B. v. Jefferson Parish School Board ( 2023 )

Case: 22-30139 Document: 00516768262 Page: 1 Date Filed: 05/30/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 30, 2023
No. 22-30139
Lyle W. Cayce
____________
Clerk
S.B., on behalf of her minor daughter, S.B.,
Plaintiff—Appellant,
versus
Jefferson Parish School Board; Christi Rome; Janine
Rowell; Lesley Nick,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:21-CV-217
______________________________
Before Jolly, Haynes, and Graves, Circuit Judges.
Per Curiam: *
This is a civil rights action in which S.B., an eleven-year-old girl with
autism, alleges disability discrimination and violations of her constitutional
rights against Jefferson Parish School Board (“JPSB”), Schneckenburger El-
ementary School, Principal Christi Rome, her teacher Janine Rowell, and
paraprofessional Lesley Nick after suffering disciplinary corporal punish-
ment. S.B. appeals the district court’s: (A) dismissal of her disparate
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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treatment discrimination claims under § 504 of the Rehabilitation Act and
Title II of the Americans with Disabilities Act (“ADA”); (B) dismissal of her
claims under 42 U.S.C. § 1983 for violations of her substantive due process
and equal protection rights; and (C) conclusion that her failure to properly
exhaust her administrative remedies under the Individuals with Disabilities
Education Act (“IDEA”) barred her reasonable accommodation claims un-
der the Rehabilitation Act and the ADA. For the reasons set forth below, we
AFFIRM.
I.
S.B. attended Walter Schneckenburger Elementary School, a public
school in Kenner, Louisiana, operated by JPSB. Because of her autism, S.B.
occasionally exhibits inappropriate conduct, such as pinching and kicking.
She is taught by a special education teacher and is shadowed at school by a
“special needs paraprofessional” or “SNP.”
S.B.’s lawsuit stems from two incidents. The first occurred on
February 7, 2020, during a therapy session with a behavioral technician in
Janine Rowell’s class. During the session, S.B. refused to clean up puzzle
pieces and kicked at the technician when she tried to help. Rowell then
slapped S.B.’s wrists and scolded her for kicking, stating “No, ma’am! No
kicking!”
The behavioral technician reported the incident to the principal,
Christi Rome, who later obtained signed statements from two SNPs who
were in the classroom. 1 S.B. alleges that Rowell was not formally
reprimanded for the incident but instead transferred to another school.
_____________________
1
One said she witnessed Rowell grab S.B.’s wrists but did not witness any slapping.
The other SNP said she witnessed Rowell slapping S.B.’s wrists. This SNP also stated that
she had witnessed Rowell slapping S.B.’s wrists in this same manner two weeks prior.
2
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The second incident occurred approximately nine months later. S.B.
was working with her behavioral technician on spelling, and SNP Lesley Nick
was assisting S.B. At some point during the session, S.B. reached out and
pinched Nick’s neck. In response, Nick grabbed S.B.’s hand and slapped the
top of it, saying, “We do not pinch our friends!” According to S.B., the
special education teacher assigned to the classroom that day immediately
reported the incident to Rome. JPSB did not reprimand Nick but instead
transferred her to another school.
On February 3, 2021, S.B., through her mother, sued JPSB, Walter
Schneckenburger Elementary School, Rome, Rowell, and Nick (collectively
the “Defendants”). S.B. alleges claims under 42 U.S.C. § 1983 against all of
the Defendants for violations of her substantive due process and equal
protection rights. Additionally, she asserts claims under 42 U.S.C. § 1983against JPSB and Rome for failure to train. S.B. further alleges disparate
treatment discrimination claims under the Rehabilitation Act and Title II of
the ADA. Lastly, she alleges state law claims of battery, negligence, and
violations of Louisiana’s state disability discrimination laws.
Defendants moved to dismiss the Complaint, arguing that S.B. failed
to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
The district court granted these motions, concluding that the Complaint
failed to state a claim under federal law and declined to exercise supplemental
jurisdiction over the state-law claims. Relevant here, the district court
concluded that S.B. failed to state a substantive due process claim because
“Louisiana provides adequate post-punishment remedies for this type of
harm.”
The district court also dismissed her discrimination claims, finding
that S.B. had not pleaded any specific facts that permit an inference that any
of the Defendants were motivated by her disability, nor did she plead that
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another child, either non-disabled or with a different disability, had also
misbehaved and that Nick or Rowell did not discipline them.
In an attempt to cure these defects, S.B. moved to amend her
complaint. The proposed Second Amended Complaint alleges that “Nick
and Rowell have supervised other students without disabilities or with
different disabilities who were acting inappropriately or violently” but “did
not slap any of those students.” Additionally, S.B. has introduced a new
argument, contending that the Defendants did not make reasonable
accommodations for her disability as required by the Rehabilitation Act and
the ADA.
The district court referred the motion to a magistrate judge. The
magistrate judge recommended that the district court deny the motion to
amend as futile. With respect to S.B.’s reasonable-accommodation claims,
the magistrate judge did not consider their plausibility because she concluded
that S.B. needed to administratively exhaust them under the IDEA since
these claims were a challenge to S.B.’s right to a free and appropriate public
education (“FAPE”).
S.B. raised objections to the magistrate’s recommendation, claiming
that the exhaustion defense was not a jurisdictional matter and that JPSB had
waived the defense. S.B. did not prevail on any of these arguments, and the
district court entered a final judgment. S.B. now appeals.
II.
This court reviews a district court’s dismissal of a complaint de novo.
Innova Hosp. San Antonio, L.P. v. Blue Cross & Blue Shield of Ga., Inc., 892
F.3d 719, 726 (5th Cir. 2018). It must “accept all well-pleaded facts as true
and view those facts in the light most favorable to the plaintiff.” Richardson
v. Axion Logistics, L.L.C., 780 F.3d 304, 304–05 (5th Cir. 2015) (quoting
Montoya v. FedEx Ground Package Sys., Inc., 614 F.3d 145, 146 (5th Cir.
2010)). But it need not accept as true a legal conclusion unsupported by fact.
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, to survive a motion to
dismiss, “a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Gonzalez v. Kay,
577 F.3d 600, 603 (5th Cir. 2009) (citations omitted) (internal quotations
omitted).
Generally, we review the denial of a motion to amend for abuse of
discretion. Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 347 (5th Cir.
2008). “A district court abuses its discretion if it: (1) relies on clearly
erroneous factual findings; (2) relies on erroneous conclusions of law; or (3)
misapplies the law to the facts.” Villarreal v. Wells Fargo Bank, N.A., 814
F.3d 763, 767 (5th Cir. 2016) (quoting Priester v. JP Morgan Chase Bank, N.A.,
708 F.3d 667, 672 (5th Cir. 2013)). However, when as here, the district court
denies leave based solely on futility, this court applies a de novo standard of
review “identical, in practice, to the standard used for reviewing a dismissal
under Rule 12(b)(6).” City of Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148,
152 (5th Cir. 2010).
III.
A.
First, S.B. argues that the district court erred in dismissing her § 504
and ADA claims. We disagree.
The Rehabilitation Act and the ADA both prohibit discrimination
against qualified individuals with disabilities; they employ many of the same
legal standards and offer the same remedies. See Kemp v. Holder, 610 F.3d
231, 234 (5th Cir. 2010). While § 504 of the Rehabilitation Act applies to fed-
erally funded programs and activities, Title II of the ADA only applies to pub-
lic entities. Id. “The only material difference between the two provisions lies
in their respective causation requirements.” Bennett-Nelson v. La. Bd. of Re-
gents, 431 F.3d 448, 454 (5th Cir. 2005) (citation omitted).
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Section 504 prohibits discrimination “solely by reason of” a person’s
disability, whereas Title II of the ADA provides that “discrimination need
not be the sole reason” for the adverse action or exclusion but rather “a mo-
tivating factor.” Pinkerton v. Spellings, 529 F.3d 513, 516–19 (5th Cir. 2008).
Both the ADA and § 504 require the plaintiff to establish that: (1) she is a
qualified individual with a disability within the meaning of § 504 or the ADA;
(2) she was excluded from participation in, or was denied benefits of, ser-
vices, programs, or activities for which the school district is responsible; (3)
her exclusion, denial of benefits, or discrimination was by reason of her disa-
bility; and (4) the exclusion, denial of benefits, or discrimination was inten-
tional. Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671–72 (5th Cir.
2004). At this stage, S.B. must plead facts making it “plausible that [s]he was
discriminated against ‘because of’”—but not necessarily solely because of—
her disability. Olivarez v. T-Mobile USA, Inc., 997 F.3d 595, 601 (5th Cir.
2021) (quoting Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 767 (5th
Cir. 2019)).
S.B. argues that the district court erred in dismissing her claims be-
cause it improperly applied a summary-judgment standard at the motion to
dismiss stage. Specifically, she argues that it’s not necessary that she identify
in her complaint other students with similar disabilities or different disabili-
ties who were treated more favorably. Instead, she argues that she only needs
to show that she was treated less favorably because of her disability.
Not so. To be sure, we have held that a plaintiff need not allege a
comparator at the pleading stage in order to advance her discrimination
claims under the ADA and § 504. See Pickett v. Texas Tech Univ. Health Scis.
Ctr., 37 F.4th 1013, 1019 (5th Cir. 2022). However, the district court’s
decision did not hinge on this premise. Instead, the district court specifically
found that S.B. had not pleaded any specific facts that would suggest any of
the Defendants were motivated by her disability. After reviewing the briefs
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and relevant portions of the record, we agree with the district court that
S.B.’s Complaint is insufficient to support a claim of discrimination. It
consists of two separate incidents in which S.B. behaved violently toward her
instructors, who in turn resorted to physical discipline. We have dismissed
comparable allegations.
In T.O. v. Fort Bend Indep. Sch. Dist., we affirmed the dismissal of the
plaintiffs’ ADA and § 504 claims after a teacher grabbed a disabled student
trying to re-enter a classroom by the neck, threw him to the floor, and held
him in a chokehold for several minutes. 2 F.4th 407, 412–18 (5th Cir. 2021),
cert. denied, 142 S. Ct. 2811 (2022), reh’g denied, 143 S. Ct. 60 (2022). During
the incident, the teacher yelled at the student that he “had hit the wrong
one” and “needed to keep his hands to himself.” Id. at 412. The plaintiffs
alleged that the teacher intervened because she was “angered by T.O.’s dis-
abilities and that he was being treated in compliance with his Behavioral In-
tervention Plan” and that she was “motivated by . . . prejudicial animus to
his disabilities.” Id. at 418 n.44. However, we disagreed, noting that the
amended complaint lacked any factual allegations that permit the inference
that the defendants’ actions were “‘by reason of his disability’—an essential
element of a discrimination claim.” Id. at 418.
This case is no different from T.O. Although S.B.’s autism was the
root cause of her classroom outbursts, it cannot be inferred that Rowell’s and
Nick’s reactions were influenced by her disability. Rather, these claims sug-
gest that S.B. wasn’t disciplined due to her disability but to address her dis-
ruptive conduct in class. Therefore, punishing S.B. for her disruptive behav-
ior is not the same as treating her differently due to her disability. Conse-
quently, we affirm.
B.
Next, S.B. challenges the dismissal of her claims under 42 U.S.C.
§ 1983. To state a claim under § 1983, a plaintiff must allege the violation of
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a right secured by the Constitution and laws of the United States and must
show that the alleged deprivation was committed by a person acting under
the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); see Biliski v.
Harborth, 55 F.3d 160, 162 (5th Cir. 1995). S.B. claims that: (1) the Defend-
ants discriminated against her on account of her disability in violation of the
Equal Protection Clause of the Fourteenth Amendment; (2) the Defendants
violated her right to be free from state-sanctioned harm to her bodily integrity
in violation of the Due Process Clause of the Fourteenth Amendment; and
(3) JPSB and Rome failed to train Schneckenburger Elementary staff on how
to handle these incidents. We address each in turn.
1. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment requires
the government to treat all similarly situated people alike. U.S. Const.
Amend. XIV; City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 439
(1985) (citations omitted). A plaintiff may bring a cause of action for violation
of his right to equal protection under § 1983. Southard v. Tex. Bd. of Criminal
Justice, 114 F.3d 539, 550 (5th Cir. 1997). Here, to succeed on a “class of
one” theory, S.B. “must establish (1) [she was] intentionally treated differ-
ently from others similarly situated and (2) there was no rational basis for any
such difference.” Wilson v. Birnberg, 667 F.3d 591, 599 (5th Cir. 2012) (inter-
nal quotation marks omitted).
S.B.’s equal protection claim fails for similar reasons as her ADA and
§ 504 claims. The facts that S.B. alleges simply do not support an inference
that she was treated differently because of her disability. Therefore, the Com-
plaint fails to state a claim, and we affirm the district court’s holding that it
fails.
2. Substantive Due Process
Corporal punishment in public schools constitutes a deprivation of
substantive due process “when it is arbitrary, capricious, or wholly unrelated
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to the legitimate state goal of maintaining an atmosphere conducive to learn-
ing.” Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 875 (5th Cir. 2000) (quot-
ing Fee v. Herndon, 900 F.2d 804, 808 (5th Cir. 1990)). However, we have
repeatedly held that “as long as the state provides an adequate remedy, a
public school student cannot state a claim for denial of substantive due pro-
cess through excessive corporal punishment.” T.O., 2 F.4th at 414 (citation
omitted); see also Fee, 900 F.2d at 808 (“Specifically, states that affirmatively
proscribe and remedy mistreatment of students by educators do not, by defi-
nition, act ‘arbitrarily,’ a necessary predicate for substantive due process re-
lief.”).
Under this line of cases, our court has “dismissed substantive due pro-
cess claims (1) when a student was instructed to perform excessive physical
exercise as a punishment for talking to a friend; (2) when a police officer
slammed a student to the ground and dragged him along the floor after the
student disrupted class; (3) when a teacher threatened a student, threw him
against a wall, and choked him after the student questioned the teacher’s di-
rective; (4) when an aide grabbed, shoved, and kicked a disabled student for
sliding a compact disc across a table; and (5) when a principal hit a student
with a wooden paddle for skipping class.” T.O., 2 F.4th at 414 (collecting
cases).
S.B. attempts to side-step these cases by arguing that Louisiana law
explicitly prohibits the use of corporal punishment on children diagnosed
with autism. 2 Consequently, she posits that her claim stands apart from the
rest, because the State has made it clear that striking children with autism
serves no legitimate educational goal. However, this argument is unavailing.
_____________________
2
Louisiana law provides that “no form of corporal punishment shall be
administered to a student with an exceptionality,” which includes “slapping.” La. Rev.
Stat. § 17:416.1(B)(2). Louisiana law further defines autism as an “exceptionality.” See
§ 17:1942(B).
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Under our precedent, the State is only required to demonstrate that there is
a system in place that allows for reasonable disciplinary measures and offers
avenues for recourse after punishment has been administered. Fee, 900 F.2d
at 809 (concluding that the relevant inquiry is whether the State “author-
ize[s] only reasonable discipline” and “provide[s] post-punishment relief”
from the departures of its laws). Having already found that Louisiana pro-
scribes and remedies mistreatment of students by educators, see Coleman v.
Franklin Parish School Bd., 702 F.2d 74, 76 (5th Cir. 1983), we must also find
that as a matter of law, the act of slapping S.B. on the hand or wrist did not
infringe upon her substantive due process rights. 3
Other courts have scrutinized these decisions. See, e.g., Neal ex rel.
Neal v. Fulton Cnty. Bd. of Educ., 229 F.3d 1069, 1075 n.2 (11th Cir. 2000);
P.B. v. Koch, 96 F.3d 1298, 1302 (9th Cir. 1996). Members of this court have
also raised concerns. See T.O., 2 F.4th at 419 (Wiener & Costa, JJ., concur-
ring); Moore, 233 F.3d at 877 (Wiener, J., concurring); Ingraham v. Wright,
525 F.2d 909, 924 (5th Cir. 1976) (Rives, J., dissenting) (en banc). But despite
the criticism, these decisions have yet to be overturned and they remain bind-
ing in our circuit. Because we are bound by our precedent, we must affirm.
3. Failure to Train or Supervise
S.B.’s final theory of recovery under § 1983 rests on an allegation that
JPSB and Rome failed to train or properly supervise Schneckenburger Ele-
mentary personnel. To make out this claim, S.B. must show that (1) the mu-
nicipality’s training policy or procedure was inadequate; (2) the inadequate
training policy was a “moving force” in causing a violation of the plaintiff’s
_____________________
3
S.B. also contends that the Supreme Court has established that a plaintiff can
utilize § 1983 without regard to any state-tort remedy that may exist. However, as S.B.
acknowledges, this argument is explicitly foreclosed by our caselaw. See Cunningham v.
Beavers, 858 F.2d 269, 272 (5th Cir. 1988).
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rights; and (3) the municipality was deliberately indifferent in adopting its
training policy. Valle v. City of Houston, 613 F.3d 536, 544 (5th Cir. 2010).
Because our precedent operates as a bar to all claims against the De-
fendants, there is no underlying constitutional violation. Without a constitu-
tional violation, there can be no liability under § 1983 for failure to train. See
Shields v. Twiss, 389 F.3d 142, 151 (5th Cir. 2004). Therefore, this claim was
properly dismissed.
C.
S.B. lastly contends that the district court erred by denying her leave
to amend her complaint. She argues that the exhaustion requirement under
the IDEA is simply a procedural rule and that any objections related to it were
waived. Additionally, S.B. argues that the failure-to-accommodate claims are
not FAPE challenges that require exhaustion.
The issue of whether exhaustion under the IDEA constitutes a
jurisdictional prerequisite has yet to be conclusively determined by our
circuit. Logan v. Morris Jeff Cmty. Sch., No. 21-30258, 2021 WL 4451980, at
*2 (5th Cir. Sept. 28, 2021) (per curiam) (explaining that “we have not yet
decided whether a failure to exhaust under IDEA deprives courts of subject
matter jurisdiction or is instead a claim-processing requirement which could
be forfeited by the party seeking to assert it”); T. B. ex rel. Bell v. Nw. Indep.
Sch. Dist., 980 F.3d 1047, 1051 n.2 (5th Cir. 2020) (“This circuit has not yet
determined whether exhaustion under the IDEA is a jurisdictional
requirement.”); Gardner v. Sch. Bd. Caddo Par., 958 F.2d 108, 112 (5th Cir.
1992) (“We do not decide whether exhaustion is a jurisdictional
requirement.”).
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Here, however, this issue is inconsequential. Contrary to S.B.’s
assertions, 4 JPSB promptly raised its exhaustion argument. The district court
evaluated the failure-to-exhaust argument solely as a jurisdictional claim and
dismissed it accordingly. Thus, “we need not take sides in this dispute,”
because the result would be the same whether we consider exhaustion to be
a claim-processing rule or a jurisdictional mandate. Pacheco v. Mineta, 448
F.3d 783, 788 n.7 (5th Cir. 2006).
We thus consider whether the district court erred in finding that the
failure-to-accommodate claims that S.B. seeks leave to add must be
administratively exhausted. It did not.
Under the IDEA, “before the filing of a civil action under [federal law]
seeking relief that is also available under [the IDEA], the [IDEA’s
administrative procedures] shall be exhausted to the same extent as would be
required had the action been brought under [the IDEA].” 20 U.S.C.
§ 1415(l). If the gravamen of a complaint brought under federal law is the
denial of a FAPE, administrative exhaustion is required. Fry v. Napoleon
Cmty. Schs., 137 S. Ct. 743, 748 (2017). To answer this question, we must
address two additional questions. See Reyes v. Manor Indep. Sch. Dist., 850
F.3d 251, 257 (5th Cir. 2017). “First, could the plaintiff have brought the
same claim if the alleged conduct had occurred at a public facility that was
_____________________
4
S.B. argues that JPSB waived its exhaustion defense by failing to plead the defense
in its first responsive pleading. However, as we have previously held, “an affirmative
defense is not waived if the defendant ‘raised the issue at a pragmatically sufficient time
and [the plaintiff] was not prejudiced in its ability to respond.’” Pasco v. Knoblauch, 566
F.3d 572, 577 (5th Cir. 2009) (quoting Allied Chem. Corp. v. Mackay, 695 F.2d 854, 856 (5th
Cir. 1983)). That is what we have here. In this case, JPSB raised a timely exhaustion defense
in its Motion to Dismiss the First Amended Complaint. Additionally, there is no indication
that S.B. has been negatively impacted by JPSB’s initial failure to include this affirmative
defense in its response. As a result, S.B.’s argument lacks merit.
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not a school? Second, could a non-student at the school have brought the
same claim?” Id. (citing Fry, 137 S. Ct. at 747).
Looking at S.B.’s proposed Second Amended Complaint, the answer
to both hypothetical questions is “no.” The Complaint alleges that S.B. was
deprived of unspecified accommodations due to her autism and that Nick and
Rowell failed to use common sense tactics to calm S.B. during the two
incidents. Thus, as the district court correctly noted: “[T]he gist of
plaintiff’s failure-to-accommodate allegations are that JPSB failed to either
implement or enforce a protocol for de-escalation, in situations where faculty
or staff were dealing with an autistic student who acted out in the course of
instruction.”
Under these facts, S.B. would not be entitled to a claim for failure to
provide reasonable accommodations in a public theater or library, as these
establishments are not obligated to provide a trained and supervised aide or
teacher to accommodate a learning disability. See Heston v. Austin Indep. Sch.
Dist., 816 F. App’x 977, 980 (5th Cir. 2020). Similarly, a visitor to a school
would not have a claim under the ADA or Rehabilitation Act for the same
reason. Id. Consequently, the crux of the complaint lies within the purview
of the IDEA. So S.B.’s Complaint is subject to the IDEA’s exhaustion re-
quirement.
S.B. argues that exhaustion would be futile because hearing officers in
Louisiana have no authority over anything other than IDEA assertions, and
IDEA proceedings cannot remedy physical injuries or simple discrimination.
However, this argument is unpersuasive. Exhaustion under IDEA refers to
“relief for the events, condition, or consequences of which the person
complains, not necessarily relief of the kind the person prefers.” McMillen v.
New Caney Indep. Sch. Dist., 939 F.3d 640, 648 (5th Cir. 2019), cert. denied,
140 S. Ct. 2803 (2020). The preference is to solve disputes by providing the
student with their promised education, not by awarding damages years after
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the problem arises in the classroom. See id. Therefore, S.B. has not
demonstrated that seeking such remedies would have been futile.
As exhaustion was necessary in this case and has not been completed,
we affirm the decision of the district court dismissing the action without
prejudice.
IV.
For the above reasons, the judgment of the district court is
AFFIRMED.
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