The opinion
Case: 24-40231 Document: 59-1 Page: 1 Date Filed: 02/13/2025
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
February 13, 2025
No. 24-40231 Lyle W. Cayce
____________ Clerk
John Doe, individually and as next friends of Janie Doe 1 and Janie Doe 2,
Minor children; Jane Doe, individually and as next friends of Janie Doe 1
and Janie Doe 2, minor children,
Plaintiffs—Appellees,
versus
Holly Ferguson; Annamarie Hamrick,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:22-CV-814
______________________________
Before Jones, Barksdale, and Ho, Circuit Judges.
Rhesa Hawkins Barksdale, Circuit Judge:
In this interlocutory appeal, school-district officials Holly Ferguson
and Annamarie Hamrick contest the denial of their qualified-immunity-based
motions to dismiss, filed pursuant to Federal Rule of Civil Procedure 12(b)(6)
(failure to state claim). Through this action, Plaintiffs John and Jane Doe
pursue, inter alia, supervisory-liability claims under 42 U.S.C. § 1983 against
Ferguson and Hamrick for permitting violations of their two minor children’s
right to bodily integrity. At issue in this appeal is only whether Plaintiffs’
second-amended complaint plausibly alleges Ferguson and Hamrick
possessed subjective knowledge of sexual abuse by school-bus-driver Frank
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Paniagua, based primarily on the school district’s possession of video-
surveillance footage. Plaintiffs fail to do so. Therefore, for the at-issue
supervisory-liability claims under § 1983, the denial of qualified immunity is
VACATED; qualified immunity is GRANTED to Ferguson and Hamrick
against those claims.
I.
Plaintiffs claim two Prosper Independent School District (Prosper
ISD) administrators, Superintendent Ferguson and former Transportation
Director Hamrick (Defendants), failed to take action to stop school-bus-
driver Paniagua from sexually abusing Janie Doe 1 and Janie Doe 2, in
violation of their Fourteenth Amendment right to bodily integrity. In
addition to those claims, the district court allowed claims under Title IX
against Prosper ISD to proceed, as well as claims under § 1983 against
Paniagua’s estate.
But, this interlocutory appeal concerns only the supervisory-liability
claims under § 1983 against Ferguson and Hamrick. Because denial of a
motion to dismiss is at issue, the following recitation of allegations is based
on Plaintiffs’ operative (second-amended) complaint, in effect when their
motions to dismiss were denied in part. (One day after Defendants filed this
appeal, Plaintiffs filed a third-amended complaint, repleading, based on the
denial in part of their motions to dismiss, equal-protection and failure-to-
train claims under § 1983 against Defendants. This appeal, however,
concerns only the second-amended complaint.)
During the 2021–22 school year, eight-year-old Janie Doe 1 and six-
year-old Janie Doe 2 attended school in the Prosper ISD in Texas. The Doe
children rode a bus driven by Paniagua to school three to four times a week.
Each morning, after picking up Janie Doe 1 and 2, and before picking up other
students, Paniagua would take the bus off-route and make an unscheduled
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stop, where he would pretend to adjust Janie Doe 1 and 2’s seatbelts as a
pretext for reaching under their shirts and shorts to touch their bare chests,
vaginas, and anuses. This abuse was captured on the bus’s on-board video
surveillance. Paniagua’s taking the bus off-route and making unscheduled
stops were also reflected in GPS tracking data. Additionally, Paniagua
sometimes disabled the bus’s GPS tracking functionality in order to conceal
the location of the bus while he was molesting the Doe children. This abuse
began as early as September 2021 and occurred every morning the Doe
children took the bus to school—upwards of 100 separate instances.
The surveillance footage and GPS data were “in the actual possession,
custody, and control of Prosper ISD administrators including, but not limited
to, Transportation Director Hamrick and Superintendent Dr. Ferguson, and
actually showed Paniagua molesting” the Doe children. “Based upon the
District’s surveillance policy, the Defendants’ actual possession of the
videos, and the fact that the videos showed the assaults, Plaintiffs believe and
contend that Defendants were actually, subjectively aware of Paniagua’s
abuse of Janie Doe 1 and 2 but failed to act in response.”
At least one Prosper ISD teacher or administrator was assigned to help
with morning bus-drop-off, and up to five teachers or administrators were
assigned to help with morning car-drop-off. Although an exact time period
is not provided in the complaint, “[f]or months”, individuals assigned to
morning drop-off observed that Paniagua would keep the Doe children on the
bus for several minutes, alone, after the other children had departed. During
this time, Paniagua would again molest the Doe children. After Janie Doe 2
deboarded the bus at school, Paniagua would ensure Janie Doe 1 was the last
student off the bus so he could assault her at the back of the bus for three to
five minutes.
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Those Prosper ISD teachers and administrators, unidentified in the
complaint, asked Paniagua about Janie Doe 1’s constant delays in deboarding,
and Paniagua said she was helping clean the bus by “picking up trash”.
Plaintiffs also “believe” that the unidentified “teachers or administrators
who observed this behavior . . . reported it to their superiors, but this evidence
is” solely under Prosper ISD’s “control . . . and Plaintiffs have not yet had
an opportunity to conduct any discovery”.
On Saturday, 7 May 2022, the Doe children told their mother, Jane
Doe, that Paniagua “sometimes . . . touches them”. That same day, Jane
Doe informed Prosper ISD’s transportation and police departments. On
Monday, 9 May 2022, Prosper ISD police pulled surveillance video from
Paniagua’s bus, reviewed it, and sent the footage to the Prosper Police
Department. The following day, the Doe children attended forensic
interviews with personnel from Child Protective Services and the Child
Advocacy Center.
Police arrested Paniagua on Wednesday, 11 May 2022. Following his
arrest, he attempted suicide in jail and paralyzed himself. He died on 10 June
2022.
During February 2020, prior to the above-described events, Hamrick
and Ferguson received a complaint from an unidentified parent concerning a
different, unidentified bus driver’s inappropriate “grooming tactics” toward
the parent’s young daughter. This driver was reassigned to a new route and
no investigation was undertaken.
In August 2022, two months after Paniagua’s death, Plaintiffs filed
suit in state court against Prosper ISD. The action was removed to federal
court that September. Plaintiffs filed their complaint in district court on 26
October 2022, asserting tort claims as well as claims under § 1983 and Title
IX against Prosper ISD, Ferguson, and Paniagua’s estate. The next day,
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Plaintiffs filed their first-amended complaint, asserting the same claims
against the same defendants. On 6 December 2022, Plaintiffs filed their
second-amended complaint, asserting tort claims as well as claims under
§ 1983 and Title IX against Prosper ISD, Paniagua’s estate, Ferguson, and
Hamrick.
As noted, although Plaintiffs pursue additional claims, at issue in this
interlocutory appeal are only their claims under § 1983 against Defendants in
their supervisory capacities for permitting violations of the Doe children’s
right to bodily integrity, in violation of the Fourteenth Amendment’s due-
process clause. As also noted, Ferguson and Hamrick filed motions to
dismiss under Rule 12(b)(6) (failure to state claim), claiming qualified
immunity.
The district court on 27 March 2024 denied in part Defendants’
motions to dismiss, concluding they were not entitled to qualified immunity
against the claims under § 1983. In doing so, the court concluded the
complaint plausibly alleged Defendants each “learned of Paniagua’s
inappropriate sexual behavior pointing plainly to the conclusion that he was
sexually abusing the Doe Children . . . [and] Defendants demonstrated
deliberate indifference toward the Doe Children’s constitutional rights” by
failing to “take action that was obviously necessary to stop or prevent the
abuse, despite knowing about it, until they were notified by the Doe
Children’s mother”. This conclusion was based on Plaintiffs’ allegations
that both Defendants: “were in actual possession” of bus surveillance video
and GPS data; and were “actually, subjectively aware of Paniagua’s abuse”.
In addition, the court dismissed claims John and Jane Doe filed in their
individual capacities. Regarding Plaintiffs’ other claims, the court denied in
part the motions to dismiss by Prosper ISD and Paniagua’s estate, allowing
Plaintiffs to pursue claims under Title IX against Prosper ISD, as well as a
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claim under § 1983 against Paniagua’s estate. The court dismissed, without
prejudice, Plaintiffs’ equal-protection and failure-to-train claims under
§ 1983 against Defendants, granting Plaintiffs leave to amend their complaint
for those claims. As noted, a third-amended complaint has been filed as a
result. Again, this appeal concerns only the relevant allegations in the
second-amended complaint concerning the supervisory-liability claims under
§ 1983.
II.
This interlocutory appeal by Ferguson and Hamrick from the denial
of qualified immunity is permitted by the collateral-order doctrine. E.g.,
Edmiston v. Borrego, 75 F.4th 551, 557 (5th Cir. 2023). “[O]ur court has
jurisdiction to review a district court’s order denying a motion to dismiss on
the basis of qualified immunity only to the extent that the appeal concerns
the purely legal question of whether the defendants are entitled to qualified
immunity on the facts”. Id. (quoting Bevill v. Fletcher, 26 F.4th 270, 274 (5th
Cir. 2022)). “[W]e review de novo the denial of a qualified-immunity-based
motion to dismiss”. Id. (citation omitted).
A.
Defendants contend Ashcroft v. Iqbal, 556 U.S. 662 (2009),
extinguished supervisory-liability claims under § 1983, including the test for
school supervisory liability outlined in Doe v. Taylor Indep. Sch. Dist., 15 F.3d
443 (5th Cir. 1994) (en banc). We hold that Iqbal did not foreclose such
claims; Taylor remains good law in our circuit. For starters, our court has
continued to allow supervisory-liability claims under § 1983 in the 15 years
since Iqbal was decided. E.g., Whitley v. Hanna, 726 F.3d 631, 640 (5th Cir.
2013) (applying Taylor test in 2013); Davidson v. City of Stafford, 848 F.3d
384, 397–98 (5th Cir. 2017); Brauner v. Coody, 793 F.3d 493, 501 (5th Cir.
2015).
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In any event, Iqbal concerned Bivens claims for invidious
discrimination rooted in the First and Fifth Amendments, requiring showing
purposeful discrimination. 556 U.S. at 677. Defendants point to language in
Iqbal referring to the term “supervisory liability” as a “misnomer” in actions
brought under Bivens or § 1983. Id. But the Iqbal majority took issue with
the term “supervisory liability” only to the extent it invoked respondeat
superior liability based on a subordinate’s conduct. Id. The Court rejected
the contention that a supervisor’s “mere knowledge of his subordinate’s
discriminatory purpose amounts to the supervisor’s violating the
Constitution” and concluded that “purpose rather than knowledge is
required to impose Bivens liability” on a supervisor. Id.
Pursuant to Taylor, and as discussed infra, supervisors are not liable
for mere knowledge, but for “demonstrat[ing] deliberate indifference toward
the constitutional rights of the student by failing to take action” that itself
“cause[s]” the constitutional injury. Taylor, 15 F.3d at 454; see also Farmer
v. Brennan, 511 U.S. 825, 835 (1994). Because this standard focuses on the
independent misconduct of the supervisor, Taylor falls within Iqbal’s
recognition that “each Government official . . . is only liable for his or her
own misconduct”. Iqbal, 556 U.S. at 677.
B.
As noted, our court reviews de novo a ruling on a qualified-immunity-
based motion to dismiss. Edmiston, 75 F.4th at 557. “[W]e must accept all
well-pleaded facts as true, drawing all reasonable inferences in the
nonmoving party’s favor”. Id. (citation omitted). “We do not, however,
accept as true legal conclusions, conclusory statements, or naked assertions
devoid of further factual enhancement.” Id. (quoting Benfield v. Magee, 945
F.3d 333, 336 (5th Cir. 2019)).
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In reviewing a ruling on a Rule 12(b)(6) motion, our court considers
only “the facts stated in the complaint and the documents either attached to
or incorporated in the complaint”. Ferguson v. Bank of New York Mellon
Corp., 802 F.3d 777, 780 (5th Cir. 2015) (citation omitted). Dismissal is
proper where plaintiff fails to “plead sufficient facts to state a claim to relief
that is plausible on its face”. Id. Facial plausibility means the pleaded
“factual content . . . allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged”. Iqbal, 556 U.S. at 678.
“Qualified immunity protects officers from suit unless their conduct
violates a clearly established [statutory or] constitutional right.” Converse v.
City of Kemah, 961 F.3d 771, 774 (5th Cir. 2020) (quoting Mace v. City of
Palestine, 333 F.3d 621, 623 (5th Cir. 2003)). “Although qualified immunity
is nominally an affirmative defense, the plaintiff bears a heightened burden to
negate the defense once properly raised.” Newman v. Guedry, 703 F.3d 757,
761 (5th Cir. 2012) (citations omitted).
If defendant asserts a qualified-immunity defense, “a plaintiff seeking
to overcome qualified immunity must show: (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”. Converse, 961 F.3d at 774 (quoting
Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016)). Plaintiff bears the
burden to “plead facts which, if proved, would defeat the claim of
immunity”. Waller v. Hanlon, 922 F.3d 590, 599 (5th Cir. 2019) (citations
omitted).
We have discretion as to which of the two prongs should be analyzed
first; but, “often the better approach to resolving cases in which the defense
of qualified immunity is raised is to determine first whether the plaintiff has
alleged a deprivation of a [federal] right at all”. Cope v. Cogdill, 3 F.4th 198,
204 (5th Cir. 2021) (citation omitted). For the reasons that follow, Plaintiffs
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fail to plausibly allege violation of a constitutional right. Therefore, we do
not reach the second prong (whether right clearly-established).
Our court has held repeatedly: a student has a substantive due-
process right to be free from physical sexual abuse; and such abuse by a school
employee violates that right. Taylor, 15 F.3d at 450–52; see Whitley, 726 F.3d
at 640. Taylor held:
A supervisory school official can be held personally liable for a
subordinate’s violation of an elementary or secondary school
student’s constitutional right to bodily integrity in physical
sexual abuse cases if the plaintiff establishes that:
(1) The defendant learned of facts or a pattern of inappropriate
sexual behavior by a subordinate pointing plainly toward
the conclusion that the subordinate was sexually abusing
the student; and
(2) The defendant demonstrated deliberate indifference
toward the constitutional rights of the student by failing to
take action that was obviously necessary to prevent or stop
the abuse; and
(3) Such failure caused a constitutional injury to the student.
Taylor, 15 F.3d at 454.
Therefore, to overcome Defendants’ motions to dismiss based on
qualified immunity, Plaintiffs must have pleaded facts permitting our court
to draw a reasonable inference that: (1) Ferguson and Hamrick “learned of
facts . . . pointing plainly toward” sexual abuse; (2) they showed “deliberate
indifference toward” the Doe children’s rights by “failing to take action” to
stop the abuse; and (3) the “failure caused a constitutional injury to” the Doe
children. Id.
“The deliberate indifference standard is a high one.” Whitley, 726
F.3d at 641 (quoting Doe v. Dall. Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir.
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1998)). “To act with deliberate indifference, a state actor must know of and
disregard an excessive risk to the victim’s health or safety.” Id. (quoting
McClendon v. City of Columbia, 305 F.3d 314, 326 n.8 (5th Cir. 2002)). “The
state actor’s actual knowledge is critical to the inquiry—a 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.” Id.
(quoting McClendon, 305 F.3d at 326 n.8).
We turn first to Taylor’s first prong: subjective knowledge. “Under
Iqbal, we first look to Plaintiffs’ Complaint, distilling the well-pleaded factual
allegations—whose truth we are bound to presume at this stage—from any
unsupported legal conclusions—whose truth we cannot assume.” Doe v.
Robertson, 751 F.3d 383, 388 (5th Cir. 2014). For the court to accept an
allegation about a defendant’s subjective state-of-mind, the allegation must
do more than “merely restate[] the standard required to demonstrate the
requisite subjective knowledge”. Edmiston, 75 F.4th at 560. “[W]e must
carefully discern factual allegations from legal conclusions in plaintiffs’
complaint”. Id. (citing Robertson, 751 F.3d at 388 (allegation that defendants
“exhibited deliberate indifference” was “merely a legal conclusion”, even if
it “might have been couched as a factual allegation”)).
Plaintiffs make the blanket allegation that Ferguson and Hamrick were
“actually, subjectively aware of Paniagua’s abuse . . . but failed to act in
response”. Plaintiffs base this allegation on “the District’s surveillance
policy, the Defendants’ actual possession of the videos, and the fact that the
videos showed the assaults”.
This is a legal conclusion that merely “restates the standard required
to demonstrate the requisite subjective knowledge”. Id.; see also Robertson,
751 F.3d at 388. Plaintiffs do not assert either Ferguson or Hamrick
personally were notified of, or watched, the school-bus surveillance footage,
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instead alleging they were on notice of the footage “regardless of whether
[they] bothered to look at the videos”. The operative complaint does not
identify who would first review extensive video-surveillance footage from all
bus drivers in the district, or identify a chain-of-command for reporting such
footage. Plaintiffs do not allege the videos were reviewed at all before 7 May
2022 when the Doe children first informed their mother of the abuse.
Establishing Defendants’ subjective knowledge would require at least two
missing links in the causal chain: a subordinate reported the videos to his or
her superiors; and those superiors either were, or reported the videos to,
Ferguson or Hamrick. The complaint fails to allege either.
Plaintiffs also “believe” that unidentified teachers or school-level
administrators who observed Paniagua’s delayed drop-offs reported it to
their superiors. They equivocate on this point, however, by asserting that
any evidence of whether this occurred is solely within Prosper ISD’s control
and unavailable without discovery. The complaint does not identify Prosper
ISD’s reporting procedures, a reporting chain-of-command, or definitively
allege that the suspicious behavior was reported. At most, this is a “naked
assertion devoid of further factual enhancement”. Iqbal, 556 U.S. at 678
(citation omitted).
Turning to the well-pleaded facts and viewing them in the requisite
light most favorable to Plaintiffs, Prosper ISD possessed ongoing surveillance
footage of all district bus drivers, as well as GPS data of their daily routes.
Although Plaintiffs allege that, “regardless of whether the Defendants
bothered to look at the videos, the videos . . . placed the Defendants on actual
notice of the abuse”, our precedent does not support imputing subjective
knowledge based on mere access to information. See Whitley, 726 F.3d at 644
(police department’s failure to notify about suspicious conduct could not be
imputed to police lieutenant); Taylor, 15 F.3d at 448, 457.
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In Taylor—decided at the summary-judgment, not motion-to-dismiss,
stage—our court held a school principal possessed the requisite subjective
knowledge of a teacher’s abuse, based on summary-judgment evidence that the
principal had, over a period of two years: spoken with the teacher “about
being ‘too friendly’ with a particular female student”; “received complaints
from parents about [the teacher’s] favoritism toward certain girls in the
classroom”; received reports of the teacher’s inappropriate behavior from
the school librarian, who at one point described the incident she witnessed as
“child molestation”; and received reports that the teacher “was directing his
inappropriate sexual behavior specifically toward Doe”. Taylor, 15 F.3d at
456–57. In response, the principal failed to reprimand the teacher, remove
the student from the class, or document complaints in the teacher’s
personnel file. Id. at 457.
In contrast, the school district superintendent in Taylor was entitled
to qualified immunity because his position as an administrator did not
automatically impute knowledge of conduct at the school level. Id. at 448,
457–58. He was not personally notified of the many instances of suspicious
conduct, and our court did not impute knowledge of such conduct to him. Id.
at 457–58. Subjective knowledge of conduct, rather than mere availability of
information related to that conduct, determined whether administrators
“learned of” the abuse. Id. at 457.
Plaintiffs make only one allegation of direct notice: that, in February
of the school year prior to the one in issue, Defendants received a report
about “grooming tactics” by a different bus driver toward a different student.
This allegation fails, however, to establish subjective knowledge under the
Taylor test because it does not, inter alia, involve Paniagua, the relevant
subordinate. Id. at 454 (“defendant learned of facts or a pattern of behavior
of inappropriate sexual behavior by a subordinate pointing plainly toward the
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conclusion that the subordinate was sexually abusing the student”) (emphasis
added).
Because Plaintiffs fail to allege sufficient facts to plausibly show
Defendants were subjectively aware of the abuse, we do not reach the second
(deliberate-indifference) or third (constitutional injury) prongs of the three-
prong Taylor test. And, as stated supra, because Plaintiffs fail to allege
violation of a constitutional right, we do not reach the second prong of the
qualified immunity test (whether right clearly established).
C.
In this interlocutory appeal, our panel, including the panel member
only “concurring in the judgment”, grants Appellants qualified immunity
against Plaintiffs’ supervisory-liability claims. Despite “concurring in the
judgment”, however, the concurrence posits that Plaintiffs may still be able
to pursue those claims against Appellants. It states: when this case resumes
in district court, and “in the event [Plaintiffs’ ensuing] discovery” regarding
“their remaining claims” does “lead[] to information that supports [their
supervisory-liability] claims dismissed today, it remains within the discretion
of the district court to allow Plaintiffs to replead—and thereby hold
accountable any official who could have protected these children . . . but
failed to do so” (repleading position).
For starters, the 1977 case cited in support of the repleading position
is far from being applicable. See Griggs v. Hinds Junior Coll., 563 F.2d 179,
180 (5th Cir. 1977) (holding denial of timely motion to amend a dismissed
complaint was abuse of discretion; but, that holding did not concern, inter
alia, qualified immunity or an interlocutory appeal). And, for the following
reasons, the reliance on Federal Rule of Civil Procedure 15(a)(2) at this stage
of the proceedings is yet another example of why the concurrence’s
repleading position is so inappropriate.
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As reflected in this opinion, and as the concurrence concedes by
implication, its repleading position is not at issue in this interlocutory appeal,
because repleading after discovery was not raised by Plaintiffs in this appeal.
E.g., Allen v. United States Postal Serv., 63 F.4th 292, 299 (5th Cir. 2023)
(contentions not presented on appeal are abandoned). As stated in United
States v. Brace, 145 F.3d 247, 255–56 (5th Cir. 1998) (en banc): “It goes
without saying that we are a court of review, not of original error. Restated,
we review only those issues presented to us; we do not craft new issues or
otherwise search for them in the record . . . . It is for the parties, those who
have a stake in the litigation, to decide which issues they want to pursue, at
trial and on appeal.”
Along that line, for this opinion to opine on whether such post-
discovery repleading would, should, or could be allowed, would be to engage
in the very same improper appellate instruction made by the concurrence,
including, at the very least: presenting a prohibited advisory opinion, see U.S.
Bank Tr. Nat’l Ass’n as Tr. of Tiki Series IV Tr. v. Walden, 124 F.4th 314, 323
(5th Cir. 2024) (a court “cannot render an advisory opinion on hypothetical
or abstract facts”) (citation omitted); violating the law of the case, see Tollett
v. City of Kemah, 285 F.3d 357, 363 (5th Cir. 2002) (“[u]nder the law of the
case doctrine, an issue of law or fact decided on appeal may not be
reexamined . . . by the district court on remand”) (citation omitted); and
acting as counsel for Plaintiffs, see Guidry v. Dretke, 429 F.3d 154, 161 (5th
Cir. 2005) (judge’s role is not to “try the case for the parties”) (citation
omitted), see also Coggin v. Longview Ind. Sch. Dist., 337 F.3d 459, 468 n.1 (5th
Cir. 2003) (en banc) (Jones, J., dissenting) (“court need not make the
lawyer’s case”) (citation omitted).
The concurrence’s repleading position flies in the face of the proper
role for appellate judges, as articulated beautifully by Justice (then appellate
judge) Cardozo: “The judge, even when he is free, is still not wholly free.
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He is not to innovate at pleasure. He is not a knight-errant, roaming at will
in pursuit of his own ideal of beauty or of goodness.” Cardozo, The
Nature of the Judicial Process 141 (1921). “In short, it is not for
us to decide which issues should be presented, or to otherwise try the case
for the parties.” Brace, 145 F.3d at 256.
III.
For the foregoing reasons, we VACATE the denial of qualified
immunity to Holly Ferguson and Annamarie Hamrick for Plaintiffs’
supervisory-liability claims under § 1983 and GRANT them qualified
immunity against those claims.
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James C. Ho, Circuit Judge, concurring in the judgment:
A public school official can be liable for sexual abuse suffered by a
student, if the official “learned of facts or a pattern of inappropriate sexual
behavior by a subordinate pointing plainly toward the conclusion that the
subordinate was sexually abusing the student,” and “demonstrated
deliberate indifference toward the constitutional rights of the student by
failing to take action that was obviously necessary to prevent or stop the
abuse.” Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 454 (5th Cir. 1994). To
demonstrate deliberate indifference, “a state actor must know of and
disregard an excessive risk to the victim’s health or safety.” Whitley v.
Hanna, 726 F.3d 631, 641 (5th Cir. 2013) (cleaned up, emphasis added).
As the court today concludes, Plaintiffs did not allege sufficient facts
to establish Defendants’ subjective knowledge. I concur in the judgment.
But in doing so, I make two observations. First, Plaintiffs will of course be
permitted to pursue discovery on their remaining claims—which the court
today leaves undisturbed. Second, in the event that discovery leads to
information that supports the claims dismissed today, it remains within the
discretion of the district court to allow Plaintiffs to replead—and thereby
hold accountable any official who could have protected these children and
kept them out of the hands of a pedophile, but failed to do so. See Fed. R.
Civ. Proc. 15(a)(2); see also, e.g., Griggs v. Hinds Junior Coll., 563 F.2d 179,
180 (5th Cir. 1977).
***
According to the panel majority, the preceding sentence constitutes
an “advisory opinion,” because “repleading after discovery was not raised
by Plaintiffs in this appeal.”
The notion that judges are forbidden from identifying issues that the
parties could have presented—or could someday present—is demonstrably
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wrong. A few examples immediately come to mind. See, e.g., California v.
Texas, 593 U.S. 659, 705 n.9 (2021) (Alito, J., dissenting) (“If the effect of
the Court’s decision is dismissal of this action for lack of Article III
jurisdiction, the States may file a new action.”); see also Gonzales v. Carhart,
550 U.S. 124, 169 (2007) (Thomas, J., concurring) (“I write separately to . .
. note that whether the Partial–Birth Abortion Ban Act of 2003 constitutes a
permissible exercise of Congress’ power under the Commerce Clause is not
before the Court.”); Printz v. United States, 521 U.S. 898, 939 (1997)
(Thomas, J., concurring) (“Perhaps, at some future date, this Court will have
the opportunity to determine whether Justice Story was correct when he
wrote that the right to bear arms ‘has justly been considered, as the palladium
of the liberties of a republic.’”) (discussing theory “not raise[d]” by the
parties). Just recently, the concurring opinion in Neese v. Becerra, _ F.4th _
(5th Cir. 2025), speculated on what impact subsequent legal developments
“may” have on that case—while conceding that it “remains to be seen”—
despite the fact that the parties did not brief those issues, either.
The Federal Rules of Civil Procedure expressly encourage district
courts to “freely give leave” to plaintiffs to amend their pleadings “when
justice so requires.” Fed. R. Civ. Proc. 15(a)(2). There’s nothing
wrong with noting that, under the Rules, a district court on remand may
determine what “justice . . . requires” for the victims of a pedophile.
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