Niziol v. Pasco County Dist. School Bd., No. 8:01CV2147T27MSS.

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtScriven
Citation240 F.Supp.2d 1194
Docket NumberNo. 8:01CV2147T27MSS.
Decision Date09 August 2002
PartiesTed Anthony NIZIOL and Annette Niziol, Plaintiffs, v. DISTRICT SCHOOL BOARD of PASCO COUNTY, Florida; Arthur O'Donnell; Bob White; and Joe Little, Defendants.
240 F.Supp.2d 1194
Ted Anthony NIZIOL and Annette Niziol, Plaintiffs,
DISTRICT SCHOOL BOARD of PASCO COUNTY, Florida; Arthur O'Donnell; Bob White; and Joe Little, Defendants.
No. 8:01CV2147T27MSS.
United States District Court, M.D. Florida, Tampa Division.
August 9, 2002.

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Wendolyn S. Busch, Janette Meredith Wester, Mechanik, Nuccio, Bentley, Williams & Hearn, P.A., Lutz, FL, for Ted Anthony Niziol, Individually and as personal representative of the estate of Ted Anthony Niziol, II, deceased, plaintiff.

Joe A. McClain, Dennis J. Alfonso, McClain & Alfonso, P.A., Dade City, FL, for Pasco County District School Board, defendant.

D. Andrew DeBevoise, Thomas W. Poulton, Kathleen Ann Meagher Krak, DeBevoise & Poulton, P.A., Winter Park, FL, for Bob White, Sheriff of Pasco County, Florida, in his official capacity, defendant.

Charles P. Campbell, Jr., Shumaker, Loop & Kendrick, Tampa, FL, for WTSTV, movant.


SCRIVEN, United States Magistrate Judge.

This cause came on for consideration of Motion to Dismiss by Sheriff White and Corporal Little (Dkt.3), Motion to Dismiss by Defendants District School Board and Arthur O'Donnell (Dkt.6), Motion for Qualified Immunity Protective Order or Stay of Discovery by Defendant Corporal Little (Dkt.8) and Motion for Qualified Immunity Protective Order or Stay of Discovery by Defendant Arthur O'Donnell (Dkt.9). The Undersigned held oral argument on the above motions on May 9, 2002. Notices of supplemental authority citing recent Supreme Court law were filed by Defendants on June 24, 2002, (Dkts. 24 & 25) and July 1, 2002, (Dkt.26).


Plaintiffs, Ted Niziol and Annette Niziol, individually and as Personal Representatives of the Estate of their deceased son Ted Anthony Niziol, II ("Mr.Niziol"), filed a 10-count complaint on January 4, 2001. This complaint arises from a tragic incident that occurred on January 19, 2000, when Mr. Niziol, a student at Ridgewood High School in Pasco County, was killed with a handgun that he brought onto the school campus. Specifically, Plaintiffs allege

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1) a Violation of the Gun-Free Schools Act against The District School Board of Pasco County, Florida (Count I); 2) a Violation of the Gun-Free Schools Act against Principal Arthur O'Donnell (Count II); 3) a Denial of Substantive Due Process against Bob White, Sheriff of Pasco County (Count III); 4) a Denial of Substantive Due Process against School Resource Officer Corporal Joe Little (Count IV); 5) a Denial of Procedural Due Process against Bob White, Sheriff of Pasco County (Count V); 6) a Denial of Procedural Due Process against Corporal Joe Little (Count VI); 7) a Claim of Wrongful Death against The District School Board of Pasco County (Count VII); 8) a Claim of Wrongful Death against Bob White, Sheriff of Pasco County (Count VIII); 9) a Claim of Wrongful Death against Principal Arthur O'Donnell (Count IX); and 10) a Claim of Wrongful Death against Corporal Little (Count X). The facts alleged to support these counts are as follows:

On the morning of January 19, 2000, prior to the first period of the school day, Mr. Niziol informed his friend Andrew Enerson, also a student at the school, that he had a .22 caliber handgun in his car. Another student, Samantha Lang, also learned from Mr. Niziol about the handgun and was afraid that the gun might be sold to another student named Marty who would use the gun to kill Lang's boyfriend Enerson. Long wrote a note to Mr. Niziol during first period that stated: "Hi Teddy. So what is this crap about you selling Marty a gun b/c if I get shot I'm gonna be mad. Also what does he need for to shoot Andrew n e-ways." Mr. Niziol replied on the face of the note "I'm not selling Marty a gun. I'm trying to sell it to Joey."

Lang gave the note to Enerson, and Enerson handed the note to his second period teacher Danita Williams and asked to be excused from class to report the note to the principal, Defendant O'Donnell. Williams showed the note to another teacher, Jennifer Apel, and asked Apel to watch her class so she could go with Enerson to the principal's office. Williams and Enerson delivered the note to principal O'Donnell around 9:10 a.m. and O'Donnell read the note. While O'Donnell was discussing the note with Enerson, Defendant Corporal Joe Little ("Cpl. Little"), Ridgewood High's School Resource Officer, came into O'Donnell's office, but O'Donnell did not inform Cpl. Little about the note or the gun. Rather, O'Donnell kept the note and told Enerson that he would handle the matter and that Enerson should return to class.

That same morning, Enerson's parents came to the school for a previously scheduled meeting with the school guidance counselor, Glenn Cable. Enerson informed his parents about the situation and told them that he was afraid for his life. Enerson's parents discussed the matter with the counselor. The counselor told Enerson's parents that he would speak with principal O'Donnell and Cpl. Little about the situation. Enerson's parents requested that their son be released from school, but Enerson told his parents and the counselor that he did not want to leave because it would appear suspicious to his peers and they might assume he had informed school officials about the situation.

At about 11:00 a.m., the counselor saw Cpl. Little in the school cafeteria and told him about the situation. The counselor identified Lang, Enerson and another student, Steven Moschella, to Cpl. Little in the cafeteria. Cpl. Little told the counselor that he would handle the situation.

At some point during the morning (the complaint does not specify time), the note was placed on Cpl. Little's desk. At about 12:30 p.m. Cpl. Little met with principal O'Donnell to discuss the situation. At about 1:15 p.m., Cpl. Little questioned the

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student referred to as "Joey" in the note. Joey denied any knowledge about the gun. Cpl. Little did not question Mr. Niziol, Lang, Enerson, or Mosehella, and no other students were interviewed by any of the school officials.

At about 1:00 p.m., Cpl. Little's assistant, Rupal Patel, also a student at the school and a friend of Mr. Niziol's, reviewed the note that he found lying on Cpl. Little's desk. Patel saw Mr. Niziol in the hallway between classes and told him that Cpl. Little had a note on his desk with Mr. Niziol's name on it that talked about a gun being in Mr. Niziol's car. Mr. Niziol then ran to the parking lot, removed the gun from his car, hid it in the bushes on school property nearby, and returned to his last class.

At about 2:00 p.m., Mr. Niziol met his sister, Nicolette Niziol, and three other students in the parking lot. Mr. Niziol retrieved the gun from its hiding place and the five students got into Mr. Niziol's car. His sister sat in the front seat and Mr. Niziol sat in the driver's seat. Another student, Kristofer Kirby, approached the car as it sat idling. At about 2:10 p.m., Steven Mosehella, who was sitting in the back seat of the car directly behind Mr. Niziol, picked up the gun to show it to Kirby and the gun discharged. A bullet fired from the gun, pierced the driver's seat and entered Mr. Niziol's body. Mr. Niziol exited the car and collapsed on the pavement in the parking lot. He died approximately one hour later at North Bay Hospital in New Port Richey, Florida. Mr. Niziol's parents brought suit in this Court seeking redress against the school board, school officials and Sheriff office employees for the loss of their son. The Defendants have moved to dismiss for failure to state a claim for which relief can be granted.

On these pleadings it should be noted at the outset that this Court is not being called upon to consider whether the circumstances presented by these facts were tragic. Anyone viewing them would have to concede that they were. Nor is the Court being asked on these motions to consider simply who is to blame for this tragedy. Indeed, there is blame enough to share. Rather, the distinct and, therefore, limited inquiry presented here is whether federal remedies under the Constitution of the United States and/or federal statutory law have been properly invoked by these pleadings. It has been astutely observed that the presence of laws does not guarantee remedies for every wrong. For the reasons that follow, the Court finds that axiom apropos of these pleadings insofar as the federal remedies sought by Plaintiffs are concerned.1 No constitutional claim or federal statutory claim can be sustained on Plaintiffs' complain as pled.


In ordering this dismissal, the Court is mindful that it cannot dismiss a complaint unless it appears, "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). To survive a motion to dismiss, a plaintiff may not merely "label" his or her claims. See Blumel v. Mylander, 919 F.Supp. 423, 425 (M.D.Fla.1996). At a minimum, the Federal Rules of Civil Procedure require a "short and plain statement of the claim" that "will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests." Conley, 355 U.S. at 47, 78 S.Ct. 99 (quoting Fed. R.Civ.P. 8(a)(2)).

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In deciding a motion to dismiss, the court can only examine the four (4) corners of the complaint. See Rickman v. Precisionaire, Inc., 902 F.Supp. 232 (M.D.Fla. 1995). The threshold sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low. See Ancata v. Prison Health Serv., Inc., 769 F.2d 700, 703 (11th Cir.1985) (citation omitted). In addition, a court must accept the plaintiffs well pled facts as true and construe the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); ...

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