Doe, et al. v. Board of Education of the County of Mercer
Filing
48
MEMORANDUM OPINION AND ORDER granting defendant's 42 RENEWED MOTION to Dismiss. Signed by Senior Judge David A. Faber on 3/22/2019. (cc: counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JOHN DOE, an infant, by and
through his next friend
M. DOE,
Plaintiff,
v.
CIVIL ACTION NO. 1:16-08318
THE BOARD OF EDUCATION
OF THE COUNTY OF MERCER,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court is the Board of Education of the
County of Mercer’s renewed motion to dismiss.
(ECF No. 42).
For
reasons appearing to the court, that motion is GRANTED.
I.
Background
According to the complaint, the allegations of which are
taken as true for purposes of this motion, during the 2014-2015
school year, John Doe was a student at Pikeview Middle School in
Mercer County, West Virginia.
See Complaint ¶ 9.
John Doe has
been diagnosed as suffering from Attention Deficit/Hyperactivity
Disorder (ADHD) and Mild Mental Retardation.
See id. at ¶ 10.
Because of his “developmental delays” John Doe received special
education services while attending public schools and has an
Individualized Education Plan (IEP) that “places him in the
Moderately Mentally Impaired Program.”
Id. at ¶ 8.
Significantly, for purposes of this motion, the complaint alleges
that “Mercer County Board of Education acting through its
employees and/or agents knew or should have known that the
Plaintiff had a history of touching others as noted in his IEP.”
Id. at ¶ 13 (emphasis added).
John Smith was a fellow student of John Doe’s “who also has
developmental and mental impairments.”
Id. at ¶ 14.
The
complaint alleges that John Doe and John Smith “were directed to
collect attendance reports from various classrooms and take them
to the school office.”
Id. at ¶ 12.
On or about May 4, 2015,
John Doe and John Smith were caught in a bathroom stall
“performing sex acts.”
Id. at ¶ 14.
M. Doe is the mother of John Doe.
See id. at ¶ 6.
On
August 29, 2016, John Doe, by and through M. Doe, filed the
instant lawsuit pursuant to 42 U.S.C. § 1983 against The Board of
Education of the County of Mercer (“BOE”).
According to the
Complaint, in directing John Doe to collect the attendance sheets
while unsupervised, the BOE created the danger which led to
plaintiff’s injury.
liable under § 1983.
Therefore, plaintiff argues the BOE is
See Complaint generally.
The BOE has moved to dismiss the complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.
In so doing,
the BOE argues that the alleged injury suffered by John Doe “was
not a foreseeable risk of any danger alleged by Plaintiff.”
No. 42 at ¶ 7.
2
ECF
II.
Standard of Review
"[A] motion to dismiss for failure to state a claim for
relief should not be granted unless it appears to a certainty
that the plaintiff would be entitled to no relief under any state
of facts which could be proved in support of his claim."
Rogers
v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.
1989) (citation omitted) (quoting Conley v. Gibson, 355 U.S. 41,
48 (1957), and Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.
1969)).
"In considering a motion to dismiss, the court should
accept as true all well-pleaded allegations and should view the
complaint in a light most favorable to the plaintiff."
Mylan
Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993);
see also Ibarra v. United States, 120 F.3d 474, 474 (4th Cir.
1997).
In evaluating the sufficiency of a pleading, the cases of
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), provide guidance.
When reviewing a
motion to dismiss, under Federal Rule of Civil Procedure
12(b)(6), for failure to state a claim upon which relief may be
granted, a court must determine whether the factual allegations
contained in the complaint “give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests,”
and, when accepted as true, “raise a right to relief above the
speculative level.”
Twombly, 550 U.S. at 555 (quoting Conley v.
3
Gibson, 355 U.S. 41, 47 (1957); 5 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).
“[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.”
Twombly, 550 U.S. at 563.
As the Fourth Circuit
has explained, “to withstand a motion to dismiss, a complaint
must allege ‘enough facts to state a claim to relief that is
plausible on its face.’” Painter’s Mill Grille, LLC v. Brown, 716
F.3d 342, 350 (4th Cir. 2013) (quoting Twombly, 550 U.S. at 570).
According to Iqbal and the interpretation given it by our
appeals court,
[L]egal conclusions, elements of a cause of
action, and bare assertions devoid of further
factual enhancement fail to constitute
well-pled facts for Rule 12(b)(6) purposes.
See Iqbal, 129 S. Ct. at 1949. We also
decline to consider “unwarranted inferences,
unreasonable conclusions, or arguments.”
Wahi v. Charleston Area Med. Ctr., Inc., 562
F.3d 599, 615 n. 26 (4th Cir. 2009); see also
Iqbal, 129 S. Ct. at 1951-52.
Ultimately, a complaint must contain
“sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible
on its face.’” Iqbal, 129 S. Ct. at 1949
(quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S. Ct. 1955, 167 L.Ed.2d 929
(2007)). Facial plausibility is established
once the factual content of a complaint
“allows the court to draw the reasonable
inference that the defendant is liable for
the misconduct alleged.” Id. In other
words, the complaint's factual allegations
must produce an inference of liability strong
enough to nudge the plaintiff's claims
“‘across the line from conceivable to
4
plausible.’” Id. at 1952 (quoting Twombly,
550 U.S. at 570, 127 S. Ct. 1955).
Satisfying this “context-specific” test does
not require “detailed factual allegations.”
Id. at 1949-50 (quotations omitted). The
complaint must, however, plead sufficient
facts to allow a court, drawing on “judicial
experience and common sense,” to infer “more
than the mere possibility of misconduct.”
Id. at 1950. Without such “heft,” id. at
1947, the plaintiff's claims cannot establish
a valid entitlement to relief, as facts that
are “merely consistent with a defendant's
liability,” id. at 1949, fail to nudge claims
“across the line from conceivable to
plausible.” Id. at 1951.
Nemet Chevrolet, LTD v. Consumeraffairs.com, Inc., 591 F.3d 250,
255-56 (4th Cir. 2009).
When considering a 12(b)(6) motion, a
court must accept all of the complaint’s factual allegations as
true and draw all reasonable inferences therefrom in favor of the
plaintiff.
See Kensington Volunteer Fire Dep't, Inc. v.
Montgomery Cnty., Md., 684 F.3d 462, 467 (4th Cir. 2012).
III.
Analysis
Section 1983 imposes liability on state actors who
cause the “deprivation of any rights, privileges, or
immunities secured by the Constitution.” Under
established precedent, these constitutional rights
include a Fourteenth Amendment substantive due process
right against state actor conduct that deprives an
individual of bodily integrity. See, e.g., Hall v.
Tawney, 621 F.2d 607, 612-13 (4th Cir. 1980)).
Accordingly, state actions that result in sexual abuse
of children can be actionable under § 1983. See Doe v.
Taylor Indep. Sch. Dist., 15 F.3d 443, 454 (5th Cir.
1994) (addressing a “student’s constitutional right to
bodily integrity in physical sexual abuse cases”);
Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720,
724-25 (3rd Cir. 1989) (recognizing § 1983 liability
for school administrators’ “actions in adopting and
5
maintaining a practice, custom or policy of reckless
indifference to instances of known or suspected sexual
abuse of students by teachers”).
Doe v. Rosa, 795 F.3d 429, 436-37 (4th Cir. 2015).
“State actor liability, however, is significantly limited.”
Id. at 437.
The law is clear that “a State's failure to protect
an individual against private violence simply does not constitute
a violation of the Due Process Clause.”
DeShaney v. Winnebago
County Dep't of Soc. Servs., 489 U.S. 189, 197 (1989).1
are, however, two exceptions to this general rule.
There
See Rosa at
437 (“[S]tate actor liability might attach in two narrow
circumstances.”).
In DeShaney, the Supreme Court noted that
“[w]hile the State may have been aware of the dangers that Joshua
faced in the free world, it played no part in their creation, nor
In DeShaney, the petitioner was a child “who was beaten
and permanently injured by his father, with whom the child
lived.” DeShaney, 489 U.S. at 191. The respondents were social
workers and other local officials who received complaints that
the child was being abused by his father, but did not act to
remove the child from his father's custody. See id. The
petitioner filed suit against the respondents, alleging that
“their failure to act deprived him of his liberty in violation of
the Due Process Clause of the Fourteenth Amendment.” Id. The
Supreme Court disagreed, holding “[a]s a general matter,” that “a
State's failure to protect an individual against private violence
simply does not constitute a violation of the Due Process
Clause.” Id. at 197. In reaching this decision, the Supreme
Court emphasized that “nothing in the language of the Due Process
Clause itself requires the State to protect the life, liberty,
and property of its citizens against invasion by private actors.”
Id. at 195. “Its purpose was to protect people from the State,
not to ensure that the State protected them from each other.”
Id.
1
6
did it do anything to render him more vulnerable to them.”
DeShaney, 489 U.S. at 201.
Relying on this passage, courts have
acknowledged “that there may be possible constitutional liability
when the state creates a dangerous situation or renders citizens
more vulnerable to danger.”
Butera v. District of Columbia, 235
F.3d 637, 648-49 (D.C. Cir. 2001) (citing decisions from every
circuit).
The first exception revolves around individuals in a
“special relationship” with the state.
See Pinder v. Johnson, 54
F.3d 1169, 1175 (4th Cir. 1995)(en banc).2
The second revolves
around circumstances in which the state has created or increased
the danger faced by an individual. See id. at 1176–77.
The state-created danger exception does not apply when
officials merely fail to act.
As the United States Court of
Appeals for the District of Columbia explained in Butera:
[T]he circuits have held that a key requirement for
constitutional liability is affirmative conduct by the
State to increase or create the danger that results in
harm to the individual. No constitutional liability
exists where the State actors had no hand in creating
the danger but [simply] stood by and did nothing when
suspicious circumstances dictated a more active role
for them. Absent such affirmative conduct by the State
2
To the extent that plaintiff argues the special
relationship exception applies, that argument is without merit.
“Uniformly, the courts have held that a school-student
relationship does not constitute a special relationship `because
the student is not in physical custody and, along with parental
help, is able to care for his basic human needs.’” Shores v.
Stafford Cnty. Sch. Bd., No. Civ. A. 04-1325, 2005 WL 2071730, *3
(E.D. Va. Aug. 26, 2005) (quoting Stevenson v. Martin County Bd.
of Educ., 3 F. App’x 25, 31, 2001 WL 98358 (4th Cir. Feb. 6,
2001)).
7
to endanger an individual, courts have rejected
liability under a State endangerment concept.
Butera, 235 F.3d at 650 (internal citations and quotations
omitted).
“Failure to act, as opposed to affirmative conduct,
does not cause a `state-created danger’ to arise.”
Brooks v.
Knapp, 221 F. App’x 402, 407, 2007 WL 725741 (6th Cir. Mar. 7,
2007).
In Pinder v. Johnson, 54 F.3d 1169, 1175 (4th Cir. 1995),
the United States Court of Appeals for the Fourth Circuit
considered DeShaney's state-created danger exception.
Rejecting
Pinder's reliance on the exception, the Fourth Circuit held that,
“[a]s was true in DeShaney, the state did not ‘create’ the
danger, it simply failed to provide adequate protection from it.”
Id.
In so doing, the court noted that “‘the most that can be
said of the state functionaries . . . is that they stood by and
did nothing when suspicious circumstances dictated a more active
role for them.’”
Id. (quoting DeShaney, 489 U.S. at 203).
Twenty years after Pinder was decided, the Fourth Circuit
once again examined the “affirmative act” requirement in the
state-created danger context.
See Rosa, 795 F.3d 429.
Under the narrow limits set by DeShaney and
Pinder, to establish § 1983 liability based on a statecreated danger theory, a plaintiff must show that the
state actor created or increased the risk of private
danger, and did so directly through affirmative acts,
not merely through inaction or omission. Put another
way, “state actors may not disclaim liability when they
themselves throw others to the lions,” but that does
not “entitle persons who rely on promises of aid to
8
some greater degree of protection from lions at large.”
Pinder, 54 F.3d at 1177.
Rosa at 439.
The Rosa court went on to warn of attempts to
characterize inaction as action.
“Affirmative acts,” in the state-created danger
context, are quite limited in scope. “It cannot be
that the state `commits an affirmative act’ . . . every
time it does anything that makes injury at the hands of
a third party more likely.” Pinder, 54 F.3d at 1175
(“If so, the state would be liable for every crime
committed by the prisoners it released.”). And
although “inaction can often be artfully
recharacterized as `action,’ courts should resist the
temptation to inject this alternate framework into
omission cases.” Id. at 1176 n.*. The “concept of
`affirmative acts’” should not extend “beyond the
context of immediate interactions between the [state
actor] and the plaintiff.” Id.
Id. at 441; see also Stevenson v. Martin County Bd. of Educ., 3
F. App’x 25, 31, 2001 WL 98358 (4th Cir. Feb. 6, 2001) (“In order
to create a danger, the state has to take some affirmative steps.
Liability does not arise when the state stands by and does
nothing in the face of danger.”).
In this case, plaintiff’s claim must be dismissed because
she has failed to allege “affirmative acts” that would subject
defendant to § 1983 liability on a theory of state-created
danger.
Plaintiff attempts to characterize the BOE’s conduct in
light of an affirmative act, i.e., directing John Doe to collect
attendance reports.
However, distilled to its essence,
plaintiff’s complaint is really one of inaction, i.e., a failure
9
to supervise.
Indeed, a close reading of plaintiff’s complaint
reveals as much.
15.
That the Mercer County Board of Education acting
through its employees and/or agents created or
increased the danger of the aforementioned occurrence
by directing John Doe and John Smith to collect
attendance reports without any supervision for
unmeasured amounts of time.
16.
That the decision to direct Plaintiff to collect
attendance sheets unsupervised for unmeasured amounts
of time is an affirmative act by the Mercer County
Board of Education and its employees and/or agents.
17.
That the Mercer County Board of Education had a duty to
protect John Doe from himself and other students and
failed to protect John Doe as it created or increased
the danger or damage John Doe may cause himself or be
caused by others, when it committed an affirmative act
by directing John Doe to collect attendance sheets
while being unsupervised for unmeasured amounts of
time.
18.
That the Mercer County Board of Education had a duty to
monitor and supervise John Doe while he was in the
custody and control of the Mercer County Board of
Education.
19.
That it was foreseeable John Doe may engage in
activities that were harmful to his person or others if
directed to collect attendance sheets unsupervised
without an agent of the Mercer County Board of
Education or by electronic means. Furthermore, being
directed to collect attendance sheets while being
unsupervised for unmeasured amounts of time by an agent
of the Mercer County Board of Education or by
electronic means was the direct cause of harm suffered
by Plaintiff, as he could not have suffered such harm
had he [ ] not been directed to perform said activity
and been properly supervised.
20.
That but for the act of directing Plaintiff to collect
attendance sheets unsupervised for unmeasured amounts
of time by Mercer County Board of Education, acting
through its employees and/or agents, the Plaintiff
would not have suffered damages.
10
21.
That the Mercer County Board of Education, acting
through its employees/agents, demonstrates a degree of
culpability that shocks the conscience as they directed
students with developmental and mental impairments to
be unsupervised for unmeasured amounts of time creating
or increasing the opportunity for them to engage in
foreseeable harmful conduct.
22.
That there is a relationship between the Mercer County
Board of Education and the Plaintiff in that it was
foreseeable for [sic] the Mercer County Board of
Education that the Plaintiff may commit harmful conduct
to himself or others if directed to perform tasks while
unsupervised for unmeasured amounts of time.
23.
That the Mercer County Board of Education, acting
through its employees/agents, used its authority to
create the danger to Plaintiff as it had custody and
control over the Plaintiff and had the authority to
direct the Plaintiff to collect attendance sheets while
being unsupervised for unmeasured amounts of time.
Additionally, the Mercer County Board of Education,
acting through its employees and/or agents, directed
the aforementioned activity and failed to adequately
protect the Plaintiff from the foreseeable harm which
could result from being unsupervised for unmeasured
amounts of time making the Plaintiff more vulnerable to
harm.
24.
That the Defendant acted in willful disregard for the
safety of the Plaintiff by failing to supervise the
Plaintiff in an activity that the Defendant directed
the Plaintiff to perform.
25.
That by directing the Plaintiff to collect attendance
sheets and failing to properly supervise said activity,
the Defendant and its employees and/or agents increased
or created the danger in [sic] which caused the
Plaintiff to harm himself.
27.
That the Mercer County Board of Education breached its
duties owed to John Doe by failing to exercise
reasonable care in protecting and supervising him, from
foreseeable harm due to being directed to perform an
activity while being unsupervised.
29.
. . .
The damages and harms suffered by the Plaintiff
is fairly directly related to the affirmative acts of
11
the employees and/or agents of the Mercer County Board
of Education, which directed Plaintiff and John Smith
to perform certain tasks while being unsupervised for
an unmeasured amount of time.
30.
That the Mercer County Board of Education, acting
through its employees and/or agents which directed
Plaintiff, a student with developmental and mental
impairments with a history of touching others, to
perform an activity with another student who also
suffers developmental and mental impairments,
unsupervised for unmeasured amounts of time equals a
degree of culpability that shocks the conscience.
31.
That the Mercer County Board of Education, acting
through its employees and/or agents, had a relationship
with the Plaintiff, which makes the injuries and
damages suffered by the Plaintiff foreseeable as the
Mercer County Board of Education acting through its
employees and/or agents had knowledge of Plaintiffs
[sic] propensities to touch others and of his
developmental and mental impairments which increases
the likelihood of harm to the Plaintiff and others if
he was unsupervised for unmeasured amounts of time with
John Smith.
32.
That the Mercer County Board of Education acting
through its employees and/or agents used its authority
to direct Plaintiff and John Smith to collect
attendance sheets and deliver them to the office
unsupervised and for unmeasured amounts of time
rendered the Plaintiff more vulnerable to danger than
he would have been had the Mercer County Board of
Education acting through its employees and/or agents
not acted and directed such activity to occur.
35.
That the Mercer County Board of Education, acting by
its employees and/or agents, committed an affirmative
act that created, or substantially contributed to the
creation of, a danger to the Plaintiff by directing him
to collect attendance sheets, while unsupervised for
unmeasured amounts of time which made him more
vulnerable to a danger than he otherwise would have
been.
36.
That is was foreseeable that John Doe may engage in
activities that were harmful to his person if allowed
to roam the school unsupervised by an agent of the
12
Mercer County Board of Education or by electronic means
and that being allowed to roam the school unsupervised
by an agent of the Mercer County Board of Education or
by electronic means was the direct cause of the harm
suffered by Plaintiff as he could not have suffered
such harm had he been properly supervised as Plaintiff
had a history of touching others.
37.
That the Defendant acted in willful disregard for the
safety of the Plaintiff by allowing him to roam freely
through the school without supervision.
38.
That the Defendant knew of the potential danger of harm
to Plaintiff and other students by allowing Plaintiff
to be unsupervised for unmeasured amounts of time
knowing that Plaintiff had a propensity to touch others
and disregarded such knowledge and allowed two mentally
deficient students to roam the school unsupervised for
a[n] unmeasured time creating an excessive risk of harm
and/or safety to the Plaintiff and others.
40.
That the Mercer County Board of Education, acting
through its employees/agents, used its authority to
create the danger to Plaintiff as it had custody and
control over the Plaintiff and had the authority to
allow the Plaintiff to freely roam the school
unsupervised. Additionally, by allowing the Plaintiff
to roam freely unsupervised, the Defendant’s acts
rendered Plaintiff more vulnerable, as Plaintiff had
opportunity and time to cause harm to himself being
unsupervised, had he not been allowed to freely roam
the school unsupervised.
43.
That an employee and/or agent of the Defendant, Mercer
County Board of Education, committed an affirmative act
that demonstrates gross negligence or a reckless
indifference for the safety of Plaintiff by assigning
Plaintiff the task of roaming the schools unsupervised,
with no time restriction to collect attendance sheets
from various classrooms knowing that John Doe had
developmental, mental deficiencies and a propensity to
touch others.
45.
That the aforementioned act by an employee and/or agent
of the Defendant, Mercer County Board of Education, was
foreseeable to cause the Plaintiff harm as he suffered
from developmental and mental impairments and would
13
likely harm himself or others if directed to perform
tasks while unsupervised without time restrictions.
Complaint ¶¶ 15-25, 27, 29-32, 35-38, 40, 43, and 45 (emphasis
added).
As the foregoing excerpts from the complaint make clear,
plaintiff’s assertions are “an attempt to redefine passive
inaction as action that is affirmative.”
Wormuth v. Lammersville
Union Sch. Dist., 305 F. Supp. 3d 1108, 1122 (E.D. Cal. 2018)
(rejecting state-created danger theory based upon a public school
principal’s failure to detect and prevent student-on-student
harassment where, among other things, principal did not help
supervise child “despite promising to do so” and denied parents’
request to remove child from class); see also Rosa, 795 F.3d at
441 (“the Does’ claim against Rosa is purely an omission claim,
and no amount of semantics can disguise the fact that the real
affirmative act here was committed by [the abuser], not by [the
school official]”) (internal quotations and citations omitted);
Turner v. Thomas, 313 F. Supp. 3d 704, 714 (W.D. Va. 2018)
(rejecting plaintiff’s attempt to assert a state-created danger
claim where “[t]here was simply no affirmative act by police that
created the danger that befell Plaintiff.
Framing the incident
in terms of a `stand down’ order is nothing more than an `artful
recharacterization’ of inaction as action—something the Fourth
Circuit in Pinder warned was inappropriate.”); Doe v. Berkeley
County Sch. Dist., 189 F.3d 573, 580 (D.S.C. 2016) (rejecting a
state-created danger claim arising out of student-on-student
14
sexual assault where “Complaint’s frequent use of terms such as
`create,’ `increase,’ and `affirmative act’ does not transform
[school offical]’s failure to do more for [student] into statecreated danger.”); Semple v. City of Moundsville, 963 F. Supp.
1416, 1428 (N.D.W. Va. 1997) (“[P]laintiffs have not established
that the Moundsville Police Department took any affirmative
action to create or enhance the danger that existed from
Michael’s behavior.
This Court finds that this case is a
quintessential `failure to act’ case.
The undisputed facts
contain specific examples of police inaction. . . .
None of
these facts, however, show that the police took any affirmative
action to increase the danger. . . .
Rather, the `acts’ outlined
above, even if negligent, are examples of inaction rather than
intentional affirmative acts.”) (emphasis in original). .
As the Wormuth court explained, “[h]ow courts apply the
state-created danger doctrine varies across jurisdictions, but it
is construed narrowly; it does not ensnare state officials when
they increase someone’s exposure to harm.”
Wormuth, 305 F. Supp.
3d at 1122 (citing Huffman v. Cty. of Los Angeles, 147 F.3d 1054,
1061 (9th Cir. 1998)).
To accept plaintiff’s invitation in this
case to recast inaction as action, “would turn the state-created
danger exception into the rule.”
to do.
15
Id.
This, the court declines
IV.
Conclusion
For the reasons discussed above, the motion to dismiss is
GRANTED.3
The Clerk is requested to send a copy of this
Memorandum Opinion and Order to counsel of record.
IT IS SO ORDERED this 22nd day of March, 2019.
ENTER:
David A. Faber
Senior United States District Judge
3
Citing a number of cases outside the Fourth Circuit,
defendant moved to dismiss the case based upon an alleged lack of
foreseeability. Given the court’s ruling herein, the court does
not address defendant’s argument regarding foreseeability.
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?