Colin et al v. Fort Worth Independent School District et al

Filing 27

MEMORANDUM OPINION and ORDER: The court ORDERS that defendants' motions to dismiss be, and are hereby, granted, and that plaintiffs' claims be, and are hereby, dismissed. (Ordered by Judge John McBryde on 8/27/2018) (tln)

U.S. DISTR!CTCOUR
NORTHERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT CO RT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

FILED

AUG 2 7 2018

PEDRO COLIN AND SALIC RAZIJA,
INDIVIDUALLY, AND AS NEXT
FRIENDS OF A.C., A MINOR,

§

C1B~ZK, U.S. DISTRICT COURT

§
§

Deputy

§

Plaintiffs,

vs.
FORT WORTH INDEPENDENT SCHOOL
DISTRICT, ET AL.,
Defendants.

§
§
§
§
§
§
§

NO. 4:18-CV-330-A

§

MEMORANDUM OPINION
and
ORDER
Came on for consideration the motions to dismiss filed in
the above-captioned action by defendants, Fort Worth Independent
School District ("FWISD") and Wayland Scott ("Scott").
Plaintiffs, Pedro Colin ("Colin"), Salic Razija ("Razija•), and
A.C., acting by and through Colin and Razija as his next friends,
have responded.

The court, having considered the motions, the

response of plaintiffs, the replies, plaintiffs' amended
complaint, and the applicable legal authorities, finds that the
motions should be granted.

I.

Plaintiffs' Claims
In summary form, plaintiffs made the following allegations
in their first amended complaint:
A.C. is a minor suffering from Autism Spectrum Disorder.
Doc. 1 15 at 2, , 9.

He was enrolled from the summer of 2014

through April 2016 in a special education class at Boulevard
Heights Elementary School, which is a school within the FWISD.
Id. , 10.

During that time, A.C. would come home from school

with bodily injuries, including bruising on his arms, chest, and
legs, and abrasions and contusions on his head.

Id.

A.C. was

occasionally taken to the hospital for medical treatment as a
result of these injuries.

Id.

Colin and Razija made multiple attempts to discern the
causes of their son's injuries.

They spoke to Scott, A.C.'s

teacher, and reported the injuries to other FWISD officials,
including Principal Paul Kaufman ("Kaufman") and several
investigators.

Id. ,, 11-12.

In response to multiple

inquiries, Scott speculated to Colin and Razija that A.C.'s
injuries were self-inflicted or caused by other students, but
never gave them a definitive explanation.

'The "Doc.
CV-330-A.

Id. , 11.

A.C.'s

" reference is to the number assigned to the referenced item in this action, No. 4: 18-

2

parents made several complaints to Kaufman, who denied that any
FWISD employees caused A.C.'s injuries.

Id. , 12.

After

complaints to Kaufman continued to go unanswered, A.C.'s parents
made six or seven complaints to other school officials.

Id.

Although A.C.'s therapists documented that they never saw A.C.
exhibit aggressive behavior, either to himself or to others,
FWISD school officials hypothesized that A.C.'s injuries were
self-inflicted.

Id. at 3, , 14.

FWISD did not assign personnel

to monitor A.C. 's classroom or Scott.

Id. at 2,

,

13.

On April 4, 2016, in a video-recorded conversation that took
place between Scott, Colin, and Razija at their family home,
Scott admitted responsibility for the injuries A.C. sustained at
school.

Id. at 3, , 15.

Scott admitted to using a school desk

to raise A.C.'s arms when A.C. refused to stand up, as well as
other interventions, which caused some of the bruising on A.C.
Id. ,, 15-16.

Scott informed plaintiffs that FWISD interventions

and policies were problematic, and that further admitted that
after additional training he changed the way in which he
instructs A.C.

Id.

Based on these facts, plaintiffs assert causes of action for
assault and intentional infliction of emotional distress as to
Scott, violation of the Americans With Disabilities Act, 42

3

U.S.C.

§§

U.S.C.

§

12101-12213 ,

("ADA"), as to FWISD, and violation of 42

1983 as to both Scott and FWISD.
II.
Grounds of the Motions

A.

Scott's Motion to Dismiss
Scott urges that dismissal of plaintiffs' claims against him

be granted for the following reasons:

(1) he is entitled to

qualified immunity on the claims asserted pursuant to 42 U.S.C.
§

1983,

(2) plaintiffs are barred from bringing their tort law

claims due to their election to assert those claims against
FWISD; and,

(3) plaintiffs' failure to exhaust their

administrative remedies under the Texas Education Code
jurisdictionally bars them from asserting tort claims against
Scott.
B.

FWISD's Motion to Dismiss
With respect to plaintiffs' claims brought pursuant to the

ADA, FWISD urges dismissal on the grounds that the court lacks
jurisdiction over such claims, that Colin and Razija lack
standing to assert the ADA claims for their own mental anguish,
that plaintiffs failed to state claims on which relief my be
granted, and that to the extent that Colin and Razija assert ADA
claims against FWISD on their own behalf, those claims are barred
by the statute of limitations with respect to any conduct that

4

took place before April 4, 2016.

With respect to claims

plaintiffs have asserted against defendant pursuant to

§

1983,

FWISD urges dismissal of those claims on the grounds that
plaintiffs have failed to adequately plead those claims, and that
the claims as asserted by Colin and Razija are barred in part by
the statute of limitations.

Finally, FWISD asserts it is

entitled to governmental immunity on plaintiffs' negligence
claim. 2
III.
Applicable Legal Principles
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. at 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

2

The amended complaint does not reflect that such a claim is asserted, Doc. 15, and plaintiffs
admit that they are not asse1iing a to1i claim against FWISD. Doc. 23 at 9.
5

simply allege legal conclusions or recite the elements of a cause
of action.

Id. at 555 & n.3.

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.

See Ashcroft v. Iqbal, 556 U.S. 662, 679

(2009) ("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 under Rule 12(b) (6), the facts pleaded must allow
the court to infer that the plaintiff's right to relief is
plausible.

Id. at 678.

To allege a plausible right to relief,

the facts pleaded must suggest liability; allegations that are
merely consistent with unlawful conduct are insufficient.
"Determining whether a complaint

Twombly, 550 U.S. at 566-69.

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."

Iqbal, 556 U.S. at 679.
IV.

Analysis
A.

Section 1983 Claims Against Scott and FWISD
1.

Section 1983 Claims Against Scott

Scott asserts he is entitled to qualified immunity on
plaintiffs' claims "because Plaintiffs have pled only vague,

6

conclusory allegations concerning alleged physical abuse of A.C.,
and because Scott's alleged conduct does not violate clearly
established law.•

Doc. 16 at 5.

Plaintiffs, in their response

to the motions to dismiss, wholly failed to address any of the
grounds for dismissal of the

§

1983 claims asserted against

Scott.
"The doctrine of qualified immunity shields officials from
liability so long as their conduct 'does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.'"
S.Ct. 305, 308
231 (2009)).

(2015)

Mullenix v. Luna, 136

(quoting Pearson v. Callahan, 555 U.S. 223,

When a motion to dismiss raises the defense of

qualified immunity, the burden is on the plaintiff to negate the
defense.

Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir.

2010); Foster v. City of Lake Jackson, 28 F.3d 425, 428

(5th Cir.

1994). The plaintiff "must plead specific facts that both allow
the court to draw the reasonable inference that the defendant is
liable for the harm .

. and that defeat a qualified immunity

defense with equal specificity.•
648

(5th Cir. 2012).

Backe v. LeBlanc, 691 F.3d 645,

Plaintiff must show "(1) that the official

violated a statutory or constitutional right, and (2) that the
right was clearly established at the time of the challenged

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conduct."

Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir.

2013) (citation omitted).
Plaintiffs, in failing to respond to Scott's grounds for
dismissal of the

§

1983 claims asserted against him, have both

abandoned the claim and failed to meet their burden to negate
Scott's defense concerning whether Scott is entitled to qualified
immunity.

Accordingly, it is unnecessary for the court to

determine whether plaintiffs stated a claim upon which relief may
be granted.
2.

See Kovacic, 628 F.3d at 212.

Section 1983 Claims Against FWISD

Like the motion of Scott, FWISD's motion to dismiss
contained a detailed discussion in support of its grounds for
dismissing the

1983 claims against asserted against it, which

§

stem from FWISD's policies and its alleged failure to train,
supervise, and investigate.

See Doc. 18 at 11"21.

Plaintiffs

similarly failed in their response to the motions to dismiss to
address any of FWISD's asserted grounds for dismissal of these
claims.

Because plaintiffs failed to address their

§

1983 claims

against FWISD in their response to FWISD's motion to dismiss, the
court deems the

§

1983 claims asserted against FWISD abandoned.

See Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.l (5th
Cir. 2006).

Accordingly, the court concludes that dismissal of

such claims is proper.

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B.

Tort Claims Against Scott
Plaintiffs assert in their amended complaint state law tort

claims against Scott for assault and intentional infliction of
emotional distress.

Scott invokes governmental immunity on both

claims.
In support of dismissal of plaintiffs' intentional
infliction of emotional distress claim, Scott relies on section
101.106(a) of the Texas Civil Practices & Remedies Code.

That

section provides:
The filing of a suit under this chapter against a
governmental unit constitutes an irrevocable election
by the plaintiff and immediately and forever bars any
suit or recovery by the plaintiff against any
individual employee of the governmental unit regarding
the same subject matter.
Tex. Civ. Prac. & Rem. Code§ 101.106(a).

Scott cites this

section as authority for the proposition that because plaintiffs
asserted in their original complaint a claim for intentional
infliction of emotional distress against FWISD (in addition to
Scott), they are barred from pursuing such claim against Scott.
Plaintiffs appear to argue that when a party files suit
against both a governmental entity and its employee, section
101.106(a) does not control. Doc.23 at 7 (citing Ibarra v. Harris
County, 243 F. App'x 830, 837 (5th Cir. 2007)). Instead,
subsection (e) provides the applicable standard: "If a suit is
filed under this chapter against both a governmental unit and any
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of its employees, the employees shall immediately be dismissed on
the filing of a motion by the governmental unit."
Prac.

&

Tex. Civ.

Rem. Code § 101. 106 (e) (emphasis added) . They recognize

that they did originally sue both FWISD and Scott for intentional
infliction of emotional distress and that FWISD filed a motion to
dismiss that claim as to Scott. They seem to argue that the
amending of their complaint vitiates Scott's entitlement to
dismissal of this claim, but do not cite any authority in support
of that proposition. Based on the plain language of section
101.106(e), the emotional distress claim against Scott should
have been dismissed immediately upon the filing of the first
motion to dismiss, and plaintiffs have not provided a reason,
other than that "such argument is no longer before the Court,"
doc. 23 at 7, n.7,

that persuades the court that such claim

against Scott should not be dismissed now.
As for the assault claim, Scott argues that it should be
dismissed pursuant to Tex. Civ. Prac. & Rem. Code§ 101.106(f),
which provides, in pertinent part:
If a suit is filed against an employee of a
governmental unit based on conduct within the general
scope of that employee's employment and it could have
been brought under this chapter against the
governmental unit, the suit is considered to be against
the employee in the employee's official capacity only.
As the Fifth Circuit has recognized, when the statute applies, it
mandates that plaintiffs pursue lawsuits against governmental

10

units rather than their employees. Wilkerson v. Univ. of N. Tex.,
878 F.3d 147, 159 (5th Cir. 2017). Relying on an outdated case,
Ramirez v. Abreo, No. 5:09-CV-190-C, 2010 WL 11565430 (N.D. Tex.
Jan. 20, 2010), plaintiffs argue that their assault claim could
not have been brought against FWISD because it is an intentional
tort for which sovereign immunity has not been waived. Doc. 23 at
8. In Ramirez, the court made an Erie guess as to how the Texas
Supreme Court would have treated such claims. Since that time,
the Court has clearly stated that all tort theories alleged
against a governmental unit are assumed to be under the Tort
Claims Act, regardless of whether immunity is waived. Tex. Dep't
of Aging and Disability Servs. V. Cannon, 453 S.W.3d 411, 415
(Tex. 2015); Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011).
Accordingly, this claim will be dismissed.
C.

ADA Claim Asserted Against FWISD
Plaintiffs' final claim against FWISD is that FWISD violated

the ADA by not providing A.C. with the same educational
opportunities enjoyed by other FWISD students.

FWISD urged

various grounds supporting dismissal of the ADA claims, the first
of which being that plaintiffs' ADA claims should be dismissed
for lack of jurisdiction.

FWISD alleges that because the

requested relief is also available under the Individuals with
Disabilities Education Act

("IDEA"), plaintiffs were required to

11

exhaust their administrative remedies under the IDEA prior to
filing this action, which they failed to do.
"The IDEA bars Plaintiffs from circumventing [the]
administrative exhaustion requirement by taking claims that could
have been brought under the IDEA and repackaging them as claims
under some other statute."
455 F. Supp. 2d 577, 592

Marc V. v. N.E. Indep. Sch. Dist.,
In other words, a

(W.D. Tex. 2006).

plaintiff alleging claims under the ADA must first exhaust the
administrative remedies available for claims under the IDEA when
the relief sought thereby is also available under the IDEA.
v. Napoleon Cmty. Sch., 137 s. Ct. 743, 750 (2017).

Fry

Whether a

plaintiff is seeking relief available under the IDEA is discerned
by determining whether "the gravamen of [the] complaint seeks
redress for a school's failure to provide a

[free appropriate

public education ("FAPE")], even if not phrased or framed in
precisely that same way." 3

Id. at 755.

"What matters is the

crux--or, in legal-speak, the gravamen--of the plaintiff's
complaint, setting aside any attempts at artful pleading."

Id.

To determine whether a claim seeks relief available under
IDEA, the Supreme Court has suggested considering the answer to
two hypothetical questions:

(1) could the plaintiff have pursued

3

As defined by the IDEA, a FAPE concerns special education and related, supported services that
arc tailored to meet the unique needs ofa disabled child. 20 U.S.C. § 1401(9), (26), (29).

12

essentially the same claim had the alleged conduct occurred at a
public facility that was not a school; and (2)
the school have pursued the same claim.

could an adult at

Id. at 756.

When the

answer to those questions is no, the complaint probably concerns
a FAPE, and administrative exhaustion as prescribed by the IDEA
is required.

Id.

Plaintiffs alleged in their complaint that "A.C. was not
afforded the same educational opportunities as other students in
FWISD" because unlike other FWISD students, A.C. was not free
from abuse and unable to have his complaints "addressed in a
similar manner or given the same weight."

Doc. 15 at 5, '35.

Plaintiffs also alleged that they "are unaware of any policy
[FWISD] had in place, for the reporting and investigation of
complaints by students that specifically have difficulty speaking
or with traits attributed to autism," or "any accommodation
made or attempted

. for A.C."

Id. at 6,

'

36.

The court is persuaded that these allegations, which
constitute the substance of plaintiffs' ADA claims against FWISD,
implicate the IDEA, because, at their core, they complain that as
a result of various actions and inactions by Scott and other
FWISD personnel, A.C. was denied a FAPE--that due to the use by
Scott of inappropriate discipline and/or restraint, A.C. "was not
afforded the same educational opportunities as other students in

13

FWISD."

Doc. 15 at 5, , 35; See Reyes v. Manor Indep. Sch.

Dist., 850 F.3d 251, 254

(5th Cir. 2017); Doe v. Dallas Indep.

Sch. Dist., No. 3:17-CV-1284-B, 2018 WL 1899296, at *2-3
Tex. Apr. 19, 2018)

(N.D.

(plaintiff's claim regarding access to

educational benefits following sexual assault deemed an
allegation plaintiff was denied a FAPE) .
Moreover, the court is not persuaded by plaintiffs' argument
that administrative exhaustion is not required because plaintiffs
only seek monetary damages, which are not available under the
IDEA. Doc. 23 at 3. The mere request for monetary damages does
not render IDEA's exhaustion requirement futile. Doe, 2018 WL
1899296, at *4.

See also, Wellman v. Butler Area Sch. Dist., 877

F.3d 125, 131 n.7 (3rd Cir. 2017)

("[A] plaintiff's request for

remedies not available under the IDEA does not remove the claim
from being subject to exhaustion."); Frazier v. Fairhaven Sch.
Comm., 276 F.3d 52, 63

(1st Cir. 2002)

(explaining that it would

undermine the very existence of the IDEA if plaintiffs were
permitted to bypass the IDEA administrative process by "crafting
[their] complaint to seek relief that educational authorities are
powerless to grant.").

Accordingly, the court determines that

before plaintiffs can bring their asserted ADA claims, such
claims must first be exhausted through the procedure set forth in

14

the IDEA.
Parish,

20 U.S.C.

§

1415(1); Gardner v. School Bd. Caddo

958 F.2d 108, 112 (5th Cir. 1992).

Plaintiffs contend that they have met the IDEA exhaustion
requirement by complying with procedures provided by the FWISD
for doing so. But, they have failed to show that they obtained a
due process hearing with the Texas Education Agency, 20 U.S.C.
§

1415(1), or that such hearing would be futile. Gardner, 958

F.2d at 112. Nor have they shown that FWISD somehow prevented
them from appealing to the state agency.' See 20 U.S.C.
§

1415 (f) (3) (D). Because plaintiffs have failed to adequately

exhaust the IDEA administrative remedies relevant to their
claims, the court concludes that such claims should be dismissed.
FWISD alternatively says that plaintiffs have not
sufficiently pleaded their ADA claim. A prima facie case under
the ADA requires a plaintiff to plead that:
individual within the meaning of the ADA;

(1) he is a qualified

(2) he is excluded from

participation, or denied benefits, or otherwise discriminated
against by the defendant; and (3) the exclusion, denial, or
discrimination is because of his disability. Estate of A.R. v.
Muzyka, 543 F. App'x 363, 364-65 (5th Cir. 2013); Hale v. King,
642 F.3d 492, 499

(5th Cir. 2011). Colin and Razija admit that

'They have simply stated that FWISD failed to provide them a handbook.

15

they are not asserting ADA claims. And, they simply state that
A.C.'s claim is adequately pleaded. Doc. 23 at 7. They do not
point to any specific facts to support this contention. The
allegations of the amended complaint are conclusory and do not
support the contention that FWISD discriminated against A.C. on
the basis of his disability. From the pleading, it is apparent
that A.C.'s behavior, rather than his disability, was the
catalyst for Scott's actions.

v.
Order
The court ORDERS that defendants' motions to dismiss be, and
are hereby, granted, and that plaintiffs' claims be, and are
hereby, dismissed.
SIGNED August 27, 2018.

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