Case 4:22-cv-00590 Document 42 Filed on 07/07/22 in TXSD Page 1 of 30
`United States District Court
`Southern District of Texas
`ENTERED
`July 07, 2022
`Nathan Ochsner, Clerk
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`
`JOHN DOE, THROUGH NEXT FRIEND
`JANE ROE,
`
`
`§
`§
`§
`§
`§
`§
`§ CIVIL ACTION NO. H-22-00590
`§
`§
`§
`§
`§
`§
`
`
`
`
`
`
`
`Plaintiff,
`
`VS.
`
`
`SNAP, INC., BONNIE GUESS-MAZOCK,
`and CONROE INDEPENDENT SCHOOL
`DISTRICT,
`
`
`
`
`
`Defendants.
`
`MEMORANDUM AND OPINION
`
`
`
`John Doe alleges that when he was a 15-year-old sophomore at Oak Ridge High School,
`
`in Conroe, Texas, his science teacher, a woman in her thirties, engaged him in a sexual relationship.
`
`This teacher, Bonnie Guess-Mazock, allegedly lured Doe into the relationship by using the social-
`
`media platform, Snapchat, to send Doe inappropriate messages and photographs, and then by
`
`encouraging him to take prescription and over-the-counter drugs during sex. The sexual assaults
`
`continued repeatedly over several months. They were discovered when Doe overdosed on the
`
`prescription drugs Guess-Mazock provided him. After a long hospital stay, Doe recovered, at least
`
`from the drug overdose. Doe’s legal guardian sues Guess-Mazock, the Conroe Independent School
`
`District, and Snap, Inc., the company that owns and maintains Snapchat. All defendants moved to
`
`dismiss under Federal Rule of Civil Procedure 12(b)(6). (Docket Entries Nos. 11, 10, 24).
`
`
`
`Based on the motions, the responses, the replies, and the applicable case law, the court
`
`grants in part and dismisses in part Guess-Mazock’s motion to dismiss, (Docket Entry No. 24);
`
`grants the school district’s motion to dismiss, (Docket Entry No. 11); and grants Snap, Inc.’s
`
`

`

`Case 4:22-cv-00590 Document 42 Filed on 07/07/22 in TXSD Page 2 of 30
`
`motion to dismiss, (Docket Entry No. 20). Doe’s claims against the school district and Doe’s
`
`intentional-infliction-of-emotional-distress claim against Guess-Mazock are dismissed without
`
`prejudice and with leave to amend. Doe may amend his complaint against the school district by
`
`August 22, 2022. Doe’s claims against Guess-Mazock are abated until 90 days after Doe serves
`
`Guess-Mazock with notice as required under the Texas Education Code § 22.0513. Doe’s claims
`
`against Snap, Inc. are dismissed with prejudice.
`
`
`
`I.
`
`
`
`The reasons are set out below.
`
`Background
`
`The summary of the factual background is based on the allegations in Doe’s complaint,
`
`which the court accepts as true in considering this motion to dismiss. The allegations describe a
`
`troubled adolescent who survived a difficult childhood. Doe’s father abandoned him as a child,
`
`and his mother was murdered. Doe has been raised by Jane Roe, his guardian, who brings this
`
`lawsuit on his behalf. (Docket Entry No. 1, at 2).
`
`
`
`In October 2021, during his sophomore year at Oak Ridge High School, Doe’s science
`
`teacher, Guess-Mazock, a woman in her thirties, “preyed” on the fifteen-year-old Doe, knowing
`
`that he was young and otherwise vulnerable. Guess-Mazock asked Doe to “stay with her in the
`
`classroom after the rest of the classroom was dismissed” and “met with Doe alone with the door
`
`to the classroom closed.” (Id., at 3). “At this closed-door meeting, [Guess-Mazock] began to
`
`groom Doe for a sexual relationship and, in furtherance of that goal, asked Doe for his Snapchat
`
`username.” (Id.). “Guess-Mazock then began to seduce Doe via Snapchat by sending seductive
`
`photos of herself appended with solicitous messages.” (Id.).
`
`
`
`Throughout the fall and winter of 2021, Guess-Mazock and Doe “had repeated sexual
`
`contact . . . at different locations,” including Guess-Mazock’s car and Doe’s home. (Id., at 3–4).
`
`
`
`2
`
`

`

`Case 4:22-cv-00590 Document 42 Filed on 07/07/22 in TXSD Page 3 of 30
`
`Guess-Mazock also purchased, or gave money to Doe to purchase, prescription and over-the-
`
`counter drugs, “and encouraged Doe to abuse those substances prior to their having sex.” (Id., at
`
`4). On January 12, 2022, Doe overdosed on prescription drugs that Guess-Mazock gave Doe or
`
`paid him to get. Doe survived after a long hospital stay. (Id., at 13).
`
`
`
`Doe’s legal guardian filed this civil action, asserting claims under federal law against the
`
`Conroe Independent School District, and asserting claims under federal and state law against
`
`Guess-Mazock. As to the school district, Doe first alleges that it violated § 1983 by failing to
`
`adequately train its teachers and staff to identify illegal and inappropriate student-teacher
`
`relationships. (Id., at 7). Doe alleges that even though “the illicit relationship between Guess-
`
`Mazock and Doe . . . was an open secret that students frequently discussed,” school staff and
`
`administrators were not trained “to recognize and report inappropriate sexual relationships
`
`between students and teachers.” (Id., at 4–5). Second, Doe alleges that the school district failed
`
`to properly screen teachers and other employees, even though the district “had at least five
`
`instances of sexual assault of a student by employees in the last 20 years.” (Id., at 8). Doe alleges
`
`that “[u]pon information and belief, an adequate background check would have revealed Guess-
`
`Mazock’s pedophilic tendencies.” (Id., at 9). Third, Doe alleges that the school district failed to
`
`adequately supervise Guess-Mazock, who not only assaulted Doe, but also “attempted to seduce
`
`other students.” Doe alleges that the school district should not have allowed “opposite-sex,
`
`student-teacher private meetings on school grounds,” and that by “explicitly permitting” these
`
`meetings, “the School District promulgated a[] policy and procedure that demonstrates a
`
`conscience indifference to the Fourteenth Amendment rights of students of the District and Doe in
`
`particular.” (Id., at 10).
`
`
`
`3
`
`

`

`Case 4:22-cv-00590 Document 42 Filed on 07/07/22 in TXSD Page 4 of 30
`
`
`
`As to Guess-Mazock, Doe alleges that she violated Doe’s due process rights under the
`
`Fourteenth Amendment “to be free of illegal sexual advances by his teacher at school.” (Id., at 6).
`
`Doe alleges that Guess-Mazock assaulted, battered, and raped him, because “Doe had not reached
`
`the age of consent at the time of Guess-Mazock’s seduction.” (Id., at 6–7).
`
`
`
`Finally, Doe asserts three state-law negligence claims against Snap, Inc., the owner of
`
`Snapchat. Doe alleges that Snap is liable for “negligent undertaking” because it “claims to have
`
`undertaken to protect its young users” by “report[ing] all instances of child sexual exploitation to
`
`authorities,” a duty that it breached “by failing to exercise reasonable care in performing its data-
`
`mining services and failing to intervene when [Guess-Mazock] started sending sexually explicit
`
`messages and images to [Doe].” (Id., at 11). Doe also alleges that Snapchat is “negligently
`
`designed” because the application “allow[s] for the widespread practice of using false birth dates,”
`
`so that “users younger than 13 years old are using the application.” Doe alleges that “[b]y creating
`
`an environment where adults can interact with underage users with assurances that there will be
`
`no long-lasting evidence of those interactions, Snap has fostered an environment that draws in
`
`sexual predators and allows them to act with impunity.” And Doe alleges a claim of gross
`
`negligence, stating that when “viewed objectively . . . Snap presented an extreme risk of grievous
`
`harm in marketing an application to minors that, by design, allows pedophiles to prey on them
`
`with apparent impunity.” (Id., at 12).
`
`II.
`
`
`
`The Standard for a Rule 12(b)(6) Motion to Dismiss
`
`Under Rule 12(b)(6), a federal court dismisses a complaint if it fails “to state a claim upon
`
`which relief can be granted.” Fed. R. Civ. P. 12(b)(6); see also Fed. R. Civ. P. 8(a)(2) (requiring
`
`“a short and plain statement of the claim showing that the pleader is entitled to relief”). In
`
`reviewing a Rule 12(b)(6) motion, the court “accept[s] all well-pleaded facts as true and view[s]
`
`
`
`4
`
`

`

`Case 4:22-cv-00590 Document 42 Filed on 07/07/22 in TXSD Page 5 of 30
`
`all facts in the light most favorable to the plaintiff.” Thompson v. City of Waco, 764 F.3d 500, 502
`
`(5th Cir. 2014). “A court reviewing a motion to dismiss under Rule 12(b)(6) may consider ‘(1)
`
`the facts set forth in the complaint, (2) the documents attached to the complaint, and (3) matters of
`
`which judicial notice may be taken under Federal Rule of Evidence 201.’” DZ Jewelry, LLC v.
`
`Certain Underwriters of Lloyds London, No. H-20-3606, 2021 WL 1232778 (S.D. Tex. Mar. 21,
`
`2021) (quoting Inclusive Cmtys. Proj., Inc. v. Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir.
`
`2019)).
`
`
`
`To withstand a Rule 12(b)(6) motion, a complaint must contain “enough facts to state a
`
`claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
`
`A complaint must include “more than labels and conclusions, and a formulaic recitation of the
`
`elements of a cause of action will not do.” Lincoln v. Turner, 874 F.3d 833, 839 (5th Cir. 2017)
`
`(quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked
`
`assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
`
`(alteration in original) (quoting Twombly, 550 U.S. at 557). “A complaint ‘does not need detailed
`
`factual allegations,’ but the facts alleged ‘must be enough to raise a right to relief above the
`
`speculative level.’” Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 765 (5th Cir. 2019)
`
`(quoting Twombly, 550 U.S. at 555).
`
`III.
`
`Analysis
`
`
`
`The motions to dismiss the federal and state law claims by each of the three defendants,
`
`the Conroe Independent School District, Guess-Mazock, and Snap, Inc., are addressed in turn.
`
`A.
`
`The Conroe Independent School District
`
`Doe asserts a § 1983 claim against the Conroe Independent School District. Doe alleges
`
`that “Anthony Livecchi, while acting under the color of state law as principal of Oak Ridge High
`
`
`
`5
`
`

`

`Case 4:22-cv-00590 Document 42 Filed on 07/07/22 in TXSD Page 6 of 30
`
`School, and the Conroe Independent School District deprived Doe of [his Due Process] rights.”
`
`(Docket Entry No. 1, at 7). Doe does not name Livecchi as a defendant in this lawsuit. Doe alleges
`
`that the school district violated § 1983 by failing to properly train its teachers and staff to identify
`
`warning signs indicating inappropriate student-teacher relationships; that the school district was
`
`“deliberately indifferent . . . in failing to adequately train Defendant Guess-Mazock”; that the
`
`school district failed to properly screen employees before “placing them into the classroom with
`
`vulnerable students”; and that the school district failed to “adequately supervise” its teachers by
`
`“ha[ving] a policy that allow[ed] teachers and students of the opposite sex to hold closed door
`
`meetings private in classrooms and other rooms within the high school.”
`
`The school district argues that Doe’s complaint must be dismissed because Doe has not
`
`alleged that an official policymaker “approved, adopted, or ratified any actions Doe claims caused
`
`him injuries.” (Docket Entry No. 11, at 9). The school district also argues that Doe has not alleged
`
`that an official policymaker’s actions or inactions amounted to deliberate indifference of Doe’s
`
`constitutional rights. (Id., at 13).
`
`The court agrees with both arguments. Liability cannot be imposed on school districts
`
`under a theory of vicarious liability or respondeat superior. Collins v. City of Harker Heights, 503
`
`U.S. 115, 120 (1992). A plaintiff must plausibly allege that a policy or custom attributable to the
`
`school district was the “moving force” behind the deprivation of the plaintiff’s constitutional
`
`rights. Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978). That policy or custom must
`
`have been tolerated or approved by a person or entity with final policymaking authority for the
`
`school district. Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 753–54 (5th Cir. 1993). In
`
`Texas, the school district’s Board of Trustees is the sole entity with final policymaking authority
`
`
`
`6
`
`

`

`Case 4:22-cv-00590 Document 42 Filed on 07/07/22 in TXSD Page 7 of 30
`
`for the school district. See Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)
`
`(quoting TEX. EDUC. CODE ANN. § 11.151(b)).
`
`To survive a motion to dismiss, Doe must plausibly allege that Conroe Independent School
`
`District’s Board of Trustees adopted an unconstitutional policy or otherwise knew about and
`
`acquiesced “in a permanent and deeply embedded abusive and unconstitutional practice.” Penny
`
`v. New Caney Indep. Sch. Dist., No. H-12-3007, 2013 WL 2295428, at *4 (S.D. Tex. May 23,
`
`2013) (citing Piotrowski, 237 F.3d at 578–79). “Isolated violations of law by [the school district’s]
`
`employees cannot constitute a custom or policy by [the district’s] Board of Trustees.” Id.
`
`Doe’s complaint does not once mention the Board of Trustees. The complaint alleges that
`
`“[t]he School” had “inadequate” training policies, and that “the School was deliberately indifferent
`
`to Doe’s constitutional rights.” (Docket Entry No. 1, at 7–8). These allegations are insufficient to
`
`allege that the Board of Trustees adopted an unconstitutional policy or acquiesced to an
`
`unconstitutional custom.
`
`Doe has also not alleged that an official policymaker’s actions or inactions amounted to
`
`deliberate indifferent of his constitutional rights. “When a plaintiff bases [his] claim on a failure
`
`to implement or enforce a policy or custom, the facts alleged must support an inference of
`
`deliberate indifference to the plaintiff’s constitutional rights.” Gonzalez, 996 F.2d at 753–54, 755–
`
`56. Doe appears to base at least three of his claims against the school district on the district’s
`
`failure—not the Board’s—to implement policies or customs that would have protected him from
`
`harm by Guess-Mazock. Doe alleges that the school district did not enact adequate training
`
`policies to teach teachers and staff “warning signs that indicate inappropriate student-teacher
`
`relationships”; that the school district did not enact social media policies prohibiting teachers from
`
`communicating with students; and that the school district “fail[ed] to adequately supervise its
`
`
`
`7
`
`

`

`Case 4:22-cv-00590 Document 42 Filed on 07/07/22 in TXSD Page 8 of 30
`
`teachers,” because the school “allows teachers and students of the opposite sex to hold closed door
`
`meetings privately in classrooms and other rooms within the high school.”
`
`To plead that an official policymaker acted with deliberate indifference, Doe would need
`
`to plead facts showing that “the need for more or different training is so obvious, and the
`
`inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the
`
`[school district could] reasonably be said to have been deliberately indifferent to the need.”
`
`Gonzalez, 996 F.2d at 757 (citation omitted). Doe has not alleged a pattern of sexual assault by
`
`teachers, or inappropriate contact between teachers and students through social media, that has
`
`“occurred for so long or so frequently,” that the need for more or different training is obvious.
`
`Peterson v. City of Fort Worth, 588 F.3d 838, 850 (5th Cir. 2009). Doe alleges that the school
`
`district had “at least five instances of sexual assault of a student by employees in the last 20 years.”
`
`This allegation does not suggest a pattern of sexual assault so obvious that the school board acted
`
`with deliberate indifference to Doe’s constitutional rights by failing to enact different training or
`
`social media policies. Five instances over twenty years suggests, at most, isolated instances of
`
`condemnable conduct, but not a pattern of behavior among teachers requiring different training
`
`protocols.
`
`
`
`“To act with deliberate indifference,” the school board “must also know of and disregard
`
`an excessive risk to the victim’s health or safety.” McLendon v. City of Columbia, 305 F.3d 314,
`
`326 n.8 (5th Cir. 2002) (internal quotations omitted). The allegation that Guess-Mazock preyed
`
`on Doe in a classroom with the door closed does not plausibly allege that the Board knew or should
`
`have known, from one instance of abusive conduct, that allowing teachers to communicate with
`
`opposite-sex students in closed-door rooms would pose an excessive risk to students’ safety. It is
`
`
`
`8
`
`

`

`Case 4:22-cv-00590 Document 42 Filed on 07/07/22 in TXSD Page 9 of 30
`
`not “so obvious” that a teacher who is alone with a student of the opposite gender will sexually
`
`assault that student, so as to require the enactment of an open-door policy.
`
`Doe also alleges that the school district “has a persistent and widespread practice of failing
`
`to properly screen their potential employees prior to hiring them and placing them into the
`
`classroom with vulnerable students.” (Docket Entry No. 1, at 8). But even assuming that this
`
`adequately alleges a policy or practice, Doe has not alleged facts that could support “a direct causal
`
`link between the alleged policy and the claimed constitutional injury.” Penny, 2013 WL 2295428,
`
`at * 4 (citing Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998)). Doe alleges, in conclusory
`
`fashion, that “an adequate background check would have revealed Guess-Mazock’s pedophilic
`
`tendencies.” (Docket Entry No. 1, at 9). Doe does not explain what a background check might
`
`have revealed or how the background check “would have revealed Guess-Mazock’s pedophilic
`
`tendencies.” Doe does not allege, for example, that Guess-Mazock had a criminal record or a
`
`record from prior employment that would have raised any red flags about Guess-Mazock, which
`
`might lend support to his allegations.
`
`Doe has not alleged that the Board of Trustees enacted or failed to enact policies or customs
`
`with deliberate indifference to Doe’s constitutional rights. The school district’s motion to dismiss
`
`is granted, without prejudice and with leave to amend by no later than August 22, 2022.
`
`B.
`
`Bonnie Guess-Mazock
`
`
`
`Doe asserts a federal claim under 42 U.S.C. § 1983 and state-law claims of assault, battery,
`
`statutory rape, and intentional infliction of emotional distress against Guess-Mazock. In her
`
`motion to dismiss, Guess-Mazock does not deny that she sexually assaulted, battered, and raped
`
`Doe. Instead, she argues that because she did not assault Doe on school property or during school
`
`
`
`9
`
`

`

`Case 4:22-cv-00590 Document 42 Filed on 07/07/22 in TXSD Page 10 of 30
`
`events, the § 1983 claim must be dismissed because she did not commit the assaults under color
`
`of state law.
`
`
`
`Guess-Mazock argues that Doe’s state-law claims must be dismissed because Doe did not
`
`comply with certain procedural prerequisites to filing the state-law claim against her as a school
`
`district employee, and because she has “professional immunity” under Texas state law. (Docket
`
`Entry No. 24, at 9 (citation omitted), 11). The Texas law she relies on provides that:
`
`A professional employee of a school district is not personally liable for any act that
`is incident to or within the scope of the duties of the employee’s position of
`employment and that involves the exercise of judgment or discretion on the part of
`the employee, except in circumstances in which a professional employee uses
`excessive force in the discipline of students or negligence resulting in bodily injury
`to students.
`
`
`TEX. EDUC. CODE ANN. § 22.0511(a).
`
`
`
`Guess-Mazock argues that she is immune from Doe’s state-law claims because she “is a
`
`professional employee under the statute,” and “her actions [were] within the scope of her duties.”
`
`(Docket Entry No. 24, at 11). Guess-Mazock argues, however, that she is also immune from Doe’s
`
`federal-law claim because she was not acting “under the color of state law.” (Id., at 9).
`
`
`
`Doe asserts that Guess-Mazock’s arguments for dismissing the claims are irreconcilable.
`
`Doe argues that if Guess-Mazock acted under the scope of her employment in sexually assaulting
`
`Doe, then she necessarily acted under color of state law, regardless of whether the assaults occurred
`
`on school property or during a school event. “Under color of state law,” however, “does not
`
`necessarily equate to ‘scope of employment.’” McLaren v. Imperial Cas. and Indem. Co., 767 F.
`
`Supp. 1364, 1371 n.4 (N.D. Tex. 1991) (citing Brown v. Miller, 631 F.2d 408, 411 (5th Cir. 1980));
`
`cf. Robinett v. City of Indianapolis, 894 F.3d 876, 881 (7th Cir. 2018) (“[The plaintiff] argues that
`
`there is no effective difference between [under color of state law] and scope of employment. That
`
`is incorrect. While the two concepts are ‘closely related,’ they are ‘not identical.’” (citation
`
`
`
`10
`
`

`

`Case 4:22-cv-00590 Document 42 Filed on 07/07/22 in TXSD Page 11 of 30
`
`omitted)). While it is Doe’s burden to plead that Guess-Mazock acted under the color of state
`
`law, “[i]mmunity under § 22.0511 is an affirmative defense,” and so Guess-Mazock bears the
`
`burden of establishing that she acted within the scope of her employment. Moreno v. Northside
`
`Indep. Sch. Dist., No. SA-11-CA-0746-XR, 2012 WL 13029076, at *9 (W.D. Tex. Jan. 23, 2012).
`
`
`
`This case demonstrates, at least on the pleadings, that it is plausible that Guess-Mazock
`
`acted “under the color of state law” for the purpose of Doe’s § 1983 claim, but did not act “under
`
`the scope of employment” for the purpose of Doe’s state-law tort claim, so that both survive
`
`dismissal. The reasons are explained below.
`
`1. 42 U.S.C. § 1983
`
`
`
`Doe has plausibly alleged a claim under § 1983. To state a claim under § 1983, Doe must
`
`allege that he was deprived of a constitutional right “by a person acting under color of state law.”1
`
`West v. Atkins, 487 U.S. 42, 48 (1988); James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir.
`
`2008). Doe alleges that Guess-Mazock violated his Due Process right to bodily integrity. Guess-
`
`Mazock does not contest that Doe, a minor who is legally incapable of consent to sex, has a
`
`constitutionally protected right to be free from sexual abuse by his teacher. See Doe v. Taylor
`
`Indep. Sch. Dist., 15 F.3d 443, 445 (5th Cir. 1994) (en banc) (“We hold . . . that schoolchildren do
`
`have a liberty interest in their bodily integrity that is protected by the Due Process Clause of the
`
`Fourteenth Amendment and that physical sexual abuse by a school employee violates that right.”).
`
`
`
`“Although the law is clear that physical sexual abuse of a student by a school teacher can
`
`give rise to § 1983 liability, a separate and essential element of such a claim is that the abuse occur
`
`under color of state law.” Becerra v. Asher, 105 F.3d 1042, 1045 (5th Cir. 1997). Guess-Mazock
`
`argues that Doe’s § 1983 claim should be dismissed, because he has not alleged that she was acting
`
`
`1 As a public official, Guess-Mazock can be sued in her official or her personal capacity. See Hafer
`v. Melo, 502 U.S. 21 (1991). Doe alleges that he has sued Guess-Mazock in her personal capacity.
`11
`
`
`
`

`

`Case 4:22-cv-00590 Document 42 Filed on 07/07/22 in TXSD Page 12 of 30
`
`under color of law when the sexual abuse occurred, as no alleged assault occurred on school
`
`premises or at school functions. This argument is unpersuasive based on Doe’s allegations and
`
`Fifth Circuit precedent.
`
`
`
` Becerra v. Asher is instructive. Asher, a music teacher in the Houston Independent
`
`School District, sexually molested an eleven-year-old student, identified as Juan Doe. Id. at 1044.
`
`Juan’s mother sued Asher, the school district, and three school administrators, alleging a federal-
`
`law claim under § 1983 and state-law claims. The Fifth Circuit, sitting en banc, held that the
`
`mother failed to state a claim under § 1983 against Asher, because the “physical sexual abuse of
`
`Juan did not occur under color of state law.” Id. at 1047.
`
`
`
`In that case, Asher “first befriended and show[ed] a special interest in Juan at school,” but
`
`the assaults did not start until after Juan “withdrew from the school where [the teacher] taught.”
`
`Id. at 1047. Juan and Asher separately “continued a friendship,” “includ[ing] home music lessons,
`
`trips to the zoo and theme parks, and church activities,” after Juan had left school. Id. at 1044,
`
`1047. Asher then twice assaulted Juan in Juan’s home. Id.
`
`
`
` The Fifth Circuit held that “[a]s egregious and cruel as Asher’s acts were,” “Asher’s
`
`physical sexual abuse of Juan did not occur under color of state law.” Id. at 1047. The court noted
`
`that “[t]he assaults occurred at Juan’s home,” and that “Asher first molested Juan more than five
`
`months after Juan withdrew from the school where Asher taught. Asher’s contacts with Juan
`
`thereafter were in no way part of his duties as a state employee, were not school-sponsored, and
`
`were not reported to any school official.” Id. The court emphasized that “Asher was not Juan’s
`
`teacher ‘before, during, and after’ the sexual abuse, nor was this wrongful conduct ‘on and off
`
`school grounds.’” Id. (quoting Doe v. Taylor, 15 F.3d 443, 452 n.4 (5th Cir. 1994)).
`
`
`
`12
`
`

`

`Case 4:22-cv-00590 Document 42 Filed on 07/07/22 in TXSD Page 13 of 30
`
`
`
`Juan had “offered expert affidavits to the effect that the seduction of Juan began at school,
`
`and the later sexual abuse would not have occurred if Asher had not first won Juan’s trust and
`
`affection while serving as his teacher.” Id. But, the Fifth Circuit stated, “the constitutional
`
`violation [under the Due Process Clause] did not extend to the development of trust and affection.”
`
`Id. “On this evidence,” the court concluded, “there was no ‘real nexus . . . between the activity
`
`out of which the violation occurs and the teacher’s duties and obligations as a teacher.’” Id.
`
`(citation omitted).
`
`
`
`The Becerra court reached its conclusion by distinguishing an earlier Fifth Circuit
`
`decision, Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443 (5th Cir. 1994), and by comparing the case
`
`to a Tenth Circuit decision, D.T. by M.T. v. Indep. Sch. Dist. No. 16 of Pawnee Cnty., Okl., 894
`
`F.2d 1176 (10th Cir. 1990). These cases help define the parameters of a § 1983 claim when a
`
`student alleges that he or she was sexually assaulted by a teacher.
`
`
`
`In Doe v. Taylor, a female student was sexually molested by her high school teacher. 15
`
`F.3d at 445. The Fifth Circuit held that the teacher’s actions were taken under color of state law.
`
`Id. at 452 n.4. The court wrote:
`
`In this case, . . . [the teacher] took full advantage of his position as Doe’s teacher
`and coach to seduce her. He required Doe to do little or no work in the classroom
`and still gave her A’s. He also spoke to one of Doe’s other teachers about raising
`her grade in that class. [The teacher] was also Doe’s basketball coach and he
`exploited that position as well. The first physical contact [the teacher] had with
`Doe was after a basketball game in November 1986 when he grabbed her and kissed
`her. [The teacher’s] physical contact with Doe escalated thereafter. During the
`next several months [the teacher] took Doe from his classroom to an adjoining lab
`room where he kissed and petted her. During that same period of time [the teacher]
`also met Doe in the school’s fieldhouse where similar activity took place.
`
`
`Id.
`
`
`
`
`13
`
`

`

`Case 4:22-cv-00590 Document 42 Filed on 07/07/22 in TXSD Page 14 of 30
`
`
`
`The court concluded that because “a ‘real nexus’ exist[ed] between the activity out of
`
`which the [Constitutional] violation occur[red] and the teacher’s duties and obligations as the
`
`teacher,” the teacher’s conduct was “taken under color of state law.” Id.
`
`
`
`The Tenth Circuit reached the opposite conclusion in a case involving allegations of sexual
`
`assault of a student by a teacher. In D.T. by M.T., a teacher molested a student over summer
`
`vacation, at the teacher’s home, following a fundraising activity for a basketball camp that was not
`
`affiliated with the school. 894 F.2d at 1177. “It [was] uncontested in [the] case” that the teacher
`
`“was on summer ‘vacation’” and “had no duties or obligations owing to or functions to perform
`
`for the School District.” Id. at 1186. “His contract required only that he teach fifth grade and
`
`coach boys’ basketball . . . commencing late August and continuing to the end of May of each
`
`year.” Id. The school principal had “made it plain [to the teacher] that any and all activities
`
`associated with [the] summer basketball camps were not school related.” Id. As a result, the court
`
`concluded, the “events were the product of a private individual acting in his private capacity.” Id.
`
`(citation omitted). The student had failed to state a claim under § 1983.
`
`
`
`This case is between Doe v. Taylor and D.T. and Becerra. Unlike the plaintiff in Doe v.
`
`Taylor, the Doe in this case does not allege that a sexual assault occurred on the school campus or
`
`at school functions, or that Doe received any favoritism on grades in the classroom. Unlike the
`
`plaintiffs in D.T. and Becerra, Doe was a student of the teacher who allegedly committed the
`
`assault. Doe has alleged that Guess-Mazock used her authority as Doe’s assigned teacher to have
`
`Doe stay with her in the classroom after the rest of the class was dismissed. Doe alleges that
`
`Guess-Mazock “began to seduce Doe via Snapchat by sending seductive photos of herself
`
`appended with solicitous messages.” Although Doe does not allege whether these messages were
`
`sent while Guess-Mazock and Doe were on or off school property, it is plausible that messages
`
`
`
`14
`
`

`

`Case 4:22-cv-00590 Document 42 Filed on 07/07/22 in TXSD Page 15 of 30
`
`were sent during school hours. Doe similarly does not allege that Guess-Mazock and Doe had sex
`
`on school property, but does allege that “[s]ex occurred at different locations,” and provides only
`
`a few examples. Doe alleges that Guess-Mazock “exhibited explicit interest in him beyond what
`
`was appropriate for a teacher-student relationship,” so that “it was an open secret” among students
`
`on campus, suggesting that there plausibly was illicit contact on campus.
`
`
`
`When a teacher sends inappropriate messages to a student in her class, it is more than
`
`plausible to believe that that student would fear repercussion if he did not answer those messages,
`
`or attempted to cut off ties, compared to if “a total stranger [had] been contacting [him].” Chivers
`
`v. Cent. Noble Cmty. Sch., 423 F. Supp. 2d 835, 854 (N.D. Ind. 2006). Guess-Mazock’s “official
`
`interactions with [Doe] and [her] sexual pursuit [of Doe] constituted an ‘indivisible, ongoing
`
`relationship’ even though a significant amount of the sexual misconduct [allegedly] occurred after
`
`hours and off school grounds[.]” Id. at 854 (quoting Doe v. Taylor, 15 F.3d at 461 (Higginbotham,
`
`J., concurring)). There was a sufficiently alleged nexus between Guess-Mazock’s position of trust
`
`and authority as Doe’s teacher, and Guess-Mazock’s violation of Doe’s bodily integrity to state a
`
`claim. Guess-Mazock’s motion to dismiss Doe’s § 1983 claim is denied.
`
` 2. State-Law Claims
`
`
`
`Doe also asserts four state-law claims against Guess-Mazock of assault, battery, statutory
`
`rape, and intentional infliction of emotional distress. (Docket Entry No. 1, at 7). Guess-Mazock
`
`moves to dismiss these claims on both immunity and procedural grounds. Guess-Mazock argues
`
`that she is immune from suit under the Texas Education Code, because
`
`[a] professional employee of a school district is not personally liable for any act
`that is incident to or within the scope of the duties of the employee’s position of
`employment and that involves the exercise of judgment or discretion on the part of
`the employee, except in circumstances in which a professional employee uses
`excessive force in the discipline of students or negligence resulting in bodily injury
`to students.
`
`
`
`15
`
`

`

`Case 4:22-cv-00590 Document 42 Filed on 07/07/22 in TXSD Page 16 of 30
`
`
`TEX. EDUC. CODE ANN. § 22.0511(a). Guess-Mazock argues t