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Lozano v. Baylor Univ.

United States District Court, W.D. Texas, Waco Division.
Sep 27, 2019
408 F. Supp. 3d 861 (W.D. Tex. 2019)

Opinion

6:16-CV-403-RP

09-27-2019

Dolores LOZANO, Plaintiff, v. BAYLOR UNIVERSITY, Art Briles, in His Individual Capacity, Ian McCaw, in His Individual Capacity, and The City of Waco, Texas, Defendants.

Sheila P. Haddock, Alexander S. Zalkin, Pro Hac Vice, Irwin M. Zalkin, Pro Hac Vice, The Zalkin Law Firm, P.C., San Diego, CA, for Plaintiff. Holly Gene McIntush, Thompson & Horton, LL, Thomas A. Nesbitt, Laura J. Goodson, Scott DeShazo, DeShazo & Nesbitt, LLP, Austin, TX, James E. Byrom, Lisa Ann Brown, Thompson & Horton LLP, Darrell L. Barger, Hartline Dacus Barger Dreyer LLP, Houston, TX, Leila Henderson Gary, Thompson & Horton, LLP, Thomas Phillip Brandt, Stephen D Henninger, Fanning, Harper, Martinson, Brandt & Kutchin, P.C., Dallas, TX, J. Reid Simpson, Hartline Dacus Barger Dreyer, LLP, Michael W. Dixon, Charles D. Olson, Haley & Olson, PC, Waco, TX, for Defendants.


Sheila P. Haddock, Alexander S. Zalkin, Pro Hac Vice, Irwin M. Zalkin, Pro Hac Vice, The Zalkin Law Firm, P.C., San Diego, CA, for Plaintiff.

Holly Gene McIntush, Thompson & Horton, LL, Thomas A. Nesbitt, Laura J. Goodson, Scott DeShazo, DeShazo & Nesbitt, LLP, Austin, TX, James E. Byrom, Lisa Ann Brown, Thompson & Horton LLP, Darrell L. Barger, Hartline Dacus Barger Dreyer LLP, Houston, TX, Leila Henderson Gary, Thompson & Horton, LLP, Thomas Phillip Brandt, Stephen D Henninger, Fanning, Harper, Martinson, Brandt & Kutchin, P.C., Dallas, TX, J. Reid Simpson, Hartline Dacus Barger Dreyer, LLP, Michael W. Dixon, Charles D. Olson, Haley & Olson, PC, Waco, TX, for Defendants.

ORDER

ROBERT PITMAN, UNITED STATES DISTRICT JUDGE

Now before the Court is Plaintiff Dolores Lozano's Second Amended Complaint, (2d Am. Compl., Dkt. 50), and Motions to Dismiss filed by Baylor University, (Baylor 3d Mot., Dkt. 58; Baylor Supp. Br., Dkt. 99), the City of Waco, Texas, (City Mot., Dkt. 60), and Ian McCaw, (McCaw Mot., Dkt. 61), as well as the parties' responsive briefing. Having considered the parties' submissions, the law, and the record in this case, the Court enters the following order.

I. BACKGROUND

Dolores Lozano filed this case against Baylor University ("Baylor") and the Baylor University Board of Regents ("the Board of Regents") on October 11, 2016. (Compl., Dkt. 1). Plaintiff's initial complaint alleged violations of Title IX of the Education Amendments Act of 1972 ("Title IX"), 20 U.S.C. § 1681, et seq., as well as the Texas common law doctrines of negligence and gross negligence. (Id. ¶¶ 7, 9). Her claims stemmed from multiple alleged assaults by Devin Chafin, then a student-athlete and member of Baylor's football team. (Id. ¶¶ 13–63).

On September 28, 2017, the Court granted Baylor's first motion to dismiss with respect to Lozano's Title IX claims, negligence claims, and gross negligence claims against Baylor. (Order, Dkt. 20). The Court allowed Lozano to file an amended complaint with respect to her claim against Baylor for negligent hiring, retention, and supervision. (Id. at 15). Lozano filed a First Amended Complaint naming only Baylor as a defendant on October 24, 2017, (Am. Compl., Dkt. 24), and Baylor filed another motion to dismiss, (2d Mot., Dkt. 29). Lozano then obtained new counsel. She requested reconsideration of the Court's order dismissing Lozano's Title IX claims, negligence claims, and gross negligence claims, (Mot. Reconsid., Dkt. 25), and sought leave to file a second amended complaint, (Mot., Dkt. 46). The Court ruled that Lozano was not entitled to reconsideration of its order; allowed Lozano to amend her complaint a third time to add Art Briles, Ian McCaw, and the City of Waco, Texas, as defendants; and dismissed Baylor's second motion to dismiss as moot. (See Order, Dkt. 49). Lozano filed her Second Amended Complaint on July 24, 2018. (2d Am. Compl., Dkt. 50). That complaint is now before the Court.

Dolores Lozano graduated from Baylor University in May 2014. (Id. ¶ 125). During Lozano's final semester, in March and April 2014, her then-partner Devin Chafin violently assaulted her three times. (Id. ¶¶ 103–06, 116, 121). Lozano alleges that Baylor, its former football coach Art Briles, former Athletic Director Ian McCaw, and the Waco Police Department knew about the abuse but did nothing to help her, in large part because Chafin was a member of the football team. (See id. ¶¶ 15, 17–18, 50, 166).

In addition to their personal relationship, Baylor football staff asked Lozano to tutor Chafin. (Id. ¶ 94). The date of this request is unclear. The sequence of events alleged in the Complaint suggests that Baylor running back coach Jeff Lebby ("Lebby") approached Lozano sometime after she and Chafin began dating in late 2012, but before the first assault in March 2014. (See id. ). Chafin's grades had slipped and his eligibility to play was in question. (Id. ). Lebby "told Lozano that she was a positive influence on Chafin ... [and] enlisted her to tutor Chafin." (Id. ). Lozano agreed and "became Chafin's de facto handler." (Id. ). Lozano first reported concerns about Chafin to Lebby, regarding Chafin's drug use, but Lebby took no action. (Id. ¶ 96).

When the first assault occurred on March 6, 2014, Chafin "slapped Lozano so hard she fell over the toilet," "repeatedly kicked her in the stomach," pushed her into his bedroom, causing her to fall onto the floor, and "choke[d] her until she could not breathe." (Id. ¶ 105). Lozano suffered physical injuries, including bruising on her neck, arm, side, and back. (Id. ¶ 106).

At least six Baylor staff and leadership were aware of the first assault. Lozano worked as a manager for the Baylor Acrobatics and Tumbling team. (Id. ¶ 110). Her coach La Prise Williams ("Williams") noticed Lozano's bruises. (Id. ). Williams reported the assault to Baylor Associate Athletic Director and "Senior Woman Administrator," Nancy Post ("Post"). (Id. ). Post "discourage[ed] Williams from getting involved, telling her that she had enough to do and that handling incidents like Lozano's was not Williams' responsibility." (Id. ¶ 111). Williams then turned to the Baylor team chaplain and Director of Sports Ministry, Wes Yeary ("Yeary"). Yeary met with Lozano, who shared the details of the assault and Chafin's abusive behavior. (Id. ¶ 113). Yeary told Lozano that she "deserved better" and offered her a self-help book. (Id. ). Chafin told his running back coach, Jeff Lebby ("Lebby"), about the assault. (Id. ¶¶ 108, 114). Lebby "told [Chafin] that he should not have laid his hands on Lozano" and "punished" Chafin with additional drills at football practice. (Id. ¶ 114). Chafin told Lozano that both Art Briles and then-President Ken Starr "were made aware of the assault." (Id. ¶ 115). Chafin told Lozano that "both Briles and Starr told him to stay away from her but took no further action." (Id. ).

A few weeks later, in early April 2014, Chafin assaulted Lozano again. (Id. ¶ 116). While several of Lozano's friends and Chafin's teammates were present, Chafin approached her in a restaurant parking lot. "Upset and angry, Chafin slammed Lozano's hand and arm against an open car window." (Id. ). One of Chafin's teammates pulled him away so that Lozano could leave. (Id. ). Lozano sought treatment for her arm at Baylor's on-campus health clinic. (Id. ¶ 117). She reported both assaults to the clinic and identified Chafin as her assailant. (Id. ). Clinic staff referred Lozano to the Baylor counseling center. (Id. ¶ 118). Lozano "attended several counseling sessions during which she shared the details of the verbal and physical abuse and the assaults." (Id. ). But after exhausting her allotment of free sessions, Lozano stopped going to counseling. (Id. ). "No one in the Baylor counseling center ever referred her to outside counseling or offered her any other resources." (Id. ). On April 9, 2014, Lozano's mother placed a series of telephone calls to various Baylor offices, seeking "to talk to someone about Chafin's assaults on her daughter." (Id. ¶ 119). She called the main Baylor number, the Director of Operations for Football, and the Office of the Dean for the College of Arts and Sciences. (Id. ). During one of the calls, an unnamed woman that she spoke with advised her that the football coaches would handle the situation. (Id. ). Lozano's mother eventually made contact with a coach, whom she believed to be Lebby, who asked her to provide photos of Lozano's injuries. (Id. ). She provided photos. (Id. ). She also exchanged text messages with assistant athletic director Colin Shillinglaw. (Id. ). According to Lozano's complaint, no further disciplinary action was taken by anyone at Baylor at that time. (See id. ¶ 127).

On April 11, 2014, Lozano reported the first and second assault to the Waco Police Department ("the Waco Police"). (Id. ¶ 120). Officers interviewed her and took photos of her arm. (Id. ). She also sent them photos from the first assault. (Id. ). One of her friends, who had witnessed the second assault, provided a statement. (Id. ). Lozano was told that an investigator would follow up with her, but she never heard from anyone. (Id. ). The police did not interview Chafin and no further investigation was conducted. (Id. ). Lozano called the Waco Police repeatedly, but her calls were not returned. (Id. ).

The parties also refer to the Waco Police as the "Waco PD" in some of the briefing.

The Court further details Lozano's factual allegations regarding the Waco Police below in Section IV(A), discussing her Section 1983 claims.

A few weeks later, Chafin assaulted Lozano a third time. After an argument in Chafin's apartment, Chafin "grabbed Lozano and forcibly slammed her to the ground." (Id. ¶ 121). Lozano reported the assault to Williams. (Id. ¶ 122). Around this time, as a result of the repeated assaults, Lozano began to feel "hopeless and overwhelmed." (Id. ¶ 123). She suffered stress and anxiety. (Id. ). Afraid and unable to concentrate, she sought extensions to complete her assignments and her grades declined. (Id. ). She graduated the following month and moved home to Houston. (Id. ¶ 124).

The following year, Lozano was assaulted a final time by Chafin's new girlfriend, while Chafin was present. (Id. ¶ 128). In January 2015, Chafin asked her to return some of his belongings. (Id. ). When Lozano met with him to return them, his new girlfriend was present. (Id. ). Chafin became "agitated" and Lozano attempted to leave. (Id. ). Chafin's new girlfriend then assaulted Lozano, pulling her hair down to the concrete, ripping her shirt, and beating Lozano, "telling [Lozano] she wished she would have killed her." (Id. ). Finally, Chafin pulled his girlfriend off. (Id. ). Lozano reported the girlfriend's assault to the Waco Police. (Id. ¶ 129). She gave a statement and informed the officers about the prior assaults by Chafin. (Id. ). One officer spoke with Lozano's mother by phone. (Id. ). The police took no further action. (Id. ). Several months later, when Lozano went to the police station to collect documentation for her medical records, she was told there was "nothing in the police report." (Id. ).

Later, when Lozano agreed to share her story with reporters, Lozano alleges that Waco Police spokesperson Sgt. Patrick Swanton "made false statements to the media in May 2016 in an effort to continue concealing its discriminatory actions against Lozano." (Id. ¶ 190).

Chafin continued to play football until March 2016, two years after Lozano's last semester, when he was suspended from the team following an unrelated criminal arrest. (Id. ¶ 132). He was later dismissed from the team on June 1, 2016. (Id. ¶ 136). Lozano alleges that as a result of Baylor's actions, she has suffered injuries including physical injury, emotional distress, physical manifestations of emotional distress, loss of enjoyment of life, loss of earnings and earning capacity, and expenses for medical and psychological treatment. (Id. ¶ 172).

Based on these allegations, Lozano asserts claims against Baylor, Art Briles, Ian McCaw, and the City of Waco. (2d Am. Compl, Dkt. 50). Against Baylor, she asserts Title IX claims and state law claims for common law negligence and negligent training and supervision. (Id. ¶¶ 152–61; 162–68; 170–72). Against Briles and McCaw, she asserts negligence and negligent training and supervision claims. (Id. ¶¶ 162–69; 170–72). Against the City of Waco, Lozano asserts an equal protection claim and a substantive due process claim pursuant to 42 U.S.C. § 1983 (" Section 1983") and the Fourteenth Amendment to the United States Constitution. (See id. ¶¶ 181–207). In particular, Lozano alleges that the Waco Police Department "had a custom, policy and practice of failing to properly record, process, and investigate reports of sexual assault and domestic violence against women," and that the Waco Police adopted this policy in coordination with Baylor. (See id. ¶¶ 50, 186, 197, 202).

On July 15, 2019, the Court confirmed that Lozano's post-reporting Title IX claim is time-barred, and that her heightened risk Title IX claim and common law negligence claim both remain live. (Order for Supp. Br. and Dismissing Claim, Dkt. 96). At the Court's request, the parties provided supplemental briefing on whether her heightened risk claim and negligence claim should be dismissed as either time-barred or for failure to state a claim. (See Lozano Supp. Br., Dkt. 98; Baylor Supp. Br., Dkt. 99; Lozano Supp. Resp., Dkt. 101; Baylor Supp. Resp., Dkt. 102).

Baylor, the City of Waco, and McCaw each filed motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). (Baylor 3d Mot., Dkt. 58; City Mot., Dkt. 60; McCaw Mot., Dkt. 61). Each Defendant challenges the sufficiency of her pleadings. They also assert that Lozano's claims are barred by the statute of limitations.

Defendant Art Briles has not filed a motion to dismiss.

II. STANDARD OF REVIEW

Pursuant to Rule 12(b)(6), a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In deciding a 12(b)(6) motion, a "court accepts ‘all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’ " In re Katrina Canal Breaches Litig. , 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit , 369 F.3d 464, 467 (5th Cir. 2004) ). "To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,’ but must provide the plaintiff's grounds for entitlement to relief—including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.’ " Cuvillier v. Taylor , 503 F.3d 397, 401 (5th Cir. 2007) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). That is, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ).

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 misconduct alleged." Id. "The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. A court ruling on a 12(b)(6) motion may rely on the complaint, its proper attachments, "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Dorsey v. Portfolio Equities, Inc. , 540 F.3d 333, 338 (5th Cir. 2008) (citations and internal quotation marks omitted). A court may also consider documents that a defendant attaches to a motion to dismiss "if they are referred to in the plaintiff's complaint and are central to her claim." Causey v. Sewell Cadillac-Chevrolet, Inc. , 394 F.3d 285, 288 (5th Cir. 2004). But because the court reviews only the well-pleaded facts in the complaint, it may not consider new factual allegations made outside the complaint. Dorsey , 540 F.3d at 338. "[A] motion to dismiss under 12(b)(6) ‘is viewed with disfavor and is rarely granted.’ " Turner v. Pleasant , 663 F.3d 770, 775 (5th Cir. 2011) (quoting Harrington v. State Farm Fire & Cas. Co. , 563 F.3d 141, 147 (5th Cir. 2009) ). "A motion to dismiss may be granted on a statute of limitations defense where it is evident from the pleadings that the action is time-barred, and the pleadings fail to raise some basis for tolling." Taylor v. Bailey Tool Mfg. Co. , 744 F.3d 944, 946 (5th Cir. 2014).

III. TITLE IX

Lozano alleges that Baylor's practices created a heightened risk of assault by football players for Lozano and other female students. (2d Am. Compl., Dkt. 50, ¶ 166). Baylor argues that Lozano has failed to state a plausible claim because allegations of physical assault do not implicate Title IX. (See Baylor Supp. Br., Dkt. 99; Baylor Supp. Resp., Dkt. 102). Lozano responds that a university discriminates under Title IX when it selectively enforces disciplinary rules based on gender stereotypes. (See Lozano Supp. Resp., Dkt. 101).

The heightened risk claim is Lozano's only live Title IX claim—the Court dismissed her post-reporting claim as conclusively time-barred. (Order, Dkt. 96, at 4–7). At the Court's request, the parties provided supplemental briefing on the heightened risk claim. (See Lozano Supp. Br., Dkt. 98; Baylor Supp. Br., Dkt. 99; Lozano Supp. Resp., Dkt. 101; Baylor Supp. Resp., Dkt. 102).

A. Legal Standard

As this Court has detailed in prior opinions, Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in all federally-funded educational programs. 20 U.S.C. § 1681(a). It provides:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Id. When Congress first passed Title IX more than forty years ago, it had two related objectives: first, Congress wanted to prevent federal funds from being used to support discriminatory practices; second, it wanted to provide individuals "effective protection against those practices." Cannon v. Univ. Chic. , 441 U.S. 677, 704, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) ; see also 118 Cong. Rec. 5730 (1972) (statement of Senator Birch Bayh) ("The amendment we are debating is a strong and comprehensive measure which I believe is needed if we are to provide women with solid legal protection as they seek education and training for later careers.... As a matter of principle, our national policy should prohibit sex discrimination at all levels of education."). When private universities like Baylor accept funding through various federal programs, such as enrolling students who receive federal funds to pay for their education, they become subject to the requirements of Title IX. See Nat'l Collegiate Athletic Ass'n v. Smith , 525 U.S. 459, 466, 119 S.Ct. 924, 142 L.Ed.2d 929 (1999).

Title IX is enforceable through an individual's private right of action and allows for the recovery of damages. Davis Next Friend LaShonda D. v. Monroe County Bd. of Educ. , 526 U.S. 629, 639, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (citing Cannon , 441 U.S. at 704, 99 S.Ct. 1946 and Franklin v. Gwinnett Cty. Public Schs. , 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) ). The recognition of this private right of action has given rise to two general avenues for Title IX claims—one for claims based on an official policy of discrimination and another for claims based on an institution's actual notice of and deliberate indifference to sexual harassment or assault. Here, Lozano asserts the first type of claim.

A plaintiff may assert a Title IX claim based on an institution's official policy of intentional discrimination. See Franklin , 503 U.S. at 75, 112 S.Ct. 1028 (distinguishing claims alleging "intentional discrimination" by an institution from claims seeking to hold an institution liable for the discriminatory acts of an individual); Gebser v. Lago Vista Indep. Sch. Dist. , 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) (distinguishing claims involving an "official policy" of discrimination from those seeking to hold an institution liable for the discriminatory acts of an individual). These claims typically allege a policy of sex discrimination by a school or university in admissions, scholarship administration, or athletic programming. See, e.g. , Pederson v. La. State Univ. , 213 F.3d 858, 879–82 (5th Cir. 2000) (identifying an intentional violation of Title IX after a university disbanded the women's fast-pitch softball team, despite female students' interest and ability in the sport, and noting that the proper test an intentional violation is whether an institution "intended to treat [students] differently on the basis of their sex").

Neither the Fifth Circuit nor the Supreme Court has directly addressed whether discrimination must be intentional to sustain a private right of action under Title IX. The Supreme Court has concluded, however, that Title VI, on which Title IX is patterned, prohibits only intentional discrimination. See Alexander v. Sandoval , 532 U.S. 275, 280–81, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) ; Fennell v. Marion Indep. Sch. Dist. , 804 F.3d 398, 408 (5th Cir. 2015). Most courts that have considered whether Title IX allows a disparate impact claim have held that it does not. See, e.g. , Nat'l Wrestling Coaches Ass'n v. Dep't of Educ. , 366 F.3d 930, 946 (D.C. Cir. 2004), abrogated on other grounds by Perry Capital LLC v. Mnuchin , 864 F.3d 591, 620 (D.C. Cir. 2017) ; Manley v. Tex. Southern Univ. , 107 F. Supp. 3d 712, 726 (S.D. Tex. 2015) ; Weser v. Glen , 190 F. Supp. 2d 384, 395 (E.D.N.Y. 2002), aff'd , 41 F. App'x 521 (2d Cir. 2002). The Court presumes without deciding that intentional discrimination is required for a Title IX claim. Here, Lozano characterizes Baylor's conduct as "intentional" in her discussion of Baylor's alleged negligence. (2d Am. Compl., Dkt. 50, ¶ 171). Taking the complaint as a whole, see Ashcroft , 556 U.S. at 698, 129 S.Ct. 1937, and because Lozano's negligence and Title IX claims arise from the same alleged conduct by Baylor, the Court construes this as an allegation that Baylor acted intentionally for Title IX purposes as well.

In evaluating such claims, courts must consider whether the defendant-institution's policy or custom inflicted the alleged injury. See Gebser , 524 U.S. at 291, 118 S.Ct. 1989 (locating an analogue to the Title IX jurisprudence in the municipal liability doctrine); see also Bd. Cty. Comm'rs Bryan Cty. v. Brown , 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (explaining that Plaintiff seeking to impose liability on a municipality under § 1983 must "identify a municipal ‘policy’ or ‘custom’ that caused the Plaintiff's injury"); Collins v. City of Harker Heights , 503 U.S. 115, 122, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (noting the necessity of analyzing whether execution of a municipal policy inflicted the injury). The Tenth Circuit overturned a lower court's grant of summary judgment on this basis, permitting Plaintiff to attempt to show at trial that the University of Colorado at Boulder was liable because their sexual assaults "arose out of an official school program" and were a natural consequence of that program. Simpson v. Univ. Colo. Boulder , 500 F.3d 1170, 1174–75 (10th Cir. 2007). A plaintiff must demonstrate the misconduct complained of was "not simply misconduct that happened to occur [at the school] among its students," but was in fact caused by an official policy or custom of the university. Id. at 1174. Liability cannot be based, for example, solely on a funding-recipient's "failure to promulgate and publicize an effective policy and grievance procedure for sexual harassment claims." Gebser , 524 U.S. at 291, 118 S.Ct. 1989.

B. Discussion

In her heightened risk claim, Lozano alleges that even before she arrived as a student, and before her own report of assault, Baylor's practices in handling student reports of physical and sexual assault by football players constituted a policy of intentional discrimination that "substantially increased" the risk that women, including Lozano, would be assaulted by members of the Baylor football team. (2d Am. Compl., Dkt. 50 ¶¶ 16-17; see id. 78-84, 86).

Baylor submits that allegations of physical assault by another student cannot implicate Title IX because physical assault is not discrimination "on the basis of sex." (Baylor Supp. Br., Dkt. 99, at 1). Baylor points to cases from various jurisdictions where courts have dismissed cases involving non-sexual student conduct. (Id. at 2–3 (citing Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist. , 647 F.3d 156, 165 (5th Cir. 2011) (finding "personal animus" between two female students, not sexual harassment); McClean v. Duke Univ. , 376 F. Supp. 3d 585, 600-01 (M.D.N.C. 2019) (finding that student failed to state Title IX claim where student alleged that university employee retaliated for student's report of rape by university employee's partner); Doe v. School Dist. No. 1 , 2019 WL 3425236, at *4 (D. Colo. July 30, 2019) (granting dismissal where allegations "do not suggest that Plaintiff was treated unfavorably because she is female; rather, they suggest that other students harassed her because they learned she had accused Student 1 of sexually assaulting her.") (appeal filed); K.T. v. Culver–Stockton Coll. , 2016 WL 4243965 at *7-8 (E.D. Mo., Aug. 11, 2016), aff'd , 865 F.3d 1054 (8th Cir. 2017) (rejecting claim that college "knew or should have known of the propensity of college students to utilize alcohol and to become involved in assaultive behavior"); Frazer v. Temple Univ. , 25 F. Supp. 3d 598, 613–14 (E.D. Pa. 2014) (finding university could not have been deliberately indifferent to sex discrimination because university had notice only that male alleged assailant had previously physically assaulted his male roommate))).

However, none of these cases holds as a matter of law that only sex discrimination in the form of student-to-student sexual assault is actionable under Title IX. Several are post-reporting cases that do not govern the claim before the Court. And in the two heightened risk cases that Baylor does cite, there were no allegations that the respective schools were aware of prior alleged assaults that could give rise to a heightened risk. See K.T. , 2016 WL 4243965 at *8 (dismissing claim where "Plaintiff makes no factual allegations that the College was aware of invited high-school aged recruits, visitors or College students being assaulted in similar circumstances, or that the College was aware of any prior allegations of sexual assault by defendant A.B."); Frazer , 25 F. Supp. 3d at 613–14 (dismissing claim where university could not have acted with deliberate indifference to sex discrimination because university had notice only that male alleged assailant had previously physically assaulted his male roommate))).

Moreover, the relevant question under Title IX is not whether a student assaulted or harassed another student in a sexual manner. The question is whether a school "intended to treat [students] differently on the basis of their sex." Pederson , 213 F.3d at 879–82. In Pederson , the Fifth Circuit identified an intentional violation of Title IX after a university disbanded the women's fast-pitch softball team. The Fifth Circuit explained that "[i]f an institution makes a decision not to provide equal athletic opportunities for its female students because of paternalism and stereotypical assumptions about their interests and abilities, that institution intended to treat women differently because of their sex." Pederson , 213 F.3d at 880.

Similar reasoning can apply here. If a university makes a decision to enforce disciplinary rules selectively because of "stereotypical assumptions" about male students' conduct based on their gender, which has the effect of denying access to certain university opportunities and benefits for female students because of "stereotypical assumptions" about women's conduct, it is plausible that that institution intended to treat women differently because of their sex.

As Lozano notes, courts in other jurisdictions have found Title IX claims plausible based on selective enforcement of school disciplinary rules based on gender stereotypes. See, e.g., Gruver v. La. through Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll. , No. CV 18-772-SDD-EWD, 401 F.Supp.3d 742, 747–48, 2019 WL 3281090, at *3 (M.D. La. July 19, 2019) (denying motion to dismiss where plaintiff alleged that "LSU's purposeful disregard of Greek male hazing complaints created a greater risk of danger for males in fraternities as compared to females in sororities") (appeal filed); J.H. v. Sch. Town of Munster , 160 F. Supp. 3d 1079, 1086, 1090–92 (N.D. Ind. 2016) (denying summary judgment, finding genuine issue of material fact as to whether school purposefully ignored complaints of hazing in male swimming program based on gender stereotypes, for example, that "boys will be boys").

The Court finds that Lozano has plausibly alleged that Baylor's selective enforcement of reports of domestic abuse and sexual assault created a heightened risk of assault, which subjected her to a sexually discriminatory education environment under Title IX. Lozano's heightened risk claim fits squarely within the official-policy rubric previously identified by the Supreme Court.

Specifically, Lozano alleges that from 2012 to 2015, before and during the period when Chafin assaulted her three times, Baylor had a policy of "no or little discipline for football players" through "a separate system of discipline for the football team" that "involved multiple coaches and administrators" and "insulate[d] football players from appropriate disciplinary consequences," which "posed a risk to campus safety" and "substantially increased" the risk that women, including Lozano, would be assaulted by members of the Baylor football team. (2d Am. Compl., Dkt. 50 ¶¶ 16–17, 78, 80).

Lozano alleges that Baylor had a policy of "interference with female students' access to help based on gender and gender stereotypes," (id. ¶ 79); a policy of not reporting allegations of sexual assault and domestic violence," (id. ¶ 81); a policy of "diverting cases away from student conduct or criminal processes, (id. ¶ 82); a policy of not training staff or students about Title IX requirements and resources, (id. ¶ 83); and a policy of accepting student-athletes with histories of violence against women without appropriate due diligence or character references, (id. ¶ 84). She alleges that "[b]y instituting and maintaining an "ad hoc, internal system of discipline" for football players, including Chafin, and by conducting untrained, flawed, and biased investigations, Baylor "reinforced the perception that rules applicable to other students are not applicable to football players" and thereby affirmatively increased the likelihood that Lozano, and other female students, would be assaulted by football players, who knew they were unlikely to face any repercussions from their actions." (Id. ¶ 166).

Lozano alleges that Baylor was "well aware of the risk its recruiting practices and football culture posed to its female students." (Id. ¶ 89; see id. ¶ 88). From 2010 to 2014, prior to her own assault, football coaches and athletic department staff received at least five reports of rape or physical assault by a member of the football team, but took no remedial action. (Id. ¶ 90). She asserts that "Baylor's failure to promptly and appropriately investigate and respond to these assaults fostered a culture and created a condition that substantially increased Lozano's chances of being assaulted along with the numerous other young women who were victimized by Baylor football players," (id. ¶ 17), because members of the football team "believed they were insulated from administrative or criminal consequences." (Id. ¶ 86). As a result of Baylor's actions, Lozano alleges she has suffered injuries including physical injury by Chafin, emotional distress, physical manifestations of emotional distress, loss of enjoyment of life, loss of earnings and earning capacity, and expenses for medical and psychological treatment. (Id. ¶¶ 106, 172).

These alleged facts, construed as true, raise a right to relief above the speculative level that Baylor's practices in handling student reports of physical and sexual assault by football players constituted a policy of intentional discrimination and created a heightened risk of physical or sexual assault for female students, thereby causing Lozano's injuries. The Court is satisfied that Lozano has met her burden under Rule 12(b)(6) with respect to the substance of her claim. The Court will consider whether Lozano's Title IX claim is time-barred below, in Section VI(A).

IV. SECTION 1983 CLAIMS

Lozano alleges that the Waco Police Department had a policy of cooperating with Baylor University to deny assistance to women who reported physical and sexual assault, in violation of her constitutional rights of Equal Protection and Due Process pursuant to 42 U.S.C. § 1983 and the Fourteenth Amendment to the U.S. Constitution. (2d Am. Compl., Dkt. 50 ¶¶ 181–207). The City of Waco moves to dismiss her claims, arguing that they are barred by the general rule that failure to protect a citizen from private violence does not give rise to a constitutional claim. (City Mot. Dismiss, Dkt. 60, 9–19). Lozano filed a response, (Dkt. 74), and the City filed a reply, (Dkt. 75). The Court will further detail Lozano's specific claims against the Waco Police Department before turning to the motion to dismiss.

A. Factual Claims

Lozano alleges that when she reported Chafin's first and second assault to the Waco Police Department on April 11, 2014, officers interviewed her, took photos of her arm, and took a statement from one of her friends. (2d Am. Compl., Dkt. 50 ¶ 120). She also sent them photos from the first assault. (Id. ). An officer told Lozano that an investigator would follow up with her, but she never heard from anyone. (Id. ). The police did not interview Chafin and no further investigation was conducted. (Id. ). Lozano called the Waco Police repeatedly, but her calls were not returned. (Id. ). A few weeks later, Chafin assaulted Lozano a third time. (Id. ¶ 121).

The following year in January 2015, Lozano called the Waco Police again when Chafin's new girlfriend assaulted her, with Chafin present, after Chafin asked Lozano to return some of his belongings. (Id. ¶ 129). Lozano gave a statement and informed the officers about the prior assaults by Chafin. (Id. ). One officer spoke to Lozano's mother by phone. (Id. ). The police took no further action. (Id. ). Several months later, when Lozano went to the police station to collect documentation for her medical records, she was told there was "nothing in the police report" about the final assault. (Id. ).

Based on her own interactions with the Waco Police, investigative media reports, and the Pepper Hamilton Findings of Fact, Lozano alleges that the Waco Police had an institutional custom, policy, and practice of "informing Baylor of misconduct by male football players before and/or in lieu of taking action," and "either refusing to undertake investigations or suspending investigations in an effort to conceal information from the public." (Id. ¶ 187). As part of this policy, she alleges that "Baylor athletic staff, Baylor Police Department and [the] Waco PD acted in concert to keep any reports of violence committed by football players from going outside the athletic department," (id. ¶ 50), that "Waco PD cooperated with Baylor to ‘keep it quiet’ " and placed cases in " ‘suspended’ status to shield reports of sexual assault and domestic violence involving [football] players from public view," (id. ¶ 51), and that the Waco Police maintained a practice of "failing to properly record, process, and investigate reports of sexual assault and domestic violence against women," (id. ¶ 186, 197).

Lozano points to three publicly-reported cases in which the Waco Police allegedly failed to investigate women's reports of sexual assault against Baylor football players and concealed the reports from public disclosure. (2d Am. Compl. Dkt. 50 ¶¶ 45-46, 55-57 (public reports by other women regarding four other Baylor football players)). See, e.g. , "Police records detail several more violence allegations against Baylor football players," ESPN.com (May 19, 2019), available at https://www.espn.com/espn/otl/story/_/id/15562625/waco-police-records-reveal-additional-violence-allegations-baylor-football-players.

Lozano further alleges that the Waco Police Department "routinely intentionally disregarded complaints of sexual assault and domestic violence and chose not to even investigate women's claims of domestic violence based on gender and gender-stereotypes" (id. ¶ 151), "routinely discouraged, manipulated and intimidated women from pursuing complaints of domestic violence," (id. ¶ 149), and "routinely failed ... to inform victims [of sexual assault and domestic violence], including Lozano, of options for protective orders or other measures to ensure their safety," (id. ¶ 200). She alleges that "Waco PD's actions and inactions demonstrate a continuing, widespread and persistent pattern of constitutional misconduct that constitutes an unofficial policy, custom or practice," (id. ¶ 194), and that the police acted "willfully" and "knowingly," (id. ¶ 204), with the knowledge and approval of former police chief Brent Stroman, (id. ¶ 205).

Finally, Lozano alleges that Waco Police spokesperson Sgt. Patrick Swanton "made false statements to the media in May 2016 in an effort to continue concealing its discriminatory actions against Lozano." (Id. ¶ 190). Her story first became public when ESPN reporters contacted her in May 2016 after receiving a copy of Lozano's April 2014 police report following a public information request. (Id. ¶ 134). Lozano cooperated with the reporters and ESPN included her story in a report released on May 17, 2016. (Id. ). On June 7, 2016, the local television station KWTX ran a story that included statements attributed to Waco Police Sgt. Patrick Swanton, who allegedly told a reporter that when Lozano reported the second assault, Lozano told police "she had not told anyone" about the assault, refused a protective order, refused to let officers take pictures of the bruises on her arm because she "didn't have time," that she never showed up to an appointment the following day, and that she never answered officers' follow-up phone calls. (Id. ¶ 138). Lozano alleges that the officer lied to KWTX in a deliberate effort to discredit her story. (Id. ).

Lozano alleges that "Waco PD's failure to properly investigate and take action on reports of sexual assault and domestic violence, including Lozano's report, emboldened and empowered assailants, including Chafin, to repeat their crimes and rendered victims, including Lozano, more vulnerable to danger." (Id. ¶ 199; see id. ¶ 201(f)).

B. Legal Standard

A municipality may be liable under Section 1983 where "(1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violation of a constitutional right." Hicks-Fields v. Harris Cty., Texas , 860 F.3d 803, 808 (5th Cir. 2017), cert. denied sub nom. Hicks-Fields v. Harris Cty., Tex. , ––– U.S. ––––, 138 S. Ct. 510, 199 L.Ed.2d 387 (2017) (citations omitted); see also Monell v. Dep't. of Social Services , 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A municipality cannot be vicariously liable under Section 1983. Id. Rather, the allegedly unconstitutional action must "implement[ ] or execute[ ] a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id. "Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law." Id. (citing Connick v. Thompson , 563 U.S. 51, 61, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) ).

Under the third category—liability for official policy arising from a municipality's practices—a plaintiff must show two things. First, "[a] persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy." Id. (citing Webster v. City of Hous. , 735 F.2d 838, 841 (5th Cir. 1984) ). Second, a plaintiff must show actual or constructive knowledge of that custom by the municipality or the official who had policymaking authority. Id. (cleaned up). In the Fifth Circuit, a plaintiff may show actual knowledge "by such means as discussions at council meetings or receipt of written information." Id. (quoting Bennett v. City of Slidell , 728 F.2d 762, 768 (5th Cir. 1984) ). "Constructive knowledge may be attributed to the governing body on the ground that it would have known of the violations if it had properly exercised its responsibilities, as, for example, where the violations were so persistent and widespread that they were the subject of prolonged public discussion or of a high degree of publicity." Id. at 808–9.

"Without an underlying constitutional violation, an essential element of municipal liability is missing." Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys , 675 F.3d 849, 867 (5th Cir. 2012) (citing Becerra v. Asher , 105 F.3d 1042, 1048 (5th Cir. 1997) ; see also Collins v. City of Harker Heights, Tex. , 503 U.S. 115, 120, 112 S.Ct. 1061, 117 L.Ed.2d 261, (1992) ). " Section 1983 does not create substantive rights; rather, it merely provides civil remedies for deprivations of rights established under the Constitution or federal laws." Hernandez ex rel. Hernandez v. Texas Dep't of Protective & Regulatory Servs. , 380 F.3d 872, 879–80 (5th Cir. 2004) (citing Felton v. Polles , 315 F.3d 470, 479 (5th Cir. 2002) ( Section 1983 "is not itself a source of substantive rights; instead, it provides a method for vindicating federal rights elsewhere conferred.")).

A constitutional violation arises from a municipality's failure to protect an individual from private violence only in very limited cases. In DeShaney v. Winnebago County , the Supreme Court held that because the language of the due process clause limits rather than compels a state's power to act, "the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." DeShaney v. Winnebago Cty. Dep't of Soc. Servs. , 489 U.S. 189, 196, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (holding that county had no due process obligation to remove child from home of father even after repeated reports of physical abuse). The Supreme Court added in a footnote: "A state may not, of course, selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause." Id. at 193 n. 3, 109 S.Ct. 998 (citing Yick Wo v. Hopkins , 118 U.S. 356, 374, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) ). Further, "in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals." DeShaney , 489 U.S. at 198, 109 S.Ct. 998. The Court addresses the subsequent equal protection and due process case law in turn.

C. Equal Protection

1. Legal Standard

The Fifth Circuit has cautioned that "the Equal Protection Clause should not be used to make an end-run around the DeShaney principle that there is no constitutional right to state protection for acts carried out by a private actor." Beltran v. City of El Paso , 367 F.3d 299, 304 (5th Cir. 2004) (citing McKee v. City of Rockwall , 877 F.2d 409, 413 (5th Cir. 1989) (affirming summary judgment where plaintiff offered no probative evidence of alleged policy of discouraging arrests in domestic violence cases)). However, "a State may not ... selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause." Beltran , 367 F.3d at 304 (quoting DeShaney , 489 U.S. at 193 n. 3, 109 S.Ct. 998 ). The Fifth Circuit has "recently ... acknowledged that certain intentionally discriminatory policies, practices, and customs of law enforcement with regard to domestic assault and abuse cases may violate the Equal Protection Clause under the DeShaney footnote." Beltran , 367 F.3d at 304 (citing Shipp v. McMahon , 234 F.3d 907, 914 (5th Cir. 2000) (adopting an objective standard to evaluate such claims), overruled in part on other grounds by McClendon , 305 F.3d at 328–29 ). Accordingly, in the Fifth Circuit, a plaintiff asserting a gender-based equal protection challenge to a law enforcement policy must show: "(1) the existence of a policy, practice, or custom of law enforcement to provide less protection to victims of domestic assault than to victims of other assaults; (2) that discrimination against women was a motivating factor; and (3) that the plaintiff was injured by the policy, custom or practice." Beltran , 367 F.3d at 304–05 (quoting Shipp , 234 F.3d at 914 ). To show that discrimination was a "motivating factor," a plaintiff must show that the law enforcement policy is "the product of invidious discrimination." Id. Without a showing of intent, "statistical evidence showing disproportionate impact ... is insufficient to sustain an equal protection claim." Id. Finally, under the third element, "an equal protection plaintiff must show that her injuries are the result of law enforcement ‘inaction or conduct pursuant to invidious policies.’ " Beltran , 367 F.3d at 306. The causation requirement is "crucial to ensure that law enforcement officials are not held to account for ‘generalized harms that are not traceable to their ... policies’ or for injuries that ‘are solely attributable to the perpetrators of the underlying domestic assault.’ " Id. (quoting Shipp , 234 F.3d at 914 ).

2. Discussion

While the Court appreciates the gravity of Lozano's factual allegations regarding her equal protection claims, Lozano alleges no specific facts to show that intentional discrimination against women was a motivating factor behind the Waco Police Department's policies.

Lozano offers two allegations addressing intent. She states that "Waco PD routinely intentionally disregarded complaints of sexual assault and domestic violence and chose not to even investigate women's claims of domestic violence based on gender and gender-stereotypes." (2d Am. Compl., Dkt. 50 ¶ 151 (emphasis added)). Further, she submits that "Waco PD's unlawful actions were committed willfully, knowingly and with specific intent to deprive Lozano of her constitutional rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution." (Id. ¶ 192 (emphasis added)). Although it is possible to speculate or infer from the alleged policies—such as "suspending investigations in an effort to conceal information from the public," (id. ¶ 187), or "act[ing] in concert" with Baylor athletic staff "to keep any reports of violence committed by football players from going outside the athletic department" (id. ¶ 50)—that the Waco police were motivated at least in part by an indifference to women's suffering that amounted to intentional discrimination, the Court cannot rely on speculation. A plausible claim must "raise a right to relief above the speculative level." Cuvillier , 503 F.3d at 401 (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). The Court will grant the City's motion to dismiss with respect to Lozano's equal protection claim.

D. Substantive Due Process

1. Legal Standard

Following DeShaney , "[t]here is a recognized substantive due process right for individuals to be free from bodily harm caused by the state, but as a general rule, there is no constitutional duty that requires state officials to protect persons from private harms." Kovacic v. Villarreal , 628 F.3d 209, 213 (5th Cir. 2010) (citing DeShaney , 489 U.S. at 189, 109 S.Ct. 998 ). "This general rule is not absolute: in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals." McClendon v. City of Columbia , 305 F.3d 314, 324 (5th Cir. 2002) (citing DeShaney , 489 U.S. at 198, 109 S.Ct. 998 ). To state a claim for a substantive due process violation under Section 1983, plaintiffs must demonstrate:

For example, a "special relationship" or a "state-created danger" may impose affirmative duties on a state. McClendon , 305 F.3d at 324 (citing DeShaney , 489 U.S. at 198, 109 S.Ct. 998 ). The Fifth Circuit has recognized a special relationship "[w]hen the state, through the affirmative exercise of its powers, acts to restrain an individual's freedom to act on his own behalf ‘through incarceration, institutionalization, or other similar restraint of personal liberty.’ " Id. (quoting DeShaney , 489 U.S. at 200, 109 S.Ct. 998 ).
Although some circuits have adopted the state-created danger rule, the Fifth Circuit has not yet determined whether a state official may be constitutionally liable under the state-created danger theory of liability. See McClendon v. City of Columbia , 305 F.3d 314, 325 (5th Cir. 2002) (citations omitted); see also Breen v. Texas A & M Univ. , 494 F.3d 516, 518 (5th Cir. 2007) (withdrawing opinion in part for rehearing, where withdrawn portion held that Fifth Circuit recognized the state-created danger theory). The Fifth Circuit has explained that although "we have not yet determined whether a state official has a similar duty to protect individuals from state-created dangers ... Regardless of the theory of liability that a plaintiff is pursuing, in order to state a viable substantive due process claim the plaintiff must demonstrate that the state official acted with culpability beyond mere negligence." McClendon , 305 F.3d 314, 325. More recently, in Stukenberg , the Fifth Circuit did not explicitly adopt or even use the words "state-created danger," but affirmed in part the entry of a permanent injunction to remedy alleged substantive due process violations by state Family and Protective Services based on the "state created danger" line of cases. See M. D. by Stukenberg v. Abbott , 907 F. 3d 237, 248, 271 (5th Cir. 2018). Here, the Court follows the rule in Stukenberg and McClendon that "[r]egardless of the theory of liability that a plaintiff is pursuing, in order to state a viable substantive due process claim the plaintiff must demonstrate that the state official acted with culpability beyond mere negligence." McClendon , 305 F.3d 314, 325 ; see also Stukenberg , 907 F.3d at 252.

1) they were deprived of a cognizable constitutional right, see Rios v. City of Del Rio , 444 F.3d 417, 425 (5th Cir. 2006) ; 2) the State acted with "deliberate indifference" to the protected right, see Hernandez v. Tex. Dep't of Protective & Regulatory Servs. , 380 F.3d 872, 880 (5th Cir. 2004) ; and 3) the policies or practices complained of were the direct cause of the constitutional deprivation,

see Piotrowski v. City of Houston , 237 F.3d 567, 578 (5th Cir. 2001).

Stukenberg v. Abbott , 907 F.3d 237, 248 (5th Cir. 2018). Deliberate indifference is "a significantly high burden for plaintiffs to overcome." Stukenberg , 907 F.3d at 251–52 (quoting Hernandez v. Tex. Dep't of Protective & Regulatory Servs. , 380 F.3d 872, 880 (5th Cir. 2004) ). "To act with deliberate indifference, a state actor must consciously disregard a known and excessive risk to the victim's health and safety." Id. at 252 (citations omitted). A municipal defendant "must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [it] must also draw that inference." Id. (citations omitted). This requires "a degree of culpability beyond mere negligence or even gross negligence; it ‘must amount to an intentional choice, not merely an unintentionally negligent oversight.’ " Id. (quoting Rhyne v. Henderson Cty. , 973 F.2d 386, 392 (5th Cir. 1992). A state actor is not deliberately indifferent if it is aware of a substantial risk of serious harm and "responds reasonably ... even if the harm ultimately was not averted." Id. (citing Farmer v. Brennan , 511 U.S. 825, 844, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). "The deliberately indifferent state of mind can be inferred ‘from the fact that the risk of harm is obvious.’ " Id. at 253 (citing Hope v. Pelzer , 536 U.S. 730, 737, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) ; Farmer , 511 U.S. at 842, 114 S.Ct. 1970 ). "If the risk of severe abuse is sufficiently apparent, a court is entitled to find that the State was deliberately indifferent." Id. (citing Hernandez , 380 F.3d at 881 ).

2. Discussion

The City of Waco characterizes Lozano's claim as an ordinary domestic assault case that cannot establish a substantive due process claim under any of the exceptions to DeShaney. (See City Mot. Dismiss, Dkt. 60, at 15–19; id. at 16 ("Plaintiff is essentially complaining that Waco P.D. failed to investigate and arrest Chafin for her protection.")). But the City does not address Lozano's allegation that the Waco Police actively cooperated with Baylor University to conceal alleged criminal conduct by student-athletes. The Court finds that Lozano has stated a plausible substantive due process claim, for the following reasons.

a. Municipal Liability for an Official Policy

To allege liability for official policy arising from a municipality's practices, a plaintiff must allege (1) a "persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy," and (2) actual or constructive knowledge of that custom by the municipality or the official who had policymaking authority. Hicks-Fields , 860 F.3d at 808 (citing Webster , 735 F.2d at 841 ).

Lozano alleges multiple official policies—in particular, Waco Police policies of "failing to properly record, process, and investigate reports of sexual assault and domestic violence against women," (2d Am. Compl., Dkt. 50 ¶¶ 186, 197), and "informing Baylor of misconduct by male football players before and/or in lieu of taking action," and "either refusing to undertake investigations or suspending investigations in an effort to conceal information from the public," (id. ¶ 187). She alleges that these actions were "continuing, widespread, and persistent," (id. ¶ 194), and illustrates this with her own repeated experiences with the Waco Police as well as publicly reported experiences of other women. (See 2d Am. Compl., Dkt. 50, ¶¶ 120-21 (Lozano's first report), ¶ 129 (Lozano's second report), ¶¶ 138-39, 147 (alleged false statements to media by Waco police officer regarding Lozano's case); ¶¶ 45-46, 55-57 (public reports by other women regarding four other Baylor football players)). Lozano also alleges that the Waco Police Department maintained these policies with the knowledge and approval of former police chief Brent Stroman (Id. ¶ 205).

These claims plausibly allege both that the Waco Police Department maintained these policies through "practices so persistent and widespread as to practically have the force of law," and that the police chief with final policymaking authority had "actual or constructive knowledge of that custom." See Hicks-Fields , 860 F.3d at 808 (citing Connick , 563 U.S. at 61, 131 S.Ct. 1350 ).

Additionally or alternatively, given the allegation of public knowledge of similar claims regarding Baylor University and the Waco Police, see supra n.7, liability is also plausible on a theory of constructive municipal knowledge, where "the governing body ... would have known of the violations if it had properly exercised its responsibilities, as, for example, where the violations were so persistent and widespread that they were the subject of prolonged public discussion or of a high degree of publicity." Hicks-Fields , 860 F.3d at 808–9.

b. Substantive Due Process Allegations

To state a claim for a substantive due process violation based on that municipal policy, Lozano must plausibly allege that (1) she was deprived of a cognizable constitutional right; (2) the Waco Police Department acted with "deliberate indifference" to the protected right; and (3) the policies or practices complained of were the direct cause of the constitutional deprivation. See Stukenberg , 907 F.3d at 248. Deliberate indifference is "a significantly high burden for plaintiffs to overcome." Id. at 251–52 (quoting Hernandez , 380 F.3d at 880 ).

1. Deprivation of a Cognizable Constitutional Right

To state a claim for a substantive due process violation under Section 1983, Lozano must first show that she was deprived of a cognizable constitutional right. Stukenberg , 907 F.3d at 248 (citing Rios , 444 F.3d at 425 ). "[T]he Fourteenth Amendment does not entitle plaintiffs to receive optimal treatment and services." Id. at 251. But the Fifth Circuit has recognized that certain minimum rights of "bodily integrity" or "personal security" are substantive due process rights. Id. at 249 ("Though the precise contours of "personal security" and "reasonably safe living conditions" have yet to be fleshed-out at length, it is clear that foster children are, at minimum, entitled to protection from physical abuse and violations of bodily integrity."). Here, Lozano alleges that the Waco Police Department violated her right to personal security and bodily integrity. (2d Am. Compl., Dkt. 50 ¶ 196). Specifically, she alleges that when she reported Chafin's first and second assault to the Waco Police Department on April 11, 2014, officers interviewed her, took photos of her arm, and took a statement from one of her friends, and told her that an investigator would follow up with her, but she never heard from anyone. (Id. ¶ 120). The police did not interview Chafin and no further investigation was conducted. (Id. ). Lozano called the Waco Police repeatedly, but her calls were not returned. (Id. ). A few weeks later, Chafin assaulted Lozano a third time. (Id. ¶ 121). This physical assault adequately alleges that Lozano was deprived of bodily integrity or personal security.

2. Deliberate Indifference

Second, Lozano must show that a state actor was deliberately indifferent to her protected right. Stukenberg , 907 F.3d at 248 (citing Hernandez , 380 F.3d at 880 ). The City argues that that "[t]he allegations regarding the two interactions with the police 8-9 months apart do not rise to the level of egregiousness to support a Substantive Due Process claim," but the City does not say precisely how Lozano's pleadings fail to meet the test for deliberate indifference. (Mot. Dismiss, Dkt. 60, at 18).

"To act with deliberate indifference, a state actor must consciously disregard a known and excessive risk to the victim's health and safety." Stukenberg , 907 F.3d at 252 (citations omitted). A municipal defendant "must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [it] must also draw that inference." Id. (citations omitted). Lozano alleges that the Waco Police were aware of the risk that that Chafin could assault Lozano again once she reported that Chafin had assaulted her twice. In a situation of domestic abuse or intimate partner violence, there is also a risk of escalating violence. It is plausible that even if the risk of continued or escalating violence was not actually known to the Waco Police, it was obvious. "The deliberately indifferent state of mind can be inferred ‘from the fact that the risk of harm is obvious.’ " Stukenberg , 907 F.3d at 253 (citing Hope , 536 U.S. at 737, 122 S.Ct. 2508 ; Farmer , 511 U.S. at 842, 114 S.Ct. 1970 ). "If the risk of severe abuse is sufficiently apparent, a court is entitled to find that the State was deliberately indifferent." Id. (citing Hernandez , 380 F.3d at 881 ).

Even if the state-created danger test were applicable here, see supra n.8, Lozano alleges facts that would plausibly meet the elements of that standard because she alleges that the Waco Police were aware of the specific risk that Chafin posed to Lozano, and that he had already assaulted her twice in a period of weeks. See Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys , 675 F.3d 849, 865 (5th Cir. 2012) ("[E]ven if it is assumed that the state-created-danger theory applies, liability exists only if the state actor is aware of an immediate danger facing a known victim." (citing Lester v. City of Coll. Station , 103 Fed. Appx. 814, 815–16 (5th Cir. 2004) ; Saenz v. Heldenfels Bros., Inc. , 183 F.3d 389, 392 (5th Cir. 1999) )).

Under the DeShaney framework, a woman who reports domestic abuse to the police but receives no assistance and is assaulted again is unable to state a substantive due process claim, even though the risk of continued abuse may be obvious. This is because there is no Section 1983 liability arising from harm by a private actor where a few individual officers fail to act, see Hicks-Fields , 860 F.3d at 808, and because a police custom, practice, or policy that is merely "ineffective" is generally not unconstitutional unless police knowingly and "affirmatively plac[e] an individual in a position of danger, effectively stripping a person of her ability to defend herself, or cutting off potential sources of private aid." See Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys , 675 F.3d 849, 866 (5th Cir. 2012) ; Piotrowski , 237 F.3d at 585 (quotations and citations omitted).

Lozano's case is plausibly different because she alleges that the Waco Police Department itself—not a merely a few rogue officers—had an institutional custom, policy, and practice of "informing Baylor of misconduct by male football players before and/or in lieu of taking action," and "either refusing to undertake investigations or suspending investigations in an effort to conceal information from the public." (2d Am. Compl., Dkt. 50 ¶ 187). As part of this policy, she alleges that "Baylor athletic staff, Baylor Police Department and [the] Waco PD acted in concert to keep any reports of violence committed by football players from going outside the athletic department," (id. ¶ 50), that "Waco PD cooperated with Baylor to ‘keep it quiet’ " and placed cases in " ‘suspended’ status to shield reports of sexual assault and domestic violence involving [football] players from public view," (id. ¶ 51), and that the Waco Police maintained a practice of "failing to properly record, process, and investigate reports of sexual assault and domestic violence against women," (id. ¶¶ 186, 197). Lozano alleges not merely an ineffective or ill-designed practice—but a police policy that the Waco Police knowingly adopted in cooperation with Baylor University to conceal allegations of criminal conduct against student-athletes. (See also id. ¶¶ 201(e)-(f), 204). Further, these allegations are consistent with the alleged conduct of every member of the Waco Police Department that Lozano interacted with—the officers who handled her first report in April 2014, the two officers who handled her second report in January 2015, and the spokesman who allegedly gave false information to the media in order to discredit her story. (See 2d Am. Compl., Dkt. 50, ¶¶ 120-21, 129, 138-39, 147). These allegations would indicate that the Waco Police made "an intentional choice" to disregard the risk to Lozano and other women who reported assaults by Baylor student-athletes, "not merely an unintentionally negligent oversight.' " See Stukenberg , 907 F.3d at 252 (quoting Rhyne , 973 F.2d at 392 ). If the Waco Police did cooperate with Baylor, this may have also "cut[ ] off potential sources of private aid" to Lozano from the university, which would further evidence "culpable knowledge and conduct" by the Waco Police. See Piotrowski , 237 F.3d at 585 (quoting Johnson v. Dallas Indep. Sch. Dist. , 38 F.3d 198, 201 (5th Cir. 1994) ).

Neither party points to case law from any jurisdiction where a plaintiff alleged that police cooperated with a third-party to conceal allegations of criminal conduct. Further, the City does not address Lozano's allegation that the Waco Police actively cooperated with Baylor University to conceal alleged criminal conduct by student-athletes. The Court concludes that Lozano's pleadings plausibly allege that the Waco Police Department was deliberately indifferent to the known risk that Chafin could assault her again.

3. Causation

Third and finally, a substantive due process plaintiff must allege that the challenged policies or practices "were the direct cause of the constitutional deprivation." Stukenberg , 907 F.3d at 248 (citing Piotrowski , 237 F.3d at 578 ). "This connection must be more than a mere ‘but for’ coupling between cause and effect." Id. at 253 (citing Fraire v. City of Arlington , 957 F.2d 1268, 1281 (5th Cir. 1992) ).

Accordingly, Lozano's "but for" allegation does not properly allege causation for this claim. (See 2d Am. Compl., Dkt. 50 ¶ 202 ("But for Waco PD's actions creating the danger, Lozano may not have been assaulted [the third time] at all.")). However, Lozano offers other theories of causation. She alleges that the Waco Police's "failure to properly investigate and take action on reports of sexual assault and domestic violence, including Lozano's report, emboldened and empowered assailants, including Chafin, to repeat their crimes and rendered victims, including Lozano, more vulnerable to danger," (id. ¶ 199), and that Waco Police's policy of "retaining officers who concealed violence committed by Baylor football players and acted in concert with Baylor to shie[l]d [sic ] players from prosecution and public attention, thereby emboldening and empowering [players] to commit further violence," (id. ¶ 201(f)).

The City objects that a liable state actor must have "create[d] an opportunity that would not otherwise have existed for the third party's crime to occur." (City Mot., Dkt. 60 at 18, quoting Piotrowski , 237 F.3d at 585 ), but this raises a question of fact. Further, Section 1983 causation does not require a plaintiff to show that a challenged policy is "the exclusive cause" of a constitutional deprivation. Stukenberg , 907 F.3d at 254 (citing Piotrowski , 237 F.3d at 581 ; Fraire , 957 F.2d at 1281 ; Kentucky v. Graham , 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (noting that the policy "must have played a part in the violation of federal law" (emphasis added))). In Stuckenberg , the Fifth Circuit affirmed a district court's finding at summary judgment that the Texas Department of Family and Protective Services was deliberately indifferent to the substantial risk of physical or sexual abuse of foster children as a result of insufficient monitoring and oversight policies, and that those policies were a direct cause of the constitutional harm to the plantiff foster children. Id. Lozano's allegations rely on a similar theory—in plain terms, that the Waco Police Department's policies caused her injury by exacerbating a known risk of assault by a private actor. Because causation is "an ‘intensely’ fact-bound inquiry," Stukenberg , 907 F.3d at 253 (quoting Morris v. Dearborne , 181 F.3d 657, 673 (5th Cir. 1999) ), and Lozano alleges multiple theories of causation, some of which are plausible, the Court finds that she has plausibly alleged that the challenged policies were the direct cause of the violation.

* * *

The Court concludes that Lozano has stated a plausible substantive due process claim against the City of Waco arising from the alleged conduct of the Waco Police Department. The Court pauses to recognize again the significant burden to state a substantive due process claim. At the motion to dismiss stage, the Court assumes that the plaintiff's factual allegations are true as it evaluates her legal claims. Cuvillier , 503 F.3d at 401 (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). Assumed to be true, Lozano's factual allegations—centrally, that the Waco Police Department cooperated with a third party, Baylor University, to conceal allegations of criminal conduct—raise her right to relief above the speculative level. The purpose of discovery, the next stage of litigation, is to allow the parties to make reasonable inquiries to locate evidence and determine whether Lozano's claims are ultimately proven to be true. It may be that these allegations are not ultimately substantiated. But at this stage, Lozano's allegations state a plausible claim that entitles her to proceed. The Court therefore denies the City's motion to dismiss Lozano's substantive due process claim.

V. STATE LAW CLAIMS

The Court's jurisdiction over Lozano's state law claims is supplemental to its federal question jurisdiction. 28 U.S.C. § 1367(a). A federal court exercising supplemental jurisdiction over state law claims must apply the substantive law of the state in which it sits. Sommers Drug Stores Co. Empl. Profit Sharing Tr. v. Corrigan , 883 F.2d 345, 353 (5th Cir. 1989) (citing Erie R.R. v. Tompkins , 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ). As a result, this Court applies Texas law to Lozano's state law claims. In resolving issues of Texas state law, federal courts look to decisions of the Texas Supreme Court. Hux v. S. Methodist Univ. , 819 F.3d 776, 780 (5th Cir. 2016). If that court has not ruled on the issue, the federal court must make what is known as an "Erie guess"—that is, it must predict what the Texas Supreme Court would do if faced with the facts currently before the federal court. Id. Generally, state intermediate courts' decisions are the strongest indicator of what a state supreme court would do. Id. at 780–81. In Texas, to prove a claim of negligence, a "plaintiff must produce evidence of a legal duty owed by the defendant to the plaintiff, a breach of that duty, and damages proximately caused by that breach." Lee Lewis Const., Inc. v. Harrison , 70 S.W.3d 778, 782 (Tex. 2001). "The threshold inquiry in a negligence case is duty." Pagayon v. Exxon Mobil Corp. , 536 S.W.3d 499, 503 (Tex. 2017) (citing Greater Hous. Transp. Co. v. Phillips , 801 S.W.2d 523, 525 (Tex. 1990) ). "The existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question." Id. If there is no duty, there can be no liability. Thapar v. Zezulka , 994 S.W.2d 635, 637 (Tex. 1999).

A. Negligence Claims Against Baylor

Lozano alleges that Baylor had "extensive duties" to protect her from Chafin's abuse. (2d Am. Compl., Dkt. 50, ¶ 163). The Second Amended Complaint, as drafted, does not clearly distinguish between Lozano's multiple theories of negligence against Baylor. However, accepting all of Lozano's well-pleaded facts as true and viewing them in the light most favorable to the plaintiff, she asserts at least two plausible negligence claims against Baylor.

Lozano alleges Baylor breached multiple duties, which fall into three categories of negligence liability: (1) Baylor's duty to protect Lozano under the Texas multi-factor test, (2) Baylor's duty to train and supervise its employees regarding how to properly handle reports of sexual assault and domestic violence, and (3) Baylor's other duties of care. The Court considers each of these.

1. Negligence Under the Multi-Factor Test

As a general matter, there is no duty to control the conduct of third persons. See Greater Hous. Transp. , 801 S.W.2d at 525. However, there are exceptions to that rule. A court may find that a duty existed as a matter of law "based on the facts surrounding the occurrence in question," considering "the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant." Pagayon , 536 S.W.3d at 504 (quoting Greater Hous. Transp. , 801 S.W.2d at 525 ; Humble Sand & Gravel, Inc. v. Gomez , 146 S.W.3d 170, 182 (Tex. 2004) ); see also Hernandez v. Baylor Univ. , 274 F. Supp. 3d 602, 619 (W.D. Tex. 2017). "The considerations include social, economic, and political questions and their application to the facts at hand.... Also among the considerations are whether one party would generally have superior knowledge of the risk or a right to control the actor who caused the harm." Pagayon , 536 S.W.3d at 504 (quoting Humble Sand , 146 S.W.3d at 182 ). "The question is whether a duty should be imposed in a defined class of cases, not whether the facts of the case at hand show a breach." Id. "It is not enough simply to require employers, or others, to exercise ordinary care in all circumstances. Texas law requires the court to be more specific, to balance the relevant factors." Id. at 506. "[S]ome of these factors—risk and foreseeability are obvious examples—‘may turn on facts that cannot be determined as a matter of law and must instead be resolved by the factfinder,’ " although "such cases are unusual." Pagayon , 536 S.W.3d at 504 (quoting Humble Sand , 146 S.W.3d at 182 ).

Baylor argues that Lozano's allegations of inadequate student discipline and supervision of university employees "implicate no known common law duty in the State of Texas." (Baylor Mot., Dkt. 58, at 16). But Lozano's negligence claim is not so narrow and does not depend on a specific duty for universities. Lozano's allegations are sufficient to allege that Baylor had a duty to Lozano based on the multi-factor test used by the Texas Supreme Court. She alleges that six Baylor staff and leadership were aware of the first assault before the second occurred, including President Starr and head football coach Art Briles, running back coach, Jeff Lebby, and Baylor's Associate Athletic Director and Senior Woman Administrator. (2d Am. Compl., Dkt. 50 ¶¶ 110–15). By that time, Baylor "knew or reasonably should have known of Chafin's dangerous and exploitive propensities," and the risk of further harm to Lozano and other female students was foreseeable. (Id. ¶ 165). Lozano does not merely allege that they failed to help her. And she does not merely allege that Baylor failed to discipline Chafin. Rather, Lozano alleges that Baylor leadership and staff took "affirmative" steps that "increased the likelihood that Lozano, and other female students, would be assaulted." (Id. ¶ 166). In particular, the university "acted in concert" with the Baylor Police Department and Waco Police Department "to keep any reports of violence committed by football players from going outside the athletic department" and prevent criminal investigation of claims of physical and sexual assault, (id. ¶ 50), "deliberately insulated players from the normal University disciplinary process," (id. ¶ 177), and substituted and maintained an "ad hoc, internal system of discipline" for football players, including Chafin, which caused them to believe that "they were unlikely to face repercussions from their actions, (id. ¶ 166–67).

Accepting these allegations as true, a factfinder could determine that the risk, foreseeability, and likelihood that Chafin might assault Lozano again was fully apparent to Baylor. Where a party "has superior knowledge of the risk or the right to control the actor whose conduct caused the harm," this weighs further in favor of imposition of a duty. Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. Akins , 926 S.W.2d 287, 291 (Tex. 1996). Here, taking Lozano's allegations as true, senior Baylor leadership and at least two members of the football staff had superior knowledge of the risk. Baylor also some ability to control Chafin through his membership on the football team and his status as a student. See Hernandez , 274 F. Supp. 3d at 621. It is further plausible that a factfinder could determine that there was minimal social utility in Baylor's alleged informal disciplinary system and cooperation with local police to avoid criminal investigations. The burden of conducting independent university investigations into allegations of physical or sexual assault, and possibly referring appropriate cases for criminal investigation, is an ordinary and appropriate burden for a university. Applying the multi-factor test, Lozano has asserted a plausible claim that Baylor had a duty to her.

The allegations that Baylor affirmatively concealed assaults and prevented investigation or meaningful intervention establishes further support for this finding. "While a person is generally under no legal duty to come to the aid of another in distress, he is under a duty to avoid any affirmative act which might worsen the situation." Otis Eng'g Corp. v. Clark , 668 S.W.2d 307, 309 (Tex. 1983) ; see also Hernandez , 274 F. Supp. 3d at 620. "One who voluntarily enters an affirmative course of action affecting the interests of another is regarded as assuming a duty to act and must do so with reasonable care." Id. This finding is consistent with this Court's decision in Hernandez v. Baylor University. There, this Court found that Hernandez plausibly asserted a negligence claim against Baylor where she alleged that Baylor actively concealed sexual assaults by football players, actively diverted cases from student conduct or criminal processes, allowed the Athletics Department to conduct its own untrained investigations, and caused a perception that the football program was "above the rules," causing her sexual assault. See Hernandez , 274 F. Supp. 3d at 620.

Baylor's motion to dismiss does not acknowledge Hernandez or discuss the Texas Supreme Court's multi-factor test beyond reciting the classic elements of a negligence action. Baylor has not met its burden to dismiss Lozano's negligence claim. Her allegations allow the Court to draw a reasonable inference that Baylor is liable for the misconduct alleged. The Court concludes that Lozano has asserted a plausible claim of negligence.

Baylor does not challenge the sufficiency of her pleadings regarding breach of duty, causation, or damages. The Court notes briefly here that Lozano pleads specific facts in support of these elements. She alleges that Baylor breached its duty of care by, for example, "[s]anctioning and carrying out untrained, informal investigations of reports that Chafin and other football players have committed sexual assault and domestic violence," and "[f]ailing to train football and Athletic Department staff to competently respond to allegations of sexual assault and domestic violence by football players." (2d Am. Compl., Dkt. 50, ¶ 170(i, k)). Lozano alleges that as a result of Baylor's actions, she has suffered injuries including physical injury, emotional distress, physical manifestations of emotional distress, loss of enjoyment of life, loss of earnings and earning capacity, and expenses for medical and psychological treatment. (Id. ¶ 172).

2. Negligent Training and Supervision

Lozano also asserts a theory of liability based on negligent training and supervision. Although the Texas Supreme Court "has not ruled definitively on the existence, elements, and scope" of negligent training and hiring, it has explained that courts may find employer liability based on the multi-factor test, weighing "the risk, foreseeability, and likelihood of injury in requiring employers to control employees, versus the burdens on and consequences to employers, and the social utility and realities of the workplace." Pagayon , 536 S.W.3d at 505, 506 (citing Waffle House, Inc. v. Williams , 313 S.W.3d 796, 804 n. 27 (Tex. 2010) ). Texas intermediate courts have held that "the elements of a cause of action for negligently hiring, supervising, training, or retaining an employee are the following: (1) the employer owed the plaintiff a legal duty to hire, supervise, train, or retain competent employees; (2) the employer breached that duty; and (3) the breach proximately caused the plaintiff's injury. Wal-Mart Stores, Inc. v. Sanchez , No. 04-02-00458-CV, 2003 WL 21338174, at *5 (Tex. App.—San Antonio 2003) (citing LaBella v. Charlie Thomas, Inc. , 942 S.W.2d 127, 137 (Tex.App.—Amarillo 1997, writ denied) ). "To establish a claim for negligent training, a plaintiff must prove that a reasonably prudent employer would have provided training beyond that which was given and that failure to do so caused his injuries." Dangerfield v. Ormsby , 264 S.W.3d 904, 912 (Tex. App. 2008) ; see also Jane Doe 1, et al. v. Baylor Univ. , 240 F. Supp. 3d 646, 667 (W.D. Tex. 2017). "While the employee need not be acting in the scope of his employment to impose liability on the employer, the theory of negligent hiring and supervision does require that a plaintiff's harm be the result of the [tortfeasor employee's] employment." Houser v. Smith , 968 S.W.2d 542, 544 (Tex. App. 1998) (citing Dieter v. Baker Serv. Tools , 739 S.W.2d 405, 408 (Tex. App.—Corpus Christi 1987, writ denied) ). "If the law did not require such a connection, an employer would essentially be an insurer of the safety of every person who happens to come into contact with his employee simply because of his status as an employee." Id. (cleaned up). Negligent hiring, supervision, training, and related claims provide "a remedy to injured third parties who would be foreclosed from recovery under the master-servant doctrine since the wrongful acts of employees in these cases are likely to be outside the scope of employment or not in furtherance of the master's business." Dieter , 739 S.W.2d at 408 (citation omitted).

Baylor argues Lozano's negligent training and supervision claim must fail because she "has not alleged any separate common-law tort by any employee ," as required for a negligent training or supervision claim. (Baylor Mot., Dkt. 58, at 19 (citing, e.g., Host Marriott Corp. v. Meadows , No. 05-00-00959-CV, 2001 WL 727341, at *2 (Tex. App.—Dallas 2001) ("In the context of negligent supervision, the plaintiff has not been injured in the eyes of the law if the employee did not commit an actionable tort.))). Baylor's argument does not acknowledge that Lozano has alleged separate common-law torts against both Athletic Director Ian McCaw and head football coach Art Briles. (See 2d Am. Compl., Dkt. 50, ¶¶ 162-69, 171-72). She has alleged that both McCaw and Briles committed an actionable tort of negligence against her. The Court sees no deficiency in Lozano's pleadings on this basis.

Baylor also argues that Lozano's alleged injuries were not "the result of the employment" because she "does not allege that her injury had anything to do with her employment." (Baylor Mot., Dkt. 58, at 20 (citing Houser , 968 S.W.2d at 544 )). While it is correct that "a plaintiff's harm [must] be the result of the employment," Houser , 968 S.W.2d at 544, negligent supervision and training occurs where an employer's negligence causes an employee to harm a third party, who may or may not be another employee. See, e.g., LaBella , 942 S.W.2d at 138 (reversing grant of summary judgment against plaintiff who had no employment relationship with the defendant employer); Dieter , 739 S.W.2d at 408 (same); Pagayon , 536 S.W.3d at 508 (considering liability for employer's failure to prevent employee from engaging in a fistfight with another employee and finding no duty under the multi-factor test). To state a plausible claim of negligent training and supervision, Lozano need not allege that she was an employee of Baylor or that the injury had anything to do with her own employment.

Lozano does allege that she was an employee of Baylor, but that allegation is not relevant or necessary to her negligent training and supervision claims. Lozano does allege that she was an employee of Baylor as "a paid manager for the Baylor Acrobatics and Tumbling team during the 2013-14 school year." (2d Am. Compl., Dkt. 50 ¶ 100). Her pleadings also seem to allege that she acted as an employee when running back coach Jeff Lebby "enlisted her to tutor Chafin" and she "became Chafin's de facto handler." (Id. ¶ 94).

Lozano states a plausible claim of negligent training and supervision. As detailed above, she plausibly alleges that Baylor had a duty to Lozano under the multi-factor test. The Court finds it plausible that this included a legal duty to supervise and train competent employees to respond to a known, foreseeable, and likely risk that a student might assault another student. (See 2d Am. Compl., Dkt. 50, ¶ 170 (detailing the alleged failures of training and supervision); see id. ¶ 163 ("Defendants Baylor, Briles and McCaw also owed duties to competently supervise Baylor's Football program and Athletics Department and to train and educate Baylor's employees.")); Wal-Mart , 2003 WL 21338174, at *5.

Accurately stated, the "result of employment" test requires only that "there must be evidence that the plaintiff's injuries were brought about by reason of the employment of the incompetent servant [employee] and [were], in some manner, job-related." Dieter , 739 S.W.2d at 408. Lozano's allegations meet this burden at the motion to dismiss stage. She plausibly alleges that Chafin's second and third assaults were the result of Baylor's failure to supervise or train McCaw, Briles, football and Athletic Department staff, and other personnel in her allegations that the university sanctioned and perhaps even encouraged informal investigations and cooperation with local police to avoid criminal investigations. (2d Am. Compl., Dkt. 50, ¶ 163, 166–67, 170). Further, she alleges that the university maintained these systems for years even after notice of multiple assaults committed by student-athletes. (Id. ¶ 53). Taken together, Lozano's allegations plausibly state a claim of negligent training and supervision against Baylor.

Baylor argues that even if Lozano's claim is otherwise plausible, it is preempted by the Texas Commission on Human Rights Act. (Baylor Mot., Dkt. 58, at 19–20 (citing Tex. Labor Code Ann. § 21.051 ("Texas Commission on Human Rights Act" or "TCHRA"))). This argument again mischaracterizes Lozano's allegations. The TCHRA governs employment discrimination. See Tex. Labor Code Ann. § 21.051. The Texas Supreme Court has held that, "[w]here the gravamen of a plaintiff's [sexual harassment] case is TCHRA-covered harassment, the [TCHRA] forecloses common-law theories predicated on the same underlying sexual-harassment facts." B.C. v. Steak N Shake Operations, Inc. , 512 S.W.3d 276, 282 (Tex. 2017) (quoting Waffle House , 313 S.W.3d at 813 ). Lozano does not assert an employment discrimination claim here. Moreover, even assuming that Lozano's negligent supervision and training claim were predicated on an assault that she experienced as a result of her employment by Baylor, either as a manager for the acrobatics and tumbling team or in her role as "Chafin's de facto handler," see supra n.12, the Texas Supreme Court has considered and rejected extending TCHRA preemption to any conduct that "can be characterized as sexual harassment." B.C. v. Steak N Shake Operations, Inc. , 512 S.W.3d 276, 282 (Tex. 2017) ("[W]ere we to apply Waffle House here [to preempt a common law assault claim], we would effectively rule that any action by an employer, no matter how egregious or severe, is subject to the TCHRA's administrative scheme so long as the conduct can be characterized as sexual harassment. Neither the TCHRA's text nor its purpose, nor our prior holdings interpreting the statute, requires such an extreme result."). Baylor has not met its burden to dismiss Lozano's negligence claims on a theory of TCHRA preemption.

3. Other Duties and Theories of Liability

Because the Court finds that Lozano has plausibly stated a negligence claim and a negligent training and supervision claim against Baylor, the Court does not address her other theories of negligence liability, for example, that a special relationship existed between Baylor and Chafin as a scholarship athlete, or that Baylor voluntarily assumed a duty to protect Lozano by enlisting her to tutor Chafin and otherwise manage his behavior. (See id. ¶ 163).

B. Negligence Claims Against McCaw

Lozano also asserts a negligence claim against Ian McCaw. (2d Am. Compl., Dkt. 50 ¶ 162-69, 171-72). In his motion to dismiss, McCaw argues that Lozano has failed to state a claim against him because she has failed to plead any specific facts to establish his liability and, in any case, he had no legal duty to her. (McCaw Mot., Dkt. 61, at 12–13; 13–21). The Court disagrees.

To be liable for negligence under Texas law, an individual acting as an agent or employee must have an independent duty of reasonable care to the plaintiff, separate from the employer's duty. Tri v. J.T.T. , 162 S.W.3d 552, 562 (Tex. 2005) (citing Leitch v. Hornsby , 935 S.W.2d 114, 118 (Tex. 1996) ). For example, an agent who drives negligently and causes a car accident while acting within the scope of his employment is individually liable because he has an independent duty to the public to drive with reasonable care. Id. As discussed above, to determine whether a defendant has a duty of care, Texas courts consider "the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant." Pagayon , 536 S.W.3d at 504 (citations omitted); see also Hernandez , 274 F. Supp. 3d at 619 (W.D. Tex. 2017).

As the Texas Supreme Court noted, the employer is also vicariously liable.

Lozano alleges that as Athletic Director, McCaw was an agent of Baylor "responsible for overseeing all of Baylor's athletic programs, including Baylor's football team," and that he "had the authority to discipline any and all Baylor coaches, as well as any and all Baylor student-athletes." (2d Am. Compl. ¶ 4). Lozano argues that McCaw had an independent duty of care to her under Texas's multi-factor test because, as Athletic Director, McCaw either knew or should have known about the first assault through his employees, (id. ¶ 165); it was foreseeable and likely that Chafin would continue to assault Lozano without intervention, (id. ¶ 165); McCaw had the authority to take action, (id. ¶ 4); there was no social utility in protecting a student who assaulted others; and intervening would not have posed a substantial burden on McCaw. (See Lozano Resp., Dkt. 66, at 18–19). Instead, Lozano alleges, McCaw took affirmative steps that increased the risk that Lozano and other women would be assaulted. Specifically, McCaw oversaw an "ad hoc, internal system of discipline" for football players, including Chafin, (id. ¶ 167); sanctioned "untrained, informal investigations" of reports that Chafin and other football players have committed sexual and other physical violence, (id. ¶ 169(g)); and used informal investigations of sexual assaults and domestic violence "as a means of creating the appearance that Athletic Department and football staff were responsive to such complaints, while actually improperly discrediting complainants and allowing football players to escape responsibility," (id. ¶ 169(h)).

Although Lozano alleges no specific facts to establish that McCaw knew about Chafin's physical assaults, she does allege that McCaw "knew or should have known" in his role as Athletic Director through his agents and employees. (2d Am. Compl., Dkt. 50, ¶ 165). Given that the rest of her negligence claim against McCaw is fully plausible and the Court's duty to draw all reasonable inferences in favor of a plaintiff at the motion to dismiss stage, the Court finds this allegation adequately supports her claim at this time.

Based on these allegations, Lozano has plausibly alleged that the risk, foreseeability, and likelihood that Chafin would assault Lozano again was high. She has plausibly alleged that McCaw knew or should have known about the first assault, and that thereafter it was foreseeable that Chafin could abuse her again without appropriate intervention. There would have been no social utility to maintain informal investigations that insulated student-athletes from responsibility for their actions. And, in a situation involving an alleged pattern of violence committed by university student-athletes, an athletic director "would generally have superior knowledge of the risk or a right to control the actor who caused the harm," with ultimate responsibility and authority to control the conduct of student-athletes and athletic department employees. See Pagayon , 536 S.W.3d at 504. The Court concludes that Lozano has plausibly alleged her negligence claims against Ian McCaw. VI. STATUTE OF LIMITATIONS

Because the Court finds that Lozano has adequately stated a negligence claim under Texas's multi-factor test for a general duty of care, the Court does not address her other theories of liability for McCaw at this time, e.g. , that McCaw voluntarily undertook additional duties to Lozano when Lebby hired her to tutor Chafin. (See id. ¶ 163).

The parties agree that all of Lozano's claims—under Title IX, Section 1983, and Texas state law—are subject to Texas's two-year statute of limitations for personal injury actions. See King-White v. Humble Indep. Sch. Dist. , 803 F.3d 754, 759–61 (2015) ; Piotrowski v. City of Houston , 51 F.3d 512, 515 n. 5 (5th Cir. 1995) ; Tex. Civ. Prac. & Rem. Code Ann. § 16.003. Baylor, McCaw, and the City of Waco contend that all of Lozano's claims against them are time-barred.

"Absent tolling, the limitations period runs from the moment a plaintiff's claim ‘accrues,’ " and while the limitations period is borrowed from state law, "the particular accrual date of a federal cause of action is a matter of federal law." King-White , 803 F.3d at 762 (quoting Frame v. City of Arlington , 657 F.3d 215, 238 (5th Cir. 2011) ). "[U]nder federal law, a claim accrues and the limitations period begins to run the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured." Id. (quoting Spotts v. United States , 613 F.3d 559, 574 (5th Cir. 2010) ). "[A] plaintiff's awareness encompasses two elements: (1) The existence of the injury; and (2) causation, that is, the connection between the injury and the defendant's actions." Id. (quoting Piotrowski , 237 F.3d at 576 ). " ‘[A]wareness’ [of the existence of the injury and causation] ... does not mean actual knowledge; rather, all that must be shown is the existence of ‘circumstances [that] would lead a reasonable person to investigate further.’ " Id. (quoting Piotrowski , 237 F.3d at 576 ). Thus, for awareness of causation, a plaintiff "must have knowledge of facts that would lead a reasonable person (a) to conclude that there was a causal connection ... or (b) to seek professional advice, and then, with that advice, to conclude that there was a causal connection between the [defendant's acts] and injury." Harrison v. United States , 708 F.2d 1023, 1027 (5th Cir. 1983).

Equitable doctrines may toll the statute of limitations. When a federal cause of action borrows a state statute of limitations, coordinate tolling rules apply. See King-White , 803 F.3d at 764 ; Rotella v. Pederson , 144 F.3d 892, 897 (5th Cir. 1998). The discovery rule defers accrual of the cause of action "until the injury was or could have reasonably been discovered." Shell Oil Co. v. Ross , 356 S.W.3d 924, 929–30 (Tex. 2011). The discovery rule only applies if "the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable." Id. (quoting Childs v. Haussecker , 974 S.W.2d 31, 36–37 (Tex. 1998) ). "An injury is inherently undiscoverable if it is by nature unlikely to be discovered within the prescribed limitations period despite due diligence." S.V. v. R.V. , 933 S.W.2d 1, 7 (Tex. 1996). " ‘Discovery’ does not mean ‘actual knowledge of the particulars of a cause of action,’ but whether the plaintiff has ‘knowledge of facts which would cause a reasonable person to diligently make inquiry to determine his or her legal rights.’ " Winters v. Diamond Shamrock Chem. Co. , 149 F.3d 387, 402–03 (5th Cir. 1998) (quoting Vaught v. Showa Denko K.K. , 107 F.3d 1137, 1140, 1141–42 (5th Cir. 1997) ). "To be ‘inherently undiscoverable’, an injury need not be absolutely impossible to discover, else suit would never be filed and the question whether to apply the discovery rule would never arise ... An injury is inherently undiscoverable if it is by nature unlikely to be discovered within the prescribed limitations period despite due diligence." S.V. v. R.V. , 933 S.W.2d 1, 7 (Tex. 1996). "[T]he discovery rule exception should be permitted only in circumstances where ‘it is difficult for the injured party to learn of the negligent act or omission.’ " Computer Assocs. Int'l, Inc. v. Altai, Inc. , 918 S.W.2d 453, 456 (Tex. 1996) (quoting Willis v. Maverick , 760 S.W.2d 642, 645 (Tex. 1988) ).

Similarly, the doctrine of fraudulent concealment tolls the statute of limitations so that a defendant may not avoid liability "by deceitfully concealing wrongdoing until limitations has run." Shell Oil , 356 S.W.3d at 927. The doctrine requires a plaintiff to show that the defendant "actually knew a wrong occurred, had a fixed purpose to conceal the wrong, and did conceal the wrong." Id. "When a defendant has fraudulently concealed the facts forming the basis of the plaintiff's claim, limitations does not begin to run until the claimant, using reasonable diligence, discovered or should have discovered the injury." KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp. , 988 S.W.2d 746, 750 (Tex. 1999).

A. Heightened Risk Claim

Baylor argues that Lozano's claims accrued no later than April 2014, at the time of the Chafin's third assault, which was over two years before she first filed this action. (Baylor Mot. Dismiss, Dkt. 58, at 8; Baylor Supp. Br., Dkt. 99, at 7). Baylor argues that Lozano cannot toll her claims because by 2014, Lozano had knowledge of facts that would cause a reasonably prudent person to make inquiries that would lead to discovery of her potential claim. (See Baylor Mot. Dismiss, Dkt. 58, at 13–15). Lozano argues that the fraudulent concealment doctrine tolls her claim because Baylor "actively concealed its own misconduct" until May 2016 when the Pepper Hamilton Findings of Fact were released. (Pl. Supp. Br., Dkt. 98, at 8; 2d Am. Compl., Dkt. 50, ¶ 159; see also id. ¶ 53 ("Baylor engaged in a practice of ... actively concealing from the public, specific instances of violence and sexual violence committed by its football players.").

The doctrine of fraudulent concealment tolls the statute of limitations only until "a party learns of facts, conditions, or circumstances which would cause a reasonably prudent person to make inquiry, which, if pursued, would lead to discovery of the concealed cause of action." King-White , 803 F.3d at 764 (citing Borderlon v. Peck , 661 S.W.2d 907, 908 (Tex. 1983) ).

Although Lozano was aware of the existence of an injury when Chafin assaulted her in March and April 2014, it is not evident from the complaint that Lozano was aware of facts that would cause a reasonable person to conclude that there was a causal connection between her assaults and the conduct of Baylor staff and officials, or to seek professional advice on this question. She alleges that at the time of her assaults, "Lozano was unaware of Baylor's pervasive failings ... [in] response to a known issue of sexual misconduct and domestic violence within its football program dating back several years prior to Lozano's assault." (2d Am. Compl., Dkt. 50 ¶ 160). She alleges that she "could not with reasonable diligence, have learned this information independently" until the Pepper Hamilton Findings of Fact were published on May 26, 2016. (Id. ¶ 160–61). She also alleges that "Baylor engaged in a practice of failing to address and actively concealing from the public, specific instances of violence and sexual violence committed by its football players." (Id. ¶ 53). In other words, the nature of her injury may have been inherently undiscoverable at the time of her assaults, and could not be discovered until the Pepper Hamilton Findings of Fact. In particular, although Lozano was aware in Spring 2014 that Baylor's football leadership seemed to condone violent and dangerous conduct by Chafin, the pleadings do not indicate that Lozano was aware of permissive treatment for any other players.

The complaint offers several slightly different characterizations about when Lozano discovered or could have reasonably discovered the facts giving rise to her heightened risk claim. (2d Am. Compl., Dkt. 50, ¶ 53 ("Lozano first became aware of Baylor's deliberate indifference to a known issue of sexual misconduct within its football program in May of 2016 when the Pepper Findings of Fact was released publicly."); id. ¶ 54 ("Lozano had no reason to know of Baylor's alleged causal connection to the domestic violence and assaults she suffered until the spring of 2016, when media reports ... first came to light ..."); id. ("Lozano's claims for heightened risk liability did not accrue until May 26, 2016 [the date of the Pepper Hamilton Findings of Fact] )). The Court construes these statements together to allege that her claim only became discoverable on May 26, 2016, when the Findings of Fact were published.

Although the Second Amended Complaint recounts pages of alleged player misconduct and a "culture of abuse" within the football program, this section of the complaint seems to be a post hoc summary of allegations related to the Baylor football program that became public as media attention increased. (See id. ¶¶ 39-68; 55 ("As ESPN records later revealed ...")).

Based on these allegations, the Court finds it plausible that Lozano had no reason to further investigate her heightened risk claim and discover the nature of the alleged injury until the release of Baylor's Findings of Fact and the subsequent media coverage in 2016. Taking Lozano's allegations as true, her heightened risk claim accrued on May 26, 2016. Accordingly, the two-year statute of limitations had not run by October 11, 2016, when she first filed her Title IX claims against Baylor. (See Compl., Dkt. 1). Because it is not evident from the Complaint that Lozano's claims are foreclosed by the statute of limitations, and she raises some basis for tolling that is factually plausible, the Court finds at this stage that her heightened risk claim is not time-barred. Taylor , 744 F.3d at 946. Cf. King-White , 803 F.3d at 764 (affirming Rule 12(b)(6) dismissal of Title IX and Section 1983 claims as time-barred where "nothing" in the complaint "suggest[ed] that ... [defendants] actively concealed the existence of any causes of action.").

See Jane Doe 1, et al. v. Baylor Univ. , 240 F. Supp. 3d at 663 (finding plausible allegations that plaintiffs had no reason to investigate certain heightened risk claims until release of the Findings of Fact and subsequent media coverage in 2016); Doe 12, et al. v. Baylor Univ. , 336 F. Supp. 3d 763, 784 (W.D. Tex. 2018) (same).

B. Section 1983 Claim

The City argues that Lozano's claims arising from the alleged conduct of the Waco Police Department accrued no later than January 2015, after the third assault. (City Mot. Dismiss, Dkt. 60, at 4). By that time, the City argues, Lozano was aware she had been repeatedly assaulted, she knew the identity of Chafin and his subsequent girlfriend, and she knew the police were "allegedly dismissive and allegedly did nothing" to "prevent" the attacks. (Id. ). She did not seek leave to add the City of Waco until January 30, 2018. (citing Mot. Am. Compl., Dkt. 46). Lozano responds that "[u]ntil [she] was contacted by news reporters in May 2016 after they received a partial copy of her April 2014 report of domestic violence, she was unaware of Waco Police's unlawful customs, policies and practices and was unaware of the causal link between these unlawful actions and the assaults she suffered while a student of Baylor and a resident of Waco." (2d Am. Compl., Dkt. 50 ¶ 203).

Although both the City of Waco and McCaw emphasize that Lozano did not add them as defendants in this action until January 30, 2018, over three years after the three attacks by Chafin in 2014, (see City Mot. Dismiss, Dkt. 60, at 5; McCaw Mot. Dismiss, Dkt. 61, at 6, 8), neither cites any legal support for the apparent implication that a plaintiff is barred from adding any new defendant after the limitations period expires. Case law on this question is scarce, but the Fifth Circuit has explained "[a]s long as the amended complaint refers to the same transaction or occurrence that formed the basis for the original complaint and the defendant was put on notice of the claim by the first complaint, there will be no bar to amendment; even new defendants and new theories of recovery will be allowed." Williams v. United States , 405 F.2d 234, 237 (5th Cir. 1968) ; see also Leonard v. JPMorgan Chase Bank, N.A. , No. 4:17-CV-493-O-BP, 2018 WL 3275443, at *5 (N.D. Tex. Jan. 30, 2018), report and recommendation adopted , No. 4:17-CV-493-O-BP, 2018 WL 1180243 (N.D. Tex. Mar. 7, 2018). The Court is satisfied at this stage that Lozano's Second Amended Complaint adding the City of Waco, McCaw, and Briles, arises from the same transaction or occurrence, namely, the series of assaults by Chafin and Lozano's interactions with each defendant related to those assaults.

From the facts alleged, see supra Section IV, the Court finds it plausible that only after the media contacted her in May 2016 could Lozano suspect that the Waco Police Department, rather than individual officers, had actively cooperated with Baylor to conceal reports of violence by student-athletes. The Fifth Circuit has adopted this approach where there is evidence that a municipality's affirmative involvement in a substantive due process violation could not be discovered until after the time of the harm itself. See Piotrowski , 237 F.3d at 577 ("There is sufficient evidence for the jury to have concluded that Piotrowski could not make a case for the City's possible affirmative involvement in the contract on her life until [the] 1993 deposition. Only after the deposition could Piotrowski suspect that the City, as opposed to individual officers, had actively protected and/or assisted Bell."). Similarly here, although Lozano was aware of police "inaction" at the time of Chafin's third assault, it is plausible that Lozano could not have discovered facts indicating that police took affirmative steps that amounted to deliberate indifference until the Pepper Hamilton Findings of Fact. While evidence may ultimately demonstrate otherwise, it is plausible at this stage that Lozano's claim against the City of Waco accrued in May 2016 when she discovered the City's possible affirmative involvement. Because she filed her original complaint fewer than two years after that date, the Court concludes at this stage that her substantive due process claim is not time-barred.

C. Negligence Claims

The Court next considers the statute of limitations for Lozano's negligence claims against Baylor and McCaw. Baylor again argues that her claims accrued no later than April 2014, at the time of the third assault, which was over two years before she first filed this action. (Baylor Mot. Dismiss, Dkt. 58, at 8). McCaw contends that any claims against him are similarly time-barred because Chafin's assaults of Lozano occurred in 2014 but she did not seek to add McCaw as a defendant until January 30, 2018. (McCaw Mot. Dismiss, Dkt. 61, at 6–12). Both Baylor and McCaw argue that Lozano cannot toll her claims because by 2014, Lozano had knowledge of facts that would cause a reasonably prudent person to make inquiries that would lead to discovery of her potential claim. (See Baylor Mot. Dismiss, Dkt. 58, at 13–15; McCaw Mot. Dismiss, Dkt. 61, at 7–11).

Under Texas law, the statute of limitations is "[an] affirmative defenses which should be disposed of in a motion for summary judgment, not a motion to dismiss." Mattine v. Beakley & Assocs., P.C. , No. 13-11-00663-CV, 2018 WL 3470596, at *5 (Tex. App. July 19, 2018) ( Montgomery Cty. v. Fuqua , 22 S.W.3d 662, 669 (Tex. App.—Beaumont 2000, pet. denied). "Unless affirmatively negated by the plaintiff's pleadings, an affirmative defense must be proven at trial or through summary judgment proceedings." In re K.B.S. , 172 S.W.3d 152, 153 (Tex. App.—Beaumont 2005, pet. denied) (citing Velsicol Chem. Corp. v. Winograd , 956 S.W.2d 529, 530 (Tex. 1997) ). Cf. King-White , 803 F.3d at 764 (affirming Rule 12(b)(6) dismissal of Title IX and Section 1983 claims as time-barred where "nothing" in the complaint "suggest[ed] that ... [defendants] actively concealed the existence of any causes of action.").

Lozano's pleadings do not affirmatively negate or dispose of the statute of limitations defense for Baylor or McCaw. Further, neither Baylor nor McCaw have met their burden to show as a matter of law that Lozano's negligence claims accrued more than two years before she filed suit against each of them. Although it is clear from the pleadings that Lozano was aware that she was physically injured in March and April 2014 when Chafin assaulted her, the parties identify a fact issue as to when Lozano became aware of facts that would cause a reasonably prudent person to make further inquiries, or to seek professional advice on this question.

As noted above, regarding Baylor, Lozano alleges that at the time of her assaults, "Lozano was unaware of Baylor's pervasive failings ... [in] response to a known issue of sexual misconduct and domestic violence within its football program dating back several years prior to Lozano's assault." (Id. ¶ 160). She alleges that she "could not with reasonable diligence, have learned this information independently" until the Pepper Hamilton Findings of Fact were published on May 26, 2016. (Id. ¶ 160–61). She also alleges that "Baylor engaged in a practice of failing to address and actively concealing from the public, specific instances of violence and sexual violence committed by its football players." (Id. ¶ 53).

Similarly, Lozano alleges that under McCaw's leadership as Athletic Director, the Athletic Department had a policy of not reporting allegations of sexual assault and domestic violence against football players. (Id. ¶ 81). Further, coaches and staff "actively divert[ed] cases from student conduct or criminal processes." (Id. ¶ 82). She alleges she had no way to know that McCaw and other Baylor staff and leadership were concealing players' misconduct until May 26, 2016, when Baylor released the Pepper Hamilton Findings of Fact and recommendations. (Id. ¶¶ 175–76).

Here, where the plaintiff alleges systemic institutional efforts to divert cases of misconduct for informal resolution in order to prevent public knowledge or independent investigation, those claims plausibly allege that "an injury is by nature unlikely to be discovered within the prescribed limitations period despite due diligence." S.V. , 933 S.W.2d at 7. Likewise, the nature of her claim against McCaw is that he oversaw an inadequate disciplinary system that was designed to obstruct genuine investigation or public discovery of widespread physical and sexual assault by Baylor student-athletes. The Court finds that at this stage, Lozano plausibly alleges she could not have discovered her negligence claims against Baylor and McCaw until the Pepper Hamilton Findings of Fact were published.

Taking Lozano's allegations as true, her heightened risk claim accrued on May 26, 2016. Accordingly, the two-year statute of limitations had not run by October 11, 2016, when she first filed this action. If summary judgment evidence establishes that Lozano's state law claims against Baylor and McCaw accrued before the Pepper Hamilton Findings of Fact were published, the defendants will be entitled to summary judgment.

IV. CONCLUSION

Accordingly, IT IS ORDERED that Baylor's Motion to Dismiss, (Dkt. 58), is DENIED .

IT IS FURTHER ORDERED that the City of Waco's Motion to Dismiss, (Dkt. 60), is GRANTED IN PART AND DENIED IN PART . The City's motion is GRANTED with respect to Lozano's equal protection claim, and that claim is DISMISSED. The City's motion is DENIED with respect to Lozano's due process claim.

IT IS FURTHER ORDERED that Ian McCaw's Motion to Dismiss, (Dkt. 61), is DENIED.

IT IS FINALLY ORDERED that the stay on discovery is LIFTED . Pursuant to the Order granting an amended scheduling order, (Dkt. 104), the parties are ORDERED to file a joint proposed amended scheduling order on or before October 11, 2019 .

ORDER on RECONSIDERATION

On September 27, 2019, the Court entered an order denying Baylor's Motion to Dismiss, denying Ian McCaw's Motion to Dismiss, and granting in part and denying in part the City of Waco's Motion to Dismiss. (Order, Dkt. 105). In that order, the Court granted dismissal of Lozano's equal protection claim but denied dismissal of her substantive due process claim. (See id. at 15–31). Now before the Court is the City's Motion for Reconsideration, which asks the Court to reconsider and dismiss Lozano's substantive due process claim as well. (Dkt. 110). Having considered the parties' submissions, the law, and the record in this case, the Court affirms its prior order for the following reasons.

I. LEGAL STANDARD

"[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b). " Rule 54(b) allows parties to seek reconsideration of interlocutory orders and authorizes the district court to revise at any time any order or other decision that does not end the action." Austin v. Kroger Texas, L.P. , 864 F.3d 326, 336 (5th Cir. 2017) (cleaned up) (citing Fed. R. Civ. P. 54(b) ). "Under Rule 54(b), ‘the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.’ " Id. (quoting Lavespere v. Niagara Mach. & Tool Works, Inc. , 910 F.2d 167, 185 (5th Cir. 1990) ). " Rule 54(b)'s approach to the interlocutory presentation of new arguments as the case evolves can be more flexible, reflecting the ‘inherent power of the rendering district court to afford such relief from interlocutory judgments as justice requires.’ " Id. at 337 (quoting Cobell v. Jewell , 802 F.3d 12, 25–26 (D.C. Cir. 2015) ).

II. THE CITY'S MOTION FOR RECONSIDERATION

The City argues that the Court's order did not make a requisite finding for the first element of a substantive due process claim against a municipality for private violence. (Dkt. 110). Specifically, the City argues that in order to find that a plaintiff has plausibly alleged the deprivation of a cognizable constitutional right, the Court must find that she has adequately pleaded a recognized exception to the DeShaney rule—either (1) a special relationship or (2) a state-created danger. (Id. (citing DeShaney v. Winnebago Cty. Dep't of Soc. Servs. , 489 U.S. 189, 196, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) )). The City maintains that Lozano's pleadings do not plausibly allege either a special relationship or a state-created danger.

A. The DeShaney Rule

The Court incorporates its full discussion of the legal standard for Monnell liability for a substantive due process violation here. (See Dkt. 105 at 18-20; 22-31). As the Court explained there, DeShaney stands for the rule that "[a]s a general matter ... a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." 489 U.S. at 197, 109 S.Ct. 998. At the same time, "[t]his general rule is not absolute: ‘in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals.’ " McClendon v. City of Columbia , 305 F.3d 314, 324 (5th Cir. 2002) (quoting DeShaney , 489 U.S. at 198, 109 S.Ct. 998 ). The Supreme Court explained that "such a duty may arise out of certain ‘special relationships’ created or assumed by the State with respect to particular individuals," where "the State's affirmative act of restraining the individual's freedom to act on his own behalf—through incarceration, institutionalization, or other similar restraint of personal liberty." DeShaney , 489 U.S. at 200, 109 S.Ct. 998. Such restraint "is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not [the State's] failure to act to protect his liberty interests against harms inflicted by other means." Id. This is the "special relationship" exception to DeShaney . A special relationship exists between the State and prisoners, patients involuntarily committed for mental health treatment, and suspects injured in the course of apprehension by police. See M. D. by Stukenberg v. Abbott , 907 F.3d 237, 249 (5th Cir. 2018) (collecting cases).

A special relationship did not exist in DeShaney because the child was not in state custody. 489 U.S. at 201, 109 S.Ct. 998. The Supreme Court continued: "While the State may have been aware of the dangers that [the child] faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. Under these circumstances, the State had no constitutional duty to protect [the child]." Id. A majority of circuit courts construe this reasoning to create a second exception to DeShaney for a state-created danger, where state officials create and assume "a duty to protect an individual from injuries inflicted by a third party if the state actor played an affirmative role in creating or exacerbating a dangerous situation that led to the individual's injury." McClendon , 305 F.3d at 324 (collecting cases). The Fifth Circuit has neither adopted nor foreclosed the state-created danger theory of liability. See id. at 325 ("While this court has recognized the validity of the ‘special relationship’ exception to the general DeShaney rule that state officials have no constitutional duty to protect individuals from private violence ... we have not yet determined whether a state official has a similar duty to protect individuals from state-created dangers.") (citations omitted); see also Keller v. Fleming , 930 F.3d 746, 758 (5th Cir. 2019) (holding that the law does not clearly establish that a special relationship would have existed where officers detained and transported an individual across a county line, where he was then struck and killed by a car as he walked on the highway in darkness; observing that "the Fifth Circuit has never recognized this ‘state-created-danger’ exception") (order withdrawn by the Court on Oct. 22, 2019); Breen v. Texas A&M Univ. , 485 F.3d 325, 338 (5th Cir. 2007) (concluding that "plaintiffs successfully alleged facts showing the violation of a constitutional right by state officials under the state-created danger theory"), opinion withdrawn in part on reh'g , 494 F.3d 516 (5th Cir. 2007) (per curiam) (withdrawing qualified immunity section, which discussed the state-created danger theory).

See Butera v. District of Columbia , 235 F.3d 637, 651 (D.C. Cir. 2001) (adopting the state-created danger theory in a § 1983 action against a police department arising from the death of an undercover agent, noting that "the development of the State endangerment concept ... is consistent with the notion, implied in DeShaney , that something less than physical custody may suffice to present a substantive due process claim. We join the other circuits in holding that ... an individual can assert a substantive due process right to protection by the District of Columbia from third-party violence when District of Columbia officials affirmatively act to increase or create the danger that ultimately results in the individual's harm."); Kallstrom v. City of Columbus , 136 F.3d 1055, 1066–67 (6th Cir. 1998) (adopting the state-created danger theory in a § 1983 action by undercover police officers alleging that city officials released personal information to counsel for defendants in a gang-related conspiracy case); Kneipp v. Tedder , 95 F.3d 1199, 1201, 1208 (3d Cir. 1996) (adopting the state-created danger theory in a § 1983 action against a city and police officers on behalf of a woman who suffered brain damage after officers allegedly left her alone to walk home on a cold night while she was intoxicated); Uhlrig v. Harder , 64 F.3d 567, 572 (10th Cir. 1995) (rejecting a § 1983 claim against state mental health officials on behalf of an therapist who was killed by a state hospital patient, but stating that "[a] state also may be liable for an individual's safety under a ‘danger creation’ theory if it created the danger that harmed that individual—that is, provided that the other elements of a § 1983 claim have been satisfied."); Reed v. Gardner , 986 F.2d 1122, 1125 (7th Cir. 1993) (adopting the state-created danger theory a § 1983 action alleging that police officers knowingly failed to arrest an intoxicated driver); Dwares v. City of New York , 985 F.2d 94, 98–99 (2d Cir. 1993) (adopting the state-created danger theory in the context of a § 1983 claim brought by demonstrators against police officers who allegedly conspired to permit a group of "skinheads" to assault the demonstrators with impunity) overruled on other grounds by Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit , 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) ; Freeman v. Ferguson , 911 F.2d 52, 54–55 (8th Cir. 1990) (adopting the state-created danger theory in the context of a § 1983 claim brought on behalf of a woman killed by her estranged husband against a police chief who allegedly directed his officers to ignore her pleas for police assistance); Cornelius v. Town of Highland Lake , 880 F.2d 348, 356 (11th Cir. 1989) (adopting the state-created danger theory), modified by White v. Lemacks , 183 F.3d 1253, 1258 (11th Cir. 1999) (holding that the Supreme Court decision in Collins requires that "government officials violate the substantive due process rights of a person not in custody only by conduct ‘that can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense’ ") (quoting Collins v. City of Harker Heights , 503 U.S. 115, 128, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) ); Wood v. Ostrander , 879 F.2d 583, 590 (9th Cir. 1989) (adopting the state-created danger theory in a § 1983 action against police officers by the passenger of an impounded vehicle who was raped after officers allegedly abandoned her on the side of the road in the middle of the night).

In the context of qualified immunity, the Fifth Circuit has previously ruled that, at the time of an officer's allegedly unconstitutional conduct in 1992, a state-created danger theory was not clearly established in this Circuit such as to sustain a § 1983 claim. McClendon , 305 F.3d at 329–33 (5th Cir. 2002) (per curiam) (en banc); see also id. at 330 ("As we have recognized on numerous subsequent occasions, our decision in Salas did not address the viability of the state-created danger theory or define the contours of an individual's right to be free from state-created dangers.") (citing Salas v. Carpenter , 980 F.2d 299 (5th Cir. 1992) ; Piotrowski v. City of Houston ("Piotrowski I "), 51 F.3d 512, 515 (5th Cir. 1995) ; Leffall v. Dallas Indep. Sch. Dist. , 28 F.3d 521, 530–31 (5th Cir. 1994) ).

The Fifth Circuit has also outlined a test for a state-created danger, while noting that this circuit has "recognized but never adopted the state-created danger theory." Morin v. Moore , 309 F.3d 316, 321–22 (5th Cir. 2002) ("In order to recover under the state-created danger theory, we assume that a plaintiff would have to show, at a minimum, that: (1) the state actors created or increased the danger to the plaintiff and (2) the state actors acted with deliberate indifference."); see also McKinney v. Irving Indep. Sch. Dist. , 309 F.3d 308, 313 (5th Cir. 2002) (applying the same test).

In both Morin and McKinney , the Fifth Circuit articulated a state-created danger test but found that each plaintiff had inadequately pled deliberate indifference without reaching the plausibility of the state-created danger. See Morin , 309 F.3d at 322–23 ; McKinney , 309 F.3d at 314–15.

B. Lozano's Substantive Due Process Claim

Lozano asserts a substantive due process claim based on a state-created danger theory: that the Waco Police cooperated with Baylor University to conceal alleged criminal conduct by student-athletes and thereby increased the danger that she would suffer repeated physical assaults. (Resp., Dkt. 115 at 2; 2d Am. Compl., Dkt. 50 ¶¶ 50–51, 120–21, 129, 138–39, 186–87, 201, 204).

Lozano does not assert special relationship liability. (Resp., Dkt. 115, at 2).
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The Fifth Circuit has neither adopted nor foreclosed the state-created danger theory of liability. See, e.g., McClendon , 305 F.3d at 324. The City argues that this constitutes a total bar to any plausible substantive due process claim for a plaintiff who is not in state custody. (Mot. Reconsid., Dkt. 110, at 5–6). That reading does not reflect the Fifth Circuit's repeated consideration of state-created danger claims. This Court will not dismiss Lozano's non-custodial claims as a matter of law absent clear authority from the Fifth Circuit barring such claims.

The Court finds that Lozano's substantive due process claim is plausible on a state-created danger theory of liability. Applying the test outlined in Morin and McKinney , Lozano's allegation of department-wide cooperation with a third party to conceal allegations of criminal conduct and divert cases from investigation plausibly alleges that the Waco Police "increased the danger" to Lozano through their affirmative efforts to disrupt the administration of law enforcement. See Morin , 309 F.3d at 322–23 ; McKinney , 309 F.3d at 314–15. As Lozano notes in her response, the Eighth Circuit has applied the state-created danger exception in a domestic violence case where a police officer obstructed law enforcement efforts by his department. (Resp., Dkt. 115, at 5 (citing Freeman v. Ferguson , 911 F.2d 52, 54–55 (8th Cir. 1990) )). In Freeman , a husband killed his wife and daughter after the wife repeatedly requested help from the police. Her estate brought suit, alleging that the chief of police, friends with her abusive husband, directed officers not to assist her. The Eighth Circuit held that that allegation "presents a claim that the violence the decedents were subjected to was not solely the result of private action, but that it was also the result of an affirmative act by a state actor to interfere with the protective services which would have otherwise been available in the community—with such interference increasing the vulnerability of decedents ... and possibly ratifying or condoning such violent actions." Id. at 54–55. Finding that these allegations sufficiently stated a substantive due process claim based on a state-created danger theory, the Eighth Circuit observed: "[i]t is instructive ... that in DeShaney the Court considered it necessary to review the state's actions with regard to [the child's] claim to determine whether the state had placed him in greater danger or made him more vulnerable, even though he was in a non-custodial setting." Id. at 55 (citing DeShaney 489 U.S. at 201, 109 S.Ct. 998 ). The same reasoning makes Lozano's claim plausible here.

Lozano alleges that the Waco Police increased the risk that Chafin would continue to physically assault her because they maintained a department policy of cooperating with Baylor University to conceal allegations of criminal conduct and suspend protective services for women assaulted by Baylor student-athletes. The Fifth Circuit has never foreclosed liability for a state-create danger based on police cooperation with a third party to conceal alleged criminal conduct and obstruct law enforcement in response to a known risk of private violence. This Court will not hold that these allegations fall short of a plausible state-created danger absent clear authority from the Fifth Circuit.

The Court therefore affirms its ruling that Lozano has stated a plausible substantive due process claim against the City of Waco.

III. CONCLUSION

Accordingly, IT IS ORDERED that the City's Motion for Reconsideration (Dkt. 110) is DENIED.


Summaries of

Lozano v. Baylor Univ.

United States District Court, W.D. Texas, Waco Division.
Sep 27, 2019
408 F. Supp. 3d 861 (W.D. Tex. 2019)
Case details for

Lozano v. Baylor Univ.

Case Details

Full title:Dolores LOZANO, Plaintiff, v. BAYLOR UNIVERSITY, Art Briles, in His…

Court:United States District Court, W.D. Texas, Waco Division.

Date published: Sep 27, 2019

Citations

408 F. Supp. 3d 861 (W.D. Tex. 2019)

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