A.R.K. v. Storz et al

Filing 18

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of defendants Hillsboro R-3 School District and St. Francois R-1 School District to dismiss plaintiffs second amended complaint [Doc. #3] is granted. IT IS FURTHER ORDERED that Counts IV and V of plaintiffs second amended complaint are dismissed. IT IS FURTHER ORDERED that plaintiffs motion for leave to file a third amended complaint and join a party defendant [Doc. #9] is denied. IT IS FURTHER ORDERED that the Clerk of Court shall remand this matter to the Twenty-Third Judicial Circuit (Jefferson County) of Missouri from which it was removed. (copy of order sent to the Twenty-Third Judicial Circuit (Jefferson County) of Missouri) Signed by District Judge Carol E. Jackson on 12/17/2013. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
A.R.K.,
Plaintiff,
vs.
JAMES DANIEL STORZ, SR., et al.,
Defendants.

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Case No. 4:13-CV-1653 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion of the Hillsboro R-3 School District
and the St. Francois R-1 School District (the school district defendants) to dismiss
plaintiff’s second amended complaint for failure to state a claim. Also before the Court
is plaintiff’s motion for leave to file a third amended complaint and join a party
defendant. All issues are fully briefed.
I.

Background

In the second amended complaint, plaintiff A.R.K. alleges that while she was a
student in the defendant school districts, she reported to school counselors that she
was being sexually abused by her parents. Plaintiff alleges that the counselors failed
to report the abuse to the Missouri Division of Social Services as required by state law.
She alleges that defendants Sheldon Smith and Terry W. Gibbons, superintendents of
the school districts, and Sherri Snider and Ronald McCutcheon, principals of the high
schools plaintiff attended, failed to adequately train staff members to report child
abuse to the Division of Social Services. Plaintiff seeks leave to file a third amended
complaint for the sole purpose of identifying Teresa Zielonko as the Hillsboro High
School counselor to whom she first reported the abuse and joining her as a defendant.

Plaintiff initiated suit in the Twenty-Third Judicial Circuit (Jefferson County),
bringing personal injury claims against James and Rose Storz. On July 22, 2013,
plaintiff amended her petition to add a claim that the school district defendants
violated 42 U.S.C. § 1983. Id. at 125-29. On August 21, 2013, the school districts
removed the matter pursuant to the Court’s federal-question jurisdiction under 28
U.S.C. § 1331.
II.

Legal Standards

The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure is to test the legal sufficiency of the complaint. The factual allegations
of a complaint are assumed true and construed in favor of the plaintiff, “even if it
strikes a savvy judge that actual proof of those facts is improbable.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing Swierkiewicz v. Sorema N.A., 534
U.S. 506, 508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“Rule
12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of a
complaint’s factual allegations”); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (a
well-pleaded complaint may proceed even if it appears “that a recovery is very remote
and unlikely”).

The issue is not whether the plaintiff will ultimately prevail, but

whether the plaintiff is entitled to present evidence in support of his claim. Id. A
viable complaint must include “enough facts to state a claim to relief that is plausible
on its face.” Bell Atlantic Corp., 550 U.S. at 570. See also id. at 563 (“no set of facts”
language in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), “has earned its retirement.”)
“Factual allegations must be enough to raise a right to relief above the speculative
level.” Id. at 555.
Under Rule 15(a), a court “should freely give leave [to amend a pleading] when
justice so requires.” Despite this liberal standard, “parties do not have an absolute
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right to amend their pleadings.” Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715
(8th Cir. 2008). A district court appropriately denies leave to amend on the basis of
futility if the proposed amendment would not survive a motion to dismiss under Rule
12(b)(6). Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir. 2010).
III.

Discussion
A.

Negligence Claim (Count IV)

Plaintiff alleges that defendants were negligent in that they “failed to establish
policy [sic] and procedures and failed to adequately train their staff and personnel so
as to cause plaintiff’s reports of abuse and sexual abuse to be reported to the
Children’s Division of Family Services.”
In Missouri, a public entity has sovereign immunity from common law tort
actions, except where a plaintiff’s injury arises from a motor vehicle accident or a
dangerous condition of the public entity’s property or where the public entity has
purchased liability insurance. § 537.600.1, Mo.Rev.Stat. Plaintiff concedes that the
school district defendants are entitled to sovereign immunity with respect to her
negligence claims.

Therefore, Count IV will be dismissed with respect to these

defendants.
Count IV also asserts negligence claims against the school districts’
superintendents and principals, but plaintiff does not specify whether suit is brought
against them in their individual or official capacity. To the extent that Count IV is
brought against the school district
entitled to immunity.

employees in their official capacity, they are

“Sovereign immunity, if not waived, bars suits against

employees in their official capacity, as such suits are essentially direct claims against
the state.” B.A.B., Jr. v. Bd. of Educ. of City of St. Louis, 698 F.3d 1037, 1041 (8th Cir.
2012) (quoting Betts–Lucas v. Hartmann, 87 S.W.3d 310, 327 (Mo. Ct. App. 2002)).
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“A suit against a government employee in her official capacity is equivalent to a suit
against the government entity itself, and sovereign immunity therefore also applies
with equal force in the context of official capacity claims.” Id. (citation omitted).
Plaintiff’s negligence claims against the individual defendants in their official capacity
must be dismissed.
In Count IV of the proposed third amended complaint, plaintiff purports to
proceed against the school districts’ employees “individually,” by which the Court
assumes plaintiff means to name these defendants in their individual capacity.
Defendants argue that the doctrine of official immunity bars claims against the
defendants in their individual capacity.
Missouri state law provides official immunity to public officials acting
within the scope of their authority “for injuries arising from their
discretionary acts or omissions,” but not for “torts committed when
acting in a ministerial capacity.” State ex rel. Hill v. Baldridge, 186
S.W.3d 258, 259 (Mo. 2006) (per curiam). Discretionary acts require
“the exercise of reason in the adaption of means to an end, and
discretion in determining how or whether an act should be done or a
course pursued.” Rustici v. Weidemeyer, 673 S.W.2d 762, 769 (Mo.
1984) (citation omitted). In contrast, ministerial acts are “of a clerical
nature which a public officer is required to perform upon a given state of
facts, in a prescribed manner, in obedience to the mandate of legal
authority, without regard to his own judgment or opinion concerning the
propriety of the act to be performed.” Id. (citation omitted).
Hutson v. Walker, 688 F.3d 477, 485 (8th Cir. 2012).
Plaintiff alleges that defendants failed to report her abuse as required by
Missouri’s child-abuse reporting statute, § 210.115. The statute provides in relevant
part:
When any . . . teacher, principal or other school official, . . . or other
person with responsibility for the care of children has reasonable cause
to suspect that a child has been or may be subjected to abuse or neglect
. . . that person shall immediately report to the division in accordance
with the provisions of sections 210.109 to 210.183.

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Mo. Ann. Stat. § 210.115.1 (emphasis added). The statute itself does not create a
private right of action. Bradley v. Ray, 904 S.W.2d 302, 314 (Mo. Ct. App. 1995).
The statute requires school officials to make a report only where there is
“reasonable cause” to suspect child abuse. This requirement calls for the exercise of
professional judgment and is thus discretionary, not ministerial. Jane Doe A v. Special
Sch. Dist. of St. Louis County, 637 F. Supp. 1138, 1148 (E.D. Mo. 1986); see also K.B.
v. Waddle, 2:12 CV 48 RWS, 2013 WL 4502347, at *5 (E.D. Mo. Aug. 22, 2013) (childabuse reporting statute does not create a ministerial duty). Plaintiff’s attempt in her
proposed amended complaint to bring negligence claims against the individual
defendants in their individual capacity is barred by official immunity and her proposed
amendment to Count IV is futile.
In summary, the doctrine of sovereign immunity bars plaintiff’s negligence claim
as to the school districts and the individual defendants in their official capacity. The
doctrine of official immunity bars plaintiff’s negligence claims against the individual
defendants in their individual capacity. The proposed third amended complaint does
not cure these deficiencies and leave to amend will be denied as to Count IV.
B.

42 U.S.C. § 1983 Claim (Count V)

In Count V of her second amended complaint, plaintiff alleges that the
defendants violated her “constitutional rights to not be raped, sexually assaulted,
harassed and stalked and to be protected under the laws of the State of Missouri from
offenses against her body and person.” To state a claim under 42 U.S.C § 1983,
plaintiff must allege (1) the violation of a constitutional right, (2) committed by a state
actor, (3) who acted with the requisite culpability and causation to violate the
constitutional right. Shrum ex rel. Kelly v. Kluck, 249 F.3d 773, 777 (8th Cir. 2001)

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(citing Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S.
397, 403-04 (1997)).
To state a claim under § 1983 against the school districts (as opposed to an
individual), plaintiff must allege that a policy or custom of the school district is
responsible for the alleged constitutional violation. McCray v. Francis Howell Sch.
Dist., 4:08CV1178 CDP, 2009 WL 1774319, at *4 (E.D. Mo. June 23, 2009) (citing
Monell v. Dep’t of Social Services, 436 U.S. 658, 690–91 (1978)). There is no dispute
that plaintiff omitted the required allegations from Count V in her second amended
complaint and that count must be dismissed with respect to the school districts.
In her proposed amended third complaint, plaintiff appears to respond to this
deficiency in her pleadings by asserting in Count IV --- which does not assert a claim
under § 1983 --- an allegation that the defendants showed deliberate indifference by
“establishing a policy and/or custom of disbelieving reports of rape and sexual abuse.”
However, in the same paragraph plaintiff alleges that the defendants were “grossly
negligent,” which is not sufficient to state a claim under § 1983. In her proposed
amendment to Count V, plaintiff does assert, though in conclusory fashion, that the
defendants violated her constitutional rights in violation of § 1983, but does not state
that the violations arose from a custom or policy. Counts IV and V of the proposed
third amended complaint do not state a claim for relief against the school districts and
thus amendment would be futile.
Plaintiff’s § 1983 claims against the individual defendants also fail.

The

defendants’ alleged failure to report the suspected abuse, as required by the Missouri
state statute, does not amount to “unconstitutional misconduct” because violations
of state law do not state a claim under 42 U.S.C. § 1983. Doe v. Gooden, 214 F.3d
952, 955 (8th Cir. 2000). “Section 1983 guards and vindicates federal rights alone.”
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Id. (quoting Ebmeier v. Stump, 70 F.3d 1012, 1013 (8th Cir. 1995)). See also Jane
Doe A, 637 F. Supp. at 1143 (“Section 1983 does not provide a remedy for violations
of duties of care arising out of tort law. Remedies for these injuries must be sought
in state court under traditional tort law principles.”); Nelson v. Lancaster Indep. Sch.
Dist. No. 356, CIV 00-2079(JRT/RLE), 2002 WL 246755, at *8 (D. Minn. Feb. 15,
2002) (even assuming that defendant had a statutory duty to report sexual abuse,
failure to comply with state statutory law does not amount to “unconstitutional
misconduct” as required to state a claim under § 1983). Count V of the proposed
amended complaint does not materially alter plaintiff’s allegations and amendment
would be futile.
Plaintiff’s second amended complaint fails to state a claim for relief against the
school districts and the supervisors and principals and Counts IV and V will be
dismissed in their entirety. Plaintiff’s proposed third amended complaint does not cure
the deficiencies and the Court will deny leave to file. The remaining claims are based
on state law and the second amended complaint does not establish a basis for
jurisdiction based on diversity of citizenship. Thus, Court lacks jurisdiction over the
remaining claims and this case will be remanded to the state court from which it was
removed.
Accordingly,
IT IS HEREBY ORDERED that the motion of defendants Hillsboro R-3 School
District and St. Francois R-1 School District to dismiss plaintiff’s second amended
complaint [Doc. #3] is granted.
IT IS FURTHER ORDERED that Counts IV and V of plaintiff’s second amended
complaint are dismissed.

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IT IS FURTHER ORDERED that plaintiff’s motion for leave to file a third
amended complaint and join a party defendant [Doc. #9] is denied.
IT IS FURTHER ORDERED that the Clerk of Court shall remand this matter
to the Twenty-Third Judicial Circuit (Jefferson County) of Missouri from which it was
removed.
___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 17th day of December, 2013.

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