Case 5:17-cv-00310-OLG Document 20 Filed 05/09/17 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

JOHN and JANE DOE, INDIVIDUALLY

AND AS NEXT FRIENDS OF
CHILD DOE, A MINOR,
Plaintiffs
vs.

LA VERNIA INDEPENDENT SCHOOL CIVIL ACTION NO.: 5:17-cv-310-OLG
DISTRICT; JOSE H. MORENO,
SUPERINTENDENT; KRISTEN
MARTIN, PRINCIPAL; BRANDON
LAYNE, FORMER ATHLETIC
DIRECTOR AND HEAD COACH;
RICHARD HINOJOSA, ATHLETIC
DIRECTOR; CHRIS TABER,
ATHLETIC DIRECTOR; SCOTT
GRUB, HEAD COACH; KEITH
BARNES, COACH,
Defendants JURY DEMAND

DEFENDANTS LA VERNIA INDEPENDENT SCHOOL DISTRICT AND DR. JOSE H.

MORENO, SUPERINTENDENTS 12(b)(1) MOTION TO DISMISS IN PART FOR
LACK OF SUBJECT-MATTER JURISDICTION AND 12(b)(6) MOTION TO DISMISS
FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COME Defendants La Vernia Independent School District (LVISD) and Dr.

Jose H. Moreno, Superintendent, (Dr. Moreno)1 and file this Motion to Dismiss in Part for

Lack of Subject-Matter Jurisdiction and Motion to Dismiss for Failure to State a Claim Upon

Which Relief Can Be Granted, and show the Court the following:

I. STATEMENT OF THE CASE

1 The remaining Defendants are represented separately.

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1. Plaintiffs filed their Original Complaint on April 11, 2017, claiming that Child Doe had

suffered bullying, hazing, and sexual abuse inflicted by other students while attending the

LVISDs high school during the academic years of 2015-2017. See Dkt. No. 1. Plaintiffs John

and Jane Doe assert claims individually and as next friend of Child Doe for: (1) violation of

Child Does Fifth and Fourteenth Amendment due process rights, pursuant to 42 U.S.C. 1983,

against all Defendants; (2) violation of Child Does rights under Title IX, 20 U.S.C. 1681, et

seq. against the LVISD; (3) and a common law theory of tort liability pursuant to respondeat

superior. Defendants LVISD and Superintendent Moreno timely file this motion to dismiss,

asking the Court to dismiss Plaintiffs claims in their entirety.

II. MOTION TO DISMISS STANDARD

2. This Court is well-versed in the standard for Rule 12(b)(1) Motions to Dismiss. If the

Court must resolve factual issues before it decides the jurisdictional question, it may review

evidence necessary to settle the jurisdictional issue. See Moran v. Kingdom of Saudi Arabia, 27

F.3d 169, 172 (5th Cir. 1994).

3. Dismissal is appropriate under Rule 12(b)(6) for failure to state a claim upon which

relief can be granted. Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) must be read in concert with the

pleading standard set forth in Rule 8(a), which requires a short and plain statement of the claim

showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2); see Ashcroft v. Iqbal, 556

U.S. 662, 67768 (2009). In order to survive a motion to dismiss, plaintiffs must provide the

grounds of entitlement to relief, which requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do. Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007) (internal citations omitted). Indeed, the complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

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face. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim has facial

plausibility when the pleaded factual content allows the court, drawing upon its judicial

experience and common sense, to reasonably infer that the defendant is liable for the

misconduct alleged. Aleman v. Edcouch Elsa Indep. Sch. Dist., 982 F. Supp. 2d 729, 732 (S.D.

Tex. 2013) (citing Iqbal, 556 U.S. at 678, Twombly, 550 U.S. at 556). But where the well-

pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the

Petition has allegedbut it has not show[n]that the pleader is entitled to relief. Iqbal, 556

U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Thus, although all reasonable inferences will be

resolved in favor of the plaintiff, the plaintiff must plead specific facts, not mere conclusory

allegations. Tipps v. McCraw, 945 F. Supp. 2d 761, 765 (W.D. Tex. 2013) (citing Tuchman v.

DSC Commc'ns Corp., 14 F.3d 1061, 1067 (5th Cir.1994)).

III. ARGUMENTS AND AUTHORITY

A. THE LVISD RETAINS ITS SOVEREIGN IMMUNITY FROM PLAINTIFFS TORT CLAIMS

4. Plaintiffs assert that the LVISD is liable pursuant to the common law tort theory of

respondeat superior. Dkt. No. 1, 39. However, the LVISD retains its sovereign immunity from

suit for all state tort claims, except those involving the operation or use of a motor vehicle. In

Texas, governmental entities are immune from tort causes of action, unless specifically waived

under the Texas Tort Claims Act (TTCA). See LeLeaux v. Hamshire - Fannett Indep. Sch.

Dist., 835 S.W.2d 49, 51 (Tex. 1992); TEX. CIV. PRAC. & REM. CODE 101.001 et seq. The

TTCA does not include a general waiver of immunity, but a limited one, waiving immunity only

under specified exceptions. Dallas County Mental Health & Mental Retardation v. Bossley, 968

S.W.2d 339, 341 (Tex. 1998). A school districts immunity is only waived by the TTCA in cases

specifically involving the use or operation of a motor vehicle. See TEX. CIV. PRAC. & REM.

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CODE 101.021(1); 101.051; 101.057; LeLeaux, 835 S.W.2d at 51. Thus, there is no waiver of

immunity for a tort claim unless the plaintiffs injuries were proximately caused by the operation

or use of a motor-driven vehicle. Jones v. Houston Indep. Sch. Dist., 979 F.2d 1004, 1007 (5th

Cir. 1992).

5. Plaintiffs claim that LVISD is responsible for the actions of its employees or agents also

fails as a matter of law. Under Texas law, a governmental entity like LVISD is immune from

liability for the alleged negligence of its agents ... except to the extent immunity is waived by the

Texas Tort Claims Act. Pierson v. Hous. Indep. Sch. Dist., 698 S.W.2d 377, 380 (Tex.App.-

Houston [14th Dist.] 1985, writ ref'd n.r.e.). Because the plaintiffs have asserted no allegations

that would invoke Tex. Civ. Prac. & Rem.Code Ann. 101.021 and 101.051 (injury resulting

from the operation of a motor vehicle), all claims based on a respondeat superior theory must be

dismissed. Penny v. New Caney Indep. Sch. Dist., CIV.A. H-12-3007, 2013 WL 2295428, at *8

(S.D. Tex. May 23, 2013). Because Plaintiffs tort claims do not arise from the operation or use

of a motor-driven vehicle, governmental immunity from suit has not been waived, nor has the

LVISD consented to suit, and this Court lacks subject-matter jurisdiction over those claims.

B. DR. MORENO IS ENTITLED TO DISMISSAL OF PLAINTIFFS TORT CLAIMS

6. While Plaintiffs Complaint is ambiguous as to whether they intend to assert tort claims

against Dr. Moreno to support their theory of respondeat superior liability against the LVISD,

Superintendent Moreno is entitled to professional immunity from any such state law claims:

A professional employee of a school district is not personally liable for any act
that is incident to or within the scope of the duties of the employees position of
employment and that involves the exercise of judgment or discretion on the part
of the employee, except in circumstances in which a professional employee uses
excessive force in the discipline of students or negligence resulting in bodily
injury to students.

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TEX. EDUC.CODE ANN. 22.0511(a). A superintendent is a professional employee of a school

district under the statute, and it is clear from the face of Plaintiffs Complaint that all allegations

against Dr. Moreno are for discretionary acts within or incident to his scope of employment.

TEX. EDUC. CODE ANN. 22.051; see Dkt. No. 1. The limited immunity waiver in section

22.0511 is not applicable to this case, as immunity is provided in all situations except in

circumstances in which a professional employee uses excessive force in the discipline of students

or negligence resulting in bodily injury to students. The Texas Supreme Court has determined

that immunity is abrogated under this provision only when an employee uses excessive force in

disciplining a student or engages in negligent discipline resulting in bodily injury. Hopkins v.

Spring Indep. Sch. Dist., 736 S.W.2d 617, 619 (Tex.1987). Discipline requires some form of

punishment inflicted by the employee and negligent discipline is punishment which involves

no force, but rather requires some action on the part of the student as a result of which the

student suffers bodily injury, as in ordering a student to run laps. Id. (citing Diggs v. Bales, 667

S.W.2d 916, 918 (Tex.App.Dallas 1984, writ ref'd n.r.e.)). Even taking Plaintiffs well-pleaded

facts as true, this is clearly not a situation of student discipline by an employee. See Hopkins, 736

S.W.2d 617 (Tex. 1987)(holding that failure to provide prompt medical care for student injured

at school was not negligent discipline). Dr. Moreno retains his professional immunity, and

Plaintiffs tort claims should be dismissed in their entirety.

7. In addition, Plaintiffs have failed to exhaust their mandatory administrative remedies

under section 22.0514 of the Texas Education Code before filing suit against Superintendent

Moreno. A person may not file suit against a professional employee of a school district unless

the person has exhausted the remedies provided by the school district for resolving the

complaint. TEX. EDUC. CODE 22.0514. A partys failure to exhaust administrative remedies is a

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jurisdictional defect which cannot be waived. See Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d

351, 354 (Tex. 2005). Texas courts have consistently held that Section 22.0514 requires that

plaintiffs exhaust administrative remedies prior to filing suit in district court. Grimes v. Stringer,

957 S.W.2d 865, 869 (Tex.App.-Tyler 1997, pet. denied); Venegas v. Silva, 11-04-00246-CV,

2006 WL 2692877 (Tex. App.Eastland Sept. 21, 2006, pet. denied). Plaintiffs have pleaded no

facts establishing that they exhausted, or even initiated, the LVISDs administrative remedies

provided by its grievance policy available to parents and students, and any state law claims

should be dismissed accordingly. See Dkt. No. 1.

C. LVISD MOVES FOR DISMISSAL OF ALL TORT CLAIMS AGAINST THE INDIVIDUAL
DEFENDANTS, PURSUANT TO THE MANDATORY ELECTION OF REMEDIES IN THE TEXAS
TORT CLAIMS ACT.

8. Dr. Moreno and all of the individual defendants are furthermore entitled to dismissal of

Plaintiffs tort claims pursuant to the mandatory election of remedies requirement found in

section 101.106 of the Texas Civil Practice and Remedies Code, the Texas Tort Claims Act

(TTCA). While the Complaint is not clear, to the extent that Plaintiffs purport to assert claims

against any individual defendant to support their respondeat superior theory of liability against

the LVISD, the TTCA extends the districts sovereign immunity to its employees. Urban v.

Canada, 963 S.W.2d 805, 807-08 (Tex. App.San Antonio 1998, no pet.). Section 101.106(e)

provides: [i]f a suit is filed under this chapter against both a governmental unit and any of its

employees, the employees shall immediately be dismissed on the filing of a motion by the

governmental unit. TEX. CIV. PRAC. & REM. CODE ANN. 101.106(e). Plaintiffs admit that all of

the individual defendants are employees of the LVISD. See Dkt. No. 1, pp. 1-2. Texas and

federal courts have consistently held that a plaintiff must make an initial decision to pursue his

tort claims against the governmental entity or its employees and filing claims against both results

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in the dismissal of all claims against the governmental employees. See, e.g. Bustos v. Martini

Club, Inc., 599 F.3d 458, 463 (5th Cir.2010); A.W. v. Humble Indep. Sch. Dist., CIV.A. H-13-

3551, 2014 WL 2611810 (S.D. Tex. June 11, 2014), appeal dismissed (Sept. 17, 2014).

Accordingly, pursuant to Section 101.106(e), Defendant LVISD moves that all tort claims be

immediately dismissed against all the individual defendants.

D. PLAINTIFFSCANNOT ESTABLISH THE STATE ACTION NECESSARY TO SUSTAIN A CLAIM

BROUGHT PURSUANT TO 42 U.S.C. 1983

9. Taking all of Plaintiffs well-pleaded facts as true, they cannot state a claim for

constitutional injury pursuant to 42 U.S.C. section 1983 because the alleged injuries to Child

Doe were caused by the alleged violence of private actorsother students, rather than by the

district or its officials. Section 1983 is the sole remedy for constitutional deprivations by persons

acting under color of state law. See, e.g. Bluitt v. Houston Indep. Sch. Dist., 236 F. Supp. 2d 703,

720 (S.D. Tex. 2002); McCall v. Dallas Indep. Sch. Dist., 169 F. Supp. 2d 627, 639 (N.D. Tex.

2001); Arendale v. City of Memphis, 519 F.3d 587, 598-99 (6th Cir. 2008). In order to state a

claim under Section 1983, Plaintiffs must: (1) allege a violation of rights 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. Doe ex rel. Magee v. Covington County

School LVISD, 675 F.3d 849, 854-55 (5th Cir. 2012) (en banc)(emphasis added); James v. Tex

Collin Cnty, 535 F.3d 365, 373 (5th Cir. 2000).

10. [B]ecause the Fourteenth Amendment protects liberty and property interests only against

invasion by a state, a section 1983 plaintiff, alleging the deprivation of Due Process under the

Fourteenth Amendment, must also show that state action caused his injury. Priester v. Lowndes

County, 354 F.3d 414, 421 (5th Cir. 2004) (citing Bass v. Parkwood Hosp., 180 F.3d 234, 241

(5th Cir.1999)). As a rule, the states failure to protect an individual from private violence does

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not violate the Due Process Clause. Priester, 354 F.3d at 421. The Supreme Court made clear in

DeShaney that nothing in the language of the Due Process Clause itself requires the State to

protect the life, liberty, and property of its citizens against invasion by private actors. DeShaney

v. Winnebago County Dep't. of Social Servs., 489 U.S. 189, 195, 109 S.Ct. 998 (1989).

11. The Fifth Circuit has adopted a very limited exception to the rule that the state has no

constitutional duty to protect individuals from private harm.2 See Doe ex rel. Magee v. Covington

County Sch. Dist. ex rel. Keys, 675 F.3d 849, 864 (5th Cir. 2012). Under this limited exception,

a state may create a special relationship with a particular citizen, requiring the state to protect

him from harm, when the State takes a person into custody and holds him there against his

will. Id. at 855-56 (citing DeShaney, 489 U.S. at 199-200). However, Fifth Circuit has

consistently held that there is no special relationship between a school district and its students

during the school day or during school-sponsored activities. See id. at 857-58; see also Leffall v.

Dallas Indep. Sch. Dist., 28 F.3d 521, 529 (5th Cir. 1994)(finding no Due Process violation

where a student was injured by gunfire while attending a school dance); Priester, 354 F.3d 414,

420-22 (5th Cir. 2004)(holding that football player injured by another player during practice

could not establish the requisite state action to support his Due Process claim). In Doe ex rel.

Magee v. Covington County Sch. Dist. ex rel. Keys, 675 F.3d 849 (5th Cir. 2012), the Fifth

Circuit, sitting en banc, held that even compulsory school attendance laws did not create a

special relationship between a school district and its students sufficient to implicate any

constitutional right enforceable under Section 1983, even when considered in light of the

2 The Fifth Circuit has consistently refused, including cases involving student-on-student harassment, to adopt the
state-created danger theory as a valid theory of constitutional liability for Section 1983 claims. See, e.g. Estate of
Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 1001 (5th Cir. 2014); Doe ex rel. Magee v. Covington County
Sch. Dist. ex rel. Keys, 675 F.3d 849, 864 (5th Cir. 2012); Whitley v. Hanna, 726 F.3d 631, 640 n. 5 (5th Cir. 2013)
(This court has not adopted the state-created-danger theory.and [Plaintiff] wisely has disclaimed reliance on it.);
Colomo v. San Angelo Indep. Sch. Dist., 501 Fed. Appx. 314 (5th Cir. 2012); Dixon v. Alcorn County Sch. Dist., 499
Fed. Appx. 364 (5th Cir. 2012); Estate of C.A. v. Grier, 918 F. Supp. 2d 619, 627 (S.D. Tex. 2013).

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plaintiff students young age (9) and the schools conduct of repeatedly releasing her into the

sole custody and control of a man who sexually abused her. Like the plaintiff in Priester, the

injuries in this case were allegedly inflicted by other students. See Dkt. No. 1. Accordingly,

pursuant to Priester and Doe ex. Rel. Magee, Plaintiffs can establish neither the requisite state

action causing their constitutional injury, nor the special relationship exception to the rule that

the state has no constitutional duty to protect individuals from private harm and thus cannot state

a claim pursuant to 42 1983.3

E. PLAINTIFF DOES NOT HAVE A LEGALLY COGNIZABLE CLAIM UNDER THE FIFTH
AMENDMENT

12. As shown above, Plaintiffs cannot state a claim for constitutional injury under any theory

of liability because the alleged injuries were caused by private actors rather than by state action.

In addition, Plaintiffs cannot state a claim under the Fifth Amendment because such claims can

only be asserted against the federal government and its officials. Plaintiffs claim that Child Doe

was deprived of his constitutional rights secured to him by the Fifth and Fourteenth

Amendments. Dkt. No. 1, 40-42. However, it is well established that the Fifth Amendment

right of due process can only support claims against the United States or federal actors, and it is

undisputed that the Defendants are neither. See Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996);

Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000).

F. PLAINTIFFS CANNOT ESTABLISH MONEL MUNICIPAL LIABILITY AGAINST THE LVISD

3 The lack of state action or a special relationship exception is similarly fatal to Plaintiffs claims premised on a
failure to train/supervise theory of liability, as all cognizable Section 1983 claims require an injury inflicted by a
state actor. In a 1983 claim for failure to supervise or train, the plaintiff must show that: (1) the supervisor either
failed to supervise or train the subordinate official; (2) a causal link exists between the failure to train or supervise
and the violation of the plaintiff's rights; and (3) the failure to train or supervise amounts to deliberate indifference.
Goodman v. Harris County, 571 F.3d 388, 395 (5th Cir. 2009) (citing Smith v. Brenoettsy, 158 F.3d 908, 91112
(5th Cir.1998) (emphasis added).

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13. As shown above, Plaintiffs cannot state a claim for constitutional injury under any theory

of liability because the alleged injuries were caused by private actors rather than by state action.

In addition, a local governmental entity, such as a school district, can only be held liable under

Section 1983 for acts for which it is actually responsible. See Monell v. Department of Social

Services of New York, 436 U.S. 658, 691 (1978). To establish governmental liability under

Section 1983, Plaintiffs must show: (1) a policymaker with final policymaking authority; (2) an

official policy; and (3) a violation of constitutional rights whose moving force is the policy or

custom. Doe ex rel. Magee, 675 F.3d at 866. The Fifth Circuit ha[s] stated time and again that

[w]ithout an underlying constitutional violation, an essential element of governmental liability is

missing. Id. at 866-67. Thus, a governmental entity cannot be held liable solely because it

employs a tortfeasoror, in other words, a governmental entity cannot be held liable under

1983 on a respondeat superior theory. Doe, 153 F.3d 211, 215 (5th Cir. 1998) (citing Monell,

436 U.S. at 691).

14. Even assuming arguendo that the requisite state action was present, which Defendants

deny, Plaintiffs Section 1983 claims against the LVISD would still fail because they cannot

establish that an official policy or custom of the district was a cause in fact of the deprivation

of rights inflicted. Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir.1994). An

official policy or custom of a school district is: (1) a policy statement, ordinance, regulation

or decision that is officially adopted and promulgated by the district, or by an official to whom

the district has delegated policy-making authority; or (2) a persistent, widespread practice of

district officials or employees, which, although not authorized by officially adopted and

promulgated policy, is so common and well settled as to constitute a custom that fairly represents

district policy. Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304 (5th Cir.1995), cert.

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denied, 517 U.S. 1191 (1996). Actual or constructive knowledge of such custom must be

attributable to the governing body of the district or to an official to whom that body had

delegated policy-making authority. Id.

15. Whether a particular official has final policy-making authority is a question of state

law. St. Louis v. Praprotnik, 485 U.S. 112, 128 (1988). It is well-settled law that, in Texas, only

the board of trustees has final policy-making authority in an independent school district. TEX.

EDUC. CODE ANN. 11.151; Jett v. Dallas Indep. School Dist., 7 F.3d 1241, 1245 (5th Cir. 1993).

Superintendents of schools, school administrators, principals, teachers, and school staff do not

have final policy-making authority in a school district. See Jett, 7 F.3d at 1245; Teague v. Texas

City Indep. Sch. Dist., 386 F.Supp.2d 893, 896 (S.D. Tex. 2005), affd 185 Fed. Appx. 355 (5th

Cir. 2006); see also Pena v. Rio Grande City Consolidated Indep. Sch. Dist., 616 S.W.2d 658,

660 (Tex.Civ.App.Eastland, 1981, no writ). Thus, the LVISD may not be held liable for any

policy developed by school officials other than the board of trustees. Teague, 386 F.Supp.2d at

896. Plaintiffs have alleged no well-pleaded facts as to any actions by the LVISDs board of

trustees, nor even knowledge of any alleged constitutional injury by the board of trustees. See

Dkt. No. 1. Accordingly, Plaintiffs Section 1983 claims against the LVISD should be dismissed.

16. Plaintiffs furthermore cannot establish governmental liability based on a widespread

custom or practice. Actual or constructive knowledge of such custom must be attributable to the

governing body of the district or to an official to whom that body had delegated policy-making

authority. Eugene, 65 F.3d at 1304. Taking all of Plaintiffs well-pleaded facts as true, they have

made no showing of delegation of policy-making authority, nor any actual or constructive

knowledge by the board of trustees of the alleged unconstitutional custom. In order to sustain

liability against the LVISD under Section 1983, Plaintiffs must point to more than the injurious

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actions of other students, no matter how egregious; they must identify a policymaker with final

policymaking authority and a policy that is the moving force behind the alleged constitutional

violation. Meadowbriar Home for Children, Inc., v. Gunn, 81 F.3d 521, 532-33 (5th Cir.1996).

G. PLAINTIFFS JOHN AND JANE DOE CANNOT PURSUE CLAIMS ON THEIR OWN BEHALF.

17. Plaintiffs John and Jane Doe bring forth claims individually and as parents and next

friends of Child Doe. Dkt. No. 1, p. 1. The Court should dismiss any claims brought by John

and Jane Doe on their own or individual behalf because the Fifth Circuit has determined that

parents lack standing to assert personal claims under Title IX, although they may do so as next

friends on behalf of their minor children. Moreno v. Mcallen Indep. Sch. Dist., 7:15-CV-162,

2016 WL 1258410, at *9 (S.D. Tex. Mar. 31, 2016)(citing Rowinsky v. Bryan Indep. Sch.

Dist.,80 F.3d 1006, 1010 n. 4 (5th Cir. 1996), disapproved on other grounds by Davis v. Monroe

Cnty. Bd. of Educ., 526 U.S. 629, 63738 (1999); see also Doe v. OysterRiver Co Op. Sch. Dist.,

992 F.Supp. 467, 481 (D.N.H.1997) (dismissing mothers Title IX claim under 12(b)(6) on

grounds that only participants of federally funded programs and not the participants parents

have standing to bring claims under Title IX.)).

18. As shown supra, Plaintiffs cannot state a claim for constitutional injury on behalf of

Child Doe, because the alleged injury was inflicted by other students, who are private rather than

governmental actors. In addition, Plaintiffs John and Jane Doe cannot state a claim on their own

behalf because there is no allegation that the state has acted intentionally and directly to sever or

interfere with the parent-child relationship. The Supreme Court has protected the parent only

when the government directly acts to sever or otherwise affect his or her legal relationship with a

child. The Court has never held that governmental action that affects the parental relationship

only incidentally ... is susceptible to challenge for a violation of due process. Malagon de

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Fuentes v. Gonzales, 462 F.3d 498, 505 (5th Cir. 2006). While parents may assert Section 1983

claims as next friends of their minor child(ren), the Fifth Circuit has not recognized a parents

right to bring suit on her own behalf even where a school district employee allegedly caused the

child harm by engaging in sexual abuse. Moreno, 7:15-CV-162, 2016 WL 1258410, at *6.

While a student has a right to be free from state-occasioned damage to his bodily integrity, it is

the student, or the parent as next friend, that must bring forth a claim that this right was violated.

Id. at *7 (collecting cases from other jurisdictions denying parents derivative Section 1983

claims brought on their own behalf based on alleged violation of the constitutional rights of their

children.); see also Unger v. Compton, CIV.A. 6:05CV186, 2006 WL 1737567, at *3-5 (E.D.

Tex. June 23, 2006), aff'd, 249 Fed. Appx. 346 (5th Cir. 2007) (unpublished).

H. PLAINTIFFS SECTION 1983 CLAIMS AGAINST DR. MORENO IN HIS OFFICIAL CAPACITY
ARE REDUNDANT AND OF NO INDEPENDENT LEGAL SIGNIFICANCE.

19. Plaintiffs bring their Section 1983 claims against Dr. Moreno in both his official and

individual capacities. See Dkt. No. 1, p. 1. However, it is well established that suing a

government official in his official capacity is another way of pleading against the entity of which

the official is an agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985); Monell v. Department of

Social Services of the City of New York, 436 U.S. 658, 690 n. 55. (1978). An official capacity

suit is to be treated as a suit against the governmental entity itself, as official capacity claims

coterminous with Section 1983 claims against a governmental entity are not only redundant, they

have no independent legal significance. Kentucky, at 473 U.S. at 170-71; U.S. ex rel. Adrian v.

Regents of Univ. Of Cal., 363 F.3d 398, 402 (5th Cir. 2004); Bluitt v. Houston Indep. Sch. Dist.,

236 F.Supp.2d 703, 727 (S.D.Tex. 2002). Plaintiffs Section 1983 claims against Dr. Moreno in

his official capacity are the same as the Section 1983 claims Plaintiffs are pursuing against the

LVISD and should be dismissed accordingly. See Dkt. No. 1, pp. 14-16.

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I. DR. MORENO IS ENTITLED TO QUALIFIED IMMUNITY FROM PLAINTIFFS CLAIMS

ASSERTED PURSUANT TO 42 U.S.C. 1983.

20. Dr. Moreno asserts that he is entitled to the defense of qualified immunity in his

individual capacity. Qualified immunity shields a government official from civil liability for

damages based on the performance of discretionary functions if the officials acts were

objectively reasonable in light of clearly established law. Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982). It is well settled that qualified immunity provides immunity from suit rather than a

mere defense to liability, and should be resolved at the earliest possible stage of litigation. Id. at

227. Once the defense is asserted, the burden shifts to the plaintiff to show that immunity does

not bar suit. Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992); Bennett v. City of Grand

Prairie, Tex., 883 F.2d 400, 408 (5th Cir. 1989). Accordingly, a plaintiff suing governmental

officials in their individual capacities must meet heightened pleading requirements in cases, such

as this one, in which an immunity defense is raised. See Schultea v. Wood, 47 F.3d 1427, 1434

(5th Cir.1995). In order to survive, claims against state actors in their individual capacities must

be pleaded with factual detail and particularity, not mere conclusory allegations. Anderson v.

Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999).

21. In assessing a claim of qualified immunity, a court engages in a two-step analysis. The

Court must decide (1) whether facts alleged or shown by plaintiff make out a violation of a

constitutional right, and (2) if so, whether that right was clearly established at time of defendant's

alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 226 (2009) (citing Saucier v. Katz, 533

U.S. 194, 201(2001)). Courts may exercise their sound discretion in deciding which of the two

prongs should be addressed first in light of circumstances in the particular case at hand.

Pearson, 555 U.S. at 226. If the plaintiff has alleged a constitutional violation, qualified

immunity may still apply because [e]ven if the officials conduct violated a constitutional right,

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he is entitled to qualified immunity if the conduct was objectively reasonable. Id. at 105 (citing

Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993)). Applying these principles in the instant

case, it is clear that Dr. Moreno retains his qualified immunity from suit.

1. Plaintiffs cannot state a claim for violation of Child Does constitutional rights.

22. For the reasons established in Sections D-E, supra, Plaintiffs cannot state a claim for

violation of constitutional rights, and Dr. Moreno retains his qualified immunity.

2. Plaintiffs cannot establish that Dr. Morenos conduct was objectively

unreasonable, nor the law clearly established.

23. Even assuming arguendo that Plaintiffs could plead facts establishing violation of Child

Does constitutional rights, such right was not clearly established at the time of the alleged

misconduct. Even where a plaintiff has established a claim for constitutional injury, qualified

immunity will still apply if the officials conduct was objectively reasonable. Spann v. Rainey,

987 F.2d 1110, 1114 (5th Cir. 1993)). The second prong of the qualified immunity test is better

understood as two separate inquiries: whether the allegedly violated constitutional rights were

clearly established at the time of the incident; and if so, whether the conduct of the defendant

was objectively unreasonable in light of that then clearly established law. Estate of Schroeder v.

Gillespie County, 23 F. Supp. 3d 775, 782 (W.D. Tex. 2014); see also Hare v. City of Corinth,

Miss., 135 F.3d 320, 325 (5th Cir.1998).

24. Qualified immunity must furthermore be determined according to the particular context

of the facts at issue. The Fifth Circuit has consistently refused to deny immunity except where

existing precedent must have placed the statutory or constitutional question beyond debate.

Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011)(emphasis in original). When deciding

issues of qualified immunity, the Court must ask whether the law so clearly and unambiguously

prohibited his conduct that every reasonable official would understand that what he is doing

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violates the law. Id. at 371 (internal citations omitted). To answer that question in the

affirmative, the Court must be able to point to controlling authorityor a robust consensus of

persuasive authority that defines the contours of the right in question with a high degree of

particularity. Id. at 371-72 (internal citations omitted).

25. An official does not lose qualified immunity merely because a certain right is clearly

established in the abstract. Cantrell v. City of Murphy, 666 F.3d 911, 920 (5th Cir. 2012).

Officials should receive the protection of qualified immunity unless the law is clear in the more

particularized sense that reasonable officials should be on notice that their conduct is unlawful.

Id. Immunity is not lost unless it is obvious that no reasonably competent [official] would have

concluded that the conduct would not violate the Constitution. Malley v. Briggs, 475 U.S. 335,

341, 106 S. Ct. 1092, 1096 (1986). It is far from being clearly established that a students due

process rights are implicated when he is injured by another student or private actor, even while at

school or while participating in an extracurricular activity, as the Fifth Circuit has consistently

held that there is no special relationship exception to the rule that Section 1983 claims require

injury by a state actor present during the school day or at school-sponsored events. See, e.g.,

Priester v. Lowndes County, 354 F.3d 414, 421 (5th Cir. 2004); Doe ex rel. Magee v. Covington

County School LVISD, 675 F.3d 849, 854-55 (5th Cir. 2012) (en banc). Furthermore, taking all

of Plaintiffs well-pleaded facts as true, they have failed to show that Dr. Moreno acted clearly

unreasonably in light of established law. As a result, Dr. Moreno retains his qualified immunity,

and Plaintiffs Section 1983 claims against him in his individual capacity should be dismissed.

J. PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR VIOLATION OF TITLE IX OF THE

EDUCATION AMENDMENTS, 20 U.S.C. 1681, ET SEQ.

26. Title IX 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 subject to discrimination under

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any program or activity receiving Federal financial assistance. 20 U.S.C. 1681(a). Entities that

receive federal funding4 may be liable under Title IX for student-on-student harassment only if

they are deliberately indifferent to sexual harassment, of which they have actual knowledge,

that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of

access to the educational opportunities or benefits provided by the school. Davis v. Monroe

County Bd. of Educ., 526 U.S. 629, 650 (1999). Specifically, before a private party may bring

suit under Title IX against a school district, he must show: (1) the school had actual knowledge

of the harassment; (2) the harasser was under its control; (3) the harassment was based on his

sex; (4) the harassment was so severe, pervasive, and objectively offensive that it effectively

barred his access to an educational opportunity or benefit; and (5) the school was deliberately

indifferent to the harassment. Id. at 633, 646-47 (internal citations and alterations omitted).

Deliberate indifference is a high bar, and neither negligence nor mere unreasonableness is

enough. Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 167 (5th Cir.

2011). Instead, a school's response must be clearly unreasonable in light of the known

circumstances. Davis, 526 U.S. at 648. A districts response need not be effective in remedying

the harassment of which it has actual knowledge, and no particular remedial action is required.

Sanches, 647 F.3d at 168. Courts are to refrain from second-guessing the disciplinary decisions

made by school administrators, who must merely respond to known peer harassment in a

manner that is not clearly unreasonable. Davis, 526 U.S. at 648, 649.

4 Plaintiffs claim that La Vernia received federal funds and violated Title IX. Dkt. No. 1, p. 16. To the extent that
Plaintiffs purport to assert a Title IX claim against Dr. Moreno, such claims must be dismissed. Title IX imposes
liability only for the federal funding recipient, and does not authorize suit against school officials. See, e.g.
Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257, 129 S. Ct. 788, 796 (2009).

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27. In this case, Plaintiffs only allegations of actual knowledge are that an unidentified

teacher had heard about one instance of alleged assault perpetrated by LVISD varsity football

players and occurring at an out-of-town football game. Dkt. No. 1, 25-26. Plaintiffs allege that

the unidentified teacher responded by telling the students it was wrong and to cut it out;

advising students that she had sent an email to the Athletic Director (Layne) and it would be

taken care of; and speaking directly with Child Doe to assure him that it would be handled. Dkt.

No. 1, 25-26. Plaintiffs next allege that on the same day, Athletic Director Layne convened a

meeting of the varsity football players, where he told the players he had heard about the

initiations and they needed to stop because there would be consequences. Dkt. No. 1, 27.

Plaintiffs allege that Layne also directed Coach Barnes to be present in the locker room at all

times before practice. Dkt. No. 1, 27. Plaintiffs allege that approximately 2 weeks and 2 days

later, Child Doe was grabbed by the feet and forced face down by three varsity players, but

that the attackers got off him. Dkt. No. 1, 29. Plaintiffs allege that Barnes was supposed to be

monitoring the locker room when this attempted attack occurred. Dkt. No. 1, 29. Plaintiffs

make no allegation that Barnes witnessed or otherwise had actual knowledge of this alleged

attempted assault. See Dkt. No. 1. Finally, Plaintiffs allege that on another occasion, while a

senior football player flipped Child Doe over and threatened him with a metal pipe, the senior

dropped the pipe and walked away upon an unidentified coach entering the room. Dkt. No. 1,

33. Plaintiffs do not allege that the unidentified coach witnessed this alleged incident. Dkt. No. 1.

Plaintiffs factual allegations fail to show that the District was deliberately indifferent to sexual

abuse of which it had actual knowledge. See Dkt. No. 1. Even taking all well-pleaded facts as

true, Plaintiffs have failed to adequately allege deliberate indifference in response to actual

knowledge of sexual harassment. Plaintiffs only allegation of actual knowledge, by the

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 Case 5:17-cv-00310-OLG Document 20 Filed 05/09/17 Page 19 of 21

unidentified teacher and relayed third-hand to Mr. Layne, resulted in swift denunciation of the

activity, a directive to cease the activity or face consequences, and putting in place additional

supervision, according to Plaintiffs own allegations. See Dkt. No. 1. Plaintiffs have failed to

show, through well-pleaded factual allegations, that the District was deliberately indifferent to

known student-on-student sexual harassment. Title IX does not require flawless investigations

or perfect solutions. Sanches, 647 F.3d at 170. A state actor's failure to alleviate a significant

risk that he should have perceived but did not, while no cause for commendation, does not rise

to the level of deliberate indifference. McClendon v. City of Columbia, 305 F.3d 314, 326 (5th

Cir. 2002).

28. Furthermore, Plaintiff contends that the District violated Title IX through its alleged

failure to have policies, procedures, practices, and customs in place to assure that Plaintiff was

not a victim of sexual abuse. Dkt. No. 1, 12, 34-38. This is not the correct standard for

liability under Title IX. The Supreme Court has consistently rejected both the use of agency

principles to impute liability to a school district for the misconduct of its employees or students

and the use of a negligence standard, explicitly rejecting any theory of liability premised on its

failure to respond to harassment of which it knew or should have known. Gebser, 524 U.S. at

283); Davis, 526 U.S. at 642. Instead, the Court concluded that Title IX liability lies only where

the district itself intentionally acted in clear violation of Title IX by remaining deliberately

indifferent to acts of severe and pervasive harassment by other students. As the Supreme Court

made clear in Gebser and Davis, it is not about what policies, procedures, practices, and customs

the District allegedly failed to promulgate or failed to implement; Title IX liability attaches only

upon actual notice of sexual harassment to a District employee with supervisory authority

followed by a deliberately indifferent response. [T]here is no reason why courts, on a motion to

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dismiss, for summary judgment, or for a directed verdict, could not identify a response as not

clearly unreasonable as a matter of law. Davis, 526 U.S. at 649. Plaintiff's Complaint raises

serious concerns about the alleged behavior of some district students, it is devoid of well-pleaded

facts tending to show that the District violated Title IX and should be dismissed accordingly.

K. PLAINTIFFS CANNOT RECOVER PUNITIVE DAMAGES.

29. Plaintiffs request punitive damages. Dkt. No. 1, 49. It is well established that punitive

damages may not be recovered under Section 1983 against a governmental entity, including a

school district. See, e.g. Gil Ramirez Group, L.L.C. v. Houston Indep. Sch. Dist., 786 F.3d 400,

412 (5th Cir. 2015)(The Supreme Court has held that a municipality's liability for 1983

damages does not thereby subject it to punitive damages, from which government entities were

historically immune.).

30. Title IX punitive damages are similarly unavailable against the District. Title IX is

modeled after Title VI of the Civil Rights Act of 1964 and interpreted and applied in the same

manner. Barnes v. Gorman, 536 U.S. 181, 185 (2002). Federal funding recipients under Title VI

have not, merely by accepting funds, implicitly consented to liability for punitive damages. Id.

at 188. Thus, punitive damages are not available in private action brought to enforce Title IX.

See, e.g. Mercer v. Duke University, 50 Fed.Appx. 643, 644 (4th Cir.2002).

IV.
CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, for the reasons shown above, Defendants

La Vernia Independent School District and Dr. Jose Moreno, Superintendent, respectfully move

the Court to grant their Motion to Dismiss in Part for Lack of Subject-Matter Jurisdiction and

Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted and

furthermore grant them any and all relief to which they are justly entitled.

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 Case 5:17-cv-00310-OLG Document 20 Filed 05/09/17 Page 21 of 21

Respectfully Submitted,

By: /s/ D. Craig Wood

D. Craig Wood
Attorney-in-Charge
State Bar No. 21888700
cwood@wabsa.com

By: /s/ Katie Payne

Katie E. Payne
State Bar No. 24071347
kpayne@wabsa.com

WALSH GALLEGOS TREVIO

RUSSO & KYLE P.C.
100 NE Loop 410, Suite 900
San Antonio, Texas 78216
TEL. NO.: (210) 979-6633
FAX NO.: (210) 979-7024

ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that on the 9th day of May, 2017, a true and correct
copy of the above and foregoing was electronically filed with the Clerk of the Court using
CM/ECF system, which will send notification of such filing to the following:

PLAINTIFFS COUNSEL:
J.K. Ivey
Marquardt Law Firm, P.C.
15600 N. San Pedro, Suite 100
San Antonio, Texas 78232

ATTORNEYS FOR THE INDIVIDUAL DEFENDANTS

Clay T. Grover
Cory Rush
Rogers, Morris & Grover, L.L.P.
5718 Westheimer, Suite 1200
Houston, Texas 77057

/s/ D. Craig Wood

D. Craig Wood

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 Case 5:17-cv-00310-OLG Document 20-1 Filed 05/09/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

JOHN and JANE DOE, INDIVIDUALLY

AND AS NEXT FRIENDS OF
CHILD DOE, A MINOR,
Plaintiffs
vs.

LA VERNIA INDEPENDENT SCHOOL CIVIL ACTION NO.: 5:17-cv-310-OLG
DISTRICT; JOSE H. MORENO,
SUPERINTENDENT; KRISTEN
MARTIN, PRINCIPAL; BRANDON
LAYNE, FORMER ATHLETIC
DIRECTOR AND HEAD COACH;
RICHARD HINOJOSA, ATHLETIC
DIRECTOR; CHRIS TABER,
ATHLETIC DIRECTOR; SCOTT
GRUB, HEAD COACH; KEITH
BARNES, COACH,
Defendants JURY DEMAND

ORDER GRANTING DEFENDANT LA VERNIA INDEPENDENT SCHOOL DISTRICT

AND DR. JOSE MORENOS 12(b)(1) MOTION TO DISMISS IN PART FOR LACK OF
SUBJECT-MATTER JURISDICTION AND 12(b)(6) MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

Defendants La Vernia Independent School District and Dr. Jose Morenos 12(b)(1)

Motion to Dismiss in Part for Lack of Subject-Matter Jurisdiction and 12(b)(6) Motion to

Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted has been carefully

considered by this Court. The Court, having reviewed and considered the said Motion and

Response thereto and having reviewed the items on file herein, is of the opinion that said Motion

should be granted.

Therefore, it is hereby ORDERED that Defendant La Vernia Independent School District

and Dr. Jose Morenos Motion to Dismiss be GRANTED.

 Case 5:17-cv-00310-OLG Document 20-1 Filed 05/09/17 Page 2 of 2

It is further ORDERED, ADJUDGED, and DECREED that Plaintiffs claims against the

District and Dr. Moreno, in their entirety, be and the same are hereby DISMISSED with

PREJUDICE, and that all relief requested by Plaintiffs be and the same is hereby DENIED and

DISMISSED.

IT IS SO ORDERED on this the _____ day of ________, 2017.

________________________________________
Orlando L. Garcia
Chief U.S. District Judge

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