                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                        UNITED STATES COURT OF APPEALS
                             FOR THE FIFTH CIRCUIT                     May 29, 2007

                           _______________________               Charles R. Fulbruge III
                                                                         Clerk
                                 No. 05-20988
                           _______________________

                                 HALEY KING,

                                                       Plaintiff-Appellant,

                                     versus

               CONROE INDEPENDENT SCHOOL DISTRICT; ET AL.,

                                                                 Defendants,

          CONROE INDEPENDENT SCHOOL DISTRICT; DON STOCKTON,

                                                      Defendants-Appellees.


           On Appeal from the United States District Court
             for the Southern District of Texas, Houston
                           No. 4:03-CV-1295


Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges.

PER CURIAM:*

              Haley King appeals the district court’s grant of summary

judgment to defendants Conroe Independent School District (“CISD”)

and Principal Don Stockton (“Stockton”) on her claims arising out

of   sexual    abuse     committed   against   her   by   Felicia   Shupp,      a

volleyball      coach    employed    by   CISD.      Having   carefully      and

independently reviewed the record, and having found no reversible

error, we AFFIRM.


      *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
           The   summary   judgment        evidence   reveals        the   following

details. What began as a friendship between a coach and a student-

athlete during the 1997-1998 school year, when King was an eighth-

grade student at CISD’s McCullough Junior High School, erupted into

a physical relationship during the summer of 1998, and shortly

thereafter evolved into a long period of frequent sexual contact.

           In the fall of 1998, as the physical abuse was just

beginning,     Ruth   Stayton,    a   parent    of    a    McCullough      student,

overheard her son and his friend discussing an “affair” between a

female coach and a female student, in which the student and coach

were seen kissing and passing notes.             She reported what she had

heard to McCullough principal Don Stockton, but did not give her

own name and could not identify the student.1                   The conversation

occurred in a busy hallway and lasted only a few minutes.                  Stockton

stated he was unaware of any such relationship and did not think

the report was true, but that he would speak with Shupp.                   Stockton

and vice-principal Gale Drummond later met with Shupp.                        Shupp

denied any inappropriate relationship, and Stockton and Drummond

warned her to keep her relationships with students professional at

all   times.     Curiously,      Stockton    claims       not   to   remember   the

conversation with Stayton or the meeting with Shupp, although he


      1
            Stayton’s recollections differ as to whether she identified the
coach. In her 2002 statement to police, Stayton claimed she told Stockton she
“thought the name of the coach was Shupp.” However, in her 2004 affidavit, she
states it was Stockton who mentioned Shupp by name. Nonetheless, it is clear
that Stockton knew to which coach Stayton was referring, as Shupp was the only
coach with whom he subsequently met to discuss the alleged abuse.

                                       2
does not deny they occurred.2        No further action or investigation

was taken by Stockton or other CISD officials.

            The abuse finally ended in December 2001, almost three

and a half years after it had begun.                  In January 2002, King

reported Shupp to the police.        Shupp pled guilty to sexual assault

of a child and was sentenced to seven years deferred adjudication

and forty-five days in the county jail.

            In April 2003, King sued CISD, Stockton, and Shupp,

asserting violations of 42 U.S.C. § 1983 and Title IX, 20 U.S.C.

§ 1681, as well as state law claims of negligence and gross

negligence. After dismissing the state law claims and severing the

case against Shupp, the district court granted summary judgment to

Stockton based on qualified immunity, and later granted summary

judgment to CISD.     The district court also denied King’s motion to

enlarge time to conduct additional discovery.                King now appeals.

            This court reviews the district court’s grant of summary

judgment de novo, applying the same legal standards as the district

court. Mayo v. Hartford Life Ins. Co., 354 F.3d 400, 403 (5th Cir.

2004).      Summary    judgment     is       proper   when    “the   pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled



      2
            Stockton claims that he has no memory of the sexual abuse
allegations. Stockton’s memory deficiencies, however, are ultimately irrelevant
to the legal analysis.

                                         3
to a judgment as a matter of law.”          FED. R. CIV. P. 56(c).      The

court must review the facts in the light most favorable to the

nonmovant.    Walker v. Thompson, 214 F.3d 615, 624 (5th Cir. 2000).

            King alleges that Stockton violated § 1983 because he was

the principal of the school where Shupp worked and knew or was

placed on notice of, but failed to stop, the sexual relationship.

See Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 445 (5th Cir.

1994) (en banc).      A supervisory school official can be held liable

under § 1983 for an employee’s sexual abuse of a student when:

       (1) the defendant learned of facts or a pattern of
       inappropriate sexual behavior by a subordinate pointing
       plainly toward the conclusion that the subordinate was
       sexually abusing the student; and

       (2) the    defendant demonstrated deliberate indifference
       toward    the constitutional rights of the student by
       failing   to take action that was obviously necessary to
       prevent   or stop the abuse; and

       (3) such failure caused a constitutional injury to the
       student.

Id. at 454.

            Assuming arguendo that Stayton’s conversation provided

Stockton with notice of the sexual abuse, King cannot establish

that   Stockton     acted   with   deliberate   indifference   toward   her

constitutional rights.        Stockton met with Shupp, questioned her

about the alleged relationship, and, upon receiving a denial,

warned her to keep her relationships with students professional at

all times.       Based on the limited information he had, such action

satisfies the Doe v. Taylor standard.       See id. at 456 n.12 (“We can


                                      4
foresee many good faith but ineffective responses that might

satisfy a school official’s obligation in these situations, e.g.,

warning the state actor, notifying the student’s parents, or

removing the student from the teacher’s class.”).

          Although his actions did not prevent the subsequent abuse

and suffering, “[a]ctions and decisions by officials that are

merely inept, erroneous, ineffective, or negligent do not amount to

deliberate indifference and thus do not divest the official of

qualified immunity.”    Doe v. Dallas Indep. Sch. Dist., 153 F.3d

211, 219 (5th Cir. 1998).   Additionally, while King contends that

Stockton failed to follow CISD policies to investigate the abuse,

such a failure does not give rise to liability unless the plaintiff

can first prove “that all of the procedures...were obviously

necessary.”   Hagan v. Houston Indep. Sch. Dist., 51 F.3d 48, 53

(5th Cir. 1995).   In light of the limited information Stayton gave

Stockton, further action was not “obviously necessary.”

          The test for this court to apply is not whether Stockton

did all he could, or should, have done, but whether he acted with

deliberate indifference to King’s constitutional rights. Because

there is no genuine issue of material fact concerning whether

Stockton acted with deliberate indifference, he is entitled to

qualified immunity on King’s § 1983 claim.




                                 5
               CISD is similarly entitled to summary judgment on King’s

Title IX, 20 U.S.C. § 1681, claim,3 as she is unable to raise a

fact issue that any CISD employee with supervisory authority over

Shupp knew about the sexual abuse and failed to stop it.4

               Finally, King moved for a continuance before the district

court     to   enable   her   to   conduct   additional    discovery    on   the

knowledge and authority of five individuals she claimed could

impute liability to CISD.           We review this ruling for abuse of

discretion. Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan

Gas Bumi Negara, 364 F.3d 274, 304 (5th Cir. 2004).             In requesting

more time, King failed to show how further discovery would create

a genuine issue of material fact, and instead “simply rel[ied] on

vague assertions that additional discovery will produce needed, but



      3
            Recovery of damages from a school district for a teacher’s sexual
harassment of a student requires proof that (1) a school district employee with
supervisory power over the offending teacher (2) had actual notice of the
harassment and (3) responded with deliberate indifference. Gebser v. Lago Vista
Indep. Sch. Dist., 524 U.S. 274, 290, 118 S. Ct. 1989, 1999 (1998). To qualify
as a supervisory employee, the school official must serve in a position “with the
authority to repudiate that conduct and eliminate the hostile environment.” Rosa
H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 661 (5th Cir. 1997)(internal
quotation marks omitted)(emphasis in original). This test omits “the bulk of
employees, such as fellow teachers, coaches, and janitors.” Id. at 660.
      4
            Stockton did not act with deliberate indifference based on the
limited information he received.     King has not proven that the other CISD
individuals she identified had both knowledge of the abuse and the necessary
supervisory authority over Shupp. See Gebser, 524 U.S. at 290, 118 S. Ct. at
1999. Vice-principal Gale Drummond had similar information to Stockton and took
similar action; she was therefore not deliberately indifferent.         Athletic
directors Karen Heintz and William Willig had neither supervisory authority over
Shupp, nor actual knowledge of the abuse.      Although Ginger Leflar, Shupp’s
mother, witnessed the abuse and therefore clearly had knowledge of it, as a
fellow teacher, she is not a supervisory official whose conduct can be imputed
to CISD. See Rosa H., 106 F.3d at 660-61. Finally, King cannot show that the
unidentified office employee with whom Stayton spoke before her discussion with
Stockton had any sort of supervisory authority over Shupp. See id.

                                        6
unspecified,    facts.”          Beattie   v.     Madison   County    Sch.   Dist.,

254   F.3d   595,   606    (5th     Cir.       2001)(internal   quotation     marks

omitted).    The district court did not abuse its discretion.

      The events leading up to this suit are tragic.                 In hindsight,

many people    could      have    acted    to    prevent    Haley   King’s   abuse.

However, based on the precedent in this circuit, King is not able

to create material fact issues suggesting that the CISD officials’

ineffective, and perhaps negligent, actions amounted to deliberate

indifference of her statutory or constitutional rights.                        The

judgment of the district court granting summary judgment to CISD

and Stockton is therefore AFFIRMED.




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