Johnston et al v. Humble Independent School District et al

Filing 6

MEMORANDUM OPINION AND ORDER granting in part and denying in part 5 MOTION to Dismiss . (Signed by Judge Sim Lake) Parties notified. (aboyd)

I

I

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MISTI JOHNSTON, Individually
and as next friend for
R.J., a Child,

§
§
§
§
§
§
§
§
§
§
§
§

Plaintiff,
v.

HUMBLE INDEPENDENT SCHOOL
DISTRICT and MICHAEL TROST,
Defendants.

CIVIL ACTION NO. H-13-1423

MEMORANDUM OPINION AND ORDER

Plaintiff, Misti Johnston, individually and as next friend for
R.J.,

a

child,

brings

this

Independent School District

action

(HISD)

against

defendants

and Michael Trost.l

asserts claims against both defendants under 42 U.S.C.

Humble

Plaintiff
§

1983 for

violation of rights protected by the Fourth, Eighth, and Fourteenth
Amendments to the United States Constitution, and for assault and
battery and intentional infliction of emotional distress under the
common law of the State of Texas. 2

Plaintiff also asserts claims

against HISD for negligent hiring,

training,

and supervision of

Trost. 3 Pending before the Court is Defendants Humble Independent
School District and Michael Trost's Motion to Dismiss (Docket Entry
No.5) .

IPlaintiff's Original Complaint and Jury Demand, Docket Entry
No.1.
2Id.

at 3,

3Id. a t

f1
11

~~

12

•

9-11.

\

A.

\

Plaintiff Has Failed to State a Claim Under 42 U.S.C. § 1983

Defendants move for dismissal of plaintiffls complaint under
Federal Rule of Civil Procedure 12 (b) (6)

for failure to state a

claim for which relief may be granted.

Although defendants filed

their

2013 I

motion

to

responded to it.

dismiss

on

June

III

plaintiff

Local Rule 7.3 provides that:

has

not

"Opposed motions

will be submitted to the judge 21 days from filing without notice
from the clerk and without appearance by counsel.
7.3

(2000 1 Amended by General Order 2009-171

S.D. Tex. R.

ff

effective 12/1/09).

Local Rule 7.4 provides:
Failure to respond will be taken as a representation of
no opposition. Responses to motions
A.
B.
C.
D.

Must be filed by the submission day;
Must be written;
Must include or be accompanied by authority; and
Must be accompanied by a separate form order
denying the relief sought.

S . D. Tex. R. 7.4
court

to

plaintiff l s

takes

motion

(2000).

dismiss

Nevertheless

I

as

In accordance with Local Rule 7.3
failure
a

to

respond

representation

the court will

of

to

the
no

1

the

defendants

I

opposition.

analyze the merits of plaintiff

IS

claims under the governing law.

1.

Standard of Review

A motion to dismiss pursuant to Rule 12(b) (6) for failure to
state a claim for which relief may be granted tests the formal
sufficiency of the pleadings and is "appropriate when a defendant
2

I

attacks

the

complaint

122

S.

2001),

Ct.

it

fails

to

Ramming v. United States,

cognizable claim."
(5th Cir.

because

cert.

2665

state

The

court

must

a

legally

281 F.3d 158,

denied sub nom Cloud v.

(2002).

I

161

United States,

accept

the

factual

allegations of the complaint as true, view them in a light most
favorable to the plaintiff, and draw all reasonable inferences in
the plaintiff's favor.

Id.

When a federal court reviews the sufficiency of a
complaint, before the reception of any evidence either by
affidavit or admissions, its task is necessarily a
limited one. The issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled
to offer evidence to support the claims.
Swierkiewicz v. Sorema N.A., 122 S. Ct. 992, 997 (2002).

To avoid

dismissal a plaintiff must allege "enough facts to state a claim to
relief that is plausible on its face."
Twombly,

127

standard"

S.

Ct.

requires

1955,
"more

1974
than

unlawfully-harmed-me accusation."
1937,

1949

(2009).

"Where

a

Bell Atlantic Corp. v.

(2007)
an

This

unadorned,

Ashcroft v.

complaint

"plausibility
the-defendant-

Iqbal,

pleads

facts

129 S. Ct.
that

are

'merely consistent with' a defendant's liability, it 'stops short
of the line between possibility and plausibility of entitlement to
relief. ,"

rd.

(quoting Twombly, 127 S. Ct. at 1966) .

3

I

2.

I

Applicable Law

Section 1983 is not a source of substantive rights but is,
instead,

"a

method

for

Graham v.

conferred."

vindicating
Connor,

federal
S.

109

Ct.

rights

1865,

elsewhere

1870

(1989)

(quoting Baker v. McCollan, 99 S. Ct. 2689, 2694 & n.3 (1979)).
establish a

claim under

§

a

1983

plaintiff must

show

(1)

To
the

deprivation of a right secured by the United States Constitution or
the laws of the United States and

(2)

that the deprivation was

committed by a person or persons acting under color of state law.
See West v. Atkins, 108 S. Ct. 2250, 2254-55 (1988)
v. Taylor, 101 S. Ct. 1908, 1913 (1981)

(citing Parratt

(overruled in part on other

grounds, Daniels v. Williams, 106 S. Ct. 662 (1986)).
inquiry in any

§

violation

which

with

109 S. Ct. at 1870

3.

suit'

1983

[the

is

"'The first

'to isolate the precise

defendant]

is

charged.'"

Graham,

(quoting Baker, 99 S. Ct. at 2692).

Analysis

Plaintiff's

claims

that

the

defendants

violated

rights

guaranteed by the Fourth, Eighth, and Fourteenth Amendments to the
United States Constitution are based on allegations that Trost
touched R.J. inappropriately and made R.J feel "uncomfortable" and
"awkward.,,4

However, plaintiff has neither identified the specific

constitutional

4Id.

at 2 ,

rights

fi
11

8

she

claims

•

4

the

defendants

violated

nor

I

explained why,
legally

if true, the facts alleged in her complaint state

cognizable

claims

for

violations

protected rights against either defendant.
at 1870 ("The first inquiry in any
precise

I

of

constitutionally

See Graham, 109 S. Ct.

1983 suit is 'to isolate the

§

. , violation with which [the defendant] is charged.

Thus the court concludes that the

§

'U ) .

1983 claims that plaintiff

asserts based on rights guaranteed by the Fourth,

Eighth,

and

Fourteenth Amendments to the United States Constitution fail to
state a claim for which relief may be granted.

~

Twombly, 127

S. Ct. at 1974 (to avoid dismissal a plaintiff must allege "enough
facts to state a claim to relief that is plausible on its face U
Iqbal,

129

S.

Ct.

at

1949

(Twombly's

"plausibility

);

standard"

requires "more than an unadorned, the-defendant-unlawfully-harmedme accusation").

Accordingly,

Defendants'

motion to dismiss is

GRANTED as to all claims that plaintiff has asserted against HISD

and Trost under federal law,

and these claims will be dismissed

with prejudice.

B.

The Court Declines to Exercise Supplemental Ju+isdiction Over
Any State Law Claims Plaintiff Has Alleged

Federal courts are courts of limited jurisdiction.

They have

jurisdiction over claims arising from violations of federal law,
including the United States Constitution, claims in which diversity
of the parties is present, and pendent state law claims over which
the court may exercise supplemental

jurisdiction!

5

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...

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Plaintiff's

I

I

allegations that the defendants violated rights guaranteed by the
united States Constitution provided the court
jurisdiction under 28 U.S.C.

1331.

§

federal

question

Since the court has concluded

that the plaintiff's only federal claims are subject to dismissal,
no federal question remains before the court.

Although this fact

alone does not divest the court of jurisdiction, in Carnegie-Mellon
Univ. v. Cohill, 108 S. Ct. 614, 619 n.7 (1988), the Supreme Court
has stated that "in the usual case in which all federal-law claims
are

eliminated

before

trial,

considered under the pendent
economy,

convenience,

the

balance

of

factors

be

judicial

jurisdiction doctrine

fairness,

to

and comity -- will point toward

declining to exercise jurisdiction over the remaining state-law
claims.
state

u

Moreover, the general rule in this circuit is to dismiss

law claims

dismissed.

when

the

federal

claims

they

supplement

are

Parker & Parsley Petroleum Co. v. Dres$er Industries,

972 F.2d 580,

585

(5th Cir. 1992)

F.2d 200, 204 (5th Cir. 1989)).

(citing Wong v. Stripling, 881

See United Mine Workers v. Gibbs,

86 S. Ct. 1130, 1139 (1966)

(ordinarily, when the federal claims

are dismissed before trial

the pendent

dismissed as well) .

state claims

should be

The dismissal of the supplemental state law

claims should expressly be without prejudice so that the plaintiff
may refile her claims in the appropriate state court.
Parkwood Hosp.,

180 F.3d 234,

246

(5th Cir. 1999).

Bass v.

Because the

court has concluded that the federal claims asserted in this action

6

are subject to dismissal for failure to state a c aim for which
relief may be granted, and because this action is still at an early
stage,

the court declines to exercise supplementa

jurisdiction

over any claims that the plaintiff has alleged

r state law.

Accordingly,

ED as to all

Defendants'

motion to dismiss is

claims that plaintiff has asserted against

Trost under
witho~

state law, but these claims will be dismissed

being reasserted in a state court of appropriate
C.

j~

prejudice to
isdiction.

Conclusions

For the reasons stated above, Defendants
School District and Michael Trost's Motion to

Hu~

Dismi~s

e Independent
(Docket Entry

No.5) is GRANTED in part and DENIED in part.
SIGNED at Houston, Texas, on this 1st day of

UNITED

Agust,

2013.

JUDGE

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