IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-40203 Summary Calendar ____________________
K U, a minor by and through his father as next friend, Michael U,
Plaintiff-Appellant,
v.
ALVIN INDEPENDENT SCHOOL DISTRICT; VIRGIL TIEMANN,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas (G-97-CV-56) _________________________________________________________________
December 18, 1998
Before KING, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant K.U. (K.U.), a minor, brought this
action alleging violations of his rights under the Rehabilitation
Act of 1973, 29 U.S.C. § 794, the Due Process and Equal
Protection Clauses of the U.S. and Texas Constitutions, and the
First Amendment. K.U. appeals the district court’s dismissal of
his claims. We construe the district court’s order as granting
summary judgment and affirm.
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I. FACTUAL & PROCEDURAL BACKGROUND
K.U. is a student at Alvin High School in defendant-appellee
Alvin Independent School District (AISD). K.U. sustained a
traumatic brain injury in June 1991, causing him to suffer from
frontal lobe syndrome. Despite this disability, K.U. continued
to make passing grades after his accident and has received an
education in regular classrooms. While K.U. does not have a
“learning disability,” he does have reduced self-restraint
capacity and problems with behavior such as impulsivity. AISD
convened meetings to address K.U.’s situation and developed an
accommodation plan for K.U. on February 15, 1995.
K.U. alleges that AISD failed to fully implement or comply
with the accommodation plan, and K.U.’s parents actively
protested AISD’s purported compliance failures to AISD. These
alleged failures included incidents where, despite a notice
requirement in the plan, his parents were not notified by
teachers subjecting K.U. to discipline. In addition, K.U.’s
parents complained that a band director had made a comment
implying K.U. was brain damaged, requested that his teachers be
trained by a specialist they had consulted regarding K.U.’s
disability, and objected to his removal from an advanced English
class.
K.U. filed this action in state court in January 1997
alleging that AISD violated the Rehabilitation Act of 1973, 29
U.S.C. § 794, by failing to fully implement or comply with K.U.’s
accommodation plan, thereby denying him a free appropriate public
2 education. K.U. further alleged that AISD violated his due
process and equal protection rights under both the United States
and Texas Constitutions by failing to correctly implement the
accommodation plan, and that AISD violated his First Amendment
rights by retaliating against K.U. based on protected speech made
by his parents. AISD removed the action to the United States
District Court for the Southern District of Texas pursuant to 28
U.S.C. § 1441(b).
In August 1997, a § 504 hearing was held pursuant to 34
C.F.R. §104.361 to determine if AISD had failed to provide K.U. a
free appropriate public education under the Rehabilitation Act.
The hearing officer found that AISD personnel “exercised good
faith in the implementation” of the accommodation plan, that the
accommodations allowed K.U. to receive a free appropriate
education, and that K.U. had failed to show that AISD acted with
an intent to discriminate or used gross misjudgment in the
development and implementation of the accommodation plan. The
1 34 C.F.R. § 104.36 provides:
A recipient [of Federal financial assistance] that operates a public elementary or secondary education program shall establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of handicap, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person’s parents or guardian and representation by counsel, and a review procedure. Compliance with the procedural safeguards of section 615 of the Education of the Handicapped Act is one means of meeting this requirement.
3 hearing officer denied all relief requested by K.U.
AISD filed a motion entitled “motion to dismiss and/or for
summary judgment” on December 1, 1997, attaching the hearing
officer’s report as an appendix. K.U. filed a “response to
defendant’s motion to dismiss and/or for summary judgment” on
December 10, 1997, attaching affidavits by each of K.U.’s
parents. The district court dismissed K.U.’s suit for failure to
state a claim upon which relief may be granted and entered final
judgment on January 6, 1998. See K.U. v. Alvin Indep. Sch.
Dist., 991 F. Supp. 599 (S.D. Tex. 1998). K.U. timely appealed.
III. DISCUSSION
K.U. argues that the district court erred in dismissing his
claim under the Rehabilitation Act because the defendants-
appellees failed to adequately meet K.U.’s individual educational
needs and the accommodation plan completely misunderstood K.U.’s
condition. K.U. contends the district court erred in dismissing
his constitutional claims because he was deprived of a free
appropriate education, was treated differently than other
children at his school, and suffered retaliation for the exercise
of protected speech. K.U. further alleges that the district
court erred in finding that defendant-appellant Virgil Tiemann
had immunity and dismissing K.U.’s claims against him.2 We
2 We agree with the district court that K.U. completely failed to allege any facts that state a claim against Virgil Tiemann, and we affirm its dismissal of claims against him on that ground. See Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986) (“In order to successfully plead a cause of action in § 1983 cases, plaintiffs must enunciate a set of facts that illustrate the defendants’ participation in the wrong alleged.”);
4 address these arguments in turn.
A. Standard of Review
Where matters outside the pleadings are “presented to and
not excluded by the court” and the district court grants a motion
styled as a motion to dismiss, we review the order as an order
granting summary judgment. Fed. R. Civ. P. 12(b); see Baker v.
Putnal, 75 F.3d 190, 197 (5th Cir. 1996); Washington v. Allstate
Ins. Co., 901 F.2d 1281, 1283-84 (5th Cir. 1990). Because the
defendants-appellees included matters outside the pleadings in
their motion, and the district court considered the material in
its order dismissing K.U.’s claims, the district court in fact
converted the motion into a motion for summary judgment under
Rule 56. See Fed. R. Civ. P. 56; Washington, 901 F.2d at 1284.
Before reviewing the district court’s disposition of K.U.’s
claims as a grant of summary judgment, however, we must first
determine whether K.U. has been afforded the procedural
protections of Rule 56. See Washington, 901 F.2d at 1284.
Under Rule 56(c), after the court accepts matters outside the
pleadings, the nonmovant must have ten days notice to respond and
submit additional evidence. See Fed. R. Civ. P. 56(c);
Washington, 901 F.2d at 1284. After reviewing the docket, we
conclude K.U. had proper notice under Rule 56. AISD filed its
motion on December 1, 1997, K.U. filed a response and submitted
Strickland v. Holiday RV Superstores, Inc., 817 F. Supp. 951, 953 (M.D. Fla. 1993), aff’d, 28 F.3d 115 (11th Cir. 1994) (dismissing claims against certain defendants because complaint “fails to link” those defendants with the alleged wrongs).
5 affidavits on December 10, 1997, and the court did not enter
judgment until January 6, 1998. K.U. therefore had sufficient
notice that the court could treat the motion as a motion for
summary judgment.
We review a grant of summary judgment de novo. See Tolson
v. Avondale Indus., Inc., 141 F.3d 604, 608 (5th Cir. 1998). We
first consult the applicable law to determine the material fact
issues. See Baker, 75 F.3d at 197-98. “We then review the
evidence bearing on those issues, viewing the facts and
inferences to be drawn therefrom in the light most favorable to
the nonmoving party.” Id. at 198. Summary judgment is proper if
the “pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
B. The Rehabilitation Act
K.U. alleges that the district court erred in its
interpretation of his claims under § 504 of the Rehabilitation
Act of 1973, as amended, which provides that “[n]o otherwise
qualified individual with a disability . . . shall, solely by
reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance.” 29 U.S.C. § 794. Regulations promulgated
pursuant to this section provide that recipients operating a
6 public elementary or secondary education program “shall provide a
free appropriate public education to each qualified handicapped
person” that is “designed to meet individual educational needs of
handicapped persons as adequately as the needs of nonhandicapped
persons are met and [is] based upon adherence to procedures”
satisfying the regulations. 34 C.F.R. § 104.33.
K.U. argues that AISD failed to provide him a free
appropriate public education because the “only ‘504 plan’ used at
all by [AISD] showed a complete misunderstanding of [K.U.’s]
condition . . . . [and AISD’s] counsel has admitted the [p]lan
was never implemented.” K.U. further alleges that a meeting was
convened where his parents were not present and AISD “refused to
consider the expertise” of a specialist his parents had
consulted.
K.U. and AISD both assert that a plaintiff seeking recovery
under § 504 must not only demonstrate that there was a failure to
provide an appropriate education, but also must show bad faith or
gross misjudgment by the defendant. See Monahan v. Nebraska, 687
F.2d 1164, 1170-71 (8th Cir. 1982). The district court correctly
noted that this circuit has not adopted this requirement in § 504
cases. Nevertheless, we will apply the standard without adopting
it because the arguments of both parties are explicitly
predicated on it and no party has argued that it is not the
correct standard.3 See Melton v. Teachers Ins. & Annuity Assoc.,
3 The district court states in dicta that we have required intentional discrimination for recovery under § 504. See K.U. v. Alvin Indep. Sch. Dist., 991 F. Supp. 599, 603 n.5 (citing Marvin
7 114 F.3d 557, 561 (5th Cir. 1997) (“[I]ssues not raised or argued
in the brief are considered waived and thus will not be noticed
or entertained by this Court on appeal.”). The district court
carefully considered each of the factual allegations contained in
K.U.’s voluminous complaint and found that the facts presented
failed to demonstrate either bad faith or gross misjudgment. We
agree.
K.U. offers no evidence that the accommodation plan that
AISD adopted was not implemented. See Eason v. Thaler, 73 F.3d
1322, 1325 (5th Cir. 1996) (“[M]ere conclusory allegations are
not competent summary judgment evidence, and such allegations are
insufficient, therefore, to defeat a motion for summary
judgment.”). Furthermore, K.U.’s complaint alleges that the
accommodation plan that AISD adopted in February 1995 was
implemented but that his teachers were working from an incomplete
plan or did not fully comply with the plan. K.U.’s complaint and
the affidavits of his parents set forth a number of alleged
incidents where K.U.’s teachers did not fully comply with the
plan, but none of these suggest AISD acted in bad faith or with
gross misjudgment. See Monahan, 687 F.2d at 1170 (“We do not
read § 504 as creating general tort liability for educational
malpractice.”); Brantley v. Indep. Sch. Dist. No. 625, 936 F.
H. v. Austin Indep. Sch. Dist., 714 F.2d 1348, 1357 (5th Cir. 1983)). In Marvin H., we only considered the recovery of damages under § 504. See Marvin H., 714 F.2d at 1356 (stating that “the issue before the court is whether [plaintiffs] are entitled to damages” under § 504). As stated above, we need not adopt a standard for plaintiffs seeking injunctive or declaratory relief under § 504.
8 Supp. 649, 657 (D. Minn. 1996) (finding that without evidence of
bad faith or gross misjudgment, alleged failures to implement
student’s individualized education program “were, at most, errors
in professional judgment” and not actionable under § 504). We
agree with the district court that K.U. fails to raise a genuine
issue of material fact indicating bad faith or gross misjudgment
by AISD in implementing his accommodation plan.
K.U.’s contentions that AISD discussed his situation at a
meeting outside his parents’ presence and that AISD refused to
use an expert selected by K.U. to instruct his teachers on his
disability also fail to raise genuine issues of material fact.
It is true that the procedural safeguards set forth in the
regulations include the right to an impartial hearing with the
opportunity for parental participation. See 34 C.F.R. § 104.36.
However, K.U.’s parents requested and participated in such a
hearing in August 1997. K.U. offers no factual or legal support
suggesting that his parents’ attendance was required at other
meetings where K.U. may have been discussed, or that AISD was
required to use his suggestion in choosing an instructor on his
disability. We therefore agree with the district court that
neither of these allegations suggests bad faith or gross
misjudgment.
C. Due Process Claims
K.U. alleges that the district court erred in dismissing his
due process claims because he was denied his property interest in
an adequate and free public education, he was denied an adequate
9 hearing at which witnesses could be cross-examined, and his band
instructor’s reference to brain damage “rises to a level meriting
Constitutional protection.” We agree with the district court
that K.U. fails to demonstrate any genuine issue of material fact
suggesting he was denied due process under either the United
States or Texas Constitutions.
The Due Process Clause of the Fourteenth Amendment provides
that “[n]o State shall . . . deprive any person of life, liberty,
or property, without due process of law.” U.S. Const. amend.
XIV, § 1. In an action under 42 U.S.C. § 1983 asserting a due
process violation, a plaintiff must prove that he was deprived of
a constitutionally protected life, liberty, or property interest,
and then identify a state action that resulted in a deprivation
of that interest.4 See Blackburn v. City of Marshall, 42 F.3d
925, 935 (5th Cir. 1995).
K.U.’s due process argument is simply another iteration of
his Rehabilitation Act claim and it fails for the same reason:
there is no evidence that AISD violated the Rehabilitation Act by
denying K.U. a free appropriate public education or that he was
4 The Texas Constitution similarly protects both property and liberty interests. See Tex. Const. art. I, § 19 (“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities . . . except by the due course of the law of the land.”). While K.U. alleges that he derived protected interests from AISD policies and state law, he fails to describe or assert these rights except as they exist under the Rehabilitation Act. We therefore need not consider K.U.’s alleged deprivation of due process under the Texas Constitution separately because he has the same interests under the U.S. Constitution and its procedural due process protections “are congruent” with those in the Texas Constitution. Price v. City of Junction, 711 F.2d 582, 590 (5th Cir. 1983).
10 denied an adequate hearing at which witnesses could be cross-
examined. Additionally, K.U.’s allegation that his band director
deprived him of due process rights by remarking on brain damage
fails to support K.U.’s due process claim even if the remark did
refer to K.U. because (assuming, without deciding, that one
remark can amount to a stigma) “the infliction of a stigma . . .
without more, does not infringe upon a protected liberty
interest.” Id. (citing Paul v. Davis, 424 U.S. 693, 710-11
(1976)). We therefore find that K.U. failed to raise a genuine
issue of material fact suggesting he was denied due process under
the United States or Texas Constitutions.
D. Equal Protection
K.U. argues that the district court improperly dismissed his
claims under the equal protection provisions of the United States
and Texas Constitutions because K.U. was a child in a public
school and was treated differently from other children at his
school. While the Equal Protection Clause of the United States
Constitution requires similar treatment of all persons similarly
situated, it is well-established that it is violated only by
intentional discrimination that classifies or distinguishes
between two or more relevant persons or groups. See U.S. Const.
amend. XIV, § 1; Vera v. Tue, 73 F.3d 604, 609 (5th Cir. 1996).
K.U. fails to suggest any factual basis for his equal
protection claim. K.U.’s appellate brief merely alleges that he
was treated differently from other children at AISD, suggesting
no basis for this conclusion and providing no indication that
11 such treatment was the result of intentional discrimination.
While a generous reading of his complaint and affidavits
indicates that K.U. believes he was mistreated in retaliation for
his parents’ assertive speech, K.U. does not allege this as the
basis for his equal protection claim and provides no evidence and
makes no allegations as to how other children at his school were
treated. We therefore agree with the district court that K.U.
fails to raise a genuine issue of material fact supporting his
equal protection claim and summary judgment for AISD on this
claim was proper.5
E. First Amendment
K.U. alleges that the district court erred in evaluating his
claims under the First Amendment because he is not asserting the
rights of his parents, but rather is asserting is own right to be
free from retaliation for speech about matters of public concern.
K.U.’s argument fails, however, because there is no evidence (and
K.U. has not alleged) that K.U. was retaliated against for his
own speech on matters of public concern, and thus there is no
evidence that his own First Amendment rights were chilled by
AISD’s conduct. See Warth v. Seldin, 422 U.S. 490, 499 (1975)
(“[T]he plaintiff generally must assert his own legal rights and
5 K.U.’s claim fares no better under the equal protection clause of the Texas Constitution. See Tex. Const. art. I, § 3 (“All free men . . . have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.”); Reid v. Rolling Fork Pub. Util. Dist., 979 F.2d 1084, 1089 (5th Cir. 1992) (finding that “the same requirements are applied to equal protection challenges under the Texas Constitution as to those under the United States Constitution”).
12 interests, and cannot rest his claim to relief on the legal
rights or interests of third parties.”); Penney v. Town of
Middleton, 888 F. Supp. 332, 337 (D.N.H. 1994) (citing Dohaish v.
Tooley, 670 F.2d 934, 936-37 (10th Cir. 1982)) (dismissing
students’ § 1983 claim alleging school district retaliated
against them for their parents’ speech and conduct). K.U.
therefore fails to raise a genuine issue of material fact that
his own First Amendment rights were infringed and summary
judgment was properly awarded.
III. CONCLUSION
For the foregoing reasons, we find that the district court
was correct to grant summary judgment in favor of defendants-
appellees. The judgment is AFFIRMED.