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Hernandez v. Fort Bend Isd

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

May 1, 2019

GREG HERNANDEZ, and DEANNE HERNANDEZ, Plaintiffs,
v.
FORT BEND ISD et al., Defendants.

          MEMORANDUM AND OPINION

          Lee H. Rosenthal Chief United States District Judge.

         This 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 claims.

         After a 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 detail below.

         I. The Background

         The facts are drawn from the plaintiffs' complaint, with the well-pleaded allegations accepted as true for this motion.

         In 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 happened next.

         J.H. 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) resist.” (Id.).

         Gloria 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. (Id.).

         The bus 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.

         Castillo 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. (Id.).

         Castillo 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.).

         Officer 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. (Id.).

         Officer 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).

         The 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.).

         By 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.).

         In 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).

         In 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).

         The 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 ...

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