         Case: 13-31210   Document: 00512645914       Page: 1     Date Filed: 05/29/2014




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

                                                                               FILED
                                    No. 13-31210                           May 29, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
JANET ROBINSON, individually and on behalf of her minor child A.R.,

                 Plaintiff - Appellant

v.

ST. TAMMANY PARISH PUBLIC SCHOOL SYSTEM; KEVIN DERUSE, in
his individual capacity and in his official capacity as Hearing Officer for the
St. Tammany Parish School System,

                 Defendants – Appellees


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:12-CV-351


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
          Janet Robinson, individually and on behalf of her minor child A.R.,
appeals the district court’s grant of summary judgment in favor of the
defendants in her action bringing constitutional and Louisiana state law
claims resulting from the defendants’ decision to transfer A.R. to another high
school. For the following reasons, we AFFIRM the district court’s ruling.


     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: 13-31210   Document: 00512645914     Page: 2    Date Filed: 05/29/2014


                                   No. 13-31210

                                         I.
        Janet Robinson is A.R.’s mother. On January 28, 2011, A.R. rode a St.
Tammany Parish school bus while on a class field trip. Other students accused
A.R. of sexual misconduct, leading to an investigation. Kevin Darouse, as the
St. Tammany Parish School Board’s (“Board”) supervisor of administration,
acted as the hearing officer in A.R.’s case, and held proceedings on February
16, 2011. A.R.’s mother and legal counsel participated in the hearing, and
Darouse informed those present of the allegations of misconduct and of the
evidence against A.R. At the end of the hearing, A.R. was transferred to
another school for three months. Robinson alleges that she requested that the
Board review Darouse’s determination and punishment, but that the Board
never set a time to review the hearing officer’s findings.
        Robinson filed suit in federal district court on February 3, 2012, seeking
relief under 42 U.S.C. § 1983 for violations of her Fourth and Fourteenth
Amendment rights. In addition to her federal claims, Robinson alleged that
the defendants’ actions violated A.R.’s due process rights under Article I § 2 of
the Louisiana Constitution. She also brought claims under Louisiana law for
(1) intentional infliction of emotional distress against Darouse, (2) negligence
for the Board’s failure to train and supervise its employees, and (3)
defamation. 1
        On October 18, 2013, the district court granted defendants’ motion for
summary judgment, holding that Darouse’s conduct did not violate either
Robinson’s or A.R.’s procedural or substantive due process rights under the
federal or state constitutions. The court also held that, under Louisiana law,




   1 The district court dismissed Robinson’s claims under the Fourth Amendment on
February 15, 2013. Robinson has not appealed this decision.


                                         2
    Case: 13-31210    Document: 00512645914     Page: 3   Date Filed: 05/29/2014


                                 No. 13-31210

the Board was not required to schedule a hearing to review Darouse’s decision
because A.R. was only transferred to another school and not expelled.
      The district court granted summary judgment against Robinson on her
state law claims as well. Robinson’s claim for intentional infliction of emotion
distress failed because the district court found that “[i]t cannot be said that
Darouse’s conduct exceeded ‘all possible bounds of decency.’         He simply
investigated the allegations that others made and provided the accused a
chance to respond, as was his job to do.” Her negligence claim was untimely
under Louisiana’s one-year prescriptive term for delictual actions because she
did not file suit until February 3, 2012, more than one year after the alleged
negligent acts took place. Finally, the court held that “Darouse [could] not be
liable for defamation because he made his statement within the scope of his
duties as a disciplinary hearing officer, and . . . [was] therefore entitled to
judgment as a matter of law.” Robinson appeals.


                                      II.
      We review a district court’s grant of summary judgment de novo,
applying the same standard on appeal as that applied below. Tiblier v. Dlabal,
743 F.3d 1004, 1007 (5th Cir. 2014). Summary judgment is proper “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).
      Robinson raises six issues on appeal. First, she claims that the district
court failed to view disputed facts in the light most favorable to the nonmoving
party. Second, she argues that the district court erred in its due process
holdings by failing to appreciate that Darouse’s decision was “fully formulated”
prior to A.R.’s hearing. Third, she asserts that the district court incorrectly
found Darouse entitled to qualified immunity, again based on the contention



                                       3
       Case: 13-31210    Document: 00512645914        Page: 4     Date Filed: 05/29/2014


                                     No. 13-31210

that he “determin[ed] the outcome of the hearing before the commencement of
said hearing, in contravention of clearly established law.”                 Fourth, she
challenges the court’s ruling that the Board was not liable for failure to review
Darouse’s finding. Robinson’s fifth and sixth issues contest the district court’s
holdings on her state law claims for defamation and negligence. 2
          Addressing Robinson’s first three issues together, we hold that the
district court applied the correct standard for summary judgment, and find
that defendants’ uncontroverted evidence dictated the court’s grant of
summary judgment in their favor. Robinson does not dispute that Darouse
held a hearing in which she and her daughter, together with legal counsel,
participated. But she asserts that Darouse “clearly indicated that his decisions
to: (1) find A.R. guilty; and (2) disciplinarily reassign A.R. was fully formulated
prior to commencement of the hearing in which A.R. was summoned to appear
for purposes of determining her guilt or innocence.” She bases this assertion
on the following excerpt from Darouse’s deposition:
              Q. All right. All right. So here’s my question to you:
                 Prior to the hearing, prior to you ever even seeing
                 Mr. Heron and I or Ms. Robinson, you said you had
                 a plan, correct?
              A. Uh-huh (affirmatively).
              Q. I’m asking you, what was that plan?
              A: I find her guilty. She would go to Lakeshore High
                 School on disciplinary reassignment.
We hold that this excerpt, standing alone, is insufficient to raise a
genuine dispute as to whether Darouse’s mind was so foreclosed that he
was unable to give A.R. a fair and impartial hearing.                To say that
Darouse had a “plan” for what he would do is not to say that he had
already decided the matter before conducting A.R.’s hearing. Indeed,


   2 Robinson does not appeal the court’s ruling on her intentional infliction of emotional
distress claim.


                                            4
    Case: 13-31210    Document: 00512645914     Page: 5    Date Filed: 05/29/2014


                                 No. 13-31210

immediately following the excepted portion, Darouse clarifies that he
was only “pretty certain” as to what his ultimate decision would be:

            Q. All right. And you had already pretty much based
               on—if it’s not fair, you tell me—but it’s fair to say
               based on what you had already heard at the other
               three hearings, you were pretty certain that’s how
               you were going to rule, right?
            A. I was pretty certain.
      After listening to the evidence set forth in three prior hearings, it
is natural that Darouse had an idea of what his “plan” would be going
forward in A.R.’s case. But this is not enough to call into question his
willingness to listen to A.R.’s version of what happened and change his
mind accordingly. We hold that the district court did not err because
Robinson failed to raise a genuine dispute as to whether Darouse entered
A.R.’s hearing with a foreclosed mind.
      Robinson next argues that the Board violated Louisiana Revised
Statute section 17:416(C)(4) by failing to review Darouse’s decision. We
hold that the district court correctly found that the Board was under no
obligation to review Darouse’s findings because A.R. was not expelled.
      Section 17:416(C)(4) provides: “The parent or tutor of the pupil
may, within five days after the decision [to expel] is rendered, request
the city or parish school board to review the findings of the
superintendent or his designee at a time set by the school board.” La.
Rev. Stat. Ann. § 17:416.     But, as Robinson concedes, A.R. was not
expelled, and therefore appellants had no right to review by the Board
under section 17:416(C)(4).    See Bonner v. Lincoln Parish Sch. Bd.,
28,993 (La. App. 2 Cir. 12/11/96); 685 So. 2d 432, 435 (“James’s
suspension was reduced to five days and the previous recommendation
for expulsion was dropped. Thus, James did not have a right to further


                                         5
       Case: 13-31210    Document: 00512645914         Page: 6    Date Filed: 05/29/2014


                                      No. 13-31210

appeal the decision to the entire school board.”). We hold that the district
court did not err in finding that section 17:416(C)(4) did not apply to A.R.
because she was not expelled. 3
        Robinson argues that Darouse’s truthful statement that A.R. was
being transferred from Mandeville High School to Lakeshore High
School “carried the false, defamatory implication that A.R. performed
oral sex on a school bus.” According to her, because Darouse knew of the
rumors of A.R.’s alleged sexual conduct on the school bus, his
statements—first that she was being transferred to protect her from
rumors, and then correcting that statement to say that it was a
disciplinary reassignment—“was clearly defamation by innuendo or
implication” and defamatory per se. We hold that the district court
correctly found that Darouse could not be liable for defamation as a
matter of law.
        As the district court noted, under Louisiana law “no person shall
have a cause of action against any school employee based on any
statement made or action taken by the school employee provided that
the action or statement was within the course and scope of the school
employee’s duties.” La. Rev. Stat. Ann. § 17:439. Robinson introduced
no evidence to suggest that Darouse made any statement other than
those made during the course of the February 16, 2011 disciplinary
hearing. Nor does she dispute that Darouse was a “school employee” or
that during the hearing he was acting “within the course and scope of
[his] duties.”     Even assuming that Darouse’s statements met the

   3 Robinson calls to this court’s attention McCall v. Bossier Parish School Board, 34,983
(La. App. 2 Cir. 3/16/2001); 785 So. 2d 57, where students who were expelled and transferred
to an alternative school were deemed entitled to review by the school board. We find this
case inapposite because the students in McCall were expelled, whereas A.R. was only
transferred to another regular education high school.


                                             6
    Case: 13-31210    Document: 00512645914      Page: 7   Date Filed: 05/29/2014


                                 No. 13-31210

elements of defamation under Louisiana law, we hold that the district
court correctly found that Darouse could not be liable for defamation
because any defamatory statements were made within the scope of his
duties as the Board’s hearing officer.
      Finally, Robinson appeals the district court’s holding that her
claims of negligence for failure to supervise or train prescribed because
she filed suit more than one year after January 28, 2011, the date of the
field trip and bus ride. We hold that the district court correctly found
Robinson’s negligence claims against the Board to have prescribed.
      Pursuant to Louisiana Civil Code article 3492, “[d]elictual actions
are subject to a liberative prescription of one year. This prescription
commences to run from the day injury or damage is sustained.” La. Civ.
Code Ann. art. 3492. In her complaint, Robinson alleged that “[i]f the
allegations brought forth by [Darouse] are true, then Plaintiff asserts
that [St. Tammany Public School System] failed to adequately train the
two teachers who acted as chaperones and monitors for the trip, as they
failed to adequately supervise the students.” Robinson acknowledges
that her negligence claims were raised “in the alternative,” as there
would be no negligence if, as she contends throughout, there was no
misconduct by A.R. in the first instance. She further contends that her
negligence claim should be preserved via the Louisiana civil law maxim
of contra non valentem non currit prescriptio, which prevents the
running of liberative prescription when there is some legal cause that
prevented plaintiff from bringing suit in a timely manner.
      Without reaching the merits of her negligence claim, we affirm the
district court’s finding of prescription. Even assuming negligence on the
part of the school district, the negligent acts could only have occurred on



                                         7
    Case: 13-31210    Document: 00512645914     Page: 8   Date Filed: 05/29/2014


                                 No. 13-31210

or before January 28, 2011, more than one year before Robinson filed her
complaint. Robinson provides no authority or logic that would support a
conclusion that, based on the unique facts of this case, she or A.R. would
only have learned of her injury for prescription purpose at the moment
either the hearing officer or the district court found that the misconduct
she denies committing actually occurred.
      For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment against Robinson and A.R.




                                       8
