Henderson v. Killeen ISD, No. A-13-CV-471-LY, slip op. (W.D. Tex. Dec. 16, 2013)(Austin, M.J.)

This report and recommendation illustrates the challenging pleading hurdle a section 1983 plaintiff faces in suing a governmental employer based on an employee’s alleged misconduct.   In this case, a Killeen high school student claimed she had been roughed up twice by a school district police officer.  Slip op. at 1-2. Local governments are responsible for “‘their own illegal acts, and ‘are not vicariously liable under § 1983 for their employee’s actions.’”  Id. at 4 (quoting Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011).  Where the challenged conduct was not the result of a decision or act by the employer, the plaintiff must show that the “‘practice was so persistent and widespread as to practically have the force of law.’”  Id. (quoting Connick, 131 S.Ct. at 1359.  Magistrate Judge Austin concluded that “[t]wo isolated incidents clearly do not constitute a pattern of unconstitutional conduct sufficient to hold KISD liable under § 1983.”  Id. at 6-7.  For that reason, he recommended that Judge Yeakel grant the school district’s Rule 12(b)(6) motion.  Id. at 8.