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Hernandez v. Fort Bend ISD

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

September 13, 2019

GREG HERNANDEZ, and DEANNE HERNANDEZ, Plaintiffs,
v.
FORT BEND ISD, and MARY TRAYNOR, Defendants.

          MEMORANDUM AND ORDER

          LEE H. ROSENTHAL CHIEF UNITED STATES DISTRICT JUDGE.

         Greg and Deanne Hernandez, individually and on behalf of their daughter, B.H., have sued the Fort Bend Independent School District and Mary Traylor, the grandmother and guardian of another student, C.B. B.H. and C.B. were special-needs middle-school students at the Fort Bend Independent School District. C.B. sexually assaulted B.H. after they both boarded a school bus. The adult bus monitor, a District employee, was inattentive on her cellphone until another student alerted her. This court granted the defendants' motion to dismiss the first amended complaint, without prejudice and with leave to amend. (Docket Entry No. 21). The second amended complaint brings claims under the Texas Tort Claims Act, the Americans with Disabilities Act, and Title IX against the District, and a negligent supervision claim against Traylor. (Docket Entry No. 26). Both defendants separately moved to dismiss, the plaintiffs responded, and both defendants replied. (Docket Entry Nos. 29, 33, 32, 38, 34, 39). The plaintiffs then moved for leave to supplement their second amended complaint, which both defendants oppose. (Docket Entry Nos. 40, 42, 43).

         Based on the pleadings; the motions and responses; the law; and the arguments of counsel, the court grants the District's and Traylor's motions to dismiss, with prejudice and without leave to amend. The plaintiffs have already amended twice, and given the allegations in the amended complaint, it is clear that further amendment would be futile. The plaintiffs' motion for leave to supplement their complaint is denied because the proposed supplement does not add allegations that would lead to a different result.

         The reasons for the rulings are set out below.

         I. Background

         The facts are drawn from the plaintiffs' second amended complaint, with the well-pleaded allegations accepted as true for the purpose of this motion. In January 2017, the plaintiffs' daughter, B.H., [1] was a student at Fort Bend Independent School District's Bains Middle School. (Docket Entry No. 26 at ¶ 4.1). B.H. has an intellectual disability that requires her to receive special care. (Id.). The District creates an Individual Education Plan to manage each intellectually disabled student's education and care. (Id. at ¶ 4.2).

         On January 23, a District employee escorted B.H. from her classroom to a “special education bus, ” as her Plan required, and left her outside the bus. (Id. at ¶ 4.9). A bus monitor was on the bus. (Id. at ¶ 4.13). C.B., an intellectually disabled male student, was similarly escorted to and left at the bus. (Id. at ¶ 4.10). There are no allegations about the children's ages or their levels of disability. A security camera on the bus captured what happened next.

         B.H. boarded the bus and sat in the front row, near the window, and C.B. followed and sat next to her. (Id.). “Within seconds, ” C.B. pulled B.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. at ¶¶ 4.10-4.11). B.H. looked around “for help and appear[ed] to (ineffectually) resist.” (Id. at ¶ 4.11).

         The bus driver, Henry Henderson, was not on the bus. (Id. at ¶ 4.12). Gloria Castillo, the District employee charged with escorting the students to their bus seats, securing their seatbelts, and monitoring their safety, was on her cellphone in the back of the bus. (Id. at ¶ 4.13). The female student continued “her outcry, ” looked around, finally got Castillo's attention, pointed toward B.H. and C.B., and said: “This!” (Id.).

         Castillo grabbed C.B., asking “[w]hat [were] you doing?” (Id. at ¶ 4.15). B.H. pulled up her pants. (Id.). Castillo told the male student to “get up, get up, ” but he did not do so. (Id. at ¶ 4.16). Castillo told C.B. to move to a seat behind the front row, forcing her to “crawl across” C.B. (Id. at ¶ 4.16).

         Henderson boarded the bus and asked Castillo whether they had “got everybody.” (Id.). Henderson and Castillo began talking, “presumably” about what had happened. (Id.). After their conversation, Castillo moved C.B. to the back of the bus and returned B.H. to her front-row seat. (Id.). Henderson then began the bus route, dropping students off at their designated locations.

         Castillo and Henderson did not immediately report the incident to District officials, law enforcement, or the plaintiffs. (Id. at ¶ 4.19). Henderson dropped B.H. off at her home “with a wave goodbye.” (Id. at ¶ 4.20). When C.B. was dropped at his home, Castillo told his grandmother and guardian, Mary Traylor, what had happened. (Id. at ¶ 4.21).

         Castillo and Henderson reported the incident when they “returned to the District headquarters” later that day. (Id.). A District employee 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.). No. one from “the District contacted [Child Protective Services] immediately after” the incident. (Id.).

         Officer Cruz and Nick contacted Traylor and B.H.'s parents at “6:50 p.m., nearly two and one-half hours after the attack, ” and advised the parents to take B.H. to Ben Taub Hospital to meet an investigator. (Id. at ¶ 4.23). They were later contacted by Anna Herman, a District police investigator, who advised them to take B.H. to Texas Children's Hospital for an examination. (Id. at ¶ 4.24).

         Officer Cruz reviewed and retained the footage from the bus security camera, 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.” (Id.). At 8:35 p.m., Officer Cruz reported the incident to Child Protective Services. (Id. at ¶ 4.25). Child Protective Services investigator Tony Phan was assigned to investigate. (Id.). District police investigator Herman “arranged for an interview and forensic examination” of B.H. on January 30. (Id. at ¶ 4.26). She told B.H.'s parents 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. (Id. at ¶ 4.27). They contacted Child Protective Services investigator Phan, who told them that that the agency had “ruled out pursuing the case.” (Id.). He also told them he thought “C.B. was a danger to other females in his residence” and indicated “the possibility of a prior report of sexual misconduct or other inappropriate behavior by C.B.” (Id.). C.B. was removed from the District school and placed in “state custody in a ‘state school.'” (Id.).

         The District police closed its case in early March 2017. (Id. at ¶ 4.28). 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.). In November, McCollum told the plaintiffs that the District Attorney would not pursue the case for lack of proof that C.B. “acted knowingly.” (Id.).

         In November, the District's legal office and human resources offices became aware of the incident and saw the incident footage. (Id. at ¶ 4.30). The District fired Castillo “sometime in late November 2017.” (Id. at ¶ 4.31). In December, Charles Dupre, the District superintendent, called the plaintiffs and told them that they could watch the incident footage. (Id. at ¶ 4.32). He warned that the footage contained “very disturbing things”; that he “felt like he owe[d] 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 C.B. was no longer in a District school, and that the District had fired Castillo. (Id.).

         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 some of the District's Transportation Department employees. (Id. at ¶ 4.33). 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. at ¶ 4.34).

         The plaintiffs allege 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, the 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 nonexistent 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 (as required by federal offices) 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 ...

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