     Case: 08-11220     Document: 00511049726          Page: 1    Date Filed: 03/12/2010




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

                                                  FILED
                                                                           March 12, 2010

                                       No. 08-11220                    Charles R. Fulbruge III
                                                                               Clerk

ELIA MOORE,

                                                   Plaintiff-Appellant,
v.

DALLAS INDEPENDENT SCHOOL DISTRICT,

                                                   Defendant-Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 3:07-CV-00009-D


Before BENAVIDES, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Appellant Elia Moore sued her employer, Dallas Independent School
District (DISD) under 42 U.S.C. § 1983, alleging that the injuries she suffered
as a result of a fight between two students were caused by a “state-created
danger.” Moore also brought a § 1983 claim for violations of her due process
rights when she was terminated while on medical leave. In thorough and well-
reasoned opinions, the district court granted judgment on the pleadings under
Federal Rule of Civil Procedure 12(c) for DISD on the state-created-danger claim

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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and summary judgement under Rule 56(c) for DISD on the due process claim.
We affirm.
                                        I
      The district court provided a thorough and comprehensive account of the
facts of the case in its rulings, so we only briefly summarize them here. Moore’s
lawsuit against DISD stems from two somewhat related incidents. The first
incident involves a fight between two middle-school students that occurred while
Moore was teaching at Marsh Middle School. Another teacher intervened to stop
the fight. During the struggle, the teacher and the two students careened across
the hallway and collided with Moore, causing her to fall. Moore suffered injuries
to her knees, neck, and back.
      The second incident involves the erroneous termination of Moore for job
abandonment.     In May 2005, a doctor restricted Moore from work due to
disabling depression. Believing that she remained assigned to Arthur Kramer
Elementary School, Moore sent in her request for disability leave from that
school. But unbeknownst to Moore, she had since been transferred to Walker
Middle School. As a result of apparent administrative oversight, several months
passed before the request reached Walker Middle School. By the time Walker
Middle School received Moore’s request, the new school year had started and the
school administration reported her to DISD for job abandonment. This report
led to the initiation of termination proceedings.       In the meantime, Moore
obtained disability leave based on her injuries resulting from the altercation at
Marsh Middle School. When she tried to return to work, she was informed that
she had been terminated for job abandonment. After Moore informed DISD’s
administrative staff of this issue, she was rehired as an Academic Coordinator
and obtained retroactive, fully paid assault leave.      Moore continues to be
employed by DISD. Moore does not dispute DISD’s claim that her termination
was the result of an administrative oversight.

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                                        II
      Moore sued under § 1983, asserting three causes of action: (1) deprivation
of procedural due process for termination without notice, (2) deprivation of
substantive due process for arbitrary and capricious termination, and (3)
deprivation of her right to bodily integrity under the “state-created danger”
doctrine. The district court dismissed the state-created-danger claim under Rule
12(c), holding that Moore failed to plead (1) affirmative state action or (2)
deliberate indifference. Moore v. Dallas Indep. Sch. Dist., 557 F. Supp. 2d 755
(N.D. Tex. 2008). The district court later granted DISD’s motion for summary
judgment on the due process claims, holding that no reasonable jury could
conclude that Moore’s termination was an official act or policy of the DISD Board
of Trustees (the Board). Moore v. Dallas Indep. Sch. Dist., No. 3:07-CV-00009-D,
2008 WL 5000058 (N.D. Tex. Nov. 24, 2008).
                                       III
      We review a grant of judgment on the pleadings de novo. Doe v. MySpace,
Inc., 528 F.3d 413, 418 (5th Cir. 2008). A motion for judgment on the pleadings
is subject to the same standard as a motion to dismiss under Rule 12(b). Id.
“Although we must accept the factual allegations in pleadings as true, a plaintiff
must plead enough facts to state a claim to relief that is plausible on its face.”
Id. (internal quotation marks and citations omitted). We likewise review a grant
of summary judgment de novo, applying the same standard as the district court.
QBE Ins. Corp. v. Brown & Mitchell, Inc., 591 F.3d 439, 442 (5th Cir. 2009).
      To state a claim under § 1983, “a plaintiff must (1) allege a violation of
rights 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.” Lauderdale v. Tex. Dept. of Criminal Justice, 512 F.3d
157, 165 (5th Cir. 2007) (internal quotation marks and citation omitted). In
addition, a local government entity like an independent school district cannot be

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held liable under a respondeat superior theory; the alleged constitutional
violation must constitute the official act, policy, or custom of the district. See
Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998).
       Moore appeals the district court’s grant of judgment on the pleadings to
DISD on her state-created-danger claim. The district court held that Moore’s
allegations could not establish affirmative state action, an essential element of
her claim. Moore, 557 F. Supp. 2d at 768. On appeal, Moore reasserts her claim
that DISD attempted to conceal the problem of school violence by under-
reporting the number of violent incidents. She argues that this under-reporting
increased her risk of being injured by student fights. We agree with the district
court that Moore’s claims essentially sound in nonfeasance: she alleges that
DISD failed to warn teachers of the level of school violence, failed to provide
adequate training to teachers and failed to curb the level of violence. The
district court correctly determined that these allegations cannot establish that
“DISD through affirmative acts created or rendered Moore more vulnerable to
the danger of being injured by student fights.” Id. at 767.1
       Moore also argues that the district court erred by granting summary
judgment to DISD on her due process claims. The district court held that Moore
had failed to show that her termination resulted from an official act or policy.
Moore, 2008 WL 5000058 at *2–5. Moore argues on appeal that her termination
was necessarily an official act of the Board of Trustees because only the Board
has the power to terminate a teacher’s contract. A single act can be official for

       1
         Even if we were to construe Moore’s claims as alleging that DISD took affirmative
steps to conceal the number of violent incidents, those claims still must fail. Under our
precedent, the state-created danger theory applies only when the state has “actual knowledge
of a specific risk of harm to a known victim.” Morin v. Moore, 309 F.3d 316, 322 (5th Cir.
2002); see also Rios v. City of Del Rio, Tex., 444 F.3d 417, 424 (5th Cir. 2006). Moore does not
allege that DISD had any actual knowledge that concealing the problem of school violence
created a specific risk of harm to her. Rather, she alleges that DISD’s actions increased the
danger to all school personnel, a large class of people that happened to include her. Under our
precedent, the state-created danger theory is inapplicable to this type of situation.

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the purposes of establishing liability under § 1983 if “the decision to adopt that
particular course of action is properly made by [DISD’s] authorized decision-
makers.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480–81 (1986); Gonzalez
v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 754 (5th Cir. 1993).
      As the district court noted, Moore presented no competent summary
judgment evidence that the Board “ever considered terminating [her], let alone
actually voted to discharge her.” Moore, 2008 WL 5000058 at *4. We agree with
the district court that “a reasonable jury could only find that the DISD
administration (rather than the Board) acted to terminate Moore.” Id. at *5. We
likewise agree with the district court that the Board is the final policy-making
authority for DISD in matters of employment decisions and has not delegated
such authority to the DISD administrative staff. Id. at *5. In light of Moore’s
failure to present any summary judgment evidence that she was terminated by
a decisionmaker with final authority to establish DISD policy regarding
termination for job abandonment, the district court correctly granted summary
judgment to DISD on Moore’s due process claims.
                                       IV
      For essentially the same reasons set forth in the district court’s well-
reasoned and thorough opinions of March 14, 2008 and November 24, 2008, we
affirm the grant of judgment on the pleadings and the grant of summary
judgment for DISD.
AFFIRMED.




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