Dennis et al v. Board Of Education Of Talbot County et al
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 5/8/14. (bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
GRAHAM DENNIS, et al.,
Civil Action No. GLR-13-3731
BOARD OF EDUCATION OF TALBOT
COUNTY, et al.,
Pending before the Court is Defendants’, Board of Education
David Stofa, and Sherry Bowen, Motion to Dismiss.
(ECF No. 3).
Plaintiffs, Graham Dennis and Casey Edsall, are suing Defendants
for constitutional violations arising from when they suspended
Dennis and Edsall for possessing weapons on school property.
Court finds no hearing necessary.
See Local Rule 105.6 (D.Md.
For the reasons outlined below, Defendants’ Motion will
be granted in part and denied in part.
Dennis and Edsall were students at Easton High School in
Talbot County, Maryland, and members of the school’s lacrosse
Unless otherwise noted, the following facts are stated as
alleged in the Complaint. (ECF No. 1).
On April 12, 2011, the Department of Juvenile Services
that a parent had alleged Easton High lacrosse team members had
concealed alcohol in water bottles and consumed it on the bus to
and from athletic events.
After discussions with senior staff
members, Duncan decided to search the lacrosse team bus prior to
its departure for an athletic event.
On April 13, 2011, Duncan, Stofa and Bowen, Easton High’s
security staff boarded the bus and announced to the lacrosse
team that they would be conducting a search.
While giving the
belongings were searched, Dennis told Assistant Principal Bowen
he had a pocketknife in his bag.
She told Dennis to retrieve
blade to Assistant Principal Bowen, who instructed him to leave
his bag on his seat and exit the bus.
A subsequent search of
Similarly, Edsall left his bag on his seat and exited the bus.
When searching Edsall’s bag, Assistant Principal Bowen found a
Dennis and Edsall graduated from Easton High in May 2012.
The police arrested Dennis at the scene for possessing
the pocketknife on school property.
Following the incident,
and Edsall for possessing dangerous weapons on school property.
Dennis received a ten-day suspension and was further recommended
Dennis and Edsall appealed their suspensions to
Salmon, then the Superintendent of Talbot County Public Schools.
Superintendent Salmon affirmed Dennis’s ten-day suspension but
declined to expel him from school.
She also affirmed Edsall’s
Dennis and Edsall then appealed their suspensions to the
Board, arguing the small knives and butane lighter were tools
routinely used to maintain their lacrosse sticks.
affirmed their suspensions nonetheless.
Undeterred, Dennis and
Edsall appealed to the Maryland State Board of Education (the
On April 10, 2012, the State Board reversed
Dennis and Edsall’s suspensions, and ordered that their records
action against Defendants in this Court, alleging unreasonable
searches and seizures in violation of the Fourth Amendment to
the United States Constitution (Count I) and Article 26 of the
Maryland Declaration of Rights (Count II).
(ECF No. 1).
also allege a violation of
due process under the
Fourteenth Amendment to the United States Constitution (Count
III) and Article 24 of the Maryland Declaration of Rights (Count
They bring the Fourth and Fourteenth Amendment claims
jurisdiction of the state constitutional claims.
Superintendent Salmon in her individual capacity, and Duncan,
(ECF No. 3).
Standard of Review
plausible claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
A claim is plausible when “the plaintiff pleads
factual content that allows the Court to draw the reasonable
conclusions or conclusory statements do not suffice and are not
entitled to the assumption of truth.
U.S. at 555).
Id. (citing Twombly, 550
Thus, the Court “must determine whether it is plausible
that the factual allegations in the complaint are enough to
raise a right to relief above the speculative level.”
(quoting Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009))
(internal quotation marks omitted).
And in doing so, the Court
must examine the complaint as a whole, consider the factual
allegations in the complaint as true, and construe the factual
Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of
Comm’rs of Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005)
(citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
in deciding a motion to dismiss, the Court may rely on documents
outside the complaint if they are attached to or referenced in
E.I. Du Pont De Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 450 (4th Cir. 2011) (citations omitted).
Section 1983 Claims
Defendants first argue the § 1983 claims against the Board
and individually named Defendants in their official capacities
should be dismissed because they are not “persons” under § 1983.
response that Defendants cannot assert the Eleventh Amendment to
avoid liability under § 1983.
Regardless, Defendants are more
Whether Defendants are subject to suit under § 1983
Will v. Mich. Dep’t of State Police, 491 U.S.
58, 66 (1989).
Of them, the only question relevant here is
whether Defendants are “persons” who can be sued under § 1983.
The Court concludes they are not.
Section 1983 allows individuals to sue any “person” who
color of law.
42 U.S.C. § 1983 (2012).
But state agencies and
state officials acting within their official capacities cannot
be sued under § 1983 because they are not “persons.”
491 U.S. at 64; Mayo v. Bd. of Educ. of Prince George’s Cnty.,
797 F.Supp.2d 685, 689 (D.Md. 2011), aff’d, 713 F.3d 735 (4th
F.Supp.2d at 689; Rosenfeld v. Montgomery Cnty. Pub. Sch., 41
F.Supp.2d 581, 586 (D.Md. 1999); Beka Indus., Inc. v. Worcester
Cnty. Bd. of Educ., 18 A.3d 890, 900 (Md. 2011).
capacities are a county school board and school officials, they
are not “persons” and cannot be sued under § 1983.
and Fourteenth Amendment claims will be dismissed against them
Paul D. Coverdell Act Immunity Afforded to Individual
Protection Act of 2001 (the “Coverdell Act”), 20 U.S.C. §§ 6731
et seq. (2012), protects the individually named Defendants from
suit in their individual capacities.
Dennis and Edsall argue
the Coverdell Act protection does not extend to claims alleging
The Court agrees.
The Coverdell Act allows school officials to use reasonable
Id. § 6732.
Vitally, no teacher,
administrator, or individual member of a school board is liable
for harm to a student if he was acting within his scope of
employment, and the actions complied with the law and were in an
however, is not absolute.
It does not apply to any “misconduct
Federal or State civil rights law.”
Id. § 6736(d)(1)(C).
violations under the Fourth and Fourteenth Amendments and the
parallel Maryland constitutional provisions.
These are the very
type of claims the Coverdell Act expressly excludes from its
protection under § 6736(d)(1)(C).
See 78 Frances Amendola et
(“Professional school employees are not immune from liability
under a statute intended to bar tort liability, where the claims
against them are based on allegations of breaches of state or
federal constitution, and not tort law.”).
Defendants are thus
not immune from those claims here.
Notwithstanding, Defendants argue this decision “render[s]
the [Coverdell] Act meaningless” because it would nullify the
Act’s protection against all federal litigation.
Supp. Defs.’ Mot. Dismiss at 2, ECF No. 9).
Their concern is
public school officials derives from alleged federal and state
constitutional violations, as the Coverdall Act is designed to
target tort or statutory causes of action that may, for whatever
reason, find their way into federal court.
See, e.g., C.B. v.
Sonora Sch. Dist., 691 F.Supp.2d 1123, 1148–50 (E.D.Cal. 2009)
(dismissing under the Coverdell Act an emotional distress claim
against a school district and school official).
But where a
student-plaintiff sues under § 1983 asserting a federal or state
constitutional violation, the Coverdell Act explicitly exempts
that type of claim from immunity.
The Coverdell Act, therefore,
individually named Defendants here.
Qualified Immunity of the Individual Defendants
School officials performing discretionary functions
have qualified immunity – they are shielded from liability for
civil damages to the extent “‘their conduct does not violate
clearly established statutory or constitutional rights.’”
v. Buchanan Cnty. Sch. Bd., 328 F.App’x 204, 208 (4th Cir. 2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
The traditional two-prong inquiry to determine whether a
school official deserves qualified immunity required the Court
to examine: “(1) whether the official violated a constitutional
right; and if so (2) whether the right was ‘clearly established’
at the time of its violation.”
Rock for Life-UMBC v. Hrabowski,
Dennis and Edsall argue qualified immunity does not apply
to their state constitutional claims and correctly note that
Defendants cite no authority showing otherwise.
Be that as it
may, Defendants assert qualified immunity from the state
constitutional claims, and Maryland law provides a basis for it.
See Dehn Motor Sales, LLC v. Schultz, 69 A.3d 61, 72
Accordingly, the Court separately
analyzes whether federal qualified immunity applies to Dennis
and Edsall’s federal constitutional claims and whether state
qualified immunity applies to their state constitutional claims.
411 F.App’x 541, 547 (4th Cir. 2010) (citing Saucier v. Katz,
533 U.S. 194, 201 (2001), receded from by Pearson v. Callahan,
555 U.S. 223 (2009)).
But the two-prong inquiry is no longer
Courts may now “‘exercise their sound discretion in
analysis should be addressed first in light of the circumstances
in the particular case at hand.’”
Id. (quoting Pearson, 555
U.S. at 236).
Indeed, Defendants focus solely on the first prong, arguing
that Dennis and Edsall’s Fourth and Fourteenth Amendment rights
Article 26 violations, but do not sufficiently allege Fourteenth
Amendment and Article 24 violations.
Specifically as it relates
to the qualified immunity of the individually named Defendants
in their individual capacities, the Court will deny Defendants’
Motion as to Counts I and II, but grant Defendants’ Motion as to
Counts III and IV.
The Court will also dismiss, for failure to
Fourth Amendment Unreasonable Search and Seizure
abundant caution, considering that qualified immunity in this
context is typically raised at the motion for summary judgment
See Whisman ex rel. Whisman v. Rinehart, 119 F.3d 1303,
1309 (8th Cir. 1997).
plausible Fourth Amendment violation.
They allege Defendants
violated their right to be free from unreasonable searches and
search their bags.
That freedom, undeniably guaranteed by the
Fourth Amendment, extends to school searches.
New Jersey v.
T.L.O., 469 U.S. 325, 333 (1985); DesRoches ex rel. DesRoches v.
Caprio, 156 F.3d 571, 574 (4th Cir. 1998) (citing T.L.O., 469
U.S. at 337)).
In most instances, a reasonable search under the
Id. at 574 (quoting Chandler v. Miller, 520 U.S.
reasonableness of a suspicion-based search by a school official
is determined by considering (1) if the action was justified at
its inception, and (2) if the search was permissible in scope.
Id. at 574–75 (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968))
(internal quotation marks omitted).
In fact, none of the courts in the cases Defendants rely
upon decided the Fourth Amendment issue at the motion to dismiss
stage. And in Moxley v. Town of Walkersville, 601 F.Supp.2d 648
(D.Md. 2009), which Defendants rely on to urge an early
resolution of the qualified immunity issue, this Court concluded
the defendants there were not entitled to qualified immunity at
the motion to dismiss stage. Id. at 665.
reasonableness determination requires the Court to examine the
Id. at 574 (quoting Chandler, 520 U.S. at 317–18).
There, the suspicion-less search “will be upheld only where the
government’s interests in conducting the search are substantial
Chandler, 520 U.S. at 318)
(internal quotation marks omitted).
Dennis and Edsall certainly have an expectation of privacy
in their bags, even though that expectation is reduced because
they are student athletes.
T.L.O., 469 U.S. at 337–38; id. at
348 (Powell, J., concurring); Vernonia Sch. Dist. 47J v. Acton,
reason to suspect Edsall, who did not admit to possessing a
dangerous weapon prior to the search, of any wrongdoing before
searching his bag.5
As for Dennis, who admitted to possessing a
dangerous weapon only after school officials instructed him to
place a sticker on his bag, Dennis and Edsall raise a valid
question as to what constituted the inception of the search.
They argue the inception may have been when Defendants gained
The Complaint does not allege that Edsall admitted to
having the butane lighter before officials searched his bag.
The Court accepts this factual scenario as true for the purposes
of this Motion, even though Defendants dispute whether Edsall
alerted school officials beforehand.
access to Dennis’s bag by asking him to place a sticker on it,
rather than when officials physically searched his bag.
(noting that a search occurs for Fourth Amendment purposes when
officials gain access to property in response to a demand under
color of authority), abrogated on other grounds by Kentucky v.
King, 131 S.Ct. 1849 (2011).
The difference is crucial in that
physically searched his bag but had no reason to suspect Dennis
of any wrongdoing when they instructed him to
place a sticker on it.
Because both searches may have been suspicion-less, it is
searches outweighed Dennis and Edsall’s lesser expectation of
The Fourth Amendment claim would benefit from a more
Accordingly, the Court will decline to dismiss it on
qualified immunity grounds.
Article 26 of the Maryland Declaration of Rights
Similar to their Fourth Amendment claim, Dennis and Edsall
Declaration of Rights because they lacked reasonable suspicion
requirements for a warrant, has been consistently construed as
State, 782 A.2d 862, 873 (Md. 2001).
Therefore, for the same
reasons the Court declines to dismiss Dennis and Edsall’s Fourth
Amendment claim, the Court will also decline to dismiss their
Article 26 claim on the basis of qualified immunity.
Fourteenth Amendment Procedural Due Process
Dennis and Edsall’s Fourteenth Amendment claim alleges that
they were not provided adequate notice that the small knives and
butane lighter would be dangerous weapons, depriving them of
their interest in a free public education in violation of due
The Fourteenth Amendment forbids state officials from
depriving any person of property without due process of the law.
without notice and the opportunity to be heard.
Id. at 574,
Dennis and Edsall argue nothing in the 2010-2011 Easton
High School Student Handbook (the “Student Handbook”) informed
them that they could be suspended for possessing small knives
undefined in the Student Handbook and that they possessed the
small knives and butane lighter, not as “dangerous weapons,” but
for use as tools in maintaining their lacrosse sticks.
unconstitutionally vague if it fails to establish standards for
the government and public that are sufficient to guard against
the arbitrary deprivation of liberty interests.”
rel. Hardwick v. Heyward, 711 F.3d 426, 442 (4th Cir. 2013)
(quoting City of Chicago v. Morales, 527 U.S. 41, 52 (1999))
(internal quotation marks omitted).
conduct is prohibited.
U.S. 352, 357 (1983)).
A law fails to establish
Id. (quoting Kolender v. Lawson, 461
Dennis and Edsall’s arguments must fail
for a number of reasons.
First, due process does not require school policies to be
as specific or exhaustive as Dennis and Edsall demand.
“[g]iven the school’s need to be able to impose disciplinary
sanctions for a wide range of unanticipated conduct disruptive
of the educational process, the school disciplinary rules need
not be as detailed as a criminal code.”
conduct are sufficient.
Bethel Sch. Dist. No.
The School Handbook provides a list of
infractions for which students may be suspended or recommended
EHS 2010-2011 Warrior Student Handbook, Talbot
Pepper Mace, Laser Pointers, Squirt Guns, Projectile Shooters,
denying that Dennis’s small knives fall squarely within that
Thus, to the extent it is not arbitrary or discriminatory, the
butane lighter’s inclusion as a dangerous weapon here does not
violate due process.
See Hardwick, 711 F.3d at 442 (“[T]he
discriminatory enforcement of the law.’” (quoting Morales, 527
U.S. at 56)).
It was neither arbitrary nor discriminatory that
school officials construed butane lighters as a dangerous weapon
here because they explicitly do so in other contexts of which
Dennis and Edsall were aware.
(See Compl. Ex. E, at 7, ECF No.
contraband on parking permit applications).
Second, their intention to use the small knives and butane
intent “to [e]nsure a safe and orderly atmosphere.”
2011 Warrior Student Handbook at 15.
School policies are not
open to due process challenges simply because a student wishes
to use a dangerous weapon for a non-deadly purpose.6
Lastly, to the extent their argument genuinely implicates
the notice requirement, Dennis and Edsall’s suspensions meet the
due process requirements established in Goss.
against them, written or orally, and the evidence upon which
those charges are based.
See Goss, 419 U.S. at 581.
told on several occasions what their infractions were and the
informed Dennis and Edsall that the grounds for suspension were
for possessing a dangerous weapon on school property.
Salmon and again by the Board, and later reversed in writing by
the State Board.
Dennis and Edsall were aware at all times of
Indeed, in its decision affirming Edsall’s one-day
suspension, the Board noted that the possession of a dangerous
weapon is a strict liability offense. (Compl. Ex. E, at 9). As
unfortunate as these circumstances are, the Court must adhere to
the notion “‘that ignorance of the law will not excuse any
person’” from liability.
Jerman v. Carlisle, McNellie, Rini,
Kramer & Ulrich LPA, 559 U.S. 573, 581 (2010) (quoting Barlow v.
United States, 32 U.S. 404, 411 (1833)).
constitutionally sufficient notice.7
Accordingly, Dennis and Edsall’s Fourteenth Amendment claim
does not sufficiently allege a Fourteenth Amendment violation,
and the Court will dismiss it against the individually named
insufficiently alleged, the claim will also be dismissed as to
the remaining Defendants.
See Eriline Co. S.A. v. Johnson, 440
F.3d 648, 655 n.10 (4th Cir. 2006) (citing 5A Wright & Miller,
Federal Practice & Procedure § 1357 (2d ed. 1990)) (noting that
the Court may dismiss a complaint for failure to state a claim
Dennis and Edsall also argue they received insufficient
notice because the school failed to follow its own procedure in
suspending students only after “repeated rule infraction, and
(Pls.’ Mem. Opp’n Defs.’ Mot. Dismiss at 14, ECF
No. 6). This argument must also fail. Even though the school
failed to follow its own procedure, its disciplinary actions
adhered to the minimum due process requirements. See Ratner v.
Loudoun Cnty. Pub. Sch., 16 F.App’x 140, 142 (4th Cir. 2001)
(upholding a school’s procedure as constitutional, even where it
Moreover, there is nothing to suggest
Defendants did not comport with Maryland suspension procedures
or the Board’s due process requirements.
See Md. Code Ann.,
Educ. § 7-305(a) (West 2014); Board Policies, Talbot County
PENSION.pdf (requiring the student and his parent be given
notice of the charges against him and have the opportunity to
present his side of the story).
sua sponte if it plainly fails to state a claim for relief on
Article 24 of the Maryland Declaration of Rights
Edsall allege they were deprived of their right to receive a
free public education in violation of Article 24 of the Maryland
As such, Maryland “courts have long
equated the Due Process Clause and Article 24.”
for the same reasons the Court will dismiss Dennis and Edsall’s
qualified immunity grounds, their Article 24 claim as to the
individually named Defendants in their individual capacities.
The Court will also dismiss their Article 24 claim as to the
remaining Defendants because it is insufficiently alleged.
Order, grant in part and deny in part Defendants’ Motion to
(ECF No. 3).
Count I will be dismissed against the
Counts III and IV will be dismissed against all
Motion as to Count II and the remaining Defendants in Count I.8
Entered this 8th day of May, 2014
George L. Russell, III
United States District Judge
The remaining claims and Defendants will be as follows:
(1) the individually named Defendants in their individual
capacities remain in Count I; and (2) the Board and the
individually named Defendants in their official and individual
capacities remain in Count II.
Count I is the sole remaining
claim in which the Court has federal question jurisdiction. As
such, for Count II, the Court will exercise pendent party
Defendants in their official capacities.
See Price v. Pierce,
823 F.2d 1114, 1119 (7th Cir. 1987); Moore v. Marketplace Rest.,
Inc., 754 F.2d 1336, 1359–60 (7th Cir. 1985).
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