A magistrate judge from the Western District of Texas has recommended that a district judge grant a San Antonio school district’s motion to dismiss the lawsuit of a football referee, who suffered injuries after a couple high school players intentionally blindsided him in a game.
In essence, the court concluded that the school district could not be held liable for a Constitution violation for the actions of the players (https://www.youtube.com/watch?v=0Q7p87ej3J4).
By way of background, plaintiff Robert Watts was refereeing a football game on September 4, 2015, in Marble Falls, Texas. The game pitted John Jay High School, which is part of Northside Independent School District (a co-defendant), and Marble Falls High School. Co-defendant Mack Edward Breed was an assistant football coach at John Jay High School and an employee of NISD. Watts was part of a referee crew from the Austin Chapter of the Texas Association of Sports Officials.
Watts claimed that, shortly before the game ended, Coach Breed, angry at some calls that he disagreed with, directed two John Jay players to hit Watts and “make him pay” for alleged bad calls and racist statements. Thereafter, two Jay players tackled Watts from behind, knocking him to the ground. Watts alleges he suffered cuts, bruises, abrasions, and a concussion from the hit.
Watts sued, pursuant to 42 U.S.C. § 1983, raising a substantive due process claim pursuant to Fourteenth Amendment to the Constitution. He claimed, specifically, that the defendants violated his right to “bodily integrity and personal security.” He further alleged that Breed acted with deliberate indifference when he instructed the players to hit him.
NISD moved to dismiss Watts’ claims on three grounds: “(1) the state has no constitutional duty to protect individuals from private harm; (2) NISD had no ‘special relationship’ with Watts; and (3) Watts has failed to identify an official policy or custom by the NISD school board, which was the moving force behind the alleged Constitutional violation.”
In its analysis, the court noted that to state a claim under § 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.” Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854-55 (5th Cir. 2012). As explained by the U.S. Supreme Court, “the Due Process Clause of the Fourteenth Amendment was intended to prevent government from abusing its power, or employing it as an instrument of oppression” and “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 195, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989).
The court first examined NISD’s argument that Watts cannot state a constitutional claim because the actions causing the injury were those of John Jay students, who are private actors, and not district officials.
“Thus, any alleged violation of Watts’ due process rights did not occur under color of state law,” wrote the court. “Watts argued that he is alleging that his injuries were caused by Breed when he encouraged the students to tackle him, and Breed, as an NISD employee, qualifies as a ‘state actor.’ Generally speaking, a state’s failure to protect an individual from private violence does not constitute a violation of the Due Process Clause sufficient to state a claim under Section 1983. Covington, 675 F.3d at 855. The only recognized exceptions to this well-settled principle are the ‘special relationship exception’ and the state-created danger theory. Id.”
Neither one of these applied.
In considering the “special relationship exception,” the court turned to a Fifth Circuit decision —McClendon v. City of Columbia — in which that court wrote that “when the state, through the affirmative exercise of its powers, acts to restrain an individual’s freedom to act on his own behalf ‘through incarceration, institutionalization, or other similar restraint of personal liberty,’ the state creates a ‘special relationship’ between the individual and the state which imposes upon the state a constitutional duty to protect that individual from dangers, including, in certain circumstances, private violence.” 305 F.3d 314, 324 (5th Cir.2002)
“In this case, Watts—an adult refereeing a football game for remuneration—has not stated, and cannot state, a special relationship with the defendants,” wrote the court. “His freedom to act was in no way limited by NISD or Breed. Watts was at the football game on his own volition. Watts therefore cannot state a § 1983 due process violation based on the special relationship exception.”
Turning to the state-created danger exception, the court noted that the doctrine makes the state liable under § 1983 “if it created or exacerbated the danger” of private violence. Bustos v. Martini Club Inc., 599 F.3d 458, 466 (5th Cir.2010). However, the Fifth Circuit “has consistently refused to recognize a ‘state-created danger’ theory of § 1983 liability even where the question of the theory’s viability has been squarely presented.” Beltran v. City of El Paso, 367 F.3d 299, 307 (5th Cir. 2004).
“Watts nevertheless asks the court to deny the motion to dismiss this claim, arguing that while the Fifth Circuit has not recognized the claim, it also has not chosen to affirmatively reject the claim. He further notes that eight of the federal circuits have recognized the theory of liability. He also points out that, because the Fifth Circuit has not rejected the theory outright, a number of district judges in Texas have entertained the theory” at the pre-trial motion to dismiss stage.
“The court need not make a final decision on the availability of the state created danger theory here, because even if it were available, Watts has failed to state a claim under that theory. Watts lays out his theory in his response to the motion:
“Here, Coach Breed, the state actor, used his authority to create a dangerous environment for the plaintiff and acted with deliberate indifference to the plaintiff’s plight. Clearly, under the admitted facts and circumstances of this matter, the plaintiff is entitled to present evidence that the defendant-state actors created a dangerous environment by deliberate indifference, thereby creating an opportunity that would not otherwise have existed as follows: Coach Breed told his players “to hit” the plaintiff; and that the plaintiff “needs to pay the price.” One of the players stated on national television that Breed told the player to hit the plaintiff. Both players admitted that they knew what they did was wrong, but they did it because they trusted Coach Breed. Coach Breed later admitted that he directed the students to make the plaintiff “pay” the price. This is a clear example of Coach Breed using his authority to create an opportunity that would not otherwise have existed for the players’ hit on the plaintiff to occur.
“What Watts has failed to allege, however, are facts showing that NISD was aware of a specific risk to a known victim, which is a requirement of a state created danger claim. As the Fifth Circuit noted in another case seeking to apply the theory to a school district, to state a claim under the theory a plaintiff must show ‘the existence of an immediate danger to a known victim.’ Doe ex rel. Magee, 675 F.3d 849, 866. Simply knowing of a general danger is not enough. Moore v. Dallas Ind. Sch. Dist., 370 Fed. App’x 455, 458 n.1 (5th Cir. 2010). The most Watts has alleged is that Breed deliberately created a dangerous situation for Watts when he instructed the players to hit Watts. He pleads no facts indicating that NISD had any reason to know that Watts was in danger at the game, or that Breed would instruct players to hit a referee, much less Watts. Thus, even if the Fifth Circuit were to recognize the state created danger theory of liability, Watts cannot state a claim under that theory in these circumstances.”
Robert Watts v. Northside Ind. School Dist. and Mack Edward Breed; W.D. Tex.; A-17-CV-887 LY, 2018 U.S. Dist. LEXIS 79494; 5/10/18
Attorneys or Record:(for plaintiff) Jay Reynolds Downs, LEAD ATTORNEY, Downs And Stanford, Dallas, TX; Tab H. Keener, LEAD ATTORNEY, Downs & Stanford, P.C., Dallas, TX. (for defendants) Jameson Call Baker, LEAD ATTORNEY, Walsh Anderson Gallegos Green & Trevino, San Antonio, TX; Donald Craig Wood, Walsh Gallegos Trevino Russo & Kyle P.C., San Antonio, TX. and James M. Reeves, LEAD ATTORNEY, Law Offices of Fischer & Reeves, PLLC, San Antonio, TX.
