Berry v. Miles et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Dr. Jessica Berry,
Plaintiff,
v.
Houston Independent School
District et al.,
Defendants.
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Civil Action H-25-2405
ORDER DENYING MOTIONS TO DISMISS
The parties consented to the jurisdiction of the undersigned
magistrate 	judge 	for 	all 	purposes, 	including 	entry 	of 	final
judgment. ECF Nos. 27, 29, 32, 33. Pending before the court are
Defendants’ 	Motions 	to 	Dismiss. 	ECF 	Nos. 	28 	and 	30. 	Both
motions are DENIED without prejudice to Defendants’ right to
raise the issues in a summary judgment motion to be filed later in
the case.
1. Background
Plaintiff Dr. Jessica Berry, proceeding pro se, alleges that
she was wrongfully terminated from her position as principal of an
elementary school on June 7, 2024. ECF No. 26 at 3.
Berry filed her Original Complaint in state court on April 20,
2025, against Houston Independent School District (HISD), HISD
Board of Managers, the superintendent of HISD F. Mike Miles
(together, 	HISD 	Defendants), 	and 	the 	law 	firm 	Thompson 	&
Horton, LLP (T&H).1 ECF No. 1-4. Defendant T&H removed the
case to this court based on federal question jurisdiction. ECF No. 1.
1 Incorrectly listed in the Original Complaint as Thompson & Hunter LLP.
United States District Court
Southern District of Texas
ENTERED
May 20, 2026
Nathan Ochsner, Clerk
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Berry brings federal claims for violations of the FMLA,
“Retaliation 	Under 	Federal 	Whistleblower 	Protection
Regulations,” 	denial 	of 	procedural 	due 	process 	via 	42 	U.S.C.
§ 1983, and violations of § 504 of the Rehabilitation Act. ECF
No. 26 at 3–5. Berry also brings a state law cause of action for
defamation. Id. at 5.
HISD Defendants and T&H each filed Motions to Dismiss.
ECF Nos. 28 and 30. The briefing for both motions includes
matters outside the pleadings. As the court will discuss in more
detail 	below, 	HISD 	Defendants 	attached 	a 	copy 	of 	Berry’s
employment 	contract 	to 	their 	motion. 	ECF 	No. 	28-1. 	Berry
included multiple pieces of evidence as attachments to both her
responses. 	In 	their 	replies, 	all 	Defendants 	rely 	on 	evidence
attached to the briefing, at least in part. ECF No. 37 at 4; ECF
No. 38 at 2.
2. Legal Standard
Rule 12(b)(6) authorizes the court to dismiss a complaint for
“failure 	to 	state 	a 	claim 	upon 	which 	relief 	can 	be 	granted.”
Fed. R. Civ. P. 12(b)(6). Under Rule 12(b)(6), the court determines
whether the plaintiff’s complaint contains “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “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.” Calogero v. Shows, Cali & Walsh, L.L.P.,
970 F.3d 576, 	580 	(5th 	Cir. 	2020) 	(quoting 	Ashcroft 	v. 	Iqbal,
556 U.S. 662, 678 (2009)). “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.” Iqbal, 556 U.S.
at 678. Ultimately, the “[f]actual allegations [in the complaint]
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must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555 (internal citation omitted).
Courts accept “all well-pleaded facts as true” and “view[]
them in the light most favorable to the plaintiff.” Allen v. Walmart
Stores, L.L.C., 907 F.3d 170, 177 (5th Cir. 2018) (quoting Jones v.
Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). “A plaintiff need only
plausibly allege facts going to the ultimate elements of the claim
to survive a motion to dismiss.” Cicalese v. Univ. of Tex. Med.
Branch, 924 F.3d 762, 768 (5th Cir. 2019). “Factual allegations
must be enough to raise a right to relief above the speculative
level . . . on the assumption that all allegations in the complaint
are true (even if doubtful in fact).” Twombly, 550 U.S. at 555. “[A]
well-pleaded complaint may proceed even if it strikes a savvy judge
that actual proof of those facts is improbable[.]” Id. at 556.
The court liberally construes pro se pleadings. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). When a plaintiff’s complaint fails
to state a claim, the court should generally give the plaintiff a
chance to amend the complaint under Rule 15(a) before dismissing
the action with prejudice, unless doing so would be futile. See Great
Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305,
329 (5th Cir. 2002); see also Ayers v. Johnson, 247 F. App’x 534,
535 (5th Cir. 2007) (“[A] district court acts within its discretion
when dismissing a motion to amend that is frivolous or futile.”).
3. Analysis
“If, on a motion under Rule 12(b)(6) or 12(c), matters outside
the pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56.” Fed. R. Civ. P. 12(d). When considering a motion to dismiss,
the court must limit itself to: (1) the facts in the complaint; (2)
documents attached to the complaint; and (3) matters of which the
court may take judicial notice. Walker v. Beaumont Indep. Sch.
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Dist., 938 F.3d 724, 735 (5th Cir. 2019). “The court may also
consider documents attached to either a motion to dismiss or an
opposition to that motion when the documents are referred to in
the 	pleadings 	and 	are 	central 	to 	a 	plaintiff’s 	claims.” 	Brand
Coupon Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635
(5th Cir. 2014). Courts do not incorporate a referenced document
into the pleadings when the document is merely evidence of an
element of a claim. Hammer v. Nodolf, 810 F. Supp. 3d 798, 802
(W.D. Tex. 2025); 	O’Malley v. Brown Bros. Harriman & Co.,
No. 19-CV-0010, 2020 WL 1033658, at *3 (W.D. Tex. Mar. 3, 2020).
Here, 	every 	party 	raises 	matters 	that 	are 	outside 	the
pleadings. Berry did not attach any documents to her Amended
Complaint. 	HISD 	Defendants 	attached 	Berry’s 	employment
contract to their motion. ECF No. 28-1. Berry attached several
exhibits 	to 	her 	responses: 	(1) 	her 	employment 	contract, 	ECF
Nos. 35-1, 36-1; (2) an email confirming her approved intermittent
FMLA leave, ECF Nos. 35-2, 36-3; (3) screenshots of a Houston
Chronicle news article, ECF Nos. 35-3, 36-4; and (4) a TEA Request
for Special Education Complaint Investigation Form, ECF No. 36-
2. In their replies, all Defendants rely on Berry’s employment
contract, at least in part. ECF No. 37 at 4; ECF No. 38 at 2. In her
Amended 	Complaint, 	Berry 	does 	not 	explicitly 	reference 	her
employment contract, the email confirming her FMLA leave, or her
TEA complaint form. As such, those documents are not part of the
pleadings.
The 	court 	informed 	Berry 	at 	the 	Initial 	Conference 	on
August 28, 2025, that her Amended Complaint must include all
the relevant facts at her disposal and must address all the issues
that Defendants raised in their initial Motions to Dismiss. In that
hearing, the court cautioned Berry not to include additional facts
outside the complaint in her response to the Defendants’ Motions
to Dismiss. Every party disregarded the court’s instructions.
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No party asks the court to exclude any of the attachments.
Every party relies, at least in part, on the attached evidence. Thus,
there is no principled reason for the court to exclude the evidence.
As such, the question before the court is no longer whether
the complaint sufficiently pleads Berry’s claims. Defendants and
Berry have presented matters outside the pleadings, which the
court concludes must be considered to determine the issues that
have been raised. It would therefore be inappropriate for the court
to dispose of the instant issues under Rule 12(b)(6). The pending
motions must be treated as motions for summary judgment under
Rule 12(d). Doing otherwise on the record before the court would
be error.
When treating a motion to dismiss as one for summary
judgment, Rule 12(d) requires that “[a]ll parties must be given a
reasonable opportunity to present all the material that is pertinent
to the motion.” Thus, rather than directly convert the instant
motions 	to 	summary 	judgment 	motions, 	the 	court 	instead
DENIES the motions without prejudice to allowing Defendants to
raise the same issues in the context of a motion for summary
judgment. The court will set a Rule 16 conference and will discuss
with the parties the scope of discovery that the court will permit.
Discovery is stayed until the court conducts the conference.
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4. Conclusion
Defendants’ Motions to Dismiss, ECF Nos. 28 and 30, are
DENIED.
Signed at Houston, Texas, on May 20, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
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