Wells v. Johnson et al
Filing
22
RULING granting 8 Motion to Dismiss and/or for Summary Judgment filed by Defendants, Iberville Parish School Board, Charles Johnson, Brandie Blanchard, Kelly Carville, and Mary Blanchard shall be GRANTED. Plaintiffs' claims are hereby dismissed with prejudice. Signed by Judge Shelly D. Dick on 8/28/2015. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
KELVIN WELLS IN THE INTEREST
OF BETHANY WELLS, TREASURE
WELLS, PATRICK WELLS
CIVIL ACTION NO.
VERSUS
14-755-SDD-SCR
CHARLES JOHNSON, MATH-SCIENCE
ACADEMY, IBERVILLE PARISH SCHOOL
BOARD, MS. BLANCHARD, SCHOOL BOARD,
MS. CARVILLE, MSA, MS. BLANCHARD, MSA
RULING
Before the Court is a Motion to Dismiss and/or For Summary Judgment1 filed by
Defendants, Iberville Parish School Board, Charles Johnson, Ms. Brandie Blanchard,
Ms. Carville, and Ms. Blanchard. In response, pro se Plaintiff Kelvin Wells, on behalf of
Bethany Wells, Treasure Wells, and Patrick Wells, has filed a one page Opposition2.
Defendants subsequently filed a Reply3. For the following reasons, Defendants’ Motion
shall be granted.
I.
BACKGROUND
On September 30, 2014, Plaintiff, Kelvin Wells, a frequent filer4 in this Court,
brought this state court lawsuit as a pro se litigant on behalf of Bethany Wells, Treasure
Wells, and Patrick Wells against Defendants, Iberville Parish School Board, Charles
1
Rec. Doc. 8.
Rec. Doc. 17. Plaintiffs’ Objection to Defendants Motion for Summary Judgment. The Court construes
the Petition as consisting of claims solely brought on behalf of Kelvin Wells’ minor children.
3
Rec. Doc. 18.
4
The following are just a few of the cases filed by Kelvin Wells in the Middle District of Louisiana: Wells
v. 19th Judicial Dist., et al, 03cv243; Wells v. Williams, et al, 06cv247; Price, et al v. Louisiana Dept. of
Education, et al, 08cv462; Wells, et al v. U.S. Dept. of Education, et al, 09cv456; Wells, et al v. U.S. Dept.
of Education, 11cv16; Wells, et al v. Magnolia Woods Elementary School, et al, 11cv603.
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2
Johnson, Ms. Brandie Blanchard, Ms. Carville, and Ms. Blanchard.5 Wells has asserted
claims against Defendants under Title VI of the Civil Rights Act of 1964, Title IX of the
Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973 (“RA”),
Title II of the Americans with Disabilities Act of 1990 (“ADA”), the Boy Scouts of America
Equal Access Act, and the No Child Left Behind Act of 2001.
In Wells’ Petition6, he claims that the Plaintiffs were harassed and discriminated
against by the Defendants. The allegations further provide that both Bethany Wells and
Patrick Wells were injured while at school, the Math and Science Academy (“MSA”),
were subsequently denied medical treatment, and that the Defendants concealed their
injuries.
The Petition alleges that two teachers, Ms. Carville and Ms. Blanchard,
withheld material and assignments to interfere with Patrick Wells’ education.
Defendant, Charles Johnson, is accused of forcing Plaintiffs from the MSA, while
permitting white students who reside outside of the school district to attend MSA.7 The
Plaintiffs also assert that the Iberville Parish School Board and the Human Resource
Supervisor failed to monitor, train, retrain, inspect, and supervise MSA employees which
would have prevented the alleged violations from occurring.
As a result of these
infractions, Plaintiffs seek to recover damages for physical injury, pain and suffering,
and emotional damages. On December 5, 2014, Defendants removed the lawsuit to
federal court and now seek dismissal of Plaintiffs’ claims.8
5
Due to the vague identification of the named Defendants in this case, the Defendants submit that it is
their assumption that the following individuals were the intended party-defendants in this case: Ms.
Brandie Blanchard, Iberville Parish School Board’s Supervisor of Personnel and Policy, and Ms. Kelly
Carville and Ms. Mary Blanchard, both third grade teachers at Iberville Math, Science, Arts AcademyEast, in Iberville Parish. Rec. Doc. 8-1, n. 2. See also, Defendants’ Answer. Rec. Doc. 5.
6
Rec. Doc. 1-2.
7
In their Memorandum in Support of their Motion to Dismiss and/or for Summary Judgment, Defendants
have indicated that Charles Johnson is the principal of at Iberville Math, Science, and Arts Academy East.
8
The Court has subject matter jurisdiction based on federal question jurisdiction under 28 U.S.C. §1331.
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II.
LAW AND ANALYSIS
A. Pro Se Status and Standing
Wells has alleged that he is the “Natural Tutrix and biological father” of Bethany
Wells, Treasure Wells, and Patrick Wells. In his In Forma Pauperis Affidavit attached to
his state court Petition,9 he attests that Treasure, age 11, Bethany, age 10, and Patrick,
age 9, are his children.10 Federal law guarantees the right for parties to proceed pro se
in civil actions in federal court.11 Defendants challenge Wells’ capacity to represent his
three minor children in this proceeding on Rule 12(b)(1) grounds for lack of standing.
While the Fifth Circuit has not expressly addressed whether a pro se parent can
represent his child in federal court in a lawsuit brought under Title VI, Title IX, Section
504 of the Rehabilitation Act, or Title II of the ADA, the Boy Scouts of America Equal
Access Act, and the No Child Left Behind Act of 2001, the Fifth Circuit “has endorsed
the principle that a ‘non-attorney parent cannot appear pro se on behalf of a minor
child.’”12 In Harris v. Apfel, the Fifth Circuit carved out a specific exception to this
general principle in the limited context of pro se Social Security appeals brought by a
non-attorney parent on behalf of a minor child.13 In reaching its holding, the Harris
Court distinguished SSI appeals, which essentially involve a limited review of the
9
This matter was removed to Federal Court on December 5, 2014 from the 18th Judicial District Court.
Rec. Doc. 1.
10
Rec. Doc. 1-2, p. 4.
11
28 U.S.C. § 1654. (“In all courts of the United States the parties may plead and conduct their own
cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and
conduct causes therein.”).
12
K.F. ex rel. Ruffin v. Houston Independent School Dist., 2006 WL 2434478, at *1 (S.D. Tex. Aug. 22,
2006)(See Harris v. Apfel, 209 F.3d 413, 415 (5th Cir. 2000)(citing Devine v. Indian River County Sch.
Bd., 121 F.3d 576 (11th Cir. 1997); Johns v. County of San Diego, 114 F.3d 874 (9th Cir. 1997);
OseiAfriyie v. Medical College of PA, 937 F.2d 876 (3rd Cir. 1991); Meeker v. Kercher, 782 F.2d 153
(10th Cir. 1986)). See also, Chatman v. Mississippi High School Athletics Ass’n., 552 Fed.Appx. 335, at
337 (5th Cir. 2014)(“But with limited exceptions not applicable here, a pro se, non-lawyer parent or
guardian may not represent the interests of her minor child.”)(unpublished opinion).
13
Harris v. Apfel, 209 F.3d at 417.
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administrative record, from other types of cases that “involve the subjective criteria and
range of fact-finding.”14 Such a distinction has been interpreted by at least one district
court within the Fifth Circuit as “indicating that a non-attorney’s representation of a child
was prohibited for other types of claims.”15 Considering this is not a SSI appeal, in
combination with the fact that Wells is a non-lawyer, the Court finds that Wells may not
represent the interests of his children on a pro se basis in the instant matter.16
Ordinarily, the Court would dismiss the minor Plaintiffs’ claims without prejudice
affording them the opportunity, through Kelvin Wells, to retain council on their behalf.
However, even if Wells’ children were properly represented, their claims would still fail
as a matter of law for the following reasons.
B. Rule 12(b)(6) Standard
When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all wellpleaded facts as true, viewing them in the light most favorable to the plaintiff.’”17
However, “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of elements of a
cause of action, supported by mere conclusory statements, do not suffice.”18
“Furthermore, while the court must accept well-pleaded facts as true, it will not ‘strain to
14
Id., at 416 (quoting Maldonado v. Apfel, 55 F. Supp. 2d 296, 303 (S.D.N.Y. 1999)(citation omitted)).
K.F. ex rel. Ruffin v. Houston Independent School Dist., 2006 WL 2434478, at *1 (S.D. Tex. Aug. 22,
2006)(holding that a parent cannot bring IDEA, § 504, or § 1983 claims on behalf of minor child).
16
Because Bethany Wells, Treasure Wells, and Patrick Wells are minors, they cannot proceed pro se.
Rule 17 of the Federal Rules of Civil Procedure states that the “capacity to sue or be sued shall be
determined by the law of the state in which the district is held.” Under Louisiana law, only “[a] competent
major and a competent emancipated minor have the procedural capacity to sue.” La. C.C. Proc. Art. 681.
There has been no showing that the minor children, Bethany Wells (age 10), Treasure Wells (age 11), or
Patrick Wells (age 9), have been emancipated. See, Rec. Doc. 1-2, p. 4.
17
In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin K. Eby
Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting Jones v. Greninger,
188 F.3d 322, 324 (5th Cir.1999)).
18
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (hereinafter “Iqbal”) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, at 555 (2007) (hereinafter “Twombly”).
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find inferences favorable to the plaintiff.’”19 Rather, “[t]o survive a Rule 12(b)(6) motion
to dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is plausible
on its face.’”20 In order to satisfy the plausibility standard, the plaintiff must show “more
than a sheer possibility that a defendant has acted unlawfully.”21 “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”22
Furthermore, “[w]hile 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.”23 On a motion to dismiss, the
court may consider “the complaint, its proper attachments, ‘documents incorporated into
the complaint by reference, and matters of which a court may take judicial notice.’”24
C. Pro Se Filing
“A document filed pro se is to be liberally construed … and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.”25 But even a pro se complainant must plead “factual
matter” that permits the court to infer “more than the mere possibility of conduct.”26 The
19
Taha v. William Marsh Rice University, 2012 WL 1576099 at *2 (S.D. Tx. May 3, 2012)(quoting
Southland Sec. Corp. v. Inspire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).
20
In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Twombly, 550 U.S. at 570).
21
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
22
Id.
23
Twombly, 550 U.S. at 555 (internal citations and brackets omitted).
24
Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011)(quoting Dorsey v.
Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citations and internal quotation marks omitted).
25
Erickson v. Pardus, 551 U.S. 89, 94 (2007)(citations omitted).
26
Iqbal, 556 U.S. at 679.
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court need not accept “a legal conclusion couched as a factual allegation,” or “naked
assertions devoid of further factual enhancement.”27
1. Title VI Claims
Under Title VI, no person “shall be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance” because of the person’s race, color, or national origin.28
Notably, only public and private entities can be held liable under Title VI.29 In other
words, the proper defendant in a Title VI case is an entity receiving federal financial
assistance. Therefore, all Title VI claims brought against the individual Defendants,
Charles Johnson, Brandie Blanchard, Mary Blanchard, and Kelly Carville, shall be
dismissed.
In order to state a viable Title VI claim, the plaintiff must allege facts showing that
the defendant intentionally discriminated against him or her on the basis of race, color,
or national origin, and that the defendant receives federal financial assistance.30 On the
most fundamental level, Wells’ Petition is deficient because it fails to allege whether
Defendant Iberville Parish School Board receives federal funding, and for failing to
identify the race and gender of the individual minor Plaintiffs. Moreover, Wells’ Petition
is devoid of any allegations of specific instances of intentional discrimination.
“Intentional discrimination encompasses practices by which the actor intended to treat
similarly situated individuals differently solely on the basis of national origin, color, or
27
Id. at 678 (internal quotation marks omitted).
42 U.S.C. § 2000d.
29
Muthukumar v. Kiel, 478 Fed. Appx. 156, 159 (5th Cir. 2012).
30
42 U.S.C. § 2000d; see also, Alexander v. Sandoval, 532 U.S. 275, 280 (2001).
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race,” which has simply not been alleged here.31 Construing the Petition most liberally,
the allegations against the Iberville Parish School Board, at best, amount to negligence
for failure to train, retrain, inspect, and supervise MSA employees. Thus, even if the
claims are taken as true, the allegations in Wells’ Petition fail to state a claim under Title
VI upon which relief may be granted. Accordingly, these claims shall be dismissed.
2. Title IX Claims
Similarly, Title IX provides that “[n]o person … 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.”32 Title IX applies to “institutions and programs that receive federal funds,
20 U.S.C. § 1681(a) … but [Title IX] has consistently been interpreted as not authorizing
suit against school officials, teachers, and other individuals.”33 Therefore, the Plaintiffs’
claims asserted against the named individuals shall be dismissed.
To state a Title IX claim, the plaintiff must allege that the defendant (1) received
federal financial assistance, and (2) excluded him or her from participation in the
defendant’s education programs because of his or her sex.34 Again, on the most basic
level, Wells’ Petition fails to allege that the Iberville Parish School Board is a recipient of
federal funds, or that the minor Plaintiffs were excluded from the School Board’s
31
DeLeon v. City of Dallas, 2008 WL 2941245, at *3 (N.D.Tex. July 25, 2008).
20 U.S.C. § 1681(a).
33
Fitzgerald v. Barnstable School Committee, 555 U.S. 246, 247 (2009). See also, Chestang v. Alcorn
State Univ., 820 F. Supp. 2d 772, 778 (S.D.Miss. 2011)(“Title IX permits actions only against ‘programs or
activities that receive federal financial assistance’ and not against individuals.”).
34
The Court further notes that even if Wells had attempted to assert a claim on his own behalf, it would
not be viable within the Fifth Circuit. In Rowinksy v. Bryan I.S.D., the Fifth Circuit explained how “nothing
in the statutory language provides [a parent] with a personal claim under title IX. Even assuming that title
IX protects persons other than students and employees, [plaintiff-parent] has failed [to] assert that she
was excluded from participation, denied the benefits of, or subjected to discrimination under any
education program or activity.” 80 F.3d 1006, 1009 n. 4 (5th Cir. 1996)(negative treatment on other
grounds).
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education because of their gender.
Instead, the Petition contains one conclusory
allegation asserting that the Plaintiffs had been discriminated against. As previously
discussed, although the Court must liberally construe the allegations within Wells’ pro
se Petition, the Court need not accept “a legal conclusion couched as a factual
allegation” or “naked assertions devoid of further factual enhancement.” Accordingly,
Plaintiffs’ Title IX claims shall be dismissed.
3. Title II of the ADA and Section 504 of the Rehabilitation Act
Title II of the ADA provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity.”35 Similarly, under the RA, “[n]o otherwise qualified individual with a
disability … shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.”36 The ADA and the RA
provide for a cause of action against a public entity, and not individuals in their
individual capacities.37 The elements of a prima facie claim under the ADA or the RA
are generally the same, such that “jurisprudence interpreting either section is applicable
to both.”38 Therefore, in order to state a claim under the ADA or the RA, the plaintiff
must allege: “(1) that he has a qualifying disability; (2) that he is being denied the
35
42 U.S.C. § 12132.
29 U.S.C. §794.
37
42 U.S.C. § 12132. DeLeon v. City of Alvin Police Dept., 2009 WL 3762688, at *4 (S.D.Tex. Nov. 9,
2009)(“Because neither the ADA nor the Rehabilitation Act provide for liability against governmental
officers in their individual capacities, [defendant’s] motion to dismiss the plaintiff’s claims against her in
her individual capacity under the ADA and the Rehabilitation Act should be granted.”).
38
Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000), cert. denied, 531 U.S. 959 (2000). See also,
Kemp v. Holder, 610 F.3d 231, 234 ((5th Cir. 2010)(“[t]he RA and the ADA are judged under the same
legal standards, and the same remedies are available under both Acts”)).
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benefits of services, programs, or activities for which the public entity is responsible, or
is otherwise discriminated against by the public entity; and (3) that such discrimination is
by reason of his disability.”39
Initially, Plaintiffs’ claims against the Defendants in their individual capacities
must be dismissed. As to the remaining claims against the Iberville School Board and
the Defendants in their official capacities, the Court finds that they too must be
dismissed. The allegations in Wells’ Petition fail to set forth any facts to satisfy the
threshold requirement that any of the Plaintiffs were disabled as defined by the ADA, or
that the School Board denied Plaintiffs any benefits or discriminated against them
because of any disabilities.
Therefore, Plaintiffs’ ADA and RA claims shall be
dismissed.
4. No Child Left Behind Act Claims
Defendants argue in their motion that the No Child Left Behind Act (“NCLBA”)
does not create a private right 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 United
States Supreme Court in Horne v. Flores.40 Therefore, Plaintiffs’ NCLBA claims shall be
dismissed.
5. Boy Scouts of America Equal Access Act
Under the Boy Scouts of America Equal Access Act (“BSAEA”), “no public
elementary school, public secondary school, local educational agency, or State
educational agency that has a designated open forum or a limited public forum and that
receives funds made available through the Department [of Education] shall deny equal
39
Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011).
Horne v. Flores, 557 U.S. 433, 456 n.6 (2009).
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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 (as
a patriotic society).”41 The Court finds that Plaintiffs have failed to state a claim under
the BSAEA upon which relief can be granted. Plaintiffs have not asserted any facts to
show that they participated in the boy scouts or the girl scouts, or how they were
discriminated against for their participation in such groups.
Accordingly, Plaintiffs’
claims under the BSAEA shall be dismissed.
III.
CONCLUSION
For the foregoing reasons, the Motion to Dismiss and/or for Summary
Judgment42 filed by Defendants, Iberville Parish School Board, Charles Johnson,
Brandie Blanchard, Kelly Carville, and Mary Blanchard shall be GRANTED. Plaintiffs’
claims are hereby dismissed with prejudice.
Signed in Baton Rouge, Louisiana, on August 28, 2015.
S
JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
41
20 U.S.C. §7905(b)(1).
Rec. Doc. 8.
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