United States District Court, S.D. Texas, Houston Division
LORI WASHINGTON, ex rel. J.W. Plaintiffs,
KATY INDEPENDENT SCHOOL DISTRICT and ELVIN PALEY, Defendants.
MEMORANDUM AND OPINION
ROSENTHAL, CHIEF UNITED STATES DISTRICT JUDGE
public school officer in the Katy Independent School
District's police department tased and handcuffed J.W., a
17-year-old special-education student. His mother, Lori
Washington, sued the Katy Independent School District and
School Resource Officer Elvin Paley for violating of
J.W.'s federally protected rights. (Docket Entry Nos. 1,
12). After discovery, the Katy School District and Officer
Paley moved for summary judgment, Ms. Washington responded,
and the Katy School District and Officer Paley replied.
(Docket Entry Nos. 28, 29, 31).
on the motion, response, and reply; the summary judgment
record; the parties' arguments at the motion hearing; and
the applicable law, the court grants the defendants'
summary judgment motion for all claims except the § 1983
claim against Officer Paley. (Docket Entry No. 28). That
reasons for these rulings are detailed below.
November 2016, J.W. was enrolled at the Mayde Creek High
School in the Katy Independent School District. He was
diagnosed as emotionally disturbed and intellectually
disabled in ways that impacted “his daily functioning,
including his ability to communicate, control his emotions,
and access regular educational services without
accommodations.” (Docket Entry No. 12 at ¶¶
31-32). According to the police incident report, J.W. was
around 6'2” and weighed 250 pounds. (See
Docket Entry No. 28-4 at 3, 11).
November 30, 2016, J.W. was in a classroom playing a card
game with another student. They started bickering, which
developed into what J.W. described as “being bullied
and harassed.” (Docket Entry No. 29-2 at ¶ 6;
see Docket Entry No. 28-6 at 2; Docket Entry No. 12
at ¶ 34). According to an unsworn statement by Ashley
Lucas, a school staff member, J.W. cursed and yelled, then
punched the other student in the chest and knocked him out of
his chair. (Docket Entry No. 28-6 at 2). J.W. left the
classroom and went down the hallway, continuing to yell and
curse. (Id.). J.W.'s teacher emailed Assistant
Principal Denise Majewski, who was responsible for the
school's special-education students, to alert her of the
situation. (Docket Entry No. 28-8 at 2, 6).
took himself to a “chill out” classroom that he
used when he was upset. He found a student already there.
(Docket Entry No. 29-2 at ¶¶ 8-9). Coach Larry
Hamilton was standing outside that classroom talking with a
student and saw J.W. throw a desk across the room, shouting
that he “hated” the school. (Docket Entry No.
28-7). Hamilton saw J.W. kick the door, leave the occupied
“chill” classroom, and continue down the hallway
toward a door leading out of the school building.
(Id.). School officials blocked him from leaving the
building, and events escalated from there. (See
Docket Entry No. 28-8 at 2-3; Docket Entry No. 28-9 at 2).
description of this first stage of the events is different.
(Docket Entry No. 29-2). He did not mention in his
declaration throwing a desk or cursing. He stated that after
leaving the “chill-out” classroom, he walked
“towards a door leading to a breeze way between
buildings on the campus, ” where he was stopped by a
staff member who “loosely block[ed] the doors.”
(Id. at ¶¶ 9-11). A female Katy
Independent School District police officer arrived soon
after. (Id. at ¶ 11). J.W. stated that he told
the staff member blocking the doors that keeping him inside
was just making him more upset. He asked to leave so that he
could “cool down.” (Id. at ¶¶
13, 14). Minutes later, he “calmly walk[ed] toward the
door nearest [him] and attempt[ed] to go outside, ” not
touching anyone. (Id. at ¶ 16).
Principal Majewski learned of the situation when J.W. left
the “chill out room” and was in the hallway.
(Docket Entry No. 28-8 at 2). Officer Elvin Paley, a school
resource officer, stated in his declaration that Assistant
Principal Majewski radioed for assistance to come help keep
J.W. inside the school building. (Docket Entry No. 28-1 at
¶ 3). When Assistant Principal Majewski arrived at the
scene, a school security guard, John Oglesby, and Coach
Hamilton were trying to talk J.W. out of leaving the
building. Security guard Oglesby was blocking the door.
(Docket Entry No. 28-8 at 2; see Docket Entry No.
28-9 at 2). Assistant Principal Majewski stated in her
declaration that J.W. was “direct[ing] profanity toward
the staff, ” and that she was concerned about J.W.
leaving because the staff “would lose all control over
him, and he might get injured.” (Docket Entry No. 28-8
Paley's body camera recorded J.W.'s interactions with
the officers and school staff after that point. The recording
shows J.W. pacing in front of the door leading outside the
school building and complaining to the school staff member
blocking the door that he wants to leave so he could walk
home and calm down. He is not yelling at the staff members,
but the video recording shows him looking agitated and
occasionally raising his voice. The recording then shows J.W.
starting to push the door open. (Docket Entry No. 28-10 at
12:45:54). The staff member pushes back on the door to keep
J.W. inside, but it does not appear that J.W. pushes the
staff member, as the Katy School District contends. Within
about five seconds of J.W. pushing on the door, Officer Paley
moves toward J.W. and the staff member. Officer Paley's
body camera then becomes dark as he pushes up against
J.W.'s body. Both Officer Paley and the staff member tell
J.W. to “calm down” several times. A male voice
threatens J.W. with tasing. About 20 seconds later, the male
voice says, “You are not going to get through this
door, just relax.” (Id. at 12:46:05,
12:46:26). J.W. then begins screaming.
video becomes clear again as Officer Paley moves away from
J.W. The recording shows two individuals holding J.W.
Approximately 10 seconds after Officer Paley tells J.W. to
relax, Officer Paley tells the individuals holding J.W. to
“let him go, ” and fires the taser. (Id.
at 12:46:37). J.W. immediately screams and falls to his
knees. About 5 seconds later, the video recording shows
Officer Paley beginning to “drive stun” J.W. near
his bottom right torso, and then on J.W.'s upper back.
(Id. at 12:46:41). “Drive stun” means to
hold the taser against the body without deploying the prongs.
J.W., still on his knees, then falls to the ground
completely. The taser is used on J.W. for approximately 15
seconds. (Id. at 12:46:56). This use of the taser on
J.W.'s upper back continues after J.W. is lying face down
on the ground and not struggling.
Officer Paley stops tasing J.W., Officer Angela Molina,
another school resource officer, places handcuffs on
J.W.'s wrists, behind his back. (Id. at
12:47:11). Less than a minute later, while J.W. lies panting
on the ground, Officer Paley points the taser at J.W.'s
head, yelling, “I did not want to tase you, but you do
not run shit around here, you understand?”
(Id. at 12:47:50).
to Officer Paley, he used the taser the second time to drive
stun J.W. because the first time did not have enough effect.
This second use of the taser brought J.W. to a prone position
on the floor with his hands under his chest. (Docket Entry
No. 28-1 at ¶ 7).
stated that he began to scream and cry as Officer Paley tased
him, and that Officer Paley kept tasing him
“approximately six to eight times” even after he
was on the ground. (Docket Entry No. 29-2 at ¶¶ 24,
26). According to J.W., when paramedics arrived, they had to
remove a taser prong “embedded . . . near [his] right
rib cage.” (Id. at ¶ 47).
thought he was under arrest. He urinated and defecated on
himself after being tased. (Id. at ¶¶ 29,
34). J.W. stated that as he was being handcuffed, he began
having difficulty breathing and, even after being moved to
his side, he felt like he was going to die. (Id. at
¶¶ 36, 37). It was only when he was allowed to sit
upright that he was able to “take a big gulp of
air.” (Id. at ¶ 38).
Paley stated that he called dispatch and asked for emergency
medical services. (Docket Entry No. 28-1 at ¶ 9).
Officer Paley also told security guard Oglesby to get the
school nurse. (Id. at ¶ 8; Docket Entry No.
28-8 at 3, ¶ 5). Officer Paley's body camera video
recording shows school nurse Shirley Willett treating J.W.
The recording also shows the school officers and staff
responding to J.W.'s reports of difficulty breathing.
(Docket Entry No. 28-10; see also Docket Entry No.
28-1 at ¶ 9; Docket Entry No. 28-8 at 3).
arrived around 1:00 p.m., about 15 minutes after the tasing.
(Docket Entry No. 28-4 at 4, 14, 23; Docket Entry No. 28-1 at
¶ 10; Docket Entry No. 28-8 at ¶ 5). J.W. was taken
back to the school's security office around 1:30 p.m.
(Docket Entry No. 28-1 at ¶ 10; Docket Entry No. 28-8 at
3). According to Vice-Principal Majewski, she tried to
contact Ms. Washington shortly after that. (Docket Entry No.
28-8 at 3). J.W. stated that the school did not contact his
mother until “the female paramedic inform[ed] the
school officials that they should have contacted [his] mother
immediately.” (Docket Entry No. 29-2 at ¶ 46;
id. at ¶¶ 43, 49). Vice-Principal Majewski
stated that when she called Ms. Washington's phone, it
would not accept new messages, J.W.'s emergency-contact
number did not work, and emails to Ms. Washington went
unanswered. (Docket Entry No. 28-8 at 3). At 2:00 p.m., Ms.
Washington called Vice-Principal Majewski and said that she
was on her way to the school. (Id.).
Ms. Washington arrived, Vice-Principal Majewski received a
call from the Westlake Emergency Medical Services explaining
that another ambulance was going to the school, at Ms.
Washington's request. (Docket Entry No. 28-8 at 3). Ms.
Washington had contacted EMS because Vice-Principal Majewski
had not informed her that another ambulance had already been
to the school and EMS had assessed J.W. (Docket Entry No. 12
at ¶¶ 86-87; Docket Entry No. 29-1 at ¶¶
24-25). The second ambulance left the campus to take J.W. to
the hospital at 3:05 p.m. (Docket Entry No. 28-8 at 3).
Neither party describes the treatment J.W. received at the
Washington alleges that J.W. was not a danger to himself or
others when he was tased. She alleges that local school board
policies allowed for detention only in limited circumstances
and required no more than a disciplinary-infraction
citation-not physical detention-for students who leave campus
without permission. (Docket Entry No. 12 at ¶¶ 4,
30). She alleges that the Katy School District staff who
worked with J.W. were aware that he was being bullied, and
that they understood that “walking it off” was
the best way for J.W. to cope with stressful situations.
(Id. at ¶¶ 35-37).
missed school for several months after the tasing. Ms.
Washington explained that she kept J.W. home “due to
fear for his safety while at school, ” and that
J.W.'s “private medical providers supported [that]
decision.” (Docket Entry No. 29-1 at ¶ 34). She
stated that “J.W. suffer[ed] from intense anxiety and
PTSD” because of the tasing, “has lost his trust
for police officers, ” and was “traumatized by
the experience, ” asserting that the video recording
showed that “the taser touched J.W. seven times.”
(Id. at ¶¶ 35, 43, 45). She stated that
school and Katy School District staff would not talk to her
about the incident, but she was able to watch a video
recording provided by the superintendent's office.
(Id. at ¶ 35).
Washington and Vice-Principal Majewski agree that the staff
and Ms. Washington were unable to schedule a meeting until
April 2017. (Id. at ¶ 36; Docket Entry No. 28-8
at 3-4). Ms. Washington stated that the staff abruptly
cancelled that meeting when she arrived with an attorney.
(Docket Entry No. 29-1 at ¶ 37). According to
Vice-Principal Majewski, she and other staff then tried to
contact Ms. Washington, but Ms. Washington did not reliably
or promptly respond. (Docket Entry No. 28-8 at 3-4).
Majewski stated that the scheduled April 2017 meeting was an
Admission, Review, and Dismissal meeting, convened primarily
to discuss J.W.'s absences, not to discuss the tasing.
(Id. at 4). She explained that the school
rescheduled the April meeting after deciding that the
school's attorney should attend if Ms. Washington was
going to have counsel present. (Id.). The
rescheduled meeting occurred on May 22, 2017, approximately
six months after the tasing. (Id.). The amended
complaint alleged that the school staff “never
scheduled the promised meeting to discuss the incident and
continued to refuse Ms. Washington's requests to do
so.” (Docket Entry No. 12 at ¶ 101).
Washington sues Officer Paley under §§ 1983 and
1988 for discriminating against J.W. in violation of the
Equal Protection Clause of the Fourteenth Amendment; for
violating J.W.'s substantive and procedural due process
rights to dignity, privacy, and bodily integrity; for using
excessive force against J.W.; and for depriving J.W. of his
right to an education under Article I of the Texas
Constitution and the Fourteenth Amendment of the U.S.
Constitution. (Docket Entry No. 12 at ¶¶ 124-52).
Ms. Washington alleges that the Katy School District is
liable for unconstitutional policies, procedures, practices,
and customs, including failing to train and supervise staff,
in violation of the Fourteenth Amendment; violating §
504 of the Rehabilitation Act of 1973; and failing to provide
reasonable accommodations under Title II of the ADA.
(Id. at ¶¶ 119-23, 153-72). Ms. Washington
also alleges that the Katy School District is liable for
Officer Paley's and other Katy School District
employees' actions under a ratification theory.
(Id. at ¶¶ 173-76).
claim is analyzed below in light of the record and the
The Summary Judgment Standard
judgment is required when ‘the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.'”
Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015)
(quoting Fed.R.Civ.P. 56(a)). “A genuine dispute of
material fact exists when the ‘evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.'” Nola Spice Designs, LLC v. Haydel
Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015)
(quoting Anderson v. Liberty Lobby, 477 U.S. 242,
248 (1986)). “The moving party ‘bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.'” Id.
(quoting EEOC v. LHC Grp., Inc., 773 F.3d 688, 694
(5th Cir. 2014)); see also Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986).
the non-movant bears the burden of proof at trial, the movant
may merely point to the absence of evidence and thereby shift
to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material
fact warranting trial.” Id. (quotation marks
omitted); see also Celotex, 477 U.S. at 325.
Although the party moving for summary judgment must
demonstrate the absence of a genuine issue of material fact,
it does not need to negate the elements of the
nonmovant's case. Boudreaux v. Swift Transp.
Co., 402 F.3d 536, 540 (5th Cir. 2005). “A fact is
‘material' if its resolution in favor of one party
might affect the outcome of the lawsuit under governing
law.” Sossamon v. Lone Star State of Tex., 560
F.3d 316, 326 (5th Cir. 2009) (quotation omitted). “If
the moving party fails to meet [its] initial burden, the
motion [for summary judgment] must be denied, regardless of
the nonmovant's response.” United States v.
$92, 203.00 in U.S. Currency, 537 F.3d 504, 507 (5th
Cir. 2008) (quoting Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
the moving party [meets her or his initial burden], the
non-moving party must ‘go beyond the pleadings and by
her [or his] 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.'” Nola Spice, 783 F.3d at 536
(quoting LHC Grp., 773 F.3d at 694). The nonmovant
must identify specific evidence in the record and articulate
how that evidence supports that party's claim.
Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir.
2007). “This burden will not be satisfied by
‘some metaphysical doubt as to the material facts, by
conclusory allegations, by unsubstantiated assertions, or by
only a scintilla of evidence.'” Boudreaux,
402 F.3d at 540 (quoting Little, 37 F.3d at 1075).
In deciding a summary judgment motion, the court draws all
reasonable inferences in the light most favorable to the
nonmoving party. Connors v. Graves, 538 F.3d 373,
376 (5th Cir. 2008); see also Nola Spice, 783 F.3d
The Summary Judgment Evidence
defendants submitted the following summary judgment evidence:
• Officer Paley's declaration;
• Katy Independent School District Police Department
Captain Kevin Tabor's declaration;
• Officer Paley's training and education record;
• Katy Independent School District Police
Department's taser training materials and slideshow;
• The police report for J.W.'s tasing;
• Katy Independent School District Police
Department's use of force and investigation into Officer
Paley's use of the taser on J.W.;
• Katy Independent School District Police
Department's report on Officer Paley's use of the
taser on another student in 2017;
• Katy Independent School District Police
Department's policies on the use of force and the use of
• Ashley Lucas's statement;
• Coach Larry Hamilton's sworn ...