Turner v. Houston Independent School District

Filing 12

MEMORANDUM AND ORDER granting 7 Motion to Dismiss. Case terminated on 7/3/2013.(Signed by Judge Nancy F. Atlas) Parties notified.(TDR)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JANICE TURNER, Individually and
As Guardian of Ebonie King,
Plaintiffs,
v.
HOUSTON INDEPENDENT
SCHOOL DISTRICT,
Defendant.

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CIVIL ACTION NO. H-13-0867

MEMORANDUM AND ORDER
This case is before the Court on the Motion to Dismiss [Doc. # 7] filed by
Defendant Houston Independent School District (“HISD”), to which Plaintiff Janice
Turner filed a Response [Doc. # 10], and HISD filed a Reply [Doc. # 11]. Having
reviewed the full record and applicable legal authorities, the Court grants the Motion
to Dismiss.
I.

BACKGROUND
Ebonie King is a five-year-old with cerebral palsy who attends HISD. On

September 11, 2012, she was on an HISD school bus when she was assaulted by
another student.

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Janice Turner, Ebonie’s guardian, filed this lawsuit in Texas state court,
asserting claims on her own behalf and on behalf of Ebonie. In her Second Amended
Complaint [Doc. # 1-2], she asserts state law claims of negligence, negligent hiring,
and negligent misrepresentation. Turner asserts federal claims under 42 U.S.C.
§ 1983, the Americans With Disabilities Act (“ADA”), and the Rehabilitation Act.
HISD filed a Motion to Dismiss, asserting that the state law claims are barred
by sovereign immunity, and that Plaintiff has failed to allege facts supporting the
federal claims. The Motion has been fully briefed and is ripe for decision.
II.

STANDARD FOR MOTION TO DISMISS
When considering a motion to dismiss, the complaint must be liberally

construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken
as true. Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009).
When there are well-pleaded factual allegations, a court should presume they are true,
even if doubtful, and then determine whether they plausibly give rise to an entitlement
to relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Although a motion to dismiss
under Rule 12(b)(6) of the Federal Rules of Civil Procedure is viewed with disfavor
and is rarely granted, Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (citing
Harrington, 563 F.3d at 147), a complaint must contain sufficient factual allegations,
as opposed to legal conclusions, to state a claim for relief that is “plausible on its

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face.” See Iqbal, 556 U.S. at 678; Patrick v. Wal-Mart, Inc., 681 F.3d 614, 617 (5th
Cir. 2012). Additionally, regardless of how well-pleaded the factual allegations may
be, they must demonstrate that the plaintiff is entitled to relief under a valid legal
theory. See Neitzke v. Williams, 490 U.S. 319, 327 (1989); McCormick v. Stalder, 105
F.3d 1059, 1061 (5th Cir. 1997).
III.

STATE LAW CLAIMS
HISD is a governmental unit immune from liability unless that immunity has

been waived by the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE
§§ 101.001(2)(B), 101.025, 101.051. The Texas Tort Claims Act provides in pertinent
part:
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately
caused by the wrongful act or omission or the negligence of an
employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises
from the operation or use of a motor-driven vehicle or motor-driven
equipment; and
(B) the employee would be personally liable to the
claimant according to Texas law . . ..
TEX. CIV. PRAC. & REM. CODE § 101.021. The Texas Supreme Court has held that
sovereign immunity is not waived for an injury occurring on a school bus where the
injury “does not arise out of the use or operation of the bus, and the bus is only the
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setting for the injury . . ..” See LeLeaux v. Hamshire-Fannett Indep. Sch. Dist.,
835 S.W.2d 49, 52 (Tex. 1992) (citing Hopkins v. Spring Indep. Sch. Dist., 736
S.W.2d 617, 619 (Tex. 1987) (school district was not liable for failing to provide
adequate medical care to a student with cerebral palsy who suffered convulsions on
a school bus); Estate of Garza v. McAllen Indep. Sch. Dist., 613 S.W.2d 526, 528
(Tex. Civ. App. – Beaumont 1981, writ ref'd n.r.e.) (school district was not liable
when one student stabbed another student on a school bus)). The plaintiff “must
allege that the bus driver’s operation of the bus actually caused [her] injury.”
Montoya v. Houston Indep. Sch. Dist., 177 S.W.3d 332, 337 (Tex. App. – Houston
[1st Dist.] 2005, no pet.). Allegations regarding the “duty to supervise the bus
passengers . . . does not concern the actual operation or use of the bus.” Id.
Ebonie’s injury did not “arise out of” the operation of the school bus. Instead,
the school bus was “only the setting for the injury.” As a result, the Texas Tort
Claims Act does not waive HISD’s immunity, and the Motion to Dismiss is granted
as to the state law claims.
III.

FEDERAL CLAIMS
Plaintiff alleges that HISD violated her constitutional rights to Equal Protection

and Due Process. Plaintiff alleges also that HISD violated her statutory rights under
the ADA and the Rehabilitation Act.

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A.

Due Process Claim

Plaintiff alleges that HISD violated Ebonie’s Due Process rights by failing “to
properly supervise and monitor the conduct of students traveling on the bus with
Ebonie King knowing that Plaintiff Ebonie King was incapable of protecting
herself . . ..” See Second Amended Complaint, ¶¶ 47-48. “As a general matter . . . a
state’s failure to protect an individual against private violence simply does not
constitute a violation of due process.” DeShaney v. Winnebago County Dep't of Soc.
Servs., 489 U.S. 189, 197 (1989); Doe v. Covington Cnty. Sch. Bd., 675 F.3d 849, 855
(5th Cir. 2012) (en banc).
The United States Supreme Court in DeShaney recognized a “special
relationship” exception, under which a state may be required to protect an individual
from private harm “when the State takes a person into custody and holds him there
against his will.” DeShaney, 489 U.S. at 199-200. The Fifth Circuit recognizes the
“special relationship” exception in three scenarios: (1) incarceration; (2) involuntary
institutionalization; and (3) the placement of children in foster care. See Griffith v.
Johnston, 899 F.2d 1427, 1439 (5th Cir. 1990). The en banc Fifth Circuit in
Covington noted that the DeShaney special relationship exception has not been
extended “beyond these three situations, and [the Fifth Circuit has] explicitly held that
the state does not create a special relationship with children attending public school.”

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Covington, 675 F.3d at 856 (emphasis in original); see also Estate of Brown v.
Cypress Fairbanks Indep. Sch. Dist., 863 F. Supp. 2d 632, 635-36 (S.D. Tex. 2012)
(Ellison, J.). “Without a special relationship, a public school has no constitutional
duty to ensure that its students are safe from private violence.” Covington, 675 F.3d
at 858 (emphasis in original).
Plaintiff argues that there exists a special relationship in this case because of her
disability. The Fifth Circuit has not extended the special relationship exception to
public school students, even where the student is disabled. See Walton v. Alexander,
44 F.3d 1297, 1305 (5th Cir. 1995) (en banc). In Walton, the plaintiff attended a
residential public school for the deaf, and was sexually assaulted by a fellow student.
The Fifth Circuit held that there was no special relationship. See id.
Plaintiff argues also that a special relationship exists in this case because Texas
has compulsory school attendance laws that require students to attend school. This
argument has also been rejected by the Fifth Circuit. See Doe v. Hillsboro Indep. Sch.
Dist., 113 F.3d 1412, 1415 (5th Cir. 1997) (en banc).
Based on the en banc decisions of the Fifth Circuit in Walton, Hillsboro, and
Covington, the Court concludes that Plaintiff has failed to allege a constitutional due
process violation.

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B.

Discrimination Claims

Plaintiff alleges also that HISD violated her Equal Protection “right to be free
from oppression, intimidation, [and] discrimination. . ..” Id., ¶ 48. Basically, the
Equal Protection clause of the Fourteenth Amendment “requires that similarly-situated
persons be treated alike.” Newman Marchive P’ship, Inc. v. Hightower, 349 F. App’x
963, 965 (5th Cir. Oct. 22, 2009) (citing City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432 (1985)). “To succeed on an equal protection claim, the plaintiff ‘must prove
purposeful discrimination resulting in a discriminatory effect among persons similarly
situated.’”

Lamb v. Edwards, 48 F.3d 530 (5th Cir. Feb. 8, 1995) (quoting

Muhammad v. Lynaugh, 966 F.2d 901, 903 (5th Cir. 1992)).
Plaintiff also asserts claims of disability discrimination under the ADA and the
Rehabilitation Act. The ADA and the Rehabilitation Act prohibit public entities from
discriminating against an individual based on his disability. The plaintiff must allege
and prove that he was excluded from or denied benefits or services based on his
disability. See 42 U.S.C. § 12132; 29 U.S.C. § 794(a); see also J.D. v. Georgetown
Indep. Sch. Dist., 2011 WL 2971284, *10 (W.D. Tex. July 21, 2011); Hooker v.
Dallas Indep. Sch. Dist., 2010 WL 4025776, *5 (N.D. Tex. Sept. 13, 2010).
Plaintiff does not allege discrimination on the basis of her disability. She does
not identify any non-disabled student who was treated differently. Similarly, Plaintiff

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does not allege that she was excluded from or denied benefits because of her
disability. She admits that HISD assigned an aide to accompany Ebonie on the school
bus, but alleges that the aide failed to ensure Ebonie’s safety. Plaintiff has failed to
state a claim for relief based on discrimination under the Equal Protection Clause, the
ADA and/or Rehabilitation Act, and these discrimination claims are dismissed.1
IV.

CONCLUSION AND ORDER
Based on the foregoing, it is hereby
ORDERED that Defendant HISD’s Motion to Dismiss [Doc. # 7] is

GRANTED and this case is DISMISSED. The Court will issue a separate final
order.
SIGNED at Houston, Texas this 3rd day of July, 2013.

1

Generally, the Court allows a plaintiff an opportunity to replead to cure pleading
deficiencies. In this case, however, the current pleading is a Second Amended
Complaint. As a result, the Court concludes that if Plaintiff were able to cure the
pleading deficiencies, she would have done so.

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