Price et al v. Wallette et al

Filing 30

RULING ON 8 MOTION TO DISMISS AND 28 MOTION FOR RELIEF FROM JUDGMENT. The Court denies the motion for relief from judgment as frivolous. The defendants' motion to dismiss is hereby GRANTED. Plaintiffs' claims are therefore dismissed. Signed by Judge James J. Brady on 9/8/2011. (LSM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
KELDA PRICE AND KEVIN WELLS
real party in interest AARON PRICE;
real party in interest BETHANY PRICE
real party in interest PATRICK PRICE
CIVIL ACTION
VERSUS
NO. 10-323 JJB
EAST BATON ROUGE SCHOOL BOARD;
JOHN DILWORTH; DONNA WALLETE;
WAYNE MESSINA; JEAN HARTLEY.

RULING ON MOTION TO DISMISS AND MOTION FOR RELIEF FROM JUDGMENT
Plaintiffs bring this suit under Title VI of the Civil Rights Act of 1964, the Boy
Scouts of America Equal Access Act, the No Child Left Behind Act of 2001, and the 14th
Amendment. Defendants have filed a motion to dismiss (doc. 8) pursuant to F.R.C.P.
12(b)(6) and the issues have been sufficiently briefed. Plaintiff also brings a motion for
relief from judgment (doc. 28) regarding their Supplement to Petition (doc. 17). This
Court’s jurisdiction exists pursuant to 28 U.S.C. § 1331 et seq. There is no need for oral
argument.
Background
On May 7, 2010, Plaintiffs, proceeding pro se, filed a petition for damages. (Doc.
1).

Plaintiffs allege the Defendants, the school district encompassing the Plaintiffs’

school as well as the superintendant, the school’s principal, a teacher, and the school’s
head of security, took various actions that violated the Acts and amendment cited
above. These alleged acts include: preventing the minor Plaintiffs from being enrolled
at Magnolia Woods Elementary School in March, 2008 and repeatedly rejecting their
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enrollment thereafter; forcing one of the minor Plaintiffs to sleep on the floor; tampering
with the grades of another minor Plaintiff and “needlessly” sending that child to
detention; giving false information to security in order to have the adult Plaintiffs blocked
from entering the school; destroying or taking Black History materials; forcing African
American and Hispanic children to walk over a mile to be picked up by buses; keeping a
minor Plaintiff from joining certain clubs and preventing her from joining gifted and
talented programs. (Doc. 1). They claim these actions were taken in retaliation for a
suit filed in this Court in 2008 (08-cv- 462) against some of the same defendants. That
suit was dismissed on a motion from the defendants under Federal Rule of Civil
Procedure 12(b)(6). (08-cv-462, doc. 35).
Analysis
In deciding whether to grant a motion to dismiss for failure to state a claim, a
district court must accept the facts of the complaint as true and resolve all ambiguities
or doubts regarding the sufficiency of the claim in favor of the plaintiff. Moreover, the
plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombley, 127 S.Ct 1955, 1965 (2007). “Factual allegations must
be enough to raise a right to relief above the speculative level, on the assumption that
all the allegations in the complaint are true (even if doubtful in fact).” Id. Defendants
have pointed to language from this Court’s prior application of Twombly, namely that “if
the plaintiffs have not nudged their claims across the line from conceivable to plausible,
their complaint must be dismissed.” (Doc. 8-1 at 4, citing Swindle v. Livingston Parish
School Board, 06-837, Ruling on Motion to Dismiss, doc. 66).

Thus, conclusory

allegations will not be sufficient to survive a motion to dismiss.

Drs. Bethea,
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Moustoukas and Weaver, LLC v. St. Paul, 376 F.3d 399, 403 (5th Cir. 2004). This
Court further notes that a plaintiff’s subjective opinion is incompetent evidence to
establish his claim of discrimination. Swanson v. General Services Admin., 110 F.3d
1180, 1189 (5th Cir. 1997). Plaintiffs’ claims under each Act and amendment will be
examined under this standard.
1. Civil Rights Act of 1964
The Court addressed this issue in Plaintiffs’ prior suit (08-642). The Court
incorporates its reasons from its Ruling on Motion to Dismiss (08-642, doc. 35) and
finds the Plaintiffs have again failed to state a claim under which relief can be granted.
Assuming they have established the prima facie elements of a Title VI claim, they again
fail to allege specific instances of discrimination in either their complaint or in their
response. Though they make some allegations or mistreatment of minorities, they do
not allege that these minorities were treated differently than similarly situated children
“solely on the basis of national origin, color, or race.” DeLeon v. City of Dallas, 2008
WL 2941245 at 3 (N.D. Tex. July 25, 2008). In short, even if all claims in the petition
are true, the Plaintiffs have not stated a claim under the Civil Rights Act of 1964 upon
which relief can be granted. The claims under this Act are dismissed.
2. Boy Scouts of America Equal Access Act
Although Plaintiffs did not mention in their complaint, they assert in their
opposition to the motion to dismiss (doc. 9) that the minor female Plaintiffs are members
of the girl scouts and are therefore entitled to the protections afforded under the
BSAEA. Defendants argue that the plain language of the statute does not provide an
avenue of relief for the Plaintiffs.
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The Court finds the Plaintiffs have failed to state a claim under the BSAEA upon
which relief can be granted. First, Plaintiffs have not stated any facts to show how the
school prevented the minor female Plaintiffs from joining the girl scouts, unless the girl
scouts are run by the school system (which Plaintiffs have not alleged). Further, the
statute clearly states that no public school that receives federal money “shall deny equal
access or a fair opportunity to meet to, or discriminate against, any group officially
affiliated with the Boy Scouts of America, or any other youth group listed in Title 36” that
wishes to meet in the schools public forum. 20 U.S.C. § 7905(b)(1) (emphasis added).
The purpose of the statute seems to be to prevent discrimination against groups such
as the boy scouts and girl scouts. It does not mention anything about the school
preventing students from joining. Plaintiffs have not nudged their claims across the line
to being plausible. Plaintiffs’ claims under this Act are dismissed.
3. No Child Left Behind Act
Defendants argue in their motion that the No Child Left Behind Act does not
create a private of action and is only enforceable by the agency charged with
administering it.

This is a correct recitation of the law as determined by the Supreme

Court. Horne v. Flores, 129 S.Ct. 2579, 2598 (2009). Plaintiffs’ claims under this Act
are dismissed.
4. Fourteenth Amendment
The Court finds that the Plaintiffs have failed to state a claim under these
theories. The allegations do not rise to a constitutional level and, even if they did, the
Plaintiffs have state court remedies available to them to pursue their claims.

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5. Res Judicata
Defendants claim the claims made in this suit barred by res judicata. The Court
finds that, even if Plaintiffs had stated a claim upon which relief could be granted,
insofar as the alleged incidents involve refer to claims made in the 2008 suit that was
dismissed, Plaintiffs would barred from re-litigating them in this suit. This would seem to
include all of the claims involving Aaron Price and Bethany Price but not Patrick Price,
who was not a named Plaintiff in the prior suit.

6. Plaintiffs’ Motion for Relief from Judgment
The Court denies the motion for relief from judgment (doc. 28) as frivolous.
Conclusion
Based on the above discussion, defendants’ motion to dismiss (doc.8) is hereby
GRANTED. Plaintiffs’ claims are therefore dismissed. To the extent plaintiffs have
stated any state law claims in their petition for damages, the Court declines to exercise
jurisdiction over those claims.

The Plaintiffs are advised and warned that any

furtherSeptember 13, 2011.filings that the Court deems frivolous will result in monetary
and/or other sanctions.

Signed in Baton Rouge, Louisiana, on September 8, 2011.



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JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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