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Case: 15-10098

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No. 15-10098
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________________________
C.C., et al,
Plaintiffs, Appellants
v.
THE HURST-EULESS BEDFORD INDEPENDENT SCHOOL DISTRICT,
et al.,
Defendants, Appellees
______________________________________
Appeal from the United States District Court
Northern District of Texas
Fort Worth Division
4:14-cv-0046-a
_____________________________________________
APPELLANTS BRIEF
_____________________________________________
Respectfully submitted,
/s/ Martin J. Cirkiel
Martin J. Cirkiel
Texas Bar No. 00783829
Cirkiel & Associates, P.C.
1901 E. Palm Valley Blvd.
Round Rock, Texas 78664
(512) 244-6658 [Telephone]
(512) 244-6014 [Facsimile]
marty@cirkielaw.com [Email]
LEAD COUNSEL FOR APPELLANTS

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CERTIFICATE OF INTERESTED PERSONS


In compliance with Fed. R. App. P. 28.2.1 and Fifth Circuit Local Rule
28.2.1, Counsel notes the number and styling of this case, is as follows:
C.C., et al, Plaintiffs, Appellants v. THE HURST-EULESS BEDFORD
INDEPENDENT SCHOOL DISTRICT, et al, Defendants, Appellees, No.
15-10098, IN THE UNITED STATES COURT OF APPEALS, FOR THE
FIFTH CIRCUIT.
Further, and also in compliance with these rules, the undersigned counsel for
Plaintiffs-Appellants certifies that they know of no other persons, associations of
persons, firms, partnerships or corporations that have an interest in the outcome of
this particular case save for the parties noted in the style of this case and their
counsel of record. These representations are made in order that the judges of this
court may evaluate possible disqualification or recusal.

/s/ - Martin J. Cirkiel


MARTIN J. CIRKIEL
Attorneys for Plaintiffs-Appellants

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STATEMENT REGARDING ORAL ARGUMENT


Charles Cripps and Kristie Cripps, individually and on behalf of her son
C.C., request Oral Argument and reasonably believes the decisional process would
be significantly aided by oral argument, as otherwise contemplated by Fed R. App.
P. 34(a)(1) and Fifth Circuit Local Rule 28.2.3.
Respectfully submitted,
/s/ - Martin J. Cirkiel
MARTIN J. CIRKIEL
Attorneys for Appellants-Plaintiffs

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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ...................................................... ii
STATEMENT REGARDING ORAL ARGUMENT ............................................. iii
TABLE OF CONTENTS .........................................................................................iv
TABLE OF AUTHORITIES .................................................................................... v
JURISDICTIONAL STATEMENT ......................................................................... 1
I.

STATEMENT OF THE ISSUES ................................................................... 1

II.

STATEMENT OF THE CASE ...................................................................... 2

III.

SUMMARY OF THE ARGUMENT ...........................................................19

IV.

STANDARD OF REVIEW ..........................................................................22

V.

ARGUMENT AND AUTHORITIES ..........................................................25

VI.

CONCLUSION AND PRAYER ..................................................................48

VII. CERTIFICATE OF FILING AND SERVICE .............................................50


VIII. CERTIFICATE OF COMPLIANCE ...........................................................52

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TABLE OF AUTHORITIES
Federal Cases
Supreme Court Cases
Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009) ...........................................................
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ...............................................
Conley v. Gibson, 355 U.S. 41, 45 46, (1957) ............................................................
County of Sacramento v. Lewis, 523 U.S. 833, 845-846 (1998)
Goss v. Lopez, 419 U.S. 565 (1975)..
Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507
U.S. 163, 164 (1993) ....................................................................................................
Malinski v. New York, 324 U.S. 401, 416-417 (1945)...
Monell v. Department of Social Services, 436 U.S. 658 (1978).
Papasan v. Allain, 478 U.S. 265, 286 (1986)...............................................................
Roger Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133; 120 S. Ct.
2097, 147 L.Ed 2d 105 (2000). ...................................................................................
St. Marys Honor Center v. Hicks, 509 U.S. 502, 524; 125 L. Ed. 2d 407; 113 S.
Ct. 2742 (1993) ............................................................................................................
Tchereepnin v. Knight, 389 U.S. 332, 336 (1967) .....................................................
Tinkers v. Des Moines School District, 393 U.S. 503 (1968)
Village of Willowbrook v. Olech., 528 U.S. 562, 120 S. Ct. 1073, 145 L. Ed. 2d
1060 (2000).

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Courts Of Appeal
Addington v. Farmer's Elevator Mutual Insurance Co., 650 F.2d 663, 666 (5th Cir.
1981)..
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996) ......................................................
Bell v. Ohio State University, 351 F.3d 240, 251 (6th Cir. 2003)..
Chitimacha Tribe of La. v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1162 (5th Cir.
1982)..
City Natl Bank of Fort Smith, Ark. v. Vanderboom, 422 F2d 221 (8th Cir. 1970)..
D.A. ex rel. Latasha A. v. Houston Independent School District, 629 F.3d 450, 455
(5th Cir. 2010) ..............................................................................................................
Doe v. Taylor, 15 F3d 443 (5th Cir. 1994).
Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)...
Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 598 (5th Cir. 1981)...
Ellenberg v. N.M. Military Inst., 572 F.3d 815, 819-23 (10th Cir. 2009)..
Estate of Lance v. Lewisville Independent School District, 743 F.3d 982, 990 (5th
Cir. 2014)..
Farfaras v. Citizens Bank & Trust, 433 F3d 558, 568 (7th Cir. 2006)
Folkerts v. City of Waverly, 707 F.3d 975, 980 (8th Cir. 2013) .................................
Genl Star Indemnity Co. v. Vesta Fire Ins. Corp., 173 F.3d 946 (5th Cir. 1999) ......
Greer v. Richardson Indep. Sch. Dist., 472 F. App'x 287, 292 (5th Cir. 2012).

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Harris ex rel. Harris v. Pontotoc County School District, 635 F3d 685, 690 (5 th Cir.
2011)..
Harrison v. Rubin, 174 F3d 249, 253 (D.C. Cir. 1999)..
In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)
Jefferson v. Yseleta Indep. Sch. Dist., 817 F2d 303, 305 (5th Cir. 1987)..
Lillbask ex rel. Mauclaire v. State of Conn. Dep't of Educ., 397 F.3d 77, 82 (2d
Cir.2005).
Lowrey v. Texas A&M University System, 117 F.3d 242, 247 (5th Cir. 1997) .........
Lyn-Lea Travel Corp. v. American Airlines, Inc., 283 F.3d 282, 286 (5th Cir.)
Laber v. Harvey, 438 F3d 404, 426-427 (4th Cir. 2006).
Marvin H. v. Austin Independent School District, 714 F.2d 1348, 135657 (5th
Cir.1983)
Martinson v. Regents of University Of Michigan, 2014 WL 134476 at *9 (6th Cir.,
April 4, 2014).
Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671-72 (5th Cir. 2004).
Monahan v. State of Nebraska, 687 F2d 1164 (8th Cir. 1982) .....................................
Morris v. Dearborne, 181 F3d 657 (5th Cir. 1999).
M.P. v. Indep. Sch. Dist. 721, 326 F.3d 975, 981-982 (8th Cir. 2003) .......................
M.P. ex rel. K. v. Indep. Sch. Dist. No. 721, 439 F.3d 865, 868 (8th Cir. 2006) .........
Pace v. Bogalusa City School Board, 403 F.3d 272, 296-297 (5th Cir. 2005)

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Quintanilla v. Texas Television, Inc., 139 F.3d 494, 499 (5th Cir. 1998).
S.S., A Minor b/n/f Parents of S.S. v. Eastern Kentucky University, 532 F.3d 445
(6th Cir. 2008) ..............................................................................................................
Smoot v. Chicago, R. I. & P., Co., 378 F2d 879 (10th Cir. 1967) ...............................
Southern Christian Leadership Conference v. Supreme Court of the State of
Louisiana, 252 F.3d 781, 786 (5th Cir.), cert. denied, 534 U.S. 995 (2001)...............
Stewart v. Waco Independent School District, No. 11-51067, 2013 U.S. App.
LEXIS 11102 (5th Cir. 2013[unpublished]) .................................................................
Summit Office Park v. United States Steel Corp., 639 F.2d 1278, 1284 (5th Cir.
1981)..
District Courts
Davis v. Dallas County, 541 F. Supp. 2d 844, 848 (N.D. Tex. 2008)..
Furstenfeld v. Rogers, No. 03-02 CV 0357 L, 2002 U.S. Dist. LEXIS 11823, at *5
(N.D. Tex. Jul. 1, 2002) ...............................................................................................
McBroom v. Payne, Cause No. 1:06-cv-1222-LG-JMR (S.D. Miss., October 6,
2010)...
T.K. v. New York City Department of Education, 779 F.Supp.2d 289 (E.D.N.Y,
2011) ............................................................................................................................
Whitehead v. School Board of Hillsborough County, Florida, 918 F.Supp. 1515
(M.D. Fla. 1996) ..........................................................................................................

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State Cases
Deep East Texas Regional Mental Health & Mental Retardation Services v.
Kinnear, 550 S.W.2d 550, 563 (Tex. App. Beaumont, 1994) ..................................
Federal Statutes
20 U.S.C.1400 et seq..................................................................................................
28 U.S.C. 1291 ...........................................................................................................
29 U.S.C.A. 794 et seq ..............................................................................................
42 U.S.C. 1983 ...........................................................................................................
42 U.S.C. 1985 ..........................................................................................................
Federal Regulations
FED. R. APP. P. 4 ........................................................................................................
FED R. APP. P. 34(a)(2) C).........................................................................................
FED. R. CIV. P. 12(b)(6) .............................................................................................
State Statutes & Regulations
19 T.A.C. 89.1050. .....................................................................................................
Tex. Code of Crim. Procedure 15.27(a)..
Tex. Educ. Code 37.006(a)(2)(A)...
Texas Penal Code 22.01(a).
Texas Penal Code 46.01(6).

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I. STATEMENT OF JURISDICTION
1.

This is an appeal by the Plaintiff in a civil case. The District Court

had jurisdiction over Plaintiffs claims pursuant to 14th Amendment to the United
States Constitution as contemplated by 42 U.S.C. 1983 and as to Section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. 794a (Rehabilitation Act). It granted
the School Districts Motion to Dismiss on all claims against all parties.
2.

C.C. filed his Notice of Appeal1 in accordance with Rule 4(b) of the

Federal Rules of Appellate Procedure. This Court of Appeals has jurisdiction to


hear this appeal pursuant to 28 U.S.C. 1291 and Federal Rule of Appellate
Procedure 4.
STATEMENT OF THE ISSUES
3.

Did the District Court abuse its discretion by not permitting

Appellants the opportunity to file an amended complaint, as they had requested?


4.

Did the District Court err when granting the Motion to Dismiss in

regard to C.C.s claims the School District violated Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. 794, by failing to provide consider the
allegations he was a victim of retaliation?
5.
1

Did the District Court err when granting the Motion to Dismiss in

. Pursuant to Local Rule 28.2.2, the record from the District Court of the United States has been
filed with this Court of Appeals for the Fifth Circuit and will be cited as ROA. at p. __
accordingly.

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regard to C.C.s claims that his procedural due process rights were violated by
failing to have a process to correct false allegations of criminal activity?
6.

Did the District Court err when granting the Motion to Dismiss when

finding he could not support a substantive due process claim?


7.

Did the District Court err when granting the Motion to Dismiss in

regard to C.C.s claim his rights pursuant to the Equal Protection Clause were
violated?
8.

Did the District Court err when granting the Motion to Dismiss

regarding C.C.s claims School District personnel grossly deviated from


professional standards of care relative to Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. 794.
9.

Did the District Court err when granting the Motion to Dismiss

regarding C.C.s claims the School District failed to provide him a non-hostile
educational environment, relative to Section 504 of the Rehabilitation Act of 1973,
29 U.S.C. 794.
STATEMENT OF THE CASE
A.

Procedural Resume
10.

During the 2013 school year C.C. was a student with a disability and

received services pursuant to the Individuals with Disabilities Education Act


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(IDEA), 20 U.S.C. 1401 et seq. at the School District. He believed his rights
under IDEA, as well as his statutory rights pursuant to Section 504 of the
Rehabilitation Act of 1973 and also his rights under the United States Constitution
pursuant to the Due Process and Equal Protection Clauses of the 14th Amendment
were likewise violated by the School District, including the Middle School
Principal, Scott Hurbough and the Vice-Principal, Damon Emery [ROA. 150, 9;
171-174].
11.

On January 13, 2014, and in order to satisfy the administrative

exhaustion requirements in the operative law, 20 U.S.C. 1415(l) 2, C.C. filed what
is termed a Request for a Due Process Hearing with the Texas Education Agency
(TEA) [ROA. 150, 11; 175]. The Hearing Officer ruled in favor of the School
District on all grounds [ROA. 175, 143-149]. On or about August 11, 2014, C.C.
filed his Complaint with Jury Demand addressing both the constitutional and
statutory claims noted above, as well as the appeal of the Hearing Officers
Decision [ROA. 19]. In that document, and among other things, C.C. spoke about
the finding by the Office of Civil Rights that he had satisfied criteria for a prima
facie case that, among other things, he was a victim of retaliation [ROA. 34-35,

. The appeal of the Special Education Hearing Officer [ROA. 175-176] decision was severed
from this case and is not before the 5th Circuit for review, through the underlying facts in that
cause are relevant here [ROA. 657].
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59]. The School District Appellants, Hurbough [ROA. 124, 127], Emery [ROA.
102, 105] and the District itself [ROA. 78, 81] soon filed their respective Motions
to Dismiss with the required Brief.
12.

On October 19, 2014 C.C. filed his First Amended Complaint [ROA.

146]. There, he reiterated that the School Board had given authority to Principal
Hurbough and Vice Principal Emery, address disciplinary issues for the Board,
including holding a Multidisciplinary Disciplinary Reviewing Hearing for students
with disabilities, like C.C. [ROA. 154-155, 26-31]. There, C.C. further alleged
and clarified claims that the HEB School District violated his rights pursuant to
Section 504 of the Rehabilitation Act by creating a hostile educational
environment as to him [ROA. 174-175] by professional staff grossly deviating
from operative standards of care in regard to the educational program provided. It
reiterated language that he was victim of retaliation [ROA. 165-166, 82-85] and
in further support, added some language in support of this proposition in the
factual resume section (ROA. 156, 38, 40.]
13.

C.C. also claimed violations of his constitutional rights, pursuant to

the Due Process Clause of the 14th Amendment to the United States Constitution,
when having an investigation that was steered and directed to a finding that he
committed a felony (when he did not) and then by failing to have a process to
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review the allegations when the School District learned no felony allegations were
not going to be prosecuted by the local Juvenile Justice Authority [ROA. 172,
119, 122]. He also claimed that School District personnel participated in a
conspiracy against him pursuant to 42 U.S.C. 1985 [ROA. 174 3]. Last, that the
School District itself, and Hurbough and Emery, Individually, violated his rights
pursuant Equal Protection Clause of the 14 th Amendment, on a class of one theory
[ROA 173-174].
14.

The School District Appellants, Hurbough [ROA. 303, 306], Emery

[ROA. 281, 284] and the District itself [ROA. 325, 328] on October 23, 2014 filed
their respective Motions to Dismiss with the required Brief.4 Of particular note
was the Districts response that:
.... In fact, Plaintiffs Complaint fails to tie any of the alleged action
of HEB ISD to C.C.s disability; to the contrary, Plaintiffs actually
plead that the District took the alleged action against C.C. in

. C.C. abandons this conspiracy claim under Section 1985 but will argue below, that the
Appellees participated in a conspiracy that violated his rights pursuant to the Rehabilitation Act
of 1973 by (1) helping to create a hostile educational environment as to C.C. and (2) gross
deviations from professional standards of care for educators.
3

. None of these Appellees, nor did the District Court, ever addressed C.C.s claim that he was
also a victim of disparate treatment [ROA. 173-174, 130]. Interestingly, the School District in
their response allege that C.C.s claims were not based upon whether or not he had a disability
but because he was a victim of retaliation [ROA. 348] yet the District Court failed to permit C.C.
to amend his complaint and otherwise would have permitted briefing on this particular issue.
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retaliation for Plaintiffs advocacy ... [ROA. 348].


15.

On November 20, C.C. attempted to file a Second Amended

Complaint [ROA. 374] which was opposed by Appellees. He also asked for an
extension of time in light of the filing of the second amended complaint [ROA.
415, 419, 423]. On November 24, 2014 the Court issued an order requiring C.C. to
respond to the various Motions to Dismiss. In addition the Court ordered that he
provide his (second) amended complaint with necessary marking to show any
additions and deletions from the previous pleading (the first amended complaint),
by December 2, 2014 [ROA. 434]. On that same day the administrative record
from the Texas Education Agency was filed [ROA. 439] and ordered sealed.
16.

C.C. filed his Response as to Emery [ROA. 441], Hurbough [ROA.

468 and the School District [ROA. 495] on December 2, 2104, based solely upon
the First Amended Complaint. Among other things, he did include an argument
that he was a victim of discrimination based upon his parents advocacy, the
retaliation claim [ROA. 514-516, 55-60]. C.C. also filed the (now third) amended
complaint with necessary markings, as required by the Judge [ROA. 520, 561].
Among other things, it reiterated the worsening relationship between the parties
and the retaliatory actions taken [ROA. 525, 3; 527-528, 10; 534, 40, 42; 543,
84; 555-556, 155]. The School District [ROA. 609], Hurbough [ROA. 614] and
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Emery [ROA. 605] soon filed their respective Reply Briefs to C.C.s Response.
The School District failed to respond to C.C.s retaliation claim, except to note it
was not in Plaintiffs live pleading, their First Amended Complaint [ROA. 610, p.
2, fn. 2].
17.

The District Judge denied C.C.s request to amend his complaint

[ROA. 630] on December 11th. C.C. asked it be reconsidered [ROA. 645, 650] and
that too was denied [ROA. 667]. Later on December 24th, the TEA appeal was also
severed from this case, ordering C.C. to file a new Complaint on the severed
action [ROA. 657]. On January 8, 2015 the District Judge denied all of C.C.s
constitutional and statutory claims [ROA. 675, 690]. In a fifteen (15) page
document he wrote about one page on C.C.s due process claims [ROA. 682-683]
and in that section, solely discussed the students placement in an alternative
education program, which was not the argument that C.C. had written to in his
responses.5
18.

In regard to C.C.s equal protection claim based upon a class-of-one,

he again wrote about one page on the topic. Here, he determined that C.C. could
not make his case because, none of the other infractions involved violations of

. The Judge failed to address his other due process claims such as an investigatory process that
was predetermined and a system that had no remedy to undue a false allegation of felonious
activities.
7

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another childs privacy rights as egregious as the making and publishing of


photographs of a child sitting on a toilet 6 (even though the other infractions also
rose to potential felony adjudications) [ROA. 683-684]. The District Court next
expended about two and half (2 ) pages on C.C.s two claims pursuant to Section
504 [ROA. 686-688]. In regard to C.C.s claim that he was a victim of
discrimination based upon disability, the Judge also gave this claim short shrift,
noting that the (mis)treatment of C.C. was not based upon his disabilities. 7
Further, any individual claims that C.C.s parents might have for reimbursement
were also denied.8 The Court wrote that any claims related to retaliation were not
properly presented in the First Amended Complaint [ROA. 686 at 4].9 In this
6

. First , C.C. did not publish any of the pictures. Moreover, the issue is not that the Judge
believed the taking of pictures to be more or less egregious than any other acts that could
likewise be felonies, like, for instance, battering a student with a musical instrument or bringing
drugs and a knife to school, and those students being treated less harshly than C.C. for also
ostensibly committing felonies. Here the Court improperly weighed the evidence, a function
more properly left to a motion for summary judgment or afforded a jury.
7

. C.C. will further address this error below but for the moment will point out the allegations in
his complaint (which included his status as a student receiving services pursuant to IDEA) that
there was a gross mismanagement of the educational plan provided to him or there was a gross
deviation from professional standards of care in the manner provided, very specifically
contemplates his disabling conditions, which provided such a plan in the first instance. The
School Districts position was that they did not show any hostility as to C.C. based upon his
status as a student with a disability, [ROA. 348] which of course supports C.C.s position, argued
in the alternative, that his constitutional rights were thereby violated.
8

. These claims were really a vestige of the due process claim and were not really relevant to civil
rights claims or this appeal.
9

. The Judge also addressed claims of civil conspiracy [ROA. 685]. C.C. has abandoned those
contentions.
8

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section the Judge relied upon D.A. ex rel. Latasha A. v. Houston Independent
School District, 629 F.3d 450, 455 (5th Cir. 2010) and Estate of Lance v.
Lewisville Independent School District, 743 F.3d 982, 990 (5th Cir. 2014).10 C.C.
appealed in a timely manner [ROA. 690].11
B.

Factual Resume12
19.

C.C. was born on April 6, 2000, and during most of the relevant

period in this cause was 12 years old [ROA. 146, fn. #1] and a student with a
disability, as contemplated by the Individuals with Disabilities Educational Act
(IDEA), 20 U.S.C. 1400 et seq. and Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. 794. He has been diagnosed at various times with attention
deficit hyperactivity disorder13, anxiety and behavioral problems with related

10

. Both of these cases that were disposed of in the District Courts based upon Motions for
Summary Judgment, not a Motion to Dismiss, as occurred in this cause
11

. Since that time the severed case was adjudicated in favor of the School District

12

. Plaintiffs substantially rely upon their First Amended Complaint [ROA. 146-180].

13

. Attention deficit hyperactivity disorder (ADHD), is a psychiatric disorder of the neurodevelopmental type causing significant problems of acting impulsively. An individual like C.C.,
who has ADHD, is also easily distracted, has difficulty completing assignments, doesnt seem to
listen when spoken to, cant process information as quickly and accurately as others, struggles to
follow instructions and will often blurt out inappropriate comments and act without regard for
consequences. This is because a child with ADHD has difficulty with what is termed executive
functions. Executive function refers to a number of mental processes that are required to regulate,
control, and manage daily life tasks including and especially social behaviors.
9

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impoverished social skills14 with both teachers and peers [ROA. 147, 2; 157, 41,
43].
20.

In the Fall of 2012, C.C.s parents met with staff to provide him an

educational accommodation plan pursuant to Section 504 of the Rehabilitation Act


of 1973. The plan was insufficient as C.C. began to get a number of disciplinary
referrals due to his disabilities [ROA. 155, 35] and due to a lack of support from
the District so his parents soon removed him from school on October 19th [ROA.
155, 34].
21.

The Cripps then retained an Educational Advocate, Ms. Deb Liva, a

person known to have a very assertive and aggressive style, in an effort to have
C.C. accepted as a student able to receive Special Education services pursuant to
the Individuals with Disabilities Education Act (IDEA) [ROA. 154, 35]. The
family and advocate met with school officials, Emery and Hurbough in particular,
on a number of occasions to address C.C.s disability and related educational
needs to no avail. They did agree to mediate and on November 12 th, forged an
agreement where the District agreed to have a complete evaluation completed by
14

. Social skill is any skill facilitating interaction and communication with others. Social rules and
relations are created, communicated, and changed in verbal and nonverbal ways. The process of
learning such skills is called socialization. Interpersonal skills are sometimes also referred to as
people skills or communication skills. Interpersonal skills are the skills a person uses to
communicate and interact with others. They include persuasion, active listening, delegation, and
leadership.
10

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December 19th and to set an Admission, Review & Dismissal (ARD) Committee
for January 15, 2013 to review the report. The evaluation was intended to address
C.C.s various behavioral and disciplinary problems in class and to develop what
is termed a functional behavioral assessment [ROA. 156, 3615].
22.

The report was not ready by the 19th nor even by January 15th. The

parents and Advocate complained. C.C. continued to have numerous behavioral


infractions during this period [ROA. 156, 38]. The relationship between the
parties worsened [ROA. 156, 40].
23.

The ARD Committee met on the 31st of January. The Schools

Attorney reads into the minutes a section from a Neurogistics report noting C.C.
has significant Anxiety16. In regard to C.C.s behavioral problems, the Committee

. The IDEA itself does not define the term "functional behavioral assessment." The students
Admission, Review & Dismissal (ARD) Committee need to be able to address the various
situational, environmental and behavioral circumstances raised in individual cases." 64 Fed. Reg.
12,620 (1999). The purpose of a functional behavioral assessment is to isolate a target behavior
and to develop a hypothesis regarding the function of the target behavior. A target behavior is
one that interferes with a student's ability to progress in the curriculum and to achieve the
student's IEP goals. Once the target behavior is identified and the hypothesis developed, a
positive behavior intervention plan can be prepared to address the target behavior with strategies
and interventions, if necessary, or the target behavior can be addressed using a more informal
approach. See also 20 U.S.C. 1415(k)(1)(D)(ii); 34 C.F.R. 300.530(d)(ii).
15

16

. Anxiety is an emotion characterized by an unpleasant state of inner turmoil, often


accompanied by nervous behavior, such as pacing back and forth, somatic complaints and
rumination. It is the subjectively unpleasant feelings of dread over anticipated events, such as the
feeling of imminent death. Anxiety is not the same as fear, which is a response to a real or
perceived immediate threat; whereas anxiety is the expectation of future threat. Anxiety is a
feeling of fear, worry, and uneasiness, usually generalized and unfocused as an overreaction to a
situation that is only subjectively seen as menacing. It is often accompanied by muscular tension,
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agreed his multiple disabilities affected his behaviors and agreed to provide him
social skills training in effort to help with both [ROA. 157, 43]. He was admitted
for Special Education services, also as having a Learning Disability 17 [ROA. 156,
39].
24.

Unfortunately, the relationship between C.C.s mother, the Advocate

and Hurbough and Emery worsened becoming more adversarial and personal.
While not known at the time, Hurbough, with Emery support of other school staff,
initiated a concerted plan to have C.C. removed from school [ROA. 147-148, 3,
4, 5; 157, 44-50]. Hurbough followed C.C. around school and even peered at him
through a door window when C.C. was in class [ROA.157, 42].18 It was so
widely known at the school about their intentions to rid the school of C.C., that
C.C. even heard two teachers in the hall talking about him, and noting that when
he rubbed his pencil on the wall they could now get him for destroying school

restlessness, fatigue and problems in concentration. Anxiety can be appropriate, but when
experienced regularly the individual may suffer from an anxiety disorder.
http://en.wikipedia.org/wiki/Anxiety
17

. Nonverbal Learning Disorder (NLD) effects students so that they seem unprepared for class,
have difficulty following directions, can't write an essay, continually misunderstand both their
teachers and their peers, and are often anxious in public and angry at home.
http://www.nldontheweb.org/.
18

. In early February, Hurbough told Mrs. Cripps that he had another student follow C.C. with the
goal for that student to report back to Hurbough and Emery, any potential infractions that could
be used against C.C. (ROA 535, 44). He also told Mrs. Cripps he had a camera watching C.C.
(ROA 538, 59) and was already preparing for Court (ROA 537, 57).
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property [ROA. 158, 50].


25.

On or about February 11th, C.C. asked a girl in his class if she was

making porn. Emery attempted to have the girls parents file sexual harassment
charges against C.C., but they chose not to do so [ROA. 148, 4; 157, 44].19
26.

Hurbough and Emery also had Ms. McNosky, a teacher at the school,

follow C.C. around with the intent to have a criminal charge filed against him.
Specifically, she was directed by Emery or Hurbough to have some minor physical
contact with C.C. so as to give support to file assault charges, a felony [ROA. 148,
4; 159, 53]. On a number of occasions she attempted to have contact with C.C.
but he avoided contact. On two occasions he could not, once on or about February
14th and again on or about the 20th of 2013 [ROA. 157, 45, 46; 158, 47, 48, 49].
There is nothing in the educational record at all as to why McNosky was following
C.C. or why she was in the same class as him.
27.

On February 19th C.C. was extremely disruptive. He yelled across the

room that another males penis was so small that you couldnt even see it. Emery
spoke to this boys parents and attempted to get them to file charges for felony
charges of sexual harassment but they refused [ROA. 159, 52]. All these
. During this same time period when C.C. gave another student a wet willy. Emery attempted
to have the parents of the students file sexual assault charges against C.C. for exchange of bodily
fluids but they chose not to do so (ROA 537-538, 58). He later told Mrs. Cripps that a parent
could file charges against C.C. and he could not do anything about it (ROA 540, 68).
19

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behaviors continued to evidence C.C.s diminished social skills [ROA. 158, 51].
28.

Also on that same day, C.C. was also seen belching in a students

face. Emory also categorized this incident as one of sexual harassment and
investigated it as such, all in the hope of using it to rid the school of C.C. [ROA.
158-159, 52). It was during these investigations that he learned that C.C. had
photographed a student in a restroom [ROA. 159, 54]. Specifically, that R.L.
(C.C.s friend) purposefully went to an open toilet stall with no door, and let C.C.
and a few other students know he was defecating and let them take his picture.
Importantly R.L. had a history of mooning people and was known to do crazy
things.
29.

While in the open stall, R.L. continued to laugh and even struck a

pose with his palms up while making a funny face. He also made grunting
noises to further exaggerate defecation for not only all to see but also to hear.
R.L. wiped himself and showed the feces stained toilet paper to C.C. and a number
of other students. C.C. and at least one other student took a picture of R.L. in stall.
R.L. saw the pictures and laughed [ROA. 159, 54, 55, 56].
30.

After the investigation was completed Emery and Hurbough decided

to have C.C. expelled from school for violating the Texas Penal Code of taking the
picture of a person in the bathroom, without that persons consent and violating
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their privacy. They finally found a parent willing to file charges. Hurbough and
Emery made the easy decision to throw C.C. out of school and give him sixty (60)
days in the alternative school for committing a felony [ROA. 148; 160 58].
31.

Emery did later confirm that another student had also taken pictures

of R.L. in the bathroom. Nevertheless, that student was not punished at all [ROA.
163, 77). In fact, this was not the only incident where other students committed
activities that also could rise to the level of a felony or was done without another
students consent but were punished less harshly. For instance, one student who
reportedly searched out and walked up behind another student and stabbed that
person with a pencil, only received three days in the alternative school. When
another student used his musical instrument to batter another student at a bus stop,
he got three days. When another student had traces of drugs on his person he got
three days. When another student was found to have drug paraphernalia and a
knife, he received five days of suspension. When another student also brought a
knife to school, with a bong and also had a long history of persistent misbehaviors, he received ten days in the alternative school. C.C. got sixty days for
taking a picture of his friend on the toilet, who permitted C.C. to take the pictures
and even posed for them. Clearly he was treated differently than others students
who also violated the Schools Code of Conduct and committed acts that could be
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construed as felonies, invading someones privacy or done without their consent


[ROA 149, 6].
32.

On March 12th, McNosky was also directed by Hurbough, or Emery

or both to file felony charges C.C. for the contact that she forced, on or about the
14th and 20th, both well after the incidents in question. The officer at the police
station refused to file it as a felony and reduced it to a misdemeanor [ROA. 157,
45-46; 158, 47-49; 159, 52; 164, 80). The Juvenile Justice Authority in Fort
Worth decided not to process the picture taking case at all. Even though Emery
and Hurbough knew that the Juvenile Authorities would not prosecute the issue,
and knew there no felony, they kept C.C. from returning to the regular education
environment, depriving him of academic and non-academic opportunities
otherwise given his non-disabled peers [ROA. 164, 79-81].
33.

In the Summer of 2013, C.C. filed a complaint against the School

District with the Office of Civil Rights (OCR) regarding, among other things,
whether C.C. was a victim of retaliation. In their investigation, the OCR
determined that C.C. parents had participated in a protected activity, advocating
on his behalf; that the District had knowledge of the protected activity; that the
District took action against C.C. contemporaneous with the protected activity and
there was a causal connection between the protected activity and the adverse
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actions taken against C.C. thus establishing a prima facie case of retaliation (ROA.
164-165, 83).
34.

The OCR then looked to the District to provide legitimate non-

discriminatory reasons for its actions. With the OCR, Emery stated that C.C. had
sexually harassed another student ..., when making fun of the size of boys penis,
which is also a complete and knowing mis-characterization of that childish
incident. He also told OCR that C.C. had shown the pictures to R.L.s girlfriend.
That statement was also incorrect. Based upon Emerys testimony, as well as
others, the OCR found that the District did in fact have non-discriminatory reasons
for the punishment of C.C. and was deemed as unfounded (ROA. 165, 84, 85).
35.

On January 13, 2014 C.C. filed a complaint with the Texas Education

Agency (TEA) arguing the District had failed to provide him Free Appropriate
Public Education (FAPE).20 On March 19-20, 2014 Special Education Hearing
Officer with TEA heard testimony. Most relevant to this cause, C.C. testified that
R.L. had entered the bathroom had a goofy smile and went to an open stall, so
everyone could see him. Everyone, including C.C. expected R.L. to do something
funny, as he had before when mooning them [ROA. 167, 94]. C.C. testified as
he had previously reported during the investigation, that R.L. continued to laugh,

20

. Those claims were heard in the severed action [ROA. 657].


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made exaggerated grunting noises and continued gesturing to the boys, striking a
pose with his hands up. R.L. also saw C.C. and another boy take pictures him and
did not ask them to stop. In one pose for the camera, R.L. wiped some of his feces
on toilet paper and let C.C. take a picture of him. The attorney for the School
District did not cross-examine C.C. [ROA. 159, 55, 56; 160, 57; 167, 94].
36.

Emery testified that the pictures of R.L. depicted him as being very

upset, and humiliated and shielding his genital area, supporting the notion that
R.L., did not give consent to have his picture taken and that R.L. fully expected to
have privacy in the bathroom. Moreover, the District had no policy in place for a
student to contest a false allegation that he had committed a felony [ROA. 167,
95, 96]. Based upon Emerys testimony, the Hearing Officer found in favor of
Emerys decision that C.C. had committed a felony when taking pictures of R.L. in
the bathroom [ROA. 168, 97].
37.

Soon after the decision Mr. Cripps went to the Police Station to

retrieve his sons telephone. At home he observed that the pictures had not been
deleted as previously thought. Further, a review of the pictures evidenced they
were completely different than what Emery had depicted in his sworn testimony at
the Hearing with the TEA [ROA. 168, 100].
38.

In fact, the pictures did not show R.L.s face at all, so that the
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comment R.L. was visibly embarrassed and humiliated is false. Nor is there
anything in the picture to lead anyone to believe that R.L. was covering up his
genitals in an effort to avoid a picture of C.C., or had grimaced, all as testified to
by Emery. Emerys testimony under oath is not credible. Rather his statements
comport with C.C.s statement that School Officials were out to criminalize C.C.s
behaviors, get him thrown out of school, and keep him out [ROA 169, 100- 170,
(ROA. 168, 111].
SUMMARY OF THE ARGUMENT
39.

There are certain facts in this cause that are certainly worth briefly

repeating (as they simply speak for themselves). Over the course of less than a two
week period, School District personnel, including and especially Principal
Hurbough and Vice-Principal Emery;
a.

attempted to have a girls parents file felony sexual assault charges


against C.C. for asking her if she was making porn, though they
refused [ROA. 148, 4; 157, 43];

b.

attempted to have another set of parents to file charges of felony


sexual assault charges against C.C. because he said the boy had a
penis so small you could not see it, though they refused [ROA, 148,
4; 158, 51];
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attempted to have another parents file charges of felony sexual assault


against C.C. when he belched in that students face, though they
refused [ROA. 158-159, 52];

d.

attempted to have another parents file charges of felony sexual assault


against C.C. when he gave that student a wet willy as it was an
exchange of bodily fluids, but they chose not to do so (ROA 537-538,
58);

e.

actually conspired to have a teacher force physical contact with C.C.


and then have this same teacher file felony assault on a public servant
charges against him [ROA. ROA. 148, 4; 159, 53];

f.

and that the conspiracy was so well known that about Hurboughs and
Emerys intentions to rid the school of C.C., that C.C. even heard two
teachers in the hall talking about him, and noting that when he rubbed
his pencil on the wall they could now get him for destroying school
property [ROA. 158, 50]; and

g.

that later when C.C. did take a picture of his friend R.L. while sitting
on the toilet, which included a picture of the boy waving around a
piece of toilet paper with feces on it for all to see, Emery determined
that the boy had not given consent to have pictures taken and had his
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privacy violated [ROA. 159-160, 56-60]21, he was able to get that


childs father to file felony charges against C.C.
40.

We know that after this finding by Emery, C.C. was expelled from

school [ROA. 160, 58]. Nevertheless, even when the Juvenile Justice Authority
refused to prosecute the picture incident at all, let alone as a felony, and in
addition, when the local Justice Court also declined to prosecute the assault on a
public servant charge at all, the School District nevertheless failed to consider or
change C.C. placement, repeatedly arguing they had no duty to do so.
41.

In regard to the argument itself, first and foremost C.C. argues that

the District Court erred by not permitting him the opportunity to file an amended
complaint in this cause.
42.

C.C. next argues that the District Court erred when granting the

Motion to Dismiss as it failed to consider allegations he was a victim of retaliation.


43.

C.C. further argues that as a student within the care and jurisdiction

of the Hurst-Euless-Bedford Independent School District, C.C. maintains his


various constitutional rights when he entered the schoolhouse, Tinkers v. Des
Moines School District, 393 U.S. 503 (1968), including and especially a property
right in his education, Goss v. Lopez, 419 U.S. 565 (1975). Such due process
21

. Of course, C.C. has provided significant evidence that Emery misrepresented what those
pictures actually depicted in an effort to rid the school of C.C. [ROA. 168, 100- 170, 111].
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rights are both procedural and substantive and are otherwise provided to all
citizens of the United States, even children like C.C. Nevertheless in reviewing the
various Motions to Dismiss filed, the District Court failed to use the correct
standard of review and erred in the analysis of C.C.s due process claims and equal
protection claims.
44.

Moreover, and as student with a disability C.C. has also made claims

his rights pursuant to Section 504 of the Rehabilitation Act of 1973 were likewise
violated in at least two manners and particulars; first that he was not afforded a
non-hostile educational environment and second, that staff grossly departed from
professional standards of care in the implementation of his overall educational
plan. As the District Court failed to use the correct standard of review in analyzing
both these claims the Judge erred thereby.
45.

In short, C.C. has raised sufficient facts at this stage of the litigation

to satisfy his burden as to both his constitutional and statutory claims and as such,
his appeal should be granted on both grounds, or in the alternative, separate
grounds.

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STANDARD OF REVIEW
46.

The Court reviews the grant of a motion to dismiss de novo. Dorsey v.

Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008). Moreover, any due
weight or deference that may otherwise be given to the District Court is not
implicated with respect to issues of law. Lillbask ex rel. Mauclaire v. State of
Conn. Dep't of Educ., 397 F.3d 77, 82 (2d Cir.2005). Further, this Court must
evaluate the sufficiency of a Complaint by accept[ing] all well-pleaded facts as
true, viewing them in the light most favorable to the plaintiff[s]. See In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). A motion under Rule
12(b)(6) should be granted only if it appears beyond doubt that the plaintiff could
prove no set of facts in support of its claims entitling relief. Conley v. Gibson, 355
U.S. 41, 45 46, (1957).
47.

Further, the complaint must be liberally construed in favor of the

plaintiff and the allegations contained therein must be taken as true. Leatherman v.
Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164
(1993); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). Whether a claimant will
ultimately be able to adduce evidence sufficient to support its claims on the merits
is not a question for consideration in connection with the 12(b)(6) motion. General
Star Indem. Co. v. Vesta Fire Ins. Corp., 173 F.3d 946, 951 (5th Cir. 1999).
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Importantly, motions to dismiss for failure to state a claim are viewed

with disfavor and are rarely granted. Southern Christian Leadership Conference v.
Supreme Court of the State of Louisiana, 252 F.3d 781, 786 (5th Cir.), cert.
denied, 534 U.S. 995 (2001); Lowrey v. Texas A&M University System, 117 F.3d
242, 247 (5th Cir. 1997). In support of that proposition, liberal discovery rules and
summary judgment motions, not motions to dismiss, should be used to define
disputed facts and issues and to dispose of unmeritorious claims. Furstenfeld v.
Rogers, No. 03-02 CV 0357 L, 2002 U.S. Dist. LEXIS 11823, at *5 (N.D. Tex.
Jul. 1, 2002).
49.

In fact the granting of an opportunity to replead after a Motion to

Dismiss is granted, more in accord with public policy that understands that any
dismissal is a drastic remedy, Smoot v. Chicago, R. I. & P., Co., 378 F2d 879 (10th
Cir. 1967) and should be used sparingly, City Natl Bank of Fort Smith, Ark. v.
Vanderboom, 422 F2d 221 (8th Cir. 1970). This strong public policy is even more
appropriate when dealing with children who have disabilities:
Statutes of rehabilitation should be construed in a liberal and
humanitarian mode thus effectuating successfully the legislatures
objective intentions. Such construction of rehabilitative statutes
promote the public interest, public welfare, public health, public state
policy and the police powers. Such salutary constructions properly
disregard technical and meaningless distinctions but give the
enactment the most comprehensive application of which the
enactments are susceptible without violence to the language therein.
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Deep East Texas Regional Mental Health & Mental Retardation


Services v. Kinnear, 550 S.W.2d 550, 563 (Tex. App. Beaumont,
1994); see also Tchereepnin v. Knight, 389 U.S. 332, 336 (1967)
[remedial legislation should be construed broadly to effectuate its
purpose].
Importantly, the Supreme Court underscored in Roger Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 148; 120 S. Ct. 2097, 147 L.Ed 2d 105
(2000), that lower Courts should not treat discrimination cases with more scrutiny
than other cases dealing with questions of facts, citing St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 524; 125 L. Ed. 2d 407; 113 S. Ct. 2742 (1993).
ARGUMENT AND AUTHORITIES
50.

The public has developed a loud and firm desire to hold public

officials responsible for their acts and omissions. This evolving and growing
public concern has extended into the public schools as well, and as this Court well
knows22 there has been an increase in school based cases related to the bullying
and harassment of children, whether it be by other students or even teachers, as
has occurred in this case.
51.

This case that epitomizes some of the worst in what is termed, the

Schoolhouse to the Jailhouse Pipeline. In 2003 the National Council on


Disabilities wrote a white paper for then President George W. Bush called,
22

. See Stewart v. Waco Independent School District, 711 F.3d 513 (5th Cir. March 14,
2013), opinion vacated at 2013 U.S. App. LEXIS 11102 (June 3, 2013).
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Addressing the Needs of Youth with Disabilities in the Juvenile Justice System.
It reported what those of us in the field already well know, that students with
disabilities are over-represented in the school house to jailhouse pipeline.
Students with disabilities are not only more prone to be written up for simple code
of conduct violations, but also are more apt to find themselves in an In-School
Suspension (ISS), the Alternative Educational Program (AEP), Suspension
from school, the Disciplinary Alternative Educational Program (DAEP), the
Juvenile Justice Alternative Educational Program (JJAEP) and even in
correctional facilities [ROA. 149, 7].
52.

The early data and treatises reported that much of the problem was

inadvertent, with failure to identify the student as having a disability as the main
problem or the failure correctly implement the students Individualized
Educational Plan (IEP) or Behavioral Intervention Plan (BIP). Today we
know the problem is more insidious, as some school administrators purposefully
push students with disabilities who have behavior problems out of their schools,
because its easier to do that, then to serve them. C.C. is obviously one such
student [ROA. 149-150, 8].
A.

The District Court Erred By Not Permitting Appellants The Opportunity To


File An Amended Complaint
53.

On November 20, C.C. attempted to file a Second Amended


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Complaint [ROA. 374]. Its intent was to clarify the claim related to retaliation as it
applies to Section 504 of the Rehabilitation Act of 1973 [ROA. 528, fn. 6].
54.

On the 24th, the Court ordered C.C. to provide a copy of the offered

(second) amended complaint with necessary markings to show any additions and
deletions from the previous pleading (the first amended complaint) [ROA. 434].
He did so [ROA. 520, 561]. Also on the 24th, the Judge severed the TEA appeal
part of the case and ordered C.C. to file a new Complaint on the severed action
[ROA. 657]. Later, the District Judge denied C.C.s request to amend his
complaint [ROA. 630631]. C.C. asked it be reconsidered [ROA. 645, 650] and that
too was denied [ROA. 667].
55.

Whether leave to amend should be granted is within the sound

discretion of the district court. Lyn-Lea Travel Corp. v. American Airlines, Inc.,
283 F.3d 282, 286 (5th Cir.), cert. denied, 537 U.S. 1044, 123 S. Ct. 659, 154 L.
Ed. 2d 516 (2002) (quoting Quintanilla v. Texas Television, Inc., 139 F.3d 494,
499 (5th Cir. 1998). However, Federal Rule of Civil Procedure 15(a) also makes it
clear that the trial court is required to grant leave to amend freely. Id. (quoting
Chitimacha Tribe of La. v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1162 (5th Cir.
1982), cert. denied, 464 U.S. 814, 104 S. Ct. 69, 78 L. Ed. 2d 83 (1983). Further,
the language of R. 15 evidences a bias and predisposition in favor of granting
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leave to amend. Id. Courts in this circuit have determined that the purpose of the
bias in favor of allowing amendment of the pleadings is to assist the disposition of
the case on its merits, and to prevent pleadings from becoming ends in themselves.
Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 598 (5th Cir. 1981);
Summit Office Park v. United States Steel Corp., 639 F.2d 1278, 1284 (5th Cir.
1981).
56.

Although, leave to amend should not be granted automatically, the

trial court should always err on the side of allowing amendment. Addington v.
Farmer's Elevator Mutual Insurance Co., 650 F.2d 663, 666 (5th Cir. 1981), cert.
denied, 454 U.S. 1098, 102 S. Ct. 672, 70 L. Ed. 2d 640 (1982) and is especially
appropriate where it is the only means a party has to have its claims heard.
McBroom v. Payne, Cause No. 1:06-cv-1222-LG-JMR (S.D. Miss., October 6,
2010)[amendment should be granted where it is the only means for plaintiff to
pursue claims]; Laber v. Harvey, 438 F3d 404, 426-427 (4th Cir. 2006)[amendment
is not prejudicial if it merely adds theory of recovery to facts already pled and
offered before discovery has occurred].
57.

In Davis v. Dallas County, 541 F. Supp. 2d 844, 848 (N.D. Tex.

2008) the Court found that good cause existed to amend a complaint even if it
occurs on the same day a scheduling order had a deadline. Further, that Court there
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could not be any prejudice by granting a motion for leave to amend a complaint
where a Defendants already had notice of the issues considered. Id. at 849; see
also Harrison v. Rubin, 174 F3d 249, 253 (D.C. Cir. 1999)[permitting amendment
that does no more than clarify legal theories]; Farfaras v. Citizens Bank & Trust,
433 F3d 558, 568 (7th Cir. 2006)[intent of rule is that cases should be decided on
the merits rather than on procedural niceties].
58.

In the instant case there was no scheduling order in place. There has

been no discovery. There is no trial setting. Moreover, the issue about retaliation
was clearly before the School District, in that they even used it in support of their
contention they did not violate C.C.s rights [ROA. 348]. The main reason for the
denial of the request to amend the pleadings was that it would unduly prejudice
the School District Defendants and lead to delay. C.C. believes the District Judge
abused his discretion by failing to permit the amendment. This position is
underscored by the fact the Judge later severed the case and required C.C. to
amend that complaint. Moreover, the fact the first Motion to Dismiss [ROA. 78,
81] by the School District was almost exactly the same as the second [ROA. 325,
328], such that the only item the School District (not Hurbough nor Emery) would
have had to address was the retaliation claim pursuant to Section 504. They could
hardly be prejudiced in being required to do so, as they had relied upon that very
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issue when alleging they did not discriminate against C.C. based upon disability
[ROA. 348]. The School District should not be permitted to have it both ways,
meaning they cant use the retaliation as a sword to pierce C.C.s discrimination
claim but then not have to defend its use. The District Judge clearly abused his
discretion when refusing to permit C.C. to amend his complaint. As such, C.C.s
appeal should be granted and this issue remanded back to the trial court
accordingly.
59.

In addition and in the alternative to the above, even if the Judge did

not abuse his discretion when denying C.C.s request to amend the complaint, he
erred by not considering the retaliation claim, as it was nevertheless well-pled.
B.

The District Court Erred When Granting The Motion To Dismiss In Failing
To Consider Allegations That C.C. Was A Victim Of Retaliation
60.

In his final order, the District Court determined that C.C. retaliation

claim was not properly before him (ROA. 686]. The Court erred in making this
determination in light of the operative law on the topic.
61.

The exacting standards governing Rule 12(b)(6) motions must be

considered in light of the pleading requirements of Rule 8(a). Furstenfeld, 2002


U.S. Dist. LEXIS 11823, at *5. Federal Rule of Civil Procedure 8(a) requires a
"short and plain statement of the claim showing that the pleader is entitled to
relief." FED. R. CIV. P. 8(a). A complaint will be deemed inadequate under Rule
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8(a) only if it fails to: (1) provide notice of the circumstances which give rise to
the claim, or (2) set forth sufficient information to outline the elements of the
claim or permit inferences to be drawn that these elements exist. General Star
Indemnity Company v. Vesta Fire Insurance Corporation, 173 F.3d 946, 950 (5th
Cir. 1999).
62.

As the Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007), the pleading standard Rule 8 announces does not require detailed factual
allegations, but it demands more than an unadorned, the- defendant- unlawfullyharmed- me accusation. Id., at 555 (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)). A pleading that offers labels and conclusions or a formulaic recitation
of the elements of a cause of action will not do. Twombly at 555. Nor does a
complaint suffice if it tenders naked assertion[s] devoid of further factual
enhancement. Id., at 559. To 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. Id., 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., at 556. The plausibility
standard is not akin to a probability requirement, but it asks for more than a
sheer possibility that a defendant has acted unlawfully. Ashcroft v. Iqbal, 129 S.
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Ct. 1937 (U.S. 2009).


63.

As noted throughout C.C.s First Amended Complaint, he has made

numerous factual contentions giving rise to a claim he was a victim of retaliation


based upon his parents advocacy on his behalf. In fact, his allegations were so
clear and obvious that the School District used those very same allegations of
retaliation as a defense [ROA. 348]. Later, C.C. argued in his response to the
School Districts Motion to Dismiss that he was a victim of retaliation [ROA. 514515]. The School District failed to respond to C.C.s retaliation claim, except to
note it was not in Plaintiffs live pleading, their First Amended Complaint [ROA.
610, p. 2, fn. 2], which was affirmed by the District Court. How could the
Defendant state on one hand the retaliation claim was not in C.C.s live pleading
yet on another hand, state it was? They are judicially estopped from doing so. In
short, the School District cannot at a later time reverse an earlier held legal
position when it finds that application of a previous position is not in his newly
found best interest, Pace v. Bogalusa City School Board, 403 F.3d 272, 296-297
(5th Cir. 2005). As C.C.s First Amended Complaint meets R. 8 standards, and
provides a plausible, persuasive, and factually correct basis for his legal claims for
relief his appeal on this ground should be granted.
C.

The District Court Erred When Granting The Motion To Dismiss As The
School District Failed To Have A Process To Correct False Allegations Of
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Criminal Activity
64.

It is well-settled that C.C. has constitutional rights while at school,

Tinkers v. Des Moines School District, 393 U.S. 503 (1968), including and
especially a property right in his education, Goss v. Lopez, 419 U.S. 565 (1975).
These constitutional protections are both procedural and substantive.
65.

C.C. has provided facts that when he was referred to the Juvenile

Justice Authority for allegedly committing a felony, he was simultaneously


referred to a Disciplinary Alternative Educational Environment (DAEP) for
placement [ROA. 160, 58; Later, as we know, the authority declined to prosecute
the claim at all, whether it be as felony, or even as a misdemeanor [ROA. 163,
78]. C.C. repeatedly requested that once the School District knew of this situation
they had a duty to both revisit and change the DAEP placement the District
continuously argued they had no duty to do either [ROA 164, 78; 79, 80, 81]. In
fact, Emery has testified that the School Board has no policy or procedure in place
to address such a situation [ROA. 168, 96]. Further, C.C. argues the failure to do
address this changing circumstance rises to constitutional proportions [ROA. 148,
5; 172, 19; 173, 126-128].
66.

The School District personnel, Emery and Hurbough included, did all

agree that C.C. had a right to procedural due process citing Goss [ROA. 297, fn.
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23; 319, fn. 23; 342, fn. 26]. They focused, albeit incorrectly, on the procedures
related to C.C.s placement into the DAEP, not the failure to have procedures on
how to get him out, once they had knowledge of the changing circumstances.
67.

The District Court did likewise agree that C.C. had a property right in

his education, Harris ex rel. Harris v. Pontotoc County School District, 635 F3d
685, 690 (5th Cir. 1011) but did not address this specific procedural claim at all,
also relying upon the placement into the DAEP as the controlling constitutional
issue and not the lack of a procedure to correct mistaken placement. [ROA. 675].
This decision missed the mark, as the procedures contested were (again) not those
that put C.C. into the DAEP, but rather the failure of any procedures to get him
out.
68.

State law supports C.C.s position that this changing circumstance

should be addressed and acted upon by school district officials. A review of state
law is helpful here. As we know, if a student commits a felony at school the
student can be placed in a disciplinary alternative educational environment
(DAEP), Tex. Educ. Code 37.006(a)(2)(A) and also if done outside of school.
Id. at 37.006( c). In either case, and upon notice to the Juvenile Justice Authorities
of the allegations the authority has a duty to communicate with a School District,
as to the course of the proceedings, so that the school may respond accordingly,
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Tex. Code of Crim. P. 15.27(a), whether it be as to a conviction, deferred


prosecution or adjudication (b). Of course, if the authority refuses to prosecute the
case and no formal proceedings or deferral will be initiated (as occurred in this
case) the authority has two days to notify the school district, of that decision (g).
The failure to share this information in a timely manner with school officials is so
important, that if not done, is grounds for a disciplinary reprimand (n). In short,
the Texas Legislature clearly wanted to school district to know quickly that if a
student, who was initially charged with a felony, was not going to be prosecuted,
they too respond accordingly. It is uncontroverted that the District made no
attempt to address this changing circumstance. It is also uncontroverted that the
School Board has no policy in place to address this issue. Moreover, it is likewise
uncontroverted that C.C. was damaged by this failure.
69.

If we are left with the District Courts ruling on this issue then when

and if a student is arrested for rape, and is placed in a DAEP, and then it is later
determined the allegations was against the wrong person, but the school keeps the
student in the DAEP placement anyway, and there is no remedy for that student,
there is a gross mis-justice. This is an issue of great public policy implications that
cannot be left to stand as is.
70.

As such, and in addition, C.C. has proven sufficient facts that the
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School Boards failure to have such a policy violates his procedural due process
rights pursuant to the 14th Amendment to the United States Constitution. As noted
in his complaint this failure, among others, was a moving force in the injuries he
experienced; i.e., being removed from school, alleged to be a sexual deviant when
he was not and having a criminal record.
71.

As the School District waived this particular argument, and the Court

failed to address it, it should be remanded accordingly.


D.

The District Court Erred When Granting The Motion To Dismiss When
Failing To Find That C.C.s Allegations Support A Substantive Due Process
Claim

72.

The various School District parties have each argued that C.C. has

failed to plead and support a substantive due process claim [ROA. 297, 319, 342],
though all recognize that the due process clause protects against arbitrary
government action that is egregious. County of Sacramento v. Lewis, 523 U.S.
833, 845-846 (1998). In Morris v. Dearborne, 181 F3d 657 (5th Cir. 1999) this
Court analyzed a substantive due process claim as to whether or not certain
conduct could be considered egregious. The parallels are similar to this case.
73.

In this case, over a less than two week period Hurbough and Emery,

with the knowledge of McNowsky and other school personnel, participated in a


conspiracy to remove C.C. from school. They did this in the most arbitrary and
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egregious manner, by making false allegations to other parents, that C.C. was a
sexual deviant, in the hope one of them would file felony charges against C.C.
74.

In the above-noted case, Dearborne made allegations that Morris had

sexually molested his daughter. Based upon her perception she reported Morris to
the state regulatory services and the child was removed from his custody. Later it
was found out that Dearbornes allegations were baseless and suit was filed
against her. Dearbornes belief that Morris abused his daughter was based upon a
misguided belief, that the child, by the use of whats termed a Facilitated
Communicator (FC) told Dearborne she was being abused by her father. A
review of the entire facts in that case would lead to that Dearbornes belief and use
of the FC bordered on the illogical and maybe even insane. But Dearborne, while
illogical, maybe even insane (a bit) and misguided is not as bad as Hurbough and
Emery who very purposefully intended to hurt C.C. and sought the assistance of
others in their desire to do so. Moreover, while C.C.s claim under Section 1985
may have died, the underlying facts survive as to his claim his substantive due
process rights were violated by the School District by their arbitrary and egregious
actions as their conduct resulted in grave harm, and when coupled with culpable
intent, violates the due process clause because it violates those canons of decency
and fairness which express the notions of justice of the English speaking people.
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Id. at 667; citing Malinski v. New York, 324 U.S. 401, 416-417 (1945).
75.

Moreover, the duty of school personnel to keep a student safe and

free from harm is a well-settled constitutional proposition. Doe v. Taylor, 15 F3d


443 (5th Cir. 1994) and surely their conspiracy against C.C. and intentional
actions, could hardly be seen as objectively reasonable, Morris at 672 citing
Jefferson v. Yseleta Indep. Sch. Dist., 817 F2d 303, 305 (5th Cir. 1987), as no
reasonable teacher could see that speaking to five separate sets of parents in order
to have charges filed against C.C. for sexual assault, for simply put, childish preadolescent behaviors, is objectively reasonable.
76.

As C.C. has provided sufficient factual support in his First Amended

Complaint that his substantive due process rights were violated, this issue, like the
others, should be remanded to the trial court.
E.

The District Court Erred When Granting The Motion To Dismiss Regarding
Claims Related To The Equal Protection Clause
77.

C.C. argued that he has a claim, pursuant to the Equal Protection

Clause of the 14th Amendment of the U.S. Constitution, based upon a Class of One
theory that he was treated more harshly by both Emery and Hurbough than other
students who were similarly situated, especially where such actions by those
students also purportedly would infringe upon that students privacy rights
]ROA 174, 131-132]. He believes this claim is not only viable but his
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constitutional interest is even more pronounced, when coupled with a claim


related to equal protection, Martinson v. Regents of University Of Michigan,
2014 WL 134476 at *9 (6th Cir., April 4, 2014), citing Bell v. Ohio State
University, 351 F.3d 240, 251 (6th Cir. 2003), as it is in this cause [ROA 173-174].
78.

Moreover, it is well settled that a person can bring a Class of One

claim when the decision-making process is arbitrary. Village of Willowbrook v.


Olech., 528 U.S. 562, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000) [per curiam].
One would be hard-pressed to find how the School District personnel, whether it
be to a strict scrutiny review, a rational basis test, or some intermediate standard,
that treating C.C. both more harshly and thus differently than other students, was a
governmental policy or practice that should be afforded any protection.
79.

Specifically C.C. has brought forward allegations that other students

who also allegedly committed felonies and intruded on a persons privacy or acted
without their consent, were treated differently than he was. For instance, another
student who had also taken pictures of R.L. in the bathroom, a felony, was not
punished at all [ROA. 163, 77). A student who stabbed another student with a
pencil [a felony violation of Texas Penal Code 22.01(a); Tex. Educ. Code
37.006(a)(2)(b)], only received three days in the alternative school. When another
used his musical instrument to batter another student (a felony violation of Texas
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Penal Code 22.02(a); Tex. Educ. Code (a)(2)(A)] at a bus stop, he got three days.
When another student had traces of drugs on his person [a felony violation of
Texas Penal Code 37.007(a)(3)] he got three days. When another was found to
have drug paraphernalia and a knife [a felony violation of Texas Penal Code
46.01(6), Tex. Educ. Code 37.007(a)], he received five days of suspension. When
another student also brought a knife to school (a felony violation of Texas Penal
Code 46.01(6), Tex. Educ. Code 37.007(a)(1)(B)], with a bong and also had a
long history of persistent mis-behaviors, he received ten days in the alternative
school. C.C. got sixty days for taking a picture of his friend on the toilet, who
permitted C.C. to take the pictures and even posed for them [ROA 149, 6].
80.

Emery argued that the taking of a picture of a person in bathroom is

of a different character than the other infractions brought forward by C.C. and was
not an appropriate comparator [ROA 296], as did Hurbough [ROA 317] and the
School District as well [ROA 340]. The District Judge agreed stating noting that
none of the other infractions were as egregious as the violations of R.L.s privacy
rights.23

23

. The Judge also stated that C.C. had not pled any facts establishing municipal liability [ROA.
684, fn. 5]. That is not correct. Both the Principal Hurbough [ROA. 152, 18] and the VicePrincipal Emery [ROA. 152, 19] were clearly given authority by the school board to address
disciplinary issues [ROA. 154, 29] and Manifestation Disciplinary Determinations (MDR)
[ROA. [ROA. 155, 31]. C.C. has pled sufficient facts at this juncture to support the contention
there is municipal liability in this cause. Monell v. Department of Social Services, 436 U.S. 658
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The Judge is incorrect. C.C. has shown that other students have

committed acts that could be also construed as felonies, or acts that have likewise
intruded on a students privacy or in any case have committed acts without the
other students consent and were treated less harshly and clearly differently than
C.C. The Court erred in dismissing this claim.
F.

The District Court Erred When Granting The Motion To Dismiss Regarding
Claims The School District Grossly Deviated From Professional Standards
Of Care
82.

It is now well-settled that a student with a disability may have a cause

of action for a gross misjudgment of their educational program, or if professionals


grossly deviated from professional standards of care, both pursuant to Section 504
of the Rehabilitation Act of 1973. D.A. ex rel. Latasha A. v. Houston Independent
School District, 629 F.3d 450, 455 (5th Cir. 2010).
83.

More recently in Stewart v. Waco Indep. Sch. Dist., 711 F.3d 513

(5th Cir. March 14, 2013), opinion vacated at 2013 U.S. App. LEXIS 11102 (June
3, 2013) the panel addressed the issue of bad faith or gross misjudgment (and
gross deviation from professional standards of care) in the case of a female student
with mental retardation that has been a victim of sexual exploitation by male
students on a number of occasions. The complaint alleged, among other things,

(1978).
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that the District failed to modify her educational plan, even when they had
information that the then current educational plan, was no longer warranted.
84.

In reviewing much of the case law cited above the Fifth Circuit noted

that Section 504 provides that "no otherwise qualified individual with a disability
in the United States, . . . shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance
. . . ." 29 U.S.C. 794(a). Further, that the Court has reviewed 504 claims under
the standard applicable to claims arising under the ADA (and Section 504). See,
e.g., D.A. ex rel. Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir.
2010), citing, Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir. 2005) [en
banc] and noted that "To establish a prima facie case of discrimination under the
ADA, [a plaintiff] must demonstrate:
(1) that he is a qualified individual within the meaning of the ADA;
(2) that he was excluded from participation in, or was denied benefits of,
services, programs, or activities for which [the school district] is
responsible; and
(3) that such exclusion or discrimination is because of his disability. 24"
Greer v. Richardson Indep. Sch. Dist., 472 F. App'x 287, 292 (5th Cir.
24

. The District Court determined that there were no allegations that C.C. was a victim of
discrimination based upon his disability, rather they were related to his behaviors.
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2012)
(unpublished); citing Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671-72
(5th Cir. 2004).
85.

Because 504 and the ADA focus on discrimination, students with

disabilities may use them to supplement avenues of recovery otherwise


unavailable under the Individuals with Disabilities in Education Act ("IDEA"), 20
U.S.C. 1400, et seq., See D.A., 629 F.3d at 453 (citing Marvin H. At 1356).
"[T]o establish a claim for disability discrimination, in [the] educational context,
'something more than a mere failure to provide the "free appropriate education"
required by [the] [IDEA] must be shown.'" D.A. at 454 quoting Monahan at 1170.
A plaintiff instead must "'allege that a school district has refused (emphasis added)
to provide reasonable accommodations for the handicapped plaintiff to receive the
full benefits of the school program.'" Id. , quoting Marvin H. at 1356. This refusal
may be shown by "facts creating an inference of professional bad faith or gross
misjudgment." D.A. at 455.
86.

Ultimately the Fifth Circuit determined in Stewart that a Plaintiff also

may show gross misjudgment by alleging that a school district knew of a student
being injured in their school environment but failed to "take appropriate and
effective (emphasis) remedial measures once notice of the unsafe environment
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was provided to school authorities." M.P. ex rel. K. v. Indep. Sch. Dist. No. 721,
439 F.3d 865, 868 (8th Cir. 2006) [M.P. II]. In sum, a school district refuses
reasonable accommodations under 504 (or the ADA) when it fails to exercise
professional judgment in response to changing circumstances or new information,
even if the district has already provided an accommodation based on an initial
exercise of such judgment. That is exactly what has happened in this cause with
C.C.
87.

Moreover whether or not C.C. received a free appropriate public

education under the Individuals with Disabilities Education Act (IDEA) is of no


matter. In Estate of Lance, 743 F3d 983, 990-991 (5th Cir. 2014) noted that a court
can surely find violations of Section 504 even if a school provided FAPE under
IDEA if the student was a victim of discrimination based upon disability. See
Ellenberg v. N.M. Military Inst., 572 F.3d 815, 819-23 (10th Cir. 2009)[warning
against "conflat[ing] the definition of a 'disabled' child under the IDEA with the
definition of a 'handicapped person' under Section 504" and noting that "Section
504 has a broader scope than the IDEA: while the IDEA focuses on the provision
of appropriate public education to disabled children, Section 504 addresses the
provision of state services to disabled individuals generally"].
88.

In review, even if this Court finds that the placement of C.C. in the
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DAEP was reasonable in the first instance, the School Districts failure to address
changing circumstances, i.e., the fact the Juvenile Justice Authority was not going
to prosecute the case as a felony, satisfies this refusal element and raises an
inference, D.A., at 454-455, that C.C.s rights were violated.
89.

In addition, as noted above, over a very brief period, Hurbough,

Emery and others participated in a conspiracy to remove C.C. from school by


making false allegations to other parents, that C.C. was a sexual deviant, in the
hope one of them would file felony charges against C.C. If this type of activity by
a professional educator is not a gross deviation from their professional standards
of care, one would be hard-pressed to see what type of activities would rise to such
a level.
90.

In any case, as C.C. has provided sufficient facts at this juncture of

the litigation to support a gross misjudgment claim, the case should be remanded
to the District Court accordingly.
H.

The District Court Erred When Granting The Motion To Dismiss Regarding
Claims The School District Failed To Provide C.C. A Non-hostile
Educational Environment.
91.

As an initial predicate, it is uncontroverted that C.C. has a number of

significant disabilities, i.e, attention deficit hyperactivity disorder (ROA. 147, fn.#
2), a learning disability (ROA. 156, 39) and anxiety (ROA. 156, 43) all effecting
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his behavior. In fact, the record is replete with confirmation that it was because of
these very disabilities that his behavior was adversely impacted. Moreover, the
record is likewise replete with facts evidencing the Districts attempt to develop a
behavioral plan with social skills training to address his behaviors (read as
disabilities) [ROA. 147, fn. #3; 156, 36-40). Further, C.C. has provided
numerous facts, which the District Court notes should have taken as true, that
support the contention he was intentionally mistreated by staff, Emery and
Hurbough in particular.
92.

But the District Court has a disconnect. While it recognizes that C.C.

has a disability and further that he was mistreated by Emery and Hurbough
because of his behaviors, the Court fails to see that C.C.s disabilities and
behaviors are in essence, opposite sides of the same coin. In mistreating C.C.
because of his behaviors they were as a matter of course mistreating
(discriminating) against him based upon his disability. D.A. ex rel. Latasha A. v.
Houston Independent School District, 629 F.3d 450, 455 (5th Cir. 2010).
93.

If this Court would agree with the District Court in this point it would

be akin to saying that we didnt punish Johnny for having cerebral palsy, we
punished because he couldnt walk a straight line.
94.

In short, and as noted above, a student may have a claim regarding


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hostile educational environment, T.K. v. New York City Department of Education,


779 F.Supp.2d 289 (E.D.N.Y, 2011, see Folkerts v. City of Waverly, 707 F.3d
975, 980 (8th Cir. 2013) quoting M.P. v. Indep. Sch. Dist. 721, 326 F.3d 975, 981982 (8th Cir. 2003), when such claim is based upon discrimination due to
disability (i,.e, behaviors). C.C. can easily show, at this stage of the pleadings, the
educational environment was hostile as to him and such hostility was based upon
his disability. Further, he was not afforded the same type of education
environment as his non-disabled peers, and was thus a victim of discrimination
based upon his disability.
95.

To establish a claim for disability-discrimination under the

Rehabilitation Act, a plaintiff must show that (1) "he is a qualified individual"; (2)
"he is being excluded from participation in, or being denied benefits of, services,
programs, or activities for which the public entity is responsible, or is otherwise
being discriminated against by the public entity"; and (3) this "exclusion, denial of
benefits, or discrimination is by reason of his disability." Melton v. Dallas Area
Rapid Transit, 391 F.3d 669, 671-72 (5th Cir. 2004).
96.

In the instant case it is uncontroverted that C.C. is a student with a

disability. Further, that the acts and omissions of the School District Defendants
clearly denied him the educational benefits, services and programs to which he
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otherwise would be eligible. A jury could surely find that the toxic relationship
between his parents and school officials, led to the conspiracy noted above.
Moreover, a jury could find that the litany of ways in which the conspiracy was
implemented created the hostile environment as to C.C. In addition, that such
hostile educational environment led to a loss and denial of benefits as to C.C., the
deprivation of the regular educational environment and services to which he justly
deserved. Last, and as noted in the initial section on this issue a jurist could surely
determine that the denial was based upon his disability, i.e., his own behavioral
problems at school, as well the advocacy on his behalf.
97.

In any case, as C.C. has provided sufficient facts at this juncture to

support a hostile educational environment claim, the case should be remanded to


the District Court accordingly.
CONCLUSION AND PRAYER
98.

For the all foregoing reasons the Appellant respectfully requests this

Panel reverse the decision of the District Court, and for any and all other relief that
may be afforded, whether it be by equity, by law or by both.

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Respectfully submitted,
/s/ Martin J. Cirkiel
Martin J. Cirkiel
Texas Bar No. 00783829
Cirkiel & Associates, P.C.
1901 E. Palm Valley Blvd.
Telephone: (512) 244-6658
Facsimile: (512) 244-6014
COUNSEL FOR APPELLANT

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CERTIFICATE OF SERVICE
This is to certify that, on July 8, 2015, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF system, which will send
electronic notification of such filing to the following:
Ms. Meredith Prykryl Walker, Attorney
mwalker@wabsa.com [Via Email]
Texas State Bar Number 240566487
Walsh, Anderson, Gallegos, Green & Trevino, P.C.
105 Decker Court
Suite 600
Irving, Texas 75062
(214) 574-8800 [Telephone]
(214) 574-8801 [Facsimile]
Attorneys For Appellee School District
/s/ - Martin J. Cirkiel
Martin J. Cirkiel
Attorney Of Record For
Appellants-Plaintiffs

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CERTIFICATIONS
I further certify that the (1) required privacy redactions (if any) have been
made, 5th Cir. R. 25.2.13; (2) the electronic submission is an exact copy of the
paper document, 5th Cir. R. 25.2.1 and (3) the document has been scanned for
viruses with the most recent version of a commercial virus scanning program and
is free of viruses.
I further certify that I will mail the correct number of copies of the
foregoing document to the Clerk of the Court.
I further certify that two (2) true and correct copies of the foregoing
document was served to all counsel of record on May 13, 2015 via Overnight Mail
by Federal Express and addressed to Counsel, and the Clerk of The Court, as noted
above.
/s/ - Martin J. Cirkiel
Martin J. Cirkiel
Attorney Of Record For
Appellants-Plaintiffs

Case: 15-10098

Document: 00513109422

Page: 61

Date Filed: 07/08/2015

CERTIFICATE OF COMPLIANCE
1.
Pursuant to Fed. R. App. P. 32(a)(7)( c) and Local Rule 32.3, the
undersigned certifies this brief complies with the type-volume limitations of Fed.
R. App. P. 32(a)(7) and Local Rule 32.2 because:

this brief contains 10,969 words, excluding the parts of the


brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and Local
Rule 32.2, or

this brief uses a monospaced typeface and contains


__________ lines of text, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and Local Rule
32.2.

2.
Pursuant to Fed. R. App. P. 32(a)(7)(C) and Local Rule 32.3, the
undersigned certifies this brief complies with the typeface and type style
requirements of Fed. R. App. P. 32(a)(5) and (6) and Local Rule 32.1 because:
x

this brief has been prepared in a proportionally spaced typeface


using Corel Word Perfect in 14 pt. Times New Roman, or

this brief has been prepared in a monospaced typeface using


using Corel Word Perfect in 10 characters per inch Times
New Roman.

3.
THE
UNDERSIGNED
UNDERSTANDS
A
MATERIAL
MISREPRESENTATION IN COMPLETING THIS CERTIFICATE, OR
CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN FED. R. APP. P.
32(a)(7) AND LOCAL RULE 32.2, MAY RESULT IN THE COURTS
STRIKING THE BRIEF AND IMPOSING SANCTIONS AGAINST THE
PERSON SIGNING THE BRIEF.

/s/ Martin J. Cirkiel


Martin J. Cirkiel, Esq.