* 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this opinion should not be published and is not precedent except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

--------------------

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
No. 99-21096

-2-

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
No. 99-21096

-3-

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.