S.W. v. Rockwood R-VI School District et al

Filing 43

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Defendants' Motion to Dismiss Plaintiff's Complaint or, in the Alternative, for Summary Judgment (Doc. 11 ) is GRANTED, in part and DENIED, in part. IT IS FURTHER ORDERED that Plaintiff shall have fourteen (14) days to file an Amended Complaint in accordance with this Order. ( Response to Court due by 12/14/2017.). Signed by Magistrate Judge Noelle C. Collins on 11/30/2017. (NEP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

S.W., a minor, by and through
Next Friend, TAMMY WALSH,
Plaintiff,
v.
ROCKWOOD R-VI SCHOOL
DISTRICT, ERIC KNOST,
LISA COUNTS, CHARLES
CROUTHER, and JENNIFER
STRAUSER,
Defendants.

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Case No. 4:17-cv-01483-NCC

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss Plaintiff’s Complaint1
or, in the Alternative, for Summary Judgment (Doc. 11). The Motion is fully briefed and ready
for disposition. The parties have consented to the jurisdiction of the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. 636(c)(1) (Doc. 18). For the following reasons,
Defendants’ to Dismiss Plaintiff’s Complaint or, in the Alternative, for Summary Judgment
(Doc. 11) will be GRANTED, in part and DENIED, in part, and Plaintiff will be permitted to
amend her Complaint.
I. Background
On April 5, 2017, Plaintiff S.W., by and through Next Friend, Tammy Walsh filed this
action pursuant to 42 U.S.C. § 1983 and Missouri state law against Defendants Rockwood R-VI

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Plaintiff filed her action initially in state court and, therefore, her initial pleading is
technically called a Petition. However, as Defendants and, later, Plaintiff refer to the pleading as
a Complaint, to avoid confusion, the Court will do the same.

School District (the “District”), Eric Knost (“Knost”), the Superintendent of the District; Lisa
Counts (“Counts”), the Assistant Superintendent of the District; Charles Crouther (“Crouther”),
the Principal at Eureka High School (“EHS”); and Jennifer Strauser (“Strauser”), the Associate
Principal at EHS (collectively “Defendants”) in St. Louis County Circuit Court (Doc. 4).
Defendants removed the case to the United States District Court for the Eastern District of
Missouri on May 10, 2017 (Doc. 1). Plaintiff fails to indicate whether she sues Knost, Counts,
Crouther, or Strauser (collectively the “Individual Defendants”) in their official or individual
capacities. Therefore, the Court will proceed as if the Individual Defendants were sued in their
official capacities only. Artis v. Francis Howell N. Band Booster Ass’n, Inc., 161 F.3d 1178,
1182 (8th Cir. 1998) (finding that if a complaint fails to specifically name a public official in his
or her individual capacity, it is presumed he or she is sued only in his official capacity). Plaintiff
seeks money damages and an expungement of S.W.’s education records of the events at issue
(Doc. 4 at ¶95).
Plaintiff raises the following claims against the Individual Defendants: Counts I & II:
Defamation (Defendant Strauser); Count III: False Light Invasion of Privacy (Defendants
Crouther and Knost); Count IV: Prima Facie Tort (Defendants Knost and Counts); Count V:
Negligent Infliction of Emotional Distress (All Individual Defendants); Counts VI & VII:
Section 1983 violations for property interest in public education, property and liberty interests in
his reputation, liberty interest in being free of arbitrary and capricious punishment, and
procedural right to due process (All Individual Defendants); and Count VIII: Civil Conspiracy
(All Individual Defendants). Plaintiff also raises a Section 1983 claim against the District

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(Count IX). Defendants now move to dismiss Plaintiff’s Complaint or, in the alternative, for
summary judgment (Doc. 11).
II. Legal Standard
As a preliminary matter, the Court will treat Defendants’ Motion as filed pursuant to
Federal Rule of Civil Procedure 56. Defendants have moved to dismiss Plaintiff’s complaint and
alternatively for summary judgment but seek to convert the motion to dismiss to a motion for
summary judgment (Doc. 11). Plaintiff also requested that the Motion be treated as a Summary
Judgment Motion (See Doc. 15). Further, as is the case here, “[i]f matters outside the pleadings
‘are presented to and not excluded by the court, the motion must be treated as one for summary
judgment under Rule 56.’” Zean v. Fairview Health Servs., 858 F.3d 520, 526 (8th Cir. 2017)
(quoting Fed. R. Civ. P. 12(d)).
Summary judgment is appropriate when no genuine issue of material fact exists in the
case and the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). The initial burden is placed on the moving party. City of Mt. Pleasant,
Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). If the record
demonstrates that no genuine issue of fact is in dispute, the burden then shifts to the non-moving
party, who must set forth affirmative evidence and specific facts showing a genuine dispute on
that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In determining whether
summary judgment is appropriate in a particular case, the Court must view the facts in the light
most favorable to the nonmoving party, and all justifiable inferences are to be drawn in his favor.
Benford v. Correctional Medical Services, No. 1:11CV121 JAR, 2012 WL 3871948, at *4 (E.D.
Mo. Sept. 6, 2012) (citing Celotex Corp., 477 U.S. at 331). The Court’s function is not to weigh

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the evidence but to determine whether there is a genuine issue for trial. Id. (citing Anderson, 477
U.S. at 249). “Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.” Id. (quoting
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)).
III. Relevant Undisputed Facts2
On February 10, 2016, S.W. brought two gothic masks to school so that he and J.S. could
wear them (Doc. 27 at ¶¶6, 13; Doc. 39 at ¶¶6, 13; Pl.’s Ex. D at ¶1; Defs.’ Ex. A at ¶8; Defs.’
Ex. D at ¶9; Defs.’ Ex. E at ¶9; Defs.’ Ex. F).3 S.W. wore the mask for a period of time while
walking the school hallway before classes began (Doc. 27 at ¶13; Doc. 39 at ¶13; Pl.’s Ex. D at
¶3). At one point, S.W. lowered his mask and spoke to at least one student (Doc. 27 at ¶7; Doc.
39 at ¶7; Pl.’s Ex. D at ¶7). S.W. was not asked to remove the mask (Doc. 27 at ¶6; Doc. 39 at
¶6; Pl.’s Ex. D at ¶¶4-5). The school administration and the police were contacted about the
incident (Doc. 27 at ¶21; Doc. 39 at ¶21; Defs.’ Ex. A at ¶8; Defs.’ Ex. D at ¶4; Defs.’ Ex. E at
¶¶2-3). S.W. spoke with police that night (Doc. 27 at ¶29; Doc. 39 at ¶29; Pl.’s Ex. D at ¶25;
Pl.’s Ex. H4).

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The facts are taken from Defendants’ exhibits to their Memorandum in Support of their Motion,
Plaintiff’s Statement of Material Facts and attached exhibits (Doc. 27) and Defendants’
Response to Plaintiff’s Statement of Material Facts (Doc. 39).
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The Parties submitted various documents both as redacted versions available to the public and
unreacted versions under seal. The Court cites to the unredacted versions as it has appropriately
conducted its review from those versions but notes that the unredacted versions of the same
documents largely follow the same pagination or subdivisions as the redacted versions.
Furthermore, the names of minors will be identified by initials only.
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Defendants object to Plaintiff’s Exhibit H, the Police Report, as containing hearsay within
hearsay (See, e.g., Doc. 39 at ¶16). The Court need not address this evidentiary issue at this
stage as the Police Report will be used in this Order only to the extent that it shows that S.W.
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On February 11, 2016, S.W. and his parents met with Defendants Charles Crouther and
Jennifer Strauser (Doc. 27 at ¶33; Doc. 39 at ¶33; Pl.’s Ex. D at ¶26; Defts.’ Ex. A at 2; Defs.’
Ex. D at ¶¶6-7; Defs.’s Ex. E at ¶¶6-7). A representative from the Special School District
appeared via telephone (Doc. 27 at ¶33; Doc. 39 at ¶33; Defs.’ Ex. D at ¶7; Defs.’ Ex. E at ¶7).
During the meeting, Defendant Crouther advised S.W. of the allegations against him (Defs.’ Ex.
D at ¶¶8; Defs. Ex. E at ¶8). Specifically, Defendant Crouther indicated that the allegations
against S.W. were that he wore the mask to school, had previously written the word “PREPARE”
on his desk, and told other students he was going to “kill them all” (Defs. Ex. D at ¶6). S.W.
denied that he said he was going to “kill them all” (Defs.’ Ex. D at ¶9; Pl.’s Ex. D at ¶31).
Defendant Crouther suspended S.W. for ten school days (Defs.’ Ex. D at ¶12). S.W. was
provided with a previously prepared suspension notice describing the basis of the suspension
(Doc. 27 at ¶33; Doc. 39 at ¶33; Defs.’ Ex. D at ¶13; Pl.’s Ex. E). The text from the suspension
notice was included in a Behavior Detail Report, a part of S.W.’s confidential education record
(Defs.’ Ex. D at ¶14-15; Pl.’s Ex. F). The text reads:
On Wednesday, February 10, before school in the hallway, [S.W.] and another student
were wearing skull masks that [S.W.] provided. They covered the lower half of their
faces and frightened many students. [S.W.] is seen on camera walking up and down the
hallway, confronting students silently in a menacing manner. At one point, [S.W.],
seated on the floor, pulled the mask down and told a group of boys he was going to “kill
you all” and then put the mask back up on the lower part of his face.
(Defs.’ Ex. J). The video has no sound (Doc. 27 at ¶35; Doc. 39 at ¶35; Pl.’s Ex. D at ¶29). A
second meeting took place on February 17, 2016 (Defs.’ Ex. L at ¶5). Present at the meeting
were S.W., his parents, and Defendants Counts and Knost (Defs.’ Ex. L at ¶5). During the
meeting S.W. was interviewed (Defs.’ Ex. M).

spoke with the Police on February 10, 2016.
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On February 25, 2016, a hearing was held to determine whether a suspension beyond ten
days was warranted (Defs.’ Ex. L at ¶6). S.W. and his parents were accompanied by a lawyer
(Defs.’ Ex. L at ¶7). Also present at the hearing were the District’s attorney, the 9th Grade
Principal, Defendant Crouther, a special education administrator, and an attorney representing
the Special School District (Defs.’ Ex. L at ¶7). Administrators presented the findings from the
District’s investigation including statements from two witnesses who heard S.W. say that he was
going to “kill them all” (Defs.’ Ex. L at ¶8). S.W. denied saying that he was going to “kill them
all” (Defs.’ Ex. L at ¶9). Two students appeared to testify on S.W.’s behalf (Doc. 4 at ¶39; Doc.
27 at ¶39; Doc. 39 at ¶39; Pl.’s Ex. A at ¶35). The students were not allowed to testify (Doc. 27
at ¶39; Doc. 39 at ¶39; Pl.’s Ex. A at ¶35).
The day after the hearing, Defendant Counts contacted S.W.’s mother via telephone and
advised her that Defendant Knost had decided to extend S.W.’s suspension through the end of
the school year (Defs.’ Ex. L at ¶10). Defendant Counts further indicated that Defendant Knost
would consider allowing S.W. to return to school sooner if S.W. provided an assessment from a
private professional indicating that S.W. does not present a danger to others or himself (Defs.’
Ex. L at ¶11). That same day, S.W.’s counsel sent an email to counsel for the District indicating
that S.W. would be appealing the District’s decision to extend S.W.’s suspension to the School
Board (Defs.’ Ex. O).
On February 29, 2016, Plaintiff was informed by letter of S.W.’s extended suspension
through the end of the school year (Defs.’ Ex. N). The letter, signed by Defendants Counts and
Knost, provided, “If, however, [S.W] completes an assessment with a private professional
indicating that he does not present a danger to others or himself and is safe to return to school,

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we are willing to consider a written request for reducing the suspension” (Id.).
On March 11, 2016, counsel for the District sent a letter to S.W.’s counsel confirming
S.W.’s request for a hearing before the School board and setting the hearing on March 23, 2016
(Defs.’ Ex. Q). The District’s attorney indicates:
The District alleges that on February 10, 2016, [S.W.] engaged in threatening behavior
and made threats to students by wearing a skull mask on school property in a frightening
and menacing manner and by telling other students that he was going to kill them.
(Id.). Counsel further indicates that, “evidence will be presented and witnesses called to support
the charges made. Your client has the right to be represented by counsel, to hear witnesses and
evidence and to cross examine the witnesses, and to present witnesses and evidence” (Id.).
Prior to the date of the hearing, S.W. submitted to an exam and provided the District’s
attorney with a copy of the evaluation (Defs.’ Ex. R). In response, Defendant Knost informed
Plaintiff by letter that he intended to allow S.W. to return to school (Defs.’ Ex. S). In the letter,
Defendant Knost notes:
shortening [S.W.’s] suspension and returning him to class . . . represents a decision of the
District’s administration, not the Board of Education. This decision is not binding, in any
way, on the Board of Education should you choose to continue your appeal and
participate in the appeal hearing . . . . If the appeal hearing takes place, I cannot
guarantee the Board will agree with my decision to shorten the suspension. Moreover, it
is probable that the Board’s written decision may not be formally issued until after
[S.W.’s] potential return . . .
(Id.). Defendant Knost continued, “If you wish to return [S.W.] to Eureka . . . and withdraw your
request for an appeal hearing . . .” (Id.). S.W. and his parents canceled the School Board hearing
(Defs.’ Ex. T). After missing twenty-three days of school, S.W. returned to school on March 28,
2016 (Defs.’ Ex. A at 3).

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III. Analysis
A. Sovereign Immunity
First, Defendants assert that the Individual Defendants are entitled to sovereign immunity
on Plaintiff’s state law tort claims because they have been sued in their official capacities (Doc.
11 at 3). Plaintiff does not object to Defendants’ assertion but, instead, indicates that she will
seek leave to amend her Complaint to name them in their individual capacities (Doc. 26 at 13).
As of today’s date, Plaintiff has not filed an amended complaint or a motion for leave to file an
amended complaint with the Court.
Under Missouri law, a public entity is protected from tort liability subject to two
exceptions. Mo. Rev. Stat. § 537.600. Sovereign immunity is waived in cases involving (1)
injuries arising out of a public employee’s operation of motor vehicle or (2) injuries caused by
the condition of a public entity’s property if the plaintiff establishes that the property was in
dangerous condition at the time of the injury. Id. Public entities may also waive their sovereign
immunity for governmental functions to the extent that they are covered by liability insurance.
Southers v. City of Farmington, 263 S.W.3d 603, 609 (Mo. 2008), as modified on denial of reh’g
(Sept. 30, 2008). “A suit against a government officer in his official capacity is functionally
equivalent to a suit against the employing governmental entity.” Veatch v. Bartels Lutheran
Home, 627 F.3d 1254, 1257 (8th Cir. 2010). Therefore, sovereign immunity also applies against
governmental officials sued in their official capacity. Kentucky v. Graham, 473 U.S. 159, 165
(1985).
Plaintiff does not allege or provide any evidence of an exception to the District’s
sovereign immunity and, as previously discussed, the Individual Defendants have been sued in

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their official capacities. Accordingly, Counts I, II, III, IV, and V shall be dismissed.
Furthermore, the Court will also dismiss Count VIII of Plaintiff’s Complaint because without
Counts I-V, no underlying tort claim remains, and a civil conspiracy claim necessarily fails
without an underlying tort claim. See Jackson Cnty., Mo. ex. rel. Nixon v. MERSCORP, Inc.,
915 F. Supp. 2d 1064, 1071 (W.D. Mo. 2013) (“In Missouri, if tortious acts alleged as elements
of a civil conspiracy claim fail to state a cause of action, then the conspiracy claim fails as
well.”). The Court will permit Plaintiff to amend his Complaint.
B. Qualified Immunity
Next, Defendants assert that the Individual Defendants are entitled to qualified immunity
on Plaintiff’s Section 1983 claims in Counts VI and VII (Doc. 11 at 4). Qualified immunity
shields public officials “from liability in a § 1983 action unless the official’s conduct violates a
clearly established constitutional or statutory right of which a reasonable person would have
known.” Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009). To overcome a
defendant’s qualified immunity claim, the plaintiff must show that: “(1) the facts, viewed in the
light most favorable to the plaintiff, demonstrate the deprivation of a constitutional right; and (2)
the right was clearly established at the time of the deprivation.” Baribeau v. City of Minneapolis,
596 F.3d 465, 474 (8th Cir. 2010) (quotations omitted). “The law is clearly established if it gives
the defendant officials ‘fair warning’ that their conduct violated an individual's rights when the
officials acted.” Forrester v. Bass, 397 F.3d 1047, 1054 (8th Cir. 2005) (citing Hope v. Pelzer,
536 U.S. 730, 739-40 (2002)); see also Anderson v. Creighton, 483 U.S. 635, 640 (1987) (A
right is “clearly established” if “a reasonable official would understand that what he is doing
violates that right”). If a state official violates a clearly established constitutional right, he is not

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entitled to qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982).
As a preliminary matter, the Court notes that in considering qualified immunity “each
[Individual Defendant’s] conduct must be independently assessed . . . because liability for
damages for a federal constitutional tort is personal.” Cross v. Mokwa, 547 F.3d 890, 898 (8th
Cir. 2008) (internal quotation marks omitted). Defendants fail to address their arguments at the
individual actions of each Individual Defendant. Thus, in considering the early stage of the
litigation, the Court could deny dismissal on this ground alone. However, the Court will address
the merits of the Individual Defendants’ claims in the interests of justice.
In her Complaint, Plaintiff alleges that the Individual Defendants violated four of S.W.’s
constitutional rights: (1) his property interest in public education; (2) his property and liberty
interest in his reputation; (3) his liberty interest in being free from arbitrary and capricious
punishment; and (4) his right to procedural due process (Doc. 4 at 12-13). Defendants move to
dismiss all four of these claims against the Individual Defendants on qualified immunity grounds
(Doc. 13 at 27-32). In response to Defendants’ motion, however, Plaintiff appears to only
address the procedural due process claim and the arbitrary and capricious punishment claim (See
Doc. 26 at 6-12). For example, while Plaintiff mentions the alleged reputational harm, Plaintiff
asserts that this “perception is the result of a process that failed the standards of the Due Process
guarantee” (Id. at 6). Plaintiff also fails to distinguish her property interest claim from the
procedural due process claim. Accordingly, the Court will only address Plaintiff’s procedural
due process claim and arbitrary and capricious punishment claim on the merits.
1. Procedural Due Process
To prevail on a claim alleging a violation of Due Process, a plaintiff must establish (1)

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that he was deprived of a constitutionally protected life, liberty, or property interest and (2) that
he was deprived of that interest by the state without being provided sufficient process. Krentz v.
Robertson Fire Prot. Dist., 228 F.3d 897, 902 (8th Cir. 2000). Here, while Defendants concede
that S.W. has a property interest in the right to public education, Defendants contest whether
Defendant deprived S.W. of his interest and whether the deprivation of that interest was done
without due process (Doc. 13 at 29). Goss v. Lopez, 419 U.S. 565 (1975) (holding that because
Ohio maintained a school system that it required children to attend, the state was “constrained to
recognize a student's legitimate entitlement to a public education as a property interest which is
protected by the Due Process Clause.”).
a. Property Interest
First, Defendants assert that S.W. was not deprived of any property interest in public
education because “Plaintiff was not denied public education” (Doc. 13 at 29). Specifically,
Defendants argue that because homebound educational services were provided to S.W. and
administrators at the school were working with his parents to ensure he received his course
assignments, he was not deprived of his property interest in a public education (Id.). Indeed, the
evidence presented indicates that S.W. was provided homebound educational services once his
suspension was extended for more than ten days (Doc. 13-1 at 2). However, “the intangible
benefits of attending public school have long been recognized and protected by the federal
courts.” Engele v. Indep. Sch. Dist. No. 91, 846 F. Supp. 760, 765 (D. Minn. 1994) (citing
Brown v. Board of Education, 347 U.S. 483, 493 (1954)). “[I]n determining ‘whether due
process requirements apply in the first place, we must look not to the ‘weight’ but to the nature
of the interest at stake.’” Goss, 419 U.S. at 575-76 (quoting Bd. of Regents of State Colleges v.

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Roth, 408 U.S. 564, 570-71 (1972)) (emphasis added). While the gravity of the loss inflicted by
Defendants is a factor to weigh in determining what process was due S.W., it does not impact the
Court’s determination that he was entitled to the basic right of due process. Engele, 846 F. Supp.
at 765 (citing Roth, 408 U.S. at 570-71). In this case, the Court concludes that although
homebound educational services were provided to S.W., thus perhaps minimizing some of the
effects of his suspension, S.W. was deprived of his protected property interest in attending public
school. Id.
b. Exhaustion
Defendants next assert that Plaintiff cannot sustain a procedural due process claim
because S.W. failed to exhaust his administrative remedies by accepting the terms offered by
Knost and canceling his hearing before the School Board (Doc. 13 at 31). “Exhaustion of state
remedies is necessary before any federal procedural due process allegations state a claim under §
1983.” Wax 'N Works v. City of St. Paul, 213 F.3d 1016, 1019 (8th Cir. 2000). “Although due
process rights may be waived, a waiver of constitutional rights is not effective unless the right is
intentionally and knowingly relinquished.” Davis Oil Co. v. Mills, 873 F.2d 774, 787 (5th Cir.
1989). “In order to meet this requirement, a waiver must be (1) the product of a free and
deliberate choice rather than intimidation, coercion, or deception,” and (2) “made with a full
awareness both of the nature of the right being abandoned and the consequences of the decision
to abandon it.” Sagehorn v. Indep. Sch. Dist. No. 728, 122 F. Supp. 3d 842, 864-65 (D. Minn.
2015).
At this stage of the litigation and viewing the facts in the light most favorable to Plaintiff,
the Court finds that S.W. and his parents’ determination to cancel his hearing before the School

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Board may not have been “the product of a free and deliberate choice rather than intimidation,
coercion, or deception.” Washington v. Ladue Sch. Dist. Bd. of Educ., 564 F. Supp. 2d 1059,
1063 (E.D. Mo. 2008). On February 29, 2016, Plaintiff was informed by letter of S.W.’s
extended suspension through the end of the school year (Defs.’ Ex. N). The letter, signed by
Defendants Counts and Knost, provided, “If, however, [S.W] completes an assessment with a
private professional indicating that he does not present a danger to others or himself and is safe
to return to school, we are willing to consider a written request for reducing the suspension”
(Id.). S.W. submitted to such an exam and provided the District’s attorney with a copy of the
evaluation (Defs.’ Ex. R). In response, Defendant Knost informed Plaintiff that he intended to
allow S.W. to return to school (Defs.’ Ex. S). However, Defendant Knost notes:
shortening [S.W.’s] suspension and returning him to class . . . represents a decision of the
District’s administration, not the Board of Education. This decision is not binding, in any
way, on the Board of Education should you choose to continue your appeal and
participate in the appeal hearing . . . . If the appeal hearing takes place, I cannot
guarantee the Board will agree with my decision to shorten the suspension. Moreover, it
is probable that the Board’s written decision may not be formally issued until after
[Plaintiff’s] potential return . . .
(Id.) (emphasis added). Defendant Knost continued, “If you wish to return [S.W.] to Eureka . . .
and withdraw your request for an appeal hearing . . .” (Id.) (emphasis added). Thus, Defendant
Knost inextricably linked S.W.’s return to school with his choice as to whether to dismiss his
appeal before the School Board. Further, in the light most favorable to Plaintiff, when the Court
puts this final statement in the context of the entire letter as well as Defendant Knost’s authority,
S.W. and his parents could have reasonably concluded that S.W. could not return to school if he
chose to continue with his appeal before the School Board. Therefore, his decision to cancel the
hearing before the School Board may not have been the product of a free and deliberate choice.

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c. Sufficient Process
Finally, Defendants assert that they afforded S.W. sufficient process both when they
initially suspended S.W. for 10 days and then thereafter when they suspended him through the
remainder of the school year (Doc. 13 at 33). The nature of the hearing required by due process
depends on an “appropriate accommodation of the competing interests involved bearing in mind
the nature of the governmental function involved and the private interest that will be affected by
governmental action.” Goss, 419 U.S. at 579. In this case, the Court must weigh “the competing
interests between the effective administration of the educational system and the protection of a
student’s entitlement to receive an education within this system . . . .” Dillon v. Pulaski Cty.
Special Sch. Dist., 468 F. Supp. 54, 58 (E.D. Ark. 1978). The question before the Court is not
whether Defendants followed their own procedure in disciplining S.W. but whether the
procedure followed was constitutionally sufficient in light of the competing interests addressed
above.
Initial Ten Day Suspension
At this stage of the litigation and viewing the facts in the light most favorable to Plaintiff,
the Court finds that S.W. may not have been afforded sufficient due process when he was
suspended for ten days. As Defendants correctly note, when facing a suspension of ten days or
less, a student is only entitled to a “rudimentary hearing” which gives the student a chance “to
present his side of the story.” Goss, 419 U.S. at 581-82. See also Dillon, 468 F. Supp. at 58
(“[T]he necessity of a formal hearing including the right of cross-examination has generally been
rejected in cases involving suspensions measured in days.”). However, the undisputed facts
indicate that S.W.’s suspension notice was written in advance of the initial February 11, 2016

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meeting.
Further, Plaintiff raises several additional issues not controverted by Defendants that
could reasonably lead one to believe that the first meeting did not afford S.W. a fair opportunity
to be heard. For example, Plaintiff asserts that Defendant Strauser leaned over the table and,
pointing at S.W., yelled that he had threatened to kill students (Doc. 27 at ¶39). In their response
to this statement of fact, supported by S.W.’s affidavit, Defendants do not appear to respond to
the behavior or provide any evidence to the contrary, instead noting
“Immaterial/Unsupported/Disputed” and stating that a portion of the statement of fact was a
statement of opinion (Doc. 39 at ¶37).
Finally, although there was a second meeting between Defendant Knost, Defendant
Counts, S.W. and his parents after the ten-day suspension was issued, the Court cannot discern
what occurred at the meeting—if S.W. was able to tell his side of the story and the termination of
the suspension was a possibility, or if the meeting was merely a “courtesy” as Defendants
suggest (Doc. 13 at 33). Cf. Engele v. Indep. Sch. Dist. No. 91, 846 F. Supp. 760, 766 (D. Minn.
1994) (finding a student had been given adequate process when although an initial meeting did
not satisfy the requirement that the student be given an opportunity to explain his side of the
story in a neutral setting, subsequent individual meeting met this requirement). Accordingly, the
Court cannot be sure that S.W. received the “informal give-and-take” with school officials
required by law. See Goss, 419 U.S. at 584. See also Doe ex rel. Doe v. Todd Cty. Sch. Dist.,
625 F.3d 459, 464 (8th Cir. 2010) (“The fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful manner.”).

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Subsequent Extended Suspension
At this stage of the litigation and viewing the facts in the light most favorable to Plaintiff,
the Court finds that S.W. may not have been afforded sufficient due process when he was
suspended for more than ten days. In regard to disciplinary action which would have a more
detrimental effect on a student than that imposed by a ten-day suspension, the Supreme Court
noted that more formal procedures might be required. Goss, 419 U.S. at 584. Specifically, “due
process may require that the student be permitted an opportunity to be heard, notice of the time
and place of the hearing, right to counsel, and the right to confront the school official or teacher
having primary knowledge of the facts relevant to the disciplinary proceeding.” Dillon, 468 F.
Supp. at 58.
As with the initial suspension, the facts regarding the process afforded S.W. at the second
disciplinary hearing are in dispute and inconsistent. Specifically, the Court again cannot discern
if S.W. was able to fairly present his side of the story. Given the nature of the underlying serious
allegation against S.W., that he had threatened a group of students, and the District’s ultimate
decision to issue a long term suspension, the Court finds that sufficient process would require at
least the ability to confront the school official or teacher having primary knowledge of the facts
relevant to the disciplinary proceeding and, perhaps also, especially in light of the contested
nature of these events, the ability present evidence and testimony on his behalf. Although
represented by counsel, it is unclear if S.W. was able to confront the school official or teacher
having primary knowledge of the facts relevant to the disciplinary proceeding or what
affirmative information and support S.W. was able to present on his behalf. Defendants do not
appear to contest that S.W. was unable to call two student witnesses and, while this fact is not

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dispositive, the Court is troubled that S.W. may not have been afforded any opportunity to
present evidence on his behalf (Doc. 27 at ¶39; Doc. 39 at ¶39; Pl.’s Ex. A at ¶35; Doc. 4 at ¶39).
Cf. Horton v. Marshall Pub. Sch., 769 F.2d 1323, 1334 (8th Cir. 1985) (finding in cases
involving objective and typically indisputable facts, “it is sufficient that the school district give
the student notice of the reasons for which he will be excluded from school and an opportunity to
respond to and contest those reasons if the student desires”).
2. Arbitrary and Capricious Punishment
Upon review of the Complaint and the Parties’ briefs, the Court is unable to discern
whether Plaintiff raises a first amendment claim with a focus on whether S.W.’s statement was a
“true threat” or whether Plaintiff raises a substantive due process claim asserting Defendants’
conduct was arbitrary and capricious in issuing the decision to suspend S.W. through the
remainder of the school year. Further, to address the first amendment challenge, the Court would
first need to find that S.W. made the alleged threatening statement and, as previously discussed,
the Court is not prepared to do so at this stage of the litigation. Therefore, the Court will allow
Plaintiff to amend her Complaint.
Accordingly, the Court will deny Defendants’ Motion to Dismiss as to Plaintiff’s
procedural due process claim and grant Defendants’ Motion to Dismiss as to Plaintiff’s arbitrary
and capricious punishment claim. Plaintiff will be permitted to amend her Complaint.
C. Monell Liability
Finally, Defendants assert that the Court should dismiss Plaintiff’s Count IX and enter
judgment in favor of the District because Plaintiff fails to allege sufficient facts to establish an
official policy or unofficial custom for municipal liability under Section 1983 (Doc. 13 at 36). In

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Monell v. Dep’t of Social Services, 436 U.S. 658 (1978), the United States Supreme Court held
that an entity, such as the District, may be sued under Section 1983 where “the action that is
alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation,
or decision officially adopted and promulgated” by the entity. 436 U.S. at 690. See also A.R.K.
v. Storz, No. 4:13-CV-1653 CEJ, 2013 WL 6636128, at *3 (E.D. Mo. Dec. 17, 2013). Although
Plaintiff need not identify the specific unconstitutional policy to at this stage, she must, at the
very least, allege facts that would support the existence of an unconstitutional policy or custom.
See Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8th Cir. 2004).
The Court finds the Plaintiff has not sufficiently alleged facts which would support the
existence of an unconstitutional official policy or unofficial custom to establish liability on the
part of the District under Section 1983. In her Complaint, Plaintiff alleges, “Defendants acted
under color of state law in accordance with the District’s policies, customs, or practices when
they suspended S.W. [from] EHS, extended his suspension, and required him to meet with a
therapist before returning” (Doc. 4 at ¶93). However, Plaintiff’s “allegations evidence only the
exercise of discretion by school officials in carrying out official policies.” McCray v. Francis
Howell Sch. Dist., No. 4:08CV1178 CDP, 2009 WL 1774319, at *5 (E.D. Mo. June 23, 2009).
For the District to be liable under Section 1983, Plaintiff must allege facts sufficient to establish
that the District had an unconstitutional official policy or widespread custom such that it is
pervasive enough to be the force of law. Nine v. Wentzville R-IV Sch. Dist., No. 4:11-CV-353
CEJ, 2012 WL 1247415, at *2 (E.D. Mo. Apr. 13, 2012) (quoting Artis, 161 F.3d at 1181).
Plaintiff has failed to alleged facts sufficient to establish this liability. Accordingly, the Court
will dismiss Count IX.

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IV. Conclusion
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss Plaintiff’s Complaint
or, in the Alternative, for Summary Judgment (Doc. 11) is GRANTED, in part and DENIED,
in part.
IT IS FURTHER ORDERED that Plaintiff shall have fourteen (14) days to file an
Amended Complaint in accordance with this Order.
Dated this 30th day of November, 2017.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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