Reshkovsky v. Valerio et al
OPINION AND ORDER. It is ordered that Valerio's Motion 12 to Dismiss is GRANTED. Claims against Valerio are DISMISSED WITH PREJUDICE. HISD's Motion 6 to Dismiss is GRANTED in that the tort claims against HISD, the Title IX claim again st Gasparello, and the §1983 claim against Gasparello in his individual and official capacity, are all DISMISSED WITH PREJUDICE. It is also ordered that Plaintiff's §1983 and Title IX claims against HISD are DISMISSED WITHOUT PREJUDICE.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
DAVID VALERIO, et al,
March 30, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 4:16-CV-1572
OPINION AND ORDER
Pending before the Court are Defendant Houston Independent School District’s
(“HISD’s”) Motion to Dismiss (Document No. 6) and Defendant David Valerio’s (“Valerio’s”)
Motion to Dismiss (Document No. 12). Plaintiff has not filed a response. Upon review of these
documents, the facts, and the relevant law, the Court determines that Defendant Valerio’s Motion
and Defendant HISD’s Motion will be granted.
Plaintiff Michael Reshkovsky was a student at HISD, where Defendant Valerio was a
teacher, and Defendant Robert Gasparello (“Gasparello”) is the principal. (Document No. 1 at 14). Plaintiff alleges that Valerio engaged in an inappropriate relationship with him, constituting
the typical “grooming” performed by sexual predators, and on one occasion, February 1, 2013
Valerio “grabbed Plaintiff’s groin.” Id. at 4-5. Plaintiff immediately reported this to another
teacher, and on the same day discussed the incident with Gasparello. Id. at 6. Plaintiff was then
transferred out of Valerio’s class, and contacted by an investigator with the Juvenile Sex Crimes
Division from HISD, but “stated that he did not wish to pursue the matter any further.” Id. At
some point after the incident, around October 2013, Plaintiff’s mother, Ms. Cisneros
(“Cisneros”), met with Gasparello, who allegedly told her that he did not believe Plaintiff, and
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told her to withdraw him from school. Id. at 7. Cisneros complied, enrolling Plaintiff in another
high school. Id.
In early 2014 Plaintiff was questioned by investigators with the Harris County District
Attorney’s Office, but was informed by the Special Victims Bureau that “they would be unable
to prosecute Defendant VALERIO due to many circumstance [sic], such as the way the case was
investigated by Defendant GASPARELLO and Defendant HOUSTON ISD.” Id. Subsequently,
in late January 2015, Plaintiff was interviewed by HISD in regards to an ongoing lawsuit
regarding the termination of Defendant Valerio. Id. at 8. Plaintiff provided a statement, and on
May 14, 2015 HISD “considered and approved a Separation Agreement and Full and Final
Release with Defendant VALERIO.” Id.
Plaintiff states that Gasparello violated Section 261.101 of the Texas Family code when
he did not make a report of the alleged abuse within 48 hours. Id. at 9-10. Because of this
conduct, Gasparello “agreed to accept an Inscribed Reprimand.” Id. at 10. Furthermore, Plaintiff
alleges that “Defendants either knew or had constructive knowledge of Defendant VALERIO’s
past history of improper sexual conduct with students of Sharpstown High School.” Id.
Plaintiff then brought this suit against Defendants. Plaintiff states that “each Defendant
was the agent and employee of Defendant HOUSTON ISD and was acting within such agency
and employment, and that each Defendant was acting under the color of state law,” and states
that he is suing both Valerio and Gasparello in their individual and official capacities. Id. at 2, 8.
Plaintiff’s claims are as follows:
(1) Plaintiff brings a claim under 42 U.S.C. § 1983 against Gasparello, alleging
“[v]iolation of his constitutional rights under the Fourteenth Amendment to the United States
Constitution to be free from state-sponsored deprivation of liberty [bodily integrity] without due
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process of law and enjoyment of equal protection under the law.” Id. at 9. Plaintiff alleges that
“Defendant GASPARELLO is liable for failing to supervise, failing to train, and/or acquiescing
to unconstitutional behavior by subordinates,” and is liable for his failure to investigate and
report the incident. Id. at 12.
(2) Plaintiff also brings a § 1983 claim against HISD for failure to train and supervise
teachers and school officials, failure to adequately supervise and discipline Valerio, responding
with indifference to his claims, and failure to “establish adequate procedures for reviewing
teacher performance.” Id. at 13-14.
(3) Plaintiff brings an assault and battery claim against Valerio. Id. at 15-16. Plaintiff also
brings this claim against HISD, stating that his resulting injuries “were the direct and immediate
consequences of Defendant HOUSON ISD’s tortious acts.” Id. at 16.
(4) Plaintiff brings a Title IX claim against HISD for its failure “to have policies,
procedures, practices, and customs in place to assure Plaintiff MICHAEL RESHKOVSKY was
not a victim of harassment based upon his gender.” Id. at 17. Plaintiff also appears to bring this
claim against Gasparello, stating that he “had the duty to report child abuse and they had the
authority to investigate the abuse and take disciplinary action, but they acted with deliberate
indifference by failing to make any report to take any corrective action until more than two
months had passed since being made aware of the first allegation of suspected child abuse by
Defendant VALERIO.” Id.
(5) Plaintiff brings an intentional infliction of emotional distress claim against Valerio
and HISD. Id. at 17-18. Plaintiff states that Valerio’s conduct was outrageous, and that “[s]uch
conduct by the Defendant VALERIO and Defendant HOUSTON ISD proximately caused
Plaintiff’s emotional distress, which was severe, as the acts caused his embarrassment, fright,
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horror, grief, shame, humiliation, and worry.” Id. at 18.
Pursuant to the above claims, Plaintiff asks for general damages, as well as punitive
damages under § 1983, due to Defendants’ egregious wrongdoing. Id. at 19.
Standard of Review
When a district court reviews a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), it
must construe the complaint in favor of the plaintiff and take all well-pleaded facts as true.
Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (citing Gonzalez v. Kay, 577 F.3d 600,
603 (5th Cir. 2009)). Dismissal is appropriate only if the complaint fails to plead “enough facts
to state a claim to relief that is plausible on its face.” Leal v. McHugh, 731 F.3d 405, 410 (5th
Cir. 2013) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the pleaded factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Montoya v. FedEx Ground Package
System, Inc., 614 F.3d 145, 148 (5th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). The plausibility standard is not akin to a “probability requirement,” but asks for more
than a “possibility that a defendant has acted unlawfully.” Twombly, 550 U.S. at 556. “While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do. . . .” Id. at 544.
(1) Tort Claims
Tort claims against Defendant Valerio
Plaintiff has asserted his claims of assault and battery and intentional infliction of
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emotional distress against Valerio in his official capacity and individually. (Document No. 1 at
1). The Court agrees with Defendants that the Texas Tort Claims Act (“TTCA”) rules regarding
“Election of Remedies” bar recovery against Valerio. The relevant portions of the TTCA are as
(e) If a suit is filed under this chapter against both a governmental unit and any of its
employees, the employees shall immediately be dismissed on the filing of a motion by
the governmental unit.
(f) If a suit is filed against an employee of a governmental unit based on conduct within
the general scope of that employee's employment and if it could have been brought under
this chapter against the governmental unit, the suit is considered to be against the
employee in the employee's official capacity only. On the employee's motion, the suit
against the employee shall be dismissed unless the plaintiff files amended pleadings
dismissing the employee and naming the governmental unit as defendant on or before the
30th day after the date the motion is filed.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106. These rules exist to “protect governmental
employees by favoring their early dismissal when a claim regarding the same subject matter is
also made against the governmental employer.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253
S.W.3d 653, 657 (Tex. 2008). Section (e) provides for dismissal of an individual where the
individual has been sued in his individual capacity, while section (f) provides for dismissal when
the employee has been sued in his official capacity. Lopez v. Harris Cty., No. CV H-15-3077,
2016 WL 5884750, at *8–9 (S.D. Tex. Oct. 7, 2016), judgment entered sub nom. Lopez v. Harris
Cty., Texas, No. CV H-15-3077, 2016 WL 5887250 (S.D. Tex. Oct. 7, 2016) (citation omitted).
Because Plaintiff has sued both HISD and Valerio for tort claims in this case, and HISD has filed
a motion to dismiss Valerio, section (e) bars Plaintiff’s claims against Valerio in his individual
capacity. Id.1 Therefore Plaintiff’s tort claims against Valerio in his individual capacity are
Confusingly, in the Complaint Plaintiff only appears to allege his claims against Valerio in his official capacity,
stating that his actions were “committed within the scope of his employment.” (Document No. 1 at 2). For
thoroughness, though, the Court finds that, even if the claims were intended to be alleged against Valerio in his
individual capacity, the claims are barred.
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Furthermore section (f) bars claims asserted against Valerio in his official capacity. “For
purposes of the TTCA, an employee is considered to have been sued in his official capacity
when the suit (1) is based on conduct within the general scope of his employment, and (2) could
have been brought under the TTCA against the government.” Id. at *9. In this case, although
Plaintiff states that he has asserted claims against Valerio both individually and in his official
capacity, Plaintiff says in the Complaint that “[e]ach of the acts complained of arise from the
conduct of Defendant VALERIO while acting under the color of state law, and was committed
within the scope of his employment with the HOUSTON INDEPENDENT SCHOOL
DISTRICT.” (Document No. 1 at 2). Thus, the first prong is conceded by Plaintiff. In addition,
Plaintiff could have brought (and did bring) his claims against HISD under the TTCA. Although
Plaintiff does not specifically state that his tort claims were brought under the TTCA, the Texas
Supreme Court has held that “[b]ecause the Tort Claims Act is the only, albeit limited, avenue
for common-law recovery against the government, all tort theories alleged against a
governmental unit, whether it is sued alone or together with its employees, are assumed to be
‘under [the Tort Claims Act]’ for purposes of section 101.106.” Mission Consol. 253 S.W.3d at
659 (citation omitted). Plaintiff’s claims of assault and battery and intentional infliction of
emotional distress are assumed to have been brought under the TTCA. This assumption holds
regardless of whether the TTCA actually waives immunity for said claims. See Alexander v.
Walker, 435 S.W.3d 789, 792 (Tex. 2014) (citing Franka v. Velasquez, 332 S.W.3d 367, 379-80
(Tex. 2011)). Lastly, as required under the statute, Valerio has filed a Motion to Dismiss.
Plaintiff’s tort claims against Valerio in his official capacity will also be dismissed.
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Tort Claims against Defendant HISD
HISD has sovereign immunity for the tort claims asserted against it. As noted by
Defendants, “Texas school districts retain their sovereign/governmental immunity from all
common law claims unless the Texas Legislature has expressly waived immunity in a specific
statute.” (Document No. 6 at 7). The TTCA offers a limited waiver of immunity for certain tort
claims against governmental entities, but this waiver does not extend to intentional torts such as
assault, battery, and intentional infliction of emotional distress. Tex. Civ. Prac. & Rem. Code
Ann. § 101.057 (“This chapter does not apply to a claim…arising out of assault, battery, false
imprisonment, or any other intentional tort, including a tort involving disciplinary action by
school authorities.”). See, e.g., Brown v. Taylor, No. 4:12-CV-698-A, 2016 WL 6583660, at *6
(N.D. Tex. Nov. 4, 2016). Therefore Plaintiff’s assault, battery, and intentional infliction of
emotional distress claims against HISD will be dismissed.
(2) § 1983 Claims
§ 1983 Claim against Defendant Gasparello
In his Complaint, Plaintiff states that he is suing Gasparello in his individual and official
capacities. (Document No. 1 at 2). The § 1983 claim against Gasparello in his official capacity is
repetitive of the § 1983 claim against HISD. As the Supreme Court explained in Kentucky v.
Official-capacity suits… “generally represent only another way of pleading an action
against an entity of which an officer is an agent.” Monell v. New York City Dept. of Social
Services, 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 2035, n. 55, 56 L.Ed.2d 611 1978). As
long as the government entity receives notice and an opportunity to respond, an officialcapacity suit is, in all respects other than name, to be treated as a suit against the entity.
Brandon, supra, 469 U.S., at 471–472, 105 S.Ct., at 878.2 It is not a suit against the
official personally, for the real party in interest is the entity.
473 U.S. 159, 165–66 (1985). Therefore, because the Plaintiff’s § 1983 claim against Gasparello
Brandon v. Holt, 469 U.S. 464 (1985).
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in his official capacity is really a suit against HISD, already a party to this case, the claim will be
dismissed. Jenkins v. Bd. of Educ. of Houston Indep. Sch. Dist., 937 F. Supp. 608, 613 (S.D. Tex.
The allegations against Gasparello, to the extent they are claimed to be in his individual
capacity are also unavailing. The factual basis for Plaintiff’s §1983 liberty interest/bodily
integrity claim is that he was sexually assaulted in the classroom by Defendant Valerio on
February 1, 2013, but there is no allegation that Gasparello was in any way involved in the
sexual assault. In Iqbal the claim asserted by the plaintiff was that the Attorney General of the
United States and the director of the FBI “knew of, condoned, and willfully and maliciously”
acted in violation of his rights under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388
1971 (analogous to suits against state officials for violations of fourteenth amendment rights
under 42 U.S.C. §1983). The Supreme Court held that supervisory officers could not be held
liable for the unconstitutional conduct of their subordinates under a theory of respondeat
superior, but only for their own individual acts in violation of the Constitution.
vicarious liability, each Government official, his or her title notwithstanding, is only liable for
his or her own misconduct.”
Iqbal, at 677.
Here the Plaintiff alleges that “Defendants
[including Gasparello], failed to install, maintain and enforce the proper procedures and
measures to prevent the acts in question as a matter of policy, which allowed and caused the
alleged events to occur.” Doc. 1 at paragraph 12). Plaintiff asserts no facts to support his
conclusory allegation that his alleged constitutional deprivation resulted from any personal
misconduct of Gasparello.
The allegation is that Gasparello failed to train his subordinates, presumably Valerio, and
that failure led to the constitutional violations against the Plaintiff. Doc. 1 at paragraph 5.6.
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Failure to train, however, is not a separate cause of action under §1983, but is a method for
proving entity liability for the violation of an independent constitutional right. See, for example,
Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (“Monell [v. Dep't of Soc. Servs.,
436 U.S. 658, (1978)] does not provide a separate cause of action for the failure by the
government to train its employees; it extends liability to a municipal organization where that
organization’s failure to train, or the policies or customs that it has sanctioned, led to an
independent constitutional violation.”).
The scope of failure to train liability is a very narrow one indeed. City of Canton v.
Harris, 489 U.S. 378 (1989), Connick v. Thompson, 563 U.S. 51, (2011). In all of these kinds of
cases the plaintiff must show that the “failure to train” directly resulted in the plaintiff’s injury.
No injury is alleged after the incident of February 1, 2013.
Rather, Plaintiff alleges that
“Gasparello is liable for failing to supervise, failing to train, and/or acquiescing to
unconstitutional behavior by subordinates.” Doc 1 at paragraph 5.6. Gaspaarello is further
alleged to have shown “deliberate indifference to Plaintiff’s constitutional rights by failing to
properly train and supervise Houston Independent School District teachers and/or offices [sic]”
Id. It is also alleged that “Gasparello is liable under § 1983, as there is a casual [sic] connection
between their [sic] actions and/or omissions and Plaintiff’s constitutional violations, as outlined
throughout this entire pleading.” Id. Finally, Plaintiff alleges that “Gasparello’s supervisory
failures, including their [sic] failure to properly investigate and/or report suspected child abuse,
amounted to a departmental policy that violated Plaintiff’s civil rights. Defendant Gasparello
also failed to act despite allegations of a pattern of inappropriate sexual behavior by Defendant
Valerio.” Id. These allegations against Gasparello, which would seem to amount to those duties
he allegedly failed to perform in his official capacity, simply do not rise to the level, mandated
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by Iqbal and Twombly, to state a claim for §1983 liability that “is plausible on its face” (Iqbal at
678), in either capacity, as discussed above on page 4 and below in the next section of this
§ 1983 Claim against Defendant HISD
Defendants argue that “Plaintiff has failed to plead facts that the alleged sexual assault
against him occurred in accordance with official Houston ISD policy or firmly entrenched
custom tolerating misconduct, as required for municipal liability under Monell” (Doc. 6 at 8) and
the Court agrees.
Title 42 U.S.C. § 1983 does not grant substantive rights, but provides a vehicle for a
plaintiff to vindicate rights protected by the United States Constitution and other federal laws.
Albright v. Oliver, 510 U.S. 266, 271 (1994). It provides a cause of action for individuals who
have been “depriv[ed] of [their] rights, privileges, or immunities secured by the Constitution and
laws” of the United States by “a person” acting under color of state law. Id. The Supreme Court
has made it clear that “a municipality cannot be held liable solely because it employs a tortfeasor,
or, in other words, a municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Monell, at 691. Rather, “to distinguish individual violations perpetrated by
local government employees from those that can be fairly identified as actions of the government
itself,” municipal liability under § 1983 requires proof of three elements: “a policymaker; an
official policy; and a violation of constitutional rights whose ‘moving force’ is the policy or
custom.” Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell, 436
U.S. at 694). The HISD Board of Trustees is the “one and only policymaker for HISD.” Rivera v.
Hous. Indep. Sch. Dist., 349 F.3d 244, 248 (5th Cir. 2003). An “official policy” is:
1. A policy statement, ordinance, regulation, or decision that is officially adopted or
promulgated by the municipality's lawmaking officers or by an official to whom the
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lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of city officials or employees, which, although not
authorized by officially adopted and promulgated policy, is so common and well settled
as to constitute a custom that fairly represents municipal policy. Actual or constructive
knowledge of such custom must be attributable to the governing body of the municipality
or to an official to whom that body had delegated policy-making authority.
Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (per curiam). Accordingly, to
state a claim against HISD, Plaintiffs must allege facts showing that the school district's “final
policymaker,” the school board actually adopted an unconstitutional policy or that it otherwise
knew about or acquiesced in a permanent and deeply imbedded, abusive, and unconstitutional
practice. See Piotrowski, 237 F.3d at 578–79.
In his complaint, Plaintiff includes no references at all to the school board, the official
policymaker for HISD, but instead only refers to school officials.3 Without allegations relating to
a policymaker, or alleging that an official was delegated policy-making authority, Plaintiff
cannot meet the first prong for liability under Monell. Merely referring to school officials as
“policymakers” is conclusory, and insufficient under Rule 12(b)(6). Twombly, 550 U.S. at 556.
As noted by Defendants, “Plaintiff does not allege that the Houston ISD Board of Education had
any involvement in the assault against him. He has not alleged that the Houston ISD Board of
Education adopted policies, regulations, bylaws, or ordinances that contributed to the assault, nor
that the Board permitted ‘persistent and widespread practices’ or ‘practices that are permanent
and well settled and deeply embedded traditional ways of carrying out policy.’” (Document No.
6 at 9-10) (citing Bennett v. City of Slidell, 728 F.2d 762 768 (5th Cir. 1984)). In addition to
failing to allege the first prong under Monell, Plaintiff also fails to meet the second: an official
policy. Plaintiff makes no allegation of an official policy, nor does Plaintiff allege any incidents
It is not clear whether Plaintiff is only alleging that Gasparello was the “official” at fault, or whether Plaintiff is
asserting his claims against additional HISD officials as well. Regardless, the official policymaker for HISD is the
school board, which Plaintiff does not mention. A principal, such as Gasparello, does not have final policy making
authority. Rivera v. Hous. Indep. Sch. Dist., 349 F.3d 244, 248 (5th Cir. 2003) (citations omitted).
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other than the alleged sexual assault. See Rivera, 349 F.3d at 247 (“[I]solated unconstitutional
actions by municipal employees will almost never trigger liability.”); Fraire v. City of Arlington,
957 F.2d 1268, 1278 (5th Cir. 1992) (“Allegations of an isolated incident are not sufficient to
show the existence of a custom or policy.”). For these reasons, Plaintiff fails to state a claim
against HISD under § 1983.
Plaintiff’s attempts to assert that HISD is liable due to its inadequate policies regarding
hiring, training, and supervising fail for similar reasons. Demonstrating liability on these bases
requires proof that “(1) the training or hiring procedures of the municipality’s policymaker were
inadequate, (2) the municipality’s policymaker was deliberately indifferent in adopting the hiring
or training policy, and (3) the inadequate hiring or training policy directly caused the plaintiff’s
injury.” Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996) (citations omitted). See also, City of
Canton v. Harris, 489 U.S. 378, 389 (1989) (“Only where a municipality’s failure to train its
employees in a relevant respect evidences a ‘deliberate indifference’ to the rights of its
inhabitants can such a shortcoming be properly thought of as a city ‘policy or custom’ that is
actionable under § 1983.”); Ward v. Quada, No. CIV.A H-09-2759, 2009 WL 3602075, at *6
(S.D. Tex. Oct. 27, 2009) (“In a § 1983 claim for failure to supervise or train, the plaintiff must
show that: ‘(1) the supervisor either failed to supervise or train the subordinate official; (2) a
causal link exists between the failure to train or supervise and the violation of the plaintiff's
rights; and (3) the failure to train or supervise amounts to deliberate indifference.’”) (citations
omitted). To demonstrate deliberate indifference, “[a] pattern of similar constitutional violations
by untrained employees is ‘ordinarily necessary.’” Connick v. Thompson, 563 U.S. 51, 62
(2011) (citation omitted). In the absence of previous violations, a plaintiff must show the alleged
violation was a “highly predictable consequence” of a failure to train. Bd. of Cty. Comm'rs of
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Bryan Cty., Okl. v. Brown, 520 U.S. 397, 398 (1997). Here, Plaintiff has not alleged any previous
violations, nor has he claimed that any alleged violations were a “highly predictable
consequence” of HISD’s failure to train. Plaintiff merely states that Defendants acted with
“deliberate indifference,” which is a conclusory statement insufficient to state a claim under Rule
12(b)(6). Twombly, 550 U.S. at 556. For these reasons, Plaintiff’s § 1983 claim against HISD
will be dismissed.
(3) Title IX Claims
Title IX Claim against Defendant HISD
Plaintiff states that HISD is liable under Title IX for its “failure to have policies,
procedures, practices, and customs in place to assure Plaintiff MICHAEL RESHKOVSKY was
not a victim of harassment based upon his gender and/or sexual assaults.” (Document No. 1 at
17). Plaintiff also states that “Defendant GASPARELLO had the duty to report child abuse and
they had the authority to investigate the abuse and take disciplinary action, but they acted with
deliberate indifference by failing to make any report to take any corrective action until more than
two months had passed since being made aware of the first allegation of suspected child abuse by
Defendant VALERIO.” Id.
“Under Title IX, ‘[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 subjected to discrimination under any
education program or activity receiving Federal financial assistance.’” Drye-Durden v. Stripling,
No. CIV.A. H-04-2817, 2006 WL 1663742, at *4 (S.D. Tex. June 14, 2006) (citing 20 U.S.C. §
1681(a); Rosa H. v. San Elizario Independent School Dist., 106 F.3d 648, 652 (5th Cir. 1997)).
In a case of sexual assault by a teacher, “a ‘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
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would occur.’ Thus, the Fifth Circuit requires some proof that the school district knew of a
perpetrator’s sexual proclivities.” Id. (quoting Rosa H., 106 F.3d 652-53). Furthermore, this
actual knowledge must be had by “an official of the recipient entity with authority to take
corrective action to end the discrimination,” who then, acting with deliberate indifference,
“refuses to take action to bring the recipient into compliance.” Gebser v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274, 290 (1998).4 Deliberate indifference exists “only where the recipient's
response to the harassment or lack thereof is clearly unreasonable in light of the known
circumstances.” Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648
(1999). Furthermore, in order for a school district to be liable for damages, the deliberate
indifference of its employee must have “effectively caused the discrimination.” Id. at 642-3
(citing Gebser, 524 U.S. at 291).
First, to the extent that Plaintiff argues that HISD’s policies and procedures were
insufficient, he fails to state a claim under Title IX. Gebser, 524 U.S. at 292-3. Second, Plaintiff
does not allege that Gasparello, or any other HISD official, had actual knowledge of Valerio’s
actions or proclivities until his report of the alleged assault on February 1, 2013. (Document No.
1 at 6).5 Therefore HISD cannot be liable for any of the alleged “grooming” which took place
beforehand. Id. at 4-5. However, after February 1, 2013, Plaintiff has sufficiently alleged that an
appropriate person (Gasparello) had actual knowledge of the assault. Therefore the inquiry
becomes whether Gasparello’s response to the allegation was “clearly unreasonable,” and, if so,
whether his deliberate indifference “effectively caused the discrimination.”
HISD “concedes for purposes of this Motion that Gasparello was an ‘appropriate person’ under Title IX.”
(Document No. 6 at 19).
Plaintiff does make a conclusory allegation that “Defendants either knew or had constructive knowledge of
Defendant VALERIO’s past history of improper sexual conduct with students of Sharpstown High School.”
(Document No. 1 at 10). However, without additional details, this conclusory accusation is not sufficient to allege
that any party had actual knowledge of Valerio’s proclivities before the alleged assault. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 544 (2007).
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Plaintiff has failed to adequately allege both. First, there is no indication that Gasparello’s
response to Plaintiff’s allegation was “clearly unreasonable.” Plaintiff states that he was
transferred into another class “shortly thereafter,” and that “during the semester” Plaintiff was
contacted by an investigator with the Juvenile Sex Crimes Division. Id. at 6. Plaintiff also
discussed the case with the Harris County District Attorney’s Office. Id. at 7. Furthermore, HISD
considered firing Valerio, although he eventually resigned. Id. at 8. Each of these occurrences
suggests that Gasparello did not react to the accusation unreasonably, or with “deliberate
indifference.” Additionally, Plaintiff’s allegations that Gasparello did not believe him do not
amount to deliberate indifference. Id. at 7; see Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 220
F.3d 380, 388 (5th Cir. 2000) (principal’s response to sexual assault allegations was not
“inadequate,” even when she mistakenly concluded that the allegations were false). Finally,
Plaintiff’s claim that Gasparello did not take action for more than two months is also insufficient
because Plaintiff does not allege that he suffered any harm due to this delay, or that Valerio had
any further contact with him. Therefore, even if Gasparello’s failure to take prompt action can be
described as deliberate indifference,6 Plaintiff has not alleged any damages caused by this
failure. For these reasons, Plaintiff’s Title IX claim against HISD will be dismissed.
Title IX Claim against Defendant Gasparello
It appears that Plaintiff is also asserting his Title IX claim against Gasparello, but Title IX
“has consistently been interpreted as not authorizing suit against school officials, teachers, and
other individuals.” Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257 (2009) (citations
omitted). Therefore the Title IX claim against Gasparello, in both his individual and official
capacity, will be dismissed.
The Court does not opine on this matter specifically, as the exact timeline of the actions taken by Gasparello is
unclear from the Complaint.
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All of Plaintiff’s claims will be dismissed. Plaintiff’s tort claims against all parties are
barred, and will be dismissed with prejudice. Furthermore, Plaintiff’s §1983 claim against
Gasparello in his individual and official capacity will be dismissed with prejudice. Plaintiff’s
Title IX claim against Gasparello is not authorized by the statute, and will be dismissed with
prejudice. HISD’s motion to dismiss §1983 and Title IX claims against HISD will be dismissed
without prejudice. Therefore the Court hereby
ORDERS that Defendant Valerio’s Motion to Dismiss (Document No. 12) is
GRANTED. The claims asserted against Defendant Valerio are DISMISSED WITH
PREJUDICE. The Court also
ORDERS that Defendant HISD’s Motion to Dismiss (Document No. 6) is GRANTED in
that the tort claims against HISD, the Title IX claim against Gasparello, and the
§1983 claim asserted against Gasparello in his individual and official capacity, are all
DISMISSED WITH PREJUDICE. The Court also
ORDERS that Plaintiff’s §1983 and Title IX claims against HISD are DISMISSED
SIGNED at Houston, Texas, this 29th day of March, 2017.
UNITED STATES DISTRICT JUDGE
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