Opinion

Doe v. Dallas Independant School District

Court: District Court, N.D. Texas
Filed: Feb 16, 2021
Cited by: 0 cases
Authority: More cited than 29.9%

“[T]his circuit has not adopted the state-created danger theory.”

How later courts described this case

“[T]his circuit has not adopted the state-created danger theory.”
sexual harassment is discrimination under Title IX
dismissing Section 1983 claim against governmental employee in official capacity as redundant due to same claim being raised against governmental employer

Written by the judges who cited it.

The opinion

United States District Court

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JANE DOE, ON BEHALF OF §

JAN DOE, A Minor §

V. § CIVIL ACTION NO. 3:19-CV-3081-S

DALLAS INDEPENDENT SCHOOL §

DISTRICT; LILLIANA SOLANO, §

INDIVIDUALLY and in her OFFICIAL §

CAPACITY as HILLCREST HS. §

REGISTRAR; CHRIS BAYER, §

INDIVIDUALLY and in his OFFICIAL §

CAPACITY as HILLCREST HS. §

PRINCIPAL; VON HARRIS, §

INDIVIDUALLY and in his OFFICIAL §

CAPACITY as HILLCREST H.S. HEAD §

BASKETBALL COACH; ANDY TODD, §

INDIVIDUALLY and in his OFFICIAL §

CAPACITY as ATHLETIC §

COORDINATOR; and SIDNEY §

BOUVIER GILSTRAP-PORTLEY

MEMORANDUM OPINION AND ORDER

This Memorandum Opinion and Order addresses: (1) Defendants Lilliana Solano’s, Chris

Bayer’s, Von Harris’s, and Andy Todd’s Motion to Dismiss Plaintiff's Original Complaint and

Brief in Support [ECF No. 14] (“Bayer’s Motion to Dismiss”)!; and (2) Defendant Dallas

Independent School District’s Motion to Dismiss Plaintiff's Original Complaint and Brief in

Support [ECF No. 15] (“DISD’s Motion to Dismiss”). For the following reasons, Bayer’s Motion

to Dismiss is GRANTED and DISD’s Motion to Dismiss is GRANTED IN PART and DENIED

IN PART.

On February 4, 2021, the parties filed a Joint Stipulation of Dismissal dismissing all claims alleged against

Defendants Lilliana Solano, Von Harris, and Andy Todd. See ECF No. 38. Accordingly, the Court construes the

motion, response, and reply, docketed as ECF Nos. 14, 31, and 35, respectively, as to Defendant Bayer only.

I. BACKGROUND AND PROCEDURAL HISTORY

Defendant Sidney Bouvier Gilstrap-Portley (“Gilstrap-Portley”) was admitted to Hillcrest

High School (“Hillcrest”) during the 2017-2018 school year. See Compl. [ECF No. 1] {J 12-13.

At the time, he claimed to be a homeless 17-year-old, but he was, in fact, a 25-year-old adult. □□

7 13. Plaintiff Jane Doe (“Plaintiff”), on behalf of minor Jan Doe (“Minor Plaintiff’), alleges that

Gilstrap-Portley was admitted to Hillcrest by Defendants Dallas Independent School District

(“DISD”) and Hillcrest principal Chris Bayer (“Bayer”) (together “DISD Defendants”), along with

several other faculty and staff’, under false pretenses so that Gilstrap-Portley could play on ,

Hillcrest’s basketball team. Jd. {J 14-15.

Plaintiff asserts, among other allegations, that DISD Defendants did not verify Gilstrap-

Portley’s identity when he was admitted and also failed to conduct a mandatory home visit to

Gilstrap-Portley’s residence—both of which would have revealed that Gilstrap-Portley was not

“Rashun Richardson,” or homeless, as he claimed to be, but was living with his fiancée and their

child. /d. 99 17-18. Plaintiff further alleges that DISD Defendants ignored “red flags” indicating

that Gilstrap-Portley was not a minor, such as his “bigger build” as compared to other Hillcrest

students and his “excessive tattoos.” /d. § 16.

Plaintiff alleges that while at Hillcrest, Gilstrap-Portley had a sexual relationship with

Minor Plaintiff, who was 14 years old. /d. §{] 19, 22. Specifically, Plaintiff asserts that Gilstrap-

Portley had sexual contact with Minor Plaintiff and coerced her into performing sexual acts. /d.

23. Plaintiff further alleges that Gilstrap-Portley kissed and inappropriately touched Minor

Plaintiff in the hallways of Hillcrest while students and teachers watched. /d Once Gilstrap-

Portley’s true identity came to light, due to Gilstrap-Portley’s “popularity . . . gained through

? Plaintiff claims such faculty and staff include Lilliana Solano, Hillcrest’s registrar (“Solano”); Von Harris (“Harris”),

Hillcrest’s head basketball coach; and Andy Todd (“Todd”), DISD’s athletic coordinator. See Compl. at 1.

playing on the basketball team,” and because “many of the students and teachers knew of [their]

relationship,” Minor Plaintiff was humiliated and embarrassed. Jd. 926. And, as a result, she

withdrew from Hillcrest and transferred to a different school. /d Plaintiff alleges that this

experience caused Minor Plaintiff to suffer severe emotional distress, mental anguish, and

psychological trauma requiring medical treatment. /d. § 25.

Plaintiff asserts the following causes of action against DISD and Bayer:

e Count 1: Violation of Title [IX or The Education Act of 1972, 20 U.S.C. § 1681, ef

seq., against DISD and Bayer in their official capacity;

e Count 2: State-Created Danger against DISD and Bayer in their official capacity;

e Count 3: Intentional Infliction of Emotional Distress against DISD and Bayer; and

e Count 5: Gross Negligence against Bayer in his individual capacity.

DISD and Bayer separately moved to dismiss all allegations against them. See ECF Nos. 14-15.

Plaintiff filed responses to each motion. See ECF Nos. 30-31. DISD and Bayer filed replies. See

ECF Nos. 35-36.

IL. LEGAL STANDARD

To defeat a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), a

plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell □□□□

Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v. Farle, 517 F.3d 738,

742 (Sth Cir. 2008). To meet this “facial plausibility” standard, a plaintiff must plead “factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), Plausibility does not require

probability, but a plaintiff must establish “more than a sheer possibility that a defendant has acted

unlawfully.” Jd. The court must accept well-pleaded facts as true and view them in the light most

favorable to the plaintiff. Sonnier v. State Farm Mut. Auto. Ins., 509 F.3d 673, 675 (5th Cir. 2007).

The court, however, does not accept as true “conclusory allegations, unwarranted factual

inferences, or legal conclusions.” Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007)

(citation omitted), A plaintiff must provide “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” 7wombly, 550 US. at 555 (internal

citations omitted). “Factual allegations must be enough to raise a right to relief above the

speculative level . . . on the assumption that all the allegations in the Complaint are true (even if

doubtful in fact).” /d. (internal citations omitted).

The ultimate question is whether the Complaint states a valid claim when viewed in the

light most favorable to the plaintiff. Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co.,

313 F.3d 305, 312 (Sth Cir. 2002). At the motion to dismiss stage, the court does not evaluate the

plaintiff's likelihood of success. It only determines whether the plaintiff has stated a claim upon

which relief can be granted. Mann v. Adams Realty Co., 556 F.2d 288, 293 (Sth Cir. 1977).

UI. ANALYSIS

A, Title IX?

Title [X states: “No person in the United States shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination under any education

program or activity receiving Federal financial assistance[.]” 20 U.S.C. § 1681(a). Title IX

provides a private right of action for individuals to sue educational institutions that receive federal

funds. See Kelly vy. Allen Indep. Sch. Dist., 602 F. App’x. 949, 952 (Sth Cir. 2015). To state a

Title IX claim against a school district, plaintiff must show that: (1) the institution has an official

policy of sex discrimination, or (2) an “appropriate person” had “actual knowledge of the

> Plaintiff has agreed to the dismissal of her Title [X claim against Bayer. See Resp. to Bayer 5 (“Plaintiff does not

object to the dismissal of ... Defendant Chris Bayer... as related to her claims under Title IX... [DISD] would be

the correct party for this cause of action.”). Accordingly, the Court agrees that Bayer is not the appropriate party for

this cause of action and herein addresses Plaintiff's Title [X claim as to DISD only.

discrimination” and responded with “deliberate indifference.” See Poloceno v. Dallas Indep. Sch.

Dist., 826 F. App’x. 359, 362 (Sth Cir. 2020) (citing Gebser v. Lago Vista Indep. Sch. Dist., 524

US. 274, 290 (1998) (defining “appropriate person” as “an official of the recipient entity with

authority to take corrective action to end the discrimination.”)); see also id. (holding that a school

principal was an “appropriate person” with “authority to take [the] corrective action”). To bring a

Title IX action against a school district for student-on-student harassment, a plaintiff must show

five elements:

the district (1) had knowledge of the harassment, (2) the harasser was under the

district’s control, (3) the harassment was based on the victim’s sex, (4) the

harassment was “so severe, pervasive, and objectively offensive that it effectively

barred the victim’s access to an educational opportunity or benefit,” and (5) the

district was deliberately indifferent to the harassment.

Kelly, 602 F. App’x. at 952 (citing Sanches v. Carrollion-Farmers Branch Indep. Sch. Dist., 647

F.3d 156, 165 (Sth Cir. 2011) (alteration omitted) (quoting Davis ex. rel. LaShonda D. v. Monroe

Cty. Bd. of Educ., 526 U.S. 629, 650 (1999))).

As to the first, second, and fourth elements, Plaintiff alleges that Bayer, among other

Hillcrest faculty and staff, knew of Gilstrap-Portley’s real identity, and therefore knew of the risk

of sexual harassment of minors by an adult. See Compl. JJ 14-16 (alleging that DISD and Bayer,

among others, helped craft “homeless” story to admit Gilstrap-Portley). Plaintiff also contends

that the alleged sexual harassment was widely witnessed and alleges that both students and

teachers observed Gilstrap-Portley’s explicit sexual contact with Minor Plaintiff, as described

above. Jd. § 23. Plaintiff further asserts that as a result of Gilstrap-Portley’s status as a winning

basketball player, his relationship with Minor Plaintiff was well-known. See Compl. 426. Actual

knowledge is established where an “appropriate person” knew of facts giving rise to inference that

substantial risk of harm existed and drew that inference. See Kelly, 602 F. App’x at 953. See also

Poloceno, 826 F. App’x. at 362 (holding that a school principal was an “appropriate person” with

“authority to take [the] corrective action”). Plaintiff also alleges that Gilstrap-Portley was

regularly videotaped on school grounds, see id. 16, and seen in school hallways, see id. § 23.

Title LX “[I}iability can attach when . . . the misconduct occurs during school hours and on school

grounds.” Kelly, 602 F. App’x at 953 n.3. Plaintiff further maintains that once Gilstrap-Portley’s

deception came to light, Minor Plaintiff left Hillcrest “due to [the] humiliation and embarrassment”

and transfer to another school “where she [would] not be recognized and reminded of” her alleged

harassment. See Compl. { 26. Therefore, the Court finds that Plaintiff has sufficiently pleaded

that DISD had actual knowledge of the harassment, that Gilstrap-Portley was under DISD’s

control, and that the harassment was so severe and pervasive that it barred Minor Plaintiffs access

to educational opportunity and benefit.

Regarding the third factor, there is no dispute that Gilstrap-Portley’s alleged conduct was

apparently based on Minor Plaintiff's sex. See Compl. § 23 (alleging inappropriate touching and

groping of Minor Plaintiff's female body parts). See also Davis, 526 U.S. at 650 (sexual

harassment is discrimination under Title IX).

And finally, relative to deliberate indifference, Plaintiff asserts that DISD ignored the

numerous “red flags” regarding Gilstrap-Portley. /d. § 16. In addition, the Complaint alleges that

DISD failed to verify the accuracy and completeness of Gilstrap-Portley’s records prior to

enrolling him and failed to conduct a mandatory home visit to Gilstrap-Portley’s residence. See

id. J] 17-18; | 38. Thus, accepting Plaintiff's alleged facts as true and viewing them in the light

most favorable to Plaintiff, the Court finds that Plaintiff has sufficiently pleaded facts supporting

all five elements, and has stated a claim against DISD under Title IX.

B. Section 1983

(1) Due Process Clause

To state a Section 1983 claim, a plaintiff 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.” Leffall v. Dallas Indep. Sch. Dist., 28 F.3d

521, 525 (Sth Cir. 1994) (citations omitted). With respect to local governmental units, such as

DISD, Plaintiff must also allege that an official DISD policy or custom was a “cause in fact of the

deprivation of rights inflicted.” Jd. (citing Monell v. Dep't. of Soc. Servs., 436 U.S. 658 (1978)).

Generally, the Due Process Clause is not violated by the state’s failure to protect an

individual from harm inflicted by a third party. See Leffall, 28 F.3d at 526. Some courts have

recognized two exceptions to that general rule: the special relationship theory and the state-created

danger theory. See DeShaney v. Winnebago Cty. Dep't. of Soc. Servs., 489 U.S. 189, 196 (1989).

The Fifth Circuit does not.

Under the special relationship theory, “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

its custody and holds him there against his will.” Doe ex rel. Magee v. Covington Cty. Sch. Dist.

ex rel. Keys, 675 F.3d 849, 855 (Sth Cir. 2012) (quoting DeShaney, 489 U.S. at 199-200) (quotation

marks omitted). The Fifth Circuit has held, however, that “a public school does not have a special

relationship with a student that would require the school to protect the student from harm at the

hands of a private actor.” Doe ex rel. Magee, 675 F.3d at 856 (citing Doe v. Hillsboro Indep. Sch.

Dist., 113 F.3d 1412 (Sth Cir. 1997) (en banc); Walton v. Alexander, 44 F.3d 1297 (Sth Cir. 1995)).

Under the state-created danger theory, “a state actor may be liable under [Section] 1983 if

the state actor created or knew of a dangerous situation and affirmatively placed the plaintiff in

that situation.” Doe ex rel. Magee, 675 F.3d at 864. The Fifth Circuit, however, does not recognize

state-created danger as a viable claim. /d. (citing Kovacic y. Villarreal, 628 F.3d 209, 214 (5th

Cir. 2010); Bustos v. Martini Club, Inc., 599 F.3d 458, 466 (5th Cir. 2010) (“[T]his circuit has not

adopted the state-created danger theory.”).

Plaintiff's Section 1983 Due Process claim against DISD relies solely on the special

relationship and state-created danger theories. See Compl. J 44-45. Given Fifth Circuit precedent

rejecting these theories under facts and circumstances similar to this case, the Court finds that

DISD’s alleged failure to protect Minor Plaintiff from harm inflicted by Gilstrap-Portley does not

trigger a Due Process violation or otherwise amount to a violation of rights secured by the

Constitution or laws of the United States. See Leffall, 28 F.3d at 525-26. Accordingly, even taking

Plaintiff’ s alleged facts as true and viewing them in the light most favorable to Plaintiff, the Court

finds that Plaintiff has not pleaded a Section 1983 claim against DISD.

(2) Official Capacity

When a plaintiff sues a government official in their official capacity and also sues the

governmental employer, “[t]he official-capacity claim[] and the claim[] against the governmental

entity essentially merge.” Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478,

485 (5th Cir. 2000); Pena v. Dallas Cty. Hosp. Dist., Civil Action No. 3:12-CV-439-N, 2013 WL

111299229, at *11 (N.D. Tex. June 26, 2013) (same); see also Clark v. La Marque L.S.D., 184 F.

Supp. 2d 606, 612 (S.D. Tex. 2002) (dismissing Section 1983 claim against governmental

employee in official capacity as redundant due to same claim being raised against governmental

employer); Stephens v. Dallas Cty., Tex., Civil Action No. 3:05-CV-1009-K, 2007 WL 34827, at

*4 (N_D. Tex. Jan. 4, 2007) (same). Plaintiff asserts her Section 1983 claim against Bayer in his

official capacity and asserts the same claim against DISD. See Compl. Count II. Because the

claims alleged against DISD and Bayer are identical, as pleaded in the Complaint, the Court finds

that Plaintiff's Section 1983 claim against Bayer is redundant and essentially merges with her

Section 1983 claim against DISD. The Court therefore dismisses Plaintiffs Section 1983 merged

claim against Bayer for the same reasons that her Section 1983 claim against DISD fails.

(3) Qualified Immunity

Even if Plaintiff's Section 1983 claim against Bayer did not merge, qualified immunity

shields “government officials performing discretionary functions” from “liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Kinney v. Weaver, 367 F.3d 337, 349 (Sth Cir.

2004); see also Mullenix v. Luna, 577 U.S. 7, 11 (2015) (same). When a defendant raises a

qualified immunity defense, the defense is presumed to apply, and the plaintiff bears the burden

of demonstrating the inapplicability of that defense. Cantrell v. City of Murphy, 666 F.3d 911,

918 (Sth Cir. 2012). To overcome this presumption, a plaintiff must plead facts demonstrating

“(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)

(citing Harlow vy. Fitzgerald, 457 U.S. 800, 818 (1982)).

For a right to be “clearly established,” the “contours of the right must be sufficiently clear

that a reasonable official would have understood that what he is doing violates [that] right.”

Mullenix, 577 U.S. at 11 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). In other words,

the right must already be “clearly established” at the time of the challenged conduct. Lane v.

Franks, 134 S. Ct. 2369, 2381 (2014). When considering whether a defendant is entitled to

qualified immunity, the Court “must ask whether the law so clearly and unambiguously prohibited

this conduct that ‘every reasonable official would understand that what he is doing violates [the

law].” Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (alteration in original) (quoting a/-

Kidd, 563 U.S. at 741).

Here, Bayer has raised a qualified immunity defense to Plaintiff's Section 1983 claim.

Bayer’s Motion to Dismiss 14. To state a claim, Plaintiff must sufficiently allege that Bayer

violated a statutory or constitutional right that was “clearly established” at the time of the

challenged conduct. Ashcroft, 563 U.S. at 735. The Court finds that Plaintiff has not done so. As

a matter of law, the state-created danger and special relationship theories, which form the basis for

Plaintiff's Section 1983 claim against Bayer, do not create a right that is “clearly established” in

the Fifth Circuit. See Doe ex rel. Magee, 675 F.3d at 856, 859 (citing Doe v. Hillsboro Indep. Sch.

Dist., 113 F.3d 1412 (Sth Cir. 1997) (en banc) (holding that neither the state-created theory nor the

special relationship theory is a basis for liability under Section 1983)). And because Plaintiff has

not otherwise alleged any “clearly established” right, the Court finds that Bayer would be entitled

to the defense of qualified immunity.

C. Tort Claims

The Texas Tort Claims Act “requires an election of remedies when a plaintiff sues both a

governmental entity and its employees.” Travis v. City of Grand Prairie, Tex., 654 F. App’x 161,

166 (5th Cir. 2016). Section 101.106 of the Texas Tort Claims Act states that:

(a) The filing of a suit under this chapter against a governmental unit constitutes an

irrevocable election by the plaintiff and immediately and forever bars any suit

or recovery by the plaintiff against any individual employee of the

governmental unit regarding the same subject matter.

(b) The filing of a suit against any employee of a governmental unit constitutes an

irrevocable election by the plaintiff and immediately and forever bars any suit

or recovery by the plaintiff against the governmental unit regarding the same

subject matter unless the governmental unit consents.

Le« al

(f) If a suit is filed against an employee of a governmental unit based on conduct

within the scope of that employee’s employment and if it could have been

brought under this chapter against the governmental unit, the suit is considered

to be against the employee in the employee’s official capacity only. On the

employee’s motion, the suit against the employee shall be dismissed unless the

plaintiff files amended pleadings dismissing the employee and naming the

governmental unit as defendant on or before the 30th day after the date the

motion is filed.

See Alexander v. Walker, 435 S.W.3d 789, 790-91 (Tex. 2014) (quoting TEX. CIV. PRAC. & REM.

CODE § 101.106(a), (b), (f)). Sections (a) and (b) pertain to suits against employees in their

individual capacities and section (f) pertains to suits against employees in their official capacities.

See id. at 791. Section 101.106(e) further states that “[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.” Jd.; see also Shurb v. Univ. of Tex. Health

Sci. Cir. at Hous.-Sch. of Med., No. 4:13-CV-271, 2013 WL 4096826, at *6 (S.D. Tex. August 13,

2013). “[AJll tort theories alleged against a governmental unit, whether it is sued alone or together

with its employees, are assumed to be ‘under [the Texas Tort Claims Act].’” Jackson v. Tex. S.

Univ., 31 F. Supp. 3d 884, 889 (S.D. Tex. 2014) (citing Mission Consol. Indep. Sch. Dist. v.

Garcia, 253 $.W.3d 653, 659 (Tex. 2008); Franka v. Velazquez, 332 S.W.3d 367, 385 (Tex.

2011).

(1) Intentional Infliction of Emotional Distress

Plaintiff alleges a claim for intentional infliction of emotional distress (“ITED”) against

DISD and Bayer—1.e., a “government entity and its employee[].” Travis, 654 F. App’x at 166;