Estate of Carmichael v. Galbraith

• Decision Date: 04 January 2012
• Docket Number: Civil Action No. 3:11-CV-0622-D
• Parties: THE ESTATE OF JON THOMAS CARMICHAEL, BY AND THROUGH JON TIMOTHY AND TAMI CARMICHAEL, INDIVIDUALLY, AND UPON BEHALF OF HIS HEIRS, Plaintiffs, v. RONNIE GALBRAITH, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

THE ESTATE OF JON THOMAS CARMICHAEL, BYAND THROUGH JON TIMOTHY AND TAMI CARMICHAEL,INDIVIDUALLY, AND UPON BEHALF OF HIS HEIRS, Plaintiffs,

v.RONNIE GALBRAITH, et al., Defendants.

Civil Action No. 3:11-CV-0622-D

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

January 4, 2012

MEMORANDUM OPINIONAND ORDER

In this tragic case involving a student who committed suicide following constant bullying and harassment at school, defendants move under Fed. R. Civ. P. 12(b)(6) to dismiss plaintiffs' claims brought under 42 U.S.C. § 1983, Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX"), and Texas law. For the reasons that follow, the court grants the motion as to plaintiffs' federal-law claims, does not reach their state-law claims, and grants plaintiffs leave to replead.

I

This is a suit brought by plaintiff The Estate of Jon Thomas Carmichael, by and through Jon Timothy and Tami Carmichael, individually and upon behalf of his heirs(collectively, the "Carmichaels") following the suicide of Jon Thomas Carmichael ("Jon"),¹ a 13-year-old student who attended school in the Joshua Independent School District ("Joshua ISD"). The Carmichaels assert claims for relief under § 1983, Title IX, and Texas law. Defendants are Ronnie Galbraith, President of the Joshua ISD School Board and Ray Dane ("Dane"), Superintendent of the Joshua ISD, in their official capacities, and Kenneth Randall Watts ("Watts"), a former Joshua ISD teacher, Dayton Barone ("Barone"), a Joshua ISD teacher, Walter Strickland ("Strickland"), a Joshua ISD teacher, and Elizabeth Rosatelli ("Rosatelli"), a Joshua ISD school counselor, in their individual capacities.

According to the Carmichaels' first amended complaint ("complaint"),² while Jon was attending school as a Joshua ISD student, he was bullied, harassed, and called names nearly every day. Jon was accosted in physical education class, on the football field, and in the locker room. On one occasion he "was called fag, queer, homo and douche." Am. Compl. ¶ 76. He was shoved, his belongings were destroyed, his head was flushed in the toilet, he was stuffed in a trash can, he was thrown into a dumpster, and on one occasion—the day before he died—he was stripped naked, tied up, and stuffed into a trash can while the incident was videotaped. Joshua ISD staff, including defendants Strickland and Watts,witnessed many of the incidents of bullying, but did nothing.

In the fall of 2009, Jon began seeing Rosatelli, a school counselor. Rosatelli knew that Jon was the victim of bullying, but she did not report or otherwise arrange for the allegations to be investigated. Defendant Barone knew that Jon was a victim of bullying and that he was suicidal, but Barone failed to arrange for the allegations of bullying to be investigated.

The Joshua ISD School Board has promulgated several policies that prohibit bullying and has specified procedures for responding to incidents of bullying and harassment.³ But no reports regarding the incidents of bullying involving Jon were made to Joshua ISD officials. Jon's parents were never notified of any of these incidents, and no written investigations were conducted by Joshua ISD Superintendent Dane or any other person at the direction of the Joshua ISD. In 2010 Jon committed suicide at the age of 13. This lawsuit followed, and defendants now move to dismiss under Rule 12(b)(6).⁴

II

In deciding defendants' Rule 12(b)(6) motion, the court evaluates the sufficiency of the Carmichaels' complaint by "accept[ing] all well- pleaded facts as true, viewing them in the light most favorable to the plaintiff[s]." In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (internal quotation marks omitted). To survive defendants' motion, 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 (2007). "A claim has facial plausibility when the plaintiff[s] plead[ ] 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, 129 S.Ct. 1937, 1949 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.; see also Twombly, 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief above the speculative level[.]"). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'shown'—'that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1950 (alteration omitted) (quoting Rule 8(a)(2)).

III

A

To state a claim under 42 U.S.C. § 1983, "a plaintiff 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 acting under color of state law." Lauderdale v. Tex. Dep't of Crim. Justice, 512 F.3d 157, 165 (5th Cir. 2007) (internal quotation marks and citation omitted). If plaintiffs seek to hold a municipality or other government entity liable, they must establish that "action pursuant to official municipal policy" caused the injury. Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978).

Defendants contend that the Carmichaels' § 1983 claim must be dismissed because they have failed to plead a constitutional violation that was the direct result of any failure to act by any defendant. The Carmichaels respond that defendants violated Jon's right to life and bodily integrity (substantive due process) and his right to equal protection.

B

The court considers first whether the Carmichaels have pleaded a plausible claim based on a violation of Jon's "right to life and bodily integrity." Ps. Br. 6. 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." U.S. Const. amend. XIV, § 1. "[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." DeShaney v.Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 195 (1989) (emphasis added). "There is a recognized substantive due process right for individuals to be free from bodily harm caused by the state, but as a general rule, there is no constitutional duty that requires state officials to protect persons from private harms." Kovacic v. Villarreal, 628 F.3d 209, 213 (5th Cir. 2010) (emphasis added) (citing DeShaney, 489 U.S. at 195).

The Carmichaels allege that Jon was harmed by the bullying and harassment of other students and, ultimately, by committing suicide. But because they have not adequately pleaded that any state official caused Jon bodily harm, they have not pleaded a plausible claim for a violation of the Due Process Clause of the Fourteenth Amendment.

Courts interpreting the Supreme Court's opinion in DeShaney have recognized exceptions to the general rule that state officials cannot be held liable for harm caused by private actors. One exception applies when there is a "special relationship" between the individual and the state. Kovacic, 628 F.3d at 213. "This relationship is formed '[w]hen the state, through the affirmative exercise of its powers, acts to restrain an individual's freedom to act on his own behalf through incarceration, institutionalization, or other similar restraint of personal liberty[.']" Id. (some brackets in original) (quoting McClendon v. City of Columbia, 305 F.3d 314, 324 (5th Cir. 2002)) (some quotation marks omitted).⁵ "The statedoes have a constitutional duty to protect individuals in such relationship to the state from dangers, which in certain circumstances can include private violence." Id. (citing McClendon, 305 F.3d at 324). But the Carmichaels do not allege facts in the complaint that make a facially plausible showing that the state, through the affirmative exercise of its powers, acted to restrain Jon's freedom to act on his own behalf through incarceration, institutionalization, or other similar restraint of personal liberty.

A second exception recognized by other courts "to the rule against state liability for violence committed by private actors" applies "in situations where 'the state actor played an affirmative role in creating or exacerbating a dangerous situation that led to the individual's injury.'" Kovacic, 628 F.3d at 214 (quoting McClendon, 305 F.3d at 324). But although the Fifth Circuit in Leffall v. Dallas Independent School District, 28 F.3d 521, 530-32 (5th Cir. 1994), discussed the state created danger theory and set forth the elements necessary to establish the claim as a basis for liability, the panel "ultimately held that even if the state-created danger theory was constitutionally sound, the plaintiff failed to meet the necessary elements. Subsequent § 1983 cases predicated on the state created danger theory similarly pretermit the issue." Saenz v. City of McAllen, 396 Fed. Appx. 173, 176-77 (5th Cir. 2010) (per curiam); see also id. at 177 n.5. "[T]his circuit has not adopted thestate-created danger theory." Bustos v. Martini Club, Inc., 599 F.3d 458, 466 (5th Cir. 2010).

Because the Carmichaels have not pleaded facts that make a facially plausible showing that the state, through the affirmative exercise of its powers, acted to restrain Jon's freedom to act on his own behalf through incarceration, institutionalization, or other similar restraint of personal liberty, and because the state-created danger exception to DeShaney is not recognized in this circuit, the court dismisses their § 1983 claim to the extent it is based on an alleged violation of the Due Process Clause of the ...