Bradley et al v. Westville School District I-11

Filing 33

ORDER by Judge Ronald A. White denying defendant's motion to dismiss ( 16 Motion to Dismiss Case for Failure to State a Claim ) (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
D.G., a minor, by and through his
parents and next friends, Danielle
Bradley and Zachary Green,
Plaintiffs,
v.
WESTVILLE PUBLIC SCHOOL
DISTRICT NO. I-11 OF ADAIR
COUNTY,
Defendant.

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Case No. CIV-18-045-RAW

ORDER
Before the court is the motion of defendant Westville Public School District to
dismiss. This lawsuit commenced in the District Court for Adair County. The case was
removed to this court by defendant on February 8, 2018. Plaintiffs filed an amended
complaint (#14) on April 2, 2018.
In the amended complaint, plaintiff alleges that on March 28, 2017, plaintiff D.G. (a
third-grade student at Westville Elementary School in Adair County, Oklahoma) was forcibly
removed from his classroom by defendant’s employees. The employees then confined and
isolated D.G. to a closet with a closed door. When D.G. attempted to leave the closet, the
employees forced D.G. to the ground and physically restrained him. Despite his cries for
help, no school employee intervened to stop the conduct. The amended complaint alleges
that defendant possessed a custom, policy or pattern of permitting its employees to discipline
and/or manage the behavior of students in this manner. Plaintiff brings one claim pursuant

to 42 U.S.C. §1983 and another pursuant to Oklahoma law for negligence. The federal claim
will be addressed first.
Under Rule 12(b)(6), the court must assume the truth of plaintiff’s well-pleaded facts
and draw all reasonable inferences from them in the light most favorable to plaintiff.
Western Watershed Project v. Michael, 869 F.3d 1189, 1193 (10th Cir.2017). To overcome
a motion to dismiss, a complaint must plead facts sufficient to state a claim to relief that is
plausible on its face. Sylvia v. Wisler, 875 F.3d 1307, 1313 (10th Cir.2017). A claim is
facially plausible if the plaintiff has pled factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged. Id. The degree
of specificity necessary to establish plausibility and fair notice depends on context, because
what constitutes fair notice under Rule 8(a)(2) F.R.Cv.P. depends on the type of case.
Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir.2008).
To survive a motion to dismiss for failure to state a §1983 claim, a plaintiff must
plausibly allege (1) deprivation of a federally protected right by (2) an actor acting under
color of state law. Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1155 (10th Cir.2016).
Section 1983 will not support a claim based on a respondeat superior theory of liability.
Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981). Therefore, in the case of an entity such as
a school district, plaintiff must allege that a district policy or custom was the moving force
behind the constitutional deprivation. See Myers v. Ok. Cnty. Bd. of Cnty. Comm’rs, 151
F.3d 1313, 1316 (10th Cir.1998). Plaintiff must show that the actions complained of were
representative of an official policy or custom of the school district, or were taken by an
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official with final policy-making authority. See Murrell v. Sch. Dist. No. 1, Denver, Colo.,
186 F.3d 1238, 1249 (10th Cir.1999).
In the present motion, defendant first argues that plaintiffs have failed to plead the
deprivation of a federal right. It is established that §1983 is not itself a source of substantive
rights, but a method for vindicating federal rights elsewhere conferred. See Margheim v.
Buljko, 855 F.3d 1077, 1084 (10th Cir.2017). The amended complaint explicitly cites the
Fourth and Fourteenth Amendments of the United States Constitution. The court finds the
factual allegations sufficient as to identifying a source of rights.
“The Fourth Amendment provides one source of rights enforceable in a §1983 action.”
Id. The factual allegations in the amended complaint state a plausible claim of an
unreasonable seizure. As for the Fourteenth Amendment, its due process clause protects both
procedural due process rights and substantive due process rights. See Hennigh v. City of
Shawnee, 155 F.3d 1249, 1253 (10th Cir.1998). Again, the plaintiffs have sufficiently
identified a source of federal rights allegedly violated by the conduct described. The
plaintiffs’ allegations are not “a blanket formulaic recitation of the law without factual
support” as defendant contends. (#29 at 2).
Defendant also asserts that the amended complaint fails as to allegations against the
board of education. Under Oklahoma law, the board of education is the final policy-making
authority for a public school district. See Curtis v. Oklahoma City Public Schools Bd. of
Educ., 147 F.3d 1200, 1216 (10th Cir.1998). Plaintiffs acknowledge this conclusion. (#28
at page 9 of 18 in CM/ECF pagination). Defendant asserts that the amended complaint “is
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devoid of any factual allegation of conduct committed by any board of education member
or employee with final policy-making authority.” (#16 at 5). The court disagrees, and
concurs with plaintiffs that ¶¶23-31 of the amended complaint are sufficient in this regard.
(#16 at page 9-10 of 18 in CM/ECF pagination).
It is to be emphasized that a motion to dismiss is before the court. A tension may exist
between the Rule 12(b)(6) standard and a claim based on policy or custom. That is to say,
plaintiff necessarily brings a case based upon “an isolated incident,” but is required to
plausibly allege a policy or custom. More than one district court has held that, in assessing
the pleading standard for municipal liability, the court requires more than boilerplate
allegations of a municipal policy, but does not demand specific facts that prove the existence
of a policy when a plaintiff would not have access to such information before discovery. See
Gooding v. Ketcher, 838 F.Supp.2d 1231, 1241 (N.D.Okla.2012); Reitz v. City of Abilene,
2017 WL 3046881, *24 (N.D.Tex.2017)(citing cases). This court is persuaded plaintiffs
have sufficiently provided such additional factual allegations.
Defendant cites Couture v. Bd. of Educ. of Albuquerque Public Schools, 535 F.3d
1243 (10th Cir.2008), for the proposition that placing a student in temporary “timeout” does
not violate due process as a matter of law. First, the Tenth Circuit was reviewing a district
court’s ruling on a summary judgment motion, not a motion to dismiss. Thus, the appellate
court reviewed the full factual record to determine, for example, whether the Fourth
Amendment (the alleged violation of which the present defendant does not explicitly address)
had been violated through an unreasonable seizure. Id. at 1251-52. A determination of
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unreasonableness depends on a factual analysis. Second, as to procedural due process, the
court stated that under the facts reviewed excluding the child from the classroom without a
hearing did not violate his procedural due process rights. The child in Couture, however, had
“severe emotional and behavioral difficulties,” including the making of threats. Id. at 124647, 1257. No such conduct appears in the present case at this time. Moreover, there is no
indication that the child in Couture was subjected to the type of alleged physical handling
as was the child in the case at bar. The Tenth Circuit does state that teachers “often had to
force” the child into the timeout room (Id. at 1247), but does not elaborate. This court is
persuaded discovery is appropriate.
As to a possible claim for violation of substantive due process rights, defendant cites
Muskrat v. Deer Creek Public Schools, 715 F.3d 775 (10th Cir.2013). Again, that decision
was a review of a summary judgment ruling. While the “shocks the conscience” test
employed by the appellate court is no doubt daunting to a plaintiff, this court declines to
grant defendant’s motion in that respect either. Of course, these arguments may be re-urged
at the summary judgment stage.
In their second claim, plaintiffs assert negligence on defendant’s part under Oklahoma
law. The claim appears to have three alternative prongs. Specifically, plaintiffs first allege
the defendant breached its “continuing obligation to provide a safe environment for all of its
students, including D.G.” (#14 at ¶50). They also allege that defendant was negligent “in
hiring, retaining and supervising teachers and other school personnel.” (Id. at ¶¶61-62).
Finally, they allege defendant failed to properly follow its policies and procedures with
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regard to preventing abuse. (Id. at ¶67). Defendant seeks dismissal based upon the argument
that defendant is immune from liability from such a claim under the discretionary function
exemption of the Oklahoma Governmental Tort Claims Act (“OGTCA”).
Under the OCTCA, the state waives sovereign immunity from suit in certain
circumstances. See 51 O.S. §153. A school district is a political subdivision. 51 O.S.
§152(11)(b). One exemption from liability is for performing or failing to perform “any act
or service which is in the discretion of the [Defendant] or its employees.” 51 O.S. §155(5).
Plaintiffs correctly note that the Supreme Court of Oklahoma has stated “the discretionary
function exemption from governmental tort liability is extremely limited. This is so because
a broad interpretation would completely eradicate the government’s general waiver of
immunity. Almost all acts of government employees involve some element of choice and
judgment and would thus result in immunity if the discretionary exemption is not narrowly
construed. Just as the waiver is not a blue sky of limitless liability, the discretionary
exemption is not a black hole enveloping the waiver.” Nguyen v. State, 788 P.2d 962, 964
(Okla.1990)(footnote omitted).
The court endorsed the “planning-operational approach” to the exemption. “Under
this approach initial policy level or planning decisions are considered discretionary and hence
immune, whereas operational level decisions made in the performance of the policy are
considered ministerial and not exempt from liability.” Id. at 964-65. “Distinguishing
between discretionary and ministerial activities can be difficult.” Johnson v. Indep. Sch.
Dist. No. 89 of Okla. Cnty., 2016 WL 1270266, *8 (W.D.Okla.2016). Moreover, for
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example, there is no controlling authority regarding the applicability of the discretionary
function exemption to a claim of negligent supervision and retention. Houston v. Indep. Sch.
Dist. No. 89 of Okla. Cnty., 949 F.Supp.2d 1104, 1108 (W.D.Okla.2013). Inasmuch as the
distinction is a difficult one, and in view of the lack of controlling authority, the court finds
that it is more in keeping with the statement in Nguyen (which is controlling authority) to
deny the present motion and ultimately rule on a motion for summary judgment based on a
complete factual record.
The court notes that several federal district courts in Oklahoma (i.e., not controlling
authority) have granted motions to dismiss on similar claims of negligent hiring or
supervision. Some courts have done so based on finding as a matter of law that negligent
hiring or supervision is a discretionary function, although Judge Payne of this court came to
a contrary conclusion in J.M. v. Hilldale Indep. Sch. Dist. No. I-29 of Muskogee County,
Okla., 2008 WL 2944997 (E.D.Okla.2008). Some courts have reached a similar conclusion
regarding a claim of failure to maintain a safe school environment. This court finds such a
claim even more fact-intensive and declines to grant the pending motion to dismiss.
As to the claim of negligently failing to enforce the school’s policies, defendant
asserts immunity pursuant to 51 O.S. §155(4), which provides an exemption from liability
for the “enforcement of or failure to . . . enforce a law,” which is statutorily defined to
include a “written policy.” This may ultimately be the court’s ruling, but the court desires
additional factual development and discussion of the interplay between that statutory
provision and the discussion in Nguyen. That is, if enforcing or failing to enforce a school’s
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policy is exempt from liability, the scope of non-exempt “ministerial” functions appears
severely limited. See also Oklahoma Dep’t of Public Safety v. Gurich, 238 P.3d 1, 3-4
(Okla.2010)(government retains its immunity with respect to formulation of policy, but is
subject to liability for routine decisions and daily implementation of the policy). All of
defendant’s arguments regarding plaintiffs’ negligence claim may ultimately carry the day,
but not this day.
It is the order of the court that the motion to dismiss (#16) is hereby denied.

IT IS SO ORDERED this 10th day of SEPTEMBER, 2018.

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