### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 40826 Summary Calendar

HILDA BERTA RAMOS,

Plaintiff

– Appellant

v. WEBB CONSOLIDATED INDEPENDENT SCHOOL DISTRICT,

Defendant

– Appellee.

Appeal from the United States District Court for the Southern District of Texas USDC No. 5:15

- CV

- 55

Before DAVIS, CLEMENT, and COSTA, Circuit Judges

. PER CURIAM: * This appeal arises out of the tragic death of O.R., a minor child and the adopted son of Hilda and Agustin Ramos ( collectively “ Plaintiffs ”) . O.R. was allegedly involved in a n illicit relationship with Fallon Cremar (“Cremar”), one of his teachers at Bruni High School (“BHS”)

. On February 18, 2013 , R.J. Montalvo (“Montalvo”) , a BHS teacher, saw O.R. hugging Cremar . Montalvo reported this to hi s superiors at BHS. T wo days later, after investigation by the BHS principal and WCISD superintendent had already begun, O.R.

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED May 29, 2018 Lyle W. Cayce Clerk Case: 17-40826 Document: 00514490630 Page: 1 Date Filed: 05/29/2018No. 17

- 40826

2 committed suicide. Following O.R.’s death, Plaintiffs filed suit again st Cremar, WCISD, the Benavides Independent School District (“Benavides”) , and the
Fr eer Indepen dent School District (“Freer”) , alleging violations of 42 U.S.C. § 1983 and Title IX of the Education Amendments of 1972 (“Title IX”) , 20 U.S.C. § 1681

. After Plaintiffs voluntarily dismissed Benavides and Freer, WCISD moved for summary judgment on all claims . F inding that Plaintiffs had produced no summary judgment evidence demonstrating that either WCISD or its officials acted with deliberate indifference, the district court granted summary judgment in favor of WCISD and certified its order as immediat ely appealable under Federal Rule of Civil Procedure 54(b). We agree wit h the
district court and therefore AFFIRM. 1 On appeal , the P laintiffs argue that the district court erred in granting summary judgment because there was record evidence (1) indicating WCISD
violated Title IX by failing to adequately respond to Cremar’s alleged harassment of O.R. and (2) indicating WCISD violated § 1983 by failing to properly train or s uper vise its employees

. 2 Though the standards for school
district liability under § 1 983 for a failure

- to

- train claim and Title IX differ slightly, 3 both require P laintiff s to show that either WCISD or its officials in charge of supervising Cremar acted with deliberate indifference

. 4

1 We review the district court’s grant of summary judgment de novo , apply ing the

same standards as the district court. Haverda v. Hays Cnty. , 723 F.3d 586, 591 (5th Cir. 2013). S ummary judgment is appropriate only if, viewing the evidence in the light most favorable to the nonmovant, “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” F ED

. R. C IV

. P. 56 (a).
2 Below, Plaintiffs also alleged that WCISD violated § 1983 by creating a danger that caused O.R.’s abuse and suicide and, alternatively, that WCISD viol ated § 1983 by ratifying Cremar’s abusive actions. Plaintiffs did not substantively brief those theories on ap peal an d, consequently, they are abandoned

. See Gann v. Fruehauf Corp. , 52 F.3d 1320, 1328 (5th Cir. 1995).
3 See Doe on Behalf of Doe v. Dall. Indep. Sch. Dist. , 153 F.3d 211, 220 n.8 (5th Cir. 1998).

4 Gebser v. Lago Vista Indep. Sch. Dist. , 524 U.S. 274, 29 2

– 93 (1998) (“Until Congress speaks directly on the subject, however, we will not hold a school district liable in damages Case: 17-40826 Document: 00514490630 Page: 2 Date Filed: 05/29/2018No. 17

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3 “The deliberate indifference standard is a high one.” 5 “To act with deliberate indifference, a state actor must ‘know[ ] of and disregard[ ] an excessive risk to [the victim’s] health or safety.’” 6 In other words, “the plaintiff must demonstrate culpability beyond mere negligence or even gross negligence.” 7 Th e state actor’s conduct “must amount to an intentional choice, not merely an unintentionally negligent oversight.” 8 Moreover, even if the state actor has actual knowledge of a substantial risk of harm to the victim, if he responds reasonably to that risk, he will not be held liable even though the harm ultimately occurs. 9
Her e, the Plaintiffs cannot show that either WCISD or its officials acted with deliberate indifference

. It is undisputed that WCISD had in place policies that prohibited teacher

- student re lations and that required reporting of sexual harassment. It is also undisputed that WCISD held regular trai ning sessions on these policies. These policies, even if imperfect, were not so inadequate that they were “likely to result in the violation of cons titutional rights.” 10 T hus, they

can not support an inference that WCISD itself was deliberately indifferent. The Plaintiffs also did not set forth facts from which a reasonable jury
could conclude that WCISD officials were deliberately indifferent to O.R.’s plight. On February 18, 2013, Montalvo observed O.R. hugging Cremar.
Montalvo immediately reported his observation to BHS P rincipal Humberto

under Title IX fo r a teacher’s sexual harassment of a student absent actual notice and deliberate indifference.”); Sanders

- Burns v . City of Plano , 594 F.3d 366, 381 (5th Cir. 2010) (“ For Sanders

- Burns to succeed on her [§ 1983] failure to train claim against Plano, she mus t demonstrate that . . . Plano was deliberately indifferent in adopting its training policy . . . .”).
5 Whitley v. Hanna , 726 F.3d 631, 641 (5th Cir. 2013) (quoting Doe v. Dall. Indep. Sch. Dist. , 153 F.3d 211, 219 (5th Cir. 1998)).
6 Id. (quoting McClend on v. City of Columbia , 305 F.3d 314, 326 n.8 (5th Cir. 2002)).
7 Hernandez ex rel. Hernandez v. Tex. Dep’t of Protective and Regulatory Servs. , 380 F.3d 872, 883 (5th Cir. 2004).
8 James v. Harris Cty. , 577 F.3d 612, 617

– 18 (5th Cir. 2009).
9 Doe ex rel. Doe v. Dall. Indep. Sch. Dist. , 220 F.3d 380, 384 (5th Cir. 2000).
10 Canton v. Harris , 489 U.S. 378, 390 (1989). Case: 17-40826 Document: 00514490630 Page: 3 Date Filed: 05/29/2018No. 17

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4 Soliz (“Soliz”)

. Soliz then asked Montalvo to record a written statement of his observation, which Montalvo did

. The next morning , Soliz asked Cremar for a statement regarding the incident, and he personally observed O.R. for any
abnormal behavior but found none. T hat same day, Dr. Severita Sanchez (“Sanchez”) , the WCISD Superintendent, questioned Cremar in person regarding the incident, and, although Cremar denied any impropriety, Sanchez placed her on administrative le ave. L ater that day, Sanchez asked
Antonio Flores (“Flores”), a WCISD security guard regularly stationed at BHS, to talk with O.R. the following morning and ensure that he was w ell. In their
conversation t he following morning, O.R. told Flores that he did not have a relationship with Cremar and that he “ just wanted to give her a hug. ” Flores assured O.R. tha t he had done nothing wrong and instructed O.R. to give a
written statement. T hat evening, O.R. took his own life. On this record, WCISD officials did not knowingly and recklessly disregard potential abuse or danger
to O.R. 11 Accordingly, th ere is no genuin e dispute whether any WCISD officials acted with deliberate indifference toward O.R.’s constitutional rights. For these reasons and for the reasons stated by the district court, we AFFIRM.

11 See Whitley , 726 F.3d at 641. Case: 17-40826 Document: 00514490630 Page: 4 Date Filed: 05/29/2018