the hallway and plugged it into an electric socket on the wall to demonstrate the clock to Officer Howman. Id. Following this initial inspection, Officer Howman brought the device to the school resource office and showed it to Officer Taylor, who took a picture of the device and sent it to Sgt. Mitchell and Sgt. Miller. Id. After receiving the picture, Officers Miller and Mitchell drove to McArthur. Id.
Several hours after Ms. West took the device from A.M., Principal Cummings and Officer Howman removed A.M. from his afternoon class and escorted him to a room where four more City police officers and school counselor, Ms. Wong, were waiting. Id. ¶ 61. When A.M. entered the room, Officer Taylor said, "Yep, that's who I thought it was." Id.
The IISD Student Handbook provides, in pertinent part:
LAW ENFORCEMENT AGENCIES (All Grade Levels)
Questioning of Students
....
- The principal will verify and record the identity of the officer or other authority and ask for an explanation of the need to question or interview the student at school.
- The principal ordinarily will make reasonable efforts to notify the parents unless the interviewer raises what the principal considers to be a valid objection.
Id. ¶ 62.
According to the Second Amended Complaint:
A.M. was interrogated for almost an hour and a half by the Irving police, despite his pleas for his parents. The Irving police, the Mayor of Irving and the IISD have all represented to the public that A.M. was "less than forthcoming" during his interrogation. However, A.M. repeatedly told them that it was an alarm clock, not a bomb, which was true. He repeatedly told them that he had made it to show his English teacher, which was true. The clock functioned as a crude alarm clock. A.M. never represented that it was anything else, he never made any threat of harm, he never said he had a bomb, and he never attempted to scare anyone or cause alarm. A.M. never misrepresented a single thing. Tellingly, the Irving police eventually dropped the charges for which they arrested him and it was stated that there was no proof that A.M. had "intent to cause alarm."
Id. ¶ 63.
When A.M. asked for his parents, he was told that he could not talk to them because he was in the middle of an interrogation. Id. ¶ 64. During the interrogation, Principal Cummings told A.M. to write a statement and "threatened to expel him if he did not." Id. ¶ 65. A.M. was "terrified" and did not want to write anything. Id. At 3:01 p.m., A.M. wrote on a piece of paper under the heading "Write in your own words what happened": "I Built a clock, Cops think It's a Bomb." Joint App. 4, Declaration of Daniel Cummings at Ex. A (September 14, 2015 Statement) (Doc. 40-4). Mr. Mohamed alleges that A.M. wrote the statement because he was threatened and did not have anything to hide, and that the reason he wrote "that he made an alarm clock and the authorities thought was a bomb" is because "that was what they were telling him." Sec. Am. Compl. ¶ 65. In the same Statement, at 3:02 p.m., Principal Cummings wrote: "I asked A.M. again, "What was your intent for building the clock? A.M. still will not tell me his intent for building a clock and bringing it to school." Joint App. 2. "Near the end of the interrogation, [Sgt.] Miller told Officer Taylor to look in the penal code book for the components of making a bomb or a hoax bomb. Officer Howman also pulled out his penal code book to assist in the search for a crime of which to charge A.M." Sec. Am. Compl. ¶ 66.
Mr. Mohamed alleges that:
Despite the fact that A.M. had told them about making the clock, despite the fact that they realized that it was, indeed, a crude alarm clock, despite th[e] fact that nobody-not one single person-alleged that A.M. had tried to scare them with it, had claimed it was a bomb or weapon or tried to cause alarm, despite the fact that nobody had cleared their classroom, called for emergency protocol or called in a bomb squad, [Sergeants] Miller and Mitchell made the decision to arrest A.M. for the offense of "hoax bomb." At that point, [Sergeants] Mitchell and Miller pulled A.M. forcefully out of his chair [and] yanked his arms up behind his back so far that his right hand touched the back of his neck, causing a lot of pain. Officer Howman placed A.M. in handcuffs and marched him out of the front of the school, all four officers involved in the arrest, two on each side of A.M.
Id. ¶ 67. Mr. Mohamed further alleges that:
Because Officer Howman was the arresting officer, A.M. was placed in the back of Officer Howman's police vehicle; however, when Officer Howman noticed that the mobile video was not working in his car, A.M. was transferred to Officer Taylor's police vehicle. They put him into the back of a police car. They took him to the police station and booked him as a criminal, with mugshots and fingerprinting-all still without his parents. On the way to the station, Officer Taylor told Officer Howman that [Sergeants] Mitchell and Miller wanted the device to show the captain, so Officer Howman gave the clock to [Sgt.] Miller when he arrived at the police station.
When at the station, A.M. was seated in handcuffs in a room with Officers Taylor and Howman, who further questioned A.M. while [Sergeants] Mitchell and Miller inquired, presumably with their superiors, regarding how to proceed with the matter. Eventually, [Sgt.] Miller returned to tell Officers Taylor and Howman that A.M. was going to be processed and released to his parents at the station. Only at this point did Officer Howman called A.M.'s father, who indicated that he would be at the police station in 5 minutes. Around this time, Officer Taylor escorted A.M. to the juvenile division of the jail for processing.
Id. ¶¶ 69-70. Mr. Mohamed contends:
A "hoax" is "something intended to deceive or defraud." A.M.'s Geometry teacher asked him what he had made and he said "an alarm clock." A.M.'s English teacher asked him what he had made and he said "an alarm clock." The principal and the police asked A.M. what he had made and he said "an alarm clock." There is no telling how many times that day A.M. explained that he had made "an alarm clock." There was not a single person who stated that A.M. had said anything "intended to deceive or defraud." As far as what the device looked like, the most telling thing so far (besides looking at it wherein it is incredibly obvious that it is not a bomb) is the Irving police internal email obtained through a FOIA request where the officer candidly chides the others and states, "That thing doesn't even look like a bomb." The pencil box is one that A.M. carried throughout the seventh grade without a problem. You can buy the same one right now on Amazon (Vaultz pencil box) for $14.99 (the one with Minions on it is a little more expensive).
Id. ¶ 71.
Thereafter, Mr. Mohamed arrived at the police station and, as he waited to see his son, Officer Howman came to speak with him and informed him that A.M. had been arrested for taking a "hoax bomb" to school and that he was still being processed and fingerprinted. Id. ¶ 72. Mr. Mohamed tried to explain to Officer Howman that A.M. was interested in robotics and created things, but she was unwilling to listen to his explanations. Id. Sgt. Mitchell then arrived on the scene and repeated to Mr. Mohamed that A.M. had been arrested for bringing a "hoax bomb" to school, and was similarly unwilling to listen to his explanations. Id. ¶ 73. After A.M.'s mother and sister arrived, Mr. Mohamed asked whether they could see A.M. to find out what happened. Id. ¶ 74. Sgt. Mitchell said they could not see A.M. until the arrest was processed and completed. Id. Thereafter, Officer Taylor brought A.M. to his family in handcuffs, shoving A.M. as he walked and telling him to "hurry up." Id. After speaking with A.M., Mr. Mohamed urged the officers to drop all charges, stating that A.M. had done nothing wrong, but the officers refused to discuss this possibility. Id. ¶ 75.
As they were leaving, A.M.'s family asked for his electronic tablet back, which was refused. Id. ¶ 76. Sgt. Mitchell instructed them to leave the premises or risk having charges brought against them. Id.
Later that evening, Mr. Mohamed received an e-mail from Vice Principal Patrick Smith, stating that A.M. would be suspended from McArthur and all IISD properties for three days for violating the Student Code of Conduct by possessing prohibited items. Id. ¶ 77. A.M. alleges that he was not in possession of any items prohibited by the Student Code of Conduct. Id. All charges against A.M. were ultimately dropped, and the City's police chief admitted that the arrest of A.M. was a "mistake." Id.
The Second Amended Complaint alleges that the "United States Department of Justice has opened an investigation into the conduct of the [IISD], not just with respect to the treatment of [A.M.], but regarding its pattern of discrimination." Id. ¶ 78. It also alleges that a justice department official stated, "The Civil Rights Division has an investigation into the Irving School District regarding both harassment and the discipline of students on the basis of race, religion and national origin." Id. According to the Second Amended Complaint, that the investigation is ongoing. Id.
B. Allegations Relating to Racism in the IISD
According to the Second Amended Complaint, the IISD has an "ugly history of race struggles," and the State of Texas and the IISD have a "history of discrimination against Muslims in Texas curriculum and schools." Id. ¶ 13. In 2010, the Texas Board of Education adopted a state-wide social studies and history curriculum that amended or watered down teachings about the civil rights movement, religious freedom, and America's relationship with the United Nations, and also adopted a resolution that sought to limit references to Islam in textbooks, claiming the materials were "pro-Islamic, Anti-Christian distortions." Id. ¶ 14. Data from the Texas Education Agency ("TEA") show racial disparities in student discipline in the IISD between 2007 and 2015. Id. ¶¶ 19-26.
In 2008, the IISD's then-Superintendent entered into a "Memorandum of Understanding" with the Irving Education Coalition in which the IISD agreed that it would have the data showing racial disparities in student discipline and allegations of discrimination based on race analyzed. Id. ¶ 27. The IISD hired Dr. Mack Hines ("Dr. Hines") "to provide professional development expertise to teachers on how to develop desired positive behavioral responses from African American students in the classroom." Id. ¶ 28. Dr. Hines conducted a study and created a report titled "The Skin They're In." Id. In the report, Dr. Hines "found that the most frequently cited area of racial disparity was school discipline practices[ ]" and that African-American students were "reprimanded differently and received suspensions more frequently." Id. ¶ 30. Dr. Hines concluded that the findings from his study pointed to "dysconscious racism," which is "knowingly or unknowingly discriminating against people because of race." Id. ¶ 32. In September 2011, the Board of Trustees met with Dr. Hines concerning his study and report and "reacted to the negative manner in which the report was received (particularly where it concluded there was an IISD 'race war' between Hispanics and African-Americans) by determining that Dr. Hines went beyond the scope of what he was hired to do, did not use proper methodologies and they declined to implement his recommendations to address the problems." Id. ¶ 34.
In 2011, Dr. Steven Jones ("Dr. Jones"), a white male, campaigned for election on the IISD Board of Trustees against Nancy Jones, an African-American female incumbent, and during the campaign he made racially charged statements, including calling the IISD a "black town" and stating that "a vote for me is a vote against a black controlled school district." Id. ¶ 33. After Dr. Jones was elected, he filed two unsubstantiated complaints against the IISD's then-Superintendent, Dr. Dana Bedden ("Dr. Bedden"), an African-American male, and declared his intent to get Dr. Bedden fired. Id. In 2013, the IISD investigated Dr. Jones, and he was ultimately censured by the Board of Trustees for violating numerous school policies, including forbidding persons in the IISD from speaking Spanish. Id. ¶¶ 36-38. Following his censure, there were new school board elections and Dr. Jones was successful in filling the school board with "like-minded people." Id. ¶ 38.
Mr. Mohamed alleges:
In March 2015, the Irving City Council, with the exuberant backing of Irving Mayor Beth Van Duyne, voted to support a law stating that foreign laws do not apply in U.S. courts. Regarding the need for such legislation, Mayor Van Duyne wrote, in pertinent part, "Sharia Law Court was NOT approved or enacted by the City of Irving ....Our nation cannot be so overly sensitive in defending other cultures that we stop protecting our own." Despite similar institutions having existed for decades in the American Jewish and Christian faith communities, the law backed by the Mayor and City Council was created in response to a local Islamic tribunal that mediated in civil cases on a voluntary basis for members of the Muslim community. Mayor Van Duyne and the City Council's actions in this regard created immense tension between the white community and the Muslim community, tensions that were further flamed when, on January 26, 2017, Mayor Van Duyne formally urged lawmakers at the Texas Homeland Security Forum in Austin to investigate the legality of Islamic tribunals in North Texas. In May 2017, Mayor Van Duyne joined the current presidential administration-the same administration headed by a man who in March 2016 said, "I think Islam hates us. There's something there that-there's a tremendous hatred there."
Id. ¶ 39.
C. Allegations Relating to City's Implementation of the Criminal Alien Program
In 2006, the City instituted the Criminal Alien Program ("CAP"), a program run by the Department of Homeland Security that "was meant to give local law enforcement officials access to Immigration and Customs Enforcement ("ICE") information and personnel to facilitate the identification of serious, dangerous criminals and deport them." Id. ¶ 40. A report by the University of California, Berkeley School of Law indicated that CAP "leads to rampant profiling and wrongful arrests." Id. The report found that during the City of Irving Police Department's participation in CAP, there was a 150% increase in petty crimes arrests. Id. Mr. Mohamed alleges that Congress made clear that ICE "should have no greater enforcement priority than to remove deportable aliens with serious criminal histories from the United States." Id. Mr. Mohamed further alleges that "the results of Irving's aggressive arrest policies didn't target serious criminals." Id. Mr. Mohamed contends that after the City's Police Department implemented CAP, only 2% of ICE detainees were subject to felony charges, while 98% were charged with misdemeanor offenses. Id. Mr. Mohamed alleges that "[a]s a result, Irving police officers engaged in a pattern of unconstitutional arrests." Id.
II. Rule 12(b)(6) Standard
To defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face."
Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Reliable Consultants, Inc. v. Earle , 517 F.3d 738, 742 (5th Cir. 2008) ; Guidry v. American Pub. Life Ins. Co. , 512 F.3d 177, 180 (5th Cir. 2007). A claim meets the plausibility test "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted). While a complaint need not contain detailed factual allegations, it must set forth "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). The "[f]actual allegations of [a complaint] must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (quotation marks, citations, and footnote omitted). When the allegations of the pleading do not allow the court to infer more than the mere possibility of wrongdoing, they fall short of showing that the pleader is entitled to relief. Iqbal , 556 U.S. at 679, 129 S.Ct. 1937.
In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Sonnier, 509 F.3d at 675 ; Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit , 369 F.3d 464, 467 (5th Cir. 2004) ; Baker v. Putnal , 75 F.3d 190, 196 (5th Cir. 1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id. ; Spivey v. Robertson , 197 F.3d 772, 774 (5th Cir. 1999). The pleadings include the complaint and any documents attached to it. Collins v. Morgan Stanley Dean Witter , 224 F.3d 496, 498-99 (5th Cir. 2000). Likewise, " '[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [the plaintiff's] claims.' " Id. (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp ., 987 F.2d 429, 431 (7th Cir. 1993) ). In this regard, a document that is part of the record but not referred to in a plaintiff's complaint and not attached to a motion to dismiss may not be considered by the court in ruling on a 12(b)(6) motion. Gines v. D.R. Horton, Inc. , 699 F.3d 812, 820 & n.9 (5th Cir. 2012) (citation omitted). Further, it is well-established and " 'clearly proper in deciding a 12(b)(6) motion [that a court may] take judicial notice of matters of public record.' " Funk v. Stryker Corp. , 631 F.3d 777, 783 (5th Cir. 2011) (quoting Norris v. Hearst Trust , 500 F.3d 454, 461 n.9 (5th Cir. 2007) (citing Cinel v. Connick , 15 F.3d 1338, 1343 n.6 (5th Cir. 1994) ).
The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid claim when it is viewed in the light most favorable to the plaintiff. Great Plains Trust Co. v. Morgan Stanley Dean Witter , 313 F.3d 305, 312 (5th Cir. 2002). While well-pleaded facts of a complaint are to be accepted as true, legal conclusions are not "entitled to the assumption of truth." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 (citation omitted). Further, a court is not to strain to find inferences favorable to the plaintiff and is not to accept conclusory allegations, unwarranted deductions, or legal conclusions. R2 Invs. LDC v. Phillips , 401 F.3d 638, 642 (5th Cir. 2005) (citations omitted). The court does not evaluate the plaintiff's likelihood of success; instead, it only determines whether the plaintiff has pleaded a legally cognizable claim. United States ex rel. Riley v. St. Luke's Episcopal Hosp. , 355 F.3d 370, 376 (5th Cir. 2004). Stated another way, when a court deals with a Rule 12(b)(6) motion, its task is to test the sufficiency of the allegations contained in the pleadings to determine whether they are adequate enough to state a claim upon which relief can be granted. Mann v. Adams Realty Co. , 556 F.2d 288, 293 (5th Cir. 1977) ; Doe v. Hillsboro Indep. Sch. Dist ., 81 F.3d 1395, 1401 (5th Cir. 1996), rev'd on other grounds , 113 F.3d 1412 (5th Cir. 1997) (en banc). Accordingly, denial of a 12(b)(6) motion has no bearing on whether a plaintiff ultimately establishes the necessary proof to prevail on a claim that withstands a 12(b)(6) challenge. Adams , 556 F.2d at 293.
III. Analysis
The City, the IISD, and Principal Cummings move anew to dismiss Mr. Mohamed's section 1983 claims on the grounds that the Second Amended Complaint does not cure the pleading deficiencies the court identified in Mohamed I , and although certain allegations may have been added, the newly pleaded allegations are still insufficient to state a plausible claim for relief or, in the case of Principal Cummings, fail to overcome his entitlement to qualified immunity. The IISD also moves anew to dismiss Mr. Mohamed's Title VI claim on the basis that he has failed to cure the deficiencies set forth by the court in Mohamed I .
With respect to Mr. Mohamed's section 1983 claims against the Officer Defendants for unlawful arrest and excessive force in violation of the Fourth Amendment, each officer has asserted his or her entitlement to qualified immunity, and filed a motion to dismiss on this basis. In addition to asserting qualified immunity, Officers Taylor and Howman contend that dismissal is required on the face of the pleadings, as Mr. Mohamed alleges that it was Sgt. Miller and Sgt. Mitchell who made the decision to arrest A.M. and who used force against him, rather than either of them, thereby defeating any Fourth Amendment claim against them for arrest without probable cause or excessive force.
The court will address the City's and the IISD's respective motions to dismiss Mr. Mohamed's section 1983 claims together, as they are both government entities. Both the City and the IISD argue that the amended pleadings are insufficient to cure the deficiencies detailed by the court in Mohamed I .
A. Section 1983 Claims Against the City and the IISD
Title 42 U.S.C. § 1983"provides a civil remedy in federal court for violations, under color of state law, of a person's constitutionally recognized rights, privileges, or immunities." Miller v. Metrocare Servs. , 809 F.3d 827, 833 (5th Cir.), cert. denied , --- U.S. ----, 136 S.Ct. 2463, 195 L.Ed.2d 801 (2016) (quoting Bledsoe v. City of Horn Lake , 449 F.3d 650, 653 (5th Cir. 2006) ). To state a claim under section 1983, a plaintiff must: (1) allege a violation of rights secured by the Constitution or laws of the United States, and (2) demonstrate that the alleged deprivation was committed by a person or entity acting under color of state law. See Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252-53 (5th Cir. 2005) (citations omitted); Doe v. Dallas Indep. Sch. Dist. , 153 F.3d 211, 215 (5th Cir. 1998) (citations omitted).
A governmental entity, such as the City or the IISD, can be sued and subjected to monetary damages and injunctive relief under 42 U.S.C. § 1983 only if its official policy or custom causes a person to be deprived of a federally protected right. Board of the Cty. Comm'rs of Bryan Cty. v. Brown , 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ; Monell v. New York City Dep't of Soc. Servs. , 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A governmental entity cannot be liable for civil rights violations under a theory of respondeat superior or vicarious liability. Id. ; see also Barrow v. Greenville Indep. Sch. Dist. , 480 F.3d 377, 380 (5th Cir. 2007) ("A school district has no vicarious liability under § 1983."); Baskin v. Parker , 602 F.2d 1205, 1208 (5th Cir. 1979) (recognizing that "state vicarious liability doctrines are inapplicable in [ section] 1983 suits."). Official policy is defined as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the [school district or city] lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of [school district or city] officials or employees which, although not authorized by officially adopted and promulgated policy, is so common and well-settled as to constitute a custom that fairly represents [school district or city] policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the [school district or city] or to an official to whom that body had delegated policy-making authority.
Webster v. City of Houston , 735 F.2d 838, 841 (5th Cir. 1984) (en banc ); Bennett v. City of Slidell , 735 F.2d 861, 862 (5th Cir. 1984) (en banc ). For purposes of a motion to dismiss under Rule 12(b)(6), a plaintiff must plead facts from which the court can reasonably infer that the "challenged policy was promulgated or ratified by the city's policymaker." Groden v. City of Dallas, Texas , 826 F.3d 280, 285 (5th Cir. 2016). "[C]ourts should not grant motions to dismiss for [the] fail[ure] to plead the specific identity of the policymaker." Id. (citing Johnson v. City of Shelby, Miss. , --- U.S. ----, 135 S.Ct. 346, 190 L.Ed.2d 309 (2014) ). The ultimate question in deciding the sufficiency of a complaint is whether a person has alleged facts to show that a policymaker promulgated or ratified an unconstitutional policy that resulted in injury to him or her.
To defeat "a motion to dismiss, a complaint's 'description of a policy or custom and its relationship to the underlying constitutional violation...cannot be conclusory; it must contain specific facts.' " Balle v. Nueces Cty. Tex. , 690 Fed.Appx. 847, 852 (5th Cir. 2017) (quoting Spiller v. City of Tex. City, Police Dep't , 130 F.3d 162, 167 (5th Cir. 1997) ). In other words, the pleadings are adequate with respect to a section 1983 claim against a governmental entity when they set forth "specific factual allegations that allow a court to reasonably infer that a policy or practice exists and that the alleged policy or practice was the moving force" for the constitutional violation asserted. Id. (citation omitted).
1. The City-Fourth Amendment Claims
In Mohamed I , the court held that Mr. Mohamed failed "to allege a policy, custom, or practice of the City that was the moving force behind A.M.'s allegedly unconstitutional arrest in violation of the Fourth Amendment, or to adequately allege the elements of a failure to train claim[,]" and, therefore, dismissed Mr. Mohamed's Fourth Amendment claim against the City. Mohamed I , 252 F.Supp.3d at 619. Specifically, the court stated:
First, Plaintiff fails to identify any official policy that allegedly caused the underlying constitutional violation. In the absence of an officially promulgated policy, Plaintiff must allege a constitutional deprivation that was more than an isolated incident but was caused by a practice that was sufficiently widespread to constitute a custom having the force of law ... Plaintiff has not made these allegations. Accordingly, the court is left with an isolated, allegedly unconstitutional incident, which is generally insufficient to establish an official policy or custom for section 1983 purposes.
Id. at 618 (citations omitted). The court also rejected Mr. Mohamed's reliance on allegations concerning the City's participation in the CAP program, noting that "the court is unable to connect participation by the City in CAP, a program the Complaint alleges was supervised by DHS and designed to target criminal aliens, with the police officers' arrest of A.M., a United States citizen, or the contention that the arrest was made without probable cause." Id. The court further rejected Mr. Mohamed's reliance on a seven-year old policy brief authored by two individuals affiliated with Berkeley Law School (the "Berkeley report") concerning race and ethnicity, explaining that it "failed to understand the connection between [this report], and any allegation that a policy or custom of the City was a moving force behind A.M.'s arrest." Id. at 618 n.8.
The court also dismissed Mr. Mohamed's failure to train claim, explaining that:
As an alternative basis for a section 1983 claim against the City, Plaintiff makes the conclusory allegation that the Irving Police Department failed to properly train and supervise its officers with respect to determining probable cause for arrest. See Compl. ¶¶ 88-91. Plaintiff, however, fails to allege how the City's training policy on probable cause was inadequate. Rather, Plaintiff relies on the conclusory allegation that "Irving police officers engaged in a pattern of unconstitutional detentions/arrests at least as far back as 2006." Id. ¶ 88. Plaintiff also makes the conclusory allegation that, at some unknown time in the past, the City's police chief allegedly acknowledged a pattern of unconstitutional detentions and arrests. Id. These conclusory allegations are inadequate to support a failure to train claim. There are no allegations concerning what type of training was being provided to the Irving police officers at or near the time A.M. was arrested, or any allegations as to how the training was defective. Absent such allegations, the Complaint fails to state a section 1983 claim for failure to train. See Zarnow v. City of Wichita Falls , 614 F.3d 161, 170 (5th Cir. 2010) (For liability to attach based on an inadequate training program, a plaintiff must allege with specificity how a particular training program of a city is defective.) (citation omitted).
Id. at 618-19. In addition, based on Mr. Mohamed's lack of response to the City's motion to dismiss his claim that it was liable under section 1983 for failure to supervise, the court dismissed this claim based on waiver and abandonment. Id. at 619 n.9.
In the Second Amended Complaint, Mr. Mohamed provides no new allegations concerning any policy or custom of the City. Instead, he continues to rely on the City's participation in the CAP program and on the Berkeley report. Compare Orig. Compl. ¶¶ 86-90 (Doc. 27) with Sec. Am. Compl. ¶¶ 95-98 (Doc. 34). The court agrees with the City that: "Plaintiff's persistent reliance on the CAP Program and the Berkeley report in support of their [municipal liability] claim is inexplicable, as the Court has already explicitly rejected any connection between CAP and the Berkeley report and Plaintiff's claims." City's Reply 7 (Doc. 63).
While Mr. Mohamed has not identified a specific policy, or adequately alleged a custom or practice, that was the moving force behind any alleged violation of A.M.'s Fourth Amendment rights, he has added the following to his original allegation that in March of 2015, the City Council voted in support of a state law providing that foreign laws do not apply in United States courts:
In March 2015, the Irving City Council, with the exuberant backing of Irving Mayor Beth Van Duyne, voted to support a law stating that foreign laws do not apply in U.S. courts. Regarding the need for such legislation, Mayor Van Duyne wrote, in pertinent part, "Sharia Law Court was NOT approved or enacted by the City of Irving .... Our nation cannot be so overly sensitive in defending other cultures that we stop protecting our own." Despite similar institutions having existed for decades in the American Jewish and Christian faith communities, the law backed by the Mayor and City Council was created in response to a local Islamic tribunal that mediated in civil cases on a voluntary basis for members of the Muslim community. Mayor Van Duyne and the City Council's actions in this regard created immense tension between the white community and the Muslim community, tensions that were further flamed when, on January 26, 2017, Mayor Van Duyne formally urged lawmakers at the Texas Homeland Security Forum in Austin to investigate the legality of Islamic tribunals in North Texas. In May 2017, Mayor Van Duyne joined the current presidential administration-the same administration headed by a man who in March 2016 said, "I think Islam hates us. There's something there that-there's a tremendous hatred there."
Id. ¶ 39. With respect to these new allegations, Mr. Mohamed has failed to plead facts sufficient to establish, or from which the court can reasonably infer, that any policy of the City supporting a state law prohibiting application of foreign laws in United States courts was the moving force behind A.M.'s arrest or of any arrest allegedly made without probable cause by the City's police officers; or that any alleged statements by Mayor Van Duyne or President Trump establish a policy of the City that is connected in any way to A.M.'s arrest for bringing a hoax bomb to school. Further, what President Trump, former-Mayor Van Duyne, or any government official of the President's administration says, is quite beside the point and does not factor into the court's analysis insofar as its resolution of the issues in this case. Moreover, nothing in the pleadings even remotely intimates that the City Council of Irving has abdicated its policymaking authority or oversight function for the City and delegated such authority or oversight to President Trump or any official in his administration. Such alleged statements regarding President Trump or ex-Mayor Van Duyne simply have no nexus to the issues in this case.
As to Mr. Mohamed's claim that the City's police department failed to train its officers with respect to determining probable cause for arrest, the Second Amended Complaint contains no new allegations, and continues to rely on conclusory allegations that are insufficient under Twombly , 550 U.S. at 570, 127 S.Ct. 1955. Accordingly, for the reasons already set forth in Mohamed I , the court concludes that the failure to train allegations in the Second Amended Complaint are insufficient. See Mohamed I , 252 F.Supp.3d at 618-19.
Finally, although the Second Amended Complaint, like the original Complaint, alleges a claim against the City for failure to supervise its officers, Mr. Mohamed once again fails to address the City's motion to dismiss this claim in his response brief. As such, the court concludes, as it did in Mohamed I , that he has conceded that he has failed to state a claim for failure to supervise against the City or, alternatively, by not addressing this claim, he has abandoned it. Accordingly, this claim will be dismissed.
In sum, for the reasons stated above and those set forth in Mohamed I , incorporated herein by reference as if repeated verbatim, the court concludes that Mr. Mohamed has failed to cure the pleading deficiencies pointed out by the court in Mohamed I with respect to his section 1983 claim against the City. Specifically, even considering the amended pleadings, Mr. Mohamed has failed to adequately allege a policy or custom of the City that was the moving force behind the alleged Fourth Amendment constitutional violations, or adequately pleaded a failure to train claim. See Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ("Threadbare recitals of elements of causes of action, supported by mere conclusory statements, do not suffice."). Accordingly, the court will grant the City's motion to dismiss Mr. Mohamed's section 1983 claim for Fourth Amendment violations.
2. The IISD-Fourteenth Amendment Equal Protection Claim
In Mohamed I , the court granted the IISD's motion to dismiss Mr. Mohamed's Fourteenth Amendment equal protection claim. The court explained:
First, other than wholesale conclusory and speculative statements, Mr. Mohamed does not allege any facts from which this court can reasonably infer that any IISD employee intentionally discriminated against A.M. based on his race or religion. Mr. Mohamed does not allege that the IISD treated A.M. differently because of his race or religion than other students involved in similar disciplinary situations. Absent allegations of intentional discrimination, or allegations from which the court can reasonably infer intentional discrimination, Mr. Mohamed fails to allege an equal protection violation against the IISD. See Coleman v. Houston Indep. Sch. Dist. , 113 F.3d 528, 533 (5th Cir. 1997) ("[T]o state a claim of racial discrimination under the Equal Protection Clause and § 1983, a plaintiff must demonstrate that the governmental official was motivated by intentional discrimination on the basis of race.") (citations omitted).
Alternatively, Mr. Mohamed fails to allege adequately facts to support liability against the IISD under section 1983. Mr. Mohamed does not allege that the IISD's Board of Trustees maintained an unconstitutional policy of discriminatory discipline based on race or religion. The sole allegation in the Complaint is that a "pattern of discrimination" in the IISD, as shown by student discipline statistics allegedly compiled by the TEA, "led directly" to the "over-discipline of [A.M.] for showing off his home-made clock-in-a-pencil-box to his teachers." Compl. ¶ 87. The law is clear that "the description of a policy or custom and its relationship to the underlying constitutional violation cannot be conclusory; it must contain specific facts." Birabil v. Martinez , 2016 WL 4402259, at *5 (N.D. Tex. July 11, 2016) (quoting Spiller v. City of Tex. City, Police Dep't , 130 F.3d 162, 167 (5th Cir. 1997) ) (report and recommendation adopted, 2016 WL 4411412 (N.D. Tex. Aug. 18, 2016) ). In Spiller , the Fifth Circuit found the allegations that several policies "led to" unspecified "unconstitutional arrests and confinements," and that a departmental policy of "engag[ing] in conduct toward African American citizens without regard to probable cause to arrest" were too vague and conclusory to support alleged municipal liability under Monell . 130 F.3d at 167. Mr. Mohamed's allegations fail for the same reason.
Further, allegations regarding findings of disparate discipline in TEA reports and an alleged anti-Muslim bias in the community are not "facts [that] establish that the challenged policy was promulgated or ratified by the [school district's] policymaker," in this case the Board of Trustees. See Groden , 826 F.3d at 285.
Mohamed I , 252 F.Supp.3d at 616-17.
Having reviewed the allegations in the Second Amended Complaint, the court concludes that, as with the original Complaint, it does not contain sufficient factual allegations from which the court can reasonably infer that A.M. was subject to unequal disciplinary treatment based on his religion or race, and does not contain adequate factual allegations to state a plausible section 1983 claim against the IISD based on a policy or custom that led to a constitutional deprivation. For these reasons, as well as those set forth in the IISD's legal brief, the court determines that Mr. Mohamed's section 1983 equal protection claim against the IISD should be dismissed for failure to state a claim.
The court notes that Mr. Mohamed makes a new allegation regarding a separate lawsuit brought by a Sunni Muslim student against the IISD alleging peer harassment based on his religion. See Sec. Am. Compl. ¶ 79 (citing Iqbal Bhombal, Individually and as Next Friend of Z.B., a Minor v. Irving Indep. Sch. Dist. and Lindsay Sanders, in her Individual Capacity , Cause No. 3:17-cv-01276-D (N.D. Tex., filed May 11, 2017) ). Assuming the facts as true in the Bhombal case, references to peer harassment are irrelevant to Mr. Mohamed's section 1983 claims against the IISD, as peers are not state actors. Further, allegations in a lawsuit filed seventeen months after the September 14, 2015 incident at issue, in no way cure the lack of adequate pleadings in this case. In addition, the court notes that the CM-ECF Docket Sheet in that case reflects that on September 19, 2017, that action was dismissed without prejudice based on the plaintiffs' failure to show good cause for failing to effect service of process on the defendants. See Cause No. 3:17-cv-01276-D (Doc. 10).
Further, the allegation in the Second Amended Complaint that "anti-Muslim bias permeated" the IISD, referring to a chain e-mail from a community member, and an alleged report that found "bias against radical Islam" in Texas's state-wide curriculum management system, are also insufficient to allege that the IISD adopted or promulgated an official policy of racial or religious discrimination or that there was such a "persistent, widespread practice" of discrimination "so common and well-settled" that it fairly represents IISD policy. See Bennett , 735 F.2d at 862.
Mr. Mohamed in his response asserts that he needs a chance to conduct discovery to find out if his suspicions against the IISD are true and that it treated similarly situated students differently based on racial or religious criteria. See Pl.'s Resp. 16-20 (Doc. 44). According to Mr. Mohamed, he is unable to obtain this information because the Family Educational Rights and Privacy Act ("FERPA") regulates disclosure of student records. In reply, the IISD contends that Mr. Mohamed's request for discovery "places the cart before the horse." See IISD's Reply 9 (Doc. 46). The court agrees.
Before proceeding to discovery, a plaintiff must plead enough facts to state a plausible claim for relief. See Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (a complaint must provide "factual content" that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged"). As the Court stated in Iqbal , Federal Rule of Civil Procedure 8"does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79, 129 S.Ct. 1937. In addition, Mr. Mohamed fails to cite any authority that FERPA somehow alters the pleading standards in cases against school districts.
In sum, for the reasons stated above and those set forth in Mohamed I , incorporated herein by reference as if repeated verbatim, the court concludes that Mr. Mohamed has failed to cure the pleading deficiencies pointed out by the court in Mohamed I . Accordingly, the court will grant the IISD's motion to dismiss Mr. Mohamed's section 1983 claim for violations of the Equal Protection Clause of the Fourteenth Amendment.
B. Section 1983 Claims Against the Individual Defendants
The court now turns to Mr. Mohamed's section 1983 claims against Principal Cummings, Sgt. Miller, Sgt. Mitchell, Officer Taylor, and Officer Howden. Each of these Defendants is a state actor who has asserted his or her entitlement to qualified immunity.
Government officials who perform discretionary functions are entitled to the defense of qualified immunity, which shields them from suit as well as liability for civil damages, if their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A defendant official must affirmatively plead the defense of qualified immunity. Gomez v. Toledo , 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). All Individual Defendants have asserted this defense in their motions to dismiss.
In deciding a dispositive motion that raises the defense of qualified immunity, the Supreme Court initially set forth a mandatory two-part inquiry for determining whether a government official was entitled to qualified immunity. Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Under Saucier , a court must determine first whether the facts alleged or shown are sufficient to make out a violation of a constitutional or federal statutory right. If the record sets forth or establishes no violation, no further inquiry is necessary. On the other hand, if the plaintiff sufficiently pleads or establishes that a violation could be made out, the court must determine whether the right at issue was clearly established at the time of the government official's alleged misconduct. Id. The Court relaxed this mandatory sequence in Pearson v. Callahan , 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), and stated, "[W]hile the sequence set forth [in Saucier ] is often appropriate, it should no longer be regarded as mandatory," and judges "should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. at 236, 129 S.Ct. 808. The second prong of the test "is better understood as two separate inquiries: whether the allegedly violated constitutional right[ ] [was] clearly established at the time of the incident; and if so, whether the conduct of the defendant[ ] [official] was objectively unreasonable in light of then clearly established law." Tarver v. City of Edna , 410 F.3d 745, 750 (5th Cir. 2005) (internal quotation marks and citations omitted); see also Evans v. Ball , 168 F.3d 856, 860 (5th Cir. 1999) ; Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir. 1998) ; Eugene v. Alief Indep. Sch. Dist. , 65 F.3d 1299, 1305 (5th Cir. 1995).
Ordinarily, one who pleads an affirmative defense must establish his entitlement to such defense. In the context of qualified immunity, however, this burden varies from the norm. In this circuit, the rule is as follows:
Where ... [a] defendant pleads qualified immunity and shows he is a governmental official whose position involves the exercise of discretion, the plaintiff then has the burden to rebut this defense by establishing that the official's allegedly wrongful conduct violated clearly established law. We do not require that an official demonstrate that he did not violate clearly established federal rights; our precedent places that burden upon plaintiffs.
Pierce v. Smith , 117 F.3d 866, 871-72 (5th Cir. 1997) (internal quotations and citations omitted); see also Brown v. Callahan , 623 F.3d 249, 253 (5th Cir. 2010).
A right is "clearly established" only when its contours are sufficiently clear that a reasonable public official would have realized or understood that his conduct violated the right in issue, not merely that the conduct was otherwise improper. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ; Foster v. City of Lake Jackson , 28 F.3d 425, 429 (5th Cir. 1994). Thus, the right must not only be clearly established in an abstract sense but in a more particularized sense so that it is apparent to the official that his actions [what he is doing] are unlawful in light of pre-existing law. Anderson v. Creighton , 483 U.S. at 640, 107 S.Ct. 3034 ; Stefanoff v. Hays County , 154 F.3d 523, 525 (5th Cir. 1998) ; and Pierce v. Smith , 117 F.3d at 871.
In Anderson , 483 U.S. at 641, 107 S.Ct. 3034, the Court refined the qualified immunity standard and held that the relevant question is whether a reasonable officer or public official could have believed that his conduct was lawful in light of clearly established law and the information possessed by him. If public officials or officers of "reasonable competence could disagree [on whether the conduct is legal], immunity should be recognized." Malley v. Briggs , 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ; Gibson v. Rich , 44 F.3d 274, 277 (5th Cir. 1995) (citing Babb v. Dorman , 33 F.3d 472, 477 (5th Cir. 1994) ). Qualified immunity is designed to protect from civil liability "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs , 475 U.S. at 341, 106 S.Ct. 1092. Conversely, an official's conduct is not protected by qualified immunity if, in light of clearly established pre-existing law, it was apparent the conduct, when undertaken, would be a violation of the right at issue. Foster , 28 F.3d at 429. To preclude qualified immunity, it is not necessary for a plaintiff to establish that "the [specific] action in question has previously been held unlawful." Anderson , 483 U.S. at 640, 107 S.Ct. 3034. For an official, however, to surrender qualified immunity, "pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what the defendant is doing violates federal law in the circumstances. " Pierce v. Smith , 117 F.3d at 882 (emphasis in original and citation omitted); and Stefanoff v. Hays County , 154 F.3d at 525. Stated differently, while the law does not require a case directly on point, "existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. Al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (citations omitted).
In analyzing qualified immunity claims, the Supreme Court has "repeatedly told courts ... to not define clearly established law at a high level of generality." Mullenix v. Luna , --- U.S. ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (citation omitted). Pursuant to Mullenix , courts must consider "whether the violative nature of particular conduct is clearly established" and must undertake this inquiry "in light of the specific context of the case, not as a broad general proposition." Id. (citations and internal quotations marks omitted).
1. Principal Cummings
In Mohamed I , the court dismissed Mr. Mohamed's section 1983 claims against Principal Cummings, concluding that he failed to state an equal protection violation based on his race or religion:
Viewing all well-pleaded allegations as true and drawing all reasonable inferences in favor of Mr. Mohamed, the court determines that the Complaint fails to plead facts from which the court can reasonably infer that Principal Cummings's complained-of conduct was motivated by unlawful racial or religious animus. To the extent th