     Case: 14-50788      Document: 00512892939         Page: 1    Date Filed: 01/07/2015




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

                                                                                  FILED
                                                                              January 7, 2015

                                    No. 14-50788                               Lyle W. Cayce
                                                                                    Clerk
                                  Summary Calendar


SAMUEL PIERCE, Individually and as Representative of the Estate of
De’Jon Pierce; PLEZZETTE PIERCE, Individually and as Representative of
the Estate of De’Jon Pierce,

                                                 Plaintiffs-Appellants

v.

HEARNE INDEPENDENT SCHOOL DISTRICT; DARREL TROJACEK, in
his Individual Capacity; CARL TROJACEK, in his Individual Capacity;
ANTHONY KEITH MCGILL, in his Individual Capacity,

                                                 Defendants-Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:13-CV-334


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Samuel and Plezzette Pierce brought tort and Section 1983 claims
against Hearne Independent School District and others after their son was


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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killed while driving his teacher’s all-terrain vehicle.            The district court
dismissed the tort claims for lack of subject-matter jurisdiction and the Section
1983 claims for failure to state a claim.              It also declined to exercise
supplemental jurisdiction over the Pierces’ remaining state-law claims and
denied their request to replead. We AFFIRM.
                 FACTS AND PROCEDURAL BACKGROUND
      This case involves the tragic death of De’Jon Pierce, a junior at Hearne
High School. De’Jon’s death occurred in March 2012 when he lost control of an
all-terrain vehicle (“ATV”) owned by Darrell Trojacek, his “Ag Mechanics”
teacher, and crashed into a tree. Trojacek, with the permission of Principal
Anthony McGill, regularly withdrew De’Jon and other students from school to
work on his farm as part of their coursework. He allowed the students to drive
his ATV on these occasions.
      On the day of the accident, Trojacek withdrew De’Jon and other students
from school to clean pigs at his farm.             After cleaning the pigs, Trojacek
instructed De’Jon and another student to deliver a tool to his father’s ranch,
which was approximately one mile away.               De’Jon made this trip without
incident. On the return trip, however, he lost control of the ATV and struck a
tree. While the passenger survived, De’Jon died of blunt force trauma.
      De’Jon’s parents filed tort claims against Hearne I.S.D. under the Texas
Tort Claims Act (“TTCA”); 1 Section 1983 claims against Hearne I.S.D.,
Principal McGill, and Trojacek; and pendent state-law claims against
Trojacek’s father. The district court dismissed the tort claims under Federal
Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction on the



      1 The Pierces concede that they are not entitled to pursue tort claims against both
Hearne I.S.D. and its employees and that their claims against the school bar their claims
against Trojacek and Principal McGill. See TEX. CIV. PRAC. & REM. CODE § 101.106.
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basis of sovereign immunity, dismissed the Section 1983 claims under Rule
12(b)(6) for failure to state a claim, declined to exercise supplemental
jurisdiction over the remaining state-law claims, and denied the Pierces’
request to replead.
      The Pierces timely appealed to this court.
                                DISCUSSION
I.    Tort Claims
      We review de novo a district court’s dismissal for lack of subject-matter
jurisdiction pursuant to Rule 12(b)(1). Ballew v. Cont. Airlines, Inc., 668 F.3d
777, 781 (5th Cir. 2012). The Eleventh Amendment strips courts of jurisdiction
over claims against a state that has not consented to suit. See Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984). In Texas, school
districts are treated as “governmental units” and immunized from tort liability
under the TTCA unless the claim relates to “property damage, personal injury,
or death aris[ing] from the operation or use of a motor-driven vehicle . . . .”
TEX. CIV. PRAC. & REM. CODE §§ 101.001(3)(B), 101.021(1)(A), 101.025,
101.051. The Supreme Court of Texas has interpreted this statute as requiring
that the “operation or use [be] that of the [school] employee.” LeLeaux v.
Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992).
      In this case, De’Jon was driving the ATV at the time of his accident.
Nevertheless, the Pierces argue that they are entitled to recover because
Trojacek, a school employee, ordered De’Jon to drive the ATV. In support of
this contention they cite two decisions in which Texas state courts applied the
motor-vehicle exception even though a government employee was not
operating the vehicle that caused the plaintiff’s injuries. See City of El Campo
v. Rubio, 980 S.W.2d 943, 947 (Tex. App.—Corpus Christi 1998, pet. dism’d


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w.o.j.); County of Galveston v. Morgan, 882 S.W.2d 485, 491 (Tex. App.—
Houston [14th Dist.] 1994, writ denied).
      We reject this approach, for two reasons. First, the Texas Supreme Court
has held that the motor-vehicle exception does not apply to situations in which
a government employee was not operating the vehicle that caused the
plaintiff’s injuries. See LeLeaux, 835 S.W.2d at 51. Numerous Texas appellate
decisions have recognized this explicit interpretation. 2 The Pierces categorize
this requirement as “extra-statutory” and argue that we should decline to
enforce it. Whatever the merits of this claim, the Texas Supreme Court is the
final authority regarding the meaning of Texas statutes, and we are bound by
its interpretation in this case.
      Second, even if we were to adopt the exception advanced in the decisions
the Pierces cite, that exception would not apply in this case. The courts in both
of the cited cases based their holdings on the fact that a government employee,
while not operating the vehicle that injured the plaintiff, exercised complete
control over the plaintiff’s movements at the time of the accident. See Rubio,
980 S.W.2d at 946; Morgan, 882 S.W.2d at 490.                   In this case, Trojacek
instructed De’Jon to drive his ATV to his father’s farm and back, but he was
not present at the time of the accident and did not exercise control over
De’Jon’s movements during the trip.           Accordingly, Rubio and Morgan are
inapplicable.
      We hold that Hearne I.S.D. is immune from tort liability under the Texas
Tort Claims Act.



      2  See, e.g., McLennan Cnty. v. Veazey, 314 S.W.3d 456, 462 (Tex. App.—Waco 2010,
pet. denied); Elgin Indep. Sch. Dist. v. R.N., 191 S.W.3d 263, 268 (Tex. App.—Austin 2006,
no pet.); Tarkington Indep. Sch. Dist. v. Aiken, 67 S.W.3d 319, 326 (Tex. App.—Beaumont
2002, no pet.).
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II.    Section 1983 Claims
       We review a dismissal under Rule 12(b)(6) de novo, “accepting all well-
pleaded facts as true and viewing those facts in the light most favorable to the
plaintiff.” Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007) (citation omitted).
To state a claim under Section 1983, “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.” James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th
Cir. 2008) (internal quotations and citation omitted).
       The Pierces claim that Hearne I.S.D., Principal McGill, and Trojacek
violated De’Jon’s substantive due process rights, namely his right to bodily
integrity.    A due process violation results from “deliberate decisions of
government officials to deprive a person of life, liberty, or property.” Daniels
v. Williams, 474 U.S. 327, 331 (1986). “Actions and decisions by officials that
are merely inept, erroneous, ineffective, or negligent do not amount to
deliberate indifference and do not divest officials of qualified immunity.” Alton
v. Texas A&M Univ., 168 F.3d 196, 201 (5th Cir. 1999) (citation omitted). As
the Seventh Circuit has explained, deliberate indifference entails “conduct that
reflects complete indifference to risk—when the actor does not care whether
the other person lives or dies, despite knowing that there is a significant risk
of death.”    Salazar v. City of Chicago, 940 F.2d 233, 238 (7th Cir. 1991)
(citations and internal quotations omitted). 3
       We separately examine the Pierces’ claims against each of the
defendants.



       3We have cited Salazar favorably on multiple occasions. See Hare v. City of Corinth,
74 F.3d 633, 645-46 (5th Cir. 1996); Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 531 (5th
Cir. 1994).
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   a. Claim against Trojacek
       The Pierces allege that Trojacek removed De’Jon from school without
their permission, instructed him to ride double on an ATV despite the fact that
he did not have a driver’s license, did not properly instruct him on how to
operate the ATV, and did not provide him with any safety gear. They also
allege that the ATV was improperly maintained.
       These allegations do not suffice to show deliberate indifference. Trojacek
may have been negligent by removing De’Jon from school and instructing him
to drive his ATV, but his actions do not reveal a complete disregard for human
life and an indifference to a significant risk of death. Nor does our case law
support such a conclusion. The cases cited by the Pierces, which relate to
sexual abuse and prolonged physical restraint by teachers, are inapposite. See
Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 451 (5th Cir. 1994); Jefferson v.
Ysleta Indep. Sch. Dist., 817 F.2d 303, 305 (5th Cir. 1987). 4 Trojacek did not
deliberately abuse, restrain, threaten, or touch De’Jon.                  Indeed, there is
nothing to suggest that Trojacek intended to harm De’Jon at all or even that
he foresaw harm and willfully disregarded it. In order to find a violation under
these facts, we would be forced to greatly expand the concept of substantive
due process, something the Supreme Court has been reluctant to do. See
Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). Accordingly, we
conclude that Trojacek did not act with deliberate indifference.
       For substantially the same reasons, the district court properly concluded
that Trojacek was entitled to qualified immunity because he did not violate a


       4 On appeal, the Pierces also rely on our decision in Morris v. Dearborne, 181 F.3d 657
(5th Cir. 1999). But we do not think Trojacek’s actions can be properly analogized to a teacher
who purposefully fabricated claims that a father sexually abused his four-year-old daughter
and thereby caused protective services to suspend the father’s contact with his daughter for
three years. See id. at 668.
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clearly established constitutional right. See Pearson v. Callahan, 555 U.S. 223,
232 (2009).
   b. Claim against Principal McGill
      The Pierces base their Section 1983 claim against Principal McGill on a
theory of supervisory liability. Under this theory, “the plaintiff must show
that: (1) the supervisor either failed to supervise or train the subordinate
official; (2) a causal link exists between the failure to train or supervise and
the violation of the plaintiff’s rights; and (3) the failure to train or supervise
amounts to deliberate indifference.” Smith v. Brenoettsy, 158 F.3d 908, 911-12
(5th Cir. 1998) (citation omitted).    Deliberate indifference in this context
ordinarily requires a “pattern of similar constitutional violations by untrained
employees . . . .” Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011); see also
Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003).
      The Pierces claim that Principal McGill acted with deliberate
indifference when he permitted Trojacek to take students to work on his farm
without their parents’ permission. For reasons similar to those discussed
above, we agree with the district court’s conclusion that Principal McGill’s
actions constituted, at most, negligence.      Moreover, the Pierces have not
demonstrated that a pattern of constitutional injuries resulted from Principal
McGill’s actions.    Therefore, Principal McGill did not act with deliberate
indifference. Additionally, Principal McGill was entitled to qualified immunity
because he did not violate a clearly established constitutional right.
   c. Claim against Hearne I.S.D.
      The district court dismissed the Pierces’ Section 1983 claim against
Hearne I.S.D. after concluding that this court has not recognized the “state-
created danger theory” upon which the claim rested and, regardless, the
Pierces failed to state such a claim because they did not allege facts

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demonstrating that Hearne I.S.D. was deliberately indifferent to an immediate
danger facing a known victim. See Doe ex rel. Magee v. Covington Cnty. Sch.
Dist. ex rel. Keys, 675 F.3d 849, 864, 866 (5th Cir. 2012). The district court also
held that Hearne I.S.D. could not be held vicariously liable because the
doctrine of respondeat superior does not apply in Section 1983 cases. See
Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003).
       The Pierces do not contest these conclusions. Instead, they contend that
the district court failed to address a separate legal theory supporting their
Section 1983 claim.        According to the Pierces, they asserted a traditional
municipal liability theory supporting their claim in both their complaint and
their response to the defendants’ motion to dismiss. Recovery under this
theory “requires proof of 1) a policymaker; 2) an official policy; 3) and a
violation of constitutional rights whose ‘moving force’ is the policy or custom.”
Id. (citations omitted).
       The Pierces’ complaint does not articulate this theory as a basis for their
Section 1983 claim. The complaint titles its Section 1983 claims “State Created
Danger Claim[s].” Moreover, it does not make claims about policymakers,
policies or customs, 5 or their relationship to the alleged constitutional
violation.    Instead, the allegations relate to the state-created danger and
vicarious liability theories. The Pierces did, however, clearly articulate the
municipal liability theory in their response to the defendants’ motion to
dismiss.


       5  The complaint did allege that: (1) Trojacek violated school policy by removing De’Jon
from school without his parents’ permission, and that Principal McGill knowingly allowed
this violation to take place; and (2) Hearne I.S.D. did not have a policy against keeping
livestock at its teachers’ private residences. The former allegation suggests that Hearne
I.S.D.’s policies were designed to guard against, rather than facilitate, the alleged
constitutional violations. The latter allegation suggests the absence, rather than presence,
of policies relating to the alleged violations.
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        The district court did not discuss the municipal liability theory in its
order of dismissal. This may have been error. Generally, a new claim or legal
theory raised in response to a dispositive motion should be construed as a
request for leave to amend the complaint, and the district court should
determine whether leave should be granted. 6 See Stover v. Hattiesburg Pub.
Sch. Dist., 549 F.3d 985, 989 n.2 (5th Cir. 2008) (collecting cases).
        We have at times remanded to the district court for consideration of an
issue injected into a case in this manner. See Riley v. Sch. Bd. Union Parish,
379 F. App’x 335, 341 (5th Cir. 2010). We decline to do so here because all
theories of liability under Section 1983 require the plaintiff to demonstrate the
violation of a constitutional right. In this case, the same alleged substantive
due process violation forms the basis for all of the Pierces’ Section 1983
theories.    Therefore, because we affirm the district court’s ruling that no
violation of substantive due process occurred, we must necessarily conclude
that granting the Pierces leave to amend would be futile.


III.    Opportunity to Replead
        “We review the denial of leave to amend the complaint for abuse of
discretion.” Hermann Holdings Ltd. v. Lucent Techs. Inc., 302 F.3d 552, 558
(5th Cir. 2002) (citation omitted). Generally, courts should give plaintiffs at
least one opportunity to cure pleading deficiencies before dismissing a case
under Rule 12(b)(6). See Great Plains Trust Co. v. Morgan Stanley Dean Witter
& Co., 313 F.3d 305, 329 (5th Cir. 2002). The court may deny leave to amend,



        6 New factual allegations, however, need not be so construed unless the plaintiff
explicitly requests leave to amend and expresses the grounds upon which the amendment is
sought with particularity. See United States ex rel. Willard v. Humana Health Plan of Tex.
Inc., 336 F.3d 375, 387 (5th Cir. 2003).
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however, if the defects are incurable or the plaintiffs have already alleged their
best case. See id.; Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998).
        Trojacek was not driving the ATV that caused De’Jon’s death and did not
exercise control over De’Jon’s movements at the time of the accident. Because
at least the latter element is required to demonstrate a waiver of sovereign
immunity under the TTCA, we conclude that the district court did not abuse
its discretion in determining that the Pierces pled their best case as to those
claims. Additionally, because the Pierces do not contest the dismissal of their
original Section 1983 claims and we have concluded that leave to amend would
be futile as to their later-asserted claim, we conclude that the district court did
not abuse its discretion in determining that they also pled their best case as to
their Section 1983 claims.


IV.     Supplemental Jurisdiction Over State-Law Claims
        “We review a district court’s decision to decline jurisdiction over pendent
state-law claims for an abuse of discretion.” Batiste v. Island Records Inc., 179
F.3d 217, 226 (5th Cir. 1999) (citations omitted). A district court may decline
to exercise supplemental jurisdiction if: “(1) the claim raises a novel or complex
issue of State law, (2) the claim substantially predominates over the claim or
claims over which the district court has original jurisdiction, (3) the district
court has dismissed all claims over which it has original jurisdiction, or (4) in
exceptional circumstances, there are other compelling reasons for declining
jurisdiction.” 28 U.S.C. § 1367(c). The dismissal of all federal claims provides
“a powerful reason to choose not to continue to exercise jurisdiction.” Carnegie-
Mellon Univ. v. Cohill, 484 U.S. 343, 351 (1988); see also United Mine Workers
of Am. v. Gibbs, 383 U.S. 715, 726 (1966); Batiste, 179 F.3d at 227.


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      Because we affirm the district court’s dismissal of the Pierces’ federal
claims, we conclude that it did not abuse its discretion by declining to exercise
supplemental jurisdiction over the Pierces’ state-law claims against Trojacek’s
father on the basis of the second and third Section 1367(c) factors.
      AFFIRMED.




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