Janet Spann, as Next Friend for Jason Burrow Spann, a Minor v. Tyler Independent School District

876 F.2d 437, 1989 U.S. App. LEXIS 9340, 1989 WL 62440

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 29, 1989
• Docket: 88-2871
• Status: Published

Opinions

E. GRADY JOLLY, Circuit Judge:

Janet Spann, as next friend of Jason Burrow Spann, brought this section 1983 suit against the Tyler, Texas, Independent School District for the sexual abuse suffered by Jason from a school bus driver, Dalton Glen Jones. Holding that the abuses did not occur as a result of any officially sanctioned policy of the school district, we reverse.

I

This case is a section 1983 case brought by the next friend of a minor who, at the time the alleged constitutional tort first occurred, was a six-year-old, first-grade, special-education pupil at an elementary school in the Tyler, Texas, Independent School District (“TISD”). The boy regularly rode to school in a bus driven by Jones. While acting in his capacity as a school employee, as well as on at least one occasion during the summer, Jones abused the boy sexually. Although, after the first incident, it was reported to Rhodes, the principal, that Jones was suspected of abusing Jason, the jury apparently found that Rhodes did not properly investigate the matter. In any event, there were subsequent incidents of abuse. When the boy’s mother discovered what had happened, she filed this section 1983 suit against both Jones and TISD on June 24, 1986. On July 15,1986, TISD filed a motion to dismiss. A motion for severance was filed on March 31, 1988, requesting that the action against Jones, who had not answered in this case and was therefore in default, be severed from the case against TISD. An order was entered on April 28, 1988, granting the plaintiffs motion for severance, and another order was entered granting an interlocutory judgment against Jones since he had failed to appear or defend. The case against TISD was tried to a jury on March 23, 24 and 25, 1988. At the end of Spann’s case-in-chief, TISD moved for a directed verdict on insufficiency of the evidence. After hearing argument of counsel, the court denied the motion. On March 25, 1988, the jury, answering interrogatories propounded by the court, returned its verdict. On May 3, 1988, the court entered its judgment in favor of the plaintiff. On May 13, 1988, TISD filed its motion for j.n.o.v. or new trial, and on August 29, 1988, the court entered an order denying TISD’s May 13 motion. TISD then filed a timely notice of appeal.

II

We will assume, arguendo, that Jones was acting under color of state law when he sexually abused Jason Spann, that Jason had a constitutional right to be protected from such conduct, and that Jason’s school principal failed to investigate adequately the reports of Jones’ conduct. We can thus narrow the issue in this case to whether Jason’s injury resulted from acts committed pursuant to a policy of TISD, as required for section 1983 recovery against a municipality under Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978).

In Pembaur v. Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986), the Supreme Court held that municipalities may be held liable under section 1983 only for acts for which the municipality is actually responsible, “that is, acts which the municipality has officially sanctioned or ordered.” Spann, of course, does not suggest that Jones acted pursuant to TISD policy when he abused Jason; Spann argues, however, that the continued abuse of Jason occurred because of the TISD policy of delegating to the school principal the complete discretion whether to investigate reports of sexual abuse and determine their validity. This policy, it is argued, is responsible for the continuation of the constitutional violations because the principal did not investigate the first, or any, allegations against Jones. Such an investigation, Spann contends, would have resulted in reporting the incident to the proper authorities and would have prevented the repeated abuse of Jason.

We cannot agree that TISD is liable under the theory. According to the Supreme Court,

[t]he language of section 1983, read against the background of the ... legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular ... a municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under section 1983 on a respondent superior theory.

Monell, 436 U.S. at 691, 98 S.Ct. at 2036 (emphasis supplied). The repetition of Jason’s injury was not caused by school board policy: the school board had a perfectly reasonable policy for dealing with reported instances of sexual abuse. Instead the injury was caused by the failure of an employee properly to exercise the discretion granted him by the policy of

TISD. To hold TISD liable for the omissions of the principal would fly in the face of Monell’s explicit holding that the school board cannot be held liable for the acts of its employees on the basis of respondeat superior. “If the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superi- or.” City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 925, 99 L.Ed.2d 107 (1988). TISD did not officially sanction or order the error in judgment of the school principal, and thus we reject the notion that TISD is liable for the unfortunate injury to Jason Spann. The judgment of the district court is therefore

REVERSED.