John Doe v. Columbia-Brazoria Indep School
Filing
PUBLISHED OPINION FILED. [16-40882 Affirmed] Judge: TMR, Judge: PRO, Judge: LHS. Mandate pull date is 05/24/2017; denying as moot motion to file brief out of time filed by Appellant Mr. John Doe [8385006-2]; denying as moot motion to strike brief filed by Appellant Mr. John Doe [8383536-3]; denying as moot motion for award of attorney fees filed by Appellant Mr. John Doe [8383536-4]; denying as moot motion to file corrected brief filed by Appellant Mr. John Doe [8383536-5]; denying as moot motion to strike portion of brief filed by Appellee Columbia-Brazoria Independent School District [8378836-3] [16-40882]
Case: 16-40882
Document: 00513978633
Page: 1
Date Filed: 05/03/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40882
United States Court of Appeals
Fifth Circuit
FILED
May 3, 2017
Lyle W. Cayce
Clerk
JOHN DOE,
Plaintiff - Appellant
v.
COLUMBIA-BRAZORIA INDEPENDENT SCHOOL DISTRICT, by and
through its Board of Trustees,
Defendant - Appellee
Appeals from the United States District Court
for the Southern District of Texas
Before REAVLEY, OWEN, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
John Doe sued Columbia-Brazoria Independent School District, alleging
violations of 42 U.S.C. § 1983, Title IX of the Education Amendments of 1972,
Section 504 of the Rehabilitation Act of 1973, and the Americans with
Disabilities Act. The district court dismissed for the plaintiff’s failure to state
a claim. We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
John Doe is a former student of Columbia-Brazoria Independent School
District. He claims he was sexually assaulted in the bathroom at Columbia
Case: 16-40882
Document: 00513978633
Page: 2
Date Filed: 05/03/2017
No. 16-40882
Elementary School sometime in 2002 when he was in the second or third grade.
During the assault, a “male student made sexual contact with [Doe] from the
rear.” The assailant allegedly threatened Doe to keep him from reporting the
assault. Doe’s parents recognized he was upset when he arrived home from
school, but Doe initially “denied that anything was wrong.” He later told his
mother about the assault but “begged that she not disclose the incident until
he graduated[.]”
At no time did Doe report the assault to a teacher, administrator, or
other school employee. Instead, he claims his teacher should have known he
was injured when he returned to the classroom, given his age and the extent
of the harm. He further claims the District “knew or should have known” that
the other boy had assaulted him or other students. According to Doe, the
District failed in its duty to protect him by, among other things, not installing
cameras in the school bathrooms. Doe claims he had an unspecified disability
at the time of the incident for which “he was often sent [out] of his [class]room
to test in a separate place or study in a separate area,” which left him “at a
greater risk of being unprotected[.]”
Doe claims he suffered in various ways following the assault.
For
example, he struggled with his self-esteem and “was rejected by girls he asked
to school dances” when he was in seventh grade. Another student later accused
Doe of “inappropriate touching.” Doe claims he tried to tell the principal about
his own assault when confronted, but the principal “threatened [him] with
criminal action and expulsion from school.” Doe’s mother ultimately placed
him in counseling to address the mental and physical problems that
materialized after his assault.
Doe filed his initial complaint in December 2014. His second amended
complaint, the live pleading here, alleges violations of 42 U.S.C. § 1983; Title
2
Case: 16-40882
Document: 00513978633
Page: 3
Date Filed: 05/03/2017
No. 16-40882
IX of the Education Amendments of 1972 (20 U.S.C. § 1681(a)); Section 504 of
the Rehabilitation Act of 1973 (29 U.S.C. § 794); and the Americans with
Disabilities Act (“ADA”). In July 2015, the District moved to dismiss the
second amended complaint for failure to state a claim. The district court
summarily denied the motion “without prejudice to refiling.” At a later status
conference, the district court offered the District an opportunity to re-urge its
motion within a specified time. The District timely filed its second motion to
dismiss, which the district court granted.
Doe filed for rehearing on the same day that the district court entered
its final judgment. Doe argued that Federal Rule of Civil Procedure 12(g)
precluded the District from filing a second motion to dismiss under Rule
12(b)(6). The district court denied the motion without explanation. Doe then
filed a second motion for rehearing, which the district court treated as a Rule
59(e) motion to alter or amend the judgment. The district court denied the
motion, reasoning that Rule 59(e) is not intended to give litigants a “second
bite at the apple[.]” Doe timely filed a notice of appeal.
DISCUSSION
“We review the district court’s administrative handling of a case,
including its enforcement of the local rules and its own scheduling orders for
abuse of discretion.” Macklin v. City of New Orleans, 293 F.3d 237, 240 (5th
Cir. 2002). “We review de novo the district court’s dismissal for failure to state
a claim under [Federal Rule of Civil Procedure] 12(b)(6).” Nationwide BiWeekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 140 (5th Cir. 2007). “Dismissal
under Rule 12(b)(6) is appropriate when the plaintiff has failed to allege
enough facts to state a claim to relief that is plausible on its face and fails to
raise a right to relief above the speculative level.”
3
Id. (quotation marks
Case: 16-40882
Document: 00513978633
Page: 4
Date Filed: 05/03/2017
No. 16-40882
omitted). “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). We assume “all the allegations in the complaint are true[.]” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
I.
Procedural Claims
Doe makes two procedural challenges. First, he claims the district court
abused its discretion by permitting the District to file a second Rule 12(b)(6)
motion after the original motion was denied. Doe argues that Rule 12(g)(2)
bars such filings. The District argues that Rule 12(h)(2) permits successive
Rule 12(b)(6) motions and that any error in permitting the second motion was
harmless.
Rule 12(g)(2) states that “[e]xcept as provided in Rule 12(h)(2) or (3), a
party that makes a motion under [Rule 12] must not make another motion
under [Rule 12] raising a defense or objection that was available to the party
but omitted from its earlier motion.” Rule 12(h)(2) provides that “[f]ailure to
state a claim upon which relief can be granted . . . may be raised: (A) in any
pleading allowed or ordered under Rule 7(a); (B) by a motion under Rule 12(c);
or (C) at trial.” We have previously held that Rule 12(g) does not require
consolidation of defenses raised in a second Rule 12(b)(6) motion. Belo, 512
F.3d at 141. In Belo, the plaintiff sued the defendant in the Southern District
of Ohio. Id. at 139. There, the defendant brought a motion to dismiss for lack
of personal jurisdiction under Rule 12(b)(2) and for failure to state a claim
under Rule 12(b)(6). Id. To obviate the personal-jurisdiction issue, the plaintiff
moved to transfer the case to the Northern District of Texas. Id. at 139–40. In
that court, the defendant again moved to dismiss under Rule 12(b)(6). Id. at
4
Case: 16-40882
Document: 00513978633
Page: 5
Date Filed: 05/03/2017
No. 16-40882
140. This time it argued that the suit violated the Texas statute of limitations,
and the district court agreed. Id. On appeal, the plaintiff argued that Rule
12(g)’s consolidation requirement barred the defendant’s second Rule 12(b)(6)
motion. Id. at 141. We disagreed and held that “Rule 12(h)(2) explicitly
excepts from the consolidation requirement motions based on the defense of
failure to state a claim upon which relief can be granted.” Id.
There are procedural distinctions between this case and Belo, including
that the Texas statute of limitations would not have been relevant until it was
clear that Texas law applied after the transfer. Nonetheless, Belo does not
suggest we were relying on the fact that the two Rule 12(b)(6) motions were
filed in two different states’ federal district courts. Instead, we said simply
that Rule 12(h)(2) allows the filing of a second motion. We apply that same
right to this case.
In addition, even if Rule 12(h)(2) should not be interpreted this way,
there was no harm in allowing the second motion. The District may have
raised new arguments in its second motion by adding information about the
special-relationship and state-created-danger exceptions to Section 1983
liability. If so, the District could have presented that same argument in a Rule
12(c) motion for judgment on the pleadings, which Rule 12(h) does not prohibit.
See, e.g., Leyse v. Bank of Am. Nat. Ass’n, 804 F.3d 316, 321 (3d Cir. 2015);
Albers v. Bd. of Cnty. Comm’rs of Jefferson Cnty., 771 F.3d 697, 703 (10th Cir.
2014).
The district court did not abuse its discretion in considering the
District’s second Rule 12(b)(6) motion.
Second, Doe argues that the district court abused its discretion by not
allowing further discovery or granting a continuance. Doe sought an extension
of time to seek records pertaining to his assault and concerning the
perpetrator. Doe contends the District deliberately withheld those records.
5
Case: 16-40882
Document: 00513978633
Page: 6
Date Filed: 05/03/2017
No. 16-40882
The District opposed the request, maintaining that it “did not have any records
pertaining to the accused student, who had left the district more than a decade
before the lawsuit was filed.” In response, the district court suggested that
Doe depose the District’s custodian of records but made clear that any
discovery beyond the deadline must be by agreement of the parties. 1 Doe also
contends the district court abused its discretion by ruling on the District’s
motion to dismiss three days after the status conference. Despite representing
to the court that he would respond to the District’s motion on a certain date,
Doe never responded. His failure to respond is especially conspicuous in light
of the district court’s strict warning on the matter during the status
conference. 2
A district court has “exceedingly wide” discretion in scheduling. Versai
Mgmt. Corp. v. Clarendon Am. Ins. Co., 597 F.3d 729, 740 (5th Cir. 2010). The
considerations include “not only the facts of the particular case, but also all of
the demands on counsel’s time and the court’s time.” Id. (quotation marks and
alterations omitted). Doe can offer no support for his contention that the
district court abused its discretion with respect to the discovery deadlines. His
motion for a continuance was opposed, and he failed to show that the discovery
The District also requested an extension of time for filing dispositive motions because
Doe failed to appear for his deposition and was unable to reschedule before the dispositivemotions deadline. The district court granted the request so the parties would have the benefit
of Doe’s deposition testimony when drafting any motions for summary judgment.
1
2
The district court stated this during the status conference:
The deal is that there’s a Motion to Dismiss for Failure to State a Claim.
A response was due. There is no response on file. There needs to be a response
on file before I rule. If I rule and there’s not a response, then that’s the end of
it. So you need to be sure that this is a priority. I’m giving you the opportunity.
I can’t say when I’m going to rule, but I’m just telling you that the deadline has
passed for filing a response. You need to make this a priority and file a
response to the Motion to Dismiss.
6
Case: 16-40882
Document: 00513978633
Page: 7
Date Filed: 05/03/2017
No. 16-40882
he sought actually existed. That means Doe did not show that the requested
discovery would have helped him defeat the District’s motion to dismiss even
if the continuance had been granted. See, e.g., Six Flags, Inc. v. Westchester
Surplus Lines Ins. Co., 565 F.3d 948, 963 (5th Cir. 2009). Also, the court
indicated that extending the deadline would negatively impact the scheduling
demands of other cases. Because the district court has the inherent power to
control its own docket, we find no abuse of discretion here. See Landis v. N.
Am. Co., 299 U.S. 248, 253–54 (1936).
II.
Section 1983 Claims
Doe alleged due-process and equal-protection violations under Section
1983. He argues the District “had an affirmative duty to protect [his] liberty
interests,” which include the “right to be free of unjustified intrusions of his
personal security.”
A Section 1983 claim requires that a plaintiff “(1) allege a violation of a
right secured by the Constitution or laws of the United States and (2)
demonstrate that the alleged deprivation was committed by a person acting
under color of state law.” James v. Texas Collin Cnty., 535 F.3d 365, 373 (5th
Cir. 2008) (quotation marks omitted). The right to be protected by the state
from private violence is limited and rests on substantive due process. Doe ex
rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 853 n.2 (5th
Cir. 2012) (en banc). Accordingly, Doe’s case presents no basis for a proceduraldue-process or an equal-protection claim.
In this case, Doe’s claim does not arise from the abuse itself because no
state actor committed it. Id. at 855 n.3. Instead, there must have been some
specific and actionable deficiency on the part of the District that allowed the
abuse to occur. Id. That requirement can be seen from Covington, where nine7
Case: 16-40882
Document: 00513978633
Page: 8
Date Filed: 05/03/2017
No. 16-40882
year-old Jane attended an elementary school that required her parents to
authorize any individual who was permitted to take her from school during the
day. Id. at 852–53. On six occasions, school personnel allowed Tommy Keyes
to take Jane from school, even though he was not authorized by her parents.
Id. at 853. On those occasions, Keyes took Jane from the school premises,
sexually molested her, and returned her to school. Id. Jane’s guardians sued
the school, alleging that the check-out policy “created a danger to students”
and was “the direct and proximate cause of Jane’s injury.” Id.
We began our analysis by noting that Jane’s constitutional claim against
the school was based not on private conduct but on the school’s allegedly
deficient check-out policy. Id. at 855. As a result, her claim could only proceed
if she established a special relationship between herself and the school or,
potentially, if the state created the danger. Id. at 855–56, 863–65.
Jane could not establish a special relationship.
Id. at 863 (citing
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189 (1989)). The
case from which the special-relationship requirement was drawn stated that
“nothing in the language of the Due Process Clause itself requires the State to
protect the life, liberty, and property of its citizens against invasion by private
actors.” DeShaney, 489 U.S. at 195. A complainant and the state have that
relationship only “when the State takes a person into its custody and holds him
there against his will[.]” Id. at 199–200. The relationship exists “when the
state incarcerates a prisoner,” “involuntarily commits someone to an
institution,” or places a child in foster care.
(citations omitted).
Covington, 675 F.3d at 856
Notably, “a public school does not have a special
relationship with a student that would require the school to protect the student
from harm at the hands of a private actor.” Id. Therefore, the school did not
have a constitutional duty to protect Jane from the abuse by Keyes. Id. at 863.
8
Case: 16-40882
Document: 00513978633
Page: 9
Date Filed: 05/03/2017
No. 16-40882
Jane also did not satisfy what we have said would be necessary to
establish a claim under the state-created-danger exception — were we to adopt
such an exception. Id. at 866. We limit our discussion for several reasons.
First, in Covington, we declined to adopt the exception as the law of this
Circuit.
Id. at 865.
Subsequent panels have “repeatedly noted” the
unavailability of the theory. Estate of Lance v. Lewisville Indep. Sch. Dist., 743
F.3d 982, 1002 (5th Cir. 2014). Finally, Doe failed to analyze the theory in a
meaningful way in his opening brief. The argument is thus forfeited. See
United Paperworkers Intern. Union, AFL-CIO, CLC v. Champion Intern. Corp.,
908 F.2d 1252, 1255 (5th Cir. 1990).
In summary, Doe’s claims are not based on the private conduct of his
assailant but on the District’s shortcomings in monitoring the students,
training the teachers, and establishing a reporting system for sexual assault.
“[A] State’s failure to protect an individual against private violence simply does
not constitute a violation of the Due Process Clause.” DeShaney, 489 U.S. at
197.
That leaves Doe with only the special-relationship theory, having
forfeited the possibility of a state-created-danger argument. There was no
special relationship between the plaintiff and the state. Doe has thus failed to
prove a constitutional violation.
The Section 1983 claims were properly dismissed.
III.
Title IX Claim
The district court summarily dismissed Doe’s claim of a violation of Title
IX. Title IX provides that “[n]o person in the United States shall, on the basis
of sex, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity receiving
9
Case: 16-40882
Document: 00513978633
Page: 10
Date Filed: 05/03/2017
No. 16-40882
Federal financial assistance[.]” 20 U.S.C. § 1681(a). Liability requires several
factors to be satisfied:
A school district that receives federal funds may be liable for
student-on-student harassment if the district (1) had actual
knowledge of the harassment, (2) the harasser was under the
district’s control, (3) the harassment was based on the victim’s sex,
(4) the harassment was so severe, pervasive, and objectively
offensive that it effectively barred the victim’s access to an
educational opportunity or benefit, and (5) the district was
deliberately indifferent to the harassment.
Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165 (5th
Cir. 2011) (quotation marks and alterations omitted). A plaintiff’s failure to
plead one of these elements is fatal to the claim. See id. at 166.
The district court found that Doe “fail[ed] to allege that [the District] had
actual knowledge of the alleged assault” and so could not establish his Title IX
claim. Doe’s complaint alleges the assault took place in a restroom. There is
no suggestion that a teacher or other school employee was present. Instead,
he complains his teacher should have known about the assault when he
returned to class based on his age and the extent of his injuries. The remainder
of his complaint belies that assertion, though. Notably, Doe asked his mother
not to reveal the fact of the assault until he graduated to avoid the “scorn and
shame” that might follow if his peers learned of the attack. Thus, Doe not only
failed to plead actual knowledge but admitted the District had no knowledge
of his assault.
Doe acknowledges the insufficiency of his pleadings in his appellate
brief. “Though not initially pled,” he still “contends that the district had either
actual or constructive knowledge of the incident[.]” He claims the District’s
“nonproduction” of certain records is indicative of actual knowledge. As noted
above, though, the district court properly handled the discovery dispute,
10
Case: 16-40882
Document: 00513978633
Page: 11
Date Filed: 05/03/2017
No. 16-40882
crediting the District’s uncontradicted representation that the records Doe
requested did not exist. Doe further claims that a “semi-autobiographical
account” of his assault, allegedly available in his school record, “was
maintained by the District in anticipation of litigation.” Upon review, the
account Doe referenced details an assault by a gang in a dark alley — not an
assault by one person in the school bathroom. That record is not relevant to
his claims. Doe thus failed to show the District’s actual knowledge required to
establish liability under Title IX. 3 The district court did not err in dismissing
this claim.
IV.
Section 504 and ADA Claims
Finally, the district court dismissed Doe’s claim of violations of Section
504 and the ADA. Section 504 of the Rehabilitation Act provides that “[n]o
otherwise qualified individual with a disability in the United States . . . shall,
solely by reason of her or his disability, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination under any program
or activity receiving Federal financial assistance[.]”
29 U.S.C. § 794(a).
Similarly, the ADA provides that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a public entity, or
be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Cases
concerning either section apply to both. Hainze v. Richards, 207 F.3d 795, 799
(5th Cir. 2000).
The District also alleges Doe failed to show the District was deliberately indifferent
to known harassment, as required by Title IX. Having resolved this issue on the actualknowledge element, we do not reach the question of deliberate indifference.
3
11
Case: 16-40882
Document: 00513978633
Page: 12
Date Filed: 05/03/2017
No. 16-40882
To the extent Doe’s claims are based on a theory of peer-to-peer
harassment, he must prove each of the following:
(1) he was an individual with a disability, (2) he was harassed
based on his disability, (3) the harassment was sufficiently severe
or pervasive that it altered the condition of his education and
created an abusive educational environment, (4) defendant knew
about the harassment, and (5) defendant was deliberately
indifferent to the harassment.
Lance, 743 F.3d at 996 (citation and alterations omitted). As noted in our
discussion of Doe’s Title IX claim, he did not plead sufficient facts to show the
District had actual knowledge of the assault. Doe’s peer-to-peer harassment
claim fails on that basis.
The District also claims Doe failed to allege he was an individual with a
disability or that any harassment was based on a disability. We need not
discuss those additional possible defects.
To the extent Doe’s claims are based on a theory of disability-based
intentional discrimination, he must allege “(1) that he has a qualifying
disability; (2) that he is being denied the benefits of services, programs, or
activities for which the public entity is responsible, or is otherwise
discriminated against by the public entity; and (3) that such discrimination is
by reason of his disability.” Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011).
Intentional-discrimination liability requires proof that the “school district has
refused to provide reasonable accommodations for the handicapped plaintiff to
receive the full benefits of the school program.” D.A. ex rel. Latasha A. v.
Houston Indep. Sch. Dist., 629 F.3d 450, 454 (5th Cir. 2010) (citation omitted).
Doe alleges that the District acted in a discriminatory manner by
allowing him to test or study in secluded locations without “appropriate
accommodation.” “This failure,” he argues, “subjected him to isolation due to
12
Case: 16-40882
Document: 00513978633
Page: 13
Date Filed: 05/03/2017
No. 16-40882
his disability which placed [him] in a position of vulnerability [and] led to [the]
peer-on-peer molestation incident.” The assault, though, took place in the
school bathroom. Doe cannot connect the assault with the District’s permitting
him to test outside the classroom. Doe does not claim the District excluded
him from any educational benefit. The district court did not err in dismissing
these claims.
V.
Motions Carried with the Case
Five motions were carried with the case, most of which relate to Doe’s
late submission of his initial appellate brief.
After his initial brief was
submitted, it was twice marked insufficient. Doe thus made the requested
changes, and the clerk’s office accepted his brief. The District now argues that
Doe made “substantive changes not necessary to correct the errors in the
original brief” without notifying the court or the District. The District moved
to strike the portions of Doe’s brief that were not necessary to correct the
insufficiencies, and Doe moved to strike the District’s motion as frivolous.
Having decided the merits of the dispute on the briefing before us, we
deny each of these motions as moot.
AFFIRMED.
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?