Barrett v. Board of Education of Johnston County, NC et al
ORDER GRANTING 9 Defendant Board of Education of Johnston County's Motion to Dismiss, and GRANTING 23 Motion to Dismiss. Plaintiffs' claims are hereby dismissed, and the clerk is directed to enter judgment accordingly and close this matter. Signed by US District Judge Terrence W. Boyle on 4/8/2014. (Fisher, M.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
TELETHIA BARRETT and G.B.,
BOARD OF EDUCATION OF JOHNSTON
COUNTY, N.C. et ai.,
This matter is before the Court on defendant Board of Education of Johnston County's
("the Board") motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b )(1 ), (2), and
(6) [DE 9], and the individual defendants' motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). [DE 23]. The motions are ripe for adjudication. For the reasons stated herein,
the defendant Board's motion to dismiss is GRANTED and the individual defendants' motion to
dismiss is GRANTED.
Plaintiffs Telethia Barrett and her minor daughter G.B. bring this lawsuit against the
Board and ten individual Board employees seeking injunctive relief and money damages for the
Board's alleged discrimination against plaintiffs that took the form primarily of two letters
banning Barrett, but not her daughter, from Board property throughout the district. The
Complaint alleges 11 causes of action some of which are solely against the Board, some of
which are solely against the individual defendants and some of which are against both the Board
and the individual defendants.
Plaintiffs allege the following causes of action against Board: ( 1) a § 1983 action alleging
discrimination in violation of Title VI and conspiracy to commit the same; (2) a § 1983 action
alleging discrimination in violation of Title VI and conspiracy to commit the same; (3) entity
liability under§ 1983 and Monell v. Dep't ofSoc. Servs. of NY., 436 U.S. 658 (1978); (4)
conspiracy in violation of 42 U.S.C. 1985; (5) conspiracy in violation of 42 U.S.C. § 1986; (6)
intentional infliction of emotional distress ("liED"); (7) violations of the North Carolina
Constitution; and (8) punitive damages.
Plaintiffs allege the following causes of action against the following individual
defendants: (1) a § 1983 claim of retaliation in violation of the First Amendment and conspiracy
to commit the same against Croom, Marsh, Beamon, Godwin, Herridge, Lebo, Edmundson,
Turner, Siegert, and Gardner; (2) a § 1983 claim of retaliation in violation of the First
Amendment and conspiracy to commit the same against Croom, Marsh, Beamon, Godwin,
Herridge, Lebo, Edmundson, Turner, Siegert, and Gardner; (3) supervisory violations of 42
U.S.C. § 1983 against Croom Marsh, Beamon, Godwin, Herridge, Lebo, and Edmundson; (4)
conspiracy in violation of 42 U.S.C. § 1985 against Croom, Marsh, Beamon, Godwin, Herridge,
Lebo, Edmundson, and Turner; (5) conspiracy in violation of 42 U.S.C. § 1986 against Croom,
Marsh, Beamon, Godwin, Herridge, Lebo, Edmundson, and Turner; (6) liED against Croom,
Marsh, Beamon, Godwin, Herridge, Lebo, Edmundson, and Turner; and (7) punitive damages
against Croom, Marsh, Beamon, Godwin, Herridge, Lebo, Edmundson, Turner, Siegert, and
Defendant Board challenges this Court,'s subject matter jurisdiction pursuant to Federal
Rule of Civil procedure 12(b)(l). Under Rule 12(b)(l), the plaintiff bears the burden of showing
that federal jurisdiction is appropriate when challenged by the defendant. McNutt v. General
Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th
Cir. 1982). When the 12(b)(1) motion attacks the complaint as failing to state facts upon which
subject matter jurisdiction may be based, the facts in the complaint are assumed to be true and
the plaintiff is afforded the same protections he or she would receive under a 12(b)(6) motion.
Adams, 697 F.2d at 1219. Governmental immunity is a jurisdictional defense. See, e.g., Medina
v. United States, 259 F.3d 220, 223 (4th Cir. 2001) (potential governmental immunity "affects
jurisdiction"). When considering a motion to dismiss for lack of subject matter jurisdiction, the
Court "is to regard the pleadings' allegations as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the proceeding to one for summary
judgment." Richmond, F. & P. R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). "The
[Court] should apply the standard applicable to a motion for summary judgment, under which the
nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue
of material fact exists" and "[t]he moving party should prevail only if the material jurisdictional
facts are not in dispute and the moving party is entitled to prevail as a matter of law." !d.
All of the defendants have moved to dismiss Plaintiffs' Complaint under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. A Rule I 2(b)(6) motion to dismiss for failure to state a
claim for which relief can be granted challenges the legal sufficiency of a plaintiffs complaint.
Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). When ruling on the motion, the Court
"must accept as true all of the factual allegations contained in the complaint." Erickson v.
Pardus, 551 U.S. 89, 93-94 (2007) (citing Bell At/. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007)). Although complete and detailed factual allegations are not required, "a plaintiff's
obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and
conclusions." Twombly, 550 U.S. at 555 (citations omitted). "Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Similarly, the Court need not accept
as true a plaintiff's "unwarranted inferences, unreasonable. conclusions, or arguments." Eastern
Shore Mkts. v. JD. Assocs. Ltd., 213 F.3d 175, 180 (4th Cir. 2000). The Court is "not bound to
accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555.
Accordingly, to survive a Rule 12(b)( 6) motion, a complaint must contain facts sufficient "to
raise a right to relief above the speculative level" and to satisfy the Court that the claim is
"plausible on its face." !d. at 555, 570.
MINOR PLAINTIFF'S CAPACITY TO SUE.
All of the defendants have moved to dismiss all claims brought on behalf of the minor
plaintiff, G.B. on the grounds that she has not been appointed a guardian ad litem and therefore
lacks the capacity to sue. However, on February 19, 2014, Magistrate Judge Robert B. Jones
entered an order granting plaintiff's motion to appoint a guardian ad litem and appointing Joseph
Barrett, the father of the minor plaintiff, as her guardian ad litem. [DE 33]. Defendants complain
that the motion for the appointment of guardian ad litem occurred too late to properly comply
with North Carolina law. However, that argument should have been used in a memorandum
opposing the motion to appoint, and now it is made too late as the Court has appointed a
guardian ad litem for the minor plaintiff. Accordingly, this Court finds that the minor plaintiff
does have capacity to sue and any argument to the contrary fails defendants.
DEFENDANT BOARD'S MOTION TO DISMISS.
Section 1983 Claims.
Plaintiffs bring two claims against the Board under Section 1983 for racial discrimination
in violation of Title VI of the Civil Rights Act of 1964, 1 and one claim of entity liability under
Section 1983 and Monell. In the first cause of action, plaintiffs contend that the Board
"discriminated against plaintiffs because of their race" by (1) "[t]reating Ms. Barrett differently
than Caucasian parents" by imposing the October 2010 First Ban and agreeing with its
Superintendent and unidentified "managing employees" "not to respond to Ms. Barrett's appeal
of the Board's  ban," (2) retaliating against plaintiffs "because of Ms. Barrett's advocacy
on behalf of African-American students" with respect to "the Board's programs for gifted
students" and "for filing a successful complaint with" the United States Department of
Education's Office of Civil Rights ("OCR"); and (3) refi1sing to enroll G.B. in the Board's
academically and intellectually gifted ("AIG") programs without application and re-testing. The
third cause of action asserts that the Board discriminated against plaintiffs by imposing the
September 2011 Second Ban. The fifth cause of action asserts that the Board is liable under
Section 1983 for all of the alleged deprivations of plaintiffs' rights pursuant to Monell.
"[A] municipality cannot be held liable solely because it employs a tortfeasor- or, in
other words, a municipality cannot be held liable under§ 1983 on a respondeat superior theory."
Section 60 I of Title VI provides "No person in the United States shall, on the ground of race, color, or national
origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. Plaintiffs allege that the Board is a
recipient of Federal funding for the purposes of their§ 1983 claims.
Monell, 436 U.S. at 691. 2 Only in cases where the municipality causes the deprivation 'through
an official policy or custom' will liability attach." Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir.
2003) (quoting Carter v. Morris, 164 F.3d 215,218 (4th Cir. 1999)). "Because section 1983 was
not designed to impose municipal liability under the doctrine of respondeat superior, the 'official
policy' requirement was 'intended to distinguish acts of the municipality from acts of employees
of the municipality, and thereby to make clear that municipal liability is limited to action for
which the municipality is actually responsible."' Riddick v. Sch. Bd. of the City of Portsmouth,
238 F.3d 518,523 (4th Cir. 2000) (quoting Pembaur v. Cincinnati, 475 U.S. 469,479 (1986)). A
municipal policy or custom arises in four ways:
"(1) through an express policy, such as a written ordinance or regulation; (2)
through the decisions of a person with final policymaking authority; (3) through
an omission, such as a failure to properly train officers, that manifests deliberate
indifference to the rights of citizens; or (4) through a practice that is so persistent
and widespread as to constitute a custom or usage with the force of law."
Lytle, 326 F.3d at 471 (citations omitted). Here, plaintiffs' fifth cause of action invokes
municipal policy or custom by alleging, in conclusory terms, the last three methods of finding
such a policy or custom. Plaintiffs claim that the Board is liable for deprivation of plaintiffs'
federally protected rights because the deprivations were the result of (a) the decisions of persons
with final policy making authority for the Board; (b) failures of the Board to act that manifest
deliberate indifference to the rights of citizens like plaintiffs; and (c) a practice of the Board that
is so persistent as to constitute a custom or usage with the force of law. However, these
allegations are conclusions that are unsupported by the alleged facts.
Bare assertions that "amount to nothing more than a formulaic recitation ofthe elements'
of a constitutional discrimination claim" cannot withstand a motion to dismiss. Iqbal, 556 U.S. at
68 I (quotation omitted). Plaintiffs' allegations regarding the Board's liability under § 1983 are
School boards and municipalities are indistinguishable for purposes of§ 1983. Monell, 436 U.S. at 696.
exactly the type of allegations that Iqbal ruled were not enough as they are wholly lacking in
Final policymaking authority.
The complaint does not adequately plead municipal liability based on decision-making by
an authorized "policymaker." "To qualify as a final policymaking official, a municipal official
must have the responsibility and authority to implementfinal municipal policy with respect to a
particular cause of action." Riddick, 238 F.3d at 523 (citation omitted). "[T]he type of policy
making authority which can invoke § 1983 liability is authority to set and implement general
goals and programs of municipal government, as opposed to discretionary authority in purely
operational aspects of government." Lytle, 326 F.3d at 472 (citation omitted). "In order to
determine which officials possess final policymaking authority for the allegedly unconstitutional
action in question, [the Court] must look to the relevant legal materials, including state and local
positive law, as well as custom or usage having the force of law." Riddick, 238 F.3d at 523
Here, none of the actions alleged in the complaint suggest that the allegedly
discriminatory acts plaintiffs describe resulted from decisions or actions of persons with final
policymaking authority for the Board. With respect to the first ban, plaintiffs allege that an
unnamed group of defendants exchanged a series of emails in which they agreed to ban Ms.
Barrett from Board property and then implemented the ban through a letter delivered by
Herridge, the Board's director of elementary education and the interim principal of Cooper
Elementary. Plaintiffs' allegations that Marsh, Herridge, Croom, Beamon, and Godwin have
final policymaking authority for the Board regarding decisions that caused violations of
plaintiffs' federally protected rights are conclusory. Further, they are contrary to law.
None of the individual defendants have, as a matter of North Carolina law, final policy
making authority with respect to Board policy governing the matters raised in the complaint access to Board property, appeal procedures, and enrollment in the AIG programs. North
Carolina vests the Board itself with the authority to make final policy for the local school district.
See N.C. Gen. Stat. § 115C-40. Even the superintendent is not a final policy maker as he is
bound by the decisions of the Board and the Board is not bound by his actions. See N.C. Gen.
Stat. § 1 I 5C-276 ("All acts of local boards of education, not in conflict with State Jaw, shall be
binding on the superintendent, and it shall be his duty to carry out the rules and regulations of the
board."). Absent a showing that the Board itself has directed, participated in, or sanctioned the
challenged action, the superintendent cannot be said to have final policy making authority. See
Love-Lane v. Martin, 355 F.3d 766, 782-83 (4th Cir. 2004) (noting the local board of education
cannot be held liable "for decisions committed to [the superintendent's] discretion" absent a
showing that the board was aware of the alleged constitutional violation "and either participated
in, or otherwise condoned, it" because "there is no respondeat superior liability under § 1983").
Because none of the school board officials and employees named in the complaint are
authorized under state law to exercise final policymaking authority for the Board, the acts and
decisions of the individual defendants cannot be legally said to represent official Board policy
and thus cannot provide the basis for the Board's liability under § 1983. Plaintiffs' conclusory
allegations that the Board can he held liable because the deprivations suffered by plaintiffs
resulted from "the decisions of persons with final policymaking authority" fall well short of the
12(b)(6) pleading standard.
Failures ofthe Board to act.
Section 1983 municipal liability based on failure to act requires a showing of "omissions
on the part of policymaking officials that manifest deliberate indifference to the rights of
citizens." Carter v. lvforris, 164 F.Jd 215, 218 (4th Cir. 1999) (quotation omitted). "[A] plaintiff
must demonstrate .that a municipal decision reflects deliberate indifference to the risk that a
violation of a particular constitutional or statutory right will follow the decision." !d. (emphasis
in original) (quotation omitted).
Here plaintiffs allege that the Board can be held liable under § 1983 because of
unspecified "failures of the Board to act that manifest deliberate indifference to the rights of
citizens like plaintiffs." This is nothing more than a formulaic recitation of the legal standard for
finding municipal liability under § 1983. The complaint offers no non-conclusory factual
allegations that suggest, let alone show, deliberate indifference on the part of the Board, and the
complaint makes no attempt to show a "close fit between the unconstitutional policy and the
constitutional violation." Jd. Indeed, plaintiffs point to no particular policy at all. Accordingly,
plaintiffs do not sufficiently plead municipal liability under § 1983 as a result of the Board's
failure to act.
Custom or practice.
To impose liability on the Board for deprivations of plaintiffs' rights pursuant to a
municipal "custom or practice," "there must be numerous particular instances of unconstitutional
conduct." Lytle, 326 F.3d at 473 (quotation omitted). Here, plaintiffs fail to describe any practice
of the Board that is "so persistent and widespread and so permanent and well settled as to
constitute a custom or usage with the force of law." !d. (quotation omitted). The complaint
describes isolated incidents involving Barrett and her interactions with administrators at Cooper
and Cleveland elementary schools. However, "isolated incidents of unconstitutional conduct by
subordinate employees are not sufficient to establish a custom or practice for § 1983 purposes."
!d. (quotation omitted).
The complaint does not allege or describe numerous particular instances of selective,
district-wide bans imposed on parents on race based grounds that would suggest a widespread
custom or practice of discrimination. The complaint only alleges that Barrett herself was treated
differently from Caucasian parents and thus discriminatorily when she was banned from Board
property. This is a conclusory allegation and the complaint is devoid of allegations of fact which
support a finding of a Board practice that is so persistent as to constitute a custom or usage with
the force of law. Accordingly, plaintiffs again fail to meet the pleading requirements to survive a
motion to dismiss on this issue.
Because plaintiffs have failed to sufficiently allege facts supporting a theory of municipal
liability under § 1983 that satisfies the 12(b)( 6) pleading standard, all of plaintiffs' claims against
the Board alleging liability under § 1983 must be dismissed.
Conspiracy Claims Under Sections 1985 and 1986.
Plaintiffs claim that the Board conspired to deprive plaintiffs of their rights to equal
protection of the laws and/or equal privileges and immunities under the Jaws in violations of 42
U.S. C. § 1985. They further claim that the Board was aware of the alleged conspiracy and had
the power to prevent the wrongs conspired to be done, "yet they neglected or refused to do so,"
in violation of 42 U.S.C. § 1986.
In order to plead a conspiracy in violation of§ 1985,
A plaintiff must prove: (1) a conspiracy of two or more persons, (2) who are
motivated by a specific class-based, invidiously discriminatory animus to (3)
deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4)
and which results in injury to the plaintiff as (5) a consequence of an overt act
committed by the defendants in connection with the conspiracy.
Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995) (citation omitted). "The Fourth Circuit
applies a 'relatively stringent standard for establishing Section 1985 conspiracies."' Mbadiwe v.
Union Mem. Reg'! Med. Ctr., 2005 U.S. Dist. LEXIS 31674, *7 (W.D.N.C. Nov. 28, 2005)
(quoting Simmons, 47 F.3d at 1377). "[A] plaintiff must allege 'concrete facts' showing that
defendants entered into a conspiracy which deprived the plaintiff of her civil rights." Williams v.
Carolinas HealthCare Sys., 2012 U.S. Dist. LEXIS 102014, *12 (W.D.N.C. July 23, 2012); see
also Giacomelli, 588 F:3d at 196-97 ("To plead a violation of § 1985, the plaintiffs must
demonstrate with specific facts that the defendants were motivated by a specific class-based,
invidiously discriminatory animus to deprive the plaintiffs of the equal enjoyment of rights
secured by the law to all.") (quotation omitted); Mauney v. Cricket/Bojangles Coliseum, 2012
U.S. Dist. LEXIS 168748, *18 (W.D.N.C. Oct. 3, 2012) ("Conclusory allegations of a
conspiracy, in the absence of concrete supporting facts, are insufficient to state a claim.").
Here, plaintiffs fail to allege concrete facts from which the Court can infer that an
agreement existed among the defendants to deprive plaintiffs of any protected right. Rather, the
complaint conclusively alleges that the defendants engaged in a conspiracy to deprive plaintiffs
of their rights because of the color of their skin. This amounts to a mere recitation of the
elements of a § 1985 claim and without factual elaboration, these allegations cannot withstand a
motion to dismiss. Accordingly, plaintiffs' claim of conspiracy against the Board in violation of
§ 1985 is dismissed.
"Section 1986 provides a cause of action against any party with knowledge of a § 1985
conspiracy who fails to attempt to prevent the conspiracy." Brisset v. Paul, 1998 U.S. App.
LEXIS 6824, * 10 (4th Cir. Apr. 6, 1998). "[A] § 1986 claim is dependent on the existence of a §
1985 claim." !d. (citation omitted). Because here, plaintiffs' § 1985 claim has been dismissed for
failure to state a claim, their § 1986 claim must be dismissed as well.
"As a general rule, the doctrine of governmental, or sovereign immunity bars action
against, i,vzter alia, the state, its counties, and its public officials sued in their official capacity."
Herring v. Winston-Salem/Forsyth Cnty. Bd. of Educ., 529 S.E.2d 458, 461 (N.C. App. 2000)
(quotation omitted). "The doctrine applies when the entity is being sued fot the performance of a
governmental function." ld "[A] county board of education is a governmental agency, and is
therefore not liable in a tort or negligence action except to the extent that it has waived its
governmental immunity pursuant to statutory authority." Magana v. Charlotte-Mecklenburg Bd.
of Educ., 645 S.E.2d 91, 92 (N.C. App. 2007). A board of education may waive this immunity by
purchasing liability insurance. !d.
Any local board of education, by securing liability insurance as hereinafter
provided, is hereby authorized and empowered to waive its governmental
immunity from liability for damage by reason of death or injury to person or
property caused by the negligence or tort of any agent or employee of such board
of education when acting within the scope of his authority or within the course of
his employment. Such immunity shall be deemed to have been waived by the act
of obtaining such insurance, but such immunity is waived only to the extent that
said board of education is indemnified by insurance for such negligence or tort.
N.C. Gen. Stat. § llSC-42. "[T]his statute provides the only means by which a board of
education may waive its sovereign immunity. Magana, 645 S.E.2d at 93 (citation omitted). North
Carolina Courts strictly construe § 115C-42 against waiver. Lucas v. Swain Cnty. Bd. of Educ.,
573 S.E.2d 538, 54I (N.C. App. 2002).
Here, the complaint alleges that the Board has waived immunity through its procurement
of liability insurance and has thereby waived its governmental immunity irom liability for the
alleged conduct. Because this question is one of jurisdiction, the Court may consider evidence
outside of the pleadings without converting this motion to dismiss into one for summary
judgment. Richmond, F. & P. R. R. Co., 945 F.2d at 768. Therefore, the Court has considered the
affidavits of Melody Coons and Art Stanley submitted by the Board as evidence showing that the
Board has not waived its immunity here.
Section I 15C-42, the only means by which the Board can waive its immunity, provides
for waiver only where the Board has "secur[ed] liability insurance" that is "issued by a company
or corporation duly licensed and authorized to execute insurance contracts in this State or by a
qualified insurer as determined by the Department ofinsurance .... "N.C. Gen. Stat. § 1 I 5C-42.
Here, the Board has not purchased liability insurance that meets the statutory requirements, and
instead participates in the North Carolina School Boards Trust ("NCSBT"). The Board's
participation in the NCSBT does not qualify as a purchase of "insurance" under the statute. See,
e.g., Lucas, 572 S.E.2d at 540-42; Craig v. New Hanover Cnty. Bd. of Educ., 648 S.E.2d 923,
925 (N.C. App. 2007), rev'd on other grounds, 678 S.E.2d 351 (N.C. 2009).
As the NCSTB is the sole source of potential insurance coverage in this case and it does
not meet the express requirements for waiver of immunity established in § 115C-42, the Court
lacks jurisdiction to consider plaintiffs' liED claim against the Board as it has properly invoked
its sovereign immunity here.
Violations ofthe North Carolina Constitution Claim.
A plaintiff can assert a direct claim under the North Carolina Constitution only when
there is no adequate remedy at common law or under a state statute. See Corum v. Univ. of N C.,
413 S.E.2d 276, 289 (N.C. 1992) (holding that in the absence of an adequate state remedy, a
claimant has a direct claim against the state under the N.C. Constitution); Craig, 678 ·S.E.2d at
354 (citing Corum). For an adequate state law remedy to exist, the remedy "must provide the
possibility of relief under the circumstances." Id at 355. "[T]o be considered adequate in
redressing a constitutional wrong, a plaintiff must have at least the opportunity to enter the
courthouse doors and present his claim." !d. Further, North Carolina Courts "have found
adequate state law remedies to exist where a state law claim against an officer in his individual
capacity remains even after the dismissal of official capacity claims against another defendant."
Maney v. Fealy, 2013 U.S. Dist. LEXIS 100248, *28-29 (M.D.N.C. Jul. 18, 2013) (collecting
Here, plaintiffs have alleged an liED claim against not only the Board, but also the
individual defendants in their official and individual capacities. The individual capacity claims
are not subject to governmental immunity, and are based on the same violations of rights as the
claims against the Board. Therefore, plaintiffs are not barred from entering the courthouse and
presenting their claims. This means that plaintiffs have an adequate remedy under state law that,
if successful, would compensate them for the injuries they allege. 3 Accordingly, their direct
claims under the North Carolina Constitution against the Board must be dismissed.
It is noted here that a plaintiff's inability to adequately plead the elements of a common law tort claim does not
render a remedy unavailable within the meaning of Corum. See Cooper v. Brunswick Cnty. Bd. of Educ., 2009 U.S.
Dist. LEX IS 450 I 0, * II (E.D.N.C. May 26, 2009) (holding that what matters is that the remedy is available,
existing, and applicable, not whether the plaintiff could or could not use it to sue a preferred defendant).
It is well settled that, absent statutory provisions to the contrary, municipalities are
"immune from punitive damages under 42 U.S.C. § 1983." City of Newport v. Facts Concerts,
Inc., 453 U.S. 247, 271 (1981). No statutory exception permits an award of punitive damages
against the Board and the complaint alleges no exception, so the Board is immune from punitive
damages here. Accordingly, plaintiffs' claim for punitive damages against the Board is
INDIVIDUAL DEFENDANTS' MOTION TO DISMISS.
Section 1983 Claims.
Plaintiffs bring two claims against all ten individual defendants in their individual
capacities under § 1983 for retaliation in violation of the First Amendment. The first of these
claims asserts that the individual defendants conspired with the Board to retaliate against
plaintiffs because Ms. Barrett engaged in conduct protected by the First Amendment when she
complained to the Board's officials and employees about race-based discrimination in the
Board's enrollment of students in its AIG programs. The alleged retaliation took the form of
subjecting G.B. to physical and verbal abuse and other harassment and later banning Ms. Barrett
from all property owned or controlled by the Board indefinitely. The second retaliation claim
asserts that the individual defendants took adverse action against Ms. Barrett and G.B. because
Ms. Barrett engaged in constitutionally protected conduct in filing a complaint with OCR
accusing the Board of race discrimination. With respect to this claim, the alleged retaliation took
the form of subjecting G.B. to physical and verbal abuse, exclusion, and other harassment and
again banning Ms. Barrett from all property owned or controlled by the Board.
Plaintiffs further allege that individual defendants Croom, Marsh, Beamon, Godwin,
Herridge, Lebo, and Edmundson are liable for supervisory violations of § 1983 in their
individual capacities. Plaintiffs allege that these defendants had actual or constructive knowledge
that their subordinates were engaged in conduct that posed a pervasive and unreasonable risk of
constitutional injury to citizens like plaintiffs and that their response to that knowledge was so
inadequate as to show deliberate indifference to or tacit authorization of their subordinates'
Abuse and harassment of G.B.
Plaintiffs' claims are dismissed to the extent plaintiffs attempt to rely on the "physical
and verbal abuse, exclusion, and other harassment" to which G.B. was allegedly exposed. These
allegations are entirely conclusory and are unsupported by any allegation of fact describing the
alleged abuse, exclusion, and harassment. The complaint only mentions these allegations in
passing and does not even attempt to build a factual background for them. [DE 1
Accordingly, only the first,and second bans are relevant to plaintiffs' retaliation claims.
Qualified immunity protects government officials sued in their individual capacities
"from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known." Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quotation omitted). To determine whether qualified
immunity applies, the Court must "(1) identify the right allegedly violated, (2) consider whether
at the time of the alleged violation the right was clearly established, and (3) determine whether a
reasonable person in [the official's] position would have known that his actions violated that
right." Love-Lane, 355 F.3d at 783. The last two prongs of the qualified immunity test tum on
"the objective legal reasonableness of the action, assessed in light of legal rules that were clearly
established at the time it was taken." Cole v. Buchanan Cnty. Sch. Bd., 328 F. App'x 204, 208
(4th Cir. 2009) (unpublished) (quoting Wilson v. Layne, 526 U.S. 603,614 (1999)).
Although not controlling, Cole is instructive. In Cole, a local newspaper reported brought
a § 1983 retaliation claim against four individual members of the local school board as well as
the board itself after the board voted to ban him from all school property throughout the county,
allegedly because he exercised his First Amendment right to publish articles critical of the board.
328 F. App'x at 207. "The appropriate inquiry here is whether a reasonable Board member could
have believed that banning [plaintiffs] from the [Johnston] County school grounds was lawful, in
light of clearly established law and the information Board members possessed." !d. at 210. This
analysis focuses on whether the ban itself, the Board's activity, was lawful.
In answering that inquiry, the Fourth Circuit considered the broad "authority of school
boards to control access to school grounds" in order to "detennine the objective reasonableness
of the board's conduct," noting that "[a] school board ... has inherent authority to restrict access
to the property that it controls." !d. at 208-09 (citations omitted). Further, many courts have held
that parents do not have a constitutional right to be on school premises. Justice v. Farley, 2012
U.S. Dist. LEXIS 3284, *7 (E.D.N.C. Jan. 11, 2012) (collecting cases). Because it was
established that "a school board has broad authority to restrict access to school grounds" and that
"the Board has wide latitude in making detenninations about access to school grounds," "a
reasonable Board member certainly could have believed banning Cole from school property was
lawful." Cole, 328 F. App'x at 209-11.
Applying the inquiry to the facts alleged in this case, this Court reaches the same
conclusion of the Fourth Circuit in Cole and finds that the individual defendants here are entitled
to qualified immunity. A reasonable Board employee could have believed that banning a parent
from access to Board property would not violate the parent's constitutional rights. Such an
employee also could have believed that parents have no constitutional right of access to school
premises and that the bans of Ms. Barrett from Board property were lawful given the wide
discretion afforded school officials to make determinations about who should have access to
school grounds. Because the conduct complained of did not violate a clearly established right,
the individual defendants are entitled to the protections afforded by the qualified immunity
doctrine and plaintiffs' § 1983 claims tied to the banning of Ms. Barrett from Broad property are
iii. Supervisory violations of section 1983.
"[S]upervisors and municipalities cannot be liable under § 1983 without some predicate
constitutional injury at the hands of the individual state officer, at least in suits for damages."
Waybright v. Frederick Cnty., 528 F.Jd 199, 203 (4th Cir. 2008) (quotation and alteration
omitted). Further, it would be logically incoherent for there to be supervisory § 1983 liability
where qualified immunity protects the subordinates, but not the supervisor. If it was reasonable
for the employees to believe that no rights were being violated by their ban of Ms. Barrett, it
would be similarly reasonable for their supervisors to see no reason to respond. Further, the
qualified immunity afforded to the employees shows the engaged in conduct did not pose a
pervasive and unreasonable risk of constitutional injury. Accordingly, plaintiffs' supervisory
liability under § 1983 claim is dismissed.
Conspiracy Claims Under Sections 1985 and I 986.
Plaintiffs claim that eight of the ten individual defendants, in both their individual and
official capacities, along with the Board, conspired to deprive plaintiffs of their rights to equal
protection of the laws and/or equal privileges and immunities under the laws in violation of 42
U.S.C. § 1985. They further claim that the same defendants were aware of the alleged conspiracy
and had the power to prevent the wrongs conspired to be done, yet they neglected or refused to
do so in violation of 42 U.S.C. § 1986. As explained supra Part III.B, the plaintiffs' allegations
are of an implausible conspiracy that is offered only in conclusory terms. Plaintiffs fail to offer
the allegations of when, where, how, and why defendants conspired to deprive plaintiffs of their
rights. Accordingly, plaintiffs have failed to meet the 12(b)(6) pleading standard and these
claims must be dismissed.
Plaintiffs assert a claim for intentional infliction of emotional distress against individual
defendants Croom, Marsh, Beamon, Godwin, Herridge, Lebo, Edmundson, and Turner. To state
a claim for IIED, plaintiffs must allege "(1) extreme and outrageous conduct, (2) which is
intended to cause and does cause (3) severe emotional distress to another." Dickens v. Puryear,
276 S.E.2d 325, 335 (N.C. 1981). Liability for liED arises only when a defendant's conduct is
"so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."
Briggs v. Rosenthal, 327 S.E.2d 308, 311 (N.C. App. 1985) (quotation omitted). "The
determination of whether the conduct alleged was intentional and was extreme and outrageous
enough to support such an action is a question of law.... " Lenin.r; v. K-Mart Corp., 391 S.E.2d
843, 848 (N.C. App. 1990).
Here the plaintiffs have not alleged any conduct on the part of any individual defendant
that could be reasonably regarded as extreme and outrageous enough to support an liED action.
The complaint does not specify which alleged acts by any of the defendants form the basis for
plaintiffs' liED claim, and a review of all of the alleged facts provides no basis for such a claim.
First, the allegations that G.B. was subjected to physical and verbal abuse and other harassment
are conclusory and offer no specificity as to when these incidents occurred or who propagated
them as explained supra Part IV.A.i. Therefore these alleged facts cannot form the basis of an
liED claim as they do not meet the pleading standard. Second, banning Ms. Barrett cannot be
said to be extreme or outrageous conduct that is sufficient to support an liED claim. As
explained supra Part IV.A.ii there is no parental right of access to Board property and no
reasonable person could view banning a parent from Board property as violating of any rights.
Accordingly it is not sufficient to support an liED claim. As plaintiffs can point to no properly
pleaded facts which can support their TIED claim, it must be dismissed.
The individual defendants are entitled to qualified immunity with respect to plaintiffs'
First. Amendment retaliation claims and plaintiffs have failed to adequately allege any other
claims against the individual defendants. Therefore they have no surviving claims which can
support punitive damages and their claim for such damages must be dismissed. Hunter v. Town
of Mocksville, 2013 U.S. Dist. LEXIS 150765,
* 33 (M.D.N.C. Oct. 21, 2013).
For the foregoing reasons, the defendants' motions to dismiss are GRANTED. Plaintiffs'
claims for relief are hereby DISMISSED. The clerk is directed to enter judgment accordingly
and to close the file.
SO ORDERED. This the
day of April, 2014.
TE RENCE W. BOYLE
UNITED STATES DISTRICT J DGE
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