Montoya v. Española Pub. Sch. Dist. Bd. of Educ.
| Decision Date | 29 April 2013 |
| Docket Number | No. CV 10-651 WPJ/LFG,CV 10-651 WPJ/LFG |
| Parties | Sandra Montoya, on Behalf of her Minor Child, S.M., et al., Plaintiffs, v. Española Public School District Board of Education, et al., Defendants. |
| Court | U.S. District Court — District of New Mexico |
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THIS MATTER comes before the Court upon a Motion to Dismiss Third Amended Complaint filed by Plaintiff S.M., filed on April 20, 2012 by Defendants Española Public School District Board of Education, Dorothy Sanchez, Devanna Ortega, Lewis Johnson, and Dennis Gallegos ("School Defendants" or "Defendants") (Doc. 245). Having reviewed the parties' briefs and applicable law, I find that Defendants' Motion is well taken and is GRANTED with regard to Plaintiff's Fourteenth Amendment Substantive Due Process claim in Count 7, including claim for injunctive relief; Fourth Amendment unlawful seizure claim in Count 9; First Amendment retaliation claim in Count 11, Monell claim in Count 12, and claims for injunctive relief alleging violations of the New Mexico state constitution in Count 5. The Court declines to rule on Plaintiff's negligence claim in Count 3 for reasons stated below.
Plaintiffs are students who were enrolled at either Española Valley High School or Carlos Vigil Middle School in north-central New Mexico. The Third Amended Complaint (Doc. 196), brought by the students' parents, seeks class certification pursuant to Fed. R. Civ. P. 23(b)(2), and alleges negligence, third-party beneficiary claims of breach of contract and breach of implied contract, and violations of various rights under the New Mexico and United States Constitutions. Plaintiffs allege that the school administration is apathetic about school safety, and that Defendants have created a dangerous environment for students, and have taken little or no action to prevent attacks on students by other students.
Plaintiff S.M. alleges the following claims in the Third Amended Complaint: Negligence brought under the New Mexico Tort Claims Act, NMSA 1978, §§ 41-4-1, et seq. ("Tort Claims Act"), asserted in Count 3 against the Española Public School District Board of Education ("Board of Education"); Fourteenth Amendment substantive due process claim in Count 7 asserted against all School Defendants; Fourth Amendment unlawful seizure asserted in Count 9 against all School Defendants; First Amendment retaliation claim asserted in Count 11 against the individual School Defendants; and a municipal liability claim brought under Monell v. Dept of Soc. Servs. of City of N. Y., 436 U. S. at 694 (1978). The School Defendants seek dismissal of these claims.
The facts concerning Plaintiff S.M. are related to confiscation of a cell phone, although no facts are given with respect to whether the cell phone belonged to Plaintiff, or whether she was hiding it for someone else.
Plaintiff is a 13 year-old-female student who alleges that in January 2010, Eva Herrera, secretary to the school counselor and Defendant Geraldine Martinez entered her math class and removed her from class. Martinez and Herrera escorted Plaintiff to a bathroom where Plaintiff was told to remove her bra and shirt. S.M. took off her sweater, but refused to remove more clothing. Martinez and Herrera asked her to take off her shirt four more times, but S.M. refused. Finally, Martinez and Herrera threatened S.M. with a strip search if S.M. did not turn over her cell phone. S.M. then turned over her cell phone. TAC ¶¶ 35-46. S.M. called her mother, Sandra Montoya, after the incident, and Ms. Montoya complained about the incident to school personnel. In addition to alleging claims of unlawful seizure and due process violations, S.M. also alleges retaliation under the First Amendment because she "is now afraid to attend school and is afraid of retaliation from [Herrera and Martinez]." TAC ¶ 57.
In addition to complaining to school personnel, Ms. Montoya also went to the Española Police Department to file a complaint against Eva Herrera and Defendant Geraldine Martinez. A police report was filed, but Plaintiff claims no further steps were taken to resolve the matter "adequately." TAC ¶¶ 50-51.
Ms. Montoya arranged to have her daughter transferred out of Jennifer Lopez' Language Arts classroom when Ms. Lopez told S.M., The transfer caused S.M.'s schedule to become confused, and Ms. Montoya met with the school counselor, Leona Talachy, to correct her daughter's class schedule. While Ms. Montoya was in the counselor's office, Ms. Talachy called her secretary, Eva Herrera, on speaker phone and told her to make sure S.M. was excused for any absences due to her schedule. Ms. Herrera responded, "I don't want anything to do with that child, but if you tell me so." Ms. Montoya reported Ms. Herrera's statement to Defendant Lewis Johnson, the principal, and DefendantDennis Gallegos, the assistant principal, both who failed to take any corrective action.
S.M. claims that she is now is afraid to attend school and is afraid of retaliation from Ms. Herrera and the security guard Defendant Martinez. She is depressed, anxious and feels unsafe at school; suffers from P.T.S.D. as a result of the incident; has severe nightmares resulting in bedwetting. Plaintiff's claims against the School Defendants are premised on allegations that the Defendants took no disciplinary action against either Herrera of Defendant Geraldine Martinez for threatening an unlawful strip search; and that Defendants failed to adequately supervise or discipline the security guards.
Defendants raise the defense of qualified immunity. Qualified immunity shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Once a defendant pleads qualified immunity, the burden shifts to the plaintiff to show both that the defendant's alleged conduct violated the law and that that law was clearly established when the alleged violation occurred. Anderson v. Creighton, 483 U.S. 635, 640 (1987). A right is clearly established "if [t]he contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. The challenged action need not have been previously declared unlawful, but its unlawfulness must be evident in light of existing law. Beedle vs. Wilson, 422 F.3d 1059 (10th Cir. 2005). This is generally accomplished when there is controlling authority on point or when the clearly established weight of authority from other courts supports plaintiff's interpretation of the law. Id.
The Court applies the same standard in evaluating the merits of a motion to dismiss inqualified immunity cases as to dismissal motions generally: a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court must accept as true all well pleaded facts, as distinguished from conclusory allegations, and those facts must be viewed in the light most favorable to the non-moving party. Shero v. City of Grove, Okl., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Twombly, 550 U.S. 544). The complaint must plead sufficient facts, taken as true, to provide plausible grounds that discovery will reveal evidence to support the plaintiff's allegations. Id.
Plaintiff requests that the Court deny the motion to dismiss, and in the alternative, convert the motion into a summary judgment motion and allow Plaintiff an opportunity to conduct limited discovery pursuant to Fed.R.Civ.P. 56(d). The alternative requested by Plaintiff is denied. The Court has already found Plaintiff's Rule 56(d) affidavit to be deficient. See Docs. 326 & 328. In addition, the Court finds there is no need to convert this motion into a summary judgment motion, thereby rendering Plaintiff's alternative request moot.
The School Defendants seek dismissal of all claims asserted against them by Plaintiff S.M. Defendants filed a separate motion regarding the state constitution claims in Count 5 (Doc. 249), on which the Court has already ruled. In that Memorandum Opinion and Order, the Court ruled that the state constitutional claims for all Plaintiffs would be dismissed where the federal constitutional claims were dismissed. Doc. 334 at 7 (). Therefore, Plaintiff's claims of violations of the New Mexico state constitution will be dismissed on the condition that Plaintiff's federal claimsare dismissed.
In Count 7 of the TAC, Plaintiff S.M. alleges a § 1983 substantive due process claim, based on a danger creation theory only. See Doc. 281 at 13.1 To succeed on a "danger creation" theory, a plaintiff must establish: (1) the school district and its agents created or exacerbated the danger, (2) that she was a member of a limited, specifically defined group, (3) that a defendant's conduct put plaintiff at a substantial risk of serious, immediate, and proximate harm, (4) the risk was known and obvious, (5) the defendants actions were reckless, in conscious disregard...
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