United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED June 27, 2022 No. 20-50103 Lyle W. Cayce Clerk Robert Watts,

Plaintiff—Appellant,

versus

Northside Independent School District; Mack Edward Breed,

Defendants—Appellees.

Appeal from the United States District Court for the Western District of Texas USDC No. 1:17-CV-887

Before Wiener, Costa, and Willett, Circuit Judges. Gregg Costa, Circuit Judge: Texas high school football has a storied history. See generally H. G. Bissinger, Friday Night Lights: A Town, a Team, and a Dream (1990). But what happened on the Friday night in September 2015 when Marble Falls High School played John Jay High School may have been unprecedented. By the fourth quarter, John Jay’s assistant coach Mack Breed was “increasingly agitated, angry and enraged over his belief that the referee crew was making ‘bad calls,’” and over “alleged racial comments” referee Robert Watts had directed at players. Coach Breed told John Jay Case: 20-50103 Document: 00516372663 Page: 2 Date Filed: 06/27/2022

No. 20-50103

players “to hit” Watts because “he need[ed] to pay the price.” In the game’s closing minutes, two John Jay players followed that order. They ambushed Watts from behind. The assault left Watts with “a turf burn on his forehead, a cut next to his right eye, and a large abrasion on his left arm.” He “received a concussion” and experienced “post-concussion syndrome and anxiety disorder.” 1 The incident went viral. The two John Jay players who attacked Watts appeared on Good Morning America, where they “expressed remorse for their actions and maintained they were just doing as they were told” by Breed. The players, who followed Breed’s direction to “hit the ref,” said they “knew what they did was wrong, but they did it anyway because of their trust in Breed.” John Jay’s principal told ESPN that Breed “admitted to him and Head Coach Gary Gutierrez that he ‘directed the students to make the referee pay for his racial comments and calls.’” In December 2015, Breed pleaded guilty to assault causing bodily injury, affirming that he did “intentionally, knowingly, or recklessly cause bodily injury to Robert Watts by striking him.” Breed’s conviction required him to permanently relinquish his teaching license. This civil rights suit, filed in state court and later removed to federal court, followed. The magistrate judge recommended dismissing the section 1983 claim against the school district under Rule 12(b)(6) because: (1) there was no state action as the players who hit Watts were private actors, and (2) even if there were a constitutional violation, the school district was not the moving force behind it and thus could not be liable, see Monell v. Dep’t of Social Servs. of N.Y., 436 U.S. 658, 694 (1978). The magistrate judge later

1 The quoted material comes from the complaint as we must take its allegations as true at the pleading stage when this case was dismissed.

2 Case: 20-50103 Document: 0051637266