Orr v. Ferebee, 1:16-cv-02610-RLY-DML
Decision Date | 27 April 2017 |
Docket Number | 1:16-cv-02610-RLY-DML |
Parties | MOTIQUE ORR, for next friend and minor son, T.M., Plaintiff, v. LEWIS D. FEREBEE, in his official capacity, INDIANAPOLIS PUBLIC SCHOOLS, and TERRY GEMMECKE, Defendants. |
Court | U.S. District Court — Southern District of Indiana |
Defendants, Lewis D. Ferebee, in his official capacity, and the Indianapolis Public Schools ("IPS"), move to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted. For the reasons set forth below, the court GRANTS their motion.
Plaintiff, Motique Orr, is the mother of T.M., who at the time of the alleged events, was a sixth grade special needs student at IPS Anna Brochhausen School 88. . She alleges that on May 26, 2016, T.M.'s teacher, co-defendant Terry Gemmecke, choked him, hit his head against a wall, and dragged him down a hallway by the neck. (Id. ¶ 14). The department of child services report attached to the complaint indicates Gemmecke was escorting T.M. to the "BAC" area of the school after T.M. got into a confrontation with another student. (Id., Ex. A at 2). Later that day, Plaintiff learned of the incident through a therapist at the school, and met with IPS' 88 staff and police "to protest the action." (Id. ¶ 19).
Lewis D. Ferebee, the Superintendent of IPS, is sued in his official capacity. (Id. ¶ 3). Count I, asserted against him, alleges that Indiana Code § 20-33-8-8(b) is unconstitutional under the Indiana Constitution. (Id. ¶¶ 23-24). Count II alleges IPS failed to train its employees and/or maintained an unlawful policy, practice, custom, or procedure permitting physical violence to be inflicted on T.M. (Id. ¶ 26). The Complaint also alleges IPS had no written policy barring its employees from using physical violence against students nor a procedure "as to how to implement or not implement physical violence" or for determining for which infractions such violence was permissible. (Id. ¶ 9). In Count III, IPS is sued in tort for the actions of its employee, Gemmecke. (Id. ¶¶ 29-30). In addition to monetary damages, Plaintiff seeks to have Indiana Code § 20-33-8-8(b) declared unconstitutional and an order enjoining enforcement of the statute. (Id., Prayer for Relief).
Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of claims for "failure to state a claim upon which relief may be granted." Fed. R. Civ. P. 12(b)(6). The purpose of a motion to dismiss is to test the legal sufficiency of the complaint, not the merits of the lawsuit. Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001). A court may grant a Rule 12(b)(6) motion to dismiss only if a complaint lacks "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint sufficient on its face need not give"detailed factual allegations," but it must provide more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. at 555. When resolving a motion to dismiss, the court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiff. See Yeksigian v. Nappi, 900 F.2d 101, 102 (7th Cir. 1990).
Defendants first move to dismiss Plaintiff's official capacity claims against Superintendent Ferebee because it is redundant of her claim against IPS. "Actions against individual defendants in their official capacities are treated as suits brought against the government entity itself." Walker v. Sheahan, 526 F.3d 973, 977 (7th Cir. 2008) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991)). Thus, when, as here, the entity is also named, the official capacity claim is redundant and subject to dismissal. Burreson v. Barneveld Sch. Dist., 434 F.Supp.2d 588, 593 (W.D. Wis. 2006) (). Although the official capacity claims in Walker and Sheahan concerned claims brought under 42 U.S.C. § 1983 and not state constitutional claims, the result under Indiana law is the same. Harp v. Ind. Dep't of Highways, 585 N.E.2d 652, 660-61 n.5 (Ind. Ct. App. 1992) ( ). Accordingly, Defendants' motion to dismiss Superintendent Ferebee as a defendant is GRANTED.
In Count I of her Complaint,1 Plaintiff alleges Indiana Code § 20-33-8-8(b) violates multiple provisions of the Indiana Constitution, including: Article I, Section 11 ( ), Section 12 ( ), Section 16 ( ), and Article 8, Section 1 ( ). (Compl. ¶ 24). Section 8(b) reads:
Plaintiff seeks both monetary damages and injunctive relief barring its enforcement.
Indiana "has no statutory provision comparable to 42 U.S.C. § 1983 creating an explicit civil remedy for constitutional violations by either individual officers orgovernmental entities." Cantrell v. Morris, 849 N.E.2d 488, 493 (Ind. 2006). Thus, Indiana courts hold that the Indiana Constitution does not create a private right of action for damages when existing tort law amply protects the right guaranteed by the Indiana Constitution. Id. at 506-07; accord Smith v. Ind. Dep't. of Corr., 871 N.E.2d 975, 985 (Ind. Ct. App. 2007) (). Relying on the Indiana Supreme Court's Cantrell decision, courts in this district have declined to find a private right of action for alleged violations of various provisions of the Indiana Constitution, including the ones cited in Plaintiff's Complaint. See Greater Indianapolis Chapter of N.A.A.C.P. v. Ballard, 741 F. Supp. 2d 925, 934 (S.D. Ind. 2010) ( ); Milan v. City of Evansville, No. 3:13-cv-1-WTL-WGH, 2013 WL 5592450, at *4 (S.D. Ind. Oct. 10, 2013) ( ); Hendrix v. Plambeck, No. 1:09-cv-99-SEB-DML, 2010 WL 3526267, at *10 (S.D. Ind. Sept. 2, 2010) (same). Furthermore, "Indiana's Education Clause, Article 8, Section 1, does not provide an individual with a private right of action for monetary damages." Hoagland v. Franklin Township Comty. Sch. Corp., 27 N.E.3d 737, 740-41 (Ind. 2015). Accordingly, Defendants' motion to dismiss Plaintiff's claims for damages under the Indiana Constitution alleged in Count I is GRANTED.
In addition, Plaintiff seeks an order enjoining enforcement of the statute.Defendants argue the statute is not one that is "enforced" by school corporations. Instead, it gives schools the authority to discipline students as necessary to fulfill their educational function.
Few Indiana cases cite to this statute, and when they do, it is to explain the legal relationship between schools and their students regarding matters of student conduct and school discipline. For example, in Linke v. Northwest Sch. Corp., 763 N.E.2d 972 (Ind. 2002), the Indiana Supreme Court cited the former version of the statute to reject the plaintiff's Article I, Section 11 (search and seizure) challenge to a school's random drug testing policy for students participating in athletics and extra-curricular activities. Id. at 979. In holding a student's privacy interest is not accorded the same level of protection as that of an adult, the Court noted, "[P]ublic schools stand in the relation of parents and guardians to the students . . . regarding [all] matters of discipline and conduct of students." Id. (quoting Higginbottom v. Keithley, 103 F.Supp.2d 1075, 1080 (S.D. Ind. 1999) (internal citations omitted)). See also Penn-Harris-Madison Sch. Corp. v. Joy, 768 N.E.2d 940, 947 (Ind. Ct. App. 2002) (). Given the plain language of the statute and the relevant case law, the court agrees with the Defendants; the statute is not one which may be "enforced." Consequently, there is nothing to enjoin. Therefore, Plaintiff's claim barring enforcement of Indiana Code § 20-33-8-8(b) as unconstitutional is not a claim upon which relief can be granted. Accordingly, Defendants' motion to dismiss Plaintiff's claim for injunctive relief is GRANTED.
In Count II, Plaintiff alleges that IPS failed to train its employees and/or maintains an unlawful policy or practice of permitting physical violence against students in violation of the Indiana State Constitution and the Fourth Amendment. (Compl. ¶ 26). Plaintiff's claim for damages under the Indiana Constitution must be dismissed for the same reasons set forth above.
Plaintiff's Fourth...
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