Moreno v. McAllen Independent School District

Filing 34

ORDER re: 20 MOTION to Dismiss Claims Barred by Texas Tort Claims Act, 12 MOTION to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Signed by Judge Micaela Alvarez) Parties notified.(jengonzalez, 7)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
JUDITH MORENO, et al,
Plaintiffs,
VS.
MCALLEN INDEPENDENT SCHOOL
DISTRICT,
Defendant.

March 31, 2016
David J. Bradley, Clerk

§
§
§
§ CIVIL ACTION NO. 7:15-CV-162
§
§
§
§
§

OPINION AND ORDER
Pending before the Court are two motions to dismiss filed by McAllen Independent
School District (“Defendant” or “McAllen ISD”). The first is a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6)1 and the second is a motion to dismiss claims barred by
the Texas Torts Claims Act.2 Judith Moreno (“Ms. Moreno”) and Jose Ramiro Moreno
(collectively, “Plaintiffs”) responded timely to the motion to dismiss pursuant to 12(b)(6),3 to
which McAllen ISD replied.4 Plaintiffs failed to respond to the motion to dismiss claims barred
by the Texas Torts Claims Act. After considering the motions, response, reply, record, and
relevant authorities, the Court GRANTS McAllen ISD’s motions to dismiss.

1

Dkt. No. 12.
Dkt. No. 20.
3
Dkt. No. 18.
4
Dkt. No. 21.
2

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I.

Background
a. Factual
The following facts are recited by the Court as pleaded by Plaintiffs in their first amended

complaint.5 Ms. Moreno is the mother of Jose Ramiro Moreno.6 Jose Ramiro Moreno was a
student at McAllen High School when, “in early 2012 and continuing through the school-year,
Ezekiel Gonzalez, while under the employment, supervision, and control of [McAllen ISD] as a
teacher, sought after and sexually violated Jose Ramiro Moreno.”7 The inappropriate sexual
conduct between Ezekiel Gonzalez (“Gonzalez”), a teacher, and Jose Ramiro Moreno, a minor at
that time, allegedly began on a school trip to a debate tournament in San Antonio.8 The conduct
continued after the trip, including on campus at McAllen High School. 9 Ms. Moreno “promptly
informed” school officials, who then “feigned an ‘investigation into the matter’ by, in an
intimidating manner, pulling Jose Ramiro Moreno, out of class and questioning him.”10 Ms.
Moreno accuses McAllen ISD of failing to take action against Gonzalez and choosing, instead, to
drop their investigation.
b. Procedural
On April 15, 2015, Ms. Moreno filed the instant lawsuit as next friend of Jose Ramiro
Moreno.11 McAllen ISD subsequently filed a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(7), objecting to Ms. Moreno bringing this lawsuit as next friend of Jose

5

Dkt. No. 11 (“First Amended Complaint”). The Court must accept these allegations as true when considering the
motions to dismiss. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (“For the purposes of a motion to dismiss,
the material allegations of the complaint are taken as admitted.”).
6
Id. at ¶ 15(e).
7
Id. at ¶ 6.
8
Id.
9
Id. at ¶ 7.
10
Id.
11
Dkt. No. 1.

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Ramiro Moreno because he was no longer a minor and did not lack capacity to sue.12 Ms.
Moreno responded by filing an unopposed motion for leave, requesting that the Court grant her
permission to amend the complaint in order to add Jose Ramiro Moreno as an appropriate
plaintiff.13 The Court granted the motion for leave to amend and denied the 12(b)(7) motion to
dismiss as moot.14 Plaintiffs then filed their first amended complaint, adding Jose Ramiro
Moreno as an additional plaintiff.15
On June 4, 2015, McAllen ISD filed the Rule 12(b)(6) motion now being considered.16
McAllen ISD simultaneously filed an answer.17 Plaintiffs timely responded to the first motion to
dismiss on June 24, 2015.18

Shortly thereafter, McAllen ISD filed the second motion to

dismiss.19 Plaintiffs did not respond. Plaintiffs instead filed another motion for leave to amend,
requesting the Court allow them to include Ezekiel Gonzalez, the teacher who allegedly sexually
assaulted Jose Ramiro Moreno, as an individual defendant.20 The Court denied the motion,
finding that Plaintiffs’ actions were tainted with bad faith and constituted undue delay.21
II.

Causes of Action in the Complaint
Plaintiffs’ amended complaint filed on June 1, 2015 asserts causes of action pursuant to

42 U.S.C. §1983, 42 U.S.C. §1985, and Title IX of the Education Amendments of 1972 (“Title
IX”).22 Plaintiffs also assert state tort claims of assault and battery, negligence and negligence
per se, and intentional infliction of emotional distress. The Court briefly addresses each claim.

12

Dkt. No. 6.
MFL at ¶ 1.
14
Dkt. No. 10.
15
First Amended Complaint.
16
Dkt. No. 12.
17
Dkt. No. 14.
18
Dkt. No. 18.
19
Dkt. No. 20.
20
Dkt. Nos. 22-23.
21
Dkt. No. 24.
22
20 U.S.C. §1681 et seq.
13

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a. 42 U.S.C. §1983
With regards to the Section 1983 claim, Plaintiffs allege that Gonzalez “was the agent
and employee of [McAllen ISD] and was acting under color of state law.”23 Throughout the
complaint, Plaintiffs repeatedly impute the actions of Gonzalez to McAllen ISD and consider
them the actions of the school district. Thus, through the actions of Gonzalez, Plaintiffs claim
that McAllen ISD violated Jose Ramiro Moreno’s constitutional rights under the Fifth, Eighth,
and Fourteenth amendments to be free “from any state-sponsored deprivation of liberty without
due process of law, free from the use of cruel and unusual punishment, and enjoyment of equal
protection under the law; and [p]hysical and emotional pain, trauma, and suffering.”24 Plaintiffs
make the same claim for Ms. Moreno, and further allege she suffered from the “[l]oss of
financial resources expended in pursuing administrative and legal remedies while Jose Ramiro
Moreno was a minor; and [l]oss of financial resources expended on Jose Ramiro Moreno due to
[his] physical and emotional pain, trauma and suffering. 25
With regards to the policymakers of McAllen ISD and the municipal liability of McAllen
ISD required by Section 1983, Plaintiffs state that the school district “officials” were
policymakers and they acted with deliberate indifference toward their duties by failing to
“fashion properly or to execute faithfully adequate municipal policies to govern the hiring,
training, supervision, and discipline of teachers and/or principals.”26 Such failures include:
failing to train school officials on how to properly investigate complaints regarding teachers,
failing to train school employees regarding how to report improper relationships between

23

First Amended Complaint at ¶ 15(c).
Id. at ¶ 11.
25
Id. at ¶ 12.
26
Id. at ¶ 15(g).
24

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teachers and students, failing to properly supervise and discipline Gonzalez, and responding with
deliberate indifference to credible evidence of misconduct.27
Plaintiffs contend that McAllen ISD officials “simply pretended to see nothing, hear
nothing” despite the “endemic problem on campus” concerning improper sexual relations
between teacher and students.28 Additionally, Plaintiffs assert McAllen ISD “either knew or had
constructive knowledge of improper sexual conduct between faculty and students” and that the
school district’s failure to take action to protect students amounts to authorization or ratification
of the wrongful conduct.29
b. 42 U.S.C. §1985
Plaintiffs further advance a claim against McAllen ISD under 42 U.S.C. §1985.30
Plaintiffs simply state that:
Defendant is additionally liable to Plaintiff for the violation of 42 U.S.C. §1985,
in that two or more of them conspired for the purpose of [d]epriving Plaintiffs of
equal protection of the law; [d]epriving Plaintiffs of due process of the law; and
[h]indering the constituted authorities from giving or securing equal protection
and due process of law to all persons.31
c. Title IX
Specifically regarding the Title IX claim, Plaintiffs assert that McAllen ISD receives
federal funding,32 and that McAllen ISD failed “to have policies, procedures, practices, and
customs in place to assure Plaintiff Jose Ramiro Moreno was not a victim of harassment and

27

Id.
Id. at ¶ 8 (“Rumors of teachers having sex with several of their students, not only swirled around the hallways, but
were openly bragged about, and even bet on, by students. There is even a video of a teacher and student engaging in
sexual conduct.”).
29
Id. at ¶¶ 13-14.
30
Id. at ¶ 16.
31
Id. at ¶ 16(b).
32
Id. at ¶ 19(b).
28

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sexual abuse based upon his gender . . . .”33 Plaintiffs further assert that the sexual assaults by
Gonzalez violated Jose Ramiro Moreno’s rights under Title IX.34
d. Texas State Law Tort Claims
Finally, Plaintiffs allege the personal torts of assault and battery, negligence and
negligence per se, and intentional infliction of emotional distress.35 These state tort claims are all
premised on the alleged sexual assault.
III.

The Instant Motions
In the first motion, McAllen ISD moves to dismiss all of Ms. Moreno’s claims for failure

to state a claim upon which relief may be granted.36 As a starting point, McAllen ISD contends
that Ms. Moreno failed to state “any factual allegations of any conduct of [McAllen ISD]
directed to her which would in any form support her claims of constitutional violations as
alleged.”37 Thus, McAllen ISD argues “all her claims brought under 42 U.S.C. §1983 for
violations of the U.S. Constitution must be dismissed.”38 McAllen ISD further argues “there is
no ‘bystander’ liability for the alleged Constitutional violations.”39
In the second motion, McAllen ISD moves to dismiss Plaintiffs’ claims of negligence and
intentional torts arguing these claims are barred by the Texas Torts Claims Act.40 Specifically,
McAllen ISD argues that “[a]ll state law claims are barred by [McAllen ISD’s] sovereign
immunity and the Texas Tort Claims Act.”41 The Court addresses each motion in turn.42
33

Id. at ¶ 19(c).
Id.
35
Id. at ¶¶ 17, 18, 20.
36
Dkt. No. 12 at ¶ 1.
37
Id. at ¶ 2.
38
Id.
39
Id. at ¶ 5.
40
Dkt. No. 20.
41
Dkt. No. 20 at ¶ 3.
42
As an initial matter, the Court notes that Plaintiffs have failed to comply with the Federal Rules of Civil Procedure
with regard to the instant filing. Rule 7(b)(2) provides that “[t]he rules governing captions and other matters of form
in pleadings apply to motions and other papers.” Rule 10(b) in turn states that “[a] party must state its claims or
34

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IV.

Standards of Review
Before a party has answered a complaint, the proper mechanism for removing a claim

from the Court’s consideration is a motion to dismiss under Rule 12(b)(6). After the pleadings
are closed, the proper mechanism is a Rule 12(c) motion for judgment on the pleadings. Here,
McAllen ISD seeks dismissal of Ms. Moreno’s claims under Rule 12(b)(6) and of both Plaintiff’s
claims pursuant to the Texas Torts Claims Act. Because McAllen ISD has answered, 43 the Court
will evaluate these motions under Rule 12(c). Nonetheless, this does not change the substantive
analysis since a motion for judgment on the pleadings under Rule 12(c) is subject to the same
standard as a motion to dismiss under Rule 12(b)(6).44
At the motion to dismiss stage, the Court limits its inquiry “to the facts stated in the
complaint and the documents either attached to or incorporated in the complaint.”45 To survive a
12(b)(6) motion, the plaintiff must plead “enough facts to state a claim to relief that is plausible
on its face.”46 This does not require detailed factual allegations, but it does require “more than
labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” 47 The
Court regards all such well-pleaded facts as true and views them in the light most favorable to
plaintiff.48 Considered in that manner, factual allegations must raise a right of relief above the
speculative level.49

defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Though
Plaintiffs assert their response in numbered paragraphs, the numbers are not sequential throughout the document,
hindering the Court’s reference to Plaintiffs’ arguments. Plaintiffs are cautioned that future submissions should
sequentially number each paragraph to properly comply with the Federal Rules.
43
Dkt. No. 14.
44
Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008).
45
Wilson v. Birnberg, 667 F.3d 591, 600 (5th Cir. 2012)(internal citation omitted).
46
In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)), cert. denied, 552 U.S. 1182 (2008) (internal quotations omitted).
47
Twombly, 550 U.S. at 555.
48
Id.
49
In re Katrina Canal, 495 F.3d at 205 (quoting Twombly, 550 U.S. at 555).

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Pursuant to the Supreme Court precedent set forth in Ashcroft v. Iqbal,50 the Court first
disregards from its analysis any conclusory allegations as not entitled to the assumption of
truth.51 The Court then undertakes the “context-specific” task of determining whether wellpleaded allegations give rise to an entitlement of relief to an extent that is plausible, rather than
merely possible or conceivable.52 The “plausibility” standard requires the complaint to state
“enough facts to raise a reasonable expectation that discovery will reveal evidence of the
necessary claims or elements.”53 As the Supreme Court recently clarified, the plausibility
standard concerns the factual allegations of a complaint; the federal pleading rules “do not
countenance dismissal of a complaint for imperfect statement of the legal theory supporting the
claim asserted.”54
V.

Ms. Moreno’s Claim under 42 U.S.C. §1983
a. Legal Standard
Ms. Moreno brings this lawsuit pursuant to 42 U.S.C. § 1983. “Section 1983 is not itself

a source of substantive rights; it merely provides a method for vindicating already conferred
federal rights.”55 Thus, to state a claim under Section 1983, a party must sufficiently plead (1) a
violation of a right secured by the Constitution or laws of the United States and (2) that the
alleged deprivation was committed by a person acting under color of state law.56 In this instance,
Ms. Moreno alleges generally that McAllen ISD violated her constitutional rights under the
Fifth, Eighth, and Fourteenth amendments.57 The only factual elaboration on these claims is Ms.

50

556 U.S. 662 (2009).
See id. at 678-679.
52
See id. at 679-680.
53
In re So. Scrap Material Co., 541 F.3d 584, 587 (5th Cir. 2008) (quoting Twombly, 550 U.S. at 556).
54
Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 346-47 (2014).
55
Bauer v. Texas, 341 F.3d 352, 357 (5th Cir. 2003).
56
Resident Council of Allen Parkway Vill. V. U.S. Dep’t of Hous. & Urban Dev., 980 F.2d 1043, 1050 (5th Cir.
1993) (citing West v. Atkins, 487 U.S. 42, 48 (1998)).
57
First Amended Complaint at ¶ 12.
51

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Moreno’s assertion that “[b]y using objectionable sexual contact or conduct” on Jose Ramiro
Moreno, Ms. Moreno was injured.58
For Ms. Moreno to succeed on a Fifth Amendment claim, she must show that a federal
action deprived her of rights.59 As to the Fourteenth Amendment Due Process claim, Ms.
Moreno “must show that [she] asserted a recognized ‘liberty or property’ interest within the
purview of the Fourteenth Amendment . . . and that [she was] intentionally or recklessly deprived
of that interest, even temporarily, under color of state law . . . .”60 For Ms. Moreno to succeed
with a claim under the Equal Protection Clause of the Fourteenth Amendment, she must show
that a state actor intentionally discriminated against her due to her membership in a protected
class.61 Finally, as to the Eighth Amendment claim, Ms. Moreno must show that she was
convicted and that the conditions of her confinement constituted “cruel and unusual
punishment.”62
Additionally, a municipality or city may be liable to suit under Section 1983 if the claim
is “based upon the implementation or execution of a policy or custom which was officially
adopted by that body’s officers.”63 To impose “municipal liability” on a school district like
McAllen ISD, Plaintiff must prove the existence of: (1) a policymaker; (2) an official policy or
custom; and (3) a violation of constitutional rights whose “moving force” is the policy or
custom.64 “[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
58

First Amended Complaint at ¶ 15(e).
Dusenbery v. United States, 534 U.S. 161, 122 S. Ct. 694, 151 L. Ed. 2d 597 (2002) (“Due process clause of Fifth
Amendment prohibits the United States, as due process clause of Fourteenth Amendment prohibits the States, from
depriving any person of property without due process of law.”).
60
Griffith v. Johnston, 899 F.2d 1427, 1435 (5th Cir. 1990) (citations omitted).
61
Williams v. Bramer, 180 F.3d 699, 705 (5th Cir. 1999) (citations omitted).
62
Wilson v. Seiter, 501 U.S. 294 (1991).
63
Krueger v. Reimer, 66 F.3d 75, 76 (5th Cir. 1995).
64
See Piotrowski v. City of Houston, 237 F.3d 567, 578-79 (5th Cir. 2001) (citing Monell v. Dep't of Soc. Servs. of
City of New York, 436 U.S. 658, 694 (1978)).
59

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theory.”65 For municipal liability to attach to McAllen ISD, the unconstitutional conduct must be
“directly attributable to the municipality through some sort of official action or imprimatur;
isolated unconstitutional actions by municipal employees will almost never trigger liability.”66
Thus, consideration of the three principles of municipal liability is integral to distinguishing
individual violations by employees from actions of the governmental entity itself.67
With regards to the policymaker, “[a]ctual or constructive knowledge of [a] custom must
be attributable to the governing body of the municipality or to an official to whom that body has
delegated policy-making authority.”68 Additionally, the existence of a policy or custom can be
established either through an authorized policymaker’s “statement, ordinance, regulation, or
decision,” or a “persistent, widespread practice of [] officials and employees” that “is so common
and well settled as to constitute a custom that fairly represents municipal policy.” 69 Even if the
policy or custom is facially innocuous, it can support liability under Section 1983 if it was
“promulgated with deliberate indifference to the ‘known or obvious consequences’ that
constitutional violations would result.”70 Lastly, there must be a direct causal link between the
policy and the constitutional deprivation.71
b. Analysis
McAllen ISD’s first motion to dismiss objects to the presence of Ms. Moreno in this
suit.72 Plaintiffs counter that McAllen ISD violated Ms. Moreno’s fundamental parental due

65

Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978) (emphasis in original).
Piotrowski, 237 F.3d at 578.
67
Id.
68
Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984)(en banc).
69
Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (per curiam), cert. denied, 105 S.Ct. 3476 (1985).
70
Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001) (citing Bd. Of Comm’rs of Bryan County v.
Brown, 520 U.S. 397, 407 (1997)).
71
Id. at 580.
72
Dkt. No. 12.
66

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process rights due to their failure to protect Jose Ramiro Moreno from Gonzalez.73 By such
failure, Plaintiffs contend McAllen ISD “irrevocably violated Ms. Moreno’s right to raise her
child how she saw fit.” 74 Plaintiffs go on to assert: “[Parents] have a liberty interest in being free
from having their children raped when in the care of schools.”75 Plaintiffs further argue that case
law in Texas allows “parents to recover from the loss of consortium with a child when the child
suffers an actionable nonfatal injury.”76 Accordingly, Plaintiffs contend that the Court should not
dismiss Ms. Moreno’s claims as she has “alleged and plead sufficient facts . . . to find that she
has a cause of action for loss of consortium under § 1983.”
McAllen ISD replies that the case cited by Ms. Moreno does not apply to her claims
because a subsequent decision by the Texas Supreme Court in Roberts v. Williamson “declined
to extend a claim for loss of consortium to parents of children who have been seriously, but not
fatally, injured.”77 McAllen ISD asserts also that Ms. Moreno lacks a “viable loss of consortium
claim to support her Section 1983 claim” because courts within the Fifth Circuit Court of
Appeals have dismissed similar claims after applying the holding in Roberts v. Williamson.78
The Court agrees that Ms. Moreno cannot pursue this action individually because she
fails to state a cause of action pursuant to Section 1983. Ms. Moreno argues that she has stated a
cause of action under Section 1983 in two ways: She has suffered (1) a violation of the
constitutionally protected liberty interest each parent has in caring for and controlling their child

73

Dkt. No. 18 at p. 3.
Id.
75
Id.
76
Id.at p. 4 (citing Robinson v. L. J. Johnson, 975 F. Supp. 950, 951 (S.D. Tex. 1996)).
77
Dkt. No. 21 at ¶ 9 (citing Roberts v. Williamson, 111 S.W.3d 113, 120 (Tex. 2003) (“We conclude that no
compelling social policy impels us to recognize a parent's right to damages for the loss of filial consortium.”)); see
also Braus v. Bowen, 10-06-00226-CV, 2007 WL 2994065, at *1 (Tex. App.—Waco Oct. 10, 2007)(“In Roberts, the
Texas Supreme Court held that a parent does not have a claim which can be asserted against those alleged
responsible for the injuries to an adult child.”).
78
Id. at ¶ 10 (citing Valadez v. United Indep. Sch. Dist., CIV. A. L-08-22, 2008 WL 4200092, at *1 (S.D. Tex. Sept.
10, 2008) (“Texas law has not extended consortium rights to parents of an injured child.”)).
74

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and (2) the loss of consortium with her child. The Fourteenth Amendment provides that no state
shall “deprive any person of life, liberty, or property, without due process of law.” The United
States Supreme Court has recognized that the Due Process Clause of the Fourteenth Amendment
“guarantees more than fair process” and “provides heightened protection against government
interference with certain fundamental rights and liberty interests.”79 Pertinent to this case, the
Supreme Court has long affirmed the fundamental right of parents to make decisions as to care,
custody, and control of their children.80 Parental rights are a protected liberty interest: “the
liberty interest at issue in this case—the interest of parents in the care, custody, and control of
their children—is perhaps the oldest of the fundamental liberty interests recognized by this
Court.”81
Since the parent-child relationship is one that is constitutionally protected, a violation of
this right may permit a party to proceed with a Section 1983 action.82 However, in the absence of
intentional, state interference with the child, it is challenging for a plaintiff to launch a Section
1983 claim based on the fundamental rights of parents.83 Case law relating to parental liberty

79

Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997).
Troxel v. Granville, 530 U.S. 57, 65-66 (2000) (discussing “extensive precedent”).
81
Id. at 65.
82
See Kelson v. City of Springfield, 767 F.2d 651, 654 (9th Cir. 1985) ( discussing cases in the Ninth Circuit, and
other circuits, where parent brought Section 1983 claims based upon deprivation of constitutionally protected liberty
interest as an individual plaintiff).
83
Malagon de Fuentes v. Gonzales, 462 F.3d 498, 505 (5th Cir. 2006) (discussing that “the Supreme Court has
protected the parent only when the government directly acts to sever or otherwise affect his or her legal relationship
with a child. The Court has never held that governmental action that affects the parental relationship only
incidentally . . . is susceptible to challenge for a violation of due process”) (quoting McCurdy v. Dodd, 827 (3rd
Cir.2003) (citations omitted)). There is a split among the circuit courts as to whether parents have protected liberty
interest in the companionship of their adult children under Fourteenth Amendment. See Robertson v. Hecksel, 420
F.3d 1254, 1255 (11th Cir. 2005) (holding mother did not have constitutionally protected liberty interest in her
relationship with her adult son, who was fatally shot by police officer during traffic stop, because “the Fourteenth
Amendment's substantive due process protections do not extend to the relationship between a mother and her adult
son”). Compare with Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1106 (9th Cir. 2014), cert. denied sub nom.
City of Los Angeles, Cal. v. Chaudhry, 135 S. Ct. 295 (2014) (“Our decisions recognize that parents have a liberty
interest in the companionship of their adult children and have a cause of action under the Fourteenth Amendment
when the police kill an adult child without legal justification.”). These cases discuss substantive due process
protection of the parent-child relationship as it relates to the loss of companionship with a child. These arguments do
not squarely apply here because Ms. Moreno has not alleged a loss of companionship.
80

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rights is narrow and largely addresses the right of parents to make critical child-rearing decisions
concerning the care, custody, and control of minors.84 While Ms. Moreno does have certain
fundamental rights with respect to her child,85 she does not claim that the government has
interfered with these parental rights here. The premise of her claim is not that state actions
deliberately undermined her right as a parent to be able to make critical decisions about the care,
custody and control of her child; but rather that as a parent, her right to protect her child from
injury and rape was violated by McAllen ISD. Thus, Ms. Moreno is arguing that McAllen ISD
action’s allegedly caused her child harm, and as a result, she was deprived of her constitutionally
protected rights. The Court cannot find any case law in the Fifth Circuit to support this argument,
and Plaintiffs have not provided any relevant authority.
A student is deprived of a liberty interest recognized under the “substantive due process
component of the Fourteenth Amendment” when sexually abused by a school employee.86 While
a student has a right to be free from state-occasioned damage to his bodily integrity,87 it is the
student, or the parent as next friend, that must bring forth a claim that this right was violated.88

84

See Troxel, 530 U.S. at 66.
Littlefield v. Forney Ind. Sch. Dist., 268 F.3d 275, 288 (5th Cir.2001) (recognizing the care, custody and control of
children as fundamental liberty interests).
86
Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 451-52 (5th Cir. 1994) (collecting cases that establish the
Constitution protects schoolchildren from state-occasioned physical and corporal punishment that is arbitrary,
capricious, or wholly unrelated to legitimate state interests; and holding that the Fourteenth Amendment also
protects children against physical sexual abuse by state actors).
87
Id. at 450-51 (citing Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981)).
88
In many jurisdictions, parents’ derivative Section1983 claims on their own behalf based on violations of the
constitutional rights of their children have been denied. See Harry A. v. Duncan, 351 F.Supp.2d 1060, 1065-66 (D.
Montana 2005); Morgan v. City of New York, 166 F.Supp.2d 817, 819 (S.D.N.Y. 2001) (“[t]o prevail in an action
brought under § 1983 a plaintiff must show that he or she was deprived of a right, privilege or immunity secured by
the Constitution or laws of the United States.”)(citation omitted); Burrow v. Postville Community School District,
929 F.Supp. 1193 (N.D. Iowa 1996). However, if the parents’ injury is not derived from the child’s injury, but is
based on a separate injury to the parents that occurred when the child was injured, the claim is more likely to be
sustained. Id. Even then, “family members do not have an independent claim under § 1983 unless the
constitutionally defective conduct or omission was directed at the family relationship.” Nunez Gonzalez v. Vazquez
Garced, 389 F. Supp. 2d 214 (D.P.R. 2005).
85

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The Court finds the rational in Unger v. Compton particularly helpful in its analysis here.89 In
Unger, a father attempted to bring claims pursuant to Section 1983 when his son was allegedly
subjected to an unlawful arrest and imprisonment.90 Defendants sought to dismiss the father’s
claims for lack of capacity and standing because the father, Daniel Unger, failed to allege any
personal deprivation of his constitutional rights. The father claimed to have suffered mental
anguish and distress due to the unlawful arrest and imprisonment of his son. The United States
District Court for the Eastern District of Texas ultimately determined that the father failed to
state a claim pursuant to Section 1983, explaining:
Daniel Unger does not identify a constitutional right of his that was allegedly
violated by Defendants. Plaintiff's reliance on Flores v. Cameron County, et al.,
92 F.3d 258 (5th Cir.1996), for the proposition that a parent may recover mental
anguish damages for the violation of his child's civil rights is misplaced. Plaintiff
omitted an important part of the sentence from the Flores case that is quoted in
his response to Defendants' motion for summary judgment. The full reading of the
sentence quoted by Plaintiff states, “[w]e have consistently held that a parent may
recover damages analogous to state law wrongful death damages in a § 1983
action based on the violation of her child's civil rights.” Flores, 92 F.3d at 271
(emphasis added). The Flores case involved a mother pursuing a § 1983 claim on
behalf of her deceased minor son, as well as a personal claim for damages arising
from the death of her son. Unlike the Flores case, this case does not involve a
parent's claim for wrongful death-type damages arising from the death of a child.
Plaintiff Daniel Unger has not stated a claim pursuant to § 1983.91
The instant case is analogous to Unger. Here, Ms. Moreno, like Daniel Unger, is suing on
her own behalf and not as next friend of her son. Second, like Daniel Unger, Ms. Moreno is not
pursuing a Section 1983 claim for a deceased child. Third, Ms. Moreno, like Daniel Unger,
asserts her injuries arise from the injury to her child. While Ms. Moreno does allege a
constitutional deprivation, it is crucial “to focus on the allegations in [a] complaint to determine

89

Unger v. Compton, CIV.A. 6:05CV186, 2006 WL 1737567, at *3-5 (E.D. Tex. June 23, 2006), aff'd, 249 Fed.
Appx. 346 (5th Cir. 2007) (unpublished).
90
Id. at *2.
91
Id. at *5.

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how [a plaintiff] describes the constitutional right at stake . . . .”92 In doing so, the Court is
mindful that the Supreme Court “has always been reluctant to expand the concept of substantive
due process because guideposts for responsible decision-making in this uncharted area are scarce
and open-ended.”93
After reviewing the amended complaint, and heeding the caution encouraged by the
Supreme Court in Collins v. City of Harker Heights when considering substantive due process
claims, the Court is not convinced that Ms. Moreno has stated a claim for violation of her
parental rights that would support a Section 1983 cause of action. This Court, like the Third
Circuit, is “hesitant to extend the Due Process Clause to cover official actions that [are] not
deliberately directed at the parent-child relationship.”94 Although the amended complaint does
allege that Ms. Moreno has suffered as a result of the sexual abuse of her son,95 it does not allege
that the sexual abuse of Jose Ramiro Moreno was intended to deprive Ms. Moreno of the
relationship between herself and her child, or impede her rights to make critical child-rearing
decisions. Thus, the Court finds Ms. Moreno has failed to state a cause of action pursuant to
Section 1983.
As to Ms. Moreno’s assertion that a loss of consortium claim supports her Section 1983
claim, the Court finds that her citation to Robinson v. L. J. Johnson as inapposite. Texas law is
clear and it does not authorize a parent to recover consortium damages for non-fatal injuries to a

92

Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125 (1992) (citing Regents of Univ. of Mich. v. Ewing, 474
U.S. 214, 225–226 (1985).
93
Id.
94
McCurdy v. Dodd, 352 F.3d 820, 829 (3d Cir. 2003).
95
The Court notes that bystanders cannot recover for the negligent infliction of emotional distress under Section
1983. Grandstaff v. City of Borger, Tex., 767 F.2d 161 (5th Cir. 1985) (“Negligent infliction of emotional distress is
a state common-law tort; there is no constitutional right to be free from such distress and, thus, no liability for such
distress under 42 U.S.C.A. § 1983.”).

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child, whether due to negligent or intentional conduct.96 Thus, because Ms. Moreno has failed to
state a claim pursuant to Section 1983, the Court DISMISSES her claims WITH PREJUDICE.
VI.

Ms. Moreno’s Claim under 42 U.S.C. §1985
Municipal liability for conspiracy under Section 1985 “requires a showing of “class-

based, invidiously discriminatory animus behind the conspirator’s action.”97 There also must be
evidence supporting the existence of a conspiracy.98 Ms. Moreno wholly fails to show any
invidious discrimination or existence of a conspiracy, and further fails even to articulate who was
involved in the conspiracy and what the conspiracy entailed. The complaint is completely devoid
of any facts that could support this claim. Thus, Ms. Moreno’s claim against McAllen ISD under
Section 1985 is hereby DISMISSED.
VII.

Ms. Moreno’s Claim under Title IX
a. Legal Standard
Title IX generally prohibits sex discrimination in any education program or activity

receiving federal funding.99 Same-sex sexual harassment is actionable under Title IX.100 The
Supreme Court has long held that a plaintiff may pursue a Title IX claim for monetary damages
based on discrimination in the form of sexual harassment.101 Later, in Gebser v. Lago Vista, the
Supreme Court established a multi-part analysis for establishing a sexual harassment claim under
Title IX against a federal funding recipient: (1) the recipient or appropriate person had actual
notice of the sexual harassment; and (2) the recipient or appropriate person did not adequately

96

Roberts v. Williamson, 111 S.W.3d 113, 120 (Tex. 2003) (“We conclude that no compelling social policy impels
us to recognize a parent's right to damages for the loss of filial consortium.”); Madden v. Wyeth, 3-03-CV-0167-BD,
2005 WL 2278081, at *3 (N.D. Tex. Sept. 14, 2005); Valadez v. United Indep. Sch. Dist., CIV. A. L-08-22, 2008
WL 4200092, at *1 (S.D. Tex. Sept. 10, 2008).
97
Aly v. City of Lake Jackson, 2015 WL 1089491 at *2 (5th Cir. 2015)(internal citations omitted).
98
Id.
99
20 U.S.C. §1681.
100
Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir.1998).
101
Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992).

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respond, i.e. responded with deliberate indifference.102 Gebser defined an “appropriate person”
as, at a minimum, an official of the recipient who has authority to address an alleged
discrimination and put in place measures to rectify the discrimination.
b. Analysis
Ms. Moreno’s Title IX claim is not actionable because she lacks standing. As the Fifth
Circuit has explained:
We conclude that [mother of student] does not have standing to assert a personal
claim under title IX. It is undisputed that she has standing, as next of friend, to
assert the claims of her daughters, but nothing in the statutory language provides
her with a personal claim under title IX. Even assuming that title IX protects
persons other than students and employees, [mother] has failed assert that she was
excluded from participation, denied the benefits of, or subjected to discrimination
under any education program or activity. Absent such a claim, the plain language
of title IX does not support a cause of action by [mother].103
Thus, Ms. Moreno’s Title IX claim is hereby DISMISSED.
VIII.

Plaintiffs’ State Law Tort Claims
Plaintiffs allege causes of action for the intentional torts of assault and battery and

intentional infliction of emotional distress. However, McAllen ISD is protected from these
claims by Texas Civil Practice and Remedies Code Section 101.057. The Texas Tort Claims Act
waives government immunity for certain torts, but does not waive immunity when the claim
arises out of an intentional tort.104 Texas Civil Practice and Remedies Code Section 101.057 is
the provision that protects government entities from state law intentional torts claims, and there

102

524 U.S. 274 (1998).
Rowinsky v. Bryan Indep. Sch. Dist.,80 F.3d 1006, 1010 n. 4 (5th Cir. 1996), disapproved on other
grounds by Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 637–38 (1999); see also Doe v. OysterRiver Co
Op. Sch. Dist., 992 F.Supp. 467, 481 (D.N.H.1997) (dismissing mother's Title IX claim under 12(b)(6) on grounds
that “only participants of federally funded programs and not the participants' parents—have standing to bring claims
under Title IX.”).
104
City of Watauga v. Gordon¸434 S.W.3d 586, 587 (Tex. 2014); see Tex. Civ. Prac. & Rem. Code §101.021(2).
103

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is no waiver of immunity from these claims.105 Thus, Plaintiffs cannot sue McAllen ISD for
assault and battery and intentional infliction of emotion distress under state law.
Additionally, Texas Civil Practice and Remedies Code Section 101.051 confers
“immunity to school districts and their employees from liability for damages caused by
negligence except in circumstances relating to the use, maintenance or operation of motor
vehicles.” Plaintiffs allege negligence and negligence per se, and neither claim is related to the
operation of a motor vehicle. Thus, McAllen ISD cannot be sued for negligence based on the
facts alleged. Accordingly, the Court DISMISSES Plaintiffs’ claims for assault and battery,
intentional infliction of emotional distress, and negligence and negligence per se.
IX.

Holding
After carefully evaluating the first amended complaint, the live pleading in this case, the

Court finds Ms. Moreno has failed to state any cognizable claim under 42 U.S.C. §1983, 42
U.S.C. §1985 and Title IX. Plaintiffs have also failed to state any cognizable state law claim of
assault and battery, intentional infliction of emotional distress, negligence and negligence per se.
Thus, the motions to dismiss are GRANTED and all of Ms. Moreno’s claims are hereby
DISMISSED with PREJUDICE. Furthermore, all of Plaintiffs’ state law claims are also
DISMISSED.
IT IS SO ORDERED.
DONE at McAllen, Texas, this 31st day of March, 2016.
___________________________________
Micaela Alvarez
United States District Judge

105

Id. at 588.

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