Poloceno v. Washington

Filing 73

MEMORANDUM OPINION AND ORDER: Defendant Dallas Independent School District's 60 Motions to Dismiss Plaintiff's Second Amended Complaint and Defendant Keenan Washington's 61 Motion to Dismiss for Failure to State a Claim are granted and Plaintiff's claims are dismissed with prejudice. (Ordered by Judge Ada Brown on 12/30/2019) (mla)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ANA POLOCENO, individually and
as next friend of A.I., a Minor,
Plaintiff,
v.
DALLAS INDEPENDENT SCHOOL
DISTRICT and
KEENAN WASHINGTON,
Defendants.

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Civil No. 3:18-CV-01284-E

MEMORANDUM OPINION AND ORDER
Before the Court are Defendant Dallas Independent School District’s
and Defendant Keenan Washington’s Motions to Dismiss Plaintiff’s Second
Amended Complaint (Docs. 60 and 61). For reasons that follow, the Motions
are granted and Plaintiff’s claims are dismissed with prejudice.
Plaintiff Ana Poloceno brings this suit individually and on behalf of her
minor daughter, A.I.

This case was transferred to Judge Ada Brown on

September 18, 2019.

On June 21, 2019, the previous judge granted the

Defendants’ Motions to Dismiss Plaintiff’s First Amended Complaint. Plaintiff
was granted leave to replead certain claims and filed a Second Amended
Complaint. In her Second Amended Complaint, Plaintiff alleges that A.I. was
a student at a middle school in the Dallas Independent School District (DISD)
and Washington was her physical education teacher. If students did not wear
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gym clothes for P.E., they had to do “ceiling jumps” as punishment. A “ceiling
jump” is when a person squats down with both hands and hips to the floor
and then jumps up with hands to the ceiling. As the school year progressed,
the number of ceiling jumps given as punishment increased. In the first six
weeks of the school year, the number of jumps required was 30. In April
2016, a student who did not dress properly for P.E. had to do 260 ceiling
jumps. On about April 15, 2016, A.I. failed to wear the appropriate clothes to
P.E. class. As punishment, Defendant Washington forced A.I. to do about 260
ceiling jumps without taking a break. It was only the second time that school
year that A.I. failed to wear gym clothes to P.E., and she did not have the
endurance of others who regularly did not dress appropriately for P.E.
Washington knew this, and knew at least five female students had recently
gone to the school nurse complaining of pain from the jumps, but proceeded
with the punishment. A.I. was bedridden for a few days after the incident.
Her condition grew worse, and she was hospitalized for almost a week and
diagnosed with rhabdomyolysis, breakdown of muscle tissue.

Child

Protective Services and DISD conducted investigations of Washington for the
discipline imposed on A.I.

The DISD investigator found “violations for

student discipline, corporal punishment, and student welfare and wellness
against Defendant Washington.”
Plaintiff asserts two claims in her Second Amended Petition.

She

alleges DISD violated Title IX of the Education Amendments of 1972 and
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contends Washington is liable pursuant to Section 22.0511 of the Texas
Education Code. Both defendants have moved to dismiss Plaintiff’s claim for
failure to state a claim upon which relief can be granted.
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain
a “short and plain statement of the claim showing that the pleader is entitled
to relief.” FED. R. CIV. P. 8(a)(2). If a plaintiff fails to satisfy Rule 8(a), the
defendant may move to dismiss the plaintiff’s claims for “failure to state a
claim upon which relief may be granted.” Id. 12(b)(6). To survive such a
motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 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.

Id. In

reviewing a motion to dismiss under Rule 12(b)(6), the court must accept all
well-pleaded facts in the complaint as true and view them in the light most
favorable to plaintiff. Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735
(5th Cir. 2019).
Title IX Claim Against DISD
Title IX prohibits sex discrimination by recipients of federal education
funding. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005). The
statute provides that “[n]o person in the United States shall, on the basis of
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sex, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity
receiving Federal financial assistance.”

20 U.S.C. § 1681(a).

Title IX is

enforceable through an individual’s private right of action and allows for the
recovery of damages. Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 639
(1999). Because Title IX was enacted under the Spending Clause, private
damages actions are available only where recipients of federal funding had
adequate notice that they could be liable for the conduct at issue. Id. at 640.
A plaintiff can bring a Title IX claim when there is an official policy of
intentional discrimination by an institution. See Gebser v. Lago Vista Indep.
Sch. Dist., 524 U.S. 274, 290 (1998). A plaintiff can also bring a Title IX claim
when an institution itself intentionally acted in clear violation of Title IX by
remaining deliberately indifferent to acts of discrimination of which it had
actual knowledge.

Davis, 526 U.S. at 642; see Jackson, 544 U.S. at 182

(deliberate indifference to sexual harassment constitutes intentional
discrimination on basis of sex); Gebser, 524 U.S. at 290 (requirements of
actual notice and deliberate indifference are restricted to cases that do not
involve entity’s official policy). To violate Title IX, a funding recipient need
not have intended to violate Title IX, but need only have intended to treat
women differently. Pederson v. La. State Univ., 213 F.3d 858, 881 (5th Cir.
2000).

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In her First Amended Petition, Plaintiff alleged that Washington treated
boys and girls the same even though professional standards of care required
him to treat them differently. She asserted that Washington’s P.E. program
violated Title IX because it did not consider the physical and metabolic
differences between boys and girls. Plaintiff alleged DISD was liable under
Title IX because A.I.’s school principal and nurse both knew that female
students were more likely than males to be injured by Washington’s
punishment.
The previous judge granted DISD’s motion to dismiss the Title IX claim
in Plaintiff’s First Amended Petition for multiple reasons. First, Plaintiff did
not allege facts showing intentional discrimination. Her allegations that boys
and girls were treated the same supported only a potential disparate impact
claim, and Title IX does not provide a remedy for a disparate impact claim.
In addition, even if Plaintiff’s disparate impact claim was viable under Title
IX, to establish DISD’s liability, Plaintiff was required to allege that an
appropriate person had actual knowledge of the alleged discrimination and
responded with deliberate indifference. Plaintiff did not allege facts showing
actual knowledge of an appropriate person or deliberate indifference.
Plaintiff did not provide factual allegations to support her conclusory
assertion about the principal’s knowledge. As for the existence of deliberate
indifference, Plaintiff did not allege how DISD handled the first five injuries,

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and there was no evidence DISD was aware of them. Also, DISD investigated
the incident involving A.I.
In

Plaintiff’s

Second

Amended

Petition,

Plaintiff

asserts

that

Washington treated A.I. and other female students the same as the male
students in physical education class when A.I. should have been treated
“substantially different.” Plaintiff again alleges DISD violated A.I.’s rights
pursuant to Title IX by having “a physical exercise program that did not
consider the physical and metabolic differences between boys and girls.” The
paragraph in which she sets out a claim for violations of Title IX (paragraph
VIII), is identical to the Title IX paragraph in her First Amended Complaint.
She alleges the elements of a Title IX claim, including that the defendant
entity must be on notice of the mistreatment and be deliberately indifferent
to the mistreatment.

Plaintiff also alleges that DISD’s failure “to have

effective policies, procedures, practices, customs and professional training
programs in place to insure A.I. was not a victim of discrimination” violated
her rights under Title IX.
In its Motion to Dismiss the Second Amended Complaint, DISD contends
Plaintiff has not cured the deficiencies in the pleadings.

DISD argues

Plaintiff’s Second Amended Complaint does not identify an official policy of
sex discrimination. DISD also argues that Plaintiff has again failed to state
facts showing DISD had actual knowledge of discrimination and acted with
deliberate indifference.
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Plaintiff has not alleged facts amounting to an official policy of
discrimination. To the extent she alleges DISD failed to have a policy in place,
the failure to promulgate a policy does not constitute discrimination under
Title IX. Gebser, 524 U.S. at 292.
In her response to DISD’s motion to dismiss, Plaintiff asserts that her
Title IX claim is viable pursuant to a “heightened risk analysis.” The phrase
“heightened risk analysis” does not appear in the Second Amended Complaint.
Plaintiff argues in her response that the discrimination at issue is her
heightened risk that the exercise regimen would injure female students. She
further argues that the heightened risk was known by a staff member with
authority to change the practice, the school principal Benjamin Dickerson.
She also asserts DISD was deliberately indifferent to the heightened risk A.I.
faced.
Plaintiff still has not pleaded facts to show intentional discrimination
on the part of DISD. She alleges Washington treated boys and girls the same
when punishing them for violations of the P.E. dress code, but should have
treated them differently. Under the facts of this case, her “heightened risk”
argument is just another way of alleging disparate impact. As stated in the
previous opinion granting DISD’s motion to dismiss the previous complaint:
In Alexander v. Sandoval, the Supreme Court concluded that under
Title VI, on which Title IX is patterned, there is no private right
of action to enforce disparate impact claims. 532 U.S. 275, 280–
81 (2001). While the Fifth Circuit has not addressed the issue
since Sandoval was decided, courts within the Fifth Circuit and
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around the country have interpreted Sandoval as allowing a
private right of action to enforce disparate treatment claims only.
See, e.g., Manley v. Tex. S. Univ., 107 F. Supp. 3d 712, 726 (S.D.
Tex. 2015); see also Doe 1 v. Baylor Univ., 240 F. Supp. 3d 646,
657 n.3 (W.D. Tex. 2017).
Title IX does not provide a remedy for a disparate impact claim such as
Plaintiff’s.
Even if her disparate impact claim was actionable, Plaintiff has failed
to allege facts that would show DISD knew that females had a heightened risk
of injury from Washington’s discipline methods.

Plaintiff alleges in her

Second Amended Petition that “a number of female students were
significantly injured because of the mistreatment by Washington” and that
the

school

principal,

Dickerson,

was

aware

of

these

injuries

and

mistreatment. She further alleges Principal Dickerson “observed students on
a number of occasions doing ceiling jumps under the supervision and
direction of Washington and was knowledgeable of the practice and its
effects.” She further alleges Dickerson failed to stop the injurious practice.
Principal Dickerson may be an appropriate person for Title IX purposes.
Nevertheless, these factual allegations do not support a conclusion that DISD
knew that Washington intended to discriminate against female students
through

his

punishment

program.

Without

actual

knowledge

of

discrimination, DISD cannot be liable under Title IX. Accordingly, the Court
GRANTS DISD’s motion to dismiss the Second Amended Complaint. Plaintiff
has already been given an opportunity to cure the pleading deficiencies in her
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complaint as to DISD. The Court concludes that further amendment is not
warranted. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co.,
313 F.3d 305, 329 (5th Cir. 2002). Accordingly, Plaintiff’s claims against DISD
are DISMISSED WITH PREJUDICE.
Texas Education Code Claim Against Washington
Defendant Washington also contends that Plaintiff’s claim against him
should be dismissed with prejudice.

In her Second Amended Complaint,

Plaintiff alleges that Washington “is liable to A.I. pursuant to Texas Education
Code, Section 22.0511 as A.I. suffered physical injuries at the hand of
Washington during a time period she was being punished by him.” This is the
exact allegation Plaintiff made in her First Amended Complaint for this cause
of action. Plaintiff has not made any changes to her Complaint in connection
with this claim. Section 22.0511 provides professional employees of a school
district immunity in certain situations. See TEX. EDUC. CODE ANN. § 22.0511. In
granting Washington’s Motion to Dismiss Plaintiff’s First Amended Complaint
as to this claim, the previous judge determined that section 22.0511 does not
provide an independent cause of action against Washington. See Doe v. S & S
Consol. I.S.D., 149 F.Supp.2d 274, 297 (E.D. Tex. 2001) (language used in
section 22.0511 “does not affirmatively create rights for a plaintiff”).
Plaintiff’s Second Amended Complaint does not contain new allegations that
would change this conclusion. The Court GRANTS Washington’s Motion to
Dismiss. Plaintiff has already been given an opportunity to cure the pleading
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deficiencies in her complaint as to Washington. The Court concludes that
further amendment is not warranted.

See Great Plains, 313 F.3d at 329.

Accordingly, Plaintiff’s claims against Defendant Washington are DISMISSED
WITH PREJUDICE.
SO ORDERED.
Signed December 30, 2019.
_____________________________
ADA BROWN
UNITED STATES DISTRICT JUDGE

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