King-White et al v. Humble Independent School District et al, No. 4:2013cv03551 - Document 35 (S.D. Tex. 2014)

Court Description: MEMORANDUM OPINION AND ORDER granting 16 MOTION to Dismiss 1 Complaint, granting 17 MOTION to Dismiss 1 Complaint, granting 34 MOTION for Leave to File Surreply to Defendants' Motions to Dismiss, denying 24 , 25 Requests f or Leave to Amend. All claims asserted by Plaintiffs against Defendants Juan Melendez, Alicia Narcisse, Charles Ned, Guy Sconzo, Craig Stowers, Humble Independent School District and Tammy McHale are dismissed with prejudice. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION A.W. and HER MOTHER MARY KING-WHITE, § § § § § § § § § § § § § § § Plaintiffs, v. HUMBLE INDEPENDENT SCHOOL DISTRICT, AMANDA MICHELLE FEENSTRA, GUY SCONZO, CHARLES NED, JUAN MELENDEZ, TAMMY MCHALE, CRAIG STOWERS, and ALICIA NARCISSE, Defendants. CIVIL ACTION NO. H-13-3551 MEMORANDUM OPINION AND ORDER Plaintiffs, A.W. and her mother, Mary King-White, bring this action against defendants, the Humble Independent School District ("HISD"), Amanda Michelle Feenstra ("Feenstra"), Guy Sconzo ("Sconzo" ), Charles Ned ("Ned"), Juan Melendez ("Melendez"), Tammy McHale ("McHale"), Craig Stowers ("Stowers"), and Alicia Narcisse ("Narcisse"), for violation of civil rights United States Constitution under 42 U.S.C. Title IX of the Education Act of 1972, §§ guaranteed by the 1983 and 1988, and 20 U.S.C. § 1681. Plaintiffs have also asserted tort claims under the Texas Civil Practice and Remedies Code and the common law of the State of Texas for sexual assault and battery, negligence and gross negligence, bystander recovery, and infliction of emotional distress. Plaintiffs seek compensatory and exemplary damages, pre- and postjudgment interest, costs of relief available at court, attorney's fees, and other law and in equity to which they might be entitled. Pending before the court are the Motion to Dismiss of Defendant Humble Independent School District (Docket Entry No. 16) i the Motion to Dismiss of Defendants Guy Sconzo, Charles Ned, Juan Melendez, Tammy McHale, Craig Stowers, and Alicia Narcisse (Docket Entry No. 17) i Plaintiffs' Motion for Leave to File Surreply to Defendants' Replies to Motions to Dismiss (Docket Entry No. 34) i and plaintiffs' requests for leave to amend asserted in Plaintiffs' Response to Humble Independent School District's Motion to Dismiss and Brief in Support (Docket Entry No. 24) and in Plaintiffs' Response to Motion to Dismiss of Defendants Guy Sconzo, Ned, Juan Melendez, Tammy McHale, Craig Stowers, Narcisse and Brief in Support (Docket Entry No. reasons pending set plaintiffs' forth below, motion to the file surreply 25) motions will and to be Charles Alicia For the dismiss granted, and and plaintiffs' motions for leave to amend will be denied. I. Standard of Review The individual defendants seek dismissal of all the claims asserted against 12 (b) (6) for failure to state a claim for which relief may be granted. them under Federal Rule HISD seeks dismissal of plaintiffs' -2- of Civil Procedure federal law claims asserted under Rule 12 (b) (6), and seeks dismissal of plaintiffs' state law claims under Rule 12 (b) (1) for lack of subject matter jurisdiction. A. Rule 12 (b) (6) Standard Under Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." P. 8 (a) (2). Fed. R. Civ. A Rule 12 (b) (6) motion tests the formal sufficiency of the pleadings and is "appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied sub nom Cloud v. United States, 122 S. Ct. 2665 (2002). The court must accept the factual allegations of the complaint as true, view them in a light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff's favor. Id. To defeat a motion to dismiss pursuant to Rule 12(b) (6), a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. (2007). "A claim has facial plausibility when the plaintiff pleads factual content that v. allows Twombly, the court 127 S. to Ct. draw 1955, the 1974 reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 127 S. Ct. at 1965). 'probability (2009) (citing Twombly, "The plausibility standard is not akin to a requirement,' but it more than possibility that a defendant has acted unlawfully." Id. -3- asks for a sheer (quoting TwomblYt 127 S. Ct. at 1965). are "Where a complaint pleads facts that 'merely consistent with t a defendantts liabilitYt short of the line between entitlement to relief. 1966). possibility rd. til and it 'stops plausibility (quoting TwomblYt 127 S. Ct. of at Moreover t courts do not accept as true legal conclusions. "[R]ecitals of the elements of a cause of action t supported by mere conclusory statements t do not suffice. B. rd. at 1950. 1I Rule 12(b) (1) Standard Rule 12(b) (1) challenges to subject matter jurisdiction come in two forms: Paterson v. "facial Weinberger t ll attacks and "factual 644 F.2d 521 t 523 ll attacks. (5th Cir. 1981). A facial attack consists of a Rule 12(b) (1) motion unaccompanied by supporting evidence that challenges the courtts jurisdiction based solely on the pleadings. rd. A factual attack challenges the existence of subject matter jurisdiction in fact -- irrespective of the pleadings and matters outside testimony and affidavits t are considered. the pleadings rd. t such as Because HrSD has not submitted evidence in support of its Rule 12(b) (1) motion to dismiss t the motion is a facial attack on plaintiffs t pleadings t and the courtts review is limited to whether the complaint Plaintiff Mary King-White is the mother of A. W. who was a sufficiently alleges jurisdiction. II. Plaintiffs' Factual Allegations minor during most of the events that give rise to this action. -4- Plaintiffs allege that between 2009 and 2011 while A.W. student at multiple Humble occasions Feenstra. High by School, her A. W. was same-sex was a sexually molested on dance teacher, defendant Plaintiffs allege that the abuse began in the spring of 2009 when A.W. was 16 years old, and continued until 2011 when A.W. graduated from Humble High School. Plaintiffs allege that when the abuse began Feenstra instructed A.W. remained quiet. Plaintiffs allege to remain quiet, that while the and A.W. abuse was occurring, A.W.'s grades changed, A.W. withdrew from her classmates and dance teammates, and that with King-White's consent, A.W. went to live in Feenstra's home. Plaintiffs also allege that Feenstra spent excessive amounts of time with A.W. behind closed doors, and that Feenstra took A.W. on personal trips during the school day and on out-of-town trips during which she and A.W. would share a room and a bed. Plaintiffs allege that the defendant "School Officials" observed these signs of sexual abuse but did nothing. Plaintiffs allege that after A.W. graduated from Humble High School Feenstra called A.W. on the phone and stalked A.W. former dance After the Eventually A.W. told a instructor about what had happened with Feenstra. dance instructor reported authorities, Feenstra was arrested. A.W.'s story to school On October 13, 2013, Feenstra pleaded guilty to an improper relationship with a student and was sentenced to 10 years deferred adjudication and probation. 1 " lPlaintiffs' Original Complaint, Docket Entry No. I, pp. 1-15 1-82, esp. " 2, 8, 19, 29, 41, 43, 46, 50, 55, 57-62, 79-82. -5- III. Analysis Plaintiffs assert that defendants' actions make them liable for violations of Title IX of the Education Act of 1972, violations of constitutional rights actionable under 42 u.s.c. § 1983, and violations of Texas law governing the duty to train, supervise, and discipline subordinates, sexual assault and battery, negligence and gross negligence, bystander recovery, and intentional infliction of emotional distress. 2 A. Count 1: Title IX Claims Are Subject to Dismissal "Count 1 of Plaintiffs' Complaint asserts a claim pursuant to Title IX based upon sexual harassment, rape, and abuse. ,,3 Defendants argue that plaintiffs' Title IX claims are subject to dismissal because (1) the Title IX claims that King-White asserts on her own behalf are not actionable, asserted against (3) the individual (2) defendants the Title are not IX claims actionable, the Title IX claims based on race discrimination and failure to adopt policies are not actionable, time-barred, and (4) plaintiffs' (4) the Title IX claims are all factual allegations are not sufficient to state a Title IX claim against HISD. 2Id. at 16-36 ~~ 83-176. 3Plaintiffs' Response to Humble Independent School District's Motion to Dismiss and Brief in Support ("Plaintiffs' Response to HISD's Motion to Dismiss"), Docket Entry No. 24, p. 7. See also Plaintiffs' Original Complaint, Docket Entry No. I, pp. 16-19 ~~ 83-95. -6- 1. Applicable Law Title IX of the Education Act Amendments of 1972 provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subj ected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). The Supreme Court has held that Title IX is enforceable through an implied right of private action against federal funding recipients, Cannon v. University of Chicago, 99 S. Ct. 1946, 1968 (1979), and that monetary damages are available in such actions. Franklin v. Gwinnett County Public Schools, 112 S. Ct. 1028, 1038 (1992). Court's holding in Franklin established that a recipient can be held 1 iable for damages federal in cases The funding involving a teacher's sexual harassment of a student, but did not define the contours of Title IX liability. The Court explained that "when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor 'discriminate[s]' on the basis of sex." Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S. Ct. 2399, 2404, 91 L.Ed. 49 (1986). We believe the same rule should apply when a teacher sexually harasses and abuses a student. Congress surely did not intend for federal moneys to be expended to support the intentional actions it sought by statute to proscribe. Id. at 1037. (5th Cir. See Rosa H. v. San Elizario I.S.D., 106 F.3d 648, 653 1997) (acknowledging that under Title IX "[m]inor students who have been subj ected to a sexual relationship with their of teachers have a private -7- cause action for monetary damages"); Doe ex reI. Doe v. Dallas I.S.D., 153 F.3d 211, 219 (5th Cir. 1998) (recognizing that same-sex sexual harassment is actionable under Title IX) The Supreme Court addressed the contours of Title IX liability in Gebser v. Lago Vista I.S.D., 118 S. Ct. 1989 (1998). the Court districts affirmed are not the Fifth liable Circuit's in tort for holding In Gebser that "school teacher-student [sexual] harassment under Title IX unless an employee who has been invested by the school board with supervisory power over the offending employee actually knew of the abuse, had the power to end the abuse, at and failed to Lago Vista I.S.D., do so." Id. 106 F.3d 1223, Rosa H., 106 F.3d at 655)). 1226 1994 (quoting (5th Cir. 1997) Doe v. (quoting The Gebser petitioners argued to the Supreme Court that "in light of Franklin's comparison of teacherstudent harassment with supervisor-employee harassment, principles should likewise apply in Title IX actions." 1995. Citing a Education (DOE), "Policy Guidance" the petitioners agency Id. at issued by the Department of argued that school districts should be held liable in damages under Title IX where a teacher is "aided in carrying out the sexual harassment of students by his or her position of authority with the institution," irrespective of whether school district officials had any knowledge of the harassment and irrespective of their response upon becoming aware. Id. The petitioners also argued that "a school district should at a minimum be liable for damages based on a theory of constructive -8- notice, i.e., where the district knew or 'should have known' about harassment but failed to uncover and eliminate it." Id. Asserting that" [b] oth standards [advanced by the petitioners] would allow a damages recovery in a broader range of situations than the rule adopted by the Court of Appeals, which hinges on actual knowledge by a school official with authority to end the harassment," Gebser, 118 S. Ct. at 1995, the Supreme Court acknowledged that "[wlhether educational institutions can be said to violate Title IX based solely on principles of respondea t superior or constructive notice had not been resolved by Franklin's ci tation of Meri tor [Savings]. " Then, explaining that Franklin's reference to Meritor Savings "was made with regard to the general proposition that sexual harassment can constitute discrimination on the basis of sex under Title IX," was not in dispute, the Court rejected the petitioners' reliance on principles of respondeat superior and constructive notice because, Meritor's rationale for concluding that agency principles guide the liability inquiry under Title VII rests on an aspect of that statute not found in Title IX: Title VII, in which the prohibition against employment discrimination runs against "an employer," 42 U. S. C. § 2000e-2(a), explicitly defines "employer" to include "any agent," § 2000e (b) Title IX contains no comparable reference to an educational institution's "agents," and so does not expressly call for application of agency principles. Id. at 1996. Reasoning that "it would 'frustrate the purposes' of Title IX to permit a damages recovery against a school district for a teacher's sexual harassment of a student based on principles of -9- respondeat superior or constructive notice, notice to a school district official, emphasized its /I funds liable for a monetary award.' /I at 1997, the Court with ensuring that "central concern receiving entity of federal id. i.e., without actual [has] Id. \ the notice that it will be at 1998. Accordingly, the Gebser Court held that in cases like this one that do not involve official policy of the recipient entity, we hold that 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 recipient's behalf has actual knowledge of discrimination in the recipient's programs and fails adequately to respond. We think, moreover, that the response must amount to deliberate indifference to discrimination. The administrati ve enforcement scheme presupposes that an official who is advised of a Title IX violation refuses to take action to bring the recipient into compliance. The premise, in other words, is an official decision by the recipient not to remedy the violation. That framework finds a rough parallel in the standard of deliberate indifference. Under a lower standard, there would be a risk that the recipient would be liable in damages not for its own official decision but instead for its employees' independent actions. Comparable considerations led to our adoption of a deliberate indifference standard for claims under § 1983 alleging that a municipality's actions in failing to prevent a deprivation of federal rights was the cause of the violation. Id. at 1999. Applying framework to the the actual facts knowledge/deliberate before it, outcome as "fairly straightforward./1 The Court explained that -10- indifference the Court characterized the Gebser, 118 S. Ct. at 1999. [t]he only official alleged to have had information about [the teacherls] misconduct is the high school principal. That information l however consisted of a complaint from parents of other students charging only that [the teacher] had made inappropriate comments during class l which was plainly insufficient to alert the principal to the possibility that [the teacher] was involved in a sexual relationship with a student. Lago Vista l moreover terminated [the teacher s] employment upon learning of his relationship with [the complainant]. Justice STEVENS points out in his dissenting opinion that [the teacher] of course had knowledge of his own actions . . . Where a school district/s liability rests on actual notice principles l however the knowledge of the wrongdoer himself is not pertinent to the analysis. I I I I Id. at Gebser Thus 2000. l following the Supreme Court s I plaintiffs I seeking damages for a decision in teacherls sexual harassment of a student must show that (1) an employee of a federal funding recipient with supervisory power over the alleged harasser (2) had actual knowledge of the harassment and (3) responded with deliberate indifference. Gebser l 118 S. Ct. at 1999. A year later in Davis Next Friend LaShonda D. v. Monroe County Board of Education l 119 S. Ct. 1661 (1999) that a funding recipient directly may not indifference be that does not liable subjects the Supreme Court held I for damages its student to engage [students] vulnerable l to it. to undergo H I harassment its unless deliberate The harassment. explained that "the deliberate indifference must 'cause in I Court at a minimum l harassment or 'make them liable or Davis l 119 S. Ct. at 1672. Thus I it is not the harassment itself that constitutes the Title IX violation butl instead, the deliberate failure to curtail known harassment. Moreover I "the harassment must occur 'under l -11- Id. 'the operations ofl a funding recipient, meaning that "the harassment must take place in a context subject to the school district's control. u The Court explained that [t]hese factors combine to limit a recipient's damages liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs. Only then can the recipient be said to "exposeu its students to harassment or "causeU them to undergo it "under u the recipient's programs. 2. Application of the Law to the Alleged Facts (a) King-White's Title IX Claims Are Not Actionable Asserting that "Mary King-White, plaintiff's mother, appears to seek damages for a violation of Title IX,u4 defendants argue that "King- Whi te lacks standing to pursue any individual claims under Title IX.uS Citing cases from the Third Circuit, plaintiffs respond that "[t]he ability to pursue a claim for past and future medical expenses incurred or to be incurred by parents in the care of their minor child is well-settled law.u6 Plaintiffs also respond that "Mary King-White would have standing, if necessary as next friend to assert claims on A.W.'s behalf.u7 4Motion to Dismiss of Defendant Humble Independent School District ("HISD's Motion to Dismiss U), Docket Entry No. 16, p. 4. SId. 6Plaintiffs' Response Entry No. 24, p. 13. to HISD's 7Id. at 13-14. -12- Motion to Dismiss, Docket Plaintiffs' individual claims argument under that Title King-White IX is is able foreclosed by to assert the Fifth Circuit's holding in Rowinsky v. Bryan I.S.D., 80 F.3d 1006, 1010 n.4 (5th Cir.), cert. denied, 117 S. Ct. 165 (1996), that nothing in the statutory language provides [a parent] with a personal claim under title IX. Even assuming that title IX protects persons other than students and employees, [the parent] has failed [to] assert that she was excluded from participation, denied the benefits of, or subjected to discrimination under any education program or acti vi ty. Absent such a claim, the plain language of title IX does not support a cause of action by [the parent] King-White's claims are therefore foreclosed because plaintiffs fail to allege that King-White sought medical services or incurred medical expenses for A.W. while she was a minor arising from the incidents at issue in this case. claims as next friend of A.W. plaintiffs' Nor is King-White able to assert because the facts alleged in the complaint show that A.W. action was filed. was not a minor when this Plaintiffs allege that when the abuse began in the spring of 2009, A.W. was 16 years old. Therefore, A.W. must have reached the age of majority in the spring of 2011, and could not have been a minor when this action was filed over two years later on December 4, 2013. Accordingly, the court concludes that any Title IX claims that King-White has asserted or attempted to assert individually on her own behalf are not actionable under the alleged facts. -13- (b) Title IX Claims Asserted Against Defendants Are Not Actionable the Individual Citing Fitzgerald v. Barnstable School Committee, 129 S. Ct. 788 (2009), the individual defendants argue that they are entitled to dismissal of the Title IX claims asserted against them because claims based on Title IX are not cognizable against individual school employees. The individual defendants explain that " [b) ecause individual school employees do not receive federal grant money, a plaintiff defendants cannot under Title state IX."a a claim against In Fitzgerald the individual Supreme Court acknowledged that Title IX applies to "institutions and programs that receive [Title IX] federal funds, 20 at 796. 1681(a), § but has consistently been interpreted as not authorizing suit against school officials, Id. U.S.C. teachers, and other individuals." See also Chestang v. Alcorn State University, F. Supp. 2d 772, 778 (S.D. Miss. 2011) 820 ("Title IX permits actions only against 'programs or activities that receive federal financial assistance' dispute and not against defendants' individuals."). contention that Title Plaintiffs do not IX claims asserted against individuals are not actionable. Therefore, the individual defendants of are entitled to dismissal the Title IX claims asserted against them in this action. aMotion to Dismiss of Defendants Guy Sconzo, Charles Ned, Juan Melendez, Tammy McHale, Craig Stowers, and Alicia Narcisse ("Individual Defendants' Motion to Dismiss"), Docket Entry No. 17, pp. 3 -4. -14- (c) Title IX Claims Based on Race Discrimination and Failure to Adopt Policies Are Not Actionable Asserting that "A. W. was an African-American female student at Humble High School and, as such, a member of two protected classes under Title IX,,,9 plaintiffs claim that A.W. was subjected to "offensive sexual harassment and sexual abuse, as well as racial and gender discrimination" in violation of Title IX.lo Plaintiffs' race discrimination claim is not actionable under Title IX because Title IX does not prohibit race discrimination. See Sanches v. Carrollton-Farmers Branch I.S.D., 647 F.3d 156,166 (5th Cir. 2011) ("harassment 'on the basis of sex is the sine qua non of a Title IX sexual harassment case'''). Plaintiffs allege that in light of the known circumstances HISD acted unreasonably by "fail [ing] to establish sexual abuse and harassment policy in accordance with the Texas Education Code, Texas Administrative Code, or Texas Family Code," and by "fail [ing] to adopt and implement maltreatment of improvement plan policy children, under to addressing be Section included 11.252 and handbook provided to students and parents."ll sexual in any abuse the and district informational Citing Gebser, 118 S. Ct. at 2000, HISD argues that "[t]he claim that HISD failed to 9Plaintiffs' Original Complaint, Docket Entry No. I, IOId. ~ 88. llId. ~ 94(f)-(g) -15- ~ 85. adopt policies is not actionable. ,,12 In Gebser the Supreme Court rejected the petitioners' attempt to ground liability on the school district's failure to promulgate and publicize an effective policy and grievance procedure for sexual harassment claims as required by the Department of Education's regulations. The Court explained: Lago Vista's alleged failure to comply with the regulations. . does not establish the requisite actual notice and deliberate indifference. And in any event, the failure to promulgate a grievance procedure does not itself constitute "discrimination" under Title IX. 118 S. Ct. at 2000. Plaintiffs' attempt in this case to ground their Title IX claims on HISD's failure to insure that officials at Humble High School adopted and/or implemented policies aimed at preventing sexual abuse of students is similarly insufficient to state a claim under Title IX because such failure is neither actionable under Title IX nor capable of proving actual knowledge of abuse required to hold a school district liable under Title IX. In addition to damages, plaintiffs ask "[t]hat Humble ISD be required to recognize initiate policies and training to enable staff to and interaction, assaults."U claim for attempting promptly stop investigate harassment i and improper enforce teacher-student laws against sexual Since A.W. has graduated from Humble High School, any injunctive relief that to under Title assert plaintiffs are IX actionable. is not asserting or See 12HISD's Motion to Dismiss, Docket Entry No. 16, p. 11. 13Plaintiffs' Original Complaint, Docket Entry No. 1, -16- ~ 172. Pederson v. Louisiana State University, 213 F.3d 858, 874, 877 (5th Cir. 2000) (finding Title IX claims for injunctive relief mooted by student's graduation) 1975) (holding i that Sapp v. Renfroe, 511 F.2d 172, 175 (5th Cir. graduation mooted student's claim for declaratory relief) . (d) Plaintiffs' Title IX Claims Are Time-Barred (1) Applicable Statute of Limitations Is Texas's General Statute for Personal Injury Claims Citing Wilson v. Garcia, 105 S. Ct. 1938 (1985), superseded on other grounds by 28 U.S.C. § R.R. Donnelley & Sons Co., 124 S. Ct. Okure, 109 S. Ct. 573 (1989), 1658(a), as recognized in Jones v. 1836 (2004), and Owens v. defendants argue that plaintiffs' Title IX claims are subject to dismissal because they are barred by Texas's two-year statute of limitations for general personal injury claims, Texas Civil Practices & Remedies Code § 16.003. 14 Plaintiffs respond that their Title IX claims are not time barred because the applicable statute of limitations is not the general two-year statute cited by defendants but, instead, Texas's five- year statute of limitations for personal injury claims arising from conduct that violates Texas law prohibiting sexual assault, Texas Civil Practices & Remedies Code § 16.0045(a). Plaintiffs cite a number of cases that have applied Texas's five-year statute of 14HISD's Motion to Dismiss, Docket Entry No. 16, pp. 7 - 9 i Defendant Humble Independent School District's Reply to Plaintiffs' Response to Motion to Dismiss ("HISD' s Reply"), Docket Entry No. 27, pp. 1-4. -17- limitations to claims asserted under state law, but have not cited any case applying the five-year statute to claims asserted under Title IX or 42 U.S.C. § 1983. 15 A complaint is subject to dismissal under Rule 12 (b) (6) for failure to state a claim on which relief may be granted when the affirmative defense clearly appears on the face of the complaint. White v. Padgett, S. Ct. 78 (1973). 475 F.2d 79,82 (5th Cir.) , denied, 94 Congress has not provided a statute of limita- tions for claims brought under Title IX. not provided a cert. statute of brought under 42 U.S.C. § limitations 1983. Congress has similarly for civil rights claims However, in Wilson, 105 S. Ct. at 1941, the Supreme Court held that civil rights claims arising under 42 U.S.C. § 1983 within a particular state should be governed by that state's statute of limitations for personal injury claims. Every appellate court to consider the issue has held that Title IX claims should be treated like § 1983 claims and governed by state statutes of limitations for personal injury claims. Barrett, 650 F.3d 1198, 1205 (8th Cir. 2011) j See Walker v. Wilmink v. Kanawha Cnty. Bd. of Educ., 214 F. App'x 294, 296 n.3 (4th Cir. 2007) curiam) 1134 j (per Stanley v. Trustees of Cal. State Univ., 433 F.3d 1129, (9th Cir. 2006) j Small v. Chao, 398 F.3d 894, 899 (7th Cir. 15Plaintiffs' Response to HISD's Motion to Dismiss, Docket Entry No. 24, pp. 36-37j Plaintiffs' Surreply to Motions to Dismiss of Defendants Humble Independent School District, Guy Sconzo, Charles Ned, Juan Melendez, Tammy McHale, Craig Stowers and Alicia Narcisse ("Plaintiffs' Surreply to Defendants' Motions to Dismiss"), Docket Entry No. 34-1, pp. 2-4. -18- 2005) i Curto v. (per curiam), Edmundson, cert. Westminster Sch., 392 denied, 172 F.3d 125 S. F.3d 797, 502, 504 (2d Cir. Ct. 2944 (2005) & n.14 2004) (11th Cir. 803 M.H.D. i Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 729 v. 1999)i (6th Cir. 1996); and Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 77-78 (3d Cir. 1989). Plaintiffs' argument that their Title IX claims are not governed by Texas's two-year limitations period for personal injury claims but, instead, by Texas's five-year limitations period for sexual assault claims is foreclosed by the Supreme Court's decision in Owens, 109 S. Ct. at 573. In Owens, 109 S. Ct. at 582, the Supreme Court specifically rejected the argument that the statute of limitations applicable to any given on the particular facts or precise § 1983 claim should depend legal theories alleged. Instead, the Supreme Court held that claims arising under within a particular state should be governed by that § 1983 state's "general or residual statute for personal inj ury actions. II Id. See also Piotrowski v. City of Houston, 51 F.3d 512, 514 n.5 (5th Cir. 1995) (holding that in light of the fact that Congress has not provided a statute of limitations in borrow period) the forum Thus, state's general § 1983 cases, federal courts personal merely because plaintiffs' predicated on sexual abuse does not mean injury limitations Title IX claims are that the applicable statute of limitations is Texas's special limitations statute for sexual assault claims. See Nunley v. Pioneer Pleasant Vale School -19- District No. 56, 190 F. Supp. 2d 1263, 1265 n.1 (W.D. Okla. 2002) (rejecting a similar argument regarding Title IX claims asserted in Oklahoma which, like Texas, has a special statute of limitations for sexual assault claims). Because plaintiffs have not cited any case that has applied Texas's special statute of limitations for sexual assault claims, as opposed to Texas's general statute of limitations for personal injury claims, to claims asserted under Title IX or 42 U.S.C. § 1983, the court concludes that the Title IX claims asserted here are governed by Texas's two-year limitations period for general personal injury claims. (2) Application of the Limitations Period to the Alleged Facts Plaintiffs filed their Original Complaint on December 4, 2013. Accordingly, plaintiffs cannot prevail asserted accrued before December 4, if 2011. the Title IX claims HISD argues that any injury A.W. suffered as a result of its alleged inaction occurred prior to that date, and that A.W.'s Title IX claims are therefore time-barred. 16 The question of when a cause of action accrues is a question of federal law. The Fifth Circuit has held that in civil rights cases, a cause of action accrues, and the limitations period begins to run, "the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured.'" Piotrowski, 237 F.3d at 576 (quoting Russell 16HISD's Motion to Dismiss, Docket Entry No. 16, p. 8. -20- v. Board of Trustees, 968 F.2d 489, 493 (5th Cir. 1992)). A plaintiff's awareness encompasses both knowledge of the injury and knowledge of the causal link between the injury and the defendant. The plaintiff need not know that a legal cause of action exists; she need only know facts that would support a claim. Plaintiffs allege that the abuse underlying asserted in this action occurred from 2009 to 2011. Id. the claims Plaintiffs allege that A.W. was a freshman during the 2007-2008 school year, that A.W. was 16 years old when Feenstra began abusing her in the spring of 2009, and that the abuse continued until A.W. graduated in 2011. HISD argues that [iJ f one assumes that A. W. was physically abused until the last day of school of her senior year (i.e., through May 2011), then A.W. would have had until May 2013 to file suit. The Plaintiffs plainly knew about the abuse prior to May 2013. The Plaintiffs admit that Feenstra was arrested in March 2013 after A.W. reported the abuse. 17 Plaintiffs do not complaint dispute that all occurred more the abuse described in the than two years before they filed this action on December 4, 2013, or that A.W. had reached the age of 18 by the spring of 2011. complaint The allegations contained in plaintiffs' show that A. W. had both knowledge of the injury and knowledge of the causal link between the injury and HISD from the moment the injury began but refrained from reporting the injury.18 17HISD's Reply, Docket Entry No. 27, p. 2 (citing Plaintiffs' Original Complaint, Docket Entry No. 1, ~~ 80-81). 18See Plaintiffs' Original Complaint, Docket Entry No. 1, ~ 43 ("Fearing the consequences of reporting what happened in Feenstra's (continued ... ) -21- See Doe v. Henderson I.S.D., 237 F.3d 631, *2 (5th Cir. 2000) curiam) (Table) (per (holding that civil rights causes of action arising from sexual assault accrued prior to the plaintiffs' eighteenth birthdays, and explaining that "[t]he plaintiffs' causes of action accrued when they realized the conduct was wrong because it was at that time that the plaintiffs 'kn[ew] or ha[d] reason to know of the injury which is the basis of the[ir claims] '"). Even though the limitations period on A.W.'s claims could not have started to run before A.W. reached the age of majority, since plaintiffs allege that A.W. was 16 years old in the spring of 2009, A.W. must have been 18 in the spring of 2011, which was more than two years before this action filed on December 4, 2013. Therefore, absent tolling, plaintiffs' Title IX claims are time-barred. (3) Plaintiffs Equitable Tolling, the Discovery Rule, and Doctrines of Fraudulent Concealment and/or Equitable Estoppel Are Not Applicable make three HISD's motion to dismiss. tolling First, arguments President Lines, 96 F.3d opposition to plaintiffs argue that equity dictates application of the discovery rule. 19 American in 124, 128 Citing (5th Rashidi v. Cir. 1996), 18 ( ... continued) car, a 16-year old A.W. remained quiet."); , 50 ("A.W. was clearly uncomfortable with all of Feenstra's conduct but did not know where to turn since she was Feenstra's student and felt that no one at the school would support her.") 19P1aintiffs' Response to HISD's Motion to Dismiss, Entry No. 24, pp. 39-40. -22- Docket plaintiffs argue that "[e] quitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his International, rights. Inc. Then, 1120 v. Altai, 1996), and S.V. v. R.V., citing Inc., 918 Computer S.W.2d 453, Associates 456 (Tex. 933 S.W.2d 1, 7 (Tex. 1996), plaintiffs argue that the Texas Supreme Court has applied the discovery rule when "the nature undiscoverable verifiable. 1121 and of the the injury evidence of incurred injury is is inherently objectively Plaintiffs argue that it is clear that A.W. did not discover the nexus between the abuse she suffered and HISD's approval and ratification of the conduct until facts were revealed during Feenstra's criminal conviction. The innate details of HISD's involvement in allowing the sexual abuse to occur were inherently undiscoverable earlier.22 Finally, citing Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983), and Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515-16 (Tex. 1998), plaintiffs argue that the statute of limitations should be tolled because HISD fraudulently concealed its knowledge and ratification of the sexual abuse and, therefore, is equitably estopped from invoking the statute of limitations to bar plaintiffs' claims. 23 Plaintiffs argue that their 20Id. at 39. 21Id. 22Id. at 40. 23Id. at 40-41. -23- Complaint alleges that HISD had knowledge of the sexual harassment and abuse, had a duty to disclose, and a fixed purpose to conceal the wrong. As a result of HISD's concealment, until facts were revealed during the investigation into Feenstra's criminal acts, A.W. was unable to determine that she had a cause of action specifically against HISD and the individual officials for their complicity in the sexual abuse and/or negligence in allowing it to occur. Therefore, HISD is precluded from relying on the defense of limitations. 24 Plaintiffs' equitable tolling argument has no merit because plaintiffs have not alleged that HISD actively misled them about any cause of action or did anything to prevent them from asserting their rights. See Rashidi, 96 F.3d at 128 ("Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is extraordinary way from asserting his rights.") . prevented in some "Where, as here, the plaintiff had ample time and opportunity to bring suit within the statutory period, enlarging the limitations period would defeat the [statute of limitations'] legislative purpose." Id. at 127. Plaintiffs' argument that the discovery rule applies to their Title IX claims likewise has no merit. a limited exception to statutes Associates, 918 S.W.2d at 455. where the injury is The discovery rule provides of limitations. The discovery rule applies in cases inherently undiscoverable limitations period and objectively verifiable. S.V., Ins. 933 S.W.2d at 4-8) Co., 566 F.3d 436, 24Id. Computer within the Id. at 456 (citing See also Beavers v. Metropolitan Life 439 (5th Cir. at 41. -24- 2009). Discovery of the injury, not all of the elements of the cause of action, starts the limitations clock. Henderson I.S.D., 237 F.3d 631, *6 (citing Bayou Bend Towers Council of Co-Owners v. Manhattan Construction Co., 866 S.W.2d 740, 743 writ denied) the (Tex. App. - Houston [14th Dist.] 1993, (" [A] 11 that is required to commence the running of limitations period is the discovery of an injury and its general cause, not the exact cause in fact and the specific parties responsible.")). As discussed in the previous section, A.W. knew that she had been injured by Feenstra by the time of her eighteenth birthday, which was more than two years before plaintiffs filed this action. A.W. also knew that Feenstra was employed by HISD as that was the context in which she came into contact with Feenstra. Since by her eighteenth birthday A. W. knew that she had been injured by Feenstra and that Feenstra was employed by HISD, the discovery rule is not applicable because for limitations purposes, there was nothing left for A.W. to discover. 237 F.3d 631, discovery reasonable omission.") rule *6 (citing Bayou Bend, imposes diligence a to duty on discover See Henderson I.S.D., 866 S.W.2d at 742) the plaintiff facts of For this same reason plaintiffs' to ("The exercise negligence or contention that equitable estoppel and/or the doctrine of fraudulent concealment applies to prevent HISD from asserting limitations has no merit. Under the doctrine of fraudulent concealment [w]here a defendant is under a duty to make disclosure but fraudulently conceals the existence of a cause of action from the party to whom it belongs, the defendant -25- is estopped from relying on the defense of limitations until the party learns of the right of action or should have learned thereof through the exercise of reasonable diligence. Borderlon, The estoppel effect of fraudulent 661 S.W.2d at 908. concealment lasts only until "a party learns of facts, conditions, or circumstances which would cause a reasonably prudent person to make inquiry, concealed which, cause if pursued, of action. Id. would lead to discovery of the at 909. To invoke equitable estoppel, a party must prove: (1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the representations. Johnson Higgins, & estoppel is limitations not but, 962 to S.W.2d at suspend instead, 515-16. the "to The effect of running preclude of the the such statute defendant of from interposing limitations when it has induced the plaintiffs not to file suit, within the limitations period, on a cause of action the plaintiffs know they have." Henderson I.S.D., 237 F.3d at 631, *7 (quoting Palais Royal, Inc. v. Gunnels, 976 S.W.2d 837, 849 (Tex. App. - Houston [1st Dist.] 1998, writ dism'd by agr.)) Here, plaintiffs fail to allege facts capable of proving that HISD was under a duty to make disclosure but fraudulently concealed the existence of a Title IX cause of action, or that HISD made any false representations or concealed material facts on which either plaintiff relied to their detriment. -26- Morever, the facts alleged in plaintiffs' complaint show that by A.W.'s eighteenth birthday, A.W. had learned of facts that would cause a reasonably prudent person to make inquiry, which if pursued would lead to discovery of a Title IX claim against HISD. Accordingly, neither the doctrine of fraudulent the concealment nor doctrine of equitable estoppel prevents HISD from asserting limitations in defense of the Title IX claims asserted against it in this action. (e) Factual Allegations Are Not Title IX Claims Against HISD Sufficient to State HISD argues that the Title IX claims asserted against it are subject to dismissal because plaintiffs have failed to allege facts capable of proving that an HISD official had actual knowledge that A.W. was being sexually abused, or that there was a substantial risk that such abuse would occur.25 Courts are in general agreement that for a school district to be held liable under Title IX, the district's knowledge must encompass either actual knowledge of the precise instance of abuse giving rise to the case at hand, or actual knowledge of substantial risk that such abuse would occur.26 See Rosa H., 106 F.3d at 652-53 a student, ("when a teacher sexually abuses the student cannot recover from the school district under Title IX unless the school district actually knew that there was a substantial risk that sexual abuse would occur") . 25HISD's Motion to Dismiss, Docket Entry No. HISD's Reply, Docket Entry No. 27, p. 7. 16, pp. 12-17; 26Plaintiffs' Response to HISD's Motion to Dismiss, Docket Entry No. 24, p. 8 (citing Ross v. Corporation of Mercer University, 506 F. Supp. 2d 1325, 1347-48 (M.D. Ga. 2007)) -27- (1) Citing ~~ Alleged Facts Are Not Capable of Proving HISD's Actual Knowledge of A.W.'s Sexual Abuse 55-69 and 86-95 of their complaint, plaintiffs argue that they have alleged facts capable of proving that appropriate HISD officials had actual and/or constructive knowledge of the sexual harassment and abuse that A. W. care. 27 suffered while in HISD's In the section of their complaint titled "SCHOOL OFFICIALS ARE AWARE OF THE IMPROPER TEACHER-STUDENT RELATIONSHIP BETWEEN FEENSTRA AND A.W. BUT DO NOTHING," plaintiffs allege: 55. During the period of Feenstra's inappropriate relationship with A. W., School Officials noticed that A.W.'s grades were changing, but did nothing to investigate or stop Feenstra's relationship or interaction with A.W. 56. During the period of Feenstra's inappropriate relationship with A.W., parents and other students repeatedly complained about the obsessive and unusual relationship Feenstra had with A. W., but School Officials did nothing to investigate or stop Feenstra's relationship or interaction with A.W. 57. During the period of Feenstra's inappropriate relationship with A. W., School Officials noticed that A. W. was becoming withdrawn from her classmates and teammates, but did nothing to investigate or stop Feenstra's relationship or interaction with A.W. 58. During the period of Feenstra's inappropriate relationship with A. W., School Officials noticed that Feenstra, almost on a daily basis, would leave the school grounds alone with A.W., but did nothing to investigate or stop Feenstra's relationship or interaction with A.W. During the entire period of Feenstra's inappropriate relationship with A.W., School Officials repeatedly observed first-hand that A. W. was spending an 59. 27Id. at 7-13. -28- inordinately excessive amount of time in Feenstra's office with the doors closed, but did nothing to investigate or stop Feenstra's relationship or interaction with A.W. 60. During the entire period of Feenstra's inappropriate relationship with A.W., School Officials knew that Feenstra went on out -of - town trips with A. W., where parents were not there as chaperons, but did nothing to investigate or stop Feenstra's relationship or interaction with A.W. 61. During the entire period of Feenstra's inappropriate relationship with A.W., School Officials knew that while attending school-related events Feenstra was sleeping in the same bed with A.W., but did nothing to investigate or stop Feenstra's relationship or interaction with A.W. The School Officials knew that A.W. (a student) had moved into the home of a teacher (Feenstra), but did nothing to stop Feenstra's relationship or interaction with A.W. 62. 63. During the entire period, Humble High School had one or more police officers at the school, whose office was located next to the dance room, where several sexual assaults took place. Yet the police did not investigate or report the late hours that Feenstra spent in the dance office with A.W. This blatant omission clearly emboldened Feenstra. 64. Although the School Officials would tell parents and students that they would investigate the complaints about Feenstra's relationship with A.W., they never did. Feenstra was never disciplined by Defendants for the inappropriate relationship she had with A.W. or for any of the conduct complained of herein. 65. Feenstra, not being the subject of any surveillance or monitoring, was able to perpetrate the harassment and sexual assaults upon A. W., both at school and away. Instead of conducting any type of investigation of Feenstra's conduct, School Officials allowed Feenstra to have her way with A.W. 66. 67. Feenstra, not continually being the subject surveillance or monitoring due to an inadequate -29- of or malfunctioning security system, was able to perpetrate the harassment and sexual assaults upon A.W., both at school and away. Instead of conducting any type of investigation of Feenstra's conduct, School Officials allowed Feenstra to have her way with A.W. During the time A. W. was being sexually assaulted by Feenstra, all persons in power at Humble High School knew or should have known of the inappropriate relationship Feenstra had with A.W. including, but not limited to, the harassment, groping, sexual assaults, and rape that Feenstra committed upon A.W. 68. Considering that the School Officials observed the inappropriate teacher-student relationship and did nothing to stop it, A.W. understandably felt powerless to prevent Feenstra's conduct since she had no one at the school to rely upon and protect her from this conduct. 28 69. Plaintiffs assert that these facts are capable of proving that [a]t a minimum, the School Officials had actual notice of the discrimination against A.W. as well as the inappropriate relationship between Feenstra and A. W. since certain of the conduct happened openly and the School Officials were otherwise informed of other improper conduct. 29 Plaintiffs allege that A.W.'s mother, King-White complained about an "improper relationship" between A. W. and Feenstra, 30 but missing from plaintiffs' complaint are any allegations that KingWhite ever told any HISD official that the "improper relationship" at issue was a sexual relationship. Plaintiffs allege that during out-of-town dance competitions, "Feenstra ordered A.W. to sleep in 28Plaintiffs' Original Complaint, Docket Entry No. 1, (emphasis added) 29Id. ~ 87. -30- ~~ 55-69 the same bed with her, ,,31 but missing from plaintiffs' complaint are any allegations of fact capable of proving that any HrSD official participated in the out-of-town trips or would otherwise have known about the alleged sleeping arrangements. Plaintiffs allege that "'School of Officials' had actual notice the inappropriate relationship between Feenstra and A.W. since certain of the conduct happened openly, and the School Officials were otherwise informed of other improper conduct, ,,32 but missing from plaintiffs' complaint are any allegations that sexual conduct occurred in open view at school or at school events, or that apart from Feenstra any "School Officials" knew about the sexual conduct until after A. W. had graduated. 33 Although plaintiffs allege "Feenstra insisted that A. W. School, facts have capable of proving that sex with her at Humble High including in Feenstra's office, on the floor of school's dance room, at training camp, and after most every football game, ,,34 missing from plaintiffs' complaint are any allegations capable of proving that any school official observed or could otherwise have known about any of this alleged sexual conduct. Plaintiffs also allege that A.W. moved into Feenstra's residence with the consent 31rd. ~ 94 (1) 32rd. ~ 87. 33rd. ~~ 80-82. 34rd. ~ 53. -31- of her mother and co-plaintiff, King-White,35 that only after A.W. graduated did A.W. speak to anyone about Feenstra's conduct, and that once HISD officials learned of the alleged abuse, Feenstra was arrested, charged with a felony, and ultimately convicted. 36 Plaintiffs' factual allegations and arguments regarding HISD' s knowledge of A.W.'s abuse are analogous to the arguments that the Supreme Court insufficient Title IX. in to Gebser, establish 118 a S. Ct. school at rejected 1989, district's as liability under Plaintiffs allege that " [d]uring the time A.W. was being sexually assaulted by Feenstra, all persons in power at Humble High School knew or should have known of the inappropriate relationship Feenstra had with A.W."37 of actual Plaintiffs argue that these "allegations or constructive knowledge are plainly stated." 38 In Gebser the Supreme Court rejected the petitioners' arguments that complaints about a teacher's inappropriate comments during class alerted the principal involved in a to the possibility that the sexual relationship with a student. S. Ct. at 2000. teacher was Gebser, 118 In Gebser the Court also rejected the petitioners' argument that a school district could be held liable under Title IX based on constructive knowledge. 35Id. ~ 36Id. ~~ 37Id. ~ The Court held, instead, that 46. 78-82. 68. 38See Plaintiffs' Response to HISD's Motion to Dismiss, Docket Entry No. 24, p. 8. -32- school district liability could only be premised on actual knowledge of a school "official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the [federal funding] recipient's behalf." S. Ct. at 1999. set forth a notice that Contrary to plaintiffs' argument, Gebser did not standard of a Gebser 118 "actual notice" teacher might relationship with a based on constructive possibly be student. 39 involved See Davis, 119 S. in a Ct. sexual at 1671 (recognizing that in Gebser the Court "declined the invitation to impose liability under what amounted to a negligence standard holding the district liable for its failure to react to teacher student harassment of which it knew or should have known. Rather, we concluded that the district could be liable for damages only where the district violation of Title IX."). itself intentionally acted in clear See also Doe v. Northside I.S.D., 884 F. Supp. 2d 485, 493 (W.D. Tex. 2012) (finding no actual knowledge of abuse despite allegations that teacher had "boundary" issues, hugged plaintiff, and gave chest bumps) i P.H. v. School District of Kansas City. Missouri, 265 F.3d 653, 659 (8th Cir. 2001) (teacher complaints about student's tardiness and absences from class and general student complaints about insufficient to teacher spending establish school too much time district's with actual 39The cases plaintiffs cite in support of their contention that constructive knowledge provides a sufficient basis on which to ground Title IX liability all predate the Supreme Court's opinions in Gebser, 118 S. Ct. at 1989, and Davis, 119 S. Ct. at 1661. -33- knowledge of sexual abuse) Cir. 2010) i Doe v. Flaherty, 623 F.3d 577, 585 (8th ("A student's familiar behavior with a teacher or even an 'excessive amount of time' spent with a teacher, without more, does not ' automatically give rise to a reasonable inference of sexual abuse.''') Plaintiffs' allegations of abused and complaint fact contains detailed capable of proving that A. W. harassed by her dance teacher, and graphic was sexually Feenstra. 40 But plaintiffs' complaint contains no allegations of fact capable of proving that while A.W. was a student at Humble High School that any specific person apart from Feenstra, had actual knowledge that she and A.W. had a sexual relationship. Instead, plaintiffs merely recite the elements of a Title IX cause of action and conclusorily assert that "School Officials" had "actual notice" of "the inappropriate relationship.,,41 Moreover, even assuming arguendo that apart from Feenstra, the "School Officials" identified in this action, i.e., Superintendent Sconzo, Principal Ned, Assistant Principals Melendez, McHale, and Stowers, address and Guidance Counselor Feenstra's abuse of Narcisse, A. W. and to all had authority to insti tute corrective 4°Plaintiffs' Original Complaint, Docket Entry No. 1, ~~ 40-54. 4lId. ~ 87. See also id. ~ 19 (defining the term "School Officials" as used in Plaintiffs' Original Complaint to mean "Feenstra, Sconzo, Ned, McHale, Melendez, Stowers, and McHale." Since "McHale" is mentioned twice and Narcisse is not mentioned at all, the second reference to "McHale" is likely intended to mean guidance counselor Narcisse.). -34- measures on HISD's behalf, plaintiffs have nevertheless failed to state a claim for which relief may be granted under Title IX because plaintiffs have failed to allege facts capable of proving that - apart from the alleged abuser, Feenstra - any of the "School Officials" identified in their complaint actually knew that Feenstra had a sexual relationship with A.W. See Iqbal, 129 S. Ct. at a 1949 ("[R]ecitals of the elements of cause of action, supported by mere conclusory statements, do not suffice."). also Gebser, 118 S. Ct. at 2000 ("knowledge of the See wrongdoer himself is not pertinent to the analysis") . (2) Alleged Facts Are Not Capable of Proving HISD's Actual Knowledge of Significant Risk that Sexual Abuse Would Occur Plaintiffs argue that their Original "Complaint also provides notice at ~ 94(b) that HISD knew or should have known of Feenstra's prior instances of inappropriate conduct and therefore had actual notice of a substantial risk of sexual harassment to students prior to A. W.' s complaint. 1142 Paragraph 94(b) of Plaintiffs' Original Complaint alleges that [a]lthough parents complained to School Officials that there were was something unusual about Feenstra's relationship with A. W., the School Officials did nothing. Rather than investigate, the School Officials engaged in a pattern of ignoring the complaints and allowing the conduct to continue. 43 42Plaintiffs' Response to HISD's Motion to Dismiss, Entry No. 24, p. 8. 43Plaintiffs' Original Complaint, Docket Entry No. I, -35- Docket ~ 94(b). Plaintiffs argue that [t]he conduct alleged in paragraphs 55-69, 88-95 and 105 provides facts establishing that HISD and the other defendants had information indicating that Feenstra and her sexually suggestive conduct towards female dancers (e.g. A.W.) established a substantial danger to students. Plaintiffs also offer evidence that students and parents made official complaints to HISD officials of sexual misconduct by Feenstra sufficient to indicate that she posed a substantial risk to sexually abuse students such as A. W. See, ~~ 56, 64. These complaints were not simply complaints about an "inappropriate" relationship; the complaints alerted school officials to sexual harassment and suspected sexual misconduct. 44 Citing ~~ 56 and 64 of their Original Complaint, plaintiffs also argue that [t]he Complaint also provides facts that students and parents made official complaints to HISD officials of sexual misconduct by Feenstra sufficient to indicate that she posed a substantial risk to sexually abuse students such as A. W. These complaints are not simply complaints about an "inappropriate" relationship; the complaints alerted school officials to sexual harassment and suspected sexual misconduct. These publicly-aired discussions and complaints supplied actual knowledge to HISD officials. 45 Despite plaintiffs' assertions to the contrary, the facts alleged in their complaint allege only that parents and students complained that Feenstra had an "inappropriate, " unusual relationship" with A.W.46 are there factual allegations 44Plaintiffs' Response Entry No. 24, p. 9. "obsessive and Nowhere in plaintiffs' complaint that any student or parent ever to HISD's Motion to Dismiss, 45Plaintiffs' Surreply to Docket Entry No. 34-1, p. 8. Defendants' Motions to Docket Dismiss, 46See Plaintiffs' Original Complaint, Docket Entry No. 1, -36- ~ 56. complained to any HISD official that Feenstra and A.W. had a sexual relationship, or that relationship with a Feenstra student. had Thus, in the past had plaintiffs have a sexual failed to allege facts capable of proving that HISD officials had actual knowledge of a substantial risk that Feenstra would sexually abuse A.W. or any other student. The lack of factual allegations capable of proving either that Feenstra had a history of sexual misconduct with students or that any HISD official knew that Feenstra had such a history stands in sharp contrast plaintiffs alleged cite to the in factual support in their complaint motion to dismiss ex reI. Gordon F. Supp. 2d 1077, of Ottumwa 1082 their are their Title v. allegations (S.D. in arguments sufficient IX claims. 47 the cases that that the facts to withstand HISD's See, ~, Gordon Community School District, 115 Iowa 2000) (rejecting plaintiffs' contention that sexually inappropriate comments in class provided school officials actual notice of a sexual relationship between teacher and student but agreeing with plaintiffs that school officials' knowledge that teacher had in the past hugged a student and then kissed that student on the lips and patted that student's buttocks placed the school district on notice that the teacher presented a risk of sexually inappropriate conduct); Doe v. School 47Plaintiffs' Response to HISD's Motion to Dismiss, Docket Entry No. 24, pp. 7-13; and Plaintiffs' Surreply to Defendants' Motions to Dismiss, Docket Entry No. 34-1, pp. 7-8. -37- Administrative District No. 19, 66 F. Supp. 2d 57, 63 (D. Me. 1999) (actual notice may be found when the district had notice that the teacher had abused other students in the past) i I.S.D., 2007 WL 4205726, Civil Action No. SA-05-CA-0239-XR, (W.D. Tex. November 27, 2007) that she saw a school N.B. v. San Antonio *4 (principal was informed by individual district police officer inappropriately touching a student's breast and grabbing the student's buttocks) i Warren ex reI. 172-73 Warren v. Reading School District, (3d Cir. 2002) 278 F.3d 163, (holding that memorandum from principal to teacher directing the teacher to stop playing classroom games that involved physical contact constituted evidence that the principal had "actual knowledge tt Accordingly, that the teacher was abusing students). the court concludes that plaintiffs have failed to allege facts capable of proving that any HISD official had actual knowledge of substantial risk that Feenstra would sexually abuse A.W. or any other student. B. Counts 2 and 3: § 1983 Claims Subject to Dismissal Counts 2 and 3 of Plaintiffs' Original Complaint assert claims under 42 U.S.C. § 1983 for violations of A.W.'s constitutional rights to equal protection and due process, respectively. HISD and all of the individually named defendants except Feenstra argue that plaintiffs' time-barred, § 1983 claims are subject to dismissal because they are and because plaintiffs have failed to allege facts capable of stating a § 1983 claim for which relief may be granted. -38- 1. Applicable Law "To state a section 1983 claim, 'a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law. '" James v. Texas Collin County, (quoting 535 F.3d 365, 373 (5th Cir. Moore v. Willis I.S.D., 233 F.3d 871, 874 2008) (5th Cir. 2000)). Defendants do not dispute that plaintiffs have alleged facts capable of satisfying the two requirements for stating a claim with respect to A.W., 1983 § but do dispute that plaintiffs have alleged any violation of King-White's constitutional rights. The allegations in plaintiffs' plaintiffs' complaint responses to defendants' and the arguments in motions to dismiss contain lengthy descriptions of the ways that plaintiffs allege A. W. 's constitutional rights to equal protection and due process were violated when she was abused by Feenstra, her dance teacher. nei ther plaintiffs' what, if any, violated. 2060 complaint nor plainti ff s' But responses discuss constitutional right of King-White the defendants Instead, citing Troxel v. Granville, 120 S. Ct. 2054, (2000), plaintiffs merely state in a footnote to their discussion of King-White's ability to assert Title IX claims that [i]n addition to Mary King-White's standing under Title IX, the Supreme Court has observed that '[t] he liberty interest. . of parents in the care, custody, and control of their children - is perhaps the oldest of -39- the fundamental Court. ,48 liberty Missing from plaintiffs' interests recognized by this complaint or responses to defendants' motions to dismiss are any allegations or argument that defendants' conduct violated King-White's constitutional rights. tiffs have not alleged facts capable of stating a § Thus, plain1983 claim for violation of King-White's constitutionally protected rights. The Fifth Circuit has held that school children have a liberty interest in their bodily integrity protected by the Due Process Clause of the Fourteenth Amendment, and that physical sexual abuse by a school I.S.D., 15 employee violates F.3d 443, 451-52 any dispute that right. (5th Cir. denied, 115 S. Ct. 70 (1994). be this See Doe v. 1994) (en bane), Taylor cert. Moreover, there does not appear to plaintiffs have alleged facts capable of proving that at least some of Feenstra's wrongful conduct occurred on school property, and that Feenstra used her position as a dance teacher to molest A.W. Thus, plaintiffs have alleged facts capable of proving that Feenstra was acting under color of state law for the purposes of the pending motions to dismiss. 15 F.3d at 452 n.4 (" [I] f a 'real nexus' See Taylor I.S.D., exists between the activity out of which the violation occurs and the teacher's duties and obligations as a teacher, then the teacher's conduct is taken under color of state law.") . 48Plaintiffs' Response Entry No. 24, p. 14 n.4. to HISD's Motion to Dismiss, -40- Docket In Taylor I.S.D. the Fifth allegations to the contrary, student who was sexually Circuit the 1983 due process claim of a § abused by a ruled teacher that absent superseded any possible equal protection claim that the student could raise based on the same misconduct. Id. at 458. Since like the plaintiff in Taylor I.S.D. plaintiffs here "do not claim that the damages that [they] could recover based on the alleged violation of [A.W.'s] equal protection rights would be any more extensive than the damages that they could recover based on the substantive due process violation," id., the court concludes that there is no need to consider the claims for violation of A. W. 's rights to equal protection separately. 596, 613 (E.D. motions to alleged facts Tex. dismiss, See Doe v. Beaumont I.S.D., 8 F. Supp. 2d 1998). the capable Thus, court of for purposes of the pending concludes proving that that A. W. 's plaintiffs have constitutionally protected right to bodily integrity was violated by Feenstra who was, state at the time, law. The a public school teacher acting under color of issue is whether plaintiffs' allegations are sufficient to hold HISD and the six School Officials named as individual defendants liable for Feenstra's violation of A.W.'s constitutionally protected rights. 2. Application of the Law to the Alleged Facts (a) Plaintiffs' § 1983 Claims Are Time-Barred For the reasons stated above in the plaintiffs' Title IX claims, -41- § III.A.2(d) with respect to the court concludes that plaintiffs' § 1983 claims are time-barred. See Wilson, 105 S. Ct. at 1941 (holding that civil rights claims arising under 42 U.S.C. § 1983 within a particular state should be governed by that state's statute of limitations for personal S. Ct. at 582 injury claims) (holding that claims arising under § i Owens, 109 1983 within a particular state should be governed by that state's "general or residual statute for personal injury actions") . (b) HISD Is Entitled to Dismissal of § 1983 Claims HISD argues that the claims asserted against it under § 1983 are subject to dismissal because plaintiffs' allegations of fact are incapable of establishing that an official policy, custom, or practice of HISD was the moving force behind the alleged violations of A. W. 's constitutional rights. 49 In contrast to a Title IX claim, in which liability may be established by showing that a single school administrator indifference, result of practice. 788, 797 § the responded to harassment with deliberate 1983 requires proof that the harassment was the school district's official policy, See Fitzgerald v. Barnstable School Comm., custom, or 129 S. Ct. (2009). In Monell v. Department of Social Services of the City of New York, 98 S. Ct. 2018, 2022, 2035-36 (1978), the Supreme Court held that municipalities and other local government entities such as school districts are "persons" subject to suit under 42 U.S.C. 49HISD's Motion to Dismiss, Docket Entry No. 16, pp. 19-24. -42- § 1983, but that such entities cannot he held liable on a respondeat superior basis, i.e., a local government cannot be held liable simply because one of its employees violated a person's federal rights. under its § For a local governmental entity to be held liable 1983, the entity itself must cause the violation through pol icies. 1d. at 2037-38 (" [I] t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.") Absent such an official policy, custom, or practice, a municipality may only be held liable if the discriminatory practice is "so permanent and well settled as to constitute a 'custom or usage' with the force of law." S.H. § Kress & Co., 90 S. Ct. 1598, 1614 (1970). Adickes v. Thus, to state 1983 claims against H1SD, plaintiffs must allege facts capable of proving "three elements: a policymakeri an official policYi and a violation of constitutional rights whose policy or custom." 'moving force' is the Piotrowski, 237 F.3d at 578 ("the unconstitu- tional conduct must be directly attributable to the municipality through some sort of official action or imprimatur") . (1) Policymaker Allegations Fail H1SD argues that it is entitled to dismissal of plaintiffs' § 1983 claims because plaintiffs have not alleged facts capable of proving that H1SD's final policymaker approved or even knew about -43- the unconstitutional conduct about which plaintiffs complain. Plaintiffs respond that they have sufficiently pled facts that HISD's Board of Trustees delegated final policymaking authority to the School Officials identified in their complaint, and that those School Officials failed to train their employees to identify and prevent sexual abuse of students, and failed to supervise, investigate, or discipline the abuser, Feenstra. Identification of the "final policymaker" is a question of state law. See City of St. Louis v. Praprotnik, 108 S. Ct. 915, 928 (1988). The "final policymaker" is the official or officials whose decisions are unconstrained by policies imposed by a higher authority. 595, 603 See Beattie v. Madison County School District, 254 F. 3d (5th Cir. 2001) (explaining that a superintendent is not a final policymaker because her decision was subject to review by the school board). for trustees. See Texas Education Code Rivera Houston (quoting Tex. school Texas authority v. a Under Educ. district I.S.D., Code 349 § law is §§ F.3d 11.151(b) the the final policy-making district's board 11.151 & 11.1511. 244, 247 (5th of See also Cir. 2003) ("Texas law unequivocally delegates to the Board 'the exclusive power and duty to govern and oversee the management of the public schools of the district. '")) . Plaintiffs' Original Complaint fails to allege facts capable of linking any unconstitutional policy, HISD's Board of Trustees. practice, or custom to Instead, plaintiffs allege that the HISD Board of Trustees delegated final policymaking authority to the six -44- School Officials who are individually named as defendants in this action, i. e., the superintendent (Sconzo), the principal (Ned), the assistant guidance principals counselor (Melendez, McHale, (Narcisse). But and missing Stowers), from and the plaintiffs' complaint is any cite to state or local law permitting HISD's Board of Trustees identified to delegate School final authority to the See Officials. policymaking 349 at 248 Rivera, F.3d (distinguishing decision-making from policy-making). Also missing from plaintiffs' complaint are any allegations of fact capable of proving that HISD's board delegated policymaking authority to any of the School Officials identified in plaintiffs' complaint. See McCall v. Dallas I.S.D., 169 F. Supp. 2d 627, 635 (N.D. Tex. 2001) (plaintiff's complaint was deficient because it failed "to allege any facts supporting a conclusion" that the school board delegated policymaking authority to the superintendent) . (2) Policy, Custom, or Practice Allegations Fail Plaintiffs allege that the HISD Board of Trustees adopted "official" policies pertaining to child abuse, sexual abuse, and harassment,50 official but required school faulty do not staff to investigations, allege that these ignore abuse of or to students, discriminate against policies to conduct students. Instead, plaintiffs allege that HISD had a "policy, practice, or 50Plaintiffs' Original Complaint, Docket Entry No. I, ~~ 72, Plaintiffs' Response to HISD's Motion to Dismiss, Docket Entry No. 24, p. 25. 100) i -45- custom, official and/or unofficial" of providing less protection to same-sex female assault victims. 51 Plaintiffs also allege that HISD did not adequately train, supervise and/or discipline its employees giving rise to an official and/or unofficial policy or custom condoning misconduct such as that perpetrated by Feenstra. instead of pointing to a "moving force" behind Thus, formally adopted policy that was the alleged constitutional plaintiffs allege that HISD is liable under § 1983 the violations, because the six School Officials identified in their complaint failed to protect A.W., failed to investigate Feenstra's relationship with A.W., failed to train HISD employees to recognize signs of sexual abuse, and failed to supervise or discipline Feenstra. Plaintiffs argue that, by these omissions, defendants Sconzo, Ned, Melendez, McHale, Stowers, and Narcisse acted with deliberate indifference toward the constitutional rights of A.W. and her mother, King-White, and that this omission is evidence that HISD had a custom of deliberately ignoring acts of sexual abuse between HISD teachers and students. Acts that do not rise to the level of official policy may nonetheless create governmental liability if they are sufficiently widespread and pervasive to constitute a "custom" or "practice." To survive a motion to dismiss on an unconstitutional custom or practice claim, plaintiffs must point to factual allegations sufficient to allow a reasonable inference that there was a pattern 51Plaintiffs' Original Complaint, Docket Entry No. I, -46- ~~ 102 - 03. of misconduct involving Wichita Falls, denied, Texas, 131 S. Ct. similar acts. 614 F.3d 161, 3059 (2011) See 169 Zarnow v. (5th Cir. City of 2010), cert. ("A customary policy consists of actions that have occurred for so long and with such frequency that the course of conduct demonstrates the governing body's knowledge and acceptance of the disputed conduct."). requires similarity and specificitYi simply be for any and all 'bad' Moreover, "[a] pattern '[p] rior indications cannot or unwise acts, but rather must point to the specific violation in question." Peterson v. City of Fort Worth, Texas, 588 F.3d 838, 851 (5th Cir. 2009), cert. denied, 131 S. Ct. 66 (2010). Acts of sexual harassment by a teacher directed solely at a single student do not demonstrate a custom or policy of the School District to be deliberately indifferent to sexual harassment as a general matter. Houston, 863 F.2d 1180, 1184 See McConney v. City of (5th Cir. 1989) (recognizing that a pattern requires "sufficiently numerous prior incidents") v. City of Houston, 291 F.3d 325 (5th Cir. 2002) i Pineda (holding that eleven incidents of warrantless entry did not support a pattern of unconstitutional warrantless entry in one of the nation's largest cities and police forces). Plaintiffs have not alleged facts capable of proving that there were other incidents of teacher-student sexual misconduct at Humble High School or at any other HISD school. Nor have plaintiffs alleged facts capable of proving that other incidents of -47- teacher-student sexual abuse occurred long enough or frequently enough to warrant attributing knowledge or constructive knowledge to HISD's Board of Trustees that such conduct was caused by defective policies, or by the board's failure to adopt different "[P] roof policies. activity is not of a single sufficient for Valentine Foundation v. Uphoff, 2006) (per curiam) instance 1983 § of unconstitutional municipal 211 F. App'x 276, (citing McConney, liability." 278 863 F.2d at 1184 (5th Cir. ("Isolated instances . . . are inadequate to prove knowledge and acquiescence by policymakers.") ). Plaintiffs' claims that HISD failed to train, supervise, or discipline their employees are similarly deficient due to plaintiffs' failure to allege facts capable of proving a pattern of prior incidents. 594 F.3d 366, facts capable supervision, result 382 in a of See Sanders-Burns v. City of Plano, (5th Cir. 2010) proving that Nor have plaintiffs alleged the to for more training, or discipline was "obvious and obviously likely to constitutional violation" liability based on a single incident. failed need allege facts capable Id. of as required to support Because plaintiffs have proving a pattern of constitutional violations that would have made it obvious to HISD's Board of Trustees that different policies, training, supervision, or discipline were needed to prevent teachers from sexually abusing students, plaintiffs' state a 1983 claim against HISD based on their assertions that § allegations of fact are not sufficient to -48- HISD maintained a custom or practice of providing less protection to same-sex female assault victims or of deliberately ignoring acts of teacher-student sexual misconduct. (c) Individual Defendants Are Entitled to Dismissal of § 1983 Claims The individual defendants argue that the § 1983 claims against them are subject to dismissal because the claims asserted against them in their official capacities duplicate the claims asserted against HISDj and because they are entitled to qualified immunity from the claims asserted against them in their personal capacities. (1) The Official Capacity § 1983 Claims Claims Asserted Against HISD individual constitutional Melendez, McHale, defendants claims Stowers, argue against and that "Plaintiffs' Defendants Narcisse in Duplicate Sconzo, their Ned, official capacities should be dismissed on grounds of redundancy.u52 individual defendants explain that "[b] ecause The [their employer] Humble ISD is already a named defendant in this lawsuit, there is no legal or practical reason to retain the claims against individual defendants in their official capacities. u53 the Plaintiffs have not responded to the individual defendants' argument that the 52rndividual No. 17, p. 4. Defendants' Motion 53rd. -49- to Dismiss, Docket Entry § 1983 claims asserted against them in their official capacities should be dismissed as duplicating claims asserted against HISD. As public officials, under § the individual defendants may be sued 1983 in either their official or their personal capacities. Hafer v. Melo, 112 S. Ct. 358, 361-63 (1991) (citing Kentucky v. Graham, 105 S. Ct. 3099 (1985)). [T] he distinction between official-capacity suits and personal-capacity suits is more than "a mere pleading device.". . State officers sued for damages in their official capacity are not "persons" for purposes of the suit because they assume the identity of the government that employs them. . By contrast, officers sued in their personal capacity come to court as individuals. A government official in the role of personal-capacity defendant thus fits comfortably within the statutory term "person. " Id. at 362. The real party in interest in an official-capacity suit is the governmental entity, not the named official. 361 (citing Graham, 105 S. Ct. at 3105) officials in their official capacity . suits against the State."). Police Civil rd. at ("Suits against state should be treated as See Turner v. Houma Municipal Fire and Service Board, 229 F.3d 478, 483 (5th Cir. 2000) 'generally represent only another ("Official-capacity suits. way of pleading an action against an entity of which an officer is an agent.' Accordingly, a § 1983 suit naming defendants in only their 'official capacity' does not involve personal liability to the individual defendant.") Plaintiffs have asserted without stating whether § these 1983 claims against all defendants claims -50- are asserted against the individual defendants in their official or personal capacities. Because any 1983 § claims asserted against the individual defendants in their official capacities would duplicate the claims asserted against HISD, entitled to dismissal of any the individual § 1983 defendants are 1983 claims that plaintiffs have § asserted or attempted to assert against them in their official capacities. See Jenkins v. Board of Education of the Houston I.S.D., 937 F. Supp. 608, 613 (S.D. Tex. 1996) ("[B]ecause a suit against a public employee in his or her official capacity is simply another way to sue the public entity, Jenkins cannot show that he would be prejudiced by the dismissal of the individual HISD defendants from this case in their official capacities, as HISD is already a defendant.H). (2) Individual Defendants Entitled to Qualified Immunity on Personal Capacity § 1983 Claims Asserting that they are governmental employees entitled to qualified immunity, the individual defendants argue that the claims asserted against them in their personal § 1983 capacities are subject to dismissal because "[t] here are no allegations giving rise to any reasonable inference that any of them knew about, and were deliberately indifferent to, an obvious risk that A.W. would Therefore, they are immune." 54 be sexually assaulted or harassed. Plaintiffs respond that the individual 54Id. defendants are § 1983 claims asserted against the not subject at 14. -51- to dismissal because plaintiffs' complaint makes clear that the individual defendants were not only Feenstra's supervisors but also were aware of and deliberately indifferent to violations of A. W. 's constitutional rights to due process and equal protection, and that the individual defendants' failure to protect A.W. caused A.W. to be injured. 55 To state personal-capacity claims under § 1983 plaintiffs must allege that while acting under color of state law defendants were personally involved in the deprivation of a right secured by the laws or Constitution of the United States, or that the defendants' wrongful actions were causally connected to such a deprivation. James, 535 F.3d at 373. liable under § no involvement. to § 1983 A supervisor cannot be held personally 1983 "for his subordinate's actions in which he had ff suits, Id. a Because vicarious liability is inapplicable plaintiff must plead that each Government- official defendant, through the official's own individual actions, has violated federal law. Iqbal, 129 S. Ct. at 1949. In order for school officials to be held personally liable for a subordinate's sexual abuse of a student plaintiffs must plead facts capable of proving that: (1) the defendant[sl learned inappropriate sexual behavior plainly toward the conclusion sexually abusing the student; of facts or a pattern of by a subordinate pointing that the subordinate was and 55Plaintiffs' Response to Motion to Dismiss of Defendants Sconzo, Charles Ned, Juan Melendez, Tammy McHale, Craig Stowers Alicia Narcisse and Brief in Support ("Plaintiffs' Response Individual Defendants' Motion to Dismiss Docket Entry No. pp. 14-22. ff ), -52- Guy and to 25, (2) the defendant[s] demonstrated deliberate indifference toward the constitutional rights of the student by failing to take action that was obviously necessary to prevent or stop the abuse; and (3) such failure caused a constitutional injury to the student. Taylor I.S.D., 15 F.3d at 454. Public officials sued in their personal capacities under are shielded from suit by the doctrine of qualified § 1983 immunity. Saucier v. Katz, 121 S. Ct. 2151, 2156 (2001), overruled in part by Pearson v. Callahan, 129 immunity is 'an entitlement not to stand trial or face the other burdens of litigation;' S. Ct. 808, 812 (2009). "Qualified . it is effectively lost if a case is erroneously permitted to go to trial." Id. (quoting Mitchell v. Forsyth, 105 S. Ct. 2806, 2815 (1985)). The doctrine of qualified immunity was created to balance the interest of compensating persons whose federally protected rights have been violated against the fear that personal liability might discharge of their duties. inhibit officials in the See Johnston v. City of Houston, Texas, 14 F.3d 1056, 1059 (5th Cir. 1994). involves a two-step inquiry: public The qualified immunity analysis (1) whether the plaintiff has alleged a violation of a constitutional right; and (2) whether that right was clearly established at the time of the alleged misconduct. Pearson, 129 S. Ct. at 815-16 (citing Saucier, 121 S. Ct. at 2155). It is within the discretion of the district court to decide which of the two steps to address first. Id. at 818. Courts examine each defendant's actions independently to determine whether he or she is -53- entitled to qualified immunity. (5th Cir. 2012), cert. Newman v. Guedry, 703 F.3d 757, 762 denied, 134 S. Meadours v. Ermel, 483 F.3d 417, 421-22 defendant asserts qualified immunity Ct. (2013) (citing (5th Cir. 2007)). Once a the 162 burden shifts to the plaintiffs to bear the burden of negating the qualified immunity defense. See Newman, 703 F.3d at 761. 47 F.3d 1427, 1433 (5th Cir. 1995) See also Schultea v. Wood, (en bane) (recognizing that once a defendant asserts qualified immunity, the plaintiff must "fairly engage II the immunity defense by responding with factual specificity) . Citing ~~ 55-69 and 86-95 of their complaint, plaintiffs argue that they have alleged facts capable of proving that each of the individually named defendants "had actual knowledge of the sexual harassment and abuse that A.W. suffered and failed to adequately respond to protect A. W. ' s rights. 56 Plaintiffs argue that these paragraphs allege facts capable of proving that (1) Guy Sconzo, Superintendent and supervisor of Charles Ned and Amanda Feenstra; (2) Charles Ned, the High School Principal and immediate supervisor of Amanda Feenstra; (3) Juan Melendez, Assistant Principal and co-supervisor of Amanda Feenstra; (4) Tammy McHale, Assistant Principal and co-supervisor of Amanda Feenstra; (5) Craig Stowers, Assistant Principal and co-supervisor of Amanda Feenstra; and (6) Alicia Narcisse, school counselor/administrator, all had actual knowledge of the sexual harassment and abuse that A. W. suffered and failed to adequately respond to protect A. W. ' s rights. 57 56rd. at 17. 57rd. -54- Plaintiffs argue that "[a] 11 Defendants had a pivotal role in establishing and maintaining the unconstitutional practices and customs that led to the manner in which A. W. was treated. ,,58 Plaintiffs have alleged facts capable of establishing that Feenstra spent an excessive amount of time with A.W., that Feenstra left the school grounds with A.W., that Feenstra took A.W. on outof-town trips during which Feenstra would share a room and a bed with A.W., and plaintiffs have which, if any, that not A.W. moved into alleged any facts Feenstra's capable of home. But establishing of the individual defendants other than Feenstra knew that Feenstra engaged in sexual misconduct with A.W. Instead of describing what each defendant allegedly knew or did, plaintiffs make only generic and global references to "School Officials," a term that they define to include Feenstra, the dance teacher who undisputedly abused A.W.59 capable of proving which, if any, Absent allegations of fact of the individual defendants other than Feenstra, learned of facts or a pattern of inappropriate behavior pointing plainly toward the conclusion that Feenstra was 58Plaintiffs' Original Complaint, Docket Entry No. 1, ~ 77. 59Id. ~ 19 (defining "School Officials" as "Feenstra, Sconzo, Ned, McHale, Melendez, Stowers, and McHale"). See also id. ~~ 8182 ("[I]n or about March 2013, Feenstra was arrested and charged with a felony of Improper Relationship with Student, arising out of Feenstra intentionally and knowingly engaging in Deviate Sexual Intercourse with A.W., a student."; "On or about October 23, 2013, Feenstra pleaded guilty to an improper relationship with a student and was sentenced to 10 years deferred adjudication and probation.") . -55- sexually abusing A. W., plaintiffs capable of proving that any of deliberately indifferent have the to A. W. 's failed to allege facts individual defendants were rights by "failing to take action that was obviously necessary to prevent or stop [Feenstra's] abuse." loS.D., § Taylor 1. S. D., 15 F. 3d at 454. 76 F.3d 666, 668-69 & n.2 See Doe v. Rains County (5th Cir. 1996) (dismissing 1983 claims brought by student and her parents against school principal arising from a coach's sexual molestation of the student because allegations that the principal knew the plaintiff babysat for the coach, knew the coach walked the plaintiff to her bus, saw the plaintiff crying and learned that she was having trouble with a man, and asked another employee if there was anything going on between the coach and the plaintiff "d[id] not even come close to those under which this immunity in court [Taylor loS.D., [denied] 15 F.3d at 454]") loS.D., 51 F.3d 48,52 (5th Cir. 1995) no information that the principal i qualified Hagan v. Houston ("[b]ecause [principal] had [coach] posed a threat to students, he could not have been deliberately indifferent") Because plaintiffs have failed to allege facts proving except that any of the Feenstra knew that individual school-official Feenstra was capable of defendants sexually abusing A. W. , plaintiffs have also failed to allege facts capable of proving that any of these defendants were deliberately indifferent to A.W.'s rights by "failing to take action that was obviously necessary to prevent or stop [Feenstra's] abuse." -56- Taylor, 15 F. 3d at 454. Thus, plaintiffs' allegations are neither sufficient to state a personal capacity claim under § defendants nor except defendants' Feenstra, 1983 against any of the individual sufficient to assertions of qualified immunity. individual defendants' motion to dismiss the § overcome these Accordingly, the 1983 claims asserted against them in their personal capacities will be granted. C. State Law Claims Plaintiffs assert claims against all defendants, including the individual defendants, supervise, based on state law for failure to train, and discipline, and for sexual assault and battery, negligence and gross negligence, bystander recovery, and infliction of emotional distress in violation of Texas common law. HISD argues that the state law claims asserted against it are barred by sovereign immunity, and the individual defendants argue that the state law claims asserted against them are barred by the Texas Education Code § 22.0511 of the Texas educator immunity statute, and by the Texas Tort Claims Act ("TTCA"), Texas Civil Practices & Remedies Code 1. § 101.106(e). HISD Is Entitled to Dismissal of State Law Claims In addition to the federal law claims asserted against HISD, plaintiffs allege claims against HISD based on the common law of the State of Texas for failure to train, supervise, and discipline, and for sexual negligence, assault bystander and battery, recovery, -57- and negligence infliction of and gross emotional distress. 6o HISD argues that the state law tort claims should be dismissed for want of jurisdiction under Federal Rule of Civil Procedure 12(b) (1) because HISD is absolutely immune from damages arising from common law torts. 61 School districts in Texas retain their sovereign/governmental immunity from all common law claims unless the Texas Legislature has expressly waived immunity in a specific statute. Consolidated I.S.D. v. Garcia, 253 S.W.3d 653, See Mission 655 (Tex. 2008). The TTCA provides a limited waiver of immunity for certain suits against governmental entities. Under the TTCA the only permissible tort claim against a school district is a claim based on misuse of a motor vehicle. §§ 101.001 and 101.051. See Tex. Consequently, Civ. Prac. & Rem. Code plaintiffs cannot assert common law claims for failure to train, supervise, and discipline, and for sexual negligence, assault bystander and battery, recovery, and negligence infliction and of gross emotional distress against HISD. See Doe v. S&S Consolidated I.S.D., F. (E.D. 2001) Supp. 2d 274, 302 Tex. (dismissing physical abuse claims asserted against school district) i 149 student's Hopkins v. 6°Plaintiffs' complaint also cites the Texas wrongful death statute, Tex. Civ. Prac, & Rem. Code §§ 71.001 and 71.021. Plaintiffs' Original Complaint, Docket Entry No. I, ~ 4. Since plaintiffs have not alleged any wrongful death, this claim fails as a matter of law. See Saenz v. City of McAllen, 396 F. App'x 173, 179, 2010 WL 3852358 (5th Cir. October 4, 2010) (unpublished) (Texas wrongful death statute does not waive Texas local governments' governmental immunity). 61HISD's Motion to Dismiss, Docket Entry No. 16, p. 5. -58- Spring I.S.D., 736 S.W.2d 617, 619 (Tex. 1987) (school district was immune from claim based on failure to supervise students) I.S.D. v. Watley, 216 S.W.3d 374, 382 & n.8 2006, no pet.) (school districts misrepresentation and assault). are i Midland (Tex. App. - Eastland immune from claims of Because plaintiffs have neither alleged nor argued that any of the common law claims that they have asserted in this action are claims for which the Texas Legislature has waived HISD's sovereign immunity, HISD's motion to dismiss the state claims asserted against it will be granted. 2. Individual Defendants Are Entitled to Dismissal of State Law Claims The TTCA contains an election of remedies clause that prohibits plaintiffs from suing both a governmental entity and its employees § 101.106. for tort claims. See Tex. Ci v . Prac. See also Garcia, 253 S.W.3d at 657 & Rem. Code (u[The Texas Tort Claims Act] forcers] a plaintiff to decide at the outset whether an employee acted independently and is thus solely liable, or acted within the general scope of his or her employment such that the governmental unit is vicariously liable. 369 S.W.3d 268, 270 filed) (Tex. App. ("Under the Texas Tort provision, lI ) i Fontenot v. Stinson, Houston [14th Dist.] 2011, pet. Claim Act's election-of -remedies plaintiffs who are injured by governmental employees must make a sometimes difficult choice of whether they wish to pursue tort claims against either the employee or the employer. ") . Here, plaintiffs have asserted tort claims against all defendants -59- for the failure to train, supervise, and discipline, and for sexual assault and battery, negligence and gross negligence, bystander recovery, and infliction of emotional distress. The TTCA provides that when a tort suit is filed "against both a governmental unit and any of its employees, the employees shall immediately be dismissed governmental unit." also Bustos v. 2010) . on the filing Tex. Civ. Prac. Martini Club, Inc., & of a Rem. Code § motion by the 101.106(e). See 599 F.3d 458, 463 (5th Cir. In its motion to dismiss HISD argues that the state law claims asserted against the individual defendants are subject to dismissal under the TTCA's election of remedies clause. 62 Although plaintiffs argue that the individual defendants are not entitled to dismissal of Individual state law Defendants' claims "where conduct in such their claims involve the personal-capacity, 1163 plaintiffs have not cited any authority that accords different treatment to official and personal capacity tort claims asserted against government employees under Texas law. Moreover, plain- tiffs' argument has been rejected by a number of Texas intermediate courts. See Dung Ngoc Huynh v. Washington, (Tex. App. - Dallas, 2011, no pet.) i 339 S.W.3d 309, 311 Williams v. Nealon, 394 S.W.3d 9, 12 (Tex. App. -- Houston [1st Dist.], 2012, pet. denied) i Lund v. 62Id. at 6 (" [b] ecause the Plaintiffs have sued both Humble ISD and its employees, the employees are entitled to automatic dismissal of all tort claims against them due to operation of the election-of-remedies provision in the Texas Tort Claims Act") . 63Plaintiffs' Response to Individual Defendants' Dismiss, Docket Entry No. 25, p. 23. -60- Motion to Giaugue, 416 S.W.3d 122, 124-25 (Tex. App. - Fort Worth, 2013, no pet.) (holding that a suit against a governmental employee acting within the scope of his or her employment and sued in his or her individual capacity must be dismissed under § 101.106(f) even if the governmental employer's immunity is not waived by the TTCA). Because HISD's separately filed motion seeks dismissal of the state tort claims asserted against the individual defendants, the individual defendants' motion to dismiss the state law tort claims asserted against them will be granted. IV. Plaintiffs' Request for Leave to Amend Will Be Denied At the end of their responsive briefing to the defendants' motions to dismiss, complaint. the plaintiffs request leave to amend their In full, this general request states: For the reasons discussed herein, Plaintiffs ask that the Court deny the Motion to Dismiss. Arguing in the alternative, however, if the Court should determine that more specificity is required in Plaintiffs' Complaint, Plaintiffs request leave to amend the Complaint. Pursuant to Rule 15 (a) (2), courts should "freely give leave [to amend] when justice so requires." Fed.R.Civ.P. 15 (a) (2). "The policy of the federal rules is to permit liberal amendment to facilitate determination of claims on the merits and to prevent litigation from becoming a technical exercise in the fine points of pleading." Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981). In this event, Plaintiffs would ask for leave to take discovery to secure the additional evidence that HISD has refused to produce in response to requests from the media and A. W. ' s family. That way, a full pleading can be made in the Complaint. 64 64Id. at 30-31. See also Plaintiffs' Response in Opposition to HISD's Motion to Dismiss, Docket Entry N. 24, p. 45. -61- Federal Rule of Civil Procedure 15(a) (2) court should requires." granting freely give leave [to 15 (a) \ evinces it not "AI though Rule leave to amend,' is states that "[t]he amend] a when bias F. 2d at 598). "A decision discretion of the trial court. in to grant favor of of (quoting Dussouy, leave Its discretion, so Matter automatic." Southmark Corp., 88 F.3d 311,314 (5th Cir. 1996) 660 justice is within the however, is not broad enough to permit denial if the court lacks a substantial reason to do so. Id. II (citing State of Louisiana v. Mortgage Co., 50 F.3d 1298, 1302-1303 (5th Cir. 1995)). Litton Generally, a district court errs in dismissing a complaint for failure to state a claim under Rule 12(b) (6) without giving the plaintiff an opportunity to amend. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.), 119 cert. denied, S. Ct. 156 (1998). If, however, a complaint alleges the plaintiff's best case, there is no need for further amendment. Cir. 1999) See Jones v. Greninger, 188 F.3d 322, 327 (5th (dismissing plaintiff's pro se action because court could perceive of no viable claim plaintiff could include in an amended complaint based on the underlying facts) The Fifth Circuit has also held that in exercising its discretion, a court may consider undue delay, failure bad faith, dilatory motive, repeated to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, proposed amendment. and the futility of the See Rosenzweig v. Azurix Corp., 332 F.3d 854, -62- 864 (5th Cir. 2003) (citing Foman v. Davis, 83 S. Ct. 227, 230 (1962)) . The record demonstrates that plaintiffs initiated this action on December 4, 2013 (Docket Entry No.1), that defendants filed their motions to dismiss on January 22, 2014 (Docket Entry Nos. 1617), and that plaintiffs responded on February 24, Entry Nos. 24-25), defendants' (Docket by arguing that their Original Complaint is factually sufficient to survive defendants' Nevertheless, 2014 motions to dismiss. in the last paragraphs of their responses to the motions to dismiss plaintiffs include a request for leave to amend unaccompanied by either a proposed amendment or a substantive discussion of the amendments contemplated. Instead, plaintiffs' request for leave to amend is accompanied by a request for "leave to take discovery to secure the additional evidence that HISD has refused to produce in response to requests from the media and A.W.'s family. Complaint. 1165 That way, a full pleading can be made in the The law in this circuit is that plaintiffs are not entitled to an opportunity to satisfy the pleading requirements for governmental liability when, in response to a motion to dismiss, the plaintiffs simply declare the adequacy of their complaint and fail to take advantage of the opportunity to amend as a matter of 65Plaintiffs' Response to HISD' s Motion to Dismiss, Docket Entry No. 24, p. 45. See also Plaintiffs' Response to Individual Defendants' Motion to Dismiss, Docket Entry No. 25, pp. 30-31. -63- right. See Spiller v. City of Texas City, Police Department, 130 F.3d 162, 167 (5th Cir. 1997) F.2d 789, 792-793 (5th Cir. 1986)). F.3d 472, 479 (5th Cir. 1994) to grant granted (citing Jacquez v. plaintiff defendant's leave 801 See also Babb v. Dorman, 33 (affirming district court's refusal to amend his motion Procunier, to complaint dismiss because after it had plaintiff had declared the sufficiency of his pleadings and failed to offer a sufficient amended complaint in response to the defendant's motion). Plaintiffs' request for leave to take discovery to secure additional evidence that HISD has refused to produce in response to requests from the media and A.W.'s family shows that there is no need for further amendment because the plaintiffs have alleged their best plaintiffs' time-barred, case. Moreover, the court's conclusions federal law claims based on Title IX and that plaintiffs' § that 1983 are state law claims against HISD are barred by sovereign immunity, and that plaintiffs' state law claims against the individual defendants are barred by the Texas Tort Claims Act persuade the court that granting plaintiffs' motion for leave to amend would be futile. Arthur R. Miller & Mary Kay Kane, § 1487, at 743 (2010) ("several See 6 Charles Alan Wright, Federal Practice & Procedure, courts have held that if a complaint as amended could not withstand a motion to dismiss then the amendment should be denied as futile"). Accordingly, the plaintiffs' requests for leave to amend will be denied. -64- v. Conclusions and Order For the reasons explained above, the Motion to Dismiss of Defendant Humble Independent School District (Docket Entry No. 16) is GRANTED; the Motion to Dismiss of Defendants Guy Sconzo, Charles Ned, Juan Melendez, Tammy McHale, Craig Stowers, and Alicia Narcisse (Docket Entry No. 17) is GRANTED; Plaintiffs' Motion for Leave to File Surreply to Defendants' Replies to Motions to Dismiss (Docket Entry No. 34) is GRANTEDi and plaintiffs requests for leave to amend asserted motions to in plaintiffs' dismiss Accordingly, all of (Docket the responses Entry Nos. claims that 24 to and the defendants' 25) are DENIED. plaintiffs have asserted against the Humble Independent School District, Superintendent Guy Sconzo, Principal Charles Ned, Assistant Principals Juan Melendez, Tammy McHale, and Craig Stowers, and Guidance Counselor Alicia Narcisse are DISMISSED WITH PREJUDICE. SIGNED at Houston, Texas, on this the 11th day of June, 2014. UNITED STATES DISTRICT JUDGE -65-

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