ROBINSON et al v. ANTHONY et al

Filing 36

ORDER granting in part and denying in part 33 Motion to Dismiss Ordered by US DISTRICT JUDGE CLAY D LAND on 07/10/15 (bsh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
MURIEL ROBINSON and JOHNNIE
*
ROBINSON, individually and as
next friend of their son, D.R., *
Plaintiffs,

*
CASE NO. 4:14-CV-149 (CDL)

vs.

*

TIM SMITH, CHRISTINA GRANT, and *
DAVID LEWIS,
*
Defendants.
*
O R D E R
This action arises from alleged physical and sexual abuse
of a student with disabilities while the student was at school.
The abuse was allegedly inflicted by a teacher and by fellow
students when that same teacher failed to adequately supervise
her

classroom.

The

student’s

parents,

Muriel

and

Johnnie

Robinson (“the Robinsons”), filed this suit on behalf of their
son,

D.R.,

against

Muscogee

County

School

District

Superintendent David Lewis in his official capacity, Blanchard
Elementary
official

School

Principal

capacities,

and

Tim

Smith

Blanchard

in

his

Elementary

individual
School

and

teacher

Christina Grant in her individual and official capacities.

The

Robinsons allege federal law claims pursuant to Title II of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131, et
seq., § 504 of the Rehabilitation Act of 1973 (“Rehabilitation

Act”), 29 U.S.C. § 794, Title IX of the Education Amendments of
1972 (“Title IX”), 20 U.S.C. § 1681, et seq., and Section 1983
of the Civil Rights Act of 1871 (“Section 1983”), 42 U.S.C.
§ 1983.

They allege state law claims for negligent failure to

supervise, assault, and battery.
Some confusion has arisen because the Robinsons did not
specifically name Muscogee County School District as a named
defendant.
official
District.

But claims against the school officials in their
capacities

are

deemed

claims

against

the

School

See Kentucky v. Graham, 473 U.S. 159, 165 (1985)

(“Official-capacity suits . . . generally represent only another
way of pleading an action against an entity of which an officer
is an agent.”).

Furthermore, since the School District received

notice of the claims and has a full opportunity to respond to
them,

no

prejudice

can

be

shown

by

allowing

the

official

capacity claims to proceed against the School District.

See id.

at 166 (“As long as the government entity receives notice and an
opportunity to respond, an official-capacity suit is, in all
respects other than name, to be treated as a suit against the
entity.”).

To

hopefully

construes

Plaintiffs’

officials

in

their

avoid

claims

future
against

official

confusion,
the

capacities

2

as

the

school
claims

Court

district
against

Muscogee County School District, and Plaintiffs’ Complaint is
deemed to be amended accordingly.1
Grant

seeks

Rehabilitation

Act,

dismissal
and

individual capacity.2

Title

of
IX

the

claims

below,

Rehabilitation

the

Court

Act,

against

her

ADA,
in

her

She also seeks dismissal of the state law

failure to supervise claim (ECF No. 33).
forth

Robinsons’

and

grants
Title

her
IX

For the reasons set

motion

claims

as

to

against

the

her

in

ADA,
her

individual capacity and denies her motion as to the state law
failure to supervise claim.
RULE 12(b)(6) MOTION TO DISMISS STANDARD
“To survive a motion to dismiss” under Federal Rule of
Civil Procedure 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).

The complaint must include sufficient factual

allegations “to raise a right to relief above the speculative
level.”

Twombly, 550 U.S. at 555.

In other words, the factual

allegations must “raise a reasonable expectation that discovery
1

If “Muscogee County School District” is not the correct name of the
legal entity capable of being sued for the acts of its employees,
counsel for Defendants shall file a motion within 7 days of today’s
order to correct the misnomer.
2
Grant also sought dismissal of Plaintiffs’ claims against her in her
official capacity, but as explained, those claims are deemed claims
against the School District, and the Court does not dismiss the claims
against the School District at this time.

3

will reveal evidence of” the plaintiff’s claims.

Id. at 556.

“Rule

well-pleaded

12(b)(6)

does

not

permit

dismissal

of

a

complaint simply because ‘it strikes a savvy judge that actual
proof of those facts is improbable.’” Watts v. Fla. Int’l Univ.,
495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S.
at 556).
FACTUAL ALLEGATIONS
The

Robinsons

their claims.

allege

the

following

facts

in

support

of

The Court must accept these allegations as true

for purposes of the pending motion.
D.R.

is

a

hyperactivity
D.R.’s

student

disorder,

pre-kindergarten

who
and

has

autism,

cognitive

special

attention

impairment.

education

deficit

Grant

teacher.

Prior

was
to

September 2012, the School District and Principal Smith received
complaints from parents and coworkers concerning Grant’s hostile
behavior towards special education students.

D.R. soon became

the target of this harassment.
Grant

verbally

expressed

her

intent

to

harm

coworkers and said she did not want him in her class.
in

September

occasions.

2012,

Grant

physically

harmed

D.R.

She slapped and body slammed him.

on

D.R.

to

Beginning
multiple

She pushed D.R.

to the floor, shook him violently, pinned him to the floor, and
yelled

in

his

face.

Additionally,

Grant

left

D.R.’s

class

unsupervised in a courtyard during which time D.R.’s classmates

4

sexually

harassed

and

assaulted

him.

Grant

knew

that

the

perpetrators of the sexual offenses had a history of sexually
inappropriate behavior with other students but failed to take
any

steps

to

prevent

the

abuse.

D.R.

sustained

physical,

mental, and emotional injuries as a result of Grant’s actions.
The

Robinsons

further

allege

that

Grant

discriminated

against D.R., a qualified individual with a disability under the
ADA, by administering programs, standard operating procedures,
reporting requirements, and services for D.R. in a manner that
denied

him

the

opportunity

to

receive

services

integrated setting appropriate for his needs.

in

the

most

They argue that

Grant violated Title IX by discriminating against D.R. on the
basis

of

sex

when

she

failed

to

take

appropriate

action

to

redress sex-based harassment directed at him by his classmates.
They

also

contend

that

Grant’s

acts

trigger

substantive

due

process violations under Section 1983.
DISCUSSION
I.

The ADA, Rehabilitation Act, and Title IX Claims
The Robinsons’ ADA, Rehabilitation Act, and Title IX claims

against Grant in her individual capacity must be dismissed.
ADA does not provide for individual liability.

The

See Mason v.

Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996) (“We hold that
the Disabilities Act does not provide for individual liability,
only for employer liability.”).

5

There is also no individual

liability under the Rehabilitation Act or Title IX.

See Badillo

v. Thorpe, 158 F. App’x 208, 211 (11th Cir. 2005) (per curiam)
(“[T]here is no individual capacity liability under Title II of
the ADA or [Rehabilitation Act].”); Hartley v. Parnell, 193 F.3d
1263, 1270 (11th Cir. 1999) (“Individual school officials . . .
may not be held liable under Title IX.”). “[A] Title IX claim
can only be brought against a grant recipient—that is, a local
school district—and not an individual.” Floyd v. Waiters, 133
F.3d 786, 789 (11th Cir. 1998), vacated on other grounds, Floyd
v. Waiters, 525 U.S. 802, 802 (1998).
Although the Robinsons cannot recover from Grant directly
under the ADA, Rehabilitation Act, or Title IX, Grant’s conduct
may give rise to liability for the School District under these
statutes.

Any such claims against the School District under

these statutes based on Grant’s conduct are not dismissed at
this time.
II.

The Failure to Supervise Claim
Grant

under

argues

state

law

that
for

she

the

is

entitled

failure

to

to

official

supervise

against her in her individual capacity.

claim

immunity
brought

In Georgia, “[t]he

doctrine of official immunity . . . provides that while a public
officer or employee may be personally liable for h[er] negligent
ministerial

acts,

discretionary

acts

[s]he
unless

may

not

such

6

be

acts

held
are

liable

willful,

for

h[er]

wanton,

or

outside the scope of h[er] authority.”
264

Ga.

744,

752,

452

S.E.2d

476,

Gilbert v. Richardson,
482

(1994).

“[S]chool

employees are entitled to official immunity from their actions
if

those

actions

are

within
and

scope

without

of

their

willfulness,

employment,

discretionary

in

corruption.”

Wright v. Ashe, 220 Ga. App. 91, 92, 469 S.E.2d

268, 270 (1996).

nature,

the

malice,

or

“[I]n the context of official immunity, actual

malice requires a deliberate intention to do wrong and denotes
express malice or malice in fact.”
App. 702, 704, 665 S.E.2d 401,

Selvy v. Morrison, 292 Ga.

404-05

(2008)

(alteration in

original).
The

Robinsons

contend

that

Grant

is

not

entitled

to

official immunity because supervising her pre-kindergarten class
was a ministerial act.

They point to O.C.G.A. § 20-2-323 to

support their argument.

That law provides that “each local

board of education shall establish written policies allowing or
prohibiting unstructured break time for students . . . .

If the

policies allow one or more breaks, the policies shall include
. .

.

[h]ow

students,

to

ensure

including

students[.]”

break

the

time

is

a

responsibility

O.C.G.A. § 20-2-323(3).

safe
for

experience

for

supervision

of

The Robinsons rely on

McDowell v. Smith, 285 Ga. 592, 594, 678 S.E.2d 922, 924 (2009),
to

support

their

claim

that

supervising

students

during

unstructured breaks is a “simple, absolute and definite [duty],

7

[]

requir[ing]

exercise
against

of
a

the

execution

discretion.”

school

of

In

receptionist

students out of school.

specific

McDowell,
whose

tasks

a

without

parent

duties

any

filed

suit

included

checking

“School policy provided that before

releasing a student, [the receptionist] was required to check
the student’s information card to verify that the person picking
up the child was actually authorized to do so.”
S.E.2d at 923.

Id. at 592, 678

The receptionist failed to follow policy and

allowed a non-custodial parent to check out the child.
parent then abducted the child.
the

defendant’s

actions

The

The Georgia Supreme Court found

were

ministerial

because

she

was

“required to execute specific duties as dictated by the school
checkout

policies.”

O.C.G.A.

§

specific

duties

breaks.

And the Robinsons pointed to no other law or policy

20-2-323
with

Id.
does

at

593,

not

regard

678

require

to

S.E.2d
a

at

teacher

supervising

her

924.
to

class

But

execute
during

that does so.
Georgia

courts

have

routinely

supervise is a discretionary act.
App.

431,

431,

762

S.E.2d

145,

held

that

failure

to

In Butler v. Doe, 328 Ga.
145

(2014),

a

middle

school

student was sexually assaulted by another student at an afterschool

activity

and

brought

suit

against

the

teacher

who

supervised the activity.

The Georgia Court of Appeals held that

the

failure

teacher’s

alleged

8

to

supervise

students

who

participated in the activity was a discretionary act, not a
ministerial one.
monitoring,

“Georgia law is well established that the

supervising,

and

controlling

the

activities

of

students is a discretionary action protected by the doctrine of
official immunity.”

Id. at 433, 762 S.E.2d at 147.

“[T]his is

true even if the allegations involve a teacher’s total failure
to supervise the students under his or her care.”

Id.

The

court found that even though the teacher was “responsible for
monitoring and ensuring the safety of the students . . . the
assessment of whether direct supervision and, if so, what degree
of

oversight

was

required

to

accomplish

[that]

necessarily

involved [the teacher’s] personal and professional judgment.”
Id. at 433, 762 S.E.2d at 148.

Existing case law combined with

the Robinsons’ failure to point to any contrary authority lead
to

one

conclusion:

Grant’s

supervision

duties

were

discretionary.
The Robinsons further argue that even if supervising the
class was a discretionary action, Grant performed that act with
actual malice and intent to harm D.R.

The Robinsons allege that

Grant intended to violate the law when she failed to supervise
her class.

To constitute actual malice in the official immunity

context, the Robinsons must allege that Grant intended to cause
the

harm

abuse.

D.R.

suffered

while

unsupervised,

which

was

sexual

See Murphy v. Bajjani, 282 Ga. 197, 203, 647 S.E.2d 54,

9

60

(2007)

(“A

deliberate

constitute

the

actual

intention

malice

to

do

wrong

necessary

to

such

overcome

as

to

official

immunity must be the intent to cause the harm suffered by the
plaintiffs.”).

The

Robinsons

allege

that

in

September

2012

Grant verbally expressed her intent to harm D.R.

They argue

that

her

Grant

fulfilled

that

intent

by

leaving

class

unsupervised and allowing classmates to abuse D.R. during that
time.
D.R.

They also allege that Grant herself physically abused
Although Grant does not seek dismissal of the direct abuse

claim at this stage, the allegations that she physically abused
D.R. are certainly relevant to whether she acted with malice
when she left her classroom unsupervised, allegedly knowing that
D.R. was at substantial risk of being abused.

Accepting the

allegations of Plaintiffs’ complaint as true, the Court cannot
find that it is implausible that a jury could find under the
alleged

circumstances

that

Grant

acted

failed to supervise her classroom.

with

malice

when

she

Since a finding of malice

under the facts alleged is plausible, Grant is not entitled to
immunity, and her motion to dismiss the failure to supervise
claim must be denied.
CONCLUSION
Grant’s partial motion to dismiss certain claims against
her in her individual capacity (ECF No. 33) is granted in part
and denied in part.

The ADA, Rehabilitation Act, and Title IX

10

claims

are

dismissed.

The

state

law

claim

for

failure

to

supervise is not.
Plaintiffs’ Complaint is amended to the extent that the
claims asserted against the school officials and employees in
their

official

capacities

are

deemed

to

be

claims

against

Muscogee County School District.

IT IS SO ORDERED, this 10th day of July, 2015.
_S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

11