C.C. v. Hurst-Euless-Bedford Independent School District, et al.
Filing
74
Memorandum Opinion and Order granting 15 Motion to Dismiss filed by Scott Hurbough, 11 Motion to Dismiss filed by Hurst-Euless-Bedford Independent School District, 13 Motion to Dismiss filed by Damon Emery. The court ORDERS that the motions to dismiss filed by defendants be, and are hereby, granted, and that all claims and causes of action asserted by C.C. individually, by and through his next friends, Charles Cripps and Kristie Cripps, or by Charles Cripps and Kristie Cripps, individually, against defendants be, and are hereby, dismissed with prejudice. (Ordered by Judge John McBryde on 1/8/2015) (mem)
l
U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
c .c .
INDIVIDUALLY, BY AND
§
THROUGH HIS NEXT FRIENDS,
CHARLES CRIPPS AND KRISTIE
CRIPPS,
l
J I•
I
FILED
OURT
/
c~~RK,
(
-8 2015
§
§
§
Plaintiff,
§
§
vs.
§
NO. 4:14-CV-646-A
§
HURST-EULESS-BEDFORD
INDEPENDENT SCHOOL DISTRICT,
ET AL.
I
§
§
§
§
Defendants.
§
MEMORANDUM OPINION
and
ORDER
Now before the court for consideration and decision are the
motions of defendants, Scott Hurbough ("Hurbough"), Damon Emery
("Emery"), and Hurst-Euless-Bedford Independent School District
("the District"), to dismiss the complaint of plaintiff, C.C.
individually, by and through his next friends, Charles Cripps and
Kristie Cripps, for failure to state a claim upon which relief
may be granted. 1
Plaintiff filed responses to the motions, and
defendants filed replies.
I
1
u.s. DISTrucTCLRT
Dl'pur:·
--- ---·-·-··-·-·
§
.
After having considered all the
'As originally filed, the District's motion was a motion for partial dismissal. Now that plaintiffs
appeal pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. § 1415(i)(2),
has been severed into a separate civil action, the District's motion has become a motion for dismissal as
to all claims and causes of action now being asserted against it in the above-captioned action.
parties' filings and applicable legal authorities, the court
concludes that the motions to dismiss should be granted.
I.
Plaintiff's Complaint
Plaintiff's live pleading is his first amended complaint,
filed October 9, 2014, in which, pursuant to the authority of
42 U.S.C.
§
1983, he complains of violations by all three
defendants of his Fourteenth Amendment rights of Due Process and
Equal Protection, he asserts a claim of civil conspiracy pursuant
to 42 U.S.C.
§
1985, and he asserts a claim under Section 504 of
the Rehabilitation Act, 29
u.s.c.
§
794, against the District. 2
In summary form, the historical allegations of the first
amended complaint are as follows:
Plaintiff, who was twelve years old at the time of the
events described in the complaint, suffered from difficulties
with executive functioning as a symptom of his Attention Deficit
Hyperactivity Disorder.
He was a student at the Bedford Junior
High School, a school within the District.
Hurbough was the
principal of that school, and Emery was the vice principal.
2
In addition to the claims and causes of action to which the motions to dismiss are directed, the
first amended complaint contained an appeal by plaintiff from a Texas Education Agency Special
Education Hearing Officer in favor of the District on the issue of whether plaintiff received educational
benefit from the District's Individualized Educational Plan. Because the appeal is unrelated from a legal
standpoint from the causes of action that are the subjects of the motion to dismiss, the appeal and related
allegations have been severed into a separate action, leaving in the above-captioned action only the
claims and causes of action that are the subjects of the motions to dismiss.
2
Plaintiff engaged in inappropriate conduct and indiscretions
from time-to-time while attending school.
Over time, a
conspiracy arose to kick plaintiff out of school by treating some
of his conduct as felonies.
In response to plaintiff's behavior
problems, the school contacted parents of other students to
encourage them to file felony charges against plaintiff because a
felony charge would automatically remove plaintiff from school.
Around February 2013, plaintiff followed fellow student R.L.
into the school restroom where plaintiff and another student took
photos of R.L. seated on the toilet.
After an investigation,
Emery spoke with R.L. 's father and asked him to file felony
charges, which he did.
Hurbough determined that the taking of
the photos and displaying them was a Title V Felony, which
warranted suspension from school.
On March 4, 2013, Hurbough appointed and Emery chaired a
"Manifestation Determination Review" ("MDR") committee to
determine if plaintiff's "behaviors" had been "caused by or had a
direct and substantial relationship to [plaintiff's] behavioral
issues and disability."
Compl. at 16, , 61. The committee
determined that the taking of the photos was not caused by or
related to plaintiff's behavioral issues and disability, so the
committee recommended removal of plaintiff from school.
3
Plaintiff was removed from school and placed in Disciplinary
Alternative Educational Placement ("DAEP") for sixty days. 3
In the summer of 2013, plaintiff filed a complaint against
the District with the Office of Civil Rights ("OCR"), which
contended that plaintiff was a victim of retaliation due to his
parents' advocacy on his behalf.
The OCR initially found that
plaintiff established a prima facie case of retaliation.
In
response, the District was allowed to provide a legitimate nondiscriminatory reason for its actions.
Emery made purposeful
misstatements to the OCR in the District's response.
The OCR
ultimately found that the District did in fact have nondiscriminatory reasons for the punishment of plaintiff, and
plaintiff's complaint was denied as unfounded.
Hurbough and Emery permitted plaintiff to be punished more
harshly than other students.
Also, plaintiff was discriminated
against by defendants as a class of one pursuant to the Equal
Protection Clause of the Fourteenth Amendment.
3
Defendants
1t is unclear to the court whether plaintiff spent sixty days in DAEP. The Texas Education
Agency Special Education Hearing Officer, at ,-r,-r 15-16 on page 4 ofhis decision (which is attached to
plaintiffs Motion to Remand), noted that as of May 13, 2014, plaintiffhad not spent one day in DAEP.
Pl.'s Br. in Supp. of Mot. to Remand, Doc. 20, Attach. Exs., Bates No. 000258.
4
conspired to violate plaintiff's civil rights in violation of
42 U.S.C.
§
1985, 4 and the District discriminated against him in
violation of the Section 504 of the Rehabilitation Act, 29 U.S.C.
§
794.
II.
Grounds of the Motions
Hurbough, Emery, and the District argue that there are no
factual allegations in the complaint that support any of
plaintiff's asserted causes of action.
They argue that the
plaintiff's Due Process claims fail because moving plaintiff to
DAEP did not infringe upon plaintiff's right to a public
education, and, his conclusory allegations are insufficient to
support plaintiff's equal protection claim.
Further, they argue
that plaintiff's conspiracy claim fails because the District and
its employees cannot be considered to have conspired together.
Lastly, they argue that the complaint does not state sufficient
facts to plead intentional discrimination.
In addition, the District seeks summary judgment as to the
§
1983 claims against it on the ground that as a municipality it
cannot be held liable under
§
1983 based on a theory of
4
The only defendants named in the civil conspiracy count are Hurbough and Emery, Compl. at
29, ~~ 133-138. Inasmuch as plaintiff adopts in that count all other paragraphs of the complaint, the court
considers possible that the District is being accused along with Hurbough and Emery of being a coconspirator. Id., ~ 133. The court is assuming in this memorandum opinion and order that plaintiff is
accusing all three defendants as being co-conspirators.
5
respondeat superior for the actions of its employees, and that
plaintiff has failed to allege any facts that would establish
municipal liability against the District for the alleged
constitutional violations.
The District asserts, specifically,
that plaintiff has failed to allege facts that show that the
alleged constitutional violations were the direct result of the
execution of an official "custom" or "policy" that was approved
or sanctioned by the District's final policy maker, that the
final policy maker acted with deliberate indifference, and that
such a custom or policy was the "moving force" behind the
violation.
Defendants Hurbough and Emery also assert as grounds of
their motion their entitlement to a qualified immunity defense,
asserting that such is not overcome by any facts alleged by
plaintiff in the complaint.
According to those defendants,
plaintiff does not allege a violation of a clearly established
constitutional right nor does plaintiff allege that the conduct
of either of those defendants about which plaintiff complains was
objectively unreasonable.
III.
Analysis
The excessively verbose complaint, which inappropriately
combined an appeal from an administrative ruling with the claims
6
that are now under consideration, provided in one of its 165
paragraphs a succinct statement of plaintiff's claims that are
the subjects of the motions to dismiss.
On page 5 of the
complaint, plaintiff alleged:
C.C. by and through his next friends and natural
parents, Charley [sic] and Kristie Cripps, bring [sic]
forth claims on his behalf pursuant to the Due Process
Clause of the Fourteenth Amendment to the Constitution
of the United States, as contemplated by the Civil
Rights Acts, 42 u.s.c. § 1983 as well as civil
conspiracy claims pursuant to 42 U.S.C. § 1985. In
addition, because c.c. is a person with a disability,
his parents likewise bring forth claims pursuant to
Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794 ("Rehabilitation Act").
Compl. at 5, , 9.
Those are the claims that are being dealt with
by the court in this memorandum opinion and order.
A.
Standards Applicable to the Motions to Dismiss
Rule 8(a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. 8(a) (2), "in order to give the defendant fair
notice of what the claim is and the grounds upon which it rests,"
Bell Atl. Corp. v. Twombly, 550
u.s. 544, 555 (2007) (internal
quotation marks and ellipsis omitted) .
Although a complaint need
not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
7
simply allege legal conclusions or recite the elements of a cause
Id. at 555 & n.3.
of action.
Thus, while a court must accept
all of the factual allegations in the complaint as true, it need
not credit bare legal conclusions that are unsupported by any
factual underpinnings.
(2009)
See Ashcroft v. Iqbal, 556 U.S. 662, 679
("While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.")
Moreover, to survive a motion to dismiss for failure to
state a claim, the facts pleaded must allow the court to infer
that the plaintiff's right to relief is plausible.
Id.
To
allege a plausible right to relief, the facts pleaded must
suggest liability; allegations that are merely consistent with
unlawful conduct are insufficient.
Twombly, 550 U.S. at 566-69.
"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."
B.
Iqbal, 556 U.S. at 679.
None of the Claims Are Supported by Facts Alleged in the
Complaint
1.
The Due Process Claims
The Due Process claim grows out of disciplinary action taken
by reason of the photographs plaintiff took of the child on the
toilet.
Assuming, arguendo, that plaintiff has correctly
8
asserted in his responses to Emery and Hurbough's motion to
dismiss that his complaint states that his right to due process
was denied when the school took away his constitutionally
cognizable property right to a public education, the complaint
still fails to state a claim upon which relief may be granted.
The parties agree that "[a] State's extending the right to
education creates a property interest protected by the Due
Process Clause of the Fourteenth Amendment . . . . "
Harris ex
rel. Harris v. Pontotoc Cnty. Sch. Dist., 635 F.3d 685, 690 {5th
Cir. 2011).
However, "[a] student's transfer to an alternate
education program does not deny access to public education and
therefore does not violate a Fourteenth Amendment interest."
Id.
Because plaintiff has not plausibly alleged a violation of a
constitutionally protected property or liberty interest, he
cannot maintain a due process claim, whether it be procedural or
substantive.
Therefore, defendants' motions to dismiss are
granted as to this claim.
2.
The Egual Protection Claims
The Supreme Court has "recognized successful equal
protection claims brought by a 'class of one,' where the
plaintiff alleges that []he has been intentionally treated
differently from others similarly situated and that there is no
rational basis for the difference in treatment."
9
Village of
Willowbrook v. Olech, 528
u.s.
562, 564 (2000).
In support of
his complaint that he was punished more harshly than other
students with no rational basis for the difference in punishment,
plaintiff's complaint mentions other students disciplined by the
school, and compares their punishments with his own.
The determination of the similarity of situations of
comparators "is case-specific and requires [the court] to
consider the full variety of factors that an objectively
reasonable decisionmaker would have found relevant in making the
challenged decision."
F.3d 225, 234
Lindquist v. City of Pasadena Tex.,
(5th Cir. 2012)
marks omitted) .
669
(citation and internal quotation
Plaintiff alleged no facts in the complaint that
would establish that there was no rational basis for the
differences in treatment.
None of the other infractions involved
violations of another child's privacy rights as egregious as the
making and publishing of photographs of the child sitting on a
toilet.
No facts are alleged that would support a conclusion
that there was no rational basis to treat plaintiff differently
from the other students.
Therefore, this ground of defendants'
motions has merit. 5
5
The court agrees with the District that the constitutional claims asserted against it would in any
event be barred by the failure of plaintiff to plead facts establishing municipal liability. However, the
court need not further discuss that subject considering that plaintiff has failed to allege facts establishing
that plaintiffs constitutional rights were violated.
(continued ... )
10
3.
The Civil Conspiracy Claims under 42 U.S.C.
§
1985
Plaintiff alleged that defendants engaged in a civil
conspiracy under 42 U.S.C.
rights.
§
1985 to violate plaintiff's civil
In order to state a claim for civil conspiracy under
§
1985,
a plaintiff must allege facts demonstrating (1) a
conspiracy; (2) for the purpose of depriving a person
of equal protection of the laws; and (3) an act in
furtherance of the conspiracy; (4) which causes injury
to a person or a deprivation of any right or privilege
of a citizen of the United States.
Lockett v. New Orleans City, 607 F.3d 992, 1002 (5th Cir. 2010).
Because defendants are a school district and its employees,
plaintiff cannot plead facts sufficient to demonstrate a
conspiracy.
"[A] school and its officials constitute a single
entity which cannot conspire with itself."
Hankins v. Dallas
Indep. Sch. Dist., 698 F.Supp. 1323, 1330 (N.D. Tex. 1988), cited
with approval in Hilliard v. Ferguson, 30 F.3d 649, 653 n.17 (5th
Cir. 1994)
("We follow the reasoning of the other courts on this
question and hold that a school board and its employees
constitute a single entity which is incapable of conspiring with
itself for the purposes of
§
1985(3) .").
Because the District,
Emery, and Hurbough are considered a single entity, they are
5
continued)
Also, the court agrees with Hurbough and Emery that the allegations of the complaint are
insufficient to overcome their qualified immunity defenses. Again, the court need not further discuss that
subject, bearing in mind the rulings made in the text of this memorandum opinion and order.
( •••
11
incapable of conspiring.
Therefore those claims are also to be
dismissed. 6
4.
The Section 504 Rehabilitation Act Claims
Lastly, plaintiff alleged a cause of action against the
District under Section 504 of the Rehabilitation Act.
He stated
that the District created a hostile educational environment and
grossly deviated from professional standards of care as to
plaintiff.
Plaintiff's response to the District's motion also
asserted that plaintiff was retaliated against for his parents'
advocacy on his behalf; however, that claim was not alleged in
the first amended complaint and thus is not properly before the
court.
The factual assertions of the complaint included
descriptions of various alleged actions of the District's
employees which plaintiff states amounted to a conspiracy to
have plaintiff removed from the school based on his disabilities
and that the employees acted in furtherance of such conspiracy by
(1) mischaracterizing evidence before the Office of Civil Rights
and the Texas Education Agency Hearing Officer,
(2) contacting
parents of other students to have them file criminal charges
against plaintiff,
(3) having a teacher file assault charges
6
Even if the court were to assume that plaintiff intended to allege his conspiracy claims against
only Hurbough and Emery, the outcome would be the same.
12
against plaintiff,
(4) failing to appropriately investigate the
photo taking incident,
student,
(5) having plaintiff followed by a fellow
(6) telling plaintiff a camera was watching him, and (7)
by not returning plaintiff to school when the felony charges were
dropped.
Plaintiff states that owing to this conspiracy, the
District intentionally discriminated against him.
Plaintiff cannot sustain a cause of action under Section 504
of the Rehabilitation Act because, aside from a conclusory
allegation that the above described activities were undertaken
due to his disability, there are no underlying factual
allegations to support such statement.
Section 504 of the
Rehabilitation Act
mandates that "[n]o otherwise qualified individual with
a disability . . . 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."
Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982,
990 (5th Cir. 2014).
In order to sustain a cause of action under
the Rehabilitation Act,"the statute requires intentional
discrimination against a student on the basis of his disability."
D.A. ex rel. Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d
450, 454 (5th Cir. 2010).
Plaintiff's complaint alleged no facts
which, taken as true, would support a finding that the District
13
,,
intentionally discriminated against him based on his disability.
Plaintiff's complaint lists a litany of behavioral infractions,
which may have caused the above described actions, but plaintiff
pleaded that such actions were based on his disability only in a
conclusory fashion.
Because plaintiff has failed to plead
sufficient facts to support a plausible claim under the
Rehabilitation Act, such claim must be dismissed.
5.
Whatever Claims Might Have Been Asserted on Behalf of
Charles Cripps and Kristie Cripps are Being Dismissed
The wording of the first amended complaint suggests that all
of the claims asserted therein are being pursued on behalf of
C.C. individually, acting through his next friends, Charles
Cripps and Kristie Cripps.
However, asserted in paragraph 16 on
page 6 of the complaint is a statement that Charles and Kristie
Cripps bring uforward this complaint accordingly, not only as
next friends, but for in their own Individual Capacity for outof-pocket expenses incurred as a result of Respondent's actions."
So that there will be no uncertainty concerning any allegations
in the first amended complaint that might purport to assert
individual claims on behalf of Charles Cripps and Kristie Cripps
based on any of the theories of recovery that remain in the
complaint after the severance out of the administrative appeal,
the court, for reasons already discussed, is ordering that
14
whatever claims and causes of action purport to be asserted by
Charles Cripps and Kristie Cripps, individually, also are being
dismissed.
v.
Order
Therefore,
The court ORDERS that the motions to dismiss filed by
defendants be, and are hereby, granted, and that all claims and
causes of action asserted by C.C. individually, by and through
his next friends, Charles Cripps and Kristie Cripps, or by
Charles Cripps and Kristie Cripps, individually, against
defendants be, and are hereby, dismissed with prejudice.
SIGNED January 8, 2015.
15
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