Perkins v. Iberville Parish School Board

Filing 9

ORDER & REASONS re dft's 7 Motion to Dismiss for Failure to State a Claim: for the reasons stated, IT IS HEREBY ORDERED that the Motion to Dismiss is GRANTED and the complaint is DISMISSED WITH PREJUDICE. Signed by Judge Nanette Jolivette Brown on 5/2/2013. (RLL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
EMILY PERKINS

CIVIL ACTION

VERSUS

NO. 12-0015

IBERVILLE PARISH SCHOOL BOARD

SECTION: “G”(5)

ORDER AND REASONS
Before the Court is a Motion to Dismiss1 filed by Defendant Iberville Parish School Board
(hereinafter, the "School Board" or "Defendant"), wherein Defendant requests dismissal of Plaintiff
Emily Perkins' ("Plaintiff") complaint for failure to properly bring the action under 42 U.S.C. § 1983
and to state a claim against the School Board for which relief may be granted. Having considered
the motion, the memorandum in support, the complaint, and the applicable law, the Court will grant
the motion.
I. Background
A. Procedural Background
On January 10, 2012, Plaintiff filed this action in the Middle District of Louisiana; however,
pursuant to a General Order signed by Chief Judge Brian A. Jackson on February 6, 2012, this
matter was reassigned to this section, Section "G," in the Eastern District of Louisiana.2 On October
17, 2012, the School Board filed the instant Motion to Dismiss,3 and Plaintiff filed an opposition on
November 13, 2012.4

1

Rec. Doc. 7.

2

Rec. Doc. 3.

3

Rec. Doc. 7.

4

Rec. Doc. 8.

1

B. Factual Background
Plaintiff is an African-American female employed as a special education teacher by the
School Board during the 2010 to 2011 school year.5 Plaintiff alleges that she was harassed by two
Caucasian supervisors: first by Ms. Outlaw, the principal and then by her successor as principal,
Ms. DeLouise.6 Specifically, Plaintiff alleges that the harassment consisted of:
being required to sign in when going into class; taking students back to their class
to do intervention;
not being able to make a schedule for her white paraprofessional; undergo an
excessive number of formal evaluations; being stopped in the hallway and asked
where she was going; being required to explain her whereabouts; being unable to
return to her home classroom such that she was forced to carry a heavy load of
books, etc; and being subjected to unscheduled observations, at
least one of which ended up as a one-hour evaluation.7
At the end of the school year Perkins was not recommended for renewal by Ms. Delouise and her
contract was not renewed.8
II. The Parties' Arguments
The School Board argues that this matter should be dismissed because the Complaint fails
to allege (1) "the proper federal statute under which the plaintiff's claims must be brought;" and (2)
the "facts which would support a viable Section 1983 claim for a violation of Section 1981."9 The
School Board first explains that "[t]o assert a [Title 42, United States Code,] Section 1981 claim of
racial discrimination against a state actor, a plaintiff must assert a cause of action under Section

5

Rec. Doc. 1 ¶ 3.

6

Id. Plaintiff does not provide the full names of Ms. Outlaw or Ms. DeLouise.

7

Id. ¶ 5.

8

Id. ¶ 6.

9

Rec. Doc. 7 at p. 6.

2

1983."10 The School Board contends that as a political subdivision of the State of Louisiana, it is
"a state actor for purposes os Sections 1981 and 1983," and therefore, Plaintiff must properly utilize
Section 1983 to pursue the alleged Section 1981 claims.11
In the opposition to the motion, Plaintiff argues that "[t]o the extent [] the complaint states
an incomplete statutory basis, that is not . . . a fatal flaw," because the "legal sufficiency of a
complaint is measured by whether it meets the pleading standards set forth in FRCP 8."12 According
to Plaintiff, the complaint need only contain a "short and plain statement of the grounds for the
court's jurisdiction," which she maintains she has provided by asserting this Court's original
jurisdiction in any civil action authorized by law to redress a deprivation of civil rights, pursuant to
28 U.S.C. § 1343.13 Moreover, Plaintiff contends that dismissals for failure to state a claim are
disfavored, and leave to amend should be granted to allow the omission to be cured by amendment.14
Next, the School Board notes that the Complaint only alleges acts of harassment by Ms.
Outlaw and Ms. DeLouise, and fails to "point to a policy or a procedure of the School Board that
violated her civil rights or even allege that either principal had policymaking authority on behalf of
the School Board."15 The School Board avers that the complaint effectively seeks to establish a
claim against the School Board "based on vicarious liability under a respondeat superior theory,"
which is not permitted under Section 1983, which only allows a municipality and other local

10

Rec. Doc. 7 at p. 6 (citing Oden v. Oktibbeha Cnty, Miss., 246 F.3d 458, 462-63 (5th Cir. 2001)).

11

Id.

12

Rec. Doc. 8 at p. 1.

13

Id.

14

Id. at pp. 1-2.

15

Rec. Doc. 7 at p. 8.

3

governmental units, including a school board, to be sued "if the plaintiff's alleged deprivation of
rights stems from the municipality's unconstitutional or illegal policies."16 Moreover, the School
Board contends "that Section 1983 provides the 'exclusive federal damages remedy' for a violation
of the rights guaranteed by Section 1981 when the claim is against a state actor."17
On this issue, Plaintiff concedes that she cannot point to an unconstitutional or illegal policy
on behalf of the School Board, but she "asserts that she can allege individual liability on the part of
the two school principals who are expressly named in the complaint."18 Plaintiff avers that leave to
amend is appropriate because Ms. Outlaw and Ms. DeLouise "would have sufficient notice of the
complaint so as not to be prejudiced in defending on the merits and knew or should have known that
ths [sic] suit would have been brought against them but for a mistake in identifying the proper
party."19
III. Law and Analysis
A. Motion to Dismiss
The Federal Rules of Civil Procedure provide that an action may be dismissed “for failure
to state a claim upon which relief can be granted.”20 “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible

16

Id. at p. 7 (emphasis in original) (quoting Weathers v. Lafayette Parish Sch. Bd., 520 F. Supp. 2d 827,
831 (W.D. La. 2007)).
17

Id. (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989)).

18

Rec. Doc. 8 at p. 2.

19

Id. (citing Krupski v. Costa Crociere SpA, 130 S.Ct. 2485, 2493 (2010); Skoczylas v. Federal Bureau of
Prisons, 961 F.2d 543, 545 (5th Cir. 1992).
20

Fed. R. Civ. P. 12(b)(6).

4

on its face.’”21 “Factual allegations must be enough to raise a right to relief above the speculative
level,”22 and a claim is facially plausible when the plaintiff has pled facts that allow the court to
“draw a reasonable inference that the defendant is liable for the misconduct alleged.”23
On a motion to dismiss, asserted claims are liberally construed in favor of the claimant, and
all facts pleaded are taken as true.24 However, although required to accept all “well-pleaded facts”
as true, the court is not required to accept legal conclusions as true.25 “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”26 Similarly,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements”
will not suffice.27 The complaint need not contain detailed factual allegations, but it must offer more
than mere labels, legal conclusions, or formulaic recitations of the elements of a cause of action.28
That is, the complaint must offer more than an “unadorned, the defendant-unlawfully-harmed-me
accusation.”29 From the face of the complaint, there must be enough factual matter to raise a
reasonable expectation that discovery will reveal evidence as to each element of the asserted

21

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

22

Twombly, 550 U.S. at 556.

23

Id. at 570.

(2008)).

24

Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); see
also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23 (2007).
25

Iqbal, 556 U.S. 662, 677-78.

26

Id. at 679.

27

Id. at 678.

28

Id.

29

Id.

5

claims.30 If factual allegations are insufficient to raise a right to relief above the speculative level,
or if it is apparent from the face of the complaint that there is an “insuperable” bar to relief, the claim
must be dismissed.31
B. Incomplete Statutory Citation in the Complaint
Federal Rule of Civil Procedure 8 governs the contents of pleading that are necessary to state
a claim for relief, and requires:
(1) a short and plain statement of the grounds for the court's jurisdiction, unless the
court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to
relief; and
(3) a demand for the relief sought, which may include relief in the alternative or
different types of relief.
In Doss v. South Central Bell Telephone Co.,32 the United States Court of Appeals for the Fifth
Circuit found that dismissal was improper where the plaintiff cited Title VII instead of the Age
Discrimination and Employment Act ("ADEA"), 29 U.S.C. §§ 621-624, but where she nonetheless
stated a claim for age discrimination.33 Although the Fifth Circuit noted that "the failure to allege
violation of the ADEA was not a technical mistake, but rather, a conscious decision made under an
incorrect analysis of the law," the Fifth Circuit nevertheless emphasized that motions to dismiss for
failure to state a claim are viewed with disfavor," and "the fact that a plaintiff pleads an improper

30

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).

31

Moore v. Metropolitan Human Serv. Dep’t, No. 09-6470, 2010 WL 1462224, at * 2 (E.D. La. Apr. 8,
2010) (Vance, C.J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 & n. 9 (5th
Cir. 2007)).
32

834 F.2d 421 (5th Cir. 1987).

33

Id. at 423.

6

legal theory does not preclude recovery under the proper theory."34
Here, Plaintiff has provided the Court with "a short and plain statement of the grounds for
the court's jurisdiction," as required to state a claim under Rule 8. Specifically, Plaintiff alleges that
this Court has jurisdiction pursuant to 28 U.S.C. § 1343.35 However, Plaintiff has failed to properly
cite 42 U.S.C. § 1983, which "provides the exclusive federal damages remedy for the violation of
the rights guaranteed by § 1981 when the claim is pressed against a state actor."36 The Fifth Circuit's
decision in Doss clearly instructs that Plaintiff's failure to accurately cite the statutory basis of her
cause of action does not warrant dismissal.
C. Failure to Allege an Unconstitutional Policy Under Section 1983
It is well established that the an express "action at law" under 42 U.S.C. § 1983 provides the
exclusive federal damages remedy for the violation of rights guaranteed by § 1981 when the alleged
violation was by a state actor.37 Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
Municipalities and other local governmental units, including school boards, may be sued under §
1983, but the plaintiff's alleged deprivation of rights must stem from the school board's

34

Id. (citing Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050
(5th Cir. 1982); Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707 (8th Cir. 1979)). See also S. Constr. Grp.,
Inc. v. Dynalectric Co., 2 F.3d 606, 609 n. 5 (5th Cir. 1993) (noting that the relief need not always be specifically
enumerated if a viable claim for such relief has been stated).
35

Rec. Doc. 1 ¶1.

36

Jett, 491 U.S. at 735.

37

Id.

7

unconstitutional or illegal policies or decisions.38 The United States Supreme Court stated in Monell
v. Department of Social Services of City of New York,39 that a municipality "cannot be held liable
solely because it employs a tortfeasor–or, in other words, a municipality cannot be held liable under
§ 1983 on a respondeat superior theory."40 The Supreme Court further explained that "it is when
execution of a government's policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the injury that the government
as an entity is responsible under § 1983."41
Plaintiff concedes that she cannot make a "Monell allegation," which precludes her from
establishing liability on behalf of the School Board because she cannot identify an unconstitutional
policy or procedure of the School Board that violated her civil rights.42 Plaintiff also does not claim
that either principal had policymaking authority on behalf of the School Board. Accordingly, the
Plaintiff has failed to state a claim upon which relief can be granted against the School Board, and
the Court will dismiss the School Board as a defendant.
D. Leave to Amend
1. Applicable Law
Plaintiff acknowledges the potential errors in the complaint, and in opposition to the pending
motion she informally requests leave to amend in order to "allege individual liability on the part of
the two school principals . . . expressly named in the complaint, that is, Ms. Outlaw, and her

38

See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978).

39

436 U.S. 658.

40

Id.

41

Id. at 694.

42

See Rec. Doc. 8 at p. 2.

8

successor, Ms. DeLouise."43 At this time, Plaintiff's request to amend does not run afoul of any
deadlines for amending pleadings as there is no scheduling order entered in this matter. Therefore,
Federal Rule of Civil Procedure 15(a) provides the applicable standard in determining whether leave
to amend should be granted. That rule states that district courts "should freely give leave [to
amend] when justice so requires."44 The Fifth Circuit has elaborated on leave to amend under Rule
15(a) by explaining that a motion for leave to amend should not be denied "unless there is a
substantial reason to do so,"45 such as "undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice
to the opposing party, and futility of amendment."46
In Jacobsen v. Osborne,47 the Fifth Circuit discussed the denial of a motion to amend on the
basis of futility, because the proposed amendment would be time-barred. In Jacobsen, the plaintiff
brought a Section 1983 claim against one named officer and one officer referred to as "John Doe,"
because the plaintiff did not know his identity.48 Over two years after the alleged incident, the
plaintiff moved to amend the pleadings to add the correct defendants.49 First, the plaintiff had
mistakenly named the transporting, instead of the arresting officer, because an answer to an

43

Id.

44

See S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 n. 4 (5th Cir. 2003)
(concluding that "the presence of a scheduling order renders the Rule 15 inquiry secondary" to the Rule 16(b)
determination as to the existence of good cause).
45

Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir. 1998) (citing Leffall v. Dallas Indep. Sch. Dist., 28 F.3d
521, 524 (5th Cir. 1994)).
46

Id. (emphasis in original) (citing In re Southmark Corp. 88 F.3d 311, 314-15 (5th Cir. 1996) (emphasis

47

133 F.3d 315.

48

Id. at 317.

49

Id.

added).

9

interrogatory incorrectly listed the transporting officer as the arresting officer. Second, the plaintiff
sought to amend the complaint to add the actual identity of the “John Doe” officer, which he learned
in discovery. The district court denied the motion to amend on the grounds that it was “futile,”
reasoning that the claims against the newly proposed defendants were now time-barred.50
On appeal of the district court's decision in Jacobsen, the Fifth Circuit reversed in part and
affirmed in part, holding that an amendment relates back to the original complaint under Rule 15(c)
when (1) the basic claim arose out of the conduct set forth in the original proceeding; (2) the party
brought in received such notice that it will not be prejudiced in maintaining its defense; (3) the party
must or should have known that, but for the mistake concerning identity, the action would have been
brought against it; and (4) the second and third requirements were fulfilled within 120 days
following filing of the complaint, or longer if good cause is shown.51 However, the court held that
an amendment to change a party name will only relate back when the change is the result of an error,
“such as a misnomer or misidentification.”52 The Fifth Circuit adopted the approach followed by
First and Second Circuits that a plaintiff’s failure to name individual officers because he does not
know their identity does not constitute a “mistake” that will allow relation back.53 Therefore, the
Fifth Circuit found that an amendment would relate back for the misidentified arresting officer, but
not the previously unknown “John Doe” officer. The court explained that the “John Doe” officer was
not omitted because of a mistake or misidentification, and therefore “the Rule does not allow

50

Id. at 318.

51

Id. at 319-20.

52

Id. at 320.

53

Id. at 321.

10

relation back to the filing of the original complaint.”54 In Miller v. Mancuso,55 the Fifth Circuit
expounded on this standard and held that “failing to identify individual defendants cannot be
characterized as a mistake,” for purposes of relating back under Rule 15(c).56
In Labella v. Kenner City,57 this Court did not permit the plaintiff to amend the complaint
after failing to identify the correct defendant, because although the issue was not fully briefed or
properly before the Court, the Fifth Circuit's decisions in Jacobsen and Miller cast significant doubt
on the viability of the plaintiff’s proposed amendment.58 The plaintiff in Labella filed a Section
1983 claim against the Kenner Police Department and the City of Kenner for the actions of an
arresting officer, whom Plaintiff referred to as an "unidentified officer."59 This Court found the
"unidentified officer" analogous to the "John Doe" officer in Jacobsen, and therefore concluded that
amendment would be futile.60

2. Analysis
In this case, Fifth Circuit suggests that leave to amend should be granted if Plaintiff's
proposed amendment would not be futile. Determining the futility of an amendment requires the
Court to first ascertain when Plaintiff's claim accrued and the applicable limitations period. It is

54

Id. at 321-22.

55

388 Fed. App’x. 389 (5th Cir. 2010).

56

Id. at 391.

57

No. 11-27420, 2013 WL 149456, at *4 (E.D. La. Jan. 14, 2013).

58

Id.

59

Id. at *1.

60

Id. at *4.

11

well-established that, for a Section 1983 action, "the court looks to the forum state's personal-injury
limitations period."61 "In Louisiana, that period is one year."62 However, "federal law determines
when a § 1983 claim accrues."63 In the context of a Section 1983 employment discrimination case
such as this, the limitation period "commences when the plaintiff knows or reasonably should know
that the discriminatory act has occurred."64
The allegations of harassment and discriminatory non-renewal of Plaintiff's contract occurred
during the 2010 to 2011 school year. In this situation, Plaintiff clearly had knowledge of the actions
she alleges were discriminatory as they occurred. Unfortunately, the complaint provides very little
factual detail, but it seems that her claim accrued, at the latest, "at the end of the school year" when
she was allegedly "not recommended for renewal by Ms. DeLouise, and, in fact, was not renewed."
Therefore, considering the length of a normal school year running from approximately August of
2010 to June of 2011, the limitations period on Plaintiff's claim expired in June of 2012. Plaintiff
did not seek leave to amend, even informally, until the opposition was filed on November 13, 2012.
Accordingly, unless the proposed amendment to state a claim against the school principals
individually relates back to the complaint under Federal Rule of Civil Procedure 15(c), Plaintiff's
proposed amendment would be futile because it is time-barred.
Although Ms. Outlaw and Ms. DeLouise are identified in the complaint as Plaintiff notes,

61

Jacobsen, 133 F.3d at 319 (citing Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994).

62

Id. (citing Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir. 1989).

63

Id. (citing Moore, 30 F.3d at 620).

64

McWilliams v. Escambia Cnty. Sch. Bd., 658 F.2d 326, 330 (Former 5th Cir. 1981) (citing Drayden v.
Needville Indep. Sch. Distr., 642 F.2d 129, 131-32 (5th Cir. 1981); Rubin v. O'Koren, 621 F.2d 114, 116 (5th Cir.
1980), modified in part on other grounds on reh'g, 644 F.2d 1023 (5th Cir. 1981); Lavellee v. Listi, 611 F.2d 1129,
1131 (5th Cir. 1980); Hamilton v. General Motors Corp., 606 F.2d 576, 579 (5th Cir. 1979), cert. denied, 447 U.S.
907 (1980)).

12

they were not named defendants and this is not an instance of a mistake or misidentification that
would allow relation back of the proposed amendment under Rule 15(c).65 Much like the situation
before this Court in Labella where the "unidentified officer" was not named as a defendant in the
original pleadings, Plaintiff simply did not identify the principals as individual defendants. Indeed,
the Fifth Circuit clearly articulated in Miller that “failing to identify individual defendants cannot
be characterized as a mistake,” for purposes of relating back under Rule 15(c).66 Where Plaintiff
clearly knew the identities of Ms. Outlaw and Ms. DeLouise but simply did not identify them as
individual defendants, the proposed amendment would be futile because the limitation period on the
claim has expired.
IV. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that the Motion to Dismiss67 is GRANTED and the complaint
is DISMISSED WITH PREJUDICE.
NEW ORLEANS, LOUISIANA, this ____ day of May, 2013.
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

65

388 Fed. App’x. at 391.

66

388 Fed. App’x. 389 (5th Cir. 2010).

67

Rec. Doc. 7.

13