     Case: 15-10098      Document: 00513413282         Page: 1    Date Filed: 03/09/2016




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

                                                                                     FILED
                                                                                  March 9, 2016
                                      No. 15-10098
                                                                                 Lyle W. Cayce
                                                                                      Clerk
C.C., Individually, by and through his next friends, Charles Cripps and
Kristie Cripps; KRISTIE CRIPPS; CHARLES CRIPPS,

               Plaintiffs - Appellants

v.

HURST-EULESS-BEDFORD INDEPENDENT SCHOOL DISTRICT; SCOTT
HURBOUGH; DAMON EMERY,

               Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:14-CV-646


Before HIGGINBOTHAM, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       CC, by and through his next friends, Charles Cripps and Kristie Cripps,
appeals the district court’s dismissal of claims against CC’s former school
district and the principal and vice principal of CC’s former school. CC was a
student in the school district who had been diagnosed with a disability
pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10098
U.S.C. § 1401 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et
seq. This case primarily concerns the school district’s decision to transfer CC
to Disciplinary Alternative Educational Placement (“DAEP”) for sixty days
following one particular instance where CC took a picture of a student using
the bathroom. On appeal, the Plaintiffs argue that the district court erred in
dismissing their claims brought under section 504 of the Rehabilitation Act, 29
U.S.C. § 794. For the following reasons, we AFFIRM.
                                              I.
       The following facts are consistent with the Plaintiffs’ pleadings. During
the relevant time period, CC was a twelve-year-old male student at Bedford
Junior High School, a school within Hurst-Euless-Bedford Independent School
District. Scott Hurbough was Bedford’s Principal, and Damon Emery was
Bedford’s Vice Principal.           CC suffered from severe Attention Deficit
Hyperactivity Disorder (“ADHD”), which qualified him as a student with a
disability pursuant to the IDEA and the Rehabilitation Act. Under these
statutes, CC received special education services. Despite these services, CC
exhibited several “school problems” during the course of the relevant year.
These problems included: disobeying teachers; running into a teacher;
roughhousing in the classroom; belching in a student’s face; and insulting
students with vulgar language, such as asking a female student “if she was
making porn.” CC alleged that the District, Hurbough, and Emery conspired
to remove CC from school by categorizing these instances as felonies and
encouraging the victims of CC’s actions to file criminal charges against him. 1
       The instance at the center of this case occurred when CC took a picture
of another student, RL, while he was using the bathroom at school. CC and



       1 The teacher that CC ran into did file a criminal charge of assault, which the officer
classified as a misdemeanor.
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                                 No. 15-10098
another student saw RL laughing and using the bathroom in a stall without a
door. RL said “look a[t] this!” and held up toilet paper smeared with feces. The
students all laughed, and CC took a picture of RL. Emery conducted an
investigation of the incident, and as alleged by the Plaintiffs, Emery concluded
that CC’s acts were an invasion of privacy and a felony warranting suspension
from school. At the encouragement of Emery, RL’s father filed a criminal
charge against CC. Emery then convened a Manifestation Determination
Review (“MDR”) meeting to determine whether CC’s behavior was the
manifestation of his disability, ADHD. The MDR committee concluded that
the incident was not the result of CC’s ADHD. CC was placed in DAEP for
sixty days.
      Despite reopening the investigation to determine whether another
student also took pictures during the incident, and discovering that the
criminal charge had been dismissed, the MDR committee did not revoke CC’s
placement in DAEP. The Plaintiffs later filed a claim with the Office of Civil
Rights, which determined that the Defendants had a legitimate reason for
acting against CC and, thus, the retaliation claim failed. The Plaintiffs then
filed a petition for a due process hearing under the IDEA, and the hearing
officer dismissed each of the Plaintiffs’ claims that was not brought under the
statute. Following the hearing, the hearing officer issued an order upholding
the District’s decision.
      The Plaintiffs filed a complaint in the Northern District of Texas
appealing the result of the due process hearing and alleging substantive and
procedural due process violations, a violation of the equal protection clause,
and violations of section 504 of the Rehabilitation Act. The Defendants filed
a motion to dismiss the complaint for failure to state a claim upon which relief
may be granted. The Plaintiffs then filed their first amended complaint, and
the Defendants filed a subsequent motion to dismiss.        The district court
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                                  No. 15-10098
severed the Plaintiffs’ appeal of the due process hearing, denied Plaintiffs leave
to file a second amended complaint, and granted the Defendants’ motion to
dismiss the Plaintiffs’ remaining claims.       The Plaintiffs timely appealed.
During oral argument, counsel clarified that the Plaintiffs limited their
challenge to the district court’s dismissal of their claims brought under section
504 of the Rehabilitation Act.
                                        II.
                                        A.
      We review the dismissal of a complaint under Rule 12(b)(6) of the Federal
Rules of Civil Procedure de novo. Spiller v. City of Texas City, Police Dep’t, 130
F.3d 162, 164 (5th Cir. 1997). “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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
For relief to be plausible, the facts must be more than consistent with unlawful
conduct; the facts must suggest liability. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 557 (2007).
                                        B.
      The Plaintiffs argue that the district court erred in dismissing their
claim that the Defendants violated § 504 by discriminating against CC due to
his disability.    Section 504 protects disabled students of school districts
receiving federal grants from discrimination “solely by reason of her or his
disability.” 29 U.S.C. § 794(a); see Estate of Lance v. Lewisville Indep. Sch.
Dist., 743 F.3d 982, 990 (5th Cir. 2014). Taking the allegations in the light
most favorable to the Plaintiffs, the complaint attempts to allege
discrimination in the form of hostile environment.          To sufficiently allege
harassment in the form of a hostile environment under § 504, the Plaintiffs
must allege:


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                                  No. 15-10098
      (1) [CC] was an individual with a disability, (2) [CC] was harassed
      based on his disability, (3) the harassment was sufficiently severe
      or pervasive that it altered the condition of his education and
      created an abusive educational environment, (4) [Defendants]
      knew about the harassment, and (5) [Defendants were]
      deliberately indifferent to the harassment.
Estate of Lance, 743 F.3d at 996 (quoting S.S. v. E. Ky. Univ., 532 F.3d 445,
454 (6th Cir. 2008)). This court has also held that “facts creating an inference
of professional bad faith or gross misjudgment are necessary to substantiate a
cause of action for intentional discrimination under § 504.” D.A. ex rel. Latasha
A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 455 (5th Cir. 2010).
      The Plaintiffs did not sufficiently plead discrimination under § 504. In
their first amended complaint, the Plaintiffs alleged that the Defendants
formed a conspiracy to remove CC from school by categorizing his infractions
as felonies. Taking the Plaintiffs’ conspiracy allegations as true, the Plaintiffs
did not sufficiently plead that this conspiracy was based on CC’s disability. See
Estate of Lance, 743 F.3d at 996. The Plaintiffs did not allege facts suggesting
that the Defendants acted against CC for any reason other than his multiple
behavioral infractions. The Plaintiffs also did not plead facts sufficient to
establish that these behavioral infractions were the result of CC’s ADHD. The
Plaintiffs’ complaint merely states that his ADHD resulted in CC having
difficulty “Executing Functioning, which [a]ffects his ability to manag[e] his
social environment, make good decisions and communicate in an appropriate
manner.” If that conclusory statement were enough to plead discrimination,
any plaintiff with ADHD could attribute any misconduct, no matter how
severe, to the disability. In addition, the Plaintiffs’ allegations show that the
Defendants did not transfer CC until after the MDR determination, which
concluded that CC’s behavior was not a result of his disability. The Plaintiffs
did not sufficiently plead that any of the Defendants’ acts were based on CC’s

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                                  No. 15-10098
disability; therefore, the Plaintiffs did not sufficiently plead that the
Defendants violated § 504 by discriminating against CC.
                                        III.
      Because we conclude that the Plaintiffs did not sufficiently plead a
violation of section 504 of the Rehabilitation Act, we AFFIRM the district
court’s dismissal of the Plaintiffs’ claims.




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