Doe et al v. The Board of Education for Washington County,et al

Filing 21

MEMORANDUM. Signed by Judge J. Frederick Motz on 8/6/2015. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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JOHN AND JANE DOE,
v.
BOARD OF EDUCATION OF
WASHINGTON COUNTY, et al

Civil No. JFM-15-00074

MEMORANDUM
Plaintiffs John and Jane Doe, individually and as parents and next friends of their minor
child, J.D., bring this lawsuit against the Board of Education of Washington County, Maryland
(“the Board”) and Adam K. Robinson (collectively “defendants”), alleging that they violated
J.D.’s civil rights and are responsible for the severe personal injuries he sustained. Plaintiffs
seek relief under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 et
seq; Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794 et seq; and Maryland
tort law.
Defendants have filed a pending joint motion to dismiss all of plaintiffs’ claims against
Robinson and several of their claims against the Board. The motion is fully briefed, and no oral
argument is necessary. See Local Rule 105.6. For the reasons set forth below, the motion to
dismiss is granted in part and denied in part.
BACKGROUND
During the time period relevant to plaintiffs’ claims, September 2011–January 2012, J.D.
was enrolled in eighth grade at E. Russell Hicks Middle School in Washington County. (Am.

Compl., ECF No. 15-1 ¶ 8).1 That fall was J.D.’s first semester at Hicks Middle School because
he and plaintiffs had recently moved to Washington County. (Id. ¶ 7). J.D. had been enrolled in
special education programs since kindergarten because of his documented intellectual
disabilities, reflected by low scores on cognitive ability tests. (Id. ¶ 6). J.D. is required to have
an Individualized Education Program (“IEP”) prepared and implemented by his school which
documents his disabilities and develops goals and a curriculum tailored for him. Ms. Doe met
with J.D.’s IEP team at Hicks Middle School in the fall of 2011 where it was decided that J.D.
would be placed in all special education classes except for gym class and lunch. (Id. ¶ 10).
During J.D.’s eighth grade school year, Robinson was an Assistant Principal at Hicks Middle
School. (Id. ¶11).
Only weeks into the school year—in September 2011—students at Hicks Middle School
began bullying J.D. Plaintiffs were told that J.D. was intentionally hit on the head by another
nondisabled student during gym class because J.D. was a “special needs student.” (Id. ¶ 12).
J.D. continued to be bullied, typically in the hallway while he walked between classes. In
response, defendants decided to allow J.D. to leave classes early to access his locker before the
other students left class. Not all of J.D.’s teachers were informed, however, and accordingly he
was still confronted and bullied. (Id. ¶ 13). Plaintiffs met personally with Robinson in
November 2011, where he expressed concern about J.D. being the victim of bullying and in
particular noted the potential danger of the lunch room because the size and layout prevented
constant supervision by the teachers. (Id. ¶ 16). Robinson offered to allow J.D. to eat lunch in
Robinson’s office to avoid the lunchroom; an arrangement that continued through the winter
recess at the end of December 2011. (Id. ¶¶ 16–17).
1

Although the amended complaint was filed after the motion to dismiss, the amended complaint
only changed the numbering of the paragraphs. Accordingly, the motion to dismiss remains ripe.
2

In January 2012, however, without plaintiffs’ knowledge, J.D. began eating in the
cafeteria with the other students. (Id. ¶ 18). On January 30, 2012 around 12:15, a group of
students convinced J.D.—who was allegedly known as willing “to do things” if asked—to
provoke a student “known to be violent.” J.D. complied based on his comprehension issues and
desire to be accepted. (Id. ¶ 19). The student who J.D. provoked was indeed violent and
proceeded to viciously attack J.D. while he lay on the ground without the supervising teachers’
knowledge. The student continued to kick J.D. in the head while wearing steel-toe boots until
another student intervened. (Id. ¶ 20). J.D. was transported to a hospital for treatment, where he
was diagnosed with a concussion, facial lacerations, and a fractured orbital socket. J.D. suffered
a traumatic brain injury which caused numerous permanent injuries ranging from headaches to
light sensitivity, binocular vision disorder, convergence insufficiency, ocular motor palsy,
accommodative disorder, diplopia, asthenopia, left visual spatial neglect, quadrantanopia, and
visual processing impairment. (Id. ¶ 20).
Plaintiffs filed a complaint in this court on January 9, 2015, seeking monetary relief
under the ADA, Section 504 of the Rehabilitation Act, and Maryland tort law against the Board
and Robinson for violations of J.D.’s civil rights and the personal injuries he sustained from the
January 30, 2012 incident. Defendants filed a motion to dismiss, which argues that all claims
against Robinson and several against the Board should be dismissed. (ECF No. 6).
STANDARD
When ruling on a motion brought under Rule 12(b)(6), the court must “accept the wellpled allegations of the complaint as true,” and “construe the facts and reasonable inferences
derived therefrom in the light most favorable to the plaintiff.” Ibarra v. United States, 120 F.3d
472, 474 (4th Cir. 1997). “Even though the requirements for pleading a proper complaint are

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substantially aimed at assuring that the defendant be given adequate notice of the nature of a
claim being made against him, they also provide criteria for defining issues for trial and for early
disposition of inappropriate complaints.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.
2009). “The mere recital of elements of a cause of action, supported only by conclusory
statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6).” Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). To survive a motion to dismiss, the factual allegations of a complaint “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).” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal citations and alterations omitted). “To satisfy this standard, a plaintiff need
not ‘forecast’ evidence sufficient to prove the elements of the claim . . . . However, the complaint
must allege sufficient facts to establish those elements.” Walters, 684 F.3d at 439 (internal
citations and quotation marks omitted). “Thus, while a plaintiff does not need to demonstrate in
a complaint that the right to relief is ‘probable,’ the complaint must advance the plaintiff’s claim
‘across the line from conceivable to plausible.’” Id. (quoting Twombly, 550 U.S. at 570).
ANALYSIS
Plaintiffs’ amended complaint contains four counts, all against both defendants: violation
of the ADA (Count I), Section 504 (Count II), negligence (Count III), and gross negligence
(Count IV). This section is organized by defendant rather than by count to more efficiently
address the merits of the motion to dismiss.
As an initial note, defendants agree that the January 30, 2012 incident is within the
applicable three-year statute of limitations, Md. Code Ann., Cts. & Jud. Proc. §5-101. They
nonetheless argue, however, that all factual incidents outside the statute of limitations “are time-

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barred.” (ECF No. 6-1 at p. 7). I disagree. The Supreme Court has clearly held that as long as
the claim for relief is timely, a plaintiff may use “prior acts as [relevant] background evidence in
support of a claim.” Nat. R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 112–13 (2002).
Because plaintiffs cite facts from September 2011–January 2012 to provide relevant background
and context, I will consider them as such. Cf. Ervine v. Desert View Reg'l Med. Ctr. Holdings,
LLC, 753 F.3d 862, 870 (9th Cir. 2014) (“A claim under the [Rehabilitation] Act will not be
untimely merely because similar, even identical, violations of the Act occurred outside the
statutory period.”).
I. Claims Against Robinson.
Robinson moves to dismiss all four counts against him. Each is discussed below.
A. ADA and Section 504 claims.
Robinson moves to dismiss plaintiffs’ two federal statutory causes of action against
him—counts I and II—by arguing that neither statute contemplates personal liability. Plaintiffs
agree that Robinson cannot be liable in his individual capacity, but claim that they seek relief
against Robinson in his official capacity. Because that would duplicate their federal claims
against the School Board, I will dismiss counts I and II against Robinson.
Courts in this District have routinely held that neither the ADA or Section 504 provide
for “personal liability” or “individual liability,” respectively. See, e.g., Young v. Barthlow, Civ.
No. 07-552, 2007 WL 5253983, at *2 (D. Md. Nov. 7, 2007), aff’d, 267 F. App’x 250 (4th Cir.
2008). Plaintiffs insist that their federal statutory claims against Robinson remain viable,
however, because they allege violations while Robinson acted in his official capacity as Assistant
Principal. See, e.g., Adams v. Montgomery Coll. (Rockville), 834 F. Supp. 2d 386, 396 (D. Md.
2011) (characterizing a claim against a state official in his official capacity as “a suit against the

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official’s office”) (quoting Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989) (internal
quotation marks omitted)). Although official-capacity claims are treated differently than
individual-capacity claims, that distinction is not helpful to plaintiffs here.
That is because several courts—including the Adams court cited above—have dismissed
ADA and Section 504 claims against individuals in their official capacity when the same claims
are also brought against the government entity that employs them. See Adams, 834 F. Supp. 2d
at 396 (“But as established above, Plaintiff states a valid cause of action under the ADA against
the College. There is thus no need to pursue a claim against Defendants . . . in their official
capacities.”); see also Munoz v. Balt. Cnty., Md., Civ. No. 11-2693, 2012 WL 3038602, at *5 (D.
Md. July 25, 2012) (dismissing as “redundant” plaintiff’s claims against individual supervisors in
their official capacities). I am persuaded by the reasoning of those courts. Because plaintiffs’
claims for relief under the ADA and Section 504 against the Board are identical to those against
Robinson, and those claims remain viable (discussed further below, infra, Section II.A), Counts I
and II as to Robinson are dismissed.
B. Plaintiffs have not adequately pleaded a claim for gross negligence.
Count IV of plaintiffs’ amended complaint alleges that Robinson’s conduct constitutes
gross negligence under Maryland law. Courts have utilized slightly different language to
describe gross negligence, but all agree that it is a demanding standard. See Doe v. Bd. of Educ.
of Prince George’s Cnty., 982 F. Supp. 2d 641, 658–59 (D. Md. 2013) (“Gross negligence
connotes wanton and reckless disregard for others.”) (internal quotation marks omitted); Wells v.
State, 642 A.2d 879, 885 (Md. Ct. Spec. App. 1994) (“[M]alice, evil intention, or wanton,
willful, or reckless disregard for human life or the rights of others.”); Foor v. Juvenile Services
Admin., 552 A.2d 947, 956 (Md. Ct. Spec. App. 1989) (“[S]o utterly indifferent to the rights of

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others that he acts as if such rights did not exist.”). As alleged by plaintiffs, Robinson’s conduct
does not meet this high bar.
Viewing the allegations in a light most favorable to plaintiffs, Robinson failed to
reasonably prevent the January 30 assault of J.D. despite being aware of the ongoing bullying of
J.D., plaintiffs’ concerns, and Robinson’s knowledge that having J.D. eat in his office was an
effective solution from November–December 2011. Plaintiffs have failed, however, to allege
facts which demonstrate the necessary “wanton and reckless disregard,” “malice,” and “utter[]
indifferen[ce]” necessary under Maryland law. This is best demonstrated by comparing these
facts to similar cases. In Doe v. Bd. of Educ. of Prince George’s Cnty., the plaintiffs argued that
the school board’s and vice principal’s “utter indifference” to the plaintiff-student’s rights caused
and allowed ongoing sexual assault. The Doe court disagreed, holding that although defendants
ultimately failed to protect the student, the steps they did take foreclosed any plausible claim that
they were “utterly indifferent.” Doe, 982 F. Supp. 2d at 659 (describing defendants’
acknowledgment that the student had a right to be safe and free from harassment, their
investigation of certain incidents, and the fact that they “took steps to remedy the harassment”);
see also Nkemakolam v. St. John’s Military Sch., 890 F. Supp. 2d 1260, 1263 (D. Kan. 2012)
(holding that Principal’s failure to protect student despite promising he would and prior
knowledge of certain students’ “dangerous propensities” was not a plausible claim for gross
negligence). Here, likewise, Robinson met with plaintiffs, expressed concern about J.D. and
offered a solution that worked for several months. Those actions preclude plaintiffs from
meeting the necessary threshold to move their gross negligence claim forward. Count IV of their
complaint is accordingly dismissed as to Robinson.

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C. Robinson cannot be liable for negligence pursuant to the Coverdell Act.
In addition to alleging gross negligence, plaintiffs claim in Count III that Robinson
negligently addressed J.D.’s bullying which culminated in his January 30 beating and
corresponding debilitating injuries. Rather than contest the merits, Robinson argues in response
that he cannot be liable because of statutory immunity under the Paul D. Coverdell Teacher
Protection Act of 2001, 20 U.S.C. § 6736(a). Based on the text of the statute as well as the
limited case law interpreting it, I conclude that Robinson is immune from plaintiffs’ negligence
claim and accordingly dismiss Count III as to him.
As a preliminary matter, plaintiffs are correct to note that immunity under the Coverdell
Act is an affirmative defense in which Robinson bears the burden of proof. Moreover, Rule
12(b)(6) motions “generally cannot reach the merits of an affirmative defense” because the only
relevant “facts” are allegations in the plaintiff’s complaint. Goodman v. Praxair, Inc., 494 F.3d
458, 464 (4th Cir. 2007). The Goodman court went on to hold, however, that there are
“relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged
in the complaint” and, therefore, a court can rule on an affirmative defense at the Rule 12(b)(6)
stage. Id. This case is one of those situations, as evidenced by other courts which have
addressed a Coverdell Act defense while ruling on a motion to dismiss. See, e.g., Dennis v. Bd.
of Educ. of Talbot Cnty., 21 F. Supp. 3d 497, 502 (D. Md. 2014).
Addressing the merits of Robinson’s defense, the Coverdell Act immunizes any “teacher”
(including a principal or administrator) “for harm caused [to a student] by an act or omission of
the teacher on behalf of the school if” five conditions are met. 20 U.S.C. § 6736(a)(1)–(5). Of
those five, plaintiffs contest two—the second element, which requires that the alleged unlawful
conduct be taken “in furtherance of efforts to control, discipline, expel, or suspend a student or

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maintain order or control in the classroom or school”; and the fourth element, which requires the
conduct not constitute “gross negligence, reckless misconduct, or a conscious, flagrant
indifference to the rights or safety of the individual harmed by the teacher.”
Plaintiffs first argue that Robinson’s alleged acts and omissions were not carried out “in
furtherance of efforts to control, discipline . . . or maintain order or control in the classroom or
school.” Because § 6736(a) clearly encompasses acts and omissions, the fact that plaintiffs
allege Robinson failed to take steps to protect J.D. does not by itself prevent granting Robinson
immunity. Instead, the legal question here is whether the type of actions Robinson did or did not
take were done “in furtherance” of maintaining order and discipline. Certain cases would
obviously fit the statutory text, like a teacher accidently injuring a student while intervening to
break up a fight. I conclude that § 6736(a)(2) is sufficiently broadly worded to also encompass
the facts here. Robinson’s alleged acts and omissions only concerned J.D.’s safety and
Robinson’s ultimate failure to protect J.D. from the bullying which culminated in his severe
injuries. Conduct designed to prevent bullying is certainly tied to the overall goal of maintaining
order and control. Indeed, the fact that J.D. was beaten so severely, allegedly in the middle of
the lunch room, suggests that reasonable control and order was lacking. Accordingly,
Robinson’s alleged acts and omissions regarding J.D. are the kind intended to be protected by the
Coverdell Act as evidenced by its text. See Nkemakolam, 890 F. Supp. 2d at 1263 (granting the
President of the school Coverdell immunity based on plaintiffs’ allegation that he “failed to
supervise and control the conduct of students at the school”).
Next, plaintiffs argue that Robinson’s conduct does not satisfy § 6736(a)(4) because it
constitutes gross negligence. As was discussed above, however, in Section I.B, supra, plaintiffs’
gross negligence claim does not sufficiently plead a claim to relief. Just as plaintiffs cannot

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maintain an independent gross negligence claim, neither can they cite gross negligence to
prevent immunizing Robinson under the Coverdell Act.
In conclusion, the facts alleged by plaintiffs sufficiently prove that Robinson is entitled to
immunity under the Coverdell Act.2 The decisions he made on whether to act, or not act, are the
kind intended to be protected by this federal statute. Robinson, therefore, cannot be liable for
negligence and Count III of plaintiffs’ amended complaint is dismissed as to him.
II. Claims Against the School Board.
The Board only moves to dismiss Counts I, II, and IV against it. Each is discussed in turn
below.
A. Plaintiffs were not required to exhaust their federal statutory claims.
The Board argues that plaintiffs were required to administratively exhaust their ADA and
Section 504 claims pursuant to the Individuals with Disabilities Act (“IDEA”), 20 U.S.C. §
1415(1), but failed to do so. I conclude that plaintiffs were not required to exhaust their claims
and accordingly deny the Board’s motion to dismiss Counts I and II.
Whenever a lawsuit involves the treatment a disabled child received while at school, the
IDEA is implicated. The IDEA is a comprehensive statute that “provides a panoply of
procedural rights to parents to ensure their involvement in decisions about their disabled child’s
education.” Sellers v. Sch. Bd. of City of Manassas, 141 F.3d 524, 527 (4th Cir. 1998).
Concerns and complaints about the disabled child’s education can be raised, but must be heard
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Although not raised by plaintiffs, it is worth noting that their case likely does not fall within
one of the statutory exceptions to the Coverdell Act’s limitations on liability. The exception
closest to this case is (C), which precludes immunity for conduct “been found to have violated a
Federal or State civil rights law.” § 6736(d)(1)(D). Because Robinson cannot be liable under the
ADA or Rehabilitation Act, however, there is no “civil rights law” violation alleged by
plaintiffs—only Maryland common law. The Coverdell Act was enacted precisely to “target tort
. . . causes of action that may, for whatever reason, find their way into federal court.” Dennis, 21
F. Supp. 3d at 502.
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“by the State educational agency or by the local education agency, as determined by State law.”
20 U.S.C. § 1415(f)(1)(A); see also M.M. v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 535
(4th Cir. 2002) (“It is clear that, under the IDEA, parents asserting a violation of the IDEA must
first request a due process hearing.”). Although relief for violations of a disabled child’s rights
may be available under multiple statutes, the IDEA expressly requires exhaustion of claims
under “other Federal laws protecting the rights of children with disabilities . . . seeking relief that
is also available under this subchapter.” 20 U.S.C. § 1415(l) (emphasis added). Plaintiffs need
not exhaust their claims, however, if “the administrative process would have been futile.” MM
ex rel. DM, 303 F.3d at 536. Accordingly, the question presented here is whether plaintiffs’
ADA and Section 504 claims triggered § 1415(l)’s exhaustion requirement or, alternatively,
exhaustion would have been futile and thus not necessary. Courts in this District have not
reached a consensus, nor has the Fourth Circuit ruled on this issue. Based on my interpretation
of § 1415(l), plaintiffs have the better argument.
My conclusion is based on the injury alleged by plaintiffs and the type of remedy sought
to redress it—personal injuries and monetary damages, respectively. As one court recently
articulated, “the principal form of relief under the IDEA is prospective benefits, in the form of
education accommodations.” Reid v. Prince George's Cnty. Bd. of Educ., 60 F. Supp. 3d 601,
606 (D. Md. 2014). The procedural safeguards provided by the IDEA are designed to allow
parental involvement with their child’s ongoing education, and envisions parents and the school
jointly addressing problems that arise. The IDEA is necessarily forward-looking, and is not “a
forum for tort-like claims of educational malpractice.” Sellers, 141 F.3d at 527. Accordingly,
the “IDEA does not provide for compensatory or punitive damages.” Id. at 525. That form of
relief, however, is precisely what plaintiffs are seeking in this case because J.D.’s injuries have

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already been sustained. Although his parents obviously desire to prospectively prevent such
harm from occurring again, their complaint in this case is focused solely on the past. Moreover,
plaintiffs are seeking compensation for personal injuries, not an educational injury. The IDEA
encompasses only the latter.
Because monetary relief is unavailable under the IDEA, exhaustion of plaintiffs’ ADA
and Section 504 claims would be futile and, therefore, was not required in this case. See Reid, 60
F. Supp. 3d at 608 (holding that because monetary compensation “is something the IDEA simply
cannot provide, requiring [plaintiff] to use, much less exhaust, the IDEA administrative
procedures would be an exercise in futility”); see also McCormick v. Waukegan Sch. Dist. No.
60, 374 F.3d 564, 569 (7th Cir. 2004) (holding that plaintiff was not required to exhaust his
damages claim to compensate for his “permanent physical injuries that will reduce the quality of
his life” because that physical injury “is not educational; no change to his IEP could remedy,
even in part, the damage done”).3 Accordingly, the Board’s motion to dismiss Counts I and II as
to it is denied.
B. Plaintiffs have not adequately pleaded a claim for gross negligence.
The Board also moves to dismiss plaintiffs’ gross negligence claim against it (Count IV)
for two reasons: procedurally, plaintiffs abandoned this claim by failing to respond in their

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But see Wright v. Carroll Cnty. Bd. of Educ., Civ. No. 11-3103, 2012 WL 1901380 (D. Md.
May 24, 2012). Although the Wright court reached the opposite conclusion on somewhat similar
facts, one of the cases it cited in support is distinguishable—S.E. v. Grant Cnty. Bd. of Educ.,
544 F.3d 633, 642 (6th Cir. 2008). The S.E. plaintiffs’ Section 504 claim specifically implicated
the disabled student’s educational plan, which is precisely the kind of procedural issue
encompassed by the IDEA. S.E., 544 F.3d at 633 (noting that plaintiffs alleged the School Board
“routinely, consistently, and purposefully failed to implement the components of” the disabled
child’s educational plan”). Here, in contrast, plaintiffs make no allegations regarding the quality
of J.D.’s education—they focus solely on defendants’ alleged failures which resulted in J.D.’s
personal injuries.
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response in opposition brief, and substantively, their claim fails on the merits for the same
reasons it did as to Robinson. I agree with the School Board on its substantive argument and
accordingly dismiss Count IV as to it.
The Board first attempts to dismiss Count IV by claiming that plaintiffs abandoned this
claim when they failed to address it in their response in opposition brief. See, e.g., FerdinandDavenport v. Children’s Guild, 742 F. Supp. 2d 772, 777 (D. Md. 2010) (“By her failure to
respond to this argument, the plaintiff abandons [that] . . . claim.”). Although plaintiffs did focus
the gross negligence section of their response brief solely on Robinson, that was arguably done
in response to defendants’ similar focus on Robinson’s conduct in its brief accompanying the
motion to dismiss. Defendants argued why Robinson’s conduct did not rise to the high standard
of gross negligence—on which I agree—but only mentioned the Board in the subheading title.
There were no arguments regarding the Board, therefore, for plaintiffs to respond to. Rather than
deem plaintiffs’ claim abandoned, I will assume that the omission of any specific arguments and
facts against the Board indicates that plaintiffs’ gross negligence claim against the Board is based
on a respondeat superior or vicarious liability theory.
As described above, however, I conclude that plaintiffs have not adequately pleaded a
plausible claim that Robinson was grossly negligent. His alleged conduct does not rise to the
high standard characterized by courts as requiring a showing of malice, evil intention, utter
indifference, and reckless disregard. Absent a claim against Robinson, plaintiffs’ claim against
the Board also necessarily fails. Count IV is also dismissed as to the Board.

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CONCLUSION
For the aforementioned reasons, defendants’ motion to dismiss is granted in part and
denied in part. Plaintiffs’ claims against Robinson are all dismissed, and Count IV is dismissed
as to the Board.4

08/06/2015

/s/
J. Frederick Motz
United States District Judge

Date

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Plaintiffs concede that their recovery is limited to $100,000 if the Board is found negligent
under Count III. See Md. Code Ann., Cts. & Jud. Proc. § 5-518(b). Moreover, plaintiffs cannot
recover punitive damages because the only claim for which they were available—gross
negligence—is dismissed. Finally, plaintiffs acknowledge that attorneys’ fees are only
recoverable under the ADA and Rehabilitation Act.
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