Avery v. Hoover, Alabama, City of et al

Filing 82

MEMORANDUM OPINION - For the reasons discussed above, the Court GRANTS the defendants motions to dismisses for failure to state a claim the deliberate indifference to medical needs claim in Count III of the second amended complaint and the claims und er the ADA in Counts IV and V of the second amended complaint. The Court DENIES the motions to dismiss Ms. Averys § 1983 excessive force claim against Officer Bryant and the City of Hoover and the assault and battery claim against Officer Bryant . The Court GRANTS in part and DENIES in part Mr. Whiteds motion to dismiss. The Court DISMISSES Ms. Averys official-capacity claim against Mr. Whited, but her assault and battery claim against him in his individual capacity shall proceed. The Court DISMISSES all claims against Mr. Hulin. The Court directs the clerk to please term docs 42, 44, 46, 48, and 49. Signed by Judge Madeline Hughes Haikala on 7/17/2015. (KEK)

FILED
2015 Jul-17 PM 03:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ASHLYNN AVERY,
Plaintiff,

vs.
CITY OF HOOVER, et al.,
Defendants.

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) Case No.: 2:13-cv-00826-MHH
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MEMORANDUM OPINION
I.

Introduction
Former Hoover High School student Ashlynn Avery brings this lawsuit

against the City of Hoover, Alabama, the Hoover City Board of Education, the
principal of Hoover High School, a school resource officer, and a school employee.
The lawsuit relates to an incident that began while Ms. Avery was in “in school
suspension” or ISS. Ms. Avery alleges that the incident snowballed and that
ultimately, a school resource officer shoved her “face first into a file cabinet,”
handcuffed her, and took her to the Hoover police station. (Doc. 39, ¶¶ 20b-21).1
Ms. Avery contends that she sustained injuries during the arrest.

1

On page four of Ms. Avery’s second amended complaint, there is a numbering error; paragraph
numbers 18, 19, and 20 are each used twice. Different factual matter is alleged in each of the six
paragraphs. In this opinion, the Court cites the first set of paragraphs as 18a, 19a, and 20a. The
Court cites the second set of paragraphs as 18b, 19b, and 20b.

In her second amended complaint, Ms. Avery asserts that the defendants
violated her rights under the United States Constitution and federal and state law.
(Doc. 39). The defendants have moved to dismiss all of Ms. Avery’s claims.
(Docs. 42, 44, 46, 48, 49). As discussed below, the Court grants the motions in
part and denies them in part.
II.

Standard of Review
Rule 8(a)(2) of the Federal Rules of Civil Procedure states that a complaint

must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under Rule 12(b)(6) of the Federal
Rules of Civil Procedure, a defendant may move to dismiss a complaint for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). “Generally, to survive a [Rule 12(b)(6)] motion to dismiss and meet the
requirement of Fed. R. Civ. P. 8(a)(2), a complaint need not contain ‘detailed
factual allegations,’ but rather ‘only enough facts to state a claim to relief that is
plausible on its face.’” Maledy v. City of Enterprise, 2012 WL 1028176, *1 (M.D.
Ala. March 26, 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007)). “Specific facts are not necessary; the statement needs only ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555).

2

“Thus, the pleading standard set forth in Federal Rule of Civil Procedure 8
evaluates the plausibility of the facts alleged, and the notice stemming from a
complaint’s allegations.” Keene v. Prine, 477 Fed. Appx. 575, 583 (11th Cir.
2012). “Where those two requirements are met . . . the form of the complaint is not
significant if it alleges facts upon which relief can be granted, even if it fails to
categorize correctly the legal theory giving rise to the claim.” Id. When deciding a
motion to dismiss, the Court must assume the truth of the factual allegations in the
complaint and view those allegations in the light most favorable to the plaintiff.
Adinolfe v. United Tech. Corp., 768 F.3d 1161, 1169 (11th Cir. 2014) (internal
citations omitted).
III.

Factual and Procedural Background
The events that give rise to this lawsuit occurred while Ms. Avery was a

student in the City of Hoover public school system. Ms. Avery suffers from
dyslexia, asthma, Type II Diabetes, and sleep apnea.

(Doc. 39, ¶ 14).

Consequently, in the fall of 2008, the Hoover public school system developed an
individualized education plan (“IEP”) for Ms. Avery. The school system issued
addendums to Ms. Avery’s IEP in 2009 “and thereafter.” (Doc. 39, ¶ 16).2

2

The Eleventh Circuit Court of Appeals has described the IEP process as follows:
[A parent who believes that his or her child needs special education services must]
consent[] to have the child evaluated to determine whether the child is “a child with a
disability” under the IDEA. See 34 C.F.R. §§ 300.320, 300.343.
3

In her amended complaint, Ms. Avery states that her dyslexia is “so severe,
that she is able to read and write at only a very basic level, and this affects all her
school subjects.” (Doc. 39, ¶ 16). According to her IEP, Ms. Avery “tries to avoid
class when she knows it is something that is difficult.” (Doc. 39, ¶ 18a). To
address these challenges, Ms. Avery’s IEP calls for various types of instructional
support such as books on tape and access to a computer. (Doc. 39, ¶ 19a).

Once a child is evaluated and determined to be “a child with a disability” under the
IDEA, an “IEP team” is formed. See 34 C.F.R. § 300.344(a). The IEP team normally
includes the parents, a regular education teacher, at least one special education teacher, a
School Board representative, other individuals with relevant expertise, and the child (if
appropriate). Id. at §§ 300.344(a)(1)–(7).
Once the IEP team is formed, meetings are held and an IEP is developed. See 20 U.S.C. §
1414(d)(1)(A)(i) (describing the necessary contents of an IEP). During the IEPdevelopment process, parental involvement is critical; indeed, full parental involvement
is the purpose of many of the IDEA’s procedural requirements. See Doe v. Alabama State
Dep't of Educ., 915 F.2d 651, 661 (11th Cir. 1990); see also Weber v. Cranston Sch.
Comm., 212 F.3d 41, 51 (1st Cir. 2000); 34 C.F.R. § 300.345 *1096 (outlining parental
involvement in the IEP process).
Once an IEP is developed, the School Board must determine whether it will provide the
special education needs of the child. See Sch. Comm. of Town of Burlington v. Dep't
of Educ., 471 U.S. 359, 369, 105 S. Ct. 1996, 2002, 85 L. Ed .2d 385 (1985) (“The Act
contemplates that such education will be provided where possible in regular public
schools, with the child participating as much as possible in the same activities as
nonhandicapped children, but the Act also provides for placement in private schools at
public expense where this is not possible.”) (citations omitted); Loren F., 349 F.3d at
1312 (“Although the IDEA reflects a structural preference in favor of providing
special education in public schools, it recognizes that certain public schools are unable or
unwilling to provide appropriate special education services.”). If the School Board elects
not to provide the programs outlined in the IEP, it refers the child to a private school or
program at no cost to the parents. See 20 U.S.C. § 1412(a)(10)(B)(i); 34 C.F.R. §
300.401.
M.M. ex rel. C.M. v. School Bd. of Miami-Dade County, Fla., 437 F.3d 1085, 1095-97 (11th Cir.
2006).
4

On May 3, 2011, Hoover High School personnel suspended Ms. Avery for
allegedly skipping class. (Doc. 39, ¶ 12). According to the second amended
complaint, the reason the school gave for the ISS was pretextual—Ms. Avery was
actually placed in ISS “as a punishment for what were the alleged effects” of the
medical conditions in Ms. Avery’s IEP. (Doc. 39, ¶ 14).
While in ISS, Ms. Avery was instructed to read Huckleberry Finn. Hoover
High School did not give Ms. Avery the book on tape or access to a computer to
help her complete the assignment. (Doc. 39, ¶ 19a). Because of her medical
conditions, Ms. Avery dozed off while reading the book. (Doc. 39, ¶ 18b). To
wake Ms. Avery, the ISS supervisor, defendant Joshua Whited, struck the cubicle
in which Ms. Avery was sitting with his hand, causing the cubicle to hit Ms.
Avery’s head. (Doc. 39, ¶ 19b). When Ms. Avery dozed off again, Mr. Whited
took the book that Ms. Avery was reading, “slammed the book onto the desk . . . in
which she was sitting, . . . and screamed for her to wake up.” (Id.). The book
bounced on the desk and hit Ms. Avery in the chest. (Doc. 39, ¶ 44).
Startled, Ms. Avery became hysterical. (Doc. 39, ¶ 20b). Ms. Avery was
ordered to leave the room. As she walked toward the principal’s office, Ms. Avery
called her mother from her cell phone. (Doc. 39, ¶ 20b). Trailing Ms. Avery down
the hallway, Officer Bryant “made aggressive contact against her by slapping her
backpack.” (Doc. 39, ¶ 20b). Because Ms. Avery did not know who was behind
5

her, Ms. Avery said “leave me alone.” (Doc. 39, ¶ 20b). Officer Bryant then
shoved Ms. Avery “face first into a file cabinet and handcuffed her.” (Id.).
Ms. Avery was taken to the police station. (Id. ¶ 21). On the way, she
vomited in the police car. (Doc. 39, ¶ 21). While handcuffed, Ms. Avery sustained
injuries to her arm and wrist. Ms. Avery wore a cast for a month, and she required
treatment for temporary hearing loss after the incident. (Doc. 39, ¶ 22). Ms.
Avery alleges that she also suffered emotional trauma for which she needed
“extended mental counseling.” (Doc. 39, ¶ 23).
In her second amended complaint, Ms. Avery contends that Officer Bryant
and Mr. Whited violated the City’s policies concerning the use of force and the
Board’s disciplinary policies. (Doc. 39, ¶¶ 24–25). 3 Ms. Avery also states that the
“Hoover School System has used suspensions against children with behavioral
disabilities,” (Id. ¶ 28), and that “[t]he actions of the Hoover School System
encouraged and allowed police intervention [and] has prevent[ed] [Ms. Avery]
from receiving full access to educational opportunities to which [she] is entitled.”
(Doc. 39, ¶ 29).
Based on this alleged conduct, Ms. Avery asserts an excessive force claim
against Officer Bryant and the City of Hoover under 42 U.S.C. § 1983. (Doc. 39,
3

Because Ms. Avery was a minor when this action began, her mother, Tieshka Avery, filed this
action. When Ms. Avery reached the age of majority, she was substituted for her mother as the
plaintiff. (Docs. 68, 69).
6

p. 6).4 She asserts state law assault and battery claims against Officer Bryant and
Mr. Whited. (Doc. 39, p. 7). Ms. Avery also asserts against all of the defendants a
deliberate indifference claim under 42 U.S.C. § 1983 and a claim for violation of
the ADA for “criminalizing disabilities and suspending children for manifestations
of disabilities.” (Doc. 39, pp. 7, 8). Finally, Ms. Avery asserts that the Hoover
Board of Education failed to accommodate children with disabilities. (Doc. 39, p.
9).
The defendants filed separate motions to dismiss. (Docs. 42, 44, 46, 48, 49).
The parties briefed the motions, and the Court heard argument concerning the
motions. (Doc. 70). On this record, the Court resolves the defendants’ motions to
dismiss.
IV.

Discussion
A.

Section 1983 Excessive Force against Officer Bryant and the City
of Hoover
1.

Officer Bryant

Officer Bryant asks the Court to dismiss Ms. Avery’s excessive force claim
against him because he asserts that he is immune from suit. “Qualified immunity
offers complete protection for government officials sued in their individual
capacities when acting within their discretionary authority if their conduct ‘does
4

Plaintiff’s counsel clarified at the hearing on the defendants’ motions to dismiss that Ms. Avery
wishes to pursue a claim for excessive force, not unlawful arrest. (Hrg. Tr., p. 40). A transcript
of the hearing is available upon request.
7

not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Mann v. Taser Intern., Inc., 588 F.3d
1291, 1305 (11th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). If an officer demonstrates that he was acting within his discretionary
authority at the time of the alleged violation, to overcome the officer’s qualified
immunity defense, the plaintiff must show that the officer violated a clearly
established constitutional right. Floyd v. Corder, 426 Fed. Appx. 790, 791 (11th
Cir. 2011) (citing Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264
(11th Cir. 2004)).
“[D]ecisions of the United States Supreme Court, the United States Court of
Appeals for the Eleventh Circuit, and the highest court of the pertinent state . . .
can clearly establish the law.” McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir.
2007) (citing Marsh v. Butler Cnty., 268 F.3d 1014, 1032 n.10 (11th Cir. 2001) (en
banc)). Absent case law clearly establishing a constitutional violation, a plaintiff
must allege facts demonstrating that the defendant official’s conduct “lies so
obviously at the very core of what the Fourth Amendment prohibits that the
unlawfulness of the conduct was readily apparent to the official, notwithstanding
the lack of case law.” Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002); see
also Trammell v. Thomason, 335 Fed. Appx. 835, 842 (11th Cir. 2009) (quoting
Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 926 (11th Cir. 2000)).
8

“Fourth Amendment jurisprudence has long recognized that the right to
make an arrest or investigatory stop necessarily carries with it the right to use some
degree of physical coercion or threat thereof to [a]ffect it.” Lee, 284 F.3d at 1197
(quoting Graham v. Connor, 490 U.S. 386, 396 (1989) (internal quotations
omitted)). To decide “whether the degree of force used to effect a particular
seizure is ‘reasonable’ under the Fourth Amendment,” the Court must consider
“the severity of the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether the suspect is actively resisting
arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. The
Court also examines “‘(1) the need for the application of force, (2) the relationship
between the need and amount of force used, and (3) the extent of the injury
inflicted.’” Draper v. Reynolds, 369 F.3d 1270, 1277–78 (11th Cir. 2004) (quoting
Lee, 284 F.3d at 1197)). The excessive force inquiry is “necessarily fact specific.”
McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009). An officer is
entitled to qualified immunity against an excessive force claim if “an objectively
reasonable officer in the same situation could have believed that the force used was
not excessive.” Brown v. City of Huntsville, Ala., 608 F.3d 724, 733 (11th Cir.
2010) (quoting Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)).
The Court denies Officer Bryant’s Rule 12(b)(6) motion to dismiss on the
basis of qualified immunity because, at this stage of the litigation, Officer Bryant
9

cannot demonstrate on the record before the Court that he used only a level of
force that was reasonable under the circumstances. Assuming the truth of the
allegations in the second amended complaint and viewing the factual allegations in
that complaint in the light most favorable to Ms. Avery, Officer Bryant shoved Ms.
Avery into a filing cabinet and handcuffed her while she was walking down the
hallway of her high school, talking to her mother on her cell phone. Officer Bryant
argues that while Ms. Avery was walking down the school hallway, she violated
two Alabama statutes: Alabama Code § 13A-11-7 which criminalizes disorderly
conduct and Alabama Code § 13A-10-41 which makes it unlawful for an
individual to resist an arrest by a peace officer. The only conduct described in the
second amended complaint that is relevant to either statute is Ms. Avery’s
acknowledgement that she was “hysterical” as she walked down the school
hallway toward the principal’s office, and she said “leave me alone” after someone
slapped her backpack from behind. (Doc. 39, ¶ 20b). Ms. Avery alleges that she
did not know who was walking behind her down the school hallway. Id.
Applying Graham, the Court finds that the crimes that Officer Bryant
identifies are not severe, and there is nothing in the second amended complaint that
suggests that Ms. Avery was a threat to Officer Bryant or anyone else who may
have been in the school hallway. Given that Ms. Avery alleges that she did not
know that Officer Bryant was walking behind her, there is nothing in the second
10

amended complaint that indicates that Ms. Avery was actively resisting arrest or
attempting to flee when Officer Bryant shoved her into the filing cabinet.
Considering the Draper factors, given the circumstances that Ms. Avery describes
in her second amended complaint, there would seem to be no need to use force at
all to stop Ms. Avery. The act of shoving her face first into a file cabinet and
handcuffing her greatly exceeds the amount of force needed, and the injuries that
Ms. Avery alleges are significant. She asserts that she had to wear a cast on her
right arm for one month, and she suffered temporary hearing loss. (Doc. 39, ¶¶
20b, 22).
The Court recognizes that there often are two sides to a story, but the only
side of the story that the Court may consider at this stage is the depiction of events
in the second amended complaint. The Court notes that all but one of the qualified
immunity opinions that Officer Bryant cites in his brief concern motions for
summary judgment, not motions to dismiss. (Doc. 43, pp. 46–52). “The border
between permissible and excessive force is marked by a fact-intensive test
conducted case-by-case.” Vinyard, 311 F.3d at 1349 n.14. After discovery, there
may be additional facts that the Court may consider when evaluating Officer
Bryant’s immunity defense, but for now, the Court is limited to the four corners of
the second amended complaint.

11

Viewed in the light most favorable to Ms. Avery, Officer Bryant’s conduct
“lies so obviously at the very core of what the Fourth Amendment prohibits” that
he should have known the force he exerted was excessive under the circumstances,
even in the absence of case law clearly establishing a constitutional violation. See,
e.g., Lee, 284 F.3d at 1198–99 (holding that an officer’s conduct was obviously
unconstitutional when he arrested the suspect with handcuffs and then slammed the
suspect’s head into a car after she was fully secured). No reasonable officer in
Officer Bryant’s shoes would have thought the level of force Officer Bryant used
was necessary to subdue an upset high school student walking down a school
hallway and talking on the phone, even if the student’s conduct was “disorderly.”
Therefore, the Court denies Officer Bryant’s motion to dismiss.
2.

City of Hoover

Ms. Avery has pled sufficient facts to pursue her § 1983 claim against the
City.

Neither a municipality nor its officers may incur § 1983 liability under a

theory of respondeat superior. Monell v. Dep’t of Social Serv’s, 436 U.S. 658, 691
(1978); Barr v. Gee, 437 Fed. Appx. 865, 874 (11th Cir. 2011) (citing McDowell v.
Brown, 392 F.3d 1283, 1289 (11th Cir. 2004)). The City is not responsible for
isolated incidents of constitutional violations by subordinates. McDowell, 392
F.3d at 1290–91. “It is only when the execution of the government’s policy or

12

custom infl[i]cts the injury that the municipality may be held liable.” Barr, 437
Fed. Appx. at 874 (internal quotations and citations omitted).
“Municipal policy or custom may include a failure to provide adequate
training if the deficiency evidences a deliberate indifference to the rights of its
inhabitants.” Lewis v. City of W. Palm Beach, Fla., 561 F.3d 1288, 1293 (11th Cir.
2009) (internal quotation omitted).

To establish deliberate indifference, the

“plaintiff must present some evidence that the municipality knew of a need to train
and/or supervise in a particular area and the municipality made a deliberate choice
not to take any action.” Barr, 437 Fed. Appx. at 874 (quoting Lewis, 561 F.3d at
1293). The municipality is on notice if either “(1) the municipality is aware that a
pattern of constitutional violations exists, and nevertheless fails to provide
adequate training, or (2) the likelihood for a constitutional violation is so high that
the need for training would be obvious.” Barr, 437 Fed. Appx. at 874 (citing
Lewis, 561 F.3d at 1293).
Ms. Avery alleges that Hoover “developed a de facto policy of using police
officers in its employ . . . to respond to instances of behavioral disruptions of
disabled children” by arresting the students, and Hoover “used suspensions against
children with behavioral disabilities.” (Doc. 39, ¶¶ 27-28). As counsel for Ms.
Avery explained at the hearing in this matter, a teacher “who teaches a special ed
student is instructed on [the student’s] IEP extensively,” but the City of Hoover
13

does not familiarize school resource officers with students’ IEPs. (Hrg. Tr., p. 20).
Consequently, those officers are unfamiliar with the needs of students who have
IEPs, but Hoover nevertheless “encourage[s] and allow[s] police intervention into
behavioral issues” and “use[s] suspensions against disabled children.” (Doc. 39, ¶
29). Ms. Avery has alleged sufficient facts at this stage to maintain her claim that
the City had a policy or custom that is responsible for the injury that Ms. Avery has
identified. That policy includes the failure to provide adequate training to officers
who interact with students with IEPs.
B.

Assault and Battery against Officer Bryant and Mr. Whited

To state claims for assault and battery under Alabama law, a plaintiff must
plead facts that, if proven, show
‘an intentional, unlawful offer to touch the person of another in [a]
rude or angry manner under such circumstances as to create in the
mind of the party alleging the assault a well-founded fear of an
imminent battery, coupled with the apparent present ability to
effectuate the attempt if not prevented. A successful assault becomes
a battery, which consists of the touching of another in a hostile
manner.’
Ex parte Am. Heritage Life Ins. Co., 46 So. 3d 474, 476–77 (Ala. 2010) (quoting
Wright v. Wright, 654 So. 2d 542, 544 (Ala. 1995)). With respect to Mr. Whited,
Ms. Avery alleges that he struck the side of her cubicle, causing the cubicle to hit
her head. Ms. Avery also asserts that Mr. Whited slammed a book on her desk,
and the book bounced and hit her chest. (Doc. 39, ¶¶ 19b, 44). Ms. Avery
14

contends that as a result of Mr. Whited’s conduct, she “immediately felt
threatened.” (Doc. 39, ¶ 20b). Ms. Avery alleges that Officer Bryant committed a
battery when he slammed her into a file cabinet and handcuffed her. (Doc. 39, ¶
46).
Both Officer Bryant and Mr. Whited argue that they are entitled to immunity
from the state-law claims. The Court considers the defendants’ arguments in turn.
1.

Officer Bryant

Officer Bryant argues that he is entitled to state-agent immunity under Ex
parte Cranman, 792 So. 2d 392 (Ala. 2000).

Under Cranman, “exercising

judgment in the enforcement of the criminal laws of the State, including, . . . law
enforcement officers’ arresting or attempting to arrest persons, or serving as peace
officers under circumstances entitling such officers to immunity pursuant to § 6-5338(a)” entitles an officer to state-agent immunity. See Hollis v. City of Brighton,
950 So. 2d 300, 309 (Ala. 2006). Therefore, any defendant who “(1) is a peace
officer, (2) is performing law enforcement duties, and (3) is exercising judgment or
discretion” is entitled to immunity. Howard v. City of Atmore, 887 So. 2d 201, 204
(Ala. 2003) (internal quotations omitted). When a defendant establishes that “the
plaintiff’s claims arise from a function that would entitle the State agent to
immunity,” the burden shifts to the plaintiff to show that the state-agent acted
“willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority.”
15

Ex parte Randall, 971 So. 2d 652, 663–64 (Ala. 2007) (internal quotations
omitted).
Officer Bryant has established that he is a peace officer and that he was
exercising judgment in the performance of his law enforcement duties at the time
the events took place. (Doc. 42, pp. 62–63). Therefore, the burden shifts to Ms.
Avery to demonstrate that Officer Bryant acted “willfully, maliciously,
fraudulently, in bad faith, or beyond his authority.” See Randall, 971 So. 2d at
663–64.
Ms. Avery alleges that Officer Bryant (1) “violated the City of Hoover’s
policies and procedures concerning the use of force,” (Doc. 39, ¶ 24), (2) “touched
and frightened [her] in a harmful and/or offensive manner with the intent to harm
[her],” (Id. at ¶ 43), and (3) “intentionally violated [her] rights under the
Constitution . . . with malicious and reckless indifference to [her] rights.” (Id. at ¶
39). The two latter assertions assign conclusory labels to Officer Bryant’s conduct,
and none of these allegations, if proven, would demonstrate that Officer Bryant
acted willfully, maliciously, fraudulently, or in bad faith.
With respect to Ms. Avery’s allegation concerning use of force, she
specifically alleges that Officer Bryant approached her from behind, slapped her
backpack, shoved her face first into a file cabinet, and handcuffed her, all because
she was hysterical and talking on the phone to her mother as she walked down the
16

school hallway toward the principal’s office. Although Ms. Avery’s allegation that
Officer Bryant “violated the City of Hoover’s policies and procedures concerning
the use of force” is conclusory in tone and fails to offer details about the alleged
policies and procedures, the Court already has found, for the purposes of this
12(b)(6) analysis, that Officer Bryant’s use of force was obviously unconstitutional
and beyond the level of force that a reasonable officer in Officer Bryant’s shoes
would have thought necessary and appropriate, even absent a written policy.
Therefore, viewing the allegations of the complaint in the light most favorable to
Ms. Avery, the Court will not dismiss her assault and battery claim against Officer
Bryant because Ms. Avery, though somewhat inartfully, has alleged facts which, if
proven, would allow Ms. Avery to establish that Officer Bryant acted beyond his
authority so that his immunity defense would fail.
2.

Mr. Whited

Mr. Whited argues that he is immune from state-law claims against him in
his official capacity under Article I § 14 of the Alabama Constitution. (Doc. 47, p.
19). Article I § 14 provides absolute immunity for the State of Alabama, and that
immunity “extends to arms or agencies of the state.” Ex parte Tuscaloosa Cnty.,
796 So. 2d 1100, 1103 (Ala. 2000) (citing Armory Comm’n of Ala. v. Staudt, 388
So. 2d 991, 993 (Ala. 1980)). “Local school boards are agencies of the State, not
of the local governmental units they serve, and they are entitled to the same
17

absolute immunity as other agencies of the State.” Ex parte Bessemer Bd. of
Educ., 68 So. 3d 782, 788–89 (Ala. 2011) (citing Ex parte Hale Cnty. Bd. of Educ.,
14 So. 3d 844, 848–49 (Ala. 2009)). When local officials act as agents of the state,
the officials enjoy absolute immunity from official-capacity lawsuits. Ex parte
Tuscaloosa Cnty., 796 So. 2d at 1106 (citing Matthews v. Ala. Agric. and Mech.
Univ., 787 So. 2d 691, 697 (Ala. 2000)).5
Ms. Avery alleges that Mr. Whited “worked for the Hoover City Board of
Education.”

(Doc. 39, ¶ 6).

Therefore, Mr. Whited is entitled to absolute

immunity for the claims against him in his official capacity. The assault and
battery claim against him in his individual capacity will go forward.6
C.

Section 1983 Deliberate Indifference to Serious Medical Need
against Officer Bryant, the City, and the Board

Ms. Avery’s deliberate indifference claim fails because she has not alleged
that she had a serious medical need. A plaintiff stating a deliberate indifference
claim must show: (1) a serious medical need; (2) the defendant’s deliberate
indifference to that need; and (3) causation between that indifference and the
plaintiff’s injury. Mann, 599 F.3d at 1306 (citing Goebert v. Lee Cnty., 510 F.3d
1312, 1326 (11th Cir. 2007)). To be “serious,” the medical need must be “one that
5

Ms. Avery initially argued that this case fits into the exception to § 14 immunity for causes of
action seeking injunctive relief. (Doc. 59, p. 20). But Ms. Avery has conceded that her claim for
injunctive relief against Mr. Whited is moot because she no longer attends Hoover High School.
(See Doc. 75).
6

Aside from absolute immunity, Mr. Whited raises no other defenses to the state-law claims.
18

has been diagnosed by a physician as mandating treatment or one that is so obvious
that even a lay person would easily recognize the necessity for a doctor’s
attention.” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (quoting Hill v.
Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)). In either case,
“the medical need must be one that, if left unattended, poses a substantial risk of
serious harm.” Fernandez v. Metro Dade Police Dep’t, 397 Fed. Appx. 507, 511
(11th Cir. 2010) (quoting Farrow, 320 F.3d at 1243 (internal quotations omitted)
(finding that the plaintiff had established a serious medical need when, after getting
a prescription for dentures, the plaintiff had “pain, continual bleeding and swollen
gums, two . . . teeth slicing into gums, weight loss, and . . . continuing medical
problems” over fifteen months).
Ms. Avery has not alleged facts that, if proven, demonstrate that she had a
serious medical need that posed a “substantial risk of serious harm.” See, e.g.,
Fernandez, 397 Fed. Appx. at 512 (plaintiff did not demonstrate a serious medical
need when the plaintiff’s evidence showed that “he suffered a bloody nose and
mouth which lasted over five minutes, facial bruising, pain, disorientation, and
blood [] in his nose”). Ms. Avery alleges that the defendants “ignor[ed] various
medical conditions such as diabetes, sleep apnea[,] and asthma despite having prior
knowledge of these conditions from her widely circulated IEP reports,” and that
Ms. Avery “was denied medical treatment and seriously placed in grave peril by
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being placed in a Hoover Police Car upon which she vomitted [sic].” (Doc. 1, ¶
48).
None of Ms. Avery’s medical conditions posed a substantial risk of serious
harm at the time of her arrest. Sleep apnea, diabetes, or asthma might give rise to a
serious medical need in other circumstances, but none of the facts that Ms. Avery
alleged suggest that her medical conditions posed a substantial risk of serious harm
to her during her arrest. Ms. Avery’s alleged injuries corroborate the Court’s
finding—Ms. Avery sustained temporary hearing loss, emotional injuries, and
injuries to her arm and wrist that required a cast. (Doc. 39, ¶ 22). These injuries,
though potentially painful and upsetting, do not pose a substantial risk of serious
harm. Therefore, the Court will dismiss the deliberate indifference claims against
Officer Bryant, the City, and the Board.
D.

ADA Violations and Claim for Lack of Accommodations for
Students with Disabilities

Ms. Avery’s claims for “criminalizing disabilities” and “lack of
accommodation for children with disabilities,” Counts IV and V in the second
amended complaint, both fail to state a claim because Ms. Avery failed to exhaust
her administrative remedies. Under the IDEA, “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.” N.B. v. Alachua
Cnty. Sch. Bd., 84 F.3d 1376, 1378 (11th Cir. 1996) (per curiam). “[T]he IDEA’s
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exhaustion requirement [applies] to a ‘broad’ spectrum of claims.” A.L. ex rel.
P.L.B. v. Jackson Cnty. Sch. Bd., 543 Fed. Appx. 1002, 1005 (11th Cir. 2013)
(quoting M.T.V. v. Dekalb Cnty. Sch. Dist., 446 F.3d 1153, 1158 (11th Cir. 2006)).
Additionally, “[t]he exhaustion requirement applies to claims asserting the rights of
disabled children under . . . the Americans with Disabilities Act.” Jackson Cnty.,
543 Fed. Appx. at 1005 n.4 (citing M.T.V., 446 F.3d at 1157–58).
Recent Eleventh Circuit decisions interpreting the IDEA exhaustion
requirement prevent Ms. Avery from asserting claims under the ADA without first
exhausting her statutory remedies.

Accordingly, the Court will dismiss Ms.

Avery’s ADA claims because she has not alleged that she initiated, much less
exhausted, administrative proceedings to remedy the ADA violations that she
alleges.7
V.

Conclusion
For the reasons discussed above, the Court GRANTS the defendants’

motions to dismisses for failure to state a claim the deliberate indifference to
medical needs claim in Count III of the second amended complaint and the claims
under the ADA in Counts IV and V of the second amended complaint. The Court
DENIES the motions to dismiss Ms. Avery’s § 1983 excessive force claim against

7

At the hearing, the Court indicated that it would dismiss the claims against Mr. Hulin because,
although he was listed as a defendant, no facts in the second amended complaint made reference
to Mr. Hulin. (Hrg. Tr., p. 50).
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Officer Bryant and the City of Hoover and the assault and battery claim against
Officer Bryant. The Court GRANTS in part and DENIES in part Mr. Whited’s
motion to dismiss. The Court DISMISSES Ms. Avery’s official-capacity claim
against Mr. Whited, but her assault and battery claim against him in his individual
capacity shall proceed. The Court DISMISSES all claims against Mr. Hulin. The
Court directs the clerk to please term docs 42, 44, 46, 48, and 49.
DONE and ORDERED this July 17, 2015.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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