Penny v. New Caney ISD, et al
Filing
19
MEMORANDUM AND ORDER entered GRANTING 14 MOTION for Leave to File Second Amended Complaint, GRANTING IN PART AND DENYING IN PART 5 MOTION to Dismiss Plaintiffs Complaint Pursuant to Rule 12(B)(6) and Brief in Support MOTION to Dismiss Plaintiffs Complaint Pursuant to Rule 12(B)(6) and Brief in Support. (Signed by Judge Lee H Rosenthal) Parties notified.(leddins, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DAVID PENNY and DREAMA
STANLEY, INDIVIDUALLY AND AS
NATURAL PARENTS AND NEXT
FRIEND OF H.P., A MINOR
Plaintiffs,
VS.
NEW CANEY INDEPENDENT
SCHOOL DISTRICT, et al.,
Defendants.
§
§
§
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. H-12-3007
MEMORANDUM AND ORDER
The plaintiffs, David Penney and Dreama Stanley, individually and on behalf of their
daughter, H.P., sued the New Caney Independent School District (“NCISD”) and several of its
employees under 42 U.S.C. § 1983, Section 504 of the Rehabilitation Act of 1973 (“§ 504”), 29
U.S.C. § 794, Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. 12131 et seq., and
Texas state common law. The plaintiffs claim that H.P. was assaulted and injured at school by an
aide in her special-education class. The defendants moved to dismiss. (Docket Entry No. 5). The
plaintiffs moved for leave to amend and attached a proposed amended complaint, (Docket Entries
No. 14, 15), and responded to the motion to dismiss in light of the proposed amended complaint,
(Docket Entry No. 16). NCISD replied. (Docket Entry No. 17).
Based on the pleadings, the motions and response, and the relevant law, this court grants the
plaintiffs’ motion for leave to amend, (Docket Entry No. 14), and grants the defendants’ motion to
dismiss in part and denies it in part. This court grants the motion to dismiss the claims against
Franklin and Baecker, the claims against Thomas and Barnett in their official capacities, the § 1983
claim against NCISD, and all tort claims. The motion to dismiss the § 504 and ADA claims and the
§ 1983 claim against Barnett in her individual capacity is denied. The reasons for these rulings are
explained below.
I.
Background1
H.P. is a 13 year-old girl classified as a student in need of special-education services by
NCISD. She receives instruction in a self-contained special-education classroom at New Caney
Elementary School. On October 11, 2010, H.P. came home with marks and abrasions that had not
been present when she left home that day. H.P. told her parents that the marks were made by Tracie
Barnett, a special-education aide. Since then, H.P. has been reluctant to attend school, has exhibited
signs of posttraumatic stress disorder, and has required counseling and therapy.
The plaintiffs sued NCISD, claiming that H.P. has suffered as a result of Barnett’s acts and
NCISD’s negligence in failing to provide appropriate services to H.P. and to adequately train and
supervise special-education staff. The plaintiffs also sued several school employees in their official
capacities: Kenn Franklin, the NCISD Superintendent; Sandra Baecker, the NCISD Director of
Special Education; and Leslie Thomas, the New Caney Elementary School principal. The plaintiffs
claimed that the “abuse and humiliation” inflicted by Barnett and other NCISD staff in the form of
the discipline they administered to the students, including H.P., was inappropriate and
discriminatory based on the students’ disabilities. The plaintiffs also claimed that NCISD’s failure
to provide adequate supervision and training to Barnett and other special-education staff to prevent
such abusive discipline was negligent and discriminatory. The plaintiffs alleged that before Barnett
allegedly abused H.P., NCISD was aware that Barnett had been investigated and reprimanded for
1
These allegations, which this court takes as true for purposes of ruling on the motion to dismiss,
come from the plaintiffs’ complaint, (Docket Entry No. 1), as amended, (Docket Entry No. 15), unless
otherwise indicated.
2
“abusing and/or improperly disciplining” students in the self-contained special education classroom.
The plaintiffs also alleged that Barnett and other staff were aware that special-needs students would
have difficulty reporting abuse. The plaintiffs asserted that NCISD was responsible for the actions
of special-education staff either directly or under a respondeat superior theory.
The plaintiffs also alleged that NCISD discriminated against H.P. by failing to provide her
appropriate services, impeding her educational development, depriving her of educational benefits,
and depriving her of a Free and Appropriate Public Education (“FAPE”). The plaintiffs asserted
claims under 42 U.S.C. § 1983 for violations of H.P.’s due process rights and under § 504 and the
ADA by the failure to accommodate H.P.’s disabilities and educational needs.
On December 11, 2012, NCISD moved to dismiss. (Docket Entry No. 5). NCISD argued
that the plaintiffs’ tort claims failed as a matter of law based on state sovereign immunity. (Id. at
5). NCISD moved to dismiss the § 1983, § 504, and ADA claims under Rule 12(b)(6) of the Federal
Rules of Civil Procedure for failure to allege facts sufficient to support those claims. NCISD also
argued that the plaintiffs had failed to exhaust their administrative remedies before asserting the
§ 504 and ADA claims. (Id. at 12). NCISD moved to dismiss all claims against the individual
defendants based on qualified immunity. (Id. at 16).
On January 11, 2013, the plaintiffs moved for leave to amend their pleadings and filed a
proposed first amended complaint. (Docket Entries No. 10, 11). This court held a hearing on
February 1, 2013. (Docket Entry No. 12). The court ordered the plaintiffs to respond to the motion
to dismiss. (Id.) On February 15, 2013, the plaintiffs responded to the motion to dismiss, moved
again for leave to amend, and filed a proposed second amended complaint. (Docket Entries No. 14,
15, 16). This court terminated the first motion for leave to amend as moot in light of the more recent
motion. On March 8, 2013, NCISD replied. (Docket Entry No. 17).
3
The proposed second amended complaint removed Franklin and Baecker as defendants, and
removed claims against Thomas in her official capacity. The complaint asserted claims against
NCISD and against Thomas in her individual capacity, and named Tracie Barnett as a defendant.
(Docket Entry No. 15; see also Docket Entry No. 16, at 1). In their response to the motion to
dismiss based on this proposed second amended complaint, the plaintiffs argue that the § 1983,
§ 504, and ADA claims contain sufficient allegations to survive dismissal. They argue that the
administrative-exhaustion requirement does not bar the § 504 and ADA claims. And they argue that
Thomas and Barnett are not entitled to qualified immunity because they both knew or should have
known that H.P.’s clearly established rights were being violated.
The grounds for dismissal, and the responses, are discussed below.
II.
The Legal Standard for Motions to Dismiss
Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be
granted.” FED. R. CIV. P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007),
and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court confirmed that Rule 12(b)(6) must
be read in conjunction with Rule 8(a), which requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). To withstand a Rule 12(b)(6)
motion, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570; see also Elsensohn v. St. Tammany Parish Sheriff’s Office, 530 F.3d 368,
372 (5th Cir. 2008) (quoting Twombly, 550 U.S. 544). The Court explained that “the pleading
standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S. Ct. at 1949 (citing
Twombly, 550 U.S. at 555).
When a plaintiff’s complaint fails to state a claim, a district court generally should provide
4
the plaintiff at least one chance to amend the complaint under Rule 15(a) before dismissing the
action with prejudice. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d
305, 329 (5th Cir. 2002) (“district courts often afford plaintiffs at least one opportunity to cure
pleading deficiencies before dismissing a case”); see also United States ex rel. Adrian v. Regents
of the Univ. of Cal., 363 F.3d 398, 403 (5th Cir. 2004) (“Leave to amend should be freely given, and
outright refusal to grant leave to amend without a justification . . . is considered an abuse of
discretion.” (internal citation omitted)). “Denial of leave to amend may be warranted for undue
delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies,
undue prejudice to the opposing party, or futility of a proposed amendment.” United States ex rel.
Steury v. Cardinal Health, Inc., 625 F.3d 262, 270 (5th Cir. 2010) (emphasis added). A district court
has broad discretion to dismiss a complaint without leave to amend “where the plaintiff has
previously been granted leave to amend [to cure pleading deficiencies] and has subsequently failed
to add the requisite particularity to its claims[.]” Zucco Partners, LLC v. Digimarc Corp., 552 F.3d
981, 1007 (9th Cir. 2009); see also Carroll v. Fort James Corp., 470 F.3d 1171, 1175 (5th Cir.
2006) (affirming a district court’s dismissal for failure to state a claim without leave to amend after
the court “instructed [the plaintiffs] to plead their fraud claim with greater particularity, but the
amended complaint was still woefully inadequate”).
III.
Analysis
A.
Parties Changed By the Amended Complaint
The plaintiffs’ amended complaint removes the claims against Franklin and Baecker. The
plaintiffs also eliminated all claims against Thomas in her official capacity. According to the
plaintiffs’ admissions and amended pleadings, all claims against Franklin and Baecker, and all
claims against Thomas in her official capacity, are abandoned.
5
It is unclear from the amended complaint whether the plaintiffs allege claims against Barnett
in her official and individual capacities. To the extent the plaintiffs sued Barnett in her official
capacity, those claims unnecessarily duplicate claims against NCISD. A plaintiff may not maintain
suit against a governmental entity, such as NCISD, and an employee of that governmental entity in
her official capacity. “Suing a government official in his or her official capacity is another way of
pleading against the entity of which the official is an agent.” Brittany B. v. Martinez, 494 F. Supp.
2d 534, 539 (W.D. Tex. 2007) (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)). Any claim
against Barnett in her official capacity is dismissed with prejudice.
B.
Claims Under § 1983
The plaintiffs claim that the acts and omissions of the defendants violated the Fourteenth
Amendment by depriving H.P. of the rights to life, liberty, and bodily integrity.2 The plaintiffs also
claim that the alleged failures of the defendants violated the Fourteenth Amendment by failing to
enact procedures to protect H.P. from a known and inherently dangerous situation. The defendants
argue that the § 1983 claims fail because the facts alleged do not support liability.
To hold NCISD liable, the plaintiffs must allege that (1) the constitutional violation was
caused as the direct result of the execution of an official “custom” or “policy”; (2) the custom or
policy was approved or sanctioned by NCISD’s final policymaker; (3) the final policymaker acted
with deliberate indifference; and (4) the custom or policy was the “moving force” behind the
violation. See Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403–04 (1997); Doe v. Hillsboro
2
The plaintiffs also appear to base their § 1983 claims in part on an alleged violation of Ferren’s
statutory education rights. To the extent such a claim duplicates the plaintiffs’ claims under the Rehabilitation
Act and the ADA, it must be dismissed. See, e.g., Pena v. Bexar County, 726 F. Supp. 2d 675, 688–90 (W.D.
Tex. 2010) (explaining that because the Rehabilitation Act and ADA offer sufficient remedies, § 1983 cannot
be used as an alternative method to enforce the rights guaranteed by those statutes). As explained below,
however, the plaintiffs’ claims under the ADA and §504 of the Rehabilitation Act survive dismissal.
6
Indep. Sch. Dist., 113 F.3d 1412, 1416 (5th Cir. 1997) (en banc). “Municipal liability cannot be
sustained under a theory of respondeat superior. [T]he unconstitutional conduct must be directly
attributable to the municipality through some sort of official action or imprimatur; isolated
unconstitutional actions by municipal employees will almost never trigger liability.” Rivera v. Hous.
Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003) (alteration in original) (citing Brown, 520 U.S.
at 403; Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)) (internal quotation marks
omitted). “Texas law unequivocally delegates to [a school district’s] Board [of Trustees] ‘the
exclusive power and duty to govern and oversee the management of the public schools of the
district.’” Id. (quoting TEX. EDUC. CODE ANN. § 11.151(b)).
The plaintiffs must demonstrate that NCISD’s Board of Trustees adopted an unconstitutional
policy or that it otherwise knew about or acquiesced in a permanent and deeply embedded abusive
and unconstitutional practice. See Piotrowski, 237 F.3d at 578–79. Isolated violations of law by
NCISD’s employees cannot constitute a custom or policy by NCISD’s Board of Trustees. See id.
at 578; see also Pineda v. City of Houston, 291 F.3d 325, 329 (5th Cir. 2002). The plaintiffs must
allege that NCISD’s Board of Trustees adopted a policy that caused H.P.’s injuries and that it
adopted it with deliberate indifference to its known or obvious consequences in violating H.P.’s
federally protected rights. See Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998); Teal v. City
of Houston, 523 F. Supp. 2d 555, 563 (S.D. Tex. 2007). When a plaintiff bases her claim on a
failure to implement or enforce a policy or custom, the facts alleged must support an inference of
deliberate indifference to the plaintiff’s constitutional rights. See Gonzalez v. Ysleta Indep. Sch.
Dist., 996 F.2d 745, 753–54, 755–56 (5th Cir. 1993). To show that the policy allegedly adopted was
the “moving force” behind the constitutional violation, there must be a direct causal link between
the alleged policy and the claimed constitutional injury. Snyder, 142 F.3d at 795; Teal, 523 F. Supp.
7
2d at 563; see also City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985).
The plaintiffs’ complaint, as amended, fails to allege facts that would show deliberate
indifference. The plaintiffs do not allege that NCISD had a policy of permitting student abuse. Nor
do the plaintiffs allege that NCISD lacked policies requiring it to train, supervise, and discipline
employees.
The plaintiffs allege that NCISD failed to enact or implement policies sufficient to prevent
abuse and failed to provide adequate training, supervising, and discipline for employees. A
supervisory defendant “‘must know about the conduct and facilitate it, approve it, condone it, or turn
a blind eye for fear of what they might see. They must in other words act either knowingly or with
deliberate, reckless indifference.’” Gonzalez, 996 F.2d at 761 (quoting Jones v. City of Chicago,
856 F.2d 985, 992–93 (7th Cir. 1988)). The issue is whether the proposed second amended
complaint adequately pleads deliberate indifference, which, in this context, requires NCISD’s Board
of Trustees “authorizing, tolerating, or condoning [physical] abuse of students by teachers.” Foster
v. McLeod Indep. Sch. Dist., 2009 WL 175154, at *5 (E.D. Tex. Jan. 23, 2009) (citing Gonzalez, 996
F.2d at 761).
The plaintiffs argue that NCISD had actual notice that Barnett posed a threat to H.P.’s
constitutional rights and failed to prevent the abuse based on the following allegations:
A request of Ms. Barnet[t]’s employment records revealed that her pre-employment
testing indicated that she believed that power and control are the best measures of
discipline when dealing with students. . . . Despite this obvious warning sign, Ms.
Barnet[t] was hired to be a special education aide in the self-contained special
education classroom that H.P. was assigned to. There is no documentation in Ms.
Barnet[t]’s file that anyone from New Caney ISD counseled or informed Ms.
Barnet[t] that power and control are not the best measures of discipline.
On or about May 17, 2010, a substitute teacher at New Caney Elementary School
documented verbal and physical abuse by Ms. Barnet[t] to students, including H.P.,
in the self-contained special education classroom as well as the denial of water and
8
other basic needs. These allegations were reported to Defendant Leslie Thomas by
New Caney ISD substitute teacher Scott Mattlage. . . . Ms. Barnet[t] was apparently
reprimanded for her heinous actions, but there is no indication in her employment
file that she received any subsequent training or remediation regarding her
interactions with and instruction to students.
(Docket Entry No. 15, ¶¶ 3–4).
Taking these allegations as true and in the light most favorable to the plaintiffs, the
allegations do not adequately plead deliberate indifference. The only information that NCISD had
when it hired Barnett that suggests any questionable attitude toward discipline was an answer to a
“Survey of Knowledge.” Barnett was required to complete the survey during the application
process. One question asked whether the “Teacher Assistant should [ ]ever discipline a child
without the teacher’s permission.” Barnett answered negatively. Another question asked whether
“[p]ower and control are the best measures of discipline.” Barnett answered affirmatively. Another
question asked whether “[o]ne tactic for discipline is to use planned ignoring.” Barnett answered
negatively. (Docket Entry No. 15, Ex. A, Survey of Knowledge). The only answer plaintiffs point
to is the answer to the question about power and control. The plaintiffs do not explain why an
answer indicating that “power and control” are appropriate measures of discipline put NCISD on
notice that Barnett would likely administer abusive discipline, physical or otherwise, to specialeducation students. Nor do the plaintiffs explain why the “Survey of Knowledge” plausibly shows
deliberate indifference when Barnett correctly answered the question asking whether she knew she
could “never discipline a child without the teacher’s permission.” (Id.)
As to the May 17, 2010 incident, the allegations in, and the exhibits attached to, the amended
complaint show that NCISD investigated the incident promptly after it was reported and disciplined
Barnett for her conduct. The conduct that was reported to NCISD and investigated in May 2010
differed significantly than the abuse H.P. allegedly suffered in October 2010. In May, NCISD
9
investigated whether Barnett withheld water from the special-education students and whether she
slapped a ruler on her own hand and asked students if they “wanted the ruler.” (Docket Entry No.
15, Ex. B, NCISD Investigation Report). Barnett was reprimanded and given specific orders to
prevent a recurrence. NCISD issued the following orders: (1) “You are directed to make sure
students are provided ample access to water throughout the school day”; and (2) “Holding a ruler
implies a threat. You are directed to never hold a ruler or any other object that could be construed
as intimidation. Do not engage in any behavior with students that could be construed as
intimidation.” (Id.) The plaintiffs’ allegations and exhibits show that in May 2010, NCISD had a
report of different conduct than in this suit and did not condone the reported conduct. The
allegations as to the May 2010 reported conduct, in combination with the preemployment
questionnaire, do not plead deliberate indifference under the applicable law. See, e.g., Foster, 2009
WL 175154, at *4 (finding no deliberate indifference toward a risk that a teacher would sexually
assault a student when the teacher was interviewed and background-checked before hire, was
instructed not to have intimate personal relationships with any student, and was counseled to seek
guidance on any issues that might arise in his duties as an educator). The orders and reprimand
Barnett received similarly undercut the allegation that “[t]here is no documentation in Ms.
Barnet[t]’s file that anyone from New Caney ISD counseled or informed Ms. Barnett that power and
control are not the best measures of discipline.” (Docket Entry No. 15, ¶ 4).
The plaintiffs’ allegations do not make a plausible claim NCISD was deliberately indifferent
to a risk that Barnett would abusively discipline special-education students. Nor do the allegations
sufficiently claim that NCISD was deliberately indifferent to H.P.’s rights in devising and
implementing policies to train, supervise, and disciplining special-education aides. The plaintiffs’
§ 1983 claim must be dismissed. Because amendment has twice failed to cure this defect, further
10
leave to amend would be futile. The claims are dismissed with prejudice and without leave to
amend.
C.
Claims Under § 504 and the ADA
NCISD initially moved to dismiss these claims on the grounds that the plaintiffs failed to
exhaust administrative remedies and that the plaintiffs failed to state claims under either § 504 or
the ADA. (Docket Entry No. 5, at 12–15). The plaintiffs amended their complaint in response to
these arguments and responded that either they had exhausted administrative remedies or that
exhaustion requirements did not bar their claims. (Docket Entry No. 16, at 8–10). In its reply,
NCISD does not argue that exhaustion continues to present a basis for dismissal. Rather, NCISD
argues that the claims should be dismissed for failure to state a claim under Rule 12(b)(6). (Docket
Entry No. 17, ¶ 4). The exhaustion arguments have been abandoned. The issue is whether the
plaintiffs have failed to state claims for relief.
“Title II of the ADA and § 504 of the Rehabilitation Act are enforceable through an implied
private right of action.” Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011). To prove
a violation under Title II of the ADA, a plaintiff must show that: (1) that he is a qualified individual
within the meaning of the ADA; (2) that he was excluded from participation in or denied the benefits
of services, programs, or activities for which a public entity is responsible, or was otherwise
subjected to discrimination by the public entity; and (3) such exclusion, denial of benefits, or
discrimination was by reason of the plaintiff’s disability. Melton v. Dallas Area Rapid Transit, 391
F.3d 669, 671–72 (5th Cir. 2004). To recover monetary damages, a plaintiff must prove that the
discrimination was intentional. Delano–Pyle v. Victoria County, 302 F.3d 567, 574 (5th Cir. 2002).
Courts use similar liability standards in interpreting claims under the ADA and § 504. See D.A. v.
Houston Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir. 2010) (“Because this court has equated
11
liability standards under § 504 and the ADA, we evaluate D.A.’s claims under the statutes
together.”). “Section 504 has the additional requirement that the entity be a recipient of federal
funds . . . .” I.A. v. Seguin Indep. Sch. Dist., 881 F. Supp. 2d 770, 776 n.3 (W.D. Tex. 2012).3
The complaint as amended alleges that the defendants “significantly impacted [H.P.’s] access
to services and educational modalities she was legally entitled to, thus denying her a Free and
Appropriate Public Education” and that “New Caney ISD failed to develop and devise appropriate
training modalities for staff such as Tracie Barnett and failed to properly supervise staff and educate
them on proper methods of discipline related to H.P.’s Individual Education Plan, significantly
impeding her educational development and causing a deprivation of educational benefits from 2010
forward, thus denying her . . . a Free and Appropriate Public Education.” (Docket Entry No. 15,
¶¶ 23–24). “The actions of Defendants and [their] failure to act following the report of Defendant
Barnet[t]’s actions were discriminatory and based solely on H.P.’s disability.” (Id., ¶ 24). In other
words, there are no allegations to the effect that the alleged “exclusion, denial of benefits, or
discrimination [was] by reason of the plaintiff’s disability,” see Melton, 391 F.3d at 671–72, other
than the failure to act after the May 17 incident.
NCISD argues that the plaintiffs have not alleged that H.P. was denied anything or
discriminated against because of her disability. As discussed above, the “failure to act” following
the May 17 incident does not allege discrimination based on disability, because the plaintiffs’
allegations and exhibits show that NCISD did have policies against abusive treatment of students
and did take corrective measures in response to the acts that were reported. But dismissal is not
proper on the basis argued by NCISD based on the allegations in the pleadings.
3
NCISD argued that the § 504 claim must be dismissed because the plaintiffs failed to allege that
NCISD receives federal funding. (Docket Entry No. 5, at 14). This argument is moot because the amended
complaint alleges that NCISD receives federal funding. (Docket Entry No. 15, ¶ 5).
12
Construing the allegations in the plaintiffs’ favor, the plaintiffs have alleged that:
•
Barnett used the specified excessive physical discipline on H.P.;
•
Barnett used excessive physical discipline to intimidate and discipline H.P. because
of difficulties communicating with H.P. due to her disabilities;
•
the excessive physical discipline amounted to abuse;
•
the mental and emotional consequences of the abuse on H.P. interfered with her
education.
The alleged facts are sufficient to state a claim under § 504 and the ADA. The allegations
state that H.P. qualified as a disabled person under the statutes, that she was denied her education
because of the alleged abuse and its consequences, and that the denial was discriminatory by reason
of her disability. See id. The motion to dismiss these claims is denied.
D.
State-Law Negligence Claims
The plaintiffs have attempted to assert various state-law tort claims, including for negligence
and respondeat superior liability. Under Texas law, NCISD is a governmental unit. See TEX. CIV.
PRAC. & REM. CODE ANN. § 101.001(3)(B). For these tort claims to go forward, NCISD must waive
its sovereign immunity. See, e.g., Hobart v. City of Stafford, 784 F. Supp. 2d 732, 759 (S.D. Tex.
2011). The Texas Torts Claims Act (“TTCA”) provides a limited waiver of immunity for certain
suits against governmental entities. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021; Mission
Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008). The waiver of immunity, as
it applies to school districts, covers only tort claims involving the use or operation of motor vehicles.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.051. The plaintiffs have not shown that NCISD waived
its immunity and they do not allege a theory that would allow them to proceed under the TTCA.
Tort claims against NCISD or against Thomas and Barnett in their official capacities fail as a matter
13
of law.
Additionally, the plaintiffs’ claim that NCISD is responsible for the actions of its employees
or agents fails as a matter of law. Under Texas law, a governmental entity like NCISD is “immune
from liability for the alleged negligence of its agents . . . except to the extent immunity is waived
by the Texas Tort Claims Act.” Pierson v. Hous. Indep. Sch. Dist., 698 S.W.2d 377, 380 (Tex.
App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.). Because the plaintiffs have asserted no
allegations that would invoke TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021 and 101.051 (injury
resulting from the operation of a motor vehicle), all claims based on a respondeat superior theory
must be dismissed.
Finally, under the Texas election of remedies law, “if a suit is filed under [the Texas Tort
Claims Act] against both a governmental unit and any of its employees, the employees shall
immediately be dismissed on the filing of a motion by the governmental unit.” TEX. CIV. PRAC. &
REM. CODE ANN. § 101.106(e). “[A]ll tort theories alleged against a governmental unit . . . are
assumed to be ‘under [this chapter of the Texas Tort Claims Act]’ for purposes of section 101.106.”
Mission, 253 S.W.3d at 658. The plaintiffs have sued both NCISD, the governmental unit, and
Thomas and Barnett, as individuals, asserting negligence-based tort claims. Applying the Texas
election of remedies provision, all state-law tort claims against Thomas and Barnett must be
dismissed.
The plaintiffs’ tort claims are dismissed with prejudice because amendment would be futile
as a matter of law.
E.
Qualified Immunity
NCISD moved to dismiss the claims against the individual defendants in their individual
capacities based on qualified immunity. (Docket Entry No. 5, at 16). The plaintiffs’ second
14
amended complain asserts claims only against Thomas and Barnett. The arguments for dismissing
Franklin and Baecker are moot. NCISD’s reply, however, addressed only the plaintiffs’ qualified
immunity arguments directed to Thomas. (Docket Entry No. 17, ¶ 5). The defendants do not argue
that Barnett is entitled to qualified immunity.
Section 1983 provides a cause of action against an individual who, acting under color of state
law, has deprived a person of a federally protected statutory or constitutional right. Qualified
immunity protects government officials “from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether
qualified immunity applies, courts use the two-part analysis set forth in Saucier v. Katz, 533 U.S.
194 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009). Courts must decide “(1)
whether facts alleged or shown by plaintiff make out the violation of a constitutional right, and (2)
if so, whether that right was clearly established at the time of the defendant's alleged misconduct.”
Pasco v. Knoblauch, 566 F.3d 572, 579 (5th Cir. 2009). “The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.” Lytle v. Bexar County, 560 F.3d 404,
410 (5th Cir. 2009) (quoting Saucier, 533 U.S. at 202).
As the en banc Fifth Circuit recently held:
When considering a defendant’s entitlement to qualified immunity, we must ask
whether the law so clearly and unambiguously prohibited his conduct that “every
‘reasonable official would understand that what he is doing violates [the law].’” To
answer that question in the affirmative, we must be able to point to controlling
authority — or a “robust ‘consensus of persuasive authority’” — that defines the
contours of the right in question with a high degree of particularity.
Morgan v. Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011) (en banc) (alteration in original) (quoting
15
Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2083, 2084 (2011)) (internal footnotes omitted). “Qualified
immunity balances two important interests — the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Id. The doctrine of qualified immunity “gives
government officials breathing room to make reasonable but mistaken judgments, and protects all
but the plainly incompetent or those who knowingly violate the law.” Messerschmidt v. Millender,
132 S. Ct. 1235, 1244 (2012) (internal quotation marks omitted). Plaintiffs have the burden of
overcoming the qualified immunity defense. Bennett v. City of Grand Prairie, 883 F.2d 400, 408
(5th Cir. 1989).
The plaintiffs argue that Thomas is not entitled to qualified immunity because she “knew or
should have known of the established constitutional rights of H.P. and other statutory protections
afforded to her.” (Docket Entry No. 16, at 10–11). The only supporting allegation offered for the
claim of Thomas’s “objectively unreasonable” failure to supervise or discipline Barnett consists of
an allegation that Barnett posed a “clear and obvious threat” to H.P. (Id. at 11). Even taken as true
and in the light most favorable to the plaintiffs, none of the allegations support this conclusion. As
discussed above, the allegations do not show that Thomas or other NCISD employees knew (or
should have known) that Barnett posed a threat of physical violence to H.P. Nor do the plaintiffs
allege facts or cite authority that would support a claim that all reasonable officials in the same
position as Thomas would have (or should have) known that failing to act differently following the
May 17 incident would result in a violation of H.P.’s rights. Thomas is entitled to qualified
immunity. All claims against her in her individual capacity are dismissed with prejudice because
further leave to amend would be futile.
IV.
Conclusion
16
The motion to dismiss is granted in part and denied in part. It is denied as to the § 504 and
ADA claims and as to the § 1983 claim against Barnett in her individual capacity, and otherwise
granted.
SIGNED on May 23, 2013, at Houston, Texas.
______________________________________
Lee H. Rosenthal
United States District Judge
17
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?