Issacs v. Konawa Public Schools et al

Filing 33

OPINION AND ORDER by Magistrate Judge Kimberly E. West granting 24 Motion to Dismiss and granting 25 Motion to Dismiss Amended Complaint remanding remaining state law claims to the District Court of Seminole County, Oklahoma. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JESSI ISAACS, as Personal
Representative, for the Estate
of Rhindi Kay Isaacs, Deceased,
and Next of Kin,

)
)
)
)
)
Plaintiff,
)
)
v.
)
)
KONAWA PUBLIC SCHOOLS, INDEPENDENT )
SCHOOL DISTRICT I-004, THE BOARD
)
OF EDUCATION OF KONAWA PUBLIC
)
SCHOOLS, JOSEPH SCOGGINS, in his
)
official capacity as employee of
)
KONAWA PUBLIC SCHOOLS, and in
)
his individual capacity,
)
)
Defendants.
)

Case No. CIV-20-187-KEW

OPINION AND ORDER
Plaintiff Jessi Isaacs initiated this action on behalf of her
deceased daughter, Rhindi Issacs (“Rhindi”), in the District Court
of Seminole County, Oklahoma on May 22, 2020, against Defendants
Independent School District I-004 of Seminole County, Oklahoma,
the Konawa Public Schools (the “School District”), the Board of
Education of Konawa Public Schools (the “Board”), Joseph Scoggins
(“Scoggins”), in his official capacity as an employee of the Konawa
Public Schools, and Oklahoma School Insurance Group (“OSIG”). The
action was removed to this Court on June 18, 2020, and the
Defendants filed a partial motion to dismiss on June 24, 2020. The
parties consented to the undersigned judge on July 28, 2020.

In lieu of filing a response to the partial motion to dismiss,
and in accordance with the deadlines contained in the Court’s
scheduling order, Plaintiff filed an Amended Complaint on August
14, 2020, wherein she sued Scoggins individually and in his
official capacity as a School District employee, in addition to
the School District and the Board. Plaintiff did not name OSIG as
a defendant in the Amended Complaint. On August 28, 2020, the
School District and the Board filed Defendants’ Partial Motion to
Dismiss and Brief in Support (Docket Entry #24) and Defendant
Scoggins filed his Motion to Dismiss Amended Complaint and Brief
in Support (Docket Entry #25). These motions now come before the
Court for ruling.
Plaintiff’s Allegations
On March 8, 2019, Plaintiff’s daughter, Rhindi, was a member
of the Konawa Junior High softball team, when she was involved in
a tragic accident while traveling on the School District’s activity
bus with five other members of the softball team and its driver,
Scoggins, who was a coach and School District employee. On the way
back from a softball game in Okemah, Oklahoma, the activity bus
was involved in a head-on collision with an SUV, driven by thirdparty John Tallbear (“Tallbear”). See Amended Complaint, ¶¶ 5, 810 (Docket Entry # 21).
Plaintiff alleges that prior to the accident, Rhindi was not
sitting in her seat but was instead sitting on the floor or the
2

steps of the bus. She alleges that at the time of the accident,
Rhindi was standing in the stairwell of the bus, while the other
students were sitting in their seats in the first three rows of
the bus. The stairwell portion of the bus was the exact spot where
Tallbear’s SUV impacted the bus in the collision. Scoggins and the
other students survived the crash, but Rhindi did not. Tallbear
and another individual did not survive. Id. at ¶¶ 9-10, 12.
Plaintiff

also

alleges

that

the

surviving

students

have

reported they could see the approaching SUV in their lane (the
right lane) and that Scoggins communicated to them that he planned
to avoid the accident by veering the bus into the left lane prior
to impact, in an attempt to have any impact by the SUV be at the
back of the bus. Plaintiff contends that prior to impact, Scoggins
intentionally

veered

the

bus

to

the

left,

yelling

“BRACE

YOURSELVES,” but the bus and SUV collided head on when the SUV
returned to the left lane. Plaintiff asserts that other drivers
who encountered the SUV pulled over to avoid a collision, and
Scoggins should have minimized or avoided the collision by pulling
the bus to the shoulder and stopping. Id. at ¶¶ 13-15.
Plaintiff further contends that after the accident, when
questioned

by

the

middle

school

principal

about

Rhindi’s

whereabouts, Scoggins first reported Rhindi had been on the right
side of the bus with two other student athletes. When the principal
still could not locate Rhindi, he again asked Scoggins about
3

Rhindi. Plaintiff asserts Scoggins told the principal Rhindi had
been transported to the hospital by ambulance. The principal later
learned that Rhindi was still on the bus and was deceased. Id. at
¶ 11.
Plaintiff asserts the following claims against the School
District, the Board, and Scoggins, individually and in his official
capacity as a School District employee: (1) a state law claim for
negligence

under

the

Oklahoma

Governmental

Tort

Claims

Act

(“GTCA”); (2) a state law claim under the Oklahoma Constitution,
Article II, § 7, based upon a violation of substantive due process
rights under the danger creation exception; (3) a federal claim
under 42 U.S.C. § 1983 for violations of the Due Process Clause
under the Fifth and Fourteenth Amendments to the United States
Constitution; and (4) a federal claim under 42 U.S.C. § 1983 for
a violation of substantive due process based upon the danger
creation exception.
The School District and Board filed their partial motion to
dismiss, seeking dismissal of the Board arguing it is not a proper
party to the lawsuit because it is not a legal entity capable of
being sued. They also sought dismissal of any negligence claims
alleged by Plaintiff under certain GTCA exemptions based upon
negligent hiring, training, supervision, and retention, failing to
adopt or enforce policies related to chaperones, teachers and
coaches serving as bus drivers, and prevention of activity buses
4

from being in motion unless all passengers are seated. The School
District and Board sought dismissal of Plaintiff’s claim brought
under the Oklahoma Constitution because no private right of action
is available. They further sought dismissal of Plaintiff’s federal
claims

brought

under

42

U.S.C.

§

1983

for

violation

of

her

substantive due process rights, including a claim brought under
the danger creation exception. The School District and Board did
not seek dismissal of Plaintiff’s common-law negligence claim. See
Defendants’ Partial Motion to Dismiss (Docket Entry # 24).
Through

his

motion

to

dismiss,

Scoggins

asserts

any

negligence claim against him personally is precluded because he
was acting in the scope of his employment at the time of the
accident. He asserts Plaintiff’s state constitutional claim is
barred because there is no private right of action under the
Oklahoma

Constitution.

He

further

asserts

that

Plaintiff

has

failed to state a claim under the substantive due process standard
or under a danger creation exception of substantive due process.
Scoggins maintains that he is entitled to qualified immunity on
Plaintiff’s federal claims brought against him. See Scoggins’
Motion to Dismiss (Docket Entry # 25).
Standard on a Motion to Dismiss
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and
Ashcroft v. Iqbal, 556 U.S. 662 (2009), the United States Supreme
Court set forth the plausibility standard applicable to a motion
5

to dismiss filed under Fed. R. Civ. P. 12(b)(6). Clearly, Bell
Atlantic changed the legal analysis applicable to such motions,
creating a “refined standard.” Khalik v. United Airlines, 671 F.3d
1188, 1191 (10th Cir. 2012) (citation omitted). Bell Atlantic
stands for the summarized proposition that “[t]o survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible
on its face.’” Ashcroft, 556 U.S. at 678, quoting Bell Atlantic,
550 U.S. at 570. The Supreme Court did not parse words when it
stated in relation to the previous standard that “a complaint
should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief” is “best
forgotten as an incomplete, negative gloss on an accepted pleading
standard.” Bell Atlantic, 550 U.S. at 546.
The Court of Appeals for the Tenth Circuit has interpreted
the plausibility standard as referring “to the scope of the
allegations in the complaint:

if they are so general that they

encompass a wide swath of conduct, much of it innocent, then the
plaintiffs ‘have not nudged their claims across the line from
conceivable to plausible.’” Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008). The Bell Atlantic case, however, did not
intend the end of the more lenient pleading requirements of Fed.
R. Civ. P. 8(a)(2). Khalik, 671 F.3d at 1191. Rather, in Khalik,
6

the Tenth Circuit recognized the United States Supreme Court’s
continued endorsement of Rule 8’s “short and plain statement”
requirement in the case of Erickson v. Pardus, 551 U.S. 89 (2007),
wherein

the

Supreme

Court

found

“[s]pecific

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.’”
Id. at 93.
Initial Matters Regarding Defendants’ Motions
1)

Request for Court to Strike School District & Board’s Motion
As an initial matter, Plaintiff requests that the Court strike

the School District and Board’s motion to dismiss because two
motions were filed in the case, one on behalf of the School
District

and

the

Board,

and

a

separate

motion

on

behalf

of

Scoggins. However, nothing in the Federal Rules of Civil Procedure
or this Court’s Local Rules precluded Defendants from filing
separate motions for each Defendant. The separate Motions to
Dismiss complied with the requirements of LCvR 7.1(b),(c).
2)

Request that Motion Be Treated as Motion for Summary Judgment
Plaintiff also objects to the School District and Board’s

introduction section of their motion to dismiss, asserting that
the motion should be denied because the introduction references
facts that are not included in the Amended Complaint. Federal Rule
of Civil Procedure 12(f) references the requirement that a motion
to dismiss be treated as a motion for summary judgment when matters
7

outside the pleadings are presented to and not excluded by the
court. The Court declines to convert the motion to one for summary
judgment. To the extent the School District and Board included
factual information in the introduction section of their motion
that was not included in Plaintiff’s Amended Complaint, the Court
does not consider it in ruling upon the Motion.
3)

The Board is Not a Proper Party to this Action
In addition to alleging state and federal claims against the

School District, Plaintiff included the Board of Education for the
Konawa Public Schools as a defendant in the case. The School
District argues that the Board is not a legal entity subject to
suit, citing several federal district court cases from Oklahoma,
including one from this district. Plaintiff responds by citing to
a case filed by Board of Education of Oklahoma City Public Schools,
Independent School District No. 89, Oklahoma County v. Dowell, et
al., 498 U.S. 237 (1991), where Plaintiff contends the Board of
Education sued on its own behalf. Plaintiff further argues that
her federal claims are not limited under Oklahoma law and can be
brought against the Board.
Section 5-105 of the Oklahoma Statutes provides generally
that every school district is a body corporate and for public
purposes, it possesses the usual powers of a corporation. Okla.
Stat. tit. 70, § 5-105. It dictates that the name of a school
district shall be designated as “Independent (or Elementary, if it
8

is an elementary school district) School District Number ____ (such
number as may be designated by the State Board of Education) of
_______ (the name of the county in which the district is located
. . . ) County, Oklahoma.” Id. Section 5-105 further states that
a school district “may sue and be sued” in its name. Id. A board
of education is established by Title 70 - “[t]he governing board
of each school district in Oklahoma is hereby designated and shall
hereafter be known as the board of education of such district.”
Okla. Stat. tit. 70, § 5-106. Section 5-106, however, makes no
mention of any authority by a school board to sue or be sued.
Federal Rule of Civil Procedure 17 states that the capacity
for a corporation to sue or be sued is determined by the law of
the state in which the corporation was organized. See Fed. R. Civ.
P. 17(b)(2). Oklahoma law also provides that corporations must sue
or be sued in their corporate name. See Okla. Stat. tit. 18, §
1016.
The Court finds the cases from the other federal district
courts in Oklahoma persuasive on this issue. For example, in
Primeaux v. Independent School District No. 5 of Tulsa County,
Oklahoma, 954 F.Supp.2d 1292 (N.D. Okla. 2012), the court examined
the language of Sections 5-105 and 5-106 of Title 70 of the
Oklahoma Statutes and determined that “Oklahoma school boards are
not separate, suable entities” and dismissed the claims against
the school board. Id. at 1294-95. The Primeaux court also noted
9

that because the school district and the district’s board were
both named as defendants in the case for the same claims, as
Plaintiff has done in this case, the claims were duplicative. Id.
at 1295. Also, in Teams Systems International, LLC v. Haozous,
2015 WL 2131479 (W.D. Okla., May 7, 2015), the court dismissed
claims against a board of directors, finding the issue analogous
to a board of education of a school district and that “the board
may not sue or be sued.” Id. at 2. Further, in Hopkins v. Bacone
College, 2016 WL 6604357 (E.D. Okla., Nov. 8, 2016), the court
relied on these other decisions and determined that the college’s
board of trustees was not a suable entity. Id. at 2.
Accordingly, the Board is not a proper party and is hereby
dismissed from the action.
4) Section 1983 Official Capacity Claims Against Scoggins
Scoggins contends that the federal claims brought against him
in his official capacity under § 1983 should be dismissed because
they are merely claims brought against the School District, which
is also named as a defendant in the action. This Court agrees that
such claims are duplicative and should be dismissed as against
Scoggins in his official capacity. See D.L. v. Unified School Dist.
No. 497, 392 F.3d 1223, 1227 (10th Cir. 2004) (recognizing district
court’s dismissal of official capacity claims as redundant of
naming of District); Rubio v. Turner Unified School Dist. No. 202,
453 F.Supp.2d 1295, 1300 (D. Kan. 2006) (suit against both the
10

school district and individuals in their official capacities was
duplicative). As a result, Scoggins in his official capacity is
properly dismissed from this action.
Plaintiff’s Federal Substantive Due Process Claims
1) Pertinent Standards to Plaintiff’s § 1983 Claims
a) Qualified Immunity-Scoggins
Scoggins contends that he is entitled to qualified immunity
regarding Plaintiff’s federal substantive due process claims.
“Individual defendants named in a § 1983 action may raise a defense
of qualified immunity,” Cillo v. City of Greenwood Village, 739
F.3d 451, 459 (10th Cir. 2013), which “shields public officials .
. . from damages actions unless their conduct was unreasonable in
light of clearly established law,” Gann v. Cline, 519 F.3d 1090,
1092 (10th Cir. 2008)(quotations omitted). Generally, “when a
defendant asserts qualified immunity, the plaintiff carries a twopart burden to show: (1) that the defendant’s actions violated a
federal constitutional or statutory right, and, if so, (2) that
the right was clearly established at the time of the defendant’s
unlawful conduct.” Cillo, 739 F.3d at 460.
b)

Municipal Liability-School District

When a § 1983 claim is asserted against a municipality, such
as

the

School

District,

a

court

must

consider

“(1)

whether

plaintiff’s harm was caused by a constitutional violation, and (2)
if so, whether the city is responsible for that violation.” Collins
11

v. City of Harker Heights, 503 U.S. 115, 120 (1992). However, “a
municipality cannot be held liable solely because it employs a
tortfeasor—or, in other words, a municipality cannot be held liable
under § 1983 on a respondeat superior theory.” Monell v. New York
City Dep’t of Social Servs., 436 U.S. 658, 691 (1978) (emphasis in
original).1 A municipality is liable under § 1983 “when execution
of a government’s policy or custom, whether made by its lawmakers
or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an
entity is responsible[.]” Id.
2)

Deprivation of Life-Substantive Due Process Claim
Plaintiff contends in her Amended Complaint that Scoggins and

the School District violated Rhindi’s substantive due process
rights under § 1983 by depriving her of life in violation of the
Fifth and Fourteenth Amendments to the United States Constitution.2
“The Fourteenth Amendment prohibits a State from depriving
‘any person of life, liberty, or property without due process of
law.’” Hernandez v. Ridley, 734 F.3d 1254, 1258 (10th Cir. 2013),

In the Amended Complaint, Plaintiff alleges that “[p]ursuant
to respondeat superior, Konawa Independent School District as employer
of their agent, Scoggins, are liable for the willful acts of its
employee, while he was driving the activity bus.” Amended Complaint, ¶
42.
2 

The Court notes that “[t]he Due Process Clause of the Fifth
Amendment applies only to action by the federal government while the Due
Process Clause of the Fourteenth Amendment applies to actions by state
governments.” Koessel v. Sublette County Sheriff’s Dept., 717 F.3d 736,
748 n.2 (10th Cir. 2013). Based on the allegations of the Amended
Complaint, Plaintiff has no claim for relief under the Fifth Amendment.
1

12

quoting U.S. Const. amend. XIV, § 1. The substantive component of
the Due Process Clause of the Fourteenth Amendment “bars certain
arbitrary, wrongful government actions ‘regardless of the fairness
of the procedures used to implement them.’” Zinermon v. Burch, 494
U.S. 113, 125 (1990), quoting Daniels v. Williams, 474 U.S. 327,
331 (1986). The Tenth Circuit has held that “there must be an
element

of

deliberateness

in

directing

the

misconduct

toward

plaintiff before the Due Process Clause is implicated.” Seamons v.
Snow, 84 F.3d 1226, 1234 (10th Cir. 1996); see also Daniels, 474
U.S. at 331 (noting the guarantee of due process applies to
“deliberate decisions of government officials to deprive a person
of life, liberty, or property”). However, the clause is “phrased
as a limitation on the State’s power to act, not as a guarantee of
certain

minimal

levels

of

safety

and

security.”

DeShaney

v.

Winnebago County Dep’t of Social Servs., 489 U.S. 189, 195 (1989).
A violation of substantive due process is “not implicated by a
negligent act of an official causing unintended loss of or injury
to life, liberty, or property.” Daniels, 474 U.S. at 328 (emphasis
in original).
A substantive due process violation also requires that the
state actor engage in conduct that “shocks the conscience.” Rochin
v. California, 342 U.S. 165, 172 (1962). To meet this standard, “a
plaintiff

must

do

more

than

show

that

the

government

actor

intentionally or recklessly caused injury to the plaintiff by
13

abusing or misusing government power.” Uhlrig v. Harder, 64 F.3d
567, 574 (10th Cir. 1995); see also Koessel, 717 F.3d at 750 (“Even
most

intentionally

inflicted

injuries

caused

by

misuse

of

government authority will not meet this standard.”) (citation
omitted).

“[T]he

plaintiff

must

demonstrate

a

degree

of

outrageousness and a magnitude of potential or actual harm that is
truly conscience shocking.” Uhlrig, 64 F.3d at 574. This “requires
a high level of outrageousness, because the Supreme Court has
specifically admonished that a substantive due process violation
requires more than an ordinary tort[.]” Id.3 Whether such conduct
shocks the conscience is a question of law for the court. See Perez
v. Unified Gov’t of Wyandotte Cty./Kan. City, Kan., 432 F.3d 1163,
1168 n.4 (10th Cir. 2005); see also Moore v. Guthrie, 438 F.3d
1036, 1040 (10th Cir. 2006) (“The ultimate standard for determining
whether there has been a substantive due process violation is
whether the challenged government action shocks the conscience of
federal judges.”) (quotation omitted).
In the Amended Complaint, Plaintiff alleges it was at least
grossly negligent for Scoggins to: (1) disobey the rules of the

When considering whether conduct is conscience shocking,
courts should “bear in mind three basic principles highlighted by the
Supreme Court in evaluating substantive due process claims: (1) the need
for restraint in defining their scope; (2) the concern that § 1983 not
replace state tort law; and (3) the need for deference to local
policymaking bodies in making decisions impacting upon public safety.”
Uhlrig, 64 F.3d at 573 (citations omitted).
3

14

road and veer into oncoming traffic, (2) fail to locate Rhindi
after the accident, and (3) misrepresent her whereabouts to the
principal. She also contends “it was totally without regard to the
life & wellbeing of Rhindi Isaacs for . . . Scoggins to allow
Rhindi to stand in the stair[well] of the bus when he knew that
his plan was to impact the oncoming vehicle.” Id. at ¶¶ 16-17.
Considering Plaintiff’s allegations against Scoggins as true,
the Court does not find Scoggins’ conduct as conscience shocking
in

a

constitutional

sense.

Plaintiff

has

not

demonstrated

deliberate conduct by Scoggins wherein he intended to cause the
death of Rhindi. The Amended Complaint asserts that Scoggins veered
from the right lane of traffic into the left lane of traffic to
avoid hitting Tallbear’s SUV, which was traveling in the right
lane. Thus, he did not veer into oncoming traffic. The students
were sitting in the first three rows of the bus and Rhindi was in
the stairwell—all at the front of the bus. As alleged by Plaintiff,
Scoggins’ plan was that if the SUV hit the bus, it would hit the
rear of the bus. Although his plan in hindsight could certainly be
viewed as negligent or perhaps even reckless to the safety of all
the students on the bus, Scoggins’ conduct was not deliberate
toward Rhindi and was a decision made in the moment to veer into
the left lane to avoid the SUV, instead of pulling to the side of
the road. Moreover, although the allegations of Scoggins’ conduct
after the accident are troubling to the Court, like his conduct
15

leading up to the accident, Scoggins’ conduct is likely negligent,
but it does not “demonstrate a degree of outrageousness and a
magnitude of potential or actual harm that is truly conscience
shocking.” Uhlrig, 64 F.3d at 574; see also DeAnzona v. City and
County of Denver, 222 F.3d 1229, 1235 (10th Cir. 2000) (“[M]ere
negligence does not shock the conscience.”).
As to the School District, Plaintiff alleges the Board knew
there was a chronic shortage of bus drivers and chaperones, but it
continued to vote and approve activity trips for students placing
them in danger of injury or death. Amended Complaint at ¶ 23.
Plaintiff

contends

the

School

District

was

deliberately

indifferent to student safety by: (1) violating national safety
standards,

specifically

the

National

School

Transportation

Specifications & Procedures, recommended for all Oklahoma schools,
which required that chaperones accompany students on activity
trips and that students remain seated in their seats while the bus
was moving, (2) requiring teachers and coaches to act as drivers
because of understaffing, resulting in distracted drivers and
violations of federal motor carrier guidelines limiting drivers to
being on duty for no more than fifteen hours, and (3) failing to
train their bus drivers to stay right of center or to pull off on
the shoulder if necessary to avoid a collision. Plaintiff asserts
that these policies, customs, or procedures of the School District
were deliberately indifferent “to the constitutional rights of
16

their students’ life and liberty,” and resulted in Rhindi’s death.
Id. at ¶¶ 24-30.
Construing

Plaintiff’s

allegations

against

the

School

District as true, they do not rise to the level of conscience
shocking conduct. See Green v. Post, 574 F.3d 1294, 1302 (10th
Cir. 2009) (“To rise to the level of a constitutional violation,
a deliberately indifferent act must be one which is conscienceshocking—the

Supreme

Court

has

acknowledged

that

not

every

deliberately indifferent action will rise to the ‘constitutionally
shocking level.’”), quoting Bublitz v. Cottey, 327 F.3d 485, 490
(7th Cir. 2003). Violations of state law do not constitute a
violation of the Federal Constitution. See Nordlinger v. Hahn, 505
U.S. 1, 26 (1992) (“A violation of state law does not by itself
constitute a violation of the Federal Constitution.”). Moreover,
failing to follow certain state and federal regulations does not
rise above the level of negligence. See Ruiz v. McDonnell, 299
F.3d 1173, 1184 (10th Cir. 2002), cert. denied, 538 U.S. 999 (2003)
(finding

that

state

defendants’

failure

to

conduct

requisite

background and insurance checks based on state and federal statutes
and regulations governing child care licensing did not rise above
the

level

of

negligence

conscience-shocking

and

therefore

conduct).

Further,

did

not

constitute

“[e]ven

knowingly

permitting unreasonable risks to continue does not necessarily
rise to the level of conscience shocking.” DeAnzona, 222 F.3d at
17

1235 (10th Cir. 2000); see also Moore, 438 F.3d at 1041 (“[T]he
Supreme Court has specifically admonished that a substantive due
process violation requires more than an ordinary tort and that
merely allowing unreasonable risks to persist in the workplace is
not necessarily conscience shocking.”), quoting Uhlrig, 64 F.3d at
574, citing Collins, 503 U.S. at 128.
Accordingly, although the death of three individuals in such
a manner is always tragic and shocking, the Court finds the conduct
of Scoggins and the School District is not shocking to this Court’s
judicial conscience in a constitutional sense. In making this
determination, the Court has considered the basic principles set
out by the Supreme Court for evaluating substantive due process
claims, and in reaching the decision, exercises restraint in
defining the scope of such a claim, accounts for concern that §
1983 not replace state tort law, and gives deference to local
policymaking bodies in making decisions impacting upon public
safety. Uhlrig, 64 F.3d at 573 (citations omitted). Scoggins is
therefore

entitled

to

qualified

immunity

on

this

claim,

and

Plaintiff has failed to satisfy the requirements for municipal
liability against the School District.
3)

Danger creation exception-Substantive Due Process
Plaintiff further alleges that “the acts and omissions of the

[D]efendants

constituted

a

state-created

danger

that

caused

[Rhindi’s] death.” Id. at ¶ 30. “Generally, state actors may only
18

be held liable under § 1983 for their own acts, and not for the
violent acts of third parties.” Ruiz, 299 F.3d at 1182, citing
DeShaney, 489 U.S. at 197. There are, however, two exceptions to
the general rule: (1) the special relationship exception and (2)
the danger creation exception. Here, Plaintiff alleges only a
substantive

due

process

violation

under

the

danger

creation

exception.4
“To invoke the danger-creation exception, a plaintiff must
establish as a threshold matter (1) private violence, and (2)
affirmative conduct on the part of the state in placing the
plaintiff in danger.” Hernandez, 734 F.3d at 1259, citing Gray v.
University of Colo. Hosp. Auth., 672 F.3d 909, 920 & n.8 (10th

If Plaintiff was raising a substantive due process claim
against Scoggins and the School District under the special relationship
exception, her claim would fail. A special relationship arises when “the
State’s affirmative act of restraining the individual’s freedom to act
on his own behalf – through incarceration, institutionalization, or other
similar restraint of personal liberty – which is the ‘deprivation of
liberty’ triggering the protections of the Due Process Clause[.]”
DeShaney, 489 U.S. at 200. “Inaction by the state in the face of a known
danger is not enough to trigger the obligation[,]” because “[t]he
affirmative duty to protect arises not from the State’s knowledge of the
individual’s predicament . . . but from the limitation which it has
imposed on his freedom to act on his own behalf.” Id.; see also Graham
v. Independent School District No. I-89, 22 F.3d 991, 995 (10th Cir.
1994) (“In the absence of a custodial relationship, we believe plaintiffs
cannot state a constitutional claim based upon the defendants’ alleged
knowledge of dangerous circumstances.”). In Maldonado v. Josey, the Tenth
Circuit determined that “[a]lthough a child may well be in the ‘custody’
of the school authorities during school hours, this custody does not
amount to a restraint that prohibits the child and his parents from
caring for the basic needs of the child.” 975 F.2d 727, 732 (10th Cir.
1992), cert. denied, 507 U.S. 914 (1993). Thus, “[t]he Tenth Circuit has
held repeatedly that because schools do not provide for a child’s basic
needs, schoolchildren do not have a special relationship with the
government.” DeAnzona, 222 F.3d at 1234.
4

19

Cir. 2012). If these preconditions are met, a plaintiff must then
satisfy all elements of a six-part test: “(1) [defendant] created
the danger or increases plaintiff’s vulnerability to the danger in
some way; (2) plaintiff was a member of a limited and specifically
definable

group;

(3)

defendant’s

conduct

put

plaintiff

at

substantial risk of serious, immediate, and proximate harm; (4)
the risk was obvious or known; (5) defendants acted recklessly in
conscious disregard of that risk; and (6) such conduct, when viewed
in total, is conscience shocking.” Id. (quotation omitted).
The Court finds that Plaintiff has not satisfied either precondition of the danger creation exception. She has pointed to no
conduct by Scoggins that was affirmative conduct that placed Rhindi
in danger. First, Scoggins’ conduct prior to the accident was not
directly aimed at Rhindi. See Ruiz, 299 F.3d at 11883 (“[T]he
conduct should be directed at a discrete plaintiff[.]”). Second,
Plaintiff does not allege that Scoggins told Rhindi to stand in
the stairwell of the bus. Plaintiff only alleges that he did not
stop her from doing it. Allowing her to stand in the stairwell
does not constitute affirmative conduct. See Estate of B.I.C. v.
Gillen, 710 F.3d 1168, 1173 (10th Cir. 2013) (“There is, however,
a question as to whether there is sufficiently affirmative conduct
on the part of the state in placing the plaintiff in danger. Our
precedents consistently conclude that mere negligence or inaction
is not enough.”).
20

Likewise, Plaintiff has not demonstrated affirmative conduct
by the School District. In Gray v. University of Colorado Hosp.
Auth., 672 F.3d 909 (10th Cir. 2012), the Tenth Circuit found that
“because the act of establishing such policies and customs does
not pose a direct threat to any one particular individual but
affects

a

broader

populace,

we

deem

such

act

too

remote

to

establish the necessary causal link between the danger to the
victim and the resulting harm.” Id. at 926, citing Ruiz, 299 F.3d
at 1183. It concluded that “Defendants’ adoption of policies and
customs generally applicable to all EMU patients, even if done in
reckless disregard of a generalized risk, did not constitute
affirmative conduct sufficient to impose § 1983 liability on
Defendants under the state-created danger theory.” Id. at 927. The
same would be true as to any of the School District’s alleged
policies, customs, or procedures in this case.
The other precondition, private violence, “requires a private
act of violence to have caused the victim’s harm.” Hernandez, 734
F.3d 1254, 1259 (10th Cir. 2013), citing Gray, 672 F.3d at 928.
“Violence

requires

“[a]t

the

very

least”

some

degree

of

deliberateness on the part of the private actor; negligence is
insufficient.” Id., citing Gray, 672 F.3d at 928-29. Plaintiff has
not alleged in the Amended Complaint that Tallbear’s driving was
an act of violence. The only mention of any action by Tallbear is
“that

the

factual

allegations

as
21

described

herein

constitute

negligence

and/or

gross

negligence”

of

Defendants

and

Mr.

Tallbear. Amended Complaint, ¶ 21, p. 6. “[N]o constitutional
violation occurs when a private party’s underlying negligent act
is directly responsible for the victim’s harm.” Hernandez, 734
F.3d at 1259.
In any event, even if Plaintiff can satisfy the preconditions,
she must still meet the six-part test, which includes a showing
that the conduct is conscience shocking. See Moore, 438 F.3d at
1042 (noting that a plaintiff’s duty to allege actions that shock
the conscience applies to the special relationship and danger
creation exceptions). As previously discussed herein, the Court
determined that the alleged conduct of Scoggins and the School
District

does

not

shock

the

judicial

conscience

in

the

constitutional sense.
Accordingly, Scoggins is entitled to qualified immunity on
Plaintiff’s state-created danger substantive due process claim,
and Plaintiff has failed to satisfy the requirements for municipal
liability against the School District.
Amendment of the Pleadings
Federal Rule of Civil Procedure 15(a)(2) states that “[t]he
court

should

requires.”

freely

give

leave

[to

amend]

when

justice

so

However, denial of amendment is appropriate, “if the

amendment would be futile[.]” Jones v. Norton, 809 F.3d 564, 573
(10th Cir. 2015).
22

“Rule 7 requires a request for relief to be made by a motion
that (1) is in writing, (2) ‘states with particularity the grounds
for seeking the order,’ and (3) specifies the relief sought.”
Albers v. Board of Cty. Comm’rs of Jefferson City, Colo., 771 F.3d
697, 706, quoting Fed. R. Civ. P. 7(b). In Albers, the court
“recognized the importance of Fed. R. Civ. P. 7(b) and have held
that normally a court need not grant leave to amend when a party
fails to file a formal motion.” Id. Here, Plaintiff never sought
leave to file another amended complaint by formal motion nor did
she request to do so in her responses. See Burnett v. Mortgage
Elec. Registration Sys., Inc., 706 F.3d 1231, 1238 n.4 (10th Cir.
2013) (“Where a plaintiff does not move for permission to amend
the complaint, the district court commits no error by not granting
such leave.”).
Moreover, even after Defendants filed their latest motions to
dismiss, Plaintiff again did not seek to amend, but she instead
included additional factual allegations in her response briefs.
See Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson,
P.C., 956 F.3d 1228, 1236 (10th Cir. 2020) (“When a party faces a
motion to dismiss and it believes that it can overcome objections
with an amendment to the pleading, it should seek leave to amend
at that time. Efficient adjudication of disputes requires that the
party present its best effort to state a claim before the court
addresses the motion to dismiss.”).
23

In her response to Defendants’ motions, Plaintiff includes
additional factual information that was not part of the Amended
Complaint. Specifically, she includes references in the response
brief alleging Scoggins violated provisions in the Oklahoma School
Bus Driver’s Manual, the Konawa Public School Bus Rider’s Guide,
and the Oklahoma Commercial Driver’s License Manual. She also
alleges facts related to the accident that were not included in
the Amended Complaint, including that Scoggins “intentionally
steered the bus into the SUV[,]” “met with the surviving members
of the softball team to inform them to keep secret his plan to
steer into the path of the oncoming SUV[,]” and that “[a]fter
impact, based on the positioning of her remains, Scoggins stepped
over Rhindi in order for him to exit the bus.” See Plaintiff’s
Response to Scoggins’ Motion to Dismiss, pp. 6-11 (Docket Entry #
29).
Regarding

the

School

District,

Plaintiff

includes

the

following additional facts in her response: (1) references to the
Student Handbook, Bus Rider’s Guide regarding chaperones; (2)
notifications to the Board by the principal that teachers and
coaches were overworked and it was dangerous for them to transport
students

on

the

activity

bus

after

working

a

full

day;

(3)

notification to the Board by the principal that “new drivers needed
to be hired to safely transport students;” (4) personnel who
transported students on the activity buses “routinely began their
24

bus driving duties at 5:00 a.m. in the bus yard and continue their
duties with regard to transporting students on activity trips until
10:00 p.m.;“ (5) “Scoggins met with the surviving members of the
softball team to inform them to keep secret his plan to steer into
the path of the oncoming SUV;” (6) the concern of parents over the
exhaustion of coach/bus drivers which resulted in parents not
allowing

their

child

to

ride

on

the

activity

bus;

and

(7)

notifications to the Board by the principal and concerned parents
that coaches/bus drivers were violating the 15-hour rule. See
Plaintiff’s Response in Opposition to Defendants’ Partial Motion
to Dismiss, pp. 6-8, 10-11 (Docket Entry # 28).
In

any

event,

even

considering

the

additional

factual

information contained in Plaintiff’s responses, the Court finds
Plaintiff fails to allege conduct by Scoggins or the School
District that is conscience shocking in a constitutional sense for
the same reasons addressed herein. Accordingly, the Court finds
amendment would be futile.
State Law Claims
As detailed herein, Plaintiff’s Amended Complaint fails to
state a federal claim upon which relief can be granted against
Scoggins or the School District. The only remaining claims are
state law claims of negligence and claims under the Oklahoma
Constitution, which come before the Court only on the basis of
supplemental jurisdiction. See 28 U.S.C. § 1367(a). “When all
25

federal claims have been dismissed, the court may, and usually
should, decline to exercise jurisdiction over any remaining state
claims.” Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir.
2011). If a case has been removed from state court and the federal
claims are dismissed by the federal court, it has discretion to
either dismiss the state law claims or remand them to state court.
See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).
Here, based on the authority in 28 U.S.C. § 1367(c), the Court
declines to exercise supplemental jurisdiction over Plaintiff’s
remaining state law claims of negligence and violation of the
Oklahoma Constitution. These claims are hereby remanded to the
District Court of Seminole County, Oklahoma.
IT IS THEREFORE ORDERED that Defendants’ Partial Motion to
Dismiss and Brief in Support (Docket Entry #24) is hereby GRANTED,
in relation to Plaintiff’s claims for violations of Rhindi Isaac’s
Fourteenth Amendment rights to substantive due process. Moreover,
the Board is dismissed as a party to the action. The Court declines
to exercise supplemental jurisdiction over Plaintiff’s remaining
state

law

claims

against

the

School

District,

and

they

are

therefore REMANDED to the District Court of Seminole County,
Oklahoma.
IT IS FURTHER ORDERED that Defendant Scoggins’ Motion to
Dismiss Amended Complaint and Brief in Support (Docket Entry #25)
26

is hereby GRANTED, in relation to Plaintiff’s claims for violations
of Rhindi Isaac’s Fourteenth Amendment rights to substantive due
process. The Court declines to exercise supplemental jurisdiction
over Plaintiff’s remaining state law claims against Scoggins, and
they are therefore REMANDED to the District Court of Seminole
County, Oklahoma.
IT IS SO ORDERED this 31st day of March, 2021.

_____________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

27