Pemberton et al v. West Feliciana Parish School Board et al

Filing 23

REPORT AND RECOMMENDATIONS regarding 14 MOTION to Dismiss Pursuant to Rule 12(b)(6). It is the recommendation of the magistrate judge that the West Feliciana Parish School Board's, Lloyd Lindsey's and Darryl Powell's Rule 12(b )(6) Motion to Dismiss be granted in part, dismissing the following claims: (1) the Title IX claim against dft Powell in his individual capacity; (2) all § 1983 claims against both the dft School Board and dft Powell, including the claim for pun itive damages; and, (3) pla's state law claim for intentional infliction of emotional distress under Article 2315 against both the dft School Board and dft Powell. It is further recommended that the dfts' motion be denied as to the pla' ;s Title IX claim against the dft School Board. It is further recommended that the pla be allowed 15 days to file an amended complaint alleging sufficient facts to state: (1) a § 1983 First Amendment retaliation claim against the dft School boar d and dft Powell, in his individual capacity; (2) a § 1983 claim for punitive damages against dft Powell, in his individual capacity; and (3) a state law intentional infliction of emotional distress claim against both the dft School Board and dft Powell. In response to any amended complaint the pla may file, the dfts may again seek dismissal under Rule 12(b)(6). Objections to R&R due by 12/31/2009. Signed by Magistrate Judge Stephen C. Riedlinger on 12/14/09. (BP, )

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

EARLENE PEMBERTON, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, AM VERSUS WEST FELICIANA PARISH SCHOOL BOARD, ET AL

CIVIL ACTION NUMBER 09-30-RET-SCR

NOTICE Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U. S. District Court. In accordance with 28 U.S.C. §636(b)(1), you have fourteen days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within ten days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT. Baton Rouge, Louisiana, December 14, 2009.

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

EARLENE PEMBERTON, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, AM VERSUS WEST FELICIANA PARISH SCHOOL BOARD, ET AL

CIVIL ACTION NUMBER 09-30-RET-SCR

MAGISTRATE JUDGE'S REPORT Before the court is West Feliciana Parish School Board's, Lloyd Lindsey's and Darryl Powell's Rule 12(b)(6) Motion to Dismiss under Rule 12(b)(6). opposed.1 Plaintiff Earlene Pemberton, individually and on behalf of her minor child,2 filed a complaint against the defendants based on federal claims under Title IX and 42 U.S.C. § 1983 and state law claims under Louisiana Civil Code Articles 2315 and 2315.6. The Record document number 14. The motion is

claims brought against the defendants are based on an alleged sexual assault and battery that was perpetrated by three male students in an incident that occurred after school on January 17,

1 2

Record document number 16.

Plaintiff Earlene Pemberton alleges her own claim for loss of consortium and brings the remaining claims on behalf of her minor child, AM. Hereafter, references to "plaintiff" in this report and recommendation are references to the plaintiff's minor child.

2007.3 Original defendant West Feliciana Parish School Board

Superintendent Lloyd Lindsey was sued individually and in his official capacity. Lindsey died on April 15, 2009.4 Jesse L.

Perkins, Jr., the current superintendent, was substituted, but was only substituted for Lindsey in his official capacity.5 Thus,

there are no claims against Perkins in his individual capacity. At the time the motion to dismiss was filed Lindsey was still the superintendent. The parties have not supplemented the motion or Nevertheless,

their memoranda since Perkins was substituted.

Lindsey is no longer a party and there no claims alleged against Perkins in his individual capacity. Darryl Powell was sued

individually and in his official capacity as the principal of West Feliciana Middle School. Official capacity claims against the

individual defendants are, in effect, brought against the School Board. report Therefore, as to the individual capacity claims, this will only address the claims against Powell in his

individual capacity.

Complaint, ¶ 4. Plaintiff alleged that she was attending a club practice after school hours and waiting to be picked up by a family member when she was attacked by the three students. The remainder of the paragraph describes the attack and alleges that on information and belief the male students filmed the incident with a cell phone camera and exhibited the video to other students. Id.
4 5

3

Record document number 18. Record document number 22. 2

Defendants now move to dismiss all of the claims alleged in the complaint on various grounds: · Plaintiff has no claim as a matter of law under Title IX against Powell. · Plaintiff failed to plead any facts to support essential elements of her Title IX claim against the School Board. · Plaintiff failed to plead any facts to support a § 1983 claim against the School Board, because there are no allegations that the Board had an unconstitutional

policy, practice, regulation or custom that resulted in a constitutional deprivation. · Plaintiff's allegations/claims against Powell in his individual capacity under § 1983 fail because the

plaintiff did not plead sufficient facts to state a claim for a constitutional violation against him. · Plaintiff has no claim as a matter of law against the School Board for punitive damages, and no claim against Powell individually because she failed to plead facts that support a constitutional violation or evil

motive/intent. · Plaintiff failed to allege facts sufficient to support a state law claim for intentional infliction of emotional distress. Defendants also asserted that if the federal claims are 3

dismissed

the

court

should

decline

to

exercise

supplemental

jurisdiction over the state law claims.

Motion to Dismiss Standard and Applicable Law On a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 "Factual allegations

U.S. 89, 94, 127 S.Ct. 2197, 2200 (2007).

must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.

1955 (2007). The Supreme Court recently expounded upon the Twombly standard, explaining that "[t]o survive a motion to dismiss, 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, ____ U.S. ____, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference Id. that the

defendant is liable for the misconduct alleged."

It follows

that "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not `show[n]--`that the pleader is entitled to relief.'" Id. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)). need not accept "a legal conclusion 4 couched as The court a factual

allegation," or "naked assertions [of unlawful misconduct] devoid of further factual enhancement." Id. at 1949-50 (internal

quotation marks omitted). The allegations must be evaluated in light of the substantive law applicable to the claims asserted in the complaint. In this

case the applicable substantive law is Title IX claims for studenton-student sexual harassment, § 1983 claims against public entities and public employees in their official and individual capacities, and state law tort claims under Articles 2315.

Title IX Title IX provides in relevant part as follows: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. 20 U.S.C. § 1681(a). Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 638, 119 S.Ct. 1661, 1669 (1999). In Davis the Supreme Court held that in certain limited circumstances, a funding recipient may be held liable for studenton-student harassment. Thus, a school district's failure to

respond appropriately to this type of sexual harassment may serve as a basis for a Title IX claim, i.e. liability for its own lack of corrective students. action rather than the actions of the offending

Davis, 526 U.S. at 640-41, 119 S.Ct. at 1670; Watkins v. 5

La Marque Ind. School District, 308 Fed.Appx. 781 (5th Cir. 2009). In order to establish such a claim a plaintiff must show that: (1) the sexual harassment was severe, pervasive and objectively

offensive; (2) the district had actual knowledge of the sexual harassment, and (3) it acted with deliberative indifference to the harassment. Id.

A plaintiff must establish sexual harassment of students that is so severe, pervasive and objectively offensive, and that so undermines and detracts from the victim's educational experience that the victim-students are effectively denied equal access to an institution's resources and opportunities. Davis, 526 U.S. at 651, 119 S.Ct. at 1675. Whether the harassment rises to the level of actionable harassment depends on a constellation of surrounding circumstances, expectations and relationships, including but not limited to the ages of the harasser and victim and the number of individuals involved. Id.

A funding recipient that does not engage in harassment directly may not be liable for damages unless its deliberate indifference subjects its student to harassment, that is the deliberate

indifference must at a minimum cause the student to undergo harassment or make them liable or vulnerable to it. A defendant

acts with deliberate indifference only where his response to the harassment or lack of response is clearly unreasonable in light of the known circumstances. Davis, 526 U.S. at 644-45, 648, 119 S.Ct. 6

at 1672, 1674. claim.

Mere negligent action is insufficient to state a Officials may avoid liability under a

Watkins, supra.

deliberate indifference standard by responding reasonably to a risk of harm even if the harm ultimately was not averted. what constitutes appropriate remedial action in Determining Title IX

discrimination cases necessarily depends on the particular facts of the case. Doe v. Dallas Ind. School Dist., 220 F.3d 380, 384 (5th

Cir. 2000)(Title IX teacher-student harassment case). Title IX's private right of action also encompasses suits for retaliation because retaliation falls within the statute's

prohibition of intentional discrimination on the basis of sex. Thus, a funding recipient can be held liable under Title IX if it retaliates against a person because he or she complains of sex discrimination. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167,

178, 125 S.Ct. 1497, 1507 (2005). Under § 1681(a) a recipient of federal funds may be liable in damages only for its own misconduct. The government's enforcement

power under the statute may only be exercised against the funding recipient, therefore, damages liability under Title IX does not extend to parties outside the scope of this power. at 640-41, 119 S.Ct. at 1670. Davis, 526 U.S.

Title IX has consistently been

interpreted as not authorizing suit against school officials, teachers and other individuals. Fitzgerald v. Barnstable School

Committee, ____ U.S. ____, 129 S.Ct. 788, 796 (2009); Alegria v. 7

Williams, 314 Fed.Appx. 687 (5th Cir. 2008); Doe v. Hillsboro Ind. School Dist., 81 F.3d 1395, 1400 n. 9 (5th Cir. 1996).

Section 1983 Supervisory and Local Governing Body Liability In a § 1983 action may neither be held a school liable district under a nor its of

supervisory

officials

theory

respondeat superior. To be liable under § 1983, a supervisor must either be personally involved in the acts causing the alleged deprivation of constitutional rights, or there must be a causal connection between the act of that person and the constitutional violation sought to be redressed. 1987). Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir.

Supervisory liability exists even without overt personal in the offensive act if supervisory officials

participation

implement a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation. Id.; Grandstaff v. City of Borger, 767

F.2d 161 (5th Cir. 1985), cert. denied, 480 U.S. 917, 107 S.Ct. 1369 (1987) (quoting Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 2037 (1978)). Personal involvement is an

essential element of a civil rights cause of action that requires plaintiff to establish an affirmative link between her injuries and a defendant's personal conduct. Only the direct acts or omissions 8

of government officials, not the acts of subordinates, gives rise to individual liability under § 1983. Coleman v. Houston Ind.

School Dist., 113 F.3d 528, 534 (5th Cir. 1997). Municipalities and local governing bodies also cannot be held liable under § 1983 based on a theory of respondeat superior. Rivera v. Houston Ind. School Bd., 349 F.3d 244, 247 (5th Cir. 2003). They can be sued directly under § 1983 for monetary damages when the action that is alleged to be unconstitutional implements or executes a policy officially adopted and promulgated by that body's officers or results from a governmental custom which has not received formal approval through the body's official decisionmaking channels, but nonetheless fairly represents their policy. Monell

v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018 (1978); Palmer v. City of San Antonio, Texas, 810 F.2d 514 (5th Cir. 1987). Therefore, to prevail on a claim under § 1983 against a municipality or local governing body, a plaintiff must establish: a policy maker, an official policy or custom, and a violation of a constitutional right whose moving force is the policy or custom. Rivera, supra; Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).6

A fundamental requirement for any § 1983 claim is the existence of a constitutional violation. Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 664 (1986); Becerra v. Asher, 105 F.3d 1042, 1048 (5th Cir. 1997). 9

6

The policymaker must have final policymaking authority. ... The unconstitutional conduct must be directly attributable to the municipality through some sort of official action or imprimatur; isolated unconstitutional actions by municipal employees will almost never trigger liability. Therefore to sustain liability under § 1983, the Parents must point to more than the actions of a HISD employee, they must identify a policymaker with final policymaking authority and a policy that is the moving force behind the alleged constitutional violation. (internal quotations and citations omitted). Rivera, 349 F.3d at 247, citing, Piotrowski, 237 F.3d at 578; Bd.

of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 1388 (1997).

Qualified Immunity Qualified immunity is a defense against an individual capacity suit brought under § 1983. It protects government officials "from

liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, ____ U.S. ____, 129 S.Ct. 808, 815 (2009), citing, Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (1982). To determine whether a government official is entitled to qualified immunity for an alleged constitutional violation, the court conducts the two-step analysis of Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2001), which was overruled in part by Pearson v. Callahan, where the Supreme Court held that the two-step inquiry can occur in any order. The two steps for the court to determine 10

are: (1) whether plaintiff alleged that the defendants committed a constitutional violation under current law, and (2) whether the defendant's actions were objectively unreasonable in light of clearly established law existing at the time of the incident. Goodman v. Harris County, 571 F.3d 388, 395 (5th Cir. 2009); Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194-95 (5th Cir. 2009). To be clearly established for purposes of qualified immunity, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. The central concept of "clearly established" is that

of fair warning.

The law can be clearly established despite

notable factual distinctions between the precedents relied on and the cases then before the court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights. Club Retro, L.L.C., 568 F.3d at 194,

citing, Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004); Hope v. Pelzer, 536 U.S. 730, 740, 122 S.Ct. 2508 (2002). The law is well established that in suits filed under § 1983 against public officials in their private capacity a claim must be stated with particularity. Schultea v. Wood, 47 F.3d 1427 (5th

Cir. 1995); Elliot v. Perez, 751 F.2d 1472, 1482 (5th Cir. 1985), overruled in part by, Leatherman v. Tarrant County Narcotics, 507 U.S. 163, 113 S.Ct. 1160 (1993)(federal court may not apply a heightened pleading standard in 11 civil rights cases alleging

municipal liability under § 1983).

Fourteenth Amendment Claims Under the Fourteenth Amendment there is a substantive due process right to be free from state deprivation of one's bodily integrity liberty interest. Rios v. City of Del Rio, Tex., 444

F.3d 417, 421 (5th Cir. 2006); Doe v. Taylor Independent School Dist., 15 F.3d 443, 450-51 (5th Cir. 1994). In general

governmental entities do not have a constitutional duty to protect individuals from violence by private actors. "a State's failure to protect an Stated another way, against private

individual

violence simply does not constitute a violation of the Due Process Clause." DeShaney v. Winnebago County Dep't of Soc. Servs., 489

U.S. 189, 196-97, 109 S.Ct. 998, 1004 (1989); Rios, 444 F.3d at 421. However, an exception exists with regard to individuals in

certain "special relationships" with the state/governmental entity. In these limited circumstances the Constitution imposes upon the state affirmative duties of care and protection with respect to particular individuals. The duty arises when the state imposes

limitations on a person's freedom to care for himself, such as when one is incarcerated or institutionalized. 199-200, 109 S.Ct. at 1004-06. only when a person is DeShaney, 489 U.S. at

A "special relationship" arises confined or otherwise

involuntarily

restrained against his will pursuant to a governmental order or by 12

the affirmative exercise of state power, and does not arise solely because the state exercises custodial control over an individual. Doe v. San Antonio Independent School Dist., 197 Fed.Appx. 296, 300 (5th Cir. 2006); Walton v. Alexander, 44 F.3d 1297, 1299 (5th Cir. 1995)(en banc); Doe v. Hillsboro Independent School Dist., 113 F.3d 1412, 1401 (5th Cir. 1997)(en banc). The Fifth Circuit has not

accepted the argument that school compulsory attendance laws alone create a special relationship giving rise to a constitutional duty of school officials to protect students from private actors. Id.;

Lefall v. Dallas Indep. Sch. Dist. 28 F.3d 521, 526 (5th Cir. 1994); Priester v. Lowndes County, 354 F.3d 414, 421-22 (5th Cir. 2004). Courts of Appeal other than the Fifth Circuit have also recognized some version of the state-created danger theory. this theory state officials can have a duty to Under an

protect

individual from injuries inflicted by a third party if the state actor played an affirmative role in creating or exacerbating a dangerous situation that led to the individual's injury. Doe v.

San Antonio School Dist., 197 Fed.Appx. at 301; McClendon v. City of Columbia, 305 F.3d 314, 324 (5th Cir. 2006). However, the Fifth Circuit has never recognized state-created danger as a trigger of state affirmative duties under the Due Process Clause of the Fourteenth Amendment. Id.; Longoria v. Texas, 473 F.3d 586, 593 n. 8 (5th Cir. 2006); Farr v. Rodriquez, 255 Fed.Appx. 925, 927 (5th 13

Cir. 2007). would have

Even if such a theory were recognized the plaintiff to show that the government official acted with

deliberate indifference towards him, which is a stringent standard of fault beyond mere negligence and usually requires proof that a state actor disregarded a known or obvious consequence of his actions. Farr, supra; McClendon, 305 F.3d at 325-26 (regardless of theory of liability plaintiff pursuing, a viable substantive due process claim requires plaintiff to demonstrate that the state official acted with culpability beyond mere negligence). Under the Fourteenth Amendment Due Process Clause, where the state has created a public school system that requires children to attend, students have a protected property interest in receiving an education. Therefore, governmental action that could damage the

student's reputation and interfere with their education requires that the student be given notice and the opportunity for some kind of a hearing. Goss v. Lopez, 419 U.S. 565, 574-77, 95 S.Ct. 729, Cir.

736-38 (1975); Parker v. Duffey, 251 Fed.Appx. 879 (5th 2007).

Injury to reputation alone, apart from some more tangible

interest, is not sufficient to invoke the procedural protection of the Due Process Clause. Lyle v. Dedeaux, 39 F.3d 320 (5th Cir.

1994); Thomas v. Kipperman, 846 F.2d 1009, 1010 (5th Cir. 1988).

First Amendment Retaliation The First Amendment prohibits not only direct limits on 14

individual speech but also adverse governmental action against an individual in retaliation for the exercise of protected speech activities. Keenan v. Tajeda, 290 F.3d 252, 258 (5th Cir. 2002).

A First Amendment retaliation claim under § 1983 is comprised of the following elements: (1) plaintiff engaged in constitutionally protected activity; (2) defendant took an adverse action against the plaintiff, that is, actions that caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and, (3) the defendant's adverse actions were substantially motivated against the Id.;

plaintiff's exercise of constitutionally protected conduct.

Shinn v. College Station Independent School Dist., 96 F.3d 763, 786 (5th Cir. 1996); Chalmers v. Lane, 2005 WL 169990 (N.D.Tex. Jan. 25, 2005).

Punitive Damages Punitive damages may be awarded in an action based on § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous

indifference to the federally protected rights of others. Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625 (1983); Hale v. Fish, 899 F.2d 390, 404 (5th Cir. 1990). However, punitive damages cannot be recovered against government entities for § 1983 claims. City of

Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S.Ct. 2748 15

(1981); Evans v. St. Bernard Parish School Board, 2003 WL 22174272 (E.D. La. Sept. 11, 2003).

State Law Intentional Infliction of Emotional Distress In order to recover for intentional infliction of emotional distress under Louisiana Civil Code Article 2315, a plaintiff has the burden of proving: (1) that the conduct of the defendants was extreme and outrageous; (2) that the emotional distress suffered by him was severe; and (3) that the defendants desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from their conduct. White v. Monsanto Co., 585 So.2d 1205, 1209-10 (La.

1991); Moresi v. State, Department of Wildlife and Fisheries, 567 So.2d 1081, 1095 (La. 1990); Deus v. Allstate Insurance Co., 15 F.3d 506, 514 (5th Cir. 1994). The conduct complained of must be

so outrageous in character and so extreme in degree that it goes beyond all possible bounds of decency and is regarded as utterly intolerable in a civilized community. Id. Liability arises only

where the mental suffering or anguish is extreme, and the distress suffered must be such that no reasonable person could be expected to endure it.
7

White, 585 So.2d at 1210.7

Although the defendants generally asserted that the plaintiff has failed to state claims for relief under Louisiana (continued...) 16

Analysis Title IX The case law establishes, and the plaintiff concedes, that under Title IX liability does not extend to individuals or parties who are not recipients of federal funds, such as school officials and teachers. Therefore, the plaintiff has no Title IX claim

against Powell in his individual capacity and this claim should be dismissed. The only possible Title IX defendant in this case is

the School Board. There is no heightened pleading requirement for a Title IX claim against the School Board. The allegations relevant to the

plaintiff's Title IX claim against the School Board are found in paragraphs 3 through 6, 13, 15 through 17, and 19 through 21.8 Clearly some of these paragraphs contain mere legal conclusions. However, considering the allegations as a whole, in particular the description of the attack on the plaintiff9 and the facts contained (...continued) law, the only specific state law claim cited and discussed in the defendants' motion was an Article 2315 claim for intentional infliction of emotional distress. Therefore, only this claim will be addressed in this report. In her memorandum the plaintiff asserted that despite being informed of continued harassment by the students, the defendants did little or nothing in response. Record document number 16, p. 2. This is not alleged in the complaint. The Supreme Court's decision in Davis, supra, and Fifth Circuit Title IX cases cited in this report, show that in evaluating the first element of a the Title IX student-on-student (continued...) 17
9 8 7

in the other paragraphs, the complaint contains sufficient factual content to find that the Title IX claim against the School Board is facially plausible.

Section 1983 As currently pled, plaintiff's § 1983 allegations against the School Board and Powell in his individual capacity fail to state a claim. Plaintiff's § 1983 claims are based on violations of First

and Fourteenth Amendment rights ­ to reputation and education, to be free from state deprivation of her liberty interest in bodily integrity, and to report and complain about unconstitutional

conduct.10 A review of the complaint in light of the applicable law demonstrates that the plaintiff has not pled sufficient facts to state a § 1983 claim under these theories. Plaintiff's complaint is devoid of any factual basis for a Fourteenth Amendment claim based on a deprivation of her rights to reputation and education. There are no facts alleged indicating

that the defendants accused the plaintiff of misconduct or took some other action which resulted in her being denied the right to

attend school, or that in connection with any such incident the (...continued) harassment claim - the severity of the harassment - the court looks to the reported sexual harassment to determine whether the harassment is sufficiently severe, pervasive and objectively offensive.
10 9

Complaint, ¶ 23. 18

plaintiff was denied notice or an opportunity for a hearing. The facts alleged in the complaint show that at the time of the incident the plaintiff was a public middle school student participating in an activity at school after school hours. There

are no allegations that the plaintiff was involuntarily confined or otherwise restrained against her will by the defendants or another government actor, and the Fifth Circuit does not recognize statecreated danger as a trigger of state affirmative duties under the Fourteenth Amendment.11 Therefore, the plaintiff has failed to

state a claim against the defendants under § 1983 for violation of her Fourteenth Amendment right to bodily integrity. Plaintiff alleged that the defendants engaged in retaliation after she complained of the attack by the other students. A

heightened pleading standard applies to the plaintiff's § 1983 First Amendment retaliation claims against Powell in his individual capacity. Although the heightened pleading standard does not apply to the School Board, the School Board can only be held liable under § 1983 if the plaintiff establishes an official policy, custom or practice that is the moving force behind the constitutional

violation, which in this case is an alleged violation of the right to be free from retaliation for exercising protected First

Amendment rights. Review of the complaint shows that plaintiff did not allege what specific retaliatory actions were taken against her
11

McClendon, supra; Farr, supra. 19

after she made the complaint, nor did the plaintiff specify which individual defendant engaged in any specific instance of

retaliatory conduct.12

Plaintiff also failed to allege any facts

to show that the School Board had an official policy, custom or practice that resulted in retaliation and violation of her First Amendment rights. With regard to the plaintiff's request for punitive damages, the claim against the School Board must be dismissed. As a matter

of law punitive damages under § 1983 are not available against a governmental entity such as the School Board. Because the

plaintiff has not sufficiently alleged a claim against Powell in his individual capacity, the plaintiff necessarily cannot have a viable claim for punitive damages against him. However, whether

the plaintiff has stated a claim for punitive damages against Powell may need to be reconsidered after the plaintiff has been given the opportunity to amend her allegations related to her First Amendment retaliation claim.

State Law Plaintiff alleged that an investigation was begun after

Plaintiff must allege facts which show the individual defendant's personal involvement in the acts causing the alleged deprivation of her First Amendment rights. Thompkins, supra; Coleman, supra. 20

12

learning of the incident.13 taken against the three

Plaintiff complained that the action students ­ minimal suspensions, but

allowing them to remain in school14 ­ violated School Boards rules and was not sufficient. These vague allegations do not describe conduct that could be reasonably described as extreme and outrageous. Nor did the

plaintiff allege any facts from which it could be inferred that either defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or

substantially certain to result from their conduct.

Plaintiff's

factual allegations in the complaint are not sufficient to allege a claim for intentional infliction of emotional distress under Article 2315.

Recommendation It is the recommendation of the magistrate judge that the West Feliciana Parish School Board's, Lloyd Lindsey's and Darryl

Powell's Rule 12(b)(6) Motion to Dismiss be granted in part, dismissing the following claims: (1) the Title IX claim against

It is unclear from the Complaint whether the investigation was done by the school or someone else. Plaintiff alleged, "on information and belief," that the defendant School Board did not conduct an "independent investigation." Complaint, ¶ 6(c). Neither the plaintiff's Complaint nor her opposition memorandum state whether the sanctions were imposed by the defendant School Board or defendant Powell. 21
14

13

defendant Powell in his individual capacity; (2) all § 1983 claims against both the defendant School Board and defendant Powell, including the claim for punitive damages; and, (3) plaintiff's state law claim for intentional infliction of emotional distress under Article 2315 against both the defendant School Board and defendant Powell. It is further recommended that the defendants' motion be denied as to the plaintiff's Title IX claim against the defendant School Board. It is further recommended that the plaintiff be allowed 15 days to file an amended complaint alleging sufficient facts to state: (1) a § 1983 First Amendment retaliation claim against the defendant School board and defendant Powell, in his individual capacity; (2) a § 1983 claim for punitive damages against defendant Powell, in his individual capacity; and (3) a state law intentional infliction of emotional distress claim against both the defendant School Board and defendant Powell. In response to any amended complaint the plaintiff may file, the defendants may again seek dismissal under Rule 12(b)(6). Baton Rouge, Louisiana, December 14, 2009.

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE

22