United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
Rosenthal Chief United States District Judge.
sad case alleges a sexual assault of one intellectually
disabled middle-school student by another, on a school bus.
Greg and Deanne Hernandez, individually and on their
daughter's behalf, have sued the Fort Bend Independent
School District; Michael Brassfield, the District Executive
Director of Transportation; Julia Nick, the District
Transportation Supervisor; Henry Henderson, a District Bus
Driver; Gloria Castillo, a former District Bus Monitor; Deena
Hill, the District Special Education Director; and
“Grandmother Roe, ” the guardian of the student
alleged to have committed the sexual assault. (Docket Entry
No. 1-2 at 15-17). The defendants moved to dismiss, asserting
various forms of governmental immunity and arguing that the
amended petition fails to allege facts that state plausible
claims. (Docket Entry Nos. 9, 11). The plaintiffs deny that
governmental immunity applies and argue that the amended
petition includes factual allegations that state plausible
careful review of the amended petition, motions, response,
and the applicable law, the court grants the motions to
dismiss, with prejudice on some claims, and without prejudice
as to others. As to those claims dismissed without prejudice,
the plaintiffs must file an amended complaint no later than
June 14, 2019. The reasons for these rulings are explained in
facts are drawn from the plaintiffs' complaint, with the
well-pleaded allegations accepted as true for this motion.
January 2017, the plaintiffs' daughter, J.H., was a
student at the District's Bains Middle School. J.H. had
an intellectual disability that required her to receive
special care. For each intellectually disabled student, the
District created an Individual Education Plan to manage the
student's education and care. On January 23, a District
employee escorted J.H. from her classroom to a “special
education bus, ” as her Plan required, and left her
outside the bus. (Docket Entry No. 1-2 at 17). A male
student, also intellectually disabled, was similarly escorted
to the bus and left. (Id. at 18). There are no
allegations giving the children's ages or their levels of
disability. A security camera on the bus captured what
boarded the bus and sat in the front row, near the window,
and the male student followed and sat next to her.
(Id.). “Within seconds, ” the male
student pulled J.H.'s pants down and began to sexually
assault her. (Id.). Another female student on the
bus saw what was happening, exclaimed “I can't
look, ” and then said “Oh my God, that is so
disgusting.” (Id.). J.H. looked around
“for help and appear[ed] to (ineffectually)
Castillo, the District employee charged with escorting the
students to their bus seats, securing their seatbelts, and
ensuring their safety, was on her cellphone in the back of
the bus. (Id. at 18-19). The female student
continued “her outcry, ” looked around, and
pointed toward J.H. and the male student. Castillo noticed
the female student and asked her “what?”
(Id. at 19). The female student pointed again at
J.H. and the male student, and said: “This!”
Castillo finally saw what was happening, grabbed the male
student, and asked “[w]hat [were] you doing?”
(Id.). J.H. pulled up her pants. (Id.).
Castillo told the male student to “get up, get up,
” but he did not do so. (Id.). Castillo then
told J.H. to move to a seat behind the front row, forcing her
to “crawl across” the male student.
driver, Henry Henderson, boarded the bus and asked Castillo
whether they had “got everybody.” (Id.).
Henderson and Castillo began talking,
“presumably” about what happened. (Id.).
After their conversation, Castillo moved the male student to
the back of the bus and returned J.H. to her front-row seat.
(Id.). Henderson then began the bus route, dropping
off students at their designated locations.
and Henderson did not immediately report the incident to
District officials, law enforcement, or the plaintiffs.
(Id. at 20). Henderson dropped J.H. off at her home
“with a wave goodbye.” (Id.). When the
male student was dropped off at his home, Castillo told his
guardian, Grandmother Roe, about what happened.
and Henderson did not report the incident until they
“returned to the District headquarters” later
that day. (Id. at 21). A District employee then
notified the Fort Bend Police Department. (Id.). The
Police Department sent Officer Cruz to the Bains Middle
School, where he spoke with Julia Nick, the school's
“special education transportation supervisor.”
(Id.). Nick directed Officer Cruz to Castillo and
Henderson, who each gave a statement. (Id.).
Cruz and Nick contacted Grandmother Roe and the plaintiffs,
informing the plaintiffs of the alleged assault at
“6:50 p.m., nearly two and one-half hours after the
attack, ” and advising them to take J.H. to Texas
Children's Hospital for an examination. (Id.).
At 8:35 p.m., Officer Cruz reported the incident to the Texas
Department of Family and Protective Services. (Id.
at 22). No. one from “the District contacted [Child
Protective Services] immediately after” the incident.
Cruz reviewed and “retained” the footage from the
security camera on the bus, without providing it to
“the District Superintendent's office, the District
General Counsel's office[, ] or to the District Human
Resources office at that time, or even later.”
(Id. at 21-22).
plaintiffs took J.H. to the Harris County Children's
Advocacy Center for an examination on January 24.
(Id. at 21). Child Protective Services
“arranged for an interview and forensic
examination” of J.H. on January 30. (Id. at
22). A Child Protective Services representative told the
plaintiffs that the matter had been referred to the Fort Bend
District Attorney. (Id.).
February 2017, the plaintiffs had not heard from Child
Protective Services or the District Attorney. (Id.).
The plaintiffs contacted Child Protective Services, which
told them that it had “ruled out pursuing the
case.” (Id.). The Police Department closed its
case on March 6. (Id.). In April, the plaintiffs
spoke with Chief Deputy District Attorney Tyra McCollum, who
told them that the case was “on intake.”
(Id.). In September, the plaintiffs were told
“that the ‘case was delayed due to a personal
issue of McCollum, but was now progressing.'”
(Id. at 23). A few months later, in October,
McCollum told the plaintiffs that the District Attorney would
not pursue the case because it could not prove that the male
student “acted knowingly.” (Id.).
November, the District's Legal Office and Human Resources
became aware of the incident and saw the incident footage.
(Id.). The District fired Castillo “sometime
in late November 2017.” (Id.). In December
2017, Charles Dupre, the District Superintendent, called the
plaintiffs and told them that they could watch the incident
footage. (Id.). He warned that the footage contained
“very disturbing things”; that he “felt
like he owes an apology”; and that “nothing came
to be earlier because the District police took possession of
the video.” (Id.). Superintendent Dupre told
the plaintiffs that the alleged assailant was no longer in a
District school, and that the District had fired Castillo.
(Id. at 23-24).
February 2018, the plaintiffs met with District officials,
including Superintendent Dupre, General Counsel Robert
Scamardo, Special Education Director Deena Hill, the Fort
Bend Police Chief, the District Title IX Coordinator, and
District Transportation Department employees. (Id.
at 24). The District officials “expressed
‘regret' over the ‘incident' and
apologized.” (Id.). Director Hill
“committed to providing [the plaintiffs] with a
‘protocol' she was developing to address prevention
of ‘incidents' like the one occurring on the bus
the previous year.” (Id.).
The plaintiffs' amended petition alleged that:
While Hill ultimately provided a make-shift protocol to [the
plaintiffs], it did not address or even obliquely reference
procedures to prevent assaults on District transportation,
safety of the District's most vulnerable students-special
education students under her charge-or otherwise address
training (in conjunction with the District's essentially
non-existent Title IX program or policies) of District
personnel, including transportation employees and others, in
assisting special education students. . . .
The District, to date, lacks a coherent, cogent Title IX plan
to train personnel, inform students, and prevent sexual
harassment, and has done nothing to alter its operations
other than to finally explicitly require bus drivers to be
present on the bus while students are being loaded, and (ten
months after the incident) terminate Castillo.
(Id. at 24).
plaintiffs sued in state court, asserting claims under the
Texas Tort Claims Act; 42 U.S.C. §§ 1983 and 1985;
the Americans with Disabilities Act; Title IX; and for
negligent supervision. (Docket Entry No. 1 at 1-2 at 24-27).
In addition to damages, the plaintiffs sought injunctive
relief ordering the District to:
a. [a]dopt an anti-sexual harassment education, training, and
implementation program that is provided by a third party; b.
[a]dopt policies, procedures, and practices commensurate with
the “Dear Colleague Letter” dated 26, 2010, from
the United States Department of Education Office for Civil
Rights to include but not be limited to:
(1) the provision of school assemblies and instruction on
sexual harassment, including, but not limited to instruction
and training regarding special education students;
(2) addressing sexual harassment based upon disability and
gender and common stereotypes that accompany those subjects
in classroom intervention settings;
(3) conducting a sexual harassment assessment at each campus,
District activity center, and District department office;
(4) forming a sexual harassment prevention coordination team
at each school;
(5) including language specifically identifying sexual
harassment based upon disability and gender and common
stereotypes that accompany those subjects in the school rules
and student handbook;
(6) develop a strategy to prevent such sexual harassment in
District “hot spot[s”;]
(7) post signs in classrooms prohibiting such sexual
harassment and listing its consequences; and
(8) provide a place and manner of confidential reporting and
encouraging students to help classmates who are being
sexually harassed, and to report such sexual harassment; c.
[t]hat for the next three years, the District provide for a
school Title IX coordinator for each Campus, so as to ensure
that the program is enacted comprehensively; d. [t]hat the
District retain a neutral third party to complete a sexual
harassment assessment for each District campus, District
activity center and District office, and have that person or
entity report back to the President of the School Board and
Superintendent so the District may address any issues noted
in the assessment; e. [t]hat staff receive “Title
IX” training by a third party to include information
about gender and disability stereotypes; f. [t]hat the
District provide a marker in each school library where books
and other materials would be made available to students
dealing with sexual harassment, and related emotional
concerns and issues related to gender and disability along
with common stereotypes that accompany those subjects; g.
[t]hat an anti-sexual harassment month be recognized by [the]
District; h. [t]hat the District help facilitate the