Filing 55

MEMORANDUM OPINION AND ORDER granting 43 SEALED MOTION FOR SUMMARY JUDGMENT; denying 46 MOTION to Strike 44 Sealed Response to Defendant's Motion for Summary Judgment. (Signed by Judge George C Hanks, Jr) Parties notified.(gclair, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JAMES HOOP, et al,
Plaintiffs,
VS.
PASADENA INDEPENDENT SCHOOL
DISTRICT, et al,
Defendants.

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June 12, 2020
David J. Bradley, Clerk

CIVIL ACTION NO. 4:18-CV-2424

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Pasadena Independent School District’s Motion for
Summary Judgment. Dkt. 43. Having reviewed the motion, response, reply, and the
applicable law, the Court GRANTS the motion.
I.

Background
Viewed in the light most favorable to the plaintiff as the non-movant, unless

otherwise noted, the relevant facts are as follows. Plaintiff James Hoop (Hoop) is suing in
his capacity as father of M.H., a minor child, who was a student in the seventh grade at
Bondy Intermediate School in Pasadena ISD (Bondy) during the 2016–‘17 school year.
The events underlying this lawsuit began when M.H. was in seventh and continued into
her freshman year at Pasadena Memorial High School (PMHS).
At a Bondy school-sponsored choir event on February 23, 2017, M.H. was
assaulted by another Bondy student, M.P., injuring M.H.’s jaw and causing a concussion.
Dkt. 43-2 at 10–15. Other students video-recorded the altercation. Dkt. 43-28 at 16. Hoop
reported the assault to the Pasadena ISD Police Department the same night, with the
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school administration’s support. Dkt. 44-1 at 35. The administration also referred M.H. to
a neurologist. Dkt. 44-1 at 41.
Pasadena ISD police arrested M.P. at school the next day. Dkt. 43-2 at 5. The
administration assigned her to a separate campus, called “The Summit” or the “District’s
Alternative Education Program,” for the remainder of the school year. Dkt. 43-3 at 1.
M.H. and Hoop testified in deposition to several other instances of harassment.
The day after the assault, other students pointed at M.H., laughed at her, and made
reference to the assault. Dkt. 44-2 at 35–39. She reported the harassment to one of her
teachers, who called the administration, ultimately notified Hoop, and took M.H. to the
nurse’s office. Dkt. 44-2 at 35–39. Police visited the school and met with Hoop and M.H
to take a statement. Dkt. 44-2 at 41. Principal Lee and an assistant principal told Hoop
that they planned to review surveillance footage of the assault, talk to those students, and
delete any recordings of the assault from their phones. M.H. testified that, to her
knowledge, the administration did follow through on these steps. See, e.g., Dkt. 44-2 at
47. Pasadena ISD correspondence indicates that students who videoed the assault were
suspended or otherwise disciplined. See, e.g., Dkt. 43-28 at 16; Dkt. 43-3 at 1.
M.H. continued to endure harassment over social media. Around May 2017, Hoop
reported to Bondy Principal Roneka Lee that a student was posting videos referencing the
assault. Dkt. 43-3 at 2. Hoop did not identify who posted the videos or provide
screenshots. Dkt. 43-3 at 2. After summer vacation, in August 2017, Hoop against
reported to the Pasadena ISD administration that students were harassing M.H. on social
media. Dkt. 43-3 at 4. Principal Lee investigated the allegations. She interviewed a
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student who was friends with M.P., who provided the usernames of individuals she
thought may have posted the harassing videos. Dkt. 43-3 at 4. Lee searched for those
videos and usernames, but could not find them or identify the individuals who posted
them. Dkt. 43-3 at 4.
In the spring of 2018, Hoop reported that students were posting video-recordings
of the initial assault on social media. Dkt. 43-3 at 5. Principal Lee asked for information
that could help identify the individuals who posted these videos, but Hoop did not
provide any identifying information. Dkt. 43-3 at 5.
In July 2018, Hoop called the superintendent of Pasadena ISD, Dr. DeeAnn
Powell, to report additional posts to social media about the initial assault. Dkt. 43-19 at 2.
Dr. Powell requested any available identifying information about the individuals who
posted about the assault, but Hoop did not provide any. Dkt. 43-19 at 3.
In September 2018, Hoop told PMHS Principal Jeremy Richardson that an
unidentified student had shown M.H. a photo of the assault and a related meme on social
media. Dkt. 43-29 at 1–2. Richardson requested additional identifying information to help
investigate who had shown M.H. the photo and who was posting the photos online, but
Hoop did not have or provide the information. Dkt. 43-29 at 2.
In October 2018, during math class, M.H. heard two male students mocking her
and laughing, referencing M.P.’s assault. She reported the male students’ behavior to
Principal Richardson, who spoke with the students to warn them about the consequences
if they continued to harass M.H. See Dkt. 43-29 at 2; Dkt. 43-35 at 2–3. M.H. testified in

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deposition that the students, in turn, mocked M.H. again after their meeting with the
teacher. Dkt. 44-2 at 93–99.
In December 2018, Principal Richardson promptly investigated an incident of
what turned out to be “friendly horseplay.” Dkt. 43-29 at 2–3. During that investigation,
Hoop showed Richardson a meme posted to social media. Dkt. 43-29 at 2–3. Richardson
and two assistant principals, Jon Thompson and Shaun Owen, searched social media for
the usernames associated with the post Hoop showed them, but they could not find the
post or identify the individuals who posted the meme because the accounts were
deactivated or set to private. Dkt. 43-29 at 2–3.
In February 2019, two female students in M.H.’s Spanish class showed the video
of M.H.’s assault to their Spanish teacher, who, upon learning of the nature of the video,
confiscated the students’ phones. Dkt. 44-2 at 103–107; Dkt. 44-1 at 77–78. Principal
Richardson and Assistant Principal Thompson investigated this incident and met with
Hoop about it. Dkt. 43-29 at 3.
Hoop filed this action on July 13, 2018. Dkt. 1. He has since amended his
complaint. Dkts. 7, 20. He alleges, in relevant part, that M.H. was subjected to racial
harassment by other students at her school, and that Pasadena ISD remained deliberately
indifferent to the harassment in violation of Title VI of the Civil Rights Act of 1964. See
Dkt. 20 (Second Amended Complaint).1

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As Pasadena ISD notes in its Motion for Summary Judgment, it is immune from suit for
negligent supervision, unless the claim arises out of the operation of a motor vehicle. See,
e.g., Pierce v. Hearne Indep. Sch. Dist., 600 F. App’x 194, 197 (5th Cir. 2015). To the
extent Hoop raises such a claim, it is dismissed as well.
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II.

Legal Standards
A. Summary Judgment
In deciding a motion for summary judgment under Federal Rule of Civil

Procedure 56, the Court must determine whether the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law. Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). “An issue is material if its resolution
could affect the outcome of the action. A dispute as to a material fact is genuine if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (citations and internal
quotations omitted). In deciding whether a genuine and material fact issue has been
created, the Court must review the facts and the inferences to be drawn from those facts
in the light most favorable to the non-movant. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003).
B. Title VI
A school district receiving federal funds may be liable for student-on-student
harassment if (1) the harassment was “so severe, pervasive, and objectively offensive that
it can be said to deprive the victims of access to educational opportunities or benefits
provided by the school” (a racially hostile environment), and the district (2) had actual
knowledge, (3) had “control over the harasser and the environment in which the
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harassment occurs,” and (4) was deliberately indifferent. Fennell v. Marion Indep. Sch.
Dist., 804 F.3d 398, 408 (5th Cir. 2015).

III.

Analysis

Pasadena ISD argues, among other things, that no reasonable jury could find that
Pasadena ISD responded with deliberate indifference to any of the bullying or harassment
M.H. suffered. Viewing all the evidence in the light most favorable to Hoop, the Court
finds that Pasadena ISD is entitled to summary judgment because Hoop has not shown
that there is a genuine issue of material fact whether Pasadena ISD responded to Hoop’s
harassment with “deliberate indifference.”
Due to the “flexibility school administrators require . . . a school district should be
deemed ‘deliberately indifferent’ to acts of student-on-student harassment only where the
recipient’s response to the harassment or lack thereof is clearly unreasonable in light of
the known circumstances. Mere negligence will not suffice. Accordingly, officials may
avoid liability under a deliberate indifference standard by responding reasonably to a risk
of harm, even if the harm ultimately was not averted.” Fennell v. Marion Indep. Sch.
Dist., 804 F.3d 398, 410 (5th Cir. 2015) (citing Davis Next Friend LaShonda D. v.
Monroe Cty. Bd. of Educ., 526 U.S. 629, 645 (1999)) (internal quotations, citations, and
brackets omitted).
The evidence here, even viewed in the light most favorable to Hoop, fails to raise
a genuine dispute whether Pasadena ISD’s responses to these incidents were “clearly
unreasonable” under controlling authority. Fennell, 804 F.3d at 410–11 (affirming
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summary judgment for school district because school district “took some action in
response to almost all of the incidents noted by [p]laintiffs,” despite some incidents of the
use of a racial slur responded to “with relatively mild punishments”). In particular,
Pasadena ISD took relatively strong and immediate action to address the assault. See id.
(affirming summary judgment for defendant school district in part because defendant
“took relatively strong action to address the most egregious incidents”). Administrators
re-assigned M.P., the student who assaulted M.H., to another campus for the remainder of
the school year. Dkt. 43-3 at 1. They suspended the students who video-recorded the
fight. Dkt. 43-3 at 1; Dkt. 44-1 at 171. And they assisted M.H. in filing a police report
and referred her to appropriate medical treatment. Dkt. 43-3 at 2; Dkt. 44-1 at 31–35, 41.
See, e.g., Watkins v. La Marque Indep. Sch. Dist., 308 Fed. App’x. 781, 784 (5th
Cir.2009) (per curiam) (unpublished) (concluding that a school did not act with deliberate
indifference to student’s sexual harassment where it separated the student from the
harasser and provided the student “with an escort at all times”). M.H. testified that the
school administration reviewed surveillance footage of the fight, identified the students
involved, called them into the administration’s offices, and deleted any recordings of the
altercation from their phones. Dkt. 44-2 at 43–47. PMHS Principal Richardson also
invited M.H. to participate in a program offering free counseling services to address
traumatic events and mental health issues. See, e.g., Dkt.43-29 at 2.
Regrettably, video footage of the fight was disseminated online. Still, viewing the
evidence in the light most favorable to Hoop, Pasadena ISD acted reasonably to identify
the students who re-posted the video when it could, took the video down if possible, and
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disciplined any Pasadena ISD students responsible. See, e.g., Dkt. 43-3 at 2; Dkt. 43-30 at
3; Dkt. 43-35 at 2–4; Dkt. 43-29 at 2–3. The fact that Pasadena ISD did not succeed in
taking down every post on social media referencing the fight is not enough to show
deliberate indifference. Fennell, 804 F.3d at 411 (“Ineffective responses . . . are not
necessarily clearly unreasonable.”) (quoting Sanches v. Carrollton-Farmers Branch
Indep. Sch. Dist., 647 F.3d 156, 168 (5th Cir. 2011)).
Pasadena ISD also took some reasonable steps meant to lessen the assault’s
interference with M.H.’s educational experience. Bondy administrators afforded M.H. an
additional opportunity to try out for the school’s cheerleading team, since her concussion
prevented her from participating in some of the otherwise-mandatory practice sessions.
Dkt. 43-3 at 3. (M.H. ultimately decided not to try out. Dkt. 43-3 at 3.) PMHS Principal
Richardson also invited M.H. to participate in “Innovative Alternatives,” a program
offering counseling to victims of crime, free of charge. Dkt. 43-29 at 2.
Hoop asserts that Pasadena ISD was deliberately indifferent to the harassment,
pointing to a few specific facts. Hoop testified in deposition that he visited the Pasadena
ISD headquarters to try to meet with the superintendent “a couple times,” and that an
unidentified “legal lady” at the office told him that she could not speak to him directly
because he was represented by counsel. Dkt. 44-1 at 95–98. This event does not reflect
deliberate indifference. In fact, speaking with Hoop directly while he was represented by
counsel would have been improper. See, e.g., Model Rules of Prof’l Conduct R. 4.2 (Am.
Bar Ass’n 2015) (“[A] lawyer shall not communicate about the subject of the

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representation with a person the lawyer knows to be represented by another lawyer in the
matter.”).
Hoop also asserts that the superintendent discouraged Hoop and M.H. during a
meeting with them when he said that “in [his] heart of hearts, [he] [did] not believe that
he [unidentified] would do this.” Dkt. 44-1 at 75. The record does not clearly disclose
who this statement was referring to, but even taken as true and in the light most favorable
to Hoop, considering the record of Pasadena ISD’s response as a whole, this statement
does not rise to the level of deliberate indifference under Title VI. Fennell, 804 F.3d at
411 (“[T]hese relatively weak responses to harassment are concerning but are not
tantamount to [the defendant school district] intentionally ‘subjecting its students to
harassment.’”).
Hoop also asserts that the school district failed to implement sensitivity or antibullying training, or hire a sensitivity counselor, as he requested. Dkt. 44-1 at 87–91. But
the school district is “not required to remedy the harassment or accede to a parent’s
remedial demands.” Fennell, 804 F.3d at 411 (affirming summary judgment for school
district although “[p]laintiffs did not receive all of the remedies they requested through
the grievance process and [the defendant school district]’s actions did not alleviate all
issues of racial harassment in its schools”).
Finally, Hoop repeatedly and generally asserts that school administration officials
did not take any action, or that “everyone that [he] talked to . . . dismissed [the
harassment].” See, e.g., Dkt. 44-1 at 83; Dkt. 44-2 at 73–77. These general, conclusory
assertions do not genuinely dispute any of the specific actions Pasadena ISD took, as
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reflected in the record. The assertions are not adequate to overcome summary judgment.
See, e.g., Kariuki v. Tarango, 709 F.3d 495, 505 (5th Cir. 2013) (“[A] vague or
conclusory affidavit is insufficient to create a genuine issue of material fact in the face of
conflicting probative evidence.”).

IV.

Hoop’s Claims Against Sovonya Williby
Hoop’s Second Amended Complaint also asserts a claim for negligent supervision

against M.P.’s parent, Sovonya Williby. Dkt. 20 at 12. Hoop has not filed proof of
service of his complaint on Williby or otherwise furthered his claims against her.
Accordingly, his claims against Williby are DISMISSED WITHOUT PREJUDICE for
want of prosecution. See Fed. R. Civ. P. 41(b).
V.

Conclusion
Defendant Pasadena Independent School District’s Motion for Summary Judgment

(Dkt. 43) is GRANTED. Plaintiff James Hoop’s claims against Pasadena ISD, raised as
next friend and father of M.H., a minor child, are DISMISSED WITH PREJUDICE.
Hoop’s claims against Sovonya Williby, raised as next friend and father of M.H., a minor
child, are DISMISSED. Defendant Pasadena ISD’s Motion to Strike Plaintiff’s Response
to Defendant’s Motion for Summary Judgment (Dkt. 46) is DENIED.
The Court will separately enter final judgment.
SIGNED at Houston, Texas, this 12th day of June, 2020.

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___________________________________
GEORGE C. HANKS, JR.
UNITED STATES DISTRICT JUDGE

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