Dorsey v. Pueblo Sch. Dist. 60

• Decision Date: 26 October 2015
• Docket Number: Civil Action No. 15-cv-0094-WJM-CBS
• Citation: 140 F.Supp.3d 1102
• Parties: Lisa Dorsey, individually and on behalf of a minor J.D., Plaintiff, v. Pueblo School District 60, Board of Education of Pueblo School District Sixty, Corwin International Magnet School, and John Doe, Individually and in Official Capacity as Pueblo School District Teacher, Defendants.
• Court: U.S. District Court — District of Colorado

140 F.Supp.3d 1102

Lisa Dorsey, individually and on behalf of a minor J.D., Plaintiff,

v.Pueblo School District 60, Board of Education of Pueblo School District Sixty, Corwin International Magnet School, and John Doe, Individually and in Official Capacity as Pueblo School District Teacher, Defendants.

Civil Action No. 15-cv-0094-WJM-CBS

United States District Court, D. Colorado.

Signed October 26, 2015

Collin Joseph Earl, Earl & Earl PLLC, Castle Rock, CO, for Plaintiff.

Courtney B. Kramer, Eric Michael Ziporin, Senter Goldfarb & Rice, LLC, Denver, CO, for Defendants.

ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS

William J. Martínez, United States District Judge

Plaintiff Lisa Dorsey, on behalf of her minor daughter, J.D., ("Plaintiff") brings this action against Defendants Pueblo School District 60, Board of Education of Pueblo School District 60, Corwin International Magnet School ("Corwin"), and John Doe, an unknown Pueblo School District teacher. (ECF No. 30.) Plaintiff sues Defendants for their negligence, and brings further claims under Section 504 of the Rehabilitation Act of 1973 ("§ 504"), 29 U.S.C. §§ 701 et seq. ,

the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq. , and 42 U.S.C. § 1983. (Id. ) This matter is currently before the Court on Defendants Pueblo School District 60, Board of Education of Pueblo School District 60, and Corwin's (collectively "Defendants") Motion to Dismiss Plaintiff's Amended Complaint ("Motion") pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 33.) Plaintiff responded to the Motion on June 1, 2015, and Defendants filed their reply on June 18, 2015. (ECF Nos. 36, 37.) For the reasons set forth below, the Motion is granted in part and denied in part.

I. LEGAL STANDARD

Because Defendants move under Rules 12(b)(1) and 12(b)(6)

, the Court will briefly discuss the legal standards that pertain to each rule.

Rule 12(b)(1)

motions to dismiss for lack of subject matter jurisdiction generally take one of two forms. A facial attack questions the sufficiency of the complaint as to its subject matter jurisdiction allegations. Holt v. United States , 46 F.3d 1000, 1002 (10th Cir.1995). In reviewing a facial attack, courts accept all well-pled allegations as true. Id. A factual attack, on the other hand, goes beyond the allegations in the complaint and challenges the facts on which subject matter jurisdiction is based. Id. at 1003. A factual attack does not permit the court to presume the complaint's factual allegations are true, although the court does have "wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id. In such circumstances, the court's reference to evidence beyond the pleadings will not convert the motion to one under Rules 56 or 12(b)(6), unless the jurisdictional question is intertwined with the merits of the case. Id."The jurisdictional question is intertwined with the merits of the case if subject matter jurisdiction is dependent on the same statute which provides the substantive claim in the case." Id.

Under Rule 12(b)(6)

, a party may move to dismiss a claim in a complaint for "failure to state a claim upon which relief can be granted." The 12(b)(6) standard requires the Court to "assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff." Ridge at Red Hawk, LLC v. Schneider , 493 F.3d 1174, 1177 (10th Cir.2007). In ruling on such a motion, the dispositive inquiry is "whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’ " Id. (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)

). "Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.’ " Id. (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).

II. BACKGROUND

The following facts and allegations are gathered from Plaintiff's Amended Complaint ("the Complaint"). (ECF No. 30.) Plaintiff J.D. is a minor child who was formerly enrolled at Corwin. (Id. at 3.) J.D. alleges she suffers from "hypoglycemia

, asthma and progressive muscular/skeletal weakness," for which she received a Section 504 accommodation ("504 Plan"). (Id. ) Per her 504 Plan, Plaintiff was not to be forced to participate in any school activity that might "compromise her physical condition." (Id. at 4.) On February 27, 2014, Plaintiff attended her gym class at Corwin, where she "was instructed to participate in a human ‘pyramid.’ This is an exercise that places students on top of each other in a standing or ‘all fours' position and they build the human ‘pyramid.’ " (Id. ) Plaintiff did so, and was standing on the backs of two students when she became dizzy and fell. (Id. ) Because there was no mat to cushion her fall, Plaintiff was injured. (Id. )

While at Corwin, Plaintiff alleges that other students verbally and physically harassed her over the span of several months. (Id. at 2-7.) Plaintiff alleges that she first complained about the bullying in October 2013. (Id. at 3.) Specifically, Plaintiff complained that a student had been "tasering" her in the sides and stomach repeatedly. (Id. ) The Complaint states, "Tasering is where a person stiffens their four fingers, tucks in their thumb and stabs their fingers into another person's side or stomach as hard as one can." (Id. ) This student also stole Plaintiff's snacks that she used to combat her low blood sugar. (Id. ) When Plaintiff complained, a school official told Plaintiff that she would "take care of the situation" and "bring the student in responsible for the bullying." (Id. ) Plaintiff alleges that nothing was done about these incidents. (Id. )

On April 8, 2014, "the bullying directed at [Plaintiff] escalated to physical violence" when a group of students "punched, slapped and placed [Plaintiff] in a headlock, leaving bruises on her neck, arms, leg, and stomach"; again, the bullying was reported and school officials stated they would "take care of the situation." (Id. at 4-5.) The bullying continued throughout April, and included threats and a suggestion to Plaintiff that she kill herself, which Plaintiff reported to the same school officials on April 20, 2014. (Id. at 5-6.) Plaintiff was told by Corwin's principal, Ms. Shue, that they would look into the allegations; Ms. Shue recommended that Plaintiff be taken out of all her classes and moved to a different student group, which Plaintiff and her parents declined to do. (Id. at 7.) Plaintiff alleges no further acts of bullying after the April 20, 2014 meeting with Corwin officials. (Id. )

Plaintiff further alleges that she requires snacks on a regular basis throughout the school day due to her hypoglycemia

. (Id. at 10.) One day, Plaintiff forgot to bring her snacks to school, and Plaintiff's sister later dropped them off. (Id. at 10-11.) After the snacks were dropped off, the school took almost three hours to bring them to Plaintiff, which she claims was discriminatory and caused her "weakness, dizziness and nausea." (Id. at 11.) Finally, Plaintiff alleges that she underwent leg surgery (apparently unrelated to this lawsuit) in July 2013 and provided Corwin with a letter from the Colorado Children's Hospital that stated Plaintiff should be given two sets of books, one for home and one for school. (Id. ) Defendants never complied with this request. (Id. )

Due in large part to the bullying that Corwin allegedly never addressed, Plaintiff withdrew from the school on April 25, 2014. (Id. at 7.) Plaintiff was subsequently diagnosed with depresssion and referred to a psychologist, who treated her for post-traumatic stress disorder

. (Id. ) Plaintiff now attends a different school that is further away from her home than Corwin. (Id. at 8.) "This is a hardship to the [Plaintiff and her parents] and they are concerned about the distance in case of any emergencies." (Id. )

III. ANALYSIS

A. Converting the Motion

The Court must first determine whether it must convert Defendants' Motion, insofar as it argues for dismissal under Rule 12(b)(1)

, into a motion for relief under Rule 56 or Rule 12(b)(6). Defendants' Motion is properly characterized as a facial attack because it appears to argue that, even accepting Plaintiff's version of events as true, her claims fail for lack of subject matter jurisdiction. (ECF No. 33.) However, Defendants do attach the affidavit of Jerri Garcia, Plaintiff's former physical education teacher, to their Reply brief; the affidavit challenges Plaintiff's version of events with respect to the human pyramid. (ECF Nos. 37, 37-1.) Garcia claims she never instructed Plaintiff or any other students to participate in the human pyramid. (ECF No. 37-1 at 2.) In fact, Garcia claims that she expressly prohibited the students from doing so. (Id. )

Garcia's affidavit could convert the Motion into a factual attack if the Court considered it. But Defendants did not include the affidavit, or any argument challenging Plaintiff's claim that she was forced to participate in the human pyramid, in their Motion. (ECF No. 33.) Because Plaintiff was unable in her Response brief to address an argument not raised in Defendants' Motion, and does not have a further opportunity to respond to Defendants' Reply, see D.C. COLO. LCivR 7.1(d)

, the Court finds that Defendants have waived this argument, at least for purposes of the instant Motion. See United States v. Harrell , 642 F.3d 907, 918 (10th Cir.2011) (arguments raised for the first time in a reply brief generally are deemed waived). The Court therefore reviews Defendants' 12(b)(1) Motion under the same standard applicable to dismissals under 12(b)(6). Dry v. United States , 235 F.3d 1249, 1253 (10th Cir.2000).

B. Plaintiff's Claims

Defendants move to dismiss Plaintiff's Complaint in its...