Dorsey v. Pueblo School District 60 et al
ORDER GRANTING IN PART 33 Defendant's Motion to Dismiss. Claim One (Negligence Resulting in Personal Injury) of Plaintiffs AmendedComplaint 30 is DISMISSED WITHOUT PREJUDICE; Claim Two (Violation of Section 504 Rehabilitation Act of 1973) a nd Claim Three (Violation of the Americans with Disabilities Act of 1990) of Plaintiffs Amended Complaint are DISMISSED WITHOUT PREJUDICE; Plaintiff may, on or before November 30, 2015, further amend her Complaint; Claim Four (Violation of 42 U.S.C. § 1983) of Plaintiffs Amended Complaint is DISMISSED WITH PREJUDICE; Defendant Corwin International Magnet School is DISMISSED as a Defendant herein; Plaintiff Lisa Dorsey is DISMISSED from this action insofar as she purports to seek individual relief; Ms. Dorsey will remain a party to this action as parent and representative of her minor child, Plaintiff J.D. The stay previously imposed by United States Magistrate Judge Craig B. Shaffer 26 is hereby LIFTED. Pursuant to the Judge Shaffers Order 26 , no later than October 29, 2015 the parties shall contact Judge Shaffers Chambers to schedule a Status Conference in this case, by Judge William J. Martinez on 10/26/2015.(cthom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-0094-WJM-CBS
LISA DORSEY, individually and on behalf of a minor J.D.,
PUEBLO SCHOOL DISTRICT 60,
BOARD OF EDUCATION OF PUEBLO SCHOOL DISTRICT SIXTY,
CORWIN INTERNATIONAL MAGNET SCHOOL, and
JOHN DOE, INDIVIDUALLY AND IN OFFICIAL CAPACITY AS PUEBLO SCHOOL
ORDER GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS
Plaintiff Lisa Dorsey, on behalf of her minor daughter, J.D., (“Plaintiff”) brings this
action against Defendants Pueblo School District 60, Board of Education of Pueblo
School District 60, Corwin International Magnet School (“Corwin”), and John Doe, an
unknown Pueblo School District teacher. (ECF No. 30.) Plaintiff sues Defendants for
their negligence, and brings further claims under Section 504 of the Rehabilitation Act
of 1973 (“§ 504”), 29 U.S.C. §§ 701 et seq., the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. §§ 12101 et seq., and 42 U.S.C. § 1983. (Id.) This matter is
currently before the Court on Defendants Pueblo School District 60, Board of Education
of Pueblo School District 60, and Corwin’s (collectively “Defendants”) Motion to Dismiss
Plaintiff’s Amended Complaint (“Motion”) pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). (ECF No. 33.) Plaintiff responded to the Motion on June 1,
2015, and Defendants filed their reply on June 18, 2015. (ECF Nos. 36, 37.) For the
reasons set forth below, the Motion is granted in part and denied in part.
I. LEGAL STANDARD
Because Defendants move under Rules 12(b)(1) and 12(b)(6), the Court will
briefly discuss the legal standards that pertain to each rule.
Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally
take one of two forms. A facial attack questions the sufficiency of the complaint as to
its subject matter jurisdiction allegations. Holt v. United States, 46 F.3d 1000, 1002
(10th Cir. 1995). In reviewing a facial attack, courts accept all well-pled allegations as
true. Id. A factual attack, on the other hand, goes beyond the allegations in the
complaint and challenges the facts on which subject matter jurisdiction is based. Id. at
1003. A factual attack does not permit the court to presume the complaint’s factual
allegations are true, although the court does have “wide discretion to allow affidavits,
other documents, and a limited evidentiary hearing to resolve disputed jurisdictional
facts under Rule 12(b)(1).” Id. In such circumstances, the court’s reference to
evidence beyond the pleadings will not convert the motion to one under Rules 56 or
12(b)(6), unless the jurisdictional question is intertwined with the merits of the case. Id.
“The jurisdictional question is intertwined with the merits of the case if subject matter
jurisdiction is dependent on the same statute which provides the substantive claim in
the case.” Id.
Under Rule 12(b)(6), a party may move to dismiss a claim in a complaint for
“failure to state a claim upon which relief can be granted.” The 12(b)(6) standard
requires the Court to “assume the truth of the plaintiff’s well-pleaded factual allegations
and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, LLC v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the
dispositive inquiry is “whether the complaint contains ‘enough facts to state a claim to
relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “Thus, ‘a well-pleaded complaint may proceed even if it strikes a
savvy judge that actual proof of those facts is improbable, and that a recovery is very
remote and unlikely.’” Id. (quoting Twombly, 550 U.S. at 556).
The following facts and allegations are gathered from Plaintiff’s Amended
Complaint (“the Complaint”). (ECF No. 30.) Plaintiff J.D. is a minor child who was
formerly enrolled at Corwin. (Id. at 3.) J.D. alleges she suffers from “hypoglycemia,
asthma and progressive muscular/skeletal weakness,” for which she received a Section
504 accommodation (“504 Plan”). (Id.) Per her 504 Plan, Plaintiff was not to be forced
to participate in any school activity that might “compromise her physical condition.” (Id.
at 4.) On February 27, 2014, Plaintiff attended her gym class at Corwin, where she
“was instructed to participate in a human ‘pyramid.’ This is an exercise that places
students on top of each other in a standing or ‘all fours’ position and they build the
human ‘pyramid.’” (Id.) Plaintiff did so, and was standing on the backs of two students
when she became dizzy and fell. (Id.) Because there was no mat to cushion her fall,
Plaintiff was injured. (Id.)
While at Corwin, Plaintiff alleges that other students verbally and physically
harassed her over the span of several months. (Id. at 2-7.) Plaintiff alleges that she
first complained about the bullying in October 2013. (Id. at 3.) Specifically, Plaintiff
complained that a student had been “tasering” her in the sides and stomach repeatedly.
(Id.) The Complaint states, “Tasering is where a person stiffens their four fingers, tucks
in their thumb and stabs their fingers into another person’s side or stomach as hard as
one can.” (Id.) This student also stole Plaintiff’s snacks that she used to combat her
low blood sugar. (Id.) When Plaintiff complained, a school official told Plaintiff that she
would “take care of the situation” and “bring the student in responsible for the bullying.”
(Id.) Plaintiff alleges that nothing was done about these incidents. (Id.)
On April 8, 2014, “the bullying directed at [Plaintiff] escalated to physical
violence” when a group of students “punched, slapped and placed [Plaintif f] in a
headlock, leaving bruises on her neck, arms, leg, and stomach”; again, the bullying was
reported and school officials stated they would “take care of the situation.” (Id. at 4-5.)
The bullying continued throughout April, and included threats and a suggestion to
Plaintiff that she kill herself, which Plaintiff reported to the same school officials on April
20, 2014. (Id. at 5-6.) Plaintiff was told by Corwin’s principal, Ms. Shue, that they
would look into the allegations; Ms. Shue recommended that Plaintiff be taken out of all
her classes and moved to a different student group, which Plaintiff and her parents
declined to do. (Id. at 7.) Plaintiff alleges no further acts of bullying after the April 20,
2014 meeting with Corwin officials. (Id.)
Plaintiff further alleges that she requires snacks on a regular basis throughout
the school day due to her hypoglycemia. (Id. at 10.) One day, Plaintiff forgot to bring
her snacks to school, and Plaintiff’s sister later dropped them off. (Id. at 10-11.) After
the snacks were dropped off, the school took almost three hours to bring them to
Plaintiff, which she claims was discriminatory and caused her “weakness, dizziness and
nausea.” (Id. at 11.) Finally, Plaintiff alleges that she underwent leg surgery
(apparently unrelated to this lawsuit) in July 2013 and provided Corwin with a letter from
the Colorado Children’s Hospital that stated Plaintiff should be given two sets of books,
one for home and one for school. (Id.) Defendants never complied with this request.
Due in large part to the bullying that Corwin allegedly never addressed, Plaintiff
withdrew from the school on April 25, 2014. (Id. at 7.) Plaintiff was subsequently
diagnosed with depresssion and referred to a psychologist, who treated her for
post-traumatic stress disorder. (Id.) Plaintiff now attends a different school that is
further away from her home than Corwin. (Id. at 8.) “This is a hardship to the [Plaintiff
and her parents] and they are concerned about the distance in case of any
Converting the Motion
The Court must first determine whether it must convert Defendants’ Motion,
insofar as it argues for dismissal under Rule 12(b)(1), into a motion for relief under Rule
56 or Rule 12(b)(6). Defendants’ Motion is properly characterized as a facial attack
because it appears to argue that, even accepting Plaintiff’s version of events as true,
her claims fail for lack of subject matter jurisdiction. (ECF No. 33.) However,
Defendants do attach the affidavit of Jerri Garcia, Plaintiff’s former physical education
teacher, to their Reply brief; the affidavit challenges Plaintiff’s version of events with
respect to the human pyramid. (ECF Nos. 37, 37-1.) Garcia claims she never
instructed Plaintiff or any other students to participate in the human pyramid. (ECF No.
37-1 at 2.) In fact, Garcia claims that she expressly prohibited the students from doing
Garcia’s affidavit could convert the Motion into a factual attack if the Court
considered it. But Defendants did not include the affidavit, or any argument challenging
Plaintiff’s claim that she was forced to participate in the human pyramid, in their Motion.
(ECF No. 33.) Because Plaintiff was unable in her Response brief to address an
argument not raised in Defendants’ Motion, and does not have a further opportunity to
respond to Defendants’ Reply, see D.C.COLO.LCivR 7.1(d), the Court finds that
Defendants have waived this argument, at least for purposes of the instant Motion. See
United States v. Harrell, 642 F.3d 907, 918 (10th Cir. 2011) (arguments raised for the
first time in a reply brief generally are deemed waived). The Court therefore reviews
Defendants’ 12(b)(1) Motion under the same standard applicable to dismissals under
12(b)(6). Dry v. United States, 235 F.3d 1249, 1253 (10th Cir. 2000).
Defendants move to dismiss Plaintiff’s Complaint in its entirety. The Court
discusses each of Plaintiff’s claims in turn.
Plaintiff alleges that Defendants were negligent when they allowed her to
participate in the human pyramid during gym class. (ECF No. 30 at 9-10.) However,
Defendants argue that the Court lacks subject matter jurisdiction over Plaintiff’s state
law tort claim due to the application of the Colorado Governmental Immunity Act, Colo.
Rev. Stat. §§ 24-10-101 et seq. (“CGIA”). (ECF No. 33 at 3.) Plaintiff responds that
Defendants have waived any immunity under the CGIA. (ECF No. 36 at 3.)
Enacted in 1971 in response to court decisions abrog ating common law
sovereign immunity, the CGIA codifies governmental immunity from suit in tort cases
brought against Colorado public entities and employees. Colo. Rev. Stat.
§ 24-10-103(5). However, the CGIA also contains exceptions, waiving immunity in
certain cases. See Colo. Rev. Stat. § 24-10-106(1). The question of whether
governmental immunity under the CGIA has been waived is one of subject matter
jurisdiction, and the Court therefore properly decides this issue under Rule 12(b)(1).
See Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993).
Plaintiff acknowledges that her tort claim is subject to the CGIA, and that
Defendants are “public entities” within the meaning of the statute. Colo. Rev. Stat.
§§ 24-10-105, 24-10-103(5). (ECF No. 36 at 3.) However, Plaintiff argues that her
claims fall under an exception to the CGIA at § 24-10-106(1)(c), wherein “[s]overeign
immunity is waived by a public entity in an action for injuries resulting from . . . [a]
dangerous condition of any public building.”1 (Id. at 3.) The CGIA defines “dangerous
While Plaintiff’s Complaint also asserts waiver of immunity due to a “dangerous
condition of any . . . recreation area maintained by a public entity,” Plaintiff does not defend this
condition” as follows:
 either a physical condition of a facility or the use thereof
 that constitutes an unreasonable risk to the health or
safety of the public,  which is known to exist or which in
the exercise of reasonable care should have been known to
exist and  which condition is proximately caused by the
negligent act or omission of the public entity or public
employee in constructing or maintaining such facility. . . . A
dangerous condition shall not exist solely because the
design of any facility is inadequate.
Colo. Rev. Stat. § 24-10-103(1.3). Defendants contend that Plaintiff’s claims do not fall
under the CGIA definition of a “dangerous condition of any public building,” and that
they are therefore immune from suit. (ECF No. 33 at 4.)
The Colorado Supreme Court has clarified that the phrase “‘or the use thereof’
means the use of a physical condition of a facility,” and that “thereof” refers to the
facility’s physical condition, not to the facility itself. Jenks v. Sullivan, 826 P.2d 825, 827
(Colo. 1992), overruled on other grounds by Bertrand v. Bd. of Cnty. Comm’rs of Park
Cnty., 872 P.2d 223 (Colo. 1994). That is, the “dangerous condition of any public
building” exception does not include all injuries resulting from uses of and activities in a
public building, but rather covers only “an injury arising from the state of the building
itself or the use of a state of the building.” Id.
Relying on this provision of the statute, Plaintiff analogizes this case to Hendricks
By & Through Martens v. Weld County School District, 895 P.2d 1120 (Colo. App.
1995). In Hendricks, the plaintiff was an elementary school student who fractured his
theory in her response to Defendants’ Motion. (Compare ECF No. 30 at 9, with ECF No. 36 at
3.) Plaintiff has therefore conceded that § 24-10-106(1)(e) is inapplicable to this case.
leg when he slid into an unpadded wall while playing a game during gym class. Id. at
1122. The object of the game was to run from one end of the gym to the other without
getting hit by the balls being thrown at the runners. Id. Each end of the gym had a
designated four-foot “safe area.” Id. The plaintiff ran toward the safe area, and slid into
the wall to avoid being hit by one of the balls, thus injuring his leg. Id.
The Colorado Court of Appeals held that the plaintiff’s negligence suit was not
barred by the CGIA under the “dangerous condition” exception to immunity. Id. The
court held that the plaintiff did not allege that the building’s design was inadequate, or
that his injury was caused by the intervening acts of a third party, neither of which would
suffice to overcome immunity. Id. at 1123. Rather, the plaintiff argued “that the
physical condition of the building, i.e., the unpadded wall, combined with its use,
constitute[d] a dangerous condition of a public facility.” Id. The court went on to note
that, “[u]nlike previous cases which have involved injuries arising from the acts of an
intervening third party, arising solely from the activities conducted within the public
building, or arising solely because of inadequate design, Hendricks’ injury resulted from
a dangerous physical condition of the building itself.” Id. Thus, the Hendricks
defendants were denied immunity under the CGIA. Id.
Plaintiff argues that “it is unclear where Plaintiff’s case differs from the facts of
Hendrick[s], except one had an unpadded wall and the other a floor.” (ECF No. 36 at
4.) After a careful review of the relevant case law, however, the Court is required to
conclude that the decision in Hendricks is an anomaly. It is difficult to reconcile the
holding in Hendricks with the principle that “[i]mmunity is not waived for injuries that are
sustained merely as a result of participating in an activity within a public building.”
Douglas v. City & Cnty. of Denver, 203 P.3d 615, 619 (Colo. App. 2008); see also
Sanchez By & Through DiFerdinando v. Sch. Dist. 9-R, 902 P.2d 450, 454 (Colo. App.
1995) (declining to follow Hendricks where disabled student engaged in parallel bars
gymnastics exercise during physical education class and fell, injuring her knee). More
importantly, Hendricks does not discuss how the plaintiff’s injury from the unpadded
wall was “proximately caused by the negligent act or omission of the public entity or
public employee in constructing or maintaining such facility.” Colo. Rev. Stat.
Indeed, Plaintiff has failed to allege any facts to support a finding that her injury
was caused by, or associated with, the construction or maintenance of the gym. “A
dangerous condition shall not exist solely because the design of any facility is
inadequate.” Id. The CGIA defines “maintenance” as a the act or omission of a public
entity or public employee “in keeping a facility in the same general state of repair or
efficiency as initially constructed or in preserving a facility from decline or failure.
‘Maintenance’ does not include any duty to upgrade, modernize, modify, or improve the
design or construction of a facility.” Id. at § 24-10-103(2.5); Padilla ex rel. Padilla v.
Sch. Dist. No. 1, 25 P.3d 1176, 1180-81 (Colo. 2001) (“the condition m ust be
associated with construction or maintenance, not solely design”).
For example, in Padilla, a teacher’s use of a storage closet in a school as a
“time-out” area was found not to fall under the immunity exception for a dangerous
condition of a public building. 25 P.3d at 1181. The plaintiff was a disabled child who
had been put in “time-out” in the storage closet, placed in a stroller propped against the
open door. Id. at 1178. Once left alone, she became agitated, the stroller fell
backward, and the plaintiff hit her head on the tile floor. Id. In response to the plaintiff’s
waiver argument, the Colorado Supreme Court held:
While Padilla may have sufficiently alleged an act of
negligence, leaving a disabled and distraught child out of
sight and reach in an unstable stroller, we conclude that she
did not demonstrate a sufficient connection between use of
the state of the building and a construction or maintenance
activity or omission for which the School District is
responsible. Padilla’s theory of the case only amounts to a
claim that the School District should have upgraded the
design of the closet if it wished to use it as a “time out” room
for students exhibiting disruptive behavior. This is
inadequate to effectuate the waiver. . . . Padilla merely
alleged that the government used the facility in an unsafe
manner, thus only alleging that the government was
negligent in its use of the facility. Therefore, Padilla’s
complaint lacked sufficient jurisdictional facts to support an
immunity waiver under the provision of the CGIA waiving
immunity for a dangerous condition of a public facility.
Id. at 1183.
The Court finds Padilla persuasive. Even accepting Plaintiff’s contention that
performing a human pyramid on an unpadded floor is a dangerous use of a physical
condition of the facility, Plaintiff fails to show how the unpadded floor or the human
pyramid activity are in any way connected to the maintenance or construction of the
facility. Rather, Plaintiff makes the same argument the Colorado Supreme Court
rejected in Padilla: Defendants used the gym in an unsafe manner, and should have
upgraded the facility before forcing students to participate in the human pyramid. This
argument is insufficient to support a waiver under the CGIA, and accordingly Plaintiff’s
state law tort claim is dismissed for lack of jurisdiction.
Failure to Exhaust ADA, § 504, and § 1983 Claims
Defendants further move to dismiss Plaintiff’s claims under the ADA, § 504, and
§ 1983.2 Defendants argue that before Plaintiff can bring such claims, she must first
demonstrate that she has exhausted her administrative remedies under the Individuals
with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq. (ECF No. 33 at 6.)
The IDEA “ensure[s] that all children with disabilities have available to them a
free appropriate public education that emphasizes special education and related
services designed to meet their unique needs and prepare them for further education,
employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A). To achieve this goal,
the state must create an individualized education plan (“IEP”) for each disabled child.
Ellenberg v. N.M. Military Inst., 478 F.3d 1262, 1268 (10th Cir. 2007) (citing 20 U.S.C. §
1412(a)(4)). When parents believe their child is not being provided “a free appropriate
public education,” they are entitled to an administrative due process hearing. Id. at
1269 (citing 20 U.S.C. § 1415(f)).
The IDEA is clear that it should not be construed to “restrict or lim it the rights,
procedures, and remedies available under the Constitution, the Americans with
Disabilities Act of 1990 . . . , title V of the Rehabilitation Act of 1973 . . . , or other
Federal laws protecting the rights of children with disabilities. . . .” 20 U.S.C. § 1415(l).
However, before aggrieved parents may sue under any of the above statutes “seeking
The Court rejects Plaintiff’s argument that Defendants have only moved to dismiss her
§ 504 claim for failure to exhaust, but do not seek dismissal of her claims under the ADA or §
1983. Defendant explicitly titles this portion of the Motion as follows: “Plaintiff’s Second, Third
and Fourth Claims for Relief Should Be Dismissed for Failure to Exhaust Administrative
Remedies.” (ECF No. 33 at 6.) Defendants accordingly argue that the exhaustion analysis
applies to each of Plaintiff’s claims under the ADA, § 1983, and § 504.
relief that is also available under [the IDEA],” they must administratively exhaust their
remedies under the IDEA “to the same extent as would be required had the action been
brought under this subchapter.” Id.
Thus, the failure to exhaust the IDEA’s administrative remedies is excused if the
relief the plaintiff seeks is not “available” under the statute. Exhaustion is also not
required if pursuing administrative remedies would be futile, or if they would otherwise
“fail to provide relief.” Urban by Urban v. Jefferson Cnty. Sch. Dist. R-1, 89 F.3d 720,
724 (10th Cir. 1996). For example, the IDEA offers no relief for “pure discrimination
claims.” Ellenberg, 478 F.3d at 1280-81 (exhaustion excused where plaintiffs
challenged school’s discriminatory admissions practice); see also Padilla ex rel. Padilla
v. Sch. Dist. No. 1, 233 F.3d 1268, 1274 (10th Cir. 2000) (exhaustion excused where
plaintiffs sought damages solely to redress student’s fractured skull and other physical
injuries sustained due to school district’s ADA violations).
Relief under the IDEA is deemed available whenever the plaintiff could obtain
“relief for the events, condition, or consequences of which the person complains, not
necessarily relief of the kind the person prefers or specifically seeks.” Padilla, 233 F.3d
at 1274 (citation omitted). The inquiry focuses on the “source and nature of the alleged
injuries for which he or she seeks a remedy, not the specific remedy itself.” Id. “In
essence, the dispositive question generally is whether the plaintiff has alleged injuries
that could be redressed to any degree by the IDEA's administrative procedures and
remedies.” Id. (emphasis added). If it is unclear whether the IDEA has the ability to
remedy a particular injury, exhaustion is required to “give educational agencies an initial
opportunity to ascertain and alleviate the alleged problem.” Id. Thus, if the plaintiff
brings a claim that is “educational in nature” that challenges the school district’s
provision of educational services, “the claim is ‘presumptively redressable’ through the
IDEA's administrative procedures.” Ellenberg, 478 F.3d at 1280. These principles
remain true regardless of the statutes the plaintiff cites as the basis for her lawsuit. Id.
Here, although Plaintiff brings ADA, § 504, and § 1983 claims, her lawsuit may
still fall under the IDEA. (See ECF No. 30.) Plaintiff’s Complaint discusses her 504
Plan that was designed to accommodate her disabilities but which Defendants
neglected to follow, and Defendants’ failure to address Plaintiff’s complaints of bullying.
(Id.) According to Plaintiff, “Defendants consciously disregarded [Plantiff’s] rights under
her 504 plan and discriminated against [her] by allowing bullying and a dangerous
learning environment.” (Id. at 11.) The Court will discuss each of Defendants’ alleged
violations below. Before doing so, the Court disposes of Plaintiff’s two preliminary
arguments why exhaustion is not required.
Plaintiff first argues that because she only seeks money damages, rather than
any prospective educational benefits, the relief she seeks is not “available under” the
IDEA. (ECF No. 36 at 6.) To the contrary, “the IDEA’s exhaustion requirement will not
be excused simply because a plaintiff requests damages, which are ordinarily
unavailable in administrative hearings held pursuant to the statute, if [the] alleged
injuries could be redressed under the IDEA.” Cudjoe v. Indep. Sch. Dist. No. 12, 297
F.3d 1058, 1066-67 (10th Cir. 2002) (citations om itted); see also A.F. ex rel Christine B.
v. Espanola Pub. Sch., 2015 WL 5333491, at *2 (10th Cir. Sept. 15, 2015) (“But som e
time ago this court held that the ‘dispositive question’ when assessing the
. . . exhaustion requirement isn’t whether the plaintiff seeks damages or some other
particular remedy, but ‘whether the plaintiff has alleged injuries that could be redressed
to any degree by the IDEA’s administrative procedures and remedies.’”) (emphasis in
original) (citation omitted). The Court accordingly rejects this argument.
Second, Plaintiff argues that because she is no longer enrolled at Corwin there
is no way that the IDEA can provide her any relief, particularly because she is at a new
school that meets her educational needs. (ECF No. 36 at 6.) T he Tenth Circuit has
rejected “the argument that exhaustion will be excused because relief is no longer
‘available’ at the time the plaintiff seeks to file a civil suit if relief was available at the
time the alleged injuries occurred.” Cudjoe, 297 F.3d at 1067; see also Polera v. Bd. of
Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 490 (2d Cir. 2002) (“Finally,
we reiterate our holding that disabled-student plaintiffs . . . should not be permitted to
‘sit on’ live claims and spurn the administrative process that could provide the
educational services they seek, then later sue for damages.”). As the Eleventh Circuit
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. 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.
N.B. by D.G. v. Alachua Cnty. Sch. Bd., 84 F.3d 1376, 1379 (11th Cir. 1996); see also
Doe By & Through Doe v. Smith, 879 F.2d 1340, 1343 (6th Cir. 1989) (“[T]he parents’
unilateral act of removing their child from a public school does not waive the right to
seek reimbursement under the [IDEA], [and] it does not m ean that the procedures in
the [IDEA] may be by-passed.”). The Court therefore cannot permit to Plaintiff to avoid
the IDEA’s administrative requirements simply because she is no longer at Corwin.
Plaintiff alleges that the bullying began in October 2013 and continued until she
withdrew from Corwin on April 25, 2014. (ECF No. 30 at 1-7.) For exhaustion to be
required, the Court must be persuaded that relief from the bullying was available under
the IDEA, and that Plaintiff’s injuries, in this context, were “educational in nature.”
Ellenberg, 478 F.3d at 1280. The IDEA provides relief “for claims whose genesis and
manifestation . . . are educational.” Cudjoe, 297 F.3d at 1067 (internal quotation marks
and citation omitted). Thus, for exhaustion to apply, the alleged acts must have “both
have an educational source and an adverse educational consequence.” Id.
The adverse educational consequences of bullying are obvious here, as it
eventually forced Plaintiff to change schools. However, no educational source of the
harm exists, and relief for such harm would not be available under the IDEA. In
Muskrat v. Deer Creek Public Schools, 715 F.3d 775, 785 (10th Cir. 2013), the plaintif f
alleged three instances of physical abuse at the hands of two school employees. The
Court held that it would make little sense to require parents to raise such claims through
the IDEA administrative process. Id. “Even though random violence may occur in the
course of a child’s education,” the court held, “we do not believe the child’s parent must
request a ‘no random violence’ clause in the IEP.” Id. Here, Plaintiff was not required
to request a “no bullying” clause in her 504 Plan or a separate IEP. This is, moreover,
not a case where the verbal and physical harassment suffered by Plaintiff was the
result of Defendants’ disciplinary measures gone awry, Hayes Through Hayes v.
Unified Sch. Dist. No. 377, 877 F.2d 809, 813 (10th Cir. 1989), or where Defendants’
employees encouraged harassment by others, Charlie F. by Neil F. v. Bd. of Educ. of
Skokie Sch. Dist. 68, 98 F.3d 989, 990 (7th Cir. 1996). The “genesis and
manifestation” of the harm is therefore not educational. The Court thus finds that
exhaustion was not required in this case as to Plaintiff’s bullying claim.
The Human Pyramid and the Snacks
Plaintiff alleges that Defendants violated her 504 Plan when they forced her to
participate in the human pyramid, and failed to promptly provide her the snacks
necessary to combat her low blood sugar. (ECF No. 30 at 11.) Applying the analysis
discussed above, the Court finds that these claims also do not fail for lack of
exhaustion, despite their stronger educational nexus.
Rather, this case, at least with regard to these two incidents, is similar to Padilla,
in which a student was restrained in a stroller and placed in a closet without
supervision, contrary to her IEP. 233 F.3d at 1271. W hile in the closet, the plaintiff fell
and hit her head on the floor, causing serious injuries including a skull fracture. Id. In
denying the defendants’ motion to dismiss for failure to exhaust, the court held:
So far as we can tell in the instant case, Plaintiff seeks
damages solely to redress the fractured skull and other
physical injuries she suffered allegedly as a result of the
school district’s and board of education’s purported ADA
violations. Plaintiff makes no complaints regarding her
current educational situation. . . . Under these narrow
circumstances, we fail to see how the IDEA’s administrative
remedies, oriented as they are to providing prospective
educational benefits, could possibly begin to assuage
Plaintiff’s severe physical, and completely non-educational,
Id. at 1274; see also McCormick v. Waukegan Sch. Dist. No. 60, 374 F.3d 564, 565
(7th Cir. 2004). Plaintiff’s claims fall in the narrow exception to exhaustion carved out
by Padilla because the nature of her injuries is primarily physical. Plaintiff alleges that
her fall from the human pyramid required surgery on her elbow and caused “permanent
damage to her ulnar nerve.”3 (ECF No. 30 at 8.) Likewise, Defendants’ failure to
provide Plaintiff her snacks in a timely fashion resulted in her “weakness, dizziness and
nausea.” (Id. at 11.) No change to Plaintiff’s 504 Plan or development of an IEP could
remedy this harm, and, in fact, Plaintiff’s 504 Plan already prohibited these actions.
Plaintiff also makes no argument that her subsequent educational situation suffered as
a result of these incidents, other than her new school being too far away. (Id. at 8.)
The IDEA’s “prospective educational benefits” will therefore not benefit Plaintiff, and
she was not required to exhaust her administrative remedies in this regard, as any
exhaustion would have proved futile.
Plaintiff alleges that she had leg surgery (apparently unrelated to this action)
in July 2013. (ECF No. 30 at 11.) During a post-surgery visit to the Colorado Children’s
Hospital, Plaintiff was given a letter stating she should have two sets of books—one for
The Court agrees with Defendants that it is somewhat unclear from the face of the
Complaint that Plaintiff is connecting her elbow surgery to the human pyramid. (ECF No. 33 at
8.) Plaintiff, however, argues in her Response that her “elbow surgery was a direct result of . . .
her fall from the pyramid . . .” (ECF No. 36 at 7.) The Court must, at this juncture, view the
facts in the light most favorable to Plaintiff, and therefore accepts Plaintiff’s reading of the
home and one for school. (Id.) Defendants never complied with this request. (Id.)
This claim required exhaustion. The failure to provide school books has both a
clear educational source and an adverse educational impact. Cudjoe, 297 F.3d at
1067. Thus, resort to the IDEA’s administrative remedies would not have proved futile
in this case because it would have allowed the school to remedy the situation by simply
providing Plaintiff another set of books. Cudjoe, 297 F.3d at 1068 (holding that school
district’s provision of teaching materials in a tardy fashion had “an educational source
and educational consequences.”). Any claims by Plaintiff related to Defendants’ failure
to provide two sets of books are therefore dismissed for lack of jurisdiction.
Rule 12(b)(6) Dismissal of ADA and § 504 Claims
Defendants move under Rule 12(b)(6) to dismiss Plaintiff’s ADA and § 504
claims for failure to state a claim on which relief can be granted. (ECF No. 33 at 8.)
Defendants argue that Plaintiff cannot establish that she was discriminated against
based on her disability. (ECF No. 33 at 9.)
When evaluating a discrimination claim under both § 504 and Title II of the ADA,
“[b]ecause these provisions involve the same substantive standards, [courts] analyze
them together.” Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Sch. , 565 F.3d
1232, 1245 (10th Cir. 2009) (citing Urban, 89 F.3d at 728 (“we analyze [plaintiff’s] ADA
claim by reference to [S]ection 504’s standards”). Both statutes state that no indiv idual
with a disability shall, “by reason of” such disability, be subjected to discrimination. 29
U.S.C. § 794; 42 U.S.C. § 12132. “A prima facie case under [Section] 504 consists of
proof that (1) plaintiff is handicapped under the Act; (2) he is ‘otherwise qualified’ to
participate in the program; (3) the program receives federal financial assistance; and (4)
the program discriminates against plaintiff.”4 Hollonbeck v. U.S. Olympic Comm., 513
F.3d 1191, 1194 (10th Cir. 2008); see Kimber v. Thiokol Corp., 196 F.3d 1092, 1102
(10th Cir. 1999) (“Because the language of disability used in the ADA mirrors that in the
Rehabilitation Act, we look to cases construing the Rehabilitation Act for guidance when
faced with an ADA challenge.”) (citing Bragdon v. Abbott, 524 U.S. 624 (1998)).
Therefore, the Court applies the Section 504 analysis for both claims. See Hollonbeck,
513 F.3d at 1194.
To state a claim for relief, Plaintiff must show intentional discrimination by
Defendants. However, intentional discrimination does not require proof of “personal
animosity or ill will.” Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th
Cir.1999). Instead, “intentional discrimination can be inferred from a defendant’s
deliberate indifference to the strong likelihood that pursuit of its questioned policies will
likely result in a violation of federally protected rights.” Id. at 1153; see Alexander v.
Choate, 469 U.S. 287, 296 (1985) (“Federal agencies and commentators on the plight
of the handicapped similarly have found that discrimination against the handicapped is
primarily the result of apathetic attitudes rather than affirmative animus.”). Put another
way, “[t]he test for deliberate indifference in the context of intentional discrimination
comprises two prongs: (1) knowledge that a harm to a federally protected right is
substantially likely, . . . and (2) a failure to act upon that . . . likelihood.” Barber ex rel.
Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1229 (10th Cir. 2009) (citation
omitted). “[F]ailure to act is a result of conduct that is more than negligent, and involves
Defendants make no argument regarding the first, second, or third elements. (ECF
an element of deliberateness.” Id. (citation omitted).
The Court begins with the bullying claims. The Complaint contains numerous
allegations that Plaintiff was bullied at Corwin over a lengthy period of time, which
Defendants did nothing to stop. (ECF No. 30.) These allegations show that Plaintiff
suffered discrimination. But the statutes at issue require more: “Under either the ADA
or the Rehabilitation Act, [Plaintiff] is obligated to show that [s]he was otherwise
qualified for the benefits [s]he sought and that [s]he was denied those solely by reason
of disability.” Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005)
(internal quotation marks omitted) (emphasis added). Plaintiff’s Complaint fails to
allege, or give rise to any inference, that her bullying allegations are linked, even in part,
to her claimed disabilities. Any claims under the ADA and § 504 must fail without this
necessary factual basis. See Sutherlin v. Indep. Sch. Dist. No. 40, 960 F. Supp. 2d
1254, 1267 (N.D. Okla. 2013).
The Court reaches the same conclusion with respect to Plaintiff’s remaining
claims involving the human pyramid and the snacks. Plaintiff alleges that, “per her
Section 504 [Plan], [she] was not to be forced to participate in any activity that would
compromise her physical condition,” and that Defendants violated the 504 Plan when
Plaintiff was forced to participate in the human pyramid. (ECF No. 30 at 4-5.) Plaintiff
further alleges that her 504 Plan addressed her hypoglycemia, and that she required
snacks during the school day to combat her low blood sugar. (Id. at 10-11.) Thus,
according to the Complaint, Defendants discriminated against Plaintiff when they failed
to ensure that she received her medically necessary snacks when needed. (Id. at 11.)
These allegations, viewed in the light most favorable to Plaintiff, do not support a
plausible claim of intentional discrimination against Defendants. The Court accepts that
Defendants, and the individual Corwin employees involved, knew Plaintiff had a 504
Plan that limited her physical activity and covered her hypoglycemia. But it does not
follow that they knew it was “substantially likely” that Plaintiff’s federally protected rights
as a disabled student would be violated if she participated in a risky physical activity, or
her snacks were delayed for three hours on a single occasion. This conduct simply
does not suggest “deliberate indifference to the strong likelihood” that violation of
Plaintiff’s rights would occur. Powers, 184 F.3d at 1153. These claims must therefore
be dismissed pursuant to Rule 12(b)(6).
However, the Court cannot determine at this time whether these allegations, in
the aggregate or separately, could support a plausible claim for relief if given greater
factual context and support. It is unclear whether Plaintiff’s failure to link her bullying
claims to her disability was a drafting error, or indicative of a lack of evidence; it is
further unclear whether Plaintiff would be able to bolster her allegations related to the
human pyramid and the snacks with more specific references to her 504 Plan, what
exactly it prohibited, and what the offending employees knew at the time of the alleged
harm. Thus, because the Court cannot determine whether amendment of the
Complaint would be futile, dismissal of these claims shall be without prejudice, and
Plaintiff will be given leave to amend her Complaint with regard to these allegations.
Rule 12(b)(6) Dismissal of the § 1983 Claim
Defendants argue that Plaintiff’s § 1983 substantive due process claim should
also be dismissed under Rule 12(b)(6). (ECF No. 33 at 12.)
It is important to first note that Plaintiff’s characterization of her § 1983 claim in
her Response brief greatly differs from what she has actually pled in the Complaint.
(Compare ECF No. 30 at 13-17, with ECF No. 36 at 12-13.) The Complaint alleges that
“John Doe” (Plaintiff’s unnamed physical education teacher) violated Plaintiff’s
substantive due process right to bodily security when he forced Plaintiff to participate in
the human pyramid, as did Defendants when they failed to adequately train and
supervise John Doe. (ECF No. 30 at 13-15.) However, in her Response brief, Plaintiff
attempts to establish a substantive due process violation through allegations of
“pervasive bullying, consistent violation of Plaintiff’s 504 plan and [Defendants’] policy”
of ignoring disciplinary issues among the students at Corwin. (ECF No. 36 at 13.) The
Court will not allow Plaintiff to expand the allegations in her Complaint through
argument of counsel in a Response brief. See Cnty. of Santa Fe v. Pub. Serv. Co. of
N.M., 311 F.3d 1031, 1035 (10th Cir. 2002) (“In deciding a Rule 12(b)(6) motion, a
federal court may only consider facts alleged within the complaint.” (emphasis added)).
Thus, because Plaintiff’s Complaint only discusses the human pyramid, the Court will
consider that single event, and no others, in its discussion of Plaintiff’s § 1983 claim.
A substantive due process claim is “founded upon deeply rooted notions of
fundamental personal interests derived from the Constitution.” Hennigh v. City of
Shawnee, 155 F.3d 1249, 1256 (10th Cir. 1998). T he concept of substantive due
process is not fixed or final, Rochin v. California, 342 U.S. 165, 170 (1952), but
generally is accorded to matters relating to marriage, family, procreation, and the right
to bodily integrity. See Albright v. Oliver, 510 U.S. 266 (1994). Such claims arise “in
the narrowest of circumstances.” Becker v. Kroll, 494 F.3d 904, 922 (10th Cir. 2007);
see also Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (“As a general
matter, the Court has always been reluctant to expand the concept of substantive due
process because guideposts for responsible decisionmaking in this unchartered area
are scarce and open-ended.”).
The standard for judging a substantive due process claim based on discrete
actions (as opposed to legislation) is whether the challenged government action would
“shock the conscience of federal judges.” Tonkovich v. Kan. Bd. of Regents, 159 F.3d
504, 528 (10th Cir. 1998). To satisfy this standard, “a plaintiff must do more than show
that the government actor intentionally or recklessly caused injury to the plaintiff by
abusing or misusing government power.” Id. Instead, a plaintiff “must demonstrate a
degree of outrageousness and a magnitude of potential or actual harm that is truly
conscience shocking.” Id. Therefore, “[a] substantive due process violation must be
something more than an ordinary tort to be actionable under § 1983.” Abeyta By &
Through Martinez v. Chama Valley Indep. Sch. Dist., No. 19, 77 F.3d 1253, 1257 (10th
Plaintiff cannot establish a substantive due process violation based on the
human pyramid allegations.5 Plaintiff makes no argument that Defendants’ conduct
shocked the conscience, or that such a standard does not apply in this case. (ECF No.
36 at 12.) Regardless, the Court finds that the act of requiring Plaintiff to participate in
The Court notes that it does not appear that Defendants’ Motion is made on behalf of
“John Doe.” (See ECF No. 33 at 1.) However, the substantive due process analysis with
respect to John Doe is critical to the remainder of the Court’s § 1983 analysis as to Defendants.
a human pyramid one time is not conscience-shocking behavior, and a claim of mere
negligence will not carry the day. “The universe of circumstances that have been found
sufficient to meet this test is limited indeed.” Perry v. Taser Int’l Inc., 2008 WL 961559,
at *2 (D. Colo. Apr. 8, 2008); see Harris v. Robinson, 273 F.3d 927, 931 (10th Cir.
2001) (no substantive due process violation where teacher ordered a mildly to
moderately intellectually disabled ten-year-old boy to clean out the toilet with his bare
hands); Abeyta, 77 F.3d at 1257 (not conscience-shocking for a teacher to call a
twelve-year-old girl a prostitute in front of the class repeatedly over the course of
several weeks and allow other students to do the same). The Court accordingly finds
that Plaintiff has not met her heavy burden of showing how her forced participation in
the human pyramid rose to the level of a constitutional tort. 6 See Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir. 2008) (“The burden is on the plaintiff to frame a
complaint with enough factual matter (taken as true) to suggest that he or she is entitled
to relief.” (citation and internal quotation marks omitted)).
However, Plaintiff’s § 1983 claim not only alleges a substantive due process
violation against John Doe, but also seeks to impose liability on Defendants under
Monell v. Department of Social Services, 436 U.S. 658 (1978). Liability under § 1983
cannot be predicated on a theory of respondeat superior. Id. at 694. The Monell Court
“expressly held that municipal defendants—public school districts and school boards
To the extent that Plaintiff’s Complaint suggests that John Doe’s actions amounted to
“punishment” (ECF No. 30 at 16), Plaintiff does not even come close to alleging conduct that
was “so inspired by malice or sadism . . . that it amounted to a brutal and inhumane abuse of
official power literally shocking to the conscience.” Muskrat, 715 F.3d at 787.
included—can’t be held liable under 42 U.S.C. § 1983 solely because they employ a
person who violated the plaintiff’s constitutional rights.” Lawrence v. Sch. Dist. No. 1,
560 F. App’x 791, 794 (10th Cir. 2014); see also Seamons v. Snow, 206 F.3d 1021,
1029 (10th Cir. 2000) (applying Monell to school district); Ware v. Unified Sch. Dist. No.
492, 902 F.2d 815, 817 (10th Cir. 1990) (applying Monell to school board).
Instead, it must be shown that the employee’s unconstitutional actions were
representative of the municipality’s “official policy or custom . . . or were carried out by
an official with final policy making authority with respect to the challenged action.”
Seamons, 206 F.3d at 1029. Absent evidence of an official policy, liability can still be
imposed where the practice is “so permanent and well settled as to constitute a ‘custom
or usage’ with the force of law.” Lankford v. City of Hobart, 73 F.3d 283, 286 (10th Cir.
1996). The policy at issue must be the “moving force behind the constitutional
violation,” and must exhibit the municipality’s “deliberate indifference” to the
constitutional rights of those affected. City of Canton v. Harris, 489 U.S. 378, 389
Even assuming there is an underlying constitutional injury here (which the Court
has found there is not), Defendants argue, and the Court agrees, that Plaintiff’s
Response brief fails to address the alleged policies referred to in the Complaint, or tie
the application of those policies to her injuries. (ECF No. 37 at 9.) Plaintiff’s Response
brief focuses on Defendants’ alleged practice of turning a blind eye to pervasive
bullying, consistently violating Plaintiff’s 504 Plan, and not reporting, or ignoring,
disciplinary issues among Corwin students. (ECF No. 36 at 12-13.) The majority of
these allegations are not before the Court because Plaintiff has not included them in
the § 1983 claim of the Complaint. (ECF No. 30 at 14-17.) Moreover, while the human
pyramid incident appears to fall somewhere under Plaintiff’s allegation that Defendants
consistently ignored her 504 Plan, Plaintiff does little else to defend this theory of
liability—the sole theory on which her § 1983 claim is based. (Id.)
Nevertheless, the Court will assume for purposes of this Order that Plaintiff
properly included all of the above allegations in the § 1983 claim of her Complaint. The
Court further assumes that Defendants’ actions displayed a policy of deliberate
indifference that was the moving force behind the conduct at issue, and the harm
suffered by Plaintiff. Whether that conduct at issue shocks the conscience is another
Here, Plaintiff was not given her snacks in a timely fashion one time, which,
Plaintiff alleges, caused her “weakness, dizziness and nausea.” (ECF No. 30 at 11.)
Plaintiff was also injured during the human pyramid activity. (Id.) These events do not
shock the conscience, even assuming the state actors acted intentionally. See, e.g.,
Williams v. Berney, 2006 WL 753208, at *5 (D. Colo. Mar. 20, 2006), aff’d in part, 519
F.3d 1216 (10th Cir. 2008) (no substantive due process violation where state employee
severely beat plaintiff without provocation, causing him severe injuries and later a
The Court reaches the same conclusion when these allegations are considered
together with Plaintiff’s repeated bullying. While in hindsight Corwin’s response (or lack
thereof) to the bullying did little to protect Plaintiff from the harm that befell her, the
circumstances are not conscience-shocking so as to rise to the level of a constitutional
violation. Rather, these and Plaintiff’s other allegations more properly sound in
common law tort rather than substantive due process. For example, in Smith v.
Guilford Board of Education, 226 F. App’x 58, 62 (2d Cir. 2007), the Second Circuit
found that the school board’s “failure to respond to the harassing and bullying to which
the plaintiff] was subjected . . . , while highly unfortunate, d[id] not rise to the level of”
conduct that shocks the conscience. The bullying directed at the plaintiff, who was “4'7''
tall and weighed approximately 75 pounds,” included:
(1) pushing and shoving; (2) blocking [the plaintiff’s]
entrance into or out of classrooms, restraining and
imprisoning him therein; (3) placing [the plaintiff] on
students’ shoulders and physically treating him “like a baby;”
(4) teasing, harassing, bullying and tormenting [the plaintiff]
on a daily basis; (5) forcing [the plaintiff] into a backpack,
zipping the pack, then parading the backpack, with [the
plaintiff] visible, through the halls of the school; (6) mocking
[the plaintiff] with sexually suggestive comments; (7) on at
least one occasion, picking him up against his will, cradling
and treating him as if he were a baby; (8) grabbing,
assaulting, restraining, imprisoning, and teasing him with
disparaging or threatening comments.
Smith v. Guilford Bd. of Educ., 2005 WL 3211449, at *1 (D. Conn. Nov. 30, 2005), aff’d
in part, vacated in part, 226 F. App’x at 58; see also Pollard v. Georgetown Sch. Dist.,
2015 WL 5545061, at *2 (D. Mass. Sept. 17, 2015) (no substantive due process
violation where plaintiff was “regularly emotionally, physically and verbally” abused by
peers because he was Jewish and small in stature; students expressed desire to kill,
stab, and beat plaintiff on social media; and made multiple comments about Jews being
massacred and stating that the Holocaust was unsuccessful because plaintiff’s family
survived, all of which school district failed to investigate); Sutherlin, 960 F. Supp. 2d at
1262 (no substantive due process violation—merely “bad judgment and
insensitivity”—where school district officials witnessed and ignored plaintiff being
physically assaulted, called plaintiff names in front of students, and failed to investigate
numerous incidents of bullying and harassment). Plaintiff no doubt had a terrible
experience at Corwin, and the bullying allegations in this case are very disturbing and
troubling. While this Court may very well have come to a different conclusion were it
writing on a blank legal precedent slate, given the sky-high bar erected by decisions of
our Circuit on what conduct rises to the level of a constitutional tort, the Court cannot on
this record find that the school officials’ actions in this case shock the conscience.
Therefore, the Corwin school officials’ actions, accepted as true and taken
cumulatively, do not “demonstrate a degree of outrageousness and a magnitude of
potential or actual harm that is truly conscience shocking.” Tonkovich, 159 F.3d at 528.
This is fatal to Plaintiff’s Monell claim (including any claim for failure to train and
supervise), which must be based on an underlying constitutional violation by
Defendants’ representatives. “It is important to distinguish between the standard for
determining when a governmental entity will be liable under section 1983 for
constitutional wrongs committed by its employees and the degree of fault, if any, which
a plaintiff must show to make out an underlying claim of a constitutional violation.”
Ware, 902 F.2d at 820 n.2 (10th Cir. 1990) (citing Canton, 489 U.S. at 388 n.8); see
also Muskrat, 715 F.3d at 788 (“The district court held that the school district could not
be liable under Monell because the Muskrats had failed to show that any school district
employee had committed a constitutional violation. We have reached the same
conclusion and therefore affirm the district court on this issue.”); Perry, 2008 WL
961559, at *3 (“[I]n the absence of an underlying constitutional violation, plaintiff cannot
make out a claim against the city or Bennett for failure to adequately train Aurora police
officers . . . .”). Thus, because Plaintiff can establish no underlying constitutional
violation by any of Defendants’ employees or representatives, her Monell claim must
Finally, Plaintiff seeks to hold Defendants liable based on a “danger creation”
theory, which also “must ultimately rest on the specifics of a substantive due process
claim—i.e., a claim predicated on reckless or intentionally injury-causing state action
which ‘shocks the conscience.’” 7 Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995).
To prevail on this theory, Plaintiff must show that the “charged state entity and the
charged individual defendant actors created the danger or increased the plaintiff’s
vulnerability to the danger in some way.” Armijo By & Through Chavez v. Wagon
Mound Pub. Sch., 159 F.3d 1253, 1263 (10th Cir. 1998). T hus, this doctrine
“necessarily involves affirmative conduct on the part of the state in placing the plaintiff in
danger.” Gray, 672 F.3d at 920 (emphasis added).
Plaintiff does not pursue a “special relationship” theory of liability which would not
apply here in any event. See Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d 909, 917 n.4 (10th
Cir. 2012) (noting that “compulsory attendance laws do not create an affirmative constitutional
duty to protect students from the private actions of third parties while they attend school”);
Graham v. Indep. Sch. Dist. No. I-89, 22 F.3d 991, 995 (10th Cir. 1994) (“[D]efendants’ alleged
nonfeasance in the face of specific information which would mandate action does not invoke the
protections of the Due Process Clause”); Chambers v. N. Rockland Cent. Sch. Dist., 815 F.
Supp. 2d 753, 776 (S.D.N.Y. 2011) (“The consensus among the courts is that the ‘special
relationship’ doctrine does not apply to the school setting.”).
The Court has serious doubts that Plaintiff could ever state a plausible claim
under the danger-creation theory. Plaintiff’s allegations revolve around Defendants’
inaction in the face of danger (the affidavit of Mark Scarr aside, which the Court
declines to consider here). (ECF No. 38.) But even if Plaintiff were able to adduce
facts that Defendants engaged in at least some affirmative conduct that created the
danger at issue, her allegations are not conscience-shocking as established above.
Therefore, because Plaintiff cannot establish an underlying constitutional
violation by either John Doe personally, Defendants under Monell, or Defendants under
the danger creation theory, her § 1983 claim fails. Moreover, given the above
discussion, the Court finds that any amendment of the Complaint would be futile
because Plaintiff would not be able, under any recitation of the facts at issue, to
establish her § 1983 claim. Jefferson Cnty. Sch. Dist. No. R-1 v. Moody’s Investor’s
Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999) (“A proposed amendment is futile if the
complaint, as amended, would be subject to dismissal.”). Plaintiff’s § 1983 claim must
therefore be dismissed in its entirety and with prejudice.
Corwin as Defendant and Lisa Dorsey as Plaintiff
Defendants argue that though Corwin is named as a Defendant, none of
Plaintiff’s claims are specifically pled against it, and Corwin is not a separately suable
entity apart from the school district. (ECF No. 33 at 14.) Plaintiff did not respond to this
argument in her Response Brief. (ECF No. 36.) Support exists for the proposition that
Corwin may not be separately sued along with the school district. For example,
Colorado law specifically states that “[e]ach regularly organized school district . . . may
. . . sue and be sued.” Colo. Rev. Stat. § 22-32-101; see also Roe v. Karval Sch. Dist.
RE23, 2013 WL 1858464, at *7 (D. Colo. May 2, 2013). The Court accordingly finds
that Corwin is not a separately suable entity from Defendant Pueblo School District 60.
Defendants further argue that Lisa Dorsey should be dismissed as an
individually-named Plaintiff because the Complaint contains no allegations that she was
injured by any of Defendants’ actions. (ECF No. 33 at 2.) Plaintiff does not respond to
this argument either. (ECF No. 36.) A review of the Complaint supports Defendants’
contention that the claims are only alleged on behalf of Ms. Dorsey’s minor daughter,
J.D. (ECF No. 30.) The Court accordingly finds that Ms. Dorsey may proceed with this
lawsuit as parent and representative of J.D., but not individually.
Defendants request attorneys’ fees pursuant to Colorado Revised Statute
§ 13-17-201 in the event the Court grants the Motion. (ECF No. 33 at 15.) The Court’s
Practice Standards state:
All requests for the Court to take any action, make
any type of ruling, or provide any type of relief must
be contained in a separate, written motion. A request
of this nature contained within a brief, notice, status
report or other written filing does not fulfill this
Practice Standard. This requirement applies to all
civil and criminal actions. (emphasis in original)
WJM Revised Practice Standard III.B; see,
The Court thus declines to consider Defendants’ request for attorneys’ fees at this time,
and expresses no opinion on Defendants’ entitlement to such fees. Should Defendants
believe they are entitled to attorneys’ fees in connection with this Motion, they may file a
separate Motion for Attorneys’ Fees at a later date.
For the reasons set forth above, the Court ORDERS as follows:
Defendants’ Motion to Dismiss (ECF No. 33) is GRANTED IN PART AND
DENIED IN PART as described in detail above;
Claim One (Negligence Resulting in Personal Injury) of Plaintiff’s Amended
Complaint (ECF No. 30) is DISMISSED WITHOUT PREJUDICE;
Claim Two (Violation of Section 504 Rehabilitation Act of 1973) and Claim Three
(Violation of the Americans with Disabilities Act of 1990) of Plaintiff’s Amended
Complaint are DISMISSED WITHOUT PREJUDICE;
As described above, Plaintiff may, on or before November 30, 2015, further
amend her Complaint: (a) to allege plausible, substantiated facts that would
sufficiently support Claims Two and Three in a manner consistent with the
analysis in this Order; and/or (b) assert a new related claim or claims, the
addition of which would not be inconsistent with the analysis in this Order;
Claim Four (Violation of 42 U.S.C. § 1983) of Plaintiff’s Amended Complaint is
DISMISSED WITH PREJUDICE;
Defendant Corwin International Magnet School is DISMISSED as a Defendant
Plaintiff Lisa Dorsey is DISMISSED from this action insofar as she purports to
seek individual relief; Ms. Dorsey will remain a party to this action as parent and
representative of her minor child, Plaintiff J.D. The Clerk shall accordingly
update the case caption in this matter, as will the parties in all future filings;
The stay previously imposed by United States Magistrate Judge Craig B. Shaffer
(ECF No. 26) is hereby LIFTED. Pursuant to the Judge Shaffer’s Order at ECF
No. 26, no later than October 29, 2015 the parties shall contact Judg e Shaffer’s
Chambers to schedule a Status Conference in this case.
Dated this 26th day of October, 2015.
BY THE COURT:
William J. Martínez
United States District Judge
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