Mowery v. Logan County Board of Education et al

Filing 38

MEMORANDUM OPINION AND ORDER granting plaintiff's 17 MOTION to Amend 1 Complaint; and denying defendants' 13 MOTION to Dismiss. Signed by Judge Thomas E. Johnston on 3/15/2012. (cc: attys; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

TODD MOWERY,
Plaintiff,
v.

CIVIL ACTION NO. 2:11-cv-00050

LOGAN COUNTY BOARD OF EDUCATION, et al.
Defendants.

MEMORANDUM OPINION AND ORDER

Before the Court are Defendants’ Motion to Dismiss [Docket 13] and Plaintiff’s Motion to
Amend Complaint [Docket 17]. For the reasons set forth below, Defendants’ Motion to Dismiss is
DENIED and Plaintiff’s Motion to Amend Complaint is GRANTED.
I. BACKGROUND
This action arises from events occurring while Plaintiff was a high school student in Logan
County, West Virginia. Plaintiff alleges that Defendants discriminated against him as a homebound
student and prohibited him from participating in extracurricular activities such as the senior party
and senior graduation ceremony. Plaintiff was enrolled in the homebound program due to his
diagnosis with Fabry’s disease.
On January 24, 2011, Plaintiff filed his original complaint in this matter; the amended
complaint was filed on April 18, 2011. Plaintiff has alleged seven causes of action in the amended
complaint: (1) deprivation of civil rights in violation of 42 U.S.C. § 1983 and the equal protection
clause of the U.S. Constitution; (2) violation of the Americans with Disabilities Act (ADA); (3)

violation of the Rehabilitation Act (RA); (4) violation of the West Virginia Human Rights Act
(WVHRA); (5) intentional infliction of emotional distress; (6) negligence; and (7) negligent
infliction of emotional distress. On April 4, 2011, Defendants filed their motion to dismiss
Plaintiff’s complaint for failure to state a claim upon which relief can be granted pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff responded to the motion on April 18,
2011, and also moved to file an amended complaint. Defendants then replied on April 25, 2011.
II. PLAINTIFF’S MOTION TO AMEND
In Plaintiff’s response to the motion to dismiss, he moved to amend his complaint pursuant
to Rule 15(a)(2) of the Federal Rules of Civil Procedure. (Docket 17 at 12.) Defendants did not
oppose the motion in their reply. (Docket 18.) Rule 15(a)(1) permits a party to amend its complaint
21 days after serving it, or 21 days after service of a responsive pleading or 21 days after service of
a motion under Rule 12(b). In all other cases, a party may amend “only with the opposing party’s
written consent or the court’s leave.” Fed. R. Civ. P 15(a)(2). “The court should freely give leave
when justice so requires.” Id. The Fourth Circuit has interpreted Rule 15(a) to mean that “leave
to amend a pleading should be denied only when the amendment would be prejudicial to the
opposing party, there has been bad faith on the part of the moving party, or the amendment would
have been futile.” Sciolino v. Newport News, Va., 480 F.3d 642, 651 (4th Cir. 2007) (quoting
Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)).

As there is no apparent

prejudice to Defendants, no allegations of bad faith, and the proposed amendment does not appear
to be futile, the Court GRANTS Plaintiff’s Motion to Amend Complaint [Docket 17].

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III. MOTION TO DISMISS STANDARD
A motion to dismiss for failure to state a claim is a motion to dismiss under Rule 12(b)(6)
of the Federal Rules of Civil Procedure and tests the legal sufficiency of a complaint or pleading.
Defendants’ motion to dismiss must be evaluated under the pleading standard set forth in Rule
8(a)(2) of the Federal Rules of Civil Procedure and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007). Rule 8(a)(2) requires only that the claim for relief contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” The statement must “give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Twombly states that a well-pleaded complaint must aver “enough facts to state a claim to
relief that is plausible on its face.” Id. at 570. A “plausible” claim cannot be supported by mere
“labels and conclusions.” Id. at 555. Rather, the complaint’s “[f]actual allegations must be enough
to raise a right to relief above the speculative level,” id., and critical elements of a claim must be,
at a minimum, “suggested by the facts,” id. at 569. This “facial plausibility” standard requires the
plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009). In testing the
sufficiency of the complaint, the Court must “accept[ ] all well-pleaded allegations in the plaintiff's
complaint as true and draw[] all reasonable inferences from those facts in the plaintiff’s favor.”
Chao v. Rivendell Woods, Inc., 415 F.3d 342, 346 (4th Cir. 2005); see also Erickson v. Pardus, 551
U.S. 89, 94 (2007) (all factual allegations in pleadings assumed to be true).

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IV. DISCUSSION
A.

Statute of Limitations

Defendants argue that Plaintiff’s claims are time-barred by the statute of limitations. They
assert that the relevant events occurred from 2005 to 2009, making the January 24, 2011, filing of
the complaint past the two-year statute of limitations. Plaintiffs respond that the actions are not
time- barred because of the continuing tort theory. In their reply, Defendants insist that the
appropriate statute of limitations is a two-year period, and that any cause of action based upon
events occurring prior to Plaintiff’s eighteenth birthday on January 11, 2009, should be dismissed.
Because the ADA and RA do not contain statutes of limitations, courts use the most
analogous state action to provide the limitations period. Wilson v. Garcia, 471 U.S. 261, 266
(1985).1 In determining the applicable statute of limitations, the court first selects the state statute
most analogous to the federal claim, then considers whether application of that limitations period
is consistent with the federal statute and its underlying policies. Id. at 266-68. As to both Plaintiff’s
RA and ADA claims, the most analogous West Virginia statute is the WVHRA. The WVHRA
prohibits discrimination in employment, access to place of public accommodations, and housing.
W. Va. Code § 5-11-2. Section 504 of the RA provides: “no otherwise qualified handicapped
individual . . . shall, solely by reason of his handicap, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under any program or activity receiving
federal financial assistance.” Title II of the ADA provides: “no qualified individual with a disability

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28 U.S.C. § 1658 provides a four-year federal limitations period for all federal causes of action that
do not otherwise include a limitations period. However, because the causes of action created under
the ADA and RA preceded the enactment of 28 U.S.C. § 1658, the analogous state limitations
periods are used. See R.R. ex rel. R. v. Fairfax Cnty. Sch. Bd., 338 F.3d 325, 329 (4th Cir. 2003).
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shall, by reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by such entity.”
42 U.S.C. § 12132. Because the policies under the WVHRA are similar to the protections provided
under the RA and the ADA, the statute of limitations for the WVHRA is applicable to those claims.
The statute of limitations for WVHRA claims is two years. McCourt v. Oneida Coal Co., 425
S.E.2d 602, 606 (W. Va. 1992). Accordingly, the statute of limitations for Plaintiff’s RA and ADA
claims is also two years.
As to Plaintiff’s § 1983 claim, the state statute of limitations for personal-injury torts applies.
Wallace v. Kato, 549 U.S. 384, 387 (2007) (citations omitted). West Virginia’s general personal
injury statute of limitations is two years. W. Va. Code § 55-2-12(b). Therefore, the statute of
limitations for Plaintiff’s § 1983 claim is two years. See Reinbold v. Evers, 187 F.3d 348, 359 n.10
(4th Cir. 1999).
Plaintiff’s intentional infliction of emotional distress claim is also subject to the two-year
statute of limitations under § 55-2-12(b). Courtney v. Courtney, 437 S.E.2d 436, 443 (W. Va. 1998).
Similarly, Plaintiff’s negligence claim is governed by a two-year statute of limitations. Trafalgar
House Constr., Inc., v. ZMM, Inc., 567 S.E.2d 294, 299 (W. Va. 2002). Finally, Plaintiff’s negligent
infliction of emotional distress is a personal injury claim governed by a two-year statute of
limitations. Bramer v. Dotson, 437 S.E.2d 773, 775 (W. Va. 1993).
This action was filed on January 24, 2011, thus, unless some other rule or theory applies,
Plaintiff’s claims cannot be based on anything that occurred before January 24, 2009. Plaintiff
attempts to use the continuing tort doctrine to reach back before January 24, 2009. The continuing
tort doctrine states: “Where a tort involves a continuing or repeated injury, the cause of action

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accrues at and the statute of limitations begins to run from the date of the last injury or when the
tortious overt acts or omissions cease.” Roberts v. W. Va. Am. Water Co., 655 S.E.2d 119, 124 (W.
Va. 2007). The court elaborated:
[T]he distinguishing aspect of a continuing tort with respect to negligence actions is
continuing tortious conduct, that is a continuing violation of a duty owed the person
alleging injury, rather than continuing damages emanating from a discrete tortious
act. It is the continuing misconduct which serves to toll the statute of limitations
under the continuing tort doctrine.
Id. Similarly, the Fourth Circuit has said that to establish a continuing violation, “the plaintiff must
establish that the unconstitutional or illegal act was a fixed and continuing practice.” A Society
Without a Name v. Va., 655 F.3d 342, 348 (4th Cir. 2011) (quoting Nat’l Adver. Co. v. City of
Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991)). “In other words, if the plaintiff can show that the
illegal acts did not occur just once, but rather ‘in a series of separate acts[,] and if the same alleged
violation was committed at the time of each act, then the limitations period begins anew with each
violation.’” Id.
The main allegation from Plaintiff’s complaint concerns the May 8, 2009, senior party that
Plaintiff was not allowed to attend. This is within the two-year statute of limitations. However,
Plaintiff alleges in his complaint that he was prohibited from attending all extracurricular school
activities beginning with his enrollment in Logan County High School in 2005. Plaintiff’s
allegations focus on a continuing course of conduct by Defendants. Plaintiff does not complain of
the effects of a single harm that occurred in 2005, but a continuing violation where Defendants
allegedly continued to discriminate against him. Accordingly, the Court finds that the continuing
tort doctrine is potentially applicable. Claims that occurred before the two year statute of limitations
period and that are related to later discrimination should not be dismissed at this juncture.

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B.

Individuals with Disabilities Education Act (IDEA) Count

Defendants argue that Plaintiff failed to exhaust his administrative remedies under the IDEA
prior to filing this action. Plaintiff asserts that his failure to request a due process hearing is not a
bar to his complaint under the IDEA because the administrative process would have been futile and
he was not given notice of the administrative process. He also concedes that he cannot recover
damages or seek an injunction under the IDEA, but still has viable § 1983 claims.
Plaintiff’s initial complaint contained a count entitled, “Violation of the Individuals with
Disabilities Education Act.” (Docket 1 at 4.) This count was removed under the amended
complaint. Because Plaintiff removed his IDEA count in the amended complaint, there is no need
to address whether Plaintiff has a viable IDEA claim. Accordingly, the motion to dismiss this count
is DENIED AS MOOT.
C.

ADA and RA Claims Against Individuals

Defendants assert that the counts against Robert Lucas, Jan Hanlon, Charles McPeak, and
Wilma Zigmond as individuals should be dismissed because neither the ADA nor the RA allows
suits against individuals. Plaintiff agrees and has made the correction in the amended complaint.
The ADA and RA counts only refer to Defendant Logan County Board of Education. Therefore,
the motion to dismiss these counts is DENIED AS MOOT.
D.

Injunctive Relief - Standing

Defendants also move to dismiss the claims for injunctive relief because the Plaintiff lacks
standing to sue. Plaintiff agrees and has removed the request for injunctive relief from the amended
complaint. Hence, this motion is also DENIED AS MOOT.

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E.

Section 1983

Plaintiff also alleges that Defendants violated 42 U.S.C. § 1983 when they discriminated
against him based on his disability. Defendants argue that the “individual Defendants . . . are
entitled to qualified immunity on the basis that the policy applied toward the Plaintiff was not
discriminatory, and therefore his Constitutional rights were not violated.” (Docket 14 at 9-10.)
Plaintiff responds that he was discriminated against based upon his disability. Plaintiff amended the
complaint, stating: “No rational basis exists to allow the defendants to bar [Plaintiff] from
extracurricular activities.” (Docket 17-1 at 5.)
“To state a claim under 42 U.S.C. § 1983, plaintiffs must allege facts suggesting that their
federal rights have been violated by state officials.” Braun v. Maynard, 652 F.3d 557, 560 (4th Cir.
2011). State officials have qualified immunity “insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). There are three steps in analyzing whether
qualified immunity exists: (1) determine whether the plaintiff has alleged a violation of a statutory
or constitutional right; (2) assess whether the right at issue was clearly established at the time of the
breach; and (3) determine whether a reasonable person in the official’s position would have known
that his actions violated that right. Trulock v. Freeh, 275 F.3d 391, 399-400 (4th Cir. 2001). The
plaintiff bears the burden of proof as to the first step, thereafter the defendant bears the burden of
proof to establish that they are entitled to qualified immunity. Henry v. Purnell, 501 F.3d 374, 37778 (4th Cir. 2007).
The Court must determine whether, viewing the facts in the light most favorable to the
plaintiff, the individual Defendants violated a constitutional right. Plaintiff alleges a violation under

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§ 1983; he claims he was denied equal protection under the West Virginia and United States
Constitutions when Defendants discriminated against him based on his disability. To allege an equal
protection violation under § 1983, a plaintiff must first establish that “the differential treatment it
was afforded was intentional, not the result of mere negligence.” C & H Co. v. Richardson, 78 F.
App’x 894, 902 (4th Cir. 2003). “The requisite intent is more than simple awareness of the course
of action being taken. ‘Discriminatory purpose . . . implies more than intent as volition or intent or
awareness of consequences.’” Id. (quoting Personal Adm’r v. Feeney, 442 U.S. 256, 279 (1979)).
Rather, discriminatory purpose “implies that the decisionmaker . . . selected or reaffirmed a
particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects
upon an identifiable group.” Id.

If a plaintiff makes the showing that he was intentionally

discriminated against, then the court must “determine whether the disparity in treatment can be
justified under the requisite level of scrutiny.” Morrison v. Garraghty, 239 F.3d 648 (4th Cir. 2001)
(citations omitted).
Plaintiff claims he was treated differently from other students in Logan County as he was not
allowed to participate in extracurricular activities. He alleges that Defendants prevented him from
participating because of his “inability to physically attend Logan County High School.” (Docket
17-1 at 5.) He states that he was often told, “If you’re too sick to come to school, you’re too sick
to attend these events.” (Id.) Assuming Plaintiff’s allegations are true, Plaintiff’s complaint
sufficiently alleges that Defendants intentionally discriminated against him by treating him
differently than other students.
Having determined that Plaintiff’s complaint alleges disparate treatment based upon
intentional discrimination, the court must determine whether Plaintiff has alleged facts that, if found

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to be true, would demonstrate that the disparate treatment lacks justification under the requisite level
of scrutiny. Generally, state regulation or policies that do not pertain to a fundamental right or a
suspect class are presumed to be valid. Heller v. Doe, 509 U.S. 312, 319 (1993).
Such a classification cannot run afoul of the Equal Protection Clause if there is a
rational relationship between the disparity of treatment and some legitimate
governmental purpose . . . . [A] classification “must be upheld against [an] equal
protection challenge if there is any reasonably conceivable state of facts that could
provide a rational basis for the classification.”
Id. (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)) (citations omitted).
Plaintiff agrees that rational basis review is appropriate here and alleges in the complaint that
“[n]o rational basis exists to allow [Defendants] to bar [Plaintiff] from extracurricular activities.”
(Docket 17-1 at 5.) Plaintiff claims that Defendants stated that the reasoning for preventing Plaintiff
from participating in extracurricular activities was, “If you are too sick to attend school, you are too
sick to attend extracurricular activities.” At this point in the litigation, the Court is unable to make
a final determination that the disparate treatment Plaintiff received was related to a legitimate
purpose. However, viewing the facts in the light most favorable to the plaintiff, he has alleged
enough facts to support an equal protection violation that survives under Rule 12(b)(6).
Accordingly, it is unclear at this time whether the individual Defendants are entitled to qualified
immunity. Therefore, the motion to dismiss the § 1983 count is DENIED.2

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West Virginia uses the federal approach in evaluating qualified immunity. Government officials
have qualified immunity only when there is a violation of clearly established law. Robinson v. Pack,
679 S.E.2d 660, 665-66 (W. Va. 2009). Accordingly, there is not enough information at this time
to determine whether Defendants have qualified immunity for Plaintiff’s claim that he was denied
equal protection under the West Virginia Constitution. Therefore, Defendants motion to dismiss the
West Virginia equal protection claim based on qualified immunity is also DENIED.
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F.

Intentional Infliction of Emotional Distress, Negligence, and Negligent Infliction of
Emotional Distress Counts

In West Virginia, to establish a claim for intentional infliction of emotional distress, a
plaintiff must show:
(1) that the defendant’s conduct was atrocious, intolerable, and so extreme and
outrageous as to exceed the bounds of decency; (2) that the defendant acted with the
intent to inflict emotional distress, or acted recklessly when it was certain or
substantially certain emotional distress would result from his conduct; (3) that the
actions of the defendant caused the plaintiff to suffer emotional distress; and, (4) that
the emotional distress suffered by the plaintiff was so severe that no reasonable
person could be expected to endure it.
Travis v. Alcon Labs., Inc., 504 S.E.2d 419, 425 (W. Va. 1998). Plaintiff alleges that Defendants
intentionally inflicted emotional distress when they barred him from entering his senior party and
forced him to stand outside in the rain.
To pursue a negligence action, a plaintiff must prove “that the defendant owed a legal duty
to the plaintiff and that by breaching that duty the defendant proximately caused the injuries of the
plaintiff.” Strahin v. Cleavenger, 603 S.E.2d 197, 205 (W. Va. 2004). Plaintiff alleges that
Defendants owed a duty to Plaintiff not to discriminate against him because of his disability; that
Defendants breached that duty by prohibiting Plaintiff from participating in extracurricular
activities; and that these actions caused Plaintiff physical, mental, and emotional distress.
To prove negligent infliction of emotional distress, a plaintiff is required to show (1) that the
defendant engaged in negligent conduct; (2) that the plaintiff suffered serious emotional distress;
and (3) that the defendant’s negligent conduct was a cause of the serious emotional distress. Stump
v. Ashland, Inc., 499 S.E.2d 41, 46 (W. Va. 1997). “An individual may recover for the negligent
infliction of emotional distress absent accompanying physical injury upon a showing of facts
sufficient to guarantee that the emotional damages claim is not spurious.” Syl. pt. 2, Ricottilli v.
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Summersville Mem’l Hosp., 425 S.E.2d 629 (W. Va. 1992). Plaintiff alleges: “it was reasonably
foreseeable that prohibiting Plaintiff from attending extracurricular events based on Logan County
School Board policy would cause damage to [P]laintiff.” (Docket 17-1 at 11.) As mentioned above,
Plaintiff alleges that he suffered emotional distress when he was forced to stand outside in the rain.
The Court finds that Plaintiff has alleged enough facts to state a cognizable claim for
intentional infliction of emotional distress, negligence, and negligent infliction of emotional
distress. Therefore, the motion to dismiss these counts is DENIED.
In the motion to dismiss, Defendants argue that the individual Defendants are entitled to
immunity as state officials for their discretionary acts. Under West Virginia law, qualified immunity
is a defense to a claim of negligence against a state agency.
In the absence of an insurance contract waiving the defense, the doctrine of qualified
or official immunity bars a claim of mere negligence against a State agency not
within the purview of the West Virginia Governmental Tort Claims and Insurance
Reform Act, W. Va.Code § 29–12A–1, et seq., and against an officer of that
department acting within the scope of his or her employment, with respect to the
discretionary judgments, decisions, and actions of the officer.
Jarvis v. W. Va. State Police, 711 S.E.2d 542, 551 (W.Va. 2010).
However, the Logan County Board of Education is within the purview of the Act. W.
Va.Code § 29–12A–1 provides that the Act’s purpose is to “limit liability of political subdivisions
and provide immunity to political subdivisions in certain instances.” A county board of education
qualifies as a political subdivision under the act. W. Va.Code § 29–12A–3.3 Therefore, an

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Because the Logan County Board of Education is a political subdivision, the immunity provisions
of the Act limit the extent to which the Board and its employees may be held liable for their actions.
Despite the limitations on liability, when a policy of insurance provides coverage for a political
subdivision, the terms of the insurance contract determine the rights and responsibilities of the
insurer and its insureds. Bender v. Glendenning, 632 S.E.2d 330, 335 (W. Va. 2006).
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immunity analysis for negligence actions should be made on that basis, not under qualified
immunity. Accordingly, Defendants’ motion to dismiss these counts based on qualified immunity
is DENIED.
V. CONCLUSION
For the reasons set forth above, Plaintiff’s Motion to Amend Complaint [Docket 17] is
GRANTED and Defendants’ Motion to Dismiss [Docket 13] is DENIED.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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March 15, 2012