S.R.

Southern District of Texas

ENTERED

December 15, 2025

IN THE UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAURA ROMO, et. al., §

§

Plaintiffs, §

§

v. § Civil Action No. H-25-0508

§

SPRING BRANCH INDEPENDENT §

SCHOOL DISTRICT, ez. ai., §

§

Defendants. §

ORDER

Pending before the Court are Defendant Spring Branch Independent School

District’s Motion to Strike Exhibits to Plaintiffs’ Response to SBISD’s Motion to

Dismiss Plaintiffs First Amended Complaint (Document No. 50); Defendant Spring

Branch Independent School District’s Motion to Dismiss Plaintiffs’ First Amended

Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Document No. 30);

and Defendants Soliant Health, LLC d/b/a Soliant Health’s and Jamila Tressie

Spencer’s Motion to Dismiss Plaintiffs’ First Amended Complaint (Document No.

32). Having considered the motions, submissions, and applicable law, the Court

finds that Defendant Spring Branch Independent School District’s motion to strike

should be granted, the Defendant Spring Branch Independent School District’s

motion to dismiss should be granted in part and denied in part, and that Defendants

Soliant Health, LLC d/b/a Soliant Health’s and Jamila Tressie Spencer’s motion

should be denied.

I. BACKGROUND

This is a matter involving the alleged wrongful death of a child. Plaintiffs .

Laura Romo and Omar Romo (collectively “Plaintiffs”) are the parents of the

deceased “S.R.” The deceased was a child with severe autism and Williams-Beuren

Deletion Syndrome and a student at Stratford High School within Defendant Spring

Branch Independent School District (“SBISD”). On February 6, 2023, S.R., who had

a propensity to chew on objects around him, ingested a rubber glove ultimately

leading to his death on February 8, 2023. At the time of the incident, SBISD had a

contract with Defendant Soliant Health (“Soliant”) whereby Defendant Jamila

Tressie Spencer (“Spencer”), an employee of Soliant, would provide services to S.R.

and other students at Stratford High School.

On the day of the incident, S.R. and his classmates were in the gymnasium

with Spencer who was tasked with supervising the students. S.R. became visibly

distressed but Spencer, who was allegedly on her cellphone at the time, did not

notice. Eventually, S.R. tripped and fell, and only then did Spencer notice that S.R.

was not breathing and had turned blue. EMS was called and dispatched to the scene,

discovering that a rubber glove was lodged in S.R.’s airway. S.R. was then

transported to Texas Children’s Hospital West Campus where he died two days later.

Based on the foregoing, on February 6, 2025, Plaintiffs filed suit in this Court

against SBISD asserting claims under: (1) Section 504 of the Rehabilitation Act of

1973; (2) the Americans with Disabilities Act; (3) the Fourteenth Amendment of the

Constitution; (4) the Fourth Amendment of the Constitution; and (5) the doctrine of

Respondeat Superior.‘ Plaintiffs also assert claims against Soliant and Spencer for:

(1) negligence; (2) gross negligence; and (3) wrongful death.* On June 17, 2025,

SBISD filed a motion to dismiss for failure to state a claim upon which relief can be

granted. On June 23, 2025, Soliant and Spencer filed a motion to dismiss for failure

to state a claim upon which relief can be granted. On July 25, 2025, Plaintiffs

responded to SBISD’s motion to dismiss. On July 31, Plaintiffs responded to Soliant

and Spencer’s motion to Dismiss. On August 7, 2025, SBISD replied to Plaintiffs’

response. On August 18, Soliant and Spencer replied to Plaintiffs’ response.

Ul. STANDARD OF REVIEW

Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). Under Rule 8(a)(2), a pleading must

contain “a short and plain statement of the claim showing that the pleader is entitled

to relief.” Fed. R. Civ. P. 8(a)(2). Although “the pleading standard Rule 8 announces

! See Plaintiffs’ Amended Complaint, Document No. 29 at 20-23.

* See Plaintiffs’ Amended Complaint, Document No. 29 at 23-26.

does not require ‘detailed factual allegations,’ . . . it demands more than . . . ‘labels

and conclusions.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ail.

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[A] formulaic recitation of the

elements of a cause of action will not do.” Id. (quoting Twombly, 550 U.S. at 555).

In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, “[t]he

‘court accepts all well-pleaded facts as true, viewing them in the light most favorable

to the plaintiff.” In re Katrina Canal Breeches Litig., 495 F.3d 191, 205 (5™ Cir.

2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464,

467 (5" Cir. 2004)). To survive the motion, a plaintiff must plead “enough facts to

state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

“Conversely, ‘when the allegations in a complaint, however true, could not raise a

claim of entitlement to relief, this basic deficiency should . . . be exposed at the point

of minimum expenditure of time and money by the parties and the court.’” Cuvillier

v. Taylor, 503 F.3d 397, 401 (5" Cir. 2007) (quoting Twombly, 550 U.S. at 558).

Il. LAW & ANALYSIS

The Court will consider, in turn: (A) Defendant SBISD’s Motion to Strike;

(B) Defendant SBISD’s Motion to Dismiss; and (C) Spencer and Soliant Health’s

Motion to Dismiss.

A. Defendant SBISD’s Motion to Strike (Document No. 50)

SBISD moves to strike the exhibits Plaintiffs’ attached to their response to

SBISD’s motion to dismiss, contending that the exhibits “are plainly improper under

Rule 12(b)(6).”? In response, Plaintiffs’ contend that the Court should take judicial

notice of the exhibits and that the exhibits in question were already noted in their

Amended Complaint.

Federal Rule of Civil Rule 12(f) states, in relevant part, that “[t]he court may

strike from a pleading an insufficient defense or any redundant, immaterial,

impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). In reviewing a motion to

dismiss, the Court is generally limited to the Complaint and the motion itself. See

Collins v. Morgan Stanley Dean Witter, 244 F.3d 496, 498 (Sth Cir. 2000).

A review of the record in this matter reveals that the exhibits in question were

attached, for the first time, to the Plaintiffs’ response to SBISD’s motion to dismiss.°

Based on the foregoing, the language of Federal Rule of Civil Procedure 12(f), and

the clear guidance of the Fifth Circuit that the Court should limit its review of a

3 Defendant Spring Branch Independent School District’s Motion to Strike Exhibits

to Plaintiffs’ Response to SBISD’s Motion to Dismiss Plaintiff's First Amended Complaint,

Document No. 50 at 4.

4 Plaintiffs Response to Spring Branch Independent School District’s Motion to

Strike Exhibits, Document No. 6] at 4—5.

> See Plaintiffs’ Response to the School District’s Motion to Dismiss Plaintiffs’ First

Amended Complaint, Document No. 42, Exhibit A, Exhibit B, Exhibit C.

motion to dismiss to the Complaint and motion, the Court finds that Plaintiffs’

exhibits should be struck. As such, the Court finds that SBISD’s motion to strike

should be granted. The Court will now consider Defendants’ motions to dismiss and

will disregard the exhibits included in Plaintiffs’ response to SBISD’s motion to

dismiss. .

B. Defendant SBISD’s Motion to Dismiss (Document No. 30)

SBISD moves to dismiss all of Plaintiffs’ claims, contending Plaintiffs failed

to sufficiently plead said claims. Plaintiffs contend that the pleading of each claim

is sufficient to satisfy the requirements under Rule 8(a)(2). The Court will consider,

in turn, each claim that SBISD contends should be dismissed.

1. Fourth Amendment Claim

Plaintiffs allege that SBISD violated S.R.’s Fourth Amendment right to “be

free from unreasonable and unnecessary seclusion[.]”®© SBISD contends that

Plaintiffs failed to provide any facts suggesting that S.R.’s seclusion was

unreasonable. In response, Plaintiffs contend that SBISD did not address certain

aspects of the Fourth Amendment Claim and has consequentially waived it.

Furthermore, Plaintiffs contend that, given the facts alleged in their Amended

6 Plaintiffs’ Amended Complaint, Document 29 at 13.

Complaint, their Fourth Amendment claim is plausible and thus should not be

dismissed.

The Fourth Amendment protects the “right of the people to be secure in their

persons, houses, papers and effects, against unreasonable searches and seizures.”

Terry v. Ohio, 392 U.S. 1, 8 (1868). It is long established that the Fourth Amendment

applies in schools, at least to the extent that the rights it protects are appropriate for

the students. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995). In

evaluating claims brought under the Fourth Amendment, the central question for a

court’s consideration is whether a government seizure is reasonable under the

circumstances. See Milligan v. City of Slidell, 226 F.3d 652, 654 (5" Cir. 2000). In

determining reasonableness, “courts balance the governmental interest against the

invasion which the search or seizure entails.” Milligan, 226 F.3d at 654 (citing Terry,

392 U.S. at 19). When determining if a school’s seizure is reasonable, “custodial and

tutelary reasonability for children” must be considered. Vernonia Sch. Dist., 515

U.S. at 656. Lastly, the scope of search or seizure must be proportional to the

justification for restraint. See Littell v. Houston Indep. Sch. Dist., 894 F.3d 616, 620

(2018) (relating to reasonableness for a search under the Fourth Amendment).

Here, the Court has reviewed Plaintiffs’ complaint in detail. In doing so, the

Court considered the language of Plaintiffs’ Fourth Amendment claim, which states

that “S.R. had a right, while alive to be free from unreasonable and unnecessary

seclusion, which violated his rights pursuant to the 4th Amendment to the United

States Constitution.”’” SBISD contends that Plaintiffs have not offered facts to

suggest that the placement of S.R. in a self-contained classroom was unreasonable.

SBISD further contends that the confinement of S.R. in a portion of his classroom

was an attempt to keep him safe and was not a departure from accepted professional

standards. Lastly, SBISD contends that S.R. being is a self-contained classroom was

in accordance with S.R.’s individualized education program (“IEP”), which the

Plaintiffs agreed to.’ In response, Plaintiffs concede that S.R’s placement in a self-

contained classroom was reasonable, but contend that the methods of seclusion used

by SBISD were unreasonable.’ Plaintiffs allege that S.R. was kept in a small area of

the room, was surrounded by bookshelves, and was separated from the rest of his

class.

A review of the record in this matter reveals that S.R.’s IEP specifically

allowed S.R.’s placement in a self-contained classroom and that Plaintiffs agreed to

S.R.’s IEP. Thus, given the Fifth Circuit’s guidance on determining reasonableness,

1 Plaintiffs’ Amended Petition, Document 29 at 21.

8 See Defendant Spring Branch Independent School District’s Motion to Dismiss

Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6),

Document No. 30 at 14.

Plaintiffs’ Response to the School District’s Motion to Dismiss Plaintiffs’ First

Amended Complaint, Document No. 42 at 29.

the Court finds that Plaintiffs have failed to plead facts showing that the methods of

seclusion were unreasonable given the school’s interest in keeping S.R. safe and

complying with his IEP. Accordingly, the Court finds that Plaintiffs’ Fourth

Amendment claim should be dismissed. The Court will now address Plaintiffs’

claims under the Fourteenth Amendment.

2. Fourteenth Amendment Claims

Plaintiffs allege three claims against HISD under the Fourteenth Amendment

related to policy and practices, due process, and equal protection. The Fourteenth

Amendment states, in relevant part, that “[n]o State shall... deprive any person of

life, liberty, or property without due process of law; nor deny any person within its

jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV. Given the

intertwined facts and law relevant to Plaintiffs’ policy and practices and due process

claim, the court will consider them together.

i. “Policy and Practices” and “Due Process’!®

Plaintiffs allege that the SBISD School Board “had an actual policy, practice,

and custom of conscious and deliberate indifference to federal and state law” and

that the indifference was a “moving force in the injuries.”"! Plaintiffs further allege

that SBISD failed to supervise and train staff, leading to the violation of S.R.’s rights.

In response, SBISD contends that Plaintiffs’ fourteenth amendment policy and

practices claim must be dismissed because Plaintiffs “fail to and cannot plead the

elements of municipal liability under Section 1983.”!” In response, Plaintiffs contend

that their claims under the Fourteenth Amendment are plausible.'°

Under 42 U.S.C. § 1983, a municipality may be liable if execution of the

government’s policy results in constitutional violations. See Monell v. Dept. of Soc.

10 Plaintiffs’ Amended Complaint, Document No. 29 at 21. The Court notes that

Plaintiffs bring separate claims for “Policy and Practice” and “Due Process Claims.” A

review of Plaintiffs’ claims reveal that they are essentially Monell liability claims. As such,

the Court will construe Plaintiffs’ “Policy and Practice” and “Due Process Claims” as a

Monell liability claim and consider Plaintiffs’ policy and lack of training allegations

separately. Furthermore, to the extent that Plaintiffs intend to bring claims against SBISD

under the theory of respondeat superior, they too will be construed as Monell liability

claims by this Court.

'! Plaintiffs’ Amended Complaint, Document No. 29 at 21.

2 Defendant Spring Branch Independent School District’s Motion to Dismiss

Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b) □□□□

Document No. 30 at 14.

13 Plaintiffs’ Response to the School District’s Motion to Dismiss Plaintiffs’ First

Amended Complaint, Document No. 42 at 32.

10

Servs., 436 U.S. 658, 694 (1978); see also 42 U.S.C. § 1983. To succeed on a claim

for municipal liability, a plaintiff must prove “a policymaker; an official policy; and

a violation of constitutional rights whose ‘moving force’ is the policy of custom.”

Piotrowski v. City of Houston, 237 F.3d 567, 578 (Sth Cir. 2001). To show an

“official policy” a plaintiff must show “[a] policy . . . officially adopted ... by an

official” or “a persistent, widespread practice . . . [that is] so common and well settled

as to constitute a custom.” Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304 (Sth

Cir. 1995). To show a custom, a pattern must be “so common and well-settled as to

constitute a custom that fairly represents municipal policy.” Peterson v. City of Fort

Worth, Tex., 237 F.3d 567, 579 (5th Cir. 2009). A failure to train can be thought of

as a policy only “where [the failure] reflects a ‘deliberate’ or ‘conscious’ choice by

the municipality[.]” Canton v. Harris, 489 U.S. 378, 379 (1989). Most pertinent

here, “[if] the need for more or different training is so obvious, and the inadequacy

so likely to result in the violation of constitutional rights, [then] the policymakers . .

. can reasonably be said to have been deliberately indifferent to the need.” Jd. at 390.

Here, Plaintiffs allege that SBISD “failed to have a policy on how to keep and

secure cleaning materials like safety gloves.”' Plaintiffs further allege that SBISD

\4 Plaintiffs’ Amended Complaint, Document No. 29 at 2.

11

“failed to enact a Policy & Procedure to address medical emergencies[.]”!> Plaintiffs

further allege that SBISD “failed to sufficiently supervise staff regarding addressing

the needs of children . . . especially a student with a disability like $.R.”! Plaintiffs

rely on the Supreme Court’s holding in Canton, and argue that SBISD’s deliberate

indifference is shown by the fact that the risk of constitutional violations was

obvious.!” Lastly, Plaintiffs contend that SBISD does not address the “failure to have

a choking policy & procedure in place [claim]” in their motion to dismiss, and thus

it is waived.!®

In response, SBISD contends that Plaintiffs’ policy and practices claim fails

because Plaintiffs fail to allege a custom of improper treatment of choking victims

or of improper storage of gloves.!? SBISD further contends that Plaintiffs “make

'5 Plaintiffs’ Amended Complaint, Document No. 29 at 2.

'6 Plaintiffs’ Amended Complaint, Document No. 29 at 21. □

'7 See Plaintiffs’ Response to the School District’s Motion to Dismiss Plaintiffs’

First Amended Complaint, Document No. 42 at 35 (citing Canton v. Harris, 489 U.S. 378,

379 (1989)).

'8 Plaintiffs’ Response to the School District’s Motion to Dismiss Plaintiffs’ First

Amended Complaint, Document No. 42 at 34. A review of the record in this matter reveals

that SBISD does address Plaintiffs allegation “that SBISD’s Board failed to develop

policies or procedures on: (1) how to address choking victims[.]” Regardless, the contend

of SBISD’s motion to dismiss does not excuse Plaintiffs from the pleading requirements

under Federal Rule of Civil Procedure Rule 8(a)(2).

19 See Defendant Spring Branch Independent School District’s Motion to Dismiss

Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6),

Document No. 30 at 18.

12

conclusory allegations [and] . . . do not plead the existence of any similar

incidents[.]”*? SBISD further contends that Plaintiffs have failed to show that

SBISD was deliberately indifferent in any failure to train that may have existed.”!

A review of the record reveals that Plaintiffs fail to plead sufficient facts to

suggest either a custom of improper treatment of choking victims or of any deliberate

indifference on behalf of SBISD. Plaintiffs’ pleadings allege only that a previous

individualized examination of S.R. conducted by SBISD included notes of S.R.

being a choking hazard, a previous incident where S.R. swallowed a paper clip, and

“multiple incidents involving the ingestion of foreign objects.”*? However, the

Plaintiffs plead no similar instances, including the aforementioned incidents, where

S.R., or any other student, was improperly treated for choking. Furthermore, a

review of the record in this matter reveals that Plaintiffs do not plead similar events

where SBISD failed to secure cleaning materials.

Given the Fifth Circuit and Supreme Court’s clear guidance that establishing

a custom or deliberate indifference requires pleading facts that suggest either a

20 Defendant Spring Branch Independent School District’s Motion to Dismiss

Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6),

Document No. 30 at 18.

1 Defendant Spring Branch Independent School District’s Motion to Dismiss

Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6),

Document No. 30 at 20.

2 See Plaintiffs’ Amended Complaint, Document No. 29 at 13-14.

13

pattern of behavior or an obvious need for change of training, the Court finds that

Plaintiffs have failed to show that SBISD was deliberately indifferent to any choice

with respect to training or that any well-settled custom existed. Based on the

foregoing, the Court finds that Plaintiffs’ Fourteenth Amendment claim, with respect

to policy, practice, training, and supervision, should be dismissed. The Court will

now consider Plaintiffs’ Fourteenth Amendment claim under equal protection.

ii. Equal Protection

Plaintiffs allege that SBISD’s actions violated “Equal Protection of the

Fourteenth Amendment of the Constitution of the United States[.]”*? SBISD

contends that Plaintiffs’ equal protection claim should be dismissed because it fails

as a matter of law.

The Equal Protection Clause of the Fourteenth Amendment commands that

persons similarly circumstanced shall be treated alike.’” Plyler v. Doe, 457 U.S.

202, 216 (1982) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415

(1920)). A plaintiff can bring an equal protection claim as a class of one by alleging

that they have “been intentionally treated differently from other similarly situated

and that there is no rational basis for the difference in treatment.” Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citing Sioux City Bridge Co. v.

3 Plaintiffs’ Amended Complaint, Document No. 29 at 22.

14

Dakota County, 260 U.S. 441 (1923)). Furthermore, a plaintiff must allege that the

unequal treatment “stemmed from a discriminatory intent.” Taylor v. Johnson, 257

F.3d 470, 473 (Sth Cir. 2001).

Here, Plaintiffs allege that “[t]he failures by SB ISD School Board were a

moving force in violating the rights of S.R., as a class of one[.]** SBISD contends

that Plaintiffs claim as a “class of one” must fail because they fail to allege “any

facts that show S.R. was treated differently from similarly situated individuals or

that unequal treatment of S.R. stemmed from discriminatory intent.””° SBISD further

contends that “Plaintiffs have not plead any facts to support a cause of action under

the equal protection clause of the Fourteenth Amendment apart from referencing the

clause itself.”*° In response, Plaintiffs allege that S.R. was “confined” and that “there

is no rational basis for such mistreatment.”?”

4 Amended Complaint, Document No. 29 at 29.

25 Defendant Spring Branch Independent School District’s Motion to Dismiss

Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6),

Document No. 30 at 15.

26 Defendant Spring Branch Independent School District’s Motion to Dismiss

Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6),

Document No. 30 at 15 n. 2.

27 Plaintiffs’ Response to the School District’s Motion to Dismiss Plaintiffs’ First

Amended Complaint, Document No. 42 at 31.

15

A review of the record in this matter reveals that Plaintiffs fail to plead

sufficient facts suggesting that S.R. was treated differently from similarly situated

individuals without any rational basis or with discriminatory intent. On the contrary,

“S.R. was educated in what is termed a Self-contained Classroom with other students

who also had significant disabling conditions.””® Based on the foregoing, and the

Supreme Court and Fifth Circuit’s clear guidance that an equal protection claim

requires the Plaintiff plead discriminatory intend and no rational basis for difference

in treatment, the Court finds that Plaintiff has failed to sufficiently plead their claim

under the Equal Protection Clause. As such, this claim should be dismissed. The

Court will now consider Plaintiffs’ claims under Section 504 of the Rehabilitation

Act of 1973 (“Section 504”) and the Americans with Disabilities Act (“ADA”).””

3. Section 504 and ADA Claims

Plaintiffs allege that SBISD violated Section 504 and brings claims for: (i)

professional bad faith or gross misjudgment; (ii) failure to keep safe; (iii) disparate

8 Plaintiffs’ Amended Complaint, Document No. 29 at 12.

29 Given the similarities between Section 504 and the ADA,,.the Court will consider

Plaintiffs’ claims under both acts simultaneously. See Smith v. Harris County, Tex., 956

F.3d 311, 317 (Sth Cir. 2020) ([t]he close relationship between Section 504 of the

Rehabilitation Act and Title II of the ADA means that precedents interpreting either law

generally apply to both”); see also Hainze v. Richards, 207 F.3d 795, 799 (Sth Cir. 2000)

(“[jjurisprudence interpreting either section [Section 504 and the ADA] is applicable to

both”).

16

treatment; and (iv) failure to accommodate.*? In addition, Plaintiffs allege that S.R.

was “a victim of discrimination based upon his disability . . . [and thus,] has a

plausible claim pursuant to the Americans with Disabilities Act, 42 U.S.C. §

12131[.]’3! SBISD contends that these claims must be dismissed because Plaintiffs

“fail to plead facts supporting any of the elements[.]’%”

“(T]he basic purpose of § 504. . . is to ensure that handicapped individuals

are not denied jobs or other benefits because of the prejudiced attitudes or the

ignorance of others.” School Bd. Of Nassau County, Fla. v. Arline, 480 U.S. 273,

284 (1987). Comparably, the ADA states, in relevant part, that “[n]o qualified

individual with a disability shall, by reason of such disability, be excluded from

participation in or be denied benefits of the services, programs, or actives of a public

entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132. The

Court will consider, in turn, each of Plaintiffs’ claims under Section 504 and the

ADA.

30 Plaintiffs’ Amended Complaint, Document No. 29 at 23.

31 Plaintiffs’ Amended Complaint, Document No. 29 at 22-23.

32 Defendant Spring Branch Independent School District's Motion to Dismiss

Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6),

Document No. 30 at 6.

17

i. Professional Bad Faith or Gross Misjudgment

Plaintiffs allege that “the School District demonstrated professional bad faith

or gross misjudgment and/or mismanagement of S.R.’s educational plan[.]”?? SBISD

contends that “Plaintiffs reference to ‘bad faith or gross mismanagement’ is

outdated, irrelevant, and does not constitute the assertion of any viable claim.”*4 In

response to SBISD’s motion to dismiss, Plaintiffs concede that their “use of the

phrase ‘Professional Bad Faith Or Gross Misjudgment” is outdated and incorrect.”

Based on the foregoing, the Court finds that Plaintiffs’ claim for Professional Bad

Faith or Gross Misconduct should be dismissed because a claim described as such

33 Plaintiffs’ Amended Complaint, Document No. 29 at 22.

34 Defendant Spring Branch Independent School District’s Motion to Dismiss

Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6),

Document No. 30 at 8.

35 Plaintiffs’ Response to the School District’s Motion to Dismiss Plaintiffs’ First

Amended Complaint, Document No. 42 at 39.

18

does not exist under neither Section 504 nor the ADA.*° The Court will now consider

Plaintiffs’ Section 504 and ADA claim for failure to keep safe.

ii. Failure to Keep Safe

Plaintiffs allege that “the School District [SBISD] failed to provide S.R. a safe

and non-hostile educational environment, and as such he is a victim of

discrimination based upon disability.°” SBISD contends that Plaintiffs claim for

“failure to keep safe” is not sufficiently pled and must be dismissed.*®

The Fifth Circuit has recognized a five-part test that must be met to impose

liability for disability-based harassment. See Estate of Lance v. Lewisville

Independent School Dist., 743 F.3d 982, 997 (Sth Cir. 2014) (applying the Supreme

Court’s test outlined in Davis to Section 504 claims); Davis v. Monroe County Board

of Educ., 526 U.S. 629 (1999). The aforementioned test requires a plaintiff show

36 In response to SBISD’s motion to dismiss, Plaintiffs allege that, despite the fact

that their claim for “Professional Bad Faith or Gross Misjudgment” is incorrect, their

Failure to Provide a Free Appropriate Public Education (“FAPE”) claim survives. See

Plaintiffs’ Response to the School District’s Motion to Dismiss Plaintiffs’ First Amended

Complaint, Document No. 42 at 39. The Court has reviewed Plaintiffs’ Amended

Complaint in detail and, even construing Plaintiffs’ Amended Complaint liberally, the

Court is unable to construe Plaintiffs’ general reference to FAPE and the Individuals with

Disabilities Education Act (“IDEA”) as a claim against SBISD. As such, to the extent

Plaintiffs intend to bring a claim under IDEA or FAPE, the Court finds it should be

dismissed.

37 Plaintiffs’ Amended Complaint, Document No. 29 at 22.

38 Defendant Spring Branch Independent School District’s Motion to Dismiss

Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b) □□□□

Document No. 30 at 12.

19

that: (1) they are an individual with a disability; (2) they were harassed based on

their disability; (3) “the harassment was sufficiently severe or pervasive;” (4) the

defendant “knew about the harassment;” and (5) that the defendant “was deliberately

indifferent to the harassment.” Estate of Lance, 743 F.3d at 997.

Here, SBISD contends that Plaintiffs’ “failure to keeps safe” claim must be

dismissed because “[flailure to property store, use, or dispose of rubber gloves does

not constitute discrimination under the ADA or Section 504 because Plaintiffs have

not pled that the failure was due to intentional discrimination.or that the District was

deliberately indifferent.’ In response, Plaintiffs’ contend that their “failure to keep

safe claim” requires a showing that “the environment was unsafe” and that “[i]t is

uncontroverted that the environment for S.R. was unsafe.’””° Plaintiffs rely on their □

understanding of the elements required “to sustain an unsafe educational

environment claim” which requires, in relevant part, a showing of an unsafe

environment.*! Plaintiffs appear to rely on the holdings of Doe and Lance to

construct their understanding of what is required in pleading their claim. However,

39 Defendant Spring Branch Independent School District’s Motion to Dismiss

Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6),

Document No. 30 at 11.

© Plaintiffs’ Response to the School District’s Motion to Dismiss Plaintiffs’ First

Amended Complaint, Document No. 42 at 41.

‘l Plaintiffs’ Response to the School District’s Motion to Dismiss Plaintiffs’ First

Amended Complaint, Document No. 42 at 41.

20

a review of the cases upon which Plaintiffs construct their understanding reveals that

a claim for “failure to keep safe” requires a showing of “harassment based on

disability[,]” rather than a simple showing of an unsafe environment.”

Based on the foregoing, and the Fifth Circuit’s clear guidance that a “failure

to keep safe” claim requires a showing of harassment, the Court finds that Plaintiff

has failed to plead any facts that suggest S.R. was harassed because of his disability,

and that, as such, Plaintiffs’ claim for “failure to keep safe” should be dismissed for

failure to state a claim.*? The Court will now consider Plaintiffs’ Section 504 and

ADA claims for disparate treatment.

iii. Disparate Treatment

Plaintiffs allege that the facts “support a plausible ‘Disparate Treatment

Claim’ also pursuant to the Rehabilitation Act.”“* SBISD contends that Plaintiffs’

” See Plaintiffs’ Response to the School District’s Motion to Dismiss Plaintiffs’

First Amended Complaint, Document No. 42 at 41(citing Doe v. Texas A&M Univ., 634

F.Supp.3d 365, 383 (S.D. Tex. Oct. 6, 2022)) (finding that “the Fifth Circuit states that to

plead a claim for hostile educational environment a plaintiff must allege that . . . [she] was

harassed based on [her] disability) (citing Estate of Lance v. Lewisville Independent School

Dist., 743 F.3d 982, 997 (Sth Cir. 2014)).

3 See Plaintiffs’ Amended Complaint, Document No. 29. Plaintiffs fail to mention

any events of harassment outside of S.R.’s seclusion in his classroom. Given the fact that

seclusion was an attempt to keep him safe, the Court declines to construe this seclusion as

harassment.

“4 Plaintiffs’ Amended Complaint, Document No. 29 at 23.

21

disparate treatment claim must be dismissed because it fails to state a claim upon

which relief can be granted.

Disparate treatment occurs when “[t]he employer treats some people less

favorably than others because of their race, color, religion, sex, or [other protected

characteristics].” Teamsters v. United States, 431 U.S. 324, 335, n. 15 (1977).

“Liability in a disparate-treatment case ‘depends on whether the protected trait .. .

actually motivated the employer’s decision’” Raytheon Co. v. Hernandez, 540 U.S.

44, 52 (2003) (citation omitted).

Here, SBISD contends that “[b]ecause Plaintiffs fail to plead a ‘disparate

treatment’ claim for intentional discrimination, their Section 504 and ADA disparate

treatment claims against SBISD must be dismissed.”4° SBISD reasons that

“treatment of a disabled student may be different from a non-disabled student but

that doesn’t make it discriminatory.’”*° In response, Plaintiffs contend that their claim

is sufficiently pled because they provide that S.R. was “excluded from being

educated in the classroom as were his peers, and rather was segregated in a corner

4S Defendant Spring Branch Independent School District’s Motion to Dismiss

Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6),

Document No. 30 at 12.

46 Defendant Spring Branch Independent School District’s Motion to Dismiss

Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6),

Document No. 30 at 12. See also J.W. v. Paley, 81 F.4th 440, 451 (Sth Cir. 2023) (“if

different were always discriminatory, then even disability accommodations would be

discriminatory”).

22

of the room because of his disabilities.’“7 A review of the record reveals that

Plaintiffs’ own pleadings concede that S.R.’s seclusion was “one way the District

tried to keep [S.R.] safe[.]”"®

Based on the foregoing, and the Supreme Court’s clear guidance that the

protected trait must be the motivation behind the discrimination, the Court finds that

Plaintiffs’ claim for disparate treatment should be dismissed for failure to state a

claim as the record clearly reveals, per Plaintiffs’ own statement, that S.R.’s safety

was the motivation behind his seclusion, not his disability. The Court will now

consider Plaintiffs’ Section 504 and ADA claims for failure to accommodate.

iv. Failure to Accommodate

Plaintiffs allege that the facts “support a plausible ‘failure to accommodate’

claim pursuant to the Rehabilitation Act[.]’“? SBISD contends that Plaintiffs’ failure

to accommodate claim must be dismissed because Plaintiffs fail to state a claim upon

which relief can be granted.

“To succeed on a failure-to-accommodate claim, a plaintiff must prove: (1) he

is a qualified individual with a disability; (2) the disability and its consequential

47 See Plaintiffs’ Response to the School District’s Motion to Dismiss Plaintiffs’

First Amended Complaint, Document No. 42 at 42.

48 See Plaintiffs’ Amended Complaint, Document No. 29 at 16.

9 Plaintiffs’ Amended Complaint, Document No. 29 at 23.

23

limitations were known by the covered entity; and (3) the entity failed to make

reasonable accommodations.” Smith v. Harris Cnty., 956 F.3d 311, 317 (Sth Cir.

2020) (quotation omitted). Generally, “[iJt is the plaintiff's burden to request

reasonable accommodations.” Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315 (Sth

Cir. 2007). However, a plaintiff can succeed on a failure to accommodate claim even

when they did not request an accommodation if it is shown that the necessary

accommodations were “open, obvious, and apparent.” Smith v. Harris County, Tex.,

956 F.3d 311, 318 (Sth Cir. 2020).

Here, SBISD contends that Plaintiffs’ failure to accommodate claim must be

dismissed because they “do not and cannot identify any accommodations they

requested from the District or that the District refused any such accommodations.”*°

In response, Plaintiffs contend that “there was no need for the family to ask for any

specific accommodations.”*! A review of the record in this matter, including the

allegations in Plaintiffs’ Complaint, reveals that Plaintiffs pled sufficient facts to

suggest that S.R.’s need for specific accommodations were open and obvious.”

50 Defendant Spring Branch Independent School District’s Motion to Dismiss

Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6),

Document No. 30 at 9.

>! Plaintiffs’ Response to the School District’s Motion to Dismiss Plaintiffs’ First

Amended Complaint, Document No. 42 at 49.

2 See Plaintiffs’ Amended Complaint, Document No. 29 at 13.

24

Based on the foregoing, and given the Fifth Circuit’s clear guidance that a plaintiff

need not request the accommodations when the need is open and obvious, the Court

finds that SBISD’s motion to dismiss Plaintiffs’ failure to accommodate claim

should be denied.*? The Court will now consider Defendants Jamila Tressie Spencer

and Soliant Health, LLC d/b/a Soliant Health’s Motion to Dismiss.

C. Spencer and Soliant Health’s Motion to Dismiss (Document No. 32)

Spencer and Soliant Health move to dismiss all of Plaintiffs’ claims

contending that Plaintiffs have failed to state a claim upon which relief can be

granted. Plaintiffs contend that their claims are sufficiently pled and, as such, that

Spencer and Soliant Health’s motion should be denied. The Court will consider

Spencer and Soliant Health’s Motion to Dismiss, in turn, Plaintiffs’ claims against

Spencer and Soliant Health.

1. Plaintiffs’ Claims Against Spencer

Plaintiffs allege that Spencer’s negligence and gross negligence caused S.R.’s

death. As such, Plaintiffs seek damages under Chapter 71 of the Texas Civil Practice

and Remedies Code pursuant to a wrongful death and survival action. Spencer

contends that Plaintiffs’ claims should be dismissed because Spencer: (1) has

25

statutory immunity; (2) owed no “duty to render life-saving medical aid;” and (3)

because her “alleged inaction was not the proximate cause of S.R.’s death.”*4

When exercising jurisdiction over a question based upon state law, federal

courts should apply the substantive law of that state. Crisalli v. ARX Holding Corp.,

177 F. App’x 417, 419 (Sth Cir. 2006) (citing Erie R.R. Co. v. Tompkins, 304 U.S.

64, 72 (1938)). Tort law is a matter of state law. See Erie R.R. Co. v. Tompkins, 304

U.S. 64, 87 (1938). To allege a negligence action under Texas law, a Plaintiff must

allege sufficient facts to show “a legal duty owed by one person to another, a breach

of that duty, and damages proximately caused by the breach.” Nabors Drilling, USA,

Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009); Lane v. Halliburton, 529 F.3d 548,

565 (5th Cir. 2008) (applying Texas State law). To succeed on a gross negligence

claim, a plaintiff must show that “1) when viewed objectively . . . the act or omission

involved an extreme degree of risk . . . and 2) the defendant had actual, subjective

awareness of the risk involved[.]” U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118,

137 (Tex. 2012).

Most pertinent here, the Texas Education Code provides, in relevant part, that

“Ta] 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 employee’s position of

Defendants’ Motion to Dismiss Plaintiff's First Amended Complaint, Document

No. 32 at 12-16.

26

employment and that involves the exercise of judgment or discretion[.]” TEX. EDUC.

CODE § 22.051(a). Generally, a discretionary act is an act that requires personal

deliberation and an act where the law does not specify the action. See Finlan v.

Dallas Indep. Sch. Dist., 90 S.W.3d 395, 409 (Tex. App.—Dallas 2002, pet. denied).

Here, Spencer contends that Plaintiffs’ negligence and gross negligence

claims must be dismissed because she is entitled to immunity, owed no duty to save

S.R.’s life, and was not the proximate cause of S.R.’s death. In response, Plaintiffs

contend that Spencer is not entitled to immunity, that she did owe S.R. a duty, and

that she was a proximate cause of S.R.’s death. With respect to Spencer’s immunity,

Plaintiffs contend that Spencer was not a professional employee and that the act, or

omission of acts, was not discretionary as required by the Texas Education Code §

22.051. Plaintiffs further contend that “[t]hese duties [to supervise S.R.] were not

complex, clinical, instructional, or discretionary in nature, they were routine, basic

supervisory tasks.”°° Lastly, Plaintiffs contend that “[Spencer] was obligated to

follow the IEP, which specified the need for constant supervision due to S.R.’s risk

3 Plaintiffs’ Response to Soliant Health, LLC D/B/A Soliant Health and Jamila

Tressie Spencer’s Motion to Dismiss Plaintiffs’ First Amended Complaint, Document No.

46 at 6.

6 Plaintiffs’ Response to Soliant Health, LLC D/B/A Soliant Health and Jamila

Tressie Spencer’s Motion to Dismiss Plaintiffs’ First Amended Complaint, Document No.

46 at 15.

27

of choking ... remov[ing] discretion from the equation.”*’ A review of the record in

this matter clearly reveals that S.R. had an IEP requiring supervision. Based on the

foregoing, and the Texas Education Code’s clear requirement ‘that an act for which

immunity applies must be discretionary, the Court finds that it was not within

Spencer’s discretion to supervise S.R. and that, as such, immunity does not apply.

Plaintiffs contend that even if Spencer’s acts involved the exercise of

discretion, she is not entitled to immunity because she is not a professional employee

as defined by the Texas Education Code.°® Spencer conclusively states that she is a

professional employee as defined by the Texas Education Code.*? The Texas

Education Code defines “professional employee of a school district” as: “(1) a

superintendent, principal, teacher, including a substitute teacher, supervisor, social

worker, school counsel, nurse, and teacher’s aide employed by a school district; (2)

a teach employed by a company that contract with a school district to provide the

teacher’s services to the district; .. . and (6) any other person employed by a school

°7 Plaintiffs’ Response to Soliant Health, LLC D/B/A Soliant Health and Jamila

Tressie Spencer’s Motion to Dismiss Plaintiffs’ First Amended Complaint, Document No.

46 at 15.

8 Plaintiffs’ Response to Soliant Health, LLC D/B/A Soliant Health and Jamila

Tressie Spencer’s Motion to Dismiss Plaintiffs’ First Amended Complaint, Document No.

46 at 8.

59 Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint, Document

No. 32 at 13.

28

district whose employment requires certification and the exercise of discretion.”

TEX. EDUC. CODE § 22.051(a).

Here, Spencer conclusively contends that she is entitled to immunity under

22.051(a)(2) and 22.051(a)(6).°° Plaintiffs contend that Spencer does not fall under

either 22.051(a)(2) or 22.051(a)(6).°! Plaintiffs argue that Spencer is not a “teacher”

and that, as such, 22.051(a)(2) is inapplicable. In support of their argument,

Plaintiffs contrast 22.051(a)(2), which includes only the term teacher, with the

language of 22.051(a)(1) which includes the terms teachers, aids, nurses, and

others.® Plaintiffs contend that this difference clearly shows that “assistant speech

pathologists who [do not] hold a teaching certificate” are not intended to be included

under 22.051(a)(2). Furthermore, Plaintiffs contend that Spencer cannot be

6° Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint, Document

No. 32 at 13.

6! Plaintiffs’ Response to Soliant Health, LLC D/B/A Soliant Health and Jamila

Tressie Spencer’s Motion to Dismiss Plaintiffs’ First Amended Complaint, Document No.

46 at 8.

6 Plaintiffs’ Response to Soliant Health, LLC D/B/A Soliant Health and Jamila .

Tressie Spencer’s Motion to Dismiss Plaintiffs’ First Amended Complaint, Document No.

46 at 8-9.

63 Plaintiffs’ Response to Soliant Health, LLC D/B/A Soliant Health and Jamila

Tressie Spencer’s Motion to Dismiss Plaintiffs’ First Amended Complaint, Document No.

46 at 9. See TEX. EDUC. CODE § 22.05 1(a).

64 Plaintiffs’ Response to Soliant Health, LLC D/B/A Soliant Health and Jamila

Tressie Spencer’s Motion to Dismiss Plaintiffs’ First Amended Complaint, Document No.

46 at 8-9.

29

included under 22.051(a)(1) or 22.051(a)(6) because she is ‘not “employed by a

school district[,]” but rather “by Soliant[.]”©

Considering the clear text of the Texas Education Code, the Court finds

Plaintiffs’ interpretation of § 22.051 more persuasive than Spencer’s conclusory

contention. Based on the foregoing, and the Court’s independent interpretation of

the relevant sections, the Court finds that Spencer is not a professional employee of

a school district as defined by the Texas Education Code. As such, even if Spencer’s

actions involved the exercise of discretion, the Court finds that Spencer is still not

entitled to immunity under § 22.051 because she has failed to show that she is

entitled to such immunity as an assistant speech pathologist.

Turning to the contested elements of negligence, Spencer contends that

Plaintiffs’ negligence claim must be dismissed because she owed no duty to save

S.R.’s life and was not a proximate cause of S.R.’s death. In response, Plaintiffs’

contend that they “do not hinge their negligence theory solely on a failure to perform

medical aid. Rather . . . Spencer breached [her] duty by failing to monitor S.R.”% A

65 Plaintiffs’ Response to Soliant Health, LLC D/B/A Soliant Health and Jamila

Tressie Spencer’s Motion to Dismiss Plaintiffs’ First Amended Complaint, Document No.

46 at 11 (pointing out the stark different between 22.051(a)(2), which expressly covers

employees contracting with a school district, and 22.051(a)(1) and (a)(6) which includes

school district employees).

66 Plaintiffs’ Response to Soliant Health, LLC D/B/A Soliant Health and Jamila

Tressie Spencer’s Motion to Dismiss Plaintiffs’ First Amended Complaint, Document No.

46 at 17.

30

review of the record in this matter reveals that Plaintiffs’ plead not only that Spencer

was negligent in failing to render aid, but also that Spencer was negligent in “failing

to monitor, supervise, [and] protect [S.R.].” Based on the foregoing, the Court finds

that Plaintiffs have successfully pled their negligence claim with respect to duty.

Lastly, in response to Spencer’s proximate cause argument, Plaintiffs’

contend that “[u]nder Texas law, proximate causation is typically a question of fact,

not appropriate for resolution on summary judgment-let alone dismissal with

prejudice on the pleadings.”®” Given the clear guidance of Texas appellate courts,

the Court finds that Plaintiffs’ negligence claim is sufficiently pled with respect to

causation. Consequently, the Court finds that Spencer’s motion to dismiss Plaintiffs’

negligence claim should be denied. The Court will now briefly consider Spencer’s

motion to dismiss Plaintiffs’ gross negligence claim.

Spencer contends that “Plaintiffs’ gross negligence claim fails for the same

reason as the negligence claim.’”®* In response, Plaintiffs’ contend that this argument

“depend[s] entirely on dismissal of the underlying negligence claim against

6? Plaintiffs’ Response to Soliant Health, LLC D/B/A Soliant Health and Jamila

Tressie Spencer’s Motion to Dismiss Plaintiffs’ First Amended Complaint, Document No.

46 at 23 (citing First Assembly of God, Inc. v. Texas Utilities Elec. Co., 52 S.W.3d 482,

493 (Tex. App. 2001)).

68 Defendants’ Motion to Dismiss Plaintiff's First Amended Complaint, Document

No. 32 at 6.

31 □

Spencer.”® Given the Court’s prior finding that Spencer’s motion to dismiss should

be denied with respect to Plaintiffs’ negligence claim, and given no alternative

argument by Spencer, the Court further finds that Spencer’s motion to dismiss

Plaintiffs’ gross negligence claim should be denied. The Court will now consider

Plaintiffs’ claims against Soliant Health.

2. Plaintiffs’ Claims Against Soliant Health

Soliant Health pomrends that “Plaintiffs do not allege any independent tortious

conduct as to Soliant.””? Solaint Health further contends that “[b]Jecause the

Complaint fails to state negligence and gross negligence claims against Spencer, it

necessarily fails to state a claim based [on] the viacarious liability of Soliant.””’

Absent any alternative argument by Soliant Health, and given the Court’s finding

that Plaintiffs’ claims against Spencer are sufficiently pled, the Court finds that

Spencer and Soliant Health’s motion to dismiss should be denied.

® Plaintiffs’ Response to Soliant Health, LLC D/B/A Soliant Health and Jamila

Tressie Spencer’s Motion to Dismiss Plaintiffs’ First Amended Complaint, Document No.

46 at 25.

10 Defendants’ Motion to Dismiss Plaintiff's First Amended Complaint, Document

No. 32 at 21.

41 Defendants’ Motion to Dismiss Plaintiff's First Amended Complaint, Document

No. 32 at 21-22.

32

IV. CONCLUSION .

Based on the foregoing, the Court hereby

ORDERS that Defendant Spring Branch Independent School District’s

Motion to Strike Exhibits to Plaintiffs’ Response to SBISD’s Motion to Dismiss

Plaintiff's First Amended Complaint (Document No. 50) is GRANTED. The Court

further

ORDERS that Defendant Spring Branch Independent School District’s

Motion to Dismiss Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of

Civil Procedure 12(b)(6) (Document No. 30) is DENIED IN PART with respect to

Plaintiffs’ Failure to Accommodate claims and GRANTED IN PART with respect

to all other claims Plaintiffs’ bring against Defendant Spring Branch Independent

School District. The Court further

ORDERS that Defendants Soliant Health, LLC d/b/a Soliant Health’s and

Jamila Tressie Spencer’s Motion to Dismiss Plaintiffs’ First Amended Complaint

(Document No. 32) is DENIED. The Court further □

ORDERS that Plaintiffs’ Fourth Amendment claim, Policy and Practice

claim, Due Process claim, Equal Protection claim, Professional Bad Faith or Gross

Misjudgment claims, Failure to Keep Safe claims, Disparate Treatment claims, and

Respondeat Superior claim against Spring Branch Independent School District are

DISMISSED WITHOUT PREJUDICE. The Court further

33

ORDERS that all other claims brought against Spring Branch Independent

School District, with the exception of Plaintiffs’ Failure to Accommodate claims,

are DISMISSED WITHOUT PREJUDICE.

SIGNED at Houston, Texas, on this (A day of December, 2025.

DAVID HITTNER

United States District Judge ~

34