BMH BY CB v. School Bd.

• Decision Date: 23 September 1993
• Docket Number: Civ. A. No. 2:92cv1221.
• Citation: 833 F. Supp. 560
• Court: U.S. District Court — Eastern District of Virginia
• Parties: B.M.H., an infant, who sues By her mother and father and next friends, C.B. and P.B., and C.B. and P.B., Plaintiffs, v. The SCHOOL BOARD OF the CITY OF CHESAPEAKE, VIRGINIA, in its official capacity, and Linda Singleton, individually, and in her official capacity as a Teacher at Crestwood Middle School for the 1990-91 School Year, and Edward Gary Webb, individually, and in his official capacity as a Teacher at Crestwood Middle School for the 1990-91 School Year, Defendants.

833 F. Supp. 560

B.M.H., an infant, who sues By her mother and father and next friends, C.B. and P.B. and C.B. and P.B., Plaintiffs, v. The SCHOOL BOARD OF the CITY OF CHESAPEAKE, VIRGINIA, in its official capacity and Linda Singleton, individually, and in her official capacity as a Teacher at Crestwood Middle School for the 1990-91 School Year and Edward Gary Webb, individually, and in his official capacity as a Teacher at Crestwood Middle School for the 1990-91 School Year, Defendants.

Civ. A. No. 2:92cv1221.

United States District Court, E.D. Virginia, Norfolk Division.

September 23, 1993.

COPYRIGHT MATERIAL OMITTED

Bruce Howard Kushner, Chesapeake, VA, Michael F. Imprevento, Andrew Michael Sacks, Stanley E. Sacks, Sacks, Sacks & Imprevento, Norfolk, VA, for plaintiffs.

Carol Thomas Stone, John O. Easton, Virginia Futral Shevlin, Jordan, Coyne, Savits & Lopata, Fairfax, VA, for defendants.

OPINION AND ORDER

CLARKE, District Judge.

This matter comes before the Court on the Defendants' Motion to Dismiss the Plaintiffs' Amended Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The Amended Complaint contains three counts: Count I asserts a claim under 42 U.S.C. § 1983 against all Defendants; Count II asserts a 42 U.S.C. § 1983 claim against the Defendant School Board only; and, Count III asserts a cause of action against all Defendants under Virginia law based upon pendent and diversity jurisdiction. After considering the briefs presented by both parties and hearing oral argument, the Court GRANTS the Defendants' Motion to Dismiss as to Counts I and II. As to Count III the motion is GRANTED IN PART and DENIED IN PART. As to the Defendants' miscellaneous grounds for dismissal, the Motion to Dismiss is DENIED.

BACKGROUND

In construing the allegations made in the Amended Complaint and the argument of Plaintiffs' counsel most liberally in the Plaintiffs' favor, the factual contentions on which the Court decides the Defendants' motion are brief. In December of 1990, the Plaintiff B.M.H., daughter of Plaintiffs C.B. and P.B., was a thirteen year old, eighth-grade student enrolled at Crestwood Middle School in the City of Chesapeake, Virginia. Around December 4, 1990, a male student ("Student H.") in B.M.H.'s fifth-period history class threatened B.M.H. by telling her "I am going to screw you, no matter what, even if it's in school and even if I have to rape you." B.M.H. reported this threat to Defendant Singleton, who was apparently the fifth-period history teacher. Defendant Singleton then made Defendant Webb, a fellow teacher, aware of the threat made to B.M.H.

Subsequently, the complaint alleges that Singleton and Webb (collectively the "teachers") failed to take action to discipline Student H. for his remark or to prevent him from actually accomplishing it, even though they had stated an intention to do so. Three days after the reported threat by Student H., on December 7, 1990, B.M.H. was sexually assaulted by Student H. on school grounds. The assault, for which Student H. was later convicted in Virginia Family Court, consisted of him fondling B.M.H.'s genital regions, penetrating her vagina, and threatening her while another student stood as a "look-out."

Based upon these contentions, the Plaintiffs' Amended Complaint alleges three counts against the Defendants. Count I, asserted against the Defendant teachers and the Defendant School Board, seeks damages for the violation B.M.H.'s federal civil rights under 42 U.S.C. § 1983¹ for failure to affirmatively protect a student with whom they held a "special relationship" under the substantive component of the Fourteenth Amendment Due Process Clause. Count II, asserted only against the Defendant School Board, likewise asserts a claim under 42 U.S.C. § 1983 for failure by the School Board to provide adequate policies or instruction to deal with alleged constitutional deprivations such as this. Finally, Count III, brought against both the Defendant teachers and the Defendant School Board, asserts common law tort offenses for negligence, gross negligence, and recklessness under the laws of Virginia.²

The Defendants have moved under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss all counts for failure to state a claim upon which relief can be granted. Through memorandum and oral argument in support of this motion, the Defendants have asserted numerous grounds for dismissal. As to all three counts, the Defendants contend that state-based sovereign immunity bars this action against them. On Count I, they maintain that no cause of action can be sustained under 42 U.S.C. § 1983 because the Amended Complaint shows no constitutional deprivation, fails to allege action "under color of state law," and fails to allege sufficiently egregious conduct. In regards to Count II, the Defendants assert that no cause of action has been stated by the Plaintiffs because they failed to allege an "official policy or custom" of the Defendant School Board as the "moving force" behind the Defendant teachers' alleged inaction. As to Count III, the Defendants maintain that sovereign immunity, the Plaintiffs' failure to establish a duty owed B.M.H. under statute or common law, and attenuated causation all support dismissal of the state claims.³

STANDARD OF REVIEW

In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the complaint is construed in the light most favorable to the plaintiffs and their allegations are taken as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The complaint should not be dismissed unless it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claim which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Bruce v. Riddle, 631 F.2d 272, 273-74 (4th Cir.1980). A court should not dismiss a complaint even if it appears on the face of the pleadings that the chance of recovery is very remote. Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686.

ANALYSIS

A. State Sovereign Immunity Defense to the 42 U.S.C. § 1983 Claims

As an initial grounds for dismissing both counts based upon 42 U.S.C. § 1983,⁴ the Defendants assert that the existence of state sovereign immunity for government officials bars this federal civil rights action.⁵ The Court finds no support for the Defendants' assertion of this bar as to the Defendant teachers or School Board.⁶

Assuming arguendo that Virginia law would bar suit against the Defendants, it would not operate to prevent maintenance of this federal action against them. In Howlett v. Rose, 496 U.S. 356, 376, 110 S.Ct. 2430, 2443, 110 L.Ed.2d 332 (1990), the Supreme Court, relying upon the supremacy clause, expressly noted that "conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 ... cannot be immunized by state law.... because it would transmute a basic guarantee into an illusory promise...." (citation omitted). Therefore, immunity in regards to § 1983 violations is governed by federal law. Id. Relying on Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), the Defendants assert that this federal law still provides sovereign immunity for state actors carrying out discretionary governmental duties. Defs.' Mem.P. & A. in Reply to Pls.' Opp'n to Mot. to Dismiss at 3. Contrary to the Defendants' reading of Owen, the Supreme Court clearly rejected the argument that the common-law immunity for discretionary functions applies in § 1983 suits. It stated that the "doctrine cannot serve as the foundation for a good-faith immunity under § 1983.... because a municipality has no `discretion' to violate the Federal Constitution." Id. at 649, 100 S.Ct. at 1414.

Therefore, the Court finds no support for the assertion that the Plaintiffs' § 1983 claims are barred by any state-based sovereign immunity that might apply under these circumstances. The Defendants' motion, on that basis, is thus DENIED.

B. Count I: Failure to State a Claim Under § 1983 for Deprivation of B.M.H.'s Fourteenth Amendment Liberty Interest

In Count I, the Defendants assert that no grounds have been alleged or exist on which a § 1983 cause of action can be maintained. Three basic arguments are presented by the Defendants in this regard: 1) that there is not present between B.M.H. and the Defendants the type of relationship needed to create an affirmative duty upon the Defendants to protect B.M.H.; 2) that the Amended Complaint fails to show that Defendants were acting "under color of state law;" and 3) that the Plaintiffs have failed to allege behavior by the Defendants sufficiently egregious enough to state a § 1983 claim. Because the Court agrees that there is no "special relationship" between B.M.H. and the Defendants under the Fourteenth Amendment Due Process Clause, it only finds it necessary to address that contention in detail.⁷

In order to maintain an action under 42 U.S.C. § 1983, a plaintiff must demonstrate that he has been deprived, under color of state law, of a right secured by the Constitution or laws of the United States. Baker v. McCollan, 443 U.S. 137, 146-47, 99 S.Ct. 2689, 2696, 61 L.Ed.2d 433 (1979); Jensen v. Conrad, 747 F.2d 185, 190 (4th Cir.1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1754, 84 L.Ed.2d 818 (1985); Fox v. Custis, 712 F.2d 84, 87 (4th Cir.1983). Therefore, before allowing an action to stand under § 1983, the Court must inquire as to whether such an asserted right actually exists. Jensen, 747 F.2d at 190.

In this case, the Plaintiffs contend that B.M.H. has a liberty interest under the substantive component of the Fourteenth Amendment Due Process Clause to be protected by the Defendants from harms such as those experienced. They suggest that this affirmative duty to protect B.M.H. arises from the "special...