White v. Fagen

• Decision Date: 31 October 2022
• Docket Number: Civil Action 4:22-CV-0420
• Parties: BRIAN WHITE, Plaintiff, v. DR. ELIZABETH FAGEN, ET AL., Defendants.
• Court: U.S. District Court — Southern District of Texas

BRIAN WHITE, Plaintiff,
v.
DR. ELIZABETH FAGEN, ET AL., Defendants.

Civil Action No. 4:22-CV-0420

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

October 31, 2022

MEMORANDUM AND RECOMMENDATION

Christina A. Bryan United States Magistrate Judge

This matter is before the Court on Defendants' Motion to Dismiss (ECF 13). Having considered Defendants' Motion, Plaintiff's Responses (ECF 15, 18-23), and the law, the Court recommends that the Motion be GRANTED and this case be DISMISSED in part without prejudice and in part with prejudice.

I. Background

Plaintiff Brian White, an African American man, alleges that in October 1998, when he was 17 years old, the Kingwood High School football coach, a white man named Ken Herring, kicked him in his buttocks while he was in a three-point stance during practice. ECF 1 at 4. Plaintiff suffered bruising and pain and was embarrassed and humiliated. Id. Plaintiff alleges that school officials did nothing about the assault. Id. Plaintiff has since been diagnosed with mental illnesses, including PTSD and schizophrenia, which he attributes to the assault. Id. at 5, 7. Plaintiff is currently committed to an independent living facility in New Jersey as a person on “Krol status.” ECF 18-2. “Krol status” describes a person who has been acquitted of a crime by reason of insanity and found to be a danger to himself or others. See In re Commitment of W.K., 159 N.J. 1, 2, 731

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A.2d 482, 482 (1999) (explaining that “Krol status” is a reference to State v. Krol, 68 N.J. 236, 344 A.2d 289 (1975)).

On January 18, 2022, Plaintiff filed a Complaint under 42 U.S.C. § 1983 naming as Defendants Herring, current Humble ISD Superintendent Dr. Elizabeth Fagen, “Kingwood School District,” and “Kingwood ISD School District.” ECF 1. Herring has not appeared or been served in this action. Defendant Fagen, the Humble Independent School District and Humble Independent School District Board of Trustees (collectively the Humble Defendants) move under Rule 12(b)(1) and Rule 12(b)(6) for dismissal of all claims with prejudice.

II. Legal Standards

A. Rule 12(b)(1)

Rule 12(b)(1) provides the mechanism for a defendant to challenge subject matter jurisdiction. When considering a Rule 12(b)(1) motion, the court “is free to weigh the evidence and resolve factual disputes in order to satisfy itself that it has power to hear the case.” Montez v. Dep't of the Navy, 392 F.3d 147, 149 (5th Cir. 2004); Krim v. Pcorder.com, 402 F.3d 489, 494 (5th Cir. 2005). The court may consider any of the following in resolving a Rule 12(b)(1) motion: “(1) the complaint alone; (2) the complaint supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008); see also Schaeffler v. United States, 889 F.3d 238, 242 (5th Cir. 2018). The plaintiff bears the burden of establishing subject matter jurisdiction. Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380, 388 (5th Cir. 2014). If the plaintiff fails to meet his burden, the case must be dismissed. Id.

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B. Rule 12(b)(6)

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief...