     Case: 17-30594      Document: 00514290912         Page: 1    Date Filed: 01/02/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                    No. 17-30594                             January 2, 2018
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
AMANDA BALL, individually and, on behalf of K. G., on behalf of M. B., on
behalf of A. B.,

              Plaintiff - Appellant

v.

ST. MARY RESIDENTIAL TRAINING SCHOOL; SCHOOL BOARD
RAPIDES PARISH; KAREN COOR, in her official capacity; LESLIE
DRAPER, in her official capacity; ANITA MOORE, in her official capacity;
HEATHER NIDA, in her official capacity; STEPHANIE WARDEN, in her
official capacity; SOMONA ALLEN, in her official capacity; CHRISTI
GUILLIOT, in her official capacity; MAVIS CHAMPAGNE, in her official
capacity; TONY VETS, in his/her official capacity,

              Defendants - Appellees




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:14-CV-2855


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                        No. 17-30594
      Amanda Ball appeals the district court’s grant of summary judgment in
favor of St. Mary’s Residential Training School and Rapides Parish School
Board, and the resulting dismissal of her claims. The district court’s grant of
summary judgment is AFFIRMED.
                                                I
      At issue in this lawsuit are a special care facility’s and a special needs
school’s treatment of a minor, K.G., who suffers from severe autism, self-
injurious behaviors, and other related physical and mental impairments.
Amanda Ball filed this lawsuit on behalf of K.G., her child, 1 against St. Mary’s
Training School and some of its employees, in their official capacity, and
against Rapides Parish School Board (“RPSB”). Ms. Ball contended that St.
Mary’s and Rapides Training Academy (“RTA”), operated by the RPSB,
neglected to properly care for K.G. while in its care because his self-injurious
behaviors did not improve. The district court thoroughly addressed the
intricate facts of this case, which will not be repeated for the sake of brevity.
      The district court granted the St. Mary’s defendants’ motion for
summary judgment as to the individually named employees because the
corporation-employer is liable for its employees’ conduct. See Sims v. Jefferson
Downs Racing Assn., Inc., 778 F.2d 1068, 1081 (5th Cir. 1985). The district
court also granted summary judgment in favor of St. Mary’s on Ms. Ball’s 42
U.S.C. § 1983 claims because St. Mary’s was not a state actor as required by
the statute. Although the district court found Ms. Ball’s general allegations
that K.G. was abused and/or neglected were not prescribed, it ultimately
determined that these tort claims lacked a factual basis and granted summary
judgment in favor of the defendants on those claims. Ms. Ball’s “LeJeune” loss


      1   Ms. Ball also brings this lawsuit on behalf of her other two children.
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                                 No. 17-30594
of consortium claims on behalf of herself and K.G.’s two minor siblings were
similarly dismissed for failure to present evidence that K.G.’s behavioral
problems differed from those experienced before his admission to St. Mary’s.
Next, the district court dismissed Ms. Ball’s breach of contract claim against
St. Mary’s because she failed to allege the exact contract terms or provisions
St. Mary’s violated. She also failed to present evidence that if St. Mary’s
implemented certain behavioral support plans, then K.G.’s maladaptive self-
injurious behaviors would have changed. The district court dismissed any
potential fraud claim because the complaint failed to allege with particularity
any facts to establish the claim. Finally, the district court granted summary
judgment in favor of RPSB as to Ms. Ball’s claim for its failure to report K.G.’s
alleged abuse or neglect before she requested that the school submit a
complaint. The district court reasoned that this claim must fail because Ms.
Ball not only failed to present evidence that RPSB failed to report child abuse
or neglect, but her other claims upon which this relied also failed.
                                       II
      This court reviews a district court’s grant of summary judgment de novo,
reviewing “all facts and evidence in the light most favorable to the non-moving
party.” Amerisure Mut. Ins. Co. v. Arch Specialty Ins. Co., 784 F.3d 270, 273
(5th Cir. 2015). Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of
material fact exists when “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Savant v. APM Terminals, 776 F.3d
285, 288 (5th Cir. 2014) (internal quotations omitted).
                                       III
      Ms. Ball raises seven issues on appeal. Each is addressed in turn.
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                                    No. 17-30594
   A. Color of Law
      St. Mary’s is a private corporation under the control of the Diocese of
Alexandria, Louisiana. Ms. Ball’s only evidence to the contrary related to St.
Mary’s receipt of medicaid funds. Yet, the fact that St. Mary’s receives
medicaid funds does not make St. Mary’s a state-controlled facility. See Wheat
v. Mass, 994 F.2d 273, 275-76 (5th Cir. 1993) (“Ochsner is not a state actor and
cannot be considered as such solely because it receives medicare and medicaid
funds and is subject to state regulation.”). Accordingly, Ms. Ball’s claim under
42 U.S.C. § 1983 was properly dismissed. See id.
   B. Legal Standard for State Tort Claims
      Ms. Ball contends that the district court erred in its application of the
“reasonable care” standard for the state tort claims against St. Mary’s. Ms. Ball
asserts that the district court instead should have held St. Mary’s to the
“highest degree of care toward the children left in their custody.” Wade v. Mini
World Daycare, 46,238, p. 4 (La. App. 2 Cir. 3/13/11); 63 So. 3d 1045, 1047. Ms.
Ball fails to recognize the language immediately following, which provides that
temporary custodians “are not insurers of the children’s safety” and recognizes
that the duty “does not require individual supervision of each child at all times
and places.” Id. Although a temporary custodian owes “a duty to the children
in its care, . . . th[e] duty is not without limitations.” Id. Ms. Ball fails to present
the necessary evidence to establish that the district court erred in applying a
“reasonable care” standard to the tort claims against St. Mary’s. Moreover, she
also failed to present evidence that St. Mary’s breached any duty of care.
Accordingly, the district court did not err in applying the “reasonable care”
standard to dismiss Ms. Ball’s tort claims against St. Mary’s.




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                                 No. 17-30594
   C. Reliance on Dr. Emrick’s Testimony
      Ms. Ball seeks to overturn the district court’s reliance on Dr. Emrick,
whom it qualified as an expert under Federal Rule of Evidence 702. The district
court properly relied on Dr. Emrick’s deposition because her professional
training centers on the special medical needs K.G. experiences (autism). But,
even if we were to find that Dr. Emrick should not have qualified as an expert
under Federal Rule of Evidence 702, there would be no basis to overturn the
district court’s decision because its opinion does not hinge on Dr. Emrick’s
deposition.
   D. Evidence to Establish Negligence
      Ms. Ball alleged that St. Mary’s was negligent in its care for K.G. because
he suffered from continual self-injurious behavioral issues. She focused in
particular on the school’s decision not to conduct a behavioral intervention plan
(“BIP”). Ms. Ball relied on all of K.G.’s past schools having formulated a BIP
for K.G. as evidence that St. Mary’s was negligent in failing to do so. She also
relied on both her expert and St. Mary’s expert recommending such
examination.
      This assertion must fail. As a preliminary matter, although Dr. Emrick
testified that if it had been up to her, she would have completed a BIP, she
recognized that not all professionals agree and St. Mary’s was not negligent in
forgoing the BIP. Even though the previous schools completed these
assessments, all of the previous BIPs failed to stop or prevent K.G.’s self-
injurious behavior. There is no reason to believe that St. Mary’s completing a
BIP would have produced any different results. Moreover, as the district court
found, Ms. Ball presented no evidence that anyone at St. Mary’s sexually,
physically, or emotionally abused K.G. or neglected him. K.G.’s issues of
eczema, constipation, self-harm, consumption of yarn, and staph infections
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                                  No. 17-30594
existed before he began treatment at St. Mary’s. It is simply disingenuous for
Ms. Ball to contend that St. Mary’s necessarily must have been negligent and
abused and neglected K.G. because these same issues persisted during his time
under St. Mary’s care. Accordingly, the district court did not err in dismissing
Ms. Ball’s negligence claims against St. Mary’s.
   E. LeJeune Damages
      Ms. Ball also filed a claim for loss of consortium and mental suffering
damages on behalf of her and her other two children under Lejeune v. Rayne
Branch Hospital, 556 So. 2d 559 (La. 1990). The claimant must submit
evidence that “[t]he distress suffered [was] such that no reasonable person
could be expected to endure it.” White v. Monsanto Co., 585 So. 2d 1205, 1210
(La. 1991). Importantly, “[l]iability arises only where the mental suffering or
anguish is extreme.” Id. (citing Lejeune, 556 So. 2d at 570). The only evidence
Ms. Ball provided pertained to K.G.’s injuries, such as photographs. The
district court correctly concluded that Ms. Ball submitted no summary
judgment evidence for her loss of consortium damages. The photographs
submitted in support necessarily cannot establish Ms. Ball’s mental state; at
most, the photographs indicate K.G. suffered physical ailments. These are not
evidence of Ms. Ball’s or her other children’s trauma. Accordingly, the district
court properly dismissed the Lejeune damages claim.
   F. St. Mary’s Failure to Produce Behavioral Assessments
      For the reasons described supra III.D., the district court did not err in
granting summary judgment in favor of St. Mary’s as to its decision not to
conduct a functional behavioral assessment (“FBA”) or a BIP. Furthermore,
the district court appropriately granted summary judgment as to Ms. Ball’s
breach of contract claims against St. Mary’s. The record supports the district
court’s holding because Ms. Ball failed to assert the specific contract provisions
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                                      No. 17-30594
that St. Mary’s breached or to assert that any contract provision required St.
Mary’s to perform an FBA or a BIP.
   G. RTA’s Failure to Report Abuse or Neglect
       Ms. Ball also sued RPSB for failure to report St. Mary’s alleged neglect
and abuse of K.G. She contended that if RPSB had reported the physical issues
Ms. Ball noticed on K.G.’s body, K.G. would not have suffered as much neglect
or abuse. The district court appropriately found that Ms. Ball failed to submit
summary judgment evidence to create a genuine issue of material fact that
RPSB, through RTA, failed to report child abuse or neglect. To the contrary,
RPSB’s evidence indicated that it was not the practice of the school to do a full-
body check of the students each day. RPSB would not have been aware of
bruises that were covered by K.G.’s clothing. Importantly, RPSB did keep in
constant contact with St. Mary’s to establish continuity of care; for example,
when the school nurse was concerned about an eczema flare-up on K.G., the
nurse contacted St. Mary’s. The RPSB employees failed to report observed
bruising when it was trivial or ordinary, such as when the school nurse had to
change K.G.’s clothing one day at school and noticed bruises on his body. The
nurse testified that the bruises were not large enough to be alarming, so she
did not see the need to address it. Conversely, Ms. Ball failed to submit
evidence in response that created a genuine issue of material fact as to whether
RPSB was negligent in failing to report any alleged abuse or neglect. 2 The
district court properly granted summary judgment in favor of RPSB on these
claims.


       2 Importantly, the evidence indicated that RPSB only reported St. Mary’s alleged
abuse and neglect on October 3, 2013, in response to Ms. Ball’s complaints to RTA. It was
RTA’s practice to submit a complaint upon the request of a parent. Ms. Ball did not establish
negligence on behalf of RPSB because the school only reported it out of a policy mandate, not
because it observed evidence that St. Mary’s abused or neglected K.G.
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                             No. 17-30594
                                  IV
    Accordingly, the district court’s grant of summary judgment is
AFFIRMED.




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