The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 97-20531
(Summary Calendar)
__________________________
VIVIAN GRIMES,
Plaintiff-Appellant,
versus
CHARLES HERBERT; LEON PETTIS;
DANIEL BARNETT; and THE BOARD
OF TRUSTEES OF THE HOUSTON
INDEPENDENT SCHOOL DISTRICT;
Defendants-Appellees.
_________________________________________________
On Appeal from the United States District Court
for the Southern District of Texas
(No. H-96-CV-01356)
_________________________________________________
June 24, 1998
Before WIENER, BARKSDALE, AND EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Vivian Grimes appeals the district court’s
grant of summary judgment in favor of Defendants-Appellees Charles
Herbert, Leon Pettis, Daniel Barnett, and the Board of Trustees of
the Houston Independent School District (“HISD”) (collectively,
“appellees”), insisting that the court erred in concluding that she
had not asserted a violation to her substantive due process rights.
Finding no merit in Grimes’s argument, we affirm.
*
Pursuant to 5TH CIRCUIT RULE 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIRCUIT RULE 47.5.4.
Grimes was a teacher at Isaacs Elementary School, where Pettis
is the principal and Herbert is the area superintendent. She
alleges that Pettis sexually assaulted her on several occasions.
Grimes asserts that in May 1994, Pettis “ran his hand over her
breast,” became sexually erect, and made a crude comment. She also
alleges that in January 1995, he grabbed her arm and jerked her
into a workroom at the school, pressed a fist above her right
breast, and threatened her. Pettis denies that he touched or
threatened Grimes, but contends that Grimes underwent a
“metamorphosis” during a brief meeting and began yelling at him and
accusing him of pushing her. Immediately after this last incident,
Pettis contacted Herbert, who requested an investigation by HISD’s
Office of Professional Standards. A three-person team, led by
defendant Barnett, conducted a comprehensive investigation and
produced a sixty-four page report, but was unable to confirm or
disprove Grimes’s allegations.
Grimes filed suit in Texas state court under 42 U.S.C. § 1983,
alleging that appellees violated her constitutionally-protected
liberty and property interests without due process of law. She
also asserted: (1) a state-law defamation action against Pettis;
(2) an intentional infliction of emotional distress claim against
Herbert; and (3) a declaratory judgment action, seeking a
declaration that HISD’s investigation of her assault charge against
2
Pettis was fatally flawed.1 The case was subsequently removed to
federal district court and referred to a magistrate judge. Relying
on the magistrate judge’s recommendation, the district court
granted summary judgment in favor of appellees on all claims and
entered a take-nothing judgment against Grimes.
The sole issue on appeal is whether Grimes has a
constitutionally-protected liberty interest in “being free from the
fear of assault from her principal.” In concluding that such a
substantive due process right does not exist, the district court,
adopting the recommendation of the magistrate judge, reasoned:
While a liberty interest in a student’s right to bodily
integrity from contact by school personnel was recognized
in Doe v. Taylor I.S.D., 15 F.3d 443 (5th Cir. 1994),
such an interest has not been extended to include a
teacher’s right to be free from physical attacks by co-
workers. The facts and reasoning underpinning Taylor and
similar cases are clearly not present here. Similarly,
the facts present here do not warrant application of
Scott v. Moore, 85 F.3d 230, 235 (5th Cir. 1996), which
held a municipality liable for inadequate staffing of its
jail in the context of a sexual assault on a female
pretrial detainee by a male jailer.
As Plaintiff cannot state a liberty interest claim
against Defendant Pettis, her claims against Defendants
HISD and Herbert for “sanctioning” the alleged statement
also fail. Defendants Herbert and HISD cannot be held
liable under a respondeat superior theory of liability.
Monell v. Dept. of Social Services, 436 U.S. 658, 691
(1978). Plaintiff also has failed to allege the
“official policy” of HISD which caused the alleged
constitutional violation. Id.; Johnson v. Moore, 958
F.2d 92, 94 (5th Cir. 1992).
After a de novo review of the record, the appellate briefs,
1
Grimes did not assert a claim under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.
3
and the applicable law, we reach the same conclusion as did the
district court for the same reasons articulated there.2
Consequently, the judgment of the district court dismissing
Grimes’s action is, in all respects,
AFFIRMED.
2
Appellees maintain that even if Grimes asserted a violation
of a protected liberty interest, they are shielded from liability
by qualified immunity, as Grimes’s substantive due process “right
to be free from fear of assault” by her employer was not “clearly
established” at the time of the alleged misconduct. Foster v. City
of Lake Jackson, 28 F.3d 425, 428-29 (5th Cir. 1994). Given our
holding that Grimes has not asserted a protected liberty interest,
we do not reach this issue, but do note that Grimes never mentions
qualified immunity in her initial appellate brief.
4