G. M. v. Ron Shelton , 595 F. App'x 262 ( 2014 )


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  •      Case: 14-10440      Document: 00512852184         Page: 1    Date Filed: 12/01/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-10440                         United States Court of Appeals
    Summary Calendar                                Fifth Circuit
    FILED
    December 1, 2014
    G. M., by and through his next friend, Carmen Lopez,                       Lyle W. Cayce
    Clerk
    Plaintiff - Appellant
    v.
    RON SHELTON; ALEDO INDEPENDENT SCHOOL DISTRICT,
    Defendants - Appellees
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 4:14-CV-19
    Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    The district court dismissed Plaintiff’s complaint pursuant to Federal
    Rule of Civil Procedure 12(b)(6) and Plaintiff now appeals. Because we find
    that Plaintiff failed to state a claim upon which relief may be granted, we
    AFFIRM.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-10440        Document: 00512852184           Page: 2     Date Filed: 12/01/2014
    No. 14-10440
    On August 8th, 2012, Carmen Lopez (“Plaintiff”) as mother and “next
    friend” to G.M., an elementary school student, filed a complaint in the
    Northern District of Texas against Aledo Independent School District
    (“Aledo”), as well as Ron Shelton individually and in his official capacity as
    principal of G.M.’s elementary school. 1 The complaint arose out of several
    years of bullying that G.M. experienced at the hands of another student, and
    alleges two federal claims pursuant to 
    42 U.S.C. § 1983
    —a substantive due
    process claim as well as an equal protection claim. 2 For the following reasons,
    we affirm the district court’s ruling that the plaintiff in this case did not plead
    sufficient facts to state a claim for which relief may be granted. 3
    1 The district court notes that Plaintiff fails to allege any claims against Ron Shelton
    with any factual particularity. Throughout the complaint, Plaintiff makes reference to
    “Defendants,” without specifying which defendant the claim refers to. However, even if the
    entirety of the complaint was presumed to be against Ron Shelton, it would be insufficient to
    state a claim because the complaint fails to allege a clearly established constitutional
    violation. Without alleging a clearly established constitutional violation, Ron Shelton’s
    defense of qualified immunity prevents liability as to him. See Doe ex rel. Magee v. Covington
    Cnty. Sch. Dist. ex rel. Keys, 
    675 F.3d 849
    , 869 (5th Cir. 2012) (finding that where the facts
    did not allege a constitutional violation, a claim for qualified immunity required no further
    review).
    2  Plaintiff initially alleged two additional causes of action against Aledo under state
    tort law for negligent hiring, training, and supervision, as well as intentional infliction of
    severe mental distress. The district court dismissed each of these without prejudice, and
    plaintiff does not contest the dismissal of these claims on appeal. Plaintiff also brought two
    causes of action arising under state tort law against the bully’s father; both of these claims
    were severed from the current claim due to subsequent bankruptcy proceedings. Accordingly,
    this appeal will address only those federal claims brought against Aledo Independent School
    District and Ron Shelton.
    3 While we affirm the district court’s ruling that the plaintiff in this case did not plead
    sufficient facts to state a claim that could survive a motion to dismiss pursuant to Rule
    12(b)(6), we do not suggest that bullying is a matter that should be taken lightly. See, e.g.,
    Carmichael v. Galbraith, 574 F. App’x 286 (5th Cir. 2014) (per curiam) (reversing a district
    court’s dismissal of a student-on-student sexual harassment complaint, where a thirteen-
    year-old child committed suicide after severe bullying at the hands of other students,
    including being stripped nude and tied up by the football team). “Bullying assumes many
    forms and practices ranging from ‘daily cruelties designed to make a child appear weak and
    vulnerable in front of his or her peers’ to threats and physical assaults.” Matthew Earhart,
    Bullying: What’s Being Done and Why Schools Aren’t Doing More, 25 J. JUV. L. 26, 26 (2005).
    2
    Case: 14-10440        Document: 00512852184          Page: 3     Date Filed: 12/01/2014
    No. 14-10440
    BACKGROUND
    In 2012, G.M. was a fourth-grade student at Stuard Elementary School
    in Aledo, Texas. From the time that he was in kindergarten through the time
    that this suit was brought in 2012, G.M. suffered ongoing bullying by another
    student, including repeated incidents of being shoved into walls, pushed,
    kicked, and spit upon. From the beginning, G.M. and Plaintiff (G.M.’s mother),
    repeatedly contacted teachers and administrators to discuss the bullying and
    the negative impact that it had on G.M.’s physical and emotional health. Both
    in her complaint and on appeal, Plaintiff states that “Defendants” have known
    about the bullying, and have “either (1) [taken] no corrective action, (2) [taken]
    insufficient action, or (3) participated themselves in the bullying and
    harassment against G.M.”               The complaint states that “teachers and
    administrators” have not only been indifferent to these complaints, but have
    increased the danger to G.M. by punishing G.M. for defending himself while
    imposing no punishment on the perpetrator, and informing other students that
    their recess time was shorter due to Plaintiff and G.M.’s complaints about the
    bullying.
    Plaintiff alleged a substantive due process violation as well as an equal
    protection claim under a theory of municipal liability against the school district
    (a “Monell” claim, pursuant to the Supreme Court’s decision in Monell v.
    Department of Social Services of the City of New York, 
    436 U.S. 658
     (1978),
    whereby it was established that while a local government entity may not be
    According to a nationwide survey conducted in 1998, 30% of students in grades six through
    ten, or 5.7 million students, were involved in multiple incidents of bullying, either as bullies,
    victims, or both. Kathleen Hart, Sticks and Stones and Shotguns at School: The
    Ineffectiveness of Constitutional Antibullying Legislation as a Response to School Violence, 39
    GA. L. REV. 1109, 1116 (2005). “Research suggests that bullies and their victims are much
    more likely to carry guns, both inside and outside of school.” 
    Id.
     The effects of bullying are
    linked in many instances to suicide, spousal and child abuse, and sexual harassment later in
    life. 
    Id.
    3
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    No. 14-10440
    sued for constitutional violations under § 1983 for the actions of its employees,
    it may be sued if the employees acted in accordance with an official “policy or
    custom.” Id. at 694.).
    The district court concluded that Plaintiff failed to allege sufficient facts
    regarding the municipal liability of the Board of Trustees, as she did not make
    a showing that the Board had a policy or custom that the school district
    followed in allowing the continued bullying of G.M. Because of this finding,
    the district court did not address the additional constitutional claims. We
    agree with the district court’s ruling as to the municipal liability claim, and
    therefore also do not reach the merits of the underlying constitutional issues.
    STANDARD OF REVIEW
    This court reviews a district court’s dismissal for failure to state a claim
    de novo, accepting all well-pleaded facts as true, and viewing those facts in the
    light most favorable to the plaintiff. Bowlby v. City of Aberdeen, 
    681 F. 3d 215
    ,
    219 (5th Cir. 2012). A complaint will not survive a motion to dismiss unless it
    pleads sufficient facts to allow the court to draw a reasonable inference that
    the defendant is liable for the alleged conduct. Gibson v. Tex. Dep’t of Ins., 
    700 F. 3d 227
    , 233 (5th Cir. 2012) (citing Ashcroft v. Iqbal, 
    566 U.S. 662
    , 678 (2009);
    Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 556 (2007)). The allegations stated
    in the complaint must be sufficient to “raise a right of relief above the
    speculative level.” Twombly, 
    550 U.S. at 555
    .
    DISCUSSION
    “Texas law is clear that final policymaking authority in an independent
    school district . . . rests with the district’s board of trustees.” Jett v. Dall. Indep.
    Sch. Dist., 
    7 F.3d 1241
    , 1245 (5th Cir. 1993) (citing TEX. EDUC. CODE 11.151(b):
    “The trustees as a body corporate have the exclusive power and duty to govern
    and oversee the management of the public schools of the district.”). In order to
    state a claim for municipal liability under 
    42 U.S.C. § 1983
     against a school
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    No. 14-10440
    district in Texas, a plaintiff must provide proof of (1) a policymaker; (2) an
    official policy; and (3) a violation of constitutional rights whose “moving force”
    is the policy or custom. Rivera, 349 F.3d at 247 (citing Piotrowski v. City of
    Hous., 
    237 F.3d 567
     (5th Cir. 2001); Monell, 
    436 U.S. at 694
    . A government
    entity may not be held liable for the acts of its employees under the theory of
    respondeat superior. Piotrowski, 
    237 F.3d at
    578 (citing Bd. of Comm’rs of
    Bryan Cnty. v. Brown, 
    520 U.S. 397
    , 403 (1997)).           “If actions of [district]
    employees are to be used to prove a custom for which the [district] is liable,
    those actions must have occurred for so long or so frequently that the course of
    conduct warrants attribution to the governing body of knowledge that the
    objectionable conduct is the expected, accepted practice of [district] employees.”
    Webster v. City of Hous., 
    735 F.2d 838
    , 841 (5th Cir. 1984).
    An “official policy” may be either a “policy statement, ordinance,
    regulation, or decision that is officially adopted and promulgated by the
    municipality’s lawmaking officers or a persistent, widespread practice . . .
    which, although not authorized by officially adopted and promulgated policy,
    is so common and well-settled as to constitute a custom that fairly represents
    municipal policy.” Webster, 
    735 F.2d at
    842 (citing Bennett v. City of Slidell,
    
    735 F.2d 861
    , 862 (5th Cir. 1984)). “The description of a policy or custom and
    its relationship to the underlying constitutional violation . . . cannot be
    conclusory; it must contain specific facts.” Spiller v. City of Tex. City, Police
    Dep’t, 
    130 F.3d 162
    , 167 (5th Cir. 1997) (citing Fraire v. Arlington, 
    957 F.2d 1268
    , 1277 (5th Cir. 1992).
    Although the complaint does not explicitly mention an official policy, it
    does state that the actions taken by Defendants were “contrary to the written
    policies of Aledo Independent School District.” The district court inferred from
    this that Plaintiff must be pleading the existence of a widespread custom, as
    opposed to an official policy, of allowing the bullying of G.M. to continue.
    5
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    No. 14-10440
    However, the district court ultimately reasoned that because Plaintiff’s
    complaint failed to make any allegation that “the majority” of Aledo’s board of
    trustees were aware of or approved of their employees’ actions with regard to
    G.M., such conduct could not be attributed to Aledo through its board of
    trustees.
    While Plaintiff does not explicitly point to the board of trustees as the
    policymaking authority, she makes mention of “Board members” in her claim
    regarding a de facto policy. For example, the complaint alleges that, “the
    actions of Defendants resulted from, and were taken, pursuant to a de facto
    policy which is implemented by the Superintendent, Principals, Assistant
    Principals, Board members, and other employees of the said Defendants”
    (emphasis added). Plaintiff also states that the existence of such a de facto
    policy “has been known to supervisory and policy making officers” for some
    time. However, despite making reference to this de facto policy and the “policy
    making officers’” awareness of it, Plaintiff does not allege sufficient facts to
    show the existence of such an underlying policy.
    The district court further reasoned that the pleading lacked the factual
    particularity required for a meaningful allegation that an official policy was
    established by custom or practice. The court looked to a requirement set out
    by the Supreme Court in City of Oklahoma City v. Tuttle, wherein the court
    stated in a case regarding municipal liability established by custom, “the word
    ‘policy’ generally implies a course of action chosen from among various
    alternatives.” 
    471 U.S. 808
    , 823 (1985). The district court is certainly correct
    that there is no indication from the complaint that the employees acted in
    accordance with a custom that was chosen from various alternatives. However,
    we find that the complaint lacked sufficient facts to show that a policy or
    custom to tolerate G.M.’s bullying existed at all.
    6
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    Plaintiff states that Defendants acted “indifferent[ly]” to Plaintiff and
    G.M’s complaints, and “condoned” student-on-student physical harassment
    and bullying in the past, “minimizing the severity of the acts by taking little or
    no punitive sanction against perpetrators to the point of violating their own
    policies and state and federal law.” Without alleging facts to show that the
    district’s employees were acting in conformance with a custom that could be
    attributed to the board of trustees, the allegations do not adequately state a
    claim under which the board may be held liable. See Spiller, 
    130 F.3d 162
    , 167
    (denying the plaintiff’s claim for municipal liability where she failed to show a
    causal connection between the unconstitutional misconduct and the city police
    department’s policies).
    The third requirement in stating a claim for municipal liability under
    § 1983 is a violation of a constitutional right whose “moving force” is the policy
    or custom. Plaintiff put forth two constitutional claims, although neither one
    is clearly articulated in the initial complaint.       Plaintiff first alleged a
    substantive due process violation. On appeal, it becomes apparent that this
    claim was made under the “state-created danger” theory, a basis for
    constitutional protection that the Fifth Circuit has repeatedly declined to
    adopt. See Rivera, 349 F.3d at 249 (5th Cir. 2003); Piotrowski, 
    237 F.3d 567
    (5th Cir. 2001). Plaintiff made clear in her opposition to the Defendants’
    motion to dismiss that her claim under the Equal Protection Clause was
    intended to be articulated as a “class of one” claim. Because we find that
    Plaintiff has not adequately pleaded the existence of a policy or custom, we do
    not address the merits of Plaintiff’s constitutional claims. See Doe ex rel. Magee
    v. Covington Cnty. Sch. Dist. ex rel. Keys, 
    675 F.3d 849
    , 864 (5th. Cir. 2012);
    Rivera, 
    349 F.3d 244
     (holding that, in a case where parents brought suit
    against their child’s school district after their child had been stabbed to death
    in a hallway at school by another student, the parent’s failure to establish the
    7
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    existence of a custom or the Board’s knowledge of it barred their state-created
    danger claim).
    Plaintiff also contends that the district court abused its discretion in
    denying her leave to amend her complaint. Plaintiff failed to amend her
    complaint within twenty one days of the Defendants’ motion to dismiss. See
    FED. R. CIV. P. 15(a)(1)(B) (“A party may amend its pleading once as a matter
    of course within . . . 21 days after service of a motion under Rule 12(b),(e), or
    (f).”). In fact, her opposition to Defendants’ motion to dismiss was not filed
    until five months after the motion. As such, it was only with the district court’s
    leave that Plaintiff could amend. See FED. R. CIV. P. 15(a)(2).
    The district court based its denial of leave to amend upon two local court
    rules. The first requires any document that contains more than one motion to
    clearly identify each included motion in its title. See N.D. TEX. CIV. R. 5.1(c).
    The second requires that when a party files a motion for leave to amend, the
    party must attach a copy of the proposed amended pleading as an exhibit to
    the motion. See N.D. TEX. CIV. R. 15.1. Plaintiff did neither, and we have
    previously held that failure to follow local court rules is a basis for upholding
    a district court’s denial of leave to amend. Layfield v. Bill Heard Chevrolet Co.,
    
    607 F.2d 1097
    , 1099 (5th Cir. 1979).
    CONCLUSION
    For the foregoing reasons, the district court’s order granting Defendants’
    Motion to Dismiss is AFFIRMED.
    8