Doe on Behalf of Doe v. Dallas Independent School Dist.

• Decision Date: 27 August 1998
• Docket Number: No. 97-10343,97-10343
• Citation: 153 F.3d 211,1998 WL 543882
• Parties: 128 Ed. Law Rep. 1005 DOE, on Behalf of John DOE, on behalf of Jack Doe, on Behalf of James Doe; et al., Plaintiffs, John Doe; Joe Doe; Roe, as next friend of Jack Roe; Smith, as next friend of James Smith, Plaintiffs-Appellants, v. DALLAS INDEPENDENT SCHOOL DISTRICT; et al., Defendants, Dallas Independent School District; Barbara Patrick, Defendants-Appellees. Bob BLACK; et al., Plaintiffs, v. DALLAS INDEPENDENT SCHOOL DISTRICT; et al., Defendants, Dallas Independent School District; Barbara Patrick, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 211

153 F.3d 211

128 Ed. Law Rep. 1005

DOE, on Behalf of John DOE, on behalf of Jack Doe, on Behalf

of James Doe; et al., Plaintiffs,

John Doe; Joe Doe; Roe, as next friend of Jack Roe;

Smith, as next friend of James Smith, Plaintiffs-Appellants, v. DALLAS INDEPENDENT SCHOOL DISTRICT; et al., Defendants, Dallas Independent School District; Barbara Patrick,

Defendants-Appellees.

Bob BLACK; et al., Plaintiffs, v. DALLAS INDEPENDENT SCHOOL DISTRICT; et al., Defendants, Dallas Independent School District; Barbara Patrick,

Defendants-Appellees.

No. 97-10343.

United States Court of Appeals, Fifth Circuit.

Aug. 27, 1998.

Hal K. Gillespie, Liane Aiko Janovsky, Gillespie, Rozen, Tanner & Watsky, Dallas, TX, Cordelia Lourdes Martinez, East & Martinez, Brian Dean East, Advocacy Incorporated, Austin, TX, for Plaintiffs-Appellants.

Dennis J. Eichelbaum, Schwartz & Eichelbaum, Dallas, TX, for Defendants-Appellees.

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

Before REYNALDO G. GARZA, KING and BENAVIDES, Circuit Judges.

KING, Circuit Judge:

Plaintiffs-appellants appeal the district court's grant of summary judgment in favor of defendants-appellees on their claims brought under 42 U.S.C. § 1983. Additionally, plaintiffs-appellants appeal the district court's dismissal of their claim brought under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, for failure to state a claim upon which relief could be granted. For the reasons set forth below, we affirm the district court's grant of summary judgment for defendants-appellees on the § 1983 claims, reverse its dismissal of the Title IX claim, and remand the case to the district court for further proceedings consistent with this opinion.

I. FACTUAL & PROCEDURAL BACKGROUND

From 1983 to 1987, John McGrew, a third-grade teacher and Boy Scout Troop leader at Joseph J. Rhoads Elementary School, sexually molested numerous male students. McGrew was subsequently convicted in state court of one count of aggravated sexual assault and two counts of indecency with a child. Following his conviction, McGrew was sentenced to one life sentence and two twenty-year sentences.

This case was initially filed in state court on August 20, 1993 by or on behalf of John Doe, Joe Doe, Jack Doe, and James Doe. ¹ On September 22, 1993, the action was removed to federal district court. The original suit alleged claims against numerous defendants ² based on McGrew's abuse of the boys pursuant to (1) 42 U.S.C. § 1983, (2) Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (Title IX), (3) the Texas Constitution, and (4) Texas tort law. On March 29, 1995, the district court dismissed the Title IX claim because it concluded, based on Fifth Circuit precedent under Title VII which has since been overruled by the Supreme Court, that same-sex sexual harassment was not actionable under Title IX. In addition, the district court dismissed the Texas common-law tort claims, finding that "[t]he plaintiffs [had] not alleged [that] any of the moving defendants committed common law torts." A suit based on the same facts was subsequently filed by or on behalf of plaintiffs-appellants Bob Black, Bill Black, William White, and George Green, and on February 20, 1996, the two actions were consolidated. ³

Plaintiffs argued to the district court that defendants-appellees Dallas Independent School District (DISD) and Principal Barbara Patrick (collectively, Defendants) knew or should have known of McGrew's sexual abuse as early as the 1983-1984 school year and that, despite having such knowledge, they acted with deliberate indifference toward Plaintiffs' rights, taking no action to stop the abuse. Defendants filed a motion for summary judgment on Plaintiffs' § 1983 claims on the grounds that (1) no basis existed for holding DISD liable for the conduct of McGrew and (2) Patrick was entitled to qualified immunity. The district court granted Defendants' motion on October 29, 1996, and it entered final judgment for Defendants on March 6, 1997. Plaintiffs thereafter timely appealed to this court.

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo, applying the same criteria used by the district court in the first instance. See Kemp v. G.D. Searle & Co., 103 F.3d 405, 407 (5th Cir.1997). After consulting applicable law in order to ascertain the material factual issues, we consider the evidence bearing on those issues, viewing the facts and the inferences to be drawn therefrom in the light most favorable to the nonmovant. See King v. Chide, 974 F.2d 653, 656 (5th Cir.1992). Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). However, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient [to preclude summary judgment]; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

We also review de novo a dismissal for failure to state a claim upon which relief could be granted. See Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.1994). A case or a portion thereof may not be dismissed for failure to state a claim unless it appears certain that the plaintiffs cannot prove any set of facts in support of their claim that would entitle them to relief. See Carney v. RTC, 19 F.3d 950, 954 (5th Cir.1994).

III. DISCUSSION

Plaintiffs raise several issues on appeal. First, they contend that the district court erred in granting summary judgment in favor of DISD on their § 1983 claim against it. Second, they argue that Patrick is not entitled to qualified immunity. Third, Plaintiffs assert that the Supreme Court's decision in Oncale v. Sundowner Offshore Services, Inc., --- U.S. ----, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), renders the district court's dismissal of their Title IX claim erroneous. We address each of these arguments in turn.

A. 42 U.S.C. § 1983

Section 1983 provides injured plaintiffs with a cause of action when they have been deprived of federal rights under color of state law. The statute states,

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

42 U.S.C. § 1983. In order to state a valid claim under § 1983, Plaintiffs must "(1) allege a violation of rights secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person [or entity] acting under color of state law." Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir.1994) (citing West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)). Plaintiffs contend that they presented sufficient summary judgment evidence to create a genuine issue of material fact as to whether DISD and Patrick, acting under color of state law, violated their constitutional rights by failing to protect them from abuse at the hands of McGrew.

1. DISD

Under § 1983, a municipality or local governmental entity such as an independent school district may be held liable only for acts for which it is actually responsible. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); Spann v. Tyler Indep. Sch. Dist., 876 F.2d 437, 438 (5th Cir.1989). Thus, "a municipality cannot be held liable solely because it employs a tortfeasor--or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell v. Dep't of Social Servs. of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also 1B MARTIN A. SCHWARTZ & JOHN E. KIRKLIN, SECTION 1983 LITIGATION: CLAIMS AND DEFENSES § 7.5 (3d ed.1997). However, a municipality may be held liable under § 1983 when "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Monell, 436 U.S. at 694, 98 S.Ct. 2018; see also 1B SCHWARTZ & KIRKLIN, supra, § 7.5 ("A municipality is liable for its own wrongs when enforcement of a municipal policy or practice results in a deprivation of federally protected rights."). "Thus, § 1983 municipal liability may be imposed when (1) the enforcement of a municipal policy or custom was (2) 'the moving force' of the violation of federally protected rights." 1B SCHWARTZ & KIRKLIN, supra, § 7.6 (quoting City of Canton v. Harris, 489 U.S. 378, 385-91, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).

Plaintiffs rely on two distinct rationales in support of their claim that DISD is liable to them under § 1983. First, they argue that DISD is liable for Patrick's deliberate indifference to their constitutional rights because it delegated to her policymaking authority over the school's response to allegations of sexual abuse. Second, Plaintiffs contend that DISD's failure to adopt a policy regarding what steps should be taken when a child alleges that he was a victim of sexual abuse at the hands of a school employee amounts to deliberate indifference on the part of DISD itself. DISD responds that Patrick was not a policymaker and that it therefore may not be held liable for her actions or inactions. In addition, it argues that it may not be held liable for the non-existence of a policy on sexual abuse.

The district court...