Petition for Writ of Certiorari — Chase Yarbrough, Petitioner v. Santa Fe Independent School District, et al.

App. 1

United States Court of Appeals

for the Fifth Circuit

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No. 21-40519

Summary Calendar

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CHASE YARBROUGH,

Plaintiff—Appellant,

versus

SANTE FE INDEPENDENT SCHOOL DISTRICT; DOCTOR

LEIGH WALL; MARK KANIPES; RICHARD DAVIS; JESS

GOLIGHTLY; MATTHEW BENTLEY; CHRISTOPHER CAVNESS;

RAYMOND BUSE; MARIE GRIFFIN; TAYLOR WULF,

Defendants—Appellees.

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Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:20-CV-322

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(Filed Mar. 25, 2022)

Before KING, COSTA, and HO, Circuit Judges.

GREGG COSTA, Circuit Judge:*

* Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH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.

App. 2

A high-school student suffered a concussion during football practice. The student brought a constitutional claim against the school district and several of

its officials for failing to protect him from bodily harm.

The district court dismissed the suit, finding no substantive due process claim. We AFFIRM.

I

Chase Yarbrough played football for Santa Fe

High School. At practice one day, the coaching staff instructed Yarbrough and his teammates to perform a

drill in which half the players tried to prevent the others from crossing the line of scrimmage. Yarbrough was

matched against an older and substantially larger student. The two players repeatedly collided as the coaching staff instructed them to run the drill again and

again “and to hit harder, harder, harder.”

After practice, Yarbrough began to experience a severe headache. He contacted his mother, who told him

to go to the school nurse. The nurse sent Yarbrough to

the football trainer, who instructed Yarbrough to sit

out afternoon practice. Yarbrough followed that instruction, but his headache persisted. The next day, the

trainer directed Yarbrough to seek medical treatment.

A day later, Yarbrough went to a sports medicine

clinic, where he was diagnosed with a concussion and

cervical sprain. The doctor advised Yarbrough that he

had likely suffered an initial injury at an earlier practice and had been playing football with a concussion

for a few weeks.

App. 3

After his diagnosis, Yarbrough continued to experience concussion-related symptoms. As a result,

Yarbrough filed this suit against the Santa Fe Independent School District and various members of its

athletics staff. Yarbrough alleged that the defendants

violated his Fourteenth Amendment right to bodily integrity by subjecting him to dangerous football drills.

The defendants moved to dismiss Yarbrough’s claims,

arguing first and foremost that Yarbrough had failed

to allege a colorable constitutional violation. The district court agreed and dismissed Yarbrough’s claims

with prejudice.

II

To state a claim for violation of his liberty interest

in bodily integrity, Yarbrough must show either (1)

that the constitutional violation was caused by a state

actor or (2) that the defendants had a constitutional

duty to protect him from a nonstate actor. See Doe ex

rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675

F.3d 849, 855 (5th Cir. 2012) (en banc). Yarbrough cannot succeed under the first theory because he was injured by his teammate, a nonstate actor. The question

then is whether the defendants had a constitutional

duty to protect Yarbrough from his teammate.

Generally, the government is not obligated to protect its citizens from violence by third parties. See

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489

U.S. 189, 199–200 (1989). Some of our sister circuits

have recognized an exception to the rule, under which

App. 4

“a state may be liable for private violence if it created

or exacerbated the danger.” Bustos v. Martini Club Inc.,

599 F.3d 458, 466 (5th Cir. 2010). Yarbrough asks us to

apply that exception here. We have “repeatedly declined to recognize the state-created danger doctrine in

this circuit.” Joiner v. United States, 955 F.3d 399, 407

(5th Cir. 2020); see also Cook v. Hopkins, 795 F. App’x

906, 914 (5th Cir. 2019); Estate of C.A. v. Castro, 547 F.

App’x 621, 627–28 (5th Cir. 2013); Doe, 675 F.3d at 866;

Beltran v. City of El Paso, 367 F.3d 299, 307 (5th Cir.

2004). Once again, we need not decide the question because even if we were to recognize the doctrine, it

would not apply to this case.

To prove a state-created danger, Yarbrough would

have to show that the defendants used their authority

to place him in immediate danger and did so with “deliberate indifference” to his plight. See Doe, 675 F.3d at

865; see also Lester v. City of College Station, 103 F.

App’x 814, 815 (5th Cir. 2004) (“[L]iability exists only

if the state actor is aware of an immediate danger facing a known victim.”). Football is dangerous. But football does not present such an immediate or specific

danger to the players that schools and coaches can be

held liable for any injuries that result. Indeed, courts

have frequently rejected civil-rights claims based on

football injuries—some of which involved more glaring

and unreasonable dangers than those at bar. See e.g.,

Davis v. Carter, 555 F.3d 979, 984 (11th Cir. 2009) (finding no liability for the death of a player who was refused water during a strenuous football practice);

Myers v. Troup Indep. Sch. Dist., 895 F. Supp. 127, 130

App. 5

(E.D. Tex. 1995) (same for a player who suffered nerve

and muscle damage after he was ordered back onto the

field moments after being knocked unconscious); see

also Lesher v. Zimmerman, 822 F. App’x 116, 118 (3d

Cir. 2020) (finding no liability when softball practice

left plaintiff with a fractured jaw and four lost teeth).

Even if Yarbrough could show that football is a

qualifying danger, his claim would still fail because the

defendants did not act with deliberate indifference by

allowing Yarbrough to participate. See Doe, 675 F.3d at

865. “To act with deliberate indifference, a state actor

must know of and disregard an excessive risk to the

victim’s health or safety.” McClendon v. City of Columbia, 305 F.3d 314, 326 n.8 (5th Cir. 2002) (cleaned up).

Yarbrough does not allege that his coaches knew he

was concussed and forced him to play anyway. Nor does

he allege that he suffered any obvious injury during

football practice, which should have led coaches to take

him off the field. Rather, Yarbrough’s headaches

started after practice concluded, and days after he was

initially injured. And, once school officials knew that

Yarbrough was injured, they immediately instructed

him to avoid football until he could consult a doctor.

Yarbrough has thus failed to plead facts showing that

the defendants consciously disregarded an immediate

threat to his safety. Without such allegations, Yarbrough’s claim could not succeed even if we were to embrace the state-created danger theory.

There is growing debate in this country about the

dangers of football. The problem of concussions has

reached the court system via tort suits. See, e.g., In re:

App. 6

NFL Players’ Concussion Injury Litig., 821 F.3d 410 (3d

Cir. 2016). But we do not see a role for the Constitution

in the weighing of risks and benefits that participants

in America’s most popular sport must make.

***

The judgment of the district court is AFFIRMED.

App. 7

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

CHASE YARBROUGH,

§

§

Plaintiff.

§

CIVIL ACTION NO.

VS.

§

3:20-cv-00322

SANTA FE INDEPENDENT §

SCHOOL DISTRICT, ET AL., § (Filed May 25, 2021)

§

Defendants.

§

MEMORANDUM AND RECOMMENDATION

Before me is Defendants’ Motion to Dismiss Plaintiff ’s First Amended Complaint Pursuant to Rule

12(b)(6). Dkt. 23. Having reviewed the briefing, the live

complaint, and the applicable law, I recommend that

the Motion to Dismiss be GRANTED.

BACKGROUND

The allegations that follow are set forth in Plaintiff ’s First Amended Complaint and told in the light

most favorable to Plaintiff, Chase Yarbrough (“Yarbrough”).

Yarbrough began playing football in 7th grade at

Santa Fe Junior High in Santa Fe Independent School

District (“Santa Fe ISD”). Yarbrough continued playing

football until his sophomore year at Santa Fe High

School (“SFHS”). The circumstances underlying this

suit took place during his sophomore year at SFHS.

App. 8

On September 21, 2016, Yarbrough attended football practice during 4th period and participated in

scrimmage drills. One drill required Yarbrough to prevent another player across from him, C.P., from crossing the line of scrimmage. According to Yarbrough, at

the time of this drill, he “weighed approximately 130140 pounds,” and C.P. “was an older, more skilled, and

substantially larger player.” Dkt. 21 at 11. Notwithstanding the size difference, Yarbrough alleges that

during the drill he and C.P. repeatedly collided, helmet

to helmet and upper body to upper body. Yarbrough

contends that the drill was conducted “at the direction,

orchestration, instruction, oversight, and requirement

of the” coaches. Id. at 12. “Indeed, the coaches yelled at

Yarbrough and other players to line up again, and

again, and again, and to hit harder, harder, harder.” Id.

The coaches never attempted to stop or prevent the potentially dangerous contact.

After 4th period practice, Yarbrough changed

clothes and went to lunch, where he began experiencing a severe headache. He contacted his mother, who

instructed him to go to the school nurse. He did. The

school nurse sent Yarbrough to the football trainer,

Brooke Griffin (“Griffin”). Griffin instructed Yarbrough

to not participate in afternoon practice. As instructed,

Yarbrough did not participate in that afternoon’s practice.

Following afternoon practice, Yarbrough reported

to Griffin that he was still experiencing a severe headache. Griffin advised him that he might have a concussion. She sent Yarbrough home with instructions to

App. 9

rest and report back to her if his symptoms continued

into the next day. The next day, Yarbrough still had a

headache and again spoke with Griffin. Griffin directed him to seek medical treatment.

On September 23, 2016, Yarbrough went to the

Houston Methodist Orthopedic & Sports Medicine

Clinic, where he was diagnosed with a concussion and

a cervical strain/sprain. The physician also advised

Yarbrough that he likely suffered a concussion prior to

the September 21, 2016 football practice and had been

practicing with a concussion for a few weeks.

Following the September 23, 2016 diagnosis, Yarbrough continued to experience various concussionrelated symptoms. As a result, he filed this suit

against Santa Fe ISD; E. Leigh Wall, Ph.D. (“Dr. Wall”),

the Santa Fe ISD Superintendent; Mark Kanipes

(“Kanipes”), the Athletic Director and Head Coach of

the SFHS football team; Richard Davis (“Davis”), Jess

Golightly (“Golightly”), Mathew Bentley (“Bentley”),

Christopher James Cavness (“Cavness”), Taylor Wulf

(“Wulf ”), and Raymond Buse (“Buse”), who are all Assistant Football Coaches at SFHS; and Griffin, the

football team’s trainer.1

Under 42 U.S.C. § 1983, Yarbrough alleges that

Defendants violated his Fourteenth Amendment right

to bodily integrity by subjecting him to dangerous

1

I refer to all the defendants collectively as “Defendants.” I

refer to Dr. Wall, Kanipes, Davis, Golightly, Bentley, Cavness,

Wulf, Buse, and Griffin, collectively, as “Individual Defendants.”

App. 10

football drills.2 In addition to his claim against the Individual Defendants, Yarbrough seeks to impose municipal liability against the school district.

Defendants have moved to dismiss this case on

multiple grounds. At the top of the list is Defendants’

contention that Yarbrough has failed to allege a violation of a constitutional right. Defendants also argue

that the Individual Defendants are entitled to qualified immunity.

RULE 12(b)(6) MOTION TO DISMISS

To obtain relief from a federal court, a complaint

must provide “a short and plain statement of the claim

showing that the pleader is entitled to relief.” FED. R.

CIV. P. 8(a)(2). Failure to comply with this pleading requirement can result in an early dismissal of the entire

lawsuit for “failure to state a claim upon which relief

can be granted.” FED. R. CIV. P. 12(b)(6).

To survive a motion to dismiss, the complaint must

plead “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). “A claim has facial plausibility

2

In the First Amended Complaint, Yarbrough organized his

claims as if it were two different causes of action. See Dkt. 21 at

19, 26. Defendants contend that even though Yarbrough states

that he has asserted two causes of action, “in reality, there is only

one: a deprivation of his right to bodily integrity under Section

1983.” Dkt. 23 at 11. Yarbrough seems to concede this point in his

response. See Dkt. 29 at 11 (“[T]hroughout the First Amended

Complaint [Doc. 21], Yarbrough alleges violations of his constitutional right to ‘bodily integrity’ under Section 1983.”).

App. 11

when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). A Rule 12(b)(6) motion tests the formal sufficiency of the plaintiff ’s complaint but should not be used to resolve factual issues

or the merits of the case. See In re McCoy, 666 F.3d 924,

926 (5th Cir. 2012) (It is the responsibility of the district court at the Rule 12(b)(6) stage to decide “whether

the plaintiff has stated a legally cognizable claim that

is plausible, not to evaluate the plaintiff ’s likelihood of

success.”).

On a Rule 12(b)(6) motion, the plaintiff ’s complaint is viewed in the light most favorable to the

plaintiff, and all well-pleaded facts are accepted as

true. See Alexander v. AmeriPro Funding, Inc., 848

F.3d 698, 701 (5th Cir. 2017). Because a complaint

must be liberally construed in favor of the plaintiff, a

motion to dismiss under Rule 12(b)(6) is generally

viewed with disfavor and is rarely granted. See Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147

(5th Cir. 2009).

DISCUSSION

A. THERE IS NO CONSTITUTIONAL VIOLATION

“To state a cause of action under § 1983 for violation of the Due Process Clause, [Yarbrough] must show

that [he has] asserted a recognized liberty or property

interest within the purview of the Fourteenth Amendment, and that [he was] intentionally or recklessly

App. 12

deprived of that interest, even temporarily, under color

of state law.’ ” Doe v. Taylor Indep. Sch. Dist., 15 F.3d

443, 450 (5th Cir. 1994) (quotation omitted). Under the

Fourteenth Amendment, there is a substantive due

process right to be free from state deprivation of one’s

bodily integrity. See Rios v. City of Del Rio, 444 F.3d

417, 421 (5th Cir. 2006); Taylor, 15 F.3d at 450–51. To

state a claim for violation of his liberty interest in bodily integrity, Yarbrough must show either (1) that the

constitutional violation was caused by a state actor or

(2) that Defendants had a constitutional duty to protect him a nonstate actor. See Doe v. Covington Cnty.

Sch. Dist. Ex rel. Keys, 675 F.3d 849, 855 (5th Cir. 2012).

Yarbrough cannot maintain a claim under the first

prong because he was injured (concussion) by a nonstate actor, his teammate. The question, then, is

whether the Defendants had a constitutional duty to

protect Yarbrough from his teammate.

The Supreme Court has held that the government

has no duty to protect citizens from deprivations of liberty by third parties, except when the government has

a “custodial special relationship” with the plaintiff.

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489

U.S. 189, 199–200 (1989). Several of the Fifth Circuit’s

“sister circuits have read the DeShaney opinion to

suggest that in addition to the ‘special relationship’ exception to the general rule against state liability for

private violence, a state may be liable for private violence if it created or exacerbated the danger.” Bustos v.

Martini Club Inc., 599 F.3d 458, 466 (5th Cir. 2010).

This is often referred to as the “state-created-danger”

App. 13

exception. The Fifth Circuit has “repeatedly declined

to recognize the state-created danger doctrine in this

circuit,” but even if it had, Yarbrough has not pleaded

sufficient facts to support either the special relationship or state-created-danger exception. Joiner v.

United States, 955 F.3d 399, 407 (5th Cir. 2020).

First of all, Yarbrough’s live pleading expressly

disavows relying on the special relationship exception.

See Dkt. 21 at 27 (“Plaintiff is not asserting liability

based on a special relationship.”). Even if Yarbrough

did allege some sort of special relationship, that still

would not move the needle because “a public school

does not have a special relationship with its students

for the purposes of the Due Process Clause.” S.M. ex

rel. Munos v. Sealy Indep. Sch. Dist., No. CV H-20-705,

2021 WL 1599388, at *8 (S.D. Tex. Apr. 23, 2021) (collecting cases). See also Covington, 675 F.3d at 859 (A

special relationship between the state and a person

has been found to exist only where “the state has,

through an established set of laws and procedures, rendered the person in its care completely unable to provide for his or her basic needs and it assumes a duty to

provide for these needs.” (emphasis added)); Doe ex rel.

Doe v. Dall. Indep. Sch. Dist., No. 3:01-CV-1092-R, 2002

WL 1592694, at *3 (N.D. Tex. July 16, 2002) (“[T]he

[school district] has not restrained [the plaintiff ’s]

freedom to act on her own behalf . . . so as to give rise

to a deprivation of liberty in violation of the Fourteenth

Amendment, nor have the [plaintiffs] alleged any such

restraint.” (emphasis omitted)).

App. 14

Given that Yarbrough is not alleging a special relationship, his only potential salvation is the state-created-danger exception. As mentioned above, the Fifth

Circuit “has consistently refused to recognize a ‘statecreated danger’ theory of § 1983 liability even where

the question of the theory’s viability has been squarely

presented.” Beltran v. City of El Paso, 367 F.3d 299, 307

(5th Cir. 2004). But even if the Fifth Circuit did recognize the exception, Yarbrough’s allegations are simply

insufficient.

The present lawsuit is, in essence, a condemnation

of the football culture which pervades much of society

in this part of the country. Boiled down, Yarbrough contends that the game of football, with its constant physical contact, aggression and violence, is an inherently

dangerous sport. Allowing high school football players

to repeatedly hit each other, Yarbrough maintains,

puts these youngsters in harm’s way. Even assuming

the truth of these allegations, Yarbrough has failed to

state a viable constitutional claim under the Due Process Clause. The Fifth Circuit has noted that “the

state-created danger theory, if it were to be recognized,

would require knowledge of risk to a specific and

known victim, not merely knowledge of risk to an identifiable group of potential victims.” Est. of C.A. v. Grier,

918 F. Supp. 2d 619, 628 (S.D. Tex. 2013) (citing Covington, 675 F.3d at 865–66). “The law is clear, however,

that the existence of a dangerous environment is not a

state-created danger. The plaintiff must establish that

the state created an environment dangerous specifically to a known victim for a known reason, not a

App. 15

generalized risk.” Id. at 627. Instead of claiming that

the Individual Defendants were “aware of an immediate danger facing a known victim,” Lester v. City of

Coll. Station, 103 F. App’x 814, 815 (5th Cir. 2004), Yarbrough zeroes in on the overall danger of the sport and

the coaches continuously urging players to meet aggression with aggression. Notably, Yarbrough does not

complain that the coaches knowingly forced him to

continue contact drills after he suffered a concussion.

Because there are no allegations that the Individual

Defendants knew of an immediate danger specific to

Yarbrough when he participated in football practice,

the “state-based danger claim [must] necessarily fail.”

Pierce v. Hearne Indep. Sch. Dist., No. W:13-cv-00334,

2014 WL 11308099, at *10 (W.D. Tex. June 19, 2014)

(collecting cases).

No district court in the Fifth Circuit has ever held

that a high school athlete suffers a constitutional injury as a result of physical injuries incurred during

practice. Given the Fifth Circuit’s reluctance to embrace the state-created-danger exception in previous

cases, I am hesitant to go out on a limb and be the first

judge to adopt a previously unrecognized constitutional due process claim for high school football players

injured on the gridiron. If the Fifth Circuit believes

that high school athletes injured while participating in

athletic endeavors enjoy a constitutional claim under

the Due Process Clause, so be it. I’ll let the judges in

New Orleans pave the way.

App. 16

Because Yarbrough has not adequately alleged a

constitutional violation against the Individual Defendants, his constitutional claim against Santa Fe ISD

must be dismissed. See Brown v. Lyford, 243 F.3d 185,

191 n. 18 (5th Cir. 2001) (Where a plaintiff does not

state or otherwise show a constitutional violation,

“there exists no liability to pass through to the” governmental entity.).

B. THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO

QUALIFIED IMMUNITY

Even if the Fifth Circuit put its stamp of approval

on a Fourteenth Amendment due process claim for

high school athletes injured during football practice,

Yarbrough’s claims against the Individual Defendants

are nonetheless barred by the qualified immunity doctrine. “Qualified immunity shields government agents

from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a reasonable person would

have known.” Fuentes v. Gomez, No. 2:16-CV-390, 2018

WL 322161, at *3 (S.D. Tex. Jan. 8, 2018) (cleaned up).

This immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v.

Briggs, 475 U.S. 335, 341 (1986). A court should not

deny immunity unless “existing precedent . . . placed

the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citations omitted).

App. 17

As explained above, Yarbrough’s constitutional

claim relies on the state-created-danger exception. Because “the Fifth Circuit has never recognized this

‘state-created-danger’ exception,” Yarbrough has “not

demonstrated a clearly established substantive due

process right on the facts [he] alleges.” Keller v. Fleming, 952 F.3d 216, 227 (5th Cir. 2020). Accordingly, the

Individual Defendants are “entitled to qualified immunity on [Yarbrough’s] Fourteenth Amendment

claim.” Id. See also Fuentes, 2018 WL 322161, at *10

(“[T]he state-created-danger theory as a basis of liability was not clearly established at the time the incident

occurred and Defendants are entitled to qualified immunity.”).

CONCLUSION

For the reasons explained above, I recommend

that Defendants’ Motion to Dismiss (Dkt. 23) be

GRANTED, and this case be dismissed in its entirety.

The Clerk shall provide copies of this Memorandum and Recommendation to the respective parties

who have fourteen days from the receipt to file written

objections pursuant to Federal Rule of Civil Procedure

72(b) and General Order 2002-13. Failure to file written objections within the time period mentioned shall

bar an aggrieved party from attacking the factual findings and legal conclusions on appeal.

App. 18

SIGNED this 25th day of May 2021.

/s/ Andrew M. Edison

ANDREW M. EDISON

UNITED STATES

MAGISTRATE JUDGE