Brownfield v. Cherokee County School District No. 35 et al

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
OSCAR BROWNFIELD, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-21-312-JFH-GLJ
)
INDEPENDENT SCHOOL 	)
DISTRICT No. 35 OF CHEROKEE )
COUNTY a/k/a TAHLEQUAH 	)
PUBLIC SCHOOLS, 	)
LEON ASHLOCK, MAT CLOUD, 	)
DEANN MASHBURN, 	)
NATALIE CLOUD, and 	)
KIMBERY WILLIAMS, 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
Plaintiff Oscar Brownfield filed this action against Defendants Independent School
District No. 35 a/k/a Tahlequah Public Schools (“TPS”), Leon Ashlock, Mat Cloud,
Deann Mashburn, Natalie Cloud, and Kimberly Williams, arising out of his experiences
with the school district as a volunteer youth wrestling coach and substitute teacher.
Plaintiff alleges claims under Title IX, the First and Fourth Amendments pursuant to 42
U.S.C. § 1983, and Title VII. The Court has referred all further proceedings in this case
to the undersigned Magistrate Judge in accordance with jurisdiction pursuant to 28 U.S.C.
§ 636, see Docket No. 53, and this matter is now before the Court on motions to dismiss
raised by all Defendants. For the reasons set forth below, the Court finds that the School
District’s Partial Motion to Dismiss with Combined Brief in Support [Docket No. 65],
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Defendant Ashlock’s Partial Motion to Dismiss with Combined Brief in Support [Docket
No. 66], Certain Individual Defendants’ Motion to Dismiss with Combined Brief in
Support [Docket No. 70], and Defendant Kimberly Williams’ Motion to Dismiss with
Combined Brief in Support [Docket No. 75] should be GRANTED.
Procedural History
Plaintiff filed this case on September 10, 2021 in Oklahoma state court in Cherokee
County, Case No. 21-CJ-98, against TPS and Defendant Ashlock. Defendants removed
the case to this Court on October 18, 2021. See Docket Nos. 1-2. The named Defendants
then filed a partial motion to dismiss, and the Court invited Plaintiff to file an Amended
Complaint, which Plaintiff did on November 11, 2021. 	See Docket Nos. 8, 10-11. The
Defendants then filed another partial motion to dismiss [Docket No. 13] on November
29, 2021. 	In May 2022, Plaintiff’s counsel were given leave to withdraw from
representing the Plaintiff, and Plaintiff entered an appearance pro se. 	See Docket Nos.
33-38. On August 13, 2022, Plaintiff filed a motion for leave to file a Second Amended
Complaint [Docket No. 48], requesting leave to add certain claims and parties. 	On
October 18, 2022, the Court then referred the case to the undersigned Magistrate Judge
for all further proceedings in according with jurisdiction pursuant to 28 U.S.C. § 636.
See Docket No. 53. 	On October 24, 2022, the undersigned Magistrate Judge granted
Plaintiff’s motion to file a Second Amended Complaint in part, and denied the partial
Motion to Dismiss as moot. See Docket No. 53. Plaintiff then filed his Second Amended
Complaint pro se [Docket No. 55], which named Mat Cloud (“Mr. Cloud”), Deann
Mashburn, Natalie Cloud (“Mrs. Cloud”), and Kimberly Williams, in addition to the
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previously-named Defendants. 	All named Defendants have now filed full or partial
motions to dismiss the Second Amended Complaint. See Docket Nos. 65, 66, 70, 75.
Plaintiff alleges seven causes of action in his Second Amended Complaint.
Plaintiff first alleges a claim against TPS for retaliation pursuant to Title IX (Count I).
Next, he has raised both First and Fourteenth Amendment claims pursuant to 42 U.S.C.
§ 1983 against TPS and individual Defendants Ashlock, Mashburn, and Mr. Cloud
(Count II). Third, he alleges a First Amendment conspiracy claim pursuant to § 1983, as
to Defendants Mashburn, Williams, and Mrs. Cloud (Count III). Fourth, he alleges a due
process claim pursuant to Title IX as to TPS (Count IV). 	Additionally, Plaintiff has
alleged a retaliation claim pursuant to Title VII as to TPS (Count V), a First Amendment
retaliation claim pursuant to § 1983 as to Mr. Cloud (Count VI), and First Amendment
retaliation claim pursuant to § 1983 as to TPS (Count VII). Defendants have only raised
challenges to Counts II (First and Fourteenth Amended pursuant to § 1983), III (First
Amendment conspiracy pursuant to § 1983), and IV (Due Process pursuant to Title IX)
of the Second Amended Complaint, leaving Counts I, V, VI, and VII as pending. 	The
unchallenged claims are as to TPS and Mr. Cloud in his individual capacity. 	For the
reasons set forth below, the undersigned Magistrate Judge finds the Defendants’ motions
should be granted.
Background
Plaintiff alleges in his Second Amended Complaint that he was a parent to his
minor daughter, who attended TPS, as well as a volunteer wrestling coach at Tahlequah
High School, and a substitute teacher for same. 	He alleges that he reported Title IX
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grievances on behalf of his daughter and other students regarding concerns that a coach
was engaging in inappropriate behavior with students, as well as discriminatory practices
engaged in by multiple coaches and an athletic trainer. He asserts that he was not properly
advised of the grievance process, that his grievances were not properly addressed, and that
some of the named Defendant engaged in retaliation and conspired to retaliate against him
for his Title IX grievances. See Docket No. 55. He names TPS, TPS Superintendent Leon
Ashlock, Title IX Coordinator Deann Mashburn, Athletic Director Mat Cloud (Mr.
Cloud), 	grants 	coordinator 	Natalie 	Cloud 	(Mrs. 	Cloud), 	and 	Mr. 	Cloud’s 	sister,
Northeastern State University Dean of Students Kimberly Williams, as participating in
violations of Title IX, various First and Fourth Amendment Rights, and Title XII. Id.
Dismissal Standard
To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face. A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555-557, 570 (2007)). Detailed factual allegations are not required, but the statement of
the claim under Rule 8(a)(2) must be “more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555 (2007)).
See generally Fed. R. Civ. P. 8(a)(2) (complaint must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief[.]”). “While the 12(b)(6) standard
does not require that Plaintiff establish a prima facie case in h[is] complaint, the elements
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of each alleged cause of action help to determine whether Plaintiff has set forth a plausible
claim.” 	Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). 	Thus, the
appropriate inquiry is “whether the complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief under the legal theory proposed.”
Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (quoting Forest Guardians v.
Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007)). 	“A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor
does a complaint suffice if it tenders naked assertion[s] devoid of further factual
enhancement[.]” Iqbal, 556 U.S. at 678. Finally, Plaintiff is proceeding pro se; therefore
his filings are “to be construed liberally” such that if a court “can reasonably read the
pleadings to state a valid claim on which the plaintiff could prevail, it should do so,” so
long as the court does not “assume the role of advocate for the pro se litigant.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Analysis
The Defendants raise challenges to Plaintiff’s Equal Protection claim in Count II
and any official capacity claim in Count II, as well as Counts III and IV. As to Count II,
TPS and Defendants Ashlock, Mashburn, and Mr. Cloud challenge the Equal Protection
portion of the Plaintiff’s claim, asserting he is simply restating his Title IX claim and that
he cannot be part of a “class of one” in the employment context. Additionally, the three
individual Defendants contend that they are entitled to qualified immunity. Defendants
Ashlock, Mashburn, and Mr. Cloud also contend that all of Plaintiff’s First and Fourth
Amendment claims in Count II, to the extent he alleges a claim in their official capacities,
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should be dismissed as duplicative. 	As to Count III, Defendants Mashburn, Williams,
and Mrs. Cloud contend that Plaintiff has failed to state a claim and that his claim is
barred by the statute of limitations. Furthermore, Defendant Mashburn asserts that she is
entitled to qualified immunity. As to Count IV, TPS asserts Plaintiff’s claim should be
dismissed because Title IX does not confer due process rights and Plaintiff has no
protected property interest even if the claim were construed as brought under § 1983
instead. 	Plaintiff has responded, and the motions are now fully briefed. 	As discussed
below, the undersigned Magistrate Judge now recommends granting each of the motions
to dismiss.
I. 	Count II – Equal Protection (TPS, Ashlock, Mashburn, Mr. Cloud)
The undersigned Magistrate Judge first notes that Plaintiff has titled his second
claim for relief as a “violation of 42 U.S.C. § 1983.”1 See Docket No. 55 at p. 8. “Section
1983 itself does not create any substantive rights, but merely provides relief against those
who, acting under color of law, violate federal rights created elsewhere. That is, § 1983
is a remedial vehicle for raising claims based on the violation of constitutional rights.
There can be no ‘violation’ of § 1983 separate and apart from the underlying constitutional
violations.” 	Brown v. Buhman, 822 F.3d 1151, 1161 n.9 (10th Cir. 2016) (quotations
omitted). Plaintiff went on to state, however, that he was asserting violations of Plaintiff’s
1 “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State . . . subjects, or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress[.]” 42 U.S.C. § 1983.
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right to free speech, right to petition, and right to association under the First Amendment,
as well as a violation of the Equal Protection Clause of the Fourteenth Amendment. The
undersigned Magistrate Judge thus has no problem construing his second cause of action
pursuant to § 1983 as alleging TPS and individual Defendants Ashlock, Mashburn, and
Mr. Cloud violated his First Amendment and Fourteenth Amendment rights.
As discussed above, TPS and the three named individual defendants assert that
Plaintiff’s Equal Protection claim should be dismissed. 	They all contend Plaintiff has
failed to state a claim because he is simply restating his Title IX claim and that he has
failed to sufficiently plead a “class of one” Equal Protection claim. See Docket Nos. 65,
66, 70. 	Furthermore, the individual Defendants Ashlock, Mashburn, and Mr. Cloud
contend that they are entitled to qualified immunity and that any claim asserted against
them in their official capacities is duplicative. See Docket No. 66, 70. The undersigned
Magistrate Judge agrees that Plaintiff’s second cause of action, to the extent he is alleging
a Fourteenth 	Amendment Equal Protection claim,2 should be 	dismissed as to all
Defendants and that the individual Defendants are entitled to qualified immunity.
a. 	Failure to State a Claim
Here, TPS and the individual Defendants’ challenge to the Fourteenth Amendment
Equal Protection portion of Plaintiff’s second cause of action is that Plaintiff has failed to
state an appropriate claim for relief. 	The Fourteenth Amendment states that “[n]o state
2 None of the parties have challenged Plaintiff’s second cause of action as to the First Amendment
violations at this stage, other than as to the individual defendants in their official capacities as
discussed hereinafter.
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shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV, § 1. To state a claim upon which relief can be granted under § 1983
generally, Plaintiff must allege that TPS, acting under color of law, deprived him of a
federal right. 42 U.S.C. § 1983.
In Count II, Plaintiff alleges in his Second Amended Complaint that he was acting
as a “class of one” when confronting the Title IX grievance because it was a matter of
public interest. See Docket No. 55 at ¶ 34. In 2000, the Supreme Court noted that “[o]ur
cases have recognized successful equal protection claims brought by a ‘class of one,’
where the plaintiff alleges that []he has been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment.”
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). 	However, the Court later
clarified that “the class-of-one theory of equal protection—which presupposes that like
individuals should be treated alike, and that to treat them differently is to classify them in
a way that must survive at least rationality review—is simply a poor fit in the public
employment context.” Engquist v. Oregon Dep't of Agr., 553 U.S. 591, 605 (2008). The
Tenth Circuit followed this ruling by holding that “[a] public employee-turned-plaintiff
must be a member of an identifiable class to bring an equal protection claim.” Pignanelli
v. Pueblo School Dist. No. 60, 540 F.3d 1213, 1220 (10th Cir. 2008). As Plaintiff has not
alleged in his Second Amended Complaint that he is a member of an identifiable class,
any claim in this case for a violation of Plaintiff’s Equal Protection rights arising from his
employment context as a substitute teacher and/or youth wrestling coach must fail.
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Plaintiff contends, however, that he was acting as a parent on behalf of his minor
daughter, and not as a public employee, when he brought the Title IX grievance. 	To
prevail on a “class of one” theory, the Tenth Circuit has stated that:
[A] plaintiff must first establish that others, similarly situated in every
material respect were treated differently. 	A plaintiff must then show this
difference in treatment was without rational basis, that is, the government
action was irrational and abusive, and wholly unrelated to any legitimate
state activity. This standard is objective—if there is a reasonable justification
for the challenged action, we do not inquire into the government actor's
actual motivations.
Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011) (quotations
omitted). 	See 	also 	Barney v. 	Pulsipher, 	143 F.3d 1299, 1312 (10th 	Cir. 1998)
(“[P]laintiffs must first make a threshold showing that they were treated differently from
others who were similarly situated to them.”). 	Under the facts alleged in the Second
Amended Complaint, even if the Plaintiff has properly alleged that he is acting as a parent
on behalf of his minor daughter, he has not alleged that he was treated differently from
others similarly situated. 	See Docket No. 55 at ¶¶ 15-34 and ¶¶ 40-64. Accordingly,
Plaintiff has failed to state a plausible Equal Protection Claim as a “class of one.” 	See
Van Ornum v. Am. Med. Ass'n, 2017 WL 9481028, at *7 (D. Utah July 14, 2017) (“As to
her Equal Protection Claim, Ms. Van Ornum does not allege membership in a particular
class. Should she wish to proceed under a theory of discrimination against a ‘class-of-
one,’ Ms. Van Ornum must allege that ‘she has been intentionally treated differently from
others similarly situated and that there is no rational basis for the difference in treatment.’
Ms. Van Ornum, while referencing equal protection violations in multiple locations,
makes no attempt to establish disparate treatment by Kaiser between herself (or her
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parents) and others similarly situated. On the contrary, Ms. Van Ornum seems to allege
that the modern medical industry similarly mistreats all its patients. Without any such
comparison, Ms. Van Ornum does not state a plausible equal protection claim as to
Kaiser.”), report and recommendation adopted, 2017 WL 4339653 (D. Utah Sept. 29,
2017) (quoting Kan. Penn. Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011)
(quoting Olech, 528 U.S. at, 564)).
b. 	Title IX Claim Restated
The Defendants also contend that Count II should be dismissed because Plaintiff
has simply repackaged his Title IX claim as a claim brought under § 1983. The Supreme
Court held in 2009 that Ҥ 1983 suits based on the Equal Protection Clause remain
available 	to 	plaintiffs 	alleging 	unconstitutional 	gender 	discrimination 	in 	schools.”
Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 258 (2009). 	However, neither the
Supreme Court nor the Tenth Circuit has ruled on whether Title IX may “underlie a
statutory § 1983 claim alongside an independent Title IX claim.” Aubert v. Central New
Mexico Community College, 2019 WL 1239435, at *7 (D. N.M. March 18, 2019)
(emphasis added). 	Most courts to address the question have found that it does not. 	Id.;
M.S. by and through N.S. v. Twin Valley School Dist., 2016 WL 11698061, at *11 (E.D.
Penn. June 14, 2016) (“Plaintiffs' claims under § 1983 cannot proceed because § 1983
does not offer a route to recovery for a violation of Title IX.”). 	Cf. A.W. v. Jersey City
Public Schools, 486 F.3d 791, 805 (3d Cir. 2007) (“Following Rancho Palos Verdes, we
will ordinarily infer that when a private, judicial remedy is available for alleged statutory
violations, this remedy is intended to be exclusive. There is nothing in Section 504 that
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undercuts this inference or causes us to conclude that Congress intended to allow § 1983
to be available to remedy Section 504 violations such as those alleged by A.W.”) (citing
City of Rancho Palos Verdes, Cal. V. Abrams, 544 U.S. 113, 121 (2005)).
However, the Supreme Court’s guidance indicates that an Equal Protection claim
can remain but that “[a] plaintiff stating a similar claim via § 1983 for violation of the
Equal Protection Clause by a school district or other municipal entity must show that the
harassment was the result of municipal custom, policy, or practice.” Fitzgerald, 555 U.S.
at 257-58 (citations omitted). In that context, the Tenth Circuit’s guidance is that:
A school district's liability for sexual harassment under the Equal Protection
clause is analyzed under a municipal liability framework. 	A claim of
municipal liability for sexual harassment requires that the state employee's
discriminatory conduct be representative of an official policy or custom of
the institution, or are taken by an official with final policymaking authority.
In the absence of an official policy, a municipality may still be liable for the
widespread and persistent practice of sexual harassment which constitutes a
custom.
Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1124-25 (10th Cir.
2008) (citations omitted). The District of New Mexico noted in Aubert that “[w]hile the
lack of Title IX policies alone is insufficient to plead a § 1983 claim (see discussion
above), the allegations of the lack of Title IX policies and the failure of the institution to
respond to Plaintiff's complaints in several instances support Plaintiff's argument about a
custom.” 	2019 WL 1239435, at *9. 	Here, noting particularly the liberal construction
given to Plaintiff’s pro se pleading, the undersigned Magistrate Judge finds that Plaintiff’s
Second Amended Complaint contains allegations regarding inadequate Title IX policies,
as well as the failure of TPS as an institution (through policymakers) to appropriately
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respond. 	However, this is insufficient to cure the deficit of the Second Amended
Complaint regarding Plaintiff’s failure to allege that he was treated differently than others
similarly situated, and the claim should nevertheless be dismissed.
c. 	Individuals Defendants Entitled to Qualified Immunity
“The doctrine of qualified immunity protects government officials ‘from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). “Qualified immunity is ‘an immunity from suit rather than a mere defense to
liability.’” Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010) (quoting Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)). Once a defendant has asserted a qualified immunity
defense, “the plaintiff must meet a strict two-part test” to establish “‘(1) that the defendant
violated a constitutional or statutory right, and (2) that this right was clearly established at
the time of the defendant's conduct[.]’” McBeth v. Himes, 598 F.3d 708, 716 (10th Cir.
2010) (quoting Bowling v. Rector, 584 F.3d 956, 964 (10th Cir. 2009)). See also Brown v.
Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011)) (same). “When qualified immunity is
asserted in the context of a motion to dismiss, the factual allegations of the complaint are
assumed to be true, and the court's analysis generally aligns with the analysis applied with
determining the sufficiency of a claim.” Harper v Woodward County Bd. Of County
Commissioners, 2014 WL 7399367, at *8 (W.D. Okla. Dec. 29, 2014) (citing Brown, 662
F.3d at 1162-1164 and Iqbal, 556 U.S. at 666, 673-675, 677-684). Furthermore, this Court
has “discretion in deciding which of the two prongs of the qualified immunity analysis
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should be addressed first in light of the circumstances in the particular case at hand.”
Pearson, 555 U.S. at 236.
As noted above, Plaintiff has made no allegations that he was treated differently
from others who were similarly situated, only that officials failed to properly respond to
his Title IX grievances. 	This is insufficient. 	See Brown v. Montoya, 662 F.3d at 1172-
1173 (“A claim that a state actor discriminated on the basis of a suspect (e.g., race), quasi-
suspect (e.g., gender), or a non-suspect classification calls for strict, intermediate, or
rational basis scrutiny, respectively. But in each instance, ‘to assert a viable equal
protection claim, plaintiffs must first make a threshold showing that they were treated
differently from others who were similarly situated to them.’”) (quoting Barney, 143 F.3d
at 1312) (citing Price–Cornelison v. Brooks, 524 F.3d 1103, 1109-1110 (10th Cir. 2008)).
See also Salcedo v. City of Santa Fe, 2017 WL 5593512, at *5 (D. N.M. Nov. 17, 2017)
(“Plaintiff's failure to plausibly allege disparate treatment is fatal to her equal protection
claim against the individual officers.”). Because Plaintiff has failed to state a claim as to
his Equal Protection cause of action pursuant to § 1983, his claim necessarily fails to state
a claim that these Defendants violated a constitutional or statutory right. 	Because
Plaintiff’s Section 1983 claim for denial of equal protection is subject to dismissal,
Defendants Ashlock, Mashburn, and Mr. Cloud are entitled to qualified immunity on this
claim.
d. 	Official Capacity Claims Duplicative
Finally, Defendants Ashlock, Mashburn, and Mr. Cloud contend that, to the extent
Plaintiff is raising official capacity claims against them, Plaintiff’s Count II should be
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dismissed against them as duplicative. 	See Porro v. Barnes, 624 F.3d 1322, 1328 (10th
Cir. 2010) (“Suing individual defendants in their official capacities under § 1983, we've
recognized, is essentially another way of pleading an action against the county or
municipality they represent.”). See also Kentucky v. Graham, 473 U.S. 159, 166 (1985)
(“an official-capacity suit is, in all respects other than name, to be treated as a suit against
the entity.”). In this case, the Plaintiff has not named the individual Defendants in their
official capacities. Indeed, Plaintiff himself asserts in his response that he is not suing the
Defendants in their official capacities. 	See Docket No. 76 at p. 13. 	Accordingly, any
claims construed as raised against the Defendants in their official capacities should be
dismissed as duplicative.
In sum, the undersigned Magistrate Judge recommends that Plaintiff’s Count II
alleging a claim for violation of Plaintiff’s Equal Protection rights pursuant to § 1983
should be dismissed, that any official capacity claims in Count II be dismissed as
duplicative, and that Defendants Ashlock, Mashburn, and Mr. Cloud be granted qualified
immunity.
II. 	Count III – § 1983 Conspiracy (Mrs. Cloud, Mashburn, Williams)
Plaintiff’s third cause of action (Count III) alleges a conspiracy claim pursuant to
§ 1983 as to Defendant’s Mashburn, Williams, and Mrs. Cloud. 	“Allegations of
conspiracy may, indeed, form the basis of a § 1983 claim.” Tonkovich v. Kansas Bd. Of
Regents, 159 F.3d 504, 533 (10th Cir. 1998). “However, [in addition to alleging that a
Defendant acted under color of state law,] a plaintiff must allege specific facts showing
[1] an agreement and [2] concerted action amongst the defendants.” Id. (citing Hunt v.
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Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994)). Defendants Mashburn, Williams, and Mrs.
Cloud assert that Plaintiff’s third cause of action should be dismissed because: (i) he has
failed to allege any sort of agreement, conspiratorial objective, or meeting of the minds
sufficient to state a claim for conspiracy pursuant to § 1983; (ii) he has not sufficiently
alleged that Ms. Cloud and Ms. Williams were acting under color of state law; and (iii) that
any claim is also barred by the applicable statute of limitations. See Docket Nos. 70, 75.3
The undersigned Magistrate Judge first notes that, for § 1983 conspiracy claims,
not every party is required to be a public actor. The Supreme Court held in 1980 that “to
act ‘under color of’ state law for § 1983 purposes does not require that the defendant be
an officer of the State. It is enough that he is a willful participant in joint action with the
State or its agents. Private persons, jointly engaged with state officials in the challenged
action, are acting [] ‘under color’ of law for purposes of § 1983 actions.” Dennis v. Sparks,
449 U.S. 24, 27-28 (1980) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970);
United States v. Price, 383 U.S. 787, 794 (1966)). Thus, “[w]hen a plaintiff seeks to prove
state action based on a conspiracy theory, a requirement of the joint action charge . . . is
that both public and private actors share a common, unconstitutional goal. Moreover, the
3 The docket in this case reflects Defendant Williams was served on November 4, 2022, see
Docket No. 63, making her Answer due Friday, November 25, 2022. 	Fed. R. Civ. P. 12 (a)
(“Unless another time is specified by this rule or a federal statute . . . [a] defendant must serve an
answer: 	within 21 days after being served with the summons and complaint[.]”). 	Defendant
Williams’s Motion to Dismiss was filed on November 28, 2022, three days late, without
requesting leave to file the Motion to Dismiss out of time. See Docket No. 75. Plaintiff has raised
no objection to the untimely filing and substantively responded to Defendant Williams’s motion
to dismiss. In light of the Plaintiff’s failure to object and in the interest of resolving cases on the
merits, the undersigned Magistrate Judge chooses to address the arguments raised by Defendant
Williams. See Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (noting the “judicial
system’s strong predisposition to resolve cases on their merits.”).
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pleadings must specifically present facts tending to show agreement and concerted
action.” 	Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1126 (10th Cir. 2000)
(quotations omitted). 	See also Sikkink v. Williams, 406 F. Supp. 3d 1006, 1022 n.21
(D.N.M. 2019) (“When a plaintiff seeks to prove state action of a private actor, for
purposes of liability under § 1983, based on a conspiracy theory, a requirement of the joint
action charge is that both public and private actors share a common, unconstitutional goal,
and the pleadings must specifically present facts tending to show agreement and concerted
action.”) (citing Fernandez v. Mora-San Miguel Elec. Co-op., Inc., 462 F.3d 1244, 1252
(10th Cir. 2006) (citing Sigmon, 234 F.3d at 1126). 	Because Defendant Mashburn is a
public actor as TPS’s Title IX coordinator, it is not necessary that Defendants Williams
and Mrs. Cloud be public actors. The undersigned Magistrate Judge thus turns to whether
Plaintiff has sufficiently alleged a claim for relief.
a. 	Failure to State a Claim
Plaintiff alleges in his Second Amended Complaint that he sat behind Mrs. Cloud
at a TPS football game, and that she texted Mr. Cloud and Defendant Williams (her
husband and sister-in-law) about it. Docket No. 55 at ¶ 65. He alleges that this prompted
Mrs. Cloud and Williams to conspire with Defendant Mashburn to retaliate against him
for naming Mr. Cloud in a Title IX grievance. 	In support, he states that Mrs. Cloud
emailed Defendant Mashburn (Title IX coordinator) and falsely stated that he intentionally
sat behind her at a football game, discussed his Title IX claim with another person, and
followed her when she left her seat. 	Id. at ¶¶ 66-67. 	He contends that Mrs. Cloud next
emailed Williams and instructed her to make a witness statement with specific details, and
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that Williams did so and “added additional defamatory statements.” 	Id. at ¶¶ 68-69.
Plaintiff then asserts that Defendant Mashburn provided Mrs. Cloud’s email and a
memorandum (but not Defendant Williams’s email) from Mr. Cloud to an attorney and
Defendant Ashlock. 	In response, Defendant Ashlock accused Plaintiff of criminal
misconduct and instructed Plaintiff via email and certified letter to avoid Mr. and Mrs.
Cloud (and one of the coaches) or he would be barred from TPS property. 	Id. at ¶¶ 70-
71. He alleges that unnamed Defendants “crafted” a letter that exaggerated the Clouds’
allegations and restrained his speech and right to association. 	Id. at ¶ 73. 	He thus
concludes that the email and letter were baseless and intended to keep him from feely
associating with other coaches and deter additional comments. Id. at ¶ 74.
The undersigned Magistrate Judge finds Plaintiff’s allegations insufficient to state
a claim for conspiracy to retaliate. 	“To sufficiently allege joint action,” a plaintiff must
allege facts that manifest a “‘specific goal to violate the plaintiff's constitutional rights by
engaging in a particular course of action.’” Fisher v. Lynch, 531 F. Supp. 2d 1253, 1264
(D. Kan. 2008) (quoting Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1455
(10th Cir. 1995)). In his third cause of action, the Plaintiff himself alleges that Defendant
Mashburn notified Defendant Ashlock of Mr. Cloud’s memorandum and Mrs. Cloud’s
email before receiving Defendant’s Williams’s email, and that Defendant Ashlock took
action against him before receiving Williams’s email. Docket No. 55 at ¶¶ 70-72. Other
than alleging that Mrs. Cloud and Williams discussed information to include in a witness
statement 	submitted 	to 	Mashburn, 	Plaintiff 	includes 	no 	allegation 	that 	Defendant
Mashburn was part of this discussion. Furthermore, as between Mrs. Cloud and Defendant
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Mashburn, the Plaintiff merely alleges that Defendant Mashburn, the Title IX coordinator,
forwarded 	Mrs. 	Cloud’s 	emailed 	complaint 	to 	Defendant 	Ashlock, 	the 	school
superintendent. There is no allegation of a connection between Defendants Williams and
Mashburn at all. 	Even with a liberal construction of the allegations, the undersigned
Magistrate Judge finds Plaintiff’s allegations of a conspiracy are thus conclusory and that
his third cause of action should be dismissed. 	See Sikkink, 406 F. Supp. 3d at 1022
(“Plaintiff 	‘assumes’ 	that 	Defendants 	Bramlett 	and 	Dubois 	(and 	possibly 	other
Defendants) acted in concert, yet there is absolutely no support for such a claim.”). See
also Rowley v. Hum. Servs. Dep't, 2021 WL 4948217, at *25 (D.N.M. Oct. 25, 2021)
(“Conclusory allegations that the Defendants collaborated, conspired, or colluded, without
supporting factual allegations ‘tending to show agreement and concerted action,’ are not
sufficient to state a claim for conspiracy.”) (quoting Sooner Prods. Co. v. McBride, 708
F.2d 510, 512 (10th Cir. 1983) (discussing conspiracy under § 1983)).
b. 	Barred by Statute of Limitations
Having found that Plaintiff has failed to state a claim for relief as to his third cause
of action, the undersigned Magistrate Judge declines to address Defendants’ arguments
regarding the statute of limitations and whether Plaintiff’s newly-added claims relate back
to his original state court Petition. 	The undersigned Magistrate Judges would note,
however, that this is often a question reserved for the summary judgment stage, rather than
dismissal, as it requires delving into what Defendants knew and when. See Thompson v.
Dolgencorp, LLC, 304 F.R.D. 641, 644 (E.D. Okla. 2015) (“Inasmuch as the Supreme
Court has placed the focus of inquiry on the new defendant's knowledge, a Rule 12(b)(6)
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motion may no longer be the proper vehicle for resolution of this issue. The court finds it
is not in the case at bar. As the district court stated in Gonzales v. Brown, 2014 WL
4748604, at *8 (N.D.Okla.2014), ‘[a]t this time, the Court concludes that the statute of
limitations/relation back issues should be determined at the summary judgment stage,
upon a relevant evidentiary record, rather than upon speculation as to what notice the
Added Defendants had of the action and what they knew or should have known.’”).
c. 	Qualified Immunity as to Defendant Mashburn
Because Plaintiff has failed to state a claim as to his conspiracy cause of action
pursuant to § 1983 in Count III, his claim necessarily fails to state a claim that the three
named Defendants violated a constitutional or statutory right. Accordingly, the Plaintiff’s
Section 1983 claim for conspiracy to retaliate in violation of the First Amendment is
subject to dismissal, and Defendant Mashburn, as a public employee, is likewise entitled
to qualified immunity. 	Lewis v. Tripp, 604 F.3d at 1225 (“Qualified immunity is ‘an
immunity from suit rather than a mere defense to liability.’”) (quoting Mitchell, 472 U.S.
at 526).
III. 	Count IV - Title IX Due Process Claim (TPS Only)
Finally, the undersigned Magistrate Judge turns to Plaintiff’s fourth claim for relief,
an alleged due process violation pursuant to Title IX (Count IV) solely as to Defendant
TPS. TPS contends this claim, raised only as to TPS, should be dismissed for failure to
state a claim because Title IX does not confer due process rights and it does not provide
the protected relief. 	See Docket No. 65, pp. 9-11. 	TPS further contends that this claim
would fail even if Plaintiff raised it pursuant to § 1983 because Plaintiff has no protected
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property interest in employment with the school district. 	Id. 	Plaintiff failed to address
this argument in his Response. 	See Docket No. 76. 	“Courts routinely deem an issue
‘waived’ when a party fails to respond to a movant’s substantive argument.” Northcutt v.
Fulton, 2020 WL 7380967, at *2 (W.D. Okla. Dec. 15, 2020) (collecting cases). See also
Schone v. Sodexo, Inc., 2021 WL 915937, at *3 (D. Colo. March 10, 2021) (“When an
argument upon a motion to dismiss that claim is subject to dismissal, and the non-moving
party [even a pro se plaintiff] fails to respond to such an argument, such claims are deemed
abandoned and subject to dismissal.”) (quotation omitted). Based on Plaintiff’s failure to
respond, the undersigned Magistrate Judge deems this claim as abandoned by Plaintiff and
recommends Count IV be dismissed.
IV. 	Leave to Further Amend
As a final note, the undersigned Magistrate Judge finds that Plaintiff should not be
permitted to amend his Complaint a third time. Plaintiff has had the opportunity to amend
on two previous occasions. As such, the undersigned Magistrate Judge finds that Plaintiff
has no good cause warranting leave to amend his Complaint a third time. See, e.g.,
Ochieno v. Sandia National Laboratories, 2019 WL 161503, at *4 (D. N.M. Jan. 10,
2019) (denying leave to amend where “[p]laintiff seeks to make the complaint ‘a moving
target’ in an effort to save his case from dismissal.”) (citing, inter alia, Viernow v.
Euripides Dev. Corp., 157 F.3d 785, 800 (10th Cir. 1998)).
CONCLUSION
Accordingly, the undersigned Magistrate Judge hereby recommends that School
District’s Partial Motion to Dismiss with Combined Brief in Support [Docket No. 65],
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Defendant Ashlock’s Partial Motion to Dismiss with Combined Brief in Support [Docket
No. 66], Certain Individual Defendants’ Motion to Dismiss with Combined Brief in
Support [Docket No. 70], and Defendant Kimberly Williams’ Motion to Dismiss with
Combined Brief in Support [Docket No. 75] be GRANTED, dismissing Plaintiff’s Second
Cause Action with regard to his Equal Protection claim and any official capacity claim as
to the individuals, as well as Plaintiff’s Third and Fourth Causes of Action. Additionally,
the undersigned Magistrate Judge recommends denial of any request to further amend
Plaintiff’s 	Second 	Amended 	Complaint. 	Any 	objections 	to 	this 	Report 	and
Recommendation must be filed within fourteen days. See 18 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b). Any objections and response shall each be limited to 10 pages and a reply
is permitted only with leave of court upon a showing of good cause.
IT IS SO ORDERED this 18th day of January, 2023.
___________________________________________
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
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