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Case 4:09-cv-03895 Document 1 Filed in TXSD on 12/04/09 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION JENNIFER MENDOZA, INDIVIDUALLY, AND A/N/F OF ALEXIS MENDOZA, Plaintiff, vs. CAUSE NO. KLEIN INDEPENDENT SCHOOL DISTRICT, W. SCOTT CROWE and JURY STEPHANIE LANGNER IN THEIR OFFICIAL INDIVIDUAL CAPACITIES Defendants PLAINTIFF S ORIGINAL COMPLAINT TO THE HONORABLE JUDGE OF SAID COURT: Plaintiffs, JENNIFER MENDOZA, in her individual capacity, and A/N/F of ALEXIS MENDOZA, files this Plaintiffs Original Complaint complaining of Defendants, KLEIN INDEPENDENT SCHOOL DISTRICT ( KLEIN ISD ) and W. SCOTT CROWE and STEPHANIE LANGNER, in their official and personal capacity, and in support thereof shows as follows: A. PARTIES 1. Plaintiff, Jennifer Mendoza, is a resident of Tomball, Harris County, Texas. 2. Plaintiff Alexis Mendoza, a minor, is the daughter of Jennifer Mendoza and a Courthouse News Service student attending Klein ISD. 3. Defendant, Klein Independent School District, is a political subdivision of the State of Texas, organized pursuant to law and charged with the responsibility of operating and maintaining a public school district within its geographical boundaries, whose principal office is in Houston, Harris County, Texas. Defendant may be served with process by serving the

Case 4:09-cv-03895 Document 1 Filed in TXSD on 12/04/09 Page 2 of 9 Superintendent, Dr. James W. Cain, at 7200 Spring Cypress Road, Klein, TX. 77379, Harris County Texas, under the authority of Texas Civil Practice and Remedies Code 17.024(c). 4. Defendant W. Scott Crowe may be served at his usual place of business at 7070 FM 2920 Spring, TX. 77379, Harris County Texas, under the authority of Texas R. Civ. P. section 106. 5. Defendant Stephanie Langner may be served at her usual place of business at 7070 FM 2920, Spring, TX. 77379, Harris County Texas, under the authority of Texas R. Civ. P. section 106. B. VENUE AND JURISDICTION 6. The court has federal question jurisdiction over the lawsuit pursuant to 28 U.S.C. 1331 because the action(s) arise under the Fourth and Fourteenth Amendments of the United States Constitution and the Civil Rights Act of 1871, 42 U.S.C. 1983. The Court has supplemental jurisdiction over Plaintiffs state claims pursuant to 28 U.S.C 1367. C. CONDITIONS PRECEDENT 7. All conditions precedent have been performed or have occurred. D. FACTUAL BACKGROUND 8. Alexis Mendoza is an eighth grade student at Kimmel Intermediate School, located in the Klein ISD. 9. According to the Klein ISD s cellular phone policy, If a student is using any cell phone or pager during the school day, or on a school bus to and from school, the school employee observing the student s use of the device will confiscate it. The school employee is to

Case 4:09-cv-03895 Document 1 Filed in TXSD on 12/04/09 Page 3 of 9 turn over the device to his or her administrator/supervisor. The parent will be notified by the administrator to pick up the device at his/her school during school hours after the payment of a $15 administrtation fee. 10. Violation of the school s cell phone policy is classified as a Level I offense. 11. Sometime during the morning of November 11, 2009, Assistant Principal Stephanie Langner observed Plaintiff, Alexis Mendoza, showing a text message to another student, Brianna M. 12. Although Alexis had possession of the cell phone, the cell phone belonged to her mother, Plaintiff, Jennifer Mendoza. 13. Ms. Langner confiscated the phone pursuant to the school s cell phone policy. 14. However, instead of merely confiscating the phone and notifying Alexis mother, as per District policy, Ms. Langner proceeded to unlawfully search the contents of the phone. 15. As a result of the unlawful search, Ms. Langner discovered inappropriate pictures that were apparently attached to some text messages stored on the phone. However, the text message Alexis was showing Brianna M. at the time Ms. Langner confiscated the cell phone, did not have any picture attached. 16. After Ms. Langner discovered the inappropriate pictures, she removed Alexis from her class and placed her in In School Suspension pending a final decision as to the ultimate punishment to be administered. 17. The following day, Ms. Langner proceeded to interrogate some other students regarding the inappropriate pictures she found as a result of her unlawful search of Plaintiffs cell phone. As a result of the interrogations, Ms. Langner learned that, earlier that week, Alexis had shown the inappropriate picture(s) to a couple of her friends.

Case 4:09-cv-03895 Document 1 Filed in TXSD on 12/04/09 Page 4 of 9 18. At no time did Alexis action create a disturbance or unsafe environment at school. 19. On November 17, 2009, a campus level hearing was allegedly conducted by Principal Scott Crowe. However, Alexis and her mother were denied their right to due process in that they were not notified of the alleged hearing, nor allowed to participate in any alleged hearing. 20. As a result of the campus level hearing, despite the fact that Alexis had never been in trouble before, and cooperated in every way with the confiscation of her cell phone, and has the support of her teachers, Principal Crowe decided to assign Alexis to the District s Alternative Education Program ( DAEP ) for thirty ( 30 ) days allegedly for Incorrigible Behavior. 1 21. The DAEP does not offer the same advanced curriculum that Alexis is currently taking; thus, she will suffer a significant setback in her current studies and potential grade points. 22. Ms. Mendoza appealed the decision to Janice B. Marek, Associate Superintendent of School Administration. However, on December 2, 2009, Ms. Marek upheld the decision to assign Alexis to the DAEP. Accordingly, Plainitffs have exhausted the administrative remedies. E. COUNT I VIOLATION OF CONSTITUTIONAL RIGHTS 23. Plaintiffs incorporate herein, as if repeated verbatim, paragraph s 8 through 22. 24. But for the unlawful search of Plaintiffs cellular phone, Alexis Mendoza would not have been assigned to in-school suspension or the DAEP. 1. It is important to note that Principal Crowe assigned Alexis to the DAEP for incorrigible behavior without ever even talking to her about the incident.

Case 4:09-cv-03895 Document 1 Filed in TXSD on 12/04/09 Page 5 of 9 25. The actions of Defendants, in accessing the text messages stored on Plaintiffs cell phone without permission or any other legal justification, and thereafter using that information to go on a fishing expidition which ultimately led to an unfair and overly harsh punishment, constituted violations of Plaintiffs clearly established right to be secure in their personal effects against unreasonable searches and seizures as provided by the Fourth Amendment of the U.S. Constitution and Article I, Section 9 of the Texas Constitution. 26. School employees who implement school board policy and the school district itself are legally accountable for any constitutional violations they commit in the performance of their public duties. 27. A school district may not use its authority to fish for evidence of wrongdoing. Moreover, under the exclusionary rule, any fruit of such unlawful search cannot, as a matter of law, be used as a basis for disciplinary action. 28. Because Defendants, under the color of state law, subjected Plaintiffs to the deprivation of their Fourth Amendment Rights, and such rights are clearly established and objectively unreasonable, Defendants are liable to Plaintiffs pursuant to the provisions of Title 42 of the U.S.C. 1983. 29. Defendants actions were willful, wanton violations of Plaintiffs civil rights and were taken in bad faith, with an improper motive and with reckless and callous indifference to the Plaintiffs rights. 30. Klien ISD was grossly negligent by failing to create policies and procedures to prevent the forgoing unconstitutional and illegal action committed by Defendants Crowe and Langner.

Case 4:09-cv-03895 Document 1 Filed in TXSD on 12/04/09 Page 6 of 9 31. Klien ISD was grossly negligent and deliberatly indifferent in its failure to develop, implement, teach and carry out policies, practices and procedures designed to prevent employees of the District from engaging in unlawful searches and seizures, and the deprivation of the Constitutional Rights of its students, and its failure to properly and adequatley train administrators on student rights issues regarding search and seizure. Such failure(s) demonstrating the District s deliberate indifference to the constitutional rights of its student citizens. F. COUNT II - NEGLIGENCE 32. Plaintiffs incorporate herein, as if repeated verbatim, paragraph s 8 through 31. 33. Defendants, Crowe and Langner had a duty not to violate Plaintiffs constitutional rights. 34. Defendants, Crowe and Langner breached their duty in that, without notice to, or permission from Plaintiffs, they unlawfully intercepted and accessed text messages stored on Plaintiffs cell phone. Defendants Crowe and Langner accessed and searched Plaintiffs cell phone without probable cause, or any reasonable belief that other school policies were being violated at that time. Such search constituted an unreasonable search and seizure in violation of the Fourth Amendment of the U.S. Constitution and Article I, Section 9 of the Texas Constitution. 35. Defendants, Crowe and Langner performed the forgoing acts when they knew, or should have known, that the aforementioned acts constituted violations of the Plaintiffs constitutional rights.

Case 4:09-cv-03895 Document 1 Filed in TXSD on 12/04/09 Page 7 of 9 36. As a direct and proximate result of the above breach of duty, Plaintiffs have suffered damages in the form of severe emotional distress. 37. As a direct and proximate result of the above described occurance, Alexis Mendoza has been subjected to excessive punishment and denied the abilty to continue with the curriculum and participate in the advanced placement courses in which she is currently enrolled, depriving her of the benefits associated with such advanced placement. G. COUNT III VIOLATION OF TEXAS CIVIL PRACTICE AND REMEDIES CODE 38. Plaintiffs incorporate herein, as if repeated verbatim, paragraph s 8 through 37. 39. Texas Civil Practice And Remedies Code 123.002, provides, A Party to a communication may sue a person who: (1) intercepts, attempts to intercept or obtains another to intercept the communication; or (2) uses or divulges information that he knows or reasonably should know was obtained by intereception. 40. As a result of the aformentioned actions, Defendants Klein ISD, by and through its agents, as well as Langner and Crowe in their individual capacities, violated the Texas Civil Practice and Remedies Code 123.002. H. COUNT IV - INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 41. Plaintiffs incorporate herein, as if repeated verbatim, paragraphs 8 through 40. 42. Defendants Crowe and Langner assigned Alexis Mendoza to the Districts Alternative Education Program for incorrigible behavior. 43. The DAEP is reserved for serious offenders, including but not limited to, those students convicted of felonies, selling drugs, recruiting gang members, etc.

Case 4:09-cv-03895 Document 1 Filed in TXSD on 12/04/09 Page 8 of 9 44. There is absolutely no factual basis to impose such severe punishment on Alexis, much less any factual basis for labeling Alexis as incorrigible. 45. Defendants, Crowe s and Langner s, actions were intentional and/or reckless, were extreme and outrageous, and proximately caused Plaintiffs severe emotional distress. I. REQUESTED RELIEF 46. Plaintiffs seek unliquidated damages within the jurisdictional limits of this Court. 47. Plaintiffs seek declaratory judgment that the search and seizure of Plaintiffs cell phone has violated Plaintiffs constitutional and civil rights. 48. Plaintiffs seek an injunction against Defendants from assigning Alexis to the District s Alternative Education Program. 49. Plaintiffs request the Court order Klein ISD to remove any negative information contained in Alexis student file related to anything discovered as a result of Defendants unlawful search and seizure. 50. Plaintiffs seek an injunction against Defendants from conducting searches of cell phones in the future without reasonable cause. 51. Plainitffs seek statutory damages pursuant to the Texas Civil Practice and Remedies Code 123.004, of $10,000 for each occurance; actual damages in excess of $10,000, and punitive damages against the individual defendants in an amount determined by the Court. 52. As a result of Defendants unlawful conduct, Plaintiffs have retained an attorney to pursue this action. Pursuant to 42 U.S.C. 1983 and the Texas Civil Practice and Remedies Code, Plaintiff is entitled to recover reasonable and necessary attorneys fees incurred in pursuing their claims in this lawsuit.

Case 4:09-cv-03895 Document 1 Filed in TXSD on 12/04/09 Page 9 of 9 53. Plaintiffs seek other such forms of relief or remedy which this Court deems just and equitable in this manner. Respectfully submitted, //S// David J. Manley State Bar No. 24001593 Federal Id. 24301 15201 Mason Rd. Suite 1000-211 Cypress, Texas 77433 Telephone No.: (281) 687-6889 Facsimile No.: (713) 481-6367 ATTORNEY FOR PLAINTIFFS JENNIFER MENDOZA INDIVIDUALLY AND A/N/F OF ALEXIS MENDOZA.