Jane Doe v. Covington County Sch. Dist.

278 Ed. Law Rep. 761

675 F.3d 849

Jane DOE, a Minor, By and Through Her Next Friends, Daniel MAGEE and Geneva Magee; Daniel Magee, Individually and on Behalf of Jane Doe; Geneva Magee, Individually and on Behalf of Jane Doe, A Minor, Plaintiffs–Appellants,

v.COVINGTON COUNTY SCHOOL DISTRICT, by and through its Board of Education and its President, Andrew KEYS and its Superintendent of Education, I.S. Sanford, Jr.; Covington County Superintendent of Education, I.S. Sanford, Officially and in His Individual Capacity; Covington County Board of Education, By and Through its President, Andrew Keys; Andrew Keys, Officially and in His Individual Capacity; Tommy Keyes; Other Unknown John Doe and Jane Doe Education Defendants A–Z, In Their Official and Individual Capacities, Defendants–Appellees.

No. 09–60406.

United States Court of Appeals, Fifth Circuit.

March 23, 2012.

Christopher Eugene Fitzgerald (argued), Hendren, Hollingsworth & Fitzgerald, Ocean Springs, MS, Benjamin Geoffrey Harrison, B. Geoffrey Harrison, P.A., Biloxi, MS, for Plaintiffs–Appellants.

Rick D. Norton, Joseph A. O'Connell, III, William A. Whitehead, Jr. (argued), Bryan Nelson, P.A., Hattiesburg, MS, for Defendants–Appellees.

Lisa A. Brown, Janet Little Horton, Thompson & Horton, L.L.P., Houston, TX, for Amici Curiae.Appeal from the United States District Court for the Southern District of Mississippi.

Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, WIENER, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES and HIGGINSON, Circuit Judges.

KING, Circuit Judge, joined by EDITH H. JONES, Chief Judge, E. GRADY JOLLY, W. EUGENE DAVIS, JERRY E. SMITH, EMILIO M. GARZA, BENAVIDES, CARL E. STEWART, EDITH BROWN CLEMENT, PRADO, OWEN, JENNIFER WALKER ELROD, LESLIE H. SOUTHWICK, HAYNES and GRAVES, Circuit Judges:

For the third time, the en banc court is called upon to decide whether a public school student has stated a constitutional claim against her school for its failure to protect her from harm inflicted by a private actor. Relying on our prior en banc opinions, the district court found that she had failed to state a claim and dismissed her complaint. A panel of this court reversed in part, concluding that the student had a special relationship with her school under DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), and that the school was therefore constitutionally obligated to protect her from acts of private violence. The panel nevertheless granted qualified immunity to those defendants sued in their individual capacities. We granted rehearing en banc, thereby vacating the panel opinion. We now hold that the student did not have a DeShaney special relationship with her school, and her school therefore had no constitutional duty to protect her from harm inflicted by a private actor. We also hold that the student has failed to state a claim under the state-created danger theory or under a municipal liability theory. We therefore affirm the judgment of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

During the 2007–2008 school year, Jane Doe (“Jane”) attended an elementary school in Covington County, Mississippi. She was nine years old at the time. At some point during the school year, Jane's guardians filled out a “Permission to Check–Out Form,” on which they listed the names of the individuals with exclusive permission to “check out” Jane from school during the school day. On six separate occasions between September 2007 and January 2008,¹ school employees allowed a man named Tommy Keyes (“Keyes”), who allegedly bore no relation to Jane and was not listed on her check-out form, to take Jane from school. On these occasions, Keyes took Jane from school without the knowledge or consent of her parents or guardians, sexually molested her, and subsequently returned her to school. On the first five occasions, Keyes signed out Jane as her father. On the final occasion, he signed her out as her mother. The complaint alleges that Keyes was able to gain access to Jane because the policy promulgated by the various school officials permitted school employees to release Jane to Keyes without first verifying Keyes's identification or whether he was among those people listed on her “Permission to Check–Out Form.” The complaint contends that this policy created a danger to students and the implementation and execution of the policy constituted deliberate indifference towards the rights and safety of those students, including Jane. This policy is alleged to be the direct and proximate cause of Jane's injury.

The complaint thus assigns a passive role to school employees, alleging that the school violated Jane's constitutional rights by “ allowing the Defendant, Tommy Keyes, to check the minor child out from school” without verifying his identity or his authorization to take the child. It also alleges that the school policy permitted school employees to release students to individuals without checking their identification or authorization, but did not require them to do so. The policy thus delegated to school employees the discretion to release a student without verifying an adult's identity or his authorization. Furthermore, the complaint does not claim that any school employee had actual knowledge that Keyes was not authorized to take Jane from school, only that the employees did not check Keyes's identification or verify that he was among the adults listed on Jane's check-out form.

Jane, her father, and her paternal grandmother (together, the “Does”) sued the Covington County School District; the Covington County Superintendent of Education, I.S. Sanford, Jr., in his official and individual capacities; the Covington County School Board; and the President of the Covington County School Board, Andrew Keys, in his official and individual capacities (together, “Education Defendants”). The Does also named Keyes and other unnamed education defendants in their official and individual capacities. The Does asserted due process and equal protection claims under 42 U.S.C. §§ 1983, 1985, and 1986,² as well as various state law causes of action.

On the Education Defendants' motion, the district court dismissed the Does' federal claims for failure to state a claim and declined to exercise supplemental jurisdiction over the remaining state law claims. The court concluded that under the Supreme Court's decision in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), Jane had no constitutional right to be protected from harm inflicted by a private actor such as Keyes except under one of two narrow exceptions—the “state-created danger” theory and the “special relationship” exception. The district court assumed that the state-created danger theory was available in this circuit, but held that the Does had not sufficiently pleaded a due process violation based on that theory. The court thus determined that the “primary question” was whether the Does could state a claim based on a special relationship between Jane and the Education Defendants, and concluded that the claim was foreclosed by our precedent.

On appeal, a majority of a panel of this court reversed the district court's judgment in part. The majority found that the Does had pleaded a facially plausible claim that the school had violated Jane's substantive due process rights by virtue of its special relationship with her and its deliberate indifference to known threats to her safety. Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Bd. of Educ., 649 F.3d 335, 353–54 (5th Cir.2011). The panel majority, however, affirmed the district court's qualified-immunity dismissal of Jane's constitutional claim against those Education Defendants sued in their individual capacities. Id. We ordered rehearing en banc. Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Bd. of Educ., 659 F.3d 358 (5th Cir.2011). For the reasons set forth herein, we now affirm the judgment of the district court.

II. STANDARD OF REVIEW

We review a district court's dismissal under Rule 12(b)(6) de novo, “accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiffs.” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir.2008) (citation and internal quotation marks omitted). To survive dismissal pursuant to Rule 12(b)(6), plaintiffs 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); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Cornerstone Christian Schs. v. Univ. Interscholastic League, 563 F.3d 127, 133 (5th Cir.2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Our task, then, is “to determine whether the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of success.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.2010) (citing Iqbal, 129 S.Ct. at 1949).

III. DISCUSSION

To state a claim under 42 U.S.C. § 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.” James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir.2008) (citation and internal quotation marks omitted). The central issue here is whether the Does have in fact alleged the violation of a constitutional right. Because we find that they have not, we affirm the district court's dismissal of this case.

A. DeShaney...