I.C. v. Polk County School District et al

Filing 50

ORDER: The School Board of Polk County's Motion to Dismiss (Doc. # 43 ) and Our Children's Academy, Inc.'s Motion to Dismiss (Doc. # 47 ) are GRANTED. The Amended Complaint (Doc. # 37 ) is DISMISSED WITHOUT PREJUDICE and I.C. is granted leave to amend. I.C. may file a second amended complaint by August 3, 2017. If I.C. elects to file a second amended complaint, he may not add new causes of action; rather, he should focus on Count VIII's deficiencies as addressed herein. Absent a viable federal cause of action, the Court will be disinclined to exercise jurisdiction over the state-law claims. Signed by Judge Virginia M. Hernandez Covington on 7/13/2017. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SUZANNE RIHA ex rel. I.C.,
Plaintiff,
v.

Case No. 8:17-cv-787-T-33AAS

POLK COUNTY SCHOOL DISTRICT,
et al.,
Defendants.
_____________________________/
ORDER
This matter comes before the Court upon consideration of
Defendant the School Board of Polk County’s Motion to Dismiss
(Doc. # 43), filed on June 16, 2017, and Defendant Our
Children’s Academy, Inc.’s Motion to Dismiss (Doc. # 47),
filed on June 28, 2017. Plaintiff I.C., who is identified
only by his initials because he is a minor, timely filed his
response in opposition to the School Board’s Motion on June
30, 2017, and untimely filed his response in opposition to
Our Children’s Academy’s Motion on July 13, 2017. (Doc. ##
48, 49). For the reasons below, the Amended Complaint is
dismissed.
I.

Background
I.C. is a child diagnosed as “being on the autism

spectrum

and

having

associated

behavioral

and

emotional

disabilities” who attends Our Children’s Academy. (Doc. # 37
at ¶¶ 3, 6). Our Children’s Academy is a charter school in
Polk County, which is regulated by the School Board. (Id. at
¶¶ 14, 15).
The school bus that transported I.C. to and from Our
Children’s Academy transported children with special needs
and, as such, had a bus attendant in addition to a driver.
(Id. at ¶ 24). This school bus also had a video surveillance
system and an electronic monitoring system. (Id. at ¶¶ 24,
25). The electronic monitoring system, however, “could be
easily deactivated” by someone on the bus, including the child
passengers. (Id. at ¶ 25).
On March 2, 2016, I.C.’s mother placed I.C. on the school
bus to be taken to Our Children’s Academy. (Id. at ¶ 28).
During the bus ride, I.C. fell asleep in his seat. (Id. at ¶
29). After the other children departed the bus, the bus driver
and attendant did not check each seat on the bus to ensure
all of the children had departed. (Id. at ¶ 30). Additionally,
the electronic monitoring system had been deactivated at some
point so it did not alert the driver or attendant to I.C.’s
presence on the bus. (Id. at ¶ 27).
From

Our

Children’s

Academy,

the

driver,

with

the

attendant onboard, drove the bus to a storage facility. (Id.

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at ¶ 31). Once at the storage facility, the driver and
attendant got off the bus. (Id. at ¶ 32). A “video recording
. . . clearly shows the Bus Attendant walking right past
I.C.’s seat prior to exiting the bus and leaving I.C. onboard
the locked bus” and also shows “that the Bus Driver did not
walk the bus . . . to ensure all of the children had in fact
disembarked . . . before leaving the bus locked and in storage
for the day.” (Id. at ¶¶ 33, 34).
I.C. awoke sometime thereafter “disoriented and afraid.”
(Id. at ¶ 37). Eventually, he climbed out of the bus’s
emergency

window

and,

after

“plummeting

to

the

ground,”

walked and hitchhiked approximately 30 miles to his house.
(Id. at ¶¶ 37, 38). Our Children’s Academy did not report
I.C.’s absence on March 2, 2016, to his mother. (Id. at ¶
36). The next day, March 3, 2016, I.C. told the bus driver he
had been locked in the bus and walked home from the storage
facility. (Id. at ¶ 39).
On March 9, 2016, a similar series of events occurred.
(Id. at ¶ 43). I.C. boarded the same bus driven by the same
driver and attended by the same attendant. (Id.). Again, I.C.
fell asleep and failed to disembark at Our Children’s Academy.
(Id. at ¶¶ 44, 45). The driver and attendant did not “properly
check the bus for students remaining in their seats” and the

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electronic monitoring system had been deactivated at some
point. (Id. at ¶¶ 45, 46).
As

with

the

first

incident,

the

driver,

with

the

attendant onboard, drove the bus from Our Children’s Academy
to the storage facility and upon arrival departed the bus,
leaving I.C. behind in the locked bus. (Id. at ¶ 47). I.C.
woke up while the bus was in the storage facility, somehow
got out of the bus, and then “accepted rides from strangers
on the side of the road to get back to his home.” (Id. at ¶
48). Our Children’s Academy did not inform I.C.’s mother of
his absence on March 9, 2016. (Id. at ¶ 50).
I.C.’s mother learned of these incidents after I.C.’s
therapist called her on March 9, 2016, to ask if he was okay.
(Id. at ¶ 51). A little over a year later, on April 3, 2017,
I.C., through his mother, brought suit against the School
Board and Our Children’s Academy. (Doc. # 1). After the School
Board moved to dismiss the Complaint, I.C. filed a proposed
order dismissing the Complaint with leave to amend, which the
Court construed as I.C.’s motion for leave to amend. (Doc. ##
22, 28, 30). The Court granted leave to amend. (Doc. # 30).
I.C. filed his Amended Complaint on May 31, 2017. (Doc.
# 37). The Amended Complaint brings the following claims:
negligence against the School Board (Count I); negligent

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infliction of emotional distress against the School Board
(Count II); intentional infliction of emotional distress
against the School Board (Count III); negligence against Our
Children’s

Academy

(Count

IV);

negligent

infliction

of

emotional distress against Our Children’s Academy (Count V);
intentional infliction of emotional distress against Our
Children’s Academy (Count VI); false imprisonment against the
School

Board

(Count

VII);

and

violation

of

“I.C.’s

constitutional right to due process, right to remain free
from confinement under the Fifth and Fourteenth Amendments .
. . right to adequately safe travel and timely access to
education and educational and therapeutic opportunities via
transportation

provided

at

an

acceptable

level

of

accessibility, service, quality, and safety” (Count VIII).1
Defendants now move to dismiss the Amended Complaint.
II.

Legal Standard
On a Rule 12(b)(6) motion to dismiss, this Court accepts

as true all the allegations in the complaint and construes
them in the light most favorable to the plaintiff. Jackson v.
Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).

1

Although the Amended Complaint lists the § 1983 cause of
action as Count VII, that is a scrivener’s error. So, to avoid
confusion, the Court refers to the § 1983 cause of action as
Count VIII.

5 

Further, the Court favors the plaintiff with all reasonable
inferences from the allegations in the Complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990) (“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”). However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). In addition, courts are not “bound to
accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
Furthermore, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
III. Analysis
Count VIII is the sole federal cause of action and thus
is the only count providing original jurisdiction to this
Court. See 28 U.S.C. § 1331. The Court’s jurisdiction over
the other seven counts, which are all state-law claims, is

6 

premised on 28 U.S.C. § 1343. (Doc. # 1 at ¶ 11). Because the
Eleventh Circuit has “repeatedly said that[] when all of the
federal claims have been dismissed pretrial, Supreme Court
case law ‘strongly encourages or even requires dismissal of
the state claims,’” Estate of Owens v. GEO Grp., Inc., 660
Fed. Appx. 763, 775 (11th Cir. 2016) (citation omitted), the
Court only addresses the federal claim.
“[A] municipality may not be held liable under § 1983
solely because it employs a tortfeasor.” Bd. of Cty. Comm’rs
of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997). Rather, to
recover damages from a local governmental entity under § 1983,
a plaintiff must show: “(1) that [his] constitutional rights
were violated; (2) that the municipality had a custom or
policy

that

constituted

deliberate

indifference

to

that

constitutional right; and (3) that the policy or custom caused
the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th
Cir. 2004) (citation omitted).
A

plaintiff

seeking

to

impose

liability

on

a

municipality under § 1983 must identify a particular policy
or custom that caused the constitutional injury. Bd. of Cty.
Comm’rs of Bryan Cty., 520 U.S. at 403.
A policy is a decision that is officially adopted
by the municipality, or created by an official of
such rank that he or she could be said to be acting

7 

on behalf of the municipality. . . . A custom is a
practice that is so settled and permanent that it
takes on the force of law.
Wayne

v.

Jarvis,

197

F.3d

1098,

1105

(11th

Cir.

1999)

(citation omitted); see also Griffin v. City of Opa–Locka,
261 F.3d 1295, 1307 (11th Cir. 2001).
“In order for a plaintiff to demonstrate a policy or
custom, it is ‘generally necessary to show a persistent and
wide-spread

practice.’”

McDowell,

392

at

1290

(citation

omitted). “[T]he practice must be extensive enough to allow
actual or constructive knowledge of such customs or policies
to be attributed to the governing body of the municipality.
Normally random acts or isolated incidents are insufficient
to establish a custom or policy.” Daniel v. Hancock Cty. Sch.
Dist., 626 Fed. Appx. 825, 832 (11th Cir. 2015) (internal
quotation marks and citations omitted). The plaintiff must
additionally show the policy or custom was the moving force
that

caused

the

constitutional

violation.

McElligott

v.

Foley, 182 F.3d 1248, 1259 (11th Cir. 1999); Young v. City of
Augusta, 59 F.3d 1160, 1171 (11th Cir. 1995).
An inadequate training program can also be the basis for
§ 1983 liability when the municipality adhered to an approach
that failed to prevent tortious conduct by employees. Bd. of
Cty. Comm’rs of Bryan Cty., 520 U.S. at 407. “A pattern of

8 

tortious conduct by employees can show that the lack of proper
training

constituted

the

‘moving

force’

behind

the

plaintiff’s alleged injury.” Miller v. City of Tampa, No.
8:10-cv-487-T-33EAJ, 2011 WL 2631974, at *2 (M.D. Fla. July
5, 2011) (citing Bd. of Cty. Comm’rs of Bryan Cty., 520 U.S.
at 407–408; Lewis v. City of W. Palm Beach, 561 F.3d 1288
(11th

Cir.

2009)).

“When

a

plaintiff

alleges

that

a

municipality has failed to train . . . its employees, this
showing usually requires ‘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.’” Martin v. City of Macon, No. 16-16103, 2017 WL
2859512, at *2 (11th Cir. July 5, 2017) (citation omitted).
Although

the

Amended

Complaint

contains

conclusory

allegations that the School Board failed to adequately train
the bus driver and bus attendant (Doc. # 1 at ¶¶ 45, 53, 56)
and

that

the

School

Board

had

certain

persistent

and

widespread customs (Id. at ¶¶ 21, 26, 45, 56), the Court is
not bound to accept those allegations. Iqbal, 556 U.S. at
678; Papasan, 478 U.S. at 286. As they stand, the well-pled
allegations show only — albeit unfortunately — that one bus
driver and one bus attendant failed to notice one child was
left on the bus on two different days. But, there are no

9 

allegations anyone other than the three people involved in
these two incidents (I.C., the driver, and the attendant)
experienced

a

similar

event.

For

example,

there

are

no

allegations that the driver left another child in a locked
bus or that any other driver left any child in a locked bus.
Furthermore, there are no allegations the School Board knew
of and deliberately disregarded a pattern of children with
special needs being left on buses.
A similar lack of pervasiveness holds true with respect
to the § 1983 claim against Our Children’s Academy. At most,
the

well-pled

allegations

show

only

that

Our

Children’s

Academy failed to report two instances of I.C.’s absence.
There

are

no

allegations,

however,

that

Our

Children’s

Academy knew I.C. was on the bus but allowed it to leave. Nor
are there any allegations that Our Children’s Academy failed
to report to parents similar instances of children with
special needs being left behind on buses. Moreover, there are
no

allegations

that

Our

Children’s

Academy

knew

of

and

deliberately ignored a pattern of children with special needs
being left on buses.
In sum, the Amended Complaint does not contain facts
that plausibly give rise to a claim to relief: § 1983 requires
more than mere negligence, Daniels v. Williams, 474 U.S. 327,

10 

333-34 (1986). In an abundance of fairness, however, rather
than dismissing the § 1983 claim with prejudice outright, the
Court will grant I.C. an opportunity to amend.
If I.C. files a second amended complaint, he should
separate out different § 1983 claims into separate counts.
For example, paragraph 114 of the Amended Complaint appears
to attempt to assert a false imprisonment claim and one, or
possibly two, substantive due-process claims. (Doc. # 37 at
¶ 114). Each distinct constitutional violation alleged should
be asserted in its own count and specify the Defendant against
which it is brought.
And, with respect to the false imprisonment claim in
particular, “[a] § 1983 claim of false imprisonment requires
a showing of common law false imprisonment and a due process
violation

under

the

Fourteenth

Amendment.”

Campbell

v.

Johnson, 586 F.3d 835, 840 (11th Cir. 2009). There are three
elements to a common-law false imprisonment claim: “an intent
to confine, an act resulting in confinement, and the victim’s
awareness of confinement.” Id. The Amended Complaint does not
allege facts showing any Defendant intended to confine I.C.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:

11 

(1)

The School Board of Polk County’s Motion to Dismiss (Doc.
# 43) and Our Children’s Academy, Inc.’s Motion to
Dismiss (Doc. # 47) are GRANTED.

(2)

The Amended Complaint (Doc. # 37) is DISMISSED WITHOUT
PREJUDICE and I.C. is granted leave to amend.

(3)

I.C. may file a second amended complaint by August 3,
2017. If I.C. elects to file a second amended complaint,
he may not add new causes of action; rather, he should
focus on Count VIII’s deficiencies as addressed herein.
Absent a viable federal cause of action, the Court will
be disinclined to exercise jurisdiction over the statelaw claims.
DONE and ORDERED in Chambers in Tampa, Florida, this

13th day of July, 2017.

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