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4: Federal Appeals Court Lets Lawsuit Proceed Against Educators in Student’s Suicide

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4: Federal Appeals Court Lets Lawsuit Proceed Against Educators in Student’s Suicide

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After and eight year old committed suicide, parents sued two administrators alleging they did not properly handle their sons severe bullying allegations.

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A federal appeals court has allowed a wrongful death lawsuit brought by the parents of an 8-year-old Cincinnati boy who committed suicide after alleged severe bullying at school to proceed against two school administrators.

A unanimous three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, rejected a request by the former principal and assistant principal to throw out state-law claims that they acted recklessly in handling persistent bullying of Carson Elementary School student Gabriel Taye and allegedly failing to inform his parents about several incidents.

Taye hung himself with a necktie in his bedroom on Jan. 26, 2017, two days after a student had knocked him unconscious in a school bathroom in the most serious of a pattern of bullying incidents.

The lawsuit by the parents, Cornelia Reynolds and Benyam Tate, alleges that then-Principal Ruthenia Jackson and then-Assistant Principal Jeffrey McKenzie did not tell Taye's mother that a student had attacked him in the school bathroom. The suit also alleges that McKenzie stood over Taye but did not aid him or call 911, as district policy required when a student was unconscious for longer than a minute.

A school nurse called Taye's mother and said he had fainted, court papers say. Taye stayed home from school the next day, then was bullied again in the school bathroom when he returned the following day, the same day he committed suicide.

The 6th Circuit court, in its Dec. 29 decision in Meyers v. Cincinnati Board of Education, said the parents have sufficiently alleged that Jackson and McKenzie "failed to call 911 when Taye was unconscious for seven minutes after being knocked to the floor in the bathroom."

"They reported false information about the number of 'bullying instances' that occurred as required by Ohio law, and ultimately, prevented Taye's parents from fully understanding Taye's horrifying experience at Carson Elementary until it was too late," the 6th Circuit panel added. "This court finds their behavior, as alleged, to be egregious and clearly reckless, thus barring them from the shield of government immunity."

Federal and State Claims

Taye's parents, as well as the boy's estate, sued the Cincinnati school system along with some other individual defendants on federal civil-rights claims as well as state torts such as wrongful death, intentional infliction of serious emotional distress, and others.

Jackson and McKenzie sought to have the suit dismissed on the basis of state governmental immunity. In court papers, the two administrators deny that there was bullying at Carson Elementary and that Taye's suicide was not forseeable.

A federal district court rejected their motion to dismiss. The Cincinnati Board of Education and other defendants have raised similar defenses to the lawsuit's federal claims, but those were not at issue in this appeal.

The 6th Circuit's opinion describes in detail the pattern of bullying faced by Taye since he was in 1st grade and the alleged failures by school administrators to respond adequately or keep his parents informed.

The administrators "could have asked teachers to supervise the student bathrooms or limited the number of students allowed to use the bathroom at one time," the court said. "Instead, Jackson and McKenzie allowed the boys' bathroom to remain unsupervised. Jackson and McKenzie's behavior shows their failure to take this situation seriously and exemplifies the very definition of recklessness: they consciously disregarded the known or obvious risk of harm that students would engage in violent behavior in the unsupervised bathroom, and that disregard was unreasonable in light of the attack that took place there."

As to the administrators' argument that Taye's suicide was not foreseeable, the 6th Circuit panel said that assertion was undercut by a 2017 decision of their court. In that decision, Tumminello v. Father Ryan High School, a different 6th Circuit panel had written that "if a school is aware of a student being bullied but does nothing to prevent the bullying, it is reasonably foreseeable that the victim of the bullying might resort to self-harm, even suicide."

In Taye's case, the 6th Circuit said Jackson and McKenzie "knew the full extent to which Taye was subjected to aggression and violence by his classmates. ... [T]hey knew Taye was harassed and bullied at school and that a risk of bullying is suicide, and yet they utterly failed to take reasonable steps to protect Taye from that risk."

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Federal Appeals Court Lets Lawsuit Proceed Against Educators in Student's Suicide

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A federal appeals court has allowed a wrongful death lawsuit brought by the parents of an 8-year-old Cincinnati boy who committed suicide after alleged severe bullying at school to proceed against two school administrators. A unanimous three-judge panel of the U.S.

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Federal Constitutional Law: H.R.5619 - Suicide Prevention Act

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Federal Constitutional Law: H.R.5619 - Suicide Prevention Act

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This bill

Allows State and local public health departments to create a program to expand and intensify surveillance of self-harm.

Establish a grant program to provide self-harm and suicide prevention services in hospital emergency departments, and for other purposes.

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Text - H.R.5619 - 116th Congress (2019-2020): Suicide Prevention Act

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Text for H.R.5619 - 116th Congress (2019-2020): Suicide Prevention Act

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87(R) HB 2954 - Introduced version - Bill Text

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relating to a suicide prevention, intervention, and postvention

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5: Schools face rise in suicides during pandemic: "So many kids are hurting"

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5: Schools face rise in suicides during pandemic: "So many kids are hurting"

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This article discussed that suicide is on the rise since the pandemic. Clark county is combating this with Social emotional Learning as well as other mental health supports.

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Schools face rise in suicides during pandemic: “So many kids are hurting”

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At least 30 students have died by suicide in a Las Vegas school district since the pandemic began.

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Federal Statutory Law: 42 U.S. Code § 290bb–36a - Suicide prevention for youth

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Federal Statutory Law: 42 U.S. Code § 290bb–36a - Suicide prevention for youth

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In carrying out subsection (a), the Secretary shall ensure that activities under this section are coordinated with the relevant Department of Health and Human Services agencies and suicide working groups.

(c) Requirements A public organization, private nonprofit organization, political subdivision, consortium of political subdivisions, consortium of States, or federally recognized Indian tribe or tribal organization desiring a grant, contract, or cooperative agreement under this section shall demonstrate that the suicide prevention program such entity proposes will-

be based on suicide prevention practices and strategies that are adapted to the local community;

integrate its suicide prevention program into the existing health care system in the community including general, mental, and behavioral health services, and substance abuse services;

be integrated into other systems in the community that address the needs of youth including the school systems, educational institutions, juvenile justice system, substance abuse programs, mental health programs, foster care systems, and community child and youth support organizations;

conduct annual self-evaluations of outcomes and activities, including consulting with interested families and advocacy organizations;

ensure that staff used in the program are trained in suicide prevention and that professionals involved in the system of care have received training in identifying persons at risk of suicide.

Amounts provided under a grant or cooperative agreement under this section shall be used to supplement, and not supplant, Federal and non-Federal funds available for carrying out the activities described in this section. Applicants shall provide financial information to demonstrate compliance with this section.

An applicant for a grant or cooperative agreement under subsection (a) shall demonstrate to the Secretary that the application complies with the State-sponsored statewide early intervention and prevention strategy as developed under section 290bb-36 of this title and the applicant has the support of the local community and relevant public health officials.

In awarding grants and cooperative agreements under subsection (a), the Secretary shall ensure that such awards are made in a manner that will focus on the needs of communities or groups that experience high or rapidly rising rates of suicide.

A public organization, private nonprofit organization, political subdivision, consortium of political subdivisions, consortium of States, or Federally recognized Indian tribe or tribal organization receiving a grant or cooperative agreement under subsection (a) shall prepare and submit an application to the Secretary at such time, in such manner, and containing such information as the Secretary may reasonably require. Such application shall include a plan for the rigorous evaluation of activities funded under the grant or cooperative agreement, including a process and outcome evaluation.

(h) Distribution of awards

In awarding grants and cooperative agreements under subsection (a), the Secretary shall ensure that such awards are distributed among the geographical regions of the United States and between urban and rural settings.

A public organization, private nonprofit organization, political subdivision, consortium of political subdivisions, consortium of States, or Federally recognized Indian tribe or tribal organization receiving a grant or cooperative agreement under subsection (a) shall prepare and submit to the Secretary at the end of the program period, an evaluation of all activities funded under this section.

(j) Dissemination and education

The Secretary shall ensure that findings derived from activities carried out under this section are disseminated to State, county and local governmental agencies and public and private nonprofit organizations active in promoting suicide prevention and family support activities.

With respect to a grant, contract, or cooperative agreement awarded under this section, the period during which payments under such award may be made to the recipient may not exceed 3 years.

(l) Study Within 1 year after , the Secretary shall, directly or by grant or contract, initiate a study to assemble and analyze data to identify-

unique profiles of children under 13 who attempt or complete suicide;

unique profiles of youths between ages 13 and 24 who attempt or complete suicide; and

a profile of services available to these groups and the use of these services by children and youths from paragraphs (1) and (2).

(n) Authorization of appropriation

For purposes of carrying out this section, there is authorized to be appropriated $75,000,000 for fiscal year 2001 and such sums as may be necessary for each of the fiscal years 2002 through 2003.

(July 1, 1944, ch. 373, title V, § 520E-1, formerly § 520E, as added Pub. L. 106-310, div. B, title XXXI, § 3111, , 114 Stat. 1186; renumbered § 520E-1 and amended Pub. L. 108-355, § 3(b), , 118 Stat. 1407.)

Amendments

2004- Pub. L. 108-355, § 3(b)(1)(A), substituted "youth" for "children and adolescents" in section catchline.

Subsec. (a). Pub. L. 108-355, § 3(b)(1)(B), added subsec. (a) and struck out heading and text of former subsec. (a). Text read as follows: "The Secretary shall award grants, contracts, or cooperative agreements to States, political subdivisions of States, Indian tribes, tribal organizations, public organizations, or private nonprofit organizations to establish programs to reduce suicide deaths in the United States among children and adolescents."

Subsec. (b). Pub. L. 108-355, § 3(b)(1)(C), substituted "with the relevant Department of Health and Human Services agencies and suicide working groups." for "among the Substance Abuse and Mental Health Services Administration, the relevant institutes at the National Institutes of Health, the Centers for Disease Control and Prevention, the Health Resources and Services Administration, and the Administration on Children and Families."

Subsec. (c)(1). Pub. L. 108-355, § 3(b)(1)(D)(iii), added par. (1). Former par. (1) redesignated (2).

Subsec. (c)(2). Pub. L. 108-355, § 3(b)(1)(D)(ii), (iv), redesignated par. (1) as (2) and substituted "youth" for "children and adolescents". Former par. (2) redesignated (3).

Subsec. (c)(3). Pub. L. 108-355, § 3(b)(1)(D)(ii), (v), redesignated par. (2) as (3) and struck out "best evidence-based," after "based on". Former par. (3) redesignated (4).

Subsec. (c)(5). Pub. L. 108-355, § 3(b)(1)(D)(ii), (vii), redesignated par. (4) as (5) and substituted "youth including the school systems, educational institutions, juvenile justice system, substance abuse programs, mental health programs, foster care systems, and community child and youth support organizations;" for "children and adolescents including the educational system, juvenile justice system, welfare and child protection systems, and community youth support organizations;". Former par. (5) redesignated (6).

Subsec. (c)(6), (7). Pub. L. 108-355, § 3(b)(1)(D)(ii), redesignated pars. (5) and (6) as (6) and (7), respectively. Former par. (7) redesignated (8).

Subsec. (c)(8). Pub. L. 108-355, § 3(b)(1)(D)(viii), added par. (8) and struck out former par. (8) which read as follows: "provide linguistically appropriate and culturally competent services, as needed;".

Pub. L. 108-355, § 3(b)(1)(D)(ii), redesignated par. (7) as (8). Former par. (8) redesignated (9).

Subsec. (c)(9). Pub. L. 108-355, § 3(b)(1)(D)(ix), added par. (9) and struck out former par. (9) which read as follows: "provide a plan for the evaluation of outcomes and activities at the local level, according to standards established by the Secretary, and agree to participate in a national evaluation; and".

Pub. L. 108-355, § 3(b)(1)(D)(ii), redesignated par. (8) as (9). Former par. (9) redesignated (10).

Subsec. (c)(10). Pub. L. 108-355, § 3(b)(1)(D)(ii), redesignated par. (9) as (10).

Subsec. (d). Pub. L. 108-355, § 3(b)(1)(E), added subsec. (d) and struck out heading and text of former subsec. (d). Text read as follows: "Amounts provided under grants, contracts, or cooperative agreements under subsection (a) of this section shall be used to supplement and not supplant other Federal, State, and local public funds that are expended to provide services for eligible individuals."

Subsec. (f). Pub. L. 108-355, § 3(b)(1)(G), struck out ", contracts," after "grants".

Subsec. (h). Pub. L. 108-355, § 3(b)(1)(I), struck out ", contracts," after "grants".

Subsec. (k). Pub. L. 108-355, § 3(b)(1)(K), substituted "3 years" for "5 years".

Subsec. (l)(2). Pub. L. 108-355, § 3(b)(1)(L)(i), substituted "24" for "21".

Subsec. (l)(3). Pub. L. 108-355, § 3(b)(1)(L)(ii), struck out "which might have been" after "profile of services".

Subsec. (m). Pub. L. 108-355, § 3(b)(1)(O), added subsec. (m). Former subsec. (m) redesignated (n).

Pub. L. 108-355, § 3(b)(1)(M), struck out par. (1) designation and heading and struck out heading and text of par. (2). Text read as follows: "In carrying out this section, the Secretary shall use 1 percent of the amount appropriated under paragraph (1) for each fiscal year for managing programs under this section."

Subsec. (n). Pub. L. 108-355, § 3(b)(1)(N), redesignated subsec. (m) as (n).

Statutory Notes and Related Subsidiaries

Teen Suicide Prevention Study

Pub. L. 106-386, div. B, title VI, § 1602, , 114 Stat. 1538, provided that:

measures that increase public awareness of suicide as a preventable public health problem, and target parents and youth so that suicide risks and warning signs can be recognized, will help to eliminate the ignorance and stigma of suicide as barriers to youth and families seeking preventive care;

"(2) suicide prevention efforts in the year 2000 should-

target at-risk youth, particularly youth with mental health problems, substance abuse problems, or contact with the juvenile justice system;

the identification of the characteristics of the at-risk youth and other youth who are contemplating suicide, and barriers to treatment of the youth; and

the development of model treatment programs for the youth;

include a pilot study of the outcomes of treatment for juvenile delinquents with mental health or substance abuse problems;

include a public education approach to combat the negative effects of the stigma of, and discrimination against individuals with, mental health and substance abuse problems; and

include a nationwide effort to develop, implement, and evaluate a mental health awareness program for schools, communities, and families;

although numerous symptoms, diagnoses, traits, characteristics, and psychosocial stressors of suicide have been investigated, no single factor or set of factors has ever come close to predicting suicide with accuracy;

research of United States youth, such as a 1994 study by Lewinsohn, Rohde, and Seeley, has shown predictors of suicide, such as a history of suicide attempts, current suicidal ideation and depression, a recent attempt or completed suicide by a friend, and low self-esteem; and

"(5) epidemiological data illustrate-

the trend of suicide at younger ages as well as increases in suicidal ideation among youth in the United States; and

"(B) distinct differences in approaches to suicide by gender, with-

3 to 5 times as many females as males attempting suicide; and

3 to 5 times as many males as females completing suicide.

The purpose of this section is to provide for a study of predictors of suicide among at-risk and other youth, and barriers that prevent the youth from receiving treatment, to facilitate the development of model treatment programs and public education and awareness efforts.

"(d) Study.- Not later than 1 year after the date of the enactment of this Act [], the Secretary of Health and Human Services shall carry out, directly or by grant or contract, a study that is designed to identify-

the characteristics of at-risk and other youth age 13 through 21 who are contemplating suicide;

the characteristics of at-risk and other youth who are younger than age 13 and are contemplating suicide; and

the barriers that prevent youth described in paragraphs (1) and (2) from receiving treatment.

"(e) Authorization of Appropriations.-

There are authorized to be appropriated to carry out this section such sums as may be necessary."

[For definition of " youth" as used in section 1602 of Pub. L. 106-386, set out above, see section 1002 of Pub. L. 106-386, set out as a note under section 10447 of Title 34, Crime Control and Law Enforcement.]

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42 U.S. Code § 290bb-36a - Suicide prevention for youth

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In carrying out subsection (a), the Secretary shall ensure that activities under this section are coordinated with the relevant Department of Health and Human Services agencies and suicide working groups.

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After serving eighteen years as a career and technology teacher, I currently serve as a middle school counselor. I am currently pursuing my masters degree in Professional School Counseling at Angelo State University. Include why you chose this topic.

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Although school counselors are the primary audience, this guide could be shared with teachers, administrators, community stakeholders, and/or through graduate programs.

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Because of the increasing number of middle school students who exhibit a desire to harm themselves, I chose the topic of coping with suicidal students. Suicide is the third highest cause of death among young people. According to a 2010 study conducted by the Centers for Disease Control and Prevention, 13.8 percent of American high school students had seriously considered suicide, and 6.3 percent have attempted suicide. In my three months as a middle school counselor, I handled with seven students who had suicidal thoughts. Knowing the legal ramifications of assisting these students is a crucial part of my job as a school counselor.

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ASCA Suicide Prevention & Awareness Position

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ASCA Suicide Prevention & Awareness Position

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According to the American School Counselors Association, the benefits of implementing comprehensive suicide prevention/awareness programs allow school counselors to ensure students and faculty are well-prepared to address and identify negative thoughts and experiences that may lead to suicidal ideation(American School Counselors Association, 2018). This website states the ASCA's position as well as the school counselor's role in the program.

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The School Counselor and Suicide Prevention/Awareness

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School counselors work to identify behavioral and social/emotional signs of suicide risk among their students and ensure prevention methods are in place. It is the school counselor's ethical and moral responsibility to report suspected suicide risk to legal guardians and the appropriate authorities.

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Society for the Prevention of Teen Suicide 

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Society for the Prevention of Teen Suicide 

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This website offers a two-hour online interactive training program Addressing the responsibilities of educators in the process of identification and referral of potentially suicidal youth

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Making Educators Partners in Youth Suicide Prevention: Act on FACTS The Society for the Prevention of Teen Suicide Releases Free, Online Teacher Training
The Society for the Prevention of Teen Suicide recently introduced the update to its Best Practices, free, online training for educators Making Educators Partners in Youth Suicide Prevention: Act on FACTS. Developed by national suicide prevention expert and SPTS Clinical Director, Maureen Underwood, LCSW, the training is available immediately at www.sptsuniversity.org.

With the goal of providing new and updated information from the field of youth suicide prevention, the project began filming in September of 2014 at Neptune High School, New Jersey. Survivors of suicide loss shared their personal stories, while many mental health experts, including but not limited to, David Bond of The Trevor Project, Maureen Underwood of SPTS, and Mary Pat Angelini of Preferred Behavioral Health, gave detailed accounts regarding at-risk populations, warning signs, risk factors, and what the referral process means for educators, counselors and members of the school community. New to the training is the specific inclusion of four elevated at-risk youth populations: students who identify as LGBTQ, students with a history of bullying, gifted students, and students who have had a previous suicide attempt. Through the use of role-plays, the training embraces school culture and presents real-life scenarios for youth suicide prevention methods.

While the initial version of the free online training, introduced in 2008, was completed by over 70,000 users throughout the country, the Society for the Prevention of Teen Suicide anticipates training over 150,000 educators in the first few years with this new version of its flagship training. The training, which focuses on the competent community model, helps educators and school staff to understand their role for suicide prevention and how important it is to recognize their potential role as "Trusted Adults".

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ACT on FACTS: Revised online, free teacher training released! - SPTS

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Making Educators Partners in Youth Suicide Prevention: Act on FACTS The Society for the Prevention of Teen Suicide Releases Free, Online Teacher Training The Society for the Prevention of Teen Suicide recently introduced the update to its Best Practices, free, online training for educators Making Educators Partners in Youth Suicide Prevention: Act on FACTS.

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Federal Judicial Law: Eisel vs. Board of Education of Montgomery County

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Federal Judicial Law: Eisel vs. Board of Education of Montgomery County

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Eisel vs. Board of Education of Montgomery County
The plaintiff (the father of Nicole Eisel, 13), filed a wrongful death suit against the Maryland Board of Education, claiming that school counselors have a duty to intervene to try to prevent a student's threatened suicide.

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324 Md. 376

597 A.2d 447, 60 USLW 2312, 70 Ed.
Law Rep. 544, 17 A.L.R.5th [PG957

Stephen EISEL
v.
BOARD OF EDUCATION OF MONTGOMERY COUNTY, Maryland, et al.

No. 139, Sept. Term, 1990.

Court of Appeals of Maryland.

Oct. 29, 1991.

[597 A.2d 448]

Page 377

Edward H. Gerstenfield, Bethesda, for appellant.

Joann Robertson, Sr. Asst. County Atty. (Joyce R. Stern, County Atty., J. Stephen McAuliffe, Asst. County Atty., all on brief), Rockville, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI and ROBERT M. BELL, JJ., and ALAN M. WILNER, Chief Judge of the Court of Special Appeals, Specially Assigned.

RODOWSKY, Judge.

The legal theory advanced by the plaintiff in this wrongful death and survival action is that school counselors have a duty to intervene to attempt to prevent a student's threatened suicide. The specific question presented is whether the duty contended for may be breached by junior high school counselors who fail to inform a parent of suicidal statements attributed to the parent's child by fellow students where, when the counselors sought to discuss the subject, the adolescent denied ever making the statements. The circuit court granted summary judgment for the defendants, premised on the absence of any duty. As explained below, we shall hold that summary judgment was erroneously entered.

The decedent, Nicole Eisel (Nicole), was a thirteen year old student at Sligo Middle School in Montgomery County. She and another thirteen year old girl consummated an apparent murder-suicide pact on November 8, 1988. Nicole's father, Stephen Eisel (Eisel), brought the instant action. His amended complaint alleges negligence on the part of two counselors at Nicole's school, among others. In order to state the facts that are before us, and to determine

Page 378

the scope of the issues for decision on this appeal, we must review the procedural history.

I

Eisel's complaint, filed in March 1989, joined as defendants the Board of Education of Montgomery County (the Board), "Montgomery County Public Schools" and three individuals, the Superintendent of Schools of Montgomery County, the principal of Sligo Middle School, and Dorothy Jones (Jones), Nicole's counselor. The defendants filed an answer. Thereafter the parties engaged in discovery. Answers to interrogatories and documents produced are part of the record. Full copies of depositions were not filed in the court. Documents produced included the Board's memorandum of a telephone call on November 10, 1988, from the identified mother of a child at Sligo Middle School. That parent reported that children in her car pool said that Deidre Morgan (Morgan), another school counselor, knew of Nicole's suicide threats. Eisel amended his complaint to join Morgan as an additional defendant.

Shortly thereafter the defendants filed a "Motion to Dismiss the Amended Complaint and/or Motion for Summary Judgment." Among other grounds, the motion [597 A.2d 449] asserted that the " [d]efendants owed no duty to the plaintiff or plaintiff's decedent."

The hearing on the defendants' motion resulted in a final judgment entered on the docket as, "Order of Court ... granted the defendants' motion to dismiss complaint with prejudice." The transcript of the hearing reflects that a number of rulings were made. The circuit court ruled that allegations of negligence against the superintendent and school principal were insufficient. The court ruled that "Montgomery County Public Schools" was not an entity

Page 379

separate from the Board of Education. These rulings are not challenged on this appeal.

With respect to the Board, Jones, and Morgan, counsel for the defendants accepted the allegations of the amended complaint as true, for purposes of the motion. On that basis defendants' counsel argued, as a matter of law, the absence of any duty and the lack of proximate cause. The circuit court ruled that proximate cause was a question for the jury, but that public policy considerations precluded legally recognizing any duty on the remaining defendants to intervene for the purpose of attempting to prevent suicide.

Eisel appealed. We issued the writ of certiorari on our own motion prior to consideration of the matter by the Court of Special Appeals.

Eisel's brief characterizes the appeal as one from the grant of summary judgment. The defendants view the judgment as one entered on the grant of a motion to dismiss for failure to state a claim upon which relief can be granted. Eisel's analysis is correct. Under Maryland Rule 2-322(b) it is permissive to raise, by motion to dismiss, the defense of failure to state a claim upon which relief can be granted, if the motion is made before answer is filed. If the defense is not made by a threshold motion, it "may be made in the answer, or in any other appropriate manner after answer is filed." Id. "A defense of failure to state a claim upon which relief can be granted ... may be made ... by motion for summary judgment under Rule 2-501 or at the trial on the merits." Md.Rule 2-324(a). Here, the procedural tool used by the defendants was a motion for summary judgment, but the defendants chose to argue their motion as if it were one to dismiss for failure to state a claim. Because,

Page 380

for purposes of the motion, the defendants and the trial court accepted the allegations of the amended complaint as true, we shall do the same. Nevertheless, because judgment was entered on summary judgment, we are free to state from the record, in addition to the accepted allegations, admissible facts which are favorable to Eisel's claim. Further, because the appeal is from the grant of a summary judgment, our review of whether judgment was properly entered looks only to the ground relied upon by the trial judge for granting the motion, i.e., the absence of duty. See Boyer v. State, 323 Md. 558, 588 & n. 19, 594 A.2d 121, 136 & n. 19 (1991); Finci v. American Casualty Co., 323 Md. 358, 381-82, 593 A.2d 1069, 1081 (1991).

II

The amended complaint avers that Nicole became involved in satanism, causing her to have an "obsessive interest in death and self-destruction." During the week prior to the suicide, Nicole told several friends and fellow students that she intended to kill herself. Some of these friends reported Nicole's intentions to their school counselor, Morgan, who relayed the information to Nicole's school counselor, Jones. Morgan and Jones then questioned Nicole about the statements, but Nicole denied making them. Neither Morgan nor Jones notified Nicole's parents or the school administration about Nicole's alleged statements of intent. Information in the record suggests that the other party to the suicide [597 A.2d 450] pact shot Nicole before shooting herself. The murder-suicide took place on a school holiday in a public park at some distance from Sligo Middle School. The other party to the pact attended another school.

There is no direct Maryland precedent on the issue before us. We have not been cited to, nor have we found, any decision by any other court that deals with the issue of duty on substantially similar facts. Before the circuit court the defendants' argument that the counselors owed no duty to

Page 381

intervene rested largely on language in judicial decisions that defendants say are analogous.

On the issue of duty Eisel argued that, by the School Board's own policy, counselors were required to contact the parents of any child who had expressed suicidal thoughts. Eisel pointed to deposition testimony on that subject by the principal, who said: "If the student is in danger, of course, you take care of that first. Then the next thing you do would be to notify a parent. If the student is in no apparent danger, you will notify the parent."

There appear to be two broad categories of cases in which a person may be held liable for the suicide of another. The first type occurs when the defendant's conduct actually causes the suicide, as when a negligent driver causes head injuries that lead to psychosis. See Fuller v. Preis, It is not contended here that Nicole's suicide was caused, in that sense, by the defendants' conduct. 35 N.Y.2d 425, 322 N.E.2d 263, 363 N.Y.S.2d 568 (1974).

The second type of case holds that a special relationship between a defendant and the suicidal person creates a duty to prevent a foreseeable suicide. For instance, many courts have held that a hospital or a prison that has custody over a person who commits suicide may be liable if the suicide was foreseeable. See Annotation, Civil Liability for Death by Suicide, 11 A.L.R.2d 751, §§ 13.5-14 (1950 & Supp.1985). In State ex rel. Shockey v. Washington Sanitarium & Hosp., 223 Md. 554, 557, 165 A.2d 764, 765-66 (1960), we said:

"[T]here is a duty upon a sanitarium or hospital to exercise such care in looking out for and protecting a patient as the circumstances, including known mental and physical conditions, may reasonably require. Failure to do so may be negligence, and if suicide is a proximate result of the negligence, recovery may be had under the wrongful death statute...."

At least one case has concluded that a professional therapist may be held liable when a patient commits suicide, even

Page 382

if the therapist or the therapist's hospital does not have custody over the patient. Bellah v. Greenson, 81 Cal.App.3d 614, 620, 146 Cal.Rptr. 535, 538 (1978); but see Nally v. Grace Community Church of the Valley, 47 Cal.3d 278, 295-96, 763 P.2d 948, 958, 253 Cal.Rptr. 97, 107-08 (1988) (limiting Bellah ), cert. denied, 490 U.S. 1007, 109 S.Ct. 1644, 104 L.Ed.2d 159 (1989). Liability against therapists for outpatient suicides is rarely imposed, e.g., Farwell v. Un, 902 F.2d 282 (4th Cir.1990) (applying Maryland law); Comment, Civil Liability for Causing or Failing to Prevent Suicide, 12 Loy.L.A.L.Rev. 967, 993 (1979), and some commentators have suggested that liability under these circumstances should never be...

# data[].attributes.attachment_link.title
Eisel v. Board of Educ. of Montgomery County, No. 139

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324 Md. 376 597 A.2d 447, 60 USLW 2312, 70 Ed. Law Rep. 544, 17 A.L.R.5th [PG957 Stephen EISEL v. BOARD OF EDUCATION OF MONTGOMERY COUNTY, Maryland, et al. No. 139, Sept. Term, 1990. Court of Appeals of Maryland. Oct. 29, 1991. [597 A.2d 448] Page 377 Edward H.

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Local Administrative Law/Policy/Rule: Belton ISD Self Harm Protocol

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Local Administrative Law/Policy/Rule: Belton ISD Self Harm Protocol

# data[].attributes.body
Belton ISD has a Self-Harm protocol in place to keep track of details pertaining to these behaviors. As a part of this protocol, this includes

Checklist for counselors to complete to determine if the statements or actions are truly an out-cry as opposed to an out-burst.

A safety contract which is completed in conjunction with the student

Resources for the families

# data[].attributes.body
Identify one item in your professional code of ethics related to your topic or related to an ethical dilemma that can come up in scenarios related to your topic. Include the ethical code item, citation for the code of ethics, link to the code of ethics, and approximately 2 sentences explaining the connection to your topic.

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Personal Connection to the Legal and Ethical Standards:  

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Personal Connection to the Legal and Ethical Standards:  

# data[].attributes.body
I have researched a variety of approaches to interact with students and support their academic and personal success throughout my educational journey. However, it is crucial that I protect pupils in accordance with the law and ethical standards. The initial out-cries of student suicide are frequently made to school counselors, but it is still unclear what should be done in many of these cases. Reviewing legislation, court rulings, and administrative policies in relation to student suicide is beneficial from both perspectives of legal requirements and ethical values. This information will enable me to better prepare myself for these scenarios as a counselor.

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Bulleted list of Recommendations / Best Practices for Compliance: 

# data[].attributes.subject
Bulleted list of Recommendations / Best Practices for Compliance: 

# data[].attributes.body
1. Err on the side of caution. Any statement of self-harm MUST be taken seriously.

2. ALWAYS call parents

3. Remain up to date on all legal and ethical requirements as well as any policies that your district may have in place.

4. Have a checklist of the important questions to ask, because in the heat of the moment you will forget them.

5. Use risk assessments with caution as well as consulting others on your counseling team.

6. Develop a safety or action plan to prevent tragedy.

7. Offer outside approved resources to parents or guardians

8.  Follow up with both student and family.

9. Remain nonjudgemental and supportive at all times.

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A.9. Serious and Foreseeable Harm to Self and Others

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A.9. Serious and Foreseeable Harm to Self and Others

# data[].attributes.body
According ASCA code of Ethics, counselors must  "Inform parents/guardians and/or appropriate authorities when a student poses a serious and foreseeable risk of harm to self
or others."
This is crucial, as the risk of not informing the parents is too great when dealing with self-harm in students. Parents should be given the chance to intervene in behalf of their child in situations such as these.

# data[].attributes.body
ASCA ethical standards for school counselors. (2022). American School Counseling Association. https://www.schoolcounselor.org/About-School-Counseling/Ethical-Legal-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1)

American School Counselors Association. (2018). The school counselor and suicide prevention/awareness. The School Counselor and Suicide Prevention/Awareness - American School Counselor Association (ASCA). Retrieved September 25, 2022, from https://www.schoolcounselor.org/Standards-Positions/Position-Statements/ASCA-Position-Statements/The-School-Counselor-and-Suicide-Prevention-Awaren

Avila v. Harlingen Indep. Consol. Sch. Dist., Civil Action 1:21-cv-111 (S.D. Tex. Nov. 22, 2021)

H.R.5619 - 116th Congress (2019-2020): Suicide Prevention Act. (2020, September 22). http://www.congress.gov/

Luciano, L. (2022, April 7). Schools face rise in suicides during pandemic: "so many kids are hurting". CBS News. Retrieved September 25, 2022, from https://www.cbsnews.com/news/student-suicides-covid-pandemic-mental-health/

Texas Education Code Chapter 38  §  38.351

Texas Administrative Code §153.1013

Walsh, M. (2021, January 4). Federal Appeals Court lets lawsuit proceed against educators in student's suicide. Education Week. Retrieved September 25, 2022, from https://www.edweek.org/policy-politics/federal-appeals-court-lets-lawsuit-proceed-against-educators-in-students-suicide/2020/12

42 U.S. Code § 290bb–36a42 U.S. Code § 290bb–36a

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State Statutory Law: Texas Education CodeSec. 38.351Mental Health Promotion and Intervention, Substance Abuse Prevention and Intervention, and Suicide Prevention

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State Statutory Law: Texas Education CodeSec. 38.351Mental Health Promotion and Intervention, Substance Abuse Prevention and Intervention, and Suicide Prevention

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The agency, in coordination with the Health and Human Services Commission and regional education service centers, shall provide and annually update a list of recommended best practice-based programs and research-based practices in the areas specified under Subsection (c) for implementation in public elementary, junior high, middle, and high schools within the general education setting.

Each school district may select from the list provided under Subsection (a) a program or programs appropriate for implementation in the district.

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Texas Education Code Section 38.351 - Mental Health Promotion and Intervention, Substance Abuse Prevention and Intervention, and Suicide Prevention - 2019 Texas Statutes - Texas Statutes

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Title 2, Public Education; Subtitle G, Safe Schools; Chapter 38, Health and Safety; Section 38.351, Mental Health Promotion and Intervention, Substance Abuse Prevention and Intervention, and Suicide Prevention. Refreshed: 2020-09-20

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Tiffany Sommerfeild: Director Academic Advising & Counseling

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Tiffany Sommerfeild: Director Academic Advising & Counseling

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I interviewed Tiffany Sommerfeild who serves as Director Academic Advising & Counseling for Belton ISD. Sommerfeild has served in this position for 4 years and previously served as director for counseling with Waco ISD.
Tiffany supports all school counselors throughout the district in creating comprehensive school counseling programs and maintaining professionalism and up to date professional practices.

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1: Why is suicide important in your field of education and/or how it is impacting your field of education?

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1: Why is suicide important in your field of education and/or how it is impacting your field of education?

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According to Mrs. Sommerfeild, It is crucial for counselors to step in as soon as possible when students are having thoughts or ideas of harming themselves. Building relationships with parents to help prevent self-harm once students leave our campuses is crucial because we can only guarantee students' safety while they are under our care (T. Sommerfeild, personal communication, September 23, 2022).
Like most things in education self-harm policies are impacted either by the state or the district.  Counselors are also required to abide by rules established by Senate and House bills regarding legal matters.

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2:What are best practices when working with suicidal students?

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2:What are best practices when working with suicidal students?

# data[].attributes.body
There is a Self-Harm protocol that we have in place to keep track of details pertaining to these behaviors. As a part of this protocol, there is also included a safety contract which is completed in conjunction with the student, resources for the families, and a checklist for counselors to complete to determine if the statements or actions are truly an out-cry as opposed to an out-burst (T. Sommerfeild, personal communication, September 23, 2022).

# data[].attributes.headline
3: Are there any emerging issues within this topic?

# data[].attributes.subject
3: Are there any emerging issues within this topic?

# data[].attributes.body
With the onset of CO-VID 19, students' anxiety levels have risen dramatically.  Belton ISD has experienced a rise in threats of self-self and begun to push toward social emotional learning as well as more support in the area of metal health services.  Students are not the only population effected. Our district has also noticed an increase in employee mental health struggles and, therefore, offers an Employee Assistance Program which is anonymous and gives access to therapy as needed.  Sommerfeld (2022) believes this is something that school districts will be dealing with for quite some time (T. Sommerfeild, personal communication, September 23, 2022).

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State Judicial Law: Avila v. Harlingen Indep. Consol. Sch. Dist.

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State Judicial Law: Avila v. Harlingen Indep. Consol. Sch. Dist.

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Jake Avila, a sixth grade student at Memorial Middle School in Harlingen, committing suicide. Within his suicide note, he wrote “a specific passage related” to Ms. Anderson, and teacher on campus. The case was dismissed after showing the Jake's constitutional rights were not violated.

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REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

Ronald G. Morgan United States Magistrate Judge

On July 23, 2021, Defendant Priscilla Amy Morales Anderson removed this case from the 357th District Court in Cameron County, Texas. Dkt. No. 1. Defendant Harlingen Consolidated Independent School District ("HCISD") has consented to the removal. Dkt. No. 12.

Plaintiffs Karl A. Avila and Jennifer Taylor are suing Anderson and HCISD, pursuant to 42 U.S.C. § 1983, for actions they claim led their son, Jake, to commit suicide. Dkt. No. 6.

On October 13, 2021, HCISD and Anderson filed a motion to dismiss. Dkt. No. 9. The motion has been fully briefed. Dkt. Nos. 13, 14.

After reviewing the record and the relevant case law, it is recommended that the motion to dismiss be granted. The Plaintiffs have not shown that Jake's constitutional rights were violated.

I. Background

In deciding a motion to dismiss, the Court must "accept all well-pled facts as true and view all facts in the light most favorable to the plaintiff." Melendez v. McAleenan, 928 F.3d 425, 427 (5th Cir. 2019). The factual background is written with this standard in mind.

Jake Avila was a sixth grade student at Memorial Middle School in Harlingen, Texas, during the 2018-2019 school year. Dkt. No. 6, pp. 2-3. Anderson was his teacher for his Pre-AP reading class. Id. During the school year, Jake had "grade problems" in that class. Id. When Avila and Taylor reached out to Anderson to help isolate and identify the source of the issues, Anderson was "curt and unhelpful." Id.

On April 23, 2019, Jake had a failing grade - a 57 out of 100 - in Anderson's class. Dkt. No. 6, p. 3. Anderson gave Jake a score of zero for "several days" during this grading period. Id., p. 4.

On April 25, 2019, Jake used a gun to commit suicide. Dkt. No. 6, p. 3. In his suicide note, Jake wrote "a specific passage related" to Anderson. Id. The complaint does not quote the note, but states that "Jake imputed this tragedy on Ms. Anderson." Id.

The complaint alleges that Anderson "has a long history of harassing students including Jake." Dkt. No. 6, p. 3. One student, L.Z., took a prescription medication that caused drowsiness; Anderson "humiliated him and made him stand to stay awake." Id. Another student once accidentally dropped all of her pencils; Anderson "intending to humiliate[] her kicked her out of class." Id., p. 4. That student claimed that Anderson told her class "that they would not amount to anything and that their class was like a 'Special Ed' class." Id. The complaint also states that Anderson was known for calling her students "idiots." Id., p. 3. The complaint does not identify any harassment or comments aimed at Jake other than his low grades.

II. Procedural History

On April 23, 2021, Avila filed a petition in the 275th District Court in Hidalgo County. Dkt. No. 1-4, p. 2. On June 28, 2021, the petition was transferred to the 357th District Court in Cameron County, Texas. Id. In that petition, Avila sued Anderson for wrongful death for her treatment of Jake. Id., p. 8.

Prior to removal, a first amended complaint was filed in state court, which added Taylor as a plaintiff and HCISD as a defendant. Dkt. No. 1-18, p. 2. In that petition, Avila and Taylor seek relief from HCISD and Anderson for: (1) violating Jake's Fourteenth Amendment Due Process rights; (2) Jake's Fifth Amendment rights; and (3) wrongful death. Id.

On July 23, 2021, Anderson removed the case to this Court on the grounds that the constitutional claims created federal jurisdiction. Dkt. No. 1. HCISD has consented to the removal. Dkt. No. 12.

On September 29, 2021, Avila and Taylor filed a second amended complaint. Dkt. No. 6. In that complaint, they sued HCISD for violating Jake's Fourth and Fourteenth Amendment rights and they sued Anderson for violating Jake's Fifth and Fourteenth Amendment rights. Dkt. No. 6, p. 9. They are also suing for wrongful death, but do not identify if they are suing both defendants or only one defendant, as to that cause of action. Id., pp. 9-10.

On October 13, 2021, HCISD and Anderson filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Dkt. No. 9. As to the constitutional claims, HCISD and Anderson argue that while Jake's suicide was tragic, there was no state action involved to make it into a § 1983 claim. Furthermore, as to the Fourth and Fifth Amendment claims, they argue that the Plaintiffs have not pled how Jake's rights were violated. As to the Fourteenth Amendment claims, HCISD argues that the Plaintiffs have not shown the existence of a policy or custom that violated Jake's constitutional rights. Anderson asserts that she is entitled to qualified immunity for any Fourteenth Amendment claims. As to the wrongful death claims, both HCISD and Anderson claim immunity under the Texas Tort Claims Act.

On November 3, 2021, Avila and Taylor filed their response. Dkt. No. 13. In it, they explicitly state that they "do not oppose dismissal" of their Fourth and Fifth Amendment claims or their wrongful death claim. Id., pp. 1-2. They ask that the wrongful death claim be dismissed without prejudice, but make no explicit request as to the Fourth and Fifth Amendment claims. As to the Fourteenth Amendment claim, they do oppose dismissal. As to HCISD, they argue that the district failed to adequately train and supervise its employees, allowing employees to harass students. Id., p. 4. As to Anderson, they argue that they have pled sufficient facts to overcome her invocation of qualified immunity. Id.

On November 10, 2021, HCISD and Anderson filed their reply brief, re-urging the arguments made in their motion to dismiss. Dkt. No. 14.

II. Applicable Law

A. Dismissal Under Rule 12(b)(6)

Anderson and HCISD sought dismissal of the wrongful death claim under Rule 12(b)(1). Because the Plaintiffs do not oppose dismissal of that claim, the Court will not discuss the Rule 12(b)(1) standard. Lindsey v. Cty. of Dallas, 2020 WL 572873, at *5 (N.D. Tex. Feb. 4, 2020) (Court "need not reach the merits" of a claim abandoned by the plaintiff).

"Dismissal under Rule 12(b)(6) is appropriate when the plaintiff has failed to allege enough facts to state a claim to relief that is plausible on its face and fails to raise a right to relief above the speculative level." Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 140 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)) (internal quotation marks omitted). The Supreme Court has further defined the Twombly standard, explaining that "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. It follows that, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - that the pleader is entitled to relief." Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

Unless the Court specifically holds otherwise, dismissal for failing to state a claim upon which relief can be granted is a dismissal on the merits and with prejudice. Memon v. Allied Domecq QSR, 385 F.3d 871, 874 n. 6 (5th Cir. 2004).

B. Section 1983

As relevant here, 42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
Id.
Section 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979). To prevail upon a § 1983 claim a plaintiff must establish two elements: (1) a constitutional violation; and (2) that the defendants were acting under color of state law when they committed the constitutional violation. Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013).

C. Municipal Liability

A municipality cannot be held liable under § 1983 on a theory of respondeat superior. Monell v. Dep't of Soc. Services, 436 U.S. 658, 691 (1978). Thus, a municipality can be subjected to civil liability if the allegedly illegal conduct is "directly attributable to the municipality through some sort of official action or imprimatur; isolated unconstitutional actions by municipal employees will almost never trigger liability." Robinson v. Hunt Cty., Texas, 921 F.3d 440, 449 (5th Cir. 2019), reh'g denied (May 16, 2019) (quoting Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)).

A claim made against a school district under § 1983 is a claim for municipal liability. Dearman v. Stone Cty. Sch. Dist., 832 F.3d 577, 581 (5th Cir. 2016). "[M]unicipal liability under section 1983 requires proof of three elements: a policymaker; an official policy; and a violation of constitutional rights whose 'moving force' is the policy or custom." Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). These elements "are necessary to distinguish individual violations perpetrated by local government employees from those that can be fairly identified as actions of the government itself." Id.

"A claim for failure to train must allege sufficient facts to show that (1) the municipality adopted inadequate training policy procedures, (2) acted with deliberate indifference in doing so, and (3) the inadequate training policy directly caused the plaintiff's injury." Speck v. Wiginton, 606 Fed.Appx. 733, 736 (5th Cir. 2015).

D. Qualified Immunity

Qualified immunity protects "government officials performing discretionary functions" from civil liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is "an immunity from suit rather than a mere defense to liability; . . . it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). "'One of the most salient benefits of qualified immunity is protection from pre-trial discovery.'" Zapata v. Melson, 750 F.3d 481, 484-85 (5th Cir. 2014) (quoting Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012)).

If a defendant claims qualified immunity, the burden shifts to the plaintiff to establish the inapplicability of that defense. Terwilliger v. Reyna, - F.4d -, - 2021 WL 2850052, at *3 (5th Cir. July 8, 2021) (citing Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009)). To survive a claim of qualified immunity - in a motion to dismiss under FED. R. CIV. P. 12(b)(6) - the plaintiff must have pled "specific facts that, if proved, would overcome the individual defendant's immunity defense; complaints containing conclusory allegations, absent reference to material facts, will not survive motions to dismiss." Geter v. Fortenberry, 849 F.2d 1550, 1553 (5th Cir. 1988); Cobb v. City of Harahan, 516 Fed. App'x. 337, 340 (5th Cir. 2013) (unpubl.) (citing Geter).

The two-part test for qualified immunity requires the Court to determine: (1) whether defendants' actions violated the plaintiff's constitutional rights; and (2) whether those rights were clearly established at the time of the defendant's actions. Pearson v. Callahan, 555 U.S. 223 (2009).

E. Fourteenth Amendment

"To state a cause of action under § 1983 for violation of the [Fourteenth Amendment] Due Process Clause, plaintiffs must show that they have asserted a recognized 'liberty or property' interest within the purview of the Fourteenth Amendment, and that they were intentionally or recklessly deprived of that interest, even temporarily, under color of state law." Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 450 (5th Cir. 1994) (quoting Griffith v. Johnston, 899 F.2d 1427, 1435 (5th Cir. 1990)) (internal quotation marks omitted). "Although the right to life is obviously an interest of constitutional dimension, its deprivation alone cannot give rise to a claim under section 1983." Dollar v. Haralson County, 704 F.2d 1540, 1543 (11th Cir. 1983). "Courts have declined to recognize as a general rule a person's affirmative right to state protection, even when such protection may be necessary to secure life, liberty, or property interests." Walton v. Alexander, 20 F.3d 1350, 1354 (5th Cir. 1994).

III. Analysis

The Plaintiffs originally raised four claims: (1) wrongful death, (2) Fourth Amendment violation; (3) Fifth Amendment violation; and (4) Fourteenth Amendment Due Process Clause violation. Dkt. No. 6. They do not oppose the dismissal of the first three claims and the Court recommends that all three claims be dismissed. Thus, the Court will analyze the only contested remaining claim, the Fourteenth Amendment claim.

The Court notes that Jake's death is undeniably tragic. It sympathizes with the pain that the Plaintiffs continue to experience, even if it cannot fully appreciate it. But the Court's role is not a roving educational administrator that judges the parties based on best practices or what it thinks should happen. See Hull v. Quitman County Bd. of Educ., 1 F.3d 1450, 1452 (5th Cir. 1993) ("this court sits not to review the wisdom of a school board's actions, but their constitutionality"). Thus, the Court will view the Fourteenth Amendment claim through that lens. It will first examine the claims against HCISD and then the claims against Anderson.

A. HCISD

In order to hold HCISD liable for violating Jake's constitutional rights, the Court must consider (1) whether Jake's rights were violated and (2) whether a HCISD policy or custom was the moving force behind the violation of those rights.

1. Violation of Rights

The Plaintiffs argue that Jake's Fourteenth Amendment rights were violated. The Court finds that this argument is not well-taken.

Under the Fourteenth Amendment, schoolchildren have the "right to be free of state-occasioned damage" to their bodily integrity. Doe v. Taylor., 15 F.3d at 450. However, Jake took his own life outside of school property with no school officials present. The damage to his bodily integrity was not state-occasioned; HCISD had no constitutional duty to protect him from private violence. DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 197 (1989). An off-campus suicide attempt is an act of private violence. Wyke v. Polk County School Board, 129 F.3d 560, 569 (11th Cir. 1997).

There is one exception to this rule that is recognized by the Fifth Circuit: the "special relationship" test. Robinson v. Webster Cty., Mississippi, 825 Fed.Appx. 192, 195 (5th Cir. 2020). Under this test, the state must protect an individual from private harm not because of the state's knowledge "of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." Robinson, 825 Fed.Appx. at 196 (quoting DeShaney, 489 U.S. at 200). In other words, when the state restricts an individual's ability to act on their own behalf, it has a duty to protect that individual from private danger. This usually arises in the context of correctional facilities, mental institutions, and foster care, where the government holds a person in custody against their will. Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 856 (5th Cir. 2012). However, the Fifth Circuit has repeatedly held that school districts do not have a special relationship with students that requires them to protect the students from harm by private actors. Id., at 857-58 (collecting cases). Accordingly, this exception is inapplicable.

Other circuit courts have recognized a second exception, the "state-created danger" theory, "applicable when the state affirmatively created or exacerbated a dangerous situation that led to a person's injury." Robinson, 825 Fed.Appx. at 195 (pointing out the Fifth Circuit's decision to not recognize such an exception, citing Kovacic v. Villarreal, 628 F.3d 209, 214 (5th Cir. 2010)). Indeed, while this exception could arguably apply to the facts of this case, the Fifth Circuit has repeatedly declined to recognize such an exception. Robinson, 825 Fed. App'x at 195-96 (collecting cases). The Court is no position to recognize a right that the Fifth Circuit has repeatedly declined to recognize. See Alvarez v. City of Brownsville, 904 F.3d 382, 398 (5th Cir. 2018) (en banc) ("district courts are bound to follow circuit precedent unless it directly conflicts with Supreme Court precedent").

Furthermore, the Fifth Circuit has held that, within a school setting, "verbal abuse does not give rise to a constitutional violation." Wyatt v. Fletcher, 718 F.3d 496, 504 (5th Cir. 2013) (citing Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002)). Indeed, there is no caselaw holding that a teacher's offensive remarks violate the Constitution. In fact, all cases that have decided the issue have held the opposite. See Doe v. Gooden, 214 F.3d 952, 955 (8th Cir. 2000) (a teacher's "demeaning and belittling references to his students" and "his use of patently offensive language" did not violate his students' constitutional rights); Abeyta By and Through Martinez v. Chama Valley Indep. Sch. Dist., No. 19, 77 F.3d 1253, 1254-58 (10th Cir. 1996); Costello v. Mitchell Pub. Sch. Dist. 79, 266 F.3d 916, 919, 921 (8th Cir. 2001); Totty v. Indep. Sch. Dist. No. I-009 of Blaine Cty. Oklahoma, No. CV-08-572-F, 2010 WL 11606954, at *8 (W.D. Okla. Apr. 14, 2010); Bridges ex rel. D.B. v. Scranton Sch. Dist., 66 F.Supp.3d 570, 585 (M.D. Pa. 2014), affd, 644 Fed.Appx. 172 (3d Cir. 2016); Walker-Serrano by Walker v. Leonard, 168 F.Supp.2d 332, 347 (M.D. Pa. 2001); Acadia Ins. Co. v. Hinds Cnty. Sch. Dist., 2013 WL 2182799, at *5 n. 4 (S.D.Miss. May 20, 2013) ("It is self-evident that a student's constitutional interest in bodily integrity does not extend to allegations of verbal abuse") (emphasis original).

Accordingly, while the Court does not condone the use of demeaning language toward students, the Court should find that Jake's constitutional rights were not violated. Even if they were violated, the Plaintiffs have not shown the existence of a policy or custom, as set out below.

2. Policy or Custom

In order to support municipal liability against HCISD, the Plaintiffs must introduce facts showing that there was a policy or custom that was the moving force behind Jake's suicide. Simply stated, the Plaintiffs fail to meet this burden.

The Plaintiffs must show that: (1) HCISD failed to train or supervise Anderson; (2) there is a causal connection between the failure to train and the alleged violation of Jake's rights; and (3) the failure to train constituted deliberate indifference to Jake's constitutional rights. Hutcheson v. Dallas Cty., Texas, 994 F.3d 477, 482 (5th Cir. 2021).

The Plaintiffs allege that HCISD had cursory training on not harassing students and no training on suicide prevention. The Court will assume, without deciding, that these allegations are sufficient to meet the first element. Given Jake's suicide note, the Court will similarly assume, without deciding, that there was a causal connection between the lack of training and his suicide. But the Plaintiffs have not shown that the failure to train constituted deliberate indifference.

As to the third element - deliberate indifference - the Plaintiffs must show a "pattern of similar constitutional violations by untrained employees." Hutcheson, 994 F.3d at 482. The Plaintiffs have provided no evidence of similar violations; there has been no showing that any other student has been bullied into committing suicide by an HCISD staff member. While the Plaintiffs have pled that other students were mistreated by Anderson, they have not pled any facts showing that any HCISD officials were aware of Anderson's behavior. If HCISD officials were not aware of her behavior, then they did not act with deliberate indifference. See Winston v. City of Shreveport, 390 Fed.Appx. 379, 385 (5th Cir. 2010) ("for an official to act with deliberate indifference, the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.").

The Plaintiffs argue that this case falls within the single-incident exception. Dkt. No. 13, pp. 4-5. "The 'single incident exception' is extremely narrow; a plaintiff must prove that the highly predictable consequence of a failure to train would result in the specific injury suffered, and that the failure to train represented the moving force behind the constitutional violation." Valle v. City of Houston, 613 F.3d 536, 549 (5th Cir. 2010) (emphasis original; internal quotation marks omitted). "[T]he exception is generally reserved for those cases in which the government actor was provided no training whatsoever." Pena v. City of Rio Grande City, 879 F.3d 613, 624 (5th Cir. 2018).

While the Plaintiffs have pled that Anderson was given no training on suicide prevention, the Court cannot say that Jake's suicide was the highly predictable consequence of such failure. As the Fifth Circuit has recognized, albeit in a slightly different setting, "[s]uicide is inherently difficult for anyone to predict." Domino v. Tex. Dep't of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001). The Plaintiffs have not pled any facts showing that Jake gave enough signs that he was about to commit suicide such that suicide prevention training would have allowed Anderson (or any other HCISD staffer) to notice his intentions and act to stop them.

In short, HCISD's failure to train or supervise Anderson did not constitute deliberate indifference. Accordingly, the Plaintiffs' municipal liability claim against HCISD should be dismissed.

B. Anderson

Anderson has invoked qualified immunity. The Court finds that qualified immunity is unnecessary because Anderson did not violate Jake's constitutional rights. Even if Anderson did violate his rights, she is entitled to qualified immunity because those rights were not clearly established. This conclusion in no way condones the purported words or actions that Anderson allegedly employed.

1. Violation of Rights

As previously noted, there is no violation of Jake's constitutional rights in this case. The harm to Jake was tragically self-inflicted off of school grounds. The Constitution does not protect against private harm by non-state actors. DeShaney, 489 U.S. at 197. Jake's off-campus suicide was an act of private violence. Wyke, 129 F.3d at 568-70.

Furthermore, under binding Fifth Circuit precedent, the Plaintiffs are foreclosed from arguing that Anderson "affirmatively created or exacerbated a dangerous situation that led to a person's injury." Robinson, 825 Fed.Appx. at 195-96. Anderson has no need for qualified immunity because she did not violate Jake's rights. Lytle v. Bexar County, 560 F.3d 404, 410 (5th Cir. 2009). Moreover, Anderson's alleged comments to students, while regrettable and inappropriate, do not violate the constitution. Gooden, 214 F.3d at 955; Wyatt, 718 F.3d at 504.

Even if the Court were to find that Anderson violated Jake's constitutional rights, it would find that those rights were not clearly established.

2. Clearly Established

The Court must consider whether Anderson's conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818. The Court believes that the law was not clearly established.

Indeed, the law within the Fifth Circuit recognized that school officials do not have a special relationship with students that requires them to protect the students from private harm. Doe ex rel. Magee, 675 F.3d at 856 (emphasis added). In fact, the Fifth Circuit does not hold government employees responsible for creating a dangerous situation that leads to private harm. Robinson, 825 Fed.Appx. at 195-96.

Simply put, there was no clearly established law that put Anderson on notice that her actions were unconstitutional. Accordingly, if she violated Jake's constitutional rights, she would be entitled to qualified immunity, which undermines this claim. See Irwin v. Santiago, No. 21-10020, 2021 WL 4932988, at *2 (5th Cir. Oct. 21, 2021) (In short, "[a] defendant is entitled to qualified immunity if his conduct did not violate" the plaintiff's "clearly established" constitutional rights).

The Plaintiffs have requested that if the Court were inclined to find that Anderson was entitled to qualified immunity, it should require Anderson to file an answer specifically invoking qualified immunity and then allow the Plaintiffs to file a Rule 7(a) reply that specifically addresses qualified immunity. Dkt. No. 13, p. 7. The appropriateness and necessity of such an order is left to the Court's discretion. Anderson v. Valdez, 845 F.3d 580, 590 (5th Cir. 2016). The Court believes that such an order is unnecessary in this case.

The Plaintiffs have already amended their complaint twice. The Court should not be utilized as a mere quality control mechanism. Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986) ("[P]laintiffs cannot be allowed to continue to amend or supplement their pleadings until they stumble upon a formula that carries them over the threshold."). Furthermore, it seems highly unlikely that the Plaintiffs could plead additional facts that would show that a constitutional violation occurred in this case. Jake's death happened off-campus at his own hand; those tragic facts all but ensure that a constitutional violation did not occur. Simply put, "not every injury is an injury of constitutional magnitude." Goodman v. Kimbrough, 718 F.3d 1325, 1333 (11th Cir. 2013).

IV. Recommendation

It is recommended that the motion to dismiss filed by Harlingen Consolidated Independent School District and Priscilla Amy Morales Anderson, Dkt. No. 9, be granted.

The claims made under the Fourth, Fifth and Fourteenth Amendment should be dismissed with prejudice for failure to state a claim upon which relief can be granted.

The wrongful death claim should be dismissed without prejudice.

To the extent that the Court finds that Anderson violated Jake's constitutional rights, it should hold that Anderson is entitled to the protections of qualified immunity.

The parties have fourteen (14) days from the date of being served with a copy of this Report and Recommendation in which to file written objections, if any, with the United States District Judge. 28 U.S.C. § 636(b)(1). A party filing objections must specifically identify the factual or legal findings to which objections are being made. The District Judge is not required to consider frivolous, conclusive, or general objections. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).

If any party fails to timely object to any factual or legal findings in this Report and Recommendation, the District Judge is not required to conduct a de novo review of the record before adopting these findings. If the District Judge chooses to adopt such findings without conducting a de novo review of the record, the parties may not attack those findings on appeal, except on the grounds of plain error. Alexander v. Verizon Wireless Servs., L.L.C., 875 F.3d 243, 248 (5th Cir. 2017).

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Ronald G. Morgan United States Magistrate Judge

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Avila v. Harlingen Indep. Consol. Sch. Dist., Civil Action 1:21-cv-111 | Casetext Search + Citator

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Read Avila v. Harlingen Indep. Consol. Sch. Dist., Civil Action 1:21-cv-111, see flags on bad law, and search Casetext’s comprehensive legal database

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TEXAS Administrative Code §153.1013: Suicide Prevention Training

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TEXAS Administrative Code §153.1013: Suicide Prevention Training

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This laws requires that all campuses provide suicide prevention training as required by the Texas Education Code (TEC), §21.451(d) to all employees on an annual basis.

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(a) All school districts and open-enrollment charter schools shall provide suicide prevention training as required by the Texas Education Code (TEC), §21.451(d), to all new school district and open-enrollment charter school educators as a part of new employee orientation during the 2016-2017 school year. (b) Each subsequent school year, school districts and open-enrollment charter schools shall provide suicide prevention training as required by the TEC, §21.451(d), to all new school district and open-enrollment charter school educators as a part of new employee orientation. (c) All school districts and open-enrollment charter schools shall provide suicide prevention training as required by the TEC, §21.451(d), to all currently employed school district and open-enrollment charter school educators on or by September 30, 2016. (d) Suicide prevention training that is required by the TEC, §21.451(d), and was provided to existing educators by a school district or open-enrollment charter school on or after September 1, 2013, may be used to meet the requirements of this section if the training program is on the recommended best practice-based list maintained by the Department of State Health Services (DSHS), in coordination with the Texas Education Agency (TEA), or is an online program that meets the TEA guidelines for independent review. (e) In accordance with the Health and Safety Code, §161.325, school districts shall maintain records that include the name of each educator who participated in the suicide prevention training. (f) Open-enrollment charter schools are encouraged to maintain suicide prevention training records that include the name of each educator who participated in the suicide prevention training.

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(a) All school districts and open-enrollment charter schools shall provide suicide prevention training as required by the Texas Education Code (TEC), §21.451(d), to all new school district and open-enrollment charter school educators as a part of new employee orientation during the 2016-2017 school year.