As v. Las Cruces Pub. Sch. Dist.

• Citation: 716 F.Supp.2d 1052
• Decision Date: 30 April 2010
• Docket Number: No. CIV 09-1119 JB/KBM.,CIV 09-1119 JB/KBM.
• Parties: Tony and Annette SCHAEFER, Individually and on behalf of their minor son, AS, Plaintiffs, v. LAS CRUCES PUBLIC SCHOOL DISTRICT, Dante Thacker, Principal at Zia Middle School, Daniel Gomez, Assistant Principal at Zia Middle School, Sonia Diaz, Superintendent of the Las Cruces Public Schools, the Safety Officer at Zia Middle School and other John/Jane Doe Defendants, including the School Nurse, in their official capacity and individual capacity, Defendants.
• Court: U.S. District Court — District of New Mexico

716 F.Supp.2d 1052

Tony and Annette SCHAEFER, Individually and on behalf of their minor son, AS, Plaintiffs,

v.LAS CRUCES PUBLIC SCHOOL DISTRICT, Dante Thacker, Principal at Zia Middle School, Daniel Gomez, Assistant Principal at Zia Middle School, Sonia Diaz, Superintendent of the Las Cruces Public Schools, the Safety Officer at Zia Middle School and other John/Jane Doe Defendants, including the School Nurse, in their official capacity and individual capacity, Defendants.

No. CIV 09-1119 JB/KBM.

United States District Court,D. New Mexico.

April 30, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Thomas A. Sandenaw, Jr., CaraLyn Banks, Sandenaw & Anderson PC, Las Cruces, NM, for Plaintiffs.

Robert Michael Hughes, German & Associates, LLC, Albuquerque, NM, Elizabeth L. German, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) Defendants Las Cruces Public School District, Dante Thacker, and Daniel Gomez' Motion to Dismiss Plaintiffs' Complaint on the Basis of Qualified Immunity and Other Grounds, filed November 25, 2009 (Doc. 4); and (ii) Defendant Sonia Diaz' Motion to Dismiss Plaintiffs' Complaint on the Basis of Qualified Immunity and Other Grounds, filed December 30, 2009 (Doc. 18). ¹ The Court held a hearing on April 26, 2010. The primary issues are: (i) whether Plaintiffs Tony and Annette Schaefers' Complaint states any federal-law claims against the Defendants; and (ii) if it does not, whether the Court should remand the state-law claims to state court or maintain supplemental jurisdiction over them under 28 U.S.C. § 1367. Because the Court concludes that the Schaefers' Complaint does not state a federal cause of action, the Court will dismiss the federal claims, and remand the remaining state claims and the case to state court from which it was removed.

FACTUAL BACKGROUND

This case involves a child being abused at school by other students, and a resulting suit against the school and various school officials/employees for failure to take steps to stop such harassment from occurring. Defendant Las Cruces Public School District is a governmental agency of the state of New Mexico. See Complaint for Damages ¶ 6, at 2, filed December 7, 2009 (Doc. 6) (“Complaint”). Defendant Sonia Diaz is the former Superintendent of the Las Cruces Public Schools. See Complaint ¶ 4, at 2. Defendant Dante Thacker is the former Principal of Zia Middle School. See id. ¶ 2, at 1. Defendant Daniel Gomez is the former Assistant Principal of Zia Middle School. See id. ¶ 3, at 2.

The Schaefers allege that, during September of 2006, there were three attacks against sixth grade students at Zia Middle School, at least one of which involved one student “racking” another student. ² Complaint ¶¶ 22-33, at 5-7. According to the Schaefers, on information and belief, the Defendants made no efforts to identify or punish the bullies or to protect the victims. See id. ¶¶ 11-27, 30, at 2-6. On or about October 18, 2006, an unknown student “racked” AS while AS walked through a courtyard on his way to class at Zia Middle School. Id. ¶ 28, at 6. On October 20, 2006, AS sought treatment for persistent pain he was experiencing in his abdomen and testicles. See id. ¶ 32, at 7. An ultrasound revealed that AS had epididymitis ³ with scrotal wall edema, ⁴ hydrocele, ⁵ and two epididymis cysts. ⁶ After the incident involving AS, on or about October 30, 2006, all boys at Zia Middle School were required to attend a meeting where school faculty discussed the injuries that can result from being “racked.” Id. ¶ 34, at 7. AS was identified by name at this meeting as a student who had suffered such injuries. See id. The Schaefers admit that Zia Middle School held two separate meetings where the dangers and consequences of student-on-student bullying, harassment, fighting, gangs, and assaults were discussed. See id. ¶¶ 9, 34, at 2, 7. The first meeting was during the sixth grade orientation, in August of 2006, before any of the alleged assaults occurred. See id. ¶ 9, at 2. The other occurred on October 30, approximately two weeks after the attack on AS. See id. ¶ 34, at 7.

PROCEDURAL BACKGROUND

On October 16, 2009, the Schaefers brought a four-count Complaint in the Third Judicial District Court of New Mexico, County of Doña Ana, against the Las Cruces School District, Thacker, Gomez, Diaz, the unnamed Safety Officer of Zia Middle School, the unnamed School Nurse of Zia Middle School, and John and Jane Doe Defendants. See Complaint for Damages, filed November 24, 2009 (Doc. 2-2); Verified Notice of Removal ¶ 1, at 1, filed November 24, 2009 (Doc. 2). The Schaefers bring Counts I, II, and III-negligence, prima-facie tort, and intentional infliction of emotional distress-against the Defendants in their official capacities. They bring Count IV-constitutional violations-against the Defendants in their individual and official capacities. See Motion at 2.

In Count I for negligence, the Plaintiffs allege the Las Cruces School District, Thacker, Gomez, Diaz, and John/Jane Does 1-5 had a duty to: (i) establish and implement appropriate policies and procedures for protecting students from student-on-student harassment, bullying, assault, and battery; (ii) train and evaluate teachers, safety officers, school nurses and others in the identification, investigation, and discipline of such potentially dangerous situations and actions; (iii) establish appropriate policies to identify risk prone areas in the school and to supervise those areas; and (iv) provide training to students regarding unacceptable behavior. The Plaintiffs further allege that, as a direct and proximate result of Las Cruces Public Schools, Thacker, Gomez, and Diaz' breach of their duty, AS was injured and suffered damages.

The Defendants move the Court, pursuant to rules 8(a)(2) and 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss all of the Schaefers' claims. Regarding the state-law claims, the Defendants argue that the Schaefers' claims for negligent supervision, prima-facie tort, and intentional infliction of emotional distress are not permitted under the New Mexico Tort Claims Act, NMSA 1978, § 41-4-1 through 41-4-27 (“NMTCA”), and are therefore barred by sovereign immunity. See Motion at 6-7, 10-11. They also argue that the pleadings are insufficient to establish a claim of negligent operation and maintenance of a building. See id. at 7-9. They further argue that the Defendants have no duty to protect students from assaults by other students. See id. at 9-10. Regarding the Schaefers' constitutional claims, the Defendants argue that the Schaefers have failed to state a claim for supervisor liability against the Las Cruces School District. See Motion at 13-14. They argue that the Las Cruces School District's conduct was, at worst, negligent, and that the Schaefers have failed to state a claim for a violation of substantive due process under either the special-relationship or danger-creation theories. See id. at 14-18. They also assert that the Schaefers have failed to state a claim for negligent failure to train and for a violation of the equal-protection clause. See Motion at 18-20. Regarding the claims against the Defendants in their individual capacities, the Defendants assert that: (i) the Schaefers fail to assert any acts taken by the Defendants in their individual capacity; and (ii) that the Defendants are entitled to qualified immunity as to the individual-capacity claims. See id. at 20-24. The Defendants also argue that Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 through 1688, does not create a private cause of action against individuals, that the Schaefers have failed to state a claim under Title IX, and that Family Educational Rights and Private Act of 1974, 20 U.S.C. § 1232g (“FERPA”), does not create a private cause of action that the Schaefers can assert against any of the Defendants. See Motion at 24-25.

Regarding the state-law claims, the Schaefers respond by first arguing that their pleadings are not deficient and that they meet the pleading requirements of rule 8 of the Federal Rules of Civil Procedures. See Plaintiffs' Response in Opposition to Defendants' Motion to Dismiss at 2-4, filed December 9, 2009 (Doc. 7)(“Response”). They argue that their negligence claim is permitted under the NMTCA, and that there exists a genuine issue of material fact whether the Defendants were acting within the scope of their duties, making summary judgment inappropriate. See Response at 4-13. They assert that the Defendants have a special relationship with the students which, as a matter of law, creates a duty to protect the students from the criminal acts of third parties. See id. at 13-15. The Schaefers also assert that they properly state claims for violations of constitutional rights. They argue their claim adequately pled a supervisor-liability claim under Monell v. New York City Department of Social Services, 436 U.S. 658, 689, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), that they properly allege a claim for substantive-due-process violation under the danger-creation theory, that the individual Defendants are not entitled to qualified immunity on the claims against them in their individual capacity, and that they state valid Title IX and equal-protection claims. See Response at 15-32.

On April 28, 2010, the Defendants filed a supplemental brief providing further argument and authority with respect to the Schaefers' Title IX claim. In the supplemental brief, the Defendants argue more specifically that the Schaefers fail to state a Title IX claim because the conduct at issue was not sexual assault. See Defendants Las Cruces Public School District, Dante Thacker, Daniel Gomez' Supplemental Briefing on Title IX, filed April 28, 2010 (Doc. 27) (“Supplement”). They insist the conduct...