Pierce v. Hearne Independent School District

Case: 14-50788 Document: 00512892939 Page: 1 Date Filed: 01/07/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

January 7, 2015

No. 14-50788 Lyle W. Cayce

Clerk

Summary Calendar

SAMUEL PIERCE, Individually and as Representative of the Estate of

De’Jon Pierce; PLEZZETTE PIERCE, Individually and as Representative of

the Estate of De’Jon Pierce,

Plaintiffs-Appellants

v.

HEARNE INDEPENDENT SCHOOL DISTRICT; DARREL TROJACEK, in

his Individual Capacity; CARL TROJACEK, in his Individual Capacity;

ANTHONY KEITH MCGILL, in his Individual Capacity,

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:13-CV-334

Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM: *

Samuel and Plezzette Pierce brought tort and Section 1983 claims

against Hearne Independent School District and others after their son was

* Pursuant to 5TH CIR. R. 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

CIR. R. 47.5.4.

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killed while driving his teacher’s all-terrain vehicle. The district court

dismissed the tort claims for lack of subject-matter jurisdiction and the Section

1983 claims for failure to state a claim. It also declined to exercise

supplemental jurisdiction over the Pierces’ remaining state-law claims and

denied their request to replead. We AFFIRM.

FACTS AND PROCEDURAL BACKGROUND

This case involves the tragic death of De’Jon Pierce, a junior at Hearne

High School. De’Jon’s death occurred in March 2012 when he lost control of an

all-terrain vehicle (“ATV”) owned by Darrell Trojacek, his “Ag Mechanics”

teacher, and crashed into a tree. Trojacek, with the permission of Principal

Anthony McGill, regularly withdrew De’Jon and other students from school to

work on his farm as part of their coursework. He allowed the students to drive

his ATV on these occasions.

On the day of the accident, Trojacek withdrew De’Jon and other students

from school to clean pigs at his farm. After cleaning the pigs, Trojacek

instructed De’Jon and another student to deliver a tool to his father’s ranch,

which was approximately one mile away. De’Jon made this trip without

incident. On the return trip, however, he lost control of the ATV and struck a

tree. While the passenger survived, De’Jon died of blunt force trauma.

De’Jon’s parents filed tort claims against Hearne I.S.D. under the Texas

Tort Claims Act (“TTCA”); 1 Section 1983 claims against Hearne I.S.D.,

Principal McGill, and Trojacek; and pendent state-law claims against

Trojacek’s father. The district court dismissed the tort claims under Federal

Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction on the

1 The Pierces concede that they are not entitled to pursue tort claims against both

Hearne I.S.D. and its employees and that their claims against the school bar their claims

against Trojacek and Principal McGill. See TEX. CIV. PRAC. & REM. CODE § 101.106.

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basis of sovereign immunity, dismissed the Section 1983 claims under Rule

12(b)(6) for failure to state a claim, declined to exercise supplemental

jurisdiction over the remaining state-law claims, and denied the Pierces’

request to replead.

The Pierces timely appealed to this court.

DISCUSSION

I. Tort Claims

We review de novo a district court’s dismissal for lack of subject-matter

jurisdiction pursuant to Rule 12(b)(1). Ballew v. Cont. Airlines, Inc., 668 F.3d

777, 781 (5th Cir. 2012). The Eleventh Amendment strips courts of jurisdiction

over claims against a state that has not consented to suit. See Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984). In Texas, school

districts are treated as “governmental units” and immunized from tort liability

under the TTCA unless the claim relates to “property damage, personal injury,

or death aris[ing] from the operation or use of a motor-driven vehicle . . . .”

TEX. CIV. PRAC. & REM. CODE §§ 101.001(3)(B), 101.021(1)(A), 101.025,

101.051. The Supreme Court of Texas has interpreted this statute as requiring

that the “operation or use [be] that of the [school] employee.” LeLeaux v.

Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992).

In this case, De’Jon was driving the ATV at the time of his accident.

Nevertheless, the Pierces argue that they are entitled to recover because

Trojacek, a school employee, ordered De’Jon to drive the ATV. In support of

this contention they cite two decisions in which Texas state courts applied the

motor-vehicle exception even though a government employee was not

operating the vehicle that caused the plaintiff’s injuries. See City of El Campo

v. Rubio, 980 S.W.2d 943, 947 (Tex. App.—Corpus Christi 1998, pet. dism’d

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w.o.j.); County of Galveston v. Morgan, 882 S.W.2d 485, 491 (Tex. App.—

Houston [14th Dist.] 1994, writ denied).

We reject this approach, for two reasons. First, the Texas Supreme Court

has held that the motor-vehicle exception does not apply to situations in which

a government employee was not operating the vehicle that caused the

plaintiff’s injuries. See LeLeaux, 835 S.W.2d at 51. Numerous Texas appellate

decisions have recognized this explicit interpretation. 2 The Pierces categorize

this requirement as “extra-statutory” and argue that we should decline to

enforce it. Whatever the merits of this claim, the Texas Supreme Court is the

final authority regarding the meaning of Texas statutes, and we are bound by

its interpretation in this case.

Second, even if we were to adopt the exception advanced in the decisions

the Pierces cite, that exception would not apply in this case. The courts in both

of the cited cases based their holdings on the fact that a government employee,

while not operating the vehicle that injured the plaintiff, exercised complete

control over the plaintiff’s movements at the time of the accident. See Rubio,

980 S.W.2d at 946; Morgan, 882 S.W.2d at 490. In this case, Trojacek

instructed De’Jon to drive his ATV to his father’s farm and back, but he was

not present at the time of the accident and did not exercise control over

De’Jon’s movements during the trip. Accordingly, Rubio and Morgan are

inapplicable.

We hold that Hearne I.S.D. is immune from tort liability under the Texas

Tort Claims Act.

2 See, e.g., McLennan Cnty. v. Veazey, 314 S.W.3d 456, 462 (Tex. App.—Waco 2010,

pet. denied); Elgin Indep. Sch. Dist. v. R.N., 191 S.W.3d 263, 268 (Tex. App.—Austin 2006,

no pet.); Tarkington Indep. Sch. Dist. v. Aiken, 67 S.W.3d 319, 326 (Tex. App.—Beaumont

2002, no pet.).

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II. Section 1983 Claims

We review a dismissal under Rule 12(b)(6) de novo, “accepting all well-

pleaded facts as true and viewing those facts in the light most favorable to the

plaintiff.” Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007) (citation omitted).

To state a claim under Section 1983, “a plaintiff must (1) allege a violation of

a right secured by the Constitution or laws of the United States and (2)

demonstrate that the alleged deprivation was committed by a person acting

under color of state law.” James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th

Cir. 2008) (internal quotations and citation omitted).

The Pierces claim that Hearne I.S.D., Principal McGill, and Trojacek

violated De’Jon’s substantive due process rights, namely his right to bodily

integrity. A due process violation results from “deliberate decisions of

government officials to deprive a person of life, liberty, or property.” Daniels

v. Williams, 474 U.S. 327, 331 (1986). “Actions and decisions by officials that

are merely inept, erroneous, ineffective, or negligent do not amount to

deliberate indifference and do not divest officials of qualified immunity.” Alton

v. Texas A&M Univ., 168 F.3d 196, 201 (5th Cir. 1999) (citation omitted). As

the Seventh Circuit has explained, deliberate indifference entails “conduct that

reflects complete indifference to risk—when the actor does not care whether

the other person lives or dies, despite knowing that there is a significant risk

of death.” Salazar v. City of Chicago, 940 F.2d 233, 238 (7th Cir. 1991)

(citations and internal quotations omitted). 3

We separately examine the Pierces’ claims against each of the

defendants.

3We have cited Salazar favorably on multiple occasions. See Hare v. City of Corinth,

74 F.3d 633, 645-46 (5th Cir. 1996); Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 531 (5th

Cir. 1994).

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a. Claim against Trojacek

The Pierces allege that Trojacek removed De’Jon from school without

their permission, instructed him to ride double on an ATV despite the fact that

he did not have a driver’s license, did not properly instruct him on how to

operate the ATV, and did not provide him with any safety gear. They also

allege that the ATV was improperly maintained.

These allegations do not suffice to show deliberate indifference. Trojacek

may have been negligent by removing De’Jon from school and instructing him

to drive his ATV, but his actions do not reveal a complete disregard for human

life and an indifference to a significant risk of death. Nor does our case law

support such a conclusion. The cases cited by the Pierces, which relate to

sexual abuse and prolonged physical restraint by teachers, are inapposite. See

Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 451 (5th Cir. 1994); Jefferson v.

Ysleta Indep. Sch. Dist., 817 F.2d 303, 305 (5th Cir. 1987). 4 Trojacek did not

deliberately abuse, restrain, threaten, or touch De’Jon. Indeed, there is

nothing to suggest that Trojacek intended to harm De’Jon at all or even that

he foresaw harm and willfully disregarded it. In order to find a violation under

these facts, we would be forced to greatly expand the concept of substantive

due process, something the Supreme Court has been reluctant to do. See

Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). Accordingly, we

conclude that Trojacek did not act with deliberate indifference.

For substantially the same reasons, the district court properly concluded

that Trojacek was entitled to qualified immunity because he did not violate a

4 On appeal, the Pierces also rely on our decision in Morris v. Dearborne, 181 F.3d 657

(5th Cir. 1999). But we do not think Trojacek’s actions can be properly analogized to a teacher

who purposefully fabricated claims that a father sexually abused his four-year-old daughter

and thereby caused protective services to suspend the father’s contact with his daughter for

three years. See id. at 668.

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clearly established constitutional right. See Pearson v. Callahan, 555 U.S. 223,

232 (2009).

b. Claim against Principal McGill

The Pierces base their Section 1983 claim against Principal McGill on a

theory of supervisory liability. Under this theory, “the plaintiff must show

that: (1) the supervisor either failed to supervise or train the subordinate

official; (2) a causal link exists between the failure to train or supervise and

the violation of the plaintiff’s rights; and (3) the failure to train or supervise

amounts to deliberate indifference.” Smith v. Brenoettsy, 158 F.3d 908, 911-12

(5th Cir. 1998) (citation omitted). Deliberate indifference in this context

ordinarily requires a “pattern of similar constitutional violations by untrained

employees . . . .” Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011); see also

Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003).

The Pierces claim that Principal McGill acted with deliberate

indifference when he permitted Trojacek to take students to work on his farm

without their parents’ permission. For reasons similar to those discussed

above, we agree with the district court’s conclusion that Principal McGill’s

actions constituted, at most, negligence. Moreover, the Pierces have not

demonstrated that a pattern of constitutional injuries resulted from Principal

McGill’s actions. Therefore, Principal McGill did not act with deliberate

indifference. Additionally, Principal McGill was entitled to qualified immunity

because he did not violate a clearly established constitutional right.

c. Claim against Hearne I.S.D.

The district court dismissed the Pierces’ Section 1983 claim against

Hearne I.S.D. after concluding that this court has not recognized the “state-

created danger theory” upon which the claim rested and, regardless, the

Pierces failed to state such a claim because they did not allege facts

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demonstrating that Hearne I.S.D. was deliberately indifferent to an immediate

danger facing a known victim. See Doe ex rel. Magee v. Covington Cnty. Sch.

Dist. ex rel. Keys, 675 F.3d 849, 864, 866 (5th Cir. 2012). The district court also

held that Hearne I.S.D. could not be held vicariously liable because the

doctrine of respondeat superior does not apply in Section 1983 cases. See

Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003).

The Pierces do not contest these conclusions. Instead, they contend that

the district court failed to address a separate legal theory supporting their

Section 1983 claim. According to the Pierces, they asserted a traditional

municipal liability theory supporting their claim in both their complaint and

their response to the defendants’ motion to dismiss. Recovery under this

theory “requires proof of 1) a policymaker; 2) an official policy; 3) and a

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

Id. (citations omitted).

The Pierces’ complaint does not articulate this theory as a basis for their

Section 1983 claim. The complaint titles its Section 1983 claims “State Created

Danger Claim[s].” Moreover, it does not make claims about policymakers,

policies or customs, 5 or their relationship to the alleged constitutional

violation. Instead, the allegations relate to the state-created danger and

vicarious liability theories. The Pierces did, however, clearly articulate the

municipal liability theory in their response to the defendants’ motion to

dismiss.

5 The complaint did allege that: (1) Trojacek violated school policy by removing De’Jon

from school without his parents’ permission, and that Principal McGill knowingly allowed

this violation to take place; and (2) Hearne I.S.D. did not have a policy against keeping

livestock at its teachers’ private residences. The former allegation suggests that Hearne

I.S.D.’s policies were designed to guard against, rather than facilitate, the alleged

constitutional violations. The latter allegation suggests the absence, rather than presence,

of policies relating to the alleged violations.

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The district court did not discuss the municipal liability theory in its

order of dismissal. This may have been error. Generally, a new claim or legal

theory raised in response to a dispositive motion should be construed as a

request for leave to amend the complaint, and the district court should

determine whether leave should be granted. 6 See Stover v. Hattiesburg Pub.

Sch. Dist., 549 F.3d 985, 989 n.2 (5th Cir. 2008) (collecting cases).

We have at times remanded to the district court for consideration of an

issue injected into a case in this manner. See Riley v. Sch. Bd. Union Parish,

379 F. App’x 335, 341 (5th Cir. 2010). We decline to do so here because all

theories of liability under Section 1983 require the plaintiff to demonstrate the

violation of a constitutional right. In this case, the same alleged substantive

due process violation forms the basis for all of the Pierces’ Section 1983

theories. Therefore, because we affirm the district court’s ruling that no

violation of substantive due process occurred, we must necessarily conclude

that granting the Pierces leave to amend would be futile.

III. Opportunity to Replead

“We review the denial of leave to amend the complaint for abuse of

discretion.” Hermann Holdings Ltd. v. Lucent Techs. Inc., 302 F.3d 552, 558

(5th Cir. 2002) (citation omitted). Generally, courts should give plaintiffs at

least one opportunity to cure pleading deficiencies before dismissing a case

under Rule 12(b)(6). See Great Plains Trust Co. v. Morgan Stanley Dean Witter

& Co., 313 F.3d 305, 329 (5th Cir. 2002). The court may deny leave to amend,

6 New factual allegations, however, need not be so construed unless the plaintiff

explicitly requests leave to amend and expresses the grounds upon which the amendment is

sought with particularity. See United States ex rel. Willard v. Humana Health Plan of Tex.

Inc., 336 F.3d 375, 387 (5th Cir. 2003).

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however, if the defects are incurable or the plaintiffs have already alleged their

best case. See id.; Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998).

Trojacek was not driving the ATV that caused De’Jon’s death and did not

exercise control over De’Jon’s movements at the time of the accident. Because

at least the latter element is required to demonstrate a waiver of sovereign

immunity under the TTCA, we conclude that the district court did not abuse

its discretion in determining that the Pierces pled their best case as to those

claims. Additionally, because the Pierces do not contest the dismissal of their

original Section 1983 claims and we have concluded that leave to amend would

be futile as to their later-asserted claim, we conclude that the district court did

not abuse its discretion in determining that they also pled their best case as to

their Section 1983 claims.

IV. Supplemental Jurisdiction Over State-Law Claims

“We review a district court’s decision to decline jurisdiction over pendent

state-law claims for an abuse of discretion.” Batiste v. Island Records Inc., 179

F.3d 217, 226 (5th Cir. 1999) (citations omitted). A district court may decline

to exercise supplemental jurisdiction if: “(1) the claim raises a novel or complex

issue of State law, (2) the claim substantially predominates over the claim or

claims over which the district court has original jurisdiction, (3) the district

court has dismissed all claims over which it has original jurisdiction, or (4) in

exceptional circumstances, there are other compelling reasons for declining

jurisdiction.” 28 U.S.C. § 1367(c). The dismissal of all federal claims provides

“a powerful reason to choose not to continue to exercise jurisdiction.” Carnegie-

Mellon Univ. v. Cohill, 484 U.S. 343, 351 (1988); see also United Mine Workers

of Am. v. Gibbs, 383 U.S. 715, 726 (1966); Batiste, 179 F.3d at 227.

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Because we affirm the district court’s dismissal of the Pierces’ federal

claims, we conclude that it did not abuse its discretion by declining to exercise

supplemental jurisdiction over the Pierces’ state-law claims against Trojacek’s

father on the basis of the second and third Section 1367(c) factors.

AFFIRMED.

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