Boehme v. Washington County School District et al

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; granting in part and denying in part 10 Motion to Dismiss ; adopting Report and Recommendations re 19 Report and Recommendations. See Order for details. Signed by Judge Clark Waddoups on 5/19/16. (jmr)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

CAROL BOEHME, an individual and as
guardian1 for K.B., a minor,

ORDER APPROVING AND ADOPTING
REPORT & RECOMMENDATION

Plaintiff,
Case No. 2:15-cv-515-CW
v.
WASHINGTON COUNTY SCHOOL
DISTRICT, BETHANNE JACKMAN, JUDY
TUNER, LYLE COX AND DOES 1-30

District Judge Clark Waddoups
Magistrate Judge Brooke C. Wells

Defendants.2

MOTION TO DISMISS
The court referred this case to Magistrate Judge Brooke C. Wells pursuant to 28 U.S.C. §
636(b)(1)(B). Magistrate Judge Wells made a Report & Recommendation (Dkt. No. 19) that
Defendants’ Motion to Dismiss (Dkt. No. 10) be granted in part and denied in part. Plaintiff filed
“Objections Response to Report & Recommendation,” which the court has reviewed. (Dkt. No.
22). Because an objection has been filed, pursuant to § 636(b)(1), the court has reviewed de
novo those portions of the report to which an objection has been filed. The remainder of the
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The court corrects the caption to refer to Ms. Boehme as guardian of K.B. rather than as
guardian ad litem. A parent serves in the role of guardian. A guardian ad litem is a court
appointed position. Because Ms. Boehme has not shown she has been appointed to that role, the
court refers to her as “guardian for K.B.”
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The defendants listed in this matter are Washington County School District, Bethanne
Jackman, Judy Tuner, Lyle Cox, and Does 1-30 (collectively “Defendants”). Based on
Defendants’ Motion to Dismiss, the names of Bethanne Jackman and Judy Tuner may have been
misspelled, with Beth Ann Jackman and Judy Turner being the appropriate spellings. For
purposes of this Order, the court uses the spelling provided in the Complaint’s caption.

report has been reviewed for clear error. The court has also reviewed Defendants’ response to
the Objection, the underlying supporting documentation, and the authorities cited by the parties.
The court finds that the Report & Recommendation is well reasoned and supported by the
authorities cited. As did Judge Wells, the court sympathizes with Plaintiff in her attempt to
redress any harm done to her disabled child. Nevertheless, the legal authorities cited by Judge
Wells require a guardian proceeding on behalf of a minor to be represented by counsel. The
court is required to follow this law for K.B.’s claims.
With respect to Ms. Boehme’s own claims, the court concludes Judge Wells also
identified the relevant issues and appropriately stated the law. The Objections filed by Plaintiff
do not alter the court’s analysis. The Report & Recommendation is therefore APPROVED and
ADOPTED in its entirety (Dkt. No. 19). For the reasons stated in the Report, the court hereby
GRANTS IN PART and DENIES IN PART Defendants’ Motion to Dismiss (Dkt. No. 10) as
follows:
1.

The claims relating to minor child K.B. are DISMISSED without prejudice.
Plaintiff is GRANTED leave to file an Amended Complaint to assert claims on
behalf of K.B., but such claims may only be filed by an attorney representing
Plaintiff as guardian for K.B.

2.

Plaintiff’s own claim under the Rehabilitation Act is DISMISSED with prejudice.

3.

Plaintiff’s own claim under the First Amendment, as it pertains to speech in the
course of her employment on behalf of children other than K.B., is DISMISSED
with prejudice.

4.

Plaintiff’s own claim for defamation is DISMISSED with prejudice.

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5.

Plaintiff is GRANTED leave to file an Amended Complaint. In accordance with
the Report, Plaintiff may file a claim against Washington County School District
under Section 504 of the American with Disabilities Act. Plaintiff may also file a
claim under the First Amendment as it pertains to speech in her role as a parent to
K.B. Plaintiff must determine which defendants to name in the First Amendment
claim based on established law. Finally, to the extent Plaintiff has a state law
claim other than defamation, she also is granted leave to assert that claim(s).

APPOINTMENT OF PRO BONO COUNSEL
Based on the nature of the claims alleged and Plaintiff’s representation of her financial
inability to retain counsel, the court concludes it is in the best interests of justice to appoint pro
bono counsel to represent Plaintiff in her individual capacity and as guardian for K.B. The court
directs the Clerk of Court to seek counsel amenable to this appointment. Although both Judge
Wells and this court have expressed concern over the alleged claims, such claims have yet to be
proven and defenses to the claims may exist. When counsel is appointed, the court directs him or
her to evaluate the sufficiency of the claims and the potential bars to such claims before an
Amended Complaint is filed.

Plaintiff’s counsel shall have sixty days from the date of

appointment to evaluate the case and file an Amended Complaint.
DATED this 19th day of May, 2016.
BY THE COURT:

_________________________________
CLARK WADDOUPS
United States District Court Judge

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