Doe v. Columbia-Brazoria Indep. Sch. Dist., 16-40882

• Decision Date: 03 May 2017
• Docket Number: No. 16-40882,16-40882
• Citation: 855 F.3d 681
• Parties: John DOE, Plaintiff–Appellant v. COLUMBIA-BRAZORIA INDEPENDENT SCHOOL DISTRICT, BY AND THROUGH its BOARD OF TRUSTEES, Defendant–Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

855 F.3d 681

John DOE, Plaintiff–Appellant

v.COLUMBIA-BRAZORIA INDEPENDENT SCHOOL DISTRICT, BY AND THROUGH its BOARD OF TRUSTEES, Defendant–Appellee

No. 16-40882

United States Court of Appeals, Fifth Circuit.

FILED May 3, 2017

Veronica L. Davis, Attorney, West Columbia, TX, for Plaintiff–Appellant.

Merri Schneider–Vogel, Frances R. Broussard, Thompson & Horton, L.L.P., Houston, TX, Holly Gene McIntush, Thompson & Horton, L.L.P., Austin, TX, for Defendant–Appellee.

Before REAVLEY, OWEN, and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

John Doe sued Columbia-Brazoria Independent School District, alleging violations of 42 U.S.C. § 1983, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act. The district court dismissed for the plaintiff's failure to state a claim. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

John Doe is a former student of Columbia-Brazoria Independent School District. He claims he was sexually assaulted in the bathroom at Columbia Elementary School sometime in 2002 when he was in the second or third grade. During the assault, a "male student made sexual contact with [Doe] from the rear." The assailant allegedly threatened Doe to keep him from reporting the assault. Doe's parents recognized he was upset when he arrived home from school, but Doe initially "denied that anything was wrong." He later told his mother about the assault but "begged that she not disclose the incident until he graduated[.]"

At no time did Doe report the assault to a teacher, administrator, or other school employee. Instead, he claims his teacher should have known he was injured when he returned to the classroom, given his age and the extent of the harm. He further claims the District "knew or should have known" that the other boy had assaulted him or other students. According to Doe, the District failed in its duty to protect him by, among other things, not installing cameras in the school bathrooms. Doe claims he had an unspecified disability at the time of the incident for which "he was often sent [out] of his [class]room to test in a separate place or study in a separate area," which left him "at a greater risk of being unprotected[.]"

Doe claims he suffered in various ways following the assault. For example, he struggled with his self-esteem and "was rejected by girls he asked to school dances" when he was in seventh grade. Another student later accused Doe of "inappropriate touching." Doe claims he tried to tell the principal about his own assault when confronted, but the principal "threatened [him] with criminal action and expulsion from school." Doe's mother ultimately placed him in counseling to address the mental and physical problems that materialized after his assault.

Doe filed his initial complaint in December 2014. His second amended complaint, the live pleading here, alleges violations of 42 U.S.C. § 1983 ; Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681(a) ); Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794 ); and the Americans with Disabilities Act ("ADA"). In July 2015, the District moved to dismiss the second amended complaint for failure to state a claim. The district court summarily denied the motion "without prejudice to refiling." At a later status conference, the district court offered the District an opportunity to re-urge its motion within a specified time. The District timely filed its second motion to dismiss, which the district court granted.

Doe filed for rehearing on the same day that the district court entered its final judgment. Doe argued that Federal Rule of Civil Procedure 12(g) precluded the District from filing a second motion to dismiss under Rule 12(b)(6). The district court denied the motion without explanation. Doe then filed a second motion for rehearing, which the district court treated as a Rule 59(e) motion to alter or amend the judgment. The district court denied the motion, reasoning that Rule 59(e) is not intended to give litigants a "second bite at the apple[.]" Doe timely filed a notice of appeal.

DISCUSSION

"We review the district court's administrative handling of a case, including its enforcement of the local rules and its own scheduling orders for abuse of discretion." Macklin v. City of New Orleans , 293 F.3d 237, 240 (5th Cir. 2002). "We review de novo the district court's dismissal for failure to state a claim under [Federal Rule of Civil Procedure] 12(b)(6)." Nationwide Bi-Weekly Admin., Inc. v. Belo Corp. , 512 F.3d 137, 140 (5th Cir. 2007). "Dismissal under Rule 12(b)(6) is appropriate when the plaintiff has failed to allege enough facts to state a claim to relief that is plausible on its face and fails to raise a right to relief above the speculative level." Id . (quotation marks omitted). "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." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). We assume "all the allegations in the complaint are true[.]" Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

I. Procedural Claims

Doe makes two procedural challenges. First, he claims the district court abused its discretion by permitting the District to file a second Rule 12(b)(6) motion after the original motion was denied. Doe argues that Rule 12(g)(2) bars such filings. The District argues that Rule 12(h)(2) permits successive Rule 12(b)(6) motions and that any error in permitting the second motion was harmless.

Rule 12(g)(2) states that "[e]xcept as provided in Rule 12(h)(2) or (3), a party that makes a motion under [Rule 12 ] must not make another motion under [Rule 12 ] raising a defense or objection that was available to the party but omitted from its earlier motion." Rule 12(h)(2) provides that "[f]ailure to state a claim upon which relief can be granted ... may be raised: (A) in any pleading allowed or ordered under Rule 7(a); (B) by a motion under Rule 12(c); or (C) at trial." We have previously held that Rule 12(g) does not require consolidation of defenses raised in a second Rule 12(b)(6) motion. Belo , 512 F.3d at 141. In Belo , the plaintiff sued the defendant in the Southern District of Ohio. Id . at 139. There, the defendant brought a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2) and for failure to state a claim under Rule 12(b)(6). Id . To obviate the personal-jurisdiction issue, the plaintiff moved to transfer the case to the Northern District of Texas. Id . at 139–40. In that court, the defendant again moved to dismiss under Rule 12(b)(6). Id . at 140. This time it argued that the suit violated the Texas statute of limitations, and the district court agreed. Id . On appeal, the plaintiff argued that Rule 12(g)'s consolidation requirement barred the defendant's second Rule 12(b)(6) motion. Id . at 141. We disagreed and held that " Rule 12(h)(2) explicitly excepts from the consolidation requirement motions based on the defense of failure to state a claim upon which relief can be granted." Id .

There are procedural distinctions between this case and Belo , including that the Texas statute of limitations would not have been relevant until it was clear that Texas law applied after the transfer. Nonetheless, Belo does not suggest we were relying on the fact that the two Rule 12(b)(6) motions were filed in two different states' federal district courts. Instead, we said simply that Rule 12(h)(2) allows the filing of a second motion. We apply that same right to this case.

In addition, even if Rule 12(h)(2) should not be interpreted this way, there was no harm in allowing the second motion. The District may have raised new arguments in its second motion by adding information about the special-relationship and state-created-danger exceptions to Section 1983 liability. If so, the District could have presented that same argument in a Rule 12(c) motion for judgment on the pleadings, which Rule 12(h) does not prohibit. See , e.g. , Leyse v. Bank of Am. Nat. Ass'n , 804 F.3d 316, 321 (3d Cir. 2015) ; Albers v. Bd. of Cnty. Comm'rs of Jefferson Cnty. , 771 F.3d 697, 703 (10th Cir. 2014). The district court did not abuse its discretion in considering the District's second Rule 12(b)(6) motion.

Second, Doe argues that the district court abused its discretion by not allowing further discovery or granting a continuance. Doe sought an extension of time to seek records pertaining to his assault and concerning the perpetrator. Doe contends the District deliberately withheld those records. The District opposed the request, maintaining that it "did not have any records pertaining to the accused student, who had left the district more than a decade before the lawsuit was filed." In response, the district court suggested that Doe depose the District's custodian of records but made clear that any discovery beyond the deadline must be by agreement of the parties.¹ Doe also contends the district court abused its discretion by ruling on the District's motion to dismiss three days after the status conference. Despite representing to the court that he would respond to the District's motion on a certain date, Doe never responded. His failure to respond is especially conspicuous in light of the district court's strict warning on the matter during the status conference.²

A district court has "exceedingly wide" discretion in scheduling. Versai Mgmt. Corp. v. Clarendon Am. Ins. Co. , 597 F.3d 729, 740 (5th Cir. 2010). The considerations include "not only the facts of the particular case, but also all of the demands on counsel's time and the court's time." Id . (quotation marks and alterations omitted). Doe can offer no support for his contention that the district court abused its discretion with respect to the discovery deadlines. His motion for a...