1 United States Court of Appeals,

Fifth Circuit.

No. 95-20328.

Yvonne SHINN, on Behalf of Jonathan Daniel SHINN; John Eugene Shinn, on behalf of

Jonathan Daniel Shinn, Plaintiffs-Appellants,

v.

COLLEGE STATION INDEPENDENT SCHOOL DISTRICT; Kenneth Wilbanks; Ray

Chancellor; Bob Curry; William Dornburg, Defendants-Appellees.

Oct. 3, 1996.

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD, EMILIO M. GARZA and DENNIS, Circuit Judges.

PER CURIAM:

Yvonne and John Eugene Shinn, on behalf of Jonathan Daniel Shinn, appeal the district court's

order granting College Stati on Independent School District ("School District"), Kenneth Wilbanks,

Ray Chancellor, Bob Curry, and William Dornburg summary judgment on the Shinns' claims. Finding

no reversible error, we affirm and order the Plaintiffs to show cause why reasonable attorney's fees

and double costs should not be awarded to the Defendants as damages, pursuant to F ED .R.A PP .P. 38.

The Plaint iffs brought suit on behalf of their son, Jonathan, alleging that t he Defendants

violated Jonathan's rights under the United States Constitution and the Constitution of Texas. The

Plaint iffs alleged that while Jonathan was a freshman member of the A & M Co nsolidated High

School ("A & M") Band, his constitutional rights were violated by the actions of the band director,

Defe ndant Kenneth Wilbanks. The Plaintiffs' amended complaint further alleged that the school

o fficials inadequate ly respo nded to their complaints. The complaint, in essence, alleged extreme

dissatisfaction with Wilbanks's performance as band dir ector. Representative allegations included that

Wilbanks: lacked discipline and leadership; "insisted that Jon only play the B-flat clarinet"; showed

disrespect to the assistant band director; failed to distribute the band rules until "six entire weeks"

after the start of practice; gave t he band members the day off when he learned that they were1 We note that the attorney that brought this appeal did not appear at oral argument. Instead,

he sent a colleague who conceded at oral argument that the Plaintiffs' claims under the Texas

Constitution were without merit; therefore, we need not address these claims on appeal.

2 planning a "walk-off" during practice to protest his performance as a band director; walked into the

girls' locker room ; failed to provide parents with "information" about the marching band competition

in Killeen, Texas, which resulted in the Plaint iffs arriving at the competition four hours and fifteen

minutes early; spoke "over the band's half-time performance bestowing praises on t he coaches";

"verbally abused" another student, and Jonathan then witnessed the student's "horrified look when

she stepped out of Wilbanks' offiruments properly; "yelled at" Jonathan when he tried to turn in his

instrument; "failed to maintain discipline over some band members and allowed the members to stay

up to at least 3:00 a.m."

When Jonathan told his parents about Wilbanks's behavior, the Plaint iffs complained to the

school o fficials. The Plaintiffs allege that the school officials did not respond adequately to their

complaints. Consequently, the Plaintiffs asked the Texas Education Agency ("TEA") to investigate

Wilbanks's behavior. The TEA's investigation did not sustain the Plaintiffs' allegations. Finally, when

the local newspaper ran an article about Wilbanks which mentioned the Plaint iffs' complaint and the

investigation by the TEA, Wilbanks "lectured" the band students on the article. The Plaintiffs allege

that during the lecture, Wilbanks "directed his comments" at Jonathan and another student, whose

pa rent s had also been instrumental in bringing the TEA investigation. All in all, the Plaintiffs

complain that "Wilbanks' outrageous and unprofessional behavior resulted in a poor year for the band

and the infliction of severe emotional distress upon many of the students, including Jon Shinn."

The Plaint iffs filed suit against the School District and various scho o l o fficials in their

individual and o fficial capacities, pursuant to 42 U.S.C. § 1983. The Plaintiffs allege that the

Defendants' behavior violated Jo nat han's constitutional rights under the First and Fourteenth

Amendments to be free from emotional harassment and to be free from punishment absent personal

guilt, and that Wilbanks's behavior violated Jonathan's right to be free from retaliation for exercising

his right to free speech. 1 The district court granted the Defendants' motion for summary judgment.2 Additionally, because the Plaintiffs have failed to establish the violation of a clearly established

constitutional right, the Defendants in their individual capacities are entitled to qualified immunity.

See Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079 (5th Cir.) (stating standard for

qualified immunity), cert. denied, --- U.S. ----, 116 S.Ct. 532, 133 L.Ed.2d 438 (1995).

Furthermore, even if we were to find the violation of a constitutional right, the Plaintiffs have not

alleged that the Defendants acted pursuant to an official custom or policy of the School District,

or that the School District implemented such an official custom or policy; therefore, there cannot

3 However, a close reading of the district court's order reveals that the court dismissed the Plaintiffs'

complaint for failure to state a claim upon which relief could be granted. Therefore, we will review

the dismissal de novo as one under F ED .R.C IV .P. 12(b)(6). Rutherford v. United States, 702 F.2d

580, 581 n. 1 (5th Cir.1983).

We provide the detailed description of the Plaintiffs' allegations in order to illustrate that a

co nstitutional violation does not occur every time someone feels that they have been wronged o r

treated unfairly. There is no constitutional right to be free from emotional distress. S ee Grandstaff

v. City of Borger, T

ex., 767 F.2d 161, 172 (5th Cir.1985) ("Section 1983 imposes liability for

violation of rights protected by the Constitution, not for violations of duties of care arising out of tort

law." (quoting B aker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695-96, 61 L.Ed.2d 433

(1979))), cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed.2d 686 (1987). The right to be free

from punishment absent personal guilt is only actionable when that punishment deprives the plaint iff

of a constitutionally protected right. B urris v. Willis Indep. Sch. Dist., Inc., 713 F.2d 1087, 1093 n.

3 (5th Cir.1983). T he Plaintiffs have made no such allegation. Finally, the Plaintiffs' free speech

claim fails because t hey have no t alleged what speech Jonathan engaged in, nor have they alleged

facts indicating that Wilbanks's act io ns amo unted to retaliation or infringement on Jonathan's first

amendment r ights. S ee Haverkamp v. Unified Sch. Dist. No. 380, 689 F.Supp. 1055, 1058-59

(D.Kan.1986) (dismissing plaint iff's first amendment cla im where the complaint did not indicate

retaliation by school officials or a restriction of plaint iff's first amendment rights); s ee also Wilson

v. UT Health Ctr

., 973 F.2d 1263, 1270 (5th Cir.1992) (upholding directed verdict on first

amendment claim because plaint iff produced insufficient evidence that certain defendants "retaliated

against her for her speech"), cert. denied, 507 U.S. 1004, 113 S.Ct. 1644, 123 L.Ed.2d 266 (1993). 2be § 1983 liability for the School District or for the Defendants in their official capacities.

Meadow briar Home For Children, Inc. v. Gunn, 81 F.3d 521, 533 (5th Cir.1996).

4 For the foregoing reasons, we AFFIRM the judgment of the district court. Moreover, we

conclude that the Plaint iffs' appeal is frivolous. S ee Olympia Co., Inc. v. Celotex Corp., 771 F.2d

888, 893 (5th Cir.1985) (stating that a "frivolous appeal is one whi ch invo lves legal points not

arguable on the merits") (citation omitted), cert. denied, 493 U.S. 818, 110 S.Ct. 73, 107 L.Ed.2d

39 (1989). We therefore ORDER the Plaintiffs to show cause why reasonable attorney's fees and

double costs should not be awarded to the Defendants as damages, pursuant to F ED .R.A PP .P. 38.

DENNIS, Circuit Judge, specially concurring:

I concur in the result of the majority's decision, i.e., that the plaint iff's action does not reach

the threshold of a claim based on a constitutional violation. My o nly o bject ion to the majority's

opinion is that it disposes of the plaint iffs' substantive due process claim by constructing a vagary that

has no real basis in law. The majority states:

There is no constitutional right to be free from emotional distress. See G randstaff v. City of

Borger, Tex., 767 F.2d 161, 172 (5th Cir.1985).

If all the majority means is that a person cannot recover for emotional distress under § 1983 unless

that distress stems from a constitutional violation, the statement is merely misleading due to lack of

precision and coherence. Further, the statement does not explain why there was no constitutional

violation in this case. On the other hand, I seriously doubt that the majority intends to imply that a

person can never recover damages for emotional distress under § 1983 or cannot recover for such

distress in the absence of physical or significant injury. The law is too well settled to the contrary.

Memphis Community School Dist. v. Stachura, 477 U.S. 299, 306, 106 S.Ct. 2537, 2542, 91 L.Ed.2d

249 (1986) (mental and emotional distress constitute compensable injury in § 1983 cases); C arey v.

Phiphus, 435 U.S. 247, 264, 98 S.Ct. 1042, 1052, 55 L.Ed.2d 252 (1978) (same); H arper v. Harris

County, Tex., 21 F.3d 597 (5th Cir.1994) (a plaint iff is no longer required to prove significant injury

to assert a § 1983 Fourth Amendment excessive force claim); see D unn v. Denk, 79 F.3d 401 (5th

Cir.1996) (this court's holding in Johnson v. Morel, 876 F.2d 477 (5th Cir.1989) (en banc), which5

grafted onto the Fourth Amendment objective reasonableness standard of Graham v. Connor, 490

U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) the additional requirement of a significant injury,

has been effectively overruled by Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156

(1992)).

Moreover, as I read Grandstaff v. City of Borger, Tex., 767 F.2d 161 (5th Cir.1985) it cannot

properly be made to stand for a broad rule that there is no constitutional right to be free from

e mo t io nal distress. It simply holds that bystanders may not recover under § 1983 for officers'

negligent inflict

ion of emotional distress by shooting and killing their husband and stepfather within

their sight. The Grandstaff opinion, 767 F.2d at 172. stated:

Negligent inflict

ion of emotional distress is a state common law tort; there is no

constitutional right to be free fro m witnessing this police action. "Section 1983 imposes

liabilit y for violation of rights protected by the Constit ut io n, not for violations of duties of

care arising out of tort law." B aker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695-

96, 61 L.Ed.2d 433 (1979).