The Estate of C.A., a minor child deceased et al v. Grier et al

Filing 128

MEMORANDUM AND OPINION entered DENYING 121 MOTION for Discovery. Plaintiffs must file their response to the motion for summary judgment no later than 12/21/12. (Signed by Judge Lee H Rosenthal) Parties notified.(leddins, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
THE ESTATE OF C.A., A MINOR CHILD,
DECEASED, et al.,

§
§
§
Plaintiffs,
§
§
v.
§
§
TERRY B. GRIER, SUPERINTENDENT OF §
THE HOUSTON INDEPENDENT SCHOOL §
DISTRICT, IN HIS OFFICIAL CAPACITY, §
et al.,
§
§
Defendants.
§

CIVIL ACTION NO. H-10-00531

MEMORANDUM AND OPINION
The plaintiffs, the estate and parents of C.A., a high-school senior who drowned in his
school’s swimming pool, sued the Houston Independent School District (“HISD”), among other
parties, alleging violations of C.A.’s constitutionally protected rights. (Docket Entry No. 32). HISD
moved for summary judgment. (Docket Entry No. 116). The plaintiffs moved under Rule 56(d) of
the Federal Rules of Civil Procedure, seeking additional discovery they allegedly need to respond
to the summary-judgment motion. (Docket Entry No. 121). HISD filed a response in opposition
to the plaintiffs’ discovery motion. (Docket Entry No. 122).
Based on the motion and response, the record, the arguments of counsel, and the applicable
law, this court denies the plaintiffs’ motion for additional discovery. The plaintiffs must respond
to the motion for summary judgment no later than December 21, 2012.
The reasons for this ruling are set out below.

I.

Background
This court has previously described the factual and legal background for this lawsuit.

(Docket Entry No. 97). Only a brief summary is necessary here. C.A., a 17-year-old senior at an
HISD high school, drowned in the school’s swimming pool at the end of a physics class in which
students went into the pool as part of a science experiment on buoyancy. C.A.’s parents and estate
sued HISD and individual employees under 42 U.S.C. § 1983. Two of the individual defendants,
Paul Castro, then the high school’s principal, and Vanessa Coronado, the science teacher who taught
the class, moved for summary judgment based on qualified immunity. (Docket Entry No. 68). After
discovery targeted to the qualified-immunity defense, this court granted summary judgment
dismissing the claims against the individual defendants. (Docket Entries No. 97, 103).
On January 15, 2012, the plaintiffs moved for leave to file a supplement to their third
amended complaint to allege additional constitutional violations against HISD. The added
allegations were primarily that HISD violated C.A.’s parent’s instructions in a consent form
indicating that C.A. was not allowed to swim and thereby violated their right to educate C.A. as they
saw fit. (Docket Entry No. 109). This court denied that motion. (Docket Entry No. 111).
On April 13, 2012, HISD moved for summary judgment. (Docket Entry No. 116). HISD
argued that the plaintiffs’ claims against it necessarily failed because, based on the undisputed facts
and applicable law, they could not show a violation of C.A.’s constitutional rights. (Id. at 7).
Citing Doe ex rel. Magee v. Covington County School District, 675 F.3d 849 (5th Cir. 2012) (en
banc), HISD argued that a school district has no constitutional duty to protect students from private
harm. (Id.) Accordingly, the plaintiffs could not allege a colorable constitutional violation under

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the Fourteenth Amendment’s Due Process Clause and could not show that HISD violated a
constitutional duty owing to C.A. (Id. at 11–14).
In response, the plaintiffs have sought additional discovery before responding to the
summary judgment motion. HISD filed its opposition. HISD also supplemented its summaryjudgment briefing to alert this court to recent cases applying Covington in dismissing § 1983 claims
against school districts. (Docket Entry No. 125).
The plaintiffs ask this court to permit the following discovery:
1.

A two-hour deposition of Troy Gillespie, another physics teacher.

2.

A two-hour deposition of Craig Sikkema, the swim coach.

3.

A two-hour deposition of Paul Castro, the former principal.

4.

Production of all e-mails, memos, or other communications about planning
for the physics experiment at issue, to or from any teacher, staff member,
administrator, or other HISD employee involved in or responsible for
planning.

5.

Production of all documents or records about the science experiment or other
experiments involving the swimming pool performed in the years at issue,
and for at least two years prior.

6.

Production of previous documentation about swimming skills or activity
limitations for the students who were to participate in the physics experiment
during the years in question.

7.

Production of all documents or records about experiments in other pools
within HISD for the year in question, and at least two years prior, and any
adverse events (injuries as well as any deaths) that occurred during those
experiments.

(Docket Entry No. 121, at 8–9).

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II.

The Rule 56(d) Standard
Federal Rule of Civil Procedure 56(d) governs a party’s request for additional discovery

before responding to a motion for summary judgment. If the nonmovant shows that “it cannot
present facts essential to justify its opposition, the court may: (1) defer considering the motion or
deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other
appropriate order.” FED. R. CIV. P. 56(d). Rule 56(d) was designed to “safeguard non-moving
parties from summary judgment motions that they cannot adequately oppose.” Culwell v. City of
Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006). Rule 56(d) discovery motions are “broadly favored
and should be liberally granted.” Id. A request under Rule 56(d) must, however, “set forth a
plausible basis for believing that specified facts, susceptible of collection within a reasonable time
frame, probably exist and indicate how the emergent facts, if adduced, will influence the outcome
of the pending summary judgment motion.” Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010)
(quotations omitted). The movant may not “simply rely on vague assertions that additional
discovery will produce needed, but unspecified, facts.” Id. The trial court may cut off a party’s
entitlement to discovery before a summary-judgment ruling when the record indicates that further
discovery will not likely produce facts necessary to defeat the motion. Id.; see also Cormier v.
Pennzoil Exploration & Prod. Co., 969 F.2d 1559, 1561 (5th Cir. 1992).
III.

Analysis
The plaintiffs assert two liability theories. First, that “the School District has taken a life

without due process, and that it had a duty to follow its own policies, rules and regulations, along
with those of the City of Houston regarding safety in an inherently dangerous location.” (Docket
Entry No. 121, at 5). Second, “that the School is liable on a ‘state-created danger’ doctrine.” (Id.

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at 6). As explained below, the plaintiffs fail to make the necessary showing that the additional
discovery they seek is likely to raise a fact dispute as to HISD’s liability under either theory. The
plaintiffs have failed to show that the discovery they seek will assist them in responding to the
summary judgment motion or influence its outcome.
The plaintiffs’ first liability theory is foreclosed by well-established precedent. A court
faced with a claim that a school district is liable for a student’s injury or death examines whether the
harm to the student was caused by a constitutional violation and, if so, whether the school district
is responsible for that violation. See Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992).
The Fifth Circuit has “stated time and again that without an underlying constitutional violation, an
essential element of [School district] liability is missing.” Covington, 675 F.3d at 866–67. “[T]here
can be no award of damages against a municipality when the actions of its officer did not inflict
constitutional harm.” Hale v. Bexar County, 2008 WL 2967513, at *8 (W.D. Tex. July 30, 2008).
In its summary judgment motion, HISD argued that “[Covington] demonstrates that physical
injury to a student is actionable as a violation of due process only in two limited circumstances: (i)
the plaintiff’s physical injury was inflicted by a state actor (school employee) or (ii) the plaintiff’s
physical injury was inflicted by a private actor, but the plaintiff had a ‘special relationship’ with the
state such that the state had a duty to protect the plaintiff from the private actor.” (Docket Entry No.
116, at 8 (citing Covington, 675 F.3d at 855–56)). As emphasized in the Covington special
concurrence, “[n]o . . . special relationship exists between a public school and its students.”
Covington, 675 F.3d at 870 (Jolly, J., specially concurring) (citing DeShaney v. Winnebago Cnty.
Dep’t of Soc. Servs., 489 U.S. 189 (1989)).

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There is no allegation or evidence that a state actor injured C.A. Even if, as the plaintiffs
claim, the school’s failure to comply with its own policies resulted in C.A.’s drowning, HISD had
no special relationship with — and thus no duty to protect — C.A. See id. at 855–57 (majority
opinion). Absent that duty, any failure to comply with school policies governing the use of the pool
could not, as a matter of law, have resulted in a deprivation of C.A.’s due process rights. See id.
The discovery the plaintiffs seek, largely aimed at HISD’s practices and policies about swimming
pool use, supervision over the use of an HISD school swimming pool, and science experiments
involving student use of swimming pools, is immaterial to the due process arguments HISD
advanced in its summary-judgment motion. The additional discovery the plaintiffs seek cannot
create a factual dispute on either of the two requirements for a due process claim against HISD.
The plaintiffs’ second liability theory similarly fails to establish a basis for the discovery they
seek. “Under the state-created danger theory, a state actor may be liable under § 1983 if the state
actor created or knew of a dangerous situation and affirmatively placed the plaintiff in that
situation.” Covington, 675 F.3d at 864. As HISD argues in its motion for summary judgment and
in its opposition to the plaintiffs’ Rule 56(d) motion, the Fifth Circuit has not recognized the “statecreated danger” theory. (Docket Entry No. 116, at 10 (citing Covington, 675 F.3d at 865); Docket
Entry No. 122, at 5–6). The plaintiffs acknowledge this but argue that the Fifth Circuit has never
rejected the theory and that this case could serve as the vehicle for its recognition and adoption.
(Docket Entry No. 121, at 6). The facts of this case do not support its use as the first for this circuit.
The Covington court “decline[d] to use this en banc opportunity to adopt the state-created
danger theory in this case because the allegations would not support such a theory.” 675 F.3d at
865. To the extent such a theory existed, the plaintiff had to “demonstrate the existence of ‘an

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immediate danger facing a known victim.’” Id. at 866 (quoting Saenz v. Heldenfels Bros., Inc., 183
F.3d 389, 392 (5th Cir. 1999)). The state-created danger theory requires more than “deliberate
indifference” by the state actor; the Covington plaintiffs’ allegations that the defendants had “‘actual
knowledge of the dangers created by their policies, customs and regulations, but . . . failed to take
corrective action to reduce or prevent the danger’” were insufficient. Id. at 865–66. The Fifth
Circuit emphasized that it has “consistently cautioned against finding liability under the state-created
danger theory based upon an ineffective policy or practice in cases where the plaintiff’s injury is
inflicted by a private actor.” Id. at 866.
The plaintiffs request additional discovery into what they allege were ineffective and unsafe
school policies on student use of HISD swimming facilities:
If, as Plaintiffs contend, there was really no effort to plan for
the safety of the students — the conscious decision to not consider
swimming pool safety for a discrete class, using the pool for a limited
and discrete purpose will satisfy important parts of the Plaintiffs’ two
theories of liability. If the Defendants contend that they did make
plans (any plans), the utter failure of those plans in this instance will
shed light on the degree of culpability that should be assigned to the
entity. The Court would lack important evidence from which to
determine whether a fact issue can be raised on the degree of
culpability — whether merely negligent, consciously indifferent,
reckless, or substantially certain to occur — without understanding
precisely how the Defendants explain (under adverse questioning
instead of scripted affidavits) exactly how a student is permitted to
drown under these circumstances.
(Docket Entry No. 121, at 8). The plaintiffs do not argue that the discovery is likely to show that
school officials knew that a specific individual, C.A., faced an immediate danger of drowning after
the science experiment. In this case, similar to Covington, the plaintiffs have not alleged or argued
an immediate known danger facing a specific victim. See Covington, 675 F.3d at 866. Even if the
additional discovery allowed the plaintiffs to argue that there was a factual dispute as to whether the

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school was deliberately indifferent to the risk that a student might drown in a pool after a class
project, such indifference could not meet the requirements for liability based on a state-created
danger that theory was recognized. See id. at 865–67.
The plaintiffs argue for a broader version of the state-created danger theory. Their version
would require that: “1) plaintiff was a member of a limited and specifically definable group; 2)
defendant’s affirmative conduct put plaintiff at substantial risk of serious, immediate, and proximate
harm; 3) the risk was obvious or known; 4) defendant acted recklessly in conscious disregard of that
risk; and 5) the defendant created the danger or increased the plaintiff’s vulnerability to the danger
in some way.” (Docket Entry No. 121, at 6–7). HISD’s arguments against the state-created danger
theory are that it is not recognized in this circuit and that the problems with the facts and allegations
in Covington that led the en banc court to decide not to adopt the state-created danger theory in that
case are also present here. The plaintiffs essentially argue that the additional discovery they seek
might enable them to raise a factual dispute as to whether HISD was liable under their expanded
version of a state-created danger theory. But that is not the argument the plaintiffs are called on to
address in responding to the summary-judgment motion. The question is whether the plaintiffs need
the additional discovery to respond to the arguments that were raised in HISD’s motion. The answer
is that they do not.
In addition to the fact that the plaintiffs are responding to the existing law on the statecreated danger theory of liability, not to an expanded version of that theory, they already have
obtained significant evidence on the district’s and school’s policies, on the communications within
the school leading up to and about the physics experiment, and on the observations and knowledge

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of those who worked at the school when it occurred. According to HISD, documents already
produced to the plaintiffs include:
•

HISD Standard Practice Memorandum 3521.A, Operation and Care of
Swimming Pools;

•

HISD Standard Practice Memorandum 3517.C, Guidelines Regarding School
Ground Use, Supervision and Improvement;

•

Board Policy CK (Local) Safety Program/Risk Management;

•

The Daily Pool Checklist;

•

Texas Department of Health, Standards for Swimming Pools and Spas;

•

Printout details on National Swimming Pool Foundation Pool & Spa
Operator Handbook;

•

Excerpts from Westside High School Faculty Handbook, 2007-2008;

•

Memorandum to Superintendent of HISD from Officer of Inspector General
regarding Student Drowning at Westside High School;

•

E-mail Correspondence between Coronado and C.A.’s parents regarding the
physics buoyancy experiment;

•

E-mail correspondence between Coronado and parents of students regarding
the physics buoyancy experiment;

•

Science Laboratory Safety Contract form from Coronado’s physics class,
2007-2008 school year;

•

Affidavits from Troy Gillespie, Craig Sikkema, and Paul Castro;

•

All of C.A.’s school records; and

•

All of Coronado’s personnel records.

(Docket Entry No. 122, at 7–8). The plaintiffs have also already deposed Coronado. (Docket Entry
No. 121, at 7; Docket Entry No. 122, at 7).

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The plaintiffs have sufficient information to advance their argument that HISD was
deliberately indifferent to an obviously dangerous situation. They also have enough evidence to
respond to HISD’s summary-judgment argument that the state-created danger theory does not exist,
and, if it does, it required a known and immediate danger specifically to C.A. Because the plaintiffs
cannot show that the additional discovery they seek is justified, under Rule 56(d), their motion is
denied.
IV.

Conclusion
The plaintiffs’ motion for additional discovery is denied. The plaintiffs must file their

response to HISD’s motion for summary judgment no later than December 21, 2012.
SIGNED on December 6, 2012, at Houston, Texas.
______________________________________
Lee H. Rosenthal
United States District Judge

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