Loera v. Kingsville Independent School District

UNITED STATES DISTRICT COURT September 19, 2023

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

CORPUS CHRISTI DIVISION

ROBERT M. LOERA, §

§

Plaintiff, §

§

VS. § CIVIL ACTION NO. 2:21-CV-00031

§

KINGSVILLE INDEPENDENT SCHOOL §

DISTRICT, et al., §

§

Defendants. §

ORDER ON MEMORANDUM AND RECOMMENDATION

AND SUPPLEMENTAL MEMORANDUM AND RECOMMENDATION

Pending before the Court are the parties’ cross-motions for full or partial summary

judgment (D.E. 46, 49). On February 2, 2023, United States Magistrate Judge Jason B.

Libby issued his original Memorandum and Recommendation (M&R, D.E. 64),

recommending that Defendant Kingsville Independent School District’s (KISD’s) motion

be granted, Plaintiff Robert M. Loera’s (Loera’s) motion be denied, and this case be

dismissed in its entirety. In his timely-filed objections (D.E. 69), Loera included a motion

to supplement the summary judgment record, which this Court granted. This Court then

recommitted the matter to Magistrate Judge Libby for reconsideration under the expanded

record. D.E. 71.

On August 11, 2023, Magistrate Judge Libby issued his Supplemental

Memorandum and Recommendation (SM&R, D.E. 78), again recommending that KISD’s

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motion be granted and Loera’s motion be denied. Plaintiff timely filed his objections (D.E.

83) to the SM&R on September 5, 2023, with respect to the recommended granting of

KISD’s motion. KISD responded to those objections. D.E. 84. There are no objections

regarding the recommended denial of Loera’s motion for partial summary judgment.

For the reasons set out below, the Court ADOPTS IN PART and REJECTS IN

PART the M&R and SM&R and sets out the following analysis, by which the Court finds

that there are disputed issues of material fact regarding both the Title IX and § 1983 claims

with the exception of the claim for failure to train and supervise and the claims for certain

damages. The Court DENIES Loera’s motion for partial summary judgment (D.E. 49) and

GRANTS IN PART and DENIES IN PART KISD’s motion for summary judgment (D.E.

46).

STANDARD OF REVIEW

The district court conducts a de novo review of any part of a magistrate judge’s

disposition to which a party has properly objected. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ.

P. 72(b)(3); Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 2000). “Parties filing objections

must specifically identify those findings objected to. Frivolous, conclusive or general

objections need not be considered by the district court.” Battle v. U.S. Parole Comm’n,

834 F.2d 419, 421 (5th Cir. 1987) (discussing pro se petitioner’s objections to M&R),

overruled on other grounds Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir.

1996). As to any portion for which no objection is filed, a district court reviews for clearly

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erroneous factual findings and conclusions of law. United States v. Wilson, 864 F.2d 1219,

1221 (5th Cir. 1989) (per curiam).

DISCUSSION

A. Title IX

Loera has alleged claims under 20 U.S.C. § 1681, et seq. (Title IX) for a sex-based

hostile educational environment. The Title IX claim is governed by a standard that requires

that Defendant KISD, as the party with undisputed supervisory authority over its teachers,

(1) had actual notice of the risk of abuse and (2) responded with deliberate indifference.

D.E. 64, p. 15. The M&R recommends that the Court grant Defendant KISD’s motion for

summary judgment on this claim because there is insufficient evidence to raise a disputed

issue of material fact on both the actual notice and deliberate indifference issues due to the

high bar the law sets for each. Loera objects to the recommendation, reciting evidence

supporting findings in his favor on each of the elements.

1. Actual Notice

Loera does not object to the Magistrate Judge’s recitation of the standard for a

finding of actual notice. He argues only that he supplied sufficient evidence to meet that

standard. As the M&R correctly observes, “Actual notice requires the plaintiff to establish

that the school district knew of the ‘precise instance of abuse giving rise to the case at hand,

or [had] actual knowledge of substantial risk that such abuse would occur.’” D.E. 64, p.

16 (citing Doe v. Katy Indep. Sch. Dist., 427 F. Supp. 3d 870, 879 (S.D. Tex. 2019) (citation

omitted; emphasis added). In more detail, that court stated:

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To raise a factual dispute as to actual knowledge, a plaintiff

“need not show that the district knew that a particular teacher

would abuse a particular student.” [Rosa H. v. San Elizario

Indep. Sch. Dist., 106 F.3d 648, 659 (5th Cir. 1997)]. It is

enough that “the school district failed to act even though it

knew that [the teacher] posed a substantial risk of harassing

students in general.” Id. A school district may not be found

liable if it shows that it (1) “did not know of the underlying

facts indicating a sufficiently substantial danger and that [it

was] therefore unaware of a danger,” or (2) “knew the

underlying facts but believed (albeit unsoundly) that the risk to

which the facts gave rise was insubstantial or nonexistent.” Id.

Doe, 427 F. Supp. 3d at 879 (emphasis added).

Evidence on which Loera relies to show that teacher Gabriel Villarreal posed a

substantial danger to students includes KISD board members, at the time they exercised

their responsibility for rehiring Villarreal in 2015, acknowledging that they were aware of

rumors regarding Villarreal’s sexual relationship with a student while that student was

enrolled. The rumors were reinforced by social media posts immediately after the student

graduated, depicting Villarreal and his former student, Cuellar, in a sexual relationship.

This evidence was supplemented by other evidence depicting Villarreal’s lack of

appropriate boundaries, such as spending time with students around alcohol and

demonstrating the use of a condom on a banana in a drama class. While KISD complains

that these issues were only rumors, there is evidence that board members had seen the

social media posts. D.E. 49-4, pp. 7, 9-10; D.E. 46-15, pp. 4-6; D.E. 49-5, p. 8.

Furthermore, it is undisputed that KISD had previously received an unspecified complaint

against Villarreal and that KISD had already counseled Villarreal regarding his

unprofessional boundaries. D.E. 61-2; D.E. 61-3. Dr. Kent testified that this evidence is

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treated by professional educators as notice that the teacher poses a danger to students and

that corrective action is necessary. D.E. 69-1, p. 17.

There is some evidence that KISD board members expressed their concerns over

Villarreal’s conduct, including the social media posts, at a school board meeting and

questioned whether they should rehire Villarreal under the circumstances, with two voting

against his employment by the district. D.E. 53-6, p. 9; D.E. 61-2; D.E. 61-3. This is some

evidence that KISD had actual notice of a substantial risk of harm to future students.

As set out above, while the evidentiary standard of notice is high, the board members

did not have to have actual notice that Villarreal sexually abused the prior student, Cuellar,

during his enrollment. It is on that issue that the Court disagrees with the M&R’s analysis.

See D.E. 64, pp. 19-20 (stating “There is no competent evidence that anyone at Kingsville

ISD knew for certain Villarreal and Cuellar had a relationship while Cuellar was a

student” and referring to a need for firsthand knowledge or formal allegations related to

the prior incident) (emphasis added)).

This is not a case where questionable rumors circulated among those without

supervisory authority. Here, it is enough that Villarreal’s overall conduct and the post-

graduation social media posts (occurring after Villarreal had already been cautioned about

his conduct) support an inference of danger to students and that some KISD board members

drew that inference. “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.” Doe v. Dall. Indep. Sch. Dist., 534 F. Supp. 3d 682, 688 (N.D. Tex. 2021); see

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also, Farmer v. Brennan, 511 U.S. 825, 837 (1994) (discussing deliberate indifference

under the Eighth Amendment); Rosa H.,106 F.3d at 658 (applying the standard to Title

IX).

In support of its summary judgment motion, KISD has not conclusively shown

either ignorance of the facts that indicate a substantial danger or that board members

actually believed that the risk was insubstantial or nonexistent. Rather, there is some

testimony that they acknowledged the known facts and their inferences and openly

expressed concerns. At the same time, there is some evidence from Superintendent, Dr.

Carol Perez, that these concerns were never raised at any KISD board meetings and

therefore could not have served as a basis for notice or for any act or omission. For that

reason, there is a disputed issue of material fact on actual notice that precludes summary

judgment for either party to this case. The Court SUSTAINS Loera’s objection to the

M&R’s recommendation that the Court find that Loera failed to submit sufficient evidence

of actual notice to preclude summary judgment in KISD’s favor.

2. Deliberate Indifference

Loera does not dispute the standard recited in the M&R for deliberate indifference.

His argument is that he has produced sufficient evidence to satisfy the standard. According

to the M&R, deliberate indifference must be more than negligence. A school district avoids

liability if it responded reasonably to a risk of harm, even if the effort is unsuccessful. D.E.

64, pp. 16-17. Whether a response is reasonable depends on the facts of the case. Id., p.

24 (citing Doe, 427 F. Supp. 3d at 879).

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Loera argues that KISD’s investigation prior to rehiring Villarreal was clearly

unreasonable because it failed to include any effort to confirm or repudiate the inference

from known facts of Villarreal having had an improper sexual relationship with Cuellar

while Cuellar was Villarreal’s student. The Magistrate Judge found that it was sufficiently

reasonable that Dr. Perez conducted an investigation into Villarreal’s reason for leaving

KISD in 2011 and his references for work after leaving and prior to his rehiring. According

to the M&R and SM&R, any failure of Dr. Perez to investigate Villarreal’s relationship

with Cuellar was, at best, negligent and KISD is entitled to summary judgment because

Loera’s evidence cannot reach the high bar set for deliberate indifference.

However, Loera is not just arguing that Dr. Perez made a negligent choice in how

to conduct the investigation or suffered from an unfortunate oversight. He is arguing that

Dr. Perez was on notice of a substantial risk of danger to which she turned a blind eye.

“Deliberate indifference includes an official decision by the [Title IX] recipient not to

remedy the violation.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).

That is when it is obvious that the likely consequences of inaction will be a deprivation of

rights that Title IX seeks to protect. See Doe, 153 F.3d at 217. This comports with the

treatment of the standard more broadly, where refusal to engage, ignoring the problem after

notice, or intentionally mishandling the problem shows sufficient intent or wanton

disregard to support liability under a deliberate indifference standard. See generally,

Domino v. Tex. Dep't of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001) (addressing

deliberate indifference to serious medical needs).

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KISD has not offered any evidence that would show that omitting any inquiry into

the Villarreal-Cuellar relationship was reasonable under the circumstances, other than Dr.

Perez’s testimony that she was not aware of the issue and that it had not been brought up

at any school board meeting. Because there is evidence controverting her testimony in that

regard, it is a question for the jury to determine whether Dr. Perez was on notice of the

problem and the school board members’ concerns and whether, given that notice, her

investigation failing to pursue that issue was clearly unreasonable as a deliberate act in

wanton disregard of a serious danger to future students.

There is a disputed issue of material fact on deliberate indifference that precludes

summary judgment in favor of KISD on this issue. The Court SUSTAINS Loera’s

objection to the M&R’s recommended finding on deliberate indifference.

3. Damages

KISD also originally sought summary judgment that punitive damages are not

available under Title IX, citing Barnes v. Gorman, 536 U.S. 181, 187 (2002). D.E. 46, pp.

18-19. Loera did not respond to that argument. See D.E. 56. For the first time in its reply

(D.E. 57), KISD expanded its argument to challenge Loera’s claim to compensatory

damages for an emotional injury under Title IX, citing Cummings v. Premier Rehab Keller,

P.L.L.C., 142 S. Ct. 1562 (2022). The Magistrate Judge did not reach this issue due to his

conclusions and recommendations regarding liability. D.E. 64, p. 29. Because the Court

does not grant KISD’s motion on liability grounds, it now addresses the challenge to

damages.

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Barnes and Cummings draw upon the same reasoning to state that the only remedies

available for claims prosecuted as implied-right-of-action cases arising from federal

spending clause legislation are those traditionally available in ordinary contract actions. It

is beyond dispute that Title IX is such spending clause legislation. And the Supreme Court

has made it clear in Barnes and Cummings that neither punitive damages nor damages for

emotional injuries are available in such cases. That is because recipients of federal funds

are entitled to rely on exposure to liability only for damages that fall under general and

traditional contract rules—not special cases, exceptions, or state law variances.

Loera succinctly states four arguments in his supplemental response to KISD’s

motion with respect to damages, none of which challenge Barnes and its elimination of

punitive damages. D.E. 61. Loera’s first objection to the use of Cummings to eliminate

emotional injury damages is that a summary judgment movant is precluded from asserting

new grounds in a reply. However, such grounds may be considered if, as the Magistrate

Judge did here, the court grants the parties the opportunity to brief the issue fully. See D.E.

59; Vais Arms, Inc. v. Vais, 383 F.3d 287, 292 (5th Cir. 2004). The objection is overruled.

Similarly, the Court rejects Loera’s second argument, which he makes without

benefit of authority. That argument is that the Court should not consider the Cummings

challenge because the Supreme Court issued the opinion prior to KISD’s motion, which

means that KISD made an intentional decision to waive the argument. Even so, any such

intentional waiver was procedurally withdrawn prior to decision and the more substantive

argument of prejudice is nullified by the opportunity, which Loera sought and was granted,

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to file additional briefing. See Vais. Even if not addressed on summary judgment, the

issue would remain and there is nothing to be gained by delaying consideration of this issue

until trial. The Court overrules the second objection.

The Court rejects Loera’s third argument that Barnes and Cummings do not apply

to Title IX. Title IX is clearly a spending clause statute like Title VI, Title VII, the

Americans with Disabilities Act, and the Rehabilitation Act. And Cummings makes

multiple references to Title IX when explaining the substantive analysis. The case Loera

cites, Doe v. Purdue Univ., No. 4-18-CV-89-JEM, 2022 U.S. Dist. LEXIS 128601, at *10-

11 (N.D. Ind. July 20, 2022), states only that Cummings, itself, was not a Title IX case.

Neither Loera nor the Purdue University court offers any reasoned argument for making

an exception to the spending clause statutory analysis for Title IX cases. And Purdue

University was merely an order on a motion in limine, refusing to issue a blanket pretrial

exclusion of all evidence of emotional distress or harm. The Court overrules the third

objection.

Loera’s fourth argument is that Cummings does not preclude damages for emotional

harm under his § 1983 claim. The Court agrees and sustains that objection and notes that

KISD’s challenge to punitive damages under § 1983 is based on a different line of cases.

D.E. 46, p. 19. And its reply, in which it invoked Cummings, addresses only the damages

claimed under the Title IX claim. D.E. 57, p. 1. The Court concludes that KISD is entitled

to summary judgment against Loera on his claims for damages for emotional distress and

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punitive damages under Title IX. The challenge to damages under § 1983 will be addressed

separately.

4. Title IX Conclusion

The Court DENIES Loera’s motion for partial summary judgment (D.E. 49) on the

issue of actual notice. KISD’s motion for summary judgment (D.E. 46) is GRANTED IN

PART and the Court DISMISSES Loera’s claim for Title IX damages for emotional injury

and punitive damages. The KISD motion (D.E. 46) is DENIED IN PART on the issues

of actual notice and deliberate indifference as they apply to the Title IX claim. The parties

may address the Court further regarding whether, as KISD suggested, Loera does not seek

any category of damages that would support going forward with the Title IX claim. This

matter is not clear after a review of the entire summary judgment record, including the

supplementary evidence of actual bodily contact.

B. Section 1983

Loera has alleged a 42 U.S.C. § 1983 claim for KISD’s violation under color of law

of his Fourteenth Amendment right to bodily integrity. Because a § 1983 claim cannot be

made against an employer under principles of respondeat superior, Loera must show that

KISD, as a municipal defendant, had a policymaker with an official policy, custom, or

practice that was unconstitutional or adopted with deliberate indifference and was the

moving force behind a deprivation of Loera’s constitutional rights. See Monell v. Dep’t.

of Soc. Serv., 436 U.S. 658, 694 (1978). Loera argues that he has supported his claim with

sufficient evidence on each of the elements.

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Loera also pled a claim for failure to train or supervise Villarreal. KISD challenged

the claim for the failure to train or supervise and Loera did not respond to that challenge.

Consequently, the M&R treats this claim as waived and recommends its dismissal. D.E.

64, p. 26 n.12. Loera did not object to this disposition. D.E. 83. Consequently, the Court

ADOPTS the M&R’s analysis and DISMISSES Loera’s claim against KISD for failure to

train or supervise Villarreal.

With respect to the remaining § 1983 claim, KISD’s motion raised four challenges.

Loera’s initial summary judgment response did not address any of the § 1983 issues. D.E.

56. However, he sought and obtained leave to file a supplemental response, including

additional summary judgment evidence. D.E. 59. His resulting response addressed three

of the four challenges. D.E. 61. The Court addresses each challenge in turn, including the

M&R’s recommended disposition, and Loera’s objections.

Physical Contact. First, KISD claims Loera has not demonstrated that Villarreal

made physical contact with him in order to qualify for a claim for violation of bodily

integrity. Loera’s supplemental evidence and response provided that evidence. See D.E.

61, 61-1. The M&R acknowledged this additional information, but did not make an express

ruling on KISD’s complaint and KISD did not object to the lack of ruling. D.E. 64, p. 26

n.11. The Court treats the challenge as adequately addressed by Loera’s supplemental

evidence and thus DENIES IN PART KISD’s motion to dismiss the § 1983 claim on this

basis.

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Color of Law. Second, KISD complains that Loera has not demonstrated that

Villarreal acted under color of state law because he did not exercise any power as a teacher

in seeking out Loera’s participation in sex acts. The M&R discusses the evidence and finds

the argument to be without merit, impliedly recommending denial of the motion on this

basis. D.E. 64, p. 29 n.13. KISD did not object to this disposition and the Court ADOPTS

the Magistrate Judge’s reasoning and DENIES IN PART KISD’s motion to dismiss the §

1983 claim on this basis.

Policy as Moving Force. Third, KISD argues that Loera has not identified a policy

that was a moving force behind any constitutional violation. Instead, it argues, the evidence

conclusively shows that no policy could be the moving force behind a constitutional

violation because KISD had a written policy against sexual harassment of students, which

Villarreal was required to be aware of and follow. D.E. 46, pp. 15-16. The M&R does not

address KISD’s claim that its written policy could negate Loera’s claim as a matter of law

and KISD offered no authority for such a proposition.

Instead, the M&R references its analysis of the evidence offered with respect to the

Title IX allegations and concludes that the evidence is also insufficient to support a § 1983

claim. D.E. 64, pp. 26-29. It further finds the number of instances of sexual harassment

insufficient to establish a widespread and persistent custom or practice of allowing a

sexually harassing educational environment. Id., pp. 27-28. As set out above, the Court

disagrees with that analysis. The notice provided by the Cuellar incident, the expressed

concerns of KISD board members, and Superintendent Perez’s failure to take action to

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address that concern is sufficient evidence of an errant policy to raise a disputed issue of

material fact. The Court SUSTAINS Loera’s objection to the conclusion—as a matter of

law—that Dr. Perez’s investigation was a reasonable response to the actual notice of the

danger Villarreal posed, sufficient to defeat his § 1983 claim.

While Villarreal’s own vague history of complaints with indeterminate results may

not be enough to establish a widespread custom or practice permitting sexual harassment,

Loera has shown some evidence, albeit disputed, that KISD made a specific decision to

rehire Villarreal despite sufficient actual notice of the danger he posed and through

deliberate indifference to that danger. Loera can prosecute a § 1983 claim based on a policy

or a custom or practice that rises to the level of a policy. Monell, 436 U.S. at 694.

A “policy” includes a “decision officially adopted and promulgated by that body's

officers.” Id. at 690. Loera need not establish a widespread custom or practice tantamount

to a policy when he can show a single specific affirmative KISD decision, which is itself a

policy—to rehire Villarreal despite knowledge of the risk—which was also the moving

force behind the constitutional violation by placing that teacher in a position to, predictably,

sexually harass Loera in violation of his right to bodily integrity. The Court DENIES IN

PART KISD’s motion for summary judgment challenging the existence of a policy to

support the § 1983 claim.

Punitive Damages. Fourth, KISD asserts that, as a municipal defendant, it is

immune from the assessment of punitive damages. D.E. 46, p. 19. Loera did not respond

to this argument in his original or supplemental summary judgment responses. D.E. 56,

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61. The Magistrate Judge did not address the argument because of his conclusions

regarding liability. D.E. 64, p. 29. The Court finds that KISD is correct on this argument.

See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981); Hoskins v. Kaufman

Indep. Sch. Dist., No. CIV.A.3:03CV0130-D, 2003 WL 21517830, at *9 (N.D. Tex. June

30, 2003) (applying the Newport holding in favor of a school district). The Court

GRANTS IN PART KISD’s motion and DISMISSES Loera’s claim for punitive damages

under its § 1983 claim.

CONCLUSION

Having reviewed the findings of fact, conclusions of law, and recommendations set

forth in the Magistrate Judge’s M&R and SM&R, as well as Loera’s objections, and all

other relevant documents in the record, and having made a de novo disposition of the

portions of the Magistrate Judge’s M&R and SM&R to which objections were specifically

directed, the Court has ruled on the objections and has adopted or rejected the conclusions

of the Magistrate Judge as set out above. Accordingly,

• Plaintiff Loera’s motion for partial summary judgment on actual notice

(D.E. 49) is DENIED;

• Defendant KISD’s motion for summary judgment (D.E. 46) is

GRANTED IN PART and the claims for failure to train and supervise

are DISMISSED;

• Defendant KISD’s motion for summary judgment (D.E. 46) is

GRANTED IN PART with respect to the claims for punitive damages

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under both Title IX and § 1983 and those damage claims are

DISMISSED.

e Defendant KISD’s motion for summary judgment (D.E. 46) is also

GRANTED IN PART with respect to claims for emotional injury

damages under Title IX, only, and that damage claim is DISMISSED.

e Defendant KISD’s motion for summary judgment (D.E. 46) is otherwise

DENIED IN PART and the Court RETAINS both the Title IX and

§ 1983 claims to the extent that Loera has remaining damages that qualify

for recovery under those statutes.

ORDERED on September 19, 2023.

UNITED STATES DISTRICT JUDGE

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