Opinion
No. SA-03-CA-0225.
February 3, 2005
ORDER ADOPTING AS MODIFIED THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is the Memorandum and Recommendation of the United States Magistrate Judge, filed in the above-styled and numbered cause on January 26, 2005. The Magistrate Judge recommends that the Court grant the summary judgment motions of Defendants San Antonio Independent School District ("SAISD"), De La Pena, and Galvan (Docket Nos. 62, 63, and 64) and thereby dismiss with prejudice all Plaintiffs' claims against those parties. The Magistrate Judge also recommends that Plaintiffs' claims against Defendant Polanco be dismissed without prejudice. Plaintiffs filed their objections to the Memorandum and Recommendation on February 4, 2005. After due consideration, the Court is of the opinion that the Magistrate Judge's Memorandum and Recommendation should be ADOPTED AS MODIFIED. The Court Adopts the Re port and Recommendation except for the Magistrate Judge's recommendation to grant summary judgment as to claims against SAISD. The Court declines to grant summary judgment against SAISD because SAISD is no longer a party to this litigation.
BACKGROUND
The Court here in adopts by reference the Magistrate Judge's Procedural History and Summary of Allegations as well the Factual Summary presented on pages 2 through 12 in the Magistrate Judge's Memorandum and Recommendation.
This case arises out of the sexual assault and abuse of Sarah Doe, a minor, by Robert Polanco, one of Sarah's teachers at the Horace Mann Middle School ("Middle School") in the SAISD. Defendant Sylvia De La Pena was the principal of the Middle School and Polanco's supervisor before the abuse occurred and until she was transferred to another school in January 1998. Defendant Sandy Galvan replaced Defendant De La Pena as Principal of the Middle School in February 1998.
Pursuant to 42 U.S.C. § 1983, Plaintiffs sued the SAISD and its officials claiming (1) that Sarah's constitutionally based liberty interest in her bodily integrity had been violated by Defendants' deliberate indifference to that interest, and (2) that Defendant state actors created or increased a danger that unconstitutionally placed Sarah at risk of harm from Polanco. In addition, Plaintiffs brought a Title IX claim alleging that Defendants' actions resulted in unequal treatment and denial of benefits of educational programs and activities on the basis of Sarah Doe's sex.
20 U.S .C. § 1861, et seq.
Plaintiffs' most-recent amended complaint states that the named individual Defendants, Mr. Polanco, Superintendent Lam, Principal Galvan, and Principal De La Pena "are sued in their individual capacities only" and that SAISD is sued "in its own right" and based on "account of the individual defendants and/or policy makers." The parties voluntarily dismissed SAISD without prejudice, and this Court entered an Order to that effect on September 24, 2004. This Court also granted Plaintiff's Motion to Dismiss Superintendent Lam without prejudice.
Docket No. 76.
Docket Nos. 78, 79.
On July 16, 2004, Defendants SAISD, De La Pena, and Principal Galvan jointly filed a Motion for Summary Judgment. The remaining defendants, Principal De La Pena and Principal Galvan, filed separate motions for summary judgment on July 23 and July 26, 2004, respectively. On September 13, 2004, Plaintiffs filed their response in opposition to Defendants' Motions for Summary Judgment, to which Defendants then filed a reply. Magistrate Judge Pamela Mathy reviewed the arguments made by the parties and recommended that the Court grant the Defendants' summary judgment motions (Docket Nos. 62, 63, and 64). Magistrate Judge Mathy also recommended that Plaintiffs' claims against Defendant Polanco be dismissed without prejudice.
STANDARD OF REVIEW
The Court reviews de novo a Magistrate Judge's Memorandum and Recommendation if a party files specific objections within ten days of service. The Court need not consider objections that are frivolous, conclusive, or general in nature. If there are no specific objections to a Magistrate Judge's Memorandum and Recommendation, the District Court is to review it for findings and conclusions that are either clearly erroneous or contrary to law. In the instant case, Plaintiff timely filed specific objections to the Magistrate Judge's Memorandum and Recommendation, thus warranting de novo review by the Court.Summary judgment is appropriate if, after adequate time for discovery, no genuine issue as to any material facts exists, and the moving party is entitled to judgment as a matter of law. Where the issue is one for which the nonmoving party bears the burden of proof at trial, it is sufficient for the moving party to identify those portions of the record which reveal the absence of a genuine issue of material fact as to one or more essential elements of the nonmoving party's claim. The nonmoving party must then "go beyond the pleadings and by its own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial." To prevail on summary judgment, the moving party need only demonstrate that "there is an absence of evidence to support the nonmoving party's case." Upon viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the court, in order to grant summary judgment, must be satisfied that no rational trier of fact could find for the nonmoving party as to each element of his case.
Fed.R.Civ.P. 56(c); Celotex Corp v. Catrett, 477 U.S. 317, 322-24 (1986).
Celotex, 477 U.S. at 323-24.
Id. at 324.
Id. at 325.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
ANALYSIS
Plaintiffs raise two objections to Magistrate Judge Mathy's Memorandum and Recommendation. First, Plaintiffs contend that the Magistrate Judge erred in recommending that Jane Doe's claims against SAISD be dismissed with prejudice. This Court sustains Plaintiffs' objection and does not accept the Magistrate Judge's recommendation on this issue. The Court finds that no live claims by Plaintiffs against SAISD were pending before the Magistrate Judge during the time the Magistrate Judge prepared her Memorandum and Recommendation. This Court accepted the parties' agreement to dismiss Defendant SAISD without prejudice and entered an Order to that effect on September 23, 2004. The Court agrees with both parties that it is inappropriate for the Court to grant a motion for summary judgment as to the claims against SAISD.Second, Plaintiffs argue that the Magistrate Judge erred in recommending summary disposition against Plaintiffs on bodily integrity and state-created danger claims under § 1983. After de novo review of Plaintiffs' § 1983 claims and the parties' arguments on these issues, the Court adopts the Magistrate Judge's Recommendation, thereby granting Defendants' Motions for Summary Judgment against Defendants De La Pena and Galvan. The Fifth Circuit recognizes that the Constitution protects a child's substantive due process "right to be free of state-occasioned damage to her bodily integrity." The Fifth Circuit in Doe v. Taylor ISD adopted the following standard to determine the personal liability of school officials in physical sexual abuse cases:
Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 451 (5th Cir. 1994) ( quoting Jefferson v. Ysleta Ind. Sch. Dist., 817 F.2d 303, 305 (5th Cir. 1987).
A supervisory school official can be held person ally liable for a subordinate's violation of an elementary or secondary school student's constitutional right to bodily integrity in physical sexual abuse cases if the plaintiff establishes that:
(1) the defendant learned of facts or a pattern of inappropriate sexual behavior by a subordinate pointing plainly toward the conclusion that the subordinate was sexually abusing the student; and
(2) the defendant demonstrated deliberate indifference toward the constitutional rights of the student by failing to take action that was obviously necessary to prevent or stop the abuse; and
(3) such failure caused a constitution al injury to the student.
Doe, 15 F.3d at 454.
The Court finds that the Magistrate Judge correctly applied the Taylor standard to find that no genuine issue as to any material facts exists in this case and properly concluded that Defendants are entitled to summary judgment as a matter of law .
With respect to Defendant De La Pena, the evidence is insufficient to raise a genuine issue of fact to support the elements of the Taylor standard. First, the evidence is insufficient to show that De La Pena learned of facts or a pattern of inappropriate sexual behavior by a Mr. Polanco pointing plainly toward the conclusion that Mr. Polanco was sexually abusing Plaintiff Sarah Doe. The only complaint of sexual misconduct against Mr. Polanco occurred in the fall semester of 1997, when an eighth-grade girl complained that Mr. Polanco acted inappropriately towards her. Principal De La Pena initiated an investigation of the complaint and found no evidence to corroborate the student's claim that Mr. Polanco had held the student in the girls' locker room and kissed her. De Le Pena's investigation did not uncover any other reports by students or teachers that Mr. Polanco had exhibited sexually inappropriate behavior. She did report, however, that her investigation showed Mr. Polanco had made comments and gestures that could be misinterpreted by students, but those actions are insufficient to plainly point to the conclusion that Mr. Polanco would sexually abuse a student.
See Hagen v. Houston ISD, 51 F.3d 48 (5th Cir. 1995) (finding that a prior complaint from a student that a coach had pinched and patted him on the buttocks, which the coach admitted and explained that the "coaches gesture" was made while encouraging the student to rejoin the football team, was insufficient to put the principal on notice that the coach was sexually abusing kids); see Doe v. Beaumont ISD, 8 F.Supp.2d. 596, 612 (E.D.Tex-Beaumont 1998) (finding that a prior complaint by another student that a teacher "looked under her dress, hugged her, and told her she was a fine baby" was insufficient evidence that "pointed plainly toward the conclusion that [the teacher] was sexually abusing his students prior to [plaintiffs'] reports").
Second, the evidence is insufficient to overcome Defendant De La Pena's qualified immunity defense. De La Pena did not act with deliberate indifference towards Sarah Doe's constitutional rights. In response to the other student's November 1997 complaint, De La Pena instructed the Middle School Counselor to report the allegations to the Texas Department of Protective and Regulatory Services as required by state law, placed Mr. Polanco on administrative leave while the internal investigation was conducted, completed an internal investigation, and requested written responses to the allegations from Mr. Polanco who denied the allegations. Even though Principal De La Pena did not find corroborating evidence of the allegations, she directed Mr. Polanco to avoid all contact with the student, removed the student from Mr. Polanco's class, and worked with the counselor to ensure that the student would not need to interact or see Mr. Polanco. The record shows that De La Pena did not demonstrate deliberate indifference towards the only complaint that arose concerning Dr. Polanco's conduct. Moreover, Sarah Doe and Mr. Polanco's sexual encounters began in late February or early March 1999 more than a year after Principal De La Pena had been transferred to another school. Based on this analysis, the Court concurs with the Magistrate Judge's finding that no genuine issues of material fact exist to show that De La Pena violated Plaintiff Sarah Doe's substantive due process right to be free of state-occasioned damage to her bodily integrity.
Similarly with respect to Defendant Galvan, the evidence is insufficient to raise a genuine issue of fact to support a finding that she violated Plaintiffs' substantive due process rights. Galvan's actions do not satisfy the first two elements of the Taylor standard because insufficient evidence exists to establish that Galvan had notice of Mr. Polanco's relationship with Sarah Doe or to establish that she acted deliberately indifferent towards Plaintiff Sarah Doe's constitutional rights. Galvan was informed of the investigation of Mr. Polanco based on the student's allegations in 1997, but she learned of no similar complaints until Plaintiff's sexual relationship was reported in the news in the summer of 1999. The Court concurs with the Magistrate Judge's finding that "Plaintiff has adduced no summary judgment evidence to show that, except for the [student's 1997] allegations, Principal Galvan had received any other complaints of alleged sexual misconduct involving Mr. Polanco during the 1997-98 and 1998-99 school years." The Fifth Circuit has recognized that evidence of a single alleged incident of sexual assault by a teacher does not constitute notice of facts or a pattern of inappropriate sexual behavior that points plainly toward the conclusion that the [teacher] was sexually abusing the student. Without notice of the relationship between Mr. Polanco and Plaintiff and in light of the lack of corroborating evidence and acquittal of all charges against Mr. Polanco concerning the 1997 allegations, Galvan's conduct did not constitute a failure to take action that was obviously necessary to prevent or stop the abuse.
Memorandum and Recommendation, 24.
See Hagen, 51 F.3d at 52 (discussing McCord's sexual abuse claim).
Finally, the Court finds that Plaintiffs have not presented evidence of a genuine issue of material fact with regard to their state-created danger theory of liability under § 1983. The Fifth Circuit has ruled that a Plaintiff must show the following elements to assert a due process claim based on a state-created danger theory: (1) state actors created a dangerous environment; (2) they know it is dangerous; and (3) they "used their authority to create an opportunity that would not otherwise have existed for the third party's crime to occur." The evidence in this case does not demonstrate that the Middle School was a dangerous place. Moreover, Defendants De La Pena and Galvan did not know it was dangerous because there was no corroborating evidence of the 1997 incident and no additional complaints of sexual misconduct by Mr. Polanco. Plaintiff has admitted that she and Mr. Polanco tried to conceal their relationship and told no one about it until the summer after the 1998-99 school year. The summary judgment evidence reveals insufficient evidence to support Plaintiffs' state-created danger claim, and the Court adopts the Magistrate Judge's Recommendation that summary judgment be granted.
Piotrowski v. City of Houston, 237 F.3d 567, 585 (5th Cir. 2001) (quoting Johnson v. Dallas ISD, 38 F.3d 198, 201 (5th Cir. 1994).
Having considered Plaintiff's objections and having reviewed de novo the controlling law and the specific facts of this case, the Court finds that the Magistrate Judge's Memorandum and Recommendation should be Adopted as Modified.
CONCLUSION
Accordingly, the Court ORDERS that the Memorandum and Recommendation be ADOPTED AS MODIFIED.
The Court ORDERS that the joint Motion for Summary Judgment by Defendants SAISD, De La Pena, and Galvan (Docket No. 62) be GRANTED in so far as it applies to Defendants De La Pena and Galvan. The Court ORDERS that Plaintiff Jane Doe's claims against De La Pena and Galvan be DISMISSED WITH PREJUDICE.
The Court ORDERS that Defendant De La Pena's Motion for Summary Judgment (Docket No. 63) be GRANTED and each of Plaintiff Sarah Doe's claims against De La Pena be DISMISSED WITH PREJUDICE .
The Court ORDERS that Defendant Galvan's Motion for Summary Judgment (Docket No. 64) be GRANTED and each of Plaintiff Sarah Doe's claims against Galvan be DISMISSED WITH PREJUDICE.
The Court ORDERS that Plaintiff Jane Doe's and Plaintiff Sarah Doe's claims against Defendant Polanco be DISMISSED WITHOUT PREJUDICE for failure to prosecute.
The Court ORDERS that any other request for relief not expressly granted be DENIED.
FINAL JUDGMENT
On this day the Court entered an order adopting as modified the Memorandum and Recommendation of the United States Magistrate Judge and dismissing Plaintiff's Complaint. The Court now enters its Final Judgment in accordance with Rule 58 of the Federal Rules of Civil Procedure.It is ORDERED that the Memorandum and Recommendation of the Magistrate Judge be ADOPTED AS MODIFIED.
It is ORDERED that the joint Motion for Summary Judgment by Defendants SAISD, De La Pena, and Galvan (Docket No. 62) be GRANTED in so far as it applies to Defendants De La Pena and Galvan. It is ORDERED that Plaintiff Jane Doe's claims against De La Pena and Galvan be DISMISSED WITH PREJUDICE.
It is ORDERED that Defendant De La Pena's Motion for Summary Judgment (Docket No. 63) be GRANTED and each of Plaintiff Sarah Doe's claims against De La Pena be DISMISSED WITH PREJUDICE.
It is ORDERED that Defendant Galvan's Motion for Summary Judgment (Docket No. 64) be GRANTED and each of Plaintiff Sarah Doe's claims against Galvan be DISMISSED WITH PREJUDICE.
It is ORDERED that Plaintiff Jane Doe's and Plaintiff Sarah Doe's claims against Defendant Polanco be DISMISSED WITHOUT PREJUDICE for failure to prosecute.
It is ORDERED that any other relief not expressly granted be DENIED.
It is ORDERED that each party bear its own costs.