                                     NO. 12-13-00358-CV

                            IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS

DARLENE FIKE AS NEXT FRIEND                         §      APPEAL FROM THE 3RD
OF HUNTER E. BODINE, A MINOR
CHILD,
APPELLANT
                                                    §      JUDICIAL DISTRICT COURT
V.

TRAVIS MILLER, JIM GREGORY,
AND LATEXO INDEPENDENT                              §      ANDERSON COUNTY, TEXAS
SCHOOL DISTRICT,
APPELLEES

                                    MEMORANDUM OPINION
        Darlene Fike, as next friend of Hunter E. Bodine, a minor child, appeals from the trial
court’s orders dismissing her suit against Travis Miller, Jim Gregory, and Latexo Independent
School District (LISD).      Fike contends that she asserted claims that should not have been
dismissed. We affirm.


                                             BACKGROUND
        Bodine is a student at LISD, and Miller is one of his coaches.            Gregory is the
superintendent of LISD. Fike, on behalf of Bodine, sued LISD, Miller, Gregory, and eight other
individuals over an incident that occurred in the school gym. According to Fike’s petition, Bodine
was in the school gym with other students when he stumbled and fell as he attempted to tap
another student on the neck. Ten to twelve students then ran to Bodine and hit and kicked him
while he was on the floor. Bodine was injured, and as a result, he rested and drank from a cup of
water instead of participating in the activities of the class.
        Miller was assigned to be in the gym supervising the students, but he was not in the gym
when Bodine was injured. While Bodine was resting, Miller approached him and told him to
discard the water. Bodine tried to tell Miller what happened, but Miller told Bodine that he did
not want to hear his excuses. Miller then asked Bodine why Bodine was in athletics. After
Bodine replied that he was in athletics because he “can be,” Miller responded that Bodine was not
fit to be in athletics because he was fat.
        As to Miller, Gregory, and LISD, Fike asserted a claim of negligence and a violation of the
Fourteenth Amendment of the United States Constitution. Miller and Gregory filed a motion to
dismiss alleging that Fike had irrevocably elected to sue LISD. Therefore, they contended that
Fike’s suit against them was barred pursuant to Texas Civil Practice and Remedies Code Section
101.106. LISD filed a plea to the jurisdiction in which it asserted that it had immunity from
Fike’s suit. The trial court granted Miller and Gregory’s motion to dismiss and LISD’s plea to the
jurisdiction. The trial court then severed Fike’s claims against Miller, Gregory, and LISD from
her claims against the students that she alleged hit and kicked Bodine.1 Therefore, the trial court’s
dismissal of Miller, Gregory, and LISD became final and this appeal followed.


                                                JURISDICTION
        In the trial court, Fike initially contended that the trial court had jurisdiction over her
claims against Miller and Gregory through the Texas Tort Claims Act.2 However, she then
abandoned that argument, contending instead that Miller, Gregory, and LISD are not immune
from suit as to her claims brought under Title 42, United States Code, Section 1983, and Texas
Education Code Section 22.0511. Therefore, she urged that the trial court has jurisdiction. On
appeal, Fike makes no argument that Miller, Gregory, and LISD’s immunity has been waived by a
provision of the Texas Tort Claims Act, but instead continues to argue that the trial court has
jurisdiction over her claims brought under Section 1983 and Texas Education Code Section
22.0511.
Standard of Review
        The absence of subject matter jurisdiction may be raised by a plea to the jurisdiction.
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). It may also be raised for the
first time on appeal. Rusk State Hosp. v. Black, 392 S.W.3d 88, 94 (Tex. 2012). The plaintiff
has the burden of alleging facts sufficient to demonstrate the trial court's jurisdiction. Tex. Dep’t
        1
           Fike sued several students for assault. She did not allege that Miller, Gregory, or any employee of LISD
participated in the assault of Bodine. The students are not parties to this appeal.
        2
            See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001-.109 (West 2011 & Supp. 2013).


                                                        2
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Whether a court has subject
matter jurisdiction is a question of law reviewed de novo. Id. If a trial court lacks jurisdiction
over some claims but not others, the trial court should dismiss those claims over which it does not
have subject matter jurisdiction but retain those claims over which it does. See Thomas v. Long,
207 S.W.3d 334, 339 (Tex. 2006).
       When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has
alleged facts that affirmatively demonstrate the trial court’s jurisdiction to hear the cause. See
Miranda, 133 S.W.3d at 226. We construe the pleadings liberally in favor of the nonmovant and
look to the nonmovant’s intent. See id. If the pleadings do not contain sufficient facts to
affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate
incurable defects in jurisdiction, the issue is one of pleading sufficiency and the nonmovant
should be afforded the opportunity to amend. Id. at 226-27. If the pleadings affirmatively negate
the existence of jurisdiction, then a plea to the jurisdiction should be granted without allowing the
nonmovant an opportunity to amend. Id. at 227.
       If a plea to the jurisdiction challenges the existence of the jurisdictional facts pleaded, we
consider relevant evidence submitted by the parties where necessary to resolve the jurisdictional
issues raised, as the trial court is required to do. See id. When the consideration of a trial court’s
subject matter jurisdiction requires the examination of evidence, the trial court exercises its
discretion in deciding whether the jurisdictional determination should be made at a preliminary
hearing or await a fuller development of the case, mindful that this determination must be made as
soon as practicable. Id. In a case in which the jurisdictional challenge implicates the merits of the
nonmovant’s cause of action and the plea to the jurisdiction includes evidence, the trial court
reviews the relevant evidence to determine if a fact issue exists. Id. If the evidence creates a fact
question regarding the jurisdictional issue, then the trial court cannot grant the plea to the
jurisdiction, and the fact issue should be left for trial. Id. at 227-28. However, if the relevant
evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court
should rule on the plea to the jurisdiction as a matter of law. Id. at 228. When reviewing a plea to
the jurisdiction in which the pleading requirement has been met and evidence has been submitted
to support the plea that implicates the merits of the case, we take as true all evidence favorable to
the nonmovant. See id. We indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor. See id.



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Section 1983 Claims

         Fike asserted claims pursuant to Section 1983 against LISD and its employees, Miller and
Gregory, in their individual capacities.              Fike alleged that Miller’s conduct supports a claim
brought under Section 1983 because it was “conduct by a person, under color of state law, [which]
proximately caused a deprivation of [Bodine’s] federally protected rights, including but not
limited to violations of the Fourteenth Amendment to the United States Constitution.” Fike
continued that LISD’s “failure to properly train its employees in the prevention and intervention
in the misconduct committed by its employees” likewise supports a claim brought under Section
1983.
         We determined that Fike needed to provide additional briefing regarding her Section 1983
claims.3 In her supplemental brief, Fike characterized her Section 1983 claims as Bodine’s having
been a victim of “peer harassment” at LISD. She claimed that the peer harassment violated
Bodine’s rights under the Equal Protection Clause and the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. See U.S. CONST. amend. XIV. She argued that
LISD and its employees engaged in deliberate indifference to the peer harassment, and this
indifference amounted to the district’s policy, custom, or practice. Further, she alleged, school
administrators ignored the need to train and supervise employees regarding peer harassment,
which, in turn, caused injury and ongoing peer harassment.
         Applicable Law
    Section 1983 provides as follows:


         Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State
         . . . , subjects, or causes to be subjected, any citizen of the United States or other person within the
         jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
         Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other
         proper proceeding for redress[.]. . .


42 U.S.C. § 1983 (2006). To state a claim upon which relief can be granted under Section 1983, a
plaintiff must allege (1) a deprivation of a federal right and (2) that the person who deprived the
plaintiff of that right acted under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.


         3
            We requested Fike to provide additional briefing that (1) specified the nature of Fike’s Section 1983 claim,
(2) identified the constitutional basis for the claim, and (3) directed us to the facts pleaded that evidence the claim or,
if necessary, explain why Fike should be provided an opportunity to replead.



                                                            4
Ct. 2250, 2254-55, 101 L. Ed. 2d 40 (1988). Section 1983 creates no substantive rights, but
instead only provides remedies for deprivation of rights created under the United States
Constitution or other federal law. Graham v. Connor, 490 U.S. 386, 393-94, 109 S. Ct. 1865,
1870, 104 L. Ed. 2d. 443 (1989).
        A plaintiff does not allege a proper Section 1983 claim through an allegation of respondeat
superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S. Ct. 1937, 1948, 173 L. Ed. 2d 868
(2009). “[E]ach Government official, his or her title notwithstanding, is only liable for his or her
own misconduct.” Id. at 677, 129 S. Ct. at 1949. For a plaintiff to plead a proper Section 1983
claim against a government official, the plaintiff must assert either (1) the official’s personal
involvement in the constitutional deprivation or (2) a sufficient causal connection between the
official’s wrongful conduct and the constitutional violation. Mesa v. Prejean, 543 F.3d 264, 274
(5th Cir. 2008). A plaintiff alleging a government official’s mere knowledge or acquiescence is
insufficient.   Iqbal, 556 U.S. at 677, 129 S. Ct. at 1949.             Section 1983 claims against
governmental officials require “claims of specific conduct and actions giving rise to a
constitutional violation” rather than merely conclusory allegations. Baker v. Putnal, 75 F.3d 190,
195 (5th Cir. 1996).
        In order to recover a judgment against a governmental entity under Section 1983, a
plaintiff must establish that he sustained a deprivation of constitutional or other federally
protected rights as a result of some official policy, practice, or custom of that governmental entity.
See Spiller v. City of Tex. City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997). A plaintiff must
allege that the custom or policy served as the moving force behind the violation at issue or that her
injuries resulted from the execution of the official policy or custom. Id. The description of a
policy or custom and its relationship to the underlying constitutional violation cannot be
conclusory; it must contain specific facts. Id.
        A plaintiff asserting a Section 1983 claim for a violation of the Equal Protection Clause
based on a suspect class must show that (1) he or she is a member of a protected class; (2) a group
similarly situated to the plaintiff (a) exists, (b) falls outside of plaintiff’s protected class, and (c)
received different treatment; and (3) the different treatment was motivated by purposeful
discrimination. Samaad v. City of Dallas, 940 F.2d 925, 940-42 (5th Cir. 1991). If not part of a
protected class, a plaintiff must then establish that he or she was treated differently than other
similarly situated parties and that the different treatment was without a reasonable basis. Sanders



                                                   5
v. Palunsky, 36 S.W.3d 222, 225 (Tex. App.—Houston [14th Dist.] 2001, no pet.); see also John
Corp. v. City of Houston, 214 F.3d 573, 577 (5th Cir. 2000) ("The Equal Protection Clause
protects individuals from governmental action that works to treat similarly situated individuals
differently.").
         A plaintiff asserting a Section 1983 claim for a violation of the Due Process Clause must
show (1) a recognized liberty or property interest and (2) intentional or reckless deprivation of that
interest, even temporarily, under color of state law. Walton v. Alexander, 44 F.3d 1297, 1301-02
(5th Cir. 1995) (en banc); see also Liberty Mut. Ins. Co. v. Tex. Dep’t of Ins., 187 S.W.3d 808,
827 (Tex. App.—Austin 2006, pet. denied) ("[I]n order to bring a substantive due process claim,
an individual must show they have a protected interest.").        The government does not owe a
constitutional duty to protect people from the wrongful acts of others in the absence of a special
relationship.     Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1414 (5th Cir. 1997).
Compulsory attendance laws restrict the freedom of students and parents, but they do not trigger
“a constitutionally rooted duty of school officials to protect students from private actors.” Id. at
1415.
      In rare circumstances, a plaintiff may proceed with a Section 1983 claim for a violation of the
Due Process Clause under a state-created-danger theory. See id. For the state-created-danger
theory to apply, the state actors must have created a dangerous environment that they knew to be
dangerous and their use of authority created an opportunity that would not otherwise have existed.
Id.
         Analysis

         Although Fike complied with our request to provide additional briefing, we continue to
have difficulty identifying her perceived constitutional violations.         She refers to Miller’s
“mindset” and contends that LISD was indifferent to or authorized Miller’s conduct that had
authorized or allowed the peer harassment. Her pleadings were even less specific and did not
constitute an assertion of personal involvement in the constitutional deprivation or a causal
connection between the defendants’ conduct and the alleged constitutional violation. Mesa, 543
F.3d at 274.
         Further, Fike’s allegation that Miller, Gregory, and LISD are liable for a violation of the
Equal Protection Clause is not sufficient. Fike admits that Bodine is not a member of a protected
class. She has failed to allege how Bodine was treated differently than anyone else. See Sanders,



                                                   6
36 S.W.3d at 225.        Also, she failed to explain how the different treatment was without a
reasonable basis. Id. And she has not identified any official policy, practice, or custom of LISD
that resulted in a deprivation of Bodine’s rights. See Spiller, 130 F.3d at 167. Put simply, Fike
has not alleged facts showing that Bodine’s rights under the Equal Protection Clause were
violated.
       To the extent that Fike seeks to hold Miller, Gregory, and LISD responsible for the actions
of the individuals that hit and kicked Bodine based on a violation of the Due Process Clause, the
facts do not support her. First, there is no evidence or allegation that Miller knew Bodine would
be hit and kicked by the other students. While Miller was potentially negligent in leaving the
students unsupervised, his conduct does not rise to the level of a constitutional violation.
Certainly, Fike’s pleadings do not support a finding that Miller could be found liable under a
state-created-danger theory. See Doe, 113 F.3d at 1414. As for Gregory and LISD, Fike’s
pleadings fail to identify any conduct on their part that constitutes an intentional or reckless
deprivation of a recognized liberty or property interest. See Walton, 44 F.3d at 1301. Again,
even assuming that Fike’s allegation that LISD failed to properly train Miller to supervise the
class is the basis for her Due Process Claim, the alleged conduct falls short of a violation of the
Due Process Clause. Moreover, Fike has not identified any official policy, practice, or custom
that resulted in Bodine’s injuries. See Spiller, 130 F.3d at 167.
       In sum, Fike has failed to allege Section 1983 claims against Miller, Gregory, or LISD.
Further, Fike’s pleading defects cannot be cured because the facts of the incident involving
Bodine do not rise to the level of constitutional violations. Accordingly, Fike’s Section 1983
claims were properly dismissed. See Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840
(Tex. 2007).
Texas Education Code Section 22.0511
       Fike contends that Section 22.0511(a) of the Texas Education Code provides for an
independent waiver of immunity outside the provisions of the Texas Tort Claims Act. She argues
that it was incumbent upon Miller, Gregory, and LISD to plead this affirmative defense and the
trial court’s dismissal was erroneous due to their failure to do so. That section states as follows:


       A professional employee of a school district is not personally liable for any act that is incident to or
       within the scope of the duties of the employee’s position of employment and that involves the
       exercise of judgment or discretion on the part of the employee, except in circumstances in which a




                                                          7
         professional employee uses excessive force in the discipline of students or negligence resulting in
         bodily injury to students.


TEX. EDUC. CODE ANN. § 22.0511(a) (West 2012). The Texas Supreme Court construed identical
language in a predecessor statute as abrogating immunity when an employee uses excessive force
in discipline or engages in negligent discipline. Hopkins v. Spring Indep. Sch. Dist., 736 S.W.2d
617, 619 (Tex. 1987). Negligent discipline is punishment that involves no force but rather
requires some action on the part of the student, such as running laps, that results in the student’s
suffering bodily injury. Id. (citing Diggs v. Bales, 667 S.W.2d 916, 918 (Tex. App.—Dallas
1984, writ ref’d n.r.e.)). To allege a negligent discipline claim, a plaintiff must assert (1) the
school district employee was negligent, (2) the circumstances involved student discipline, (3) the
punishment required action on the part of the student, and (4) the student suffered bodily injury as
a result of the punishment. See id.
         Here, there is no discipline by a school district employee that resulted in injury to Bodine.
Bodine was not being disciplined when he was hit and kicked by the other students. Instead, the
only potential punishment levied against Bodine was Miller’s demand that Bodine throw away his
cup of water. But, Bodine did not suffer bodily injury when he threw away his water. Gregory
and LISD had nothing to do with any punishment of Bodine. Thus, Fike did not state a cause of
action to which Section 22.0511(a) would apply. See id.


                                                    CONCLUSION
         Fike did not plead viable claims under United States Code Title 42, Section 1983. Nor did
she plead a claim invoking Texas Education Code Section 22.0511(a). Therefore, the trial court
did not err in dismissing Fike’s suit against Miller, Gregory, and LISD. We overrule Fike’s sole
issue. Accordingly, we affirm the trial court’s dismissal of Fike’s suit against Miller, Gregory,
and LISD.
                                                                          BRIAN HOYLE
                                                                                 Justice

Opinion delivered July 23, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

                                                     (PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JULY 23, 2014


                                          NO. 12-13-00358-CV


                        DARLENE FIKE AS NEXT FRIEND OF
                       HUNTER E. BODINE, A MINOR CHILD,
                                     Appellant
                                        V.
                    TRAVIS MILLER, JIM GREGORY, AND LATEXO
                        INDEPENDENT SCHOOL DISTRICT,
                                     Appellees


                                  Appeal from the 3rd District Court
                        of Anderson County, Texas (Tr.Ct.No. 3-41442-A)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellant, DARLENE FIKE, for which execution may issue, and that this decision
be certified to the court below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Griffith, and Hoyle, J.
