Jones v. Avon Local School District Board of Education et al
Memorandum of Opinion and Order: Defendants Kimberly Fuller and Psych & Psych's Motion to Dismiss Plaintiff's Second Amended Complaint is granted. Judge Patricia A. Gaughan on 2/22/17. (LC,S) re 12
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
Monique Jones, individually and on
behalf of her minor son, C.H.,
Avon Local School District Board
of Education, et al.
CASE NO.1:16 CV 2805
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
This matter is before the Court upon Defendants Kimberly Fuller and Psych & Psych’s
Motion to Dismiss Plaintiff’s Second Amended Complaint. For the following reasons, the
motion is GRANTED.
Plaintiff Monique Jones, individually and on behalf of her minor son, C.H., filed her
original Complaint against defendants Avon Local School District Board of Education, Michael
Laub (Superintendent), Jason Call (Principal of Avon Heritage South Elementary School),
Loretta Oley (Teacher), and Lynn Maslinski (Teacher) in the Lorain County Court of Common
Pleas. A First Amended Complaint was filed adding defendant Kimberly Fuller (Licensed
Therapist at Diana Santanonio, Ed.S. & Associates, LLC dba Psych & Psych Services) and
removing as defendants Maslinski and Laub. The case was thereafter removed to this Court.
Defendants Fuller and Psych & Psych1 filed a Motion to Dismiss the Amended Complaint. That
motion was moot with the filing of a Second Amended Complaint which generally alleges the
C.H. is a minor who was a student at Avon Heritage South Elementary School. Plaintiff
Monique Jones is his mother. C.H. began the 2014-2015 school year as a third grader in
defendant Oley’s class. He was the only African American student in the class. Jones met with
Oley in September 2014 because she wanted to build a relationship with the teacher. At the
meeting, Jones mentioned that she had recently been diagnosed with Attention Deficit Disorder
(ADD). Oley told Jones that she thought C.H. had ADD or Attention Deficit Hyperactivity
Disorder (ADHD) and then frequently mentioned this in conversations thereafter with Jones
although Jones noted that he had not previously had any symptoms of such. In late September,
Oley suggested that C.H. be placed on a 504 plan (under the Rehabilitation Act) for his frequent
urination. C.H. has Benign Urinary Frequency Syndrome. Principal Call also contacted Jones
regarding the plan in hopes that it would be established prior to the upcoming standardized
testing. The plan was established on October 3, 2014. Unbeknownst to Jones, Oley had been
physically and emotionally abusing C.H. on a daily basis until November 6, 2014, when he was
It does not appear that these are separately named defendants. Rather Fuller is
named as a defendant in her official capacity as a licensed therapist at Diana
Santanonio, Ed.S. & Associates, LLC dba Psych & Psych Services.
removed by Jones from the school. Eleven specific instances of abuse are listed. Jones learned of
the abuse on November 3, 2014, when C.H. came home from school and told her about it. Jones
reported the abuse to Principal Call the next morning in a telephone call. A meeting was
scheduled by Call with Jones for the morning of November 5. Jones sent C.H. to school on
November 4, “hoping that her conversation with Mr. Call would address the situation and
because she was concerned about truancy issues.” It is unknown whether abuse occurred on that
day. At the November 5 meeting, Jones reiterated that Oley had been abusing C.H. and requested
that C.H. be removed from Oley’s classroom, but Call refused. Call excused C.H. from school
for the rest of the day of November 5. A follow-up meeting was scheduled for November 7.
Jones “trusted Mr. Call’s educational expertise, and feeling satisfied that the situation would be
resolved, [Jones] sent C.H. to school on November 6.” But, C.H. came home that day and
reported that Oley had continued to physically and emotionally abuse him. On November 6,
Oley kept C.H. in from recess to complete a test, threw test papers in his face and yelled “wrong,
wrong, wrong.”2 Jones did not thereafter send him back to the school. She formally withdrew
C.H. on November 11. Call did not report the abuse as required by Ohio law. Pursuant to a prior
referral by Oley, Jones had scheduled an appointment for November 4, 2014 with Psych & Psych
to have C.H. formally evaluated for ADD/ADHD. Fuller met with C.H. and Jones three times
between November 4 and December 12. He was not diagnosed with ADD/ADHD. Jones
reported Oley’s abuse of C.H. to Fuller during the meetings, including the first meeting on
November 4. Fuller never reported the allegations of abuse as required by Ohio law. As a result,
The First Amended Complaint did not contain these allegations regarding
C.H. suffered additional abuse under Oley’s supervision. On December 9, 2014, C.H. was
diagnosed, by a separate facility, with post traumatic stress disorder (PTSD) as a result of Oley’s
abuses and discrimination.
The Second Amended Complaint asserts ten claims for relief. One claim is asserted
against Fuller: Count Nine alleges that she failed to report Oley’s abuse as required by Ohio
Revised Code § 2151.421 which proximately caused Oley’s continued abuse.
This matter is now before the Court upon Fuller and Psych & Psych’s Motion to Dismiss
the Second Amended Complaint.
Standard of Review
“Dismissal is appropriate when a plaintiff fails to state a claim upon which relief can be
granted. Fed.R.Civ.P. 12(b)(6). We assume the factual allegations in the complaint are true and
construe the complaint in the light most favorable to the plaintiff.” Comtide Holdings, LLC v.
Booth Creek Management Corp., 2009 WL 1884445 (6th Cir. July 2, 2009) (citing Bassett v.
Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir.2008) ). In construing the complaint
in the light most favorable to the non-moving party, “the court does not accept the bare assertion
of legal conclusions as enough, nor does it accept as true unwarranted factual inferences.”
Gritton v. Disponett, 2009 WL 1505256 (6th Cir. May 27, 2009) (citing In re Sofamor Danek
Group, Inc., 123 F.3d 394, 400 (6th Cir.1997). As outlined by the Sixth Circuit:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the
claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the
statement need only give the defendant fair notice of what the ... claim is and the grounds
upon which it rests.”Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However, “[f]actual allegations must be
enough to raise a right to relief above the speculative level” and to “state a claim to relief
that is plausible on its face.” Twombly, 550 U.S. at 555, 570. A plaintiff must “plead[ ]
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir.2012). Thus, Twombly and Iqbal require that
the complaint contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face based on factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. Twombly, 550 U.S. at 570;
Iqbal, 556 U.S. at 678. The complaint must contain “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
Count Nine alleges that Fuller3 was subject to the mandatory reporting requirements of
the Ohio statute and failed to report the allegations of abuse that Monique Jones reported to her
beginning on November 4, 2014, and that her failure was a proximate cause of Oley’s continued
abuse of C.H..
Ohio Revised Code § 2151.421 requires certain persons to report known or suspected
child abuse to the public children services agency or a municipal or county peace officer in the
county in which the child resides. Division (M) provides for compensatory damages to the child.
A negligence claim based on violation of the statute requires proof of breach of duty, proximate
cause, and damages. See Grimm v. Summit County Children’s Services Bd., 2006 WL 1329689
(Ohio App. 9th Dist. 2006). A violation of a statute which, as does § 2151.421, sets forth specific
duties constitutes negligence per se. Plaintiff must still prove causation and damages. Id.
Fuller concedes that the statute applies to her and moves to dismiss on several bases.
This count also applies to Principal Call who is not the movant and, therefore,
will not be discussed.
First, defendant asserts that the newly added claims of November 6 are not alleged to have
specifically and proximately caused compensable harm to C.H. The “harm” alleged is PTSD.
The relatively minor allegations of November 6 could not have actually caused the PTSD
compared to the months of previously suffered abuse. Second, plaintiffs fail to allege how a
report of abuse on November 4 would have affected or changed what is alleged to have occurred
on November 6. The statute only requires that children services investigate a report and make a
recommendation to the prosecuting attorney or city law director. Children services could not
have dictated a course of conduct to Principal Call or Mrs. Oley. Nor could an investigation have
been commenced and completed, and a recommendation made within less than two days
between November 4 and November 6. C.H.’s mother had actual knowledge of the abuse but
chose to send C.H. to school anyway. Third, the alleged abuse which occurred on November 6
does not amount to “abuse or neglect of the child” under the Ohio statute. Defendant additionally
maintains that plaintiff Monique Jones does not have standing to bring a claim under the statute
which protects only C.H.
Plaintiff asserts that the Second Amended Complaint supports a reasonable inference that
Fuller’s breach of her duty to C.H. was a proximate cause of his harm, which need not be the
sole cause. Although not alleged, plaintiff states that because Fuller did not report the abuse or
warn Jones about the dangers of C.H. returning to the classroom, Jones returned C.H. to the
classroom on November 6. Had children services been notified, Oley and the school board would
have been aware of any report made by November 6 and could have responded appropriately to
an investigation. The consequence of the failure to report was that C.H. spent another day in
Oley’s charge. It cannot be surmised how children services would respond had the abuse been
reported. As to harm, plaintiff points to the allegation that C.H. was diagnosed with PTSD
related to the incidents described in the pleading and the additional abuse occurring after
November 4 caused additional harm.
For the following reasons, the Court agrees with defendant that the Second Amended
Complaint cannot plausibly allege proximate cause as to Fuller. According to the pleading, Jones
knew of the alleged abuse on November 3 and Principal Call knew of the alleged abuse on the
morning of November 4. O.R.C. § 2151.421 requires that Fuller, who learned of the abuse on
November 4, report it “immediately” to the children services agency. Plaintiff argues that had
Oley and the Avon Local School District Board of Education “been aware of any report made by
November 6, [they] would have had the opportunity to respond appropriately to an investigation
of alleged abuse.” (Doc. 18 at 7-8) Plaintiff points out that the statute requires the children
services agency to investigate a report of abuse within 24 hours. Plaintiff asserts that, likewise, a
person subject to the investigation be informed by the agency within that time frame. But, §
Except as provided in section 2151.422 of the Revised Code or in an interagency
agreement entered into under section 2151.428 of the Revised Code that applies to the
particular report, the public children services agency shall investigate, within twenty-four
hours, each report of child abuse or child neglect that is known or reasonably suspected
or believed to have occurred and of a threat of child abuse or child neglect that is known
or reasonably suspected or believed to exist that is referred to it under this section to
determine the circumstances surrounding the injuries, abuse, or neglect or the threat of
injury, abuse, or neglect, the cause of the injuries, abuse, neglect, or threat, and the
person or persons responsible. The investigation shall be made in cooperation with the
law enforcement agency and in accordance with the memorandum of understanding
prepared under division (J) of this section. A representative of the public children
services agency shall, at the time of initial contact with the person subject to the
investigation, inform the person of the specific complaints or allegations made against
the person. The information shall be given in a manner that is consistent with division
(H)(1) of this section and protects the rights of the person making the report under this
(Emphasis added). It is not clear whether the statute requires that the person subject to the
investigation (Oley) be informed within 24 hours of the making of the report. Nor does the
statute require that the school board be notified at anytime, let alone within 24 hours.
Regardless, plaintiff had already reported the alleged abuse to Principal Call by the time
she saw Fuller. Plaintiff surmises in her brief, “The natural and probable consequence of
[Fuller’s failure to report] is that C.H. spent another day in Ms. Oley’s charge, forced to suffer
additional harm.” (Doc. 18 at 8) But, this would be an “unwarranted factual inference.” Gritton
v. Disponett, supra. Plaintiff states that because Fuller did not report the abuse or warn Jones
about the dangers of C.H. returning to the classroom, Jones returned C.H. to the classroom on
November 6. However, the Second Amended Complaint does not allege that this was the reason
Jones returned C.H. to the classroom. Nor does it make plausible sense. Even if plead, there is
no reasonable basis to infer that Fuller’s failure to report the abuse resulted in Jones returning
C.H. to the classroom. Neither is there a basis to infer that Fuller’s failure to warn Jones about
the dangers of returning him resulted in him going back to the classroom when Jones already
knew about the alleged abuse.
The Second Amended Complaint fails to state a claim against Fuller. Furthermore,
defendant asserts that Jones cannot assert her own claim under the statute which is meant to
protect the child. Plaintiff does not dispute this assertion. The Court agrees. See §
2151.421(M)(“Whoever violates division (A) of this section is liable for compensatory and
exemplary damages to the child who would have been the subject of the report that was not
made.”) and Curran v. Walsh Jesuit High School, 99 Ohio App.3d 696 (9th App.Dist. 1995)(“We
believe that R.C. 2151.421 imposes a duty which is owed solely to the minor child of whom
reports have been received concerning abuse or neglect.”)
For these reasons, defendants Kimberly Fuller and Psych & Psych’s Motion to Dismiss
Plaintiff’s Second Amended Complaint is granted.
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
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