K. et al v. Natalia Independent School District et al
ORDER GRANTING 15 Motion to Dismiss. Terminated party Rey Alvarado, Jr. and Joey Moczygemba. Signed by Judge Xavier Rodriguez. (tm)
In the United States District Court for the Western District of Texas
K .T . b/n/f ELIA G., et al. v. N A T A L IA I.S.D., et al. § § § § §
O n this day came on to be considered Defendants' Second Motion to D is m is s for Failure to State A Claim Upon Which Relief Can Be Granted (docket n o . 15). B a c k g ro u n d P l a in t i ffs filed their Original Complaint on May 18, 2009. In summary, P la in t iffs allege that K.T. was then a student in the Natalia I.S.D. K.T. is a c h ild of mixed heritage (Mexican-American and Black) and as a result of her b a c k g r o u n d she has been subjected to harassment by certain classmates. K.T.'s p a r e n t alleges that she has made complaints about the harassment, but the s c h o o l district has failed to remedy the situation. The current live complaint is P l a in t iffs ' Amended Complaint filed on October 23, 2009. T h e case was originally assigned to the Honorable Orlando Garcia. For r e a s o n s not articulated in his Order filed February 5, 2010, Judge Garcia r e c u s e d himself from this case. The case was reassigned to the undersigned by
t h e Clerk's office. I n the amended complaint, Plaintiffs have alleged the following causes of a c t io n : (1) race and color discrimination in violation of 42 U.S.C. § 2000 1 , 42 U .S .C . § 1983, the Fourteenth Amendment of the United States Constitution, a n d Section 3a of the Texas Constitution; (2) false imprisonment2 ; (3) intentional in flic t io n of emotional distress; (4) libel3 ; (5) negligent hiring; (6) retaliation 4 ; and (7 ) slander.5 P la in t if fs allege in their amended complaint that because their complaints o f harassment went unaddressed, they were required to relocate to another s c h o o l district. Plaintiffs assert their claims against the school district, Joey Moczygemba, t h e superintendent (in both his individual and official capacity), and Rey A lv a r a d o , Jr., the school board president (in both his individual and official ca p a city ).
It appears that Plaintiffs are bringing suit under 42 U.S.C. §§ 2000d, et seq. (also known as Title VI). It is unclear from the amended complaint which Plaintiff was allegedly falsely imprisoned. There is also no date alleged as to when this imprisonment allegedly took place. Plaintiffs allege that someone published a false statement about K.T. "which indicated that the child lied about some of the incidents...." It is not clear who allegedly published the statement, and it is not clear who received the statement. It is not clear whether Plaintiffs are alleging this cause of action based upon some statute or based upon some common law theory. Plaintiffs allege that someone verbally made a false statement "referring to Plaintiffs which by innuendo and implication slandered Plaintiffs." It is not clear what was said, when the statement was made, who published the statement, or who received the statement.
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D e f e n d a n t s ' Motion to Dismiss D e fe n d a n t s argue the following: (1) to the extent that Plaintiffs are a t t e m p t in g to bring a claim directly under the Fourteenth Amendment, d is m is s a l is appropriate; (2) the section 1983 claim against the school district is d e f ic ie n t because Plaintiffs have failed to allege the existence of a policy, practice o r custom attributable to the school board; (3) the official capacity claims against M o c z y g e m b a and Alvarado are redundant; (4) the individual defendants are e n t it le d to qualified immunity; (5) there is no individual liability under Title VI; (6 ) the state law tort claims against the school district and Moczygemba and A l v a r a d o (in their official capacities) are barred by sovereign immunity; (7) the s ta t e law tort claims against Moczygemba (in his individual capacity) are barred b y Texas Civ. Prac. & Rem. Code § 101.106(e); (8) the state law tort claims a g a in s t Alvarado (in his individual capacity) are barred by Tex. Educ. Code § 2 2 .0 5 1 1 ; (9) there is no private cause of action to assert a claim under Section 3a o f the Texas Constitution; and (10) Plaintiffs cannot recover punitive or e x e m p la r y damages under section 1983 and Title VI as a matter of law. P la in t iffs have not responded to the motion to dismiss. A n a ly s is A. F o u r t e e n t h Amendment Claim
A lth o u g h there have been a few notable exceptions, see e.g., Davis v. P a s s m a n , 442 U.S. 228 (1979); Bivens v. Six Unknown Named Agents of the F e d e r a l Bureau of Narcotics, 403 U.S. 388 (1971), the federal courts have been
h e s ita n t to find causes of action arising directly from the Constitution. Plaintiffs' amended complaint appears to allege a cause of action under the F o u r t e e n th Amendment. Accordingly, Defendants' motion to dismiss on this g r o u n d is granted. It appears, however, that Plaintiffs intend to assert a section 1 9 8 3 cause of action arguing that any harassment directed against K.T. and her m o th e r violated their Fourteenth Amendment, equal protection rights. This c la im will be addressed more fully below. B. S e c t i o n 1983 Claim Against the School District
A governmental entity such as a school district cannot be liable under § 1 9 8 3 on the theory of respondeat superior. Piotrowski v. City of Houston, 237 F .3 d 567, 578 (5th Cir. 2001). To establish governmental liability under § 1983, a plaintiff must show that (1) an official policy (2) promulgated by a policymaker (3 ) was the moving force behind the violation of a constitutional right. Id. O ffic ia l policy establishes culpability and can arise in various forms. It usually e x is t s in the form of written policy statements, ordinances, or regulations, but it may also arise in the form of a widespread practice that is "so common and w e ll-s e tt le d as to constitute a custom that fairly represents municipal policy." Id . at 579. A policy or custom is official only "when it results from the decision or a c q u ie s c e n c e of the municipal officer or body with `final policymaking authority' o v e r the subject matter of the offending policy." Jett v. Dallas Indep. Sch. Dist., 4 9 1 U.S. 701, 737 (1989). Thus, a plaintiff must show the policy was
p r o m u lg a te d by the municipality's policymaker. Finally, a plaintiff must establish that the policy was the moving force b e h in d the violation. In other words, a plaintiff must show direct causation. See P i o tr o w s k i, 237 F.3d at 580. This means "there must be a direct causal link" b e tw e e n the policy and the violation. Id. In Plaintiffs' amended complaint they state the following: "The district did h a v e a policy in place to address discrimination and harassment based on race. T h e faculty, staff and administration did not apply the policy and did not p r e v e n t or stop the discrimination. There seemed to be a more pervasive
u n w r itt e n policy that allowed discrimination and harassment based on race." T h e Plaintiffs further allege that although "the District has a policy in p la ce that prohibits discrimination, that policy has failed to address this issue a n d the School Board has not revisited or revised the policy. Further, the School B o a rd directed the superintendent to develop a program that would include the P la in t iff, K.T., and other students who [sic] would address discrimination issues in the District. The superintendent failed to comply with this instruction. It is t h e unwritten policy of Natalia I.S.D. to ignore discrimination that [sic] has p e r m itt e d continued discrimination and retaliation against Plaintiffs. Natalia I .S .D . has violated the rights of Plaintiff K.T. b/n/f Elia Garza by creating a h o s t i le educational environment." Plaintiffs acknowledge that a written policy exists that prohibits d is c r im in a tio n , but argue that an unwritten policy or custom exists within the s c h o o l district to the contrary. Plaintiffs, however, provide no further allegations 5
t o support their contention. Subjective belief or conclusory statements will not s u ffic e to prevent a motion to dismiss. See Henrise v. Horvath, 45 Fed. Appx. 323 (5 th Cir. 2002). T h e school district's motion to dismiss the section 1983 claim against it is g ra n te d . C. Official Capacity Claims against Moczygemba and Alvarado
S u in g a government official in his official capacity is another way of p le a d in g against the entity of which the official is an agent. Kentucky v.
G r a h a m , 473 U.S. 159, 165 (1985). In other words, an official capacity suit is to b e treated as a suit against the entity. Id. "An official capacity suit is, in all r e s p e c t s other than name, to be treated as a suit against the entity." Id. at 171. T h e Court will dismiss the official capacity claims against Superintendent M o c z y g e m b a and Board President Alvarado in their official capacities because th e section 1983 claims against them are redundant of the section 1983 claim a g a in s t the District. D. Q u a l i f i e d Immunity Raised by Moczygemba and Alvarado
Moczygemba and Alvarado claim they are entitled to qualified immunity. Q u a lifie d immunity shields government officials from liability when they are a c t i n g within their discretionary authority and their conduct does not violate c le a r ly established statutory or constitutional law of which a reasonable person w o u ld have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Flores v. City o f Palacios, 381 F.3d 391, 393-94 (5th Cir. 2004).
I n reviewing a motion to dismiss based on qualified immunity, a district c o u r t undertakes a two-step analysis. First, a court must determine whether a s t a tu to r y or constitutional right would have been violated on the facts alleged. S a u cie r v. Katz, 533 U.S. 194, 200 (2001); Aucoin v. Haney, 306 F.3d 268, 272 (5 th Cir. 2002). If no constitutional right would have been violated were the a lle g a tio n s established, then the inquiry ends. Saucier, 533 U.S. at 201. I f a violation is properly alleged, then the court proceeds to the second step in which it determines whether the defendant's actions violated "clearly e s ta b lis h e d statutory or constitutional rights of which a reasonable person would h a v e known." Flores, 381 F.3d at 395 (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2 0 0 2 ) ). A right is clearly established when its contours are sufficiently clear so t h a t a reasonable official would understand that what he is doing violates that r ig h t. Anderson v. Creighton, 483 U.S. 635, 640 (1987). Finally, if the law was c le a rly established at the time of the incident, the court must decide whether the d e fe n d a n t's conduct was objectively reasonable. Aucoin, 306 F.3d at 272. An o ffic ia l's conduct is objectively reasonable unless all reasonable officials in the d e fe n d a n t 's circumstances would have then known that the conduct violated the C o n s tit u tio n . Hampton v. Oktibbeha County Sheriff Dep't, 480 F.3d 358, 363 (5 th Cir. 2007). Even if the government official's conduct violates a clearly e s ta b lis h e d right, the official is nonetheless entitled to qualified immunity if his c o n d u c t was objectively reasonable. Hernandez ex. rel. Hernandez v. Tex. Dep't o f Protective & Regulatory Servs., 380 F.3d 872, 879 (5th Cir. 2004).
O n c e a government officer pleads the affirmative defense of qualified im m u n it y , the burden shifts to the plaintiff to rebut the defense by establishing t h a t the employee's allegedly wrongful conduct violated clearly established law. B a za n v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001). This burden r e q u ir e s the plaintiff to plead "claims of specific conduct and actions giving rise t o a constitutional violation." Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996). I n this case, Plaintiffs do not allege anything specifically against Board P r e s i d e n t Alvarado. He appears to have been named just because he is the s c h o o l board president. Plaintiffs fail to allege that Alvarado violated any c o n s t it u t io n a l right. Accordingly, Alvarado's motion to dismiss the section 1983 c la im against him because of qualified immunity is granted. W it h regard to the claims against Superintendent Moczygemba, Plaintiffs a lle g e that the superintendent was directed by the school board to develop a p r o g r a m that would address discrimination issues and he failed to comply with th at instruction. Plaintiffs make no other allegations against the
s u p e r in te n d e n t.
Plaintiffs fail to allege that Moczygemba violated any
c o n s t it u t io n a l right. Accordingly, Moczygemba's motion to dismiss the section 1 9 8 3 claim against him because of qualified immunity is granted.
I n d i v i d u a l Liability under Title VI 6
T o prevail on a claim for relief under Title VI, a plaintiff must prove 1) t h a t the defendant engaged in intentional discrimination based on race, color, o r national origin; and 2) the defendant received federal financial assistance. A l e x a n d er v. Sandoval, 532 U.S. 275, 280 (2001); Guardians Assn. v. Civ. Svc. C o m m n . of New York City, 463 U.S. 582, 611 (1983); Waris v. Harris County, Tx., N o . H-06-1331, 2007 WL 4377828, *8 (S.D. Tex. Dec. 12, 2007). Intentional d is cr im in a t io n encompasses practices by which the actor intended to treat s im ila r ly situated persons differently solely on the basis of national origin, color, o r race. Canutillo Ind. Sch. Dist. v. Leija, 101 F.3d 393, 397 (5th Cir. 1996), cert. d e n i ed , 520 U.S. 1265 (1997). T h e proper defendant in a Title VI case is an entity receiving federal fin a n c ia l assistance. Price ex rel. Price v. Louisiana Dept. of Educ., 329 Fed. A p p x . 559 (5th Cir. 2009) (District court correctly noted that only public and p r iv a t e entities can be held liable under Title VI. "The dismissal of the plaintiffs' c la im s against the individual officials named in the complaint was therefore p r o p e r ."); DeLeon v. City of Dallas, No. 3:02-cv-1097-K, 2008 WL 2941245 (N.D. T e x . July 25, 2008). T h e Title VI claims against Moczygemba and Alvarado are dismissed.
Title VI provides that: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
S t a t e Law Tort Claims against the School District and M o c z y g e m b a and Alvarado (in their official capacities) and S o v e r e i g n Immunity
P la in t if fs assert the following state law tort claims: false imprisonment, in t e n t io n a l infliction of emotional distress, libel, negligent hiring, retaliation 7 a n d slander. Except for the negligent hiring claim, all of these claims are in t e n t io n a l torts. The waiver of sovereign immunity does not extend to
in te n tio n a l torts under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. C o d e Ann. § 101.057(2); Harris County v. Cypress Forest Public Utility Dist. of H a rr is County, 50 S.W.3d 551, 553 (Tex. App.-Houston [14 Dist.] 2001, no pet.). W it h regard to the negligent hiring claim, a "plaintiff cannot circumvent th e intentional tort exception by couching his claims in terms of negligence." H a r r is County, Tex. v. Cabazos, 177 S.W.3d 105, 111 (Tex. App.-Houston [1 Dist.] 2 0 0 5 , no pet.). However, in this case Plaintiffs are alleging that the school d is t r ic t failed to properly train its personnel to prevent racial harassment d i r e c te d against a student by other students and certain unnamed school e m p l o y e e s . Plaintiffs have pled their negligent hiring claim as a claim for n e g lig e n c e , and not as a circumvention of the intentional tort exception. H o w e v e r , with regard to the negligent hiring claim, Defendants also argue t h a t this claim is also barred by the Texas Tort Claims Act inasmuch as under s e c t i on 101.021(1)(A), governmental immunity is waived only if several elements a re met, one of which is that the injury or death sued upon must "arise from the
As stated above, it is uncertain whether Plaintiffs are bringing their retaliation claim based upon some statutory authority or based upon some common law theory.
o p e r a tio n or use of a motor-driven vehicle or motor-driven equipment." T h e TTCA waiver extends to injuries cause by "a condition or use of t a n g i b l e personal or real property if the governmental unit would, were it a p r iv a t e person, be liable to the claimant according to Texas law." Id. at § 1 0 1 .0 2 1 (2 ). Negligent hiring is not caused by "a condition or use of tangible p e r s o n a l or real property," so it is not subject to the waiver of immunity provided b y the Texas Tort Claims Act, and plaintiffs' negligent hiring claim must be d is m is s e d . Goodman v. Harris County, 571 F.3d 388, 394 (5th Cir. 2009); Tex. D ep t. Of Public Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001); Price v. Harris C o u n ty , No. H-09-1966, 2009 WL 3233423 (S.D. Tex. Oct. 7, 2009). All of Plaintiffs' state law tort claims against the School District and M o c z y g e m b a and Alvarado (in their official capacities) are dismissed. G. S t a t e Law Tort Claims against Moczygemba (in his i n d i v id u a l capacity) and Texas Civ. Prac. & Rem. Code § 1 0 1 .1 0 6 ( e )
Natalia I.S.D . seeks dismissal of all state law tort claims against M o c z y g e m b a pursuant to Tex. Civ. Prac. & Rem. Code § 101.106(e). That section s t a te s : "If a suit is filed under this chapter against both a governmental unit and a n y of its employees, the employees shall immediately be dismissed on the filing o f a motion by the governmental unit." Plaintiffs' state law tort claims against M o c z y g e m b a are dismissed. See Reyes v. Bridgwater, No. 09-10076, 2010 WL 2 7 1 4 2 2 (5th Cir. Jan. 22, 2010); Alcala v. Texas Webb County, 620 F. Supp.2d 7 9 5 (S.D. Tex. 2009).
S t a t e Law Tort Claims against Alvarado (in his individual c a p a c i t y ) and Tex. Educ. Code § 22.0511
T e x a s Education Code section 22.0511 states: A professional employee of a school district is not personally lia b l e for any act that is incident to or within the scope of the duties o f the employee's position of employment and that involves the e x e r c is e of judgment or discretion on the part of the employee, e x c e p t in circumstances in which a professional employee uses e x ce s s iv e force in the discipline of students or negligence resulting in bodily injury to students. A school board member is considered a professional employee pursuant to T e x . Educ. Code section 22.051(a)(5). Because the tortious conduct alleged in Plaintiffs' complaint is not among t h e exceptions listed in § 22.0511, Alvarado is immune from liability as to P la in tiff s ' state law claims. Plaintiffs' state law tort claims against Alvarado (in h is individual capacity) are dismissed pursuant to Tex. Educ. Code § 22.0511. I. S e c ti o n 3a of the Texas Constitution
D e fe n d a n t s seek dismissal of Plaintiffs' Section 3a claim under the Texas C o n s t it u t io n arguing that the provision grants no private right of action for d a m a g e s . The Court agrees. See Perry v. Kaufman County, No. 3:98-cv-2870-2, 2 0 0 0 WL 1372832 (N.D. Tex. Sept. 22, 2000); Vincent v. West Texas State U n ive rs ity , 895 S.W.2d 469 (Tex. App.-Amarillo 1995, no pet.). Plaintiffs' section 3 a claims are dismissed. J. P u n i t i v e or Exemplary Damages under Section 1983
Natalia I.S.D. seek dismissal of Plaintiffs' claim for punitive or exemplary
d a m a g e s under section 1983 and Title VI arguing that pursuant to City of N e w p o r t v. Fact Concerts, Inc., 453 U.S. 247 (1981), such damages, as a matter o f law, cannot be asserted against them. In that case, the Supreme Court stated t h a t because "absolute immunity from such damages obtained at common law ... was undisturbed by the 42d Congress, and because that immunity is c o m p a tib le with both the purposes of § 1983 and general principles of public p o lic y , we hold that a municipality is immune from punitive damages under 42 U .S .C . § 1983." Id. at 271; see also Webster v. City of Houston, 689 F.2d 1220, 1 2 2 8 (5th Cir. 1982). Likewise, the Court agrees that punitive damages are not available under T itle VI. See Barnes v. Gorman, 536 U.S. 181, 189 (2002). Conclusion A s a result of the above rulings, Defendants' motion is granted. T h e only remaining claim in this case is the Title VII claim pending a g a in s t Natalia I.S.D. If Plaintiffs are attempting to also assert a retaliation claim under Title V I , Plaintiffs are ordered to file an amended complaint within fourteen days of t h is Order. If Plaintiffs do not file an amended complaint within this period, the C o u r t will assume that Plaintiffs' retaliation claim was filed under a state c o m m o n law theory, and that such a claim was dismissed pursuant to this O rder.
I t is so ORDERED.
S I G N E D this 12th day of April, 2010.
_________________________________ X A V IE R RODRIGUEZ U N I T E D STATES DISTRICT JUDGE
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