The third try was not the charm as far as the mother of a concussed son suing the Giddings (Texas) Independent School District was concerned.
A federal judge from the Western District of Texas dismissed plaintiff Jessica Ryburn’s third amended complaint, with prejudice, finding that she had failed to cure the remedies of the second amended complaint, which the court dismissed over the summer.
The claim that Ryburn brought on behalf of her middle school-aged son, L.W., was novel in that it alleged the school district violated Title IX and the Constitution when it required male student-athletes to engage in mat drills, leading to her son suffering a “severe concussion.”
The incident in question occurred on April 11, 2014, when a coach and district employee allegedly directed L.W. to participate in mat drills. Two other coaches were present. Shortly before L.W. began the drill, another boy hit his head very hard during the exercise and was dazed by the impact. The mother claimed that after that happened, that boy did not receive a concussion assessment. Then it was L.W.’s turn. During the drill, her son fell off the mat and his head slammed into the tile floor. The impact caused L.W. to lose consciousness. After he regained consciousness, L.W. told the coaches that his vision was spinning. The coaches, allegedly, did not assess him for a concussion but instead allowed L.W. to sit out the class period while the mat drills continued. When the plaintiff learned of the injury, she took him to the hospital, where he was diagnosed with a severe concussion and cerebral edema. The brain injury has allegedly caused a host of other health problems, including difficulty eating and sleeping, suffering from depression, anger, anxiety, and post-traumatic stress disorder, and diminished cognitive capacity, among other problems.
The mother approached L.W.’s coach a week after his injuries. Allegedly, he dismissively told her L.W. “just got his bell rung real good,” and falsely claimed that L.W. had not lost consciousness. This response was typical of the district’s flippant attitude toward sports-related injuries, according to the plaintiff. Although the district’s Board of Trustees approved an Athletic Concussion Plan in 2011, that plan was allegedly difficult for students and parents to access on the district’s website or in the handbooks Additionally, the district’s Athletic Guide for the 2015-2016 school year provided little information regarding the proper handling of sports injuries and no information specific to concussions.”
The failure to adequately make the information available has purportedly led to injuries other than L.W.’s. The plaintiff alleged that another student within the district suffered three concussions over the course of three football games in 2014 and 2015. In each instance, the student was encouraged to continue playing, she claims. After one concussion in 2015, the student was allegedly teased and, despite being disoriented and confused, was allowed to drive home.
In her lawsuit, the plaintiff asserted causes of action under Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq., and 42 U.S.C § 1983.
Specifically, she charged that the district, through subjecting male students to inherently dangerous exercises, deprived L.W. of an educational opportunity on the basis of his sex. The plaintiff further alleged that the district’s failure to properly implement concussion policies or to train its employees to handle concussions has caused various violations of L.W.’s constitutional rights. More specifically, she claimed deprivations of L.W.’s rights to bodily integrity, education, medical care, and equal protection.
After the district moved to dismiss the second amended complaint, the court granted the motion with leave to amend.
“There is little in the plaintiff’s third amended complaint that differs from the second,” wrote the court. “The plaintiff added some new factual allegations, but the vast majority of the plaintiff’s allegations are simply recited verbatim from the second amended complaint. The plaintiff also recharacterized some of the constitutional violations underlying her Section 1983 claim and added a handful of new facts to her Title IX claim. Finally, the plaintiff added claims under Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131, et seq. (ADA), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (Section 504).”
The court added that the plaintiff “has been given leave to amend her complaint three times over a period of more than 12 months. The plaintiff is represented by experienced counsel. The plaintiff had the guidance of the court’s Aug. 31 order and failed to provide new facts in her third amended complaint that addressed the deficiencies in the second amended complaint. The plaintiff has had ample opportunity to plead her best case and has failed to state a claim under Rule 12(b)(6) twice.”
Jessica Ryburn, as next friend of L.W. v. Giddings Independent School District; W.D. Tex.; 1:16-CV-879-RP, 2017 U.S. Dist. LEXIS 194867; 11/27/17
Attorneys of Record: (for plaintiffs: Donald G. Henslee, LEAD ATTORNEY, Law Offices of Donald G. Henslee, Austin, TX; Martin J. Cirkiel, Cirkiel & Associates, P.C., Round Rock, TX. (for defendant) Kelley Lynn Kalchthaler, LEAD ATTORNEY, Walsh, Anderson, Gallegos, Green & Trevino, PC, Austin, TX; Todd Aaron Clark, LEAD ATTORNEY, Walsh Gallegos Trevino Russo & Kyle PC, Austin, TX.
