Breen v. Texas a&M University

• Decision Date: 24 April 2007
• Docket Number: No. 04-40712.,No. 04-40780.,No. 04-40714.,No. 04-40713.,No. 04-40715.,No. 04-40812.,04-40712.,04-40713.,04-40714.,04-40715.,04-40780.,04-40812.
• Citation: 485 F.3d 325
• Parties: Sean BREEN, as Administrator of the Estate of Christopher Breen; Christopher Breen; John E. Breen; Marian K. Breen, Plaintiffs-Appellants, v. TEXAS A&M UNIVERSITY; et al., Defendants, Texas A&M University; J. Malon Southerland, in his individual capacity; Russell Thompson, in his individual capacity; Ray Bowen, Defendants-Appellees. James Kimmel, as representative of the Estate of Lucas Kimmel (deceased); James Kimmel; Walieta Kimmel, Plaintiffs-Appellants, v. Texas A&M University; et al., Defendants, Texas A&M University; J. Malon Southerland, in his individual capacity; Russell J. Thompson, in his official capacity; Ray Bowen, in his individual capacity; William L. Kibler, in his individual capacity; John J. Koldus, III, in his individual capacity, Defendants-Appellees. Bill Davis, Plaintiff-Appellant, v. Texas A&M University; et al., Defendants, Texas A&M University; J. Malon Southerland, in his individual capacity; Russell Thompson, in his individual capacity; Ray Bowen, in his individual capacity; William L. Kibler, in his individual capacity; John J. Koldus, III, in his individual capacity, Defendants-Appellees. Howard Scanlan; Denise Scanlan; Lauren N.T. Scanlan, Plaintiffs-Appellants, v. Texas A&M University; et al., Defendants, Texas A&M University; J. Malon Southerland, in his individual capacity; Russell Thompson, in his individual capacity; Ray Bowen, in his individual capacity; William L. Kibler, in his individual capacity; John J. Koldus, II, in his individual capacity, Defendants-Appellees. John Andrew Comstock; Dixie Ann Zinneker, Plaintiffs-Appellants, v. Texas A&M University; et al., Defendants, Texas A&M University; J. Malon Southerland, in his individual capacity; Russell Thompson, in his individual capacity; Ray Bowen; William L. Kibler, in his individual capacity; John J. Koldus, III, in his individual capacity, Defendants-Appellees. Jaquelynn Kay Self, Individually and as Administratrix of the estate of Jerry Don Self, Deceased; Kathy McClain Escamilla, Individually and as Administratrix of the Estate of Bryan A. McClain, Deceased; Phillip McClain, Andrea Heard, Individually and as Administratrix of the Estate of Christopher Lee Heard, Deceased; Leslie G. Heard; Gregory Anthony Powell, Individually and as Administrator of the Estate of Chad A. Powell, Deceased; Beverly Jill Powell; Matthew Lynn Robbins; Dominic M.V. Braus; Nancy Braus, Plaintiffs-Appellants, v. Ray M. Bowen; J. Malon Southerland; William Kibler; Russell W. Thompson; John J. Koldus, III; M.T. Hopgood, Jr., Major General; Donald J. Johnson; Zack Coapland; Kevin Jackson; James R. Reynolds; Robert Harry Stiteler, Jr.; Michael David Krenz, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

485 F.3d 325

Sean BREEN, as Administrator of the Estate of Christopher Breen; Christopher Breen; John E. Breen; Marian K. Breen, Plaintiffs-Appellants, v. TEXAS A&M UNIVERSITY; et al., Defendants, Texas A&M University; J. Malon Southerland, in his individual capacity; Russell Thompson, in his individual capacity; Ray Bowen, Defendants-Appellees.

James Kimmel, as representative of the Estate of Lucas Kimmel (deceased); James Kimmel; Walieta Kimmel, Plaintiffs-Appellants, v. Texas A&M University; et al., Defendants, Texas A&M University; J. Malon Southerland, in his individual capacity; Russell J. Thompson, in his official capacity; Ray Bowen, in his individual capacity; William L. Kibler, in his individual capacity; John J. Koldus, III, in his individual capacity, Defendants-Appellees.

Bill Davis, Plaintiff-Appellant, v. Texas A&M University; et al., Defendants, Texas A&M University; J. Malon Southerland, in his individual capacity; Russell Thompson, in his individual capacity; Ray Bowen, in his individual capacity; William L. Kibler, in his individual capacity; John J. Koldus, III, in his individual capacity, Defendants-Appellees.

Howard Scanlan; Denise Scanlan; Lauren N.T. Scanlan, Plaintiffs-Appellants, v. Texas A&M University; et al., Defendants, Texas A&M University; J. Malon Southerland, in his individual capacity; Russell Thompson, in his individual capacity; Ray Bowen, in his individual capacity; William L. Kibler, in his individual capacity; John J. Koldus, II, in his individual capacity, Defendants-Appellees.

John Andrew Comstock; Dixie Ann Zinneker, Plaintiffs-Appellants, v. Texas A&M University; et al., Defendants, Texas A&M University; J. Malon Southerland, in his individual capacity; Russell Thompson, in his individual capacity; Ray Bowen; William L. Kibler, in his individual capacity; John J. Koldus, III, in his individual capacity, Defendants-Appellees.

Jaquelynn Kay Self, Individually and as Administratrix of the estate of Jerry Don Self, Deceased; Kathy McClain Escamilla, Individually and as Administratrix of the Estate of Bryan A. McClain, Deceased; Phillip McClain, Andrea Heard, Individually and as Administratrix of the Estate of Christopher Lee Heard, Deceased; Leslie G. Heard; Gregory Anthony Powell, Individually and as Administrator of the Estate of Chad A. Powell, Deceased; Beverly Jill Powell; Matthew Lynn Robbins; Dominic M.V. Braus; Nancy Braus, Plaintiffs-Appellants, v. Ray M. Bowen; J. Malon Southerland; William Kibler; Russell W. Thompson; John J. Koldus, III; M.T. Hopgood, Jr., Major General; Donald J. Johnson; Zack Coapland; Kevin Jackson; James R. Reynolds; Robert Harry Stiteler, Jr.; Michael David Krenz, Defendants-Appellees.

No. 04-40712.

No. 04-40713.

No. 04-40714.

No. 04-40715.

No. 04-40780.

No. 04-40812.

United States Court of Appeals, Fifth Circuit.

April 24, 2007.

Steven K. DeWolf (argued), Staci C. Pirnar, Haakon Thomas Donnelly, Bellinger, McManemin, DeWolf, Dallas, TX, for Sean Breen, Christopher Breen, John E. Breen and Marian K. Breen.

James C. Todd, Asst. Atty. Gen., General Litigation Div., Bill L. Davis, Rance Lamar Craft, Ryan D. Clinton, Austin, TX, for Texas A&M University, J. Malon Southerland, Russell Thompson and Ray Bowen.

R. Ted Cruz (argued), Austin, TX, for J. Malon Southerland, Russell Thompson and Ray Bowen.

George E. Hyde, Denton, Navarro, Rocha & Bernal, San Antonio, TX, for Texas Ass'n of Counties, Amicus Curiae.

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

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

These consolidated appeals arise out of the violent collapse of the Texas A&M University bonfire stack on November 18, 1999, which killed 12 students and injured 27 others. In these appeals, plaintiffs seek to overturn the district court's grant of summary judgment under Federal Rule of Civil Procedure 56 dismissing their 42 U.S.C. § 1983 claims against University officials for damages resulting from that tragic event. In previous appeals, a panel of this court, in Scanlan v. Texas A&M University, 343 F.3d 533 (5th Cir.2003), reversed the district court's dismissal of those claims under Rule 12(b)(6). Upon remand after that decision, the district court granted summary judgment in favor of defendants, holding that the University officials were entitled to qualified immunity from suit. See Breen v. Southerland, No. 3:01-CV-00670, slip op. (S.D.Tex. May 21, 2004). This second group of appeals followed.

I. Procedural Background

In the wake of the 1999 Texas A&M bonfire collapse, the plaintiffs, including the estates of deceased victims, injured survivors, and relatives of affected students, filed suits against Texas A&M University and certain University officials in the United States District Court for the Southern District of Texas.¹ Plaintiffs asserted inter alia, that the University and its officials were liable to plaintiffs under 42 U.S.C. § 1983 for violating the students' substantive due process rights to bodily integrity. Plaintiffs' section 1983 claims were predicated on a state-created danger theory — i.e., that the University and its officials created a dangerous environment for students and were deliberately indifferent to their safety by encouraging the unqualified and inexperienced students to build the enormous bonfire stack without adequate supervision by University personnel. Plaintiffs also asserted several state law causes of action against the various defendants.

Defendants moved to dismiss plaintiffs' actions for failure to state a claim, and, in the alternative, for summary judgment. For reasons assigned in an opinion dated July 23, 2002, the district court granted the defendants' motions to dismiss and dismissed plaintiffs' complaints in their entirety. See Kimmel v. Texas A&M Univ., 267 F.Supp.2d 646 (S.D.Tex.2002). First, the district court held that plaintiffs' claims against Texas A&M University were suits against the state and were therefore barred by sovereign immunity. Id. at 653-54. No appeal was taken from that holding. Second, as to plaintiffs' section 1983 claims against the University officials, the district court held that plaintiffs failed to state a cognizable substantive due process claim because plaintiffs' allegations were insufficient to establish that the officials acted with deliberate indifference. Id. at 656-58. In analyzing the sufficiency of plaintiffs' section 1983 claims, the district court considered not only the allegations of plaintiffs' complaints, but also the findings of the Final Report of the Special Commission on the 1999 Texas A&M Bonfire,² although that document was not incorporated by or otherwise made part of plaintiffs' complaints. Kimmel, 267 F.Supp.2d at 654. Finally, the district court declined to exercise supplemental jurisdiction over plaintiffs' state law claims and dismissed them without prejudice. Id. at 658-59.

Upon plaintiffs' first appeal in this case, a panel of this court reversed the district court's Rule 12(b)(6) dismissal of plaintiffs' section 1983 claims against the University officials. Scanlan, 343 F.3d at 537-39. The court first held that the district court erred by considering, for purposes of the defendants' Rule 12(b)(6) motions to dismiss, the facts stated in the Final Report.³ The Scanlan court then considered whether the plaintiffs' allegations were sufficient to state a claim under 42 U.S.C. § 1983. The court noted that, although this circuit had never adopted the state-created danger theory, it had previously recognized that a plaintiff seeking to recover under such a theory must show that (1) "the defendants used their authority to create a dangerous environment for the plaintiff;" and (2) "the defendants acted with deliberate indifference to the plight of the plaintiff." Id. at 537-38. The court found that, construing the allegations in the light most favorable to the plaintiffs, the complaints stated a cause of action under the state-created danger theory because they averred that: (1) the bonfire construction environment was dangerous; (2) the University officials knew that it was dangerous and would create an opportunity for the resulting harm to occur; and (3) the officials were deliberately indifferent to the students' safety because they delegated the construction of the bonfire stack to students, whom they knew were not qualified to handle such a dangerous project, failed to provide adequate supervision, and ignored the danger that the stack posed to the students working on it. Id. at 538. Accordingly, the Scanlan court reversed the district court's judgment dismissing the plaintiffs' section 1983 claims and remanded the case to the district court for further proceedings.

On remand, the University officials renewed their motions for summary judgment. The district court granted the motions on the ground that the officials were entitled to qualified immunity from suit. See Breen, No. 3:01-cv-00670, slip op. at 3-11. The district court found that, although the summary judgment record contained material factual disputes concerning both whether defendants' conduct created or increased the danger to the students involved in construction of the bonfire stack and whether defendants acted with deliberate indifference, the defendants were nevertheless entitled to qualified immunity because their conduct was not objectively unreasonable in light of clearly established Fifth Circuit law at the time of their actions. Id., slip op. at 6-11.

II. Standard of Review

Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). This court reviews a grant of summary judgment de novo, applying the same standards as those applicable in the district court. Baton Rouge Oil & Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 376 (5th Cir.2002). Ordinarily, on summary judgment, the...