White v. McComb Separate Sch, et al

*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opinion should not be published and is not precedent except under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.
United States Court of Appeals
Fifth Circuit
F I L E D
May 30, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 02-61070
Summary Calendar
JACQUE WHITE, Individually and as next friend of Cassandra Kelly,
a minor,
Plaintiff-Appellant,
VERSUS
MCCOMB SEPARATE SCHOOL DISTRICT; PATRICK COOPER, Individually and
in His Official Capacity as Superintendent; LINDA YOUNG,
Individually and in Her Official Capacity as Principal of Kennedy
Elementary; NEDRA SIMPSON, Individually and in Her Official
Capacity as Kennedy Elementary Special Education Teacher; MARGARET
ROBINSON, in Her Official Capacity as a School Board Member;
MAURICE CHESTER, in His Official Capacity as a School Board Member;
KENT KERBERT, in His Official Capacity as a School Board Member;
ODESSA HOLMES, in His Official Capacity as a School Board Member;
CHARLES DUNAGIN, in His Official Capacity as a School Board Member
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Mississippi, Jackson
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*

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2 G:\opin-sc\02-61070.opn.wpd
In May, 2001, Jacque White, (hereinafter “White”) acting
individually and as next friend of his minor daughter, Cassandra
Kelly (hereinafter “Kelly”), filed suit in the Circuit Court of
Pike County, Mississippi, against McComb Separate School District
and several individual officials and employees of such district
(hereinafter referred to collectively as “defendants”) asserting
claims of state law negligence and violation of the Individuals
with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq
arising out of an incident in which Kelly, who is severely and
profoundly disabled, mentally and physically handicapped, fell out
of a chair at a table in the special education classroom to which
she was assigned by defendants. The defendants removed the case to
the federal district court because of the federal question
involved. Defendants moved for a summary judgment on the
negligence issue because there was no genuine issue of material
fact to support such claim and moved for dismissal of the IDEA
claim on the grounds of failure to exhaust administrative remedies.
The district judge granted defendants’ motions and White appeals to
this Court.
We have carefully reviewed the briefs, the reply brief, the
record excerpts, and relevant portions of the record itself.

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3 G:\opin-sc\02-61070.opn.wpd
For the reasons stated by the district judge in his “Opinion and
Order” filed on November 20, 2002, we affirm the final judgment
entered on November 20, 2002, which dismissed the negligence claim
with prejudice and the IDEA claim without prejudice. AFFIRMED.

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