United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
ROSENTHAL CHIEF UNITED STATES DISTRICT JUDGE.
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).
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.
reasons for the rulings are set out below.
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.,  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).
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.
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).
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!”
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).
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
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).
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.).
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).
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.
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.).
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.”
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
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 ¶
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
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