Estate of A.R. v. Terry Grier ( 2013 )


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  •      Case: 13-20091       Document: 00512408080         Page: 1     Date Filed: 10/16/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    October 16, 2013
    No. 13-20091                          Lyle W. Cayce
    Summary Calendar                             Clerk
    THE ESTATE OF A.R., A MINOR CHILD, DECEASED; TOMASA
    RODRIQUEZ, individually and on behalf of the heirs of A.R.,
    Plaintiffs - Appellants
    v.
    DAVE MUZYKA, Principal of the T.H. Rogers Elementary School,
    individually and in his official capacity; CRYSTAL EVANS, Individually and
    in her official capacity; HOUSTON INDEPENDENT SCHOOL DISTRICT,
    Defendants - Appellees
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:10-CV-533
    Before JOLLY, SMITH and CLEMENT, Circuit Judges.
    PER CURIAM:*
    The estate of A.R. and her mother, Tomasa Rodriquez, appeal the district
    court’s order granting summary judgment to the Houston Independent School
    District (“HISD”) on claims under Section 504 of the Rehabilitation Act, 29
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 13-20091      Document: 00512408080        Page: 2    Date Filed: 10/16/2013
    No. 13-20091
    U.S.C. § 794 (“Section 504"), and Title II of the Americans with Disabilities Act
    of 1990, 42 U.S.C. § 12132 (“ADA”).1 We AFFIRM.
    FACTS AND PROCEEDINGS
    A.R., a nine-year-old deaf child, attended a school for children with
    disabilities operated by the HISD. In the summer of 2008, her mother enrolled
    her in a voluntary summer enrichment program offered by the school that she
    had attended in prior summers. The program included swimming in the school’s
    shallow pool. A.R.’s mother signed a written permission form for her daughter
    to swim that summer, as she had signed in the previous summers A.R. had
    swam there without incident. Tragically, on June 26, 2008, A.R. experienced a
    seizure, fell into the water, and drowned. Efforts by teachers and medical
    personnel to save her proved unsuccessful.
    A.R.’s estate and her mother sued the HISD, the principal, and a physical
    education teacher who was overseeing the children in the pool area under
    Section 504 and the ADA. The principal and the teacher moved for summary
    judgment, which was granted. The HISD subsequently moved for summary
    judgment, which was also granted.
    A.R. appeals only the district court’s dismissal of the claims against the
    HISD. A.R. argues that she has raised a genuine dispute of material fact on her
    Section 504 and ADA claims that requires reversal of the district court.
    Specifically, A.R. argues that she has raised triable issues because 1) HISD
    intentionally discriminated against A.R. by refusing to provide services
    necessary to give A.R. safe and meaningful access to the summer program and
    2) grossly deviated from the standard of care in ignoring and mishandling
    information about A.R.’s seizure disorder.
    1
    The district court also granted HISD summary judgment on A.R.’s 42 U.S.C. § 1982
    claim. She does not challenge that decision on appeal.
    2
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    No. 13-20091
    DISCUSSION
    “We review a district court’s grant of summary judgment de novo, applying
    the same standard as did the district court.” Stults v. Conoco, Inc., 
    76 F.3d 651
    ,
    654 (5th Cir. 1996). Summary judgment is appropriate if there is no genuine
    issue of material fact and the moving party is entitled to judgment as a matter
    of law. Kinney v. Weaver, 
    367 F.3d 337
    , 348 (5th Cir. 2004). “We view facts in
    the light most favorable to the non-movant and draw all reasonable inferences
    in its favor.” Jackson v. Widnall, 
    99 F.3d 710
    , 713 (5th Cir. 1996).
    Under the ADA, “no qualified individual with a disability shall, by reason
    of such disability, be excluded from participation in or be denied the benefits of
    the services, programs, or activities of a public entity, or be subjected to
    discrimination by any such entity.” 42 U.S.C. § 12132. Because Section 504
    closely tracks the language of the ADA, we analyze ADA and Section 504 claims
    together. Hainze v. Richards, 
    207 F.3d 795
    , 799 (5th Cir. 2000).
    To make a prima facie case of discrimination under the ADA,
    a plaintiff must demonstrate: (1) that he is a qualified individual within
    the meaning of the ADA; (2) that he is being excluded from participation
    in, or being denied benefits of, services, programs, or activities for which
    the public entity is responsible, or is otherwise being discriminated
    against by the public entity; and (3) that such exclusion, denial of benefits,
    or discrimination is by reason of his disability.
    Melton v. Dallas Area Rapid Transit, 
    391 F.3d 669
    , 671-72 (5th Cir. 2004). “[I]n
    order to receive compensatory damages for violations of the Acts, a plaintiff must
    show intentional discrimination.” Delano-Pyle v. Victoria Cnty., 
    302 F.3d 567
    ,
    575 (5th Cir. 2002). “[A] cause of action is stated under § 504 when it is alleged
    that a school district has refused to provide reasonable accommodations for the
    handicapped plaintiff to receive the full benefits of the school program.” D.A. ex
    rel. Latasha A. v. Houston Indep. Sch. Dist., 
    629 F.3d 450
    , 453 (5th Cir. 2010).
    3
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    No. 13-20091
    This court has previously noted that “[f]acts creating an inference of
    professional bad faith or gross misjudgment are necessary to substantiate a
    cause of action for intentional discrimination under § 504 or ADA against a
    school district . . .” 
    Id. at 455. There
    is some discussion in the district court’s
    opinion as to whether this standard only applies to claims under the Individuals
    with Disabilities Education Act, 20 U.S.C. § 1400, or to all § 504 and ADA
    claims. Certainly, D.A. stands for the proposition that Congress did not intend
    § 504 or ADA claims to create general tort liability for the government. 
    Id. Furthermore, as the
    district court ably noted below, under either a bad faith
    standard or the standard proposed by A.R. ("deliberate indifference") there is no
    genuine issue of material fact. Something more than mere negligence must be
    shown.
    A.R. argues that she has raised a material issue of whether the school
    district intentionally discriminated against her, contending that discrimination
    can be proved without showing different treatment or any active animus on the
    part of the school.2 Admittedly, none was present here. The argument instead
    is that “A.R.’s safe and meaningful access to the program was interrupted
    because of her disability.” A.R. points out many things the school could have
    done to make the situation safer for her in the pool area: additional lifeguards,
    different types of alarm devices, and so on.
    Even taking all the evidence A.R. presents as true, she at most only
    establishes negligence. There is no evidence presented that rises to the level of
    “bad faith or gross misjudgment” or “deliberate indifference” by the school
    district. There is no evidence of “intentional discrimination” against A.R. in this
    2
    A.R. points to our decision in Bennett-Nelson v. Louisiana Board of Regents to support
    the proposition that proof of animus is not required. 
    431 F.3d 448
    (5th Cir. 2005). That
    decision, however, concerned “the sole issue... [of] whether Louisiana’s Eleventh Amendment
    sovereign immunity” barred claims under the ADA and Section 504. 
    Id. at 450. 4
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    school that was established to teach and serve disabled children. There is no
    evidence of any exclusion of A.R. from the benefits of services, programs, and
    activities at the school. Tragically, A.R.’s death resulted from her inclusion in
    the full activities of a summer school program that was not discriminatory under
    the case law or the statute, and the district court did not err when it determined
    that no genuine issue of material fact existed to present to a jury.
    CONCLUSION
    For the reasons given above, the district court’s order granting summary
    judgment for HISD is AFFIRMED.
    5