Nelson-Molnar v. Ann Arbor Public Schools et al
Filing
30
OPINION AND ORDER Granting in Part and Denying in Part Defendant Ann Arbor Public Schools' Motion to Dismiss 21 . Signed by District Judge George Caram Steeh. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAIME NELSON-MOLNAR
individually and as next friend
of J.W., a minor,
Plaintiffs,
vs.
Case No. 23-CV-11810
HON. GEORGE CARAM STEEH
ANN ARBOR PUBLIC SCHOOLS,
MICHAEL JOHNSON, in his official
capacity as Principal of Carpenter
Elementary School, and DURHAM
SCHOOL SERVICES LP, d/b/a
DURHAM TRANSPORTATION,
Defendants.
___________________________/
OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANT ANN ARBOR
PUBLIC SCHOOLS’ MOTION TO DISMISS (ECF No. 21)
Plaintiff Jaime Nelson-Molnar (Nelson) filed this action individually
and as next friend of her son J.W. against defendants Ann Arbor Public
Schools (AAPS or the District), Michael Johnson, and Durham School
Services LP, d/b/a Durham Transportation (Durham). Plaintiffs allege
defendants created a dangerous environment in which J.W., Nelson’s
seven-year-old child who is autistic and emotionally impaired, was
repeatedly physically and verbally abused by a school bus aide. The matter
is before the Court on AAPS’s motion to dismiss under Fed. R. Civ. P.
12(b)(6) for failure to state a claim against the District for violating plaintiffs’
due process rights under the Fourteenth Amendment (Count II),
discrimination in violation of the Americans with Disabilities Act (Count IV)
and Section 504 of the Rehabilitation Act (Count V), disability discrimination
under Michigan’s Persons with Disabilities Civil Rights Act (Count VI),
failure to report child abuse under Michigan Child Protection Law (Count
VII), and intentional infliction of emotional distress (Count VIII). 1
Upon a careful review of the written submissions, the Court deems it
appropriate to render its decision without a hearing pursuant to Local Rule
7.1(f)(2). For the reasons set forth below, defendant’s motion to dismiss is
granted in part and denied in part.
FACTUAL BACKGROUND2
J.W. has been diagnosed as autistic and emotionally impaired. Based
on his disability, AAPS recommended J.W. for Carpenter Elementary
School’s Emotionally Impaired Self-Contained Classroom (EISCC). For
transportation home from school, AAPS assigned J.W. to Bus 17, which
Defendants Johnson and Durham have not filed motions to dismiss.
The factual background is taken from the allegations in plaintiffs’ complaint (ECF No.
1).
1
2
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was dedicated for children with special needs. Bus 17 was operated by
defendant Durham, and Rochanda Jefferson was the assigned bus aide.
Prior to J.W. being assigned to Bus 17, AAPS and Durham had
notice of prior incidents of bus staff assaulting children with disabilities. For
example, a police report was filed regarding an incident on October 18,
2016 in which an AAPS/Durham bus aide hit a disabled child in the
stomach after the child swatted at him. AAPS and Durham had also
received prior complains that Jefferson behaved in a way that was
threatening and aggressive.
On December 6, 2021, J.W. started second grade at Carpenter.
When the bus dropped J.W. off at his house after his first day of school,
bus aide Jefferson got off the bus and told Nelson that J.W. “swung out at
me and I can’t hit him, so I don’t know what you want me to do.” Nelson
asked Jefferson if anyone had talked to her about J.W.’s special education
needs, and Jefferson said no.
The next day, Nelson called J.W.’s classroom teacher, Sara Operacz,
to inform her of the bus incident and ask the school to talk with the bus
provider. Shortly afterwards, Operacz told Nelson that she reported the
incident to Principal Michael Johnson. Operacz also told Nelson that she
observed escalated behavioral issues for J.W. at the end of the day when
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he anticipated having to ride the bus. On December 13, 2021, Nelson
texted Johnson asking his opinion about continuing to have J.W. ride the
bus. Johnson responded that J.W. should ride the bus and told Nelson not
to tell any teachers.
On Tuesday, December 14, 2021, at approximately 4:30 pm, Nelson
received a phone call from the AAPS Transportation Dispatch. The
dispatcher said that J.W. was having behavioral issues on the bus and that
Nelson may need to pick him up. Video from Bus 17 from December 14,
2021 allegedly shows that J.W. moved between different seats and crawled
onto the floor while the bus was in motion. J.W. swiped his arm at Jefferson
and Jefferson audibly responding: “I’m gonna hit you back. . . . I whoop
kids.” J.W. ran to the back of the bus where he sat for several minutes. The
bus driver stopped the bus and attempted to carry J.W. from the back of
the bus to his original seat at the front, where Jefferson had set up a star
harness to restrain J.W. 3 Jefferson took J.W. from the bus driver and
carried him by his arms to the front of the bus. J.W. began to scream and
flail his arms. Jefferson attempted to force J.W. into the STAR harness,
Under Michigan law, the “star harness” is restricted for emergency use where a
student’s behavior poses an imminent risk to their own safety or the safety of others.
MCL 380.1307 et seq. Using the star harness for J.W. was in violation of his
individualized education plan (IEP) with the school district.
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only partially restraining him. The video allegedly shows J.W. screaming in
the harness, while Jefferson hits him repeatedly.
At approximately 5:00 pm, the bus arrived at Nelson’s house. Nelson
was standing outside to meet J.W., unaware what had transpired on the
bus. J.W. ran off the bus, past Nelson, into the house, and locked the door.
J.W. hid behind the front door sobbing. The next day, multiple Carpenter
students reported to a teacher and a social worker at AAPS that they saw
Jefferson hit J.W. on the bus. The social worker took witness interviews
and wrote reports about the incident and gave them to Johnson.
On December 15, AAPS Transportation Dispatch called Nelson and
instructed her to pick J.W. up from the bus, which was about 10 minutes
away from the house. When Nelson arrived, the bus was stopped on the
side of the road and J.W. was inside the bus, banging on the door to get
out. He was not wearing his shoes or coat and his belongings were strewn
around the bus. J.W. was shaking and sweating. Nelson texted Operacz to
inform her about the incident. Durham never reported the incident to AAPS.
On December 16, Operacz contacted Johnson about the December
14 assault on J.W. as reported by the students. Defendants did not
document that J.W. was restrained in a star harness, did not report the
December 14 assault to Child Protective Services, and did not notify
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Nelson about the incident. Meanwhile, J.W. continued to ride the bus with
Jefferson, who persisted in making threatening comments to J.W. On
multiple occasions J.W. became distressed and Jefferson restrained him in
a star harness.
On January 14 and 18, Operacz emailed Johnson again about the
danger Jefferson posed to J.W. on the bus. On January 18, Operacz also
sent an email to Johnson, administrator Terra Webster, and special
education teacher Derek Gramza. The email stated in part:
I am very concerned about this situation and the safety of our
students. . . . I haven’t received an update on the allegations
that were shared. I am concerned that I am going to lose all
credibility with mom when she finds out that I knew about these
allegations and didn’t tell her. I also don’t feel comfortable
keeping this from mom.
On January 19, Johnson sent an email to Nelson acknowledging “two
incidents” on the bus that “resulted in unsafe conditions” for J.W. Johnson
stated that he was aware of the allegations and requested an investigation
from Durham in December. Audra Holdorf, Assistant Director of Student
Intervention and Support Services for AAPS, was copied on Johnson’s
email and responded: “Thank you Carpenter team for working with the
family and the staff to resolve this safety concern from the bus . . . Durham
has retrieved the video and we are reviewing it to investigate.” That
evening, Operacz revealed to Nelson that some kind of assault had
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occurred on the bus, as reported by multiple students. January 19 was the
first time Nelson was informed that J.W. had been assaulted on the bus
and that there was a video of the incidents.
Holdorf told Nelson that video taken December 15 did not show an
assault on J.W. However, video from December 14, the date of the
reported assault by Jefferson, was not reviewed. Nelson repeatedly asked
to see the videos but her requests were denied. Based on Johnson’s
January 19, 2022 email, which stated there were two separate assaults on
J.W., as well as J.W.’s statement to Nelson that Jefferson hit him more
than one time, plaintiffs allege that between December 15, 2022 and
January 19, 2022, Jefferson assaulted J.W. at least one additional time.
On January 24th, J.W. began riding with a new bus aide. That day,
the bus driver apologized to Nelson and confirmed Jefferson was “rough”
with J.W. By February 8, 2022, J.W. had ridden the bus with four different
aides without incident.
Nelson did not discover the severity of the December 14 assault until
April 2022 when she viewed the surveillance video with police. J.W.
transferred to a new school on April 6, 2022. On June 28, 2023, following a
bench trial in Washtenaw County 14A District Court, Jefferson was found
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guilty of 4th degree child abuse for the December 14, 2022 assault on J.W.
People v. Jefferson, Case No. 2022-221-1481.
STANDARD OF LAW
Rule 12(b)(6) allows the Court to make an assessment as to whether
the plaintiff has stated a claim upon which relief may be granted. Under the
Supreme Court’s articulation of the Rule 12(b)(6) standard in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 554-56 (2007), the court must construe
the complaint in favor of the plaintiff, accept the allegations of the complaint
as true, and determine whether plaintiff’s factual allegations present
plausible claims. “‘[N]aked assertions’ devoid of ‘further factual
enhancement’” are insufficient to “‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 557, 570). To survive a Rule 12(b)(6) motion to dismiss,
plaintiff’s pleading for relief must provide “‘more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do.’” D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014)
(quoting Twombly, 550 U.S. at 555). Even though the complaint need not
contain “detailed” factual allegations, its “‘factual allegations must be
enough to raise a right to relief above the speculative level on the
assumption that all of the allegations in the complaint are true.’” New
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Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir.
2011) (quoting Twombly, 550 U.S. at 555).
ANALYSIS
I.
State-Created Danger (Count II)
The Fourteenth Amendment provides that no state can deprive a
person of life, liberty, or property without due process. U.S. Const. amend.
XIV, § 1. However, “nothing in the language of the Due Process Clause
itself requires the State to protect the life, liberty, and property of its citizens
against invasion by private actors.” DeShaney v. Winnebago Cnty. Dep't of
Soc. Servs., 489 U.S. 189, 195 (1989). Generally, “a State's failure to
protect an individual against private violence simply does not constitute a
violation of the Due Process Clause.” Id. at 197. An exception exists in
instances where the State renders a person “more vulnerable to” the
dangers to which he was exposed. Id. at 201. This is known as the statecreated danger doctrine, which imposes a duty on the State to protect its
citizens from risks of harm that are caused or greatly increased through its
own affirmative acts. Jones v. Reynolds, 438 F.3d 685, 690 (6th Cir. 2006)
(citing Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998)).
To state a cause of action for a due process violation based on a
“state created danger,” plaintiffs must show three things. First, they must
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show “an affirmative act by the state which either created or increased the
risk that [they] would be exposed to an act of violence by a third party.”
Second, they must establish “a special danger to [them] wherein the state’s
actions placed [them] specifically at risk, as distinguished from a risk that
affects the public at large.” Third, they must show that the state was aware
of the “substantial risk of serious harm” and responded in a way that was
“conscience shocking.” M.J. by & through S.J. v. Akron City Sch. Dist. Bd.
of Educ., 1 F.4th 436, 449 (6th Cir. 2021) (citations omitted).
In Count One, plaintiffs allege that Johnson and Durham are liable for
violating J.W.’s due process rights under the state-created danger theory.
In Count Two, plaintiffs allege that AAPS is also liable for the state-created
danger by Johnson and Durham. To assert a state-created danger claim
against a municipal entity such as AAPS, plaintiff must allege that the
federal rights violation inflicted by the affirmative acts of Johnson and/or
Durham occurred because of a municipal policy or custom. Monell v.
Department of Social Services, 436 U.S. 658 (1978).
Because the District can only be held liable for a violation of the
Fourteenth Amendment under the state-created danger theory if there is a
showing of liability on the part of its officials, the Court must first consider
whether plaintiffs state a plausible claim against Johnson and/or Durham.
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Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 404 (6th Cir. 2010); see
also City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (“If a person
has suffered no constitutional injury at the hands of the [municipality's]
officer, the fact that the [policy, practice, or custom] might have authorized
the use of constitutionally excessive force is quite beside the point.”).
A. Affirmative Act Plus Increased Risk
First, plaintiffs must plausibly allege that individual officials committed
an affirmative act before each known assault that created or increased the
risk that Jefferson would assault, or continue to assault, J.W. “Whether
conduct amounts to an ‘affirmative act’ in this context is at times a difficult
question.” Lipman v. Budish, 974 F.3d 726, 744 (6th Cir. 2020) (citation
omitted). “At one end of this spectrum, a failure to act is not enough.” Id.
When determining if there has been an affirmative act, courts often ask
“whether [the victim] was safer before the state action than he was after it.”
M.J. by & through S.J., 1 F.4th at 449 (citation omitted, emphasis in
original). On a motion to dismiss, when the existence of an affirmative act is
a “close call”, courts construe the facts in favor of the plaintiff “as [courts]
must at this stage of the litigation.” Id.
Prior to the first assault of J.W., Johnson allegedly knew of at least
one previous assault of a disabled child by another bus aide as a result of
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improper training, had received prior complaints that Jefferson behaved in
a way that was threatening and aggressive, and received a report from
Operacz that Jefferson had exhibited inadequate training on J.W.’s first day
of school. Johnson possessed this knowledge when he (a) advised Nelson
by text message on December 13, 2021 to keep J.W. on the bus, (b)
concealed the specific risks posed by Jefferson from Nelson and law
enforcement, and (c) continued to assign Jefferson to Bus 17.
Before the second known assault of J.W., which allegedly took place
between December 15, 2021 and January 19, 2022, Johnson received
more information, including reports that multiple children witnessed
Jefferson physically assault J.W. on the bus. Johnson continued to conceal
the assault from Nelson, staff, and law enforcement, and continued to
assign Jefferson to Bus 17 without providing her with any additional
training. Johnson also failed to file a mandatory report of suspected child
abuse or neglect in violation of MCL § 722.623(a).
The Court first considers whether Johnson’s response to Nelson’s
text message asking whether J.W. should continue to ride the bus
constitutes an affirmative act. AAPS argues that Johnson did not create or
increase any risk of harm to J.W. by Jefferson by merely returning J.W. to
the bus or advising Nelson to keep him on the bus. The Sixth Circuit
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considered a similar argument in a case involving a principal who instructed
students to board a school bus despite her knowledge that the bus driver
was a dangerous driver. M.S. by Covington v. Hamilton Cnty. Dep't of
Educ., 756 F. App'x 510 (6th Cir. 2018). In that case, the court concluded
that “whether the principal's act increased the danger to the students is
precisely what is at issue.” Id at 517.
The school principal advising a parent that their autistic child should
continue to ride the bus with an aide that presents a known danger is an
affirmative act for purposes of surviving a motion to dismiss. Johnson’s
actions potentially created or increased the risk of harm to J.W. by
Jefferson if for no other reason than that J.W. became increasingly agitated
at the end of the day when he had to ride the bus. Jefferson lacked proper
training in how to calm J.W., so it was foreseeable that her physical and
verbal responses would increase proportionately with his behavior.
Plaintiffs have plausibly alleged that Johnson’s response that J.W. should
continue to ride the bus was an affirmative act.
Other acts identified by plaintiffs fall into the category of failing to act.
This includes the allegation that Johnson concealed the risks posed by
Jefferson from Nelson and law enforcement before both assaults, and that
he declined or failed to file a mandatory report of suspected child abuse
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before the second assault. The failure to investigate or report allegations of
child abuse is not an affirmative act under the state-created danger
exception. Engler v. Arnold, 862 F.3d 571, 576 (6th Cir. 2017) (affirming
dismissal of plaintiff’s substantive due process claim because plaintiff
“failed to state a claim” where defendant’s “inaction” of refusing to
investigate or report allegations of abuse did not constitute an affirmative
act). Johnson’s failure to share information he received about Jefferson
with Nelson and law enforcement is also not an affirmative act.
Another act identified by plaintiffs is Johnson continued to assign
Jefferson to Bus 17. Plaintiffs argue Johnson had the authority to direct that
Jefferson be removed, trained or transferred from Bus 17. Nevertheless,
Johnson continued to knowingly staff the bus dedicated to transporting
children with special needs and disabilities with an aide who displayed no
comprehension how to interact with them and a history of making violent
threats toward the children. However, not removing Johnson from Bus 17 is
just another example of a failure to act, which does not rise to the level of
an affirmative act.
The allegations made against Durham all fall into the category of
failing to act. For example, Durham did not remove Jefferson from Bus 17
despite knowledge of the December 14 assault and having the authority to
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do so. The same is true of the allegation that Durham acted in concert with
Johnson to conceal the assault from Nelson and law enforcement, and
mislead Nelson to believe J.W. was safe on the bus. The complaint does
not contain any allegations that Durham committed an affirmative act
B. Special Danger
A “special danger” exists where the “state’s actions place the victim
specifically at risk, as distinguished from a risk that affects the public at
large.” McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 468 (6th Cir.
2006). Plaintiffs allege the “actions of Defendants Johnson and Durham
created a special danger to the children riding Bus 17, especially J.W., who
Defendants knew to be the target of Jefferson’s harassment and assault.”
Defendant argues that plaintiffs do not limit their allegations to J.W., but
expands them to include all children riding Bus 17. The Court disagrees
with this argument. Although any of the children could have been injured by
Jefferson, plaintiffs sufficiently plead that Johnson knew Jefferson was at
risk of harming J.W. in particular.
C. Requisite Culpability
The third prong of the state-created danger doctrine requires plaintiffs
to show the requisite state culpability for a Due Process Clause violation.
This requires a showing of at least deliberate indifference. “The
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government's conduct must be so egregious that it can be said to be
arbitrary in the constitutional sense.” M.J. by & through S.J., 1 F.4th at 450
(quoting McQueen, 433 F.3d at 469). The bar is higher than mere
negligence, “only extreme misconduct”—conduct that shocks the
conscience—“will violate the [Due Process] clause.” Id. (quoting Jane Doe
v. Jackson Loc. Sch. Dist. Bd. of Educ., 954 F.3d 925, 932 (6th Cir. 2020)).
The requisite culpability exists where a state official is aware of facts
from which he draws the inference of the specific risk that later develops.
“[H]aving drawn the inference, the official must act or fail to act in a manner
demonstrating reckless or callous indifference toward the individual’s
rights.” Jane Doe, 954 F.3d at 933-34. Plaintiffs allege that Johnson
received sufficient warnings that J.W. was in danger of harm at the hands
of Jefferson such that it was conscience-shocking for Johnson to advise
Nelson that J.W. should continue to ride the bus.
At the motion to dismiss stage, the Court concludes that plaintiffs
have alleged a plausible due process violation under the state-created
danger doctrine based on Johnson telling Nelson that J.W. should continue
to ride the bus.
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D. Monell Claim Policies, Custom, and Practices
A local government can be sued under § 1983 only when a policy or
custom of that government caused the injury in question. Monell, 436 U.S.
at 694. Here, plaintiffs must allege that the federal rights violation inflicted
by the affirmative act of Johnson – telling Nelson that J.W. should continue
to ride the bus - occurred because of a municipal policy or custom. There
are four ways a plaintiff can demonstrate such a policy or custom: “(1) the
existence of an illegal official policy or legislative enactment; (2) that an
official with final decisionmaking authority ratified illegal actions; (3) the
existence of a policy of inadequate training or supervision; or (4) the
existence of a custom of tolerance or acquiescence of federal rights
violations.” Lipman, 974 F.3d at 747 (citation omitted).
Plaintiffs allege that AAPS and its administrators and policymakers,
including Johnson, acting in concert with Durham, adopted polices,
practices and customs that were inadequate to keep J.W. safe on the
school bus, were the moving force behind Jefferson’s assaults of J.W., and
caused plaintiff’s constitutional injuries. These include a policy, practice or
custom of: (1) failure to train bus staff on effective and appropriate
communication and discipline methods for students with special needs; (2)
concealment of known risks of abuse of special education children on the
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bus; and (3) declining to file mandatory reports of suspected child abuse or
neglect and discouraging AAPS staff from making such reports.
The Sixth Circuit summarized what must be proven for Monell liability
against a school district:
To recap, [plaintiff] must also show that there was a clear and
persistent pattern of that unconstitutional activity, that the
District knew about that pattern, that the District deliberately
ignored that pattern, and that the District's ignoring the pattern
of unconstitutional activity by the principal had a direct causal
link to the deprivation of the students’ rights.
M.S. by Covington, 756 F. App'x. at 518 (citing Doe v. Claiborne Cty., 103
F.3d 495, 508 (6th Cir. 1996)). The court concluded that where the principal
was alleged to have deprived plaintiffs of their constitutional rights by
directing the students onto the bus “every school-day afternoon between
early November and November 21, or approximately fifteen times,” that
many instances of unconstitutional activity could amount to a pattern of
unconstitutional activity for purposes of surviving a motion to dismiss. Id. at
517.
The issue before this Court is also whether AAPS had a policy,
practice or custom of concealing known risks of abuse of special education
children on the bus. Plaintiffs allege that Johnson committed one
affirmative act of telling Nelson that J.W. should continue to ride the bus, as
opposed to the multiple repeated acts described in M.S. by Covington. One
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instance does not form a clear pattern of unconstitutional activity. And while
plaintiffs also allege policies of inadequate training and declining to file
mandatory reports of suspected child abuse, those alleged policies are not
relevant to the analysis because they did not enable the affirmative act that
forms the unconstitutional activity in this case.
Count Two alleging municipal liability against AAPS is dismissed for
failure to state a claim under Fed. R. Civ. P. 12(b)(6).
II.
ADA (Count IV) and Section 504 Rehabilitation Act (Count V)
Plaintiffs allege that J.W. was denied the benefits of attending the
EISCC program at Carpenter, which included riding a school bus dedicated
to children participating in special education programs at AAPS. Plaintiffs
contend that J.W. was forced to transfer schools because of the assaults
and harassment he received from the bus aide because of his disability.
Plaintiffs allege that AAPS thus violated the ADA and the Rehabilitation Act
by discriminating against J.W. and excluding him from participation in the
EISCC program, a public program that receives Federal financial
assistance, solely by reason of his disability.
Defendant AAPS does not dispute that plaintiffs state a plausible
prima facie discrimination claim under the ADA and Rehabilitation Act.
Instead, AAPS moves for dismissal based on the failure to exhaust
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administrative remedies. AAPS argues that plaintiffs’ failure to exhaust
administrative remedies under the Individuals with Disabilities Education
Act (IDEA) bars the federal civil rights claims under the ADA and
Rehabilitation Act.
The IDEA requires plaintiffs to exhaust their administrative remedies
before bringing a suit in federal court seeking relief that is also available
under the ADA and Rehabilitation Act. Luna Perez v. Sturgis Pub. Sch.,
598 U.S. 142, 150 (2023). “The IDEA guarantees individually tailored
educational services for children with disabilities, while Title II (ADA) and §
504 (Rehabilitation Act) promise nondiscriminatory access to public
institutions for people with disabilities of all ages.” Id. AAPS maintains that
to the extent plaintiffs’ claims relate to the provision of J.W.’s education,
that is the denial of the federally established right to a “free and appropriate
public education,” plaintiffs are required to first exhaust those claims
through the administrative process.
To answer the question of whether plaintiffs were required to exhaust
prior to bringing this suit, the court looks to the gravamen of the complaint.
Fry v. Napoleon Cmty. Sch., 580, U.S. 154, 155 (2017). One “clue” to
determining the gravamen is to ask “first, could the plaintiff have brought
essentially the same claim if the alleged conduct had occurred at a public
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facility that was not a school? Second, could an adult at the school have
pressed essentially the same grievance?” Id. 156. “When the answer to
those questions is yes, a complaint that does not expressly allege the
denial of a FAPE [Free and Appropriate Public Education] is also unlikely to
be truly about that subject.” Id.
Plaintiffs contend that this suit is not about his need for “individually
tailored educational services,” rather it is about an assault motivated by
animus to students with disabilities. A student’s ability to ride the school
bus home without being assaulted is not a “unique need” that could be
resolved with an improved IEP; it is a universal need for all children,
whether they use an IEP or not. Therefore, plaintiffs argue essentially the
same claim could be made against a public bus company if the incident
occurred on a city bus.
Plaintiffs seeks monetary damages, as opposed to equitable relief,
and the IDEA does not provide for monetary damages. See Luna Perez,
598 U.S. at 147-48. Defendant argues that plaintiffs attempt to circumvent
the exhaustion requirement by emphasizing monetary damages, while
really seeking redress for the school’s failure to provide J.W. with a FAPE.
It is true that plaintiffs contend that due to the discriminatory treatment J.W.
received, he was forced to leave the EISCC program, thereby being denied
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the benefits of that program. However, the crux of these claims is about
assault and discrimination motivated by a disability rather than the denial of
individually tailored educational services.
In addition, as J.W. no longer attends AAPS, requiring exhaustion of
administrative remedies in the hope that could provide sufficient relief to the
injured party would be futile. See Covington v. Knox Cnty. Sch. Sys., 205
F.3d 912, 917 (6th Cir. 2000) (finding futility where student had graduated,
injuries were in the past, and money damages were the only remedy that
could make him whole).
The substance of plaintiffs’ complaint is not the failure to provide
FAPE. Therefore, plaintiffs need not exhaust their administrative remedies
under the IDEA before bringing the ADA and Rehabilitation Act claims. The
Court denies defendant’s motion to dismiss Counts IV and V for failure to
exhaust.
III.
PWDCRA Discrimination (Count VI)
Defendant moves to dismiss plaintiffs’ PWDCRA discrimination claim
on the basis that it is preempted by the Michigan Mandatory Special
Education Act (MMSEA). “Michigan courts have held that the
comprehensive scheme of MMSEA preempts claims arising under the
PWDCRA, if the claims relate to a student's education, because the latter
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statute addresses disabilities more generally than does the MMSEA, which
targets specifically educational disabilities.” Griffin v. Sanders, No. 11-CV12289, 2013 WL 3788826, at *10 (E.D. Mich. July 19, 2013) (citing Miller ex
rel. Miller v. Lord, 686 N.W.2d 800, 803 (Mich. Ct. App. 2004)). Claims
relating to an IEP relate to a student’s education and must be brought
under the MMSEA. Id. Defendant argues that plaintiffs connect the assaults
he suffered on the bus with the denial of an educational opportunity,
therefore his claim is preempted.
Plaintiffs’ PWDCRA claim against defendant AAPS alleges that J.W.
was denied the benefits of educational opportunities and transportation
services he was qualified to receive because the District discriminated
against him based on his disability. The allegation that AAPS facilitated and
concealed J.W.’s abuse by the bus aide has nothing to do with his unique
educational needs or his IEP. Instead, the claim is that AAPS provides safe
transportation for non-disabled students but required J.W. to endure
physical assault on the school bus, thus denying J.W. an equal opportunity
to access education and public services. Plaintiffs’ PWDCRA claim is not
preempted by the MMSEA and AAPS’s motion to dismiss Count VI on that
basis is denied.
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IV.
Governmental Immunity (Count VII, Count VIII)
Under the Governmental Tort Immunity Act (“GTLA”), government
agencies are immune from tort liability “if the governmental agency is
engaged in the exercise of discharge of a governmental function.” MCL
691.1407(1). School districts are political subdivisions of the state and are
considered governmental agencies under GTLA. MCL 691.1401(a) and (e).
A “governmental function” is defined as “an activity that is expressly or
impliedly mandated or authorized by constitution, statute, local charter or
ordinance, or other law.” MCL 691.1407(b).
To avoid dismissal based on governmental immunity, a plaintiff must
state a claim that fits within one of the narrow statutory exceptions or by
pleading facts demonstrating the alleged tort occurred outside the exercise
of a governmental function. Odom v. Wayne Cnty., 482 Mich. 459, 478
(2008). “Placing this burden on the plaintiff relieves the government of the
expense of discovery and trial in many cases.” Id. at 479. The burden of
proof with regard to governmental immunity differs for individuals, who bear
the burden “to raise and prove [their] entitlement to immunity as an
affirmative defense.” Id.
A governmental agency, such as AAPS, “can be held vicariously
liable only when its officer, employee, or agent, acting during the course of
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employment and within the scope of authority, commits a tort while
engaged in an activity which is nongovernmental or proprietary, or which
falls within a statutory exception.” Guzall v. Michigan State Univ., No.
356768, 2022 WL 4586568, at *4 (Mich. Ct. App. Sept. 29, 2022) (quoting
Ross v Consumers Power Co (On Rehearing), 420 Mich. 567, 363 N.W.2d
641 (1984), superseded by statute on other grounds as stated in Ray v
Swager, 501 Mich. 52, 81, 903 N.W.2d 366 (2017) (recognizing that the
GTLA was amended after the Ross decision to create a narrow exception
to qualified immunity for government actors)). “In contrast, if the agent is
carrying out a governmental function, the agency is entitled to immunity.”
Id. Plaintiffs do not allege a statutory exception applies to its claims against
AAPS.
A. Failure to Report Child Abuse
The Michigan Child Protection Law (CPL) provides that “[a] person
who is required by this act to report an instance of suspected child abuse or
neglect and who fails to do so is civilly liable for the damages proximately
caused by the failure.” MCL § 722.633. Plaintiffs allege that each of the
defendants failed to report the child abuse committed by Jefferson in
violation of CPL where each “had reason to believe that J.W. was being
subjected to serious physical or mental harm by Jefferson.” Plaintiffs allege
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that AAPS is vicariously liable for the harm that occurred to J.W. due to its
agents’ failure to report the suspected child abuse.
Plaintiffs first argue that AAPS is not immune from vicarious liability
for violations of CPL because its liability is based on Johnson’s gross
negligence. Where gross negligence is the proximate cause of the injury, a
municipal defendant has no immunity from vicarious liability under the
mandatory reporting statute. See Jones v. Bitner, 300 Mich. App. 65, 77
(2013). Plaintiffs’ theory is that Johnson’s failure to report Jefferson’s abuse
was grossly negligent and was the proximate cause of the additional verbal
and physical abuse inflicted on J.W.
Although the failure to report abuse might be a proximate cause of
plaintiff’s alleged injuries, it was not the proximate cause. See id. at p. 78.
Johnson’s email telling Nelson that J.W. should continue to ride the bus
while Jefferson remained on the bus without any additional training was the
proximate cause of plaintiffs’ injuries.
Plaintiffs next argue AAPS is not immune from vicarious liable for the
failure to report child abuse because by committing, facilitating, and
concealing an intentional assault, Jefferson and Johnson were both
“engaged in an activity which is nongovernmental.” The CPL requires
certain school personnel to report suspected child abuse under specified
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circumstances. The individuals with a duty to report were necessarily acting
within the scope of their authority and in the course of their employment
when they failed to report. Plaintiffs’ allegation that AAPS has vicarious
liability for failing to report child abuse based on “nongovernmental acts”
taken by individuals fails to state a claim for which AAPS is not immune.
For these reasons, the claim that AAPS failed to report child abuse as
required by law, as alleged in Count Seven, is dismissed due to
governmental immunity.
B. Intentional Infliction of Emotional Distress
In Count Eight plaintiffs allege that all defendants engaged in the tort
of intentional infliction of emotional distress. The conduct defendants are
accused of includes: ignoring warnings and actual notice that Jefferson was
abusing and threatening J.W.; instructing Nelson that J.W. should continue
riding the bus; keeping Jefferson on the bus without retraining; and
concealing the assault from Nelson and law enforcement.
Plaintiffs allege that AAPS is vicariously liable for intentional infliction
of emotional distress based on the acts of Johnson and Durham. However,
“governmental agencies remain immune from liability unless the employee
‘commits a tort while engaged in an activity which is nongovernmental or
proprietary, or which falls within a statutory exception.’” One by Monteleone
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v. Macomb Cnty. Intermediate Sch. Dist., No. 360958, 2023 WL 2620416,
at *5 (Mich. Ct. App. Mar. 23, 2023) (citation omitted). Plaintiffs have not
plead facts demonstrating that the alleged tortious conduct occurred
outside the exercise of a governmental function. Rather, the acts attributed
to the defendants in Count Eight were allegedly committed during the
course of their employment and within the scope of their authority.
AAPS is immune from liability for the tort of intentional infliction of
emotional distress. Count Eight is therefore dismissed as to AAPS based
on governmental immunity.
V. Conclusion
For the reasons set forth above, defendant AAPS’s motion to dismiss
(ECF No. 21) is GRANTED as to Counts Two (state-created danger,
Monell), Seven (failure to report child abuse), and Eight (intentional
infliction of emotional distress) and DENIED as to Counts Four
(discrimination in violation of ADA), Five (discrimination in violation of
Rehabilitation Act), and Six (discrimination in violation of PWDCRA).
It is so ordered.
Dated: May 8, 2024
s/George Caram Steeh
HON. GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record
on May 8, 2024, by electronic and/or ordinary mail.
s/Lashawn Saulsberry
Deputy Clerk
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