A magistrate judge from the Western District of Texas has recommended that a football referee’s claim that a coach, in his individual capacity, was responsible for a concussion and other injuries he suffered when the coach’s players blindsided him in a high school game be dismissed with prejudice.
In so ruling, the judge concluded that the coach, Mack Edward Breed, was entitled qualified immunity.
The recommendation could put an end to an ugly incident that drew national headlines on September 4, 2015 in Marble Falls, Texas. The incident can be viewed here: (https://www.youtube.com/watch?v=0Q7p87ej3J4).
The game pitted John Jay High School (JJHS), which is part of Northside Independent School District (initially a co-defendant), and Marble Falls High School. Breed was an assistant football coach at JJHS and an employee of NISD.
Watts claimed that, shortly before the game ended, Coach Breed, angry at some calls that he disagreed with, directed two JJHS players to hit Watts and “make him pay” for alleged bad calls and racist statements. Thereafter, the 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.
In 2018, the same magistrate recommended the court dismiss the claim against NISD and Breed, in his official capacity. The court adopted the recommendation.
In the instant case, the magistrate judge considered the defendant’s motion for summary judgment on the § 1983 claim based on qualified immunity.
“Breed asserts he is entitled to qualified immunity on Watts’ substantive due process claims against him,” wrote the judge. “The doctrine of qualified immunity protects government officers from civil liability in their individual capacities if their conduct does not violate clearly established statutory or constitutional law of which a reasonable person would have known. Kisela v. Hughes, 138 S.Ct. 1148, 1152, 200 L. Ed. 2d 449 (2018). For a right to be ‘clearly established’ the law in effect at the time of the incident must ‘dictate, that is truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what the defendant is doing violates federal law in these circumstances.’ Sama v. Hannigan, 669 F.3d 585, 591 (5th Cir. 2012).
“Watts asserts a substantive due process claim arguing that Breed was a state actor who violated his right to bodily integrity when he told two John Jay football payers ‘to hit’ Watts and ‘make him pay.’ The Court already ruled on this claim with regard to the official capacity claims against Breed and the claims against NISD. The Court’s holding that Watts failed to state a constitutional violation was based on the fact that two football players, and not Breed assaulted Watts.
“The Court found that Watts could not state a violation of his substantive due process right to bodily integrity because he could not establish either the ‘special relationship’ or the state-created danger theory exceptions to the well-settled principle that a state could not be held liable for the actions of a private individual. Id. at 3-6. When an individual is harmed by students rather than school or government officials, there is no constitutional violation unless one of these two exceptions applies. DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989).
“Watts attaches to his Response, Exhibit A, which shows that Breed pled guilty to a Class A Misdemeanor Assault on December 14, 2015, for the football players’ attack of Watts. Watts asks the Court to take judicial notice of Breed’s guilty plea. He also cites the Texas Penal Code, Section 7.02(a)(2), which states that ‘A person is criminally responsible for an offense committed by the conduct of another if: (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.’ Tex. Penal Code § 7.02(a)(2). Watts alleges that, under the ‘law of parties’ theory, this guilty plea shows that Breed himself individually ‘assaulted’ Watts and caused him injury, despite the fact that Watts’ claims are based upon the fact that he was tackled not by Breed but by two football players. Thus, Watts argues, Breed, a ‘state actor’ assaulted him, and not private individuals.
“Watts has failed to demonstrate that Breed acted objectively unreasonably in light of clearly established law at the time of the incident,” wrote the court, citing White v. Pauly, U.S. , 137 S.Ct. 548, 551, 196 L. Ed. 2d 463 (2017) (per curiam).
“No matter how he attempts to present it, Watts alleges a state-created danger theory of liability. This court already addressed that issue in its prior report and recommendation, noting that the Fifth Circuit has continuously declined to recognize the merit of the state-created danger theory. See Doe ex rel. Magee v. Covington County Sch. Dist. ex rel. Keys, 675 F.3d 849, 869 (5th Cir. 2012). The unlawfulness of Breed’s conduct was not ‘clearly established’ at the time of the incident. District of Columbia v. Wesby, 138 S.Ct. 577, 589, 199 L. Ed. 2d 453 (2018); Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011).
“If a plaintiff does not state a claim that a defendant violated clearly established law, then ‘a defendant pleading qualified immunity is entitled to dismissal.’ Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985). Breed, in his individual capacity, is entitled to qualified immunity on Watts’ substantive due process claim.”
Robert Watts v. Northside Ind. School Dist. and Mack Edward Breed; W.D. Tex.; 2019 U.S. Dist. LEXIS 213216, A-17-CV-887 LY; 12/7/19
