Cain v. Ponca City Independent School District I-71 et al

Filing 31

ORDER granting 24 School Employees' renewed partial motion to dismiss and claim five of the amended complaint is dismissed (as more fully set on the Order). Signed by Judge Patrick R Wyrick on 5/6/2022. (ks)

Case 5:21-cv-00612-PRW Document 31 Filed 05/06/22 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
)
)
)
Plaintiff,
)
)
v.
)
PONCA CITY INDEPENDENT SCHOOL )
)
DISTRICT I-71, SHELLEY ARROTT,
THAD DILBECK, BRET SMITH, KELBY )
GENE CROSS, AVERY MARKUS KEEL )
)
REVARD, JARED FREEMAN, BRAD
)
PARENT, and JOHN DOES 1-10,
)
)
Defendants.
CULLY PORTER,

Case No. CIV-21-00612-PRW

ORDER
Before the Court is a Motion to Dismiss (Dkt. 24) filed by Defendants Shelley
Arrott, Thad Dilbeck, Bret Smith, Jared Freeman, and Brad Parent (collectively, the
“School Employees”). Plaintiff Porter filed a Response in Opposition (Dkt. 25), and
Defendant School Employees filed a Reply (Dkt. 28). For the following reasons, the
Motion to Dismiss (Dkt. 24) is GRANTED.
Background
This case arises out of an alleged sexual assault in a public school. 1 In 2017, Plaintiff
Cully Porter attended school at Defendant Ponca City Independent School District and was
a freshman on the high school’s boys’ basketball team. At the same time, Defendants Kelby

At this stage of the proceedings, the Court accepts a plaintiff’s well-pleaded allegations
as true, so the account presented in this section reflects Mr. Porter’s allegations.

1

1

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Gene Cross and Avery Markus Keel Revard were upperclassmen on the boys’ basketball
time. During a team trip to a basketball camp, Mr. Porter was assigned to room with Mr.
Cross and Mr. Revard. That night, Mr. Porter was allegedly assaulted by Mr. Cross and
Mr. Revard, in what Mr. Porter believes was a hazing or initiation ritual. Mr. Porter also
alleged that Mr. Cross and Mr. Revard also sexually assaulted two other teammates while
in his presence.
Mr. Porter believes that an identical sexual assault took place against another
underclassman student the previous year and that the Defendant School District and
Defendant School Employees were aware of the practice and allowed it to continue. Mr.
Porter and his mother met with school employees and requested a full investigation into
the matter. Mr. Cross and Mr. Revard were suspended from playing sports that year but
otherwise remained at school. Mr. Porter alleges that School Employees never spoke with
him to inform him of the results of any investigation. He also alleges that Mr. Cross and
Mr. Revard continued to harass and bully him throughout the following year and that the
School Employees did not interfere.
Mr. Porter has now sued the School District, Mr. Cross, Mr. Revard, and several
school employees—including Acting Superintendent Shelley Arrott, Principal Thad
Dilbeck, Title IX Coordinator Bret Smith, Athletic Director Jared Freeman, and Coach
Brad Parent—in their individual capacities in a six-claim Amended Complaint. 2 As

Although only Claim Five is at issue in this motion, the Court observes—for purpose of
establishing jurisdiction—that Mr. Porter’s claims involve alleged infringement of Title IX
and the Equal Protection Clause of the U.S. Constitution, so this case arises under federal-

2

2

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relevant for this motion, Claim Five alleges negligence by the School Employees. The
School Employees moved to dismiss this claim under Rule 12(b)(6) of the Federal Rules
of Civil Procedure on the theory that individual government employees cannot be liable
for torts committed during the scope of employment. The matter is now fully briefed.
Legal Standard
When reviewing a Rule 12(b)(6) motion to dismiss, the Court must determine
whether the plaintiff has stated a claim upon which relief may be granted. All well-pleaded
allegations in the complaint must be accepted as true and viewed “in the light most
favorable to the plaintiff.” 3 Plaintiffs bear the “obligation to provide the grounds of [their]
entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” 4 The pleaded facts must be sufficient 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.” 5 In considering whether a
plausible claim has been made, the Court “liberally construe[s] the pleadings and make[s]
all reasonable inferences in favor of the non-moving party.” 6 But the Court need not accept

question jurisdiction and the Court exercises supplemental jurisdiction over the pendent
state-law claims.
Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (quoting David v.
City & County of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996)).

3

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and
citations omitted) (alteration in original).

4

5

Id. at 570.

6

Brokers’ Choice of Am., Inc. v. NBC Univ., Inc., 861 F.3d 1081, 1105 (10th Cir. 2017).
3

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as true allegations that are conclusory in nature, 7 since “conclusory allegations without
supporting factual averments are insufficient to state a claim on which relief can be
based.” 8 Additionally, when considering a Rule 12(b)(6) motion to dismiss, the Court also
examines whether the claim fails as a matter of law despite sufficiently detailed factual
allegations. Thus, the Court “may grant judgment as a matter of law under Federal Rule of
Civil Procedure 12(b)(6) on the basis of an affirmative defense . . . when the law compels
that result.” 9
Discussion
In this case, Mr. Porter’s central claims allege violations of federal law and are thus
within this Court’s federal-question jurisdiction. The claim at issue in this motion to
dismiss—negligence between non-diverse parties—is therefore within this Court’s
supplemental jurisdiction pursuant to 28 U.S.C. § 1367 and is reviewed according to
applicable Oklahoma law.
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. 10 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

7

Erikson v. Pawnee Cnty. Bd. of Cnty. Comm’rs, 263 F.3d 1151, 1154–55 (10th Cir. 2001).

8

Hall v. Bellmon, 935 F.2d 1106, 1109–10 (10th Cir. 1991).

9

Caplinger v. Medtronic, Inc., 784 F.3d 1335, 1341 (10th Cir. 2015).

10

Tuffy’s, Inc. v. City of Okla. City, 212 P.3d 1158, 1163 (Okla. 2009).
4

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or unless they are committed in bad faith or in a malicious manner. 11 The GTCA defines
“scope of employment” as “performance by an employee acting in good faith within the
duties of the employee’s office or employment of tasks lawfully assigned by a competent
authority.” 12 Indeed, the GTCA specifies that “[i]n no instance shall an employee . . . acting
within the scope of his employment be named as a defendant.” 13
Mr. Porter attempts to circumvent this prohibition by claiming that the Defendant
School Employees were not acting within the scope of their employment, alleging that they
acted maliciously and in bad faith. While this distinction may sometimes be used to
preserve some specific tort claims against individual government employees, 14 it may not
be used to preserve claims of negligence against individual government employees.
In order to establish a claim of negligence under Oklahoma law, Mr. Porter must
demonstrate that the Defendant School Employees owed him some duty. 15 Here, he claims
that they owed him a duty to keep him safe from unreasonable harm, to protect him from

Id.; see also Okla. Stat. tit. 51, § 153(A) (“The state or a political subdivision shall be
liable for loss resulting from its torts or the torts of its employees acting within the scope
of their employment subject to the limitations and exceptions specified in The
Governmental Tort Claims Act. . . . The state or a political subdivision shall not be liable
under the provisions of The Governmental Tort Claims Act for any act or omission of an
employee acting outside the scope of the employee’s employment.”).

11

12

Okla. Stat. tit. 51, § 152(12).

13

Okla. Stat. tit. 51, § 153(C).

See, e.g., Pellegrino v. State ex rel. Cameron Univ., 63 P.3d 535, 537 (Okla. 2003) (“An
act of the employee is not in the scope of employment if the employee acted maliciously
or in bad faith.”).
14

15

See Lowery v. Echostar Satellite Corp., 160 P.3d 959, 964 (Okla. 2007).
5

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other students or a third party, and to report abuse, neglect, or suspected violence. 16
However, all of these asserted duties arise as a direct result of the School Employees’ roles
as educators and school administrators. 17 Absent their job requirements, the School
Employees had no “special relationship” 18 to Mr. Porter and therefore “no duty of care to
[prevent] intentional and criminal acts of a third person against” him. 19 The only possible
duty that could have been violated arose “solely from their duties as employees of the
District,” and so “outside of the school setting, no special relationship or duty exists
between these defendants” and Mr. Porter. 20
Since the only possible duty alleged grew directly out of the School Employees’ job
requirements—the “scope of their employment”—any negligence suits for a violation of
these duties are only allowed in accordance with the GTCA and against the School
District. 21 Mr. Porter has identified no duty owed by the School Employees to Mr. Porter

16

See Am. Compl. (Dkt. 21), at 22–23.

See Cooper v. Millwood Ind. Sch. Dist. No. 37, 887 P.2d 1370, 1375 (Okla. Civ. App.
1994) (holding that a school employee “had no duty to act in preservation of” a student
except from the employee’s “duties as bus driver,” thus bringing the case within the GTCA
and precluding any negligence claims against the teacher in his individual capacity.”); see
also Culbertson v. Fletcher Pub. Sch. Dist., 2011 WL 3477112, at *3 (W.D. Okla. Aug. 9,
2011) (dismissing negligence claims against individual school employees after concluding
that “the only duty [the teachers] owed to plaintiffs arises out of the context of their
employment with FPSD and thus [the claims] should be dismissed”).
17

18

Wofford v. East. State Hosp., 795 P.2d 516, 519 (Okla. 1990).

19

J.S. v. Harris, 227 P.3d 1089, 1092 (Okla. Civ. App. 2009).

See Fitzer v. Ind. Sch. Dist. No. 15 of McClain Cty., Okla., 2015 WL 6160370, at *3
(W.D. Okla. Oct. 20, 2015).

20

See id. (“Therefore, because plaintiffs’ negligence causes of action can only be brought
based upon these defendants acting within the scope of their employment, and because
scope of employment claims against employees are prohibited by § 163(C) of the GTCA,

21

6

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other than to act within the scope of their duties and therefore Mr. Porter has pleaded no
independent basis sufficient to maintain a claim for negligence liability against the School
Employees in their individual capacities. 22
Conclusion
The Court finds that Mr. Porter has failed to plausibly state a claim of negligence
against the School Employees for which he can recover. Accordingly, the Motion to
Dismiss (Dkt. 24) is GRANTED and Claim Five of the Amended Complaint is dismissed.
IT IS SO ORDERED this 6th day of May 2022.

the Court finds that plaintiffs’ negligence and negligent supervision causes of action
against [individual school employees] should be dismissed.”); see also Young v. Okla. City.
Pub. Schs., Ind. Sch. Dist. 89, 2013 WL 6567144, at *2 (W.D. Okla. Dec. 13, 2012) (same);
Culbertson, 2011 WL 347712, at *3 (same); Cooper, 887 P.2d at 1375 (same).
To be sure, Mr. Porter could have sued the School District for the alleged acts of
negligence and violations of the duties that the School Employees owed to him. However,
this would need to be in accordance with the provisions of the GTCA.

22

7