Estate v. Fairfield City Sch. Dist. Bd. of Educ.

• Citation: 341 F.Supp.3d 793
• Decision Date: 21 September 2018
• Docket Number: Case No. 1:15cv787
• Parties: ESTATE OF Emilie Grace Xiao Ying OLSEN, deceased, et al., Plaintiffs, v. FAIRFIELD CITY SCHOOL DISTRICT BOARD OF EDUCATION, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

341 F.Supp.3d 793

ESTATE OF Emilie Grace Xiao Ying OLSEN, deceased, et al., Plaintiffs,

v.FAIRFIELD CITY SCHOOL DISTRICT BOARD OF EDUCATION, et al., Defendants.

Case No. 1:15cv787

United States District Court, S.D. Ohio, Western Division.

Filed September 21, 2018

Peter Lawrence Ney, Ryan J. Dwyer, Michael J. Chapman, Rendigs Fry Kiely & Dennis LLP, Cincinnati, OH, for Plaintiffs.

Bernard W. Wharton, Ralph Gary Winters, McCaslin Imbus & McCaslin, Darcy Watt, James Eugene Burke, Sarah V. Geiger, Keating Muething & Klekamp PLL, Richard David Weber, Cors & Bassett, LLC, Timothy Paul Heather, Benjamin, Yocum & Heather, LLC, Colleen Marie Blandford, Kenneth Roger Schoeni, Kohnen & Patton, LLP, Stephen Michael Yeager, Patsfall Yeager & Pflum LLC, Cincinnati, OH, Daniel J. Knecht, Graydon Head & Ritchey LLP, Ft. Mitchell, KY, Joseph V. Erwin, Law Offices of Craig S. Cobb, Marshall W. Guerin, Farmers Insurance, Columbus, OH, for Defendants.

OPINION & ORDER

JUDGE MICHAEL R. BARRETT

This matter is before the Court upon Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint. (Doc. 105). Plaintiffs filed a Response (Docs. 114 & 132) and Defendants filed a Reply (Doc. 131).

I. BACKGROUND

Emilie Olsen ("Emilie") was a student at Fairfield Middle School and Fairfield Intermediate School. Plaintiffs Marc and Cindy Olsen are the parents of Emile. Plaintiff C.O. is the sister of Emilie. Emilie committed suicide in December of 2014. Plaintiffs claim that Emilie's suicide was the result of bullying Emilie suffered at school and online. Plaintiffs claim that Emile, a female Asian-American, suffered bullying, harassment, assault, battery, and discrimination because of her race, national origin, and gender, and her association with Caucasian students, and also based upon sex stereotyping and upon her perceived sexual orientation and practices. Plaintiffs claim that when they tried to end the bullying and asked school officials for help, school officials failed to stop the bullying.

In the Second Amended Complaint, Plaintiffs have brought twenty-two claims. Plaintiffs bring these claims against the Fairfield City School District Board of Education; the Fairfield City School District; Paul Otten, Superintendent, Fairfield City School District, in his individual and official capacities; Lincoln Butts, Principal, Fairfield Middle School, in his individual and official capacities; Jeff Madden, Principal, Fairfield Intermediate School, in his individual and official capacities; Mark Rice, Assistant Principal, Fairfield Middle School, in his individual and official capacities; Allison Cline, Assistant Principal, Fairfield Intermediate School, in her individual and official capacities; Melissa "Missy" Muller, Assistant Principal, Fairfield Intermediate School, in her individual and official capacities; Nancy Wasmer, Assistant Principal, Fairfield Middle School, in her individual and official capacities; Erica Green, Counselor, Fairfield Middle School, in her individual and official capacities; Candy Bader, Teacher, Fairfield Intermediate School, in her individual and official capacities; Minor Students 1-8; John/Jane Does 1-10, students and/or former students of Fairfield City Schools; John/Jane Does 11-20, Fairfield City School District employees, administrators and teachers, in their official and individual capacities; and Roger Martin, Fairfield City School District Title IX coordinator/administrator.

Defendants Fairfield City School District Board of Education, Fairfield City School District, Paul Otten, Lincoln Butts, Jeff Madden, Mark Rice, Allison Cline, Melissa "Missy" Muller, Nancy Wasmer, Erica Green, Candy Bader, Roger Martin, John/Jane Does 11-20 ("School Defendants") move to dismiss the following claims: (1) Count I: Substantive Due Process; (2) Count II: Title VI Race/National Origin Discrimination; (3) Counts IV, V, and VI: Section 1983; (4) Count VIII: Negligence / Gross Negligence; (5) Count IX: Wrongful Death; (6) Count X: Breach of Duty of Care and Supervision; (7) Count XI: Intentional Infliction of Emotional Distress; (8) Count XII: Negligent Infliction of Emotional Distress; (9) Count XIII: Hazing/Bullying in violation of Ohio Revised Code § 2307.44 ; (10) Count XV: Breach of Express and/or Implied Contract; (11) Count XIV: Failure to Report Child Abuse in violation of Ohio Revised Code § 2151.421.

II. ANALYSIS

A. Motion to Dismiss Standard

In reviewing a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), this Court must "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true and draw all reasonable inferences in favor of the plaintiff." Bassett v. Nat'l Collegiate Athletic Ass'n , 528 F.3d 426, 430 (6th Cir. 2008) (quoting Directv, Inc. v. Treesh , 487 F.3d 471, 476 (6th Cir. 2007) ). Federal Rule of Civil Procedure 8 provides that all pleadings must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although particular detail is not generally necessary, the factual allegations "must be enough to raise a right to relief above the speculative level" such that the claim "is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).

B. Fairfield City School District

School Defendants argue that the Fairfield City School District is not an entity which is capable of suing and being sued.

This Court has held that under Ohio law, a school district "does not exist and is not sui juris." Mahdy v. Mason City Sch. Dist. , No. 1:16-CV-845, 2017 WL 25504, at *2 (S.D. Ohio Jan. 3, 2017). Instead, it is the board of education of the school district that is the body politic and corporate which is capable of suing and being sued. Id. (citing Ohio Revised Code § 3313.17 ); Getachew v. Columbus City Sch. , Case No. 2:11-CV-861, 2012 WL 748783, at *2 (S.D. Ohio Mar. 8, 2012) (same); Thompson v. Bd. of Educ. , No. 3:12-CV-287, 2013 WL 6001626, at *3 (S.D. Ohio Nov. 12, 2013) ("Only the Board of Education is a properly-named party to this litigation, since the Board of Education is the body corporate capable of suing and being sued."). The Court notes that in addition to suing the Fairfield City School District, Plaintiffs have sued the Fairfield City School District Board of Education.

Accordingly, the School Defendants' Motion to Dismiss is GRANTED to the extent that Fairfield City School District is dismissed as a party.

C. Defendants Otten, Bader, Martin, Green, Cline, Muller, and Madden

Defendants Otten, Bader, Martin, Green, Cline, Muller, and Madden maintain that the Second Amended Complaint contains insufficient allegations against them.

Plaintiffs allege that Witness 7's mother requested a meeting with Butts and Otten regarding the bullying of Witness 7, but was denied the opportunity to meet with either one. (Doc. 92, ¶ 376).

Plaintiffs allege that Bader, a teacher's aide at Fairfield Intermediate School, witnessed Minor Student 2 push and slap Emilie in the face in gym class. (Doc. 92, ¶¶ 50-55). Plaintiffs allege that Bader failed to investigate the incident, impose any discipline, or report the incident to Plaintiffs. (Doc. 92, ¶ 53).

Plaintiffs allege that Defendants failed to notify Martin, the Title IX coordinator/administrator for the Fairfield City School District, of the harassment and discrimination Emilie suffered on the basis of sex, and failed to conduct an investigation into this conduct. (Doc. 92, ¶ 543). Plaintiffs explain that Martin's failure to carry out his duties as Title IX coordinator/administrator lead to the violations of Emilie's constitutional rights.

Plaintiffs allege that Green, a guidance counselor, failed to offer Emilie counseling despite her knowledge of the bullying and other wrongs suffered by Emilie, including her knowledge that a Fairfield student had told Emilie to go kill herself. (Doc. 92, ¶¶ 554, 602). Plaintiffs also allege that Green failed to inform them of the "go kill yourself" statement. (Doc. 92, ¶ 603).

Plaintiffs allege that Cline and Muller, Assistant Principals of the Fairfield Intermediate School, received an email from Marc Olsen on January 30, 2014 explaining that Emilie had been subject to bullying, physical assault and cyberbullying. (Doc. 92, ¶ 57). Plaintiffs allege that Cline and Mueller took no action to investigate and did not impose discipline upon the students involved. (Doc. 92, ¶ 62-63).

Plaintiffs allege that Witness 1 reported the bullying to Madden, the Principal of the Fairfield Intermediate School. (Doc. 92, ¶ 249).

Construing the Second Amended Complaint in the light most favorable to Plaintiffs, the Court concludes that it is plausible that these Defendants' acts violated Plaintiffs' clearly established constitutional right. See Shively v. Green Local Sch. Dist. Bd. of Educ. , 579 F. App'x 348, 353 (6th Cir. 2014) (citing Heyne v. Metro. NashvillePub. Sch. , 655 F.3d 556, 562–63 (6th Cir. 2011) ). These allegations, if taken as true, support Plaintiffs' claim that Defendants Otten, Bader, Martin, Green, Cline, Muller, and Madden "knew about the ongoing student-on-student bullying and, given their positions of authority, were involved in making decisions regarding how it would be addressed." See id. Accordingly, the School Defendants' Motion to Dismiss is DENIED to the extent that it seeks to dismiss the claims against Defendants Otten, Bader, Martin, Green,...