DOE v. DURHAM PUBLIC SCHOOLS BOARD OF EDUCATION et al
Filing
29
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 1/25/2019. For the reasons stated, Doe's motion to dismiss (Doc. 11 ) is GRANTED and all claims against Defendants Judd, Hester, and Ha rris in their official and individual capacities are DISMISSED WITHOUT PREJUDICE. FURTHER that Doe's motion to amend the complaint (Doc. 23 ) is DENIED as futile as to the claims against Defendants Judd and Hester; Doe's motion to amend is otherwise GRANTED, as no Defendant has opposed amendment as they affect the remaining claims. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOHN DOE,
Plaintiff,
v.
DURHAM PUBLIC SCHOOLS BOARD OF
EDUCATION, CARL HARRIS, Ed.D.,
Individually and in his
Official Capacity as former
Superintendent of Durham
Public Schools; LETICIA JUDD,
Individually and in her
Official Capacity as former
Principal of Creekside
Elementary School, NATHAN
HESTER, Individually and in
her Official Capacity as
former Assistant Principal of
Creekside Elementary School,
and GINA WATRING, a/k/a GINA
BERGMAN, a/k/a GINA CORDERO,
Defendants.
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1:17cv773
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, Chief District Judge.
This civil action arises out of the alleged sexual assault
and rape of a student by a former dance teacher at the Creekside
Elementary
(“DPS”).
School
(“Creekside”)
of
the
Durham
Public
Schools
Plaintiff John Doe, having now reached the age of
majority, brought this action against the DPS Board of Education
(“School Board”); Carl Harris, its former Superintendent; Leticia
Judd and Nathan Hester, Creekside’s former Principal and Assistant
Principal, respectively; and Gina Watring, a former dance and drama
teacher at Creekside.
(Doc. 1.)
Defendants School Board, Harris,
Judd, and Hester (“DPS Defendants”) moved to dismiss certain claims
pursuant to Federal Rule of Civil Procedure 12(b)(6).
(Doc. 11.)
Doe filed a “Conditional Motion for Leave to File Amended and
Substituted Complaint.” (Doc. 20.)
A hearing was held on both the
motion to dismiss and the conditional motion to amend, and the
court denied Doe’s conditional motion to amend without prejudice
because
he
failed
to
attach
required by Local Rule 15.1.
motion
(Doc.
23)
and
a
proposed
(Doc. 22.)
proposed
amended
complaint
Doe filed a corrected
pleading
(Doc.
eliminates Harris as a defendant (Doc. 24 at 2).
25-1),
which
The motions have
been fully briefed and are ready for consideration.
15, 16, 24, 27, 28.)
as
(Docs. 12,
For the reasons set forth below, the motion
to amend will be granted in part and denied in part, and the motion
to dismiss will be granted.
I.
BACKGROUND
A.
Complaint
The allegations of the complaint, which are accepted as true
and viewed in the light most favorable to Doe for purposes of the
present motions, show the following:
During the 2008-2009 school year, Doe was enrolled as a fourth
grade student at Creekside.
(Doc. 1 ¶ 28.)
was Watring, who taught dance and drama.
2
One of his teachers
(Id. ¶ 29.)
In the fall
of
2008,
Watring
began
developing
inappropriate
“friend”
relationships with Doe and other students whom she singled out for
favoritism.
(Id. ¶ 33.)
She showed special attention to Doe,
placing him in the front row of her classroom and giving him extra
candy and prizes in class.
(Id. ¶ 32.)
Outside of class, she
placed herself in close physical contact with Doe, frequently
hugging him and spending time with him during lunch.
32.)
(Id. ¶¶ 31–
Doe regularly visited Watring’s classroom both before and
during school hours, often at Watring’s invitation.
(Id. ¶ 43.)
Watring conducted her classes in a school modular classroom trailer
located on the campus, whose door locked from the inside and
windows had coverings.
school
in
the
(Id. ¶ 42.)
mornings,
he
would
When Doe was dropped off for
often
meet
Watring
in
her
classroom trailer before class and was frequently late to his
homeroom class as a result.
(Id. ¶¶ 44-45.)
The trailer was in
plain view of Creekside employees and school officials due to its
location near the playground.
(Id. ¶ 44, 52.)
Watring also gave Doe rides home from school in her car, even
though she lacked proper authorization to do so.
(Id. ¶¶ 34-40.)
Creekside had a policy of keeping a list of authorized adults to
take each child home from school, requiring parents to sign a form
indicating which adults had permission to pick up the child.
¶ 36.)
(Id.
A non-parent was supposed to show a special permission
card to school employees in order to take a child home from school.
3
(Id.)
The relevant DPS Policy provided that “[i]n no case shall
a person other than an authorized parent/guardian be permitted to
take a student home from school until or unless the principal is
satisfied that such person has the approval of the authorized
parent/guardian.”
(Doc. 1 ¶ 61; Doc. 1-1 at 1.)
DPS Policy
further provided that “[i]t shall be the responsibility of the
principal or his designee to determine that any person appearing
at a school and requesting permission to take a student from the
school is properly authorized to do so.”
(Doc. 1 ¶ 61; Doc. 1-1
at 1.)
Doe was to ride the bus home from school every day, while
Watring’s children, who also attended Creekside, were to ride home
in her car.
(Id. ¶ 35.)
Doe’s mother initially gave verbal
consent for Watring to drive Doe home, because Doe was friends
with Watring’s daughter.
provided
written
(Id. ¶ 38.)
authorization
per
However, Doe’s mother never
the
school’s
policy
and,
subsequently, revoked her verbal permission later in the school
year.
(Id. ¶¶ 39-40.)
Watring would sometimes take Doe out of
the bus line “in plain view of other teachers and administrators”
to drive him home.
(Id. ¶ 35.)
On many of these occasions,
Watring would ask another teacher to place her own children on the
bus, so that she could be alone with Doe.
(Id.)
Even after Doe’s
mother revoked her verbal permission, Watring continued to drive
Doe home from school and drop him off down the street from his
4
house to conceal Watring’s involvement from Doe’s mother.
¶ 40.)
(Id.
Between January and March of 2009, at least five DPS
employees observed, on different occasions, Doe leaving the school
premises alone with Watring.
(Id. ¶ 41.)
During the fall of 2008, Watring took Doe to a “Family Night”
event at Creekside along with her own children, who were Doe’s
friends and attended the school.
(Id. ¶ 48.)
During the movie
screening that was part of the event, Watring laid down very close
to Doe on a blanket in full view of the individual DPS Defendants
and school staff.
(Id.)
In January or February of 2009, Watring gave Doe a cell phone
to communicate exclusively with her both during and after school
hours.
(Id. ¶¶ 32, 49.)
regularly
exchanged
Watring and at least one other teacher
texts
with
students.
(Id.
¶ 50.)
This
practice was known by other teachers at Creekside and by the DPS
Defendants, although it is not alleged they knew that Watring gave
Doe the phone.
(Id.) 1
On February 14, 2009, Doe brought Valentine’s Day gifts to
Watring and several other teachers.
(Id. ¶ 54.)
Doe received an
oversized Hershey’s chocolate kiss from another student, which he
gave to Watring.
(Id.)
When the student complained, Doe was sent
1
At the time of Watring’s arrest, it was estimated that she had exchanged
approximately 4,000 messages with Doe through text messages, email, and
instant messenger. (Doc. 1 ¶ 98.)
5
to the office of the principal or assistant principal as a result.
(Id.)
no
A school counselor spoke with Doe about his behavior, but
additional
investigation
relationship with Watring.
was
undertaken
regarding
Doe’s
(Id.)
Beginning in the fall of 2008 and continuing into the spring
of 2009, Watring sexually abused Doe on at least eight occasions
on school premises, and this sexual abuse ultimately escalated to
rape.
(Id. ¶ 27.)
During some of Doe’s visits to her classroom
trailer, Watring would lock the door and sexually abuse Doe.
¶ 46.)
(Id.
On one unknown date in 2009, a school employee attempted
to enter the trailer, but found it locked.
(Id. ¶ 53.)
The school
employee reported the locked door to Principal Judd, but no action
was taken by the DPS Defendants or Creekside employees.
¶ 53.)
(Id.
On no occasion is it alleged that anyone at the school
knew of any sexual abuse.
In March of 2009, Watring transported Doe home from school
without permission.
(Id. ¶ 59.)
proceeded to sexually abuse him.
in the mud.
(Id.)
She parked on a dirt road and
(Id.)
But her car became stuck
Another teacher from Creekside happened to
pass by at the time and stopped to see if everything was alright.
(Id.)
Doe exited the car and walked the rest of the way home.
(Id.) It is unclear whether the teacher ever reported the incident
to school administrators, but no investigation was undertaken as
a result.
(Id. ¶¶ 59-60.)
On two different occasions in March
6
2009,
a
teacher’s
assistant
similarly
observed
Watring
leave
school with a male student in her car but made no report to school
administrators.
(Id. ¶ 78.)
At some point in February or March 2009, Ms. Barclift, Doe’s
homeroom
teacher,
submitted
a
behavioral
report
to
school
administrators in which she noted that Doe had made inappropriate
comments in class regarding the size of his genitalia and discussed
graphic details of male and female genitalia over lunch with fellow
students.
(Id. ¶ 56.)
However, DPS Defendants did not undertake
any investigation in response or notify Doe’s parents about the
report.
(Id. ¶ 57.)
Around this time, Barclift also received
anonymous complaints that Watring was showing blatant favoritism
towards Doe.
(Id. ¶ 58.)
On March 17, 2009, Barclift submitted a written report to
Principal Judd, Assistant Principal Hester, and other School Board
employees detailing her concerns about the inappropriate behavior
she observed Watring engage in around Doe and other students as
well as complaints she had received from other students.
¶ 71–72.)
Hester.
(Id.
The following day, Judd met with Barclift, Watring, and
(Id. ¶ 72.)
Barclift reported that Watring had engaged
in inappropriate behavior with students, including taking bites
out of students’ food and hand-feeding food to students in the
cafeteria, playing sexually suggestive and explicit music for
students on her iPod during lunch, and encouraging students to
7
come
to
teachers.
her
classroom
(Id.)
trailer
without
permission
from
other
In addition, Barclift reported that Watring
showed favoritism to students, particularly Doe, and reported
instances of Watring kissing Doe on the head and hugging him.
(Id.)
Barclift stated that she no longer felt comfortable sending
her students to Watring’s class.
(Id.)
Watring did not deny any
of these allegations, but she sought to justify her actions on the
ground that she was friends with many of the students and their
families outside of school.
(Id. ¶ 73.)
Defendants verbally
cautioned Watring to “draw a clear line so that students would
understand that she [Defendant Watring] is their teacher at school”
but
did
not
further
investigate
(alteration in original).) 2
her
behavior.
(Doc.
¶ 75
At no time between the March 18, 2009
meeting and April 21, 2009, did the DPS Defendants notify Doe’s
parents of Watring’s behavior toward Doe or that a special meeting
had been called to address such behavior.
(Id. ¶ 83.)
Beginning in mid-March through mid-April of 2009, Barclift
observed Watring give Doe a bracelet with an engraving as well as
2
The DPS Policy on “Student-Staff Relations” provided that “[a]ny
employee who has reason to believe that another employee is
inappropriately involved with a student . . . [including entering into
a romantic or sexual relationship with a student] shall report this
information to the Human Resources Department.” (Doc. 1 ¶ 67 9alteration
in original); Doc. 1-2 at 1.) The DPS Policy on “Sexual Harassment”
also mandated that “all complaints of sexual harassment shall be promptly
reported and thoroughly investigated” and provides that “a student does
not have to report an incident of harassment to trigger an investigation
if a school official knows or, in the exercise of reasonable care, should
have known about the harassment.” (Doc. 1 ¶ 74; Doc. 1-3 at 1.)
8
other
special
gifts,
and
she
observed
frequent
inappropriate
student-teacher behavior, including Watring hugging Doe several
times a day and making other bodily contact with him.
(Id. ¶ 79.)
Barclift and at least one other teacher noticed an uncharacteristic
change in Doe’s behavior during this period as Doe began acting
more withdrawn, engaged in talk of a sexual nature with other
students that was mature for his age, and failed to abide by school
rules, regularly arriving late to class.
(Id. ¶ 80.)
On March 24, 2009, Barclift reported to Hester that she
observed Doe going into Watring’s classroom trailer before class.
(Id. ¶ 81.)
Hester subsequently stopped Doe in the hall with a
late slip in the morning, and Doe stated that he had gone to
Watring’s trailer to “say hello.”
(Id.)
Hester directed Doe to
go straight to class and later emailed Watring to instruct her to
tell Doe to go straight to class in the morning.
(Id.)
Hester
did not conduct any further investigation into the incident. (Id.)
On March 31, 2009, Barclift reported to Judd that Watring had
given bandanas to Doe and other students as gifts and became very
upset upon learning from the school that the students could not
keep them.
(Id. ¶ 84.)
Judd did not undertake any investigation
into Watring’s conduct, but rather instructed Watring to speak
with the students involved and their parents about “being simply
a teacher at school and nothing more.”
(Id.)
On April 20, 2009, Doe wrote Watring a love note, which read
9
“Gina, I love you sooo much babe. I’m lucky to have you. I’m glad
you feel the same way. I want to be with you forever. I’d never do
anything to hurt you. Love, [Doe].”
(Id. ¶ 88.)
The note was
retrieved from a trashcan in the classroom by a classmate, who
delivered it to Barclift.
the same day.
(Id.)
Barclift gave the note to Hester
(Id.)
The next day, April 21, Judd called Doe’s mother for a meeting
with Hester and Doe regarding the love note.
mother
told
Judd
that
she
had
already
(Id. ¶ 90.)
instructed
Doe’s
Watring
to
maintain appropriate boundaries with Doe and to stop bringing Doe
home from school.
with
Doe
about
(Id.)
Doe’s mother stated she had also spoken
maintaining
an
appropriate
relationship
with
Watring and had taken the steps necessary to prevent personal
contact between them outside of school.
(Id.)
Doe’s mother
explained that she believed her son had a crush on his teacher and
that all contact between them outside of school had stopped. (Id.)
Watring was then brought into the meeting and reported that her
daughter, Emily, and Doe were boyfriend and girlfriend.
(Id.)
Watring reiterated that she had spoken with Doe’s mother about
limiting her relationship with Doe to that of a teacher and
student.
(Id.)
No further inquiry, investigation, or remedial
measures were undertaken by the DPS Defendants or other Creekside
employees.
(Id. ¶ 91.)
Shortly thereafter, Doe’s mother alerted Judd that she found
10
another note, and Judd reported the situation with Watring to the
School Board.
(Id. ¶ 92.)
At this time, a report was made to law
enforcement. (Id.) On April 23, 2009, DPS Defendants and/or other
Creekside
employees
began
relationship with Doe.
an
investigation
(Id. ¶ 93.)
into
Watring’s
Watring was subsequently
arrested and pled guilty to sexual offenses against Doe that
occurred beginning on March 1, 2009.
(Id. ¶ 97, 100.)
Following Watring’s arrest, Doe moved to a separate school in
DPS where he was bullied and harassed by fellow classmates because
of his relationship with Watring.
that
the
School
Board
failed
(Id. ¶¶ 103-06.)
to
provide
DPS
Doe alleges
employees
with
reasonable notice or training as to its bullying and harassment
policy.
(Id. at 107-09.)
As a result, Doe contends, DPS employees
failed to identify or respond to this bullying and harassment.
(Id. ¶ 110.)
2013.
Doe ultimately dropped out of school in the fall of
(Id. ¶ 111.)
B.
Proposed Amended Complaint
The proposed amended complaint reiterates most of the same
facts as the original complaint but modifies them as follows:
The allegations eliminate the phrase “DPS Defendants,” or
titles
of
“principal”
or
“assistant
principal”
and
instead
specifies each Defendant by name.
See, e.g. (Doc. 25-1 ¶¶ 20–22,
25, 30, 43, 45, 47–48, 56, 59–61.)
The proposed amended complaint
changes the full names of teachers and teaching assistants to their
11
initials to protect their privacy as they continue to be public
employees. (Id. at 16 n.3.)
Specific details are added to factual
occurrences already alleged in the original complaint: it adds
that
Watring
was
forty
years
old
(id.
¶ 24),
that
Barclift
completed the behavioral report detailing Doe’s discussion of his
genitalia in or about February 2009, and that the report was made
on an official School Board form and submitted to Hester by leaving
it in a box outside his door for receiving documents, that Barclift
did not receive a response to the report from Hester (id. ¶¶ 72–
73), that Watring raped Plaintiff on April 9, 2009 as well as April
10 (id. ¶ 127), and provides the specific dates for each of the
offenses to which Watring pled guilty (id. ¶ 142).
amended
complaint
also
adds
information
The proposed
about
Barclift’s
observations of Doe becoming “quiet, sad, unengaged, and unwilling
to help in class,” and of Watring seeing and touching Doe, giving
him special gifts, eating lunch with him, and acting in front of
other
teachers
relationship.”
and
students
“like
they
were
in
an
adult
(Id. ¶¶ 49–51.)
The proposed amended complaint adds facts about training at
the school: it alleges that Barclift recognized the signs of an
inappropriate teacher-student relationship between Doe and Watring
from her training and experience working for a different employer
(Doc. 53-1 ¶¶ 52–53), that Barclift had never received training
from
the
School
Board
on
how
12
to
recognize
the
signs
of
inappropriate teacher-student relationships (id. ¶ 53), and that
no teachers or teaching assistants at Creekside during the 2008–
2009 year received any on the job training on how to recognize the
signs
of
an
improper
teacher-student
relationship
or
how
to
recognize grooming behavior (id. ¶ 109).
The proposed amended complaint adds specific details that
several teachers were aware that Doe was leaving school with
Watring while Watring’s own children took the bus, that Watring
was never on the list of adults authorized by Doe’s parents to
take him home from school, that Watring never possessed a “special
card” showing that she had permission to take Doe home from school,
and that Doe’s parents were never asked to give written consent
for anyone else to transport their child.
(Id. ¶¶ 38, 40, 79–82.)
It also adds that the teaching assistant who observed Watring
taking a male student home in her car after school did not report
the incident to anyone until she was questioned by law enforcement.
(Id. ¶ 57.)
The proposed amended complaint adds the observations and
opinions of other teachers about Watring’s conduct: Watring’s
conduct toward Doe was the subject of conversation among other
teachers (id. ¶ 33); a teacher observed Watring give Doe her own
sweatshirt when Doe went to school without a jacket, but the
teacher did not report the conduct to anyone (id. 25-1 ¶ 58); a
substitute
teacher
and
teaching
13
assistant
observed
that
Doe
changed from being happy to sad, would finish his work early to
look out the window at Watring’s trailer, and when asked what he
was looking at, Doe’s classmates would respond that he was looking
at Watring’s trailer because Doe and Watring were in a relationship
(id. ¶ 64); students told a teaching assistant that they thought
the teacher knew about the relationship between Watring and Doe
(id. ¶ 65); a teaching assistant observed that when Doe went to
the bathroom students would say that Doe had gone to see Watring
(id. ¶ 66); on at least four occasions in spring 2009 Doe and other
children snuck away from outside activities to go to Watring’s
trailer, that Watring directed the children to sneak off one by
one to avoid detection (id. ¶ 67); students were heard by Barclift
and a teaching assistant to tease Doe because Watring was giving
him gifts (id. ¶ 68); a teacher observed Watring waiting in the
hallway to wave at Doe, passing notes or stickers to Doe as he
walked by, and the teacher thought Doe and Watring had a special
relationship
that
was
“more
familiar
than
what
she
would
be
comfortable with” (id. ¶ 69); teachers and students were aware
that Doe called Watring by her first name, “Gina” (id. ¶ 78); and
Barclift’s teaching assistant thought that Barclift was “flipped
off” by Judd and Hester in their response to Barclift’s complaints
(id. ¶ 118).
The proposed amended complaint also adds that Judd
knew of the existence of the “Watring Club,” a group of five or
14
six students Watring encouraged to spend extra time with her.
(Doc. 25-1 ¶ 34.)
Watring’s inappropriate conduct continued and “escalated”
following the March 18, 2009 meeting with Judd and Hester.
¶ 121.)
(Id.
As of the end of March 2009 when Watring’s conduct
escalated to rape, neither of Doe’s parents had been notified by
Judd or Hester that a complaint had been made that their child was
the subject of inappropriate conduct by a teacher.
(Id. ¶ 125.)
Added to the list of injuries Doe suffers as a result of the
alleged
misconduct
function.
II.
is
altered
mental
intellectual
processing
(Id. ¶ 156.)
ANALYSIS
In his original complaint, Doe alleges six claims for relief.
The first claim alleges that the School Board violated Title IX of
the Educational Amendments of 1972 (“Title IX”), 20 U.S.C. § 1981.
(Doc. 1 ¶¶ 115–28.)
The second claim alleges constitutional
violations by the School Board, Harris, Judd, and Hester, of Doe’s
“right as a public school student to personal security and bodily
integrity and Equal Protection” under the Fourteenth Amendment
pursuant to 42 U.S.C. § 1983.
(Doc. 1 ¶¶ 129–43.)
The third claim
alleges negligence by the School Board, Harris, Judd, and Hester.
(Doc. 1 ¶¶ 144–52.)
The fourth claim alleges negligent infliction
of emotional distress against the School Board, Harris, Judd, and
Hester.
(Doc. 1 ¶¶ 153–58.)
The fifth claim alleges battery by
15
Defendant
Watring,
and
the
sixth
claim
alleges
intentional
infliction of emotional distress by Defendant Watring, for which
Doe seeks punitive damages pursuant to N.C. Gen. Stat § 1D-15.
(Doc. 1 ¶¶ 159–72.)
DPS Defendants move to dismiss Doe’s complaint as to all
claims against Defendants Harris, Judd, and Hester. (Doc. 11 ¶¶ 1–
3.)
DPS Defendants move to dismiss the official capacity claims
against Harris, Judd, and Hester on the ground that they are
duplicative of claims alleged against the School Board, and they
move to dismiss the individual capacity claims on the grounds that
Harris, Judd, and Hester are entitled to qualified immunity and,
alternatively, the complaint fails to state a claim upon which
relief can be granted.
(Doc. 11 ¶¶ 2–3; Doc. 12 at 11, 18.)
The proposed amended complaint alleges six claims for relief
against various defendants. (Doc. 25-1.) The three claims against
the
School
Board,
for
violations
of
Title
negligence, respectively, remain the same.
IX,
§ 1983,
and
(Doc. 25-1 ¶¶ 157–96.)
The second claim for relief is amended to clarify that the § 1983
claim is brought against Judd and Hester in their individual
capacities (Doc. 25-1 ¶¶ 129–43), and the third claim for relief
is amended to clarify that the negligence claim is brought against
Judd and Hester in their official capacities (Doc. 25-1 ¶¶ 187–
96.)
The amended complaint no longer alleges negligent infliction
of emotional distress.
The fourth claim alleges the same battery
16
claim against Watring, the fifth claim brings a new negligence
claim against Watring, and the sixth claim is an alternative claim
for intentional infliction of emotional distress against Watring.
(Doc. 25-1 ¶¶ 197–219.)
The proposed amended complaint omits Harris as a Defendant
and drops any claim for punitive damages against the School Board.
Defendants do not oppose the withdrawal of either.
A.
Standard of Review
Federal Rule of Civil Procedure 15(a)(2) provides that “a
party may amend its pleading only with the opposing party’s written
consent or the court’s leave.
when justice so requires.”
The court should freely give leave
While district courts have discretion
to grant or deny a motion to amend, leave should be “freely given”
absent “any apparent or declared reason — such as undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of
the amendment, futility of amendment, etc.”
Foman v. Davis, 371
U.S. 178, 182 (1962).
“When a proposed amendment is frivolous or advances a claim
or defense that is legally insufficient on its face, the motion to
amend should be denied.”
190 (E.D.N.C. 1987).
Joyner v. Abbott Labs, 674 F. Supp. 185,
“To determine whether a proposed amended
complaint would be futile, the Court reviews the revised complaint
17
under the standard used to evaluate a motion to dismiss for failure
to state a claim.”
Amaya v. DGS Constr., LLC, 326 F.R.D. 439, 451
(D. Md. 2018) (citing Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d
462, 471 (4th Cir. 2011)).
“A motion to amend a complaint is
futile ‘if the proposed claim would not survive a motion to
dismiss.’”
Pugh v. McDonald, 266 F. Supp. 3d 864, 866 (M.D.N.C.
2017) (quoting James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099
(D.C. Cir. 1996)).
The purpose of a motion under Rule 12(b)(6) is to “test[] the
sufficiency
of
a
complaint”
and
not
to
“resolve
contests
surrounding the facts, the merits of a claim, or the applicability
of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992).
In considering a Rule 12(b)(6) motion, a
court “must accept as true all of the factual allegations contained
in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam), and
all
reasonable
inferences
must
be
drawn
in
the
plaintiff’s favor, Ibarra v. United States, 120 F.3d 472, 474 (4th
Cir. 1997).
To be facially plausible, a claim must “plead[]
factual content that allows the court to draw the reasonable
inference that the defendant is liable” and must demonstrate “more
than a sheer possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 556 (2007)).
against
meritless
litigation
by
18
“Rule 12(b)(6) protects
requiring
sufficient
factual
allegations ‘to raise a right to relief above the speculative
level’
so
as
to
‘nudge[]
conceivable to plausible.’”
the[]
claims
across
the
line
from
Sauers v. Winston-Salem/Forsyth Cty.
Bd. of Educ., 179 F. Supp. 3d 544, 550 (M.D.N.C. 2016) (quoting
Twombly, 550 U.S. at 555). Mere legal conclusions are not accepted
as true, and “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
Rather, the court must determine “whether
the factual allegations, which are accepted as true, ‘plausibly
suggest an entitlement to relief.’”
Sauers, 179 F. Supp. 3d at
550 (quoting Iqbal, 556 U.S. at 681).
B.
Motions to Amend and to Dismiss
Doe argues that his proposed amended complaint “reduces the
number of parties, narrows the issues for decision, and clarifies
the capacities in which the named individual defendants are being
sued.”
(Doc. 24 at 7.)
Defendants argue that the court should
deny the motion to amend as futile and based on undue delay.
27 at 12.)
(Doc.
Because the court agrees as to the former, it need not
reach the latter.
Defendants argue that Doe’s motion to amend should be denied
for futility, because the proposed amended allegations would be
insufficient to overcome Defendants’ motion to dismiss.
(Doc. 27
at 12–13.) In sum, Defendants argue that Doe’s individual capacity
claims against Judd and Hester fail to state a claim under § 1983
19
and that the allegations are insufficient to overcome Judd and
Hester’s qualified immunity.
(Doc. 27 at 13.)
Doe contends that
the proposed amended claims for individual liability under § 1983
are viable and that Defendants are not entitled to qualified
immunity.
(Doc. 28 at 2, 7, 11.)
Defendants also argue that Doe’s
proposed amended claims are futile because the official capacity
claims duplicate Doe’s claims against the School Board.
at 21–23.)
Doe contends otherwise.
(Doc. 27
(Doc. 24 at 13–16.)
In addressing the present motions, the court will first
consider the pending motion to dismiss the complaint.
As to any
claim that should be dismissed, the court will then determine
whether the proposed amended complaint would cure those defects or
be futile.
1.
Pleading of Individual Capacity Claims
DPS Defendants first argue that Doe failed to adequately plead
a claim as to Harris, Judd, or Hester in their individual capacity
under either § 1983 or state law because the complaint fails to
clearly state the capacity in which the Defendants are being sued.
(Doc. 12 at 7.)
As such, DPS Defendants contend that Doe’s claims
should be considered to have been made in their official capacity
and dismissed as duplicative.
(Id. at 7–11.)
Doe contends the
allegations are sufficient and, alternatively, notes that the
proposed amended complaint makes such allegations clear. See (Doc.
25-1 ¶¶ 19-22, & at 52, 63.)
20
A plaintiff may bring a claim against a government official
in his or her official and individual capacity under both federal
and state law.
Kentucky v. Graham, 473 U.S. 159, 165 (1985);
Mullis v. Sechrest, 495 S.E.2d 721, 723 (N.C. 1998).
The North
Carolina Supreme Court has held that “when the complaint does not
specify the capacity in which a public official is being sued for
actions taken in the course and scope of his employment, we will
presume that the public official is being sued only in his official
capacity.”
White v. Trew, 736 S.E.2d 166, 167 (N.C. 2013).
This
court has recognized that “[a]lthough [the official capacity]
presumption may exist under North Carolina law, it does not apply
in the context of a Section 1983 suit.”
Huger v. Anderson, No.
1:12CV1242, 2014 WL 3107294, at *2 (M.D.N.C. July 7, 2014) (citing
Biggs v. Meadows, 66 F.3d 56, 60 (4th Cir. 1995).
While the complaint’s allegations and prayer for relief do
not clearly delineate the capacity in which the defendants are
being sued, the caption expressly states that the claims are being
brought against the DPS Defendants in their individual and official
capacities. (Doc. 1 at 1.)
As Doe notes, DPS Defendants have cited
no instance in which a plaintiff was found not to have adequately
pleaded an individual capacity claim under either federal or state
law
where
complaint.
authority.
it
was
delineated
(Doc. 15 at 5.)
as
such
in
the
caption
of
the
Nor is the court aware of any such
See Mullis, 495 S.E.2d at 724 (“For example, including
21
the
words
capacity’
‘in
his
after
official
a
capacity’
defendant's
defendant's status.”).
name
or
‘in
his
obviously
individual
clarifies
the
In addition to specifying the nature of
the claims in the caption, the complaint asserts damages “jointly
and severally” against all Defendants and seeks punitive damages
as to the individual DPS Defendants, which are not recoverable in
official capacity claims under § 1983. See Huger, 2014 WL 3107294,
at *3 (finding plaintiff adequately stated individual capacity
claim under § 1983 where complaint, among other things, sought
punitive damages).
Therefore,
adequately
the
pleaded
court
finds
individual
that
Doe’s
capacity
complaint
claims
has
against
the
individual DPS Defendants under both § 1983 and state law.
2.
Section 1983 Claims
a.
Due Process
Defendants
i.
Claims
Against
Individual
DPS
Motion to Dismiss
Doe first alleges that the individual DPS Defendants violated
his constitutional right to bodily integrity under the Due Process
Clause.
“Section 1983 imposes liability on state actors who cause
the ‘deprivation of any rights, privileges, or immunities secured
by the Constitution.’” Doe v. Rosa, 795 F.3d 429, 436 (4th Cir.
2015).
include
“Under established precedent, these constitutional rights
a
Fourteenth
Amendment
22
substantive
due
process
right
against state actor conduct that deprives an individual of bodily
integrity.”
Id. at 436–37.
Accordingly, sexual molestation of a
student by a teacher is a constitutional injury for purposes of
§ 1983.
Id. at 437; Baynard v. Malone, 268 F.3d 228, 235 n.4 (4th
Cir. 2001).
“It is well settled that ‘supervisory officials may be held
liable in certain circumstances for the constitutional injuries
inflicted by their subordinates.’”
Baynard, 268 F.3d at 235
(quoting Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994)).
To
establish supervisory liability under § 1983, a plaintiff must
demonstrate the following:
(1) that the supervisor had actual or constructive
knowledge that his subordinate was engaged in conduct
that posed a pervasive and unreasonable risk of
constitutional injury to citizens like the plaintiff;
(2) that the supervisor's response to that knowledge was
so inadequate as to show deliberate indifference to or
tacit authorization of the alleged offensive practices
[]; and (3) that there was an affirmative causal link
between the supervisor's inaction and the particular
constitutional injury suffered by the plaintiff.
Id. (quoting Shaw, 13 F.3d at 799).
“[A]lthough not specifically
mentioned in this articulation of the standard, a supervisor's
failure to train his employees can subject him to liability where
the failure to train reflects a ‘deliberate indifference’ to the
rights of citizens.” Armstrong v. City of Greensboro, 190 F. Supp.
3d 450, 466 (M.D.N.C. 2016) (quoting Layman v. Alexander, 294 F.
Supp. 2d 784, 793–94 (W.D.N.C. 2003)).
23
“To establish the first element of actual or constructive
knowledge,
‘a
plaintiff
must
show
the
following:
(1)
the
supervisor's knowledge of (2) conduct engaged in by a subordinate
(3) where the conduct poses a pervasive and unreasonable risk of
constitutional injury to the plaintiff.’”
Armstrong, 190 F. Supp.
3d at 467 (quoting Shaw, 13 F.3d at 799).
“[T]he absence of a
pattern of factual, rather than conclusory, allegations, will fail
to support the knowledge element.”
Id.
“To establish the second element, a plaintiff must allege
either tacit authorization or deliberate indifference.”
Id.
The
Fourth Circuit has recognized:
Deliberate indifference is a very high standard — a
showing
of
mere
negligence
will
not
meet
it. . . . Actions that in hindsight are unfortunate or
even imprudent will not suffice. . . .
Indeed, a
supervisory official who responds reasonably to a known
risk is not deliberately indifferent even if the harm is
not averted.
Baynard, 268 F.3d at 236 (internal citations and quotation marks
omitted).
As several courts have noted, “the law makes it difficult for
a Plaintiff to successfully sue a school official for failing to
detect
or
rights.”
prevent
Doe
v.
a
violation
Lockhart
of
ISD,
a
No.
student's
constitutional
1:12-CV-869-JRN,
2014
WL
12580435, at *4 (W.D. Tex. Apr. 24, 2014) (citing Doe v. Dallas
Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998)).
official
is
not
deliberately
indifferent
24
merely
A school
because
the
measures he or she takes are ultimately ineffective in preventing
a teacher from abusing students.
Baynard, 268 F.3d at 236;
Williams v. Fulton Cty. Sch. Dist., 181 F. Supp. 3d 1089, 1128
(N.D. Ga. 2016) (citations omitted).
However, a school official
who fails to reasonably respond to “mounting evidence of potential
misconduct” by a teacher may, depending on the circumstances, be
found to have acted with deliberate indifference.
Baynard, 268
F.3d at 236; Williams, 181 F. Supp. 3d at 1128 (“[A] principal who
fails
to
appropriately
respond
to
repeated
reports
of
a
subordinate’s abuse of students may, depending on the facts of the
case, be said to act with deliberate indifference.” (citations
omitted)); compare Baynard, 268 F.3d at 235–36 (holding that a
rational jury could conclude that the principal was deliberately
indifferent due to the “failure to respond to mounting evidence of
potential misconduct,” including a previous allegation of sexual
abuse by the teacher, and “desultory efforts at ‘monitoring’” the
offending
teacher
despite
explicit
orders
from
the
superintendent), and Jennings v. Univ. of N.C., 482 F.3d 686, 701–
02 (4th Cir. 2007) (holding that university official was not
entitled to summary judgment as to plaintiff’s § 1983 supervisory
liability claim, where the official failed to take any action
regarding
plaintiff’s
complaint
of
sexual
harassment),
with
Sanders v. Brown, 257 F. App'x 666, 672 (4th Cir. 2007) (holding
that plaintiff failed to establish genuine dispute of fact as to
25
deliberate
indifference
where
the
principal’s
responses
to
complaints regarding alleged instances of sexual abuse by the
accused teacher were “immediate, reasonable, and appropriate” and
she “took direct and specific actions based on the results of her
investigation” in the form of oral and written reprimands).
As to Harris, Defendants argue that the complaint fails to
allege that he had actual or constructive knowledge of Watring’s
conduct.
(Doc. 12 at 13.)
Further, Defendants contend that the
complaint makes no allegation of any specific act or omission on
the part of Harris, apart from conclusory allegations regarding
the “DPS Defendants.”
(Doc. 12 at 14.)
In response, Doe cites to
various portions of the complaint and asserts that the complaint’s
use of the term “DPS Defendants” is not so unduly vague as to
warrant dismissal.
(Doc. 15 at 8-10.)
“[I]n order to state a claim for supervisory liability, ‘a
plaintiff must plead that each [supervisory] defendant, through
the
official's
Constitution.”
2012)
own
individual
actions,
has
violated
the
Evans v. Chalmers, 703 F.3d 636, 661 (4th Cir.
(Wilkinson,
J.,
concurring)
(alteration
in
original)
(quoting Iqbal, 556 U.S. at 676) (citing Robbins v. Oklahoma, 519
F.3d
1242,
1250
(10th
Cir.
2008)
(affirming
dismissal
of
supervisory liability claim where complaint failed to “isolate the
allegedly unconstitutional acts of each defendant”)).
Apart from
referring to Harris in conclusory allegations made against “DPS
26
Defendants”
collectively,
the
complaint
does
not
provide
any
individualized allegation that he, as superintendent, was ever
personally consulted regarding Watring’s behavior or present for
the relevant events in question.
fail
to
state
a
plausible
claim
These collective allegations
that
Harris
had
actual
or
constructive knowledge that Watring posed an unreasonable risk of
constitutional injury to her students.
allegations
that
Harris
engaged
in
Absent additional factual
affirmative
conduct
that
exposed Doe to a pervasive and unreasonable risk of harm, the
complaint fails to allege a plausible claim that he acted with
deliberate indifference.
See Iqbal, 556 U.S. at 662; RM by &
through MM v. Charlotte-Mecklenburg Cty. Bd. of Educ., No. 3:16CV-00528-GCM, 2017 WL 2115108, at *7 (W.D.N.C. Mary 15, 2017);
B.A.L. by & through Stephenson v. Laramie Cty. Sch. Dist. No. 1,
No. 2:16-CV-00091, 2016 WL 10570871, at *6 (D. Wyo. Nov. 30, 2016).
Therefore, the § 1983 due process claim against Harris in his
individual capacity will be dismissed.
As to Defendants Judd and Hester, they first contend that
they lacked actual or constructive knowledge to give rise to
supervisory liability, contending that “at most” they were “on
notice
that
Watring
including Plaintiff.”
was
showing
favoritism
(Doc. 16 at 9.)
towards
students,
Defendants further argue
that Hester’s and Judd’s responses, even if ineffective, are
insufficient to establish deliberate indifference.
27
(Doc. 16 at 9-
10.)
Doe reiterates his argument that he has alleged a plausible
supervisory liability claim against all individual DPS Defendants.
(Doc. 15 at 13.)
The complaint alleges that Watring groomed Doe for sexual
abuse and engaged in suspicious behavior, some of which was in
plain view of DPS Defendants, including showing overt favoritism
toward Doe and other students, engaging in physical contact with
Doe and open displays of affection (e.g., hugging him and kissing
him on his head), driving Doe home from school without proper
authorization,
and
permitting
frequent
visits
by
Doe
to
classroom trailer without permission from other teachers.
e.g., Doc. 1 ¶¶ 32, 35, 44, 94.)
her
(See
While Doe alleges that Watring
engaged in suspicious behavior that could have been observable to
the DPS Defendants, the complaint contains no allegation that any
of
the
individual
DPS
Defendants
was
actually
aware
of
such
behavior prior to receiving Barclift’s written report on March 17,
2009. 3
home
While some Creekside employees observed Watring take Doe
from
school,
there
are
no
allegations
that
any
of
the
individual DPS Defendants was informed that Watring gave Doe rides
home from school without proper authorization.
51, 59-60, 78.)
(See id. ¶¶ 41,
At no point were any of the individual DPS
3
The complaint does allege that the individual DPS Defendants were
notified of Doe’s comments in class about his genitalia and his similar
comments at lunch with his fellow students. (Doc. 1 ¶ 56.)
28
Defendants
ever
informed
of
any
allegation
that
Watring
was
sexually abusing Doe.
Even though Judd and Hester failed to detect or prevent
Watring’s sexual abuse of Doe, the complaint alleges that both
Judd and Hester promptly responded to most reports of Watring’s
suspicious behavior. 4
After receiving Barclift’s report on March
17, 2009, Judd and Hester held a meeting the next day with Watring
and Barclift and verbally cautioned Watring about her behavior.
(Id. ¶ 75.)
On March 24, 2009, when Hester received a report from
Barclift that she observed Doe going to Watring’s trailer before
class, Hester subsequently stopped Doe in the hallway when he had
a late slip, questioned where he had been, and instructed him that
he should go straight to class each morning.
(Id. ¶ 81.)
Hester
also told Watring “to reinforce the message to [Doe] that he should
come straight to class in the morning.”
(Id.)
On or about March
31, 2009, Judd learned that Watring had become upset upon learning
that Doe and other students were unable to keep the bandanas she
gave them.
(Id. ¶ 84.)
Judd again cautioned Watring to speak
4
In February or March 2009, Barclift submitted a behavioral report
regarding Doe’s inappropriate behavior to the DPS Defendants, but no
further investigation into the report was undertaken and Doe’s parents
were not notified. (Doc. 1 ¶¶ 56-57.) The complaint alleges that “on
an unknown date in 2009” a school employee reported to Judd that the
door to Watring’s trailer had been locked but DPS Defendants undertook
no investigation or corrective action. (Doc. 1 ¶ 53.) Absent additional
allegations, however, Judd and Hester’s failure to respond to these
reports does not rise to the level of deliberate indifference.
See
Baynard, 268 F.3d at 236.
29
with both the students and parents about maintaining a studentteacher relationship.
(Id.)
When Hester received Doe’s love note
that Barclift found in the trash on April 20, 2009, Judd called
Doe’s mother for a meeting the next day with Hester and Watring to
discuss it.
(Id. ¶ 88, 90.)
At this time, Watring was confronted,
but she deflected concerns with an explanation that her daughter
and Doe were boyfriend and girlfriend, and Doe’s mother explained
her belief that Doe had a crush on Watring and that “the contact
outside of school had stopped.”
(Id. ¶ 90.)
After the meeting,
Judd became aware that Watring had been observed texting before
class.
(Id. ¶ 92.)
When Doe’s mother subsequently reported that
she had found another incriminating note, Judd promptly made a
report to the School Board and alerted law enforcement on April
23, 2009.
(Id. ¶¶ 92-93.)
Assuming (without deciding) that the complaint adequately
alleges that Judd and Hester had constructive knowledge of an
unreasonable
risk
of
constitutional
injury
to
Doe
or
any
of
Watring’s students, 5 Doe fails to allege sufficient facts to make
it
plausible
indifference.
that
either
administrator
acted
with
deliberate
To be sure, the complaint alleges that Judd and
Hester were made aware of behavior by Watring that went beyond
5
Cf. Doe v. Russell Cty. Sch. Bd., No. 1:16CV00045, 2017 WL 1374279, at
*9 (W.D. Va. Apr. 13, 2017) (holding that principal had actual or
constructive knowledge of substantial risk of sexual abuse posed by
custodian, even though alleged grooming behaviors could have been subject
to benign interpretation).
30
merely showing favoritism towards students, including hand-feeding
food to students in the cafeteria, encouraging students to come to
her classroom trailer without permission, and regularly kissing
Doe on the head and hugging him.
(Id. ¶ 72.)
But Judd and Hester
collectively provided Watring with three warnings.
them
for
not
conducting
any
additional
Doe faults
investigation
into
Watring’s behavior or taking steps to alert Doe’s parents, and he
faults the individual DPS Defendants for failure to adequately
train school employees to identify and report instances of sexual
abuse.
See, e.g., (id. ¶¶ 69-70.)
While Judd’s and Hester’s responses ultimately may not have
been
effective,
they
do
not
amount
to
either
deliberate
indifference to, or tacit authorization of, Watring’s behavior.
Notably, neither Judd nor Hester is alleged to ever have received
any statement or notice that Watring was sexually abusing Doe or
anyone else at the school.
Cf. Baynard, 268 F.3d at 236.
While
both Judd and Hester failed to take any action after receiving
Doe’s behavioral report from Barclift, they promptly held a meeting
to
discuss
behavior.
Barclift’s
subsequent
report
regarding
Watring’s
And although Judd failed to take action regarding an
employee’s report to her that Watring’s modular classroom door was
locked at some unidentified date and time, there is no allegation
that anyone knew whether Watring or Doe was inside or that the
employee’s report even suggested that.
31
The complaint demonstrates
that
upon
receiving
most
reports
of
allegedly
inappropriate
conduct by Watring, both administrators acted promptly, albeit
allegedly ineffectively.
Cf. Williams, 181 F. Supp. 3d at 1128–
29 (holding that plaintiff stated a § 1983 supervisory liability
claim against principal where complaint alleged facts suggesting
that
principal
knew
offending
teacher
was
“harming
disabled
students for three years and did nothing about it — or worse, took
actions that may have condoned or encouraged it”).
With all favorable inferences drawn in Doe’s favor, the
complaint’s factual allegations plausibly suggest that Judd and
Hester
were
at
most
negligent
in
responding
to
evidence
of
potential misconduct on the part of Watring but fail to meet the
“very high standard” of deliberate indifference.
Cf. Baynard, 268
F.3d at 236; cf. B.A.L., 2016 WL 10570871, at *4 (denying motion
to dismiss § 1983 claim based on supervisory liability, where
school
principal
teacher’s
had
relationship
received
with
multiple
student
over
complaints
a
regarding
two-year
period,
personally observed the teacher give the student a ride home from
school in violation of school policy, and met with the teacher
regarding her behavior on four separate occasions but failed to
alert the child’s guardian or take any substantive corrective
action).
Thus, the due process claims against the individual DPS
Defendants will be dismissed.
32
ii.
Futility of Motion to Amend
Doe’s proposed amended complaint clarifies that the § 1983
claims are brought against Judd and Hester in their individual
capacities.
(Doc. 24 at 8.)
It alleges that both are liable as
supervisors of Watring, under both a general supervisory liability
theory and a failure to train theory.
(Doc. 24 at 8; Doc. 28 at
2.)
(a)
Supervisory Liability
Doe first alleges that the individual DPS Defendants violated
his
constitutional
right
to
“personal
integrity” under the Due Process Clause.
proposed
amended
complaint
changes
security
and
bodily
(Doc. 25-1 ¶ 173.)
the
phrasing
in
The
several
allegations from “DPS Defendants” collectively to the individual
names
of
the
DPS
Defendants,
individual DPS Defendant took.
to
clarify
what
actions
each
Doe argues that Judd and Hester
had actual or constructive knowledge to give rise to supervisory
liability,
and
that
Judd
and
Hester’s
inaction
constituted
deliberate indifference “to the open and obvious grooming and
sexual assault of Plaintiff.” (Doc. 24 at 11–12; Doc. 25-1 ¶ 175.)
Defendants
respond
demonstrate
that
that
Judd
or
the
proposed
Hester
had
allegations
actual
or
do
not
constructive
knowledge of Watring’s sexual abuse of Doe, or that their response
showed deliberate indifference.
(Doc. 27 at 14.)
The proposed amended complaint adds numerous allegations of
33
instances where Creekside teachers observed suspicious behavior
concerning Watring and Doe, but it does not allege that any of
these observations were ever reported or made known to Judd or
Hester.
See (Doc. 25-1 ¶¶ 33–34, 57–58, 64–69, 78–82.)
The
proposed amended complaint contains no allegation that either Judd
or Hester was actually aware of Watring’s suspicious behavior prior
to receiving Barclift’s written report on March 17, 2009. 6 While
some Creekside employees observed Watring take Doe home from
school, there is no allegation that either Judd or Hester was
informed that Watring gave Doe rides home from school without
proper authorization.
At no point was either Judd or Hester ever
informed of allegations that Watring was sexually abusing Doe.
Therefore, the facts in the proposed amended complaint fail to
plausibly allege that either Judd or Hester had actual knowledge
that Watring was engaged in conduct that posed a pervasive and
unreasonable risk of constitutional injury to citizens like Doe.
It
is
a
closer
question
whether
Judd
and
Hester
had
constructive knowledge of an unreasonable risk of constitutional
harm to Watring’s students since the proposed amended complaint
does allege that Judd and Hester knew or should have known that
Watring was employing a number of grooming behaviors, including
6
The complaint does allege that Barclift submitted a behavioral report
to Hester in February 2009 that notified Hester of Doe’s comments in
class about his genitalia and his similar comments at lunch with his
fellow students. (Doc. 25-1 ¶ 72.)
34
frequently
without
inviting
permission,
students
being
to
visit
her
inappropriately
classroom
physical
trailer
with
and
obsessive over Doe in particular, frequently giving Doe rides from
school alone, regularly displaying overt favoritism toward Doe and
other students, and engaging in other inappropriate behavior such
as hand-feeding students at lunch in the cafeteria, and that these
behaviors were open, obvious, and known to several Creekside
teachers.
alleges
(Doc. 25-1 ¶¶ 32, 110, 175.)
that
Judd
or
Hester
could
have
The amended complaint
easily
learned
about
Watring’s inappropriate conduct, as it was readily known by several
teachers at Creekside and occurred in plain view at the school.
Id.; cf. Doe by Watson v. Russell Cty. Sch. Bd., No. 1:16CV00045,
2017 WL 1374279, at *9 (W.D. Va. Apr. 13, 2017) (holding that
principal had actual or constructive knowledge of substantial risk
of sexual abuse posed by custodian, even though alleged grooming
behaviors could have been subject to benign interpretation).
Were the court to assume (without deciding) that the proposed
amended complaint plausibly alleges that Judd and Hester had
constructive knowledge that Watring was engaged in conduct that
posed a pervasive and unreasonable risk of constitutional injury
to students, it nevertheless fails to plausibly allege that Judd
and Hester demonstrated either deliberate indifference to, or
tacit authorization of, Watring’s behavior.
Notably, neither Judd
nor Hester is alleged to ever have received any statement or notice
35
that Watring was sexually abusing Doe or anyone else at the school.
See Kline ex rel. Arndt v.Mansfield, 255 F. App’x 624, 628 & n.5
(3d Cir. 2007) (unpublished) (finding that school defendants were
not deliberately indifferent, but instead were merely possibly
negligent in failing to recognize a high risk of harm where the
inappropriate teacher-student behavior reported was visiting the
teacher’s classroom without permission, but school officials had
no notice of any sexual misconduct); cf. Baynard, 268 F.3d at 236.
The proposed amended complaint adds several details regarding
the actions of Judd and Hester.
It clarifies that Barclift’s
behavioral report was submitted to Hester, Barclift received no
response
response.
regarding
it,
and
Hester
(Doc. 25-1 ¶¶ 72–74.)
took
no
investigation
in
The proposed amended complaint
also alleges that Judd and Hester failed to take any action after
an employee reported that Watring’s trailer door was locked. 7 (Id.
¶ 59.)
Doe also alleges that neither Judd nor Hester undertook an
investigation after he gave Watring Valentine’s Day candy that had
7
While the proposed amended complaint does add the allegation that the
employee attempted to enter Watring’s trailer while Doe and Watring “were
inside embracing,” there is no allegation that the employee saw or knew
that Doe and Watring were inside the trailer, since the employee “could
not get in because the door was locked.” (Doc. 25-1 ¶ 59). There is
also no allegation that any report of Watring and Doe’s presence inside
the trailer was made to either Judd or Hester, but only that “the school
employee reported the door being locked to Defendant Judd, or to
Defendant Hester.” (Id.) Thus, the additional factual allegations about
this incident do not change the court’s analysis of whether Judd’s or
Hester’s responses to reports of Watring’s inappropriate behavior toward
Doe amounted to deliberate indifference.
36
been given to him by another student and the school counselor spoke
with him about it.
(Id. ¶¶ 60–61.)
Doe argues that the proposed
amended complaint alleges that after receiving written notice of
Watring’s inappropriate behavior on March 17, 2009, and verbal
notice on March 18, 2009, Judd and Hester failed to conduct any
investigation
or
protected Doe.
take
any
remedial
measure
that
would
(Id. ¶ 110, 112, 117; Doc. 28 at 10.)
have
But the
allegations still indicate that Judd and Hester took prompt action
in response to most reports or incidents.
After
Barclift
complained
to
Judd
about
Watring’s
inappropriate behavior and favoritism toward students in January
or February 2009, Barclift and Judd met on three separate occasions
between January or February and early March to discuss Watring’s
inappropriate behavior.
(Doc. 25-1 ¶¶ 87–88.)
After Barclift
presented her written concerns to Judd on March 17, 2009, Judd
held a meeting with Watring, Barclift, and Hester the next day,
during
which
Judd
instructed
Watring
“that
her
inappropriate
behavior had to stop and that she should draw a ‘clear line’
between herself and her students regardless of whether she knew
them personally.”
(Id. ¶¶ 110–13.)
Judd and Hester gave Watring
a verbal warning to “draw a clear line so that students would
understand
school.”
that
she
(Id. ¶ 116.)
[Defendant
Watring]
is
their
teacher
at
When Barclift reported to Hester that she
saw Doe going to Watring’s trailer before class, Hester stopped
37
Doe and spoke with him, telling him to go straight to class in the
morning; and, that same day, Hester emailed Watring to remind her
to “reinforce the message to Plaintiff that he should come straight
to class in the morning.”
(Id. ¶ 122–23.)
When Barclift told
Judd on March 31 about Watring giving students bandanas as gifts,
Judd told Watring to “speak with the students involved and their
parents about Watring being simply a teacher at school and nothing
more.”
(Id. ¶ 126.)
When the love note Doe wrote to Watring was
found on April 20, Judd and Hester met the next day with Doe’s
mother to discuss the note and held a separate meeting with Watring
to discuss it.
(Id. ¶¶ 130–31.)
After the April 21 meeting, when
Doe’s mother reported another note to Judd, Judd reported the
situation
to
the
office
of
the
superintendent
and
to
law
enforcement authorities, and on April 23, the investigation into
Watring’s inappropriate conduct began.
(Id. ¶¶ 133–34.)
The proposed amended complaint demonstrates that each time a
complaint about Watring was reported to Judd or Hester, both took
reasonably prompt remedial action (in most instances within a
day), 8 even though the action was ineffective.
Cf. Williams, 181
F. Supp. 3d at 1128–29 (holding that plaintiff stated a § 1983
8
The proposed amended complaint is not clear about what day Doe’s mother
found the second note, but it does make clear that the investigation
into Watring commenced on April 23, 2009, two days after Judd and
Hester’s meeting regarding the first note, indicating that, if the second
note was found on the same day as the April 21 meeting, the investigation
began at most two days after the report triggering the investigation was
made. (Doc. 25-1 ¶¶ 133–34.)
38
supervisory
liability
claim
against
principal
where
complaint
alleged facts suggesting that principal knew offending teacher was
“harming disabled students for three years and did nothing about
it — or worse, took actions that may have condoned or encouraged
it”).
Doe
alleges
that
Judd
and
Hester
acted
with
reckless
indifference to the safety of students, including Doe, by relying
upon Watring, a pedophile, to create and enforce an appropriate
boundary between herself and her students.
(Doc. 25-1 ¶ 135.)
But there are no facts alleged in the amended complaint indicating
that Judd and Hester knew or should have known that Watring was a
pedophile who was unable to create appropriate boundaries with her
students; there are no allegations of prior inappropriate conduct
by Watring or that any reports of sexual misconduct or sexually
inappropriate behavior were made to Judd and Hester.
See Kline,
255 F. App’x at 628 & n.5 (finding that, where the record “did not
show
that
the
school
officials
had
notice
of
any
sexual
misconduct,” they were not deliberately indifferent but were at
most negligent in failing to recognize a high risk of harm); cf.
Baynard,
268
F.3d
at
233
(finding
that
the
principal
had
constructive knowledge of an unreasonable risk of constitutional
injury to students after being told from several sources that the
abusive teacher was a pedophile who had sexually abused former
students, and the principal also saw a student sitting in the
39
teacher’s lap); Jennings, 482 F.3d 686 (where the university
received reports of the soccer coach making explicitly sexual
comments
to
the
students,
engaging
in
sexual
touching
with
students, and interrogating students regarding their sex lives).
Given that the reports to Judd and Hester about Watring detailed
inappropriate student-teacher boundaries, rather than conduct of
a sexual nature, these facts fail to demonstrate that Judd and
Hester’s responses to their knowledge of the situation was so
inadequate
as
to
show
deliberate
indifference
or
tacit
authorization of Watring’s behavior.
Drawing all favorable inferences in Doe’s favor, the court
finds
that
the
factual
allegations
of
the
proposed
amended
complaint plausibly suggest that Judd and Hester were at most
negligent in responding to evidence of potential misconduct on the
part of Watring but fail to meet the “very high standard” of
deliberate indifference.
Baynard, 268 F.3d at 236; cf. B.A.L.,
2016 WL 10570871, at *5.
Therefore, the motion to amend as to
Doe’s general supervisory liability claims against Judd and Hester
will be denied as futile.
(b)
Failure to Train
An allegation of a failure to train can be the basis for
liability
under
§ 1983
if
the
failure
to
train
amounts
to
deliberate indifference to the rights of students and the lack of
training is closely related to the ultimate injury.
40
See City of
Canton v. Harris, 489 U.S. 378, 387, 391 (1989).
A failure to
train claim has three elements:
(1) the subordinates actually violated the plaintiff’s
constitutional or statutory rights; (2) the supervisor
failed
to
train
properly
the
subordinates
thus
illustrating a “deliberate indifference” to the rights
of the persons with whom subordinates come into contact;
and (3) this failure to train actually caused the
subordinates to violate the plaintiff’s rights.
Lacy v. DeLong, No. 2:13-cv-14813, 2016 WL 3566242, at *9 (S.D.W.
Va. June 27, 2016) (quoting Brown v. Mitchell, 308 F. Supp. 2d
682, 701 (E.D. Va. 2004)).
To meet the “stringent standard of fault” created by the
deliberate indifference requirement, “a plaintiff must identify a
‘specific
deficiency
rather
ineffectiveness in training.’”
than
general
laxness
or
Brown v. Cobb, No. 3:17-cv-00627-
JAG, 2018 WL 6304405, at *3 (E.D. Va. Dec. 3, 2018) (first quoting
Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997), then
quoting Spell v. McDaniel, 824 F.2d 1380, 1390 (4th Cir. 1987)).
Deliberate indifference can be established when allegations show
either “continued adherence to an approach [school officials] know
or should know has failed to prevent tortious conduct by employees”
or
“a
pattern
employees.”
of
tortious
conduct
by
inadequately
Bd. of Cty. Comm’rs, 520 U.S. at 407–08.
trained
“Without
notice that a course of training is deficient in a particular
respect, decisionmakers can hardly be said to have deliberately
chosen
a
training
program
that
41
will
cause
violations
of
constitutional rights.”
(2011).
Connick v. Thompson, 563 U.S. 51, 62
“Notice can be established by showing that the need for
the training and the risks of not providing the training were
obvious.”
Doe by Watson v. Russell Cty. Sch. Bd., 292 F. Supp. 3d
690, 711 (W.D. Va. 2018) (citing Canton, 489 U.S. at 390; Jordan
ex rel. Jordan v. Jackson, 15 F.3d 333, 341 (4th Cir. 1994)).
After showing deliberate indifference, plaintiffs “must show a
‘sufficiently close causal link’ between the training deficiency
and the alleged violation — that the violation was ‘almost bound
to happen.’”
Cobb, 2018 WL 6304405, at *4 (quoting Spell, 824
F.2d at 1390).
Doe argues, largely in his reply brief, that the proposed
amended complaint alleges facts sufficient to make out a failure
to train claim.
(Doc. 28 at 2.)
Doe does not seem to argue that
the proposed amended complaint shows “a pattern of tortious conduct
by inadequately trained employees,” and indeed the facts do not
suggest such a pattern, as there are no instances of tortious
conduct by inadequately trained employees alleged aside from the
immediate incidents between Watring and Doe.
520 U.S. at 407–08.
Bd. of Cty. Comm’rs,
Rather, Doe argues that Judd and Hester
continued to adhere to an approach they knew or should have known
failed to prevent tortious conduct by their employees.
(Doc. 28
at 2.)
Doe argues that Judd and Hester’s failure to train their
42
employees on the school’s policies for driving students home from
school constitutes deliberate indifference.
Doe’s
proposed
amended
complaint
(Doc. 28 at 4.) 9
provides
several
factual
allegations that teachers were aware that Watring drove Doe home
from school, and that teachers did not enforce or report violations
of the school’s policy requiring written consent for someone other
than a parent to drive a student home from school.
(Doc. 25-1
¶¶ 38, 40, 57, 79–82.)
To the extent the proposed amended complaint alleges that the
school administrators failed to train Watring on the school’s
transportation
allegations
do
policies,
not
it
suggest
fails
that
to
state
Watring’s
a
claim.
“sexual
abuse
The
or
molestation of a student was the ‘plainly obvious consequence’” of
the administrators’ failure to train school employees on the
policies for driving students home.
Douglas v. Brookville Area
Sch. Dist., 836 F. Supp. 2d 329, 362–63 (W.D. Pa. Dec. 8, 2011)
(“A teacher’s decision to provide a student with a ride to and
from
school
does
not
inherently
9
threaten
the
student’s
The amended complaint states that Durham Public School District Policy
No. 4108 is attached as Exhibit A (Doc. 25-1 ¶ 98), Policy 5130 is
attached as Exhibit B (Doc. 25-1 ¶ 104), Policy 4410.5/5125.5 are
attached as Exhibit C (Doc. 25-1 ¶ 115), and that Policy 5126 is attached
as Exhibit D (Doc. 25-1 ¶ 149). While these exhibits were attached to
Doe’s original complaint, there are no exhibits attached to Doe’s
proposed amended complaint. Nevertheless, because the policies are named
and described in the complaint, the court accepts these exhibits as
incorporated by reference to the proposed amended complaint, and thus
they can properly be considered by the court. Plymouth Cty. Retirement
Assoc. v. Primo Water Corp., 966 F. Supp. 2d 525, 536 (M.D.N.C. 2013).
43
welfare. . . .
Consequently, the District’s ‘indifference’ to the
requirements of [the school’s transportation policy] cannot be
equated
with
its
alleged
‘indifference’
to
[plaintiff’s]
constitutional rights.”); cf. Logan v. Bd. of Educ. of Sch. Dist.
of Pittsburgh, No. 15-499, 2016 WL 463787, at *8 (W.D. Pa. Feb. 8,
2016) (finding that there were insufficient factual allegations
for the court to plausibly infer that school defendants knew that
students likely would be sexually assaulted by school personnel if
the defendants failed to train school staff about when school
district personnel could remove students from class, because a
“teacher’s
students
decision
from
to
permit
classrooms
does
school
not
[personnel]
inherently
student’s welfare” (quotation marks omitted)).
to
remove
threaten
the
To the extent Doe
alleges that the school administrators failed to train other
Creekside employees on enforcing the transportation policies, the
amended complaint similarly fails to state a claim for the same
reasons.
The sexual abuse of a student is not the plainly obvious
consequence of Judd and Hester’s failure to train employees on the
policies for driving students home.
Douglas, 836 F. Supp. 2d at
364.
The proposed amended complaint also alleges that Judd and
Hester failed to adequately train employees to properly identify
potential sexual abuse and investigate and act upon allegations of
sexual misconduct. (Doc. 25-1 ¶ 175.) As an initial matter, there
44
is no allegation that any claim of sexual misconduct was made to
Judd or Hester, so Doe has failed to provide facts sufficient to
demonstrate that employees were not trained to “investigate and
act upon allegations of sexual misconduct.”
amended
complaint
makes
the
conclusory
(Id.)
The proposed
allegation
that
“[a]n
essential component of a sexual abuse policy minimally necessary
to
protect
students
is
that
complaints
about
inappropriate
teacher-student relationships be taken at face value as true, and
at a minimum, investigated.”
(Doc. 25-1 ¶ 107.)
This conclusory
allegation is insufficient to permit an inference that the school’s
sexual abuse policies were inadequate.
681.
See Iqbal, 556 U.S. at
Although Doe relies on Doe by Watson v. Russell Cty. Sch.
Bd., that case is distinguishable because it involved school
officials who had no written policies, procedures, or guidelines
regarding reported suspected abuse and neglect, while the proposed
amended complaint alleges the existence of at least two School
Board
policies
for
reporting
inappropriate
teacher-student
relationships and sexual harassment, and at least one policy for
reporting harassment/bullying.
(Doc. 28 at 2–7; Doc. 25-1 ¶¶ 104,
115, 149); Russell Cty., 2017 WL 1374279, at *3. 10
10
Other than
The court’s decision in Russell Cty. was also based on the complete
lack of policies or training in light of the “extensive rules and
guidance from the state and federal government on sexual harassment and
sexual violence in schools” that was included in the complaint. Russell
Cty., 2017 WL 1374279, at *8. Doe’s proposed amended complaint contains
no similar allegations of state or federal rules or guidance that would
have put Judd and Hester on notice of an obvious need for certain training
45
pointing to the policies for reporting inappropriate studentteacher behavior and bullying/harassment already put in place by
the School Board that Doe claims, if followed, would have prevented
constitutional injury, Doe provides only conclusory allegations in
support of his failure to train theory against Judd and Hester.
This is insufficient to establish a failure to train claim.
See
Gordon v. Kidd, 971 F.2d 1087, 1097 (4th Cir. 1992) (“A plaintiff
must identify a deficiency in a training program closely related
to the injury complained of and must further show that the injury
would have been avoided ‘under a program that was not deficient in
the identified respect.’” (quoting City of Canton, 489 U.S. at
391); Koreny v. Smith, 2018 WL 1141513, at * 17 (W.D. Pa. Mar. 2,
2018) (“Her complaint points to nothing more than there were
policies that, if followed, would have prevented the [vehicle
accident], and because the vehicle accident occurred, it must have
resulted from inadequate training. . . .
Her complaint, at most,
states a claim sounding in negligence, which is insufficient to
state a plausible claim for violation of her substantive due
process rights . . . .”).
In sum, Doe has failed to plausibly allege that Judd and
Hester’s failure to train Creekside employees rose to the level of
deliberate indifference.
The amended complaint fails to allege
and the risks of not providing it to give rise to a claim of deliberate
indifference.
46
either a pattern of sexual abuse stemming from the failure of
Creekside’s employees to detect or report signs of sexual abuse,
or that the need to train Creekside employees to detect and report
signs of sexual abuse of students by staff was so obvious — and
the lack of such training so likely to result in sexual abuse —
that Judd’s and Hester’s failure evidences deliberate indifference
to Doe’s rights.
Therefore, the motion to amend as to the failure to train
claims against Judd and Hester will be denied as futile.
b.
Equal Protection Claims Against Individual DPS
Defendants
i.
Motion to Dismiss
The individual DPS Defendants argue that the complaint fails
to allege intentional discrimination on the basis of sex to give
rise to an equal protection claim.
(Doc. 12 at 12–13, 21.)
Doe
does not address this theory in his response.
“To state an equal protection claim, a plaintiff must allege
‘that he has been treated differently from others with whom he is
similarly situated and that the unequal treatment was the result
of intentional or purposeful discrimination.’”
J.W. v. Johnston
Cty. Bd. of Educ., No. 5:11-CV-707-D, 2012 WL 4425439, at *8
(E.D.N.C. Sept. 24, 2012) (quoting Morrison v. Garraghty, 239 F.3d
648, 654 (4th Cir. 2001)).
Courts have recognized that “sexual
abuse by a teacher can deprive a student of his or her right to
47
equal protection under the law.”
T.E. v. Grindle, 599 F.3d 583,
587 (7th Cir. 2010) (citation omitted); Jennings, 482 F.3d at 725
(noting
an
“equal
protection
right
to
be
free
from
sexual
harassment in educational settings”); Hill v. Cundiff, 797 F.3d
948, 979 (11th Cir. 2015) (recognizing the “clearly established
principle that deliberate indifference to sexual harassment is an
equal protection violation”); but see Doe v. Taylor Indep. Sch.
Dist., 15 F.3d 443, 458 (5th Cir. 1994) (holding that a student’s
due process claim supersedes any equal protection claim arising
from alleged sexual abuse by a teacher). Nevertheless, a plaintiff
must
allege
sufficient
facts
that
the
defendant
acted
with
discriminatory animus in order to state an equal protection claim.
See Morrison, 239 F.3d at 654 (“To succeed on an equal protection
claim, a plaintiff must first demonstrate that he has been treated
differently from others with whom he is similarly situated and
that the
unequal
treatment
was
the
result
of
intentional
or
purposeful discrimination.”); see, e.g., B.A.L., 2016 WL 10570871,
at *7 (“Courts considering similar situations [involving sexual
abuse by a teacher] have declined to recognize an equal protection
violation
in
correspondence
the
absence
suggesting
a
of
any
Defendant
conduct,
had
any
statements,
or
discriminatory
animus towards a victim.”); J.W., 2012 WL 4425439, at *8.
Here, Doe alleges that the individual DPS Defendants failed
“to treat Plaintiff, a male student, in the same manner as it would
48
have treated a female student subjected to abuse by a teacher of
the opposite sex” (Doc. 1 ¶ 132), and that the Defendants’ conduct
“constituted
disparate
treatment
of
males
and
females
and
a
disparate impact on minor male students,” (id. ¶ 138; see id.
¶ 136).
Doe alleges that the individual DPS Defendants failed to
properly train employees to identify and report predatory sexual
behavior or inappropriate involvement by a teacher with a student,
regardless of the sex of the victim.
(Id. ¶¶ 69-70.)
However,
the complaint does not contain sufficient factual allegations to
support a plausible claim that any of the individual DPS Defendants
acted with discriminatory intent toward Doe based on his gender.
See B.A.L., 2016 WL 10570871, at *7 (holding that plaintiff failed
to state a § 1983 claim for an equal protection violation based on
gender
discrimination
because
plaintiff
failed
to
allege
administrator acted with discriminatory animus); J.W., 2012 WL
4425439, at *9 (finding that plaintiff failed to state an equal
protection claim where “[t]he only suggestion in the amended
complaint that [defendants] discriminated against [student] due to
his gender is plaintiffs’ conclusory accusation that they did so”);
cf. Grindle, 599 F.3d at 588–89 (affirming denial of motion for
summary judgment as to equal protection claim against principal,
holding that a reasonable jury could infer discriminatory purpose
from evidence that principal knew of teacher’s abuse of students
and attempted to deliberately cover it up by misleading parents
49
and other school administrators).
Thus, the equal protection claims against the individual DPS
Defendants will be dismissed.
ii.
Motion to Amend
The proposed amended complaint alleges that Judd and Hester
violated Doe’s right to equal protection by failing to treat Doe,
a male student, in the same manner as they would have treated a
female student subjected to abuse by a teacher of the opposite
sex.
(Doc. 25-1 ¶ 175.)
The proposed amended complaint adds only
the conclusory allegation that if a female student had talked about
the same sexual topics as Doe, Judd and Hester would have been
likely to conduct an investigation and notify her parents, which
they did not do with Doe.
(Id. ¶ 76.)
This conclusory allegation
is insufficient to permit an inference that Judd and Hester would
have taken different remedial measures if similar reports had been
made about a female student.
the
amended
complaint
does
See Iqbal, 556 U.S. at 681.
not
contain
sufficient
Thus,
factual
allegations to support a plausible claim that Judd or Hester acted
with discriminatory intent toward Doe based on his gender.
See
B.A.L., 2016 WL 10570871, at *7; J.W., 2012 WL 4425439, at *9.
Therefore, the motion to deny the proposed amended complaint
as futile as to the § 1983 claims against Judd and Hester based on
a violation of Doe’s right to equal protection will be granted.
50
c.
Qualified Immunity
i.
Motion to Dismiss
Harris, Judd, and Hester argue alternatively that they are
entitled
to
qualified
immunity.
(Doc.
12
at
14-15,
20-21.)
Defendants do not contest that Doe’s constitutional right to be
free from sexual abuse by his teacher and their § 1983 supervisory
liability for a school official were clearly established at the
time of the individual DPS Defendants’ alleged inaction.
Baynard, 268 F.3d at 235 & n.4.
See
Rather, they contend that no
conduct on their part violated a statutory or constitutional right
that was clearly established at the time of their actions.
12 at 15, 21.)
(Doc.
Relying on a North Carolina Court of Appeals’
decision discussing public official immunity under state law, Doe
contends
that
the
individual
DPS
Defendants
officials entitled to qualified immunity.
are
not
public
(Doc. 15 at 11, 14
(citing Fraley v. Griffin, 720 S.E.2d 694, 696 (N.C. 2011)).)
Apart from this contention, however, Doe offers no other argument
to overcome qualified immunity.
Courts have regularly held that school officials may assert
qualified immunity.
See, e.g., Safford Unified Sch. Dist. No. 1
v. Redding, 557 U.S. 364, 379 (2009) (holding that various school
officials were entitled to qualified immunity); Fothergill v.
Jones Cty. Bd. of Educ., No. 4:09-CV-190-BO, 2010 WL 4338101, at
*1 (E.D.N.C. Oct. 22, 2010) (same); Kwarteng v. Morgan State Univ.,
51
128 F. App'x 301, 302 (4th Cir. 2005) (holding that district court
did
not
misapply
the
qualified
immunity
doctrine
disciplinary actions of individual defendants).
federal case law to support his contrary assertion.
to
the
Doe offers no
Nor does the
complaint allege facts that would plausibly suggest that the
individual DPS Defendants were not performing discretionary duties
or were engaged in conduct “entirely beyond their discretionary
authority.”
In re Allen, 106 F.3d 582, 593 (4th Cir. 1997) (“[A]n
official who performs an act clearly established to be beyond the
scope of his discretionary authority is not entitled to claim
qualified immunity under § 1983.”).
Qualified immunity shields government officials performing
discretionary functions from personal liability for civil damages
under § 1983, so long as their conduct does not violate clearly
established
statutory
or
constitutional
reasonable person would have known.
rights
of
which
a
Ridpath v. Bd. of Governors
Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006) (citations
omitted).
Officials are entitled to immunity unless the § 1983
claim satisfies a two-prong test: (1) the allegations, if true,
substantiate a violation of a federal statutory or constitutional
right, and (2) the right was “clearly established” such that a
reasonable person would have known his acts or omissions violated
that right.
Id.
For an alleged constitutional right to be clearly
established, “[t]he contours of the right must be sufficiently
52
clear that a reasonable official would understand that what he is
doing violates that right.”
640 (1987).
Anderson v. Creighton, 483 U.S. 635,
This determination is to be assessed as of “the time
an action [or inaction] occurred.”
Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982).
Accordingly, the scope of supervisory liability under § 1983
informs the court’s analysis of whether a supervisor is entitled
to qualified immunity.
See Shaw, 13 F.3d at 802; Camilo-Robles v.
Zapata, 175 F.3d 41, 44 (1st Cir. 1999) (“[C]ourts consigned to
struggle with neglect-of-risk cases generally have incorporated a
review
of
qualified
the
merits
immunity
of
derivative
calculus.”).
In
tort
liability
light
of
the
into
the
clearly
established standard for supervisory liability, the court must
determine whether a reasonable person in the supervisor’s position
could have believed that his or her conduct was lawful.
Shaw, 13
F.3d at 802–03.
For reasons similar to those discussed as to the merits, the
court finds that the individual DPS Defendants are entitled to
qualified immunity. As to Harris, the complaint fails to plausibly
allege any affirmative act or omission by him that would give rise
to supervisory liability.
Dist.,
882
F.2d
720,
731
See Stoneking v. Bradford Area Sch.
(3d
Cir.
1989)
(holding
that
a
superintendent was entitled to qualified immunity where the court
could not “discern from the record any affirmative acts by [the
53
superintendent]
on
which
[plaintiff]
can
base
a
claim
of
toleration, condonation or encouragement of sexual harassment by
teachers which occurred in one of the various schools within his
district”); B.A.L., 2016 WL 10570871, at *8 (holding assistant
superintendent
was
entitled
to
qualified
immunity
where
the
plaintiff failed to allege that the superintendent engaged in
affirmative acts that demonstrated he either tolerated or condoned
the relationship between the student and teacher).
The complaint
fails to plausibly allege that Harris was either aware of or
actively involved in a substantial part of the activity relating
to Watring.
While the complaint’s allegations regarding Judd and Hester
are not as sparse as those against Harris, the facts alleged,
viewed
in
the
light
most
favorable
to
Doe,
are
nevertheless
insufficient to have informed a reasonable administrator that his
or
her
conduct
“violate[d]
constitutional rights.”
U.S. at 818).
clearly
established
statutory
or
Shaw, 13 F.3d at 803 (quoting Harlow, 457
As previously discussed, the complaint fails to
establish a plausible claim that either Hester or Judd acted with
deliberate indifference under the clearly established standard for
supervisory liability.
Hester’s
alleged
But even if one assumes that Judd’s or
conduct
exhibited
deliberate
indifference,
a
reasonable person in either of their positions still could have
believed that his or her conduct was lawful.
54
Id. at 802-03 (“Even
if Smith did arguably exhibit deliberate indifference, he is
entitled to qualified immunity. Smith meets the standard for
qualified immunity set forth in Harlow[]: a reasonable officer, in
light of clearly established legal rules, could have believed his
conduct was lawful.”).
facts
alleged
to
Put another way, there are insufficient
suggest
that
the
conduct
of
either
of
the
administrators was so inadequate, in light of the activity alleged
at the relevant times, as to render it constitutionally infirm.
The administrators responded when facts were brought to light
involving both Watring and Doe.
faulted
for
not
promptly
While the administrators may be
alerting
Doe’s
parents
immediately
following the March 18, 2009 meeting, they did involve Doe’s mother
after discovering the love note, and she appeared to downplay any
concern for a period of time.
When the situation escalated
thereafter to suggest a more serious risk, the administrators
quickly responded, not hesitating to call in law enforcement, even
in light of Watring’s denials.
For these reasons, the court finds that the individual DPS
Defendants are entitled to qualified immunity, and the § 1983
claims against them should be dismissed. 11
11
Because dismissal is based on insufficient factual allegations on the
merits as well as to overcome qualified immunity, dismissal is without
prejudice. See Armstrong, 190 F. Supp. 3d at 472 (dismissing individual
capacity claim against chief of police without prejudice, noting “this
court cautions that baring [sic] some sort of link sufficient to overcome
qualified immunity, it is unlikely that a future claim against [defendant
police chief] would stand”).
55
ii.
Motion to Amend
Judd and Hester argue that nothing in the proposed amended
complaint cures the defects of this claim and they are therefore
entitled to qualified immunity.
(Doc. 27 at 19–21.)
Doe contends
that because qualified immunity is a defense, the court should
await the completion of discovery before reaching the issue. (Doc.
28 at 11.)
Doe’s amended complaint fails to allege facts that, if true,
make plausible a claim that sexual abuse of Doe should have been
so obvious to any reasonable school administrator prior to April
23,
2009,
that
investigation
Judd
or
and
Hester’s
take
other
action
failure
was
a
to
conduct
an
clearly-established
violation of Plaintiff’s right to be free from sexual abuse from
his teacher.
See Fothergill, 2010 WL 4338101, at *1–2 (where a
student had a sexual relationship with his teacher, rumors of the
relationship were rampant among students and faculty, teachers
teased the student about the relationship, the student spent a
suspicious amount of time with the teacher on school grounds, and
the teacher behaved inappropriately with the student in public,
the
court
determined
that
school
officials
were
entitled
to
qualified immunity because, since the allegations failed to show
that the school officials knew about the sexual relationship, there
was no way that a reasonable person in the school defendants’
position
would
have
understood
56
that
they
were
violating
the
plaintiff’s rights against sexual abuse from his teacher).
Although Doe urges the court to permit discovery to reveal
additional evidence before reaching this issue, the Supreme Court
has repeatedly “stressed the importance of resolving immunity
questions at the earliest possible stage in litigation” because
“[q]ualified immunity is ‘an immunity from suit rather than a mere
defense
to
liability;
and
like
an
absolute
immunity,
it
is
effectively lost if a case is erroneously permitted to go to
trial.’”
Scott v. Harris, 550 U.S. 372, 376 n.2 (2007) (second
emphasis in original) (first quoting Hunter v. Bryant, 502 U.S.
224, 227 (1991) (per curiam); then quoting Mitchell v. Forsyth,
472 U.S. 511, 526 (1985)).
Defendants have asserted qualified
immunity and met their burden of demonstrating it.
Therefore, the
motion to amend the complaint as to the § 1983 claims against Judd
and Hester will be denied as futile.
d.
State Tort Claims
i.
Motion to Dismiss
(a)
Official Capacity Claims
DPS Defendants first argue that the official capacity claims
against Harris, Judd, and Hester are duplicative in light of the
pending claims against the School Board and should be dismissed.
(Doc. 16 at 2–4.)
Doe concedes the § 1983 claims against the
individual DPS Defendants in their official capacity should be
dismissed as duplicative under federal law, but he contends that
57
the state tort claims against them in their official capacities
are not duplicative under state law.
(Doc. 15 at 6–7.)
“[O]fficial capacity suits ‘generally represent only another
way of pleading an action against an entity of which an officer is
an agent.’”
Talley v. City of Charlotte, No. 314-CV-00683-MOC-
DCK, 2016 WL 8679235, at *13 (W.D.N.C. July 22, 2016) (quoting
Kentucky v. Graham, 473 U.S. 159, 165 (1985)); Moore v. City of
Creedmoor, 481 S.E.2d 14, 21 (N.C. 1997).
Accordingly, where the
plaintiff asserts a claim under state law against a government
entity, the court has the discretion to dismiss official capacity
claims against individuals working for this government entity as
duplicative.
See Talley, 2016 WL 8679235, at *13; Harrison v.
Chalmers, 551 F. Supp. 2d 432, 438 (M.D.N.C. 2008). 12
12
Here, the
Doe relies on the North Carolina Court of Appeals decision in McCoy
v. Coker for the proposition that the dismissal of official capacity
claims against the individual Defendants for state law claims would be
improper. (Doc. 15 at 6-7 (citing McCoy v. Coker, 620 S.E.2d 691, 696
(N.C. Ct. App. 2005).) In McCoy, the court of appeals held that the
trial court did not err in failing to dismiss as duplicative negligence
claims against a building inspector in his official capacity where
plaintiff also asserted claims against the government entity. McCoy,
620 S.E.2d at 696. As DPS Defendants note, however, the court did not
hold that an official capacity claim against an individual could never
be dismissed as duplicative. (Doc. 16 at 2-4.) Nor does subsequent
case law suggest that a dismissal would be inappropriate in this
instance. See, e.g., Phifer v. City of Rocky Mount, No. 5:08-CV-292FL, 2010 WL 3860411, at *8 (E.D.N.C. Sept. 28, 2010) (rejecting similar
argument that state law claims against individual defendants in their
official capacity should not be dismissed as duplicative); Wright v.
Town of Zebulon, 688 S.E.2d 786, 789 (N.C. Ct. App. 2010) (affirming
dismissal of state law claims against individual police officers in their
official capacity where plaintiff asserted a claim against the government
entity).
58
state tort claims against the individual DPS Defendants in their
official capacities are duplicative and will be dismissed, where
the School Board is a named party and will remain so moving
forward.
See
Talley,
2016
WL
8679235,
at
*13
(dismissing
negligence claims against individual police officers in their
official
capacity
where
plaintiff
asserted
claim
against
the
government entity); Grisson v. City of Fayetteville, No. 5:14-CV272-BO, 2015 WL 5797661, at *6 (E.D.N.C. Oct. 2, 2015) (same).
(b)
Public Official Immunity
The individual DPS Defendants argue that the state tort claims
against them in their individual capacity should be dismissed
because they enjoy public official immunity.
18, 21–23.)
(Doc. 12 at 15, 17–
Doe contends that these Defendants are not public
officials for purposes of public official immunity.
(Doc. 15 at
11–14.) 13
“The North Carolina Court of Appeals has held that school
system superintendents, principals, and assistant principals are
‘public officials’ for purpose of public official immunity.”
2017 WL 2115108, at *4 (citations omitted).
RM,
Therefore, Harris,
Judd, and Hester are each public officials, given their positions
as superintendent of DPS, principal of Creekside, and assistant
13
DPS Defendants also argue that the state tort claims should be
dismissed because the complaint fails to state a claim against them.
(Doc. 12 at 11–14, 19–20.)
Having found that the individual DPS
Defendants are subject to dismissal on other grounds, this contention
need not be reached.
59
principal of Creekside, respectively.
Id.
“A public official may not be held individually liable for
mere negligence, but may only be liable where his/her conduct is
malicious, corrupt or outside the scope of his/her authority.”
Id. (citing Dalenko v. Wake Cty. Dep't of Human Servs., 578 S.E.2d
599, 603–04, writ denied, 585 S.E.2d 380 (N.C. 2003)).
However,
a conclusory allegation that a public official acted maliciously,
corruptly,
or
outside
the
scope
of
his
or
her
duties
is
insufficient to overcome public official immunity.
Id. (quoting
Meyer v. Walls, 489 S.E.2d 880, 890 (N.C. 1997)).
A plaintiff
must allege facts sufficient to support such a conclusion.
Id.
As with qualified immunity, the availability of public official
immunity depends on the reasonableness of the officer’s actions.
See Cooper v. Sheehan, 735 F.3d 153, 160 (4th Cir. 2013) (“An
officer acts with malice when he ‘does that which a man of
reasonable intelligence would know to be contrary to his duty,’
i.e., when he violates a clearly established right.” (quoting
Bailey v. Kennedy, 349 F.3d 731, 742 (4th Cir. 2003)); Grad v.
Kaasa, 321 S.E.2d 888, 890–91 (N.C. 1984) (“An act is wanton when
it is done of wicked purpose, or when done needlessly, manifesting
a reckless indifference to the rights of others.” (quotations
omitted)).
Here,
Doe
alleges
claims
of
negligence
and
negligent
infliction of emotional distress against each of the individual
60
DPS Defendants but fails to allege that they acted maliciously,
corruptly, or outside the scope of their duties to give rise to
liability for such claims.
At the outset of the complaint, Doe
alleges that each of the individual DPS Defendants was “acting or
failing to act within the scope, course, and authority of his [or
her] employment and his [or her] employer.”
24.)
(Doc. 1 ¶¶ 20, 22,
However, the complaint contains no additional allegations
that any of the individual DPS Defendants ever acted outside the
scope of his or her employment.
The only other direct allegation
is found in the § 1983 portion of the complaint, where it alleges
in relevant part: “The actions and omissions of the DPS Defendants,
individually
and
collectively,
as
described
herein,
after
receiving repeated notice that Plaintiff’s constitutional rights
were being violated, were wanton, willful, and/or evidence a
conscious disregard for Plaintiff’s rights.”
(Id. ¶ 143.)
These
conclusory allegations are insufficient to overcome the individual
DPS Defendants’ public official immunity.
Farrell v. Transylvania
Cty. Bd. of Educ., 625 S.E.2d 128, 134 (N.C. Ct. App. 2006); RM,
2017 WL 2115108, at *4.
Doe’s negligence claims are tied to the
reasonableness of the individual DPS Defendants’ conduct.
Cooper, 735 F.3d at 160.
See
As previously noted, the complaint fails
to allege sufficient facts to establish a plausible claim that the
individual DPS Defendants engaged in conduct that exceeded mere
negligence.
Accordingly,
the
individual
61
DPS
Defendants
are
entitled to public official immunity, and the state tort claims
against them will be dismissed.
See Grisson, 2015 WL 5797661, at
*7; RM, 2017 WL 2115108, at *4–5.
ii.
Motion to Amend
Doe’s third claim for relief in his proposed amended complaint
alleges negligence by Judd and Hester in their official capacities.
(Doc.
25-1
at
56.)
Doe
argues
that
these
claims
are
not
duplicative of the negligence claim against the School Board.
(Doc. 24 at 13–16.)
Defendants argue that these official capacity
claims are futile because they are duplicative of the negligence
claims brought against the School Board.
(Doc. 27 at 21–23.)
For
the same reasons as discussed for the official capacity claims
alleged
under
the
original
against
Judd
and
Hester
complaint,
in
their
the
negligence
official
claims
capacities
are
duplicative and will be dismissed, as the School Board is a named
party and will remain so moving forward.
III. CONCLUSION
For the reasons stated, therefore,
IT IS ORDERED that Doe’s motion to dismiss (Doc. 11) is
GRANTED and all claims against Defendants Judd, Hester, and Harris
in their official and individual capacities are hereby DISMISSED
WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Doe’s motion to amend the complaint
(Doc. 23) is DENIED as futile as to the claims against Defendants
62
Judd and Hester; Doe’s motion to amend is otherwise GRANTED, as no
Defendant has opposed amendment as they affect the remaining
claims.
/s/
Thomas D. Schroeder
United States District Judge
January 25, 2019
63
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