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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                    No. 15-20197                         October 22, 2015
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
MICHAEL D. VAN DEELEN,

              Plaintiff - Appellant

v.

JAMES CAIN; CURT DROUILLARD; L. S. SPENCER; PATRICIA
CRITTENDON; SUSAN MURPHY; JEREMY LEWIS; RONNIE
ANDERSON; STEVEN SMITH; RICK MANN; PAUL LANHAM; WILLIAM
PILKINGTON; GEORGAN REITMEIER; STEPHEN SZYMCZAK; KLEIN
INDEPENDENT SCHOOL DISTRICT; ELLEN SPALDING; 10 JOHN/JANE
DOES,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:14-CV-923


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:*
       A public school teacher who pushed a student and held him against a
locker subsequently had his teaching contract terminated. He then filed this


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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pro se federal lawsuit seeking reinstatement, $1 million in compensatory
damages, and punitive damages. He claims that he acted in self-defense and
was set up to fail by school administrators, the school board, and an outside
lawyer for the school district. For the reasons that follow, we affirm the district
court’s decision to dismiss his claims on the pleadings and refuse a third
amendment of the complaint.
                                           I.
      The following facts are drawn from plaintiff’s second amended
complaint. Michael Van Deelen was employed as a geometry teacher at Klein
Forest High School in the Houston area.            The students at Klein Forest,
particularly those in Van Deelen’s classes, were insubordinate, unruly, and
verbally abusive. On several occasions, Van Deelen booted students from his
class and told the school administration that he did not want them to return.
His requests were not followed.
      When he received no relief from administration, Van Deelen turned to
the Klein Independent School District Police Department.            He twice filed
reports about his students with the police. In those reports, he noted the school
administration’s     failure   to   deal    with   the   students   as   requested.
Administrators reprimanded him for these police reports, threatening that he
would face termination if he involved the police again.
      Van Deelen claims that the administration’s repeated refusal to deal
with the discipline problem in his classroom led to a “powder keg” environment,
where students realized that they could abuse him with no repercussions. The
powder keg exploded on February 12, 2014.            According to Van Deelen, a
student threatened to “stick him” and physically charged him. Van Deelen
defended himself, pushing the student out of his classroom and across the
hallway. He then held the student against a bank of lockers until help arrived.


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He claims that Defendant Jeremy Lewis, an assistant principal who was aware
of the disciplinary problems in Van Deelen’s classes, was watching the
encounter over video surveillance.             He accuses Lewis and an associate
principal, Defendant Susan Murphy, of doctoring the video to make it look like
Van Deelen was the aggressor.
       Van Deelen was put on administrative leave following the February 12th
incident. The school board subsequently voted to terminate his contract at the
end of the school year. The policy invoked by the school board indicates that
Van Deelen’s employment was “probationary.”                    See Board Policy DFAB,
available        at       http://pol.tasb.org/Policy/Download/595?filename=DFAB
(LEGAL).pdf (“Probationary Contracts: Termination at End of Year”). 1
       Van Deelen filed this lawsuit after multiple grievances and complaints
with the school district proved unfruitful. The named defendants include Klein
ISD; eight administrators at Klein Forest High School and Klein ISD (the
Administrator Defendants); seven school board members (the School Board
Defendants); and an outside lawyer who represented the district in connection
with Van Deelen’s termination. He attributes the following wrongful conduct
to various defendants: ignoring his complaints of disruptive student behavior
to create the “powder keg” in his classroom; watching on video monitors in
order to catch the inevitable explosion; doctoring the video evidence to make
Van Deelen look like the aggressor rather than the victim; destroying a tape
recording of a meeting that vindicated his side of the story; seeking and
obtaining the termination of his teaching contract; causing a false “assault by



       1 Although we do not venture outside the complaint when reviewing an order
dismissing claims under Rule 12(b)(6), we can take notice of the subject matter and contents
of the specific board policies cited by Van Deelen. See Fed. R. Evid. 201 (permitting courts
“at any stage of the proceeding” to “judicially notice a fact that is not subject to reasonable
dispute”).

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contact” criminal citation to issue against him; sending a false letter to the
Texas Education Agency about his “improper contact with a student”; and
threatening him with arrest if he did not return unspecified school records to
the district.   On the basis of such conduct, Van Deelen brings a First
Amendment retaliation claim; a Fourteenth Amendment substantive due
process claim; conspiracy claims under state and federal law; an intentional
infliction of emotional distress claim; a negligence claim; and a whistleblowing
claim under Texas state law.
                                         II.
      The district court dismissed Van Deelen’s complaint for failure to state
a claim. We review its decision de novo. Like the district court, we will accept
Van Deelen’s factual allegations at face value, but we will disregard legal
conclusions, unwarranted inferences, and conclusory statements. See Ashcroft
v. Iqbal, 556 U.S. 662, 678–79 (2009).
                     A.    First Amendment Retaliation
      In order to determine if Van Deelen had adequately stated a First
Amendment retaliation claim, the district court divided his speech into two
categories: reports of student misbehavior and employment grievances. It
dismissed claims premised on the former because Van Deelen reported student
misbehavior in his capacity as a teacher and in furtherance of his work
responsibilities, such that he was not engaging in citizen speech protected by
the First Amendment. It dismissed claims premised on the latter because the
work grievances concerned Van Deelen’s own employment status, which is not
a matter of public concern necessary to ground a First Amendment retaliation
claim.
      Van Deelen’s arguments in this appeal concern only his reports of
student misbehavior. On that issue, Van Deelan contends that the district


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court erred in concluding that his reports fell within the scope of his official
duties. His argument gets the law mostly right. He correctly points out that
categorization of speech as either official or unofficial hinges on the
circumstances of the employee’s particular position and the details of the
particular speech. Factors to be considered in the analysis include the scope of
the employee’s job responsibilities as indicated in policies or job descriptions
created by the employer, see Hurst v. Lee Cnty., 764 F.3d 480, 485 (5th Cir.
2014)   (consulting   sheriff’s   department’s   “media    relations   policy”   in
determining whether corrections officer spoke to reporter as an employee of
the department); any statutory authority which assigns particular job
responsibilities to the employee, see Gibson v. Kilpatrick, 773 F.3d 661 (5th
Cir. 2014) (explaining that statutory job definition “can be instructive”);
whether speech was “directed within the employee’s chain of command,” see
Davis v. McKinney, 518 F.3d 304, 315 (5th Cir. 2008); as well as evidence that
the employee did or did not engage in certain activity as a result of his or her
job, regardless of formal responsibility or authority, see Garcetti v. Ceballos,
547 U.S. 410, 424–25 (2006) (rejecting that “employers can restrict employees’
rights by creating excessively broad job descriptions” because “[f]ormal job
descriptions often bear little resemblance to the duties an employee actually is
expected to perform” and “[t]he proper inquiry is a practical one”). What Van
Deelen misses, however, is that common sense plays a role in the inquiry as
well.   Where context provides one and only one answer, the absence of
documentary or statutory support does not require a court to ignore the obvious
or accept the incredible. This is true even at the early stage of Rule 12(b)(6).
See Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a
plausible claim for relief [is] . . . a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense. But


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where the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not
shown—that the pleader is entitled to relief.” (internal quotation marks,
brackets, and citations omitted)).
      Van Deelen alleges that he reported student misbehavior at least five
separate times. On each occasion, Van Deelen was teaching class when one or
more students acted out. His “reports” did not all take the same form. We
begin with the easiest cases.
      On at least four occasions, Van Deelen reported the students to Lewis,
one of Klein Forest’s assistant principals.      In these reports, Van Deelen
requested that the students be removed from his classroom. From the context
and allegations alone, it is apparent that this speech was made in furtherance
of Van Deelen’s teaching obligations.       His complaint concerned disruptive
behavior in the classroom.      He requested relief limited to the classroom
environment.    And his speech was directed to a member of the school’s
administration. See Weintraub v. Bd. of Educ., 593 F.3d 196, 200 (2d Cir. 2010)
(“Weintraub’s speech challenging the school administration's decision to not
discipline a student in his class was a ‘means to fulfill,’ and ‘undertaken in the
course of performing,’ his primary employment responsibility of teaching.”
(citations omitted)).
      Although we require no additional information to slot this speech along
the employee-citizen continuum, our conclusion is bolstered by Sections 37.002
and 37.003 of the Texas Education Code—cited throughout Van Deelen’s
complaint—which formally recognizes the authority of a teacher to report
misbehaving students to school administration and to express an opinion as to
whether such students should be allowed back in the classroom.




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      Van Deelen’s allegations are not limited to this up-the-chain reporting,
however.     He also filed at least two reports with the Klein ISD police
department. In both reports, he complained not only about the particular
student who had acted out, but also about how Lewis “repeatedly sent
misbehaving and disruptive students back to class even though [Van Deelen]
had requested that they not be allowed to return.”
      Van Deelen’s briefing emphasizes these police reports, as if to argue that
his decision to take his complaints to the police was enough to remove the
speech from the ambit of his professional responsibilities and require
consideration of whether the speech touched a matter of public concern. But
given these particular factual allegations, such a conclusion would be
misguided. The police in question were campus police, and the relief Van
Deelen sought from this new audience is indistinguishable from the relief he
sought from Lewis. As before, he hoped that the police would take action that
would allow him to control his classroom environment. Nor is the speech
protected because Van Deelen included a complaint that Lewis inadequately
handled Van Deelen’s prior requests for student discipline. Recitation that the
problem has been ongoing and unaddressed does not change the character or
import of the speech. See Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689,
690, 694 (5th Cir. 2007) (per curiam) (holding that athletic director’s
memorandum         to   principal     explaining     how     months-long       improper
administration of athletic funds impaired his ability to perform job-related
tasks “was made in the course of performing [the plaintiff’s] employment”).
      Van Deelen protests that it is inconsistent to find that activity which
allegedly got him fired was activity required for his job. 2 But such an outcome



      2  Van Deelen’s argument—like his complaint—assumes that he was fired for his
speech, rather than for his physical run-in with a student. We suspect that the Defendants

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is neither uncommon nor illogical.             An employee can discharge a work
responsibility inadequately; he can also be fired by caprice and mistake. The
First Amendment is not automatically implicated in either scenario.                  See
Garcetti, 547 U.S. at 420 (“[W]hile the First Amendment invests public
employees with certain rights, it does not empower them to ‘constitutionalize
the employee grievance.’”) (quoting Connick v. Myers, 461 U.S. 138, 154
(1983)); Blackburn v. City of Marshall, 42 F.3d 925, 933 (5th Cir. 1995) (“[T]he
Court in Connick recognized that a public employer enjoys wide latitude in the
administration of its own affairs and underscored a reluctance to convert every
workplace grievance into a constitutional claim.”).
      For these reasons, the district court did not err in dismissing Van
Deelen’s First Amendment retaliation claims.
                   B.     Fourteenth Amendment Due Process
      Perhaps in recognition of the flaws in his First Amendment retaliation
claims, Van Deelen leads his briefing with his Fourteenth Amendment claims.
But he then attempts to import First Amendment principles into those claims.
When a specific constitutional provision controls, it is improper to analyze a
claim as substantive due process. See Albright v. Oliver, 510 U.S. 266, 273
(1994). Given our conclusion that Van Deelen cannot succeed on his First
Amendment retaliation claim, he must articulate some basis other than speech
interests for liability under the Fourteenth Amendment.
      The only other basis alleged is that Defendants’ actions amounted to
“abusive, irrational or malicious abuse of government power that shocks the
conscience.”    As described above, Van Deelen alleges a series of fantastic
actions undertaken by various defendants. He asserts that these actions were



would tell a different story. But they opted to move for dismissal of Van Deelen’s claims
rather than answer the complaint, which was their right.

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undertaken as part of a concerted effort to fire him or pressure him into
quitting. 3
       The district court dismissed Van Deelen’s due process claims because the
conduct alleged was not “so brutal, egregious, outrageous, or violative of the
decencies of civilized conduct as to rise to the level required to shock the
conscience.” This statement of the standard for substantive due process claims
comes from our decision in Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex
rel. Keys, 675 F.3d 849, 867–68 (5th Cir. 2012). And we agree with the district
court that Van Deelen’s allegations, which acknowledge that he assaulted one
of his students though he tries to justify that, do not reach this high bar. See
id. at 868 (explaining that even bad faith violations of state law do not suffice
to establish a substantive due process violation).
                                C.      State Law Claims
       In addition to his federal constitutional claims, Van Deelen brings four
state law claims against various defendants: conspiracy, 4 intentional infliction
of emotional distress (IIED), negligence, and whistleblowing. Van Deelen’s
conspiracy and whistleblowing claims are not viable under Texas law. We
affirm the district court’s dismissal of those claims, for the reasons given in its
order. Intervening case law requires that we address the IIED and negligence




       3  Van Deelen also suggests that Defendants engaged in this conduct so that he would
suffer bodily harm at the hands of his unruly students. He refers to this theory as the “state-
created danger” theory and faults the district court for not addressing it. There are any
number of flaws in his argument, not least of which is that he never actually suffered any
bodily harm. In any event, we can and do rely upon the point that we have never recognized
the viability of the “state-created danger” theory, see Doe ex rel. Magee v. Covington Cnty.
Sch. Dist. ex rel. Keys, 675 F.3d 849, 864 (5th Cir. 2012), and Van Deelen’s allegations do not
prompt us to do so now.
        4 Van Deelen also asserted a federal conspiracy claim. With no “actual deprivation of

constitutional rights,” his federal conspiracy claim is unsupportable. Cinel v. Connick, 15
F.3d 1338, 1343 (5th Cir. 1994).

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claims against the Administrator and Board Member Defendants in more
depth. 5
       The district court dismissed the negligence and IIED claims against the
Administrators and Board Member Defendants, pursuant to the election of
remedies provision of the Texas Tort Claims Act (TTCA). The election of
remedies scheme provides that “[t]he filing of a suit under this chapter against
a governmental unit constitutes an irrevocable election by the plaintiff and
immediately and forever bars any suit or recovery by the plaintiff against any
individual employee of the governmental unit regarding the same subject
matter.”    Tex. Civ. Prac. & Rem. Code § 101.106(a).               It also permits the
governmental unit to move for “immediate[]” dismissal of its employees when
the lawsuit names both the governmental unit and individual employees. Id.
§ 101.106(e).
       Necessary to the district court’s dismissal of the TTCA claims was its
conclusion that the Administrator and Board Member Defendants are
“employees of Klein ISD” under the Act. Defendants note on appeal that our
intervening decision in Gil Ramirez Grp., L.L.C. v. Houston Indep. Sch. Dist.,
786 F.3d 400 (5th Cir. 2015), may have implications for the School Board
Defendants. We begin with the impact of Gil Ramirez.
       1.     The School Board Defendants
       Gil Ramirez dealt with the applicability of the TTCA’s definition of
“employee” to school board members.               We acknowledged that the Act’s
definition, on its face, did not extend to school board members, because they
are neither in the district’s “paid service” nor subject to the district’s “right to
control.” 786 F.3d at 416 (citing Tex. Civ. Prac. & Rem. Code § 101.001(2)).



       5 Van Deelen does not appeal the district court’s dismissal of the IIED claim against
the district’s outside counsel on the ground that the alleged conduct was not outrageous.

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We then addressed the argument that the Act should be construed as
consistent with definitions of “employee” found in other, context-specific Texas
statutes. The argument stemmed from a 2011 Texas Supreme Court case,
which held that a medical resident who was neither paid by nor controlled by
the governmental entity could nonetheless be an employee for purposes of the
TTCA pursuant to a Texas Health and Safety Code provision designating
“medical residents as employees ‘for purposes of determining liability.’” Id.
(quoting Franka v. Velasquez, 332 S.W.3d 367, 374 (Tex. 2011)). Relying on
this reasoning, the school board defendant in Gil Ramirez invoked provisions
of the Texas Education Code including school board members in the umbrella
of “employees” entitled to professional immunity. See id. (citing Tex. Educ.
Code §§ 22.051, 22.0511).
      We rejected the defendant’s argument in Gil Ramirez because the
specific actions that he allegedly engaged in would not fall within the bounds
of the Education Code provisions:
             But even if some “employees” under these Education Code
      provisions might fall within the scope of Franka, Marshall does
      not. The same Education Code provision limits personal liability
      “for any act that is incident to or within the scope of the duties of
      the employee’s position of employment and that involves the
      exercise of judgment or discretion on the part of the employee[.]”
      Tex. Educ. Code § 22.0511 (emphasis added). Marshall is not
      alleged to have been acting “within the scope” of his duties. To the
      contrary, bribery and peddling influence are not within the scope
      of a trustee’s duty.
786 F.3d at 416–17. The allegations in this case present a different situation.
Van Deleen complains that the School Board Defendants refused to hear two
employee grievances and voted on his termination without allowing him to
make an oral presentation. We note that the grievances were filed under an




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inapplicable board policy, 6 and board policy gave Van Deelen no right to speak
on his own behalf before or after his probationary contract was terminated. 7 It
is clear that the School Board Defendants, exercising their “judgment” and
“discretion” in deciding whether to entertain Van Deelen’s grievances or permit
him to address the board about the proposed termination of his probationary
employment, were acting as “employees” of the school district pursuant to
Sections 22.051(5) and 22.0511(a) of the Texas Education Code.
       This does not resolve the applicability of the TTCA’s definition of
employee to the School Board Defendants, however. Franka provides some
basis for concluding that the Texas Supreme Court would import the context-
specific definition of employee found in Section 22.051 of the Texas Education
Code to the generic definition found in Section 101.001(2) of the TTCA. But
even if Texas law does not allow for such importation, Section 22.0511 of the
Education Code itself provides that the School Board Defendants are entitled
to professional immunity on Van Deelen’s state law claims. See Tex. Educ.
Code § 22.0511(a) (“A professional employee of a school district is not
personally liable for any act that is incident to or within the scope of the duties
of the employee’s position of employment and that involves the exercise of
judgment or discretion on the part of the employee, except in circumstances in


       6  Van Deelen’s grievances were filed pursuant to Board Policy DIA and complained of
“retaliation” for his reports of student misbehavior and for grieving his suspension. But
Board Policy DIA prohibits a very specific form of retaliation: that which follows a claim about
“discrimination or harassment” on the basis of certain protected characteristics (such as
race), or after supporting such a claim.              See Board Policy DIA, available at
http://pol.tasb.org/Policy/Download/595?filename=DIA(LOCAL).pdf (“Employee Welfare:
Freedom from Discrimination, Harassment, and Retaliation”).
        7 Board Policy DFAB provides that the board may terminate a probationary contract

at the end of its stated term if it “serve[s] the best interests of the District.” It entitles the
affected teacher to notice only after the fact: “The Board shall give the employee notice of its
decision to terminate the employment not later than the tenth day before the last day of
instruction required under the contract.” It does not provide any right to pretermination
hearing, and it explicitly denies the employee any right to appeal.

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which a professional employee uses excessive force in the discipline of students
or negligence resulting in bodily injury to students.”). Because this alternate
grounds for dismissal is apparent on the face of the complaint, we find that the
district court did not err in dismissing the negligence and IIED claims against
the School Board Defendants.
      2.    The Administrator Defendants
      There is no question that the Administrator Defendants are “employees”
of Klein ISD under the TTCA. The district court held that the state law tort
claims against them had to be dismissed because Van Deelen’s original
complaint also named Klein ISD as a defendant, and Section 101.106 of the
Texas Civil Practice and Remedies Code makes this an “irrevocable election”
to proceed against the district rather than the individual employees.
      Van Deelen protests the unfairness of this result. He characterizes his
inclusion of Klein ISD in the negligence claim in his original and first amended
complaints as a “pleading mistake.”     The record indicates otherwise. The
negligence claim in these complaints explicitly attributed six separate legal
duties to “Klein ISD.” Van Deelen also asserts that Defendants permitted him
to “correct” the mistake by not opposing his second amended complaint. Again,
he misstates the record. Defendants opposed amendment of the state law tort
claims as futile due to the Act’s election of remedies.        They also filed
simultaneously a motion to dismiss which invoked the election of remedies.
The district court allowed Van Deelen to amend his complaint without ruling
on Defendants’ motion to dismiss.
      Finally, Van Deelen claims that his amended pleading, which dropped
the district from the negligence claim, superseded all previous versions of his
complaint. In other words, he asserts that the amendment mooted Defendants’
attempt to enforce the TTCA election-of-remedies provision. But no amended


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pleading can moot his initial election, which must be and was made “at the
outset” of the litigation. Mission Consol. Indep. Sch. Dist. v. Garcia, 253
S.W.3d 653, 657 (Tex. 2008) (Section 101.106 “force[s] a plaintiff to decide at
the outset whether an employee acted independently and is thus solely liable,
or acted within the general scope of his or her employment such that the
governmental unit is vicariously liable, thereby reducing the resources that the
government and its employees must use in defending redundant litigation and
alternative theories of recovery”).
                                      III.
      Van Deelen requested leave to amend in his oppositions to Defendants’
motions to dismiss. The requests consisted of a single paragraph. He did not
explain what new factual allegations he could offer that would address the
deficiencies in his complaint. As noted by appellees, a “bare request in an
opposition to a motion to dismiss—without any indication of the particular
grounds on which the amendment is sought—does not constitute a motion
within the contemplation of Rule 15(a).”      United States ex rel. Willard v.
Humana Health Plan of Tex. Inc., 336 F.3d 375, 387 (5th Cir. 2003) (internal
quotation and citation omitted). The district court entertained the motion,
however, and denied leave on the basis of futility and undue prejudice to the
Defendants, who collectively had moved for dismissal in five separate motions
to dismiss (three had been mooted by prior amendments). In denying Van
Deelen a fourth opportunity to plead, the district court did not abuse its
discretion.
                                      IV.
      For these reasons, the judgment below is AFFIRMED.




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