Becerra v. Asher

spreads component the cost nia statute Individually BECERRA, among all the risk Rosa policyholder’s Doe, A as next friend of Juan policyhold- sureds, requiring instead Minor, Plaintiff-Appellant, part of this cost when all or to shoulder er . an exclud- treatment from seeking care or v or her hospital of his or ed doctor al., Defendants, Jerry ASHER, et facially [Although the statute choice.... District, Independent School Houston indirectly providers, it directly only affects Macy Raymond, Sylvia and Bar Joan provider and choice of insured’s affects the Turner, Defendants-Appellees bara if he or to the insured consequent cost . provider be bet- an she deems excluded No. 96-20401. specific of a for treatment ter Appeals, States Court United way it affects In this or accident. illness Fifth Circuit. must bear.38 insured the risk Feb. analysis, and nóte that agree with this

We Rehearing Suggestion Rehearing more even prior Texas statute Denied March En Banc policyholder’s choice on the direct effect Rehearing Rehearing Denying Order statute, Virginia provider. Unlike April En Banc insur- expressly mandated that Texas statute per- “prohibit or limit a policies ance cannot beneficiary policy from of the is a

son who pharmacist of the

selecting pharmacy provider be a

person’s choice to of- pharmaceutical services

policy furnish policy or interfere provided

fered or pharmacy or selection of a person’s

with that

pharmacist.”39

CONCLUSION district is af- judgment of the statute, as it held

firmed insofar amendments, was not

prior the' 1995 ERISA statute.

preempted the federal above, however, explained

For the reasons version of the stat- that the current

wé hold preemptéd.

ute is

AFFIRMED AS MODIFIED. 21.52B, (West 2(a)(1) art. at 503-04. Ins.Code Ann. Tex. changed Supp.1997). was not This subsection amendments. the 1995 to Patterson transferred

quittal Asher was Patterson, princi- Elementary. While Turner, heard that Barbara pal, defendant give private music lessons planned to classroom, questioned stu- that he had matters, and that he personal dents about III, Hall, M. John Benjamin Lewis up pants to roll his so a student had asked Hawkins, O’Quinn, Bazan O’Quinn, Elizabeth leg signs of for could examine his that Asher Laminack, Houston, Kerensky, & McAninch Asher not to Turner told physical abuse. TX, plaintiff-appellant. for disrupt- Asher also activities. engage such Freís, Jeffrey Brown, Kelly C. A. Lisa to initiate a faculty meeting and tried ed a Patterson, Hous- Horner, & Bracewell John prior quell prayer to rumors about group TX, defendants-appellees. ton, reprimanded Ash- indecency charge.. Turner and recommended Hanahan, Legal for this Boards er behavior School Carolyn evaluation, TX, but this rec- Austin, a medical Texas, for Texas As- he receive Division of Turner want- Boards, went unheeded. curiae. ommendation amicus of School sociation Be- to school. Asher transferred another ed Houston, TX, Scott, for Coali- Sherry A. gave Asher an complains that Turner cerra Abuse HISD. Against Sexual tion to facilitate his evaluation excellent teacher transfer. Sylvia Macy, July an Defendant Asher’s superintendent, authorized area POLITZ, Judge, and Chief Before Elementary. Harris Juan Doe transfer to DENNIS, Judges. Circuit and

REAVLEY Elementary from 1990 to attended Harris REAVLEY, Judge: Circuit Asher’s music He a student 9, 1992, Juan withdrew class. On March Asher, music teacher Jerry a Defendant Elementary, and Harris but Juan from Dis- Independent School the Houston with friendship with Asher. a brother continued Doe, (HISD), sexually molested Juan trict boys permission, their mother’s With mother, Rosa eleven-year boy. Juan’s old activities spent time Asher. Their with Becerra, individually and next friend of as lessons, trips to the zoo home music cluded against Juan, action brought this activities. On parks, and church and theme HISD, administrators, alleg- three HISD September Asher August 29 and § 1983 under 42 U.S.C. ing a claim federal and his brother at then- alone with Juan granted claims. The and state law home, sexually Juan. molested all the defen- summary judgment in favor of witnessed the latter incident. grandmother claim, § except Asher on dants authorities. reported Asher to the Becerra judgment favor these entered a final resigned from in December of HISD 54(b).1 Be- defendants under Fed.R.Civ.P. molestation, 1992,' guilty child pleaded to court that the district cause we years prison. to 50 was sentenced Asher was state the sexual assault 1983, alleging § a vio- under Becerra sued action, we affirm. process right substantive lation of Juan’s due BACKGROUND right bodily integrity, and violation to poli- equal protection because HISD from to with HISD was a Asher large- transferring to cy of troubled teachers charged with inde- he was to 1992. In 1987 protection minority equal ly schools. an incident cency arising from with a child appeal. superinten- claim was abandoned Elementary. Then HISD Frost alia, years before complained, dent, Raymond, suspended inter defendant Joan was a known assaults on charge, but he resumed Asher because and had committed ac- threat acquittal. After the teaching after is dis- jurisdiction claim after the sole federal were dismissed without state claims law § prejudice which allows 28 U.S.C. missed. supplemental to exercise the court decline

1Q45 give liability, acts with minor students. teacher can numerous sexual rise complained separate that the sexual abuse of Juan She and essential element of such a as a result of the conduct and delib- claim is that the abuse occur under color of officials, erate indifference of HISD and its “To state a claim under supervise plaintiff failed to train and its ... HISD must show that alleged misconduct, prevent employees deprivation person was committed act- adopted policy ing When, transfer- under color of state law.”7 defendants here, ring pedophiles alleged Asher and other from one constitutional violation is a another, terminating school to rather than violation of the Due Process Clause of the court, allowing Amendment, them. The district after lim- requirement Fourteenth discovery ited on the issue of immu- flows both from the component “state action” nity, granted summary judgment in favor of of the Fourteenth Amendment and the “un- appellees. requirement der color of’ state law of

§ 1983.8 The action” “state and “under color DISCUSSION requirements are identical in state law” this context.9 Taylor Indep. Doe v. Sch. Dist.2 is egregious As subject and cruel our circuit’s seminal ease on the as Asher’s acts were, liability liability necessarily under 1983 is 1983 for sexual misconduct in the to setting. occurring limited constitutional violations school This decision made three im portant holdings. color of state law. We held that “schoolchil “Our Constitution deals liberty bodily large gover- with the concerns dren do have a interest in their governed, integrity protected by pur- nors it does that is the Due Pro not port supplant to laying traditional tort law in cess Clause the Fourteenth Amendment down rules by regulate liability and that of conduct to abuse school for injuries living that employee right.”3 together attend violates that We further soci- 10 held, ety.” Supreme rejected purposes analyzing The has Court defense, approach immunity right that would clearly that this make “the Fourteenth addressing In Amendment a font of tort superim- established.4 vicarious liabili law to be ty, posed upon systems may recognized governments already local whatever we that supervisory personnel subject are not administered States.”11 liability liability § 1983 under a vicarious Taylor Doe v. addressed this issue. That However, theory.5 respondeat superior we case involved the sexual abuse of a student held that these defendants could be held teacher, Stroud, who was a coach and liable, under a “deliberate indifference” stan biology teacher. It was no secret dard, they if demonstrated deliberate indif community inap- school that Stroud behaved rights ference toward the constitutional of propriately towards female students.12 The the student.6 principal was of this behavior.13 The aware plaintiff, high teacher befriended the school A. State Action freshman, began exchanging and the two Although physi the law is gave gifts, clear notes at school. He her took her during day cal sexual abuse of a student to lunch a school and walked denied, (5th Cir.) (en banc), Dist., County Indep. 2. 15 F.3d 443 8. Doe v. cert. Rains 66 F.3d Sch. U.S. —, 70, 1402, (5th Cir.1995). 115 S.Ct. 130 L.Ed.2d 25 1406 — (1994). Id. Id. at 445. Williams, 327, 332, 10. Daniels v. 474 U.S. 106 662, 665-66, (1986). at 454-56. S.Ct. 88 L.Ed.2d 662 Davis, 701, 693, 11. Paul Id. at 452. 424 S.Ct. U.S. 96 1155, 1160-61, (1976). 47 L.Ed.2d 405 Id. at 453-54. 12. Doe v. 15 F.3d at 446. Atkins, 2250, 7. West v. 487 U.S. 108 S.Ct. 2254-55, 101 L.Ed.2d 40 13.Id. not acts were argument Stroud’s cials’ plaintiff biology class her class. of state law.16 under color class or do take tests required opin- “both on concurring engaged sex in his two Judge Higginbotham, work.14 for the grounds.”15 ion, action existed agreed school that state off the following reasons: Taylor in Doe v. majority opinion depriva- inquiry is whether The next requirement action the state discusses liberty under color tion of 4: footnote official did. Stroud’s I that it law. argue first and Caplinger Lankford and his sexual with Doe interactions under Col- not taken actions were Stroud’s together her constituted volvement by M.T. rely on D.T. They ofor spe- indivisible, relationship. The ongoing No. District Independent School gave Doe as her attention Stroud cial denied, Cir.)[, (10th cert. F.2d opportunity to him the teacher afforded L.Ed.2d U.S. author- He levered his influence. exert his three (1990) molested ], in which a teacher desires, his sexual ity press upon Doe while during the summer He grounds. school on and off while both basketball fundraising campaign in a treated differently than he treated Doe it to- made clear school camp: The gave her class. other members activity was fundraising her less work required of good- grades, orga was program but rather a school students, her to and allowed than other In community effort. volunteer nized as This liked in his classroom. behave as she however, took full advan case, Stroud this power an abuse manipulative course was and Doe’s teacher position as tage persuaded I am by the state. conferred required Doe to to seduce her. coach of state law. color acted under Stroud and in the classroom no work do little commendably Judge dissent Garwood’s spoke to one of also A’s. He gave her still inquiry this but recognizes the relevance raising her about teachers Doe’s other [D.T.], conclusion, relying on this contests Doe’s also Stroud was grade in that class. to have held not school coach was where a po exploited that he and coach basketball engag- of state law when color acted under physical contact first well. The sition as activity Un- in with students. ing sexual after a basketball Doe was had with Stroud D.T., however, Stroud in like the defendant grabbed he when game -November in before, during, and after teacher was Doe’s physical con kissed her. Stroud’s her and (em- at 1191 liaison. See id. their sexual Dur thereafter. Doe escalated tact with on vacation was phasizing that teacher took months ing next several Stroud the reaching in when molestation adjoining lab to an classroom Doe from color not act under that he did conclusion her. petted and he kissed room where law).17 period of time Stroud that same During majority opinion Significantly, both the fieldhouse in school’s Doe the also met quoted above concurring opinion and the place. As the activity took similar where reasoning of the with the quarrel have no if a “real recognized, in D.T. nexus” D.T., case dis- in find the Tenth Circuit activity out which exists between also Judge dissent tinguishable. Garwood’s duties the teacher’s occurs violation approval.18 D.T. cites teacher, then the obligations as D.T., allegedly molested three color of taken under conduct is teacher’s during the while summer 1188. As demonstrated Id. at state law. camp fundraising trip a basketball in a facts, that was the nexus by above Al- sponsored school. in this that was not clearly present missing in D.T. was on school circulated though flyers had been reject offi case. We therefore J., specially (Higginbotham, 461-62 17. Id. at 447. 14. Id. at omitted). (citations concurring) Id. at J., (Garwood, dissenting). at & n. Id. 466-67 452 n. 4. at grounds regarding camp, and a basket- school official. While there was evidence schooj that Asher first game played grounds had been befriended ball and shown a special school, interest Juan at there was money for camp,19 to raise the court held no,competent summary judgment evidence of that the sexual misconduct had not occurred . physical, sexual abuse at the school. Unlike under color of state law. Doe, Asher was not Juan’s teacher “be- conclude We that Asher’s sexual as fore, during, abuse, after” the nor saults on Juan Doe did not occur under color wrongful was this conduct “on and off school of state law. Our case is much to D.T. closer grounds.” On this evidence we hold that “ Taylor. than Doe v. The evidence of Asher’s there no ‘real nexus’ ... between the assaults in the record activity out of which the violation occurs and testimony mother, includes the the teacher’s obligations duties and as a sentencing hearing at Asher’s Asher teacher,” requires.21 Doe as carefully court. We have reviewed expert Plaintiff'offered affidavits to testimony evidence. indicates the effect that the began seduction of Juan sexual abuse of Juan Asher oc school, and the later sexual abuse would not occasions, August on two Sep curred 29 and have occurred if Asher had not first won example, tember testi trust and serving affection whole “friendly, pleasant, fied that he was gift- However, his teacher. Doe v. our giving” toward Juan “until the I end when court, cognizant that the Due Process Clause questions fell.” He then answered from the interpreted should not be as a “font of tort prosecutor “about the first sexual act on law to superimposed upon be sys whatever August the 29th.”20 may already tems administered States,”22 very clear holding in its The assaults occurred at Juan’s home. the constitutional violation did hot extend to first molested Juan more than five development of trust and affection.23 months after Juan withdrew from the school taught. where Asher Asher’s with contacts physical Because sexual Asher’s way Juan part thereafter were in no of abuse Juan did not occur .under color of employee, a duties as state not school- law, were state there was no action and no sponsored, reported any and were not of rights. Juan’s constitutional violation It D.T., forget, 19. 894 F.2d at 1183. that "I Iwish could but I can’t.” The peculiarly affidavits ‘contained information with- moved Becerra for a new trial after the court plaintiff. early April in the control the As of granted summary judgment, attaching affidavits 1995, plaintiff alleged in her amended second psychiatrist. of Juan and Juan's Becerra does complaint that Asher had fondled a Juan in class- specifically complain appeal on that the room, alleged August in her 1995 third trial, denying court erred in the motion for new egregious complaint amended sexual abuse but does discuss statements made in the two Further, off-campus.” “both in class and we affidavits, complains that the district court the with district court that affidavit Juan’s disregarding psychiatrist’s erred in the affidavit. only “vague unspecified made references to We review the district court's denial of a motion touching of Juan in class For exam- Asher.” for new trial under the abuse of discretion stan ple touching my it stated that Asher "first started Daniel, 178, Bailey dard. v. 967 F.2d 179-80 body lightly Similarly, while in class.” ex- the (5th Cir.1992). party alleged When a stated, offers new pert based on revelations made evidence, ly-discovered the district court should that Juan "felt that Mr. Asher had crossed the consider whether omitted evidence was avail the preferred physical line and violated his distance ” moving party prior able to the to the time for invading ‘personal space.' and was evidence, This filing response to the timely, even if deemed does not estab- Lavespere Niagara motion. Mach. & Tool that sexual lish abuse occurred at Works,Inc., 167, (5th Cir.1990), school, during period 910 F.2d 174-75 the Asher was Juan’s when denied, 859, 171, timing cert. 510 U.S. teacher. Given and substance of the evidence, say L.Ed.2d 131 we cannot two affidavits were new the court denying February day abused its first filed on discretion the motion for the same signed new trial. granting summary court its order judgment. Although expert opined that "[i]t Taylor, 15 F.3d at Doe 452 n. 4. typical undergone is that a victim who has such try suppress sexual trauma as Juan has would Paul, 701, 424 U.S. 693 at S.Ct. 1155 at possible,” details as much as Juan testified in 1160-61, 47 L.Ed.2d 405. regarding detail his sexual abuse at Asher’s state 1993, 445, 451, court trial in own affidavit states 23. Doe v. 15 F.3d at sexual acts of in various had underly- that he that, without necessarily follows violation, at” several can be no a teacher there “while misconduct ing constitutional district imposed on contact liability schools, sexual he had and that Taylor v.Doe supervisors. HISD,” individual or the teacher at was a “while he Juan supervisor element separate requires, as HISD,” or between at a teacher “while deliberate supervisor’s liability, that the no error There was December injury to a constitutional “caused difference ad- Deemed admissions. disregarding these addressing municipal lia- the student.”24 be used by party opponent cannot missions has stated Court Supreme bility, the Further, requests co-party.28' against a separate two us to requires analysis “proper con- only asked about for admissions is as- 1983 claim when issues different at HISD.” a teacher “while tacts (1) harm plaintiffs ... whether serted critical light they shed do not Hence (2) violation, if constitutional by a caused -with Juan contacts whether the is, inquiry responsible city so, whether school, elsewhere, or whether or at underlying occurred consti- Without violation.”25 at the time Asher violation, they element mu- occurred an essential tutional has missing. school-sponsored As our court liability in the course nicipal (1) rights finding that “[a]fter explained, activities. (2) color of state violation AFFIRMED. final a third and law, we ask only then do responsi- actors the state are question: Who AND REHEARING FOR PETITION ON violation?”26 constitutional ble for the REHEARING FOR SUGGESTION BANC EN B. Issues Other April dis complains that limiting its abused discretion trict court PER CURIAM: summary judg granting discovery prior A of Part at the end paragraphs two argued to the district ment. She opinion, 105 F.3d original in the summary judgment motions defendants’ preclude a determina- should not be read deposi before be considered should not nexus, supervi- that, given a real school and other school tion Raymond tion of defendant in the to a officials, deliberately is no indication there are indifferent who sors personal in these record that witnesses in her liberty interest constitutional student’s of Juan sexual abuse about Asher’s formation the state integrity themselves ac- bodily are or his moth to Juan available not otherwise tort, perpetrated the constitutional tors who of motion seeking party A continuance er. who ac- the individual regardless of whether obtain in order to physical contact with tually made illicit “why needs discovery show must further he acting under color student discovery additional how additional Rehearing DENIED Petition for mate issue discovery genuine will create judge in panel nor of this no member does not meet rial fact.”27 having on the court regular active service burden. Re- polled requested complains that Becerra also 35) (FRAP Banc, Rule and Local hearing En considering Asher’s in not court erred Rehearing Banc is Suggestion for Én against the as evidence deemed admissions DENIED. also requests for When other defendants. upon he propounded were admissions representing himself. prison, was in for admissions. requests answer the failed to deny to admit or requests asked Asher Inc., 989 F.2d added). Krim v. BancTexas (emphasis Group, 454 original). (5th Cir.1993)(emphasis in 1442 Heights, City U.S. 503 Harker

25. Collins Indus., Inc., Riberglass, v. Techni-Glass Inc. 1065-66, 117 L.Ed.2d Cir.1987); (11th 8A Charles A. F.2d (1992). & Marcus, L. Wright, Miller Richard Arthur R. & at 571-72 & Procedure Practice Federal Rains, at 1402. 26. Doe F.3d

Case Details

Case Name: Becerra v. Asher

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Feb 14, 1997

Citation: 105 F.3d 1042

Docket Number: 96-20401

Court Abbreviation: 5th Cir.