     Case: 13-50599      Document: 00512620729         Page: 1    Date Filed: 05/06/2014




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

                                                                                  FILED
                                                                                May 6, 2014
                                      No. 13-50599
                                                                               Lyle W. Cayce
                                                                                    Clerk
PAULINA MARQUEZ, Individually and as Next Friend of C.M., IV, a Minor,

                                                 Plaintiff - Appellee

v.

BARBARA GARNETT,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CV-168


Before JONES, SMITH and OWEN, Circuit Judges.
EDITH H. JONES, Circuit Judge: *
       Barbara Garnett (“Garnett”), a teacher’s aide at a Texas public school,
appeals the district court’s denial of qualified immunity in a suit against
Garnett by Paulina Marquez (“Marquez”), mother of C.M., alleging violations
of C.M.’s substantive due process rights under 42 U.S.C. § 1983. After due
consideration, we REVERSE and REMAND for dismissal of the case against
Garnett.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50599
                         I.     FACTS AND PROCEEDINGS
      C.M. attended Roy Benavidez Elementary School (the “School”), which is
a part of the South San Antonio Independent School District (the “School
District”) in San Antonio, Texas. On March 4, 2011, C.M. was seven years old
and was severely autistic, physically disabled, and unable to speak.                  He
required constant supervision in a special-needs classroom. This classroom
was staffed by one teacher and three teacher’s aides, one of whom was Garnett.
      According to the amended complaint, C.M. picked up a compact disc,
belonging to Garnett, which was left out on a table in the classroom, and began
sliding the disc across the table. Garnett, in reaction, “cursed and yelled at
C.M., grabbed him from behind in a forceful and frightening manner, shoved
him to the side and repeatedly kicked [him].” After the incident, C.M. “was
scared” and “was not the same person.” His “development was significantly
set back” and he “has since been diagnosed with posttraumatic stress disorder.”
Marquez noticed bruises on C.M.’s body, though the complaint does not identify
other specific physical injuries. For her conduct, Garnett was charged in state
court with assault causing bodily injury.                  She was later placed on
administrative leave and was required to surrender her teaching certificate.
      Marquez, individually and as next friend of C.M., sued Garnett, School
Principal Brenda Riley (“Riley”) 1 and the School District in federal court. In
her first amended complaint, Marquez asserted 42 U.S.C. § 1983 claims
against all defendants, assault and battery claims against Garnett, and
negligence and intentional infliction of emotional distress claims against
Garnett and the principal. The Section 1983 claim against Garnett alleged
that, in assaulting C.M., Garnett deprived C.M. of his constitutionally
recognized liberty interest to be free from abuse.


      1   Riley has not been served and has not made an appearance in this case.
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                                  No. 13-50599
      Garnett and the School District moved to dismiss the first amended
complaint for failure to state a claim and for lack of subject-matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(6). Garnett asserted that she was
entitled to qualified immunity. The district court granted in part and denied
in part the motion to dismiss. It held that the state law tort claims were barred
by Section 101.106 of the Texas Tort Claims Act.
      However, the court held that Marquez had asserted a plausible Section
1983 claim against Garnett and that Garnett was not entitled to qualified
immunity.    The court began by addressing the first part of the qualified
immunity inquiry: whether, assuming the facts in the complaint to be true,
Garnett violated C.M.’s substantive due process right to be free from bodily
harm. Quoting Fee v. Herndon, 900 F.2d 804 (5th Cir. 1990), the court stated:
“[c]orporal punishment in public schools is a deprivation of substantive due
process when it is arbitrary, capricious, or wholly unrelated to the legitimate
state goal of maintaining an atmosphere [conducive] to learning.” Under this
precedent, the court “decline[d] to conclude that defendant Garnett’s actions
toward C.M., conduct which resulted in criminal charges, [were] necessarily in
furtherance of maintaining discipline, punishing C.M. for some kind of school
related misconduct, or the legitimate goal of maintaining an atmosphere
conducive to learning.” The court thus held that Garnett’s alleged conduct
violated C.M.’s right to be free from bodily harm.
      The court next addressed the second part of the qualified immunity
inquiry: whether the right violated was clearly established. The court held
that “the right of a student to be free from assault by a school official was
clearly established at the time of the incident in question and defendant
Garnett knew, or should have known, her actions, if proven, violated C.M.’s
constitutional rights.” In doing so, the court noted allegations that Garnett’s
actions were “unlawful, deliberate, malicious, reckless, wanton, unreasonable,
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                                    No. 13-50599
arbitrary, capricious and wholly unrelated to any legitimate state goal or
interest.” Because Garnett’s alleged conduct violated a clearly established
right, the court refused to dismiss on the basis of qualified immunity.
      The district court also held that cognizable Section 1983 claims had been
asserted against the School District and the principal. Pending before this
court is Garnett’s interlocutory appeal challenging the district court’s decision
to deny her qualified immunity.
                              II.     DISCUSSION
      Garnett contends that the district court erred in not granting her motion
to dismiss and that she is entitled to qualified immunity because her actions
fit within this circuit’s corporal punishment case law. For the reasons stated
below, we agree with Garnett.
      We review de novo a district court’s refusal to dismiss on the basis of
qualified immunity. Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011)(en
banc). In doing so, the court accepts “all well pleaded facts as true and draw[s]
all reasonable inferences in favor of the nonmoving party.” Id. However, the
court may “not presume true a number of categories of statements, including
legal conclusions; mere labels; [t]hreadbare recitals of the elements of a cause
of action; conclusory statements; and naked assertions devoid of further factual
enhancement.” Id. (alteration in original; internal quotation marks omitted).
      “To state a Section 1983 claim, a plaintiff must (1) allege a violation of a
right secured by the Constitution or laws of the United States and
(2) demonstrate that the alleged deprivation was committed by a person acting
under color of state law.” Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013)
(internal quotation marks omitted), cert. denied, 2014 WL 1659881
(April 28, 2014) (No. 13-693). “A [S]ection 1983 complaint must state specific
facts, not simply legal and constitutional conclusions.” Fee, 900 F.2d at 807.


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                                  No. 13-50599
      Qualified immunity shields a government official from Section 1983
liability if the official’s acts were objectively reasonable in light of clearly
established law at the time of the official’s conduct. Atteberry v. Nocona Gen.
Hosp., 430 F.3d 245, 253 (5th Cir. 2005). “When a defendant invokes qualified
immunity, the burden is on the plaintiff to demonstrate the inapplicability of
the defense.” Id. We evaluate qualified immunity under a two-part test:
(1) “whether the facts that a plaintiff has alleged . . . make out a violation of a
constitutional right,” and (2) “whether the right at issue was clearly
established at the time of defendant’s alleged misconduct.”            Pearson v.
Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 816 (2009) (internal quotation
marks omitted). If both inquiries are answered in the affirmative, the official’s
alleged conduct “violated a clearly established constitutional right” and the
official is not entitled to qualified immunity. Id.
      In Ingraham v. Wright, the Supreme Court rejected Eighth Amendment
and procedural due process claims for corporal punishment and held that while
“corporal punishment in public schools implicates a constitutionally protected
liberty interest,” the state may impose sufficient post-punishment safeguards
to satisfy procedural due process concerns. 430 U.S. 651, 672, 682, 97 S. Ct.
1401, 1413, 1418 (1977).       Consequently, while “paddling of recalcitrant
children has long been an accepted method of” discipline in the schools,
“reasonable limits traditionally have been imposed upon student discipline so
as not to give teachers a license to commit state-sanctioned child abuse.” Fee,
900 F.2d at 807-08. In Fee, when a sixth grade special-education student
became disruptive during classroom instruction, the principal paddled the
child three times on the buttocks, causing welts and scrapes on the child’s body.
900 F.2d at 806.     The Fees alleged that their son was hospitalized as a
consequence of the beating and forced to spend a total of six months in a
psychiatric ward. Id. The court stated that “corporal punishment in schools
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                                  No. 13-50599
‘is a deprivation of substantive due process when it is arbitrary, capricious, or
wholly unrelated to the legitimate state goal of maintaining an atmosphere
conducive to learning.’” Id. at 808 (citing Woodard v. Los Fresnos Ind. Sch.
Dist., 732 F.2d 1243, 1246 (5th Cir. 1984)). We reasoned, however, that
      [I]njuries sustained incidentally to corporal punishment,
      irrespective of the severity of these injuries or the sensitivity of the
      student, do not implicate the due process clause if the forum state
      affords adequate post-punishment civil or criminal remedies for
      the student to vindicate legal transgressions. . . . [S]tates that
      affirmatively proscribe and remedy mistreatment of students by
      educators do not, by definition, act “arbitrarily,” a necessary
      predicate for substantive due process relief.

Id. (italics in original). We observed that Texas “afford[ed] students post-
punishment criminal or civil remedies” if teachers impose more than a
reasonable measure of corporal punishment. Id. In the context of school
discipline, and with adequate state remedies in place, we affirmed the
dismissal of the substantive due process claim. Id. at 809-10.
      The Fee analysis was applied to dismiss a Section 1983 suit against a
Texas gym teacher in Moore v. Willis Independent School District, 233 F.3d
871, 873 (5th Cir. 2000)(gym teacher told an eighth-grade student to do 100
“squat-thrusts” as punishment for talking during roll call, and the student
allegedly suffered injuries as a result). Because Texas provided criminal and
civil remedies, and the conduct at issue was corporal punishment, no
substantive due process right was violated. Id. at 875-76. On the other hand,
a substantive due process claim against a public school teacher was allowed to
proceed where the teacher’s conduct lacked any pedagogical justification. See
Jefferson v. Ysleta Independent School District,      817 F.2d 303, 304 (5th Cir.
1987) (teacher tied a second-grade student to a chair using a jump rope over
the course of two school days without any punishment or disciplinary
justification.)
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                                       No. 13-50599
       Stripped of multiple conclusory statements in the amended complaint,
the allegation here is that the student was sliding Garnett’s compact disc
across a table during class time and Garnett reacted. As in Fee and Moore, the
setting is pedagogical, and C.M.’s action was unwarranted. The inference must
be that Garnett acted to discipline C.M., even if she may have overreacted. 2
Because Marquez’s pleadings demonstrate corporal punishment rather than a
mere attack, the only remaining question is the sufficiency of state remedies.
The parties do not dispute that, as we found in Fee and Moore, Texas provides
criminal and civil remedies to parents like Marquez. 3 In this case, Garnett
was charged in state court with assault causing bodily injury, was placed on
administrative leave, and was required to surrender her teaching certificate in
response to her conduct. Marquez has not shown that C.M.’s substantive due
process rights were violated.
       Fifth Circuit law squarely forecloses Marquez’s claim against Garnett.
Accordingly, she was entitled to qualified immunity. For these reasons, the
judgment of the district court is REVERSED and REMANDED for dismissal
of the case against Garnett.




       2   See also Clayton ex rel. Hamilton v. Tate Cnty. Sch. Dist., No. 13-60608,
2014 WL 1202515 (5th Cir., Mar. 25, 2014) (dismissing constitutional claims against teacher
for effects of paddling in context of corporal punishment); Flores v. Sch. Bd. of Desoto Parish,
116 F. App’x 504, 510-11 (5th Cir. 2004)(the teacher’s “acts apparently were meant to punish
[the student] and did not constitute a random, malicious, and unprovoked attack” and were
therefore “properly characterized as corporal punishment”; student could not state a claim
for relief).
        3 The pertinent Texas statutes were amended in 2003, see Tex. Civ. Prac. & Rem. Code

§ 101.106(f) (West 2013), and no published opinion since has addressed this issue, nor have
the parties to this case briefed the new law.
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