Shively v. Green Local Sch. Dist. Bd. of Educ., CASE NO. 5:11CV2398

• Decision Date: 28 February 2013
• Docket Number: CASE NO. 5:11CV2398
• Parties: LISA SHIVELY, etc., et al., Plaintiffs, v. GREEN LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

LISA SHIVELY, etc., et al., Plaintiffs,

v.GREEN LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, et al., Defendants.

CASE NO. 5:11CV2398

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Date: February 28, 2013

PEARSON, J.

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINIONAND ORDER

[Resolving ECF No. 18]

Pending is Defendants' Motion for Judgment on the Pleadings and for Dismissal for Lack of Subject-Matter Jurisdiction (ECF No. 18). Defendants move the Court for an order granting them judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Furthermore, Defendants move the Court for dismissal of Plaintiffs Lisa and James Shively's claims for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). The Court has been advised, having reviewed the record, the parties' briefs and the applicable law. For the reasons that follow, the Court grants the motion in part.

I.

Plaintiffs Lisa and James Shively filed this action under 42 U.S.C. § 1983 in November 2011 on their own behalf, and on behalf of their minor child, T.S. The eight-count Amended Complaint (ECF No. 14) seeks declaratory, injunctive, and monetary relief against the Green Local School District Board of Education (also "Board of Education" or "Defendant Board"), Michael Nutter, Wade Lucas, Cindy Brown, Mark Booth, Jeff Miller, and Jeff Wells (alsocollectively "individual Defendants") for alleged violations of Plaintiffs' civil rights. Specifically, Plaintiffs allege Defendant Board and its employees failed to prevent or respond to gender- and religion-based bullying and harassment aimed at T.S., thereby violating Plaintiffs' constitutional rights, Title IX, and state law. Count I alleges a deprivation of Plaintiffs' substantive due process rights under the Fourteenth Amendment. Count II alleges a deprivation of Plaintiffs' equal protection rights under the Fourteenth Amendment. Count III is a First Amendment claim wherein Plaintiffs allege that T.S. was punished for exercising her right to identify herself as Jewish, a right Defendants failed to enforce. Count IV alleges that Defendants, by allowing religion-based bullying and harassment, violated T.S.'s right to the free exercise of her religion under the First Amendment. Count V alleges a claim under Title IX of the Civil Rights Act of 1972, 20 U.S.C. § 1681 et seq. Count VI alleges that Defendant Board's failure to train its employees regarding bullying constitutes a violation of the Board's obligations, resulting in liability pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). Count VII alleges a negligence state law claim against the individual Defendants. Finally, Count VIII alleges a state law claim of malicious purpose, bad faith, and wanton and reckless conduct against the individual Defendants.¹

Plaintiffs allege that the bullying, both physical, verbal and electronic, went on for years:

Specific examples of the bullying and harassment aimed at T.S. include the following:

a) Students regularly said she would "rot in Hell" because she did not believe in Jesus Christ; she was regularly called a "dirty Jew" or "Hitler;"

b) Several times she was knocked into lockers while walking through the hallways of school;

c) She was tripped, shoved, hit, kicked, had her books knocked out of her hands on a regular basis;

d) In September, 2007, T.S. was stabbed in the leg with a pencil during class; T.S. had to be transported to an urgent-care center, where the tip of the pencil was removed from her leg with a scalpel;

e) In April, 2008, Mrs. Shively informed defendant Wade Lucas, then the superintendent of schools, that she would keep T.S. out of school until the bullying situation was addressed; Mrs. Shively kept T.S. out of school for one week, but eventually brought her back to school when nothing was done to address the situation;

f) In September and October, 2008, T.S. was verbally harassed on a daily basis, called "a fucking Jew" by several boys as she got on the bus; the bus driver never disciplined the boys or filed any sort of report to the school district;

g) On October 14, 2008, two boys spat on T.S. on the bus.

h) In November, 2009, T.S. was assaulted by a boy in the choir room at school, causing T.S. to have to be taken to the hospital and to wear crutches for several weeks. After the incident, the boy who assaulted T.S. and others continued to verbally harass and threaten T.S., telling her they would break her crutch over her head;

i) In October, 2010, several students created a Facebook page, entitled, "If you think T.S. is a whore and needs to go back to 8th grade, join!" The mother of one of the girls who created the page posted comments on the page;

j) In January, 2011, two students at Green High School created a "kill list" which included T.S.'s name as a target for being killed or hurt. While school officials assured Mrs. Shively that the perpetrators would never be able to set foot in thehigh school again, one of the perpetrators was seen by T.S. in the cafeteria just three weeks after the incident;

k) On August 24, 2011, the first day of the current school year, T.S. was helping with a "Club Fair," a program meant to showcase the various clubs students can join, when students began shouting "Jew" at her from across the cafeteria;

l) On September 20, 2011, a female student approached T.S. in the cafeteria in front of other students and called T.S. a "whore," among other names;

m) On September 30, 2011, T.S. endured an entire day of teasing and harassment from students between and during class. T.S. came home in tears.

ECF No. 14 at ¶ 13.

Noting that school officials responded to the asserted bullying, Plaintiffs indicate that two alleged perpetrators were supposedly expelled and that Defendants Board and Nutter ultimately offered an alternative public school placement to T.S. ECF No. 14 at ¶¶ 13j, 24.

II. Standards of Review

A motion for judgment on the pleadings under Rule 12(c) is reviewed under the same standard applicable to a motion to dismiss under Rule 12(b)(6). Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008). The Court must construe the complaint in the light most favorable to the non-moving party, accept all factual allegations as true, and make reasonable inferences in favor of the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008); In re Sofamor Danek Group, Inc., 123 F.3d 394, 400 (6th Cir. 1997). The complaint must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Nader v. Blackwell, 545 F.3d 459, 470 (6th Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)). A motion brought pursuant to Rule 12(c) is appropriately granted "when no material issue of fact exists andthe party making the motion is entitled to judgment as a matter of law." JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 582 (6th Cir. 2007) (internal citation and quotation marks omitted).

A cause of action fails to state a claim upon which relief may be granted when it lacks "plausibility in th[e] complaint." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 564 (2007). A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal , 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Plaintiffs are not required to include detailed factual allegations, but must provide more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 678. A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id. at 557. It must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Twombly, 550 U.S. at 556. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. at 557 (brackets omitted).

Defendants' motion is also brought pursuant to Fed. R. Civ. P. 12(b)(1) for a lack of jurisdiction. Rule 12(b)(1) permits dismissal for "lack of subject-matter jurisdiction." Lack ofsubject-matter jurisdiction may be asserted at any time, either in a pleading or in a motion. See Fed. R. Civ. P. 12(b)(1). "A Rule 12(b)(1) motion can either attack the claim of jurisdiction on its face, in which all allegations of the plaintiff must be considered as true, or it can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence and the plaintiff bears the burden of proving that jurisdiction exists." DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). A party making a "factual attack" on subject-matter jurisdiction challenges the actual existence of the court's jurisdiction, i.e., a defect may exist even though the complaint contains the formal allegations necessary to invoke jurisdiction. See RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996).

Defendants launch a factual attack in that they challenge "whether Plaintiff Parents, who allege their child was teased, have standing to bring bullying claims on their own behalf." ECF No. 18 at 3. Because this is a question of fact, the Amended Complaint is not accorded the presumption of truth on these matters by the Court.

III. Discussion

A. Plaintiff Parents Lack Standing to Bring All Indirect § 1983 Claims and a Title...