Najera et al v. Independent School District No I-54 of Lincoln County et al

Filing 8

ORDER granting in part and denying in part 5 Defendants' Partial Motion to Dismiss, as more fully set out. Signed by Honorable David L. Russell on 10/7/14. (jw)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CYNTHIA NAJERA and CARLOS
)
NAJERA, individually and as Next Friends )
and Parents of S.N., a minor child,
)
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Plaintiffs,
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v.
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INDEPENDENT SCHOOL DISTRICT
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OF STROUD NO. I-54 OF
)
LINCOLN COUNTY,
)
)
MANDI GUERRERO, individually, and
)
)
STROUD PUBLIC SCHOOL BOARD,
)
)
Defendants.
)

Case No. CIV-14-657-R

ORDER
Before the Court is Defendants’ Partial Motion to Dismiss. Doc. No. 5. Plaintiffs
bring suit against the Stroud Public School District (“District”), the Stroud Public School
Board, and Mandi Guerrero, a teacher and softball coach at Stroud High School. They
allege that Guerrero formed a “special relationship” with minor S.N., “which consisted of
exchanges of love letters, and kissing on the lips, and fondling.” Am. Pet. ¶¶ 7, 10.
Plaintiffs further allege that after complaints were made to Defendants, Guerrero “was
allowed to enter the girls locker room after games and continued the harassment of S.N.”
Id. ¶ 10. Their causes of action include a violation of Title IX, 20 U.S.C. § 1681, 42
U.S.C. § 1981, negligence, negligent infliction of emotional distress, breach of implied
contract, and assault and battery against Guerrero.

Defendants Stroud Public School District and Stroud Public School Board have
filed a Partial Motion to Dismiss on six grounds. They move to dismiss the School Board
as a defendant, as well as Plaintiffs’ claims for negligently failing to adopt a policy for
control and supervision of teachers, breach of implied contract, and § 1983. They also
argue that Plaintiffs are not entitled to punitive damages against District.
Standard of Review
In considering a motion under Rule 12(b)(6), the Court must determine whether
the Plaintiff has stated a claim upon which relief may be granted. A motion to dismiss is
properly granted when the complaint provides no “more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). A complaint must contain enough “facts to state a claim to
relief that is plausible on its face” and the factual allegations “must be enough to raise a
right to relief above the speculative level.” Id. at 555, 570 (citation omitted). “[O]nce a
claim has been stated adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint.” Id. at 563 (citations omitted). Although
decided within an antitrust context, Twombly stated the pleading standard for all civil
actions. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). For the purpose of making
the dismissal determination, the Court must accept all the well-pleaded allegations of the
complaint as true, even if doubtful in fact, and must construe the allegations in the light
most favorable to claimant. Wilson v. Montano, 715 F.3d 847, 852 (10th Cir. 2013).

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Analysis
A. Stroud Public School Board
Plaintiffs concede that the Stroud Public School Board is not a proper defendant in
this case. Doc. No. 6, at 4. Therefore, the Court grants Defendants’ motion to dismiss the
School Board as a defendant.
B. Failure to Adopt Policy for Control and Supervision of Teachers
Plaintiffs concede that District is immune from a claim for negligently failing to
adopt a policy for control and supervision of teachers. Id. Therefore, the Court grants
Defendants’ motion to dismiss the claims in paragraphs 34, 35, and 39 of the Amended
Petition.
C. Negligent Supervision of Teachers
District argues that it is immune from liability for negligent supervision of its
teachers, Plaintiffs’ second cause of action, under the discretionary function exemption of
the Oklahoma Governmental Tort Claims Act (“GTCA”). Under § 155(5) of the GTCA,
a political subdivision is immune from liability for the “[p]erformance of or the failure to
exercise or perform any act or service which is in the discretion of the … political
subdivision or its employees.” OKLA. STAT. ANN. tit. 51, § 155(5) (West). The Supreme
Court of Oklahoma has adopted the “planning-operational” approach to the discretionary
function exemption, in which “[p]rotected discretionary functions include the policy
making and planning decisions, although not negligent performance of the policy.”
Franks v. Union City Pub. Sch., 943 P.2d 611, 613 (Okla. 1997) (citation omitted).

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Plaintiffs assert several theories of negligence in their second cause of action.
First, they allege that District “failed to maintain a safe school premises free from
violence from teachers.” Am. Compl. ¶ 38. Second, they allege that District “negligently
failed to properly supervise the students and teachers in the High School gymnasium.” Id.
¶ 36. Finally, they allege that District failed to prevent the continued sexual assault and
harassment of S.N. after it learned of Guerrero’s conduct. Id. ¶¶ 33, 37.1
District is immune from Plaintiffs’ claims that it “failed to maintain a safe school
premises free from violence from teachers,” and that it “negligently failed to properly
supervise the students and teachers in the High School gymnasium.” In Franks v. Union
City Public Schools, 943 P.2d at 613, the Supreme Court of Oklahoma held that
“determining the type of supervision during the lunch period at the time of Appellant’s
injury” fell within the discretionary function exemption. The holding of Franks controls
the application of the discretionary function exemption to Plaintiffs’ above two theories
of negligence. Claims for failing to maintain a safe school premises and negligent
supervision of students and teachers in the high school gymnasium are equivalent to a
claim for negligent supervision during the lunch period. Cf. Truitt v. Diggs, 611 P.2d 633,
635 (Okla. 1980) (“A great deal of discretion is involved in determining what security
measures are needed…. The decisions required to be made by the School Board and its
employers and agents called for legitimate judgment calls.”).

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Plaintiffs’ allegations in paragraphs 34, 35, and 39 of the Amended Petition are dismissed pursuant to
Section B above. Therefore, the Court need not consider the status of these claims under the discretionary
function exemption.
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Plaintiffs also allege that District failed to prevent the continued sexual assault and
harassment of S.N. after receiving complaints. There is no controlling decision from the
Oklahoma Supreme Court on the issue of whether the discretionary function exemption
applies to a case in which a plaintiff alleges that a school district had notice of a teacher’s
inappropriate behavior and failed to act. The Court first notes that this exemption “is
extremely limited .… because a broad interpretation would completely eradicate the
government’s general waiver of immunity” in the GTCA inasmuch as “[a]lmost all acts
of government employees involve some element of choice and judgment.” Nguyen v.
State, 788 P.2d 962, 964 (Okla. 1990) (citation omitted).
The discretionary function exemption is “designed to bar tort litigation challenging
governmental decisions which are founded on a balancing of competing policy
considerations.” Id. at 965 (citation omitted). The decision not to investigate or take any
action following complaints of inappropriate behavior on the part of Guerrero “did not
involve a balancing of policy considerations.” Id. Once District was notified of Plaintiffs’
allegations, it was required “to do the work with reasonable care and in a non-negligent
manner.” Robinson v. City of Barthesville Bd. of Educ., 700 P.2d 1013, 1017 (Okla.
1985). Therefore, District is not immune from Plaintiffs’ claims in paragraphs 33 and 37
of the Amended Petition, which allege that District failed to prevent the continued sexual
assault and harassment of S.N. after it learned of Guerrero’s conduct. But District is
immune from Plaintiffs’ claims in paragraphs 36 and 38 alleging a general failure to
supervise and failure to maintain a safe school premises.

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D. Breach of Implied Contract
Plaintiffs concede the dismissal of their claim for breach an implied contract.
Doc. No. 6, at 4. Therefore, the Court grants Defendants’ motion to dismiss this claim.
E. Section 1983
District argues that Plaintiffs have not alleged that any constitutional violations
resulted from an official policy or custom of the municipality, and therefore Plaintiffs do
not state a claim under § 1983. To hold a municipality liable under § 1983, Plaintiffs
must demonstrate that the actions taken “are representative of an official policy or custom
of the municipal institution, or are taken by an official with final policy making
authority.” Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1249 (10th Cir. 1999). “Absent
such an official policy, a municipality may also be held liable if the discriminatory
practice is so permanent and well settled as to constitute a custom or usage with the force
of law.” Id. (internal quotation marks and citation omitted). In addition, Plaintiffs must
demonstrate that the policy or custom caused the constitutional violations, and that
District acted with the required state of mind, Schneider v. City of Grand Junction Police
Dep’t, 717 F.3d 760, 767 (10th Cir. 2013), which both parties agree is deliberate
indifference, Doc. No. 6, at 9, Doc. No. 7, at 6. The parties do not dispute that causation
was sufficiently alleged. Therefore, the Court addresses only the issues of an official
custom or policy and deliberate indifference.
i.

Official Custom or Policy
Plaintiffs allege that the Stroud Public School Board had a “policy, practice and

custom” of “fail[ing] to maintain an appropriate system of review of sexual assault
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claims,” and “fail[ing] to identify conduct by the teachers which pose[s] substantial risk
of violence to the students.” Am. Pet. ¶ 53. District is correct that Plaintiffs do not
identify any particular “policy statements, ordinances, regulations, or official decisions
adopted by District’s Board of Education” that caused the alleged constitutional
violations. Doc. No. 5, at 19. This is because Plaintiffs’ claim is that the School Board
did not have a policy for dealing with complaints of sexual assault.
The Supreme Court held in City of Canton v. Harris, 489 U.S. 378, 389 (1989),
that “where a municipality’s failure to train its employees in a relevant respect evidences
a ‘deliberate indifference’ to the rights of its inhabitants[,] such a shortcoming [can] be
properly thought of as a city ‘policy or custom’ that is actionable under § 1983.” The
analysis in Canton is applicable to the present case. Cf. Sutton v. Utah State School for
the Deaf and Blind, 173 F.3d 1226, 1240 (1999) (applying Canton to find that plaintiff
stated a claim against a principal in his individual capacity who “failed to adequately
train school employees or adopt or implement a policy to prevent sexual assaults”). Thus,
as long as Plaintiffs allege that the School Board’s failure to implement a policy to
investigate complaints of sexual assault constitutes deliberate indifference on the part of
District, that is sufficient to state a claim under § 1983.2
ii.

Deliberate Indifference
To be liable under § 1983, the official custom or policy of the municipality, or

lack thereof, must “reflect[] a ‘deliberate’ or ‘conscious’ choice.” City of Canton, 489
2

Because neither party disputes that the Stroud Public School Board is the official policy maker with
respect to investigations of sexual assault or harassment allegations, the Court assumes that fact without
deciding.
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U.S. at 389. This requirement is satisfied “when the municipality has actual or
constructive notice that its action or failure to act is substantially certain to result in a
constitutional violation, and it consciously or deliberately chooses to disregard the risk of
harm.” Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998). If a plaintiff does not
allege “a pattern of tortious conduct,” the constitutional violation at issue must be “a
‘highly predictable’ or ‘plainly obvious’ consequence of a municipality’s action or
inaction.” Id. at 1307-08.
Plaintiffs do not allege that District engaged in a pattern of tortious conduct. But
they do allege that District’s failure to adopt a policy resulted in the continued sexual
assault and harassment of S.N. Am. Pet. ¶¶ 53-54. The question, then, is whether
continued sexual assault and harassment of a student by a teacher is a “highly
predictable” or “plainly obvious” consequence of having “actual and/or constructive
knowledge and notice” of Guerrero’s conduct, and “fail[ing] to maintain an appropriate
system of review of sexual assault claims, and fail[ing] to identify conduct by the
teachers which pose substantial risk of violence to the students.” Id. ¶¶ 15-16. The Court
finds that such a consequence is highly predictable. Therefore, because Plaintiffs have
sufficiently alleged that the School Board’s failure to have a policy addressing complaints
of sexual assault caused a constitutional violation and that the Board was deliberately
indifferent to the risk of this violation, Defendants’ motion to dismiss the § 1983 claim is
denied.

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F. Punitive Damages
Defendants argue that Plaintiffs are not entitled to punitive damages against
District. The Court agrees. Regarding Plaintiffs’ tort claims of negligence and negligent
infliction of emotional distress, Oklahoma law bars punitive damages against municipal
defendants. OKLA. STAT. ANN. tit. 51, § 154(C) (West) (“No award for damages in an
action or any claim against the state or a political subdivision shall include punitive or
exemplary damages.”). Plaintiffs are also precluded from obtaining punitive damages
against a municipality under § 1983. City of Newport v. Fact Concerts, Inc., 453 U.S.
247, 271 (1981) (“[W]e hold that a municipality is immune from punitive damages under
42 U.S.C. § 1983).
Similarly, Plaintiff may not recover punitive damages from District under Title IX.
The Supreme Court interprets Title IX consistently with Title VI. Barnes v. Gorman, 536
U.S. 181, 185 (2002). The Supreme Court noted in Barnes v. Gorman that “the traditional
presumption in favor of any appropriate relief for violation of a federal right” applies to
suits under Title IX. Id. Therefore, because “appropriate relief” under Title VI does not
include punitive damages, id. at 188, punitive damages are not available under Title IX.
Mercer v. Duke Univ., 401 F.3d 199, 202 (4th Cir. 2005) (“Because Title IX is
interpreted consistently with Title VI, the Supreme Court’s decision in Barnes compelled
us to vacate Mercer’s punitive damage award.” (citation omitted)); Elizabeth S. v.
Oklahoma City Pub. Sch., No. CIV-08-105-M, 2008 WL 4147572, at *6 (W.D. Okla.
Sept. 3, 2008) (“[B]ecause the Supreme Court has found that punitive damages may not

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be awarded in private suits under Title VI, the Court finds that they may not be awarded
in private suits under Title IX.”).3
Conclusion
In accordance with the foregoing, the Court grants Defendants’ Partial Motion to
Dismiss in part and denies it in part. The Court dismisses the Stroud Public School Board
as a defendant, and dismisses claims in paragraphs 34, 35, 36, 38, and 39 of Plaintiffs’
Amended Petition, as well as Plaintiffs’ claim for breach of an implied contract. The
Court also finds that Plaintiffs are not entitled to punitive damages against District on
their stated claims. However, Plaintiffs’ claims in paragraphs 33 and 37 of the Amended
Petition, as well as their claim under § 1983, survive Defendants’ Partial Motion to
Dismiss.
IT IS SO ORDERED this 7th day of October, 2014.

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Because this Order dismisses Plaintiffs’ claim for breach of an implied contract, no ruling is required as
to whether punitive damages are permitted under such a claim.
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