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Reshkovsky v. Valerio

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

March 29, 2017

MICHAEL RESHKOVSKY, Plaintiff,
v.
DAVID VALERIO, et al, Defendants.

          OPINION AND ORDER

          MELINDA HARMON UNITED STATES DISTRICT JUDGE

         Pending before the Court are Defendant Houston Independent School District's (“HISD's”) Motion to Dismiss (Document No. 6) and Defendant David Valerio's (“Valerio's”) Motion to Dismiss (Document No. 12). Plaintiff has not filed a response. Upon review of these documents, the facts, and the relevant law, the Court determines that Defendant Valerio's Motion and Defendant HISD's Motion will be granted.

         Background

         Plaintiff Michael Reshkovsky was a student at HISD, where Defendant Valerio was a teacher, and Defendant Robert Gasparello (“Gasparello”) is the principal. (Document No. 1 at 1-4). Plaintiff alleges that Valerio engaged in an inappropriate relationship with him, constituting the typical “grooming” performed by sexual predators, and on one occasion, February 1, 2013 Valerio “grabbed Plaintiff's groin.” Id. at 4-5. Plaintiff immediately reported this to another teacher, and on the same day discussed the incident with Gasparello. Id. at 6. Plaintiff was then transferred out of Valerio's class, and contacted by an investigator with the Juvenile Sex Crimes Division from HISD, but “stated that he did not wish to pursue the matter any further.” Id. At some point after the incident, around October 2013, Plaintiff's mother, Ms. Cisneros (“Cisneros”), met with Gasparello, who allegedly told her that he did not believe Plaintiff, and told her to withdraw him from school. Id. at 7. Cisneros complied, enrolling Plaintiff in another high school. Id.

         In early 2014 Plaintiff was questioned by investigators with the Harris County District Attorney's Office, but was informed by the Special Victims Bureau that “they would be unable to prosecute Defendant VALERIO due to many circumstance [sic], such as the way the case was investigated by Defendant GASPARELLO and Defendant HOUSTON ISD.” Id. Subsequently, in late January 2015, Plaintiff was interviewed by HISD in regards to an ongoing lawsuit regarding the termination of Defendant Valerio. Id. at 8. Plaintiff provided a statement, and on May 14, 2015 HISD “considered and approved a Separation Agreement and Full and Final Release with Defendant VALERIO.” Id.

         Plaintiff states that Gasparello violated Section 261.101 of the Texas Family code when he did not make a report of the alleged abuse within 48 hours. Id. at 9-10. Because of this conduct, Gasparello “agreed to accept an Inscribed Reprimand.” Id. at 10. Furthermore, Plaintiff alleges that “Defendants either knew or had constructive knowledge of Defendant VALERIO's past history of improper sexual conduct with students of Sharpstown High School.” Id.

         Plaintiff then brought this suit against Defendants. Plaintiff states that “each Defendant was the agent and employee of Defendant HOUSTON ISD and was acting within such agency and employment, and that each Defendant was acting under the color of state law, ” and states that he is suing both Valerio and Gasparello in their individual and official capacities. Id. at 2, 8. Plaintiff's claims are as follows:

(1) Plaintiff brings a claim under 42 U.S.C. § 1983 against Gasparello, alleging “[v]iolation of his constitutional rights under the Fourteenth Amendment to the United States Constitution to be free from state-sponsored deprivation of liberty [bodily integrity] without due process of law and enjoyment of equal protection under the law.” Id. at 9. Plaintiff alleges that “Defendant GASPARELLO is liable for failing to supervise, failing to train, and/or acquiescing to unconstitutional behavior by subordinates, ” and is liable for his failure to investigate and report the incident. Id. at 12.
(2) Plaintiff also brings a § 1983 claim against HISD for failure to train and supervise teachers and school officials, failure to adequately supervise and discipline Valerio, responding with indifference to his claims, and failure to “establish adequate procedures for reviewing teacher performance.” Id. at 13-14.
(3) Plaintiff brings an assault and battery claim against Valerio. Id. at 15-16. Plaintiff also brings this claim against HISD, stating that his resulting injuries “were the direct and immediate consequences of Defendant HOUSON ISD's tortious acts.” Id. at 16.
(4) Plaintiff brings a Title IX claim against HISD for its failure “to have policies, procedures, practices, and customs in place to assure Plaintiff MICHAEL RESHKOVSKY was not a victim of harassment based upon his gender.” Id. at 17. Plaintiff also appears to bring this claim against Gasparello, stating that he “had the duty to report child abuse and they had the authority to investigate the abuse and take disciplinary action, but they acted with deliberate indifference by failing to make any report to take any corrective action until more than two months had passed since being made aware of the first allegation of suspected child abuse by Defendant VALERIO.” Id.
(5) Plaintiff brings an intentional infliction of emotional distress claim against Valerio and HISD. Id. at 17-18. Plaintiff states that Valerio's conduct was outrageous, and that “[s]uch conduct by the Defendant VALERIO and Defendant HOUSTON ISD proximately caused Plaintiff's emotional distress, which was severe, as the acts caused his embarrassment, fright, horror, grief, shame, humiliation, and worry.” Id. at 18.

         Pursuant to the above claims, Plaintiff asks for general damages, as well as punitive damages under § 1983, due to Defendants' egregious wrongdoing. Id. at 19.

         Standard of Review

         When a district court reviews a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), it must construe the complaint in favor of the plaintiff and take all well-pleaded facts as true. Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)). Dismissal is appropriate only if the complaint fails to plead “enough facts to state a claim to relief that is plausible on its face.” Leal v. McHugh, 731 F.3d 405, 410 (5th Cir. 2013) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Montoya v. FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The plausibility standard is not akin to a “probability requirement, ” but asks for more than a “possibility that a defendant has acted unlawfully.” Twombly, 550 U.S. at 556. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . .” Id. at 544.

         Discussion

         (1) Tort Claims

         Tort claims against ...


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