Carroll et al v. Independent School District No 8 of Lawton et al

Filing 33

ORDER granting 19 defendants' Lynn Fitz and John Whittington motion to dismiss and dismissing plaintiffs' negligence and civil conspiracy claims against defendants Fitz and Whittington (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 3/26/2014. (ks)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
AKC, minor, by TED and BELLA
CARROLL, her Parents and Next Friends,
TED CARROLL, an individual, and
BELLA CARROLL, an individual,

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Plaintiffs,
v.
LAWTON INDEPENDENT SCHOOL
DISTRICT NO. 8, VICKIE CANTRELL,
an individual, LYNN FITZ, an individual,
and JOHN WHITTINGTON, an individual,
Defendants.

Case No. CIV-13-407-M

ORDER
Before the Court is the Motion to Dismiss by Defendants Lynn Fitz (“Fitz”) and John
Whittington (“Whittington”) with Combined Brief in Support (“Mtn. to Dis.”), filed May 30,
2013. Plaintiffs filed their response (“Pls.’ Resp.”) on June 20, 2013, and Fitz and Whittington
replied on June 26, 2013. Based on the parties’ submissions, the Court makes its determination.
I.

Introduction
Plaintiffs, Ted and Bella Carroll, the parents and next friends of AKC1, bring this action

on behalf of their minor daughter alleging several claims against Lawton Independent School
District No. 8 (“the District”), Vickie Cantrell (“Cantrell”), AKC’s teacher; Fitz, Director of
Special Services at the District; and Whittington, Chief of School Security at the District.
Plaintiffs allege that in late May of 2012, Mr. Carroll discovered AKC had been injured at
school. Compl. ¶ 16. Plaintiffs allege they were told by a teacher’s aide assigned to AKC, that
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AKC is a student at Pat Henry Elementary School and during the 2011-2012 school
year was a third grader in Defendant Vickie Cantrell’s class. Compl. ¶ 11. AKC is autistic and
her disability impairs her ability to verbally communicate.
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AKC “was subjected to ‘punishments,’ which included: (1) physically battering AKC and tearing
AKC’s underwear; and (2) abusing AKC by placing her in a dark closet as punishment.” Compl.
¶ 17. Further, plaintiffs allege that the teacher’s aides in AKC’s class were prohibited by Cantrell
from speaking to parents about matters concerning the students without Cantrell being present.
Plaintiffs allege that Cantrell “threatened the teacher’s aides with their jobs if they informed the
parents, including the Carrolls, about the punishments.” Compl. ¶ 18.
Plaintiffs further allege that the school’s principal, as well as Fritz and Whittington, were
aware of Cantrell’s conduct and that plaintiffs were never notified of any disciplinary issues
involving AKC. Plaintiffs allege that as a result of Cantrell’s conduct and the District’s inaction,
AKC refuses to go into the school and gets upset and agitated when she enters the building, and
that her overall academic progress has been impacted, as well as her ability to participate in the
educational process. Plaintiffs allege that, as a result of these punishments, they have suffered
damages, such as medical bills, and AKC’s academic achievement has been significantly
impacted, requiring AKC to receive tutoring to bring her to the appropriate academic level.
Based on these allegations, plaintiffs assert claims of negligence and conspiracy against
Fitz and Whittington. Fitz and Whittington move this Court to dismiss plaintiffs’ claims,
pursuant to Federal Rule of Civil Procedure 12(b)(6).
II.

Standard for Dismissal
Regarding the standard for determining whether to dismiss a claim pursuant to Federal

Rule of Civil Procedure 12(b)(6), the United States Supreme Court has held:
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a “probability
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requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads facts
that are merely consistent with a defendant’s liability, it stops short
of the line between possibility and plausibility of entitlement to
relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). Further,
“where the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not shown – that the pleader is entitled to
relief.” Id. at 679 (internal quotations and citations omitted). Additionally, “[a] pleading that
offers labels and conclusions or a formulaic recitation of the elements of a cause of action will
not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual
enhancement.” Id. at 678 (internal quotations and citations omitted). “While the 12(b)(6)
standard does not require that Plaintiff establish a prima facie case in her complaint, the elements
of each alleged cause of action help to determine whether Plaintiff has set forth a plausible
claim.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). Finally, “[a] court
reviewing the sufficiency of a complaint presumes all of plaintiff’s factual allegations are true
and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106,
1109 (10th Cir. 1991).
III.

Discussion
A.

Negligence
It is well established that the Oklahoma Governmental Tort Claims Act

(“GTCA”) is the exclusive remedy for an injured plaintiff to recover against a governmental
entity in tort. Tuffy’s, Inc. v. City of Okla. City, 212 P.3d 1158, 1163 (Okla. 2009). Under the
GTCA, a governmental entity is liable for torts for which a private person would be liable, unless
the torts are committed outside the course and scope of employment or unless they are
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committed in bad faith or in a malicious manner. Id. Scope of employment is defined as an act
where the employee performed the act in good faith within the duties of his office or
employment. Id. More specifically, an employee is said to be acting within the scope of
employment if the employee is doing that which is customary within the particular trade,
engaging in work assigned, or doing that which is proper, necessary and usual to accomplish the
work assigned. Id.
Fitz and Whittington assert that plaintiffs have “failed to specifically allege that they
engaged in conduct outside their scope of employment or that a ‘special relationship’ or ‘duty’
existed between the plaintiffs and Fritz and Whittington outside the school setting.” Mtn. to Dis.
at 3. Plaintiffs assert that the GTCA does not protect Fitz and Whittington because they engaged
in willful and wanton conduct. The Oklahoma Court of Civil Appeals found in Hull v. Wellston
Indep. Sch. Dist. I 004, 46 P.3d 180 (Okla. Civ. App. 2001) that:
Although officers and employees of governmental agencies,
including the State are protected from tort liability while
performing discretionary functions within the scope of their
employment, such protection does not render such employees
immune from liability for willful and wanton negligence or
conduct which places the employees outside the scope of their
employment.
Id. at 184. The Oklahoma Supreme Court defined wanton as:
[C]onduct [that] exhibits a conscious indifference to consequences
in circumstances where probability of harm to another within the
circumference of the conduct is reasonably apparent, although
harm to another is not intended, but only that the act is so
unreasonable and dangerous that the actor either knows or should
know that there is an eminent likelihood of harm.
Foster v. Emery, 495 P.2d 390, 392-93 (Okla. 1972).
Having carefully reviewed plaintiffs’ Complaint, and presuming all of plaintiffs’ factual
allegations are true and construing them in the light most favorable to plaintiffs, the Court finds
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that plaintiffs have not set forth sufficient allegations to show that Fitz and Whittington acted
with willful and wanton negligence. In their Complaint, plaintiffs allege that “Fitz and
Whittington failed to take any remedial and/or corrective action to stop the abuse,” allegedly
committed by Cantrell, and that “all defendants’ actions were made with reckless disregard as to
AKC’s well-being and rights.” Compl. ¶¶ 49 & 52. The Court finds that plaintiffs have failed to
plead any facts to show that Fitz and Whittington’s alleged action/or inaction was outside the
scope of their employment or that their conduct was made with willful or wanton negligence.
These statements as to Fitz and Whittington’s actions or inactions are nothing more than mere
conclusory statements. Accordingly, for the reasons set forth above, plaintiffs’ claims of
negligence against Fitz and Whittington are dismissed.
B.

Conspiracy

“A civil conspiracy consists of a combination of two or more persons to do an unlawful
act or to do a lawful act by unlawful means. . . . In order to be liable the conspirators must pursue
an independently unlawful purpose or use an independently unlawful means.” Gaylord Entm't
Co. v. Thompson, 958 P.2d 128, 148 (Okla. 1998). A civil conspiracy claim must “allege specific
facts showing an agreement and concerted action amongst the defendants,” and “the manner in
which the conspiracy operated.” Montgomery v. City of Ardmore, 365 F.3d 926, 940 (10th Cir.
2004). In their Complaint, plaintiffs assert that Cantrell, Fitz, and Whittington conspired to cover
up the alleged abuse that occurred in Cantrell’s classroom, in violation of Okla. Stat. tit. 10A, §
1-2-101(C).2 Fitz and Whittington assert that “in Oklahoma, in order for civil conspiracy to lie,
the claim must base itself on a valid actionable underlying tort.” Mtn. to Dis. at 83.
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Okla. Stat. tit. 10A, § 1-2-101(C) provides:
C. Any person who knowingly and willfully fails to promptly
report suspected child abuse or neglect or who interferes with the
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Having carefully reviewed plaintiffs’ Complaint, and presuming all of plaintiffs’ factual
allegations are true and construing them in the light most favorable to plaintiffs, the Court finds
that plaintiffs have insufficiently pled a claim of civil conspiracy against Fitz and Whittington.4
The Court specifically finds that plaintiffs’ Complaint is deficient in showing an agreement
between Cantrell, Fitz, and Whittington to conspire to violate the Oklahoma child abuse
reporting statute by not reporting the alleged abuse suffered by AKC. The Court also agrees with
Fitz and Whittington that, in order for a civil conspiracy claim to lie, it must be based on an
underlying tort. In this case, plaintiffs’ alleged conspiracy claim relies on the fact that neither
Cantrell, Whittington, or Fitz reported the alleged abuse according to the Oklahoma child abuse
reporting statute. A conviction under Okla. Stat. tit. 10A, § 1-2-101(C) is not a tort, but a
criminal offense; so, a civil conspiracy claim cannot be based on a violation of the Oklahoma
child abuse reporting statute. Accordingly, plaintiffs’ civil conspiracy claim Fitz and Whittington
is dismissed.

prompt reporting of suspected child abuse or neglect may be
reported to local law enforcement for criminal investigation and,
upon conviction thereof, shall be guilty of a misdemeanor. Any
person with prolonged knowledge of ongoing child abuse or
neglect who knowingly and willfully fails to promptly report such
knowledge may be reported to local law enforcement for criminal
investigation and, upon conviction thereof, shall be guilty of a
felony. For the purposes of this paragraph, “prolonged knowledge”
shall mean knowledge of at least six (6) months of child abuse or
neglect.
Okla. Stat. tit. 10A, § 1-2-101(C).
3

Citing Meyer v. Town of Buffalo, Okla., 2007 WL 2436302, at *5 (W.D. Okla. Aug. 22,
2007)(unpublished opinion).
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In their Complaint, plaintiffs allege a conspiracy claim against all defendants. In their
response to Cantrell’s Motion to Dismiss, plaintiffs concede the claim is only against defendants
Cantrell, Fitz, and Whittington. In separate Orders entered this same date, the Court dismissed
the conspiracy claims against Cantrell, as well as the District.
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IV.

Conclusion
Accordingly, for the reasons set forth above, the Court GRANTS the Motion to Dismiss

by Defendants Lynn Fitz and John Whittington with Combined Brief in Support [docket no. 19]
and DISMISSES plaintiffs’ negligence and civil conspiracy claims against defendants Fitz and
Whittington.
IT IS SO ORDERED this 26th day of March, 2014.

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