Sutherlin v. Indep. Sch. Dist. No. 40 of Nowata Cnty.

• Decision Date: 13 May 2013
• Docket Number: Case No. 12–CV–636–JED–PJC.
• Citation: 960 F.Supp.2d 1254
• Parties: Jennifer SUTHERLIN, et al., Plaintiffs, v. INDEPENDENT SCHOOL DISTRICT NO. 40 OF NOWATA COUNTY, OKLAHOMA, Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

960 F.Supp.2d 1254

Jennifer SUTHERLIN, et al., Plaintiffs,

v.INDEPENDENT SCHOOL DISTRICT NO. 40 OF NOWATA COUNTY, OKLAHOMA, Defendant.

Case No. 12–CV–636–JED–PJC.

United States District Court, N.D. Oklahoma.

May 13, 2013.

Brad S. Clark, William Henry Hickman, Hickman Law Group, Oklahoma City, OK, for Plaintiffs.

Cheryl Ann Dixon, Kent Bolling Rainey, Staci Lynette Roberds, Rosenstein Fist & Ringold, Tulsa, OK, for Defendant.

OPINION AND ORDER

JOHN E. DOWDELL, District Judge.

The Court has for its consideration Defendant's Motion to Dismiss Plaintiff's First Original Complaint and Opening Brief in Support (Doc. 7), which is now at issue ( see Docs. 15 and 20).

I. Background Facts

In this case, plaintiffs, Jennifer Sutherlin and T.J. Sutherlin (“plaintiffs” or the “Sutherlins”), allege claims, individually and on behalf of their minor child (designated by pseudonym as “S.S.”), against Independent School District No. 40 of Nowata County, aka Nowata Public School District, Oklahoma (“defendant” or the “School District”). S.S. is approximately 13 years old and has been diagnosed with Asperger's Disorder and a learning disability. In that regard, S.S. has been identified as a student with a disability under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., and attends school under an Individual Education Plan (i.e. special education). The Sutherlins allege that, in the Fall of 2011, S.S. was subjected to almost constant bullying by his peers. Plaintiffs state that S.S. was called names by other children and repeatedly subjected to physical abuse. They further allege that, despite numerous complaints lodged with the School District, nothing was done to limit the bullying of S.S., and that the School District itself engaged in bullying behavior. This harassment eventually resulted in S.S. becoming depressed, withdrawn, and suicidal.

In response to federal guidelines and directives, schools across the United States, including those in Oklahoma, developed policies to address bullying and harassment in schools. Defendant has a “Zero Tolerance” policy towards bullying. Under this policy, bullying of any kind is not to be permitted at any time on school grounds. Plaintiffs maintain that the School District has failed to abide by its own policy in permitting S.S. to be harassed and injured at school.

On November 15, 2012, plaintiffs brought this lawsuit against the School District, seeking damages under 42 U.S.C. § 1983, the Americans with Disabilities Act, the Rehabilitation Act, and state law, and defendant's motion to dismiss followed.

II. Standards

Defendant moves to dismiss plaintiffs' complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In considering a motion under Rule 12(b)(6), a court must determine whether the plaintiff has stated a claim upon which relief may be granted. A motion to dismiss is properly granted when a complaint provides no “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint must contain enough “facts to state a claim to relief that is plausible on its face” and the factual allegations “must be enough to raise a right to relief above the speculative level.” Id. (citations omitted). “Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 562, 127 S.Ct. 1955. Although decided within an antitrust context, Twombly articulated the pleading standard for all civil actions. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). For the purpose of making the dismissal determination, a court must accept all the well-pleaded allegations of the complaint as true, even if doubtful, and must construe the allegations in the light most favorable to claimant. Twombly, 550 U.S. at 555, 127 S.Ct. 1955;Alvarado v. KOB–TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir.2007); Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir.2002). However, a court need not accept as true those allegations that are conclusory in nature. Erikson v. Pawnee Cnty. Bd. of Cnty. Com'rs, 263 F.3d 1151, 1154–55 (10th Cir.2001). “[C]onclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir.2009) (quoting Hall v. Bellmon, 935 F.2d 1106, 1109–10 (10th Cir.1991)).

III. Analysis

A. Section 1983 Claims

1. Substantive Due Process—Failure to Protect

The Supreme Court has recognized that students have a property right in public education, and as such, that right is protected by the Due Process Clause of the Fourteenth Amendment. Edwards For & in Behalf of Edwards v. Rees, 883 F.2d 882, 885 (10th Cir.1989). Plaintiffs allege that S.S.'s due process rights were violated by defendant's actions and inactions with respect to S.S.'s treatment at school.

Generally speaking, state actors are not liable for the violent acts of third parties, but there are two well-defined exceptions to this rule:

The first exception, known as the special relationship doctrine, “exists when the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual....” The second exception, sometimes referred to as the “danger creation” theory, provides that a state may also be liable for an individual's safety “if it created the danger that harmed the individual.”

Armijo By & Through Chavez v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1260 (10th Cir.1998) (quoting Liebson v. New Mexico Corrections Dep't, 73 F.3d 274, 276 (10th Cir.1996)). Plaintiffs assert that the “special relationship” and “danger creation” exceptions are both applicable in this case.

a. Special Relationship Doctrine

States are not required to provide citizens with any particular protective services under the Due Process Clause and the “failure to protect an individual against private violence does not constitute a violation of the Due Process Clause.” DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). “However, if the state restrains an individual's freedom to act to protect himself or herself through a restraint on that individual's personal liberty, the state may thereby enter into a ‘special relationship’ during such restraint to protect that individual from violent acts inflicted by others.” Armijo, 159 F.3d at 1261. The Tenth Circuit applied this principle in the context of a due process claim against a school district in Graham v. Independent Sch. Dist. No. I–89, 22 F.3d 991 (10th Cir.1994). In Graham, the court held that schools have no affirmative duty to protect students from assaults by other students, even where the school knew or should have known of the danger presented. Id. at 994–95. On the other hand, if the state takes a person into custody or holds him against his will, the state assumes some measure of a constitutionally mandated duty of protection. Id. at 994. But, compulsory attendance laws do not give rise to such a duty. Id. (citing Maldonado v. Josey, 975 F.2d 727, 732 (10th Cir.1992), cert. denied,507 U.S. 914, 113 S.Ct. 1266, 122 L.Ed.2d 662 (1993)). This is because, “[d]espite mandatory school attendance laws, the parents, not the state, remain the child's primary caretakers.” Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 911 (6th Cir.1995).

Plaintiffs argue that S.S. maintained a special relationship with the School District because of his disabilities, which plaintiffs argue create a heightened level of responsibility, and because of Oklahoma's compulsory attendance law, which mandated his attendance.¹ Defendant argues that courts have not distinguished between disabled and non-disabled students for purposes of determining whether a special relationship existed.

The Tenth Circuit, while having clearly held that compulsory attendance laws do not give rise to a special relationship, Maldonado, 975 F.2d at 732, has not addressed whether a student's disability, in conjunction with compulsory attendance laws, gives rise to a special relationship. Indeed, it appears that the Sixth Circuit is the sole circuit court to have addressed this issue, about which it had the following to say:

Finally, plaintiff's argument that decedent's medical condition and the school district's knowledge of that condition created a special relationship between decedent and the school district misunderstands the nature of the special relationship theory. A special relationship can only arise when the state restrains an individual. Decedent's medical condition and its debilitating effects, however, were not restrictions imposed or created by the state.See DeShaney, 489 U.S. at 201 n. 9, 109 S.Ct. at 1006 n. 9.

Sargi, 70 F.3d at 911 (emphasis added).

This Court is persuaded by the rationale of Sargi. S.S.'s Asperger's Disorder and learning disability do not amount to restrictions that have been imposed by the School District. As such, these disabilities do not create the type of special relationship contemplated by the DeShaney court—i.e. one resulting from a restraint on an individual's freedom imposed by the state, such as incarceration or involuntary commitment. DeShaney, 489 U.S. at 200, 109 S.Ct. 998 (“it is the State's affirmative act of restraining the individual's freedom to act on his own behalf—through incarceration, institutionalization, or other similar restraint of personal liberty—which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.”).

Hence, plaintiffs have failed to state a claim for violation of the Due Process Clause under the special relationship theory.

b. Danger Creation Theory

“A state also may be...