     Case: 17-40826      Document: 00514490630         Page: 1    Date Filed: 05/29/2018




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

                                    No. 17-40826                                FILED
                                  Summary Calendar                          May 29, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
HILDA BERTA RAMOS,

              Plaintiff – Appellant

v.

WEBB CONSOLIDATED INDEPENDENT SCHOOL DISTRICT,

              Defendant – Appellee.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:15-CV-55


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       This appeal arises out of the tragic death of O.R., a minor child and the
adopted son of Hilda and Agustin Ramos (collectively “Plaintiffs”). O.R. was
allegedly involved in an illicit relationship with Fallon Cremar (“Cremar”), one
of his teachers at Bruni High School (“BHS”). On February 18, 2013, R.J.
Montalvo (“Montalvo”), a BHS teacher, saw O.R. hugging Cremar. Montalvo
reported this to his superiors at BHS. Two days later, after investigation by
the BHS principal and WCISD superintendent had already begun, O.R.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 17-40826       Document: 00514490630          Page: 2     Date Filed: 05/29/2018



                                       No. 17-40826
committed suicide. Following O.R.’s death, Plaintiffs filed suit against Cremar,
WCISD, the Benavides Independent School District (“Benavides”), and the
Freer Independent School District (“Freer”), alleging violations of 42 U.S.C. §
1983 and Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C.
§ 1681. After Plaintiffs voluntarily dismissed Benavides and Freer, WCISD
moved for summary judgment on all claims. Finding that Plaintiffs had
produced no summary judgment evidence demonstrating that either WCISD
or its officials acted with deliberate indifference, the district court granted
summary judgment in favor of WCISD and certified its order as immediately
appealable under Federal Rule of Civil Procedure 54(b). We agree with the
district court and therefore AFFIRM. 1
       On appeal, the Plaintiffs argue that the district court erred in granting
summary judgment because there was record evidence (1) indicating WCISD
violated Title IX by failing to adequately respond to Cremar’s alleged
harassment of O.R. and (2) indicating WCISD violated § 1983 by failing to
properly train or supervise its employees. 2 Though the standards for school
district liability under § 1983 for a failure-to-train claim and Title IX differ
slightly, 3 both require Plaintiffs to show that either WCISD or its officials in
charge of supervising Cremar acted with deliberate indifference. 4


       1 We review the district court’s grant of summary judgment de novo, applying the
same standards as the district court. Haverda v. Hays Cnty., 723 F.3d 586, 591 (5th Cir.
2013). Summary judgment is appropriate only if, viewing the evidence in the light most
favorable to the nonmovant, “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).
       2 Below, Plaintiffs also alleged that WCISD violated § 1983 by creating a danger that

caused O.R.’s abuse and suicide and, alternatively, that WCISD violated § 1983 by ratifying
Cremar’s abusive actions. Plaintiffs did not substantively brief those theories on appeal and,
consequently, they are abandoned. See Gann v. Fruehauf Corp., 52 F.3d 1320, 1328 (5th Cir.
1995).
       3 See Doe on Behalf of Doe v. Dall. Indep. Sch. Dist., 153 F.3d 211, 220 n.8 (5th Cir.

1998).
       4 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 292–93 (1998) (“Until Congress

speaks directly on the subject, however, we will not hold a school district liable in damages
                                               2
     Case: 17-40826         Document: 00514490630           Page: 3     Date Filed: 05/29/2018



                                         No. 17-40826
       “The deliberate indifference standard is a high one.” 5 “To act with
deliberate indifference, a state actor must ‘know[ ] of and disregard[ ] an
excessive risk to [the victim’s] health or safety.’” 6 In other words, “the plaintiff
must demonstrate culpability beyond mere negligence or even gross
negligence.” 7 The state actor’s conduct “must amount to an intentional choice,
not merely an unintentionally negligent oversight.” 8 Moreover, even if the
state actor has actual knowledge of a substantial risk of harm to the victim, if
he responds reasonably to that risk, he will not be held liable even though the
harm ultimately occurs. 9
       Here, the Plaintiffs cannot show that either WCISD or its officials acted
with deliberate indifference. It is undisputed that WCISD had in place policies
that prohibited teacher-student relations and that required reporting of sexual
harassment. It is also undisputed that WCISD held regular training sessions
on these policies. These policies, even if imperfect, were not so inadequate that
they were “likely to result in the violation of constitutional rights.” 10 Thus, they
cannot support an inference that WCISD itself was deliberately indifferent.
       The Plaintiffs also did not set forth facts from which a reasonable jury
could conclude that WCISD officials were deliberately indifferent to O.R.’s
plight. On February 18, 2013, Montalvo observed O.R. hugging Cremar.
Montalvo immediately reported his observation to BHS Principal Humberto


under Title IX for a teacher’s sexual harassment of a student absent actual notice and
deliberate indifference.”); Sanders-Burns v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010)
(“For Sanders-Burns to succeed on her [§ 1983] failure to train claim against Plano, she must
demonstrate that . . . Plano was deliberately indifferent in adopting its training policy . . . .”).
        5 Whitley v. Hanna, 726 F.3d 631, 641 (5th Cir. 2013) (quoting Doe v. Dall. Indep. Sch.

Dist., 153 F.3d 211, 219 (5th Cir. 1998)).
        6 Id. (quoting McClendon v. City of Columbia, 305 F.3d 314, 326 n.8 (5th Cir. 2002)).
        7 Hernandez ex rel. Hernandez v. Tex. Dep’t of Protective and Regulatory Servs., 380

F.3d 872, 883 (5th Cir. 2004).
        8 James v. Harris Cty., 577 F.3d 612, 617–18 (5th Cir. 2009).
        9 Doe ex rel. Doe v. Dall. Indep. Sch. Dist., 220 F.3d 380, 384 (5th Cir. 2000).
        10 Canton v. Harris, 489 U.S. 378, 390 (1989).

                                                 3
    Case: 17-40826         Document: 00514490630          Page: 4   Date Filed: 05/29/2018



                                           No. 17-40826
Soliz (“Soliz”). Soliz then asked Montalvo to record a written statement of his
observation, which Montalvo did. The next morning, Soliz asked Cremar for a
statement regarding the incident, and he personally observed O.R. for any
abnormal behavior but found none. That same day, Dr. Severita Sanchez
(“Sanchez”), the WCISD Superintendent, questioned Cremar in person
regarding the incident, and, although Cremar denied any impropriety,
Sanchez placed her on administrative leave. Later that day, Sanchez asked
Antonio Flores (“Flores”), a WCISD security guard regularly stationed at BHS,
to talk with O.R. the following morning and ensure that he was well. In their
conversation the following morning, O.R. told Flores that he did not have a
relationship with Cremar and that he “just wanted to give her a hug.” Flores
assured O.R. that he had done nothing wrong and instructed O.R. to give a
written statement. That evening, O.R. took his own life. On this record, WCISD
officials did not knowingly and recklessly disregard potential abuse or danger
to O.R. 11 Accordingly, there is no genuine dispute whether any WCISD officials
acted with deliberate indifference toward O.R.’s constitutional rights.
      For these reasons and for the reasons stated by the district court, we
AFFIRM.




      11   See Whitley, 726 F.3d at 641.
                                                4
