Witsell et al v. School Board of Hillsborough County, Florida
Filing
18
ORDER granting 8 --motion to dismiss counts one and two; amended complaint due 7/1/2011. Signed by Judge Steven D. Merryday on 6/20/2011. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DONNA WITSELL and CHARLES
WITSELL,
Plaintiffs,
v.
CASE NO: 8:11-cv-781-T-23AEP
SCHOOL BOARD OF HILLSBOROUGH
COUNTY, FLORIDA,
Defendant.
__________________________________/
ORDER
The plaintiffs sue (Doc. 1) under 28 U.S.C. § 1983 (“Section 1983") and state law
on behalf of themselves and the estate of H.S.W. The plaintiffs allege negligence and a
violation of both the plaintiffs’ and H.S.W.’s right under the Fourteenth Amendment of
the United States Constitution. The defendant (the “School Board”) answers (Doc. 10)
the negligence claim and moves to dismiss (Doc. 8) the Fourteenth Amendment claims.
The plaintiffs respond (Doc. 13) in opposition.
Allegations of the Complaint
Donna and Charles Witsell are married and live in Hillsborough County, Florida.
The Witsell’s thirteen-year-old daughter, H.S.W., attended Beth Shields Middle School
in the town of Ruskin. On Friday, September 11, 2009,1 a teacher ordered H.S.W. to
1
The complaint alleges that H.S.W.’s suicide occurred in 2010, but the School Board notes that,
in fact, the event occurred in 2009. The plaintiffs offer no response to School Board’s contention, and the
“no-harm contract” (Doc. 8-1) is undated. Nonetheless, the day of H.S.W.’s suicide is a fact both “not
subject to reasonable dispute” and either “(1) generally known within the territorial jurisdiction of the trial
(continued...)
report to the principal’s office after the teacher noticed shallow cuts on H.S.W.’s thigh.
At the time, both the teacher and the principal knew that H.S.W. “was experiencing
extraordinary ridicule and harassment from other students because of a prior, juvenile
indiscretion: H.[S.W.] texted a suggestive image of herself to a boy at the end of the
prior school year.”
Throughout the afternoon on September 11, 2009, a school social worker
provided H.S.W. “involuntary mental health counseling”. The counseling on September
11 was H.S.W.’s first encounter with the social worker and first experience with mental
health counseling. The social worker counseled H.S.W. “in isolation” without notice to
either the school’s psychologist, the school’s “resource officer,” the principal, H.S.W.’s
“scholastic counselor,” or the plaintiffs. After the counseling session, the social worker
failed to notify the plaintiffs of either the mental health counseling, the shallow cuts on
H.S.W.’s thigh, or “the need for continued care.”
The following day, Saturday September 12, 2009, H.S.W. committed suicide in
her bedroom at the plaintiffs’ residence. The plaintiffs discovered in H.S.W.’s bedroom
a “no-harm contract” (Doc. 8-1) between the social worker and H.S.W. In the “contract,”
H.S.W. agreed not to “attempt suicide or die by suicide” and to call the social worker if
H.S.W. again developed suicidal thoughts. In this action, the plaintiffs allege (1) that the
involuntary counseling occurred as a result of both an official policy on suicide
1
(...continued)
court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” FED. R. EVID. 201(b)-(c) (stating that a fact is susceptible to judicial notice
absent a request for judicial notice). A fact judicially noticed is susceptible to consideration in resolving a
motion to dismiss. See Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002);
Rounds v. Genzyme Corp., 2010 WL 5297180, *1 (M.D. Fla. 2010).
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prevention and the School Board’s widespread “customs and practices”; (2) that the
School Board’s policy and custom “demonstrated a deliberate indifference to the
constitutional rights and interests of parents”; (3) that the School Board “had the
opportunity to review the resulting acts and omissions, failed to undertake any remedial
measure, and effectively ratified [the conduct] as being in accord[] with [the School
Board’s] policy and customs”; (4) that H.S.W. lacked the ability to “provide for her own
safety and welfare in light of her severe mental state, suicidal tendencies[,] and sheer
nonage”; (5) that the School Board assumed responsibility for H.S.W. and “plac[ed] her
in a worse situation than if [the School Board] and [the School Board’s] personnel had
not acted at all”; (6) that the social worker “stood in locus parenti figuratively as well as
legally”; (7) that, in entering the “no-harm contract,” H.S.W. relied on the social worker
for “continuing care”; and (8) that, when the social worker released H.S.W. without
notice to the plaintiffs or to anyone else, the social worker (whose conduct the School
Board “effectively” ratified) acted with deliberate indifference and with disregard to her
affirmative duty toward H.S.W.
Discussion
In moving to dismiss the Fourteenth Amendment claims, the School Board argues
(1) that resolving the motion requires consideration of three documents mentioned by,
and central to, the complaint; (2) that the plaintiffs fail to show a policy or custom
sufficient to state a claim against the School Board under Monell v. Dep’t of Social
Serv., 436 U.S. 658 (1977); (3) that, even if the plaintiffs show a policy or custom, the
plaintiffs cannot state a “plausible theory of liability” under Section 1983. In response,
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the plaintiffs assert (1) that, although the School Board’s “purported policy” is
susceptible to consideration in deciding the motion to dismiss, the policy has no effect
on the plaintiffs’ claim; (2) that the “involuntary” counseling “worsened [H.S.W.’s]
circumstances” and deprived the plaintiffs of “an opportunity to render meaningful aid”;
(3) that, by seizing “custody” of H.S.W. for “involuntary” mental health counseling, the
School Board “accepted an affirmative duty for [H.S.W.’s] care”; and (4) that the
plaintiffs adequately demonstrate a policy or custom by alleging “inadequate guidelines
on suicide prevention, a lack of training, a lack of supervision, a lack of controls to
assure accountability, the assignment of [H.S.W.] to an unfamiliar social worker,” and
the failure to effect remedial action after H.S.W.’s suicide.
“[A] municipality can be found liable under [Section] 1983 only [if] the municipality
itself causes the constitutional violation at issue. Respondeat Superior or vicarious
liability will not attach under [Section] 1983.” City of Canton v. Harris, 489 U.S. 378, 385
(1989) (emphasis in original); Greer v. Hillsborough County Sheriff's Office, 2006 WL
2535050, *3 (M.D. Fla. 2006). “Municipal liability arises only if the municipality
maintains an unconstitutional policy or custom.” Ainsworth v. City of Tampa, 2010 WL
2220247, *7 (M.D. Fla. 2010) (citing Monell, 436 U.S. at 690-91). A “failure to train”
qualifies as a municipal policy if “the need for more or different training [is] so obvious,
and the inadequacy so likely to result in the violation of constitutional rights” that the
failure to train amounts to deliberate indifference to a constitutional right. City of
Canton, 489 U.S. at 390; Belcher v. City of Foley, 30 F.3d 1390, 1397 (11th Cir.1994)
(“Only when the failure to train amounts to ‘deliberate indifference’ can it properly be
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characterized as the ‘policy’ or ‘custom’ that is necessary for [S]ection 1983 liability to
attach.”).
“No basis exists for an inadequate training claim if the plaintiff alleges only a
single incident to support the claim.” Ainsworth v. City of Tampa, 2010 WL 2220247 at
*7 (citing City of Oklahoma v. Tuttle, 471 U.S. 808, 821-24 (1985) (“Proof of a single
incident of unconstitutional activity is not sufficient to impose liability under Monell,
unless proof of the incident includes proof that it was caused by an existing,
unconstitutional municipal policy, which policy can be attributed to a municipal
policymaker.”)); c.f. Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986) (finding
that “municipal liability may be imposed for a single decision by municipal policymakers
under appropriate circumstances.”). A municipality becomes liable “by actively
endorsing or approving of the conduct of its employees or officials.” Garvie v. City of Ft.
Walton Beach, 366 F.3d 1186, 1189-90 (11th Cir. 2004). However, “to state a
successful [Section] 1983 claim against a municipality based on a ratification theory . . .
‘the[] [plaintiff] must demonstrate that local government policymakers had an opportunity
to review the subordinate's decision and agreed with both the decision and the
decision's basis . . . .” 366 F.3d at 1189.
The same standard applies to a school board, which is susceptible to a claim
under Section 1983 for conduct the school board officially sanctions or orders. K.M. v.
Sch. Bd. of Lee County, 150 F. App'x. 953, 957 (11th Cir. 2005). An official act—such
as a policy, regulation, or custom—renders a school board liable if the official act causes
the constitutional violation. Monell, 436 U.S. at 691. To state a claim that a custom or
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practice caused the plaintiff's injury, the plaintiff must plead facts demonstrating that the
act is not an isolated incident. See Church v. City of Huntsville, 30 F.3d 1332, 1345-46
(11th Cir. 1994). The alleged practice must be persistent and widespread. K.M., 150 F.
App'x. at 957.2
Nevertheless, a school board typically possesses no constitutional duty to protect
a student from self-inflicted harm that occurs outside of school. Wyke v. Polk County
Sch. Bd., 129 F.3d 560, 565 (11th Cir. 1997); DeShaney v. Winnebago County Dept. of
Soc. Services, 489 U.S. 189 (1989) (finding that the due process clause imposes no
duty on the state “to protect the life, liberty, and property of its citizens against invasion
by private actors. The [c]lause is phrased as a limitation on the [s]tate's power to act, not
as a guarantee of certain minimal levels of safety and security.”). DeShaney explains
that a constitutional duty to protect most often "involve[s] a custodial relationship
between the injured individual and the state."3 The state creates a "custodial
relationship" through "incarceration, institutionalization, or other similar restraints of
personal liberty." Wyke, 129 F.3d at 569 (quoting DeShaney, 489 U.S. at 205); White v.
Lemacks, 183 F.3d 1253, 1257 (11th Cir. 1999) (finding that a “custodial relationship”
emanates from "incarceration of prisoners or other forms of involuntary confinement
through which the government deprives individuals of their liberty and thus of their ability
2
For example, in K.M., the parents of a student with attention deficit disorder alleged that the
school board customarily delayed production of student records for children with disabilities. The parents
identified two other instances in which the school board delayed release of the records. K.M. holds that
three factually distinct instances over four years fail to constitute a custom.
3
In DeShaney, a child suffered harm while outside of the state’s custody and while in the custody
of the child’s father. Because the father “was in no sense a state actor,” the state bore no responsibility for
the harm suffered by the child. 489 U.S. at 201.
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to take care of themselves.”). Compulsory school attendance (without more)
establishes no “custodial relationship” and triggers no duty to protect. Wyke, 129 F.3d
at 569. “By mandating school attendance, the state simply does not restrict a student's
liberty in the same sense that it does when it incarcerates prisoners or when it commits
mental patients involuntarily.” 129 F.3d at 569.
Even if the plaintiff establishes a custodial relation, the plaintiff must plead (1) that
the school board acted with a degree of culpability and (2) that the school board's action
directly caused the deprivation of a constitutional right. Worthington v. Elmore County
Bd. of Educ., 160 F. App'x. 877, 880 (11th Cir. 2005). To demonstrate culpability, the
plaintiff must allege facts showing that the school board acted with deliberate
indifference to known or obvious consequences. 160 F. App'x. at 880-81. The facts
must show that the school board acted with more than “simple or even heightened
negligence.” Bd. of County Com'rs v. Brown, 520 U.S. 397, 407 (1997). If a school
program, policy, or custom fails over time to prevent constitutional violations, the school
board “may eventually [receive] notice that a new program is called for.” 520 U.S. at
407. An allegation that the school board followed a program that the school board knew
or should have known would not prevent constitutional violations is sufficient. 520 U.S.
at 407. A pattern of constitutional violations is not necessary if a violation is both likely
and highly predictable. 520 U.S. at 409. To demonstrate causation, the plaintiff must
plead facts showing that the school board's “deliberate conduct was the moving force
behind the injury alleged.” Worthington, 160 F. App'x. at 880.
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If no “custodial relationship” exists, a school board assumes a duty to protect by
creating a dangerous situation or rendering the student more vulnerable to harm. Wyke,
129 F.3d at 567. In Wyke, a student attempted suicide at school in the boys' restroom.
A classmate intervened and persuaded the student to return to class. The classmate
described the incident to his mother, who informed the dean of students. The dean
assured the classmate's mother that he “would take care of it." Shortly thereafter, the
dean sequestered the student in the dean’s office—despite the student’s appearing
"very upset"—and read Bible verses to him. The dean notified the student's parents
neither of the suicide attempt nor of the meeting and failed to otherwise act. The
student again attempted suicide at school and later committed suicide at home. Wyke
holds (1) that the dean's sequestering the student created no danger to the student and
(2) that the dean's assurance that he would “take care of it" imposed neither on the
classmate’s mother nor on the student a limitation that rendered the student more
vulnerable to harm.
In this action, the plaintiffs allege a custom under Monell by claiming that the
School Board operated under “inadequate guidelines on suicide prevention, a lack of
training, a lack of supervision, [and] a lack of controls to assure accountability” and that
school personnel assigned H.S.W. to an unfamiliar social worker. Additionally, the
plaintiffs argue that the School Board “had the opportunity to review the resulting acts
and omissions, failed to undertake any remedial measure, and effectively ratified [the
conduct] as being in accord[] with [the School Board’s] policy and customs.” However,
the School Board shows the maintenance of a written policy on suicide prevention. The
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policy, which is central to the complaint and which the School Board attaches to the
motion to dismiss, requires notice to a student’s parents if the student presents a risk of
suicide. Thus, in this instance, the social worker deviated from the School Board’s
written policy. The plaintiffs allege a “failure to train” but fail to allege facts supporting a
deliberate indifference to either an obvious need “for more or different training” or an
inadequacy “so likely to result in the violation of constitutional rights”. The plaintiffs
allege no fact showing that the School Board actively endorsed or approved the social
worker’s decision not to inform the plaintiffs of H.S.W.’s suicide risk. Rather, the
plaintiffs allege an admittedly tragic but isolated incident in which a social worker failed
to follow established protocol. Furthermore, even if the plaintiffs alleged facts sufficient
to assert municipal liability under Monell and even if the allegations supported a
“custodial relationship” between the school and H.S.W., the plaintiffs provide no factual
support for the alleged claim of deliberate indifference, i.e., that the School Board’s
conduct amounted to more than either “simple or heightened negligence”. Brown, 520
U.S. at 407. Absent a custodial relationship, no factual allegations support the claim
that the School Board (through the conduct of the social worker) rendered H.S.W. more
vulnerable to harm.
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Conclusion
Accordingly, the School Board’s motion (Doc. 8) to dismiss counts one and two is
GRANTED, and counts one and two are DISMISSED. The plaintiffs may file an
amended complaint no later than July 1, 2011.
ORDERED in Tampa, Florida, on June 20, 2011.
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