     Case: 13-10684      Document: 00512579620         Page: 1    Date Filed: 03/31/2014




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

                                                                             FILED
                                                                         March 31, 2014
                                     13-10684
                                  Summary Calendar                        Lyle W. Cayce
                                                                               Clerk


TRANQUILINO ANDREW YARA; TRANQUILINO NICK YARA; SANDRA
YARA,

                                                 Plaintiffs - Appellants
v.

PERRYTON INDEPENDENT SCHOOL DISTRICT,

                                                 Defendant - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:12-CV-117


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff Andrew Yara and his parents, Nick and Sandra Yara, sued
Perryton Independent School District in federal district court for injuries to
Andrew allegedly caused by constitutional violations that occurred on school
grounds. The district court granted summary judgment in favor of Perryton,
finding that the Yaras failed to offer evidence that Perryton could be liable for
the purported constitutional violations. The Yaras appealed. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 13-10684
                FACTS AND PROCEDURAL BACKGROUND
      This case arises out of Andrew Yara’s participation in Perryton High
School’s “Red Ribbon Day,” a two-day supplemental “enrichment activity”
designed by his world history teacher, Andy Francis, to teach his sophomore
students about persecution experienced by Jews in Nazi Germany. On the first
day, Francis required half of his students to wear red ribbons; the other half
wore red ribbons on the second day. Francis instructed students not wearing
red ribbons to discriminate against those who were. Others not enrolled in
Francis’s class, including Perryton staff, also took part in the activity by giving
orders to the red-ribbon wearers. Both students and teachers forced red-ribbon
wearers to kneel in or crawl down the hall, carry students’ bookbags to class,
and use designated restrooms and water fountains. At some point during the
day, a school staff member sprayed the red-ribbon wearers with a water hose.
      Andrew participated in the third annual Red Ribbon Day. On May 19,
2010, the second day of the activity, Francis gave his customary instruction
that those wearing red ribbons, who included Andrew, should follow the other
students’ orders. Francis also sent an email to the staff instructing them not
to allow other students to cause physical harm to the ribbon wearers.
Nevertheless, after lunch, a Perryton staff member, Manuel Moreno, stopped
Andrew and other ribbon wearers in the hall and told them to get down on
their knees facing the wall.     Andrew’s cousin, who was also a student at
Perryton, asked permission from Moreno to “borrow that Jew — I mean red
ribbon.” The cousin ordered Andrew to carry him to his class, an instruction
which the Yaras allege was overheard by Moreno.               Andrew expressed
incredulity but followed his cousin’s order. As Andrew was carrying his cousin,
another student jumped on his cousin’s back, which caused the three students
to fall to the ground. Andrew got up, and his cousin again jumped on his back,
causing pain to his lower back and legs. Still required to follow orders, Andrew
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                                  No. 13-10684
carried his cousin and two other students to their classes.           As the day
progressed, Andrew continued to experience pain in his legs and back. He
sought medical treatment the next day.
      Andrew continues to suffer from significant pain and depression arising
from these events, and he has incurred medical bills and therapy fees for
treatment related to this pain. Andrew and his parents brought claims under
42 U.S.C. § 1983 against Perryton in federal district court. They alleged
violations of Andrew’s Fourth Amendment right to be free of unreasonable
seizures and excessive force and his Fourteenth Amendment right to bodily
integrity. The district court granted summary judgment for the defendants.
      The district court did not address whether the Yaras had alleged valid
constitutional violations. Instead, it held that Perryton could not be liable
under Section 1983 because the evidence did not indicate Perryton had adopted
a custom or policy that was the moving force behind the alleged constitutional
violations. Further, the district court concluded that Section 1983 liability did
not attach under a failure to train theory because the evidence did not show
that Perryton policymakers were deliberately indifferent to any constitutional
violations allegedly arising from lack of staff training or supervision.
      The Yaras raise three issues on appeal. The first two issues challenge
the district court’s legal conclusions; the final issue reasserts that they alleged
a cognizable constitutional claim. We focus our attention on whether the
district court correctly concluded that Perryton could not be liable for the
Yaras’ claims.
                                 DISCUSSION
      We apply de novo review to a district court’s dismissal of claims on
summary judgment. Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 246
(5th Cir. 2003).


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                                   No. 13-10684
      Section 1983 imposes liability on governmental entities for a violation of
a person’s constitutional rights. Id. at 247. For a student to sustain a claim
against a school district, he must prove a harm caused by a constitutional
violation and show that the school district is responsible for the violation. See
Doe v. Covington Cnty. Sch. Dist., 675 F.3d 849, 867 (5th Cir. 2012). A school
district cannot be liable under Section 1983 based on a respondeat superior
liability. Rivera, 349 F.3d at 247. “Consequently, the unconstitutional conduct
must be directly attributable to the municipality through some sort of official
action or imprimatur; isolated unconstitutional actions by municipal
employees will almost never trigger liability.” Piotrowski v. City of Houston,
237 F.3d 567, 578 (5th Cir. 2001). The Yaras argue that Perryton could be
responsible for adopting a policy that caused the constitutional violations or
for failing to train or supervise its high school staff.
      A. Official or Unofficial Policy
      A school district is responsible under Section 1983 if a final policymaker
adopts a policy that is the moving force behind a constitutional violation.
Rivera, 349 F.3d at 247. Determining who is a policymaker is a matter of law,
requiring a court to identify those “officials whose decisions represent the
official policy.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). A
policymaker may adopt a policy through written policy statements, ordinances,
or regulations, or by acquiescing to a wide-spread practice. James v. Harris
Cnty., 577 F.3d 612, 617 (5th Cir. 2009). Even if a policymaker adopts a policy
that causes constitutional violations, it can only be liable for acting deliberately
indifferent to those violations.      Id.       Deliberate indifference reflects the
policymaker’s conscious choice to disregard constitutional violations caused by
its adopted policy. Id. at 617-18.
      The district court engaged in a thorough analysis of state and local law
and carefully examined the record to determine whether a Perryton
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                                 No. 13-10684
policymaker had adopted a policy that was the moving force behind the claimed
constitutional violations. It found that the Perryton Board of Trustees had
final policymaking authority for the high school under Texas law. It rejected
the argument that the Board had delegated that authority to the school
principal, who had approved Francis’s lesson plans. It also concluded that
Perryton was not deliberately indifferent to the alleged violations.
      The Yaras direct their arguments at what they perceive was the district
court’s errant application of the limitations on municipal liability set out in
Monell v. Department of Social Services of City of New York, 436 U.S. 658
(1978). There is no evidence that the Board, which was the final policymaker
under Texas law, had knowledge of Red Ribbon Day. See Jett v. Dallas Indep.
Sch. Dist., 7 F.3d 1241, 1245 (5th Cir. 1993), on remand from Jett, 491 U.S.
701 (1989). Moreover, even though the Board allowed its high school principal
to approve teacher plans, that is not a delegation of its policymaking authority.
See Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 217 (5th Cir. 1998). We also
agree with the district court that the two-day per year program, which reached
a third anniversary, was not “so common and well-settled as to constitute a
custom that fairly represents municipal policy.” Piotrowski, 237 F.3d at 579.
      Even if knowledge of Red Ribbon Day could be imputed to the Board, we
agree with the district court that Perryton could not have acted with deliberate
indifference to constitutional violations because there is no evidence that the
type of constitutional violations alleged by the Yaras had ever occurred. See
James, 577 F.3d at 617. Despite the Yaras’ attempts to explain the potentially
harmful effects of what they call an unsound pedagogy, it is undisputed that
no Perryton High School student ever previously suffered physical harm as a
result of Red Ribbon Day events. We cannot agree that the Board, had it
known of the Day’s activities, could have reasonably predicted physical injuries


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                                  No. 13-10684
like Andrew’s would occur based upon the nature of the activity. We find no
error in the district court’s application of the law.
      B. Failure to Train or Supervise
      To establish Section 1983 liability under the Yaras’ theory of a failure to
train, they must demonstrate that (1) a supervisor failed to supervise or train
a subordinate; (2) a causal link exists between the failure and the
constitutional violation; and (3) the supervisor was deliberately indifferent.
Estate of Davis v. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005).
Mere negligence or even gross negligence is not enough; “a plaintiff usually
must demonstrate a pattern of [constitutional] violations and that the
inadequacy of the training is obvious and obviously likely to result in a
constitutional violation.” Id. (quotation marks omitted).
      For Perryton to be liable for the Board’s failure to train or supervise the
school staff, the Board must have actual or constructive notice of ongoing
constitutional violations at the school; otherwise the Board’s failure could not
be a conscious or deliberate choice. See Porter v. Epps, 659 F.3d 440, 447 (5th
Cir. 2011).   The Yaras’ failure-to-train argument fails due to the lack of
evidence that the Board was aware of Red Ribbon Day. Further, the Board
could not have made a deliberate choice to disregard constitutional violations
stemming from its failure to train or supervise because no violation had
occurred in the first two years of the program.         There was no pattern of
constitutional violations such that the Board would have been more than
grossly negligent for failing to train or supervise the high school staff. See
Estate of Davis, 406 F.3d at 381. The district court did not err in concluding
that Perryton could not be liable under this theory of liability.
      AFFIRMED.




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