C.O. v. Round Rock Indep. Sch. Dist.

C.O. b/n/f IVETTE MENDOZA and DAVID ORTEGA,and IVETTE MENDOZA and DAVID ORTEGA, individually Plaintiffs v. ROUND ROCK INDEPENDENT SCHOOL DISTRICTand YMCA OF GREATER WILLIAMSON COUNTY Defendants

Case No. A-19-CV-0860-LY

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

August 26, 2020

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

Before the Court are Defendant Round Rock Independent School District's ("RRISD") Motion to Dismiss (Dkt. 36) and Defendant YMCA of Greater Williamson County's ("YMCA") Motion to Dismiss (Dkt. 37), both filed April 3, 2020, and the associated response and reply briefs. On April 28, 2020, the District Court referred the Motion and related filings to the undersigned Magistrate Judge for Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas.

I. Background

Plaintiffs C.O.,¹ a student at Teravista Elementary School ("TES") in the Round Rock Independent School District ("RRISD"), and her parents, Ivette Mendoza and David Ortega, allegethat RRISD and YMCA violated C.O.'s constitutional rights by failing to protect her while she was in their custody.

C.O., who was six years old when the events giving rise to this lawsuit occurred, attended a YMCA after-school program at TES three days a week while her parents worked. After school, RRISD employees escorted students enrolled in the YMCA program to the school cafeteria, where YMCA staff checked in the children and supervised them until their parents picked them up. Plaintiffs allege that on four occasions, RRISD employees failed to take C.O. to the YMCA program and mistakenly sent her home on the school bus instead. On three of these occasions, the regular school bus driver realized the mistake after noticing that C.O.'s mother was not at the bus stop to meet C.O. and drove her back to the school. On the fourth occasion, on December 14, 2018, C.O. was left at her bus stop by a substitute driver who did not know that C.O.'s mother usually met her at the bus stop. Plaintiffs allege that C.O. was alone for approximately thirty minutes before a neighbor saw her, scared and crying, and intervened.

On September 3, 2019, Plaintiffs filed this lawsuit, alleging that RRISD violated C.O.'s due process and equal protection rights under the Fourteenth Amendment, and that RRISD ratified the acts, omissions, and customs of RRISD personnel. Dkt. 1 ¶¶ 42-54. On March 18, 2020, Plaintiffs filed their Third Amended Complaint, adding YMCA as a defendant. Plaintiffs assert § 1983 claims against RRISD and claims of breach of contract,² negligence, and intentional infliction of emotional distress against YMCA. Dkt. 35 ¶¶ 47-75. RRISD and YMCA each move for dismissal under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, and under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

II. Legal Standards

A. Subject Matter Jurisdiction

Federal district courts are courts of limited jurisdiction and may only exercise jurisdiction expressly conferred by the Constitution and federal statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court has subject matter jurisdiction over civil cases "arising under the Constitution, laws, or treaties of the United States," and over civil cases in which the amount in controversy exceeds $75,000, exclusive of interest and costs, and in which diversity of citizenship exists between the parties. 28 U.S.C. §§ 1331, 1332.

Rule 12(b)(1) allows a party to assert lack of subject matter jurisdiction as a defense to suit. A federal court properly dismisses a case for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). "Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief." Id.

In ruling on a Rule 12(b)(1) motion, the court may consider (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). Dismissal for lack of subject matter jurisdiction is warranted when "it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief." Gilbert v. Donahoe, 751 F.3d 303, 307 (5th Cir. 2014) (quoting Ramming, 281 F.3d at 161).

B. Failure to State a Claim

Rule 12(b)(6) allows a party to move to dismiss an action for failure to state a claim on which relief can be granted. In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, "[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted). The Supreme Court has explained that a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the [nonmovant] pleads factual content that allows the court to draw the reasonable inference that the [movant] is liable for the misconduct alleged." Id.

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Twombly, 550 U.S. at 555 (cleaned up). The court's review is limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced in the complaint. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).

III. RRISD's Motion to Dismiss

RRISD seeks dismissal of Plaintiffs' claims under Rule 12(b)(1) for lack of subject matter jurisdiction, asserting that "Plaintiffs' suit is nothing more than a poorly disguised state-based claim dressed up and filed as a federal lawsuit." Dkt. 36 at 2-4. RRISD contends that the Court lacks subject matter jurisdiction because Plaintiffs fail to allege a violation of a constitutional right. This argument, however, goes to the merits of Plaintiffs' constitutional claims, not the Court'sjurisdiction. Accordingly, RRISD's Motion to Dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) should be denied, and RRISD's arguments assessed under Rule 12(b)(6).

A. Section 1983 Claim

42 U.S.C. § 1983 provides a private cause of action against those who, under color of law, deprive a citizen of the United States of "any rights, privileges, or immunities secured by the Constitution and laws." To state a claim under § 1983, a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States, and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law. Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013). "Claims under § 1983 may be brought against persons in their individual or official capacity, or against a governmental entity." Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009).

Municipal entities, including independent school districts, qualify as "persons" under § 1983. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). Municipal entities cannot be held liable for the acts of their employees under § 1983 on the theory of respondeat superior. Id. at 694; see also Barrow v. Greenville Indep. Sch. Dist., 480 F.3d 377, 380 (5th Cir. 2007) ("A school district has no vicarious liability under § 1983. Rather, it is liable for the unconstitutional conduct of its policymakers, including persons to whom it has delegated policymaking authority in certain areas."). A municipal entity is liable only for acts directly attributable to it "through some sort of official action or imprimatur." Piotrowski v. Houston, 237 F.3d 567, 578 (5th Cir. 2001). Isolated unconstitutional actions by municipal employees "will almost never trigger liability." Id. To invoke municipal liability, a plaintiff must identify "(1) an official policy (or custom), of which (2) a policy maker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose 'moving force' is that policy (or custom)." Pineda v. Houston, 291 F.3d 325, 328 (5th Cir. 2002) (quoting Piotrowski, 237 F.3d at 578). Whether a government official has finalpolicymaking authority is a question of state law. See Pembaur v. Cincinnati, 475 U.S. 469, 483 (1986). Under Texas law, the final policymaking authority in an independent school district rests with the district's board of trustees. Rivera v. Hous. Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003); TEX. EDUC. CODE § 11.151(b).

RRISD argues that Plaintiffs "have failed to allege, and the facts pleaded cannot support, that C.O-M suffered a violation of a right secured by the Constitution." Dkt. 36 at 3. RRISD also argues that, even if Plaintiffs...