Rushing v. Shelby County Schools

Filing 65

ORDER granting in part and denying in part 60 Motion to Dismiss for Failure to State a Claim. Signed by Judge Samuel H. Mays, Jr on 02-08-2018. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

TAMMY RUSHING,

)
)
Plaintiff,
)
)
v.
)
)
SHELBY COUNTY SCHOOL SYSTEM and )
DR. ANGELA BROWN,
)
)
Defendants.

No. 2:16-cv-02662-SHM

ORDER

Before the Court is Defendant Shelby County School System
(“SCSS”)1 and Defendant Dr. Angela Brown’s (collectively, “Defendants”) Partial Motion to Dismiss, filed on September 21,
2017.

(ECF No. 60.)

Plaintiff responded on November 2, 2017.

(ECF No. 64.)
For the following reasons, the Partial Motion to Dismiss is
GRANTED IN PART and DENIED IN PART.
I.

BACKGROUND
This Order includes an abbreviated background addressing

events since the Court’s August 7, 2017 Order.

1

(ECF No. 55.)

SCSS has represented that Rushing has incorrectly identified the proper defendant in this action, and that the proper defendant is the Shelby County
Board of Education. (See, e.g., ECF No. 7 at 1 n.1.) Following the caption in
the Complaint, the Court will refer to the defendant as SCSS.

Events before August 7, 2017, are addressed in the August 7,
2017 Order.
On August 7, 2017, the Court entered an Order addressing
several pending motions, including Plaintiff’s June 9, 2017 Motion to Consolidate.

(Id.)

The Order granted Plaintiff’s re-

quest to consolidate Case No. 16-02662 and Case No. 17-02331 as
one action under Case No. 16-02661.

(Id. at 351-52.)2

The Court

ordered Plaintiff “to file, within 7 days of the entry of this
order, a Unified Complaint combining the allegations and causes
of action” in the two cases.

(Id. at 352.)

The Order provided

that Plaintiff “may not add allegations beyond those in the two
complaints.”

(Id.)

On August 31, 2017, Plaintiff filed her Unified Complaint.
(ECF No. 59.)

On September 21, 2017, Defendants filed the Par-

tial Motion to Dismiss.
November 2, 2017.
II.

(ECF No. 60.)

Plaintiff responded on

(ECF No. 64.)

STANDARD OF REVIEW
When evaluating a motion to dismiss under Rule 12(b)(6),

the Court must determine whether the complaint alleges “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)).

The plausibility standard is met “when

2

Unless otherwise noted, all pin cites for record citations are to the “PageID” page number.

2

the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendants are liable for
the misconduct alleged.”

Id. (citing Twombly, 550 U.S. at 556).

Although the complaint need not contain “detailed factual allegations” to survive a motion to dismiss, “a plaintiff's obligation

to

provide

the

grounds

of

his

entitlement

to

relief

requires more than labels and conclusions, and a formulaic recitation

of

the

elements

of

a

cause

of

action

will

not

do.”

Twombly, 550 U.S. at 555 (internal quotation marks and alteration omitted).
The Court is required to “accept all of plaintiff's factual
allegations as true and determine whether any set of facts consistent with the allegations would entitle the plaintiff to relief.”

G.M. Eng'rs & Assoc., Inc. v. West Bloomfield Twp., 922

F.2d 328, 330 (6th Cir. 1990) (citation omitted).

However, the

Court need not accept as true legal conclusions cast in the form
of factual allegations if those conclusions cannot be plausibly
drawn from the facts, as alleged.

See Iqbal, 556 U.S. at 678

(“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”);

see

also

Papasan

v.

Allain,

478

U.S.

265,

286

(1986) (noting that in reviewing a motion to dismiss, the district court “must take all the factual allegations in the complaint as true,” but that the court is “not bound to accept as

3

true a legal conclusion couched as a factual allegation”).

Rule

12(b)(6) “allows the Court to dismiss, on the basis of a dispositive issue of law, meritless cases which would otherwise waste
judicial resources and result in unnecessary discovery.”

Glass-

man, Edwards, Wade & Wyatt, P.C. v. Wolf Haldenstein Adler Freeman & Herz, LLP, 601 F. Supp. 2d 991, 997 (W.D. Tenn. Mar. 10,
2009).
III. ANALYSIS
Defendants move to strike allegations that they argue
Plaintiff added to her Unified Complaint in violation of the
Court’s Order.

Defendants also move to dismiss several of the

claims in Plaintiff’s Unified Complaint.
A.

Additional Allegations in Unified Complaint

Defendants contend that Plaintiff violated the Court’s August 7, 2017 Order when she “alleged new facts” in paragraph 396
of the Unified Complaint.

(Id. at 473.)

Plaintiff contends

that the new facts in that paragraph are a restatement of facts
contained in her original complaints.

(Id. at 494-95.)

Paragraph 396 of Plaintiff’s Unified Complaint states:
396. As a direct and proximate result of the statutory
violations committed by SCBE by and through its employees and administrators, against Plaintiff, and the
tortuous acts committed by SCBE and its employees and
administrators and by Dr. Angela Brown against Plaintiff, Plaintiff has suffered the following injuries
and damages[]
a. Severe emotional distress, acute and now
chronic, depression, and anxiety, including panic at-

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tacks and a generalized sense that she is isolated and
without any support from other people, humiliation,
and embarrassment; sense of impending danger, loss of
self-esteem.
b. Physical pain and suffering, including prolonged episodes of crying, elevated blood pressure,
inability to eat, stomach and digestive distress, inability to sleep, nightmares, shaking, shortness of
breath, inability to concentrate, chest tightness.
c. Loss of income (past, present and future), injuries to her professional reputation and to her career opportunities.
(ECF No. 59 at 440.)
Plaintiff’s allegation that she has suffered “a generalized
sense that she is isolated and without support from other people
. . . sense of impending danger, [and a] loss of self-esteem,”
and her allegation that she suffers from “elevated blood pressures . . . shaking, shortness of breath, inability to concentrate, [and] chest tightness” do not appear in her first or
second original complaints.
1.)3

(See ECF No. 1; 17-02331, ECF No.

Those allegations are STRICKEN from Plaintiff’s Unified

Complaint.

The remaining factual allegations appear in Plain-

tiff’s original complaints.
B.

(Id.)

Dismissal of Title VII Discrimination Claim

Defendants contend that “Plaintiff’s Title VII claim must
be dismissed” because Plaintiff alleges discrimination based on
disability, and “Title VII applies only to discrimination on the
basis of race, color, religion, sex, or national origin.”
3

(ECF

Citations to (17-02331, ECF at ##) refer to the case Rushing v. Shelby County School System, No. 2:17-cv-02331-SHM (W.D. Tenn.).

5

No. 60 at 474.)

Plaintiff responds by arguing that “caselaw un-

der Title VII applies to ADA cases.”

(ECF No. 64 at 496.)

Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because
of such individual's race, color, religion, sex, or national
origin.”

42 U.S.C. § 2000e–2(a).

ability discrimination claims.

Title VII does not cover dis-

Clark v. City of Dublin, Ohio,

178 F. App'x 522, 524 (6th Cir. 2006).
Plaintiff does not allege that she is a member of a protected group under Title VII.
Title VII.

Plaintiff’s claim does not invoke

Plaintiff’s Title VII claims alleging discrimination

based on disability are DISMISSED.
C.

Dismissal of IDEA Claim

Defendants argue that Plaintiff’s claim based on The Individuals with Disabilities Education Act of 1975 (“IDEA”) should
be dismissed for lack of standing.

(ECF No. 60 at 474-75.)

De-

fendants argue that Plaintiff lacks standing to bring her IDEA
claim because “the right to pursue an IDEA claim is limited to
parents.”

(Id. at 477.)

Plaintiff concedes “that the

IDEA/IDEIA claims asserted by [Plaintiff] must be dismissed. . .
. based on the standing issue.”

(ECF No. 64 at 497.)

Plaintiff’s IDEA claim is DISMISSED.

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D.

Dismissal of Assault, Battery, Intentional Infliction
of Emotional Distress, and False Reporting Claims

Defendant SCSS contends that it is immune from suit on
Plaintiff’s assault, battery, false reporting, and intentional
infliction of emotional distress claims under the Tennessee Governmental Tort Liability Act (“TGTLA”).

(ECF No. 60 at 479-81.)

Plaintiff “agrees any claims for intentional (state) torts . . .
includ[ing] Plaintiff’s false report claim . . . and Plaintiff’s
assault and battery claim” should be dismissed.4

(ECF No. 64 at

499.)
Plaintiff’s claims for assault, battery, intentional infliction of emotional distress, and false reporting against SCSS
are DISMISSED.
E.

Dismissal of Negligent Infliction of Emotional Distress Claim

Defendant SCSS argues that Plaintiff’s claim for negligent
infliction of emotional distress should be dismissed because it
is also barred by the TGTLA.

(ECF No. 60 at 479.)

Defendant

SCSS cites Johnson v. City of Memphis 617 F.3d 864 (6th Cir.
2013) to support its argument that, “[w]here a plaintiff’s claim
for negligence ‘arises out of the same circumstances giving rise
to her civil rights claim under § 1983,’ as is the case here,
4

Plaintiff claims that there is “[o]ne[] caveat” to her concession: “[i]f
[Defendant] has a policy of insurance for general liability it negates the
immunity to the extent of the coverage.” (ECF No. 64 at 499.) Plaintiff’s
Unified Complaint, however, fails to allege any facts about Defendants’ insurance policy. For that reason, the Court does not consider whether Defendants have an insurance policy in assessing Defendants’ immunity.

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the TGTLA civil rights exception applies.”

(Id. at 480.)

Plaintiff “contends that [Defendant’s] reliance on Johnson v.
City of Memphis is misplaced” because “Plaintiff does not contend that the injuries from her due process cause of action are
the same as the injuries from her negligent infliction of emotional distress.”

(ECF No. 64 at 498-99.)

“The TGTLA removes immunity for ‘injury proximately caused
by a negligent act or omission of any employee within the scope
of his employment,’ but provides a list of exceptions to this
removal of immunity.”

Johnson, 617 F.3d at 872 (quoting Tenn.

Code Ann. § 29–20–205).

“Injuries that ‘arise[ ] out of . . .

civil rights’ are one such exception, that is, sovereign immunity continues to apply in those circumstances.”

Id. (quoting

Tenn. Code Ann. § 29–20–205(2)); accord Parker v. Henderson
Cnty., No. W2009–00975–COA–R3–CV, 2010 WL 377044, at *4 (Tenn.
Ct. App. Feb.4, 2010) (finding that immunity has been removed
because “there is no basis for this Court to conclude that [the
plaintiff's] injury arose out of a violation of his federal civil rights”).
The “TGTLA's ‘civil rights’ exception has been construed to
include claims arising under [ ] § 1983 and the United States
Constitution.”

Johnson, 617 F.3d at 872.

For purposes of the

civil-rights exception, a state-law claim arises under § 1983 if
it “arises out of the same circumstances giving rise to [the

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plaintiff’s] civil rights claim under § 1983.”

Id.; accord Par-

tee v. City of Memphis, Tenn., 449 F. App'x 444, 448 (6th Cir.
2011) (“The district court correctly concluded that these claims
arise out of exactly the same circumstances as the [plaintiffs’]
civil rights claims, thus falling within the exception to the
waiver of immunity set forth in the [TGTLA].”).
Plaintiff’s negligent infliction of emotional distress
claims arise out of the same circumstances as her § 1983 claim.
Plaintiff’s allegations about her negligent infliction of emotional distress and her § 1983 claim arise from Defendant SCSS’s
actions during the 2015-16 and 2016-17 school years.
59 at 365-440.)

(ECF No.

In alleging her negligent infliction of emo-

tional distress claim, “Plaintiff incorporates by reference the
allegations contained in all [427] previous paragraphs of this
Amended Complaint as if fully set forth herein.”

(Id. at 447.)

Plaintiff does not allege any facts that support her claim for
negligent infliction of emotional distress that do not also support her § 1983 claim.

Plaintiff’s claim for negligent inflic-

tion of emotional distress is DISMISSED.
F.

Dismissal of Claims Against Defendant Brown in her Official Capacity

Defendants argues that “[Defendant] Brown, in her official
capacity, is entitled to dismissal on the state law claims
[against her] on the basis of [Defendant Shelby County School

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System’s] immunity under the TGTLA.”

(ECF No. 60 at 482.)

The

Unified Complaint does not specify whether Plaintiff is suing
Defendant Brown in her official capacity or in her individual
capacity.

(See ECF No. 59.)

Plaintiff contends that she is not

“bringing her claims against Dr. Angela Brown in her official
capacity. These claims . . . are asserted against Brown in her
individual capacity.”

(ECF No. 64 at 499-500.)

To the extent that Plaintiff is suing Defendant Brown in
her official capacity, Plaintiff’s claims against Defendant
Brown are DISMISSED.

To the extent that Plaintiff is suing De-

fendant Brown in her individual capacity, Plaintiff’s claims
against Defendant Brown may proceed.
IV.

CONCLUSION
For the foregoing reasons, Defendants’ Partial Motion to

Dismiss is GRANTED IN PART and DENIED IN PART.

Plaintiff is in-

structed to file a revised complaint in accordance with this Order.

So ordered this 8th day of February, 2018.

/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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