King-White et al v. Humble Independent School District et al
Filing
35
MEMORANDUM OPINION AND ORDER granting 16 MOTION to Dismiss 1 Complaint, granting 17 MOTION to Dismiss 1 Complaint, granting 34 MOTION for Leave to File Surreply to Defendants' Motions to Dismiss, denying 24 , 25 Requests f or Leave to Amend. All claims asserted by Plaintiffs against Defendants Juan Melendez, Alicia Narcisse, Charles Ned, Guy Sconzo, Craig Stowers, Humble Independent School District and Tammy McHale are dismissed with prejudice. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
A.W. and HER MOTHER
MARY KING-WHITE,
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
Plaintiffs,
v.
HUMBLE INDEPENDENT SCHOOL
DISTRICT, AMANDA MICHELLE
FEENSTRA, GUY SCONZO, CHARLES
NED, JUAN MELENDEZ, TAMMY
MCHALE, CRAIG STOWERS, and
ALICIA NARCISSE,
Defendants.
CIVIL ACTION NO. H-13-3551
MEMORANDUM OPINION AND ORDER
Plaintiffs, A.W. and her mother, Mary King-White, bring this
action against defendants, the Humble Independent School District
("HISD"),
Amanda
Michelle
Feenstra
("Feenstra"),
Guy
Sconzo
("Sconzo" ), Charles Ned ("Ned"), Juan Melendez ("Melendez"), Tammy
McHale ("McHale"), Craig Stowers ("Stowers"), and Alicia Narcisse
("Narcisse"),
for violation of
civil
rights
United States Constitution under 42 U.S.C.
Title
IX
of
the
Education
Act
of
1972,
§§
guaranteed by the
1983 and 1988, and
20
U.S.C.
§
1681.
Plaintiffs have also asserted tort claims under the Texas Civil
Practice and Remedies Code and the common law of the State of Texas
for sexual assault and battery, negligence and gross negligence,
bystander
recovery,
and
infliction
of
emotional
distress.
Plaintiffs seek compensatory and exemplary damages, pre- and postjudgment
interest,
costs of
relief available at
court,
attorney's
fees,
and other
law and in equity to which they might be
entitled.
Pending
before
the
court
are
the
Motion
to
Dismiss
of
Defendant Humble Independent School District (Docket Entry No. 16)
i
the Motion to Dismiss of Defendants Guy Sconzo, Charles Ned, Juan
Melendez, Tammy McHale, Craig Stowers, and Alicia Narcisse (Docket
Entry No.
17)
i
Plaintiffs' Motion for Leave to File Surreply to
Defendants' Replies to Motions to Dismiss
(Docket Entry No. 34)
i
and plaintiffs' requests for leave to amend asserted in Plaintiffs'
Response to Humble Independent School District's Motion to Dismiss
and Brief
in Support
(Docket Entry No.
24)
and in Plaintiffs'
Response to Motion to Dismiss of Defendants Guy Sconzo,
Ned,
Juan
Melendez,
Tammy
McHale,
Craig
Stowers,
Narcisse and Brief in Support
(Docket Entry No.
reasons
pending
set
plaintiffs'
forth
below,
motion
to
the
file
surreply
25)
motions
will
and
to
be
Charles
Alicia
For the
dismiss
granted,
and
and
plaintiffs' motions for leave to amend will be denied.
I.
Standard of Review
The individual defendants seek dismissal of all the claims
asserted
against
12 (b) (6)
for failure to state a claim for which relief may be
granted.
them
under
Federal
Rule
HISD seeks dismissal of plaintiffs'
-2-
of
Civil
Procedure
federal law claims
asserted under Rule 12 (b) (6),
and seeks dismissal of plaintiffs'
state law claims under Rule 12 (b) (1)
for lack of subject matter
jurisdiction.
A.
Rule 12 (b) (6) Standard
Under Rule
8
of
the
Federal
Rules
of
Civil
Procedure,
a
pleading must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief."
P. 8 (a) (2).
Fed.
R.
Civ.
A Rule 12 (b) (6) motion tests the formal sufficiency of
the pleadings and is
"appropriate when a
defendant attacks the
complaint because it fails to state a legally cognizable claim."
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert.
denied sub nom Cloud v. United States, 122 S. Ct. 2665 (2002).
The
court must 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.
To defeat a
motion to dismiss pursuant to Rule 12(b) (6), a plaintiff must plead
"enough facts to state a claim to relief that is plausible on its
face."
Bell Atlantic Corp.
(2007).
"A claim has facial plausibility when the plaintiff pleads
factual
content
that
v.
allows
Twombly,
the
court
127 S.
to
Ct.
draw
1955,
the
1974
reasonable
inference that the defendant is liable for the misconduct alleged."
Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949
127 S. Ct. at 1965).
'probability
(2009)
(citing Twombly,
"The plausibility standard is not akin to a
requirement,'
but
it
asks
for
more
possibility that a defendant has acted unlawfully."
-3-
than
Id.
a
sheer
(quoting
TwomblYt 127 S. Ct. at 1965).
are
"Where a complaint pleads facts that
'merely consistent with t a defendantts liabilitYt
short
of
the
line
between
entitlement to relief.
1966).
possibility
rd.
til
and
it
'stops
plausibility
(quoting TwomblYt
127 S.
Ct.
of
at
Moreover t courts do not accept as true legal conclusions.
"[R]ecitals of the elements of a cause of action t supported by mere
conclusory statements t do not suffice.
B.
rd. at 1950.
1I
Rule 12(b) (1) Standard
Rule 12(b) (1) challenges to subject matter jurisdiction come
in
two
forms:
Paterson v.
"facial
Weinberger t
ll
attacks
and
"factual
644 F.2d 521 t
523
ll
attacks.
(5th Cir.
1981).
A
facial attack consists of a Rule 12(b) (1) motion unaccompanied by
supporting evidence that challenges the courtts jurisdiction based
solely on the pleadings.
rd.
A factual attack challenges the
existence of subject matter jurisdiction in fact -- irrespective of
the
pleadings
and
matters
outside
testimony and affidavits t are considered.
the
pleadings
rd.
t
such
as
Because HrSD has
not submitted evidence in support of its Rule 12(b) (1) motion to
dismiss t the motion is a facial attack on plaintiffs t pleadings t
and
the
courtts
review
is
limited
to
whether
the
complaint
Plaintiff Mary King-White is the mother of A. W.
who was a
sufficiently alleges jurisdiction.
II.
Plaintiffs' Factual Allegations
minor during most of the events that give rise to this action.
-4-
Plaintiffs allege that between 2009 and 2011 while A.W.
student
at
multiple
Humble
occasions
Feenstra.
High
by
School,
her
A. W.
was
same-sex
was a
sexually molested on
dance
teacher,
defendant
Plaintiffs allege that the abuse began in the spring of
2009 when A.W. was 16 years old, and continued until 2011 when A.W.
graduated from Humble High School.
Plaintiffs allege that when the
abuse began Feenstra instructed A.W.
remained
quiet.
Plaintiffs
allege
to remain quiet,
that
while
the
and A.W.
abuse
was
occurring, A.W.'s grades changed, A.W. withdrew from her classmates
and dance teammates, and that with King-White's consent, A.W. went
to live in Feenstra's home. Plaintiffs also allege that Feenstra
spent excessive amounts of time with A.W. behind closed doors, and
that Feenstra took A.W. on personal trips during the school day and
on out-of-town trips during which she and A.W. would share a room
and a bed.
Plaintiffs
allege
that
the
defendant
"School
Officials"
observed these signs of sexual abuse but did nothing.
Plaintiffs
allege that after A.W. graduated from Humble High School Feenstra
called A.W. on the phone and stalked A.W.
former dance
After
the
Eventually A.W. told a
instructor about what had happened with Feenstra.
dance
instructor
reported
authorities, Feenstra was arrested.
A.W.'s
story
to
school
On October 13, 2013, Feenstra
pleaded guilty to an improper relationship with a student and was
sentenced to 10 years deferred adjudication and probation. 1
"
lPlaintiffs' Original Complaint, Docket Entry No. I, pp. 1-15
1-82, esp. " 2, 8, 19, 29, 41, 43, 46, 50, 55, 57-62, 79-82.
-5-
III.
Analysis
Plaintiffs assert that defendants'
actions make them liable
for violations of Title IX of the Education Act of 1972, violations
of constitutional rights actionable under 42
u.s.c.
§
1983,
and
violations of Texas law governing the duty to train, supervise, and
discipline subordinates, sexual assault and battery, negligence and
gross negligence, bystander recovery, and intentional infliction of
emotional distress. 2
A.
Count 1:
Title IX Claims Are Subject to Dismissal
"Count 1 of Plaintiffs' Complaint asserts a claim pursuant to
Title
IX
based
upon
sexual
harassment,
rape,
and
abuse. ,,3
Defendants argue that plaintiffs' Title IX claims are subject to
dismissal because (1) the Title IX claims that King-White asserts
on her own behalf are not actionable,
asserted against
(3)
the
individual
(2)
defendants
the Title
are
not
IX claims
actionable,
the Title IX claims based on race discrimination and failure to
adopt policies are not actionable,
time-barred,
and
(4)
plaintiffs'
(4) the Title IX claims are all
factual
allegations
are
not
sufficient to state a Title IX claim against HISD.
2Id. at 16-36
~~ 83-176.
3Plaintiffs' Response to Humble Independent School District's
Motion to Dismiss and Brief in Support ("Plaintiffs' Response to
HISD's Motion to Dismiss"), Docket Entry No. 24, p. 7.
See also
Plaintiffs' Original Complaint, Docket Entry No. I, pp. 16-19
~~ 83-95.
-6-
1.
Applicable Law
Title IX of the Education Act Amendments of 1972 provides that
"[n]o person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be
subj ected to discrimination under any education program or activity
receiving Federal financial assistance."
20 U.S.C.
§
1681(a).
The
Supreme Court has held that Title IX is enforceable through an
implied right of private action against federal funding recipients,
Cannon v. University of Chicago, 99 S. Ct. 1946, 1968 (1979), and
that monetary damages are available in such actions.
Franklin v.
Gwinnett County Public Schools, 112 S. Ct. 1028, 1038 (1992).
Court's holding in Franklin established that a
recipient can be held 1 iable
for damages
federal
in cases
The
funding
involving a
teacher's sexual harassment of a student, but did not define the
contours of Title IX liability.
The Court explained that
"when a supervisor sexually harasses a subordinate
because of the subordinate's sex,
that supervisor
'discriminate[s]' on the basis of sex." Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S. Ct. 2399,
2404, 91 L.Ed. 49 (1986).
We believe the same rule
should apply when a teacher sexually harasses and abuses
a student.
Congress surely did not intend for federal
moneys to be expended to support the intentional actions
it sought by statute to proscribe.
Id. at 1037.
(5th
Cir.
See Rosa H. v. San Elizario I.S.D., 106 F.3d 648, 653
1997)
(acknowledging
that
under
Title
IX
"[m]inor
students who have been subj ected to a
sexual relationship with
their
of
teachers
have
a
private
-7-
cause
action
for
monetary
damages"); Doe ex reI. Doe v. Dallas I.S.D., 153 F.3d 211, 219 (5th
Cir.
1998)
(recognizing
that
same-sex
sexual
harassment
is
actionable under Title IX)
The Supreme Court addressed the contours of Title IX liability
in Gebser v. Lago Vista I.S.D., 118 S. Ct. 1989 (1998).
the
Court
districts
affirmed
are not
the
Fifth
liable
Circuit's
in tort
for
holding
In Gebser
that
"school
teacher-student
[sexual]
harassment under Title IX unless an employee who has been invested
by the
school board with supervisory power over the offending
employee actually knew of the abuse,
had the power to end the
abuse,
at
and
failed
to
Lago Vista I.S.D.,
do
so."
Id.
106 F.3d 1223,
Rosa H., 106 F.3d at 655)).
1226
1994
(quoting
(5th Cir.
1997)
Doe
v.
(quoting
The Gebser petitioners argued to the
Supreme Court that "in light of Franklin's comparison of teacherstudent
harassment
with
supervisor-employee
harassment,
principles should likewise apply in Title IX actions."
1995.
Citing a
Education
(DOE),
"Policy Guidance"
the
petitioners
agency
Id.
at
issued by the Department of
argued
that
school
districts
should be held
liable in damages under Title IX where a teacher is
"aided in carrying out the sexual harassment of students
by his
or
her position of
authority with the
institution," irrespective of whether school district
officials had any knowledge of the harassment and
irrespective of their response upon becoming aware.
Id.
The petitioners also argued that "a school district should at
a minimum be liable for damages based on a theory of constructive
-8-
notice, i.e., where the district knew or 'should have known' about
harassment but failed to uncover and eliminate it."
Id.
Asserting that" [b] oth standards [advanced by the petitioners]
would allow a damages recovery in a broader range of situations
than the rule adopted by the Court of Appeals,
which hinges on
actual knowledge by a school official with authority to end the
harassment,"
Gebser,
118
S.
Ct.
at
1995,
the
Supreme
Court
acknowledged that "[wlhether educational institutions can be said
to
violate
Title
IX
based
solely on principles
of
respondea t
superior or constructive notice had not been resolved by Franklin's
ci tation
of
Meri tor
[Savings]. "
Then,
explaining
that
Franklin's reference to Meritor Savings "was made with regard to
the
general
proposition
that
sexual
harassment
can
constitute
discrimination on the basis of sex under Title IX," was not in
dispute, the Court rejected the petitioners' reliance on principles
of respondeat superior and constructive notice because,
Meritor's rationale for concluding that agency principles
guide the liability inquiry under Title VII rests on an
aspect of that statute not found in Title IX: Title VII,
in
which
the
prohibition
against
employment
discrimination runs against "an employer," 42 U. S. C.
§ 2000e-2(a), explicitly defines "employer" to include
"any agent," § 2000e (b)
Title IX contains no
comparable reference to an educational institution's
"agents," and so does not expressly call for application
of agency principles.
Id. at 1996.
Reasoning that "it would 'frustrate the purposes' of
Title IX to permit a damages recovery against a school district for
a teacher's sexual harassment of a student based on principles of
-9-
respondeat superior or constructive notice,
notice to a
school district official,
emphasized its
/I
funds
liable for a monetary award.'
/I
at
1997,
the Court
with ensuring that
"central concern
receiving entity of federal
id.
i.e., without actual
[has]
Id.
\ the
notice that it will be
at 1998.
Accordingly,
the
Gebser Court held that
in cases like this one that do not involve official
policy of the recipient entity, we hold that a damages
remedy will not lie under Title IX unless an official who
at a minimum has authority to address the alleged
discrimination and to institute corrective measures on
the
recipient's
behalf
has
actual
knowledge
of
discrimination in the recipient's programs and fails
adequately to respond.
We think, moreover, that the response must amount to
deliberate
indifference
to
discrimination.
The
administrati ve enforcement scheme presupposes that an
official who is advised of a Title IX violation refuses
to take action to bring the recipient into compliance.
The premise, in other words, is an official decision by
the recipient not to remedy the violation.
That
framework finds a rough parallel in the standard of
deliberate indifference. Under a lower standard, there
would be a risk that the recipient would be liable in
damages not for its own official decision but instead for
its
employees'
independent
actions.
Comparable
considerations led to our adoption of a deliberate
indifference standard for claims under § 1983 alleging
that a municipality's actions in failing to prevent a
deprivation of federal rights was the cause of the
violation.
Id. at 1999.
Applying
framework to
the
the
actual
facts
knowledge/deliberate
before it,
outcome as "fairly straightforward./1
The Court explained that
-10-
indifference
the Court characterized the
Gebser, 118 S. Ct. at 1999.
[t]he only official alleged to have had information about
[the teacherls] misconduct is the high school principal.
That information l however consisted of a complaint from
parents of other students charging only that [the
teacher] had made inappropriate comments during class l
which was plainly insufficient to alert the principal to
the possibility that [the teacher] was involved in a
sexual relationship with a student.
Lago Vista l
moreover
terminated [the teacher s] employment upon
learning of his relationship with [the complainant].
Justice STEVENS points out in his dissenting opinion that
[the teacher] of course had knowledge of his own actions
. . . Where a school district/s liability rests on actual
notice principles l
however
the knowledge of the
wrongdoer himself is not pertinent to the analysis.
I
I
I
I
Id.
at
Gebser
Thus
2000.
l
following the Supreme Court s
I
plaintiffs
I
seeking
damages
for
a
decision in
teacherls
sexual
harassment of a student must show that (1) an employee of a federal
funding recipient with supervisory power over the alleged harasser
(2) had actual knowledge of the harassment and (3) responded with
deliberate indifference.
Gebser
l
118 S. Ct. at 1999.
A year later in Davis Next Friend LaShonda D. v. Monroe County
Board of Education l 119 S. Ct. 1661 (1999)
that
a
funding
recipient
directly may not
indifference
be
that
does
liable
subjects
for
its
student
not
damages
to
the Supreme Court held
I
engage
[students]
vulnerable l to it.
to undergo
H
I
harassment
its
unless
deliberate
The
harassment.
explained that "the deliberate indifference must
'cause
in
I
Court
at a minimum l
harassment or 'make them liable or
Davis l 119 S. Ct. at 1672.
Thus
I
it is not
the harassment itself that constitutes the Title IX violation butl
instead, the deliberate failure to curtail known harassment.
Moreover I "the harassment must occur 'under l
-11-
Id.
'the operations ofl a
funding recipient, meaning that "the harassment must take place in
a context subject to the school district's control. u
The
Court explained that
[t]hese factors combine to limit a recipient's damages
liability
to
circumstances
wherein
the
recipient
exercises substantial control over both the harasser and
the context in which the known harassment occurs. Only
then can the recipient be said to "exposeu its students
to harassment or "causeU them to undergo it "under u the
recipient's programs.
2.
Application of the Law to the Alleged Facts
(a)
King-White's Title IX Claims Are Not Actionable
Asserting that "Mary King-White, plaintiff's mother, appears
to seek damages for a violation of Title IX,u4 defendants argue
that "King- Whi te lacks standing to pursue any individual claims
under Title IX.uS
Citing cases from the Third Circuit, plaintiffs
respond that "[t]he ability to pursue a claim for past and future
medical expenses incurred or to be incurred by parents in the care
of
their
minor
child
is
well-settled
law.u6
Plaintiffs
also
respond that "Mary King-White would have standing, if necessary as
next friend to assert claims on A.W.'s behalf.u7
4Motion to Dismiss of Defendant Humble Independent School
District ("HISD's Motion to Dismiss U), Docket Entry No. 16, p. 4.
SId.
6Plaintiffs' Response
Entry No. 24, p. 13.
to HISD's
7Id. at 13-14.
-12-
Motion to Dismiss,
Docket
Plaintiffs'
individual
claims
argument
under
that
Title
King-White
IX
is
is
able
foreclosed
by
to
assert
the
Fifth
Circuit's holding in Rowinsky v. Bryan I.S.D., 80 F.3d 1006, 1010
n.4
(5th Cir.), cert. denied, 117 S. Ct. 165 (1996), that
nothing in the statutory language provides [a parent]
with a personal claim under title IX. Even assuming that
title IX protects persons other than students and
employees, [the parent] has failed [to] assert that she
was excluded from participation, denied the benefits of,
or subjected to discrimination under any education
program or acti vi ty.
Absent such a claim, the plain
language of title IX does not support a cause of action
by [the parent]
King-White's claims are therefore foreclosed because plaintiffs
fail to allege that King-White sought medical services or incurred
medical expenses for A.W. while she was a minor arising from the
incidents at issue in this case.
claims as next friend of A.W.
plaintiffs'
Nor is King-White able to assert
because the facts alleged in the
complaint show that A.W.
action was filed.
was not a minor when this
Plaintiffs allege that when the abuse began in
the spring of 2009, A.W. was 16 years old.
Therefore, A.W. must
have reached the age of majority in the spring of 2011, and could
not have been a minor when this action was filed over two years
later on December 4, 2013.
Accordingly, the court concludes that
any Title IX claims that King-White has asserted or attempted to
assert individually on her own behalf are not actionable under the
alleged facts.
-13-
(b)
Title IX Claims Asserted Against
Defendants Are Not Actionable
the
Individual
Citing Fitzgerald v. Barnstable School Committee, 129 S. Ct.
788 (2009), the individual defendants argue that they are entitled
to dismissal of the Title IX claims asserted against them because
claims based on Title IX are not cognizable against individual
school
employees.
The
individual
defendants
explain
that
" [b) ecause individual school employees do not receive federal grant
money,
a
plaintiff
defendants
cannot
under Title
state
IX."a
a
claim
against
In Fitzgerald the
individual
Supreme
Court
acknowledged that Title IX applies to "institutions and programs
that
receive
[Title IX]
federal
funds,
20
at 796.
1681(a),
§
but
has consistently been interpreted as not authorizing
suit against school officials,
Id.
U.S.C.
teachers, and other individuals."
See also Chestang v. Alcorn State University,
F. Supp. 2d 772, 778 (S.D. Miss. 2011)
820
("Title IX permits actions
only against 'programs or activities that receive federal financial
assistance'
dispute
and not against
defendants'
individuals.").
contention
that
Title
Plaintiffs do not
IX
claims
asserted
against individuals are not actionable.
Therefore, the individual
defendants
of
are
entitled
to
dismissal
the
Title
IX
claims
asserted against them in this action.
aMotion to Dismiss of Defendants Guy Sconzo, Charles Ned, Juan
Melendez,
Tammy McHale,
Craig Stowers,
and Alicia Narcisse
("Individual Defendants' Motion to Dismiss"), Docket Entry No. 17,
pp. 3 -4.
-14-
(c)
Title IX Claims Based on Race Discrimination and
Failure to Adopt Policies Are Not Actionable
Asserting that "A. W. was an African-American female student at
Humble High School and, as such, a member of two protected classes
under Title
IX,,,9
plaintiffs
claim that A.W.
was
subjected to
"offensive sexual harassment and sexual abuse, as well as racial
and gender discrimination" in violation of Title IX.lo
Plaintiffs'
race discrimination claim is not actionable under Title IX because
Title IX does not prohibit race discrimination.
See Sanches v.
Carrollton-Farmers Branch I.S.D., 647 F.3d 156,166 (5th Cir. 2011)
("harassment 'on the basis of sex is the sine qua non of a Title IX
sexual harassment case''').
Plaintiffs allege that in light of the known circumstances
HISD acted unreasonably by "fail [ing] to establish sexual abuse and
harassment policy in accordance with the Texas Education Code,
Texas Administrative Code, or Texas Family Code," and by "fail [ing]
to
adopt
and
implement
maltreatment
of
improvement
plan
policy
children,
under
to
addressing
be
Section
included
11.252
and
handbook provided to students and parents."ll
sexual
in
any
abuse
the
and
district
informational
Citing Gebser, 118
S. Ct. at 2000, HISD argues that "[t]he claim that HISD failed to
9Plaintiffs' Original Complaint, Docket Entry No. I,
IOId.
~
88.
llId.
~
94(f)-(g)
-15-
~
85.
adopt policies is not actionable. ,,12
In Gebser the Supreme Court
rejected the petitioners' attempt to ground liability on the school
district's failure to promulgate and publicize an effective policy
and grievance procedure for sexual harassment claims as required by
the Department of Education's regulations.
The Court explained:
Lago Vista's alleged failure to comply with the
regulations.
. does not establish the requisite actual
notice and deliberate indifference.
And in any event,
the failure to promulgate a grievance procedure does not
itself constitute "discrimination" under Title IX.
118 S.
Ct. at 2000.
Plaintiffs' attempt in this case to ground
their Title IX claims on HISD's failure to insure that officials at
Humble High School adopted and/or implemented policies aimed at
preventing sexual abuse of students is similarly insufficient to
state
a
claim under Title
IX because
such
failure
is
neither
actionable under Title IX nor capable of proving actual knowledge
of abuse required to hold a school district liable under Title IX.
In addition to damages, plaintiffs ask "[t]hat Humble ISD be
required to
recognize
initiate policies and training to enable staff to
and
interaction,
assaults."U
claim
for
attempting
promptly
stop
investigate
harassment i
and
improper
enforce
teacher-student
laws
against
sexual
Since A.W. has graduated from Humble High School, any
injunctive
relief
to
under
assert
that
Title
plaintiffs
are
IX
actionable.
is
not
asserting
or
See
12HISD's Motion to Dismiss, Docket Entry No. 16, p. 11.
13Plaintiffs' Original Complaint, Docket Entry No. 1,
-16-
~
172.
Pederson v. Louisiana State University, 213 F.3d 858, 874, 877 (5th
Cir. 2000)
(finding Title IX claims for injunctive relief mooted by
student's graduation)
1975)
(holding
i
that
Sapp v. Renfroe, 511 F.2d 172, 175 (5th Cir.
graduation
mooted
student's
claim
for
declaratory relief) .
(d)
Plaintiffs' Title IX Claims Are Time-Barred
(1)
Applicable Statute of Limitations Is Texas's
General Statute for Personal Injury Claims
Citing Wilson v. Garcia, 105 S. Ct. 1938 (1985), superseded on
other grounds by 28 U.S.C.
§
R.R. Donnelley & Sons Co.,
124 S. Ct.
Okure,
109 S.
Ct.
573
(1989),
1658(a), as recognized in Jones v.
1836
(2004),
and Owens v.
defendants argue that plaintiffs'
Title IX claims are subject to dismissal because they are barred by
Texas's two-year statute of limitations for general personal injury
claims,
Texas
Civil
Practices
&
Remedies
Code
§
16.003. 14
Plaintiffs respond that their Title IX claims are not time barred
because the applicable statute of limitations is not the general
two-year statute cited by defendants but,
instead, Texas's five-
year statute of limitations for personal injury claims arising from
conduct that violates Texas law prohibiting sexual assault, Texas
Civil Practices & Remedies Code
§
16.0045(a).
Plaintiffs cite a
number of cases that have applied Texas's five-year statute of
14HISD's Motion to Dismiss, Docket Entry No. 16, pp. 7 - 9 i
Defendant Humble Independent School District's Reply to Plaintiffs'
Response to Motion to Dismiss ("HISD' s Reply"), Docket Entry
No. 27, pp. 1-4.
-17-
limitations to claims asserted under state law, but have not cited
any case applying the five-year statute to claims asserted under
Title IX or 42 U.S.C.
§
1983. 15
A complaint is subject to dismissal under Rule 12 (b) (6)
for
failure to state a claim on which relief may be granted when the
affirmative defense clearly appears on the face of the complaint.
White v.
Padgett,
S. Ct. 78 (1973).
475 F.2d 79,82
(5th Cir.) ,
denied,
94
Congress has not provided a statute of limita-
tions for claims brought under Title IX.
not provided a
cert.
statute of
brought under 42 U.S.C.
§
limitations
1983.
Congress has similarly
for
civil
rights
claims
However, in Wilson, 105 S. Ct. at
1941, the Supreme Court held that civil rights claims arising under
42 U.S.C.
§
1983 within a particular state should be governed by
that state's statute of limitations for personal injury claims.
Every appellate court to consider the issue has held that Title IX
claims should be treated like
§
1983 claims and governed by state
statutes of limitations for personal injury claims.
Barrett,
650 F.3d 1198, 1205
(8th Cir. 2011)
j
See Walker v.
Wilmink v. Kanawha
Cnty. Bd. of Educ., 214 F. App'x 294, 296 n.3 (4th Cir. 2007)
curiam)
1134
j
(per
Stanley v. Trustees of Cal. State Univ., 433 F.3d 1129,
(9th Cir. 2006)
j
Small v. Chao, 398 F.3d 894,
899
(7th Cir.
15Plaintiffs' Response to HISD's Motion to Dismiss, Docket
Entry No. 24, pp. 36-37j Plaintiffs' Surreply to Motions to Dismiss
of Defendants Humble Independent School District, Guy Sconzo,
Charles Ned, Juan Melendez, Tammy McHale, Craig Stowers and Alicia
Narcisse
("Plaintiffs'
Surreply to Defendants'
Motions
to
Dismiss"), Docket Entry No. 34-1, pp. 2-4.
-18-
2005) i
Curto
v.
(per curiam),
Edmundson,
cert.
Westminster Sch.,
392
denied,
172
F.3d
125 S.
F.3d
797,
502,
504
(2d
Cir.
Ct.
2944
(2005)
&
n.14
2004)
(11th Cir.
803
M.H.D.
i
Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 729
v.
1999)i
(6th Cir.
1996); and Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 77-78 (3d
Cir. 1989).
Plaintiffs'
argument
that
their
Title
IX
claims
are
not
governed by Texas's two-year limitations period for personal injury
claims but,
instead, by Texas's five-year limitations period for
sexual assault claims is foreclosed by the Supreme Court's decision
in Owens,
109 S. Ct. at 573.
In Owens,
109 S. Ct. at 582,
the
Supreme Court specifically rejected the argument that the statute
of limitations applicable to any given
on
the
particular
facts
or
precise
§
1983 claim should depend
legal
theories
alleged.
Instead, the Supreme Court held that claims arising under
within a
particular
state
should be
governed by
that
§
1983
state's
"general or residual statute for personal inj ury actions.
II
Id.
See also Piotrowski v. City of Houston, 51 F.3d 512, 514 n.5 (5th
Cir. 1995)
(holding that in light of the fact that Congress has not
provided a statute of limitations in
borrow
period)
the
forum
Thus,
state's
general
§
1983 cases, federal courts
personal
merely because plaintiffs'
predicated on sexual
abuse
does
not
mean
injury
limitations
Title IX claims are
that
the
applicable
statute of limitations is Texas's special limitations statute for
sexual assault claims.
See Nunley v. Pioneer Pleasant Vale School
-19-
District No. 56, 190 F. Supp. 2d 1263, 1265 n.1
(W.D. Okla. 2002)
(rejecting a similar argument regarding Title IX claims asserted in
Oklahoma which, like Texas, has a special statute of limitations
for sexual assault claims).
Because plaintiffs have not cited any
case that has applied Texas's special statute of limitations for
sexual assault claims,
as opposed to Texas's general statute of
limitations for personal injury claims, to claims asserted under
Title IX or 42 U.S.C.
§
1983, the court concludes that the Title IX
claims asserted here are governed by Texas's two-year limitations
period for general personal injury claims.
(2)
Application of the Limitations Period to the
Alleged Facts
Plaintiffs filed their Original Complaint on December 4, 2013.
Accordingly,
plaintiffs
cannot
prevail
asserted accrued before December 4,
if
2011.
the
Title
IX
claims
HISD argues that any
injury A.W. suffered as a result of its alleged inaction occurred
prior to that date, and that A.W.'s Title IX claims are therefore
time-barred. 16
The question of when a cause of action accrues is a question
of federal law.
The Fifth Circuit has held that in civil rights
cases, a cause of action accrues, and the limitations period begins
to
run,
"the
moment
the
plaintiff
becomes
aware
that
he
has
suffered an injury or has sufficient information to know that he
has been injured.'"
Piotrowski, 237 F.3d at 576 (quoting Russell
16HISD's Motion to Dismiss, Docket Entry No. 16, p. 8.
-20-
v.
Board of Trustees,
968
F.2d 489,
493
(5th Cir.
1992)).
A
plaintiff's awareness encompasses both knowledge of the injury and
knowledge of the causal link between the injury and the defendant.
The plaintiff need not know that a legal cause of action exists;
she need only know facts that would support a claim.
Plaintiffs
allege
that
the
abuse
underlying
asserted in this action occurred from 2009 to 2011.
Id.
the
claims
Plaintiffs
allege that A.W. was a freshman during the 2007-2008 school year,
that A.W. was 16 years old when Feenstra began abusing her in the
spring of 2009, and that the abuse continued until A.W. graduated
in 2011.
HISD argues that
[iJ f one assumes that A. W. was physically abused until the
last day of school of her senior year (i.e., through May
2011), then A.W. would have had until May 2013 to file
suit. The Plaintiffs plainly knew about the abuse prior
to May 2013.
The Plaintiffs admit that Feenstra was
arrested in March 2013 after A.W. reported the abuse. 17
Plaintiffs do not
complaint
dispute that all
occurred more
the abuse described in the
than two years before
they filed
this
action on December 4, 2013, or that A.W. had reached the age of 18
by the spring of 2011.
complaint
The allegations contained in plaintiffs'
show that A. W.
had both knowledge of
the
injury and
knowledge of the causal link between the injury and HISD from the
moment the injury began but refrained from reporting the injury.18
17HISD's Reply, Docket Entry No. 27, p. 2 (citing Plaintiffs'
Original Complaint, Docket Entry No. 1, ~~ 80-81).
18See Plaintiffs' Original Complaint, Docket Entry No. 1, ~ 43
("Fearing the consequences of reporting what happened in Feenstra's
(continued ... )
-21-
See Doe v. Henderson I.S.D., 237 F.3d 631, *2 (5th Cir. 2000)
curiam)
(Table)
(per
(holding that civil rights causes of action arising
from sexual assault accrued prior to the plaintiffs'
eighteenth
birthdays, and explaining that "[t]he plaintiffs' causes of action
accrued when they realized the conduct was wrong because it was at
that time that the plaintiffs 'kn[ew] or ha[d]
reason to know of
the injury which is the basis of the[ir claims] '").
Even though
the limitations period on A.W.'s claims could not have started to
run before A.W.
reached the age of majority,
since plaintiffs
allege that A.W. was 16 years old in the spring of 2009, A.W. must
have been 18 in the spring of 2011, which was more than two years
before this action filed on December 4,
2013.
Therefore, absent
tolling, plaintiffs' Title IX claims are time-barred.
(3)
Plaintiffs
Equitable Tolling, the Discovery Rule, and
Doctrines of Fraudulent Concealment and/or
Equitable Estoppel Are Not Applicable
make
three
HISD's motion to dismiss.
tolling
First,
arguments
President
Lines,
96
F.3d
opposition
to
plaintiffs argue that equity
dictates application of the discovery rule. 19
American
in
124,
128
Citing
(5th
Rashidi v.
Cir.
1996),
18 ( ... continued)
car, a 16-year old A.W. remained quiet."); , 50 ("A.W. was clearly
uncomfortable with all of Feenstra's conduct but did not know where
to turn since she was Feenstra's student and felt that no one at
the school would support her.")
19P1aintiffs' Response to HISD's Motion to Dismiss,
Entry No. 24, pp. 39-40.
-22-
Docket
plaintiffs
argue
that
"[e] quitable
tolling applies
principally
where the plaintiff is actively misled by the defendant about the
cause of action or is prevented in some extraordinary way from
asserting
his
International,
rights.
Inc.
Then,
1120
v.
Altai,
1996), and S.V. v. R.V.,
citing
Inc.,
918
Computer
S.W.2d 453,
Associates
456
(Tex.
933 S.W.2d 1, 7 (Tex. 1996), plaintiffs
argue that the Texas Supreme Court has applied the discovery rule
when
"the
nature
undiscoverable
verifiable. 1121
and
of
the
the
injury
evidence
of
incurred
injury
is
is
inherently
objectively
Plaintiffs argue that
it is clear that A.W. did not discover the nexus between
the
abuse
she
suffered and HISD's
approval
and
ratification of the conduct until facts were revealed
during Feenstra's criminal conviction.
The innate
details of HISD's involvement in allowing the sexual
abuse to occur were inherently undiscoverable earlier.22
Finally, citing Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983),
and Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962
S.W.2d 507, 515-16 (Tex. 1998), plaintiffs argue that the statute
of limitations should be tolled because HISD fraudulently concealed
its knowledge and ratification of the sexual abuse and, therefore,
is equitably estopped from invoking the statute of limitations to
bar plaintiffs' claims. 23
Plaintiffs argue that their
20Id. at 39.
21Id.
22Id. at 40.
23Id. at 40-41.
-23-
Complaint alleges that HISD had knowledge of the sexual
harassment and abuse, had a duty to disclose, and a fixed
purpose to conceal the wrong.
As a result of HISD's
concealment, until facts were revealed during the
investigation into Feenstra's criminal acts, A.W. was
unable to determine that she had a cause of action
specifically against HISD and the individual officials
for their complicity in the sexual abuse and/or
negligence in allowing it to occur. Therefore, HISD is
precluded from relying on the defense of limitations. 24
Plaintiffs' equitable tolling argument has no merit because
plaintiffs have not alleged that HISD actively misled them about
any cause of action or did anything to prevent them from asserting
their rights.
See Rashidi,
96 F.3d at 128
("Equitable tolling
applies principally where the plaintiff is actively misled by the
defendant
about
the
cause
of
action
or
is
extraordinary way from asserting his rights.") .
prevented
in
some
"Where, as here,
the plaintiff had ample time and opportunity to bring suit within
the statutory period, enlarging the limitations period would defeat
the [statute of limitations']
legislative purpose."
Id. at 127.
Plaintiffs' argument that the discovery rule applies to their
Title IX claims likewise has no merit.
a
limited
exception
to
statutes
Associates, 918 S.W.2d at 455.
where
the
injury
is
The discovery rule provides
of
limitations.
The discovery rule applies in cases
inherently
undiscoverable
limitations period and objectively verifiable.
S.V.,
Ins.
933 S.W.2d at 4-8)
Co.,
566 F.3d 436,
24Id.
Computer
within
the
Id. at 456 (citing
See also Beavers v. Metropolitan Life
439
(5th Cir.
at 41.
-24-
2009).
Discovery of the
injury, not all of the elements of the cause of action, starts the
limitations clock.
Henderson I.S.D.,
237 F.3d 631,
*6
(citing
Bayou Bend Towers Council of Co-Owners v. Manhattan Construction
Co., 866 S.W.2d 740, 743
writ denied)
the
(Tex. App. - Houston [14th Dist.]
1993,
(" [A] 11 that is required to commence the running of
limitations period
is
the
discovery of
an
injury and
its
general cause, not the exact cause in fact and the specific parties
responsible.")).
As discussed in the previous section, A.W. knew
that she had been injured by Feenstra by the time of her eighteenth
birthday,
which was more than two years before plaintiffs filed
this action.
A.W. also knew that Feenstra was employed by HISD as
that was the context in which she came into contact with Feenstra.
Since by her eighteenth birthday A. W.
knew that
she
had been
injured by Feenstra and that Feenstra was employed by HISD,
the
discovery rule is not applicable because for limitations purposes,
there was nothing left for A.W. to discover.
237 F.3d 631,
discovery
reasonable
omission.")
rule
*6
(citing Bayou Bend,
imposes
diligence
a
to
duty
on
discover
See Henderson I.S.D.,
866 S.W.2d at 742)
the
plaintiff
facts
of
For this same reason plaintiffs'
to
("The
exercise
negligence
or
contention that
equitable estoppel and/or the doctrine of fraudulent concealment
applies to prevent HISD from asserting limitations has no merit.
Under the doctrine of fraudulent concealment
[w]here a defendant is under a duty to make disclosure
but fraudulently conceals the existence of a cause of
action from the party to whom it belongs, the defendant
-25-
is estopped from relying on the defense of limitations
until the party learns of the right of action or should
have learned thereof through the exercise of reasonable
diligence.
Borderlon,
The estoppel effect of fraudulent
661 S.W.2d at 908.
concealment lasts only until "a party learns of facts, conditions,
or circumstances which would cause a reasonably prudent person to
make inquiry,
concealed
which,
cause
if pursued,
of
action.
Id.
would lead to discovery of the
at
909.
To
invoke
equitable
estoppel, a party must prove:
(1) a false representation or concealment of material
facts; (2) made with knowledge, actual or constructive,
of those facts; (3) with the intention that it should be
acted on; (4) to a party without knowledge or means of
obtaining knowledge of the facts; (5) who detrimentally
relies on the representations.
Johnson
Higgins,
&
estoppel
is
limitations
not
but,
962
to
S.W.2d at
suspend
instead,
515-16.
the
"to
The effect of
running
preclude
of
the
the
such
statute
defendant
of
from
interposing limitations when it has induced the plaintiffs not to
file suit, within the limitations period, on a cause of action the
plaintiffs know they have."
Henderson I.S.D., 237 F.3d at 631, *7
(quoting Palais Royal, Inc. v. Gunnels, 976 S.W.2d 837, 849 (Tex.
App.
-
Houston
[1st Dist.]
1998, writ dism'd by agr.))
Here,
plaintiffs fail to allege facts capable of proving that HISD was
under a duty to make disclosure but fraudulently concealed the
existence of a Title IX cause of action,
or that HISD made any
false representations or concealed material facts on which either
plaintiff relied to their detriment.
-26-
Morever, the facts alleged in
plaintiffs' complaint show that by A.W.'s eighteenth birthday, A.W.
had learned of facts that would cause a reasonably prudent person
to make inquiry,
which if pursued would lead to discovery of a
Title IX claim against HISD.
fraudulent
concealment
nor
Accordingly, neither the doctrine of
the
doctrine
of
equitable
estoppel
prevents HISD from asserting limitations in defense of the Title IX
claims asserted against it in this action.
(e)
Factual Allegations Are Not
Title IX Claims Against HISD
Sufficient
to State
HISD argues that the Title IX claims asserted against it are
subject to dismissal because plaintiffs have failed to allege facts
capable of proving that an HISD official had actual knowledge that
A.W. was being sexually abused,
or that there was a substantial
risk that such abuse would occur.25
Courts are in general agreement
that for a school district to be held liable under Title IX, the
district's knowledge must encompass either actual knowledge of the
precise instance of abuse giving rise to the case at hand,
or
actual knowledge of substantial risk that such abuse would occur.26
See Rosa H., 106 F.3d at 652-53
a
student,
("when
a teacher sexually abuses
the student cannot recover from the school district
under Title IX unless the school district actually knew that there
was a substantial risk that sexual abuse would occur") .
25HISD's Motion to Dismiss, Docket Entry No.
HISD's Reply, Docket Entry No. 27, p. 7.
16, pp.
12-17;
26Plaintiffs' Response to HISD's Motion to Dismiss, Docket
Entry No. 24, p. 8 (citing Ross v. Corporation of Mercer
University, 506 F. Supp. 2d 1325, 1347-48 (M.D. Ga. 2007))
-27-
(1)
Citing
~~
Alleged Facts Are Not Capable of Proving
HISD's Actual Knowledge of A.W.'s Sexual Abuse
55-69 and 86-95 of their complaint, plaintiffs argue
that they have alleged facts capable of proving that appropriate
HISD officials had actual and/or constructive knowledge of the
sexual harassment and abuse that A. W.
care. 27
suffered while in HISD's
In the section of their complaint titled "SCHOOL OFFICIALS
ARE AWARE OF THE
IMPROPER TEACHER-STUDENT RELATIONSHIP BETWEEN
FEENSTRA AND A.W. BUT DO NOTHING," plaintiffs allege:
55.
During the period of Feenstra's inappropriate
relationship with A. W., School Officials noticed that
A.W.'s grades were changing,
but did nothing to
investigate
or
stop
Feenstra's
relationship
or
interaction with A.W.
56.
During the period of Feenstra's inappropriate
relationship with A.W., parents and other students
repeatedly complained about the obsessive and unusual
relationship Feenstra had with A. W., but School Officials
did
nothing
to
investigate
or
stop
Feenstra's
relationship or interaction with A.W.
57. During the period of Feenstra's inappropriate
relationship with A. W., School Officials noticed that
A. W. was becoming withdrawn from her classmates and
teammates, but did nothing to investigate or stop
Feenstra's relationship or interaction with A.W.
58.
During the period of Feenstra's inappropriate
relationship with A. W., School Officials noticed that
Feenstra, almost on a daily basis, would leave the school
grounds alone with A.W., but did nothing to investigate
or stop Feenstra's relationship or interaction with A.W.
During the entire period of Feenstra's inappropriate
relationship with A.W., School Officials repeatedly
observed
first-hand
that
A. W.
was
spending
an
59.
27Id.
at 7-13.
-28-
inordinately excessive amount of time in Feenstra's
office with the doors closed, but did nothing to
investigate
or
stop
Feenstra's
relationship
or
interaction with A.W.
60.
During the entire period of Feenstra's inappropriate
relationship with A.W., School Officials knew that
Feenstra went on out -of - town trips with A. W., where
parents were not there as chaperons, but did nothing to
investigate
or
stop
Feenstra's
relationship
or
interaction with A.W.
61.
During the entire period of Feenstra's inappropriate
relationship with A.W., School Officials knew that while
attending school-related events Feenstra was sleeping in
the same bed with A.W., but did nothing to investigate or
stop Feenstra's relationship or interaction with A.W.
The School Officials knew that A.W. (a student) had
moved into the home of a teacher (Feenstra), but did
nothing to stop Feenstra's relationship or interaction
with A.W.
62.
63.
During the entire period, Humble High School had one
or more police officers at the school, whose office was
located next to the dance room, where several sexual
assaults took place. Yet the police did not investigate
or report the late hours that Feenstra spent in the dance
office with A.W.
This blatant omission clearly
emboldened Feenstra.
64.
Although the School Officials would tell parents and
students that they would investigate the complaints about
Feenstra's relationship with A.W., they never did.
Feenstra was never disciplined by Defendants for the
inappropriate relationship she had with A.W. or for any
of the conduct complained of herein.
65.
Feenstra, not being the subject of any surveillance
or monitoring, was able to perpetrate the harassment and
sexual assaults upon A. W., both at school and away.
Instead of conducting any type of investigation of
Feenstra's conduct, School Officials allowed Feenstra to
have her way with A.W.
66.
67.
Feenstra, not continually being the subject
surveillance or monitoring due to an inadequate
-29-
of
or
malfunctioning security system, was able to perpetrate
the harassment and sexual assaults upon A.W., both at
school and away.
Instead of conducting any type of
investigation of Feenstra's conduct, School Officials
allowed Feenstra to have her way with A.W.
During the time A. W. was being sexually assaulted by
Feenstra, all persons in power at Humble High School knew
or should have known of the inappropriate relationship
Feenstra had with A.W. including, but not limited to, the
harassment, groping, sexual assaults, and rape that
Feenstra committed upon A.W.
68.
Considering that the School Officials observed the
inappropriate
teacher-student
relationship and did
nothing to stop it, A.W. understandably felt powerless to
prevent Feenstra's conduct since she had no one at the
school to rely upon and protect her from this conduct. 28
69.
Plaintiffs assert that these facts are capable of proving that
[a]t a minimum, the School Officials had actual notice of
the discrimination against A.W.
as
well
as
the
inappropriate relationship between Feenstra and A. W.
since certain of the conduct happened openly and the
School Officials were otherwise informed of other
improper conduct. 29
Plaintiffs allege that A.W.'s mother,
King-White complained
about an "improper relationship" between A. W. and Feenstra, 30 but
missing from plaintiffs' complaint are any allegations that KingWhite ever told any HISD official that the "improper relationship"
at issue was a sexual relationship.
Plaintiffs allege that during
out-of-town dance competitions, "Feenstra ordered A.W. to sleep in
28Plaintiffs' Original Complaint, Docket Entry No. 1,
(emphasis added)
29Id.
~
87.
-30-
~~ 55-69
the same bed with her,
,,31
but missing from plaintiffs' complaint are
any allegations of fact capable of proving that any HrSD official
participated in the out-of-town trips or would otherwise have known
about the alleged sleeping arrangements.
Plaintiffs allege that
"'School
of
Officials'
had
actual
notice
the
inappropriate
relationship between Feenstra and A.W. since certain of the conduct
happened openly, and the School Officials were otherwise informed
of other improper conduct,
,,32
but missing from plaintiffs' complaint
are any allegations that sexual conduct occurred in open view at
school or at school events, or that apart from Feenstra any "School
Officials"
knew about
the
sexual
conduct
until
after A. W.
had
graduated. 33
Although
plaintiffs
allege
"Feenstra insisted that A. W.
School,
facts
have
capable
of
proving
that
sex with her at Humble High
including in Feenstra's office, on the floor of school's
dance room, at training camp, and after most every football game,
,,34
missing from plaintiffs' complaint are any allegations capable of
proving that any school official observed or could otherwise have
known about any of this alleged sexual conduct.
Plaintiffs also
allege that A.W. moved into Feenstra's residence with the consent
31rd. ~ 94 (1)
32rd. ~ 87.
33rd. ~~ 80-82.
34rd. ~ 53.
-31-
of her mother and co-plaintiff, King-White,35 that only after A.W.
graduated did A.W. speak to anyone about Feenstra's conduct, and
that once HISD officials learned of the alleged abuse, Feenstra was
arrested, charged with a felony, and ultimately convicted. 36
Plaintiffs' factual allegations and arguments regarding HISD' s
knowledge of A.W.'s abuse are analogous to the arguments that the
Supreme
Court
insufficient
Title IX.
in
to
Gebser,
establish
118
a
S.
Ct.
school
at
rejected
1989,
district's
as
liability under
Plaintiffs allege that " [d]uring the time A.W. was being
sexually assaulted by Feenstra, all persons in power at Humble High
School knew or should have known of the inappropriate relationship
Feenstra had with A.W."37
of actual
Plaintiffs argue that these "allegations
or constructive knowledge are plainly stated." 38
In
Gebser the Supreme Court rejected the petitioners' arguments that
complaints about a teacher's inappropriate comments during class
alerted the principal
involved in a
to
the possibility that
the
sexual relationship with a student.
S. Ct. at 2000.
teacher was
Gebser,
118
In Gebser the Court also rejected the petitioners'
argument that a school district could be held liable under Title IX
based on constructive knowledge.
35Id.
~
36Id.
~~
37Id.
~
The Court held,
instead,
that
46.
78-82.
68.
38See Plaintiffs' Response to HISD's Motion to Dismiss, Docket
Entry No. 24, p. 8.
-32-
school
district
liability
could
only
be
premised
on
actual
knowledge of a school "official who at a minimum has authority to
address
the alleged discrimination and to
institute corrective
measures on the [federal funding] recipient's behalf."
S. Ct. at 1999.
set
forth a
notice
that
Contrary to plaintiffs' argument, Gebser did not
standard of
a
Gebser 118
"actual notice"
teacher might
relationship with a
based on constructive
possibly be
student. 39
involved
See Davis,
119 S.
in a
Ct.
sexual
at
1671
(recognizing that in Gebser the Court "declined the invitation to
impose liability under what amounted to a negligence standard
holding the district liable for its failure to react to teacher student harassment of which it knew or should have known.
Rather, we concluded that the district could be liable for damages
only
where
the
district
violation of Title IX.").
itself
intentionally
acted
in
clear
See also Doe v. Northside I.S.D., 884
F. Supp. 2d 485, 493 (W.D. Tex. 2012)
(finding no actual knowledge
of abuse despite allegations that teacher had "boundary" issues,
hugged plaintiff, and gave chest bumps)
i
P.H. v. School District of
Kansas City. Missouri, 265 F.3d 653, 659 (8th Cir. 2001)
(teacher
complaints about student's tardiness and absences from class and
general
student
complaints
about
insufficient
to
teacher
spending
establish
school
too
much
time
district's
with
actual
39The cases plaintiffs cite in support of their contention that
constructive knowledge provides a sufficient basis on which to
ground Title IX liability all predate the Supreme Court's opinions
in Gebser, 118 S. Ct. at 1989, and Davis, 119 S. Ct. at 1661.
-33-
knowledge of sexual abuse)
Cir. 2010)
i
Doe v. Flaherty, 623 F.3d 577, 585 (8th
("A student's familiar behavior with a teacher or even
an 'excessive amount of time' spent with a teacher, without more,
does not
' automatically give rise to a
reasonable inference of
sexual abuse.''')
Plaintiffs'
allegations of
abused
and
complaint
fact
contains
detailed
capable of proving that A. W.
harassed
by
her
dance
teacher,
and
graphic
was
sexually
Feenstra. 40
But
plaintiffs' complaint contains no allegations of fact capable of
proving that while A.W. was a student at Humble High School that
any specific person apart from Feenstra, had actual knowledge that
she and A.W. had a sexual relationship.
Instead, plaintiffs merely
recite the elements of a Title IX cause of action and conclusorily
assert
that
"School
Officials"
had
"actual
notice"
of
"the
inappropriate relationship.,,41
Moreover, even assuming arguendo that apart from Feenstra, the
"School Officials" identified in this action, i.e., Superintendent
Sconzo, Principal Ned, Assistant Principals Melendez, McHale, and
Stowers,
address
and Guidance Counselor
Feenstra's
abuse
of
Narcisse,
A. W.
and
to
all had authority to
insti tute
corrective
4°Plaintiffs' Original Complaint, Docket Entry No. 1, ~~ 40-54.
4lId. ~ 87.
See also id. ~ 19 (defining the term "School
Officials" as used in Plaintiffs' Original Complaint to mean
"Feenstra, Sconzo, Ned, McHale, Melendez, Stowers, and McHale."
Since "McHale" is mentioned twice and Narcisse is not mentioned at
all, the second reference to "McHale" is likely intended to mean
guidance counselor Narcisse.).
-34-
measures on HISD's behalf, plaintiffs have nevertheless failed to
state a
claim for
which relief may be granted under Title
IX
because plaintiffs have failed to allege facts capable of proving
that - apart from the alleged abuser, Feenstra - any of the "School
Officials"
identified
in
their
complaint
actually
knew
that
Feenstra had a sexual relationship with A.W.
See Iqbal, 129 S. Ct.
at
a
1949
("[R]ecitals
of
the
elements
of
cause
of
action,
supported by mere conclusory statements, do not suffice.").
also Gebser,
118
S.
Ct.
at
2000
("knowledge
of
the
See
wrongdoer
himself is not pertinent to the analysis") .
(2)
Alleged Facts Are Not Capable of Proving
HISD's Actual Knowledge of Significant Risk
that Sexual Abuse Would Occur
Plaintiffs argue that their Original "Complaint also provides
notice at ~ 94(b) that HISD knew or should have known of Feenstra's
prior instances of inappropriate conduct and therefore had actual
notice of a substantial risk of sexual harassment to students prior
to A. W.' s complaint. 1142
Paragraph 94(b)
of Plaintiffs'
Original
Complaint alleges that
[a]lthough parents complained to School Officials that
there were was something unusual about Feenstra's
relationship with A. W., the School Officials did nothing.
Rather than investigate, the School Officials engaged in
a pattern of ignoring the complaints and allowing the
conduct to continue. 43
42Plaintiffs' Response to HISD's Motion to Dismiss,
Entry No. 24, p. 8.
43Plaintiffs' Original Complaint, Docket Entry No. I,
-35-
Docket
~
94(b).
Plaintiffs argue that
[t]he conduct alleged in paragraphs 55-69, 88-95 and 105
provides facts establishing that HISD and the other
defendants had information indicating that Feenstra and
her sexually suggestive conduct towards female dancers
(e.g. A.W.) established a substantial danger to students.
Plaintiffs also offer evidence that students and parents
made official complaints to HISD officials of sexual
misconduct by Feenstra sufficient to indicate that she
posed a substantial risk to sexually abuse students such
as A. W.
See, ~~ 56, 64.
These complaints were not
simply complaints about an "inappropriate" relationship;
the complaints alerted school officials to sexual
harassment and suspected sexual misconduct. 44
Citing
~~
56 and 64 of their Original Complaint,
plaintiffs also
argue that
[t]he Complaint also provides facts that students and
parents made official complaints to HISD officials of
sexual misconduct by Feenstra sufficient to indicate that
she posed a substantial risk to sexually abuse students
such as A. W.
These complaints are not simply
complaints about an "inappropriate" relationship; the
complaints alerted school officials to sexual harassment
and suspected sexual misconduct.
These publicly-aired
discussions and complaints supplied actual knowledge to
HISD officials. 45
Despite plaintiffs'
assertions
to the
contrary,
the facts
alleged in their complaint allege only that parents and students
complained that Feenstra had an "inappropriate, "
unusual relationship" with A.W.46
are
there
factual
allegations
44Plaintiffs' Response
Entry No. 24, p. 9.
"obsessive and
Nowhere in plaintiffs' complaint
that
any student
or parent ever
to HISD's Motion to Dismiss,
45Plaintiffs' Surreply to
Docket Entry No. 34-1, p. 8.
Defendants'
Motions
to
Docket
Dismiss,
46See Plaintiffs' Original Complaint, Docket Entry No. 1,
-36-
~
56.
complained to any HISD official that Feenstra and A.W. had a sexual
relationship,
or
that
relationship with a
Feenstra
student.
had
Thus,
in
the
past
had
plaintiffs have
a
sexual
failed to
allege facts capable of proving that HISD officials had actual
knowledge of a substantial risk that Feenstra would sexually abuse
A.W. or any other student.
The lack of factual allegations capable of proving either that
Feenstra had a history of sexual misconduct with students or that
any HISD official knew that Feenstra had such a history stands in
sharp
contrast
plaintiffs
alleged
cite
to
the
in
factual
support
in their complaint
motion to dismiss
ex
reI.
Gordon
F.
Supp.
2d 1077,
of
Ottumwa
1082
their
are
their Title
v.
allegations
(S.D.
in
arguments
sufficient
IX claims. 47
the
cases
that
the
that
facts
to withstand HISD's
See,
~,
Gordon
Community
School
District,
115
Iowa 2000)
(rejecting plaintiffs'
contention that sexually inappropriate comments in class provided
school officials actual notice of a sexual relationship between
teacher
and
student
but
agreeing
with
plaintiffs
that
school
officials' knowledge that teacher had in the past hugged a student
and then kissed that student on the lips and patted that student's
buttocks placed the school district on notice that the teacher
presented a risk of sexually inappropriate conduct); Doe v. School
47Plaintiffs' Response to HISD's Motion to Dismiss, Docket
Entry No. 24, pp. 7-13; and Plaintiffs' Surreply to Defendants'
Motions to Dismiss, Docket Entry No. 34-1, pp. 7-8.
-37-
Administrative District No. 19, 66 F. Supp. 2d 57, 63 (D. Me. 1999)
(actual notice may be found when the district had notice that the
teacher had abused other students in the past)
i
I.S.D.,
2007 WL 4205726,
Civil Action No.
SA-05-CA-0239-XR,
(W.D. Tex. November 27, 2007)
that
she
saw a
school
N.B. v. San Antonio
*4
(principal was informed by individual
district
police
officer
inappropriately
touching a student's breast and grabbing the student's buttocks) i
Warren ex reI.
172-73
Warren v. Reading School District,
(3d Cir. 2002)
278 F.3d 163,
(holding that memorandum from principal to
teacher directing the teacher to stop playing classroom games that
involved physical contact constituted evidence that the principal
had "actual knowledge tt
Accordingly,
that
the teacher was abusing students).
the court concludes that plaintiffs have failed to
allege facts capable of proving that any HISD official had actual
knowledge of substantial risk that Feenstra would sexually abuse
A.W. or any other student.
B.
Counts 2 and 3: § 1983 Claims Subject to Dismissal
Counts 2 and 3 of Plaintiffs' Original Complaint assert claims
under 42 U.S.C.
§
1983 for violations of A.W.'s constitutional
rights to equal protection and due process, respectively.
HISD and
all of the individually named defendants except Feenstra argue that
plaintiffs'
time-barred,
§
1983 claims are subject to dismissal because they are
and because plaintiffs have failed to allege facts
capable of stating a
§
1983 claim for which relief may be granted.
-38-
1.
Applicable Law
"To state a section 1983 claim,
'a plaintiff must (1) allege
a violation of a right secured by the Constitution or laws of the
United States and (2) demonstrate that the alleged deprivation was
committed by a person acting under color of state law. '"
James v.
Texas Collin County,
(quoting
535 F.3d 365,
373
(5th Cir.
Moore v. Willis I.S.D., 233 F.3d 871, 874
2008)
(5th Cir. 2000)).
Defendants do not dispute that plaintiffs have alleged facts
capable of satisfying the two requirements for stating a
claim with respect to A.W.,
1983
§
but do dispute that plaintiffs have
alleged any violation of King-White's constitutional rights. The
allegations
in
plaintiffs'
plaintiffs'
complaint
responses to defendants'
and
the
arguments
in
motions to dismiss contain
lengthy descriptions of the ways that plaintiffs allege A. W. 's
constitutional rights to equal protection and due process were
violated when she was abused by Feenstra, her dance teacher.
nei ther plaintiffs'
what,
if any,
violated.
2060
complaint nor plainti ff s'
But
responses discuss
constitutional right of King-White the defendants
Instead, citing Troxel v. Granville, 120 S. Ct. 2054,
(2000),
plaintiffs
merely
state
in
a
footnote
to
their
discussion of King-White's ability to assert Title IX claims that
[i]n addition to Mary King-White's standing under
Title IX, the Supreme Court has observed that '[t] he
liberty interest.
. of parents in the care, custody,
and control of their children - is perhaps the oldest of
-39-
the fundamental
Court. ,48
liberty
Missing from plaintiffs'
interests
recognized by this
complaint or responses
to defendants'
motions to dismiss are any allegations or argument that defendants'
conduct violated King-White's constitutional rights.
tiffs have not alleged facts capable of stating a
§
Thus, plain1983 claim for
violation of King-White's constitutionally protected rights.
The Fifth Circuit has held that school children have a liberty
interest in their bodily integrity protected by the Due Process
Clause of the Fourteenth Amendment, and that physical sexual abuse
by a
school
I.S.D.,
15
employee violates
F.3d 443,
451-52
any
dispute
that
right.
(5th Cir.
denied, 115 S. Ct. 70 (1994).
be
this
See Doe v.
1994)
(en bane),
Taylor
cert.
Moreover, there does not appear to
plaintiffs
have
alleged
facts
capable
of
proving that at least some of Feenstra's wrongful conduct occurred
on school property, and that Feenstra used her position as a dance
teacher to molest A.W.
Thus, plaintiffs have alleged facts capable
of proving that Feenstra was acting under color of state law for
the purposes of the pending motions to dismiss.
15
F.3d at
452
n.4
(" [I] f
a
'real
nexus'
See Taylor I.S.D.,
exists
between
the
activity out of which the violation occurs and the teacher's duties
and obligations as a teacher, then the teacher's conduct is taken
under color of state law.") .
48Plaintiffs' Response
Entry No. 24, p. 14 n.4.
to HISD's Motion to Dismiss,
-40-
Docket
In
Taylor
I.S.D.
the
Fifth
allegations to the contrary,
student
who
was
sexually
Circuit
the
1983 due process claim of a
§
abused
by
a
ruled
teacher
that
absent
superseded
any
possible equal protection claim that the student could raise based
on the same misconduct.
Id. at 458.
Since like the plaintiff in
Taylor I.S.D. plaintiffs here "do not claim that the damages that
[they]
could recover
based on the alleged violation of
[A.W.'s] equal protection rights would be any more extensive than
the damages that they could recover based on the substantive due
process violation," id., the court concludes that there is no need
to consider the claims for violation of A. W. 's rights to equal
protection separately.
596,
613
(E.D.
motions
to
alleged
facts
Tex.
dismiss,
See Doe v. Beaumont I.S.D., 8 F. Supp. 2d
1998).
the
capable
Thus,
court
of
for purposes of the pending
concludes
proving
that
that
A. W. 's
plaintiffs
have
constitutionally
protected right to bodily integrity was violated by Feenstra who
was,
state
at the time,
law.
The
a public school teacher acting under color of
issue
is
whether plaintiffs'
allegations
are
sufficient to hold HISD and the six School Officials named as
individual defendants liable for Feenstra's violation of A.W.'s
constitutionally protected rights.
2.
Application of the Law to the Alleged Facts
(a)
Plaintiffs'
§
1983 Claims Are Time-Barred
For the reasons stated above in
the
plaintiffs'
Title
IX
claims,
-41-
§
III.A.2(d) with respect to
the
court
concludes
that
plaintiffs'
§
1983 claims are time-barred.
See Wilson, 105 S. Ct.
at 1941 (holding that civil rights claims arising under 42 U.S.C.
§
1983 within a particular state should be governed by that state's
statute of
limitations for personal
S. Ct. at 582
injury claims)
(holding that claims arising under
§
i
Owens,
109
1983 within a
particular state should be governed by that state's "general or
residual statute for personal injury actions") .
(b)
HISD Is Entitled to Dismissal of
§
1983 Claims
HISD argues that the claims asserted against it under
§
1983
are subject to dismissal because plaintiffs' allegations of fact
are incapable of establishing that an official policy, custom, or
practice of HISD was the moving force behind the alleged violations
of A. W. 's constitutional rights. 49
In contrast to a Title IX claim,
in which liability may be established by showing that a single
school
administrator
indifference,
result
of
practice.
788, 797
§
the
responded
to
harassment
with
deliberate
1983 requires proof that the harassment was the
school
district's
official
policy,
See Fitzgerald v. Barnstable School Comm.,
custom,
or
129 S. Ct.
(2009).
In Monell v.
Department of Social Services of the City of
New York, 98 S. Ct. 2018, 2022, 2035-36 (1978), the Supreme Court
held that municipalities and other local government entities such
as school districts are "persons" subject to suit under 42 U.S.C.
49HISD's Motion to Dismiss, Docket Entry No. 16, pp. 19-24.
-42-
§
1983,
but
that
such
entities
cannot
he
held
liable
on
a
respondeat superior basis, i.e., a local government cannot be held
liable simply because one of its employees violated a person's
federal rights.
under
its
§
For a local governmental entity to be held liable
1983, the entity itself must cause the violation through
pol icies.
1d.
at
2037-38
(" [I] t
is
when execution of
a
government's policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official
policy,
inflicts the injury that the government as an entity is
responsible under
§
1983.")
Absent
such an official policy,
custom, or practice, a municipality may only be held liable if the
discriminatory practice is "so permanent and well settled as to
constitute a 'custom or usage' with the force of law."
S.H.
§
Kress
&
Co.,
90 S.
Ct.
1598,
1614
(1970).
Adickes v.
Thus,
to state
1983 claims against H1SD, plaintiffs must allege facts capable of
proving "three elements:
a policymakeri an official policYi and a
violation of constitutional rights whose
policy or custom."
'moving force'
is the
Piotrowski, 237 F.3d at 578 ("the unconstitu-
tional conduct must be directly attributable to the municipality
through some sort of official action or imprimatur") .
(1)
Policymaker Allegations Fail
H1SD argues that it is entitled to dismissal of plaintiffs'
§
1983 claims because plaintiffs have not alleged facts capable of
proving that H1SD's final policymaker approved or even knew about
-43-
the
unconstitutional
conduct
about
which
plaintiffs
complain.
Plaintiffs respond that they have sufficiently pled facts
that
HISD's Board of Trustees delegated final policymaking authority to
the School Officials identified in their complaint, and that those
School Officials failed to train their employees to identify and
prevent
sexual
abuse
of
students,
and
failed
to
supervise,
investigate, or discipline the abuser, Feenstra.
Identification of the "final policymaker"
state law.
is a question of
See City of St. Louis v. Praprotnik, 108 S. Ct. 915,
928 (1988).
The "final policymaker" is the official or officials
whose decisions are unconstrained by policies imposed by a higher
authority.
595, 603
See Beattie v. Madison County School District, 254 F. 3d
(5th Cir. 2001)
(explaining that a superintendent is not
a final policymaker because her decision was subject to review by
the
school
board).
for
trustees.
See Texas Education Code
Rivera
Houston
(quoting Tex.
school
Texas
authority
v.
a
Under
Educ.
district
I.S.D.,
Code
349
§
law
is
§§
F.3d
11.151(b)
the
the
final
policy-making
district's
board
11.151 & 11.1511.
244,
247
(5th
of
See also
Cir.
2003)
("Texas law unequivocally
delegates to the Board 'the exclusive power and duty to govern and
oversee the management of the public schools of the district. '")) .
Plaintiffs' Original Complaint fails to allege facts capable
of linking any unconstitutional policy,
HISD's Board of Trustees.
practice,
or custom to
Instead, plaintiffs allege that the HISD
Board of Trustees delegated final policymaking authority to the six
-44-
School Officials who are individually named as defendants in this
action, i. e., the superintendent (Sconzo), the principal (Ned), the
assistant
guidance
principals
counselor
(Melendez,
McHale,
(Narcisse).
But
and
missing
Stowers),
from
and
the
plaintiffs'
complaint is any cite to state or local law permitting HISD's Board
of
Trustees
identified
to
delegate
School
final
authority
to
the
See
Officials.
policymaking
349
at
248
Rivera,
F.3d
(distinguishing decision-making from policy-making).
Also missing
from plaintiffs' complaint are any allegations of fact capable of
proving that HISD's board delegated policymaking authority to any
of the School Officials identified in plaintiffs' complaint.
See
McCall v. Dallas I.S.D., 169 F. Supp. 2d 627, 635 (N.D. Tex. 2001)
(plaintiff's complaint was deficient because it failed "to allege
any facts supporting a conclusion" that the school board delegated
policymaking authority to the superintendent) .
(2)
Policy, Custom, or Practice Allegations Fail
Plaintiffs allege that the HISD Board of Trustees adopted
"official" policies pertaining to child abuse,
harassment,50
but
required school
faulty
do
not
staff
investigations,
to
allege
that
these
ignore abuse of
or
to
sexual abuse, and
official
students,
discriminate
against
policies
to conduct
students.
Instead, plaintiffs allege that HISD had a "policy, practice, or
50Plaintiffs' Original Complaint, Docket Entry No. I, ~~ 72,
Plaintiffs' Response to HISD's Motion to Dismiss, Docket
Entry No. 24, p. 25.
100) i
-45-
custom, official and/or unofficial" of providing less protection to
same-sex female assault victims. 51
Plaintiffs also allege that HISD
did not adequately train, supervise and/or discipline its employees
giving rise
to an official
and/or unofficial
policy or custom
condoning misconduct such as that perpetrated by Feenstra.
instead of pointing to a
"moving
force"
behind
Thus,
formally adopted policy that was
the
alleged
constitutional
plaintiffs allege that HISD is liable under
§ 1983
the
violations,
because the six
School Officials identified in their complaint failed to protect
A.W.,
failed
to
investigate Feenstra's
relationship with A.W.,
failed to train HISD employees to recognize signs of sexual abuse,
and failed to supervise or discipline Feenstra.
Plaintiffs argue
that, by these omissions, defendants Sconzo, Ned, Melendez, McHale,
Stowers, and Narcisse acted with deliberate indifference toward the
constitutional rights of A.W. and her mother, King-White, and that
this omission is evidence that HISD had a custom of deliberately
ignoring acts of sexual abuse between HISD teachers and students.
Acts that do not rise to the level of official policy may
nonetheless create governmental liability if they are sufficiently
widespread and pervasive to constitute a "custom" or "practice."
To survive a motion to dismiss on an unconstitutional custom or
practice
claim,
plaintiffs
must
point
to
factual
allegations
sufficient to allow a reasonable inference that there was a pattern
51Plaintiffs' Original Complaint, Docket Entry No. I,
-46-
~~ 102 - 03.
of
misconduct
involving
Wichita Falls,
denied,
Texas,
131 S. Ct.
similar acts.
614 F.3d 161,
3059
(2011)
See
169
Zarnow v.
(5th Cir.
City of
2010),
cert.
("A customary policy consists of
actions that have occurred for so long and with such frequency that
the course of conduct demonstrates the governing body's knowledge
and acceptance of the disputed conduct.").
requires similarity and specificitYi
simply be for any and all
'bad'
Moreover, "[a] pattern
'[p] rior indications cannot
or unwise acts, but rather must
point to the specific violation in question."
Peterson v. City of
Fort Worth, Texas, 588 F.3d 838, 851 (5th Cir. 2009), cert. denied,
131 S.
Ct.
66
(2010).
Acts of sexual harassment by a
teacher
directed solely at a single student do not demonstrate a custom or
policy of the School District to be deliberately indifferent to
sexual harassment as a general matter.
Houston, 863 F.2d 1180, 1184
See McConney v. City of
(5th Cir. 1989)
(recognizing that a
pattern requires "sufficiently numerous prior incidents")
v.
City of Houston,
291 F.3d 325
(5th Cir.
2002)
i
Pineda
(holding that
eleven incidents of warrantless entry did not support a pattern of
unconstitutional warrantless entry in one of the nation's largest
cities and police forces).
Plaintiffs have not alleged facts
capable of proving that
there were other incidents of teacher-student sexual misconduct at
Humble
High
School
or
at
any
other
HISD
school.
Nor
have
plaintiffs alleged facts capable of proving that other incidents of
-47-
teacher-student sexual abuse occurred long enough or frequently
enough to warrant attributing knowledge or constructive knowledge
to
HISD's
Board of
Trustees
that
such
conduct
was
caused by
defective policies, or by the board's failure to adopt different
"[P] roof
policies.
activity
is
not
of
a
single
sufficient
for
Valentine Foundation v. Uphoff,
2006)
(per curiam)
instance
1983
§
of
unconstitutional
municipal
211 F. App'x 276,
(citing McConney,
liability."
278
863 F.2d at 1184
(5th Cir.
("Isolated
instances . . . are inadequate to prove knowledge and acquiescence
by policymakers.") ).
Plaintiffs' claims that HISD failed to train,
supervise, or discipline their employees are similarly deficient
due to plaintiffs'
failure to allege facts capable of proving a
pattern of prior incidents.
594 F.3d 366,
facts
capable
supervision,
result
382
in
a
of
See Sanders-Burns v. City of Plano,
(5th Cir. 2010)
proving
that
Nor have plaintiffs alleged
the
to
for
more
training,
or discipline was "obvious and obviously likely to
constitutional
violation"
liability based on a single incident.
failed
need
allege
facts
capable
Id.
of
as
required
to
support
Because plaintiffs have
proving
a
pattern
of
constitutional violations that would have made it obvious to HISD's
Board of Trustees that different policies, training, supervision,
or discipline were needed to prevent teachers from sexually abusing
students,
plaintiffs'
state a
1983 claim against HISD based on their assertions that
§
allegations of fact are not sufficient to
-48-
HISD maintained a custom or practice of providing less protection
to same-sex female assault victims or of deliberately ignoring acts
of teacher-student sexual misconduct.
(c)
Individual Defendants Are Entitled to Dismissal of
§ 1983 Claims
The individual defendants argue that the
§
1983 claims against
them are subject to dismissal because the claims asserted against
them in their official capacities duplicate the claims asserted
against HISDj and because they are entitled to qualified immunity
from the claims asserted against them in their personal capacities.
(1)
The
Official Capacity § 1983 Claims
Claims Asserted Against HISD
individual
constitutional
Melendez,
McHale,
defendants
claims
Stowers,
argue
against
and
that
"Plaintiffs'
Defendants
Narcisse
in
Duplicate
Sconzo,
their
Ned,
official
capacities should be dismissed on grounds of redundancy.u52
individual
defendants
explain that
"[b] ecause
The
[their employer]
Humble ISD is already a named defendant in this lawsuit, there is
no legal or practical
reason to retain the
claims against
individual defendants in their official capacities. u53
the
Plaintiffs
have not responded to the individual defendants' argument that the
52rndividual
No. 17, p. 4.
Defendants'
Motion
53rd.
-49-
to
Dismiss,
Docket
Entry
§
1983 claims asserted against them in their official capacities
should be dismissed as duplicating claims asserted against HISD.
As public officials,
under
§
the individual defendants may be sued
1983 in either their official or their personal capacities.
Hafer v. Melo, 112 S. Ct. 358, 361-63
(1991)
(citing Kentucky v.
Graham, 105 S. Ct. 3099 (1985)).
[T] he distinction between official-capacity suits and
personal-capacity suits is more than "a mere pleading
device.".
. State officers sued for damages in their
official capacity are not "persons" for purposes of the
suit because they assume the identity of the government
that employs them.
. By contrast, officers sued in
their personal capacity come to court as individuals. A
government official in the role of personal-capacity
defendant thus fits comfortably within the statutory term
"person. "
Id. at 362.
The real party in interest in an official-capacity
suit is the governmental entity, not the named official.
361
(citing Graham,
105 S.
Ct.
at
3105)
officials in their official capacity .
suits against the State.").
Police Civil
rd. at
("Suits against state
should be treated as
See Turner v. Houma Municipal Fire and
Service Board,
229 F.3d 478,
483
(5th Cir.
2000)
'generally represent only another
("Official-capacity suits.
way of pleading an action against an entity of which an officer is
an agent.'
Accordingly, a
§
1983 suit naming defendants in
only their 'official capacity' does not involve personal liability
to the individual defendant.")
Plaintiffs have asserted
without
stating whether
§
these
1983 claims against all defendants
claims
-50-
are
asserted against
the
individual defendants in their official or personal capacities.
Because
any
1983
§
claims
asserted
against
the
individual
defendants in their official capacities would duplicate the
claims
asserted
against
HISD,
entitled to dismissal of any
the
individual
§
1983
defendants
are
1983 claims that plaintiffs have
§
asserted or attempted to assert against them in their official
capacities.
See Jenkins v.
Board of Education of the Houston
I.S.D., 937 F. Supp. 608, 613 (S.D. Tex. 1996)
("[B]ecause a suit
against a public employee in his or her official capacity is simply
another way to sue the public entity, Jenkins cannot show that he
would
be
prejudiced
by
the
dismissal
of
the
individual
HISD
defendants from this case in their official capacities, as HISD is
already a defendant.H).
(2)
Individual Defendants Entitled to Qualified
Immunity on Personal Capacity § 1983 Claims
Asserting that they are governmental employees entitled to
qualified immunity, the individual defendants argue that the
claims
asserted against
them in their personal
§
1983
capacities are
subject to dismissal because "[t] here are no allegations giving
rise to any reasonable inference that any of them knew about, and
were deliberately indifferent to, an obvious risk that A.W. would
Therefore, they are immune." 54
be sexually assaulted or harassed.
Plaintiffs respond that the
individual
54Id.
defendants
are
§
1983 claims asserted against the
not
subject
at 14.
-51-
to
dismissal
because
plaintiffs' complaint makes clear that the individual defendants
were not only Feenstra's supervisors but also were aware of and
deliberately indifferent to violations of A. W. 's constitutional
rights to due process and equal protection, and that the individual
defendants' failure to protect A.W. caused A.W. to be injured. 55
To state personal-capacity claims under
§
1983 plaintiffs must
allege that while acting under color of state law defendants were
personally involved in the deprivation of a right secured by the
laws or Constitution of the United States, or that the defendants'
wrongful actions were causally connected to such a deprivation.
James,
535 F.3d at 373.
liable under
§
no involvement.
to
§
1983
A supervisor cannot be held personally
1983 "for his subordinate's actions in which he had
ff
suits,
Id.
a
Because vicarious liability is inapplicable
plaintiff must plead that each Government-
official defendant, through the official's own individual actions,
has violated federal law.
Iqbal, 129 S. Ct. at 1949.
In order for
school officials to be held personally liable for a subordinate's
sexual abuse of a student plaintiffs must plead facts capable of
proving that:
(1)
the defendant[sl learned
inappropriate sexual behavior
plainly toward the conclusion
sexually abusing the student;
of facts or a pattern of
by a subordinate pointing
that the subordinate was
and
55Plaintiffs' Response to Motion to Dismiss of Defendants
Sconzo, Charles Ned, Juan Melendez, Tammy McHale, Craig Stowers
Alicia Narcisse and Brief in Support ("Plaintiffs' Response
Individual Defendants' Motion to Dismiss
Docket Entry No.
pp. 14-22.
ff
),
-52-
Guy
and
to
25,
(2)
the defendant[s] demonstrated deliberate indifference toward the constitutional rights of the student by
failing to take action that was obviously necessary to
prevent or stop the abuse; and
(3)
such failure caused a constitutional injury to the
student.
Taylor I.S.D., 15 F.3d at 454.
Public officials sued in their personal capacities under
are
shielded
from
suit
by
the
doctrine
of
qualified
§
1983
immunity.
Saucier v. Katz, 121 S. Ct. 2151, 2156 (2001), overruled in part by
Pearson v.
immunity is
Callahan,
129
S.
Ct.
808,
812
(2009).
"Qualified
'an entitlement not to stand trial or face the other
burdens of litigation;'
. it is effectively lost if a case is
erroneously permitted to go to trial."
Id.
(quoting Mitchell v.
Forsyth, 105 S. Ct. 2806, 2815 (1985)).
The doctrine of qualified
immunity was created to balance the interest of compensating persons
whose federally protected rights have been violated against the fear
that
personal
liability might
discharge of their duties.
inhibit
officials
in
the
See Johnston v. City of Houston, Texas,
14 F.3d 1056, 1059 (5th Cir. 1994).
involves a two-step inquiry:
public
The qualified immunity analysis
(1) whether the plaintiff has alleged
a violation of a constitutional right; and (2) whether that right
was
clearly established at
the time of
the
alleged misconduct.
Pearson, 129 S. Ct. at 815-16 (citing Saucier, 121 S. Ct. at 2155).
It is within the discretion of the district court to decide which of
the two steps to address first.
Id. at 818.
Courts examine each
defendant's actions independently to determine whether he or she is
-53-
entitled to qualified immunity.
(5th
Cir.
2012),
cert.
Newman v. Guedry, 703 F.3d 757, 762
denied,
134
S.
Meadours v. Ermel, 483 F.3d 417, 421-22
defendant
asserts
qualified
immunity
Ct.
(2013)
(citing
(5th Cir. 2007)).
Once a
the
162
burden
shifts
to
the
plaintiffs to bear the burden of negating the qualified immunity
defense.
See Newman, 703 F.3d at 761.
47 F.3d 1427, 1433 (5th Cir. 1995)
See also Schultea v. Wood,
(en bane)
(recognizing that once
a defendant asserts qualified immunity, the plaintiff must "fairly
engage
II
the
immunity
defense
by
responding
with
factual
specificity) .
Citing ~~ 55-69 and 86-95 of their complaint, plaintiffs argue
that they have alleged facts capable of proving that each of the
individually named defendants "had actual knowledge of the sexual
harassment and abuse that A.W. suffered and failed to adequately
respond to protect A. W. ' s rights. 56
Plaintiffs argue that these
paragraphs allege facts capable of proving that
(1) Guy Sconzo, Superintendent and supervisor of Charles
Ned and Amanda Feenstra; (2) Charles Ned, the High School
Principal and immediate supervisor of Amanda Feenstra;
(3) Juan Melendez, Assistant Principal and co-supervisor
of Amanda Feenstra; (4) Tammy McHale, Assistant Principal
and co-supervisor of Amanda Feenstra; (5) Craig Stowers,
Assistant Principal and co-supervisor of Amanda Feenstra;
and (6) Alicia Narcisse, school counselor/administrator,
all had actual knowledge of the sexual harassment and
abuse that A. W. suffered and failed to adequately respond
to protect A. W. ' s rights. 57
56rd. at 17.
57rd.
-54-
Plaintiffs argue that
"[a] 11 Defendants had a
pivotal
role
in
establishing and maintaining the unconstitutional practices and
customs that led to the manner in which A. W. was treated. ,,58
Plaintiffs have alleged facts capable of establishing that
Feenstra spent an excessive amount of time with A.W., that Feenstra
left the school grounds with A.W., that Feenstra took A.W. on outof-town trips during which Feenstra would share a room and a bed
with
A.W.,
plaintiffs
which,
and
have
if any,
that
not
A.W.
moved
into
alleged any facts
Feenstra's
capable
of
home.
But
establishing
of the individual defendants other than Feenstra
knew that Feenstra engaged in sexual misconduct with A.W.
Instead of describing what each defendant allegedly knew or
did, plaintiffs make only generic and global references to "School
Officials," a term that they define to include Feenstra, the dance
teacher who undisputedly abused A.W.59
capable of proving which,
if any,
Absent allegations of fact
of the individual defendants
other than Feenstra, learned of facts or a pattern of inappropriate
behavior pointing plainly toward the conclusion that Feenstra was
58Plaintiffs' Original Complaint, Docket Entry No. 1,
~
77.
59Id. ~ 19 (defining "School Officials" as "Feenstra, Sconzo,
Ned, McHale, Melendez, Stowers, and McHale"). See also id. ~~ 8182 ("[I]n or about March 2013, Feenstra was arrested and charged
with a felony of Improper Relationship with Student, arising out of
Feenstra intentionally and knowingly engaging in Deviate Sexual
Intercourse with A.W., a student."; "On or about October 23, 2013,
Feenstra pleaded guilty to an improper relationship with a student
and was
sentenced to
10
years deferred adjudication and
probation.") .
-55-
sexually abusing A. W.,
plaintiffs
capable of proving that any of
deliberately
indifferent
have
the
to A. W. 's
failed
to
allege
facts
individual defendants were
rights by
"failing to
take
action that was obviously necessary to prevent or stop [Feenstra's]
abuse."
loS.D.,
§
Taylor 1. S. D., 15 F. 3d at 454.
76 F.3d 666,
668-69
&
n.2
See Doe v. Rains County
(5th Cir.
1996)
(dismissing
1983 claims brought by student and her parents against school
principal arising from a coach's sexual molestation of the student
because allegations that the principal knew the plaintiff babysat
for the coach, knew the coach walked the plaintiff to her bus, saw
the plaintiff crying and learned that she was having trouble with
a man, and asked another employee if there was anything going on
between the coach and the plaintiff "d[id] not even come close to
those
under which this
immunity in
court
[Taylor loS.D.,
[denied]
15 F.3d at 454]")
loS.D., 51 F.3d 48,52 (5th Cir. 1995)
no information that
the principal
i
qualified
Hagan v. Houston
("[b]ecause [principal] had
[coach] posed a threat to students, he could
not have been deliberately indifferent")
Because plaintiffs have failed to allege facts
proving
except
that
any of
the
Feenstra knew that
individual
school-official
Feenstra was
capable of
defendants
sexually abusing A. W. ,
plaintiffs have also failed to allege facts capable of proving that
any of these defendants were deliberately indifferent to A.W.'s
rights by "failing to take action that was obviously necessary to
prevent or stop
[Feenstra's]
abuse."
-56-
Taylor,
15 F. 3d at 454.
Thus,
plaintiffs'
allegations are neither sufficient to state a
personal capacity claim under
§
defendants
nor
except
defendants'
Feenstra,
1983 against any of the individual
sufficient
to
assertions of qualified immunity.
individual defendants' motion to dismiss the
§
overcome
these
Accordingly,
the
1983 claims asserted
against them in their personal capacities will be granted.
C.
State Law Claims
Plaintiffs assert claims against all defendants, including the
individual defendants,
supervise,
based on state law for failure to train,
and discipline,
and for sexual assault and battery,
negligence and gross negligence, bystander recovery, and infliction
of emotional distress
in violation of Texas common law.
HISD
argues that the state law claims asserted against it are barred by
sovereign immunity, and the individual defendants argue that the
state law claims asserted against them are barred by
the Texas Education Code
§
22.0511 of
the Texas educator immunity statute,
and by the Texas Tort Claims Act ("TTCA"), Texas Civil Practices &
Remedies Code 1.
§
101.106(e).
HISD Is Entitled to Dismissal of State Law Claims
In addition to the federal law claims asserted against HISD,
plaintiffs allege claims against HISD based on the common law of
the State of Texas for failure to train, supervise, and discipline,
and
for
sexual
negligence,
assault
bystander
and
battery,
recovery,
-57-
and
negligence
infliction
of
and
gross
emotional
distress. 6o
HISD argues that the state law tort claims should be
dismissed for want of jurisdiction under Federal Rule of Civil
Procedure 12(b) (1) because HISD is absolutely immune from damages
arising from common law torts. 61
School districts in Texas retain their sovereign/governmental
immunity from all common law claims unless the Texas Legislature
has expressly waived immunity in a specific statute.
Consolidated I.S.D. v. Garcia,
253 S.W.3d 653,
See Mission
655
(Tex.
2008).
The TTCA provides a limited waiver of immunity for certain suits
against
governmental
entities.
Under the
TTCA the only
permissible tort claim against a school district is a claim based
on misuse of a motor vehicle.
§§
101.001 and 101.051.
See Tex.
Consequently,
Civ.
Prac.
& Rem.
Code
plaintiffs cannot assert
common law claims for failure to train, supervise, and discipline,
and
for
sexual
negligence,
assault
bystander
and
battery,
recovery,
and
negligence
infliction
and
of
gross
emotional
distress against HISD.
See Doe v.
S&S Consolidated I.S.D.,
F.
(E.D.
2001)
Supp.
2d
274,
302
Tex.
(dismissing
physical abuse claims asserted against school district)
i
149
student's
Hopkins v.
6°Plaintiffs' complaint also cites the Texas wrongful death
statute, Tex. Civ. Prac, & Rem. Code §§ 71.001 and 71.021.
Plaintiffs' Original Complaint, Docket Entry No. I, ~ 4.
Since
plaintiffs have not alleged any wrongful death, this claim fails as
a matter of law.
See Saenz v. City of McAllen, 396 F. App'x 173,
179, 2010 WL 3852358 (5th Cir. October 4, 2010) (unpublished)
(Texas wrongful death statute does not waive Texas local
governments' governmental immunity).
61HISD's Motion to Dismiss, Docket Entry No. 16, p. 5.
-58-
Spring I.S.D., 736 S.W.2d 617, 619 (Tex. 1987)
(school district was
immune from claim based on failure to supervise students)
I.S.D. v. Watley, 216 S.W.3d 374, 382 & n.8
2006,
no
pet.)
(school
districts
misrepresentation and assault).
are
i
Midland
(Tex. App. - Eastland
immune
from
claims
of
Because plaintiffs have neither
alleged nor argued that any of the common law claims that they have
asserted in this action are claims for which the Texas Legislature
has waived HISD's sovereign immunity, HISD's motion to dismiss the
state claims asserted against it will be granted.
2.
Individual Defendants Are Entitled to Dismissal of State
Law Claims
The
TTCA
contains
an
election
of
remedies
clause
that
prohibits plaintiffs from suing both a governmental entity and its
employees
§
101.106.
for
tort
claims.
See
Tex.
Ci v .
Prac.
See also Garcia, 253 S.W.3d at 657
&
Rem.
Code
(u[The Texas Tort
Claims Act] forcers] a plaintiff to decide at the outset whether an
employee acted independently and is thus solely liable, or acted
within the general scope of his or her employment such that the
governmental unit is vicariously liable.
369 S.W.3d 268, 270
filed)
(Tex. App.
("Under the Texas Tort
provision,
lI
)
i
Fontenot v. Stinson,
Houston [14th Dist.]
2011, pet.
Claim Act's election-of -remedies
plaintiffs who are injured by governmental employees
must make a sometimes difficult choice of whether they wish to
pursue tort claims against either the employee or the employer. ") .
Here, plaintiffs have asserted tort claims against all defendants
-59-
for the failure to train, supervise, and discipline, and for sexual
assault and battery,
negligence and gross negligence,
bystander
recovery, and infliction of emotional distress.
The TTCA provides that when a tort suit is filed "against both
a governmental unit and any of its employees, the employees shall
immediately
be
dismissed
governmental unit."
also Bustos v.
2010) .
on
the
filing
Tex. Civ. Prac.
Martini Club,
Inc.,
&
of
a
Rem. Code
§
motion
by
the
101.106(e).
See
599 F.3d 458,
463
(5th Cir.
In its motion to dismiss HISD argues that the state law
claims asserted against the individual defendants are subject to
dismissal under the TTCA's election of remedies clause. 62
Although
plaintiffs argue that the individual defendants are not entitled to
dismissal
of
Individual
state
law
Defendants'
claims
"where
conduct
in
such
their
claims
involve
the
personal-capacity, 1163
plaintiffs have not cited any authority that
accords different
treatment to official and personal capacity tort claims asserted
against government employees under Texas law.
Moreover,
plain-
tiffs' argument has been rejected by a number of Texas intermediate
courts.
See Dung Ngoc Huynh v. Washington,
(Tex. App. - Dallas, 2011, no pet.)
i
339 S.W.3d 309,
311
Williams v. Nealon, 394 S.W.3d
9, 12 (Tex. App. -- Houston [1st Dist.], 2012, pet. denied)
i
Lund v.
62Id. at 6 (" [b] ecause the Plaintiffs have sued both Humble ISD
and its employees, the employees are entitled to automatic
dismissal of all tort claims against them due to operation of the
election-of-remedies provision in the Texas Tort Claims Act") .
63Plaintiffs' Response to Individual Defendants'
Dismiss, Docket Entry No. 25, p. 23.
-60-
Motion to
Giaugue, 416 S.W.3d 122, 124-25 (Tex. App. - Fort Worth, 2013, no
pet.)
(holding that a suit against a governmental employee acting
within the scope of his or her employment and sued in his or her
individual capacity must be dismissed under
§
101.106(f) even if
the governmental employer's immunity is not waived by the TTCA).
Because HISD's separately filed motion seeks dismissal of the state
tort
claims
asserted
against
the
individual
defendants,
the
individual defendants' motion to dismiss the state law tort claims
asserted against them will be granted.
IV.
Plaintiffs' Request for Leave
to Amend Will Be Denied
At the end of their responsive briefing to the defendants'
motions to dismiss,
complaint.
the plaintiffs request leave to amend their
In full, this general request states:
For the reasons discussed herein, Plaintiffs ask that the
Court deny the Motion to Dismiss.
Arguing in the
alternative, however, if the Court should determine that
more specificity is required in Plaintiffs' Complaint,
Plaintiffs request
leave to amend the Complaint.
Pursuant to Rule 15 (a) (2), courts should "freely give
leave [to amend] when justice so requires." Fed.R.Civ.P.
15 (a) (2). "The policy of the federal rules is to permit
liberal amendment to facilitate determination of claims
on the merits and to prevent litigation from becoming a
technical exercise in the fine points of pleading."
Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th
Cir. 1981).
In this event, Plaintiffs would ask for
leave to take discovery to secure the additional evidence
that HISD has refused to produce in response to requests
from the media and A. W. ' s family.
That way, a full
pleading can be made in the Complaint. 64
64Id. at 30-31.
See also Plaintiffs' Response in Opposition
to HISD's Motion to Dismiss, Docket Entry N. 24, p. 45.
-61-
Federal Rule of Civil Procedure 15(a) (2)
court
should
requires."
granting
freely
give
leave
[to
15 (a)
\ evinces
it
not
"AI though Rule
leave
to
amend,'
is
states that "[t]he
amend]
a
when
bias
F. 2d at
598).
"A decision
discretion of the trial court.
in
to grant
favor
of
of
(quoting Dussouy,
leave
Its discretion,
so
Matter
automatic."
Southmark Corp., 88 F.3d 311,314 (5th Cir. 1996)
660
justice
is within the
however,
is not
broad enough to permit denial if the court lacks a substantial
reason
to
do
so.
Id.
II
(citing
State
of
Louisiana v.
Mortgage Co., 50 F.3d 1298, 1302-1303 (5th Cir. 1995)).
Litton
Generally,
a district court errs in dismissing a complaint for failure to
state a claim under Rule 12(b) (6) without giving the plaintiff an
opportunity to amend.
Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th
Cir.),
119
cert.
denied,
S.
Ct.
156
(1998).
If,
however,
a
complaint alleges the plaintiff's best case, there is no need for
further amendment.
Cir.
1999)
See Jones v. Greninger, 188 F.3d 322, 327 (5th
(dismissing plaintiff's pro se action because court
could perceive of no viable claim plaintiff could include in an
amended
complaint
based on
the
underlying
facts)
The
Fifth
Circuit has also held that in exercising its discretion, a court
may consider undue delay,
failure
bad faith,
dilatory motive,
repeated
to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party,
proposed amendment.
and the futility of the
See Rosenzweig v. Azurix Corp., 332 F.3d 854,
-62-
864
(5th Cir.
2003)
(citing Foman v.
Davis,
83 S.
Ct.
227,
230
(1962)) .
The record demonstrates that plaintiffs initiated this action
on December 4,
2013
(Docket Entry No.1),
that defendants filed
their motions to dismiss on January 22, 2014 (Docket Entry Nos. 1617),
and that plaintiffs responded on February 24,
Entry Nos.
24-25),
defendants'
(Docket
by arguing that their Original Complaint is
factually sufficient to survive defendants'
Nevertheless,
2014
motions to dismiss.
in the last paragraphs of their responses to the
motions to dismiss plaintiffs include a request for
leave to amend unaccompanied by either a proposed amendment or a
substantive discussion of the amendments contemplated.
Instead,
plaintiffs' request for leave to amend is accompanied by a request
for "leave to take discovery to secure the additional evidence that
HISD has refused to produce in response to requests from the media
and A.W.'s family.
Complaint. 1165
That way, a full pleading can be made in the
The law in this circuit is that plaintiffs are not
entitled to an opportunity to satisfy the pleading requirements for
governmental liability when,
in response to a motion to dismiss,
the plaintiffs simply declare the adequacy of their complaint and
fail to take advantage of the opportunity to amend as a matter of
65Plaintiffs' Response to HISD' s Motion to Dismiss, Docket
Entry No. 24, p. 45.
See also Plaintiffs' Response to Individual
Defendants' Motion to Dismiss, Docket Entry No. 25, pp. 30-31.
-63-
right.
See Spiller v. City of Texas City, Police Department, 130
F.3d 162,
167
(5th Cir. 1997)
F.2d 789,
792-793
(5th Cir. 1986)).
F.3d 472, 479 (5th Cir. 1994)
to grant
granted
(citing Jacquez v.
plaintiff
defendant's
leave
801
See also Babb v. Dorman, 33
(affirming district court's refusal
to amend his
motion
Procunier,
to
complaint
dismiss
because
after
it
had
plaintiff
had
declared the sufficiency of his pleadings and failed to offer a
sufficient amended complaint in response to the defendant's motion).
Plaintiffs'
request for leave to take discovery to secure
additional evidence that HISD has refused to produce in response to
requests from the media and A.W.'s family shows that there is no
need for further amendment because the plaintiffs have alleged
their
best
plaintiffs'
time-barred,
case.
Moreover,
the
court's
conclusions
federal law claims based on Title IX and
that plaintiffs'
§
that
1983 are
state law claims against HISD are
barred by sovereign immunity, and that plaintiffs' state law claims
against the individual defendants are barred by the Texas Tort
Claims Act persuade the court that granting plaintiffs' motion for
leave
to
amend would be
futile.
Arthur R. Miller & Mary Kay Kane,
§
1487,
at
743
(2010)
("several
See
6 Charles Alan Wright,
Federal Practice & Procedure,
courts
have
held
that
if
a
complaint as amended could not withstand a motion to dismiss
then the amendment should be denied as futile").
Accordingly, the
plaintiffs' requests for leave to amend will be denied.
-64-
v.
Conclusions and Order
For the reasons explained above,
the Motion to Dismiss of
Defendant Humble Independent School District (Docket Entry No. 16)
is GRANTED; the Motion to Dismiss of Defendants Guy Sconzo, Charles
Ned,
Juan
Melendez,
Tammy
McHale,
Craig
Stowers,
and
Alicia
Narcisse (Docket Entry No. 17) is GRANTED; Plaintiffs' Motion for
Leave to File Surreply to Defendants' Replies to Motions to Dismiss
(Docket Entry No. 34) is GRANTEDi and plaintiffs requests for leave
to
amend asserted
motions
to
in plaintiffs'
dismiss
Accordingly,
all
of
(Docket
the
responses
Entry Nos.
claims
that
24
to
and
the
25)
plaintiffs
defendants'
are DENIED.
have
asserted
against the Humble Independent School District, Superintendent Guy
Sconzo, Principal Charles Ned, Assistant Principals Juan Melendez,
Tammy McHale,
and Craig Stowers,
and Guidance Counselor Alicia
Narcisse are DISMISSED WITH PREJUDICE.
SIGNED at Houston, Texas, on this the 11th day of June, 2014.
UNITED STATES DISTRICT JUDGE
-65-
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