Moore et al v. Chilton County Board of Education
MEMORANDUM OPINION AND ORDER: it is ORDERED that Dfts' 11 Motion to Dismiss is GRANTED in part and DENIED in part as follows: (1) The motion to dismiss the Section 1983 claim is GRANTED; (2) The motion to dismiss the ADA and Section 504 claims is DENIED; and (3) The motion to dismiss the punitive damages request on the ADA and Section 504 claims is GRANTED. Signed by Chief Judge William Keith Watkins on 3/27/2013. (Attachments: # 1 Civil Appeals Checklist) (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
JILL MOORE and JIM MOORE,
as Statutory Beneficiaries of A.M.,
and on behalf of the Estate of A.M.,
CHILTON COUNTY BOARD
) CASE NO. 2:12-CV-424-WKW
MEMORANDUM OPINION AND ORDER
This case involves the tragic suicide of a high school-aged girl who on May 18,
2010, jumped to her death from an interstate overpass. Her parents, Jill and Jim
Moore, allege that Defendant Chilton County Board of Education knew about, but
failed to protect their daughter from, incessant peer-on-peer bullying and disability
harassment, and that the Board’s failure to act caused their daughter’s suicide.
Plaintiffs bring constitutional claims under 42 U.S.C. § 1983, and allege violations
of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, and Section 504
of the Rehabilitation Act, 29 U.S.C. § 794.
Before the court is the Board’s motion to dismiss (Doc. # 11), which has been
fully briefed (Docs. # 12, 16, 17, 18). After careful consideration of the arguments
of counsel and the relevant law, the court finds that the motion is due to be granted
in part and denied in part.
I. JURISDICTION AND VENUE
Subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1331. Personal
jurisdiction and venue are uncontested.
II. STANDARD OF REVIEW
In ruling on a Rule 12(b)(6) motion to dismiss, courts “must accept the well
pleaded facts as true and resolve them in the light most favorable to the plaintiff.”
Paradise Divers, Inc. v. Upmal, 402 F.3d 1087, 1089 (11th Cir. 2005) (citation and
internal quotation marks omitted). To survive Rule 12(b)(6) scrutiny, “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 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[F]acial plausibility” exists
“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. (citing
Twombly, 550 U.S. at 556). Moreover, a court may dismiss a complaint under Rule
12(b)(6) when a dispositive issue of law precludes a plaintiff from maintaining a
cause of action on the facts alleged. See Day v. Taylor, 400 F.3d 1272, 1275 (11th
The following facts, accepted as true, are from the Complaint. Plaintiffs’
daughter, A.M., was a student at Jemison High School, which was operated by
Defendant Chilton County Board of Education (“Board”). She suffered from
Blount’s Disease, a “growth disorder that causes the lower leg to angle inward,
making the person appear bow-legged.” (Compl. ¶ 7.) A.M. also was overweight as
a result of an eating disorder. Her physical attributes made her a “target for a wide
variety of bullies at school.” (Compl. ¶ 13.) And targeted she was, “virtually every
day.” (Compl. ¶ 44.) Among other things, A.M.’s peers called her cruel names,
“pushed” her, “made fun of her,” knocked her books to the floor, and subjected her
to “pig races” on the school bus.1 (Compl. ¶¶ 45, 46.) On one occasion, her
classmates locked her in a janitor’s closet and on another occasion, “stripped down”
her pants and underwear in front of other peers. (Compl. ¶ 45.)
When A.M. complained about the cruel treatment, presumably to her teachers
or other school officials, they “punished” her for having a “bad attitude.” (Compl.
¶ 44.) School personnel punished her by giving her detention and placing her in timeout. (Compl. ¶ 60.) Additionally, although Blount’s Disease caused A.M. to be
The Complaint describes the “pig races” as a school-bus game in which a high school
senior male grabs an “ugly,” “fat” girl and kisses her on the cheek, in front of jeering students.
“unusually slow” (Compl. ¶ 9), rather than accommodate her slowness, teachers
punished A.M. for being late to class.
Plaintiffs allege that numerous school administrators, including teachers,
witnessed the bullying, and that A.M. reported many of the incidents of bullying, but
that no school official did anything to stop it. The bullying ceased on May 18, 2010,
but sadly only because A.M. penned a suicide note and took her own life.
As a result of A.M.’s suicide, Plaintiffs filed this lawsuit against the Board.
The Complaint asserts three claims arising under federal law.2 In Count I, brought
under 42 U.S.C. § 1983, Plaintiffs allege that A.M. had a “right to life” and a “right
to bodily integrity” (which included a right “to be free of restraint, punishment, or
physical assault and battery by school officials, and by peers”), and that the Board “at
a minimum, [was] indifferent to [her] rights.” (Compl. ¶ 48.) Plaintiffs aver that
ultimately, the Board’s “informal policy – to fail to train, supervise or monitor [its
employees] on the dangers of bullying in school – was a moving force in the eventual
suicide of” A.M. (Compl. ¶ 54.) This count implicates the substantive component
of the Fourteenth Amendment’s Due Process Clause.
The counts in the Complaint are not numbered. For ease of reference, the court refers to
the claims as “Count I,” “Count II,” and “Count III.”
In Count II, Plaintiffs allege discrimination on the basis of disability, in
violation of Section 504 of the Rehabilitation Act (“Section 504”), 28 U.S.C. § 794.
Plaintiffs aver that “solely by reason” of A.M.’s disabilities (identified in the
Complaint as Blount’s Disease and an eating disorder), A.M. was “excluded from the
education activity that was available to other students.” (Compl. ¶ 58.) In this count,
Plaintiffs contend that A.M.’s disabilities made her an “easy target” of bullying and
that the Board “acted in bad faith in failing to provide appropriate and necessary
accommodation to allow [A.M.] to receive educational benefits.” (Compl. ¶ 61.)
Count III alleges that the same facts that give rise to a violation of Section 504 also
constitute a violation of Title II of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12132. Plaintiffs seek compensatory and punitive damages, costs, interest,
and attorney’s fees.
The Board asserts six grounds for dismissal of Plaintiffs’ Complaint:
(1) failure to exhaust administrative remedies under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1415(l); (2) failure to state facts that give rise
to a Section 1983 Fourteenth Amendment substantive due process violation;
(3) failure to state a claim for disability discrimination under the ADA or Section 504;
(4) the absence of a proper party plaintiff; (5) failure of Plaintiffs’ claims to survive
A.M.’s death; and (6) the unavailability of punitive damages under the ADA and
Section 504. For the reasons to follow, the court finds that grounds (1), (3), (4) and
(5) do not warrant dismissal of the ADA and Section 504 claims, but that the ADA
and Section 504 preclude the recovery of punitive damages (ground 6). The court
further finds that, based upon ground (2), the Section 1983 claim is subject to
The Exhaustion Requirement Under the IDEA
It may seem odd that the discussion begins with the IDEA, given that the
Complaint does not include a claim under this federal statute. As explained, however,
the claim’s absence alone does not foreclose the applicability of the IDEA’s
administrative exhaustion requirements to Plaintiffs’ Section 1983, ADA, and Section
504 claims. Though the Board says the IDEA applies, the court disagrees.
The IDEA “ensure[s] that all children with disabilities have available to them
a free appropriate public education [FAPE] that emphasizes special education and
related services designed to meet their unique needs and prepare them for
employment and independent living.” M.T.V. v. DeKalb Cnty. Sch. Dist., 446 F.3d
1153, 1157 (11th Cir. 2006) (citing 20 U.S.C. § 1400(d)(1)(A)). The IDEA does not
prevent plaintiffs from bringing claims for “remedies available under the
Constitution, [the ADA, Section 504], or other Federal laws protecting the rights of
children with disabilities.” Id. at 1158 (quoting 20 U.S.C. § 1415(l)). The IDEA
requires, however, that prior to bringing such suits under other federal laws, plaintiffs
must exhaust the IDEA’s administrative remedies under Section 1415(l) to the extent
that the claims are “seeking relief that is also available” under the IDEA. § 1415(l);
see also Babicz v. Sch. Bd. of Broward Cnty., 135 F.3d 1420, 1422 (11th Cir. 1998)
(holding that plaintiffs must exhaust IDEA’s administrative remedies “before
presenting federal claims regarding the denial of publicly financed special education
under Section 504 and the ADA”); see also J.P. v. Cherokee Cnty. Bd. of Educ., 218
F. App’x 911, 913 (11th Cir. 2007) (“The exhaustion requirement applies to claims
asserting the rights of disabled children under not only the IDEA, but also the ADA,
§ 504 . . . , and the Constitution.” (citing M.T.V., 446 F.3d at 1158)).
Thus, “the philosophy of the IDEA is that plaintiffs are required to utilize the
elaborate administrative scheme established by the IDEA before resorting to the
courts to challenge the actions of the local school authorities.” M.T.V., 446 F.3d
at 1158 (citation and internal quotation marks omitted). However, the exhaustion
requirement is not absolute. “The exhaustion of the administrative remedies is not
required where resort to administrative remedies would be 1) futile or 2) inadequate.”
N.B. v. Alachua Cnty. Sch. Bd., 84 F.3d 1376, 1379 (11th Cir. 1996); see also M.T.V.,
446 F.3d at 1159.
Here, the Board argues that Plaintiffs’ ADA and Section 504 claims are
disguised IDEA claims because the gravamen of the Complaint is that A.M. had
physical disabilities that qualified her for accommodations necessary to provide her
an appropriate and safe educational environment. Thus, the Board contends that these
claims are subject to the IDEA’s requirement that litigants exhaust administrative
procedures prior to bringing suit.
Plaintiffs do not dispute the Board’s
characterization of their ADA and Section 504 claims,3 and they concede that they did
not pursue administrative remedies. Instead, Plaintiffs contend that IDEA exhaustion
is not required (1) because they are seeking monetary damages, which are “not an
IDEA remedy” (Doc. # 17, at 20) or, alternatively, (2) because exhaustion would be
futile. The first argument lacks merit; the second argument does have merit, but on
slightly different grounds than urged by Plaintiffs.
It is true that the damages Plaintiffs seek are not available under the IDEA.
“[T]he IDEA does not provide a cause of action for tort-like relief.” Ortega v. Bibb
The Complaint includes allegations that A.M. was denied “educational activit[ies]” and
“educational benefits” and that the Board generally abandoned its role to “provide education” to
A.M. (Compl. ¶¶ 58, 61.) These allegations on their face relate to A.M.’s education and, absent
any contrary argument from Plaintiffs, the court assumes without deciding that the ADA and
Section 504 claims fall within the IDEA’s purview. Cf. M.T.V., 446 F.3d at 1158–59
(“[Plaintiff’s] retaliation claims clearly relate to [the disabled child’s] evaluation and education,
and, therefore, are subject to the exhaustion requirement.”); see also J.P., 218 F. App’x at 913
(observing that the IDEA’s provision that “any matter relating to the identification, evaluation, or
educational placement of the child, or the provision of a [FAPE] to such child,” 20 U.S.C.
§ 1415(b)(6), “appl[ies] to a ‘broad’ spectrum of claims” (quoting M.T.V., 446 F.3d at 1158)).
County School District, 397 F.3d 1321, 1326 (11th Cir. 2005); see also id. at 1325
(“Although the IDEA provides various types of remedies for plaintiffs – including
restitution for some parental expenses, compensatory education for students, and
procedural remedies – the statute does not provide tort-like relief.”). But Plaintiffs’
brief stops short of providing any authority to support their contention that they may
bypass the IDEA’s administrative remedies by restricting their prayer for relief to
And there is Eleventh Circuit authority undermining that
In N.B. v. Alachua County School Board, 84 F.3d 1376 (11th Cir. 1996),
decided on a motion to dismiss, the plaintiff made an argument similar to the one
Plaintiffs make. The N.B. plaintiffs sought to avoid the IDEA exhaustion requirement
by arguing that the money damages they had requested in their lawsuit were not
available to them through the school district’s administrative process. Id. at 1379.
The Eleventh Circuit reasoned that accepting the plaintiffs’ argument would mean
that “future litigants could avoid the exhaustion requirement simply by asking for
relief that administrative authorities could not grant.” Id. Such an avoidance tactic,
the Eleventh Circuit continued, was contrary to the core reason for the “exhaustion
requirement, which is ‘[to prevent] deliberate disregard and circumvention of agency
procedures established by Congress.’” Id.; see also J.P., 218 F. App’x at 914 n.5
(rejecting the plaintiffs’ contention that “exhaustion of administrative remedies would
be futile because the money damages they seek relate to only past injuries”); Babicz,
135 F.3d at 1422 n.10 (noting that “[i]mplicit in th[e] legal strategy to avoid IDEA
is an apparent desire for compensatory damages not available under IDEA”).
Based upon clear Eleventh Circuit precedent, Plaintiffs cannot avoid IDEA
exhaustion simply by restricting their prayer for relief to monetary damages.
Accordingly, the court rejects Plaintiffs’ first argument against IDEA exhaustion
Plaintiffs’ second argument is grounded in the futility doctrine. Plaintiffs argue
that they have alleged a plausible basis for application of the futility exception to the
IDEA’s exhaustion requirement.
Namely, they assert that they were denied
meaningful access to the IDEA’s administrative procedures because their daughter’s
suicide occurred before they knew about the bullying. But the three cases upon
which Plaintiffs rely are not helpful. In Papania-Jones v. Dupree, 275 F. App’x 301
(5th Cir. 2008), the plaintiffs argued futility on the basis that they “did not know of
the IDEA’s requirement to exhaust all its administrative remedies,” but the Eleventh
Circuit held that their ignorance was “not a valid excuse.” Id. at 303. In Honig v.
Doe, 484 U.S. 305 (1988), the Supreme Court recognized the futility and inadequacy
exceptions to administrative exhaustion. But beyond pronouncing those general
principles, Honig does not assist Plaintiffs with their specific plight, and the same can
be said about McPhillips v. Blue Cross Blue Shield of Alabama, No. 10cv615, 2010
WL 3833950 (M.D. Ala. Sept. 23, 2010), an ERISA case upon which Plaintiffs rely.
The Board argues that this should end the analysis, that Plaintiffs’ failure to
exhaust the IDEA’s administrative remedies requires dismissal, and that it is too late
now for Plaintiffs to exhaust administrative remedies “since the decedent is no longer
a student.” (Doc. # 12, at 10.) Dismissal of the ADA and Section 504 claims for
failure to exhaust seems unusually harsh, however. A.M.’s parents have nothing to
gain from IDEA’s administrative exhaustion requirements, given that their daughter
has died. Notwithstanding the lack of further development by Plaintiffs as to their
futility argument, the court has explored whether A.M.’s death creates a futility
exception to the IDEA’s exhaustion requirement.
The court did not find, and the parties do not cite, any Eleventh Circuit
decision similar enough to prevent application of the futility exception here. For
example, in N.B., the Eleventh Circuit addressed the issue of futility where the parents
had removed their child from the public school system. 84 F.3d at 1379. It held, “If
parents can bypass the exhaustion requirement of the IDEA by merely moving their
child out of the defendant school district, the whole administrative scheme
established by the IDEA would be rendered nugatory.” Id. “Permitting parents to
avoid the requirements of the IDEA through such a ‘back door’ would not be
consistent with the legislative intent of the IDEA.” Id.; accord Doe v. Smith, 879
F.2d 1340, 1343 (6th Cir. 1989) (holding parents may not avoid the state
administrative process through the “unilateral act of removing their child from a
public school”). Such back door tactics and unilateral parental actions are not at play
in view of A.M.’s tragic death.
The decision in Taylor v. Altoona Area School District, 737 F. Supp. 2d 474
(W.D. Pa. 2010), however, is analogous factually in its material respects. There, a
parent brought an IDEA action against a public school district after her son, Devin,
died from a severe asthma attack he suffered in the classroom. The court found that,
although the parent did not exhaust any administrative procedures under the IDEA,
she was excused from doing so on grounds of futility. “Devin has died, and [his
mother] cannot obtain her desired relief through the administrative process.” Id.
at 482. “Once Devin died, it was futile for [his mother] to seek relief through the
IDEA’s administrative process.” Id. at 483. In support of its finding, the district
court relied on a narrow exception to IDEA exhaustion earlier forecast by the Third
Circuit. See id. (The Third Circuit has “imagined ‘other very narrow exceptions
permitting the exhaustion requirement to be waived . . . such as where the parents of
a deceased child seek damages for a school board’s failure to provide IDEA services
while the child was still alive.’” (quoting W.B. v. Matula, 67 F.3d 484, 496 (3d Cir.
1995), abrogated in part on other grounds by A.W. v. Jersey City Pub. Schs., 486
F.3d 791 (3d Cir. 2007))); but see Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 63
(1st Cir. 2002) (holding that the student’s graduation did not excuse the parents’
failure to exhaust administrative remedies because the parents “could have invoked
[the IDEA] at any of several different points during [the student’s] high school
Under Taylor’s rationale, a student’s death can be the very reason for
implementing the futility exception to IDEA administrative exhaustion. Here, as in
Taylor, A.M. has died. The possibility of her parents obtaining any IDEA-based
relief is an impossibility. Additionally, and importantly, there are no facts in the
Complaint that indicate that A.M.’s parents purposefully delayed challenging the
effect the bullying had on A.M.’s education in an IDEA administrative process.
Hence, this case is distinguishable from Frazier, supra. At this stage of the
proceedings, the court declines to dismiss this action for Plaintiffs’ failure to exhaust
the IDEA’s administrative remedies. Accordingly, the Board’s motion to dismiss on
this ground is due to be denied.4
Count I: Section 1983 Claim for a Substantive Due Process Violation
Under the Fourteenth Amendment
To prevail on their Section 1983 claim, Plaintiffs must establish (1) that the
Board deprived A.M. of a right secured by the United States Constitution, and (2) that
the Board acted under color of state law. See Arrington v. Cobb Cnty., 139 F.3d 865,
872 (11th Cir. 1998). Because Plaintiffs sue a local governmental entity for a Section
1983 violation, they must show not only a constitutional deprivation, but also that the
Board “is responsible for that violation.” Wyke v. Polk Cnty. Sch. Bd., 129 F.3d 560,
568 (11th Cir. 1997). The Board’s responsibility can attach through the “execution
of a government’s policy or custom [that] . . . inflicts the injury.” Id. (citation and
internal quotation marks omitted).
The Board argues that Plaintiffs’ Section 1983 claim fails on the first Arrington
element because Plaintiffs do not allege plausible facts establishing that the Board
deprived A.M. of any constitutional rights or owed any duty to protect her. The first
Because Plaintiffs presently are excused from the exhaustion requirement, the court
need not reach the Board’s argument that Plaintiffs failed to exhaust the IDEA’s administrative
remedies “within two years of the date they knew about any alleged action by the Board . . . .”
(Doc. # 12, at 19.)
task, then, is “to identify the specific constitutional right allegedly infringed.”
Albright v. Oliver, 510 U.S. 266, 271 (1994). The Complaint alleges that the Board
deprived A.M. of the “right to life” and the “right to bodily integrity” (which
Plaintiffs contend includes a right “to be free of restraint, punishment, or physical
assault and battery by school officials, and by peers”). (Compl. ¶ 48.) Although the
Complaint fails to identify any constitutional provision, the right to life and the right
to bodily integrity arise from the substantive component of the Due Process Clause
of the Fourteenth Amendment. See generally Albright, 510 U.S. at 272.
Under the Due Process Clause of the Fourteenth Amendment, no state can
deprive “any person of life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. However, “nothing in the language of the Due Process
Clause itself requires the State to protect the life, liberty, and property of its citizens
against invasion by private actors.” DeShaney v. Winnebago Cnty. Dep’t of Soc.
Servs., 489 U.S. 189, 195 (1989). The Board argues that based upon DeShaney and
its progeny, the Board did not owe a constitutional duty to protect A.M. from harm
by other students or ultimately from herself.
In DeShaney, a four-year-old boy suffered permanent brain damage inflicted
by his custodial father. The boy’s non-custodial mother brought a Section 1983
action against the county’s social services department and several of its employees.
She alleged that the defendants deprived her son of his Fourteenth Amendment
substantive due process right to be free from “unjustified intrusions on personal
security” because they knew about the father’s propensity for violence, but failed to
intervene and protect the child. See id. at 191–93. The Supreme Court held that the
Due Process Clause does not impose an affirmative duty on the government to
guarantee “certain minimal levels of safety and security.” Id. at 195. This is true
even where governmental “aid may be necessary to secure life, liberty, or property
interests of which the government itself may not deprive the individual.” Id. at 196.
“[A] State’s failure to protect an individual against private violence simply does not
constitute a violation of the Due Process Clause.” Id. at 197.
As in DeShaney, A.M.’s tormentors are private actors, her peers. Plaintiffs
seek to hold the Board liable for its failure to take affirmative steps to prevent those
private actors from bullying her and ultimately to prevent A.M.’s suicide. DeShaney
makes clear, however, that the Board had no affirmative duty in these circumstances.
DeShaney establishes that a State’s failure to act, even when the State knows harm
may occur absent its intervention, is not enough to state a substantive due process
Plaintiffs fail to acknowledge DeShaney’s import or even to cite it. Impliedly,
however, they make two attempts to avert it. First, Plaintiffs argue that this case
“lends itself to eventual proof that the [Board’s] conduct (as distinguished from the
conduct of the bullying perpetrators) was egregious” in the constitutional conscienceshocking sense. (Doc. # 17, at 15–16.) Second, Plaintiffs devote substantial
discussion to the argument that the Board is liable for its unconstitutional policies or
customs, including the Board’s failure to train and supervise its employees on the
dangers of bullying. (See Doc. # 17, at 6–12.) Neither argument averts DeShaney’s
As to Plaintiffs’ first argument, “[c]onduct by a government actor will rise to
the level of a substantive due process violation only if the act can be characterized as
arbitrary or conscience-shocking in a constitutional sense.” Davis v. Carter, 555 F.3d
979, 982 (11th Cir. 2009). Arbitrary or conscience-shocking conduct creates an
exception to DeShaney’s general rule where non-custodial relationships are at issue.5
See generally Waddell v. Hendry Cnty. Sheriff’s Office, 329 F.3d 1300, 1305 (11th
Cir. 2003) (discussing this exception in the context of DeShaney and its progeny).
Plaintiffs do not allege or argue, nor could they do so successfully, that A.M. was in a
custodial relationship with the Board. See Nix v. Franklin Cnty. Sch. Dist., 311 F.3d 1373, 1378
(11th Cir. 2002) (“[S]choolchildren are not in a custodial relationship with the state.”); see also
Davis, 555 F.3d at 982 n.2 (noting that “compulsory school attendance laws do not constitute a
restraint on personal liberty” sufficient to establish a custodial relationship between a student and
a school so as to give rise to an affirmative duty of protection under the Due Process Clause’s
The standard has a high threshold, and even allegations of “deliberate indifference”
do not satisfy its demands:
The concept of conscience-shocking conduct duplicates no traditional
category of common-law fault, but rather points clearly away from
liability, or clearly toward it, only at the ends of the tort law’s spectrum
of culpability. The Supreme Court has made clear the due process
guarantee does not entail a body of constitutional law imposing liability
whenever someone cloaked with state authority causes harm. Thus, the
Fourteenth Amendment is not a font of tort law that can be used,
through section 1983, to convert state tort claims into federal causes of
action. To rise to the conscience-shocking level, conduct most likely
must be intended to injure in some way unjustifiable by any government
Davis, 555 F.3d at 982 (internal citations and quotation marks omitted); see also Nix
v. Franklin Cnty. Sch. Dist., 311 F.3d 1373, 1376 (11th Cir. 2002) (observing that
courts must remain vigilant “to prevent the Fourteenth Amendment from becoming
a surrogate for conventional tort principles”).
In Davis, the Eleventh Circuit observed that, in the school setting, it had found
conscience-shocking conduct viable as a substantive due process claim in only two
cases, both involving excessive corporal punishment. See 555 F.3d at 983 (citing
Neal v. Fulton Cnty. Bd. of Educ., 229 F.3d 1069 (11th Cir. 2000), and Kirkland v.
Greene Cnty. Bd. of Educ., 347 F.3d 903 (11th Cir. 2003)). It explained:
In Neal, the court concluded a high school coach’s conduct rose to the
level of a constitutional violation. 229 F.3d at 1076. There, the coach
intentionally struck a student with a metal weight lock, knocking the
student’s eye out of its socket, as a form of punishment for his
involvement in a fight with another student. Id. at 1071. In finding a
violation of the student’s substantive due process rights, the court
reasoned that the school official “intentionally us[ed] an obviously
excessive amount of force that presented a reasonably foreseeable risk
of serious bodily injury.” Id. at 1076. Importantly, it made clear the
claims of excessive corporal punishment shaped the outcome. Id.
Similarly, in Kirkland v. Greene County Board of Education, 347 F.3d
903 (11th Cir. 2003), the court concluded a high school principal
violated a student’s constitutional rights after he struck the student with
a metal cane in the head, ribs, and back for disciplinary reasons. Id.
Id. at 982.
The perpetrators in Neal and Kirkland were teachers, state actors. Both Neal
and Kirkland involved direct, intentional physical abuse by a state actor that resulted
in immediate and severe physical injuries to a student. Here, the allegations do not
involve a teacher’s or other school official’s intentional acts of physical abuse against
a student. Rather, as stated, the perpetrators of the bullying were not state actors.
They were A.M.’s classmates, and, as tragic as it is, A.M.’s death was self-inflicted.
The absence of state-occasioned, affirmative, and intentional conduct distinguishes
this case, not only from Neal and Kirkland, but also from the Fifth Circuit decisions
upon which Plaintiffs rely.6
Plaintiffs cite Doe v. Taylor Independent School District, 15 F.3d 443 (5th Cir. 1994),
and Jefferson v. Ysleta Independent School District, 817 F.2d 303 (5th Cir. 1987). The
substantive due process violations arose in Doe from a claim that a teacher had sexually harassed
students and, in Jefferson, from a claim that a teacher had strapped a student to a chair.
Moreover, in Doe, in finding a substantive due process violation, the Fifth Circuit distinguished
Moreover, Plaintiffs’ reliance on the Board’s failure to act will not suffice to
state a substantive due process claim. To this end, the court has considered the nature
of the peer-to-peer bullying conduct targeting A.M. – which included, but was not
limited to, the “pig races,” repeated instances of name-calling, an incident where
A.M. was locked in a janitor’s closet, and another incident where A.M. was “depantsed” – and assumes as true that the Board knew about most, but did nothing in
response. However, in light of the high bar for satisfying the conscience-shocking,
constitutional standard, as illustrated by Neal and Kirkland, the court finds that the
Board’s inaction simply does not rise to the level of conscience-shocking as a matter
The allegations with respect to the Board’s failure to act demonstrate at most
deliberate difference on the part of the Board, not conduct “intended to injure in some
way unjustifiable by any government interest.” Davis, 555 F.3d at 982. Other courts
also have concluded that allegations similar to those Plaintiffs allege fall short of
establishing conscience-shocking conduct sufficient to state a substantive due process
violation, and Plaintiffs do not cite any persuasive case law that supports a contrary
finding. See, e.g., Smith v. Guilford Bd. of Educ., 226 F. App’x 58, 62 (2d Cir. 2007)
DeShaney on the ground that in DeShaney, the “child was rendered comatose by injuries inflicted
by his own father, a private (as opposed to state) actor.” 15 F.3d at 451 n.3.
(The school defendants’ “failure to respond to the harassing and bullying to which
Jeremy was subjected (taking Plaintiffs’ assertions to be true), while highly
unfortunate, does not rise to the level of egregious conduct . . . so brutal and offensive
to human dignity as to shock the conscience” (citation and internal quotation marks
omitted)); Long v. Murray Cnty. Sch. Dist., No. 4:10cv15, 2012 WL 2277836, at *24
(N.D. Ga. May 21, 2012) (Allegations that the school district failed “to train and
provide adequate protection for Tyler, despite actual knowledge of his disability and
pervasive bullying, at best establish negligence or deliberate indifference,” not
arbitrary or conscience-shocking conduct in a constitutional sense.); Castaldo v.
Stone, 192 F. Supp. 2d 1124, 1173 (D. Colo. 2001) (“[T]he School Defendants’
alleged toleration of bullying, teasing, and intimidation on the part of the Columbine
student body, while reprehensible if true, is not conscience shocking in a Fourteenth
Amendment substantive due process sense.”). All in all, the allegations that the
Board failed to prevent the bullying A.M. suffered, even if that failure is regrettable,
does not shock the conscience in a constitutional sense under the strict Eleventh
Finally, to the extent that there are allegations of state-action corporal
punishment, those allegations are at best peripheral. The Complaint alleges only that
school officials “criticized” A.M. when she was late to class and subjected her to an
indeterminate number of detentions and time-outs. (Compl. ¶ 59.) It fails to allege,
however, that a school official used any amount of force in punishing A.M., much
less used force that presented a reasonably foreseeable risk of serious bodily injury.
See Neal, 229 F.3d at 1075 (setting forth what facts, at a minimum, a plaintiff must
allege to state a claim for excessive corporal punishment that equates to arbitrary or
conscience-shocking behavior). In sum, there are no plausible facts from which to
infer conscience-shocking conduct by the Board.
At bottom, Plaintiffs contend that third-parties’ intentional bullying acts
subjected A.M. to a risk of harm that the Board failed to prevent. The Board’s
liability hinges on whether it owed a substantive-due-process duty to protect A.M.
from third-party bullying or from her own suicide. No matter how tragic these events,
the Board did not owe a duty. This brings the discussion back full circle to
On the facts alleged, DeShaney does not extend a substantive due process right
to A.M. or impose a corresponding duty of protection on the Board. Rather,
DeShaney establishes that the Board did not have a substantive due process duty to
protect A.M. against the bullying conduct of her peers or from her own suicide, and
“its failure to do so – though calamitous in hindsight – simply does not constitute a
violation of the Due Process Clause.” 489 U.S. at 202. For these reasons, Plaintiffs
fail to allege that the Board deprived A.M. of a right secured by the United States
In light of this finding, Plaintiffs’ second argument – that the Board’s failure
to train its employees on the dangers of bullying – cannot revive the substantive due
process claim. The Eleventh Circuit’s decision in Wyke v. Polk County School Board,
129 F.3d 560 (11th Cir. 1997), is controlling. There, the court held that a school
board did not violate the substantive due process rights of its student by failing to
protect him from committing suicide at home. See id. at 568–70. There was no
constitutional violation, even though the school board knew, but did not tell the
parents, that the student had made two failed attempts at suicide while at school. See
The Wkye plaintiff argued that she had a cognizable Section 1983 claim on the
basis that the school board’s “failure to train its employees in suicide prevention and
intervention constituted deliberate indifference to [the student’s] substantive due
process rights.” Id. at 568. But the Eleventh Circuit concluded that the plaintiff
“could not escape the import of DeShaney by relying on Canton’s failure to train
theory.” Id. (citing Canton v. Harris, 489 U.S. 378 (1989)). That is, before the
Eleventh Circuit could address the school board’s liability for a failure to train its
employees, it had to determine whether there was an underlying constitutional
violation committed by any of the board’s employees. See id. at 568–69. The
Eleventh Circuit held that DeShaney required it to answer the first question in the
negative. See id. at 569. Hence, it did not reach the second question. Id.; see also
Garczynski v. Bradshaw, 573 F.3d 1158, 1170 (11th Cir. 2009) (“Analysis of a state
entity’s custom or policy [of failing to train its employees] is unnecessary . . . when
no constitutional violation has occurred.”).
Plaintiffs fail to allege plausibly that the Board deprived A.M. of her
constitutional rights. Absent any constitutional violation, the court need not explore
whether the allegations pertaining to the Board’s training policies or customs
concerning anti-bullying violated A.M.’s constitutional rights. Thus, as in Wyke, the
court need not reach Plaintiffs’ failure-to-train arguments. See 129 F.3d at 568–69.
In sum, the allegations fail to allege a Section 1983 claim that is “plausible on
its face.” Bell, 550 U.S. at 570. Accordingly, the Board’s motion to dismiss the
Section 1983 claim is due to be granted.
Counts II and III: The ADA and Section 504 Claims
Counts II and III allege ADA and Section 504 claims.7 Under Section 504,
Plaintiffs must prove that the Board “intended to discriminate against [A.M.] on the
basis of [her] disability.” T.W. ex rel. Wilson v. Sch. Bd. of Seminole Cnty., 610 F.3d
588, 604 (11th Cir. 2010) (citation and internal quotation marks omitted). The ADA
implements the same rule of nondiscrimination as Section 504. See id. (observing
that “the same standards govern discrimination” under Section 504 and the ADA).
The court will analyze the ADA and Section 504 claims together as the parties have.
To prevail under the ADA or Section 504, a plaintiff must prove that he or she
(1) had an actual or perceived disability, (2) qualified for participation in the program,
(3) was discriminated against because of his or her disability, and (4) the relevant
program is receiving federal financial assistance. See L.M.P. ex rel. E.P. v. Sch. Bd.
of Broward Cnty., 516 F. Supp. 2d 1294, 1301 (S.D. Fla. 2007); see also Long, 2012
WL 2277836, at *25.
The ADA and Section 504 address discrimination against disabled students. Title II of
the ADA provides that “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132. Section 504 likewise provides that “[n]o otherwise qualified individual with a
disability in the United States . . . shall, solely by reason of her or his disability, be excluded from
the participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
The Board contends that for pleading purposes, there are insufficient
allegations establishing that the Board engaged in any intentional acts of
discrimination against A.M. based upon her alleged disabilities. (Doc. # 12, at 6.)
It argues that the allegations fail under even the lenient deliberate indifference
standard the Eleventh Circuit identified in Wilson. See 610 F.3d at 604 (observing
that “[t]his Court has not decided whether to evaluate claims of intentional
discrimination under section 504 under a standard of deliberate indifference or a more
stringent standard of discriminatory animus”). Plaintiffs respond that the Board has
an affirmative duty under the ADA and Section 504 to address disability bullying (or
harassment) about which it knows or should have known. (Doc. # 17, at 17.)
Plaintiffs urge a theory of liability that emanates from the Sixth Circuit’s decision in
S.S. v. Eastern Kentucky University, 532 F.3d 445 (6th Cir. 2008). Discussion of S.S.
is helpful to the analysis.
S.S. involved ADA and Section 504 claims that the school district had failed
to protect a disabled student from a hostile learning environment created by
peer-on-peer harassment. Aligning with other federal district courts that had
confronted the issue, the Sixth Circuit applied the analytical framework established
in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), a peer-on-peer
sexual harassment case brought under Title IX of the Education Amendments of
1972, 20 U.S.C. § 1681(a). Davis held that under Title IX, “schools ‘are properly
held liable in damages only where they are deliberately indifferent to sexual
harassment, of which they have actual knowledge, that is so severe, pervasive, and
objectively offensive that it can be said to deprive the victims of access to the
educational opportunities or benefits provided by the school.’” S.S., 532 F.3d at 454
(quoting Davis, 526 U.S. at 650). Incorporating Davis’s deliberate indifference
theory, the Sixth Circuit required the plaintiff to establish five elements:
(1) the plaintiff is an individual with a disability, (2) he or she was
harassed based on that disability, (3) the harassment was sufficiently
severe or pervasive that it altered the condition of his or her education
and created an abusive educational environment, (4) the defendant knew
about the harassment, and (5) the defendant was deliberately indifferent
to the harassment.
Neither Plaintiffs nor the Board cites an Eleventh Circuit decision that has
applied the standard in the school context, when peer-to-peer disability harassment
is alleged under the ADA or Section 504,8 and the court found none. Based upon this
posture and for present purposes, the court will apply the same test applied by the
Sixth Circuit court to determine whether Plaintiffs’ ADA and Section 504 claims are
In its reply brief, the Board does not address Plaintiffs’ theory of liability, but rather
argues mistakenly that Plaintiffs failed to respond to its ADA and Section 504 arguments.
The present analysis assumes, because the Board’s argument seems to make the
same assumptions, that A.M. had a qualifying disability (element one), that the peerto-peer harassment was based on A.M.’s disability (element two), and that the peerto-peer harassment was sufficiently severe or pervasive that it altered the condition
of A.M.’s education (element three). As to elements four and five, there is a
sufficient factual basis to make the claim plausible.
Plaintiffs allege that the Board had “actual notice and knowledge” of the
pervasive bullying events that targeted A.M.
(Compl. ¶ 51.) Other allegations
amplify the sources of the Board’s actual notice. Namely, the Complaint alleges that
school administrators, staff, and teachers observed firsthand “a variety of bullying
activities directed at” A.M., that A.M.’s peers bullied A.M. in “plain view” and some
times “right in front of the school office,” that A.M. reported some of the bullying,
and that the school bus driver joined other students in taking “perverse delight” in
watching the “pig races” of which A.M. was a target.
(Compl. ¶¶ 47, 48.)
Furthermore the Complaint alleges that Board did nothing to prevent the bullying,
and that its teachers even had accused A.M. of having a “bad attitude” when she
complained about the bullying. (Compl. ¶ 44.)
In light of these allegations, Plaintiffs have sufficiently alleged that the Board
acted with deliberate indifference to the peer-on-peer harassment of A.M. and “that
it had an attitude of permissiveness that amounted to discrimination.” S.S., 532 F.3d
at 456; cf. Davis, 526 U.S. at 653 (reversing the district court’s grant of the school’s
motion to dismiss where the harassment was reported to school authorities, but no
disciplinary action was taken in response and no effort was made to separate the
harasser from the plaintiff). Accordingly, the Board’s motion to dismiss Plaintiffs’
ADA and Section 504 claims is due to be denied.
Proper Party Plaintiffs
The Board argues that Plaintiffs, as A.M.’s “statutory beneficiaries,” are not
proper parties to commence this action because they have not demonstrated either that
“there is an actual estate” for their deceased daughter or that they are the personal
representatives of her estate. (Doc. # 12, at 17, 18 (quoting Compl. (caption).)
Curiously, Plaintiffs’ response to the motion to dismiss does not address the Board’s
challenge to their capacity to bring this suit. Nonetheless, the court finds that there
are plausible allegations that Plaintiffs have the capacity to sue and, thus, the
allegations survive Rule 12(b)(6) scrutiny.
Alabama’s general wrongful death statute authorizes a “personal
representative” to sue for the decedent’s death caused by the “wrongful act, omission,
or negligence” of another. Ala. Code § 6-5-410(a) (2011). Although Section 6-5-
410(a) does not define “personal representative,” the Supreme Court of Alabama has
“interpreted the phrase to include ‘executors and administrators.’” Affinity Hosp.,
L.L.C. v. Williford, 21 So. 3d 712, 715 (Ala. 2009) (quoting Waters v. Hipp, 600 So.
2d 981, 982 (Ala. 1992)). And it is well settled under Alabama law that “[o]ne who
sues under [Section 6-5-410] without having been appointed executor or
administrator does not qualify under this section as a personal representative, and the
suit is a nullity.” Waters, 600 So. 2d at 982.
Based upon the foregoing authority, Plaintiffs cannot bring this suit under
§ 6-5-410 as A.M.’s “statutory beneficiaries.” They can sue, however, as the personal
representatives of A.M.’s estate. True, Plaintiffs fail to plead that they are the
“personal representatives” of A.M.’s estate. However, they allege that they are both
“entitled to sue under § 6-5-410” and “authorized to act” on behalf of A.M.’s estate.
(Compl. ¶ 1.) Construed in Plaintiffs’ favor, these allegations reasonably imply that
Plaintiffs are the estate’s appointed executors or administrators and, thus, the personal
representatives within the meaning of Section 6-5-410.
At this juncture, the allegations are sufficient to deny the motion to dismiss.
Discovery will bear out whether Plaintiffs are in fact qualifying personal
representatives of an established estate, and if Plaintiffs are unable to substantiate
their allegations with proof, Defendants will have the opportunity to raise this issue
again in a properly supported summary judgment motion.
Survivorship of the ADA and Section 504 Claims
The Board contends that the ADA and Section 504 claims do not survive
A.M.’s death. But the holding of the sole case it cites involved Section 1983
excessive force claims that did not allege that the relevant death resulted from the use
of force. See Gilliam v. City of Prattville, 639 F.3d 1041 (11th Cir. 2011). The Board
offers no good reason why Gilliam would apply in an ADA/Section 504 case where
the claims allege that the defendants’ illegal discrimination caused the decedent’s
demise. See id. at 1047 (noting that “when a constitutional violation actually causes
the injured party’s death, a Section 1983 claim can be asserted through the Alabama
wrongful death statute, Ala. Code § 6-5-410”). Absent any other authority or
argument from the Board, the court declines to dismiss the ADA and Section 504
claims on the basis that Plaintiffs cannot bring a survivorship claim. Further analysis
of this issue at a later date may be necessary, if properly raised.
The Board challenges Plaintiffs’ request for punitive damages to the extent that
Plaintiffs seek such damages under the ADA and Section 504. The Supreme Court
has held that punitive damages are not available under Title II of the ADA or Section
504. Barnes v. Gorman, 536 U.S. 181, 189 (2002). Based upon Barnes, and there
being no serious opposition from Plaintiffs (see Doc. # 16 ¶ 4), the Board’s motion
to dismiss the ADA and Section 504 punitive damages request is due to be granted.
Plaintiffs’ Section 1983 claim does not survive the motion to dismiss because
Plaintiffs fail to allege that the Board deprived A.M. of a Fourteenth Amendment
substantive due process right. Their ADA and Section 504 claims alleging disability
harassment do survive, but not the attendant request for punitive damages.
Accordingly, it is ORDERED that Defendants’ motion to dismiss is GRANTED in
part and DENIED in part as follows:
The motion to dismiss the Section 1983 claim is GRANTED;
The motion to dismiss the ADA and Section 504 claims is DENIED; and
The motion to dismiss the punitive damages request on the ADA and
Section 504 claims is GRANTED.
DONE this 27th day of March, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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