W. et al v. Giddings Independent School District

Filing 35

ORDER Dismissing with Prejudice Plaintiff's 25 Third Amended Complaint. This action is CLOSED. Signed by Judge Robert Pitman. (klw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JESSICA RYBURN, as next friend of
L.W.,

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Plaintiff,
v.
GIDDINGS INDEPENDENT SCHOOL
DISTRICT,
Defendant.

1:16-CV-879-RP

ORDER
Before the Court is Defendant’s Third Amended Motion to Dismiss. (Dkt. 27). Having
considered the parties’ submissions, the record, and the applicable law, the Court agrees that
dismissal of Plaintiff’s claims is proper under Federal Rule of Civil Procedure 12(b)(6).
I. BACKGROUND
Plaintiff Jessica Ryburn (“Plaintiff”) brings this action on behalf of her minor son L.W., who
was previously a student at a middle school within Giddings Independent School District
(“Defendant”). The claims here arise from an injury L.W. sustained while engaged in an exercise
called “mat drills” at the direction of his coach.1
The present motion to dismiss comes after several rounds of amended pleadings. Plaintiff’s
original complaint contained only a single claim under Title IX of the Education Amendments of
1972, 20 U.S.C. § 1681 et seq. (“Title IX”). (Dkt. 1, ¶ 61). Defendant filed a motion to dismiss, (Dkt.
2), and Plaintiff responded by filing an amended complaint, (Dkt. 5). Plaintiff’s First Amended

The Court summarized the key factual allegations more fully in its order dated August 31, 2017. (Dkt. 24). Because
Plaintiff’s Third Amended Complaint repeats the bulk of the factual allegations in the Second Amended Complaint
verbatim, (see Dkts. 11, 25), the Court will focus its discussion on the Third Amended Complaint’s newly added facts,
which the Court will address in the substantive discussion that follows.

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Complaint kept the Title IX claim and added a claim under 42 U.S.C. § 1983 (“Section 1983”) based
on an alleged violation of L.W.’s rights under the Due Process Clause and Equal Protection Clause
of the Fourteenth Amendment to the U.S. Constitution. (Dkt. 5, ¶¶ 97–104). Defendant filed
another motion to dismiss, (Dkt. 6), and Plaintiff again amended her complaint, (Dkt. 11).
Plaintiff’s Second Amended Complaint retained L.W.’s Title IX and Section 1983 claims, but
modified the latter by adding several new constitutional violations: L.W.’s constitutional rights to
bodily integrity, medical care, and education. (Id. ¶¶ 96–121). Defendant moved to dismiss a third
time, (Dkt. 14), and in an order issued on August 31, 2017 (“August 31 Order”), the Court dismissed
all of Plaintiff’s claims without prejudice. (Dkt. 24). In that order, the Court also granted Plaintiff
leave to amend her complaint a third time. (Id. at 15). Plaintiff accepted the Court’s invitation and
filed her Third Amended Complaint, (Dkt. 25), which is the subject of the present motion to
dismiss.
There is little in Plaintiff’s Third Amended Complaint that differs from the second. Plaintiff
added some new factual allegations, but the vast majority of Plaintiff’s allegations are simply recited
verbatim from the Second Amended Complaint. Plaintiff also recharacterized some of the
constitutional violations underlying her Section 1983 claim and added a handful of new facts to her
Title IX claim. Finally, Plaintiff added claims under Title II of the Americans with Disabilities Act of
1990, 42 U.S.C. § 12131, et seq. (“ADA”), and Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 701 et seq. (“Section 504”).
II. DISCUSSION
Defendant argues that Plaintiff’s claims should be dismissed pursuant to Federal Rules of
Procedure 12(b)(1) and 12(b)(6). (Dkt. 27, at 1). Defendant argues that Rule 12(b)(1) requires
dismissal of Plaintiff’s Title IX, ADA, and Section 504 claims. (Id. ¶ 7). Defendant argues that
because Plaintiff failed to exhaust her ADA and Section 504 claims, the Court lacks subject-matter

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jurisdiction over those claims. (Id. ¶ 9 (“Because alleged ‘exhaustion’ is not explained for the vague
ADA and [Section] 504 claims, those likewise do not confer jurisdiction.”)). Defendant also states
that the Court lacks jurisdiction over Plaintiff’s Title IX claim because “Plaintiff has not stated a
recognized cause of action under Title IX.” (Id.). Although Plaintiff does not address Defendant’s
12(b)(1) arguments, the Court is nonetheless not persuaded to follow them.2 Accordingly, the Court
will consider whether dismissal of Plaintiff’s claims is appropriate under Rule 12(b)(6). For the
reasons discussed below, the Court holds that all of Plaintiff’s claims should be dismissed for failure
to state a claim upon which relief can be granted.
A. Standard of Review
Pursuant to Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a Rule 12(b)(6) motion to dismiss,
a complaint ‘does not need detailed factual allegations,’ but must provide the [plaintiff’s] grounds for
entitlement to relief—including factual allegations that when assumed to be true ‘raise a right to
relief above the speculative level.’” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded
Because Plaintiff’s ADA claim is brought under Title II, exhaustion is not required. See Mire v. Bd. of Supervisors of La.
State Univ., No. CV 15-6965, 2017 WL 661260, at *5 (E.D. La. Feb. 17, 2017) (“Although the Fifth Circuit has twice
declined to reach the question . . . the clear consensus among other courts is that Title II, unlike Title I, imposes no
administrative exhaustion requirement.”) (collecting cases). As for Plaintiff’s Section 504 claim, exhaustion is not
required because Defendant is a federal grantee rather than a federal agency. See Webster v. Bd. of Supervisors of Univ. of La.
Sys., No. CV 13-6613, 2015 WL 4197589, at *4 (E.D. La. July 10, 2015) (“[S]ection 504 of the Rehabilitation Act does
not require plaintiffs to exhaust administrative remedies before filing a claim against federal grantees.”). Finally,
Defendant identifies no authority supporting its theory that Plaintiff’s failure to state “a recognized cause of action under
Title IX,” (Dkt. 27, ¶ 9), deprives the Court of jurisdiction over Plaintiff’s Title IX claim.
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facts do not permit the court to infer more than the mere possibility of misconduct, the complaint
has alleged—but it has not ‘show[n]’—-that the pleader is entitled to relief.” Id. at 679 (quotation
marks and citation omitted).
B. Plaintiff’s Title IX Claim
In the Court’s August 31 Order, the Court dismissed Plaintiff’s Title IX claim because
“Plaintiff’s allegation that L.W. was required to engage in exercises that female students were not
simply does not suffice to state a plausible claim of actionable discrimination under Title IX.” (Dkt.
24, at 6). Plaintiff’s Third Amended Complaint introduces a handful of irrelevant new facts but
largely doubles down on the theory of Title IX liability that the Court already rejected.
In Plaintiff’s Third Amended Complaint, Plaintiff adds that the mat drill is “an excessively
dangerous practice . . . not provided to [L.W.’s] female peers.” (Dkt. 25, ¶ 116). Plaintiff states the
Defendant “violated L.W.’s rights under Title IX by having him participate in a physical education
class which was intended to create a spectacle, when there is no such similar physical education class
for females.” (Id. ¶ 118). Plaintiff emphasizes that L.W. was injured by a student who was 80 pounds
larger than he was and that female students are not pitted against “much bigger and heavier” female
students in any similar exercise class. (Id. ¶¶ 14–15, 47, 63, 117). Prior to L.W.’s injury, another
student allegedly suffered a different injury (“an ankle injury”) doing a different exercise (“running
snakes . . . up and down the bleachers”). (Id. ¶ 50). According to Plaintiff, Coach Strickland and
other coaches would “foster” a “loud and chaotic” environment and “purposefully pit a larger
student against a smaller student knowing that it would create a big knockout and loud response
from the crowd.” (Id. ¶¶ 56–59). Plaintiff argues that Coach Strickland would not have shrugged off
L.W.’s injury as “[getting] his bell rung” if a female student had been injured in the same way. (Id. ¶
119). Finally, Plaintiff alleges that Coach Strickland’s comment about L.W. getting his “bell rung” is
evidence of discriminatory intent. (Id. ¶ 120).

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As Defendant points out, nothing in Plaintiff’s Third Amended Complaint—new or
repeated from the Second Amended Complaint—alleges that Defendant had actual notice of
discriminatory treatment. (Dkt. 27, ¶ 12). This is fatal to Plaintiff’s Title IX claim. “[A] recipient of
federal funds may be liable in damages under Title IX only for its own misconduct.” Davis Next
Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 640 (1999). Accordingly, a damages claim
under Title IX requires either that (1) the adoption of a discriminatory policy by the recipient entity
or (2) deliberate indifference by an official with actual knowledge of discrimination by the entity’s
programs. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998) (“[A] damages remedy
will not lie under Title IX unless an official who at a minimum has authority to address the alleged
discrimination and to institute corrective measures on the [federal funding] recipient’s behalf has
actual knowledge of discrimination in the recipient’s programs and fails adequately to respond.”). To
qualify as an official whose actual knowledge is attributable to the school district, the official must be
“invested by the school board with the duty to supervise the [discriminating] employee and the
power to take action that would end such abuse.” Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d
648, 660 (5th Cir. 1997). A school district is not liable under Title IX when the discriminating
employee is “the only employee or representative of the recipient who has actual knowledge” of the
discrimination. Salazar v. S. San Antonio Indep. Sch. Dist., 690 F. App’x 853, 864 (5th Cir. 2017).
Here, Plaintiff has not alleged that the mat drills are a district policy. 3 At most, Plaintiff
alleges that Coach Strickland acted with discriminatory intent in requiring L.W. to do a dangerous
exercise that he did not require female students to do. 4 Plaintiff has not alleged that Coach
In fact, the factual allegations regarding Defendant’s policies concentrate on the lack of a policy that might have
prevented Plaintiff’s injury rather than the presence of a discriminatory policy that led to Plaintiff’s injury. (See Dkt. 25,
¶¶ 32–39).

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For the reasons discussed in the Court’s August 31 Order, the Court is not persuaded that Coach Strickland’s genderspecific use of the mat drills is discriminatory rather than merely different. (Dkt. 24, at 5–6). Even assuming arguendo that
Coach Strickland’s use of the mat drills is discriminatory, Plaintiff has failed to allege facts sufficient to establish the
district’s actual knowledge of the discriminatory use of the mat drills.

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Strickland is a district official with authority to take corrective measures on the district’s behalf to
remedy the discriminatory use of a dangerous exercise program. Nor has Plaintiff alleged that Coach
Strickland’s supervisors knew about the mat drills. Because Plaintiff has failed to allege facts that
might plausibly indicate that a district official had actual notice of Coach Strickland’s allegedly
discriminatory use of the mat drills, Plaintiff fails to state a Title IX claim against Defendant.5
C. Plaintiff’s Section 1983 Claims
As the Court discussed in its August 31 Order, Defendant can only be held liable for the
alleged constitutional violations if it is liable directly on the basis of a district policy, practice, or
custom. (Dkt. 24, at 13–14). The Court held that Plaintiff’s failure to plead more than “isolated
instances of injuries and fewer instances of concussions” provided “an independent basis” for
dismissing all of Plaintiff’s Section 1983 claims. (Id.). Plaintiff’s Third Amended Complaint offers no
new facts that would remedy the deficiencies in Plaintiff’s Second Amended Complaint. The only
new injury alleged that might possibly support municipal liability against Defendant is an allegation
of a student suffering a different injury (“an ankle injury”) doing a different exercise (“running
snakes . . . up and down the bleachers”). (Dkt. 25, ¶ 50). For the reasons discussed in the Court’s
August 31 Order, Plaintiff has not alleged facts sufficient to establish a policy, practice, or custom,
nor has it alleged facts sufficient to constitute the notice required to establish deliberate indifference
with respect to training and supervision. (See Dkt. 25, at 13–14). Accordingly, Plaintiff’s Third
Amended Complaint fails to state a Section 1983 claim against Defendant. 6

Although Plaintiff alleges that former Athletic Director Derek Fitzhenry was told about the mat drills after another
student was injured, Plaintiff admits that the drills stopped until Director Fitzhenry left the district in 2014. (Dkt. 25, ¶
52). Plaintiff does not allege that any district official had actual notice that the mat drills resumed at the time that L.W.
was injured.

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Because the Court holds that Plaintiff’s allegations are insufficient to state a claim of direct liability against Defendant,
the Court does not consider whether Plaintiff’s substantive constitutional-violation allegations are sufficient for the
purposes of Defendant’s motion to dismiss.

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D. Plaintiff’s ADA and Section 504 Claims
Plaintiff’s Third Amended Complaint states, in conclusory fashion, that Plaintiff is a
“qualified individual with a disability” under the ADA and “a student with a disability as
contemplated by the Rehab[ilitation] Act.” (Dkt. 25, ¶¶ 134, 130). In similarly conclusory fashion,
Plaintiff states that Defendant failed to accommodate L.W. as required by both statutes. (Id. ¶¶ 131,
137).
“To state a claim under Title II, a plaintiff must allege (1) that he has a qualifying disability;
(2) that he is being denied the benefits of services, programs, or activities for which the public entity
is responsible, or is otherwise discriminated against by the public entity; and (3) that such
discrimination is by reason of his disability.” Garrett v. Thaler, 560 F. App’x 375, 382 (5th Cir. 2014)
(quotation marks and citation omitted). “To recover monetary damages, a plaintiff must prove that
the discrimination was intentional.” Wells v. Thaler, 460 F. App’x 303, 311–12 (5th Cir. 2012). The
Fifth Circuit has held that “facts creating an inference of professional bad faith or gross
misjudgment are necessary to substantiate a cause of action for intentional discrimination under
[Section] 504 [of the Rehabilitation Act].” C.C. v. Hurst-Euless-Bedford Indep. Sch. Dist., 641 F. App'x
423, 426 (5th Cir. 2016). “Because the terms of Title II of the ADA and [S]ection 504 of the
Rehabilitation Act are so similar, this Court evaluates [plaintiffs’] claims under the statutes together
and applies jurisprudence interpreting either section to both.” Pagan-Negron v. Seguin Indep. Sch. Dist.,
974 F. Supp. 2d 1020, 1029 (W.D. Tex. 2013) (quotation marks omitted) (citing D.A. v. Houston
Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir.2010)).
“A critical component of a Title II claim for failure to accommodate”—and likewise, a
failure-to-accommodate claim under Section 504—“is proof that the disability and its consequential
limitations were known by the entity providing public services.” Windham v. Harris Cty., Texas, No.
16-20686, 2017 WL 5245104, at *4 (5th Cir. Nov. 13, 2017) (quotation marks, brackets, and citation

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omitted). Moreover, “[m]ere knowledge of the disability is not enough; the service provider must
also have understood the limitations [the plaintiff] experienced . . . as a result of that disability.” Id.
(quotation marks and citation omitted). Accordingly, “[w]hen a plaintiff fails to request an
accommodation in this manner, he can prevail only by showing that the disability, resulting
limitation, and necessary reasonable accommodation were open, obvious, and apparent to the
entity’s relevant agents.” Id. (quotation marks and citation omitted).
Here, Plaintiff’s ADA and Section 504 claims are predicated on Defendant’s alleged failure
to accommodate L.W.’s disability. (See Dkt. 25, ¶ 131 (“The School District had a duty to
accommodate L.W.’s disabilities . . . . They failed to do so and [thus] violated his rights under
[Section 504].”); id. ¶ 137 (“[T]he School Board failed and refused to reasonably accommodate and
modify services to him in violation of Title II of the ADA.”)). However, Plaintiff’s complaint
contains only “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements,” which do not suffice to state a claim upon which relief can be granted. Iqbal,
556 U.S. at 678.
First, even assuming that L.W. is disabled for the purposes of either statute, 7 Plaintiff’s Third
Amended Complaint fails to allege that L.W. requested an accommodation—or even what the
necessary accommodation might have been. Second, in the absence of alleging that L.W. requested
an accommodation, Plaintiff also fails to allege that L.W.’s disability and necessary accommodation
was so open, obvious, and apparent to any of Defendant’s agents that a request would have been
unnecessary. Third, Plaintiff fails to allege that Defendant knew of L.W.’s limitations or that those
limitations resulted from his disabilities. Finally, Plaintiff—who seeks only damages as relief, (see id.
Plaintiff does not actually specify what L.W.’s disability is or how it might significantly limit him in a major life activity.
See 28 C.F.R. § 35.108(a)(1) (defining “disability” for the purposes of the ADA). That said, Plaintiff does plead facts
suggesting a disability under the ADA. (See Dkt. 25 ¶¶ 89–112 (alleging that L.W. has Attention Deficit Disorder and
dyslexia, which have caused him “great trouble focusing and concentrating,” lead to “significant setbacks and regression
with his ability to . . . spell words . . . retain and learn new vocabulary,” and which ultimately contributed to his
withdrawal from public school)). However, because the Court disposes of Plaintiff’s ADA and Section 504 claims on
other grounds, it need not decide whether Plaintiff is disabled for the purposes of either statute.
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¶¶ 142–44)—alleges neither that Defendant intentionally discriminated against L.W. on the basis of
L.W.’s disability, nor any facts capable of supporting an inference of professional bad faith or gross
misjudgment. For all of these reasons, each of which is fatal to Plaintiff’s ADA and Section 504
claims independently, Plaintiff fails to state a claim for which relief can be granted under Title II of
the ADA or Section 504 of the Rehabilitation Act.8
III. CONCLUSION
For the foregoing reasons, Defendant’s Third Amended Motion to Dismiss, (Dkt. 27), is
GRANTED.
The decision to allow a party to amend its pleadings is within the sound discretion of the
district court. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994) (citation omitted). “The
Court should grant the opportunity to amend unless it concludes that the plaintiff cannot prevail
under any legal scenario based on the factual allegations alleged in the complaint.” Linder v. Deutsche
Bank Nat’l Tr. Co., No. EP-14-CV-00259-DCG, 2015 WL 12743639, at *6 (W.D. Tex. Jan. 6, 2015)
(citing Carroll v. Fort James Corp., 470 F.3d. 1171, 1175 (5th Cir. 2006)). That is, the Court may
appropriately dismiss an action with prejudice without giving an opportunity to amend if it finds that
the plaintiff has already alleged his or her best case. See Jones v. Greninger, 188 F.3d 322, 327 (5th Cir.
1999) (citing with approval the proposition that “a district court does not err in dismissing a . . .
complaint with prejudice if the court determines the plaintiff has alleged his best case”).
Here, Plaintiff has been given leave to amend her complaint three times over a period of
more than 12 months. Plaintiff is represented by experienced counsel. Plaintiff had the guidance of
the Court’s August 31 Order and failed to provide new facts in her Third Amended Complaint that

Consistent with her threadbare pleading on these two claims, Plaintiff’s Response to Defendant’s motion to dismiss
does not bother to address Plaintiff’s ADA or Section 504 claims at all, despite the considerable effort Defendant spent
addressing the sufficiency of those allegations. (Dkt. 27, ¶¶ 18–23).

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addressed the deficiencies in the Second Amended Complaint. Plaintiff has had ample opportunity
to plead her best case and has failed to state a claim under Rule 12(b)(6) twice.
Therefore, the Court ORDERS that Plaintiff’s Third Amended Complaint, (Dkt. 25), is
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the case is CLOSED.
SIGNED on November 27, 2017.

ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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