                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                August 17, 2006

                        ))))))))))))))))))))))))))        Charles R. Fulbruge III
                                                                  Clerk
                              No. 05-50653

                        ))))))))))))))))))))))))))

             JANE DOE, Individually and as Next Friend of
                          SARAH DOE, a minor,

                         Plaintiff–Appellant,

                                   v.

               SAN ANTONIO INDEPENDENT SCHOOL DISTRICT—
                         BEXAR COUNTY; ET AL,

                               Defendants

           ARTHUR AGUILAR, Individually and as Vice-Principal
         of Thomas Edison High School, Division of San Antonio
                       Independent School District

                          Defendant-Appellee.


             Appeal from the United States District Court
                   for the Western District of Texas
                          USDC No. 5:03-CV-174



Before GARZA, PRADO and OWEN, Circuit Judges.

Edward C. Prado, Circuit Judge:*

     Plaintiffs-Appellants Jane Doe and Sarah Doe (collectively

“Doe”) appeal the magistrate judge’s grant of summary judgment in



     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.

                                   -1-
favor of Defendant-Appellee Arthur Aguilar, who it determined was

immune from suit.   Doe contends that the magistrate judge erred

in dismissing her federal substantive due process claims and

state law claims.   For the reasons that follow, we AFFIRM.

I. Facts

     In December 2001, Sarah Doe was a fourteen-year-old special

education student1 at Thomas Edison High School.   Arthur Aguilar

was the Assistant Principal of the school.   On Friday, December

7, 2001, a teacher, Ashley Heyen, brought Sarah to Aguilar’s

office because Sarah had arrived late to class. Aguilar filled

out a permission slip for Sarah to return to class at 8:45 a.m.

At 9:15 a.m., Heyen again brought Sarah to Aguilar’s office.

Heyen stated that she found Sarah walking in the hallways.      At

this second meeting, Aguilar spoke with Sarah. The parties

dispute whether Sarah correctly identified herself to Aguilar.

Doe claims Sarah correctly identified herself by name; Aguilar

states that she did not.   Both parties agree that Sarah claimed

not to know her home address, her student identification number,

or her phone number.   Sarah did, however, remember the phone

number of a man she told Aguilar was her uncle.    Sarah told

Aguilar that her father was always drunk and that her mother was

never at home.   At the time, Aguilar thought that Sarah was being


     1
       The record establishes that Sarah suffers from an
emotional disturbance and attention span problems but there is no
indication that she is learning disabled.

                                -2-
“coy.”

       Aguilar decided to suspend Sarah for truancy and

insubordination but was not able to find her in his electronic

database of students.    So, Aguilar allowed Sarah to call her

“uncle” to arrange for him to pick her up from school.    Aguilar

advised Sarah that he needed to meet with her uncle when he

arrived to pick her up.    At that time, the school had a non-

discretionary release policy that provided that a student may

only be released to a parent or legal guardian, a police

authority, or a person who a parent had designated by written

request.

       Aguilar told Sarah to wait in his office until her uncle

arrived.    At about 9:45 a.m., Aguilar left his office to attend

to other duties.    He left Sarah alone in the lobby of the main

office and did not assign any support personnel to supervise her.

Aguilar then forgot about Sarah.

       Sarah left school at some later point with her “uncle.” At

around 5:00 p.m., Sarah’s grandmother and guardian contacted the

school after Sarah failed to arrive home.    Sarah was then

discovered by San Antonio police at the home of the man who had

picked her up at school.    Sarah alleges that he sexually abused

her.


II. Procedural History

       Jane Doe, representing her then-minor daughter, Sarah, filed


                                 -3-
suit on March 6, 2003 against the San Antonio Independent School

District and several of its officials, including Arthur Aguilar.

All defendants except for Aguilar were voluntarily dismissed

after they filed motions for summary judgment.   Doe and Aguilar

consented to a trial before a U.S. Magistrate Judge.    Aguilar

moved for summary judgment on November 12, 2004.   The magistrate

judge granted Aguilar’s motion on April 4, 2005, dismissing Doe’s

federal and state causes of action in their entirety on the

grounds that Aguilar was immune from suit.    Plaintiff filed her

notice of appeal on May 2, 2005.


III. Discussion

     “We review a grant of summary judgment under the same

standard applied by the [magistrate judge].   We examine questions

of law de novo and construe disputed material facts in favor of

the non-movant.” Bellum v. PCE Constructors, Inc., 407 F.3d 734,

738 (5th Cir. 2005) (internal citation omitted).

                                   A


     The first issue is whether Aguilar has qualified immunity

from Doe’s federal claims.   To determine whether qualified

immunity applies we use a two-pronged test.    McClendon v. City of

Columbia, 305 F.3d 314, 322 (5th Cir. 2002)(en banc).    First, we

ask “whether a constitutional right would have been violated on

the facts alleged.”   Id. at 322-23 (quoting Saucier v. Katz, 533


                                -4-
U.S. 194, 200 (2001))(internal quotation omitted).    If so, “the

next sequential step is to ask whether the right was clearly

established.   Ultimately, a state actor is entitled to qualified

immunity if his or her conduct was objectively reasonable in

light of the legal rules that were clearly established at the

time of his or her actions.   Id. at 323 (quoting Saucier, 533

U.S. at 201)(internal citation and quotation omitted).

     Doe alleges a violation of Sarah’s right to substantive due

process under the Fourteenth Amendment. “To state a § 1983 claim

for violation of the Due Process Clause, [Doe] must show that

[s]he has asserted a recognized liberty or property interest

within the purview of the Fourteenth Amendment, and that [Sarah]

was intentionally or recklessly deprived of that interest, even

temporarily, under color of state law.”     Walton v. Alexander, 44

F.3d 1297, 1301-02 (5th Cir. 1995)(en banc)(internal quotations

omitted).   Encompassed in the liberty interest is the right to be

free from “unjustified intrusions on personal security.”

Ingraham v. Wright, 430 U.S. 651, 673 (1977).    In general, a

state is not liable for private violence.    However, Doe argues

that Aguilar had a duty to protect Sarah from third party

violence due to a special relationship, and alternatively, that a

duty to protect arose under a “state-created danger” theory.

1. Special Relationship

     “[I]n certain limited circumstances the Constitution imposes


                                -5-
upon the State affirmative duties of care and protection with

respect to particular individuals.”   McClendon, 305 F.3d at 324.

The affirmative duty arises when the State imposes limitations on

a person’s freedom to care for himself, such as when one is

incarcerated or institutionalized.    DeShaney, 489 U.S. at 200.

The Supreme Court has stated that, “when the State takes a person

into its custody and holds him there against his will, the

Constitution imposes upon it a corresponding duty to assume some

responsibility for his safety and general well-being.”    Id. at

199-200.   Under this theory, the Court has held that incarcerated

prisoners have a right to adequate medical care, that the state

must ensure reasonable safety to involuntarily committed mental

patients, and that suspects in police custody, who have been

injured during their apprehension by the police, have a right to

medical care.   See Robinson v. California, 370 U.S. 660 (1962);

Youngberg v. Romeo, 457 U.S. 307 (1982); Revere v. Massachusetts

Gen. Hosp., 463 U.S. 239 (1983).   In order to state a viable

claim under the special relationship theory, “the plaintiff must

demonstrate that the state official acted with culpability beyond

mere negligence,” McClendon, 305 F.3d at 325, which the Supreme

Court has termed “deliberate indifference.”    See, e.g., DeShaney,

489 U.S. at 198 n.5.

     We have already concluded that no special relationship

exists between a student at a state residential school for the


                                -6-
deaf and school officials at that school, despite the “custodial

component present in the regimen of a residential school.”

Walton, 44 F.3d at 1304-06.   Doe argues, however, that the State

was under a duty to protect Sarah because she was subjected to

heightened supervisory authority when Aguilar took her into his

“custody” to suspend her and was held against her will.   We

disagree.

     Sarah Doe’s liberty was not restrained in a manner that

would give rise to a constitutional obligation to protect.      A

“‘special relationship’ only arises when a person is

involuntarily confined or otherwise restrained against his will

pursuant to a governmental order or by the affirmative exercise

of state power.   This relationship does not arise solely because

the state exercises custodial control over an individual.”      Id.

at 1299.    As we stated in Doe v. Hillsboro Independent School

District, 113 F.3d 1412 (5th Cir. 1997)(en banc):

     The restrictions imposed by attendance laws upon students
     and their parents are not analogous to the restraints of
     prisons and mental institutions. . . . “Though attendance
     may not always be voluntary, the public school remains an
     open institution. Except perhaps when very young, the
     child is not physically restrained from leaving school
     during school hours . . . .”

Id. at 1415 (quoting Ingraham, 430 U.S. at 670).    Aguilar’s

instructions to Sarah to wait outside the assistant principal’s

office until a parent or guardian arrived to pick her up did not

rise to the level of incarceration, institutionalization, or


                                 -7-
police custody.   Unlike a prisoner, criminal suspect, or person

in a mental institution, Sarah was able to leave the school

premises with relative ease.     See id. (pointing out that a

student’s attendance at school is intermittent, the student

returns home each day, and that parents are the primary care

giver to a student who attends public school).    Indeed, Sarah

left.

     Furthermore, Aguilar’s behavior did not rise to the level of

deliberate indifference.    The parties state that Aguilar forgot

about Sarah, not that he disregarded a known danger.       See e.g.,

DeShaney, 489 U.S. at 198 n.5 (“[A] prisoner must show that the

state defendants exhibited ‘deliberate indifference’ to his

‘serious’ medical needs; the mere negligent or inadvertent

failure to provide adequate care is not enough.”).

     The State was not under a duty to protect Sarah due to a

special relationship.

2. State-Created Danger

     Many circuits have held that “state officials can have a

duty to protect an individual from injuries inflicted by a third

party if the state actor played an affirmative role in creating

or exacerbating a dangerous situation that led to the

individual’s injury.”     McClendon, 305 F.3d at 324.   “We have

never recognized state-created danger as a trigger of state

affirmative duties under the Due Process Clause.”       Rivera v.


                                  -8-
Houston Indep. Sch. Dist., 349 F.3d 244, 249 (5th Cir. 2003).

Even if we were to consider Doe’s claims under the state-created

danger theory, Doe would need to show that Aguilar acted with

deliberate indifference towards Sarah.    Id.   Deliberate

indifference is a stringent standard of fault, beyond mere

negligence and usually requires proof that a state actor

disregarded a known or obvious consequence of his actions.     See,

e.g., Marasco, 318 F.3d at 509.    Aguilar’s actions do not reach

the level of deliberate indifference.    While Aguilar knew that

Sarah had been wandering the halls earlier that day and still

left her unattended, the danger that Sarah might be raped by her

“uncle” was not a known or obvious danger to Aguilar.

     Doe has not alleged a violation of substantive due process,

and we need not address whether Aguilar’s conduct was objectively

reasonable in light of the clearly established legal rules at the

time of the alleged violation.    Aguilar is entitled to qualified

immunity from Doe’s federal claims.

                                   B

     The next issue is whether Aguilar is immune from Doe’s state

law negligence claims.   The Texas legislature has recognized a

public school principal’s immunity from suit.     Johnson v. Calhoun

County Indep. Sch. Dist., 943 S.W.2d 496, 498 (Tex. App. 1997).

According to the Texas Education Code:


     A professional employee of a school district is not

                                  -9-
     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 professional employee uses
     excessive force in the discipline of students or
     negligence resulting in bodily injury to students.

TEX. EDUC. CODE ANN. § 22.051(a)(Vernon 1996)(amended 2003).2

     The issue is whether Aguilar is not immune because he falls

within the exception that may be applied when a principal’s

negligence results in bodily injury to a student.    The Texas

Supreme Court has limited section 22.051’s negligence exception

to immunity to situations involving “negligent discipline.”

Hopkins v. Spring Indep. Sch. Dist., 736 S.W.2d 617, 619 (Tex.

1987).    Negligent discipline is “punishment which involves no

force, but rather requires some action on the part of the student

as a result of which the student suffers bodily injury.” Id.

(emphasis added).    A typical example of “negligent discipline” is

when a teacher forces a student to run laps around an athletic

field, and the student suffers physical injury from running the

laps.    See Diggs v. Bales, 667 S.W.2d 916, 918 (Tex. App. 1984).

     Texas case law imposes four requirements for conduct to

constitute negligent discipline: (1) the school district employee

must be negligent; (2) the circumstances must involve student

punishment, (3) the punishment must require some action on the



     2
         This version of the statute was effective until August 31,
2003.

                                 -10-
part of the student, and (4) the student must suffer bodily

injury as a result of the punishment.      See Hopkins, 736, S.W.2d

at 619 (“‘Discipline’ in the school context ordinarily describes

some form of punishment.   The opinion in Diggs v. Bales describes

‘negligent discipline’ as ‘punishment [which] involves no force,

but rather requires some action on the part of the student as a

result of which the student suffers bodily injury,’ as in

ordering a student to run laps.”).      Here, we cannot say that

Sarah suffered bodily injury as a result of her punishment.

     Aguilar’s disciplinary actions did not result in Sarah’s

injury.   There must be a nexus between a state actor’s negligent

conduct, the punishment, and the student’s ultimate injury.         See

Diggs, 667 S.W.2d at 918 (limiting the liability of professional

school employees to acts incident to the disciplining of

students); see generally, Estate of Garza v. McAllen Indep. Sch.

Dist., 613 S.W.2d 526 (Tex. App. 1981).      Aguilar disciplined

Sarah by ordering her to stay in the office until he could meet

the person she identified as her uncle.      One could argue that

leaving Sarah unattended when she had a history of “wandering”

constituted negligence on Aguilar’s part.      However, Aguilar never

released Sarah to her “uncle.”    Instead, Sarah left the school

premises against Aguilar’s instructions.      Sarah’s departure with

her “uncle” was not part of her punishment.      Her subsequent

injury was inflicted by a third-party private actor, off of the


                                 -11-
school premises.   Sarah’s injury was not a foreseeable result of

Aguilar’s actions, and her injury did not result from Aguilar’s

disciplinary actions.

     Aguilar enjoys professional immunity from Doe’s state law

claims.

     AFFIRMED.




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