J.S. v. Thorsen

• Decision Date: 25 February 2011
• Docket Number: Civil Action No. 2:10cv501.
• Parties: J.S., an infant who sues by his next friend and Mother, Deborah M. SIMPSON, Plaintiff,v.James D. THORSEN, both in his Official Capacity as Executive Director for Facilities and Maintenance for Suffolk Public Schools and in his Individual Capacity, and Terry Napier, aka Fred Die Teryl Napier, both in his Official Capacity as Assistant for Facilities and Maintenance for Suffolk Public Schools and in his Individual Capacity, and Suffolk City School Board, and Deran R. Whitney, Interim Superintendent for Suffolk Public Schools, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

766 F.Supp.2d 695

267 Ed. Law Rep. 602

J.S., an infant who sues by his next friend and Mother, Deborah M. SIMPSON, Plaintiff,

v.James D. THORSEN, both in his Official Capacity as Executive Director for Facilities and Maintenance for Suffolk Public Schools and in his Individual Capacity, and Terry Napier, aka Fred Die Teryl Napier, both in his Official Capacity as Assistant for Facilities and Maintenance for Suffolk Public Schools and in his Individual Capacity, and Suffolk City School Board, and Deran R. Whitney, Interim Superintendent for Suffolk Public Schools, Defendants.

Civil Action No. 2:10cv501.

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

Feb. 25, 2011.

David S. Bailey, Esq., for Plaintiff.Wendell M. Waller, Esq., for Defendant.

OPINION AND ORDER

MARK S. DAVIS, District Judge.

This matter is before the Court on a Motion to Dismiss Plaintiff's Amended Complaint brought by Defendants James D. Thorsen (“Thorsen”), Terry Napier (“Napier”), Suffolk City School Board (“School Board”) and Deran R. Whitney (“Whitney”), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. After examining the motion, associated briefs, and the Amended Complaint, the Court finds that oral argument would not aid in the decisional process. Fed.R.Civ.P. 78(b); E.D. Va. Loc. R. 7(J). Therefore, the matter is now ripe for decision and, for the reasons set forth below, Defendants' Motion to Dismiss is GRANTED IN PART and the case is REMANDED to the Circuit Court for the City of Suffolk for such additional proceedings as it may deem appropriate.

I. Facts and Procedural History

A. Facts ¹

1. J.S.' Sickness and the Condition of his School

At age five, in the fall of 2007, J.S. (“Plaintiff” or “J.S.”) began attending kindergarten at the Southwestern Elementary School (“School”), a public school in Suffolk, Virginia, operated by the Suffolk City School Board. Am. Compl. ¶ 9. At the time the Plaintiff began attending the School, no one working for Suffolk Public Schools had ever told him or his parents about any existing condition at the School, such as mold or moisture contamination, that might have been harmful to Plaintiff's health. Am. Compl. ¶ 12.

However, from Plaintiff's very first day at the School, he began experiencing sickness that would continue intermittently for the next several years. On that first day, the Plaintiff began vomiting in the classroom and was sent home—where he experienced no further vomiting and appeared to regain his health. Am. Compl. ¶ 13–15. However, once he returned to school several days later, he began to vomit and was sent home once again. Am. Compl. ¶ 16. Upon his return to school a second time, the Plaintiff “began a period of continuous illness ... including sinus infections, skin rashes,² watery eyes, ear infections, and repeated vomiting and coughing.” Am. Compl. ¶ 17. As a result, Plaintiff missed many days of school during the fall of 2007, and began seeing numerous doctors in an effort to diagnose the cause of his sickness. While the Plaintiff received several diagnoses from multiple sources, his symptoms continued in varying degrees of intensity. In fact, because of the constant vomiting at school, Plaintiff suffered “increasing pressure and ridicule from his classmates.” Am. Compl. ¶ 27. “By this time, Plaintiff was rarely able to complete a full week of school without being sent home.” Am. Compl. ¶ 26. Although the Plaintiff's condition improved over Christmas break, Am. Compl. ¶ 28, upon his return to School and throughout the second half of the 2007–2008 school year, Plaintiff's sickness continued. While school employees were allegedly aware of Plaintiff's condition, none of them offered Plaintiff's Mother (“Simpson”) an explanation. Am. Compl. ¶ 31.

At the end of the 2007–2008 school year, Plaintiff was diagnosed with asthma. Additionally, skin testing revealed that the Plaintiff had an allergic response to mold. Am. Compl. ¶ 39. As a result, the Amended Complaint mentions that Simpson asked an employee of the School District about the environmental conditions of the School. According to the Amended Complaint, on June 23, 2008, Simpson asked Mr. Wheeler (“Wheeler”), a maintenance person at the School, “about conditions in the school, and directly about mold.” Am. Compl. ¶ 41. Wheeler replied that “[mold] [has] been a problem at the school for over two years” and his helper has been sick all year. Id. Further, Wheeler stated that he hoped J.S. would get better. Id. J.S.' health did in fact improve dramatically during the summer. Am. Compl. ¶ 42.

However, the new school year brought a return of Plaintiff's symptoms. By September 15, his sinus infection, vomiting and rash had re-emerged in full force. Am. Compl. ¶ 43–45. These sicknesses continued throughout the fall of 2008, and Simpson continued to ask School officials about the building's condition. During this time, Simpson allegedly discovered that other teachers had expressed concerns about mold. Am. Compl. ¶ 46. On October 14, 2008, Simpson attempted to talk to the School principal about mold testing, Am. Compl. ¶ 48–49, and she was eventually told mold testing would be performed. Am. Compl. ¶ 49.

On October 16, 2008, Simpson learned that people dressed in protective clothing had entered Plaintiff's classroom and replaced/repaired parts underneath the sink, cleaned or replaced cabinet materials around the sink, and eventually replaced the carpet. Am. Compl. ¶ 50. She later received an email from Plaintiff's teacher stating that “the mold report came back today and my room [Plaintiff's classroom] is mold free.” Am. Compl. ¶ 51. Simpson alleges, upon information and belief, that this mold sample was taken by Napier, the Assistant for Facilities and Maintenance for Suffolk Public Schools, who has no formal training in mold sampling, after the room had already been cleaned and repaired. Am. Compl. ¶ 52. Effectively, she alleges that the cleaning was done in an attempt to “present an altered air sample result,” by taking the sample after the room had been cleaned. Id. She further alleges that this “fraudulent sampling is part of a pattern or practice employed by Mr. Napier and others in the School maintenance department to hide mold problems and the underlying excessive moisture conditions that cause such mold problems.” Am. Compl. ¶ 53.

Plaintiff continued to attend the School for the remainder of the fall of 2008, and his symptoms did not abate. Am. Compl. ¶ 55. Finally, in January 2009, Plaintiff was conclusively diagnosed with an allergy, not an infectious disease. Am. Compl. ¶ 56. When Simpson went to the School to drop off a letter explaining this diagnosis, she noticed trucks at the School with the names “Marine Chemist” and “Atlantic Environmental.” Am Compl. ¶ 57. Inside the School, she observed several rooms blocked off with plastic barriers, as well as “heavy black mold growths on the grout between the cinder block walls in the hallway, black growths around the windows in the cafeteria, and growths around the sinks, pipes and baseboard in the girl's bathroom.” Id.

In September 2009, Plaintiff started his third year at the School. At that time, Simpson noticed a brand new, bright and clean air conditioning unit in Plaintiff's classroom. Am. Compl. ¶ 60. Additionally, near that time, Simpson asked Wheeler whether the School got “the mold under control over the summer,” to which he replied, “I have been cleaning the school all summer. If anything comes of the mold, my job is on the line.... The mold is in the duct work and I can't do anything about the duct work.” Am. Compl. ¶ 61. Later in September, 2009, Simpson noticed that the once bright air conditioning unit in Plaintiff's classroom now had “black and green growths all around the vents.” Am. Compl. ¶ 62.

On or about October 22, 2009, a doctor confirmed that Plaintiff had a mold allergy and that the School was the source of mold exposure. Am. Compl. ¶ 65. This doctor also prepared a letter for Simpson to bring to the School, requesting a transfer to a different school in the district. Am. Compl. ¶ 66. On October 29, 2009, Simpson delivered this letter to Plaintiff's teacher, the guidance counselor, and the School nurse (who allegedly implied that she had no knowledge of Plaintiff's injury).³ Am. Compl. ¶ 67. Simpson next met with the School principal, Ms. Harrell, who allegedly told her that she did not know anything about mold or Plaintiff's mold allergy. However, according to the Amended Complaint, Ms. Harrell had signed a mold test request form approximately a year earlier at Simpson's request. Am. Compl. ¶ 69. Ms. Harrell also said that Simpson would need to contact Kevin Alston, the Assistant Superintendent of Suffolk City Schools, regarding any request to transfer Plaintiff's school or additional mold testing. Am. Compl. ¶ 70.

On January 8, 2010, Mr. Alston informed Simpson that he would have the room tested again. Am. Compl. ¶ 75. Later that afternoon, when Simpson went to the School, she noticed the “overwhelming odor of bleach.” ⁴ Am. Compl. ¶ 77. She also observed that the air conditioning unit had been cleaned, the hallways were “nice and white,” and a gentleman was cleaning one of the bathrooms. Am. Compl. ¶ 77.

On February 12, 2010, Mr. Alston informed Simpson, by letter, that Mr. Thorsen, the Executive Director of Facilities and Maintenance, had contracted with Marine Chemist Service, Inc. to perform mold testing at the School. Am. Compl. ¶ 78. The letter also stated that the “Marine Chemist report came back with lower mold numbers inside the building than outside” and therefore “he was denying the Simpson request to receive an education outside of the assigned zone.” Am. Compl. ¶ 79. According to the Amended Complaint, this mold report stated that the samples had been taken by the “customer.” Am. Compl. ¶ 80. The Plaintiff believes that this “customer” was Napier, who took the sample after the bleach cleanup....