Filomena Leo, in Their Individual and Official Capacities v. Iliana Trevino

NUMBER 13-05-516-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

FILOMENA LEO, ET AL.,

IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES , Appellants,

v.

ILIANA

TREVINO, ET AL. , Appellees.

On appeal from the 398th

District Court

of Hidalgo

County, Texas.

O P

I N I

O N

Before Chief Justice Valdez and Justices Rodriguez

and Castillo

Opinion by Justice Castillo

Appellants

("School District Employees") [1]

bring this interlocutory appeal pursuant to section 51.014(a)(5) of the Texas

Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann . ' 51.014(a)(5) (Vernon

Supp. 2005). The School District

Employees appeal from the trial court's denial of a no-evidence motion for

summary judgment based in whole or in part upon an assertion of immunity. We sustain their issues concerning immunity,

reverse the trial court's order, and render summary judgment in favor of School

District Employees in their individual capacities. See City of San Antonio v. Hernandez ,

53 S.W.3d 404, 406 (Tex. App. B San Antonio 2001, pet.

denied). We dismiss that portion of the

appeal relating to the School District Employees' remaining issue for lack of

jurisdiction. See Bexar County v.

Giroux-Daniel , 956 S.W.2d 692, 699 (Tex. App. B San Antonio 1997, no pet.).

I. Background

On May 20, 2003,

approximately two hundred eighth grade students from Cesar Chavez Middle

School, in the La Joya Independent School District ("La Joya ISD"),

went on a field trip to the McAllen Athletic Club. Activities included swimming. The School District Employees attended the

event to supervise the students. The

school district opted not to hire lifeguards for the event. Sometime during the day, eighth-grader Oscar

Guadalupe Trevino, Jr., drowned in the swimming pool at the club.

Suit was filed on May

29, 2003, by appellees, Iliana Trevino and Oscar Guadalupe Trevino,

individually and as personal representative of the Estate of Oscar Guadalupe

Trevino, Jr. ("the Trevinos"). [2] Claims against the School District Employees

are based upon alleged civil rights violations under title 42 of the United

States Code, section 1983; the Trevinos claim that the School District

Employees violated Oscar's constitutional substantive due process rights to

life, liberty, and bodily integrity. U.S. Const . amend. XIV; 42 U.S.C.A. ' 1983 (West 2003 &

Supp. 2005).

On October 8, 2004,

after extensive discovery in the matter, the La Joya ISD and the School

District Employees jointly filed a no-evidence motion for summary judgment,

urging that the Trevinos had tendered no evidence of critical elements of their

claim, including (1) violation of a constitutionally protected right that was

(2) clearly established at the time of the conduct in question and that (3)

defendants had acted with deliberate indifference to that right. The trial court order denying the no-evidence

motion for summary judgment was signed August 5, 2005. This appeal is brought only by the School

District Employees, who contend the following:

(1) suit against them in their official capacities is equivalent to

suing the La Joya ISD, already a named defendant, and therefore those claims

should be dismissed (second issue); and (2) as public officials sued in their

individual capacities, the School District Employees are entitled to qualified

immunity (third issue) unless the Trevinos establish that they violated

"clearly established constitutional law," which the Trevinos have

failed to do (first issue). Therefore,

School District Employees urge that the trial court erred in failing to grant

the no-evidence motion for summary judgment in their favor. Federal substantive law and Texas state

procedural law apply to this matter.

II. Jurisdiction

Jurisdiction over this

interlocutory appeal is based upon section 51.014(a)(5) of the Texas Civil

Practice and Remedies Code and the assertion of qualified immunity. See

Tex. Civ. Prac. & Rem. Code Ann . ' 51.014(a)(5) (Vernon Supp. 2005). This statute provides that an interlocutory

appeal may be taken from the denial of a motion for summary judgment where the

defense of qualified immunity has been raised by individuals who are officers

or employees of the state or a political subdivision of the state. Id .; Houston v. Kilburn , 849

S.W.2d 810, 811 (Tex. 1993) (per curiam).

The Trevinos contend

that the School District Employees sought summary judgment on grounds beyond

immunity, including (1) whether there was a violation of a federal protected

right and (2) whether suit could proceed against both La Joya ISD and the named

individuals in their official capacity.

The Trevinos urge that, inasmuch as argument was not limited to the

issue of immunity, we do not have jurisdiction over the bulk of this appeal. In conjunction with qualified immunity from

the section 1983 claims, the Trevinos also contend that we may not properly

reach whether or not there was violation of a federal protected right.

A. Qualified Immunity under Section 1983

Claims raised by the

Trevinos against the School District Employees are based solely upon alleged

violations of constitutionally protected rights of due process. See 42 U.S.C. ' 1983 (West 2003 &

Supp. 2005). School District Employees

assert that qualified immunity precludes suit against them in their individual

capacities for these claims. Government

officials performing discretionary functions are clothed with a qualified

immunity, shielding them from civil damages liability for violation of a

constitutional right as long as their actions could reasonably have been

thought to be consistent with the rights they are alleged to have

violated. Anderson v. Creighton ,

483 U.S. 635, 638 (1987); Spacek v. Charles , 928 S.W.2d 88, 92 (Tex.

App. B Houston [14th Dist.]

1996, writ dism'd w.o.j.).

The availability of

interlocutory appeal to address the defense of qualified immunity does not

distinguish between claims brought under federal or state law. Tex.

Civ. Prac. & Rem. Code Ann . ' 51.014(a)(5) (Vernon

Supp. 2005). It is simply available from

the denial of a motion for summary judgment "that is based on an assertion

of immunity" by an appropriate state actor. Id .

An assertion of immunity is a defense, rather than an element of the

principal cause of action. Id .

When a federal claim

is brought under section 1983, title 42 of the United States Code, availability

of qualified immunity as a defense must be assessed pursuant to federal law. 42 U.S.C. ' 1983 (West 2003 & Supp. 2005); Doe v.

Taylor Indep. Sch. Dist., 15 F.3d 443, 450 (5th Cir. 1994) (op. on

reh'g). Federal courts recognize a

qualified immunity for public officials which is analogous although not

identical to Texas's official immunity.

Qualified immunity to a claim brought under section 1983 protects

governmental officers with discretionary authority from liability so long as

their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known. Ballantyne

v. Champion Builders, Inc ., 144 S.W.3d 417, 428 (Tex. 2004) (quoting

Crawford‑El v. Britton , 523 U.S. 574, 588 (1998); Harlow v.

Fitzgerald , 457 U.S. 800, 818 (1982)).

Section 1983 imposes liability for violations of rights protected by the

United States Constitution, not for violations of duties of care arising under

tort law. Taylor Indep. Sch. Dist.,

15 F.3d at 450 (citing Baker v. McCollan , 443 U.S. 137, 146 (1979)). Therefore, the threshold inquiry in any

section 1983 claim is whether the plaintiff has been deprived of a right

secured by the Constitution. Siegert

v. Gilley , 500 U.S. 226, 232 (1991); see Taylor Indep. Sch. Dist., 15

F.3d at 450 (stating the first step in deciding whether defendants are entitled

to qualified immunity is to determine whether Constitutional rights were

violated).

1. The Burden of Proof Under Section 1983

Qualified immunity is

an affirmative defense which normally carries with it the burden of proof. Generally, a no-evidence motion for summary

judgment asserting that a party can prevail on an affirmative defense is not

appropriate. See Keszler v. Mem'l

Med. Ctr. of E. Tex ., 105 S.W.3d 122, 128 (Tex. App. B Corpus Christi 2003,

no pet.).

However, under federal

law and section 1983 claims, such is not the case. At the summary judgment stage of a section

1983 action, "a defendant asserting immunity is not required to establish

the defense beyond peradventure, as he would have to do for other affirmative

defenses." Cousin v. Small ,

325 F.3d 627, 632 (5th Cir. 2003) (per curiam).

"The moving party is not required to put forth evidence to meet its

summary judgment burden for a claim of immunity. It is sufficient that the movant in good

faith pleads that it is entitled to absolute or qualified immunity." Id . (quoting Beck v. Tex. State Bd.

of Dental Examiners , 204 F.3d 629 , 633 (5th Cir. 2000)). [3] "Once the [movant] asserts this

affirmative defense, the burden shifts to the plaintiff to rebut it." Id .

(citing Beck , 204 F.3d at 633‑34; Whatley v. Philo , 817

F.2d 19, 20 (5th Cir. 1987)). Therefore,

a no-evidence motion for summary judgment is sufficient to raise this

defense.

2. Application of Federal Substantive Law

The Trevinos contend

that it is error to apply the federal burden-shifting analysis to assess

availability of qualified immunity. They

argue that immunity is an affirmative defense under Texas state law, for which

School District Employees at all times bore the burden of proof. The Trevinos urge that we should therefore

not apply the provisions for burden-shifting set out under federal law, and,

consequently, we never reach the question of whether Oscar was deprived of a

right secured by the Constitution.

However, in any analysis involving section 1983 constitutional due

process claims, applicability of the burden-shifting analysis for qualified

immunity is a matter of federal substantive law. Amer. Dredging Co. v. Miller , 510 U.S.

443, 454 (1994).

"When sued in his

individual capacity, a governmental employee is entitled to a presumption of

qualified immunity from suit." Mossey

v. City of Galveston , 94 F. Supp.2d 793, 796 (S.D. Tex. 2000). Presumptions (and their effects) and burden

of proof are "substantive." Dick

v. New York Life Ins. Co. , 359 U.S. 437, 446 (1959); see Raleigh v. Ill.

Dep't of Revenue , 530 U.S. 15, 20-21 (2000) ("[W]e have long held the

burden of proof to be a 'substantive' aspect of a claim."). Although "[i]n earlier times, burden of

proof was regarded as 'procedural,' . . . [f]or many years, . . . it has been

viewed as a matter of substance . . . [and] cannot be considered a mere

incident of a form of procedure." Amer.

Dredging Co. , 510 U.S. at 454 (citations omitted).

We have jurisdiction

over that portion of the appeal relating to qualified immunity to section 1983

claims brought against the School District Employees which allege violations of

constitutional rights. See Univ. of

Tex. S.W. Med. Ctr. v. Margulis , 11 S.W.3d 186, 188 (Tex. 2000) (per

curiam); Gross v. Innes , 988 S.W.2d 727, 729 (Tex. 1998) (per

curiam). In conjunction therewith, we

reject the Trevinos' contention that we have no jurisdiction to consider

whether or not there was a violation of a constitutionally protected right,

inasmuch as such an inquiry is critical to an evaluation of the existence of

qualified immunity under section 1983. Cousin ,

325 F.3d at 632 .

B. Official Immunity

The Trevinos contend

that we have no jurisdiction to consider the trial court's order as it applies

to considerations beyond the assertion of an immunity defense. The School District Employees assert in their

second issue that we may address contentions in the no-evidence motion for

summary judgment that suit against the School District Employees in their

official capacities is not viable because it is equivalent to suing the La Joya

ISD, already a named defendant.

These contentions are

not based upon a defense of immunity, but rather upon an argument that because

damages cannot be recovered against these individuals in their official

capacities, these claims should have been dismissed. "Suits against a government employee in

his or her official capacity are just another way of pleading a suit against

the government entity of which the official is an agent. Accordingly, qualified immunity is not at

issue when a government employee is sued in his or her official capacity."

Giroux-Daniel , 956 S.W.2d at 695 .

We have no

jurisdiction to consider the denial of a no-evidence motion for summary

judgment as to claims against the School District Employees in their official

capacities. See id . We therefore have no jurisdiction to consider

School District Employees' second issue on appeal.

III. Standard of Review

Summary judgment

functions to eliminate patently unmeritorious claims and defenses, not to

deprive litigants of the right to a jury trial. City of Houston v. Clear Creek Basin Auth .,

589 S.W.2d 671 , 678 n.5 (Tex. 1979); Swilley v. Hughes , 488 S.W.2d 64,

68 (Tex. 1972); Alaniz v. Hoyt , 105 S.W.3d 330, 344 (Tex. App. B Corpus Christi 2003,

no pet.). Here, School District

Employees filed a no-evidence motion for summary judgment. This type of motion generally asserts that

there is no evidence of one or more essential elements of a claim on which the

adverse party will bear the burden of proof at trial. Tex.

R. Civ. P . 166a(i); Alaniz , 105 S.W.3d at 344 ; Scripps Tex.

Newspapers, L.P. v. Belalcazar , 99 S.W.3d 829, 840 (Tex. App. B Corpus Christi 2003,

pet. denied).

However, such a motion

may also be appropriate where the defense of qualified immunity is raised to a

federal claim under federal law. [4] Although the term "qualified

immunity" is sometimes used to describe other types of immunity possessed

by government officials, including those sued under the Texas Tort Claims Act,

in this case the motion for summary judgment properly refers only to the claims

raised under section 1983. See

Giroux-Daniel , 956 S.W.2d at 694 n.2.

The Trevinos specifically provide in their petition that "these

allegations are only brought under 42 U.S.C. ' 1983."

We have already determined that when section 1983 claims are raised, the

presumption arising in conjunction with a claim for qualified immunity is a

matter of federal substantive law. Amer.

Dredging Co. , 510 U.S. at 454 . That

presumption provides that the moving party is not required to put forth

evidence to meet its summary judgment burden for a claim of immunity. Id .; Beck , 204 F.3d at 633-34

(citing Salas v. Carpenter , 980 F.2d 299, 306 (5th Cir. 1992)); see

Mossey , 94 F. Supp.2d at 796 . The

movant can support its motion by solely relying on the pleadings. Beck , 204 F.3d at 634. Accordingly, School District Employees'

challenge to the section 1983 claims can properly be raised in a no-evidence

motion for summary judgment.

"An order denying

qualified immunity, to the extent it turns on an 'issue of law,' is immediately

appealable." Atteberry v. Nocona

Gen. Hosp ., 430 F.3d 245, 251 (5th Cir. 2005) (quoting Behrens v.

Pelletier , 516 U.S. 299, 311 (1996)).

The denial of a motion for summary judgment based on qualified immunity

grounds falls into that

"small

class" of district court decisions which, though short of final judgment,

are immediately appealable because they "finally determine claims of right

separate from, and collateral to, rights asserted in the action, too important

to be denied review and too independent of the cause itself to require that

appellate consideration be deferred until the whole case is

adjudicated."

Id . (quoting Behrens ,

516 U.S. at 305 ). When reviewing a denial

of qualified immunity on an interlocutory appeal, we are restricted to

determining "questions of law" and "legal issues." Atteberry , 430 F.3d at 251 . We do not consider the "correctness of

[appellee's] version of the facts."

Id . We treat the legal

question of immunity as "distinct from the merits of the case." Id . at 251-52. We review the refusal to grant a motion for

summary judgment based on this defense de novo.

Id . at 252 (citing Wilkerson v. Stalder , 329 F.3d

431, 434 (5th Cir. 2003)). In applying

this standard, we accept "all well-pleaded facts as true, viewing them in

the light most favorable to the plaintiff." Id . (citing Jones v. Greninger ,

188 F.3d 322, 324 (5th Cir. 1999) (per curiam)).

IV. Analysis

The

School District Employees urge they are entitled to qualified immunity from the

Trevinos' claims, absent a showing of a violation of "clearly established

constitutional law." Anderson ,

483 U.S. at 640 .

Government officials

performing discretionary functions are protected from civil liability under the

doctrine of qualified immunity if their conduct violates no "clearly

established statutory or constitutional rights of which a reasonable person would

have known."

Beck , 204 F.3d at

638. Claims of qualified immunity are

reviewed under a two-step analysis. Atteberry,

430 F.3d at 253 . First, we review

whether the plaintiff has asserted the violation of a clearly established

constitutional right. Id . If so, we then decide whether the defendant's

conduct was objectively reasonable. Id .

Atteberry provides:

When a defendant

invokes qualified immunity, the burden is on the plaintiff to demonstrate the

inapplicability of the defense. To

discharge this burden, a plaintiff must satisfy a two-prong test. First, he must claim that the defendants

committed a constitutional violation under current law. Second, he must claim that the defendants'

actions were objectively unreasonable in light of the law that was clearly

established at the time of the actions complained of.

Id .; see Beck ,

204 F.3d at 628 (citing Coleman v. Houston Indep. Sch. Dist ., 113 F.3d

528, 533 (5th Cir. 1997)). A preliminary

consideration is whether or not the government official was acting within his

discretionary as opposed to his ministerial authority at the time of the

incident.

A. Discretionary Authority

Qualified

immunity is only available when an official acts "within the scope of [his

or her] discretionary authority." Atteberry,

430 F.3d at 257 . In Atteberry ,

as here, the plaintiffs alleged the violation of numerous state statutes which

imposed non-discretionary, ministerial duties upon School District Employees,

thereby vitiating their defense of qualified immunity. See id .

The

Trevinos contend that qualified immunity is not available because School

District Employees violated former section 22.051 of the Texas Education Code, [5]

renumbered and currently codified as section 22.0511. [6] This statute provides that a professional

employee of a school district, defined to include teachers, counselors, nurses,

and administrators, is not personally liable for any act that is:

. . . incident to or

within the scope of the duties of the employee's position of employment and

that involves the exercise of judgment or discretion on the part of the

employee, except in circumstances in which a professional employee uses

excessive force in the discipline of students or negligence resulting in bodily

injury to students.

Tex. Educ. Code Ann . ' 22.0511 (Vernon Supp. 2005) (emphasis added). [7]

"Discretionary

authority exists when the law does not specify the precise action that the

official must take." Finlan v.

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

denied) (citing Davis v. Scherer , 468 U.S. 183 , 196 n.14 (1984)). "An act is discretionary under Texas law

if it requires personal deliberation, decision, and judgment." Id . (citing Jolly v. Klein , 923

F. Supp. 931, 948 (S.D. Tex. 1996)); see Downing v. Brown , 935

S.W.2d 112, 114 (Tex. 1996) (per curiam).

By contrast, an act is ministerial "where the law prescribes and

defines the duties to be performed with such precision and certainty as to

leave nothing to the exercise of discretion or judgment." Downing, 935 S.W.2d at 114 (quoting City

of Lancaster v. Chambers , 883 S.W.2d 650, 654 (Tex.1994)); Rosencrans v.

Altschuler , 161 S.W.3d 517, 521 (Tex. App. B Eastland 2004, no pet.). Ministerial actions require obedience to

orders or the performance of a duty to which the actor has no choice . Rosencrans , 161 S.W.3d at 517

(emphasis added). Additionally, the

claims in issue here, although couched solely in terms of violation of

constitutional rights, include allegations that the School District Employees

committed those violations because they failed to properly supervise and/or

discipline Oscar on the field trip.

In our view,

maintaining classroom discipline involves personal deliberation, decision and

judgment. Moreover, . . . teachers'

responsibilities [are not defined] with such precision to leave nothing to the

exercise of a teacher's judgment or discretion.

Downing , 935 S.W.2d at

114 . The contents and substance of a

discipline management plan, selection of disciplinary techniques, evaluation of

which student misconduct should result in disciplinary sanctions, decisions as

to how or when to discipline students or to refer them to higher administrative

personnel, and other such decisions are "routinely" left to teachers,

and "require the use of professional judgment and discretion." Id .

Moreover, the fact that a teacher is required to attend an event,

including a field trip, does not alter the fact that this supervision and

discipline lie within discretionary authority.

Williams v. Chatman , 17 S.W.3d 694, 699 (Tex. App. B Amarillo 1999, pet.

denied). Even where it is undisputed

that there was a "mandatory duty to supervise," the "duty to

supervise involves the exercise of judgment or discretion." Id . at 700 (concluding that qualified

immunity can apply to claims related to failure to properly supervise). We conclude the School District Employees

were acting within the scope of their discretionary authority at the time of

the incident.

B. Constitutional Violation

The

first prong of any analysis of the availability of qualified immunity requires

the establishment of the violation of a "clearly established

right." Beck , 204 F.3d at

638.

[The due process

clause of the Fourteenth Amendment] is phrased as a limitation on the State's

power to act, not as a guarantee of certain minimal levels of safety and

security. It forbids the State itself to

deprive individuals of life, liberty, or property without "due process of

law," but its language cannot fairly be extended to impose an affirmative

obligation on the State to ensure that those interests do not come to harm

through other means.

DeShaney v. Winebago

County Dept. of Social Servs ., 489 U.S. 189, 196 (1989). The due process clause "does not require

the State to provide its citizens with particular protective services, [and] it

follows that the State cannot be held liable under the Clause for injuries that

could have been averted had it chosen to provide them." Id . at 196-97. As a general matter, a state actor's failure

to protect an individual against private violence simply does not constitute a

violation of the due process clause. Id .

Nevertheless,

there are recognized exceptions to this general rule, including (1) the

"special relationship" exception and (2) the "state created

danger" exception. In conjunction

with these exceptions, the Trevinos urge that the School District Employees

were "deliberately indifferent" or conducted improper supervision.

1. Special Relationship Exception

The

"special relationship" exception arises only where "the state,

by affirmative exercise of power, has custody over an individual involuntarily

or against his will." Walton v.

Alexander , 44 F.3d 1297, 1303 (5th Cir. 1995) (en banc). Any "affirmative duty to protect arises

not from the State's knowledge of an individual's predicament or from its

expressions of intent to help him, but from the limitation which it has imposed

on his freedom to act on his own behalf."

DeShaney, 489 U.S. at 200 .

In the substantive due

process analysis, it is the State's affirmative act of restraining the

individual's freedom to act on his own behalf B through incarceration, institutionalization, or

other similar restraint of personal liberty B which is the "deprivation of liberty"

triggering the protections of the Due Process Clause, not its failure to act to

protect his liberty interests against harms inflicted by other means.

Id . In Walton , a special relationship was

found to exist because (1) the child attended a boarding school with

twenty-four hour custody of the student, (2) the student was deaf and lacked

basic communications skills, (3) the student was obviously not free to leave

while he lived at the school, and (4) economic realities forced most

Mississippi families with deaf children to send their children to the

school. Walton, 44 F.3d at

1355 . The court found that the

residential special education program created a significant custodial component

wherein Walton was dependent on the school for his basic needs and lost a

substantial measure of his freedom to act.

Id . Such is not the case

here.

Indeed,

the courts consistently "decline to hold that compulsory attendance laws

alone create a special relationship giving rise to a constitutionally rooted

duty." Doe v. Hillsboro Indep.

Sch. Dist ., 113 F.3d 1412 , 1415 (5th Cir. 1997) (en banc).

We join every circuit

court that has considered the issue in holding that compulsory school attendance,

in Texas to attend seven hours of programmed education on each school day, does

not create the custodial relationship envisioned by DeShaney . The restrictions imposed by attendance laws

upon students and their parents are not analogous to the restraints of prisons

and mental institutions.

Id . Moreover, "[i]t is well‑settled

that a state's failure to protect an individual against private violence simply

does not constitute a violation of the Due Process Clause." Leffall v. Dallas Indep. Sch. Dist .,

28 F.3d 521, 526 (5th Cir. 1994) (quoting DeShaney , 489 U.S. at 197 )

(rejecting claims that the state was categorically obligated to provide a

student, who was injured in a random shooting, with protection from injury

outside the school dance). Importantly,

Section 1983 imposes

liability for violations of rights protected by the Constitution, not for

violations of duties of care arising out of tort law. To state a cause of action under ' 1983 for violation of

the Due Process Clause, plaintiffs must show that they have asserted a

recognized liberty or property interest within the purview of the Fourteenth

Amendment, and that they were intentionally or recklessly deprived of that

interest, even temporarily, under color of state law.

Taylor Indep. Sch.

Dist .,

15 F.3d at 450 (citations omitted). Such

due process rights have been found to have been violated where a teacher lashed

a second-grade student to a chair for the better part of two days, see Jefferson

v. Isleta Indep. Sch. Dist ., 817 F.2d 303 , 305 (5th Cir. 1987), and where

corporal punishment was inflicted in a public school in an arbitrary or

capricious manner, "wholly unrelated to the legitimate state goal of

maintaining an atmosphere conducive to learning." Fee v. Herndon , 900 F.2d 804, 808 (5th

Cir. 1990).

"The

special relationship doctrine is properly invoked in cases involving harms

inflicted by third parties, and it is not applicable when it is the conduct of

a state actor that has allegedly infringed a person's constitutional

rights." Leffall , 28 F.3d at

538 (citing Taylor Indep. Sch. Dist., 15 F.3d at 450 ). No constitutional due process rights under

section 1983 are triggered absent the type of custodial "special"

relationship that infringes on rights. See

DeAnzona v. City and County of Denver , 222 F.3d 1229, 1234 (10th Cir.

2000), which involved the drowning of a five-year-old participating in a summer

day-camp program. An inadequate number

of counselors were supervising the children, in violation of state requisites. Id . at 1233. Plaintiffs in that case alleged similar

violations of constitutional rights; some of the defendants argued they were

entitled to qualified immunity because there had been no showing of the

violation of a clearly established right.

Id . at 1233-34.

As

here, the DeAnzona plaintiffs alleged inadequate or no training,

inadequate provision of cell phones, no requirement that persons participating

be able to swim, and inadequate system of supervision and other failures. Id .

The court nevertheless reiterated that a plaintiff "must show

involuntary restraint by the government to have a claim under a special

relationship theory; if there is no custodial relationship there can be no

constitutional duty." Id . at

1234 (citing DeShaney , 489 U.S. at 197 ).

Because schools do not provide for a child's basic needs, school

children do not have the requisite "special relationship" with the

government. Id . [8] Similarly, in Bradberry v. Pinellas County ,

789 F.2d 1513, 1517 (11th Cir. 1986), in issue was the federal court's

dismissal of a claim brought under section 1983 subsequent to a drowning, in

which allegations included inadequate training of lifeguards. The court observed:

[A] local governmental

body does not deprive a person of his right to life for purposes of 42 U.S.C. ' 1983 when it grossly

negligently trains one of its agents . . . .

The Constitution, as opposed to local tort law, does not prohibit

grossly negligent rescue attempts nor even the grossly negligent training of

state officers. Rather, it prohibits the

deprivation of life, liberty, or property without due process of law. Although the state might be prohibited by the

Due Process Clause from actively taking the life of a citizen through grossly negligent

behavior, we do not believe that due process is implicated when the state fails

to help someone already in danger. . . .

We decline to take such an extreme step.

Id . at 1517; see

Rankin v. City of Wichita Falls, Texas , 762 F.2d 444, 449 (5th Cir. 1985)

(involving a complaint for grossly negligent customs and practices and safety

deficiencies that resulted in a death).

The Rankin court found no cause of action under section 1983

because the complaint failed to allege "the abuse of any peculiar

authority or obligation held by the government," or the "sort of

abuse of government power necessary to elevate an ordinary tort claim to

constitutional status." Rankin ,

762 F.2d at 449 . We similarly decline to

take such a step, and conclude there was no special relationship of the

requisite type to create a constitutional duty on the part of the School

District Employees to safeguard Oscar against potential harm.

2. State-Created Danger

Exception

The

Fifth Circuit has never adopted the state-created danger exception for claims

brought under section 1983. Scanlan

v. Tex. A & M Univ ., 343 F.3d 533, 537 (5th Cir. 2003). Nevertheless, it recognizes the elements of

the doctrine: "a plaintiff must

show the defendants used their authority to create a dangerous environment for the plaintiff and

that the defendants acted with deliberate indifference to the plight of the

plaintiff." Id . at

537-38 (quoting Johnson v. Dallas Indep. Sch. Dist ., 38 F.3d 189 , 201

(5th Cir. 1994)). The "environment

created by the state actors must be dangerous; they must know it is dangerous;

and . . . they must have used their authority to create an opportunity that

would not otherwise have existed for the third party's crime to occur." Id . at 538 (quoting Piotrowski v.

City of Houston , 237 F.3d 567, 585 (5th Cir. 2001)).

The

sixth circuit outlines three important requirements that must be satisfied

before the state-created danger exception is applicable: an affirmative act that creates or increases

the risk, a special danger to the victim as distinguished from the public at

large, and the requisite degree of state culpability. McQueen v. Beecher Cmty. Sch ., 433

F.3d 460, 464 (6th Cir. 2006). As to the

first prong, "[l]iability under the state‑created‑danger

theory is predicated upon affirmative acts by the state which either create or

increase the risk that an individual will be exposed to private acts of

violence." Id . (emphasis

added) (noting numerous instances where claims were rejected because the

challenged conduct either was not an affirmative act at all or did not create

or increase the risk of private violence to the plaintiff). In addition to the affirmative act, for a

"special danger" to exist, "the state's action [must have

placed] the victim specifically at risk, as distinguished from a risk that

affects the public at large." Id .

at 468 (noting this is a "high bar").

Even where this element may be satisfied, a plaintiff must still show

that "state must have known or clearly should have known that its actions

specifically endangered an individual."

Id . at 469. This requires

egregious conduct rising to a level of "deliberate indifference;"

this "deliberate indifference" is equated with "subjective

recklessness." Id . This means that the official "must both

be aware of facts from which the inference could be drawn that a substantial

risk of serious harm exists, and he must also draw the inference ." Id . (emphasis added). The plaintiff must demonstrate that the state

official acted with culpability clearly beyond that of mere negligence. McClendon v. City of Columbia , 305

F.3d 314, 324 (5th Cir. 2002) (en banc) (per curiam). "Only the most egregious official

conduct can be said to be arbitrary in the constitutional sense." Id . at 236 (citing County of

Sacramento v. Lewis , 523 U.S. 833, 846 (1998)). The behavior must rise to a level that

"shocks the conscience;" the due process guarantee "does not

entail a body of constitutional law imposing liability whenever someone cloaked

with state authority causes harm." Id .

(citing Lewis , 523 U.S. at 848 ). "Liability for negligently

inflicted harm is categorically beneath the threshold of constitutional due

process." Id . [9]

The

Trevinos contend that the failure of the School District Employees to properly

monitor and supervise the situation was so egregious and grossly negligent that

it did amount to deliberate indifference to Oscar's constitutional rights under

section 1983. [10] However, "to act with deliberate

indifference, a state actor must know [of and disregard] an excessive risk to

[the victim's] health or safety." Id .

(citing Ewolski v. City of Brunswick , 287 F.3d 492, 513 (6 th

Cir. 2002); Farmer v. Brennan , 511 U.S. 825, 837 (1994)). The court in McClendon concluded that

while conduct of the officer in question was certainly "inadvisable,"

there was no evidence in the record suggesting that he acted with knowledge

that his conduct would pose a threat to the plaintiff's safety, and in the

circumstances, "no rational trier of fact could find that [he] acted with

any level of culpability beyond mere negligence." Id .

There was therefore no violation of substantive due rights and the

officer was entitled to summary judgment on the grounds of qualified

immunity. Id .

Here,

we are faced with allegations that, if true, could certainly be found by a

rational trier of fact to constitute negligence. However, to say that the conduct constitutes

"deliberate indifference" would require us to conclude that the

School District Employees knew of and deliberately disregarded an excessive

risk to the Oscar's health or safety. See

id . at 324. We cannot conclude that

the conduct was so severe as to reach the level of "shocking the

conscience" contemplated by the Supreme Court. See Farmer , 511 U.S. at 837 . [11] We further decline to do so where the Fifth

Circuit has consistently recognized:

A state actor's

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.

McClendon , 305 F.3d at 326 n.8

(citing Farmer , 511 U.S. at 837 ). [12] We decline to find that the requisites for a

state-created danger exception have been satisfied.

We

are cognizant of the Trevinos' argument that liability should be imposed based

on a policy of inaction and deliberate indifference which resulted in a

deprivation of Oscar's "constitutional" right to life. We have already rejected the argument that

the conduct involved by the individual School District Employees constituted

"deliberate indifference" as that term is understood by the United

State Supreme Court and the Fifth Circuit Court of Appeals. Farmer , 511 U.S. at 837 ; McClendon ,

305 F.3d at 326 . We further note:

Respondeat superior is

not a proper basis for liability under ' 1983. Nor can the liability of supervisors be based

solely on the right to control employees, or "simple awareness of

employees' misconduct."

Furthermore, "a supervisory official's failure to supervise,

control or train the offending individual is not actionable unless the

supervisor 'either encouraged the specific incident of misconduct or in some

other way directly participated in it.'

At a minimum a plaintiff must show that the [supervisor] at least

implicitly authorized, approved, or knowingly acquiesced in the

unconstitutional conduct of the offending officers." . . . [Further, a]

prerequisite of supervisory liability under ' 1983 is unconstitutional conduct by a subordinate

of the supervisor.

McQueen , 433 F.3d at 470

(citations omitted).

School

officials performing discretionary functions are protected from civil liability

under the doctrine of qualified immunity unless there is the violation of a

clearly established constitutional right.

Beck , 204 F.3d at 638.

Here, we have neither the requisite custodial relationship nor a

state-created danger that would open the door to any exception to this general

rule. We conclude that the School

District Employees properly raised a good faith plea of entitlement to

qualified immunity under section 1983, and that, pursuant to federal

substantive law, they were not required to put forth evidence in support of

that claim. Cousin , 325 F.3d at

632 (citing Beck, 204 F.3d at 633).

Once the School District Employees raised this affirmative defense, the

burden shifted to the Trevinos to rebut it.

Id . The School District

Employees are entitled to qualified immunity from the Trevinos' claims, absent

a showing of a violation of "clearly established constitutional

law." Anderson , 483 U.S. at

640 ; Beck , 204 F.3d at 638. We

conclude that the Trevinos have failed in their burden to show a violation of

clearly established constitutional law.

C. Reasonableness of Conduct

Claims

of qualified immunity are reviewed under a two-step analysis. First, we review whether the plaintiff has

asserted the violation of a clearly established constitutional right. Only if we find such a violation do we then

consider whether the defendant's conduct was objectively reasonable in light of

the constitutional right. Beck, 204

F.3d at 638 (citing Coleman v. Houston Indep. Sch. Dist ., 113 F.3d 528,

533 (5th Cir. 1997)). Because we have

found no such violation, we do not consider reasonableness of the conduct. We sustain the School District Employees'

first and third issues on appeal.

V. Conclusion

We

sustain School District Employees' first and third issues concerning immunity,

reverse the trial court's order, and render summary judgment in favor of the

School District Employees in their individual capacities only. See Hernandez , 53 S.W.2d at 406. We dismiss that portion of the appeal dealing

with the School District Employees' second issue, relating to claims against

them in their official capacities, concluding we do not have jurisdiction over

it. See Giroux-Daniel , 956 S.W.2d

at 699 .

ERRLINDA CASTILLO

Justice

Opinion delivered and

filed

this the 8th day of

June, 2006.

[1] Appellants include Filomena Leo,

Daniel Villarreal, Cesar Ramirez, Lucercio Flores, Ruben F. Farias, Arturo

Gonzalez, Jr., Joe Aguilar, Carmen Ramirez, Elma Garza, Annie Aranguren, Max

Diaz, Juan Ochoa, Leonel Peña, Nora Garza, Aida Torres, Luz Alicia Resendez, Lionel

Perez, Ruth Winkler, Rosa Cardenas, Salvador Magaña, Rosario Alaniz, Jose

Garcia and Max Perez, in their individual and official capacities. All are employees of the La Joya Independent

School District ("La Joya ISD").

[2] Other defendants, not parties to

this appeal, are also named in the suit and include the La Joya ISD, the

athletic club and many of its personnel, as well as the company charged with

pool services for the club.

[3] Qualified immunity serves to

"shield a government official from civil liability for damages based upon

the performance of discretionary functions if the official's acts were

objectively reasonable in light of then clearly established law." Thompson

v. Upshur County , 245 F.3d 447 , 456 (5th Cir. 2001). Where a defendant pleads qualified immunity,

the burden of proof shifts to the plaintiff.

See Pierce v. Smith , 117 F.3d 866, 872 (5th Cir. 1997).

[4] If qualified immunity were raised

in response to a claim raised under Texas law, a traditional summary judgment

motion would raise this affirmative defense.

Summary judgment for a defendant is proper when the summary judgment

evidence negates an essential element of the plaintiff's cause of action as a

matter of law or conclusively establishes all elements of an affirmative

defense as a matter of law. See Black

v. Victoria Lloyds Ins. Co , 797 S.W.2d 20, 27 (Tex. 1990). In such circumstances, the government

official would be required to conclusively prove each element of the

affirmative defense. Univ. of Houston

v. Clark , 38 S.W.3d 578, 580 (Tex. 2000).

[5] The Trevinos indicate in their petition that this is

a "pre-HB4 case." See Act

of May 27, 1995, 74th Leg., R.S., ch. 260, ' 1, section 22.051, 1995 Tex. Gen. Laws 2207 , 2283.

[6] Tex. Educ. Code Ann . ' 22.0511 (Vernon Supp. 2005) . See Act of June 2, 2003 (also known as

"HB4"), 78th Leg., R.S., ch. 204, ' 15.01, 2003 Tex. Gen. Laws 847 , 890; Act of May 29, 2003,

78th Leg. R.S. ch. 1197, ' 1, 2003 Tex. Gen. Laws 3404 .

[7] The immunity afforded by section

22.0511 of the education code requires that the person asserting it establish

four elements: (1) he or she is a professional employee of a school district,

(2) acting incident to or within the scope of duties, (3) which involve the

exercise of judgment or discretion, and (4) are not within the stated

exceptions. See Williams v. Chatman ,

17 S.W.3d 694, 699 (Tex. App. B Amarillo 1999, pet. denied). However, in their petition, the Trevinos

couch all their claims under section 1983.

See 42 U.S.C. ' 1983 (West 2003 & Supp. 2005). They allege that qualified immunity does not

apply because the employees' negligent discipline of Oscar resulted in bodily

injury. That negligence is alleged to

include (1) failure to discipline Oscar for being in the pool without

supervision, (2) negligent discipline of Oscar in a manner that failed to

prevent his drowning, (3) negligent discipline of Oscar for failing to make him

stay with other students at all times, and (4) negligent discipline of Oscar

for failing to require him to be in a proper location at the club at all

times. The Trevinos also contend in

their petition that immunity from liability does not attach based upon other

duties derived from state law that allegedly involve mandatory or ministerial

activities, including: (1) supervisory

and disciplinary responsibilities under education code sections 37.008(h)

(dealing with disciplinary alternative education programs) and 37.0021(d)

(dealing with confinement, restraint, seclusion, and time-outs for students

receiving special education services), (2) the duty to remove a child from or

not place him in a situation that involves substantial risk of immediate harm under

section 261.001 of the family code, and (3) the reporting of child abuse or

neglect, the duty not to adversely affect his learning, physical or mental

health or safety, and not to physically mistreat him under title 19, sections

61.1051, 247.2 and 242.15 of the administrative code. See Tex.

Educ. Code Ann . ' ' 37.0021(d), 37.008(h) (Vernon

Supp. 2005); Tex. Fam. Code Ann . ' 261.001 (Vernon Supp. 2005); 19 Tex. Admin. Code Ann . ' ' 61.1051, 247.2, 242.15

(2005). We note that, under the facts of

the case as set out in the Trevinos' pleadings, Oscar was not then a special

education student, a student being subjected to discipline, or a student at

risk of child abuse.

[8] DeAnzona further observed

that "in order to overcome the qualified immunity of a supervisor, a

plaintiff must show that the defendant‑supervisor took deliberate action

in directing the constitutional violation, or had actual knowledge of the

violation and allowed the violation to continue." DeAnzona v. City and County of Denver ,

222 F.3d 1229, 1234 (10th Cir. 2000).

The court stated that the "better approach" is "to

determine first whether the plaintiff has alleged a deprivation of a

constitutional right at all." Id .

[9] See Hart v. City of Little Rock ,

432 F.3d 801, 805 (8th Cir. 2005) ("The Due Process Clause's guarantee

does not entail a body of constitutional law imposing liability whenever

someone cloaked with state authority causes harm[,] and does not transform

every tort committed by a state actor into a constitutional violation.")

(citations omitted); Pena v. Deprisco , 432 F.3d 98, 112 (2d Cir. 2005)

("The Fourteenth Amendment is not a 'font of tort law.' It does not provide a comprehensive scheme

for determining the propriety of official conduct or render all official

misconduct actionable.") (citations omitted); Rivera v. Rhode Island ,

402 F.3d 27, 37-38 (1st Cir. 2005) ("[M]erely rendering a person more

vulnerable to risk does not create a constitutional duty to protect . . . [and]

alleging state actions which render the individual more vulnerable to harm,

under a theory of state created danger, cannot be used as an end run around DeShaney' s

core holding.") (citing DeShaney v. Winebago County Dept. of Social

Servs ., 489 U.S. 189, 200 (1989)).

[10] In response to School District

Employees' no-evidence motion for summary judgment, the Trevinos tendered

evidence to show the following: (1) the

school approved and planned the field trip; (2) the principal was aware that

swimming, one of the available activities, could be dangerous and that a

drowning was a "possibility;" (3) the day before this trip, the

seventh graders took a similar trip and one student allegedly"nearly drowned;"

(4) school officials were advised and were therefore aware of the "near

drowning;" (5) the principal nevertheless determined that the eighth grade

field trip would go forward to the same facility the next day; (6) Oscar did

drown; (7) the principal opted not to secure lifeguards for the event or to

conduct a headcount at intervals during the day; (8) school officials did not

learn Oscar was missing until several hours after he died, and only after a

lengthy search was he found in the swimming pool; (9) the school district had

never conducted in-service training or special safety training for dealing with

swimming or other types of field trips; and (10) no additional safety

procedures were put in place in the wake of the "near-drowning" on

the preceding day.

[11] We agree that in certain

instances, supervisors can be liable for "gross negligence" or

"deliberate indifference" to affirmative violations by their subordinates. Taylor Indep. Sch. Dist. , 15 F.3d at

452 (citing Hinshaw v. Doffer , 785 F.2d 1260, 1262 (5th Cir. 1986)

(establishing a three-part test for supervisory liability requiring a plaintiff

to show (a) failure to supervise, (b) a causal connection between the failure

to supervise or train and the plaintiff's rights, and (c) that the failure to

supervise or train amounted to gross negligence or deliberate

indifference)). Nevertheless,

fundamental to this analysis is an initial affirmative violation of the

plaintiff's constitutional rights by a state actor. Id .

In City of Canton v. Harris ,

489 U.S. 378, 388-89 (1989), the Supreme Court held that a municipality could

be responsible in certain circumstances under section 1983 for a failure to

train its employees that resulted in the violation of a plaintiff's right to

receive necessary medical attention while in police custody. Id. at 381 . Again, however, the duty arose because of the

state's affirmative exercise of power over the individual's freedom (i.e., the

individual was in custody). Id . Extension of that duty beyond such

circumstances is rejected. See Benavides

v. Santos, 883 F.2d 385, 387-88 (5th Cir. 1989) (finding it proper to

dismiss a complaint based on section 1983 allegations that jail supervisors

were callously indifferent or grossly negligent in failing to protect jailers

from injury when inmates attempted to escape).

The affirmative duty to protect

prisoners . . . arises only because the state has, by an affirmative exercise

of power, so restrained the prisoner's liberty that he cannot care for himself;

prison guards and jailers, on the other hand, are simply employees who are

under no compulsion to submit to unsatisfactory working conditions and may quit

whenever they please.

Leffall v. Dallas

Indep. Sch. Dist .,

28 F.3d 521, 528 (5th Cir. 1994) (citing Benavides , 883 F.2d at

388 ). The due process clause "does

not guarantee . . . a workplace free from unreasonable risks of

harm." Id . (quoting Collins

v. City of Harker Heights , 503 U.S. 115, 128 (1992) (rejecting claims that

the due process clause be interpreted to impose federal duties analogous to

those traditionally imposed by state tort law)).

[12] We note that this is not a

situation where children were left to their own devices to enter the pool

completely unattended or unsupervised.

Such conduct, in this context, might more closely equate to the

"deliberate indifference" contemplated by Farmer v. Brennan ,

511 U.S. 825, 837 (1994) .