Scott v. Mid Del Schools Board of Education et al

Filing 12

ORDER granting in part and denying in part 5 Defendants' Motion to Dismiss and Brief in Support (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 1/17/2017. (ks)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CHRISTINA SCOTT, as mother and
next friend of her son, B.P., a minor,

)
)
)
Plaintiffs,
)
)
v.
)
)
MID-DEL SCHOOLS BOARD
)
OF EDUCATION, a governmental
)
administration serving the Mid-Del
)
School District,
)
RICK COBB, an individual in his official )
capacity as Superintendent of Mid-Del
)
Schools,
)
ANDY COLLIER, as an individual, and in )
his official capacity as Principal of Kerr
)
Middle School,
)
LESLIE BERGER, as an individual, and in )
her official capacity as Assistant Principal )
of Kerr Middle School,
)
GREG MCGUIRE, as an individual, and in )
his official capacity as Teacher at Kerr
)
Middle School,
)
)
Defendants.
)

Case No. CIV-16-1027-M

ORDER
Before the Court is Defendants’ Motion to Dismiss and Brief in Support, filed September
29, 2016. On October 18, 2016, plaintiffs responded, and on October 25, 2016, defendants
replied. Based on the parties’ submissions, the Court makes its determination.
I.

Introduction 1
Plaintiffs, Christina Scott (“Scott”) and her son B.P., allege that B.P was the victim of

bullying at Kerr Middle School (“KMS”). Plaintiffs allege that on March 1, 2016, during an
incident when B.P. was being bullied by a student, defendant Greg McGuire (“McGuire”),
1

The alleged facts set forth are taken from plaintiffs’ Complaint.

teacher of B.P., responded to the alleged bullying by bullying B.P. himself in the form of yelling,
cursing, and intimidating B.P. in front of the other students in class. B.P. informed Scott about
the incident, and Scott complained to defendants Andy Collier (“Collier”), Principal at KMS, and
Leslie Berger (“Berger”), Vice-Principal at KMS, about McGuire’s conduct towards B.P. Collier
and Berger removed B.P. from McGuire’s classroom, but took no other action against McGuire.
On March 2, 2016, plaintiffs allege that B.P. walked into a bathroom located inside of
KMS to change into his baseball clothes for baseball practice. The bathroom was in a hallway
not normally used by McGuire. 2 McGuire saw B.P. walk down the hallway and enter the
bathroom. McGuire waited a moment then allegedly followed and stalked B.P. into the
bathroom, yelling insults at him upon entering. Plaintiffs allege that McGuire forcibly pushed
open the bathroom stall door where B.P. was dressing. The door hit B.P. and pushed him back
into the toilet and rear of the stall, resulting in numerous physical injuries. Plaintiffs allege that
McGuire entered the stall, blocked the door, and continued to berate B.P. with curses and
personal insults. Plaintiffs allege that B.P. pleaded with McGuire to stop, but McGuire continued
to yell at B.P., all while B.P. was defenseless with his pants down.
Plaintiffs further allege that before and during the alleged incident with McGuire and
B.P., students and faculty could hear the encounter in the bathroom and stopped to listen to the
alleged altercation. Plaintiffs allege that Berger was standing outside of the entrance of the
bathroom, heard B.P.’s cries and the alleged assault, waited for McGuire and B.P. to leave the
bathroom, but did nothing about the situation. After the alleged incident, B.P. went to Scott, who
was waiting in her car in the parking lot. Scott reported the incident to Collier and the police.
Plaintiffs allege that Collier downplayed the incident to the police in an attempt to protect
2

Plaintiffs allege that the school’s video system captured B.P. walking down the hallway
to the bathroom.
2

McGuire. Plaintiffs further allege that Collier later admitted, during a recorded phone
conversation, that McGuire’s actions were worthy of discipline and that he would be written up,
so long as Scott promised not to reveal this information to the public; however, plaintiffs allege
that McGuire was not adequately punished. Further, plaintiffs allege that Collier indicated that
McGuire might encounter B.P. in the future, but McGuire would be counselled not to confront
B.P. again. Plaintiffs also allege that Collier further indicated that if McGuire did this again he
would be arrested. Plaintiffs allege that Collier advised that from then on B.P. would be required
to change his clothes in the school office. As a result of the incident, plaintiffs allege that B.P.
was too afraid to return to school and missed about a month of school due to the constant fear of
McGuire and the distrust of the administration to properly protect him.
On September 2, 2016, plaintiffs filed this action against defendant Mid-Del Schools’
Board of Education (the “District”), defendant Rick Cobb (“Cobb”), Superintendent of the
District, in his official capacity, Collier, in his individual and official capacity, Berger, in her
individual and official capacity, and McGuire, in his individual and official capacity. 3 Plaintiffs
allege the following claims: (1) a constitutional violation of B.P.’s Fourteenth Amendment
Substantive Due Process right, pursuant to 42 U.S.C. § 1983 (“Section 1983”) (against all
defendants); (2) assault and battery (against McGuire); (3) invasion of privacy (against
McGuire); (4) false imprisonment (against McGuire); (5) intentional infliction of emotional
3

Defendants contend that the claims against Cobb, Collier, Berger, and McGuire in their
official capacities should be dismissed, as any claim against said defendants in their official
capacities are against the District. Plaintiffs contend that bringing claims against said defendants
in their official capacities provides the necessary clarification to indicate that the District is liable
for its employees in their official capacities. While the Court understands plaintiffs’ intention,
the Court can decipher between which claims are being brought against defendants in their
individual capacity and those being brought against the District for the actions of its employees;
therefore, the Court dismisses the claims against Cobb, Collier, Berger, and McGuire in their
official capacities, and, further, since no other claims were brought against Cobb, in his
individual capacity, dismisses Cobb from this action entirely.
3

distress (“IIED”) (against McGuire); (6) failure to properly train (against Cobb, Collier, and
Berger); (7) failure to supervise (against Cobb, Collier, and Berger); and (8) failure to protect
(against Cobb, Collier, and Berger).
Defendants now move this Court to dismiss plaintiffs’ Complaint, pursuant to Federal
Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted.
Specifically, defendants contend that: (1) plaintiff has failed to plead sufficient facts to state a
violation of B.P.’s civil rights by any named defendant; (2) plaintiffs have failed to state a claim
of IIED against any defendant; 4 (3) the District is immune from liability based upon intentional
torts asserted against McGuire; 5 (4) the District is immune from liability with respect to claims
of negligent training, supervision, and failure to protect, pursuant to the Oklahoma Governmental
Tort Claims Act (“GTCA”); (5) the District cannot be liable for punitive damages as alleged in
plaintiffs’ Complaint; 6 and (6) Collier, Berger, and McGuire are entitled to qualified immunity.
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
4

In their Response, plaintiffs advise that they are only asserting their IIED claim against
McGuire.
5

In their Response, plaintiffs advise that their claims of assault and battery, invasion of
privacy, false imprisonment, and intentional infliction of emotional distress are only being
asserted against McGuire.
6

In their Response, plaintiffs advise they are only seeking punitive damages against
defendants named in their individual capacities.
4

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.

Section 1983 claim and qualified immunity defense

Defendants assert that plaintiffs have failed to plead sufficient facts to support their claim
of a Substantive Due Process right violation against any defendant. Specifically, with respect to
McGuire, defendants contend plaintiffs’ claims are unsupported by sufficient facts to show
McGuire is individually liable for violating B.P.’s Substantive Due Process right. In all school
discipline cases, including school-inflicted corporal punishment, the Tenth Circuit has adopted a
5

form of “shocks-the-conscience test”. Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775, 786-87
(10th Cir. 2013). Under this test, the substantive due process inquiry in all school discipline
cases is “whether the force applied caused injury so severe, was so disproportionate to the needs
presented, and was so inspired by malice or sadism rather than a merely careless or unwise
excess of zeal that it amounted to a brutal and inhumane abuse of official power literally
shocking to the conscience.” Id. (citations and quotations omitted).
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, at this stage of the litigation, plaintiffs have alleged sufficient facts to support their claim
that McGuire violated B.P.’s Substantive Due Process rights. Plaintiffs specifically allege that on
March 2, 2016, after a verbal altercation with B.P. the day before, which resulted in B.P. being
removed from McGuire’s classroom, McGuire followed B.P. into a bathroom, not normally used
by McGuire, forcibly pushed the bathroom door stall open, in which B.P. was dressing, causing
injury to B.P, entered the bathroom stall with B.P., and blocked the bathroom stall door.
Plaintiffs further allege that McGuire continued to berate B.P. with curses and personal insults;
all the while, B.P. pleaded with McGuire to stop and was defenseless with his pants down. The
Court, analyzing these alleged facts, can draw a reasonable inference, that McGuire, a teacher,
was acting out of malice, and in retaliation for B.P. reporting the encounter between McGuire
and B.P., which resulted in B.P. being removed from McGuire’s classroom, when he forcibly
entered the bathroom stall in which B.P., a student, was dressing, physically injuring and
verbally assaulting an undressed B.P. The Court finds McGuire’s actions of invading B.P.’s
privacy by forcibly entering a bathroom stall B.P. was utilizing to get dressed, physically

6

injuring and verbally assaulting B.P. while blocking the bathroom stall, rises to the level of
conscious-shocking acts that violate B.P.’s Substantive Due Process right.
Plaintiffs further allege that Collier and Berger violated B.P.’s Substantive Due Process
right when they failed to protect B.P. from McGuire’s actions. Specifically, plaintiffs allege that
with respect to Collier, he knew that McGuire harbored animosity towards B.P., and he failed to
protect B.P. from McGuire, and that Collier’s actions in protecting McGuire and ostracizing B.P.
helped in a cover-up of the situation which resulted in a denial of B.P.’s right to report the crime
and prosecute McGuire. With respect to Berger, plaintiffs allege that she knew B.P. was being
assaulted by McGuire and she failed to take action in protecting B.P. from the assault.
Defendants contend that plaintiffs’ allegations against Collier and Berger do not rise to the level
of a valid danger-creation claim required to be alleged by plaintiffs.
Generally, state actors are only liable for their own acts that violate the substantive due
process rights imbedded in the Fourteenth Amendment of the United States Constitution. See
Liebson v. N.M. Corr. Dep’t, 73 F.3d 274, 276 (10th Cir. 1996). However, state officials can be
liable for the acts of third parties if those officials created the danger that caused the harm. See
Currier v. Doran, 242 F.3d 905, 917 (10th Cir. 2011) (citations and quotations omitted). To
assert a valid danger-creation claim, a claimant must show that:
(1) the charged state entity and the charged individual actors created the danger or
increased plaintiff’s vulnerability to the danger in some way; (2) plaintiff was a
member of a limited and specially definable group; (3) defendants’ 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 conscious shocking.
Id. at 917-918 (citation omitted).
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
7

that plaintiffs have failed to sufficiently plead a danger-creation claim against Collier and Berger.
Plaintiffs allege that after Scott reported the first encounter between B.P. and McGuire to Collier
and Berger, the two defendants took action to remove B.P. from McGuire’s class. Specifically,
the Court finds that on the day of the encounter in the bathroom between B.P. and McGuire,
plaintiffs fail to allege any facts that would allow the Court to draw a reasonable inference that
Collier or Berger personally had any control over the events that took place. Plaintiffs allege that
B.P. walked into the bathroom and McGuire followed him, and then forcibly entered the stall in
which B.P. was dressing. While plaintiffs allege that Berger stood outside of the bathroom and
heard the altercation and did not intervene, plaintiffs do not allege any facts that Berger in any
way provoked McGuire to enter the bathroom, or caused the altercation. Further, plaintiffs do not
allege that Collier witnessed the altercation in any way. Considering the alleged facts that Collier
and Berger took steps to distance B.P. from McGuire by removing B.P. from McGuire’s
classroom, which, in the Court’s opinion, shows that Collier and Berger were trying to eliminate
any potential harm to B.P. from McGuire, the Court finds that plaintiffs have failed to show how
Collier and Berger acted in a reckless or conscious disregard of the potential harm to B.P. from
McGuire. Therefore, the Court finds that plaintiffs’ Section 1983 claim against Collier and
Berger, in their individual capacities, should be dismissed.
Since plaintiff is also alleging a constitutional violation against B.P. by McGuire, Collier
and Berger in their official capacities, the Court must determine if plaintiffs have plausibly
alleged their Section 1983 claim against the District. To assert liability upon the District,
plaintiffs must show: “(1) that a [District] employee committed a constitutional violation, and (2)
that a [District] policy or custom was the moving force behind the constitutional deprivation.”
Myers v. Ok. Cnty. Bd. of Cnty. Comm’rs, 151 F.3d 1313, 1316 (10th Cir. 1998). “Without a

8

constitutional violation, there can be no [District] liability.” Id. “Further, in order to assert a
[District] policy or custom was the moving force behind the alleged constitutional violation,
plaintiff[s] must show that there was (1) a continuing, persistent and widespread practice of
unconstitutional misconduct by the [District]’s employees; (2) deliberate indifference to or tacit
approval of such misconduct by the district’s policy making officials after notice to the officials
of a certain misconduct; and (3) injury to plaintiff as a result of this custom, which was the
moving force behind the alleged unconstitutional acts.” Gates v. Unified Sch. Dist. No. 449, 996
F.2d 1035, 1041 (10th Cir. 1993).
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 failed to sufficiently plead that the District violated B.P.’s Substantive Due
Process right. Plaintiffs allege no specific policy implemented by the District that supported the
alleged actions of McGuire. Plaintiffs allege that after the incident, Collier downplayed the
incident to the police and told Scott that McGuire would be written up, so long as Scott promised
not to reveal this information to the public. Further, plaintiffs allege that Collier did not
adequately punish McGuire. While the way Collier handled this situation seems troubling, the
Court finds that plaintiff did not allege any facts that would lead the Court to infer that this was
anything more than an isolated event and was a custom or policy instituted by the District for
handling situations such as the alleged events. Therefore, the Court finds that plaintiffs’ Section
1983 claims against the District should be dismissed.

9

Additionally, defendants assert that plaintiffs’ Section 1983 claim against Collier, Berger,
and McGuire, individually, should be dismissed because they are entitled to qualified immunity. 7
“When a defendant pleads qualified immunity, the plaintiff has the heavy burden of establishing:
(1) that the defendant's actions violated a federal constitutional or statutory right; and (2) that the
right violated was clearly established at the time of the defendant's actions.” Scott v. Hern, 216
F.3d 897, 910 (10th Cir. 2000) (internal citations omitted). “To be clearly established, ‘[t]he
contours of the right must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right.’” Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir. 2008)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). A plaintiff can demonstrate that a
constitutional right is clearly established “by reference to cases from the Supreme Court, the
Tenth Circuit, or the weight of authority from other circuits.” Id. “The judges of the district
courts and the courts of appeals should be permitted to exercise their sound discretion in
deciding which of the two prongs of the qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236
(2009).
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
plaintiffs have failed to meet their burden of establishing that McGuire is not entitled to qualified
immunity. Specifically, while the Court finds McGuire did violate B.P.’s Substantive Due
Process right, the Court further finds that plaintiffs provide no authority that would have clearly
established that at the time McGuire allegedly physically and verbally assaulted B.P. in the
bathroom stall, McGuire reasonably would have understood that his actions violated B.P.’s
7

Since plaintiffs’ Section 1983 claim has already been dismissed against Collier and
Berger, the Court will only address defendants’ contention as it pertains to McGuire.
10

Substantive Due Process right. Therefore, the Court finds that McGuire is entitled to qualified
immunity as to plaintiffs’ Section 1983 claim, and that plaintiffs’ Section 1983 claim against
McGuire, in his individual capacity, should be dismissed.
B.

GTCA

Defendants assert that plaintiffs improperly named Collier and Berger in their individual
capacities because, pursuant to the GTCA, defendants can only be named in their individual
capacity if their alleged tort actions are committed outside the scope of their employment, and
plaintiffs have failed to sufficiently allege that Collier and Berger acted outside the scope of their
employment. It is well established that the GTCA is the exclusive remedy for an injured plaintiff
to recover against a governmental entity in tort. See 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 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.
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 not set forth factual allegations sufficient to allege that Collier and Berger
acted outside the scope of their employment. In their Complaint, plaintiffs allege:

11

All Defendants had a legally cognizable responsibility to properly
train their employees to prevent harm to their students, especially
harm caused by the violence of their own staff members.
All Defendants had a legally cognizable responsibility to properly
supervise their employees to prevent harm to their students,
especially harm caused by the violence of their own staff members.
After a complaint of bullying had been received by Defendants
Collier and Berger, nothing was done to prevent further attacks on
B.P. from Defendant McGuire.
Defendants Collier and Berger were aware of Defendant
McGuire’s aggression and malice toward B.P., and yet did nothing
to protect B.P. from McGuire’s wanton disregard for student
privacy and safety.
Principal Collier and Assistant Principal Berger’s utter failure to
implement safeguards to protect B.P. from a dangerous and
unstable teacher demonstrates the failure of Defendants Mid-Del
Schools Board of Education and Superintendent Rick Cobb to
carry out their responsibility to properly train and supervise their
employees.
All of the above-named Defendants have a duty to protect students
from harm by themselves and others.
Defendants Collier and Berger knew of the danger posed by
keeping an aggressive unstable teacher in regular employment, but
did nothing to protect B.P. from the direct danger that he faced by
attending school.
All of the above-named Defendants failed in their duty to protect
B.P. from the hazardous situation created by employing a
dangerous individual on their staff with a known animosity toward
B.P.
Compl. ¶¶ 58, 63-67, & 69-71. The Court finds that based on the above allegations, plaintiffs
have failed to allege any actions by Collier and Berger that were not within the scope of their
employment. Specifically, Collier’s and Berger’s responsibility to train and supervise their
employees, to prevent harm to their students, and to protect students from harm, are all
responsibilities of Collier and Berger as employees of the District; therefore, the Court finds
12

plaintiffs’ negligence claims are insufficient to impose individual liability against Collier and
Berger and should be dismissed against said defendants.
Defendants further contend that under the GTCA the District is immune from liability as
to plaintiffs’ claims that the District, through its employees Collier and Berger, failed to properly
supervise and train McGuire, as well as protect B.P. from McGuire’s actions. The GTCA
exempts a governmental entity from liability if a claim results from: “[a]doption or enforcement
of or failure to adopt or enforce a law, whether valid or invalid, including, but not limited to, any
statute, charter provision, ordinance, resolution, rule, regulation or written policy[;] [or]
[p]erformance of or the failure to exercise or perform any act or service which is in the discretion
of the state or political subdivision or its employees [.]” Okla. Stat. tit. 51, § 155(4) & (5).
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 the District is exempted from liability, pursuant to the GTCA, regarding plaintiffs’ claims
that the District, through its employees Collier and Berger, failed to properly supervise and train
McGuire, as well as protect B.P. from McGuire’s actions. Specifically, this Court, in Young v.
Okla. City Pub. Sch., Indep. Sch. Dist. 89, No. CIV-13-633-M, 2013 WL 6567144, slip op. at *3
(W.D. Okla. Dec. 13, 2013), has already determined that a school district’s decision regarding
hiring, retention, and supervision of its employees is a discretionary act, pursuant to § 155(5) of
the GTCA and, therefore, immunizes the District from liability from plaintiffs’ claims that the
District failed to properly train and supervise McGuire. Further, as to plaintiffs’ claims that the
District failed to protect B.P. from McGuire, the Court finds that, pursuant to the Oklahoma
Supreme Court decision in Truitt v. Diggs, 611 P.2d 633, 635 (Okla. 1980), where the court
determined that a school district has a great deal of discretion in determining security measures

13

needed, § 155(5) of the GTCA exempts the District from liability with respect to plaintiffs’ claim
that the District failed to protect B.P., and, additionally, the Court finds § 155(4) of the GTCA
exempts the District from liability regarding plaintiffs’ claim that the District failed to adequately
perform those duties or actions necessary to enforce or carry out the District’s policies or
customs regarding protecting B.P. from harassment and physical harm. Therefore, the Court
finds that plaintiffs’ claims for failure to properly train, failure to supervise, and failure to protect
should be dismissed.
C.

IIED

To prevail on a claim for IIED, plaintiffs must prove: (1) McGuire acted intentionally or
recklessly; (2) McGuire’s conduct was extreme and outrageous; (3) McGuire’s conduct caused
B.P. emotional distress; and (4) the resulting emotional distress was severe. See Comput. Publ’n,
Inc. v. Welton, 49 P.3d 732, 735 (Okla. 2002).
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,
at this stage of the litigation, that plaintiffs have set forth a plausible claim of IIED against
McGuire. Specifically, plaintiffs’ allegations that McGuire forcibly entered the bathroom stall,
while B.P. was in the stall changing his clothes, physically injuring B.P., and blocking the
bathroom stall door and verbally assaulting B.P., while B.P. stood in the stall with his pants
around his legs, defenseless against McGuire, rises to the level of extreme and outrageous
conduct. Additionally, plaintiffs allege that following this incident, B.P. was too afraid to return
to school and missed about a month of school due to his constant fear of McGuire, and that B.P.
experienced severe emotional distress as result of the incident. The Court finds that based on

14

these alleged facts, plaintiffs’ IIED claim has been sufficiently pled against McGuire and should
not be dismissed.
IV.

Conclusion
Accordingly, for the reasons set forth above, the Court GRANTS IN PART AND

DENIES IN PART Defendants’ Motion to Dismiss and Brief in Support [docket no. 5] as
follows:
(1)

the Court GRANTS Defendants’ Motion to Dismiss as to plaintiffs’ claims
against Cobb, Collier, Berger, and McGuire in their official capacities and
against Collier and Berger in their individual capacities and DISMISSES Cobb,
Collier, and Berger from this action;

(2)

the Court GRANTS Defendants’ Motion to Dismiss as to plaintiffs’ Section
1983 claim, against the District and McGuire, in his individual capacity, and
claims for failure to supervise, train and protect against the District and
DISMISSES the District from this action; and

(3)

the Court DENIES Defendants’ Motion to Dismiss as to plaintiffs’ IIED claim
against McGuire in his individual capacity. 8

IT IS SO ORDERED this 17th day of January, 2017.

8

The Court would note that plaintiffs’ claims for assault and battery, invasion of privacy,
and false imprisonment also remain against McGuire in his individual capacity.
15