Doe v. Deer Park Independent School District

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
J ANE D OE, I NDIVIDUALLY AND AS 	§
N EXT FRIEND OF J ANIE D OE, MINOR 	§
CHILD, 	§
Plaintiff, 	§
§
v. 	§ 	CIVIL A CTION N O. 4:25-CV-2778
§
D EER PARK I NDEPENDENT SCHOOL 	§
D ISTRICT, 	§
Defendant. 	§
MEMORANDUM AND RECOMMENDATION
Before the Court is Defendant Deer Park Independent School District’s
(“DPISD”) second Motion to Dismiss.1 ECF 18. 	Defendant seeks to dismiss
Plaintiff’s complaint for failure to state a claim. After considering the pleadings, the
parties’ arguments, and the applicable law, the Court RECOMMENDS the Motion
be GRANTED (ECF 18) and Plaintiff’s claim be DISMISSED.
I. 	Factual and Procedural Background.
In March 2026, Plaintiff Jane Doe, on behalf of her daughter, Janie Doe, filed
an Amended Complaint against DPISD. ECF 17. Plaintiff’s Amended Complaint
alleges that on May 25, 2023, Robert James Yarbrough, a DPISD school bus driver,
1 The District Judge referred this case to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the Civil Justice Reform Act,
and Federal Rule of Civil Procedure 72. ECF 9.
United States District Court
Southern District of Texas
ENTERED
July 02, 2026
Nathan Ochsner, Clerk
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sexually assaulted Janie, an elementary school student, on a DPISD school bus. Id.
¶¶ 10-15. There were two witnesses to the assault, which was also captured on
surveillance video. 	Id. ¶¶ 16, 18-19. 	The Amended Complaint also alleges that
Yarbrough engaged in repeated inappropriate physical contact with Janie over the
course of two years. Id. ¶¶ 13, 19-21, 24. Prior to the May 25, 2023 assault, Janie
reported to two of her teachers and her principal that Yarbrough regularly “tickled”
her. 	Id. ¶¶ 27, 29. After the May 25, 2023 assault, Janie participated in a forensic
interview with the police, during which she stated that Yarbrough’s conduct included
“tickling,” kissing, and touching her underneath her shirt and shorts. ECF 7-1 at 8-
9.
Plaintiff originally filed suit in Texas state court, alleging several tort causes
of action and a claim under Title IX, 20 U.S.C. § 1681. 	ECF 1-1. 	Defendant
removed the case to federal court (ECF 1) and moved to dismiss all claims. ECF 5.
The Court granted the motion, dismissing all claims but granting Plaintiff leave to
amend only her Title IX claim. 	ECF 14; ECF 16. 	Plaintiff filed her Amended
Complaint, repleading only the Title IX claim. 	ECF 17. 	Defendant then filed a
second Motion to Dismiss. ECF 18. Plaintiff filed a Response (ECF 19), to which
Defendant replied. 	ECF 20. 	DPISD’s second Motion to Dismiss is ripe for
consideration.
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II. 	Legal Standards.
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “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 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 conduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). In reviewing a motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6), this Court “accepts all
well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.”
Alexander v. AmeriPro Funding, Inc., 848 F.3d 698, 701 (5th Cir. 2017) (citing
Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.
2004)). However, the court does not apply the same presumption to conclusory
statements or legal conclusions. Iqbal, 556 U.S. at 678-79.
Generally, a court may consider only the allegations in the complaint and any
attachments thereto in ruling on a Rule 12(b)(6) motion. Collins v. Morgan Stanley
Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). 	If a motion to dismiss refers to
matters outside the pleading it is more properly considered as a motion for summary
judgment. FED. R. CIV. P. 12(d). However, “[a] district court may rely on evidence
outside the complaint, without converting the Rule 12(b)(6) motion into a motion
for summary judgment, if that evidence is either (a) a document attached to the Rule
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12(b)(6) motion, referred to in the complaint and central to the plaintiff's claim; or
(b) a matter subject to judicial notice under Federal Rule of Evidence 201. George
v. SI Group, Incorporated, 36 F.4th 611, 619 (5th Cir. 2022). 	Courts also may
consider documents attached to a response in opposition to a motion to dismiss when
“the documents are referred to in the pleadings and are central to a plaintiff’s
claims.” Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635
(5th Cir. 2014); Jesse Kevin Duplechain, M.D., (II) v. State Farm Fire & Cas. Co.,
594 F. Supp. 3d 729, 732 (W.D. La. 2022). Plaintiff attached the Deer Park Police
Department report from the investigation of Yarbrough’s sexual assault of Janie to
her Response to Defendant’s first Motion to Dismiss. 	ECF 7-1. 	The Amended
Complaint cites specifically to the police report (ECF 17 ¶¶ 18-29, 31-32, 34), and
DPISD raises no objection to Plaintiffs’ reliance on the referenced document.
Therefore, the Court considers the police report when ruling on DPISD’s Motion to
Dismiss.
III. 	Analysis
A. Plaintiff has failed to allege facts sufficient to support the actual
notice element of her Title IX claim.
Title IX provides a cause of action for damages resulting from the actions of
a school district employee, but the school district cannot be held vicariously liable
for an employee’s actions under respondeat superior or constructive notice theories
of liability. 	J. T. v. Uplift Educ., No. 23-10773, 2024 WL 5118486, at *2 (5th Cir.
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Dec. 16, 2024); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287-90 (1998).
Under Title IX, a school district is vicariously liable for its employee’s conduct only
if an official with the power to institute corrective measures had actual knowledge
of the employee’s discriminatory actions. 	Gebser, 524 U.S. 274 at 290-91.
Therefore, to state a claim against DPISD for Yarbrough’s assault of Janie Doe,
Plaintiff must plead facts demonstrating that: (1) an official who had the authority
to institute corrective measures (2) had actual knowledge of Yarbrough’s sexual
abuse and (3) responded with deliberate indifference. 	J. T., 2024 WL 5118486, at
*3 (citing Gebser, 524 U.S. at 277). The “actual knowledge” element requires the
official “have actual knowledge that harassment has occurred, is occurring, or that
there is a substantial risk that sexual abuse would occur.” Roe v. Cypress-Fairbanks
Indep. Sch. Dist., 53 F.4th 334, 341 (5th Cir. 2022) (internal quotation marks
omitted). Allegations that the school should have known there was a substantial risk
of abuse are insufficient. M.E. v. Alvin Indep. Sch. Dist., 840 F. App'x 773, 775 (5th
Cir. 2020).
According to the Amended Complaint, Yarbrough engaged in inappropriate
behavior with Janie for two years. 	ECF 17 ¶ 21. 	Citing to the police report,
Plaintiff’s Amended Complaint states that Janie disclosed inappropriate behavior to
her principal and two teachers before May 25, 2023. 	Id. ¶¶ 27-29. Based on these
factual allegations, Plaintiff argues that prior to May 25, 2023, the school had both
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actual knowledge that sexual abuse had already occurred and that a substantial risk
of future abuse existed. Id. ¶¶ 40-51.
However, the police report states that prior to the assault on May 25, 2023,
Janie told her first and second grade teachers (Mrs. Garret and Mrs. Fields) as well
as the school Principal of Yarbrough’s “tickling.” 	ECF 7-1 at 8. 	It was not until
June 8, 2023, during a forensic interview, that Janie stated Yarbrough’s prior
inappropriate conduct included kissing and touching her under her clothing. ECF 7-
1 at 8-9. Plaintiff argues that due to her young age, the Court should consider Janie’s
report of “tickling” to include the more specific allegations of sexual assault made
during her June 8, 2023 forensic interview. ECF 19 at 5; ECF 7-1 at 8. Therefore,
Plaintiff argues, an appropriate official had actual knowledge that sexual abuse had
occurred or that a substantial risk of future abuse existed. Defendant argues that
Plaintiff’s Amended Complaint and the information in the police report fail to state
a claim under Title IX because neither includes factual allegations sufficient to show
that prior to the May 25, 2023 assault, school officials had knowledge of any conduct
other than “tickling.” ECF 18 at 6.
Although an eight-year-old generally may not describe sexual abuse in
specific clinical or legal terms and could use terminology like “tickling” instead,
Plaintiff must, in order to state a claim under Title IX, plead specific facts that, taken
as true, demonstrate DPISD’s actual notice either of prior sexual abuse or a
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substantial risk of future sexual abuse. 	Plaintiff’s invitation to read Janie’s earlier
reports of tickling as encompassing the post-hoc statements of sexual assault
emphasizes the point. 	The pleaded facts show that prior to the May 25 assault
DPISD officials had actual knowledge only of Yarbrough’s tickling, which as the
Court has previously noted, is completely inappropriate but does not provide notice
of conduct that is sexual in nature. ECF 14 at 13; see also Doe v. Katy Indep. Sch.
Dist., 427 F. Supp. 3d 870, 880 (S.D. Tex. 2019) (explaining that vague allegations
of conduct that does not include sexual harassment do not meet the notice
requirement).
Nor does knowledge of tickling demonstrate actual knowledge of a substantial
risk of future sexual abuse. 	Binding precedent has repeatedly shown the high bar
required to demonstrate actual knowledge of a substantial risk of future sexual abuse.
See J. T., 2024 WL 5118486, at *4 (finding “red flags” that pointed to sexual abuse
were not enough to put school on notice of risk); Doe v. Edgewood Indep. Sch. Dist.,
964 F.3d 351, 363 (5th Cir. 2020) (finding knowledge that a student visited a
teacher’s home unaccompanied was insufficient to provide notice). See also Gebser,
524 U.S. at 291 (finding principal’s knowledge that teacher directed sexually
suggestive comments to student in class did not create actual notice). For example,
in M.E. v. Alvin Independent School District, the school was aware of an overly close
relationship between a junior high school student and a school resource officer
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because the student’s parent complained that the student was missing class to spend
time with the officer and discussing personal family matters with him. M.E., 840 F.
App'x at 774. The Fifth Circuit held the school did not have actual knowledge of a
substantial risk of sexual abuse because there were no allegations of sexual
harassment. Id. at 776. District courts have also emphasized that allegations that a
school should have known about sexual abuse or a substantial risk of sexual abuse
are insufficient to constitute actual notice. See, e.g., Doe v. Northside I.S.D., 884 F.
Supp. 2d 485, 493 (W.D. Tex. 2012) (finding no actual notice where school was
aware teacher had inappropriate online interactions with students and other boundary
issues, including hip and chest bumping); Moreno v. McAllen Indep. Sch. Dist., No.
7:15-CV-162, 2016 WL 3198159, at *12–13 (S.D. Tex. June 9, 2016) (finding no
knowledge of substantial risk of sexual abuse where school was aware of teacher’s
habit of pulling male students out of class to speak to them alone while getting
physically close); S.P. v. Ne. Indep. Sch. Dist., No. SA-21-CV-0388-JKP-RBF, 2021
WL 3272210, at *6 (W.D. Tex. July 30, 2021) (dismissing Title IX claim because
allegation that school district knew about frequent one-on-one interactions between
student and her teacher behind closed doors was insufficient to show actual
knowledge of substantial risk). Plaintiff’s allegations that prior to the May 25, 2023
assault Janie reported “tickling,” absent allegations of conduct sexual in nature, are
insufficient to show DPISD’s actual knowledge of sexual abuse or actual knowledge
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of a substantial risk of future sexual abuse. See Doe v. D'Agostino, 367 F. Supp. 2d
157, 166 (D. Mass. 2005) (finding no actual notice based on reports of teacher
tickling a student and holding female students’ hands while walking down the hall).
Because the Court finds Plaintiff has failed again to allege facts sufficient to satisfy
the notice element of her Title IX claim, the Court need not analyze whether Plaintiff
has sufficiently alleged deliberate indifference.
B. Leave to amend should be denied.
Plaintiff requests she be given the chance to plead additional factual detail.
ECF 19 at 11. Defendant argues leave should be denied because Plaintiff has failed
to remedy the specific deficiencies identified in its first motion to dismiss and the
first Memorandum and Recommendation. ECF 20 at 4.
Although leave to amend should be freely given (FED. R. CIV. P. 15(a)(2)), it
can be denied for an appropriate reason “such as . . . repeated failure to cure
deficiencies by amendments previously allowed . . . [or] futility of amendment.”
Foman v. Davis, 371 U.S. 178, 182 (1962). 	The first Motion to Dismiss (ECF 5)
and Memorandum and Recommendation (ECF 14) specifically discussed the
deficiencies with Plaintiff’s Title IX claim, including the actual notice requirement.
Plaintiff failed to cure, or even substantially address, these deficiencies and fails to
indicate in her Response any “additional factual detail” that could be provided if she
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were granted leave to amend yet again. See ECF 19 at 8. Therefore, leave to amend
would be futile.
IV. 	Conclusion and Recommendation.
For the reasons stated above, the Court RECOMMENDS that Defendant’s
Motion to Dismiss (ECF 18) be GRANTED and Plaintiff’s claims be DISMISSED
and leave to amend be DENIED.
The 	Clerk 	of 	the 	Court 	shall 	send 	copies 	of 	the 	memorandum 	and
recommendation to the respective parties, who will then have fourteen days to file
written objections, pursuant to 28 U.S.C. § 636(b)(1)(C). 	Failure to file written
objections within the time period provided will bar an aggrieved party from attacking
the factual findings and legal conclusions on appeal. Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on
other grounds.
Christina A. Bryan
United States Magistrate Judge
Signed on July 02, 2026, at Houston, Texas.
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