Damon Emery - Scott Hurbough -Federal Lawsuit - Hurst Euless Bedford Independent School District

No. 15-10098

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________________________

C.C., et al,

Plaintiffs, Appellants

v.

THE HURST-EULESS BEDFORD INDEPENDENT SCHOOL DISTRICT,

et al.,

Defendants, Appellees

______________________________________

Appeal from the United States District Court

Northern District of Texas

Fort Worth Division

4:14-cv-0046-a

_____________________________________________

APPELLANTS BRIEF

_____________________________________________

Respectfully submitted,

/s/ Martin J. Cirkiel

Martin J. Cirkiel

Texas Bar No. 00783829

Cirkiel & Associates, P.C.

1901 E. Palm Valley Blvd.

Round Rock, Texas 78664

(512) 244-6658 [Telephone]

(512) 244-6014 [Facsimile]

[email protected] [Email]

LEAD COUNSEL FOR APPELLANTS

Case: 15-10098 Document: 00513109422 Page: 1 Date Filed: 07/08/2015
mailto:[email protected]

ii

CERTIFICATE OF INTERESTED PERSONS

In compliance with Fed. R. App. P. 28.2.1 and Fifth Circuit Local Rule

28.2.1, Counsel notes the number and styling of this case, is as follows:

C.C., et al, Plaintiffs, Appellants v. THE HURST-EULESS BEDFORD

INDEPENDENT SCHOOL DISTRICT, et al, Defendants, Appellees, No.

15-10098, IN THE UNITED STATES COURT OF APPEALS, FOR THE

FIFTH CIRCUIT.

Further, and also in compliance with these rules, the undersigned counsel for

Plaintiffs-Appellants certifies that they know of no other persons, associations of

persons, firms, partnerships or corporations that have an interest in the outcome of

this particular case save for the parties noted in the style of this case and their

counsel of record. These representations are made in order that the judges of this

court may evaluate possible disqualification or recusal.

/s/ - Martin J. Cirkiel

MARTIN J. CIRKIEL

Attorneys for Plaintiffs-Appellants


iii

STATEMENT REGARDING ORAL ARGUMENT

Charles Cripps and Kristie Cripps, individually and on behalf of her son

C.C., request Oral Argument and reasonably believes the decisional process would

be significantly aided by oral argument, as otherwise contemplated by Fed R. App.

P. 34(a)(1) and Fifth Circuit Local Rule 28.2.3.

Respectfully submitted,

/s/ - Martin J. Cirkiel

MARTIN J. CIRKIEL

Attorneys for Appellants-Plaintiffs


iv

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ...................................................... ii

STATEMENT REGARDING ORAL ARGUMENT ............................................. iii

TABLE OF CONTENTS .........................................................................................iv

TABLE OF AUTHORITIES .................................................................................... v

JURISDICTIONAL STATEMENT ......................................................................... 1

I. STATEMENT OF THE ISSUES ................................................................... 1

II. STATEMENT OF THE CASE ...................................................................... 2

III. SUMMARY OF THE ARGUMENT ........................................................... 19

IV. STANDARD OF REVIEW .......................................................................... 22

V. ARGUMENT AND AUTHORITIES .......................................................... 25

VI. CONCLUSION AND PRAYER .................................................................. 48

VII. CERTIFICATE OF FILING AND SERVICE ............................................. 50

VIII. CERTIFICATE OF COMPLIANCE ........................................................... 52


v

TABLE OF AUTHORITIES

Federal Cases

Supreme Court Cases

Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009) ...........................................................

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ...............................................

Conley v. Gibson, 355 U.S. 41, 45 46, (1957) ............................................................

County of Sacramento v. Lewis, 523 U.S. 833, 845-846 (1998)

Goss v. Lopez, 419 U.S. 565 (1975)..

Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507

U.S. 163, 164 (1993) ....................................................................................................

Malinski v. New York, 324 U.S. 401, 416-417 (1945)...

Monell v. Department of Social Services, 436 U.S. 658 (1978).

Papasan v. Allain, 478 U.S. 265, 286 (1986)...............................................................

Roger Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133; 120 S. Ct.

2097, 147 L.Ed 2d 105 (2000). ...................................................................................

St. Marys Honor Center v. Hicks, 509 U.S. 502, 524; 125 L. Ed. 2d 407; 113 S.

Ct. 2742 (1993) ............................................................................................................

Tchereepnin v. Knight, 389 U.S. 332, 336 (1967) .....................................................

Tinkers v. Des Moines School District, 393 U.S. 503 (1968)

Village of Willowbrook v. Olech., 528 U.S. 562, 120 S. Ct. 1073, 145 L. Ed. 2d

1060 (2000).


vi

Courts Of Appeal

Addington v. Farmer's Elevator Mutual Insurance Co., 650 F.2d 663, 666 (5th Cir.

1981)..

Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996) ......................................................

Bell v. Ohio State University, 351 F.3d 240, 251 (6th Cir. 2003)..

Chitimacha Tribe of La. v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1162 (5th Cir.

1982)..

City Natl Bank of Fort Smith, Ark. v. Vanderboom, 422 F2d 221 (8th Cir. 1970)..

D.A. ex rel. Latasha A. v. Houston Independent School District, 629 F.3d 450, 455

(5th Cir. 2010) ..............................................................................................................

Doe v. Taylor, 15 F3d 443 (5th Cir. 1994).

Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)...

Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 598 (5th Cir. 1981)...

Ellenberg v. N.M. Military Inst., 572 F.3d 815, 819-23 (10th Cir. 2009)..

Estate of Lance v. Lewisville Independent School District, 743 F.3d 982, 990 (5th

Cir. 2014)..

Farfaras v. Citizens Bank & Trust, 433 F3d 558, 568 (7th Cir. 2006)

Folkerts v. City of Waverly, 707 F.3d 975, 980 (8th Cir. 2013) .................................

Genl Star Indemnity Co. v. Vesta Fire Ins. Corp., 173 F.3d 946 (5th Cir. 1999) ......

Greer v. Richardson Indep. Sch. Dist., 472 F. App'x 287, 292 (5th Cir. 2012).


vii

Harris ex rel. Harris v. Pontotoc County School District, 635 F3d 685, 690 (5th

Cir.

2011)..

Harrison v. Rubin, 174 F3d 249, 253 (D.C. Cir. 1999)..

In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)

Jefferson v. Yseleta Indep. Sch. Dist., 817 F2d 303, 305 (5th

Cir. 1987)..

Lillbask ex rel. Mauclaire v. State of Conn. Dep't of Educ., 397 F.3d 77, 82 (2d

Cir.2005).

Lowrey v. Texas A&M University System, 117 F.3d 242, 247 (5th Cir. 1997) .........

Lyn-Lea Travel Corp. v. American Airlines, Inc., 283 F.3d 282, 286 (5th Cir.)

Laber v. Harvey, 438 F3d 404, 426-427 (4th Cir. 2006).

Marvin H. v. Austin Independent School District, 714 F.2d 1348, 135657 (5th

Cir.1983)

Martinson v. Regents of University Of Michigan, 2014 WL 134476 at *9 (6th

Cir.,

April 4, 2014).

Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671-72 (5th Cir. 2004).

Monahan v. State of Nebraska, 687 F2d 1164 (8th

Cir. 1982) .....................................

Morris v. Dearborne, 181 F3d 657 (5th

Cir. 1999).

M.P. v. Indep. Sch. Dist. 721, 326 F.3d 975, 981-982 (8th Cir. 2003) .......................

M.P. ex rel. K. v. Indep. Sch. Dist. No. 721, 439 F.3d 865, 868 (8th

Cir. 2006) .........

Pace v. Bogalusa City School Board, 403 F.3d 272, 296-297 (5th Cir. 2005)


viii

Quintanilla v. Texas Television, Inc., 139 F.3d 494, 499 (5th Cir. 1998).

S.S., A Minor b/n/f Parents of S.S. v. Eastern Kentucky University, 532 F.3d 445

(6th Cir. 2008) ..............................................................................................................

Smoot v. Chicago, R. I. & P., Co., 378 F2d 879 (10th Cir. 1967) ...............................

Southern Christian Leadership Conference v. Supreme Court of the State of

Louisiana, 252 F.3d 781, 786 (5th Cir.), cert. denied, 534 U.S. 995 (2001) ...............

Stewart v. Waco Independent School District, No. 11-51067, 2013 U.S. App.

LEXIS 11102 (5th Cir. 2013[unpublished]) .................................................................

Summit Office Park v. United States Steel Corp., 639 F.2d 1278, 1284 (5th Cir.

1981)..

District Courts

Davis v. Dallas County, 541 F. Supp. 2d 844, 848 (N.D. Tex. 2008)..

Furstenfeld v. Rogers, No. 03-02 CV 0357 L, 2002 U.S. Dist. LEXIS 11823, at *5

(N.D. Tex. Jul. 1, 2002) ...............................................................................................

McBroom v. Payne, Cause No. 1:06-cv-1222-LG-JMR (S.D. Miss., October 6,

2010)...

T.K. v. New York City Department of Education, 779 F.Supp.2d 289 (E.D.N.Y,

2011) ............................................................................................................................

Whitehead v. School Board of Hillsborough County, Florida, 918 F.Supp. 1515

(M.D. Fla. 1996) ..........................................................................................................


ix

State Cases

Deep East Texas Regional Mental Health & Mental Retardation Services v.

Kinnear, 550 S.W.2d 550, 563 (Tex. App. Beaumont, 1994) ..................................

Federal Statutes

20 U.S.C.1400 et seq ..................................................................................................

28 U.S.C. 1291 ...........................................................................................................

29 U.S.C.A. 794 et seq ..............................................................................................

42 U.S.C. 1983 ...........................................................................................................

42 U.S.C. 1985 ..........................................................................................................

Federal Regulations

FED. R. APP. P. 4 ........................................................................................................

FED R. APP. P. 34(a)(2) C) .........................................................................................

FED. R. CIV. P. 12(b)(6) .............................................................................................

State Statutes & Regulations

19 T.A.C. 89.1050. .....................................................................................................

Tex. Code of Crim. Procedure 15.27(a)..

Tex. Educ. Code 37.006(a)(2)(A)...

Texas Penal Code 22.01(a).

Texas Penal Code 46.01(6).


I. STATEMENT OF JURISDICTION

1. This is an appeal by the Plaintiff in a civil case. The District Court

had jurisdiction over Plaintiffs claims pursuant to 14th

Amendment to the United

States Constitution as contemplated by 42 U.S.C. 1983 and as to Section 504 of

the Rehabilitation Act of 1973, 29 U.S.C. 794a (Rehabilitation Act). It granted

the School Districts Motion to Dismiss on all claims against all parties.

2. C.C. filed his Notice of Appeal1 in accordance with Rule 4(b) of the

Federal Rules of Appellate Procedure. This Court of Appeals has jurisdiction to

hear this appeal pursuant to 28 U.S.C. 1291 and Federal Rule of Appellate

Procedure 4.

STATEMENT OF THE ISSUES

3. Did the District Court abuse its discretion by not permitting

Appellants the opportunity to file an amended complaint, as they had requested?

4. Did the District Court err when granting the Motion to Dismiss in

regard to C.C.s claims the School District violated Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. 794, by failing to provide consider the

allegations he was a victim of retaliation?


1. Pursuant to Local Rule 28.2.2, the record from the District Court of the United States has been

filed with this Court of Appeals for the Fifth Circuit and will be cited as ROA. at p. __

accordingly.


2

regard to C.C.s claims that his procedural due process rights were violated by

failing to have a process to correct false allegations of criminal activity?

6. Did the District Court err when granting the Motion to Dismiss when

finding he could not support a substantive due process claim?


regard to C.C.s claim his rights pursuant to the Equal Protection Clause were

violated?

8. Did the District Court err when granting the Motion to Dismiss

regarding C.C.s claims School District personnel grossly deviated from

professional standards of care relative to Section 504 of the Rehabilitation Act of

1973, 29 U.S.C. 794.

9. Did the District Court err when granting the Motion to Dismiss

regarding C.C.s claims the School District failed to provide him a non-hostile

educational environment, relative to Section 504 of the Rehabilitation Act of 1973,

29 U.S.C. 794.

STATEMENT OF THE CASE

A. Procedural Resume

10. During the 2013 school year C.C. was a student with a disability and

received services pursuant to the Individuals with Disabilities Education Act


3

(IDEA), 20 U.S.C. 1401 et seq. at the School District. He believed his rights

under IDEA, as well as his statutory rights pursuant to Section 504 of the

Rehabilitation Act of 1973 and also his rights under the United States Constitution

pursuant to the Due Process and Equal Protection Clauses of the 14th

Amendment

were likewise violated by the School District, including the Middle School

Principal, Scott Hurbough and the Vice-Principal, Damon Emery [ROA. 150, 9;

171-174].

11. On January 13, 2014, and in order to satisfy the administrative

exhaustion requirements in the operative law, 20 U.S.C. 1415(l)2, C.C. filed what

is termed a Request for a Due Process Hearing with the Texas Education Agency

(TEA) [ROA. 150, 11; 175]. The Hearing Officer ruled in favor of the School

District on all grounds [ROA. 175, 143-149]. On or about August 11, 2014, C.C.

filed his Complaint with Jury Demand addressing both the constitutional and

statutory claims noted above, as well as the appeal of the Hearing Officers

Decision [ROA. 19]. In that document, and among other things, C.C. spoke about

the finding by the Office of Civil Rights that he had satisfied criteria for a prima

facie case that, among other things, he was a victim of retaliation [ROA. 34-35,

2. The appeal of the Special Education Hearing Officer [ROA. 175-176] decision was severed

from this case and is not before the 5th

Circuit for review, through the underlying facts in that

cause are relevant here [ROA. 657].


4

59]. The School District Appellants, Hurbough [ROA. 124, 127], Emery [ROA.

102, 105] and the District itself [ROA. 78, 81] soon filed their respective Motions

to Dismiss with the required Brief.

12. On October 19, 2014 C.C. filed his First Amended Complaint [ROA.

146]. There, he reiterated that the School Board had given authority to Principal

Hurbough and Vice Principal Emery, address disciplinary issues for the Board,

including holding a Multidisciplinary Disciplinary Reviewing Hearing for students

with disabilities, like C.C. [ROA. 154-155, 26-31]. There, C.C. further alleged

and clarified claims that the HEB School District violated his rights pursuant to

Section 504 of the Rehabilitation Act by creating a hostile educational

environment as to him [ROA. 174-175] by professional staff grossly deviating

from operative standards of care in regard to the educational program provided. It

reiterated language that he was victim of retaliation [ROA. 165-166, 82-85] and

in further support, added some language in support of this proposition in the

factual resume section (ROA. 156, 38, 40.]

13. C.C. also claimed violations of his constitutional rights, pursuant to

the Due Process Clause of the 14th

Amendment to the United States Constitution,

when having an investigation that was steered and directed to a finding that he

committed a felony (when he did not) and then by failing to have a process to


5

review the allegations when the School District learned no felony allegations were

not going to be prosecuted by the local Juvenile Justice Authority [ROA. 172,

119, 122]. He also claimed that School District personnel participated in a

conspiracy against him pursuant to 42 U.S.C. 1985 [ROA. 1743]. Last, that the

School District itself, and Hurbough and Emery, Individually, violated his rights

pursuant Equal Protection Clause of the 14th

Amendment, on a class of one theory

[ROA 173-174].

14. The School District Appellants, Hurbough [ROA. 303, 306], Emery

[ROA. 281, 284] and the District itself [ROA. 325, 328] on October 23, 2014 filed

their respective Motions to Dismiss with the required Brief.4 Of particular note

was the Districts response that:

.... In fact, Plaintiffs Complaint fails to tie any of the alleged action

of HEB ISD to C.C.s disability; to the contrary, Plaintiffs actually

plead that the District took the alleged action against C.C. in

3. C.C. abandons this conspiracy claim under Section 1985 but will argue below, that the

Appellees participated in a conspiracy that violated his rights pursuant to the Rehabilitation Act

of 1973 by (1) helping to create a hostile educational environment as to C.C. and (2) gross

deviations from professional standards of care for educators.

4. None of these Appellees, nor did the District Court, ever addressed C.C.s claim that he was

also a victim of disparate treatment [ROA. 173-174, 130]. Interestingly, the School District in

their response allege that C.C.s claims were not based upon whether or not he had a disability

but because he was a victim of retaliation [ROA. 348] yet the District Court failed to permit C.C.

to amend his complaint and otherwise would have permitted briefing on this particular issue.


6

retaliation for Plaintiffs advocacy ... [ROA. 348].

15. On November 20, C.C. attempted to file a Second Amended

Complaint [ROA. 374] which was opposed by Appellees. He also asked for an

extension of time in light of the filing of the second amended complaint [ROA.

415, 419, 423]. On November 24, 2014 the Court issued an order requiring C.C. to

respond to the various Motions to Dismiss. In addition the Court ordered that he

provide his (second) amended complaint with necessary marking to show any

additions and deletions from the previous pleading (the first amended complaint),

by December 2, 2014 [ROA. 434]. On that same day the administrative record

from the Texas Education Agency was filed [ROA. 439] and ordered sealed.

16. C.C. filed his Response as to Emery [ROA. 441], Hurbough [ROA.

468 and the School District [ROA. 495] on December 2, 2104, based solely upon

the First Amended Complaint. Among other things, he did include an argument

that he was a victim of discrimination based upon his parents advocacy, the

retaliation claim [ROA. 514-516, 55-60]. C.C. also filed the (now third) amended

complaint with necessary markings, as required by the Judge [ROA. 520, 561].

Among other things, it reiterated the worsening relationship between the parties

and the retaliatory actions taken [ROA. 525, 3; 527-528, 10; 534, 40, 42; 543,

84; 555-556, 155]. The School District [ROA. 609], Hurbough [ROA. 614] and


7

Emery [ROA. 605] soon filed their respective Reply Briefs to C.C.s Response.

The School District failed to respond to C.C.s retaliation claim, except to note it

was not in Plaintiffs live pleading, their First Amended Complaint [ROA. 610, p.

2, fn. 2].

17. The District Judge denied C.C.s request to amend his complaint

[ROA. 630] on December 11th

. C.C. asked it be reconsidered [ROA. 645, 650] and

that too was denied [ROA. 667]. Later on December 24th

, the TEA appeal was also

severed from this case, ordering C.C. to file a new Complaint on the severed

action [ROA. 657]. On January 8, 2015 the District Judge denied all of C.C.s

constitutional and statutory claims [ROA. 675, 690]. In a fifteen (15) page

document he wrote about one page on C.C.s due process claims [ROA. 682-683]

and in that section, solely discussed the students placement in an alternative

education program, which was not the argument that C.C. had written to in his

responses.5

18. In regard to C.C.s equal protection claim based upon a class-of-one,

he again wrote about one page on the topic. Here, he determined that C.C. could

not make his case because, none of the other infractions involved violations of

5. The Judge failed to address his other due process claims such as an investigatory process that

was predetermined and a system that had no remedy to undue a false allegation of felonious

activities.


8

another childs privacy rights as egregious as the making and publishing of

photographs of a child sitting on a toilet6 (even though the other infractions also

rose to potential felony adjudications) [ROA. 683-684]. The District Court next

expended about two and half (2 ) pages on C.C.s two claims pursuant to Section

504 [ROA. 686-688]. In regard to C.C.s claim that he was a victim of

discrimination based upon disability, the Judge also gave this claim short shrift,

noting that the (mis)treatment of C.C. was not based upon his disabilities.7

Further, any individual claims that C.C.s parents might have for reimbursement

were also denied.8 The Court wrote that any claims related to retaliation were not

properly presented in the First Amended Complaint [ROA. 686 at 4].9 In this

6. First , C.C. did not publish any of the pictures. Moreover, the issue is not that the Judge

believed the taking of pictures to be more or less egregious than any other acts that could

likewise be felonies, like, for instance, battering a student with a musical instrument or bringing

drugs and a knife to school, and those students being treated less harshly than C.C. for also

ostensibly committing felonies. Here the Court improperly weighed the evidence, a function

more properly left to a motion for summary judgment or afforded a jury.

7. C.C. will further address this error below but for the moment will point out the allegations in

his complaint (which included his status as a student receiving services pursuant to IDEA) that

there was a gross mismanagement of the educational plan provided to him or there was a gross

deviation from professional standards of care in the manner provided, very specifically

contemplates his disabling conditions, which provided such a plan in the first instance. The

School Districts position was that they did not show any hostility as to C.C. based upon his

status as a student with a disability, [ROA. 348] which of course supports C.C.s position, argued

in the alternative, that his constitutional rights were thereby violated.

8. These claims were really a vestige of the due process claim and were not really relevant to civil

rights claims or this appeal.

9. The Judge also addressed claims of civil conspiracy [ROA. 685]. C.C. has abandoned those

contentions.


9

section the Judge relied upon D.A. ex rel. Latasha A. v. Houston Independent

School District, 629 F.3d 450, 455 (5th Cir. 2010) and Estate of Lance v.

Lewisville Independent School District, 743 F.3d 982, 990 (5th

Cir. 2014).10

C.C.

appealed in a timely manner [ROA. 690].11

B. Factual Resume12

19. C.C. was born on April 6, 2000, and during most of the relevant

period in this cause was 12 years old [ROA. 146, fn. #1] and a student with a

disability, as contemplated by the Individuals with Disabilities Educational Act

(IDEA), 20 U.S.C. 1400 et seq. and Section 504 of the Rehabilitation Act of

1973, 29 U.S.C. 794. He has been diagnosed at various times with attention

deficit hyperactivity disorder13

, anxiety and behavioral problems with related

10. Both of these cases that were disposed of in the District Courts based upon Motions for

Summary Judgment, not a Motion to Dismiss, as occurred in this cause

11. Since that time the severed case was adjudicated in favor of the School District

12. Plaintiffs substantially rely upon their First Amended Complaint [ROA. 146-180].

13. Attention deficit hyperactivity disorder (ADHD), is a psychiatric disorder of the neuro-

developmental type causing significant problems of acting impulsively. An individual like C.C.,

who has ADHD, is also easily distracted, has difficulty completing assignments, doesnt seem to

listen when spoken to, cant process information as quickly and accurately as others, struggles to

follow instructions and will often blurt out inappropriate comments and act without regard for

consequences. This is because a child with ADHD has difficulty with what is termed executive

functions. Executive function refers to a number of mental processes that are required to regulate,

control, and manage daily life tasks including and especially social behaviors.


10

impoverished social skills14

with both teachers and peers [ROA. 147, 2; 157, 41,

43].

20. In the Fall of 2012, C.C.s parents met with staff to provide him an

educational accommodation plan pursuant to Section 504 of the Rehabilitation Act

of 1973. The plan was insufficient as C.C. began to get a number of disciplinary

referrals due to his disabilities [ROA. 155, 35] and due to a lack of support from

the District so his parents soon removed him from school on October 19th

[ROA.

155, 34].

21. The Cripps then retained an Educational Advocate, Ms. Deb Liva, a

person known to have a very assertive and aggressive style, in an effort to have

C.C. accepted as a student able to receive Special Education services pursuant to

the Individuals with Disabilities Education Act (IDEA) [ROA. 154, 35]. The

family and advocate met with school officials, Emery and Hurbough in particular,

on a number of occasions to address C.C.s disability and related educational

needs to no avail. They did agree to mediate and on November 12th

, forged an

agreement where the District agreed to have a complete evaluation completed by

14. Social skill is any skill facilitating interaction and communication with others. Social rules and

relations are created, communicated, and changed in verbal and nonverbal ways. The process of

learning such skills is called socialization. Interpersonal skills are sometimes also referred to as

people skills or communication skills. Interpersonal skills are the skills a person uses to

communicate and interact with others. They include persuasion, active listening, delegation, and

leadership.


11

December 19th

and to set an Admission, Review & Dismissal (ARD) Committee

for January 15, 2013 to review the report. The evaluation was intended to address

C.C.s various behavioral and disciplinary problems in class and to develop what

is termed a functional behavioral assessment [ROA. 156, 3615

].

22. The report was not ready by the 19th

nor even by January 15th

. The

parents and Advocate complained. C.C. continued to have numerous behavioral

infractions during this period [ROA. 156, 38]. The relationship between the

parties worsened [ROA. 156, 40].

23. The ARD Committee met on the 31st of January. The Schools

Attorney reads into the minutes a section from a Neurogistics report noting C.C.

has significant Anxiety16

. In regard to C.C.s behavioral problems, the Committee

15. The IDEA itself does not define the term "functional behavioral assessment." The students

Admission, Review & Dismissal (ARD) Committee need to be able to address the various

situational, environmental and behavioral circumstances raised in individual cases." 64 Fed. Reg.

12,620 (1999). The purpose of a functional behavioral assessment is to isolate a target behavior

and to develop a hypothesis regarding the function of the target behavior. A target behavior is

one that interferes with a student's ability to progress in the curriculum and to achieve the

student's IEP goals. Once the target behavior is identified and the hypothesis developed, a

positive behavior intervention plan can be prepared to address the target behavior with strategies

and interventions, if necessary, or the target behavior can be addressed using a more informal

approach. See also 20 U.S.C. 1415(k)(1)(D)(ii); 34 C.F.R. 300.530(d)(ii).

16. Anxiety is an emotion characterized by an unpleasant state of inner turmoil, often

accompanied by nervous behavior, such as pacing back and forth, somatic complaints and

rumination. It is the subjectively unpleasant feelings of dread over anticipated events, such as the

feeling of imminent death. Anxiety is not the same as fear, which is a response to a real or

perceived immediate threat; whereas anxiety is the expectation of future threat. Anxiety is a

feeling of fear, worry, and uneasiness, usually generalized and unfocused as an overreaction to a

situation that is only subjectively seen as menacing. It is often accompanied by muscular tension,


12

agreed his multiple disabilities affected his behaviors and agreed to provide him

social skills training in effort to help with both [ROA. 157, 43]. He was admitted

for Special Education services, also as having a Learning Disability17

[ROA. 156,

39].

24. Unfortunately, the relationship between C.C.s mother, the Advocate

and Hurbough and Emery worsened becoming more adversarial and personal.

While not known at the time, Hurbough, with Emery support of other school staff,

initiated a concerted plan to have C.C. removed from school [ROA. 147-148, 3,

4, 5; 157, 44-50]. Hurbough followed C.C. around school and even peered at him

through a door window when C.C. was in class [ROA.157, 42].18

It was so

widely known at the school about their intentions to rid the school of C.C., that

C.C. even heard two teachers in the hall talking about him, and noting that when

he rubbed his pencil on the wall they could now get him for destroying school

restlessness, fatigue and problems in concentration. Anxiety can be appropriate, but when

experienced regularly the individual may suffer from an anxiety disorder.

http://en.wikipedia.org/wiki/Anxiety

17. Nonverbal Learning Disorder (NLD) effects students so that they seem unprepared for class,

have difficulty following directions, can't write an essay, continually misunderstand both their

teachers and their peers, and are often anxious in public and angry at home.

http://www.nldontheweb.org/.

18. In early February, Hurbough told Mrs. Cripps that he had another student follow C.C. with the

goal for that student to report back to Hurbough and Emery, any potential infractions that could

be used against C.C. (ROA 535, 44). He also told Mrs. Cripps he had a camera watching C.C.

(ROA 538, 59) and was already preparing for Court (ROA 537, 57).

http://www.nldontheweb.org/

13

property [ROA. 158, 50].

25. On or about February 11th

, C.C. asked a girl in his class if she was

making porn. Emery attempted to have the girls parents file sexual harassment

charges against C.C., but they chose not to do so [ROA. 148, 4; 157, 44].19

26. Hurbough and Emery also had Ms. McNosky, a teacher at the school,

follow C.C. around with the intent to have a criminal charge filed against him.

Specifically, she was directed by Emery or Hurbough to have some minor physical

contact with C.C. so as to give support to file assault charges, a felony [ROA. 148,

4; 159, 53]. On a number of occasions she attempted to have contact with C.C.

but he avoided contact. On two occasions he could not, once on or about February

14th

and again on or about the 20th

of 2013 [ROA. 157, 45, 46; 158, 47, 48, 49].

There is nothing in the educational record at all as to why McNosky was following

C.C. or why she was in the same class as him.

27. On February 19th

C.C. was extremely disruptive. He yelled across the

room that another males penis was so small that you couldnt even see it. Emery

spoke to this boys parents and attempted to get them to file charges for felony

charges of sexual harassment but they refused [ROA. 159, 52]. All these

19. During this same time period when C.C. gave another student a wet willy. Emery attempted

to have the parents of the students file sexual assault charges against C.C. for exchange of bodily

fluids but they chose not to do so (ROA 537-538, 58). He later told Mrs. Cripps that a parent

could file charges against C.C. and he could not do anything about it (ROA 540, 68).


14

behaviors continued to evidence C.C.s diminished social skills [ROA. 158, 51].

28. Also on that same day, C.C. was also seen belching in a students

face. Emory also categorized this incident as one of sexual harassment and

investigated it as such, all in the hope of using it to rid the school of C.C. [ROA.

158-159, 52). It was during these investigations that he learned that C.C. had

photographed a student in a restroom [ROA. 159, 54]. Specifically, that R.L.

(C.C.s friend) purposefully went to an open toilet stall with no door, and let C.C.

and a few other students know he was defecating and let them take his picture.

Importantly R.L. had a history of mooning people and was known to do crazy

things.

29. While in the open stall, R.L. continued to laugh and even struck a

pose with his palms up while making a funny face. He also made grunting

noises to further exaggerate defecation for not only all to see but also to hear.

R.L. wiped himself and showed the feces stained toilet paper to C.C. and a number

of other students. C.C. and at least one other student took a picture of R.L. in stall.

R.L. saw the pictures and laughed [ROA. 159, 54, 55, 56].

30. After the investigation was completed Emery and Hurbough decided

to have C.C. expelled from school for violating the Texas Penal Code of taking the

picture of a person in the bathroom, without that persons consent and violating


15

their privacy. They finally found a parent willing to file charges. Hurbough and

Emery made the easy decision to throw C.C. out of school and give him sixty (60)

days in the alternative school for committing a felony [ROA. 148; 160 58].

31. Emery did later confirm that another student had also taken pictures

of R.L. in the bathroom. Nevertheless, that student was not punished at all [ROA.

163, 77). In fact, this was not the only incident where other students committed

activities that also could rise to the level of a felony or was done without another

students consent but were punished less harshly. For instance, one student who

reportedly searched out and walked up behind another student and stabbed that

person with a pencil, only received three days in the alternative school. When

another student used his musical instrument to batter another student at a bus stop,

he got three days. When another student had traces of drugs on his person he got

three days. When another student was found to have drug paraphernalia and a

knife, he received five days of suspension. When another student also brought a

knife to school, with a bong and also had a long history of persistent mis-

behaviors, he received ten days in the alternative school. C.C. got sixty days for

taking a picture of his friend on the toilet, who permitted C.C. to take the pictures

and even posed for them. Clearly he was treated differently than others students

who also violated the Schools Code of Conduct and committed acts that could be


16

construed as felonies, invading someones privacy or done without their consent

[ROA 149, 6].

32. On March 12th

, McNosky was also directed by Hurbough, or Emery

or both to file felony charges C.C. for the contact that she forced, on or about the

14th

and 20th

, both well after the incidents in question. The officer at the police

station refused to file it as a felony and reduced it to a misdemeanor [ROA. 157,

45-46; 158, 47-49; 159, 52; 164, 80). The Juvenile Justice Authority in Fort

Worth decided not to process the picture taking case at all. Even though Emery

and Hurbough knew that the Juvenile Authorities would not prosecute the issue,

and knew there no felony, they kept C.C. from returning to the regular education

environment, depriving him of academic and non-academic opportunities

otherwise given his non-disabled peers [ROA. 164, 79-81].

33. In the Summer of 2013, C.C. filed a complaint against the School

District with the Office of Civil Rights (OCR) regarding, among other things,

whether C.C. was a victim of retaliation. In their investigation, the OCR

determined that C.C. parents had participated in a protected activity, advocating

on his behalf; that the District had knowledge of the protected activity; that the

District took action against C.C. contemporaneous with the protected activity and

there was a causal connection between the protected activity and the adverse


17

actions taken against C.C. thus establishing a prima facie case of retaliation (ROA.

164-165, 83).

34. The OCR then looked to the District to provide legitimate non-

discriminatory reasons for its actions. With the OCR, Emery stated that C.C. had

sexually harassed another student ..., when making fun of the size of boys penis,

which is also a complete and knowing mis-characterization of that childish

incident. He also told OCR that C.C. had shown the pictures to R.L.s girlfriend.

That statement was also incorrect. Based upon Emerys testimony, as well as

others, the OCR found that the District did in fact have non-discriminatory reasons

for the punishment of C.C. and was deemed as unfounded (ROA. 165, 84, 85).

35. On January 13, 2014 C.C. filed a complaint with the Texas Education

Agency (TEA) arguing the District had failed to provide him Free Appropriate

Public Education (FAPE).20

On March 19-20, 2014 Special Education Hearing

Officer with TEA heard testimony. Most relevant to this cause, C.C. testified that

R.L. had entered the bathroom had a goofy smile and went to an open stall, so

everyone could see him. Everyone, including C.C. expected R.L. to do something

funny, as he had before when mooning them [ROA. 167, 94]. C.C. testified as

he had previously reported during the investigation, that R.L. continued to laugh,

20. Those claims were heard in the severed action [ROA. 657].


18

made exaggerated grunting noises and continued gesturing to the boys, striking a

pose with his hands up. R.L. also saw C.C. and another boy take pictures him and

did not ask them to stop. In one pose for the camera, R.L. wiped some of his feces

on toilet paper and let C.C. take a picture of him. The attorney for the School

District did not cross-examine C.C. [ROA. 159, 55, 56; 160, 57; 167, 94].

36. Emery testified that the pictures of R.L. depicted him as being very

upset, and humiliated and shielding his genital area, supporting the notion that

R.L., did not give consent to have his picture taken and that R.L. fully expected to

have privacy in the bathroom. Moreover, the District had no policy in place for a

student to contest a false allegation that he had committed a felony [ROA. 167,

95, 96]. Based upon Emerys testimony, the Hearing Officer found in favor of

Emerys decision that C.C. had committed a felony when taking pictures of R.L. in

the bathroom [ROA. 168, 97].

37. Soon after the decision Mr. Cripps went to the Police Station to

retrieve his sons telephone. At home he observed that the pictures had not been

deleted as previously thought. Further, a review of the pictures evidenced they

were completely different than what Emery had depicted in his sworn testimony at

the Hearing with the TEA [ROA. 168, 100].

38. In fact, the pictures did not show R.L.s face at all, so that the


19

comment R.L. was visibly embarrassed and humiliated is false. Nor is there

anything in the picture to lead anyone to believe that R.L. was covering up his

genitals in an effort to avoid a picture of C.C., or had grimaced, all as testified to

by Emery. Emerys testimony under oath is not credible. Rather his statements

comport with C.C.s statement that School Officials were out to criminalize C.C.s

behaviors, get him thrown out of school, and keep him out [ROA 169, 100- 170,

(ROA. 168, 111].

SUMMARY OF THE ARGUMENT

39. There are certain facts in this cause that are certainly worth briefly

repeating (as they simply speak for themselves). Over the course of less than a two

week period, School District personnel, including and especially Principal

Hurbough and Vice-Principal Emery;

a. attempted to have a girls parents file felony sexual assault charges

against C.C. for asking her if she was making porn, though they

refused [ROA. 148, 4; 157, 43];

b. attempted to have another set of parents to file charges of felony

sexual assault charges against C.C. because he said the boy had a

penis so small you could not see it, though they refused [ROA, 148,

4; 158, 51];


20

c. attempted to have another parents file charges of felony sexual assault

against C.C. when he belched in that students face, though they

refused [ROA. 158-159, 52];

d. attempted to have another parents file charges of felony sexual assault

against C.C. when he gave that student a wet willy as it was an

exchange of bodily fluids, but they chose not to do so (ROA 537-538,

58);

e. actually conspired to have a teacher force physical contact with C.C.

and then have this same teacher file felony assault on a public servant

charges against him [ROA. ROA. 148, 4; 159, 53];

f. and that the conspiracy was so well known that about Hurboughs and

Emerys intentions to rid the school of C.C., that C.C. even heard two

teachers in the hall talking about him, and noting that when he rubbed

his pencil on the wall they could now get him for destroying school

property [ROA. 158, 50]; and

g. that later when C.C. did take a picture of his friend R.L. while sitting

on the toilet, which included a picture of the boy waving around a

piece of toilet paper with feces on it for all to see, Emery determined

that the boy had not given consent to have pictures taken and had his


21

privacy violated [ROA. 159-160, 56-60]21

, he was able to get that

childs father to file felony charges against C.C.

40. We know that after this finding by Emery, C.C. was expelled from

school [ROA. 160, 58]. Nevertheless, even when the Juvenile Justice Authority

refused to prosecute the picture incident at all, let alone as a felony, and in

addition, when the local Justice Court also declined to prosecute the assault on a

public servant charge at all, the School District nevertheless failed to consider or

change C.C. placement, repeatedly arguing they had no duty to do so.

41. In regard to the argument itself, first and foremost C.C. argues that

the District Court erred by not permitting him the opportunity to file an amended

complaint in this cause.

42. C.C. next argues that the District Court erred when granting the

Motion to Dismiss as it failed to consider allegations he was a victim of retaliation.

43. C.C. further argues that as a student within the care and jurisdiction

of the Hurst-Euless-Bedford Independent School District, C.C. maintains his

various constitutional rights when he entered the schoolhouse, Tinkers v. Des

Moines School District, 393 U.S. 503 (1968), including and especially a property

right in his education, Goss v. Lopez, 419 U.S. 565 (1975). Such due process

21. Of course, C.C. has provided significant evidence that Emery misrepresented what those

pictures actually depicted in an effort to rid the school of C.C. [ROA. 168, 100- 170, 111].


22

rights are both procedural and substantive and are otherwise provided to all

citizens of the United States, even children like C.C. Nevertheless in reviewing the

various Motions to Dismiss filed, the District Court failed to use the correct

standard of review and erred in the analysis of C.C.s due process claims and equal

protection claims.

44. Moreover, and as student with a disability C.C. has also made claims

his rights pursuant to Section 504 of the Rehabilitation Act of 1973 were likewise

violated in at least two manners and particulars; first that he was not afforded a

non-hostile educational environment and second, that staff grossly departed from

professional standards of care in the implementation of his overall educational

plan. As the District Court failed to use the correct standard of review in analyzing

both these claims the Judge erred thereby.

45. In short, C.C. has raised sufficient facts at this stage of the litigation

to satisfy his burden as to both his constitutional and statutory claims and as such,

his appeal should be granted on both grounds, or in the alternative, separate

grounds.


23

STANDARD OF REVIEW

46. The Court reviews the grant of a motion to dismiss de novo. Dorsey v.

Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008). Moreover, any due

weight or deference that may otherwise be given to the District Court is not

implicated with respect to issues of law. Lillbask ex rel. Mauclaire v. State of

Conn. Dep't of Educ., 397 F.3d 77, 82 (2d Cir.2005). Further, this Court must

evaluate the sufficiency of a Complaint by accept[ing] all well-pleaded facts as

true, viewing them in the light most favorable to the plaintiff[s]. See In re Katrina

Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). A motion under Rule

12(b)(6) should be granted only if it appears beyond doubt that the plaintiff could

prove no set of facts in support of its claims entitling relief. Conley v. Gibson, 355

U.S. 41, 45 46, (1957).

47. Further, the complaint must be liberally construed in favor of the

plaintiff and the allegations contained therein must be taken as true. Leatherman v.

Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164

(1993); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). Whether a claimant will

ultimately be able to adduce evidence sufficient to support its claims on the merits

is not a question for consideration in connection with the 12(b)(6) motion. General

Star Indem. Co. v. Vesta Fire Ins. Corp., 173 F.3d 946, 951 (5th Cir. 1999).


24

48. Importantly, motions to dismiss for failure to state a claim are viewed

with disfavor and are rarely granted. Southern Christian Leadership Conference v.

Supreme Court of the State of Louisiana, 252 F.3d 781, 786 (5th Cir.), cert.

denied, 534 U.S. 995 (2001); Lowrey v. Texas A&M University System, 117 F.3d

242, 247 (5th Cir. 1997). In support of that proposition, liberal discovery rules and

summary judgment motions, not motions to dismiss, should be used to define

disputed facts and issues and to dispose of unmeritorious claims. Furstenfeld v.

Rogers, No. 03-02 CV 0357 L, 2002 U.S. Dist. LEXIS 11823, at *5 (N.D. Tex.

Jul. 1, 2002).

49. In fact the granting of an opportunity to replead after a Motion to

Dismiss is granted, more in accord with public policy that understands that any

dismissal is a drastic remedy, Smoot v. Chicago, R. I. & P., Co., 378 F2d 879 (10th

Cir. 1967) and should be used sparingly, City Natl Bank of Fort Smith, Ark. v.

Vanderboom, 422 F2d 221 (8th Cir. 1970). This strong public policy is even more

appropriate when dealing with children who have disabilities:

Statutes of rehabilitation should be construed in a liberal and

humanitarian mode thus effectuating successfully the legislatures

objective intentions. Such construction of rehabilitative statutes

promote the public interest, public welfare, public health, public state

policy and the police powers. Such salutary constructions properly

disregard technical and meaningless distinctions but give the

enactment the most comprehensive application of which the

enactments are susceptible without violence to the language therein.


25

Deep East Texas Regional Mental Health & Mental Retardation

Services v. Kinnear, 550 S.W.2d 550, 563 (Tex. App. Beaumont,

1994); see also Tchereepnin v. Knight, 389 U.S. 332, 336 (1967)

[remedial legislation should be construed broadly to effectuate its

purpose].

Importantly, the Supreme Court underscored in Roger Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 148; 120 S. Ct. 2097, 147 L.Ed 2d 105

(2000), that lower Courts should not treat discrimination cases with more scrutiny

than other cases dealing with questions of facts, citing St. Mary's Honor Center v.

Hicks, 509 U.S. 502, 524; 125 L. Ed. 2d 407; 113 S. Ct. 2742 (1993).

ARGUMENT AND AUTHORITIES

50. The public has developed a loud and firm desire to hold public

officials responsible for their acts and omissions. This evolving and growing

public concern has extended into the public schools as well, and as this Court well

knows22

there has been an increase in school based cases related to the bullying

and harassment of children, whether it be by other students or even teachers, as

has occurred in this case.

51. This case that epitomizes some of the worst in what is termed, the

Schoolhouse to the Jailhouse Pipeline. In 2003 the National Council on

Disabilities wrote a white paper for then President George W. Bush called,

22. See Stewart v. Waco Independent School District, 711 F.3d 513 (5th Cir. March 14,

2013), opinion vacated at 2013 U.S. App. LEXIS 11102 (June 3, 2013).


26

Addressing the Needs of Youth with Disabilities in the Juvenile Justice System.

It reported what those of us in the field already well know, that students with

disabilities are over-represented in the school house to jailhouse pipeline.

Students with disabilities are not only more prone to be written up for simple code

of conduct violations, but also are more apt to find themselves in an In-School

Suspension (ISS), the Alternative Educational Program (AEP), Suspension

from school, the Disciplinary Alternative Educational Program (DAEP), the

Juvenile Justice Alternative Educational Program (JJAEP) and even in

correctional facilities [ROA. 149, 7].

52. The early data and treatises reported that much of the problem was

inadvertent, with failure to identify the student as having a disability as the main

problem or the failure correctly implement the students Individualized

Educational Plan (IEP) or Behavioral Intervention Plan (BIP). Today we

know the problem is more insidious, as some school administrators purposefully

push students with disabilities who have behavior problems out of their schools,

because its easier to do that, then to serve them. C.C. is obviously one such

student [ROA. 149-150, 8].

A. The District Court Erred By Not Permitting Appellants The Opportunity To

File An Amended Complaint

53. On November 20, C.C. attempted to file a Second Amended


27

Complaint [ROA. 374]. Its intent was to clarify the claim related to retaliation as it

applies to Section 504 of the Rehabilitation Act of 1973 [ROA. 528, fn. 6].

54. On the 24th

, the Court ordered C.C. to provide a copy of the offered

(second) amended complaint with necessary markings to show any additions and

deletions from the previous pleading (the first amended complaint) [ROA. 434].

He did so [ROA. 520, 561]. Also on the 24th

, the Judge severed the TEA appeal

part of the case and ordered C.C. to file a new Complaint on the severed action

[ROA. 657]. Later, the District Judge denied C.C.s request to amend his

complaint [ROA. 630631]. C.C. asked it be reconsidered [ROA. 645, 650] and that

too was denied [ROA. 667].

55. Whether leave to amend should be granted is within the sound

discretion of the district court. Lyn-Lea Travel Corp. v. American Airlines, Inc.,

283 F.3d 282, 286 (5th Cir.), cert. denied, 537 U.S. 1044, 123 S. Ct. 659, 154 L.

Ed. 2d 516 (2002) (quoting Quintanilla v. Texas Television, Inc., 139 F.3d 494,

499 (5th Cir. 1998). However, Federal Rule of Civil Procedure 15(a) also makes it

clear that the trial court is required to grant leave to amend freely. Id. (quoting

Chitimacha Tribe of La. v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1162 (5th Cir.

1982), cert. denied, 464 U.S. 814, 104 S. Ct. 69, 78 L. Ed. 2d 83 (1983). Further,

the language of R. 15 evidences a bias and predisposition in favor of granting


28

leave to amend. Id. Courts in this circuit have determined that the purpose of the

bias in favor of allowing amendment of the pleadings is to assist the disposition of

the case on its merits, and to prevent pleadings from becoming ends in themselves.

Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 598 (5th Cir. 1981);

Summit Office Park v. United States Steel Corp., 639 F.2d 1278, 1284 (5th Cir.

1981).

56. Although, leave to amend should not be granted automatically, the

trial court should always err on the side of allowing amendment. Addington v.

Farmer's Elevator Mutual Insurance Co., 650 F.2d 663, 666 (5th Cir. 1981), cert.

denied, 454 U.S. 1098, 102 S. Ct. 672, 70 L. Ed. 2d 640 (1982) and is especially

appropriate where it is the only means a party has to have its claims heard.

McBroom v. Payne, Cause No. 1:06-cv-1222-LG-JMR (S.D. Miss., October 6,

2010)[amendment should be granted where it is the only means for plaintiff to

pursue claims]; Laber v. Harvey, 438 F3d 404, 426-427 (4th

Cir. 2006)[amendment

is not prejudicial if it merely adds theory of recovery to facts already pled and

offered before discovery has occurred].

57. In Davis v. Dallas County, 541 F. Supp. 2d 844, 848 (N.D. Tex.

2008) the Court found that good cause existed to amend a complaint even if it

occurs on the same day a scheduling order had a deadline. Further, that Court there


29

could not be any prejudice by granting a motion for leave to amend a complaint

where a Defendants already had notice of the issues considered. Id. at 849; see

also Harrison v. Rubin, 174 F3d 249, 253 (D.C. Cir. 1999)[permitting amendment

that does no more than clarify legal theories]; Farfaras v. Citizens Bank & Trust,

433 F3d 558, 568 (7th

Cir. 2006)[intent of rule is that cases should be decided on

the merits rather than on procedural niceties].

58. In the instant case there was no scheduling order in place. There has

been no discovery. There is no trial setting. Moreover, the issue about retaliation

was clearly before the School District, in that they even used it in support of their

contention they did not violate C.C.s rights [ROA. 348]. The main reason for the

denial of the request to amend the pleadings was that it would unduly prejudice

the School District Defendants and lead to delay. C.C. believes the District Judge

abused his discretion by failing to permit the amendment. This position is

underscored by the fact the Judge later severed the case and required C.C. to

amend that complaint. Moreover, the fact the first Motion to Dismiss [ROA. 78,

81] by the School District was almost exactly the same as the second [ROA. 325,

328], such that the only item the School District (not Hurbough nor Emery) would

have had to address was the retaliation claim pursuant to Section 504. They could

hardly be prejudiced in being required to do so, as they had relied upon that very


30

issue when alleging they did not discriminate against C.C. based upon disability

[ROA. 348]. The School District should not be permitted to have it both ways,

meaning they cant use the retaliation as a sword to pierce C.C.s discrimination

claim but then not have to defend its use. The District Judge clearly abused his

discretion when refusing to permit C.C. to amend his complaint. As such, C.C.s

appeal should be granted and this issue remanded back to the trial court

accordingly.

59. In addition and in the alternative to the above, even if the Judge did

not abuse his discretion when denying C.C.s request to amend the complaint, he

erred by not considering the retaliation claim, as it was nevertheless well-pled.

B. The District Court Erred When Granting The Motion To Dismiss In Failing

To Consider Allegations That C.C. Was A Victim Of Retaliation

60. In his final order, the District Court determined that C.C. retaliation

claim was not properly before him (ROA. 686]. The Court erred in making this

determination in light of the operative law on the topic.

61. The exacting standards governing Rule 12(b)(6) motions must be

considered in light of the pleading requirements of Rule 8(a). Furstenfeld, 2002

U.S. Dist. LEXIS 11823, at *5. Federal Rule of Civil Procedure 8(a) requires a

"short and plain statement of the claim showing that the pleader is entitled to

relief." FED. R. CIV. P. 8(a). A complaint will be deemed inadequate under Rule


31

8(a) only if it fails to: (1) provide notice of the circumstances which give rise to

the claim, or (2) set forth sufficient information to outline the elements of the

claim or permit inferences to be drawn that these elements exist. General Star

Indemnity Company v. Vesta Fire Insurance Corporation, 173 F.3d 946, 950 (5th

Cir. 1999).

62. As the Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007), the pleading standard Rule 8 announces does not require detailed factual

allegations, but it demands more than an unadorned, the- defendant- unlawfully-

harmed- me accusation. Id., at 555 (citing Papasan v. Allain, 478 U.S. 265, 286

(1986)). A pleading that offers labels and conclusions or a formulaic recitation

of the elements of a cause of action will not do. Twombly at 555. Nor does a

complaint suffice if it tenders naked assertion[s] devoid of further factual

enhancement. Id., at 559. To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face. Id., at 570. A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged. Id., at 556. The plausibility

standard is not akin to a probability requirement, but it asks for more than a

sheer possibility that a defendant has acted unlawfully. Ashcroft v. Iqbal, 129 S.


32

Ct. 1937 (U.S. 2009).

63. As noted throughout C.C.s First Amended Complaint, he has made

numerous factual contentions giving rise to a claim he was a victim of retaliation

based upon his parents advocacy on his behalf. In fact, his allegations were so

clear and obvious that the School District used those very same allegations of

retaliation as a defense [ROA. 348]. Later, C.C. argued in his response to the

School Districts Motion to Dismiss that he was a victim of retaliation [ROA. 514-

515]. The School District failed to respond to C.C.s retaliation claim, except to

note it was not in Plaintiffs live pleading, their First Amended Complaint [ROA.

610, p. 2, fn. 2], which was affirmed by the District Court. How could the

Defendant state on one hand the retaliation claim was not in C.C.s live pleading

yet on another hand, state it was? They are judicially estopped from doing so. In

short, the School District cannot at a later time reverse an earlier held legal

position when it finds that application of a previous position is not in his newly

found best interest, Pace v. Bogalusa City School Board, 403 F.3d 272, 296-297

(5th

Cir. 2005). As C.C.s First Amended Complaint meets R. 8 standards, and

provides a plausible, persuasive, and factually correct basis for his legal claims for

relief his appeal on this ground should be granted.

C. The District Court Erred When Granting The Motion To Dismiss As The

School District Failed To Have A Process To Correct False Allegations Of


33

Criminal Activity

64. It is well-settled that C.C. has constitutional rights while at school,

Tinkers v. Des Moines School District, 393 U.S. 503 (1968), including and

especially a property right in his education, Goss v. Lopez, 419 U.S. 565 (1975).

These constitutional protections are both procedural and substantive.

65. C.C. has provided facts that when he was referred to the Juvenile

Justice Authority for allegedly committing a felony, he was simultaneously

referred to a Disciplinary Alternative Educational Environment (DAEP) for

placement [ROA. 160, 58; Later, as we know, the authority declined to prosecute

the claim at all, whether it be as felony, or even as a misdemeanor [ROA. 163,

78]. C.C. repeatedly requested that once the School District knew of this situation

they had a duty to both revisit and change the DAEP placement the District

continuously argued they had no duty to do either [ROA 164, 78; 79, 80, 81]. In

fact, Emery has testified that the School Board has no policy or procedure in place

to address such a situation [ROA. 168, 96]. Further, C.C. argues the failure to do

address this changing circumstance rises to constitutional proportions [ROA. 148,

5; 172, 19; 173, 126-128].

66. The School District personnel, Emery and Hurbough included, did all

agree that C.C. had a right to procedural due process citing Goss [ROA. 297, fn.


34

23; 319, fn. 23; 342, fn. 26]. They focused, albeit incorrectly, on the procedures

related to C.C.s placement into the DAEP, not the failure to have procedures on

how to get him out, once they had knowledge of the changing circumstances.

67. The District Court did likewise agree that C.C. had a property right in

his education, Harris ex rel. Harris v. Pontotoc County School District, 635 F3d

685, 690 (5th

Cir. 1011) but did not address this specific procedural claim at all,

also relying upon the placement into the DAEP as the controlling constitutional

issue and not the lack of a procedure to correct mistaken placement. [ROA. 675].

This decision missed the mark, as the procedures contested were (again) not those

that put C.C. into the DAEP, but rather the failure of any procedures to get him

out.

68. State law supports C.C.s position that this changing circumstance

should be addressed and acted upon by school district officials. A review of state

law is helpful here. As we know, if a student commits a felony at school the

student can be placed in a disciplinary alternative educational environment

(DAEP), Tex. Educ. Code 37.006(a)(2)(A) and also if done outside of school.

Id. at 37.006( c). In either case, and upon notice to the Juvenile Justice Authorities

of the allegations the authority has a duty to communicate with a School District,

as to the course of the proceedings, so that the school may respond accordingly,


35

Tex. Code of Crim. P. 15.27(a), whether it be as to a conviction, deferred

prosecution or adjudication (b). Of course, if the authority refuses to prosecute the

case and no formal proceedings or deferral will be initiated (as occurred in this

case) the authority has two days to notify the school district, of that decision (g).

The failure to share this information in a timely manner with school officials is so

important, that if not done, is grounds for a disciplinary reprimand (n). In short,

the Texas Legislature clearly wanted to school district to know quickly that if a

student, who was initially charged with a felony, was not going to be prosecuted,

they too respond accordingly. It is uncontroverted that the District made no

attempt to address this changing circumstance. It is also uncontroverted that the

School Board has no policy in place to address this issue. Moreover, it is likewise

uncontroverted that C.C. was damaged by this failure.

69. If we are left with the District Courts ruling on this issue then when

and if a student is arrested for rape, and is placed in a DAEP, and then it is later

determined the allegations was against the wrong person, but the school keeps the

student in the DAEP placement anyway, and there is no remedy for that student,

there is a gross mis-justice. This is an issue of great public policy implications that

cannot be left to stand as is.

70. As such, and in addition, C.C. has proven sufficient facts that the


36

School Boards failure to have such a policy violates his procedural due process

rights pursuant to the 14th

Amendment to the United States Constitution. As noted

in his complaint this failure, among others, was a moving force in the injuries he

experienced; i.e., being removed from school, alleged to be a sexual deviant when

he was not and having a criminal record.

71. As the School District waived this particular argument, and the Court

failed to address it, it should be remanded accordingly.

D. The District Court Erred When Granting The Motion To Dismiss When

Failing To Find That C.C.s Allegations Support A Substantive Due Process

Claim

72. The various School District parties have each argued that C.C. has

failed to plead and support a substantive due process claim [ROA. 297, 319, 342],

though all recognize that the due process clause protects against arbitrary

government action that is egregious. County of Sacramento v. Lewis, 523 U.S.

833, 845-846 (1998). In Morris v. Dearborne, 181 F3d 657 (5th

Cir. 1999) this

Court analyzed a substantive due process claim as to whether or not certain

conduct could be considered egregious. The parallels are similar to this case.

73. In this case, over a less than two week period Hurbough and Emery,

with the knowledge of McNowsky and other school personnel, participated in a

conspiracy to remove C.C. from school. They did this in the most arbitrary and


37

egregious manner, by making false allegations to other parents, that C.C. was a

sexual deviant, in the hope one of them would file felony charges against C.C.

74. In the above-noted case, Dearborne made allegations that Morris had

sexually molested his daughter. Based upon her perception she reported Morris to

the state regulatory services and the child was removed from his custody. Later it

was found out that Dearbornes allegations were baseless and suit was filed

against her. Dearbornes belief that Morris abused his daughter was based upon a

misguided belief, that the child, by the use of whats termed a Facilitated

Communicator (FC) told Dearborne she was being abused by her father. A

review of the entire facts in that case would lead to that Dearbornes belief and use

of the FC bordered on the illogical and maybe even insane. But Dearborne, while

illogical, maybe even insane (a bit) and misguided is not as bad as Hurbough and

Emery who very purposefully intended to hurt C.C. and sought the assistance of

others in their desire to do so. Moreover, while C.C.s claim under Section 1985

may have died, the underlying facts survive as to his claim his substantive due

process rights were violated by the School District by their arbitrary and egregious

actions as their conduct resulted in grave harm, and when coupled with culpable

intent, violates the due process clause because it violates those canons of decency

and fairness which express the notions of justice of the English speaking people.


38

Id. at 667; citing Malinski v. New York, 324 U.S. 401, 416-417 (1945).

75. Moreover, the duty of school personnel to keep a student safe and

free from harm is a well-settled constitutional proposition. Doe v. Taylor, 15 F3d

443 (5th

Cir. 1994) and surely their conspiracy against C.C. and intentional

actions, could hardly be seen as objectively reasonable, Morris at 672 citing

Jefferson v. Yseleta Indep. Sch. Dist., 817 F2d 303, 305 (5th

Cir. 1987), as no

reasonable teacher could see that speaking to five separate sets of parents in order

to have charges filed against C.C. for sexual assault, for simply put, childish pre-

adolescent behaviors, is objectively reasonable.

76. As C.C. has provided sufficient factual support in his First Amended

Complaint that his substantive due process rights were violated, this issue, like the

others, should be remanded to the trial court.

E. The District Court Erred When Granting The Motion To Dismiss Regarding

Claims Related To The Equal Protection Clause

77. C.C. argued that he has a claim, pursuant to the Equal Protection

Clause of the 14th

Amendment of the U.S. Constitution, based upon a Class of One

theory that he was treated more harshly by both Emery and Hurbough than other

students who were similarly situated, especially where such actions by those

students also purportedly would infringe upon that students privacy rights

]ROA 174, 131-132]. He believes this claim is not only viable but his


39

constitutional interest is even more pronounced, when coupled with a claim

related to equal protection, Martinson v. Regents of University Of Michigan,

2014 WL 134476 at *9 (6th

Cir., April 4, 2014), citing Bell v. Ohio State

University, 351 F.3d 240, 251 (6th

Cir. 2003), as it is in this cause [ROA 173-174].

78. Moreover, it is well settled that a person can bring a Class of One

claim when the decision-making process is arbitrary. Village of Willowbrook v.

Olech., 528 U.S. 562, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000) [per curiam].

One would be hard-pressed to find how the School District personnel, whether it

be to a strict scrutiny review, a rational basis test, or some intermediate standard,

that treating C.C. both more harshly and thus differently than other students, was a

governmental policy or practice that should be afforded any protection.

79. Specifically C.C. has brought forward allegations that other students

who also allegedly committed felonies and intruded on a persons privacy or acted

without their consent, were treated differently than he was. For instance, another

student who had also taken pictures of R.L. in the bathroom, a felony, was not

punished at all [ROA. 163, 77). A student who stabbed another student with a

pencil [a felony violation of Texas Penal Code 22.01(a); Tex. Educ. Code

37.006(a)(2)(b)], only received three days in the alternative school. When another

used his musical instrument to batter another student (a felony violation of Texas


40

Penal Code 22.02(a); Tex. Educ. Code (a)(2)(A)] at a bus stop, he got three days.

When another student had traces of drugs on his person [a felony violation of

Texas Penal Code 37.007(a)(3)] he got three days. When another was found to

have drug paraphernalia and a knife [a felony violation of Texas Penal Code

46.01(6), Tex. Educ. Code 37.007(a)], he received five days of suspension. When

another student also brought a knife to school (a felony violation of Texas Penal

Code 46.01(6), Tex. Educ. Code 37.007(a)(1)(B)], with a bong and also had a

long history of persistent mis-behaviors, he received ten days in the alternative

school. C.C. got sixty days for taking a picture of his friend on the toilet, who

permitted C.C. to take the pictures and even posed for them [ROA 149, 6].

80. Emery argued that the taking of a picture of a person in bathroom is

of a different character than the other infractions brought forward by C.C. and was

not an appropriate comparator [ROA 296], as did Hurbough [ROA 317] and the

School District as well [ROA 340]. The District Judge agreed stating noting that

none of the other infractions were as egregious as the violations of R.L.s privacy

rights.23

23. The Judge also stated that C.C. had not pled any facts establishing municipal liability [ROA.

684, fn. 5]. That is not correct. Both the Principal Hurbough [ROA. 152, 18] and the Vice-

Principal Emery [ROA. 152, 19] were clearly given authority by the school board to address

disciplinary issues [ROA. 154, 29] and Manifestation Disciplinary Determinations (MDR)

[ROA. [ROA. 155, 31]. C.C. has pled sufficient facts at this juncture to support the contention

there is municipal liability in this cause. Monell v. Department of Social Services, 436 U.S. 658


41

81. The Judge is incorrect. C.C. has shown that other students have

committed acts that could be also construed as felonies, or acts that have likewise

intruded on a students privacy or in any case have committed acts without the

other students consent and were treated less harshly and clearly differently than

C.C. The Court erred in dismissing this claim.

F. The District Court Erred When Granting The Motion To Dismiss Regarding

Claims The School District Grossly Deviated From Professional Standards

Of Care

82. It is now well-settled that a student with a disability may have a cause

of action for a gross misjudgment of their educational program, or if professionals

grossly deviated from professional standards of care, both pursuant to Section 504

of the Rehabilitation Act of 1973. D.A. ex rel. Latasha A. v. Houston Independent

School District, 629 F.3d 450, 455 (5th Cir. 2010).

83. More recently in Stewart v. Waco Indep. Sch. Dist., 711 F.3d 513

(5th Cir. March 14, 2013), opinion vacated at 2013 U.S. App. LEXIS 11102 (June

3, 2013) the panel addressed the issue of bad faith or gross misjudgment (and

gross deviation from professional standards of care) in the case of a female student

with mental retardation that has been a victim of sexual exploitation by male

students on a number of occasions. The complaint alleged, among other things,

(1978).


42

that the District failed to modify her educational plan, even when they had

information that the then current educational plan, was no longer warranted.

84. In reviewing much of the case law cited above the Fifth Circuit noted

that Section 504 provides that "no otherwise qualified individual with a disability

in the United States, . . . shall, solely by reason of her or his disability, be excluded

from the participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial assistance

. . . ." 29 U.S.C. 794(a). Further, that the Court has reviewed 504 claims under

the standard applicable to claims arising under the ADA (and Section 504). See,

e.g., D.A. ex rel. Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir.

2010), citing, Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir. 2005) [en

banc] and noted that "To establish a prima facie case of discrimination under the

ADA, [a plaintiff] must demonstrate:

(1) that he is a qualified individual within the meaning of the ADA;

(2) that he was excluded from participation in, or was denied benefits of,

services, programs, or activities for which [the school district] is

responsible; and

(3) that such exclusion or discrimination is because of his disability.24

"

Greer v. Richardson Indep. Sch. Dist., 472 F. App'x 287, 292 (5th Cir.

24

. The District Court determined that there were no allegations that C.C. was a victim of

discrimination based upon his disability, rather they were related to his behaviors.


43

2012)

(unpublished); citing Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671-72

(5th Cir. 2004).

85. Because 504 and the ADA focus on discrimination, students with

disabilities may use them to supplement avenues of recovery otherwise

unavailable under the Individuals with Disabilities in Education Act ("IDEA"), 20

U.S.C. 1400, et seq., See D.A., 629 F.3d at 453 (citing Marvin H. At 1356).

"[T]o establish a claim for disability discrimination, in [the] educational context,

'something more than a mere failure to provide the "free appropriate education"

required by [the] [IDEA] must be shown.'" D.A. at 454 quoting Monahan at 1170.

A plaintiff instead must "'allege that a school district has refused (emphasis added)

to provide reasonable accommodations for the handicapped plaintiff to receive the

full benefits of the school program.'" Id. , quoting Marvin H. at 1356. This refusal

may be shown by "facts creating an inference of professional bad faith or gross

misjudgment." D.A. at 455.

86. Ultimately the Fifth Circuit determined in Stewart that a Plaintiff also

may show gross misjudgment by alleging that a school district knew of a student

being injured in their school environment but failed to "take appropriate and

effective (emphasis) remedial measures once notice of the unsafe environment


44

was provided to school authorities." M.P. ex rel. K. v. Indep. Sch. Dist. No. 721,

439 F.3d 865, 868 (8th Cir. 2006) [M.P. II]. In sum, a school district refuses

reasonable accommodations under 504 (or the ADA) when it fails to exercise

professional judgment in response to changing circumstances or new information,

even if the district has already provided an accommodation based on an ini

Date post:	06-Sep-2015
Category:	Documents
Upload:	brad
View:	149 times
Download:	3 times

Damon Emery - Scott Hurbough -Federal Lawsuit - Hurst Euless Bedford Independent School District

Documents