Doe v. Dall. Indep. Sch. Dist.

534 F.Supp.3d 682

Jane DOE, ON BEHALF OF Jan DOE, a Minor

v.DALLAS INDEPENDENT SCHOOL DISTRICT ; Lilliana Solano, Individually and in her Official Capacity as Hillcrest H.S. Registrar; Chris Bayer, Individually and in his Official Capacity as Hillcrest H.S. Principal; Von Harris, Individually and in his Official Capacity as Hillcrest H.S. Head Basketball Coach; Andy Todd, Individually and in his Official Capacity as Athletic Coordinator; and Sidney Bouvier Gilstrap-Portley

CIVIL ACTION NO. 3:19-CV-3081-S

United States District Court, N.D. Texas, Dallas Division.

Signed February 16, 2021

Mai Doshea Milton, Law Office of Mai Doshea Milton, Arlington, TX, for Jane Doe.

Kathryn E. Long, John David Giddens, Leah Catherine Tucker, Thompson & Horton LLP, Dallas, TX, Carlos G. Lopez, Thompson & Horton LLP, Houston, TX, for Dallas Independant School District.

MEMORANDUM OPINION AND ORDER

KAREN GREN SCHOLER, UNITED STATES DISTRICT JUDGE

This Memorandum Opinion and Order addresses: (1) Defendants Lilliana Solano's, Chris Bayer's, Von Harris's, and Andy Todd's Motion to Dismiss Plaintiff's Original Complaint and Brief in Support [ECF No. 14] ("Bayer's Motion to Dismiss")¹ ; and (2) Defendant Dallas Independent School District's Motion to Dismiss Plaintiff's Original Complaint and Brief in Support [ECF No. 15] ("DISD's Motion to Dismiss"). For the following reasons, Bayer's Motion to Dismiss is GRANTED and DISD's Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND AND PROCEDURAL HISTORY

Defendant Sidney Bouvier Gilstrap-Portley ("Gilstrap-Portley") was admitted to Hillcrest High School ("Hillcrest") during the 2017-2018 school year. See Compl. [ECF No. 1] ¶¶ 12-13. At the time, he claimed to be a homeless 17-year-old, but he was, in fact, a 25-year-old adult. Id. ¶ 13. Plaintiff Jane Doe ("Plaintiff"), on behalf of minor Jan Doe ("Minor Plaintiff"), alleges that Gilstrap-Portley was admitted to Hillcrest by Defendants Dallas Independent School District ("DISD") and Hillcrest principal Chris Bayer ("Bayer") (together "DISD Defendants"), along with several other faculty and staff² , under false pretenses so that Gilstrap-Portley could play on Hillcrest's basketball team. Id. ¶¶ 14-15.

Plaintiff asserts, among other allegations, that DISD Defendants did not verify Gilstrap-Portley's identity when he was admitted and also failed to conduct a mandatory home visit to Gilstrap-Portley's residence—both of which would have revealed that Gilstrap-Portley was not "Rashun Richardson," or homeless, as he claimed to be, but was living with his fiancee and their child. Id. ¶¶ 17-18. Plaintiff further alleges that DISD Defendants ignored "red flags" indicating that Gilstrap-Portley was not a minor, such as his "bigger build" as compared to other Hillcrest students and his "excessive tattoos." Id. ¶ 16.

Plaintiff alleges that while at Hillcrest, Gilstrap-Portley had a sexual relationship with Minor Plaintiff, who was 14 years old.

Id. ¶¶ 19, 22. Specifically, Plaintiff asserts that Gilstrap-Portley had sexual contact with Minor Plaintiff and coerced her into performing sexual acts. Id. ¶ 23. Plaintiff further alleges that Gilstrap-Portley kissed and inappropriately touched Minor Plaintiff in the hallways of Hillcrest while students and teachers watched. Id. Once Gilstrap-Portley's true identity came to light, due to Gilstrap-Portley's "popularity ... gained through playing on the basketball team," and because "many of the students and teachers knew of [their] relationship," Minor Plaintiff was humiliated and embarrassed. Id. ¶ 26. And, as a result, she withdrew from Hillcrest and transferred to a different school. Id. Plaintiff alleges that this experience caused Minor Plaintiff to suffer severe emotional distress, mental anguish, and psychological trauma requiring medical treatment. Id. ¶ 25.

Plaintiff asserts the following causes of action against DISD and Bayer:

• Count 1: Violation of Title IX or The Education Act of 1972, 20 U.S.C. § 1681, et seq. , against DISD and Bayer in their official capacity;

• Count 2: State-Created Danger against DISD and Bayer in their official capacity;

• Count 3: Intentional Infliction of Emotional Distress against DISD and Bayer; and

• Count 5: Gross Negligence against Bayer in his individual capacity.

DISD and Bayer separately moved to dismiss all allegations against them. See ECF Nos. 14-15. Plaintiff filed responses to each motion. See ECF Nos. 30-31. DISD and Bayer filed replies. See ECF Nos. 35-36.

II. LEGAL STANDARD

To defeat a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), a plaintiff 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Reliable Consultants, Inc. v. Earle , 517 F.3d 738, 742 (5th Cir. 2008). To meet this "facial plausibility" standard, a plaintiff must plead "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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Plausibility does not require probability, but a plaintiff must establish "more than a sheer possibility that a defendant has acted unlawfully." Id. The court must accept well-pleaded facts as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm Mut. Auto. Ins. , 509 F.3d 673, 675 (5th Cir. 2007). The court, however, does not accept as true "conclusory allegations, unwarranted factual inferences, or legal conclusions." Ferrer v. Chevron Corp. , 484 F.3d 776, 780 (5th Cir. 2007) (citation omitted). A plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal citations omitted). "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)" Id. (internal citations omitted).

The ultimate question is whether the Complaint states a valid claim when viewed in the light most favorable to the plaintiff. Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co. , 313 F.3d 305, 312 (5th Cir. 2002). At the motion to dismiss stage, the court does not evaluate the plaintiff's likelihood of success. It only determines whether the plaintiff has stated a claim upon which relief can be granted. Mann v. Adams Realty Co. , 556 F.2d 288, 293 (5th Cir. 1977).

III. ANALYSIS

A. Title IX³

Title IX states: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]" 20 U.S.C. § 1681(a). Title IX provides a private right of action for individuals to sue educational institutions that receive federal funds. See Kelly v. Allen Indep. Sch. Dist. , 602 F. App'x. 949, 952 (5th Cir. 2015). To state a Title IX claim against a school district, plaintiff must show that: (1) the institution has an official policy of sex discrimination, or (2) an "appropriate person" had "actual knowledge of the discrimination" and responded with "deliberate indifference." See Poloceno v. Dallas Indep. Sch. Dist. , 826 F. App'x. 359, 362 (5th Cir. 2020) (citing Gebser v. Lago Vista Indep. Sch. Dist. , 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) (defining "appropriate person" as "an official of the recipient entity with authority to take corrective action to end the discrimination")); see also id. (holding that a school principal was an "appropriate person" with "authority to take [the] corrective action"). To bring a Title IX action against a school district for student-on-student harassment, a plaintiff must show five elements:

the district (1) had knowledge of the harassment, (2) the harasser was under the district's control, (3) the harassment was based on the victim's sex, (4) the harassment was "so severe, pervasive, and objectively offensive that it effectively barred the victim's access to an educational opportunity or benefit," and (5) the district was deliberately indifferent to the harassment.

Kelly , 602 F. App'x. at 952 (citing Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist. , 647 F.3d 156, 165 (5th Cir. 2011) (alteration omitted) (quoting Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ. , 526 U.S. 629, 650, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) )).

As to the first, second, and fourth elements, Plaintiff alleges that Bayer, among other Hillcrest faculty and staff, knew of Gilstrap-Portley's real identity, and therefore knew of the risk of sexual harassment of minors by an adult. See Compl. ¶¶ 14-16 (alleging that DISD and Bayer, among others, helped craft "homeless" story to admit Gilstrap-Portley). Plaintiff also contends that the alleged sexual harassment was widely witnessed and alleges that both students and teachers observed Gilstrap-Portley's explicit sexual contact with Minor Plaintiff, as described above. Id. ¶ 23. Plaintiff further asserts that as a result of Gilstrap-Portley's status as a winning basketball player, his relationship with Minor Plaintiff was well-known. See Compl. ¶ 26. Actual knowledge is established where an "appropriate person" knew of facts giving rise to inference that substantial risk of harm existed and drew that inference. See Kelly , 602 F. App'x at 953. See also Poloceno , 826 F. App'x. at 362 (holding that a school principal was an "appropriate person" with "authority to take [the] corrective action"). Plaintiff also alleges that Gilstrap-Portley was regularly videotaped on school grounds, see id. ¶ 16, and seen in school hallways, see id. ¶ 23. Title IX "[l]iability can attach when ... the misconduct occurs during school hours and on school grounds." Kelly , 602 F. App'x at 953 n.3. Plai...