United States Court of Appeals,

Fifth Circuit.

No. 94-41318.

Summary Calendar.

JOHN DOE, as next friend of Sarah Doe, and Jane Doe, as next friend of Sarah Doe, PlaintiffsAppellees,

v.

RAINS COUNTY INDEPENDENT SCHOOL DISTRICT, et al., Defendants,

Rains County Independent School District, et al., Defendants-Appellants.

March 1, 1996.

Appeals from the United States District Court for the Eastern District of Texas.

Before JOLLY, JONES, and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge.

This appeal was filed by school district personnel sued because Coach Siepert carried on a

sexual affair with a female high school student. This court has already dealt with the district court's

denial of qualified immunit y to a teacher involved in the tragic events. D oe v. Rains County

Independent School District, 66 F.3d 1402 (5th Cir.1995). This related interlocutory appeal focuses

on the district court's order (a) denying qualified immunit y to t he school principal, Clopton, in his

individual capacity under federal and state law; (b) denying qualified immunity to athletic director

Talkington from plaint iffs' state law clai ms; and (c) denying immunity to Counselor Mabry and

Superintendent Dr. Harrison and the other appellants under the Texas Education Code. This court

has jurisdiction over this interlocutory appeal. Concluding t hat t he district court erred in denying

immunity to Clopton and Talkington, we Reverse. We do not reach the issue raised by Mabry and

Harrison.

Because many of the facts pertinent to this appeal were described in the Fifth Circuit's earlier

decision, we concentrate here on those facts per t inent to the appellants before us. The facts are

recited from the summary judgment record, with all inferences drawn in favor of the Does.

Coach Siepert allegedly began a sexual affair with 15-year old Sarah Doe, whom he hired tobabysit occasionally for his two children commencing in the fall of 1991. Bob Clopton was principal

of the high school at Rains Independent School District during Siepert's employment. After Siepert

was hired, Cl opton learned that Sarah Doe was babysitting for Sieper t . He also saw Siepert walk

Doe to the bus on one occasion. During February or March, 1992, it is alleged that Clopton asked

Michael Deven Jones, another coach and former employee of RISD, whether Jones thought there was

"anything going" between Sarah Doe and Siepert. Jones said he had no idea. Later that spring, Kara

Emig, a high school senior, reported to Clopton that Siepert had asked her for a date while he was

taping her for athletics. Emig also told him that Siepert said he could not do this while she was still

a student. On or about September 14-16, 1992, Clopton learned that Siepert had taken another

female student, Maggie Ehlers, out of class and "taped" her ankle for an athletic event. Cl opton

reported the incident t o Superintendent Harrison and to Coach Talkington in a memo stating that

Siepert should not remove students from academic classes because of athletics.

On November 5, 1992, Cl opton saw Sarah Doe crying at school. Clopton called Sarah's

parents to notify them that Sarah had "a problem" and to advise them to talk with her about it. A day

later, he attended a conference with Harrison and Ginger Mabry in which Mabry told them that Sarah

was having "trouble with a man." The three school officials decided that Mabry should obtain further

information, but Sarah refused to provide more details about her "problem." All that was known by

Mabry, Cl opton and Harrison at this point was that Sarah Doe was feeling guilty about something

related to babysitting, was having trouble with a "man" she would not identify, and seemed upset.

O n November 11 Ms. White, a school teacher in RISD, revealed to Mabry what s he had

known for several months, that Sarah was so upset because she had become sexually involved with

Coach Siepert. This was the first direct information linking Sarah to the coach. White and Mabry

pro ceeded immediately to Dr. Harrison's office where they informed him, for the first time, o f t he

affair. Harrison immediately instructed White to contact local law enforcement authorit ies and

instructed Mabry to contact the T exas Depart ment of Human Services. This was done the next

morning.

Also on November 12, Dr. Harrison informed Talkington and Cl opton that criminal charges1 Effective April 20, 1995, §§ 34.01-34.03 of the Texas Family Code have been recodified in

Title 5, §§ 261.101-261.106, of the Family Code. We refer to the statutes prevailing at the time

of the events in question. had been filed against Siepert and that he was suspended with pay until further notice and pending

further investigation of the allegations.

Coach Talkington had been responsible for recommending the hiring of Siepert in the summer

of 1991 and for that purpose spoke to the athletic director at Lake Dallas Independent School District

where Siepert formerly worked. The record does not reveal whether Talkington learned of Siepert's

previous sexual relationship with a 15 year old student at Lake Dallas, but Talkington did not inquire

whether, despite the positive recommendation of a coach at Lake Dallas, Siepert would be eligible

for rehire there. Talkington was also aware of memos concerning the "taping" incident with Maggie

Ehlers. He knew that Siepert was using Sarah Doe as a babysitter.

The Doe family asserted various claims against RISD and its teachers and employees. The

court, ruling on summary judgment motions, denied the qualified immunit y defense asserted by

Cl opton and Talkington and denied claims of immunity based on § 21.912 of the Texas Education

Code by Harrison, Mabry, Clopton and Talkington.

Beca use the district court's rulings denying immunity to Clopton and Talkington were

premised on legal errors, we must reverse.

A. Federal claim against Clopton.

Sarah Doe and her parents alleged that he owed a constitution al duty as the high school

principal and supervisor of Coach Siepert not to act with deliberate indifference toward the evidences

of possible sexual molestation. Appellees fortified this argument with reference to the Texas Family

Code, which requires "professionals" who have "cause to believe th at a child has been or may be

abused or neglected" to report within 48 hours to the appropriate agencies. Tax Family Code Ann.

§ 34.02(d). 1 Appellees also refer to the policy manual of RISD, which contains a similar requirement.

The district court first analyzed Clopton's section 1983 liabilit y under the test set forth by this court

en banc in Doe v. Taylor Independent School District, 15 F.3d 443 (5th Cir.) (en banc), cert. denied

sub nom, Lankford v. Doe, --- U.S. ----, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994). In Doe, this Court2 The facts recited above, which are the only facts in the record that suggest Clopton had any

inkling of Siepert's propensity to approach young women, do not even come close to those under

which this court granted the principal qualified immunity in Doe. These facts are also much less

egregious than those in another recent case decided by this court, Hagan v. Houston Independent

School District, 51 F.3d 48 (5th Cir.1995), in which this court also upheld a qualified immunity

defense of a school principal. announced the following test for determining the personal liabilit y of school o fficials in physical sexual

abuse cases: the plaintiff must establish:

1) that defendant learned of facts or a pattern of inappropriate sexual behavior by a

subordinate pointing plainly toward the conclusion that the subordinate was sexually abusing

the student; and

2) that the defendant demonstrated deliberate indifference toward the constitutional

rights of the student by failing to take action that was obviously necessary to prevent or stop

the abuse; and

3) such failure caused a constitutional injury to the student. 15 F.3d at 454.

The district court concluded that the evidence against Cl opton did not create a genuine issue

of material fact on the first of these questions, requiring a grant of immunit y under Doe. 2

Inexplicably, ho wever, he then denied qualified immunity to Clopton, attempting to derive a new

standard of constitutional liability from Judge Higginbotham's separate concurrence in Doe. Judge

Higginbotham himself explained his position in greater detail in Doe v. Rains County Independent

School District, supra. That case confirms that the provisions of the Texas Family Code requiring

reports of child abuse are not "action under color of state law" for purpose s of section 1983

violations. While Judge Higginbotham explains that "a school supervisory official can be held liable

for breaching his duty under the Family Code to report a subordinate 's abuse of a grade school

student," such an official must be " responsible for preventing the constitutional injury; his failure to

do so [must] render[ ] him directly liable for the deprivation that his subordinate perpetrated." 66

F.3d at 1413, 1417 n. 7 (emphasis added). In different terms, "[t]he federal cause of action arises not

strictly from the o fficial's breach of his duty to report, but

... is simply one manifestation of his failure

to take steps to prevent or eliminate injury to a student." 66 F.3d at 1417, n. 7. At the very least,

this holding does not affect the first criterion of the Doe test for supervisory official liability, and it

therefor e affo rds no separate ground for relief in this case. Thus, the district court's alternative3 As to Talkington, we agree with appellants that the district court appears to have decided that

there was no viable section 1983 claim against him. The court's "clarifying order" entered in

December, 1994, states that Talkington may continue to face liability only under appellees' state

law claims. By inference, and based on the district court's findings that Talkington did not have

any grounds for suspecting Siepert's relationship with Sarah before it was revealed to him on

November 12, 1992, the grant of qualified immunity on the constitutional claims must be upheld. rationale against Clopton, which depended on state law duties under the Texas Family Code, was

incorrect. 3

B. State Law Claims against Clopton and Talkington.

The district court also denied immunit y to Clo p ton and Talkington on appellees' state law

claims premised on their failure to report Siepert promptly to governmental authorities under Texas

Family Code section 34.02(d). As to appellant Talkington, the district court's November 16 order

discusses Talkington's immunit y claim in a way that seems quite inconsistent with his apparent later

decision, in the December 20, 1994, order, that the plaint iffs could pursue a claim against Talkington

under the Texas Family Code. The district court found:

Defendant [Talkington] is entitled to summary judgment, in that his actions did not cause the

constitutional violation, nor is there a genuine issue as to w hether he w as aw are of facts

triggering his duty to report. (emphasis added).

Nov. 16 Order, at 27. In other words, the court concluded that because the summary judgment

evidence does not establish Talkington's duty to report Doe's abuse, he could not be liable fo r a

constitutional law violation on this basis. This interpretation of the district court's November 16

opinion is reinforced by his discussion o f the Texas Family Code immunity provision on page 30,

which omitted any mention of Talkington. We conclude that there is no basis in the district court's

analysis of the state law claim against Talkington to support the denial of summary judgment founded

on immunit y. The court's discussion supports a grant of immunity on the basis that Talkington had

no knowledge before November 12, 1992, that would have required him to file a report under the

Family Code. The district court's purported clarification to the contrary must have been a scrivener's

error. Talkington's duty to report under the statute was discharged by Harrison.

The district court also concluded that Clopton "had a clear duty under Texas l aw to report

the suspected abuse of the minor plaint iff". November 16 opinion at 21. This duty apparently arose4 The most that can be said about this conversation is that it might have implied Clopton should

investigate the relationship between Sarah and Siepert; but a duty to investigate plainly does not

mean on these facts that there is "cause to believe" sexual abuse is occurring for purposes of the

statutory reporting requirement. from (1) Clopton's alleged conversation with Michael Deven Jones, (2) Clopton's having seen Siepert

and his children with Sarah Doe at a basketball game, and (3) the incidents invo lving Kara Emig and

Maggie Ehlers. Because the court concluded that a reasonable jury co uld find a violation of the

reporting requirement, the court also denied Clopton's immunit y claim under section 34.03 of the

Texas Family Code, because Clopton's "failure to report Doe's abuse is more substantial than a failure

to comply with the statute's technical requirement; his noncompliance frustrated the statute's purpose

..." Nov. 16 opinion at 30. The court also decided that the reporting requirement in the Family Code

creates an implied cause of action on behalf of plaint iffs such as the Does. We need not address the

breadth of any implied cause of action ar ising fro m t he Family Code, because we conclude that

Clopton did not legally have "cause to believe" that Sarah was being molested until November 12,

1992. One Texas court has explicitly linked the "cause to believe" standard with "probable cause"

to believe an act of child abuse has occurred. D ominguez v. Kelly, 786 S.W.2d 749, 752-53

(Tex.App.1990, writ denied). Whether the standard is that tight, or whether it is as stringent as the

constitutional liabilit

y standard for a supervisor, we need not say, because the facts in no way suggest

that Cl opton had "cause to believe" that Sarah was being abused by Siepert in Spring, 1992. That

Cl opton made one obs e rvation about Sarah and Siepert to Coach Michael Jones, and received an

inconclusive reply, and that he saw Sarah at a basketball game with Siepert and his children simply

do not suggest that sexual abuse is occurring. 4 There is no other evidence from which one can infer

that Cl opton had any more knowledge of the relationship between Sarah and Siepert during that time

frame. Neither the incidents with Kara Emig nor Maggie Ehlers, the latter in September 1992, gave

rise to any reasonable suspicion of sexual abuse, and certainly no such suspicion concerning Sarah

Doe. Clopton did not begin to gain knowledge necessary to a reporting requirement until November

5, the date on w hich he called Sarah's parents to inform them of her "problem." But we cannot

conclude that he violated his reporting duty under the statute on that date or for the next week, whenhe, Dr. Harrison and Ginger Mabry had all concluded that more investigation of the "problem" was

necessary, and none of them knew of Siepert's involvement. Cl opton's acti ons were appropri ate

under th e statute. The duty to report was not tri ggered unti l Novem ber 11 or 12, and i

t was

discharged by Harrison and White.

CONCLUSION

Having resolved that the distric t co urt 's denial of qualified immunity on the constitutional

claim against Clopton was incorrect, as was his denial of judgment for Talkington and Cl opton on

the state law claims under the Family Code, we n eed not consider whether these appellants or

Harrison and Mabry are add it io nally entitled to immunity under § 21.912 of the Texas Education

Code. By finding it unnecessary to rule on this question, we do not endorse in any way the district

court's discussion of the relation between immunit y under § 21.912(b) and the reporting requirement

of the Texas Family Code.

For the foregoing reasons, the order of the district cou rt denying immunity to appellants

Cl opton and Talkington is REVERSED, and the case is REMANDED for judgment dismissing the

federal constitutional and state law claims against them.