Colley, et al v. Montgomery Indep Sch

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-21096
Summary Calendar
LAURA COLLEY, Individually,
and as Next of Kin Joe Powers;
JOE POWERS,
Plaintiffs-Appellants,
versus
MONTGOMERY INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CV-783
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June 26, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiffs, Laura Colley (Colley), individually and on
behalf of her minor son, Joe Powers (Powers), appeal the district
court's denial of their 42 U.S.C. § 1983 claim against the
Montgomery Independent School District (MISD) and their motion
for additional discovery pursuant to Fed. R. Civ. P. 56(f). As
plaintiffs have failed to allege that the district court erred in
dismissing their racial discrimination and equal protection

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No. 99-21096
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claims, these claims have been abandoned. Yohey v. Collins, 985
F.2d 222, 224 (5th Cir. 1993).
MISD filed a motion to dismiss plaintiffs' § 1983 claim
pursuant to Rule 12(b)(6) or, in the alternative, for summary
judgment under Rule 56. The district court gave no reasons for
its dismissal of plaintiffs' claim and did not state under what
statutory authority the dismissal was based. Because plaintiffs
further defined their § 1983 claim in their opposition to MISD's
motion to dismiss, because MISD addressed the merits of these
arguments in its reply to plaintiffs' motion in opposition, and
because both parties submitted summary judgment evidence with
their motions to the district court, we presume that the district
court's final judgment was a grant of summary judgment under Rule
56 as opposed to a dismissal under Rule 12(b)(6). We review a
grant of summary judgment de novo.
"To plead a constitutional claim for relief under § 1983, [a
plaintiff must] allege a violation of a right secured [ ] by the
Constitution or laws of the United States and a violation of that
right by one or more state actors." Johnson v. Dallas Indep.
Sch. Dist., 38 F.3d 198, 200 (5th Cir. 1994). In order for a
school district to be held liable under § 1983, a plaintiff must
prove that the constitutional violation was committed pursuant to
a governmental “policy or custom.” Monell v. Department of Soc.
Servs., 436 U.S. 658, 694-95 (1978).
Having reviewed the district court's opinion, the briefs,
and the record, we conclude that plaintiffs failed to establish
liability on the part of MISD under § 1983. During her

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No. 99-21096
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deposition, Colley stated that in every other instance in which
her son was picked up from school, the MISD policy for student
departure was followed and that the complained-of instance was
contrary to the policy or custom of MISD. Colley additionally
stated that she was unaware, either through talking with school
officials or anyone else, of other instances in which students
were picked up by unauthorized individuals. Plaintiffs have
therefore failed to establish facts sufficient to prove liability
against MISD under the Monell standard, and the district court's
grant of summary judgment was proper.
The district court's denial of plaintiffs' Rule 56(f) motion
for additional discovery was also proper. The only specific
items referenced in plaintiffs' Rule 56(f) motion were "Parent
Sign Out Sheets." Plaintiffs did not explain how these sheets
would prove that MISD had a pattern or practice of releasing
children to unauthorized individuals. In fact, based upon the
record, these sheets, standing alone, would not prove that MISD
had such a pattern or practice. MISD policy dictated that school
officials check a child's "information card" and request proof of
a person's identity before allowing a person to sign a child out
of school. Accordingly, the sign-out sheets would not tell
plaintiffs whether the persons signing the children out of school
were authorized to do so. In addition, plaintiffs have failed to
establish any prejudice resulting from their inability to
discover the sign out sheets or any other documents.
AFFIRMED.

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