Brown v. Victoria Independent School District

Filing 35

MEMORANDUM AND ORDER (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
§
§
§
v.
§
§
VICTORIA INDEPENDENT SCHOOL §
DISTRICT, et al.,
§
Defendants.
§

May 12, 2016
David J. Bradley, Clerk

ROSIE BROWN,
Plaintiff,

CIVIL ACTION NO. V-14-0052

MEMORANDUM AND ORDER
This case is before the Court on the Motion for Summary Judgment (“Motion”)
[Doc. # 29] filed by Defendant Victoria Independent School District (“VISD”), to
which Plaintiff Rosie Brown, as representative of K.B., a minor, filed a Response
[Doc. # 32], and VISD filed a Reply [Doc. # 33]. Having reviewed the record and the
applicable legal authorities, the Court grants VISD’s Motion.
I.

BACKGROUND
K.B. was a student at Victoria East High School (a VISD school) during the

2012-13 school year. Plaintiff, K.B.’s mother, was a VISD employee at the time.
In August 2012, K.B. was the subject of inappropriate sexual advances and
behavior by Jesse Earl Holmes, an athletic trainer at Victoria East High School. In
early October 2012, Plaintiff learned that K.B. was receiving inappropriate text

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messages from a school employee, but did not know the employee’s identity. Plaintiff
discussed her concerns with a friend and co-worker, Patricia Roeh.
On October 8, 2012, Roeh met with Eloy Chapa, VISD’s Executive Director
of Human Resources. At that time, Roeh advised Chapa that Plaintiff suspected that
her daughter was having an inappropriate relationship with a VISD employee. Chapa
instructed Roeh to encourage Plaintiff to meet with him so VISD could investigate the
matter.
On the morning of October 9, 2012, Roeh returned to Chapa’s office. While
Roeh was in the office, Chapa contacted Plaintiff by telephone. Plaintiff declined
Chapa’s invitation to come to his office to discuss the matter and advised that she
intended to report the matter to the Victoria Police Department.
On the evening on October 10, 2012, an officer with the Victoria Police
Department contacted Chapa seeking contact information for Holmes. Chapa went
to his office and obtained the information, which he provided to the officer. Later that
evening, the officer again telephoned Chapa to advise that he had spoken with Holmes
and had obtained possession of his cell phone. Chapa immediately reported this
information to Dr. Robert Jaklich, VISD Superintendent of Schools, who instructed
Chapa to have Holmes report to the Superintendent’s Office.

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The next day, October 11, 2012, Holmes met with Jaklich. During the meeting,
Holmes resigned his employment with VISD. Holmes was later convicted of sexual
assault of a minor and was sentenced to a term of imprisonment of 15 years.
Plaintiff filed this lawsuit in August 2014. She later filed a First Amended
Complaint [Doc. # 10] and a Second Amended Complaint [Doc. # 20]. Plaintiff’s
only remaining claim is a 42 U.S.C. § 1983 claim against VISD. After the close of
discovery, VISD filed its Motion for Summary Judgment. The Motion has been fully
briefed and is now ripe for decision.
II.

STANDARD FOR MOTION FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides for the entry of

summary judgment against a plaintiff who fails to make a sufficient showing of the
existence of an element essential to her case and on which she will bear the burden at
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Curtis v. Anthony, 710 F.3d
587, 594 (5th Cir. 2013); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (en banc). Summary judgment “should be rendered if 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.” FED. R. CIV. P. 56(a); Celotex, 477 U.S. at 322-23; Curtis, 710 F.3d
at 594.

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For summary judgment, the initial burden falls on the movant to identify areas
essential to the non-movant’s claim in which there is an “absence of a genuine issue
of material fact.” ACE Am. Ins. Co. v. Freeport Welding & Fabricating, Inc., 699
F.3d 832, 839 (5th Cir. 2012). The moving party, however, “need not negate the
elements of the nonmovant’s case.” Coastal Agric. Supply, Inc. v. JP Morgan Chase
Bank, N.A., 759 F.3d 498, 505 (5th Cir. 2014) (quoting Boudreaux v. Swift Transp.
Co., 402 F.3d 536, 540 (5th Cir. 2005)). The moving party may meet its burden by
pointing out “the absence of evidence supporting the nonmoving party’s case.”
Malacara v. Garber, 353 F.3d 393, 404 (5th Cir. 2003) (citing Celotex, 477 U.S. at
323; Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996)).
If the moving party meets its initial burden, the non-movant must go beyond the
pleadings and designate specific facts showing that there is a genuine issue of material
fact for trial. Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th Cir. 2004);
Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001) (internal
citation omitted). “An issue is material if its resolution could affect the outcome of
the action.” Spring Street Partners-IV, L.P. v. Lam, 730 F.3d 427, 435 (5th Cir.
2013). A genuine issue of material fact exists when the evidence is such that a
reasonable jury could return a verdict for the non-movant. See Tamez v. Manthey, 589

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F.3d 764, 769 (5th Cir. 2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)); DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006).
In deciding whether a genuine and material fact issue has been created, the
court reviews the facts and inferences to be drawn from them in the light most
favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). “‘Conclusional allegations and
denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a genuine issue
for trial.’” Pioneer Exploration, L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th
Cir. 2014) (quoting Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002); accord Delta
& Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir.
2008). Instead, the nonmoving party must present specific facts which show “the
existence of a genuine issue concerning every essential component of its case.”
Firman v. Life Ins. Co. of N. Am., 684 F.3d 533, 538 (5th Cir. 2012) (citation and
internal quotation marks omitted). In the absence of any proof, the court will not
assume that the non-movant could or would prove the necessary facts. Little, 37 F.3d
at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
The Court may make no credibility determinations or weigh any evidence.
Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010) (citing Reaves

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Brokerage Co., 336 F.3d at 412-13). The Court is not required to accept the
nonmovant’s conclusory allegations, speculation, and unsubstantiated assertions
which are either entirely unsupported, or supported by a mere scintilla of evidence.
Id. (citing Reaves Brokerage, 336 F.3d at 413); accord, Little, 37 F.3d at 1075.
Affidavits cannot preclude summary judgment unless they contain competent and
otherwise admissible evidence. See FED. R. CIV. P. 56(c)(4); Love v. Nat’l Med.
Enters., 230 F.3d 765, 776 (5th Cir. 2000).
III.

SECTION 1983 CLAIM
A.

Applicable Legal Principles

Plaintiff in her § 1983 claim alleges that VISD violated K.B.’s constitutional
right to personal safety and bodily integrity. To avoid summary judgment on her
§ 1983 claim against VISD, Plaintiff must present evidence of a policy or custom that
was the “moving force” behind the claimed constitutional violation. See Monell v.
Dep’t of Soc. Serv., 436 U.S. 658, 694 (1978); Thompson v. Mercer, 762 F.3d 433,
441-42 (5th Cir. 2014), cert. denied, __ U.S. __, 135 S. Ct. 1492 (2015); Kitchen v.
Dallas Cnty., 759 F.3d 468, 476-77 (5th Cir. 2014).
“The ‘moving force’ inquiry requires a plaintiff to make two showings:
causation and culpability.” Mason v. Lafayette City-Parish Consol. Government, 806
F.3d 268, 280 (5th Cir. 2015). The plaintiff must present evidence that demonstrates

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a “direct causal connection . . . between the policy and the alleged constitutional
deprivation.” Id. (quoting Fraire v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir.
1992)). The “moving force” element requires a standard of causation higher than “but
for” causation. Id.
“Under the culpability requirement, if the policy is facially lawful, a plaintiff
must also show that the municipality promulgated the policy with deliberate
indifference to the known or obvious consequences that constitutional violations
would result.” Id. (internal quotations and brackets omitted). A “showing of
heightened negligence is insufficient to show the deliberate indifference needed to
prove municipal liability.” Id.
B.

Analysis

Plaintiff has presented evidence that VISD adopted a policy that allowed
educators to communicate with students via electronic media.1 VISD has presented
a copy of the written policy, DH (Local) and DH (Exhibit), as Exhibit 1 to the Motion.

1

In her Response, Plaintiff argues that VISD violated § 1983 because it failed to train
its employees to use electronic media properly and failed to monitor the use of
electronic media by its employees. Plaintiff has not, however, alleged a failure to
train or a failure to supervise claim in this case. Additionally, Plaintiff has not
identified or presented evidence regarding the specific additional training that she
claims was needed to instruct VISD employees not to have sexual relationships with
minor students. Similarly, Plaintiff has failed to present evidence regarding how
VISD could constitutionally have monitored the electronic communications between
a teacher and student when each was using a personal cell phone.

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DH (Local) provides that certain employees “may use electronic media to
communicate with currently enrolled students about matters within the scope of the
employee’s professional responsibilities.” See DH (Local) Policy, p. 1. The DH
(Local) Policy provides further that an employee is subject to discipline, including
discharge, if the employee’s “use of electronic media violates state or federal law or
District policy. . ..” See id. at 2. The DH (Local) Policy specifically prohibits
harassment, including sexual harassment, by an employee toward a student, and
provides clearly and unequivocally that an “employee shall not form romantic or other
inappropriate social relationships with students. Any sexual relationship between a
student and a District employee is always prohibited, even if consensual.” See id.
The DH (Exhibit) Policy, entitled “Educators’ Code of Ethics,” provides that
an educator “shall not solicit or engage in sexual conduct or a romantic relationship
with a student or minor.” See DH (Exhibit) Policy, Standard 3.6. The DH (Exhibit)
Policy provides clearly that the “educator shall refrain from inappropriate
communication with a student or minor, including, but not limited to, electronic
communication such as cell phone, text messaging, e-mail, instant messaging,
blogging, or other social network communication.” Id., Standard 3.9.
Plaintiff has failed to present evidence that raises a genuine issue of material
fact regarding whether the VISD Policy allowing employees to communicate

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electronically with students was the moving force in the violation of K.B.’s
constitutional rights. Indeed, there is no evidence of a direct causal connection
between the Policy described above and the constitutional deprivation at issue in this
case. It was the violation of the Policy, not the Policy, that led to Holmes’s
inappropriate contact with K.B. As a result, Plaintiff has failed to raise a fact dispute
as to an essential element of her § 1983 claim and VISD is entitled to summary
judgment.
IV.

CONCLUSION AND ORDER
Based on the foregoing, it is hereby
ORDERED that VISD’s Motion for Summary Judgment [Doc. # 29] is

GRANTED. The Court will issue a separate Final Judgment.
SIGNED at Houston, Texas, this 12th day of May, 2016.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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