A.W. v. Humble Indep. Sch. Dist.

• Decision Date: 11 June 2014
• Docket Number: Civil Action No. H–13–3551.
• Citation: 25 F.Supp.3d 973
• Parties: A.W. and Her Mother Mary King–White, Plaintiffs, v. HUMBLE INDEPENDENT SCHOOL DISTRICT, Amanda Michelle Feenstra, Guy Sconzo, Charles Ned, Juan Melendez, Tammy McHale, Craig Stowers, and Alicia Narcisse, Defendants.
• Court: U.S. District Court — Southern District of Texas

25 F.Supp.3d 973

A.W. and Her Mother Mary King–White, Plaintiffs

v.HUMBLE INDEPENDENT SCHOOL DISTRICT, Amanda Michelle Feenstra, Guy Sconzo, Charles Ned, Juan Melendez, Tammy McHale, Craig Stowers, and Alicia Narcisse, Defendants.

Civil Action No. H–13–3551.

United States District Court, S.D. Texas, Houston Division.

Signed June 11, 2014.

Aubrey Pittman, The Pittman Law Firm PC, Dallas, TX, for Plaintiffs.

Lisa Ann Brown, Rebecca Bailey Weimer, Thompson & Horton LLP, James Lloyd Mount, Mount Law Firm, Jeffry Paul O'Dea, Burt Barr O'Dea LLP, Houston, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

SIM LAKE, District Judge.

Plaintiffs, A.W. and her mother, Mary King–White, bring this action against defendants, the Humble Independent School District (“HISD”), Amanda Michelle Feenstra (“Feenstra”), Guy Sconzo (“Sconzo”), Charles Ned (“Ned”), Juan Melendez (“Melendez”), Tammy McHale (“McHale”), Craig Stowers (“Stowers”), and Alicia Narcisse (“Narcisse”), for violation of civil rights guaranteed by the United States Constitution under 42 U.S.C. §§ 1983 and 1988, and Title IX of the Education Act of 1972, 20 U.S.C. § 1681. Plaintiffs have also asserted tort claims under the Texas Civil Practice and Remedies Code and the common law of the State of Texas for sexual assault and battery, negligence and gross negligence, bystander recovery, and infliction of emotional distress. Plaintiffs seek compensatory and exemplary damages, pre- and post-judgment interest, costs of court, attorney's fees, and other relief available at law and in equity to which they might be entitled.

Pending before the court are the Motion to Dismiss of Defendant Humble Independent School District (Docket Entry No. 16); the Motion to Dismiss of Defendants Guy Sconzo, Charles Ned, Juan Melendez, Tammy McHale, Craig Stowers, and Alicia Narcisse (Docket Entry No. 17); Plaintiffs' Motion for Leave to File Surreply to Defendants' Replies to Motions to Dismiss (Docket Entry No. 34); and plaintiffs' requests for leave to amend asserted in Plaintiffs' Response to Humble Independent School District's Motion to Dismiss and Brief in Support (Docket Entry No. 24) and in Plaintiffs' Response to Motion to Dismiss of Defendants Guy Sconzo, Charles Ned, Juan Melendez, Tammy McHale, Craig Stowers, and Alicia Narcisse and Brief in Support (Docket Entry No. 25). For the reasons set forth below, the pending motions to dismiss and plaintiffs' motion to file surreply will be granted, and plaintiffs' motions for leave to amend will be denied.

I. Standard of Review

The individual defendants seek dismissal of all the claims asserted against them under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for which relief may be granted. HISD seeks dismissal of plaintiffs' federal law claims asserted under Rule 12(b)(6), and seeks dismissal of plaintiffs' state law claims under Rule 12(b)(1) for lack of subject matter jurisdiction.

A. Rule 12(b)(6) Standard

Under Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A Rule 12(b)(6) motion tests the formal sufficiency of the pleadings and is “appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001), cert. denied sub nom. Cloud v. United States, 536 U.S. 960, 122 S.Ct. 2665, 153 L.Ed.2d 839 (2002). The court must accept the factual allegations of the complaint as true, view them in a light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff's favor. Id. To defeat a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). “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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Twombly, 127 S.Ct. at 1965 ). “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. (quoting Twombly, 127 S.Ct. at 1965 ). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ ” Id. (quoting Twombly, 127 S.Ct. at 1966 ). Moreover, courts do not accept as true legal conclusions. “[R]ecitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 1950.

B. Rule 12(b)(1) Standard

Rule 12(b)(1) challenges to subject matter jurisdiction come in two forms: “facial” attacks and “factual” attacks. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981). A facial attack consists of a Rule 12(b)(1) motion unaccompanied by supporting evidence that challenges the court's jurisdiction based solely on the pleadings. Id. A factual attack challenges the existence of subject matter jurisdiction in fact—irrespective of the pleadings—and matters outside the pleadings, such as testimony and affidavits, are considered. Id. Because HISD has not submitted evidence in support of its Rule 12(b)(1) motion to dismiss, the motion is a facial attack on plaintiffs' pleadings, and the court's review is limited to whether the complaint sufficiently alleges jurisdiction.

II. Plaintiffs' Factual Allegations

Plaintiff Mary King–White is the mother of A.W. who was a minor during most of the events that give rise to this action. Plaintiffs allege that between 2009 and 2011 while A.W. was a student at Humble High School, A.W. was sexually molested on multiple occasions by her same-sex dance teacher, defendant Feenstra. Plaintiffs allege that the abuse began in the spring of 2009 when A.W. was 16 years old, and continued until 2011 when A.W. graduated from Humble High School. Plaintiffs allege that when the abuse began Feenstra instructed A.W. to remain quiet, and A.W. remained quiet. Plaintiffs allege that while the abuse was occurring, A.W.'s grades changed, A.W. withdrew from her classmates and dance teammates, and that with King–White's consent, A.W. went to live in Feenstra's home. Plaintiffs also allege that Feenstra spent excessive amounts of time with A.W. behind closed doors, and that Feenstra took A.W. on personal trips during the school day and on out-of-town trips during which she and A.W. would share a room and a bed.

Plaintiffs allege that the defendant “School Officials” observed these signs of sexual abuse but did nothing. Plaintiffs allege that after A.W. graduated from Humble High School Feenstra called A.W. on the phone and stalked A.W. Eventually A.W. told a former dance instructor about what had happened with Feenstra. After the dance instructor reported A.W.'s story to school authorities, Feenstra was arrested. On October 13, 2013, Feenstra pleaded guilty to an improper relationship with a student and was sentenced to 10 years deferred adjudication and probation.¹

III. Analysis

Plaintiffs assert that defendants' actions make them liable for violations of Title IX of the Education Act of 1972, violations of constitutional rights actionable under 42 U.S.C. § 1983, and violations of Texas law governing the duty to train, supervise, and discipline subordinates, sexual assault and battery, negligence and gross negligence, bystander recovery, and intentional infliction of emotional distress.²

A. Count 1: Title IX Claims Are Subject to Dismissal

“Count 1 of Plaintiffs' Complaint asserts a claim pursuant to Title IX based upon sexual harassment, rape, and abuse.”³ Defendants argue that plaintiffs' Title IX claims are subject to dismissal because (1) the Title IX claims that King–White asserts on her own behalf are not actionable, (2) the Title IX claims asserted against the individual defendants are not actionable, (3) the Title IX claims based on race discrimination and failure to adopt policies are not actionable, (4) the Title IX claims are all time-barred, and (5) plaintiffs' factual allegations are not sufficient to state a Title IX claim against HISD.

1. Applicable Law

Title IX of the Education Act Amendments of 1972 provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The Supreme Court has held that Title IX is enforceable through an implied right of private action against federal funding recipients, Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 1968, 60 L.Ed.2d 560 (1979), and that monetary damages are available in such actions.

Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 1038, 117 L.Ed.2d 208 (1992). The Court's holding in Franklin established that a federal funding recipient can be held liable for damages in cases involving a teacher's sexual harassment of a student, but did not define the contours of Title IX liability. The Court explained that

“when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor ‘discriminate[s]’ on the basis of sex.”Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986). We believe the same rule should apply when a teacher sexually harasses and abuses a student. Congress surely did not intend for federal moneys to be expended to support the intentional actions it sought by statute to proscribe.

Id. at 1037. See Rosa H. v. San Elizario I.S.D., 106 F.3d 648, 653 (5th Cir.1997) (acknowledging that under Title IX “[m]inor students who have been subjected to a sexual...