[00:00:00] Speaker 03:
25-7062 Callaway versus Independent School District.

[00:00:07] Speaker 03:
Mr. Warren.

[00:00:11] Speaker 00:
Yes, Your Honor.

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May I please the court?

[00:00:13] Speaker 00:
My name is Jack Warren.

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I represent the appellant plaintiff in the underlying matter on the claims asserted on behalf of her minor son, referred to as DC, in the complaint.

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related to an incident that occurred in the fall of the 2020-2021 school year.

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And we're here raising issues with the district court's dismissal of a few of the claims made by the plaintiff in that case.

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And first, I'd like to start specifically with the dismissal of the 14th Amendment claim based on the danger creation theory, which is a very difficult and sordid

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claim that has not honestly an immense amount of case law from the court.

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But in the district court, the claim was dismissed based on a finding that the plaintiff had failed to establish the precondition of affirmative conduct.

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As the court knows, there's two

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preconditions that must be set aside before the six element test, and the district court found that the plaintiff's allegations in this case constituted, I think he said, at most inaction, which the court has been consistent that that inaction does not satisfy the affirmative conduct requirement.

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Here, I think,

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Our basis for the error on that claim is that the court failed to consider, as the courts held in numerous different cases, Courier, Armigio, TD v. Patton, that affirmative conduct can take the form of removing what would otherwise be a safety valve or private sources of aid.

[00:02:26] Speaker 00:
That is relevant in this case because what occurred was DC was in fifth grade student, had been diagnosed with autism, had been on an IEP with the school since his kindergarten year that required he be accompanied basically anywhere around the school with an adult aid.

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And in that IEP, including the IEP

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for the 2020-2021 school year was a requirement that he be accompanied by an aide to the bathroom in all toileting activities.

[00:03:01] Speaker 02:
Does that mean the aide would go inside the restroom with the child?

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It's my understanding, and that's not necessarily alleged in the complaint, but it's my understanding that yes, the aide would be present or in the vicinity of the restroom while he was using it.

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Part of that is I think he struggles, but I think the photograph was taken of him using the restroom because he would pull his pants down, right?

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And that's where a photo was taken while he was doing that, which is part of the reason I think that there is a need to have him not be alone in a restroom with other students, which is... So, but back to the affirmative act.

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Sure.

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You said the affirmative act can be a failure, can be removal of a safety valve.

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Correct.

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But the affirmative act here was the failure to accompany the child to the bathroom.

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So I disagree slightly.

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The affirmative act here was at the start of the school year, the special education teacher.

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So DC was in a class with approximately eight students with a special education teacher.

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and the accompanying aides that might have been there.

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The special education teacher had some sort of absence because of an injury.

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So the school had D.C.'

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's aide cover, essentially taking D.C.'

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's aide from him.

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Now, she was still in the class, ostensibly, but had other

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expectations of supervising other students as well.

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Maybe I missed something, but this was a singular event that he wasn't accompanying to the bathroom.

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There's not an allegation that after the original teacher left and the assignments, the responsibilities were shifted, that he was never accompanying to the bathroom again.

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Is that the allegation?

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Well, so the allegation is, yes, you're correct, that it is related to a singular event, although we didn't include other allegations of whether or not this had occurred in other situations because that... Well, the reason you couldn't is because the aid was still available.

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maybe not as available, and maybe on this particular occasion, the aid was too busy.

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And if there'd been three people in the room, he would have been accompanied to the bathroom, but with two, he wasn't.

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But it's not like it was a necessary result of having fewer people in the classroom, that he would never be accompanied to the bathroom.

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Am I correct about that?

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Well, I can tell you that.

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An incident similar to this had not occurred when his aide was not serving as the special education teacher as well.

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And I think it's important, IEP also says he's to be accompanied essentially anywhere in school.

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It says specifically to the lunchroom, to recess.

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He was able to leave the class, walk into a bathroom with much older students.

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He was a fifth grade student at a middle school that went up to eighth grade.

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It was in a seventh or eighth grade type hall.

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And that essentially by stripping him of his aid or the access to the aid, that was the affirmative act that led to

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this incident occurring.

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Can you tell me where you pleaded that affirmative action or complain?

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I see lots of allegations about the failure to ensure that the classroom was adequately staffed, the failure to ensure that the explicit requirements of DC's IEP were being followed, and the failure to properly train and supervise OPS employees.

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And you allege in your brief that

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that you allege that there was an affirmative act essentially by having the full-time aide serve as the defective teacher.

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But I don't see that allegation as such in your complaint.

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Can you point me to that?

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Certainly.

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And I certainly expected this question.

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I would agree that it is not as explicitly laid out as I would have preferred.

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There is a statement in there that

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I can't remember the exact paragraph number, but that upon the special education teachers leave, that the school district elected to have aides, such as Ms.

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Pearson, who was DC's aide, serve as the... You don't allege that Lee or Brent made that decision, though, and you've got to have an allegation of an individual act on their part.

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So I guess I slightly dispute that only to the extent that yes, I agree that the specific words that that specific individual did not take that act.

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I believe it says the defendants.

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And the individual defendants in this case were the principal who is... Well, you have to plead specific acts against... I mean, you've got to be specific on this for individual liability here.

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Sure, I guess I I believe that which defendant so Brent was the what did you plead as well?

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I believe it said that the defendant's elected to staff the special education classroom with AIDS.

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And the defendant's being the director of the special education services at the school, who is involved in DC's IEP, as well as the principal, who I believe

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certainly could be inferred as the authority.

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So that's in the factual allegations is what you're saying?

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It is and I believe the allegations about their roles at the schools and the portion of the complaint that references the parties and discusses their roles at the school.

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Would it matter if the teacher had gone home sick for the day as opposed to have been on an extended leave as I understand it?

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What's an injury?

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That's an interesting question.

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I think it would certainly matter for other elements of the danger creation test, such as potentially like the shock to conscience or recklessness type discussion.

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Would it matter if it hadn't been a photograph taken but the sink had overrun and he had slipped and harmed himself?

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So that's an important point that I wanted to get to as well, is I don't think it does.

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I think that the danger creation test talks about placing an individual in danger.

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I don't think it necessarily matters the specific danger or knowledge of what that specific danger may be.

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Does it have to be foreseeable though, and one is foreseeable, the other one's not?

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Again, I think that could potentially go to the

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other elements such as like a shock to conscience or reckless.

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I don't think it would be necessarily reckless or conscious shocking if something that could never have been foreseen occurred.

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But here I think the point is, is that leaving, allowing a autistic child that

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is not to be alone into a bathroom with older students unattended is rife for risk.

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I think that's what the case law says is placing them in danger of a risk.

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Does it matter that there was not a reply brief filed here when some of the, I think the last four of the

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Creating danger elements are contested and we haven't heard from you on that.

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Is there a waiver issue involved there?

[00:11:13] Speaker 00:
I don't believe so, but I don't think that, you know, part of the reason for that is the district court, which of course the court is entitled or has the ability to affirm on any grounds, but the district court never even reached any, that was never discussed by the district court.

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The district court found solely that there was no affirmative conduct and that was the end of the situation.

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And because of the apparent lack of affirmative conduct,

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the dismissal of prejudice was appropriate.

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So, you know, I think that those other elements obviously matter to the claim, but for the purposes of the appeal of the district court's decision, I don't know that it does.

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And just quickly with the little bit of time I have here, the second aspect of the appeal is on the dismissal of the ADA and Rehabilitation Act claims there.

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The district court dismissed those two claims mainly on the finding first that DC was

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provided access to the restroom, which, again, as kind of noted in our brief, I think that misses the mark on the requirements of both the ADA and the Rehabilitation Act that it's not just access, but meaningful access.

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And simply having, you know, yes, he could use the restroom, but that's not so much the issue.

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he could not meaningfully use the restroom to accommodate his disabilities.

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And so I think that district court aired there, and then the district court found that there was no intentional discrimination, which the court has found, and I think is correct, that intentional discrimination is required for compensatory damages to be available.

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Now, the word intentional I think often, you know,

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means something in one context, but the court has said that potential discrimination can be found through a showing of deliberate indifference.

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And, you know, here I think that certainly it could be inferred of deliberate indifference, of knowledge of removing a safety valve, an aid for an autistic student that needed it, that it is an obvious and foreseeable consequence that

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that their disabilities will be not accommodated and they won't have access to the program.

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Are you conceding that you even have to show an intentional act at the pleading stage?

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Well, I think that the... I mean, we have some unpublished authority to that effect.

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Well, I think that the case law says it has to be intentional.

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I think the question is, what is intentional?

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I think the inference needs to be that there has to be some kind of deliberate indifference to the situation for compensatory damages.

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If we were seeking, you know, obviously non-compensatory damages, I think it would be different.

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I understand that.

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I'm just saying we haven't held in a published opinion that you even have to have intentional discrimination.

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There has been an unpublished opinion that I'm aware of that we applied.

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We said there needed to be intentional discrimination, and it applies at the pleading stage.

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I'm just wondering if you're conceding that.

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Yeah, my reading of the law and my understanding is that intentional discrimination is a requirement of any such claim.

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And you think this was the deliberate and different, excuse me, deliberate and different aspects of it satisfied that?

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Correct.

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I think that there's a plausible inference of deliberate indifference.

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I'm not going to go so far as to say it was intentional in the way that we think of intentional as, you know.

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intending to cause this specific harm, but that it was obviously indifferent to the consequences of this situation happening.

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And then the last thing is the court referenced, I think, a case from New Mexico.

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I don't have it in front of me right this second.

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A case about a single violation of an IEP can't serve as a violation of an ADA or 504 claim.

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And I just want to make clear, our claim is not about a violation of the IEP, it's about the failure to accommodate.

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I think the IEP is relevant to that because it shows their knowledge of it and what a reasonable accommodation would look like, but it's not based on the IEP.

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Thank you.

[00:16:28] Speaker 01:
Thank you, Your Honors, and may it please the court.

[00:16:31] Speaker 01:
My name is Adam Haven.

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I'm here on behalf of the school district and the two individual defendants, Principal Lee and Stephanie Brand.

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To get started on why we're here today,

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I believe we're here because plaintiff has now on multiple occasions unsuccessfully attempted to transform what is at best a common law negligence claim into a claim for constitutional or federal harm.

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Under existing Supreme Court case law and this court's case law, that attempt must fail.

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To start with the first claim that counsel addressed.

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Can I butt in there, since you raised negligence, is that still going in the state court?

[00:17:15] Speaker 01:
It is not, Your Honor.

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That claim was dismissed without prejudice by the district court.

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Nothing is preceded as to that claim.

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So turning to the 14th Amendment danger creation claim, I think the bedrock for that, for analysis of substantive due process claim in this context is the Supreme Court's decision in Descheny, which makes abundantly clear why this type of claim must fail.

[00:17:45] Speaker 01:
That case talks about how a plaintiff cannot hold a government entity liable merely because that government entity failed to protect the plaintiff from private violence.

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Now, in the years since Descheny, this court and other circuit courts have recognized the danger creation exception, which is what plaintiff attempts to rely on here.

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However, as the district court appropriately recognized,

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It fails at step one under the facts played in this complaint.

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There is no affirmative action that was taken by any of the defendants.

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I share and I believe it was Judge Moritz's question earlier as to specificity as to any individual defendant and whether that was appropriately played.

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I think the answer to that question is no.

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The one paragraph in the complaint that plaintiff cites to, I believe, is paragraph 44, and that has the language of the defendants elected to have a special education, have the special education aide

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cover for the teacher.

[00:18:59] Speaker 01:
Well, that doesn't provide any specificity whether it was defendant Lee, whether it was defendant Brent that made that decision.

[00:19:06] Speaker 01:
Rather, we have a preliminary allegation early in the complaint introducing the parties that introduces Ms.

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Lee as the principal and Ms.

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Brent as the special education director.

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And I don't think that that gets the plaintiff where they need to go in this case.

[00:19:25] Speaker 01:
Moving on from that, as we've set out in our brief, and I think as Your Honor Judge Phillips has touched on as well, I think it's a real problem for the plaintiff and the appellant in this case that we have also established four separate alternative bases on which this court can and should affirm the district court's decision, which are the third, fourth, fifth, and sixth elements of a danger creation claim.

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And as your honor noted plaintiff appellant didn't even respond to those allegations.

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I think that does raise a real waiver issue.

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And so even if this court were to disagree and rely on plaintiffs safety valve argument.

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to find affirmative action, and I'm going to get to that in a moment because those cases are readily distinguishable, we nonetheless have multiple bases on which this court can and should affirm.

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So to turn to that affirmative act and the reliance on the quote-unquote safety valve argument, plaintiff cites really two cases for that proposition, Currier and Briggs.

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Both of those cases are incredibly similar facts.

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They are instances where individual social workers were sued in their capacity as social workers who, in both contexts, had some knowledge of a prior history of abuse, or at least reports of abuse to a child, that they then either, in one case,

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affirmatively recommended that that child be placed back in the custody of a known or believed abuser.

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Or in another case, we had a social worker who affirmatively discouraged the reporter of abuse from continuing to report abuse.

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Those are both instances where not only are they taking affirmative action as opposed to here where we have, as your honors noted, a repeated reliance on an alleged failure to act.

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There we had affirmative action combined with several repeated instances of reasons why they had knowledge of the danger that they were putting the child back into.

[00:21:53] Speaker 03:
Is there anything in the complaint about what the danger to the child was, why he needed to be accompanied to the bathroom?

[00:22:01] Speaker 03:
It said he needed to be accompanied anywhere, is that right?

[00:22:05] Speaker 01:
Your Honor, I think I'm glad you raised that question, because the allegations in the complaint, there are really three paragraphs that address the language in the IEP, which plaintiff relies on heavily in this case.

[00:22:19] Speaker 01:
The first one is in paragraph 34 of the complaint, or I'm sorry, paragraph 35 of the complaint, where it talks about how DC should be attended by an aide to all locations in school.

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And then it specifies as examples, I'll grant,

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Lunch, recess, and specials.

[00:22:38] Speaker 01:
There's no reference of a need to follow DC into the bathroom.

[00:22:42] Speaker 01:
And as I think Your Honor, Judge Phillips alluded to earlier, it would be a little troublesome also to expect an aide, a female aide.

[00:22:51] Speaker 04:
What about paragraph 39?

[00:22:53] Speaker 01:
Thank you, Your Honor.

[00:22:54] Speaker 01:
I was going to get to that, but I'll go ahead and jump to it.

[00:22:57] Speaker 01:
Paragraph 39 is more specific as to the bathroom, but it's also specific as to the need that's being addressed, which is a need for assistance in toileting.

[00:23:11] Speaker 01:
Specifically, it says that DC may ask to be taken to the restroom if he needs that assistance.

[00:23:18] Speaker 04:
Who requires adult attendance and some assistance with toileting would indicate

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When he goes to the toilet, he needs assistance.

[00:23:26] Speaker 01:
Your Honor, I would agree, but I do think that latter language is important, that he may request assistance if needed, and I think regardless of how the language is interpreted here... We're at the dismissal stage here, so wouldn't this be enough to say that they were certainly aware that he needed assistance every time he went to the toilet, and he might need assistance in the toilet with toileting itself?

[00:23:51] Speaker 01:
Well, your honor, I think it would be potentially, certainly at this stage, it would be enough, except for the fact that this is not the type of harm that the IEP was directed at.

[00:24:04] Speaker 01:
I think that's pretty clear from the language that's played in the complaint.

[00:24:09] Speaker 01:
When the IEP was drafted,

[00:24:11] Speaker 01:
There's no indication from the allegations in the complaint that the IEP was intended to protect DC from a potential harm that he could be victimized by a bad actor that goes into the bathroom and inappropriately photographs him.

[00:24:28] Speaker 01:
The defendants certainly don't dispute that that was an unfortunate and regrettable incident.

[00:24:35] Speaker 04:
There could have been many threats, couldn't there?

[00:24:38] Speaker 04:
As we discussed, he could have perhaps fallen, hit his head on the toilet or on a sink or anything else.

[00:24:45] Speaker 04:
Wouldn't that have been a pretty obvious threat as well?

[00:24:50] Speaker 01:
Well, Your Honor, I would say in the context of a danger... A threat has to be immediate.

[00:24:58] Speaker 01:
Yes, Your Honor.

[00:24:58] Speaker 04:
There's several possible threats that could have been immediate to him, I suppose.

[00:25:05] Speaker 01:
The defendants would disagree with there being an array of possible immediate harms.

[00:25:11] Speaker 01:
I think at the time of the alleged affirmative conduct, it has to be

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It has to be a known and substantial risk with immediate threat of harm.

[00:25:22] Speaker 01:
And I think the type of harm at issue does matter.

[00:25:26] Speaker 01:
I don't believe that at the time when, as Plaintiff alleges, an affirmative act was taken to not hire a replacement special education teacher, that it could have been foreseen or even contemplated that that would have led to this type of harm.

[00:25:44] Speaker 01:
Certainly it might have led to... This was a junior high, wasn't it?

[00:25:47] Speaker 01:
I'm sorry.

[00:25:49] Speaker 04:
This was a junior high wasn't it?

[00:25:51] Speaker 01:
I believe the allegations in the complaint state that DC was in the fifth grade at the time of the incident.

[00:25:56] Speaker 04:
There were older kids in this bathroom.

[00:25:57] Speaker 01:
There were, Your Honor.

[00:25:58] Speaker 01:
There were the allegations that was in the seventh and eighth grade hallway.

[00:26:02] Speaker 01:
So the implication there being that, and I think the allegation does state that DC was confronted by an older student in the bathroom.

[00:26:11] Speaker 01:
However, I don't believe that that gets plaintiff over the line in terms of this being the type of harm that was contemplated.

[00:26:19] Speaker 01:
Your Honor, I see I'm getting down to somewhat limited time.

[00:26:24] Speaker 01:
I want to try and move to the ADA and Section 504 claims.

[00:26:30] Speaker 01:
Here the district court dismissed plaintiff's ADA and Section 504 claims on two separate grounds.

[00:26:38] Speaker 01:
First, I want to briefly address the intentionality requirement that was raised because I think we can get that out of the way given that plaintiff has conceded today that deliberate indifference is required to be pled.

[00:26:55] Speaker 01:
At no point throughout this litigation whether below in response to the defendant's motions to dismiss Whether on appeal in the opening brief there was no reply brief filed and then again today in the oral argument Council has not taken the position on behalf of appellate appellant that there was no requirement to plead deliberate indifference so moving away from that point

[00:27:20] Speaker 01:
to the meaningful access issue, really the only case that plaintiff appellant has consistently relied on for that proposition that DC was denied meaningful access is the Chaffin case.

[00:27:36] Speaker 01:
And in that case, this court held that the plaintiffs were effectively trapped.

[00:27:43] Speaker 01:
It was a fairground case and the plaintiffs were confined to wheelchairs and they were attending a concert being put on at the fairgrounds.

[00:27:56] Speaker 01:
And the allegations there were that they were so

[00:28:00] Speaker 01:
trapped by the layout of the handicapped section that they couldn't leave.

[00:28:06] Speaker 01:
They couldn't go get food.

[00:28:07] Speaker 01:
They couldn't go to the bathroom.

[00:28:09] Speaker 01:
They were being bumped into and stepped on and all these sorts of things.

[00:28:14] Speaker 01:
And the defendants there said,

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It's enough that they at least had physical access, that they were there.

[00:28:21] Speaker 01:
All those other considerations shouldn't apply.

[00:28:24] Speaker 01:
And this court rejected that argument for good reason.

[00:28:27] Speaker 01:
That is not meaningful access to the fairgrounds facilities.

[00:28:32] Speaker 01:
What we have here is readily distinguishable.

[00:28:35] Speaker 01:
We do not have a situation where there are allegations that DC was not provided meaningful access to the school district's bathroom.

[00:28:44] Speaker 01:
That's not at all the allegation.

[00:28:46] Speaker 01:
In fact,

[00:28:47] Speaker 01:
The allegations in the complaint are clear that the school district had provided the accommodation of an aid for years.

[00:28:56] Speaker 01:
But really what the allegations state is on that this one isolated date that the plaintiff was quote allowed to leave the classroom and go to the restroom unattended.

[00:29:07] Speaker 01:
I don't believe under this court's case law that constitutes denial of meaningful access to the school's facilities, especially where what's really at the heart of the plaintiff's complaint is that a bad actor unforeseeably

[00:29:24] Speaker 01:
entered into the restroom and inappropriately photographed DC.

[00:29:28] Speaker 01:
That is not something that the school district failed to provide accommodation against.

[00:29:35] Speaker 01:
It's an unfortunate, regrettable incident that occurred that the school district did not deny a reasonable accommodation for.

[00:29:44] Speaker 01:
Turning lastly to the only other issue that I don't believe I've addressed is the dismissal with prejudice of the danger creation claim.

[00:29:54] Speaker 01:
And I do want to clarify that that's the only claim that on appeal the appellant contests is the danger creation theory.

[00:30:03] Speaker 01:
Danger creation, we've talked today about how a necessary precondition of affirmative action is missing from the allegations in the complaint.

[00:30:15] Speaker 01:
On top of that, we have four separate elements that plaintiff has failed to plead and has now waived on appeal and failed to contest.

[00:30:23] Speaker 01:
That is at least five separate ways that it would be futile for the plaintiff to be granted an opportunity to amend their complaint.

[00:30:32] Speaker 01:
I think under this court's case law, it has been frequently established that under those circumstances where there's a failure to state a claim, in addition with futility of amendment, that dismissal with prejudice is not an abuse of discretion.

[00:30:51] Speaker 01:
With that, Your Honors, I've only got 30 seconds or so left.

[00:30:55] Speaker 01:
I'm happy to answer any questions you have, but I've covered everything I wanted to address today.

[00:31:02] Speaker 01:
Thank you, Counsel.

[00:31:03] Speaker 01:
Thank you, Your Honors.

[00:31:04] Speaker 03:
Does the appellant have any time remaining?

[00:31:11] Speaker 03:
Thank you.

[00:31:13] Speaker 03:
Thank you, Counsel.

[00:31:14] Speaker 03:
The case is submitted.

[00:31:18] Speaker 03:
Counsel is excused and will be in recess until nine tomorrow morning.