Rivera v. Houston Independent School Dist.

• Citation: 349 F.3d 244
• Decision Date: 07 November 2003
• Docket Number: No. 03-20098.,03-20098.
• Parties: Andres Avila RIVERA; Ana Maria Avila, Individually, and on Behalf of the Estate of Samuel Avila, Plaintiffs-Appellants, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

349 F.3d 244

Andres Avila RIVERA; Ana Maria Avila, Individually, and on Behalf of the Estate of Samuel Avila, Plaintiffs-Appellants, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.

No. 03-20098.

United States Court of Appeals, Fifth Circuit.

November 7, 2003.

David W. Showalter, Bellaire, TX, Tracy J. Willi (argued), Willi Law Firm, Austin, TX, for Plaintiffs-Appellants.

Jeffrey A. Davis (argued), Ellen Beth Huchital, McGinnis, Lochridge & Kilgore Houston, TX, Carlos R. Soltero, McGinnis, Lochridge & Kilgore, Austin, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY, SMITH and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The parents of a stabbing victim at a middle school brought this § 1983 action alleging the school district violated their son's due process rights by creating the danger that led to his death. The district court granted summary judgment in favor of the defendants. We AFFIRM.

I

Eighth grader Samuel Avila ("Avila") was killed by seventh grader Estanislao Balderas ("Balderas") during a fight at James S. Deady Middle School ("Deady") in Houston. Balderas stabbed Avila with a screwdriver he brought to Deady in violation of school policy. The fight was apparently gang related.

The altercation occurred in a part of Deady called the "tunnel," a windowless hallway with no classrooms. The fight between Avila and Balderas was part of a larger altercation involving several students. Multiple teachers attempted to break up the fights, but were unable to prevent the stabbing.

Avila and Balderas were involved in a similar gang related fight the afternoon before the stabbing, but it did not occur on school grounds or during school hours. The fight resulting in Avila's death was the first known altercation between the two boys at Deady, and neither student, as of that time, was considered a disciplinary problem.¹

Deady, part of the Houston Independent School District ("HISD"), is located in a part of Houston where there is significant crime and gang related activity. HISD maintains its own police force including two officers assigned to Deady. Additionally it has a student tip line, conducts random drug and weapons searches, and maintains K-9 patrol and drug searches units. HISD also sponsors the Gang Education Awareness Resistance ("GEAR") program designed to provide training and facilitate referrals of gang activity to law enforcement officers. Deady is involved in all of these programs.

Avila's parents, Andres Avila Rivera and Ana Maria Avila (collectively "the Parents") filed the instant action against HISD for violating their son's due process rights under the Fourteenth Amendment of the United States Constitution. The district court dismissed both the Parents' due process "special relationship" claim and their claim for punitive damages. It subsequently granted HISD's motion for summary judgment on the Parents' due process claim under "state created danger" theory. The Parents now appeal that summary judgment ruling.

II

We review a grant of summary judgment de novo, applying the same standard as the district court. Dickerson v. Bailey, 336 F.3d 388, 394 (5th Cir.2003). The moving party has the burden of proving there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.1998); FED.R.CIV.P. 56(c). Once the moving party has met its burden, the non-moving party must show that summary judgment is inappropriate by setting "forth specific facts showing the existence of a genuine issue concerning every essential component of its case." Morris, 144 F.3d at 380 (internal quotations omitted). In reviewing all of the evidence, we must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party as well as that evidence supporting the moving party that is uncontradicted and unimpeached. Dickerson, 336 F.3d at 394.

A

Municipal liability under 42 U.S.C. § 1983 requires proof of 1) a policymaker; 2) an official policy; 3) and a violation of constitutional rights whose "moving force" is the policy or custom. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.2001) (citing Monell v. Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978)).

The policymaker must have final policymaking authority. City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 926, 99 L.Ed.2d 107 (1988). Municipal liability cannot be sustained under a theory of respondeat superior. Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 1388, 137 L.Ed.2d 626 (1997); Piotrowski, 237 F.3d at 578. "[T]he unconstitutional conduct must be directly attributable to the municipality through some sort of official action or imprimatur; isolated unconstitutional actions by municipal employees will almost never trigger liability." Piotrowski, 237 F.3d at 578. Therefore to sustain liability under § 1983, the Parents must point to more than the actions of a HISD employee, they must identify a policymaker with final policymaking authority and a policy that is the "moving force" behind the alleged constitutional violation.

The Parents identify two policymakers: Pablo Rios, the principal at Deady; and, HISD's Board of Trustees ("the Board"). Only the latter is a policymaker. "[W]hether a particular official has final policymaking authority is a question of state law." Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 2723, 105 L.Ed.2d 598 (1989) (internal quotations omitted). Both parties agree that Texas law unequivocally delegates to the Board "the exclusive power and duty to govern and oversee the management of the public schools of the district." TEX. EDUC.CODE. § 11.151(b).²

Despite acknowledging the Board's exclusive policymaking authority under Texas law, the Parents assert that the Board delegated policymaking discretion for the safety and security of Deady Middle School to its principal Pablo Rios, thus labeling Rios, rather than the Board, as the final policymaking authority.

The Parents cite no Texas law empowering the Board with the authority to delegate its exclusive policymaking authority. Although TEX. EDUC.CODE. § 11.151(b) does not explicitly restrict the Board's ability to delegate its power, the Board's own policies do. HISD policy number 111.500 provides that "the power to enact policy cannot be delegated to an employee or agent."³ The policy does recognize that "[p]olicies may be developed through the cooperation of faculty and students as well as the administration and other employees," but makes clear that "the final authority for adoption rests solely with this Board as an official body."

The Parents cite no official document or edict where the Board delegated any of its policymaking authority to Rios, or any other principal. They do refer generally to a "site-based management policy." However, they provide no official documentation of this policy, nor do they explain how it delegated the Board's final policymaking authority to Rios. The district court referred to TEX. EDUC.CODE. § 11.253(a)⁴ as the source of this policy, but distinguished the decision-making authority it provides from the policymaking authority required to sustain liability under § 1983. Furthermore, this education code provision explicitly requires that "each school district," rather than each principal, maintain the relevant policy. See TEX. EDUC.CODE. § 11.253(a). Even if that authority were allocated to principals, it relates to academic performance, not school security. See TEX. EDUC.CODE. § 11.253(a)-(d). Additionally, this delegation of decision-making authority does not negate the fact that both under Texas law, and the Board's own policies, final policymaking authority lies exclusively with the Board.

"[A] federal court would not be justified in assuming that municipal policymaking authority lies somewhere other than where the applicable law purports to put it." Praprotnik, 485 U.S. at 126, 108 S.Ct. at 925. We make no such assumption. The Board is the one and only policymaker for HISD.

B

The Due Process Clause of the Fourteenth Amendment provides that "[n]o State shall ... deprive any person of life, liberty, or property without due process of law." The Clause "was intended to prevent government from abusing its power, or employing it as an instrument of oppression." DeShaney v. Winnebago County Dep't. of Soc. Servs., 489 U.S. 189, 196, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249 (1989) (internal quotations omitted). It generally provides "no affirmative right to government aid." Id. Consequently, the Supreme Court has "conclude[d] that a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." Id. at 197, 109 S.Ct. at 1004.

"[I]n certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals." Id. at 198, 109 S.Ct. at 1004. While the Supreme Court has not annunciated every circumstance in which this duty attaches, it has held that "[t]he affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." Id. at 200, 109 S.Ct. at 1005-06. The Supreme Court has further held that "[i]t is the State's affirmative act of restraining the individual's freedom to act on his own ... which is the `deprivation of liberty' triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interest against harms inflicted by other means." Id. at 200, 109 S.Ct. at 1006.

Several circuit courts...