Parris v. Bd. of Educ.
| Decision Date | 16 December 2022 |
| Docket Number | 1:22-cv-00087-MR-WCM |
| Parties | SUZAN MCKINNEY PARRIS, as Guardian Ad Litem for D.P., a minor, Plaintiff, v. CLEVELAND COUNTY BOARD OF EDUCATION; MARK PATRICK, in his individual capacity; and LATOSA WILBURN, in her individual capacity, Defendants. |
| Court | U.S. District Court — Western District of North Carolina |
1
SUZAN MCKINNEY PARRIS, as Guardian Ad Litem for D.P., a minor, Plaintiff,
v.
CLEVELAND COUNTY BOARD OF EDUCATION; MARK PATRICK, in his individual capacity; and LATOSA WILBURN, in her individual capacity, Defendants.
No. 1:22-cv-00087-MR-WCM
United States District Court, W.D. North Carolina, Asheville Division
December 16, 2022
MEMORANDUM AND RECOMMENDATION
W. CARLETON METCALF UNITED STATES MAGISTRATE JUDGE.
This matter is before the Court on the following motions which have been referred to the undersigned pursuant to 28 U.S.C. § 636 for the entry of a recommendation:
• Defendant Mark Patrick's Motion to Dismiss (Doc 10)
• Defendant Latosa Wilbourn's Motion to Dismiss (Doc. 12); and
• Defendant Cleveland County Board of Education's Motion to Dismiss Plaintiffs' Complaint (Doc. 16)
I. Relevant Procedural Background
On February 15, 2022, Suzan McKinney Parris (“Plaintiff”), as Guardian Ad Litem for DP, a minor, filed this action in the Superior Court of Cleveland County, North Carolina against the Cleveland County Board of Education (the “Board”), Mark Patrick, in his individual capacity (“Patrick”), and Latosa Wilburn, in her individual capacity (“Wilbourn”)[1] (collectively “Defendants”). Doc. 1-1.
On April 22, 2022, Patrick, with the consent of the Board and Wilbourn, removed the case to this Court. Doc. 1.
On May 12, 2022, Defendants filed the Motions to Dismiss along with supporting briefs. Docs. 10, 11, 12, 13, 16, and 17. Plaintiff subsequently responded in opposition. Docs. 21, 22, 23. Defendants have replied and Patrick has submitted a notice of supplemental authority, such that the Motions to Dismiss are ripe for ruling. Docs. 25, 26, 27, and 28.
II. Plaintiff's Allegations and Claims
In pertinent part, Plaintiff alleges as follows:
Plaintiff is the mother of DP who, at all relevant times, was a 13-year-old nonverbal middle school student with severe autism. Doc. 1-1 at ¶¶ 1, 16.
DP was in an Individualized Education Program (“IEP”) at North Shelby School (“North Shelby”). The IEP, which was created by North Shelby, required “a high level of close supervision, assistance, and prompting by trained school staff;” mandated that DP wear a helmet “during times of aggression to protect his head;” and indicated that DP did not respond well to physical touch. Id. at ¶¶ 17-19; 32.
The Board, through North Shelby, also created and implemented a Behavioral Intervention Plan (“BIP”) for DP. Id. at ¶ 20. The BIP required North Shelby to keep an accurate daily behavioral log for DP. Id. at ¶ 21
On or about May 23, 2019, DP injured his head on an exposed drainpipe on the playground. Id. at ¶ 24. He was not wearing his protective helmet at the time. Id. at ¶ 25.
Shortly thereafter, Plaintiff received a call from Patrick, the principal of North Shelby, who informed Plaintiff that DP had injured his head on the playground and that, in the opinion of the school nurse, the injury required stitches. Id. at ¶ 27. Patrick did not call for emergency medical services but told Plaintiff that she needed to come to the school and inspect DP's wound. Id. at ¶ 28. Plaintiff requested that EMS be called since she was 30 minutes away from the school, but Patrick disregarded her request. Id. at ¶¶ 29-30.
When Plaintiff arrived at North Shelby, she discovered “that DP had been restrained both mechanically via his desk, and physically by Patrick, for
thirty minutes....” Id. at ¶ 31. DP, due to his injury and having been restrained for an extended period, was extremely agitated. Id. at ¶ 32.
Subsequently, DP was transported via EMS to “the Emergency Department.” He required sedation during transport and further sedation when he arrived at the Emergency Department due to his agitated state. Id. at ¶¶ 35, 36. While there, he received treatment, including but not limited to staples to close the wound on his head, and continued sedation. Id. at ¶ 37.
On or about May 24, 2019, Plaintiff met with Patrick who informed Plaintiff that an internal investigation was underway and that he could not share any information regarding the circumstances of DPs injury. Id. at ¶ 38.
Plaintiff alleges that 21 days after DPs injury (presumably on or about June 13, 2019), Dr. Steven Fisher, the Superintendent of Cleveland County Schools, advised Plaintiff that DP was trying to run out of the playground when Wilbourn, who was a teacher's assistant, collided with him and caused him to fall backwards and strike his head. Id. at ¶ 42. Dr. Fisher also indicated that, “depending on what angle the incident was viewed from,” it might appear that Wilbourn had pushed DP. Id. at ¶ 43. In addition, Dr. Nelly Aspel, the Exceptional Children's Director of Cleveland County Schools, informed Plaintiff that the incident had been reported to law enforcement. Id. at ¶ 44.
On or about August 14, 2019, DP's teacher at North Shelby and two teacher's assistants were terminated, and Wilbourn was reassigned to a different class. Id. at ¶ 45.
On about August 24, 2019, Plaintiff requested a closed-door meeting with the Board to raise her concerns about the handling of DP's injury. Id. at ¶ 47.
On or about September 23, 2019, Plaintiff “was granted her request.” Id. Following the meeting,[2] Plaintiff learned that the police officer who had investigated the accident, “Officer Wampler,” was the husband of the human resources supervisor for Cleveland County Schools. Id. at ¶ 48.
Plaintiff spoke to “Sergeant Porter” and expressed her concerns regarding a potential conflict of interest. Id. at ¶ 50. Plaintiff was informed (presumably by Sergeant Porter) that North Shelby had not reported the incident to law enforcement until May 29, 2019, and that Officer Wampler had opened the case, conducted his investigation, and closed the case all on or about May 30, 2019. Id. at ¶ 51. Plaintiff informed Sergeant Porter that North Shelby had not provided her with any information for 21 days (presumably between May 23 and June 13). Sergeant Porter directed Plaintiff to the police department to request that an investigation be initiated. Id. at ¶ 52.
Though Plaintiff's Complaint is somewhat unclear in this regard, Plaintiff appears to allege that at some point she learned that DP's injury occurred under “a different set of facts.” Id. at 53. Specifically, Plaintiff alleges upon information and belief that “the teacher” who prevented DP from exiting the playground “was prohibited from physically restraining him due to her surgery, so [Wilbourn] moved to intervene physically.” Id. at ¶ 54. Further, Plaintiff asserts that DP allegedly attempted to bite Wilbourn who replied: “if you bite me, I'll bite you back and clock out.” Id. at ¶¶ 55-56. Plaintiff also alleges that DP was on his knees and that Wilbourn struck DP's forehead with her hand which pushed him backwards causing him to hit his head on the exposed pipe. Id. at ¶ 57.
Plaintiff additionally alleges upon information and belief that during a prior, separate incident a North Shelby employee kicked DP while he was on the ground. Id. at ¶ 58.
Plaintiffs' Complaint asserts the following claims: 1) negligence/gross negligence; 2) negligent hiring/supervision/retention; 3) a federal Constitutional claim pursuant to 42 U.S.C. § 1983; 4) an “alternative” claim for violation of the North Carolina State Constitution; 5) violation of the Americans with Disabilities Act (the “ADA”) 42 U.S.C. § 12101, et seq.; 6) punitive damages; 7) civil conspiracy; and 8) false imprisonment. These claims are brought against Defendants specifically as follows:
-
Patrick
Wilbourn
The Board
Negligence/Gross Negligence
X
X
X
Negligent hiring, negligent supervision, negligent retention
X
42 U.S.C. 1983
X
X
X
N.C. Constitutional Violations
X
American with Disabilities Act
X
X
X
Punitive Damages
X
X
X
Civil Conspiracy
X
X
X
False Imprisonment
X
X
III. Legal Standards
A. Immunity Defenses
The Board has moved to dismiss certain of Plaintiff's claims against it based on governmental immunity, and Patrick has moved to dismiss certain claims against him based on public official immunity. Both the Board and Patrick cite Rules 12(b)(1) and 12(b)(2) of the Federal Rules of Civil Procedure in support of their motions. See Doc. 17 at 4; Doc. 11 at 3. A motion to dismiss made pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure addresses whether the court has subject-matter jurisdiction to hear the dispute, while a motion to dismiss made under Rule 12(b)(2) tests whether the court has personal jurisdiction over a defendant. See Fed.R.Civ.P. 12(b)(1); (b)(2).
Governmental immunity is a “portion of the State's sovereign immunity which extends to local governments,” Wray v. City of Greensboro, 370 N.C. 41, 47 (2017). Public official immunity is “a derivative form of sovereign
immunity.” Green v. Howell, 274 N.C.App. 158, 164 (2020) (citing Epps v. Duke Univ., Inc., 122 N.C.App. 198, 203 (1996)). Both governmental and public official immunity are jurisdictional defenses. See Barrett v. Board of Education of Johnston County, 13 F.Supp.3d 502, 508 (E.D. N.C. 2014) (“Governmental immunity is a jurisdictional defense”) (citing Medina v. United States, 259 F.3d 220, 223 (4th Cir.2001) (governmental immunity “affects [ ] jurisdiction”)); see also McClure v. Charlotte-Mecklenburg Board of Education, No. 3:20-CV-00005-RJC-DCK, 2021 WL 7448762, at *4 (W.D. N.C. March 18, 2021) (“Assertion of the governmental immunity defense presents a question of jurisdiction, although North Carolina courts have not resolved whether the sovereign immunity defense challenges personal jurisdiction or...
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