O'Hayre v. Board of Educ. Jefferson School Dist.

• Decision Date: 18 August 2000
• Docket Number: No. CIV.A.99-B-2101.,CIV.A.99-B-2101.
• Citation: 109 F.Supp.2d 1284
• Parties: Timothy O'HAYRE, individually and on behalf of M.O., a minor, and S.O., a minor, Plaintiffs, v. BOARD OF EDUCATION FOR JEFFERSON COUNTY SCHOOL DISTRICT R-1, Tom Dimit, in both his individual and official capacities, Jill Colby, in both her individual and official capacities, Karen Gabe, in both her individual and official capacities, Kirsten Puttkammer, in her individual capacity, Michael Moler, in his individual capacity, and Julie Brooks, in her individual capacity, Defendants.
• Court: U.S. District Court — District of Colorado

109 F.Supp.2d 1284

Timothy O'HAYRE, individually and on behalf of M.O., a minor, and S.O., a minor, Plaintiffs, v. BOARD OF EDUCATION FOR JEFFERSON COUNTY SCHOOL DISTRICT R-1, Tom Dimit, in both his individual and official capacities, Jill Colby, in both her individual and official capacities, Karen Gabe, in both her individual and official capacities, Kirsten Puttkammer, in her individual capacity, Michael Moler, in his individual capacity, and Julie Brooks, in her individual capacity, Defendants.

No. CIV.A.99-B-2101.

United States District Court, D. Colorado.

August 18, 2000.

COPYRIGHT MATERIAL OMITTED

John W. McKendree, Elizabeth Kelly, Law Offices of John W. McKendree, Denver, CO, for Plaintiff.

Steven J. Dawes, Griffiths, Tanoue & Light, P.C., Denver, CO, M. Gwyneth

Whalen, Julie A. Tishkowski, Caplan and Earnest LLC, Boulder, CO, Jeffrey I. Sandman, Stanford Place II, Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

BABCOCK, Chief Judge.

Plaintiffs Timothy O'Hayre, M.O., and S.O. (collectively "Plaintiffs") bring fourteen claims under 42 U.S.C. § 1983, 20 U.S.C. § 1400, 29 U.S.C. § 794, 29 U.S.C. § 701, and state law torts. The Jefferson County School Board ("School Board"), Tom Dimit, Jill Colby, and Karen Gabe move to dismiss under Fed.R.Civ.P. 12(b)(6). Oral argument would not aid my resolution of these matters. Having the benefit of the briefs to construe properly the claims in question, and for the following reasons, I deny Defendants' motion to dismiss as moot, and grant Defendants' motion to dismiss Plaintiffs' second amended verified complaint in part. Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1331.

I. Background

The following facts are taken from Plaintiffs' complaint. M.O. and S.O. are fifteen year-old fraternal twins. Timothy O'Hayre is their father. Both twins attend Golden High School, part of the Jefferson County School District. Both twins were diagnosed in elementary school with disabilities, including Perceptual-Communicative disability and Attention Deficit Hyperactivity Disorder. Individual Education Plans ("IEPs") were developed for each child pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq.

Tom Dimit, Jill Colby, and Karen Gabe are employees of the School District and members of each twin's IEP Team. Mr. O'Hayre is also a member of these Teams. All Defendants work at Golden High School. Mr. Dimit is the Principal, Ms. Colby is the Vice-Principal, and Ms. Gabe is the Director of Intervention Services.

Plaintiffs allege that Defendants have harassed and discriminated against the twins as a result of the twins' disabilities. They allege false and pretextual criminal actions, misuse of IEP meetings, hypervigilant scrutiny by school officials, and unwarranted suspension, detention, segregation, and expulsion. They also allege an incident of assault on S.O. by Mr. Dimit. Plaintiffs have pursued a variety of administrative appeals.

Defendants moved to dismiss. I then granted Plaintiffs' motion to file a second verified amended complaint. Defendants move to dismiss this second complaint.

II. Motion to Dismiss

Under Rule 12(b)(6), a district court may dismiss a complaint for failure to state a claim upon which relief can be granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). If the plaintiff has pled facts that would support a legally cognizable claim for relief, a motion to dismiss should be denied. See id. In evaluating a 12(b)(6) motion to dismiss, "all well-pleaded factual allegations in the amended complaint are accepted as true and viewed in the light most favorable to the nonmoving party." Sutton v. Utah State Sch. for Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir.1999).

Fed.R.Civ.P. 12(b)(6) does not provide a procedure for resolving a contest about the facts or merits of the case. Thus, one must read Fed.R.Civ.P. 12(b)(6) in conjunction with Fed.R.Civ.P. 8(a), which sets forth the requirements for pleading a claim in federal court. Fed.R.Civ.P. 8(a) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." The statement need not contain detailed facts, but it must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 47, 78 S.Ct. 99. A plaintiff is not required to state precisely each element of the claim. 5 Charles A. Wright and Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1216, at 154-59 (1990). Nonetheless, a plaintiff must "set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988).

Defendants have attached copies of administrative orders to their motion to dismiss. Plaintiffs argue this converts the Rule 12(b)(6) motion into a Rule 56 motion. I disagree. Rule 12(b) provides that if matters "outside the pleading" are presented to and not excluded by the court, it should treat the motion to dismiss as one for summary judgment. Rule 12(b); see Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972); Foremaster v. City of St. George, 882 F.2d 1485, 1491 (10th Cir.1989). Failure to convert a motion to dismiss so postured to a motion for summary judgment under Rule 56 is reversible error. See Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991). However, if a plaintiff does not attach a document to the complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, "a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss." See GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997). Here, the attached documents are orders from Plaintiffs' administrative appeals. Because the Defendants' attachments refer exclusively to those documents referenced in the Complaint and are central to the Plaintiffs' claims, I address all issues under the 12(b)(6) standard.

I. 42 U.S.C. § 1983 Claims

Plaintiffs bring five claims under 42 U.S.C. § 1983, three of which relate to these defendants: violation of the Fourteenth Amendment against Mr. Dimit and the School Board; abuse of IEP process under the IDEA against Mr. Dimit, Ms. Gabe, and the School Board; and conspiracy against Mr. Dimit, Ms. Colby, Ms. Gabe, and the School Board. Defendants move to dismiss all three.

A. Violation of the Fourteenth Amendment

Mr. Dimit and the School Board argue Plaintiffs' first claim for relief, violation of the Fourteenth Amendment, fails to state a claim upon which relief can be granted. I agree.

Section 1983 of the Civil Rights Act provides that "Every person who, under color of any statute, ordinance, regulation, custom, or usage, ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ...." 42 U.S.C. § 1983. Section 1983 provides a remedy for violations of federal constitutional or statutory rights. Tafoya v. Adams, 816 F.2d 555, 558 n. 5 (10th Cir.), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 108 (1987).

The Fourteenth Amendment protects citizens from the deprivation of "life, liberty, or property, without due process of law ...." U.S. Const. amend. XIV, § 1; "[S]ubstantive due process ... guarantees that the state will not deprive a person of those rights for an arbitrary reason regardless of how fair the procedures are that are used in making the decision." Archuleta v. Colorado Dep't of Insts., 936 F.2d 483, 490 (10th Cir.1991) (citations omitted).

A state is not required to provide its citizens with "particular protective services" under the Due Process Clause, and "failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). However, if the state restrains an individual's freedom to act to protect himself or herself through a restraint on that individual's personal liberty, the state may thereby enter into a "special relationship" during such restraint, requiring it to protect that individual from violent acts inflicted by others. "In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf — through incarceration, institutionalization, or other similar restraint of personal liberty — which is the `deprivation of liberty' triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means." Armijo By and Through Chavez v. Wagon Mound Pub. Schs., 159 F.3d 1253, 1261 (10th Cir. 1998) (citations omitted).

The Tenth Circuit has held that a plaintiff must show involuntary restraint by the government official in order to establish a duty to protect under the special relationship theory. See id. (citations omitted). It has further held that schools have no duty under the Due Process Clause to protect students from assaults by other students, even where the school knew or should have known of the danger presented. See Graham v. Independent Sch. Dist. No. I-89, 22 F.3d 991, 994-95 (10th Cir.1994). Compulsory attendance laws for public schools do not create an affirmative constitutional duty to protect students from the private actions of third parties while they attend school. See id. (citing Maldonado v. Josey, 975 F.2d 727, 732 (10th Cir.1992), cert. denied, 507 U.S. 914, 113 S.Ct. 1266, 122 L.Ed.2d 662 (1993)). Inaction by the state, in the face of a known...