Defendant Daniel Cummings's Motion To Dismiss and Motion To Strike and Brief in Support

Case 3:16-cv-02283-L Document 11 Filed 10/11/16
Page 1 of 26 PageID 121
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MOHAMED ELHASSAN MOHAMED
a/n/f for AHMED MOHAMED, a minor
Plaintiff,
v.
IRVING INDEPENDENT SCHOOL
DISTRICT; DANIEL CUMMINGS, in
his individual capacity, and CITY OF IRVING,

Defendants.
Civil Action No. 3:16-CV-02283-L
DEFENDANT DANIEL CUMMINGSS MOTION TO DISMISS

AND MOTION TO STRIKE AND BRIEF IN SUPPORT
Kathryn E. Long
klong@thompsonhorton.com
State Bar No. 24041679
Carlos G. Lopez
clopez@thompsonhorton.com
THOMPSON & HORTON LLP
Ross Tower
500 North Akard Street, Suite 2550
Dallas, Texas 75201
(972) 853-5115 Telephone
(972) 692-8334 Facsimile
OF COUNSEL:
Melisa E. Meyler
mmeyler@thompsonhorton.com
3200 Southwest Freeway, Suite 2000
Houston, Texas 77027
(713) 554-6767 Telephone
(713) 583-8884 Facsimile
ATTORNEYS FOR DEFENDANT
DANIEL CUMMINGS
TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................................... iii
OVERVIEW ....................................................................................................................................1
SUMMARY OF PLAINTIFFS ALLEGATIONS .........................................................................2
SUMMARY .....................................................................................................................................3
STANDARD OF REVIEW .............................................................................................................4
ARGUMENT AND AUTHORITIES ..............................................................................................5
I.
Overview of the Law of Qualified Immunity ................................................................5
II. Plaintiffs Allegations Are Insufficient to Defeat Principal Cummingss Immunity

or to Support an Equal Protection Claim. ......................................................................7
A. An equal protection claim requires proof of intentional disparate treatment. .........7
B. Plaintiffs conclusory allegations provide no factual support that Principal
Cummings intentionally discriminated against A.M. ..............................................8
C. Alleged procedural violations do not show that Principal Cummings acted
with discriminatory intent. .....................................................................................12
D. Whether A.M. threatened others is irrelevant to Principal Cummingss
qualified immunity defense....................................................................................13
III. Principal Cummings Did Not Arrest A.M. and Cannot be Liable for Decisions
Made by the Police.......................................................................................................16
MOTION TO STRIKE ..................................................................................................................17
CONCLUSION ..............................................................................................................................18
ii
TABLE OF AUTHORITIES
Cases
Page(s)
Alexander v. Eeds,
392 F.3d 138 (5th Cir. 2004) .....................................................................................................6
Anderson v. Creighton,
483 U.S. 635 (1987) ...................................................................................................................5
Ashcroft v. Al-Kidd,
563 U.S. 731 (2011) ...............................................................................................................5, 6
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ......................................................................................................... passim
Babb v. Dorman,
33 F.3d 472 (5th Cir. 1994) .......................................................................................................6
Baker v. Putnal,
75 F.3d 190 (5th Cir. 1996) .......................................................................................................6
Becerra v. Asher,
105 F.3d 1042 (5th Cir. 1997) ...................................................................................................7
Brinsdon v. McAllen Indep. Sch. Dist.,
No. 1540160, 2016 WL 4204797 (5th Cir. Aug. 9, 2016).......................................................5
Brown v. City of Grand Prairie,
No. Civ. A. 3:01-CV-0139, 2002 WL 171728 (N.D. Tex. Jan. 29, 2002) ..............................15
Brown v. Tex. State Univ. Sys. Bd. of Regents,
No. A-13-CA-483-SS, 2013 WL 6532025 (W.D. Tex. Dec. 12, 2013) ....................................8
Carter v. Target Corp.,
541 Fed. Appx 413 (5th Cir. 2013) ....................................................................................2 n.2
Cesarani v. Graham,
25 F.3d 1044 (5th Cir. 1994) ...................................................................................................17
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ...................................................................................................................7
Cohn v. New Paltz Cent. Sch. Dist.,
363 F. Supp. 2d 421 (N.D.N.Y. 2005), affd in part sub nom. Cohn v. New
Paltz Cent. Sch. Dist., 204 Fed. Appx 56 (2d Cir. 2006) .......................................................15
iii
Coleman v. Houston Indep. Sch. Dist.,

113 F.3d 528 (5th Cir. 1997) ...............................................................................................7, 11
Collins v. Morgan Stanley Dean Witter,
224 F.3d 496 (5th Cir. 2000) ..............................................................................................3 n. 2
D.T. v. Somers Cent. Sch. Dist.,
348 Fed. Appx 697 (2d Cir. 2009)..........................................................................................11
Dean v. Gladney,
621 F.2d 1331 (5th Cir. 1980) .................................................................................................16
DeFabio v. E. Hampton Union Free Sch. Dist.,
623 F.3d 71 (2d Cir. 2010).......................................................................................................15
Douglas v. Beaver Cty. Sch. Dist. Bd.,
82 Fed. Appx 200 (10th Cir. 2003) ........................................................................................15
Edwards v. High Desert State Prison,
No. 2:10cv3461, 2011 WL 1135910 (E.D. Cal. Mar. 25, 2011) .........................................18
Fennell v. Marion Indep. Sch. Dist.,
804 F.3d 398 (5th Cir. 2015) .....................................................................................................9
Florance v. Buchmeyer,
500 F. Supp. 2d 618 (N.D. Tex. 2007) ....................................................................................16
Harlow v. Fitzgerald,
457 U.S. 800 (1982) ...................................................................................................................5
Harris v. U.S. Dept of Justice,
680 F.2d 1109 (5th Cir. 1982) .................................................................................................17
Hope v. Pelzer,
536 U.S. 730 (2002) ...................................................................................................................6
Jones v. Lowndes Cnty.,
678 F.3d 344 (5th Cir. 2012) ...................................................................................................12
Kajoshaj v. New York City Dept of Educ.,
543 Fed. Appx 11 (2d Cir. 2013)..............................................................................................9
Kovacic v. Villareal,
628 F.3d 209 (5th Cir. 2010) .................................................................................................5, 6
McClendon v. City of Columbia,
305 F.3d 314 (5th Cir. 2002) .....................................................................................................6
iv
McHenry v. Renne,
84 F.3d 1172 (9th Cir. 1996) ...................................................................................................18
Milligan v. City of Slidell,
226 F.3d 652 (5th Cir. 2000) ...................................................................................................13
Mitchell v. Forsyth,
472 U.S. 511 (1985) ...................................................................................................................5
Moini v. Univ. of Tex. at Austin,
No. A-10-CA-180-SS, 2011 WL 90472 (W.D. Tex. Jan. 10, 2011) .......................................11
Morgan v. Swanson,
755 F.3d 757 (5th Cir. 2014) .....................................................................................................6
Oliver v. Prairie View A & M Univ.,
C.A. No. H-15-1665, 2016 WL 423774 (S.D. Tex. Jan. 13, 2016) .........................................15
Pearson v. Callahan,
555 U.S. 223 (2009) ...................................................................................................................5
Perez v. Texas A & M Univ. at Corpus Christi,
C.A. No. 2:13-CV-225, 2013 WL 6230353 (S.D. Tex. Dec. 2, 2013) ......................................9
Personnel Admin. v. Feeney,
442 U.S. 256 (1979) ...................................................................................................................7
Plyler v. Doe,
457 U.S. 202 (1982) ...................................................................................................................7
Porter v. Ascension Parish Sch. Bd.,
393 F.3d 608 (5th Cir. 2004) ...................................................................................................14
Salcido v. Univ. of S. Miss.,
No. 1360444, 2014 WL 553114 (5th Cir. Feb. 13, 2014)......................................................16
Schultea v. Wood,
47 F.3d 1427 (5th Cir. 1995) .....................................................................................................6
Scott v. Crockett Indep. Sch. Dist.,
Civ. Action No. 9:15-CV-00142-MHS, 2016 WL 4083242
(E.D. Tex. June 30, 2016) ........................................................................................................11
Shah v. Univ. of Tex. Sw. Med. Sch.,
54 F. Supp. 3d 681 (N.D. Tex. 2014) ........................................................................................7
Siegert v. Gilley,
500 U.S. 226 (1991) ...................................................................................................................5
Soper v. Hoben,
195 F.3d 845 (6th Cir. 1999) .....................................................................................................9
Tafuto v. New Jersey Inst. of Tech.,
Civ. Action No. 10452120, 11 WL 3163240 (D.N.J. July 26, 2010) ....................................10
Thompson v. Upshur Cnty.,
245 F.3d 447 (5th Cir. 2001) .....................................................................................................6
Turner v. Houston Indep. Sch. Dist.,
Civ. Action No. H130867, 2013 WL 3353956 (S.D. Tex. July 3, 2013) ..............................9
United States v. Morrison,
529 U.S. 598 (2000) ...................................................................................................................7
Vernonia Sch. Dist. v. Acton,
515 U.S. 646 (1995) .................................................................................................................13
Wicks v. Miss. State Empt Servs.,
41 F.3d 991 (5th Cir. 1995) ...................................................................................................5, 8
Winstead v. Box,
419 Fed. Appx 468 (5th Cir. 2011) ..........................................................................................5
Wood v. Strickland,
420 U.S. 308 (1975) ...........................................................................................................14, 15
Statutes
42 U.S.C. 1983 ........................................................................................................................1, 12
FED. R. CIV. P. 5.2(a)(3) ...................................................................................................................2
FED. R. CIV. P. 8 ............................................................................................................................17
FED. R. CIV. P. 12(b)(6) ...........................................................................................................1, 2, 4
FED. R. CIV. P. 12(f) ......................................................................................................................17
TEX. FAM. CODE 52.02(b) ...........................................................................................................12
vi
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MOHAMED ELHASSAN MOHAMED
a/n/f for AHMED MOHAMED, a minor
Plaintiff,
v.
IRVING INDEPENDENT SCHOOL
DISTRICT; DANIEL CUMMINGS, in
his individual capacity, and CITY OF IRVING,

Defendants.
Civil Action No. 3:16-CV-02283-L
DEFENDANT DANIEL CUMMINGSS MOTION TO DISMISS

AND MOTION TO STRIKE AND BRIEF IN SUPPORT
Defendant Daniel Cummings moves to dismiss Plaintiff A.M.s claims pursuant to Rule
12(b)(6) of the Rules of Civil Procedure as follows:
OVERVIEW
Plaintiff A.M. is a former student at MacArthur High School in Irving, Texas. He alleges
that he was unlawfully disciplined by his former principal, Defendant Daniel Cummings.
Through his father, Mohamed Elhassan Mohamed, A.M. has sued Principal Cummings in his
individual capacity. The original complaint asserts a Fourteenth Amendment Equal Protection
claim under 42 U.S.C. 1983. Assuming arguendo the truth of the Plaintiffs well-pleaded
allegations, dismissal is warranted because Principal Cummings is immune from suit and
because the Plaintiff has failed to state a cognizable claim for which relief can be granted.
SUMMARY OF PLAINTIFFS ALLEGATIONS

Defendant vigorously denies the Plaintiffs allegations regarding the events that took
place on September 14, 2015.
The following summary is based on the Plaintiffs factual
allegations, which, under Rule 12(b)(6), are assumed to be true for purposes of this motion.
A.M. alleges that he built a device that included a 7 segment display, a pcb board, a 9
volt battery, some wires, a 120-240 volt transformer, and a button board.
(Orig.
Compl. 53, ECF No. 1.) He calls this homemade device a clock in a pencil box. (Id.) A.M.
showed the device to a teacher who advised him to keep it in his backpack. (Id. 54.) That
same day, during 4th period English, A.M. defied the teachers instruction by showing the device
to another student. (Id.) The device made a beeping noise, which caught the attention of the
English teacher, Erin West. (Id.) After class, A.M. showed the device to Ms. West, who, upon
seeing it, asked is that a bomb? (Id.) A.M. told her it was an alarm clock. Ms. West took the
contraption from him and told him that she would keep it for the rest of the day. (Id.)
A.M. alleges that [s]everal hours after Ms. West took the device, Principal Cummings
and a City of Irving police officer escorted him from class to a room with four more Irving
police officers and a school counselor. (ECF No. 1 56.) A.M. alleges that he was questioned
for one and a half hours. (Id. 57.) During the questioning, Principal Cummings told A.M. to
write a statement and allegedly threatened to expel him if he did not. (Id. 59.) A.M. alleges
that he wrote that he made an alarm clock and that the authorities thought it was a bomb. (Id.)
A.M.s statement contains several lines.2 (Defs. Joint Appendix (J.A.) at 3, Ex. A.) The first
Although the students full name is contained in the caption of the lawsuit, the rules of civil procedure require
parties to refer to minors by their initials. Accordingly, this motion refers to the student by his initials. See
FED. R. CIV. P. 5.2.
The Court may consider documents referenced in the pleadings if those documents provide information central
to the claims and helpful in determining whether a claim has been stated. See generally Carter v. Target Corp.,
line is scratched out, but states: [A.M.] has refused to write down his intent for making device.
(Id.) A.M. then wrote: I Built a Clock. Cops think Its a Bomb. (Id.) The statement concludes
with: 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. (Id.) The statement was
prepared around 3:01 p.m. (Id.)
That evening, an assistant principal, Patrick Smith, telephoned A.M.s father and sent
him an email stating that A.M. would be suspended for three days. (ECF No. 1 68; J.A. at 5,
Ex. B.) The email stated that a parent conference would be scheduled. (Id.)
A.M. alleges that the Irving police handcuffed him and arrested him, but that the City of
Irving ultimately dismissed the charge. (ECF No. 1 60, 68.) The Complaint does not allege
that Principal Cummings charged A.M., arrested A.M., or took A.M. into police custody.
Further, the complaint does not allege that Principal Cummings made any decision to arrest or to
charge A.M.
SUMMARY
Daniel Cummings is the principal of a large, urban high school. He is tasked with
managing a campus with thousands of students and employees. As alleged by the Plaintiff, on
September 14, 2015, A.M. brought a homemade contraption to school containing wires and
batteries. The device concerned two of his teachers. One of the teachers told him to put it in his
backpack, and A.M. disobeyed that directive. The other teacher asked A.M. whether the device
was a bomb. When Principal Cummings questioned A.M. about the device, A.M. declined to
answer the principals questions. Eventually A.M. signed a statement, stating, I Built a Clock.
541 Fed. Appx 413, 416-17 (5th Cir. 2013) (unreported) (citing Collins v. Morgan Stanley Dean Witter, 224
F.3d 496, 498-99 (5th Cir. 2000)).
Cops Think Its [sic] a Bomb. That day, A.M. was temporarily suspended for three days until a
parent-principal conference could take place.
As a matter of law, Principal Cummings is immune from suit for his actions on
September 14, 2015. Public servants are immune from suit unless their conduct violated clearly
established federal law. To negate qualified immunity, a plaintiff must plead facts showing that
the public official, through his own individual actions, violated the Constitution. See Ashcroft v.
Iqbal, 556 U.S. 662 (2009). Here, Plaintiffs Complaint contains no specific facts showing that
Principal Cummings violated any of A.M.s clearly established constitutional rights.
Principal Cummingss actions in removing A.M. from class, seeking a statement, and placing
him on a temporary three-day suspension did not violate clearly established law. Although the
Plaintiff claims that Principal Cummings discriminated on the basis of race or religion, no facts
support this conclusory assertion.
The Plaintiff also complains that he was arrested on September 14, 2015. But there are
no allegations that Principal Cummings arrested A.M. or directed City of Irving police officers to
arrest A.M. As a matter of law, Principal Cummings may not be held liable for the actions or
decisions of police officers from another entity.
STANDARD OF REVIEW
To survive a motion to dismiss pursuant to Rule 12(b)(6), a plaintiffs complaint must
provide sufficient factual allegations that, when assumed to be true, state a claim for relief that
is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). The
plausibility standard asks for more than a sheer possibility that a defendant has acted
unlawfully. Id. When a complaint pleads acts that are merely consistent with a defendants
liability, it stops short of the line between possibility and plausibility. Id. (citations omitted).
Although the court must accept well-pleaded facts as true, conclusory allegations are not entitled
to a presumption of truth. Id. at 678-79.
ARGUMENT AND AUTHORITIES
I.
Overview of the Law of Qualified Immunity

The U.S. Supreme Court has long held that public servants are immune from suit unless
their conduct violated clearly established federal law. Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982).
Immunity protects public officials from the disruption and costs associated with
litigation. Mitchell v. Forsyth, 472 U.S. 511 (1985). Because of this public policy, plaintiffs
may not engage in discovery until they have supported their constitutional claims with sufficient
facts that, if true, would overcome the immunity defense. See Iqbal, 556 U.S. at 685-86;
Winstead v. Box, 419 Fed. Appx 468, 469 (5th Cir. 2011) (citing Wicks v. Miss. State Empt
Servs., 41 F.3d 991, 994 (5th Cir. 1995)).
The availability of immunity is a question of law. Siegert v. Gilley, 500 U.S. 226, 231-32
(1991).
Courts must determine (i) whether the plaintiff has described a violation of a
constitutional right; and (ii) whether the right was clearly established at the time of the
officials conduct. Pearson v. Callahan, 555 U.S. 223, 223-24 (2009). Courts may decide which
of the two prongs should be decided first in light of the circumstances of the case. Id. at 225.
The plaintiff bears the burden of showing that the official violated clearly established
law. Brinsdon v. McAllen Indep. Sch. Dist., No. 1540160, 2016 WL 4204797, at *5 (5th Cir.
Aug. 9, 2016); Kovacic v. Villareal, 628 F.3d 209, 212 (5th Cir. 2010). The plaintiff must
identify the violation of a particularized right. Anderson v. Creighton, 483 U.S. 635, 639
(1987).
A plaintiff may not defeat immunity by describing a general proposition of
constitutional law, such as a right to equal protection. Ashcroft v. Al-Kidd, 563 U.S. 731, 741
(2011). In addition, the plaintiff must show that the contours of the right were sufficiently
clear that a reasonable official would understand that what he is doing violates that right.
Alexander v. Eeds, 392 F.3d 138, 146 (5th Cir. 2004). This means that existing precedent must
have placed the constitutional question beyond debate. Al-Kidd, 536 U.S. at 741.
In addition to identifying a particularized constitutional right, the plaintiff must allege
with specificity what the defendant did to violate that right. See Babb v. Dorman, 33 F.3d 472,
479 (5th Cir. 1994); Kovacic, 628 F.3d at 212. A defendants acts are held to be objectively
reasonable unless all reasonable officials in the defendants circumstances would have then
known that the defendants conduct violated the United States Constitution as alleged by the
plaintiff. Thompson v. Upshur Cnty., 245 F.3d 447, 456 (5th Cir. 2001). If officers of
reasonable competence could disagree on the issue, immunity should be recognized. Hope v.
Pelzer, 536 U.S. 730, 752 (2002). The reasonableness of an officials actions is based on the
information available to the official at the time of the event. Morgan v. Swanson, 755 F.3d 757,
760 (5th Cir. 2014).
In the Fifth Circuit, once a defendant asserts qualified immunity, the plaintiff must
respond with factual specificity and fairly engage the immunity defense. Schultea v. Wood,
47 F.3d 1427, 1433 (5th Cir. 1995); McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir.
2002) (It is up to the plaintiff to show that the defense does not apply). The standard requires
more than conclusory assertions. See Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996). The
plaintiff must plead factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678.
As shown below, the Plaintiffs claims fail at the first stage of the immunity analysis:
A.M. has not shown the violation of a clearly established constitutional right. It necessarily
follows that, without an underlying constitutional violation, there can be no 1983 liability
imposed on the school district or the individual supervisors. Becerra v. Asher, 105 F.3d 1042,
1047-48 (5th Cir. 1997) (emphasis in original).
II.
Plaintiffs Allegations Are Insufficient to Defeat Principal Cummingss Immunity or

to Support an Equal Protection Claim.
A.
An equal protection claim requires proof of intentional disparate treatment.
The Equal Protection Clause requires that similarly situated persons be treated alike. See
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). If the state disadvantages a
suspect class or impinges upon a fundamental right, the decision is subject to strict scrutiny.
Id. Classifications based on race, national origin, or alienage are suspect categories and are
subject to strict scrutiny. Id. at 440. Rights are fundamental if they have their source, explicitly
or implicitly, in the Constitution. Plyler v. Doe, 457 U.S. 202, 217 n. 15 (1982). Equal
protection claims require invidious and purposeful discrimination.
See United States v.
Morrison, 529 U.S. 598 (2000); Personnel Admin. v. Feeney, 442 U.S. 256, 279 (1979).
Invidious discriminatory animus is the sine qua non of a constitutional claim of racial
discrimination. Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 537 (5th Cir. 1997). The
plaintiff must show that the official took a discriminatory action because of, not merely in spite
of, the actions adverse effects upon an identifiable group. Iqbal, 556 U.S. at 677 (citing
Feeney, 442 U.S. at 279). At the pleading stage, a plaintiff must plead sufficient factual
material to show that each defendant took action for the purpose of discrimination on account
of the plaintiffs protected status. Id. at 677. The complaint must contain factual allegations
sufficient to plausibly suggest [defendants] discriminatory state of mind. Id.
Conclusory assertions of discriminatory intent are insufficient to state a claim. See Iqbal,
556 U.S. at 676; see, e.g., Shah v. Univ. of Tex. Sw. Med. Sch., 54 F. Supp. 3d 681, 702 (N.D.
Tex. 2014) (dismissing equal protection claim when complaint did not allege facts showing
student was intimidated and disciplined differently than similarly situated students whose
national origin was not Indian and whose first language was not English); Brown v. Tex. State
Univ. Sys. Bd. of Regents, No. A-13-CA-483-SS, 2013 WL 6532025, at *13 (W.D. Tex. Dec. 12,
2013) (dismissing equal protection claim when complaint did not allege facts showing student
lost scholarship because any individual defendants were motivated by intentional, race-based
discrimination).
Thus, in Iqbal, the Supreme Court held that a plaintiffs allegation that the defendants had
subjected Arab Muslims to harsh conditions of confinement after 9/11/01 was insufficient
because it was conclusory. Id., 556 U.S. at 669-70. A Section 1983 plaintiff must plead
sufficient factual material to show that the public servants took action for the purpose of
discrimination on account of the plaintiffs protected status. Id. at 677; see also Wicks, 41 F.3d
at 996 (assertion that a supervisor favored white employees over black employees was
conclusory and lacked particular facts showing behavior by [defendant] motivated by racial
animus).
B.
Plaintiffs conclusory allegations provide no factual support that Principal

Cummings intentionally discriminated against A.M.
A.M.s assertions of unlawful discrimination against Principal Cummings are wholly

conclusory.
He has not alleged any facts giving rise to any reasonable inference of
discriminatory intent or purpose by Principal Cummings. Indeed, other than describing their
brief interaction on September 14, 2015, the Complaint contains relatively few allegations
against Principal Cummings. He does not appear in the Complaint until paragraph 56, about
half-way through the 110-paragraph pleading. As acknowledged by the pleadings, the school
year had just started. There are no factual allegations that Principal Cummings had any prior
negative dealings with A.M. or that Principal Cummings made discriminatory comments at any
time. The Complaint contains no facts suggesting that Principal Cummings disciplined A.M.
because of A.M.s race or because of his religion.
Under Iqbal, the factual content of a complaint must be sufficient to nudg[e] the claim
of purposeful discrimination across the line from conceivable to plausible. Iqbal, 556 U.S. at
680. A bare allegation of discriminatory animus is not enough to render an equal protection
claim plausible. See, e.g., Kajoshaj v. New York City Dept of Educ., 543 Fed. Appx 11 (2d Cir.
2013) (allegation that school promoted non-Muslim students from families of non-Albanian
origin with similar test scores and grades as plaintiff insufficient to show improper motive).
Nor does the Complaint allege that Principal Cummings treated A.M. differently from
other similarly situated students (i.e., that Principal Cummings disciplined A.M. while he did not
discipline non-African-American or non-Muslim students for similar misbehavior). Because the
Plaintiff has failed to show that similarly situated persons outside the protected class were treated
more favorably, the Plaintiff has failed to state a claim for which relief can be granted. In a
school discipline case, a plaintiff must show that he received treatment different from that
received by similarly situated students and that the unequal treatment stemmed from
discriminatory intent. See Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 412 (5th Cir.
2015); see, e.g., Soper v. Hoben, 195 F.3d 845, 852 (6th Cir. 1999) (affirming dismissal of an
equal protection claim asserted by an intellectually disabled female student who allegedly was
raped by a male student and harassed by two others; the parent did not allege that the female
students complaints were treated differently than complaints by male students); Perez v. Tex.
A & M Univ. at Corpus Christi, C.A. No. 2:13-CV-225, 2013 WL 6230353, at *9 (S.D. Tex.
Dec. 2, 2013) (dismissing equal protection claim where student did not identify a single other
student who was treated more favorably); Turner v. Houston Indep. Sch. Dist., Civ. Action No.
H130867, 2013 WL 3353956, at *3 (S.D. Tex. July 3, 2013) (dismissing equal protection
claim where plaintiff failed to identify any non-disabled student who was treated differently);
Tafuto v. New Jersey Inst. of Tech., Civ. Action No. 10452120, 11 WL 3163240, at *5 (D.N.J.
July 26, 2010) (dismissing equal protection claim where students allegations did not show that
other students were similarly situated). Plaintiff has wholly failed to satisfy this element.
Instead of pleading facts showing allegedly discriminatory acts by Principal Cummings,
Plaintiff offers the generic observation that there is an alleged pattern of over-disciplining
African-American children at the District generally and that an anti-Muslim bias allegedly
existed in the school district. (ECF No. 1 77, 80.) These allegations against the District as a
whole are insufficient as a matter of law to impute liability to Principal Cummings or to negate
his immunity as an individual public servant.
To negate immunity, the Plaintiff must
demonstrate that Principal Cummings himself was personally motivated by discriminatory

animus. See Iqbal, 556 U.S. at 669-70. The complaint is bereft of a single such allegation.
Plaintiff alleges that Principal Cummings was aware of TEA reports that reflect
disparity in Irving ISDs discipline of African American students. (ECF No. 1 82.) The
Complaint identifies multiple reports, but does not specify with which reports Principal
Cummings was familiar. This vague allegation of awareness of the TEA reports is insufficient to
state a claim or to negate Principal Cummingss immunity. Regardless of what TEA data may or
may not show about past discipline decisions within the school district, the allegation does not
establish that Principal Cummings himself was motivated by invidious, discriminatory intent
when he interacted with A.M. Principal Cummingss purported awareness of this information
similarly does not show the requisite motivation. To state a claim, Plaintiff must plead that
10
Principal Cummings, through his own individual actions, violated the Constitution. Iqbal, 556
U.S. at 676. Principal Cummings may not be held liable merely because he has knowledge of
someone elses discriminatory purpose; he is accountable only for his own discriminatory
intent. See id. at 676-77. Principal Cummings is immune because there are no facts supporting
this element. See, e.g., Moini v. Univ. of Tex. at Austin, No. A-10-CA-180-SS, 2011 WL 90472,
at *12 (W.D. Tex. Jan. 10, 2011) (dismissing equal protection claim due to lack of any
allegations of conduct or remarks explicitly aimed at [plaintiffs] race, national origin, or [other
protected class]); Scott v. Crockett Indep. Sch. Dist., Civ. Action No. 9:15-CV-00142-MHS,
2016 WL 4083242, at *4 (E.D. Tex. June 30, 2016) (dismissing equal protection claim when
complaint lacked facts directly linking school districts decision to terminate plaintiff and hire
another candidate but did contain several pages of allegations regarding demographic changes in
the area, the effects of certain school district employment policies on minority workers, and the
history of racial discrimination in voting practices); see also D.T. v. Somers Cent. Sch. Dist., 348
Fed. Appx 697, at *1 (2d Cir. 2009) (unpublished) (email alleging racial harassment at one
school did not provide notice of harassment of plaintiff who attended different school).
Similarly, although the Complaint contains allegations regarding other school officials
alleged animus, there are no allegations that Principal Cummings made any discriminatory
comments. Indeed, A.M. was one of hundreds of brand-new freshmen starting at MacArthur that
fall semester, and there is no indication in the pleading of any prior, substantive contacts between
A.M. and the high school administration.
As a matter of law, Principal Cummings cannot be held liable for a violation of the Equal
Protection Clause due to the alleged discriminatory acts or discriminatory intent of other persons
within the district. See generally Coleman, 113 F.3d at 534 (Neither the district court nor
11
[plaintiff] cites any authority, nor are we aware of any, holding that the discriminatory intent of
one official may be imputed to another for purposes of imposing individual liability under the
civil rights laws); see also Iqbal, 556 U.S. at 677 (rejecting argument that a supervisors mere
knowledge of his subordinates discriminatory purpose amounts to the supervisors violating the
Constitution).
C.
Alleged procedural violations do not show that Principal Cummings acted

with discriminatory intent.
Plaintiff complains that Principal Cummings did not promptly notify A.M.s parents that
A.M. had been suspended, allegedly violating the Texas Family Code. (ECF No. 1 82.) This
allegation does not show disparate treatment or otherwise negate Principal Cummingss
immunity. Section 52.02(b) states in part: A person taking a child into custody shall promptly
give notice of the persons action and a statement of the reason for taking the child into custody,
to: (1) the childs parent, guardian, or custodian. TEX. FAM. CODE 52.02(b). The purported
lack of prompt notification under this state statute is insufficient to state an equal protection
claim or to pierce Principal Cummingss immunity.
First, violations of state statutes like the Texas Family Code are not actionable via
Section 1983. See Jones v. Lowndes Cnty., 678 F.3d 344, 349 (5th Cir. 2012) (a violation of a
state statute does not give rise to a corresponding 1983 violation unless the right encompassed
in the state statute is guaranteed under the United States Constitution). Section 1983 applies
only to violations of the federal constitution and federal statutes. See 42 U.S.C. 1983.
Second, the plain wording of Chapter 52 of the Family Code, which is titled Proceedings
Before and Including Referral to Court, applies only to officials who take children into police
custody. Here, there is no allegation that Principal Cummings took A.M. into custody. A.M.
was removed from school by the City of Irving police, not by Principal Cummings.
12
Third, there are no factual allegations that the alleged violation of the Family Code was
motivated by unlawful animus or that Principal Cummings treated similarly situated students
differently. Even assuming that this allegation were true, and that Principal Cummings did not
contact A.M.s parents as per the state Family Code, there are no facts indicating that any alleged
delay was the result of impermissible discrimination based on race or religion.
Fourth, as previously noted, A.M.s parents received notice by phone and email the same
day as the incident. (ECF No. 1 68; J.A. at 5, Ex. B.) Plaintiffs allegations do not show
disparate treatment or otherwise negate Principal Cummingss immunity.
D.
Whether A.M. threatened others is irrelevant to Principal Cummingss

qualified immunity defense.
The Plaintiff asserts that Principal Cummings knew that the contraption was not a bomb
or threat to student safety, that A.M. was simply trying to show[] off, and that the three-day
suspension was heavy-handed. (ECF No. 1 77, 83.) These allegations do not state an equal
protection claim and do not negate Principal Cummingss immunity. Public schools have a wellrecognized interest in maintaining an orderly environment suitable for education, and they need
not wait for the occurrence of actual crime or disruption before intervening. See generally
Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995); Milligan v. City of Slidell, 226 F.3d 652 (5th
Cir. 2000) (rejecting claim based on students removal from class to be questioned about
rumored after-school fight; the immediacy of the schools concerns was obvious, and the
school had a compelling interest to protect its students, to foster self-discipline and to deter
possibly violent misconduct). Schools may intervene to prevent a wide range of misconduct
ranging from minor (eating candy in class) to major (bringing a weapon or drugs to school).
Given the importance of maintaining an environment suitable for learning, the Supreme
Court has recognized that school officials are immune from suit even when they err in making
13
student discipline decisions. School officials, confronted with student misbehavior, have an
obvious need for prompt action. Wood v. Strickland, 420 U.S. 308, 319 (1975). However,
[l]iability for damages for every action which is found subsequently to have been
violative of a students constitutional rights and to have caused compensable
injury would unfairly impose upon the school decisionmaker the burden of
mistakes made in good faith in the course of exercising his discretion within the
scope of his official duties. Denying any measure of immunity in these
circumstances would contribute not to principled and fearless decision-making
but to intimidation. The imposition of monetary costs for mistakes which
were not unreasonable in the light of all the circumstances would
undoubtedly deter even the most conscientious school decisionmaker from
exercising his judgment independently, forcefully, and in a manner best
serving the long-term interest of the school and the students.
Id., 420 U.S. at 319 (emphasis added; footnotes omitted).
In this case, although the Plaintiff has omitted important facts from his Complaint, even
his version demonstrates that he violated a directive given to him by a teacher and engaged in
distracting and inappropriate behavior on September 14, 2015. One teacher told A.M. to keep
the device in his backpack, an instruction that A.M. admittedly disobeyed; the device beeped
during English class and caught the attention of another teacher; and the English teacher inquired
whether the device was a bomb. The English teacher was concerned enough to confiscate the
device. Had the device not been confiscated during fourth period, A.M. could have taken the
device into the crowded school cafeteria where hundreds of students would be eating lunch.
The doctrine of immunity exists exactly for situations like the one that Principal
Cummings faced on September 14, 2015. When confronted with uncertainty, particularly in the
student safety context, public school administrators must make decisions quickly and in
consideration of all information available at the time. See, e.g., Porter v. Ascension Parish Sch.
Bd., 393 F.3d 608, 614 (5th Cir. 2004) (affirming immunity of principal who expelled student for
possession of graphic and violent drawing depicting destruction of school and weapon;
14
[Principal] was doing exactly what he or any other reasonable principal should have done under
the facts presented); Cohn v. New Paltz Cent. Sch. Dist., 363 F. Supp. 2d 421, 43738
(N.D.N.Y. 2005), affd in part sub nom. Cohn v. New Paltz Cent. Sch. Dist., 204 Fed. Appx 56
(2d Cir. 2006) ([Q]ualified immunity recognizes that school officials must be allowed to make
reasonable mistakes when forced to act in the face of uncertainty.); see, e.g., Douglas v. Beaver
Cty. Sch. Dist. Bd., 82 Fed. Appx 200, at **2 (10th Cir. 2003) (upholding immunity of principal
who acquiesced to brief police interview) (Fourth Amendment); DeFabio v. E. Hampton Union
Free Sch. Dist., 623 F.3d 71, 77 (2d Cir. 2010) (upholding immunity of principal who expelled
student to avoid disruption) (First Amendment); Oliver v. Prairie View A & M Univ., C.A. No.
H-15-1665, 2016 WL 423774, at *4 (S.D. Tex. Jan. 13, 2016) (plaintiffs must do more than
allege that individual defendants decision was made in error).
As to the fairness or propriety of the three-day suspension assigned to A.M., absent
factual allegations that the discipline was discriminatory, this claim raises no constitutional
question.
It is not the role of the federal courts to set aside decisions of school
administrators which the court may view as lacking a basis in wisdom or compassion.
Wood, 420 U.S. at 326 (emphasis added). The system of public education that has evolved in
this Nation relies necessarily upon the discretion and judgment of school administrators and
school board members and section 1983 was not intended to be a vehicle for federal court
correction of errors in the exercise of that discretion which do not rise to the level of violations of
specific constitutional guarantees. Id. Plaintiffs personal belief that A.M. did not deserve
discipline does not show that his suspension was discriminatory. See, e.g., Brown v. City of
Grand Prairie, No. Civ. A. 3:01-CV-0139, 2002 WL 171728, at *5 (N.D. Tex. Jan. 29, 2002)
(dismissing claim that rests solely on plaintiffs personal beliefs that discrimination played a
15
part in the application of disciplinary punishment against him as nothing of any significance
had occurred). Principal Cummings is immune as a matter of law.
III.
Principal Cummings Did Not Arrest A.M. and Cannot be Liable for Decisions Made
by the Police.
The Plaintiff complains about the Irving polices decision to arrest A.M., and he states
that the City subsequently dismissed the charge. As a matter of law, Principal Cummings cannot
be held liable for the decisions and actions of the City of Irving police. There are no allegations
that Principal Cummings made the arrest decision or directed that A.M. be removed from
campus. Under Iqbal, Principal Cummings may be held liable only for his own decisions. He
cannot be held liable for the decision of police officers from another entity. See, e.g., Salcido v.
Univ. of S. Miss., No. 1360444, 2014 WL 553114, at *4 (5th Cir. Feb. 13, 2014) (unreported)
(rejecting equal protection claim of graduate student who claimed that she was given fewer
clinical hours than white students; none of the school officials she sued actually made the
decisions regarding clinical assignments).
Similarly, Principal Cummings cannot be held jointly and severally liable along with
the City. (ECF No. 1 108.) Joint and several liability requires proof that each defendant acted
in concert to produce a single, indivisible injury. Florance v. Buchmeyer, 500 F. Supp. 2d 618,
627 (N.D. Tex. 2007) (quotations omitted); see also Dean v. Gladney, 621 F.2d 1331, 1339 (5th
Cir. 1980) (rejecting joint and several liability because discrete injuries could be apportioned
with reasonable certainty to individual police officers). Furthermore, the claims and theories
against the defendants are completely different. Plaintiff has sued Principal Cummings for race
and religion discrimination under the Equal Protection Clause, while the claims against the City
are brought under the Fourth and Fifth Amendment and relate to A.M.s arrest. These claims are
distinct, are based on discrete facts, and involve different state actors.
16
In sum, A.M.s claim against his former principal is bereft of any specific facts giving
rise to any plausible inference of illegal discrimination.
Plaintiff states no specific facts
supporting a reasonable inference that his race (African American) or his religion (Muslim)
factored in Principal Cummingss decision. Under Iqbal, when a complaint pleads acts that are
merely consistent with a defendants liability, it stops short of the line between possibility
and plausibility. Iqbal, 556 U.S. at 678 (citations omitted). Daniel Cummings is immune and
should be dismissed from this lawsuit.
MOTION TO STRIKE
Principal Cummings urges the Court to order the Plaintiff to strike inflammatory,
irrelevant, and prejudicial material from the Complaint under Rule 8 and Rule 12(f). Rule 8
requires plaintiffs to file a simple, concise and direct complaint that contains a short and plain
statement of the claim. FED. R. CIV. P. 8. When a plaintiff submits an unnecessarily long
complaint, a court may order the plaintiff to comply with Rule 8. See Cesarani v. Graham, 25
F.3d 1044, at *2 (5th Cir. 1994); Harris v. U.S. Dept of Justice, 680 F.2d 1109, 1111 (5th Cir.
1982). Similarly, Rule 12(f) permits the court to strike immaterial and impertinent material
from a complaint. FED. R. CIV. P. 12(f).
In this case, Plaintiff, through his father, has filed a 35-page lawsuit containing several
pages of extraneous statements and legal argument. Pages 2-4 of the Complaint purport to
provide a history of immigration and discrimination in the United States, beginning with the
English passing of laws to prevent the coming of the Quakers and the arrival of Dutch warships
in 1619. (ECF No. 1 7-8.) The Complaint references profanity-laden messages sent to third
parties and actions taken by other governmental agencies. (Id. 10- 12, 105.) It also purports
to give a history lesson dating back to the Declaration of Independence. (Id. 73.) The
17
Complaint concludes with quotations attributed to Abraham Lincoln, John F. Kennedy, and
Lyndon Johnson. (Id. 96-97, 110.) These allegations are irrelevant and appear designed to
prejudicially link Principal Cummings to incidents at other times and in other places. Plaintiffs
must not include any preambles, introductions, argument, speeches, explanations, stories,
griping, vouching, evidence, attempts to negate possible defenses, summaries, and the like.
Edwards v. High Desert State Prison, No. 2:10-cv-3461, 2011 WL 1135910, at *2 (E.D. Cal.
Mar. 25, 2011) (citing McHenry v. Renne, 84 F.3d 1172, 1177-78 (9th Cir. 1996)). Instead,
[t]he court (and defendant) should be able to read and understand plaintiffs pleading within
minutes. Id. A complaint that is written more as a press release, prolix in evidentiary detail,
yet without simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs,
fails to perform the essential functions of a complaint. McHenry, 84 F.3d at 1180. Should the
Court retain this case on its docket, then Principal Cummings urges the Court to strike the
extraneous and inflammatory material from the Complaint.
CONCLUSION
The Plaintiff has failed to state a claim for which relief can be granted and thus the claims
against Daniel Cummings should be dismissed. Further, Plaintiff failed to plead facts sufficient
to overcome Principal Cummingss qualified immunity and, thus, the claims against him should
be dismissed. Should the Court decline to dismiss Plaintiffs claims in their entirety, the Court
should strike the extraneous and irrelevant assertions in the Complaint.
18
Respectfully submitted,
/s/ Kathryn E. Long_______________________
Kathryn E. Long
klong@thompsonhorton.com
Carlos G. Lopez
clopez@thompsonhorton.com
Ross Tower
500 North Akard Street, Suite 2550
Dallas, Texas 75201
(972) 853-5115 Telephone
(972) 692-8334 Facsimile
OF COUNSEL:
Melisa E. Meyler
mmeyler@thompsonhorton.com
3200 Southwest Freeway, Suite 2000
Houston, Texas 77027
(713) 554-6767 Telephone
(713) 583-8884 Facsimile
ATTORNEYS FOR DEFENDANT

DANIEL CUMMINGS
19
CERTIFICATE OF CONFERENCE
I hereby certify that I, as counsel for Defendant Daniel Cummings, sent an e-mail on
October 9, 2016 to confer with counsel for Plaintiff regarding the substance of the Motion to
Strike and Brief in Support. On October 11, 2016, I corresponded with Plaintiffs counsel
regarding the relief requested in the Motion to Strike. Plaintiff agreed to remove paragraphs 7-8
from the Complaint, but could not agree to exclude the other paragraphs that Defendant seeks to
strike in his motion. Thus, the Motion to Strike is opposed.
/s/ Kathryn E. Long

Kathryn E. Long
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion to Dismiss and
Motion to Strike and Brief in Support has been served upon counsel of record for Plaintiff via the
Courts electronic service system on this 11th day of October, 2016.
Susan Hutchison
509 Pecan St., Suite 201
Fort Worth, Texas 76102
hutch@hsjustice.com
/s/ Melisa E. Meyler

Melisa E. Meyler
852385_8
093990.000002
20

Defendant Daniel Cummings's Motion To Dismiss and Motion To Strike and Brief in Support

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Case 3:16-cv-02283-L Document 11 Filed 10/11/16

Page 1 of 26 PageID 121

IN THE UNITED STATES DISTRICT COURT

IRVING INDEPENDENT SCHOOL

DISTRICT; DANIEL CUMMINGS, in

his individual capacity, and CITY OF IRVING,

Civil Action No. 3:16-CV-02283-L