81 F.3d 1395 | 5th Cir. | 1996
Lead Opinion
After his daughter was assaulted and raped by a Hillsboro (Texas) Middle School (School) custodian, Plaintiff-Appellee John Doe (Doe), on behalf of his minor child, Jane Doe (Jane), brought this suit under 42 U.S.C. § 1983 and Title IX of the Education Amendments of 1972
I
FACTS AND PROCEEDINGS
A. INTRODUCTION
Doe filed this lawsuit, as next friend of Jane, asserting § 1983 and Title IX claims against the District,
At the time of the relevant events, Jane was 13 years old and a student at the School. In May 1993 at her teacher’s behest, Jane remained after school for additional academic work. Jane perceived that she would benefit from this additional work and felt “compelled to stay after school pursuant to the actual or apparent (and perceived) authority of her instructors.” Jane’s after-school studies were interrupted by her teacher who asked Jane to go upstairs and retrieve some additional supplies.
During this errand, a male custodian (Custodian) employed by the District, chased Jane into an empty classroom, locked the classroom door, and proceeded to assault and rape her. Jane did not disclose these events to anyone until Christmas, when her parents demanded that she explain her physical condition: Jane, it seems, was pregnant. The family went to the police who arrested the Custodian. Shortly after his arrest, the Custodian pleaded guilty to rape.
Even though Texas law requires sehool districts to investigate the criminal record of each prospective employee,
Additionally, during the 1993 school year, the School Officials received reports that members of the Staff had sexually abused students at the Sehool. These reports included incidents of “fondling students, voyeurism, and the like.” The School Officials neither verified nor investigated these reports; instead, the Staff was told to “stay away from the little white girls.”
In his complaint, Doe contends that both the inadequate hiring procedures and the failure to investigate reports of sexual abuse demonstrate the School Officials’ deliberate indifference to Jane’s constitutional rights. Doe concludes that, as a direct result of the School Officials’ acts and omissions, Jane’s constitutional right to bodily integrity was violated: The Custodian, an unsupervised criminal with the keys to the schoolhouse, had raped her.
C. The Motions to Dismiss
The School Officials (but not the District) responded by filing motions, under Rule 12(b)(6), requesting the court to dismiss Jane’s Title IX and § 1983 claims. The district court dismissed Doe’s initial complaint without prejudice, but suggested that he refile his complaint to allege (if possible) that Jane’s assailant had a criminal record. Following the court’s suggestion, Doe amended his complaint to contain allegations that the Custodian had a criminal record, albeit the details of that record were not specified.
The Sehool Officials renewed their motions to dismiss all of Doe’s claims. The district court denied the renewed motion to dismiss the § 1983 claim, stating that “the Court is persuaded Plaintiff has adequately stated a claim for relief.” The court neither commented nor ruled on the Title IX claim. The
II
DISCUSSION
A. JURISDICTION
Before addressing the pleadings complained of in this appeal, we examine the basis for our jurisdiction.
1. Title IX Claim
The district court does not appear to have ruled on the School Officials’ motion to dismiss Jane’s Title IX claim against them. The apparent reason for not ruling is that, despite the fact that Doe never asserted a Title IX claim against the School Officials,
As a general matter, we do not have interlocutory jurisdiction over denials of motions to dismiss: Such pretrial orders are not “final decisions” for the purposes of 28 U.S.C. § 1291.
Additionally, even if we were to take the next step and assume further that we have interlocutory jurisdiction to review such an order in the Title IX context, we would still lack personal jurisdiction over the relevant party. The only party against whom Jane has asserted a claim under Title IX is the District, but the District is not a party to this appeal. Obviously we cannot dismiss a claim against a party who has not appealed. Thus, we hold that we lack appellate jurisdiction over both the Title IX issue and the District as the relevant party. In so doing, however, we neither express nor imply an opinion on the sufficiency of Doe’s Title IX complaint against the District; we simply dismiss the
2. Section 1983 Claims
Jane’s § 1983 claims are another matter altogether. In Mitchell v. Forsyth,
Unlike Johnson, which was reviewed at the summary judgment-level, the instant ease involves the complaint-level denial of a motion to dismiss under Rule 12(b)(6). In the Rule 12(b)(6) context, there can never be a genuine-issue-of-fact-based denial of qualified immunity, as we must assume that the plaintiffs factual allegations are true.
B. STANDARD OP REVIEW
A district court’s ruling on a Rule ' 12(b)(6) motion is subject to de novo review.
C.Elliott v. Perez and The HEIGHTENED Pleading RequiRement
Before turning to the sufficiency of Doe’s complaint, we must determine whether any statements therein should be excluded as conclusionary. The School Officials assert that Doe’s complaint is “a paragon of poetic license” and fails to satisfy the heightened pleading requirement of Elliott v. Perez.
The School Officials speciously “cherry pick” paragraphs from Doe’s complaint to quote to us, then assert that the whole complaint is conclusionary. When examined in isolation, the particular paragraphs selectively quoted by the School Officials do appear eonclusionary; but when those quoted paragraphs are read in pari materias with the factual allegations contained in the preceding dozen-plus paragraphs of Doe’s complaint, it becomes obvious that the School Officials have self-servingly quoted only parts of the complaint. In short, the quoted paragraphs do not fairly represent the complaint as a whole. We conclude that when Doe’s complaint is read in its entirety it is seen to plead Jane’s claims with more than enough particularity to meet the requirements set forth in Elliott.
D. Has Doe Stated A Claim UndeR § 1983?
To state a claim under § 1983, “a plaintiff must (1) allege a violation of rights secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.”
E. Jane’s Right To Bodily Integrity
In this circuit, “a supervisory school official can be held personally liable for a subordinate’s violation of an elementary or secondary school student’s constitutional right to bodily integrity in a physical sexual abuse case,” when “the official, by action or inaction, demonstrates a deliberate indifference to [a student’s] constitutional rights that results in the molestation of school children.”
1. The Hiring Policy: Inadequate?
To prove that a hiring policy violated her rights under § 1988, Jane must show that (1) the hiring procedures were inadequate; (2) the school officials were deliberately indifferent in adopting the hiring policy; and (3) the inadequate hiring policy directly caused the plaintiffs injury.
First, Doe’s allegations that the School Officials failed to investigate the criminal records of prospective employees satisfies the inadequacy element. Common sense recommends — and state law demands — that, in the interest of the safety of school children, school officials investigate the criminal histories of prospective school employees.
Second, the hiring inadequacies alleged here reveal a deliberate indifference to Doe’s welfare. A hiring process demonstrates “deliberate indifference,” when it constitutes such recklessness or gross negligence as to amount to conscious indifference to the plaintiffs constitutional rights.
[I]f a section 1983 claim may arise from egregious hiring practices ... we would ... require a plaintiff to establish actual knowledge of the seriously deficient character of an applicant or a persistent, widespread pattern of hiring policemen, for instance, with a background of unjustified violence.31
Just as the histories of prospective police officers must be scrutinized routinely for violence or unlawful conduct in the interest of the public’s safety, the criminal histories of prospective school employees must be scrutinized in the interest of students’ safety.
Doe has alleged that one-third of the School’s Staff in 1993 were convicted criminals, many of them violent criminals. Surely the District’s hiring and giving the schoolhouse keys to even one convicted murderer constitutes the hiring of an applicant with “seriously deficient character.” When that is multiplied to the point that a significant fraction of the custodial staff — here, one-third— consists of convicted criminals, “a persistent, widespread pattern” of hiring school employees with a background of crime and violence is manifested. Doe has satisfied the second element of his hiring claim.
Third, a jury could reasonably conclude that when school officials hire a staff, one-third of whom are violent criminals, give those criminals the keys to the schoolhouse, and place them in constant contact with stu
In sum, the egregious nature of the criminal records alleged, and the sheer number of Staff members alleged to have criminal records, move Jane’s inadequate hiring claim beyond mere negligence and into the realm of a constitutional tort. Although surviving summary judgment, much less proving these allegations by a preponderance of the evidence, may be a daunting task, we cannot say “that it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief.”
2. Supervision: Deliberate Indifference?
To plead a valid failure-to-supervise claim, Doe must allege facts sufficient to present the following elements: (1) the defendants learned of facts or a pattern of inappropriate sexual behavior by subordinates pointing plainly toward the conclusion that the subordinates were sexually abusing the students; (2) the defendants demonstrated deliberate indifference toward the constitutional rights of the student by failing to take action that was obviously needed to prevent or stop the abuse; and (3) such failure caused a constitutional injury to the student.
First, Doe alleges that the School Officials received repeated reports that Staff members had sexually abused students. Although these reports do not appear to have identified individual employees or students by name, Doe’s allegations that the School Officials responded to these reports with ostrich-like avoidance satisfies the first element. At this early pleading stage, it is unnecessary to produce specific names and exact dates. Doe has alleged that the School Officials received a number of reports plainly pointing to the inescapable conclusion that Staff members were sexually abusing students. These allegations are sufficient to merit at least limited discovery. After limited discovery, however, if the evidence cannot sustain the weight of these allegations, summary judgment presents an effective and efficient tool to terminate the inquiry and the case at a sufficiently early and minimally burdensome stage. Although Doe has not alleged that “X School Official” plainly knew that “Y Staff member” was sexually abusing “Z student,” wé conclude that allegations that School Officials ignored repeated reports that Staff members sexually abused students are sufficient to survive a motion to dismiss.
On the second “deliberate indifference” element, Doe alleges that the School Officials (1) knew or should have known that one-third of the Staff members had criminal records, (2) received reports that Staff members were sexually abusing students, and (3) did absolutely nothing about it. Such inaction rises to the level of total abdication of the duty to protect school children from sexual abuse by state actors, and, if proved, would demonstrate deliberate indifference to Jane’s constitutional rights. Moreover, a jury could reasonably conclude that such deliberate indifference was the proximate cause of Jane’s being raped. Accordingly, with respect to Jane’s failure-to-supervise claim, we conclude that Doe’s complaint sufficiently alleges that the School Officials caused a deprivation of Jane’s constitutional rights “under color of state law.”
3. Other Theories of Liability Only Confuse the Issue
In the process of stating the above described deficient hiring and failure-to-supervise claims, Doe indiscriminately jumbles into the complaint the language and elements of
a. State-Created Danger Doctrine
Regarding the state-created danger theory, other circuits have held that when a state actor knowingly places a person in danger, the Due Process Clause of the Constitution renders siich state actor accountable for the foreseeable injuries that result from his conduct, whether or not the victim was in formal “custody.”
b. Special Relationship Doctrine
In like manner, a special-relationship claim under DeShaney
F. Qualified Immunity
The School Officials assert that even if Doe has stated a claim against them, they can invoke qualified immunity to require the dismissal of Jane’s § 1983 claims. We disagree. Qualified immunity shields public officials from exposure to extensive discovery, trial, and liability for alleged constitutional torts if their questioned conduct does not violate clearly established law effective at the time of the alleged tort.
At least since 1987, the law has been clearly established that (1) school children do have a liberty interest that is protected by the Due Process Clause of the Fourteenth Amendment and (2) physical sexual abuse by a school employee violates that interest.
Ill
THE DISSENT
In closing, we feel constrained to address briefly our colleague’s dissent. We begin by noting his candid acknowledgment that the foots of his disaffection run deeper than this case, i.e., that his larger disagreement derives from this court’s en banc holding in Taylor.
Turning to issues that we can address today, we perceive a fundamental error in the dissent’s “state action”-inquiry when it mistakenly focuses on the rapist (Custodian), rather than on the defendant School Officials who instituted and conducted the process that put Doe in harm’s way, in the person of the Custodian. This circuit held as early as 1981 that “[t]he right to be free of state-occasioned damage to a person’s bodily integrity is protected by the fourteenth amendment guarantee of due process.”
In this Rule 12(b)(6) appeal, we examine the pleadings — and .only the pleadings — to determine whether, by (1) ignoring state law that mandates pre-hiring background checks, (2) hiring a custodial staff of whom one-third are criminals, and (3) ignoring or suppressing prior reports of sexual molestation and other crimes by members of that staff, the School Officials were deliberately indifferent to Doe’s constitutional right to bodily integrity. Then, as the dissent agrees, we determine whether there was a “real nexus” between the activity out of which the violation occurred and the duties and obligations of the School Officials.
We have done precisely that. The relevant activities out of which the violations occurred were the hiring and supervision practices of the School Officials, not the janitorial and maintenance activities of the Cus
It is in the foregoing framework that we respectfully but strongly disagree with the dissent: It is not a “far leap” — if indeed it is a leap at all — from Taylor to hold that the hiring of a custodial staff rife with criminals, giving them the keys to the schoolhouse, and authorizing them to roam the halls when and where vulnerable students are likely to be encountered, and, despite prior reports of sexual abuse, to do so in the absence of adequate supervision, obviously does create a “real nexus” between the rape of Doe and the deliberately indifferent performances of the School Officials’ duties and obligations.
Certainly, the set of school personnel who are potential state actors is not so narrowly limited, as the dissent would instruct, that it includes only classroom teachers and athletic coaches; rather that set circumscribes the entire spectrum of school employees, and even independent contractors, whom the School Officials through their hiring, contracting, and supervising responsibility, place on a collision course with public school students. We neither hold nor imply the ludicrous conclusion that the course and seope of a school custodian’s employment could ever include rape; we do, however, hold that when a school employee is rightfully on the premises, during school hours, ostensibly performing his assigned duties, and — predictably—finds himself alone with a student, constitutional deprivations perpetrated by that school employee on the person of that student might be found to have occurred in the course of employment.
But, again, that simply is not the pertinent question; rather, the question is whether the School Officials who hired and then failed to supervise the Custodian, thereby creating the circumstances that brought him in contact with Doe, did so under color of state law. At this threshold pleading phase of the case, Doe’s allegations are more than sufficient to demonstrate that they did, thereby stating a cause of action sufficient to avoid a qualified immunity dismissal under Rule 12(b)(6).
IV
CONCLUSION
For the forgoing reasons, the School Officials’ interlocutory appeal of the district court’s putative refusal to dismiss Jane’s Title IX claim is DISMISSED for want of jurisdiction. The district court’s order denying the School Officials’ motion to dismiss Jane’s § 1983 claims, however, is affirmed and those claims are remanded for further proceedings.
DISMISSED, in part; AFFIRMED, in part; and REMANDED.
. 20 U.S.C. §§ 1681-88.
. The District was not a party to this motion and is not a party to this appeal.
. Title IX reads in pertinent part, as follows:
No person in the United States shall, on the basis of sex, he excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ....
20 U.S.C. § 1681(a).
. The members of the Board include Larry Zab-cik, James Maass, Teresa Davis, Carol Beyer, Roy Young, Norman Baker, Richard Sewall.
. This appeal involves the review of a denial of a Rule 12(b)(6) motion to dismiss on the basis of qualified immunity. All well-pleaded facts must
. The Texas Education Code reads, in pertinent part, as follows:
(a) A school district shall obtain criminal history record information that relates to an applicant to whom an offer of employment is béing considered by the district....
Tex.Educ.Code Ann. § 21.917 (West 1987 & 1995 Supp.)
. Doe also alleges, in the alternative, that if the Defendants did check the criminal histories of prospective employees, then they were deliberately indifferent in hiring known criminals for the maintenance staff in a middle school. As we review the facts alleged in the complaint in the light most favorable to Doe, we will assume for the purposes of this appeal that the Defendants failed altogether to investigate the criminal histories of prospective employees.
. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987) (“This Court must examine the basis of its jurisdiction, on its own motion, if necessary.”).
. Doe has asserted a Title DC claim against the District only. See Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) (holding that Title DC affords the full range of remedies to plaintiff's suing a school system receiving federal funds). He has not asserted a Title DC claim against the School Officials in their individual capacities. Although we have yet to address the issue, the district courts in this circuit have held that a Title DC claim may not be asserted against an individual. See Leija v. Canutillo Indep. Sch. Dist., 887 F.Supp. 947, 953 (W.D.Tex.1995); Bowers v. Baylor University, 862 F.Supp. 142, 145 — 46 (W.D.Tex.1994) (citing Doe By And Through Doe v. Petaluma City Sch. Dist., 830 F.Supp. 1560 (N.D.Cal.1993)); see also Slaughter v. Waubonsee Community College, 1994 WL 663596, at *3 (N.D.Ill.1994) ("[T]he Court concludes that an action for individual liability cannot be brought pursuant to Title DC_); Seamons v. Snow, 1994 WL 560448, at *3 (N.D.Utah 1994) ("Although the Supreme Court has found that Title DC provides a damages remedy, that remedy is available only when the suit is brought against an 'education program or activity receiving Federal financial assistance,’ not in suits against individuals.” (citations omitted)). Moreover, nothing in Jane's complaint suggests that she is asserting a Title DC violation against the School Officials through § 1983.
.See Sorey v. Kellett, 849 F.2d 960, 961 (5th Cir.1988) ("Under 28 U.S.C. § 1291, the courts of appeals have jurisdiction over ‘final decisions’ of the district courts. Ordinarily, this section precludes review of a district court’s pretrial orders until appeal from the final judgment.”).
. 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).
. Id. at 530, 105 S.Ct. at 2817; see. also Hale v. Townley, 45 F.3d 914, 918 (5th Cir.1995) ("An appellate court has jurisdiction to review an interlocutory denial of qualified immunity only to the extent that it ‘turns on an issue of law.' ” (quoting Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817)).
In Mitchell, the Court held that a district court’s order denying a defendant’s motion for summary judgment was an immediately appeal-able collateral order under Cohen v. Beneficial Indus. loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), where (1) the defendant was a public official asserting a defense of immunity, and (2) the issue appealed concerned whether or not certain given facts showed a violation of clearly established law. Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816-17.
. Johnson v. Jones, - U.S. -, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).
. Id. at-, 115 S.Ct. at 2156 (holding that “a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial”) (emphasis added).
. Id. at-,115 S.Ct. at 2158.
. Id. at-, 115 S.Ct. at 2159.
. See Campbell, 43 F.3d at 975.
. Jefferson v. Ysleta Indep Sch. Dist., 817 F.2d 303, 304 (5th Cir.1987) (holding that the denial of a Rule 12(b)(6) motion to dismiss based on qualified immunily “poses solely a question of law_”).
. Cinel v. Connick„ 15 F.3d 1338, 1341 (5th Cir.), cert. denied, -— U.S.-, 115 S.Ct. 189, 130 L.Ed.2d 122 (1994); Jackson v. City of Beaumont Police Dept., 958 F.2d 616, 618 (5th Cir.1992).
. 5A Charles A. Wright & Arthur R. Miller, Federal Practice And Procedure § 1356, at 294 (1990).
. Campbell, 43 F.3d at 975.
. Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir.1994).
. 751 F.2d 1472 (5th Cir.1985) (the complaint must "state with factual detail an particularity the basis for the claim which necessarily includes why the defendant-official cannot successfully maintain the defense of immunity.”). A majority of the Fifth Circuit has held that the heightened pleading of Elliott survived Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). See Schultea v. Wood, 47 F.3d 1427, 1430 (5th Cir.1995) (enbanc).
. Leffall, 28 F.3d at 525 (citations omitted); accord Resident Council of Allen Parkway Village v. United States Dep’t of Hous. & Urban Dev., 980 F.2d 1043, 1050 (5th Cir.), cert. denied,-U.S. -, 114 S.Ct. 75, 126 L.Ed.2d 43 (1993).
. The School Officials insist that the "under color of state law” element is lacking because either (1) the Custodian did not act "under color of state law" or (2) because none of the School Officials actually participated in the rape. Neither of these contentions has merit. First, the Custodian, a state employee who was "on the clock” when he raped Doe at the School was a state actor. Second, the School Officials’ hiring policies as well as their supervisory actions and decisions are "under color of state law.” An official’s actions do not cease to be under color of state law merely because the official acts beyond the scope of the authority granted by state law. See United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941) ("Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is taken 'under color of state law.”).
. Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 454 (5th Cir.1994) (en banc), cert. denied, - U.S. -, 115 S.Ct. 70, 130 L.Ed.2d 25 (1995).
. Benavides v. County of Wilson, 955 F.2d 968, 972 (5th Cir.) (citing City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)), cert. denied, 506 U.S. 824, 113 S.Ct. 79, 121 L.Ed.2d 43 (1992).
. See Tex.Educ.Code Ann. § 21.917.
. See Wassum v. City of Bellaire, Tex., 861 F.2d 453, 456 (5th Cir.1988).
. See Stokes v. Bullins, 844 F.2d 269 (5th Cir. 1988) (questioning prospective police officer on background and checking local criminal record, but not ordering a National Crime Center Information Report, was not deliberate indifference in the hiring process); Wassum, 861 F.2d at 456 (failure to check employment record for more than five years amounted to negligence, not deliberate indifference in the hiring process).
.Stokes 844 F.2d at 275 n. 9 (emphasis added); see also Wassum, 861 F.2d at 456 (quoting this passage with approval).
. See Doe v. Rains Indep. Sch. Dist., 66 F.3d 1402, 1407-08 (5th Cir.1995).
. Leffall, 28 F.3d at 524.
.See Hagan v. Houston Inclep. Sch. Dist., 51 F.3d 48, 51 (5th Cir.1995) (citing Taylor, 15 F.3d at 454).
. DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989).
. Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198 (5th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 1361, 131 L.Ed.2d 218 (1995).
. Leffall, 28 F.3d at 530 ("We have found no cases in our circuit permitting § 1983 recovery for a substantive due process violation predicated on a state-created danger theory_”); see also Johnson 38 F.3d 198.
In Johnson, the court assumed arguendo, that such a cause of action existed to determine whether a student, who was killed by a stray bullet shot by a non-student during a school fight, had stated a claim under § 1983 against the school principal and the school district. Ultimately, the court held that these facts, albeit tragic, are not an example of when "deliberate, callous decisions to interpose a [student] in the midst of a criminally dangerous environment.”
. Johnson, 38 F.3d at 201 ("[T]he environment must be dangerous; they must know that it is dangerous; and to be liable, they must have used their authority to create an opportunity that would not have otherwise for the third party’s crime to occur.”) (emphasis added).
. 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989).
. 28 F.3d at 529. (emphasis added).
. Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir.1992) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)).
. Id. at 305 (citing Siegert■ v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991)).
. Id. at 305-306 (citing Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987)).
. Taylor, 15 F.3d at 455 ("The ‘contours’ of a student's substantive due process right to be free from sexual abuse and violations of her bodily integrity were clearly established in 1987.").
. See Dissent, infra at 1408 n. 2. (school children have a constitutional right to bodily integrity and sexual abuse violates a school child’s right to bodily integrity).
. Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981).
. Rains, 66 F.3d at 1407-08.
Dissenting Opinion
dissenting:
Today we are faced with yet another tragic case involving the sexual assault of a child by a school employee. Despite the horrific nature of this case, I dissent from the majority’s holding that the school officials are not entitled to qualified immunity.
Before determining whether a supervisory official can be held liable under § 1983, we must first find that (1) a rights violation occurred (2) under color of state law. Rains, 66 F.3d at 1407. Jane Doe alleges that her Fourteenth Amendment right to bodily integrity was violated. She relies on our decision in Taylor, 15 F.3d 443, which stated that “bodily integrity is necessarily violated when a state actor sexually abuses a schoolchild.” (emphasis added).
The majority fails to adequately address the color of state law requirement, despite its conclusion that Doe has alleged a violation of a constitutional right. The majority first states that the “color of state law” requirement is not at issue in this appeal,
I can perceive of no difference between the majority’s analysis and that employed under the state-created danger theory, which the majority specifically rejected in Part E.3.a.
In this case, the majority concludes that because the school officials were deliberately indifferent in instituting and conducting the process that “put Doe in harm’s way,” they are liable for her injuries under § 1983. In reaching this conclusion, the majority focuses on the dangerous environment that the school officials were deliberately indifferent in creating. The majority alleges that the officials created this environment by inadequately hiring and indifferently supervising a custodial staff one-third of whom were criminals, “giving them the keys to the schoolhouse, and authorizing them to roam the halls when and where vulnerable students are likely to be encountered, and despite prior reports of sexual abuse, to do so in the absence of adequate supervision.” Given this dangerous environment, the majority concludes that there is “obviously” a “ ‘real nexus’ between the rape of Doe and the deliberately indifferent performances of the School Officials’ duties and obligations.” According to the majority, the school officials, therefore, acted under color of state law and are liable under § 1983 for the harm that Doe suffered regardless of whether the person who raped her was a state actor. The majority, in essence, concludes that the school officials, not the custodian, violated Jane’s right to bodily integrity.
This interpretation is a complete abrogation of Doe v. Taylor. On the one hand, the majority accepts Taylor’s bodily integrity theory, but on the other hand, it rejects the premise — that to constitute a constitutional violation, it must be an employee state actor who sexually assaults the student. Taylor specifically found that the Taylor Doe’s right to bodily integrity was violated by a person acting under color of state law. Taylor, 15 F.3d at 452 n. 4. The court stated that a “real nexus” existed between the teacher’s' duties and obligations as a teacher and the activity out of which the violation occurred. Id. It was only after the court established that Doe had suffered a violation of her right to bodily integrity by a person acting under color of state law, the teacher/coaeh, that the court proceeded to address which, if any, supervisory officials could.also be liable to Doe under § 1983. The majority today skips this first step, implicitly creating a new cause of action similar to the state-created danger theory.
I respectfully dissent from the majority opinion on this issue and would hold that because the custodian was not a state actor when he raped Jane, there is no underlying constitutional violation for which to hold the supervisory officials liable under § 1983. Not all unlawful actions taken by state officials are taken under color of law. When acting pursuant to a.general grant of authority, a state official acts under “color of state law” either when he acts within that general grant of authority or when he exceeds the general grant of authority given. See id. at 485 (Garza, J. dissenting) (citing relevant case law). However, a state official does not act under “color of state law” when he acts in the complete absence of any authority. Id.; see Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (searches of homes); Fee v. Herndon, 900 F.2d 804 (5th Cir.) (classroom discipline), cert. denied, 498 U.S. 908, 111 S.Ct. 279, 112 L.Ed.2d 233 (1990); see also Barney v. City of New York, 193 U.S. 430, 433-38, 24 S.Ct. 502, 503, 48 L.Ed. 737 (1904) (holding that there is no state action when the offending act was not authorized by the state and was forbidden by the state legislature).
The Supreme Court has employed different standards for determining state action, but has emphasized that it is necessarily a fact intensive inquiry. Lugar, 457 U.S. at 939, 102 S.Ct. at 2755. In determining state action and color of state law in the context of public schools, federal courts have focused on whether there was a “real nexus” between the school employee’s duties and obligations to the school and the activity out of which the violation occurs. Rains, 66 F.3d at 1406-07; Taylor, 15 F.3d at 452 n. 4; D.T. by M.T. v. Indep. Sch. Dist. No. 16, 894 F.2d 1176, 1188 (10th Cir.), cert. denied, 498 U.S. 879, 111 S.Ct. 213, 112 L.Ed.2d 172 (1990). It is a far leap from the school teacher in Taylor, who used his position and authority as a teacher to sexually abuse a student, to a custodian who, lacking any authority over the students,
If the custodian’s actions constitute state action, then every intentional tort or criminal act committed by a state official or employee could result in a constitutional violation, actionable under § 1988. The Supreme Court has rejected this approach. See Parratt v. Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981) (concluding that the drafters of the Fourteenth Amendment did not intend the Amendment to be “ ‘a font of tort law to be superimposed upon whatever systems may already be administered by the States’ ”) (quoting Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976)); Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979) (“Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law.”). By shifting the focus from the individual state actor to the supervisory officials, the majority has made the school officials liable for private conduct that proximately results from the officials’ actions. The Supreme Court has also rejected this approach. See DeShaney, 489 U.S. at 197, 109 S.Ct. at 1004 (stating that “a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause”).
Because the actions of the custodian in this case fall completely outside of the scope of his employment with the school district, and are proscribed by the state of Texas, I would hold that the custodian was not a state actor when he raped Doe. Therefore, Doe has not alleged a constitutional violation, and the defendants are entitled to qualified immunity.
Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.
ORDER
June 17, 1996
BY THE COURT:
A majority of the judges in active service having determined, on the court’s own motion, to rehear this case en banc,
IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.
. I concur in Parts X, XI. A., B., and E.3a. and b. of the majority opinion.
. Although we are bound by Fifth Circuit precedent, I note that the Supreme Court has yet to rule on whether the right to bodily integrity includes the right to be free from sexual assault. See Planned Parenthood v. Casey, 505 U.S. 833, 849-51, 112 S.Ct. 2791, 2806, 120 L.Ed.2d 674 (1992) (citing cases defining the contours of the substantive due process right to bodily integrity). I find this troubling because the Court has stated on several occasions that it “has always been reluctant to expand the concept of substantive due process because the guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins v. City of Harker Heights, Texas, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992); Albright v. Oliver, • — • U.S. -, --, 114 S.Ct. 807, 812, 127 L.Ed.2d 114 (1994).
I also note that only one other circuit has definitively held that the substantive due process right to bodily integrity includes the right to be free from sexual abuse or rape. See Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 727 (3d Cir.1989) ("[A] student’s right to bodily integrity, under the Due Process Clause, [encompasses] a student’s right to be free from sexual assaults by his or her teachers.”), cert. denied, 493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990); cf. Doe By and Through Doe v. Petaluma City Sch. Dist., 54 F.3d 1447, 1451 (9th Cir.1995) (citing Taylor, 15 F.3d 443 with approval but as inapplicable to the case before the court). ,
Recently, the Sixth Circuit, sitting en banc, commented on our conclusion that the right to bodily integrity includes the right to be free from sexual assault. The court stated;
All of these civil decisions, rather than pointing to precedent establishing the right, make assertions such as: "surely the Constitution protects a schoolchild from physical abuse ... by a public schoolteacher,” Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 451 (5th Cir.1994) (en banc); or “the notion that individuals have a fundamental substantive due process right to bodily integrity is beyond debate,” Walton v. Alexander, 44 F.3d 1297, 1306 (5th Cir.1995) (Parker, J., concurring). These broad statements are not supported by precedent indicating that a general constitutional right to be free from sexual assault is part of a more abstract general right to "bodily integrity.”
United States v. Lanier, 73 F.3d 1380, 1388 (6th Cir.1996) (en banc) (concluding that “sexual assaults may not be prosecuted as violations of a constitutional substantive due process right to bodily integrity” under 18 U.S.C. § 242).
. In making this assertion, the majority relies on the fact that although the district court denied the defendants' motion to dismiss for failure to state a claim and qualified immunity, only the qualified immunity defense is subject to interlocutory appeal. Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303, 304 (5th Cir.1987). However, the majority’s approach ignores the fact that to establish a constitutional violation, Doe must prove state action which is identical to proving "color of state law” under § 1983. Rains, 66 F.3d at 1406.
. The majority’s analysis is also similar to that employed under the special relationship theory of liability. The special relationship theory imposes on the state "affirmative obligations of care and protection ... when the state ‘takes a person into its custody and holds him there against his will.' ” Johnson, 38 F.3d at 202 (quoting DeShaney v. Winnebago County Dept. of Social Serv’s., 489 U.S. 189, 199-200, 109 S.Ct. 998, 1005-06, 103 L.Ed.2d 249 (1989)). Where a special relationships exists, the state can be liable for harm inflicted by a private party. See DeShaney, 489 U.S. at 199-200, 109 S.Ct. at 1005-06 (citing Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) as holding that Fourteenth Amendment requires state to use reasonable measures to protect involuntarily committed mental patients from themselves and others). The majority explicitly rejects the special relationship theory in this case, stating that the doctrine only applies in cases where third parties inflict the harm. Since the custodian was a state actor, the majority concludes, the special relationship theory is not applicable in this case. However, as indicated earlier, this conclusion is difficult to reconcile with the majority’s assertion in Part III that "In this opinion, we hold nothing more than that Doe has adequately pled that the School Officials (as distinguished from the Custodian, who is not even a defendant in this action) acted under color of state law." To the extent that the majority opinion does not hold that the custodian was a state actor or acting under color of state law, yet the state is still liable for the harm he inflicted, this is similar to the duty of care and protection required in special relationship cases. However, this is disturbing since neither the Fifth Circuit nor the majority opinion has ever held that a special relationship exists between the state and public school students. Johnson, 38 F.3d at 203; see also Walton v. Alexander, 44 F.3d 1297, 1305 (5th Cir.1995) (en banc) (holding that there is no “special relationship” when a student voluntarily resides at a state school).
. For the foregoing reasons, I would also dissent from the majority’s opinion in Part II. C holding that Doe's amended complaint meets the heightened pleading requirement of Elliott v. Perez, 751 F.2d 1472 (5th Cir.1985). The complaint states that the custodian was a state actor because he was a school employee and because he was able to accomplish the assault solely because of the actions and omissions of the School Officials. This does not constitute “detailed facts supporting the contention that the plea of immunity cannot be sustained.” Id. at 1482. I would therefore hold that Doe also failed to satisfy the heightened pleading requirement, and thus that her complaint should be dismissed.
