Lozano v. Baylor Univ.

• Decision Date: 27 September 2019
• Docket Number: 6:16-CV-403-RP
• Citation: 408 F.Supp.3d 861
• Parties: Dolores LOZANO, Plaintiff, v. BAYLOR UNIVERSITY, Art Briles, in His Individual Capacity, Ian McCaw, in His Individual Capacity, and The City of Waco, Texas, Defendants.
• Court: U.S. District Court — Western District of Texas

408 F.Supp.3d 861

Dolores LOZANO, Plaintiff,

v.BAYLOR UNIVERSITY, Art Briles, in His Individual Capacity, Ian McCaw, in His Individual Capacity, and The City of Waco, Texas, Defendants.

6:16-CV-403-RP

United States District Court, W.D. Texas, Waco Division.

Signed September 27, 2019

Order Denying Reconsideration Dec. 4, 2019.

Sheila P. Haddock, Alexander S. Zalkin, Pro Hac Vice, Irwin M. Zalkin, Pro Hac Vice, The Zalkin Law Firm, P.C., San Diego, CA, for Plaintiff.

Holly Gene McIntush, Thompson & Horton, LL, Thomas A. Nesbitt, Laura J. Goodson, Scott DeShazo, DeShazo & Nesbitt, LLP, Austin, TX, James E. Byrom, Lisa Ann Brown, Thompson & Horton LLP, Darrell L. Barger, Hartline Dacus Barger Dreyer LLP, Houston, TX, Leila Henderson Gary, Thompson & Horton, LLP, Thomas Phillip Brandt, Stephen D Henninger, Fanning, Harper, Martinson, Brandt & Kutchin, P.C., Dallas, TX, J. Reid Simpson, Hartline Dacus Barger Dreyer, LLP, Michael W. Dixon, Charles D. Olson, Haley & Olson, PC, Waco, TX, for Defendants.

ORDER

ROBERT PITMAN, UNITED STATES DISTRICT JUDGE

Now before the Court is Plaintiff Dolores Lozano's Second Amended Complaint, (2d Am. Compl., Dkt. 50), and Motions to Dismiss filed by Baylor University, (Baylor 3d Mot., Dkt. 58; Baylor Supp. Br., Dkt. 99), the City of Waco, Texas, (City Mot., Dkt. 60), and Ian McCaw, (McCaw Mot., Dkt. 61), as well as the parties' responsive briefing. Having considered the parties' submissions, the law, and the record in this case, the Court enters the following order.

I. BACKGROUND

Dolores Lozano filed this case against Baylor University ("Baylor") and the Baylor University Board of Regents ("the Board of Regents") on October 11, 2016. (Compl., Dkt. 1). Plaintiff's initial complaint alleged violations of Title IX of the Education Amendments Act of 1972 ("Title IX"), 20 U.S.C. § 1681, et seq., as well as the Texas common law doctrines of negligence and gross negligence. (Id. ¶¶ 7, 9). Her claims stemmed from multiple alleged assaults by Devin Chafin, then a student-athlete and member of Baylor's football team. (Id. ¶¶ 13–63).

On September 28, 2017, the Court granted Baylor's first motion to dismiss with respect to Lozano's Title IX claims, negligence claims, and gross negligence claims against Baylor. (Order, Dkt. 20). The Court allowed Lozano to file an amended complaint with respect to her claim against Baylor for negligent hiring, retention, and supervision. (Id. at 15). Lozano filed a First Amended Complaint naming only Baylor as a defendant on October 24, 2017, (Am. Compl., Dkt. 24), and Baylor filed another motion to dismiss, (2d Mot., Dkt. 29). Lozano then obtained new counsel. She requested reconsideration of the Court's order dismissing Lozano's Title IX claims, negligence claims, and gross negligence claims, (Mot. Reconsid., Dkt. 25), and sought leave to file a second amended complaint, (Mot., Dkt. 46). The Court ruled that Lozano was not entitled to reconsideration of its order; allowed Lozano to amend her complaint a third time to add Art Briles, Ian McCaw, and the City of Waco, Texas, as defendants; and dismissed Baylor's second motion to dismiss as moot. (See Order, Dkt. 49). Lozano filed her Second Amended Complaint on July 24, 2018. (2d Am. Compl., Dkt. 50). That complaint is now before the Court.

Dolores Lozano graduated from Baylor University in May 2014. (Id. ¶ 125). During Lozano's final semester, in March and April 2014, her then-partner Devin Chafin violently assaulted her three times. (Id. ¶¶ 103–06, 116, 121). Lozano alleges that Baylor, its former football coach Art Briles, former Athletic Director Ian McCaw, and the Waco Police Department knew about the abuse but did nothing to help her, in large part because Chafin was a member of the football team. (See id. ¶¶ 15, 17–18, 50, 166).

In addition to their personal relationship, Baylor football staff asked Lozano to tutor Chafin. (Id. ¶ 94). The date of this request is unclear. The sequence of events alleged in the Complaint suggests that Baylor running back coach Jeff Lebby ("Lebby") approached Lozano sometime after she and Chafin began dating in late 2012, but before the first assault in March 2014. (See id. ). Chafin's grades had slipped and his eligibility to play was in question. (Id. ). Lebby "told Lozano that she was a positive influence on Chafin ... [and] enlisted her to tutor Chafin." (Id. ). Lozano agreed and "became Chafin's de facto handler." (Id. ). Lozano first reported concerns about Chafin to Lebby, regarding Chafin's drug use, but Lebby took no action. (Id. ¶ 96).

When the first assault occurred on March 6, 2014, Chafin "slapped Lozano so hard she fell over the toilet," "repeatedly kicked her in the stomach," pushed her into his bedroom, causing her to fall onto the floor, and "choke[d] her until she could not breathe." (Id. ¶ 105). Lozano suffered physical injuries, including bruising on her neck, arm, side, and back. (Id. ¶ 106).

At least six Baylor staff and leadership were aware of the first assault. Lozano worked as a manager for the Baylor Acrobatics and Tumbling team. (Id. ¶ 110). Her coach La Prise Williams ("Williams") noticed Lozano's bruises. (Id. ). Williams reported the assault to Baylor Associate Athletic Director and "Senior Woman Administrator," Nancy Post ("Post"). (Id. ). Post "discourage[ed] Williams from getting involved, telling her that she had enough to do and that handling incidents like Lozano's was not Williams' responsibility." (Id. ¶ 111). Williams then turned to the Baylor team chaplain and Director of Sports Ministry, Wes Yeary ("Yeary"). Yeary met with Lozano, who shared the details of the assault and Chafin's abusive behavior. (Id. ¶ 113). Yeary told Lozano that she "deserved better" and offered her a self-help book. (Id. ). Chafin told his running back coach, Jeff Lebby ("Lebby"), about the assault. (Id. ¶¶ 108, 114). Lebby "told [Chafin] that he should not have laid his hands on Lozano" and "punished" Chafin with additional drills at football practice. (Id. ¶ 114). Chafin told Lozano that both Art Briles and then-President Ken Starr "were made aware of the assault." (Id. ¶ 115). Chafin told Lozano that "both Briles and Starr told him to stay away from her but took no further action." (Id. ).

A few weeks later, in early April 2014, Chafin assaulted Lozano again. (Id. ¶ 116). While several of Lozano's friends and Chafin's teammates were present, Chafin approached her in a restaurant parking lot. "Upset and angry, Chafin slammed Lozano's hand and arm against an open car window." (Id. ). One of Chafin's teammates pulled him away so that Lozano could leave. (Id. ). Lozano sought treatment for her arm at Baylor's on-campus health clinic. (Id. ¶ 117). She reported both assaults to the clinic and identified Chafin as her assailant. (Id. ). Clinic staff referred Lozano to the Baylor counseling center. (Id. ¶ 118). Lozano "attended several counseling sessions during which she shared the details of the verbal and physical abuse and the assaults." (Id. ). But after exhausting her allotment of free sessions, Lozano stopped going to counseling. (Id. ). "No one in the Baylor counseling center ever referred her to outside counseling or offered her any other resources." (Id. ). On April 9, 2014, Lozano's mother placed a series of telephone calls to various Baylor offices, seeking "to talk to someone about Chafin's assaults on her daughter." (Id. ¶ 119). She called the main Baylor number, the Director of Operations for Football, and the Office of the Dean for the College of Arts and Sciences. (Id. ). During one of the calls, an unnamed woman that she spoke with advised her that the football coaches would handle the situation. (Id. ). Lozano's mother eventually made contact with a coach, whom she believed to be Lebby, who asked her to provide photos of Lozano's injuries. (Id. ). She provided photos. (Id. ). She also exchanged text messages with assistant athletic director Colin Shillinglaw. (Id. ). According to Lozano's complaint, no further disciplinary action was taken by anyone at Baylor at that time. (See id. ¶ 127).

On April 11, 2014, Lozano reported the first and second assault to the Waco Police Department ("the Waco Police").¹ (Id. ¶ 120). Officers interviewed her and took photos of her arm. (Id. ). She also sent them photos from the first assault. (Id. ). One of her friends, who had witnessed the second assault, provided a statement. (Id. ). Lozano was told that an investigator would follow up with her, but she never heard from anyone. (Id. ). The police did not interview Chafin and no further investigation was conducted. (Id. ). Lozano called the Waco Police repeatedly, but her calls were not returned. (Id. ).²

A few weeks later, Chafin assaulted Lozano a third time. After an argument in Chafin's apartment, Chafin "grabbed Lozano and forcibly slammed her to the ground." (Id. ¶ 121). Lozano reported the assault to Williams. (Id. ¶ 122). Around this time, as a result of the repeated assaults, Lozano began to feel "hopeless and overwhelmed." (Id. ¶ 123). She suffered stress and anxiety. (Id. ). Afraid and unable to concentrate, she sought extensions to complete her assignments and her grades declined. (Id. ). She graduated the following month and moved home to Houston. (Id. ¶ 124).

The following year, Lozano was assaulted a final time by Chafin's new girlfriend, while Chafin was present. (Id. ¶ 128). In January 2015, Chafin asked her to return some of his belongings. (Id. ). When Lozano met with him to return them, his new girlfriend was present. (Id. ). Chafin became "agitated" and Lozano attempted to leave. (Id. ). Chafin's new girlfriend then assaulted Lozano, pulling her hair down to the concrete, ripping her shirt, and beating Lozano, "telling [Lozano] she wished she would have killed her." (Id. ). Finally, Chafin pulled his girlfriend off. (Id. ). Lozano reported the girlfriend's assault to the Waco Police. (Id. ¶ 129). She gave a statement and informed the officers about the...