Copper ex rel. Copper v. Denlinger

• Citation: 667 S.E.2d 470
• Decision Date: 21 October 2008
• Docket Number: No. COA07-205.,COA07-205.
• Parties: Angell COPPER, by his mother and guardian ad litem, Sherry COPPER; Desmond Johnson, by his father and guardian ad litem, Wilmer Johnson; Eric Warren and Dion Warren, by their mother and guardian ad litem, Deann Warren; Joshua Thorpe, by his mother and guardian ad litem, Treco Thorpe; Todd Douglas, deceased, by his mother and administratrix of his estate, Sheryl Smith; Deantonio Rhodes, by his mother and guardian ad litem, Linda Rhodes; Jazmyn Jenkins; and Gina Solari; as individuals and as representatives of the class of similarly situated Durham Public School students, Plaintiffs, v. Ann T. DENLINGER, individually and as Superintendent of Durham Public Schools; The Durham Public School Board of Education; Gail Heath, individually and as Chair of the Durham Public School Board of Education; Heidi Carter, Steve Martin and Steve Schewel, individually and as members of the Durham Public School Board of Education; Larry McDonald, individually and as former Principal of Southern High School; Richard Webber, individually and as Principal of C.E. Jordan High School; Rodriquez Teal, individually and as Principal of Southern High School; Worth Hill, Durham County Sheriff; and R.A. Sipple and Joseph Costa, individually, as agents and employees of the Sheriff, as agents of the Superintendent of Durham Public Schools, and as agents of the Durham Public School Board of Education, Defendants.
• Court: Court of Appeal of North Carolina (US)

667 S.E.2d 470

Angell COPPER, by his mother and guardian ad litem, Sherry COPPER; Desmond Johnson, by his father and guardian ad litem, Wilmer Johnson; Eric Warren and Dion Warren, by their mother and guardian ad litem, Deann Warren; Joshua Thorpe, by his mother and guardian ad litem, Treco Thorpe; Todd Douglas, deceased, by his mother and administratrix of his estate, Sheryl Smith; Deantonio Rhodes, by his mother and guardian ad litem, Linda Rhodes; Jazmyn Jenkins; and Gina Solari; as individuals and as representatives of the class of similarly situated Durham Public School students, Plaintiffs, v. Ann T. DENLINGER, individually and as Superintendent of Durham Public Schools; The Durham Public School Board of Education; Gail Heath, individually and as Chair of the Durham Public School Board of Education; Heidi Carter, Steve Martin and Steve Schewel, individually and as members of the Durham Public School Board of Education; Larry McDonald, individually and as former Principal of Southern High School; Richard Webber, individually and as Principal of C.E. Jordan High School; Rodriquez Teal, individually and as Principal of Southern High School; Worth Hill, Durham County Sheriff; and R.A. Sipple and Joseph Costa, individually, as agents and employees of the Sheriff, as agents of the Superintendent of Durham Public Schools, and as agents of the Durham Public School Board of Education, Defendants.

No. COA07-205.

Court of Appeals of North Carolina.

October 21, 2008.

Appeal by plaintiffs from order entered 5 October 2006 by Judge Orlando Hudson in Durham County Superior Court. Heard in the Court of Appeals 13 September 2007.

Frances P. Solari, Durham, for plaintiffs-appellants.

Cranfill Sumner & Hartzog, L.L.P., by Ann S. Estridge, Alycia S. Levy, and Dan M. Hartzog, Jr., Raleigh, for defendant-appellee Ann T. Denlinger.

Tharrington Smith, L.L.P., by Ann L. Majestic and Christine T. Scheef, Raleigh, for defendants-appellees The Durham Public School Board of Education, Gail Heath, Heidi Carter, Steve Martin, Steve Schewel, Larry McDonald, Richard Webber, and Rodriquez Teal.

Jack Holtzman, Raleigh, for amicus curiae North Carolina Justice Center.

Lynn Fontana, Durham, for amicus curiae ACLU of North Carolina Legal Foundation.

Lewis Pitts, Durham, for amicus curiae Advocates for Children's Services of Legal Aid of North Carolina.

Ashley Osment, for amici curiae North Carolina State Conference of NAACP Branches and the Triangle Lost Generation Task Force.

Sheria Reid, Raleigh, for amicus curiae The North Carolina Black Leadership Caucus.

GEER, Judge.

Plaintiffs—current or former students in the Durham Public School System ("DPS")— brought this action essentially as a wholesale challenge to the disciplinary process in the Durham Public Schools. The lawsuit was dismissed in its entirety under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure for failure to state a claim for relief and under Rule 12(b)(1) for lack of subject matter jurisdiction.

We must conclude, as the trial court did, that many of plaintiffs' claims must be dismissed for lack of sufficient allegations even though the complaint contains 575 paragraphs. Apparently, in an eagerness to illuminate alleged systemic problems in the Durham schools, plaintiffs overlooked the need to allege a claim for relief on behalf of each individual plaintiff against each individual defendant. By relying substantially on broad assertions regarding DPS discipline and "defendants"—without distinguishing among the defendants—plaintiffs omitted to include in their complaint certain key allegations necessary to survive a motion to dismiss.

The concept of "notice pleading" does not excuse a plaintiff from stating the fundamental elements of his or her claim against each defendant. The regrettable length of this opinion is the result of the Court's need to parse through the complaint as to each plaintiff, for each claim for relief pursued on appeal, while considering the separate rules of liability pertinent to each type of claim for defendant Denlinger (the former superintendent of schools) and the Durham Public School Board of Education ("the Board"), the sole defendants at issue on appeal.

After a paragraph-by-paragraph review of the complaint as it relates to each plaintiff, each remaining defendant, and each claim, we are compelled to affirm the trial court's dismissal of plaintiffs' claims for violation of their procedural due process rights with the exception of the claim brought on behalf of Todd Douglas (now deceased). We also affirm the dismissal of plaintiffs' equal protection claims. On the other hand, with respect to plaintiffs' constitutional challenge to the Board's policy relating to gangs and gang-related activity, we hold, based on the allegations in the complaint and the policy itself, that plaintiffs have sufficiently stated a claim for relief and, therefore, reverse the order below as to that claim. The arguments asserted by the Board in support of the policy are more appropriately considered at the summary judgment stage. We, therefore, remand for further proceedings regarding the procedural due process claims relating to Todd Douglas and the Board's gang policy.

Facts and Procedural History

On 24 March 2006, plaintiffs filed suit against the Board; certain individual Board members; Denlinger; current and former principals of Southern High School, Rodriquez Teal and Larry McDonald; the current principal of C.E. Jordan High School, Richard Webber; Durham County Sheriff Worth Hill; and two deputy sheriffs working as school resource officers, R.A. Sipple and Joseph Costa. Plaintiffs sought to proceed on behalf of a class of those minority students who had been unlawfully suspended or expelled since 1 September 2003. No class was, however, ever certified.

The complaint alleged that because of defendants' conduct in connection with short-term and long-term suspensions and the labeling of students as gang members, plaintiffs: (1) were outlawed and exiled without due process of law in violation of the North Carolina Constitution art. I, § 19; (2) were denied public education without due process of law in violation of the Due Process Clause of the United States Constitution and North Carolina Constitution art. I, §§ 15 and 19, and art. IX, § 2; (3) were unlawfully arrested in violation of the Fourth Amendment to the United States Constitution; (4) were denied equal educational opportunity and equal rights in violation of the Fourteenth Amendment to the United States Constitution and North Carolina Constitution art. I, §§ 1, 15, and 19, and art. IX, § 2; (5) were victims of a conspiracy to interfere with the exercise and enjoyment of their constitutional right to equal protection in violation of 42 U.S.C. § 1983(3) and N.C. Gen.Stat. § 99D-1 (2007); and (6) were victims of defamation per se. Plaintiffs also sought a declaratory judgment that the Board's policy 4301.10 ("Prohibition of Gangs and Gang Activities") is unconstitutionally vague and does not comport with the requirements of procedural due process.

Each of the defendants moved to dismiss the complaint. In an order entered 12 July 2006, the trial court first dismissed the claims against the Sheriff's Department defendants, including Sheriff Hill and the school resource officers, Sipple and Costa. Subsequently, in an order entered 5 October 2006, the trial court granted the school defendants' motion to dismiss on 19 separate legal grounds, including insufficient factual allegations for certain claims, the existence of adequate alternative state remedies (precluding state constitutional claims), failure to exhaust administrative remedies, and immunity. The trial court also dismissed the claim for relief regarding the Board's gang policy, concluding that the policy "defines a violation of the policy with sufficient definiteness that a student could understand what conduct was prohibited and it establishes standards to permit enforcement in a non-arbitrary, non-discriminatory manner."

Plaintiffs timely appealed from the 5 October 2006 order only and thus have abandoned their claims against Hill, Sipple, and Costa. In addition, plaintiffs state in their brief: "With the exception of Defendant Denlinger, Plaintiffs' claims against individual school defendants are not brought forward on appeal." Thus, plaintiffs have pursued only their claims against Denlinger and the Board. Plaintiffs have also limited the claims for relief argued on appeal, stating: "The causes of action which are the subject of this appeal are claims under 42 U.S.C. § 1983 and the North Carolina State Constitution for denial of Plaintiffs' rights of due process and equal protection and Plaintiffs' action for judgment declaring the DPS Gang Policy void and unenforceable as unconstitutionally vague on its face."

Plaintiffs have further narrowed the scope of their appeal by failing to bring forward on appeal the claims of several of the individual plaintiffs. Plaintiffs' brief states that Gina Solari has not appealed the dismissal of her claims. In addition, although plaintiffs' brief states the appeal has been brought on behalf of Deantonio Rhodes and Dion Warren, the trial court concluded that those two plaintiffs, as well as Gina Solari, "have failed to state any claims against any school defendants, and those plaintiffs' claims are therefore DISMISSED." Plaintiffs failed to assign error to that ruling and failed to make any specific argument in their brief as to why the court erred in concluding Rhodes and Dion Warren had not asserted a claim against Denlinger or the Board.¹

Thus, the only remaining claims on appeal are those asserted on behalf of Angell Copper, Desmond Johnson, Eric Warren, Joshua Thorpe, Todd Douglas (deceased), and Jazmyn Jenkins against Denlinger and the Board for violation of procedural due process and equal protection rights under the state and federal constitutions. Plaintiffs' claim...