Varnell v. Dora Consol. Sch. Dist.

• Decision Date: 13 May 2013
• Docket Number: No. 12-CV-905 JCH/GBW,12-CV-905 JCH/GBW
• Parties: TORI VARNELL, Plaintiff, v. DORA CONSOLIDATED SCHOOL DISTRICT, SUPERINTENDENT STEVE BARRON, and AMBER SHAW, Defendants.
• Court: U.S. District Court — District of New Mexico

TORI VARNELL, Plaintiff,

v.DORA CONSOLIDATED SCHOOL DISTRICT, SUPERINTENDENT STEVE BARRON,and AMBER SHAW, Defendants.

No. 12-CV-905 JCH/GBW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Dated: May 13, 2013

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

This matter comes before me on Defendants' Motion to Dismiss and accompanying briefing (docs. 8, 9, 21, 32), and Plaintiff's Motion to Amend Complaint and accompanying briefing, (docs. 29, 34, 35, 38).Having reviewed the Motions and being fully advised, I recommend that Defendants' Motion to Dismiss be converted to a Motion for Summary Judgment and GRANTED.I further recommend that Plaintiff's Motion to Amend be DENIED on the basis of futility.

I.FACTUAL BACKGROUND

In 2004, PlaintiffTori Varnell, then thirteen years old, was a student at the Dora Consolidated School in Dora, New Mexico.Doc. 1, Ex. 1 ¶¶ 2, 3, 6, 10.DefendantSteven Barron was Superintendent of the Dora Consolidated School District.Id.¶ 6.Beginning in 2004, DefendantAmber Shaw was employed by the Dora Consolidated School, first as a student teacher and later as an athletic coach.Id.¶ 7.Defendant Shawacted as Plaintiff's volleyball, track, and basketball coach.Id.¶11.At some point after Defendant Shaw began working at the school, she initiated a sexual relationship with Plaintiff.Id.¶¶ 10-14.¹On or about September 21, 2006, Plaintiff's mother became aware of Defendant Shaw's potentially inappropriate behavior towards her daughter.Id.¶¶ 35-37;see also doc. 21 ¶¶ 7-8.Plaintiff's mother contacted Defendant Barron on September 27 and October 11, 2006, and conveyed her concerns about Defendant Shaw.Id.¶¶ 36, 40; see also doc. 21 ¶ 13.Plaintiff's mother also spoke with the head coach at the school and stated that Defendant Shaw was not to have contact with her daughter.Id.¶ 39;see also doc. 21 ¶ 12.Defendant Shaw resigned from the school some time in late 2006 or early 2007. Id.¶¶ 40-44;see also doc. 21 ¶ 14.In July 2010, Plaintiff expressly disclosed the sexual abuse to her mother.Id.¶ 46;see also doc. 21 ¶ 24.Plaintiff's mother informed Defendant Barron, who reported the sexual abuse to the Roosevelt County Sheriff's office.Id.¶¶ 47-48;see also doc. 21 ¶ 25.Defendant Shaw was indicted on two counts of criminal sexual contact with a minor on March 17, 2011.Id.¶ 53.

II.PROCEDURAL BACKGROUND

Plaintiff filed her Complaint in state court on May 24, 2012.Doc. 1, Ex. 1.The matter was removed to this Court on August 24, 2012.Doc. 1.On October 24, 2012, Defendants filed both a Motion to Dismiss and a Motion to Stay Discovery pendingresolution of the Motion to Dismiss.Docs. 8, 10.Briefing on the Motion to Dismiss was completed on December 21, 2012.After the Court dismissed the initial Motion to Stay for procedural reasons, (doc. 12 at 1), Defendants filed a second Motion to Stay, (doc. 15).The Court granted in part and denied in part Defendants' second Motion for Stay on January 11, 2013, pending the ruling on the Motion to Amend, which was not fully briefed at the time.Doc. 36at 1.Briefing on the Motion to Amend was completed on January 28, 2013.

III.MOTION TO DISMISS SHOULD BE CONSTRUED AS BROUGHT UNDER FEDERAL RULE12(B)(6) AND CONVERTED TO MOTION FOR SUMMARY JUDGMENT

A.Defendants' Motion Should be Construed as Brought Under FederalRule 12(b)(6)

Defendants filed their motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) arguing that Plaintiff's claims are time-barred.See doc. 9.In the Tenth Circuit, the statute of limitations is an affirmative defense rather than a jurisdictional issue, and is properly challenged via a Rule 12(b)(6) motion.SeeMurphy v. Klein Tools, Inc., 935 F.2d 1127, 1128-29(10th Cir.1991)(holding that dismissal on limitations grounds is a judgment on the merits);Schrader v. Richardson, 461 F. App'x 657, 660(10th Cir.2012)(addressing Eleventh Amendment immunity before the statute of limitations because the former is "jurisdictional in nature");see alsoSmith v. City of Chicago Heights, 951 F.2d 834, 839(7th Cir.1992)(statute of limitations governing § 1983 actions is procedural rather than jurisdictional);Fassett v. Delta Kappa Epsilon, 807 F.2d 1150, 1167(3d Cir.1986)("A statute of limitations time bar is not jurisdictional; rather it constitutes an affirmative defense that is waived if the defendant fails to raise it in the answer.");but seeMcCoy v. Damron, 9 F. App'x 994, 996(10th Cir.2001)(suggesting, in passing, that the statute of limitations presents a "jurisdictional issue").The Court will therefore treat Defendants' Motion to Dismiss as raised under 12(b)(6) rather than 12(b)(1).See, e.g., Boellstorff v. State Farm Mut. Auto. Ins. Co., 2006 WL 1658449, at *2(D. Colo.June 7, 2006).

B.Defendants' Motion Should be Converted to a Motion for Summary Judgment

When analyzing a Rule 12(b)(6) motion, the Court must assess whether the Plaintiff's Complaint alone is legally sufficient to state a claim for which relief may be granted.SeeMiller v. Glanz, 948 F.2d 1562, 1565(10th Cir.1991).To the extent, however, that the motion relies on other material outside the pleadings, Rule 12(b) requires that the Court either exclude the extraneous material when deciding the motion, or convert the motion to one for summary judgment under Rule 56 and afford all parties the opportunity to present supporting material.FED. R. CIV. P. 12(d);Lamb v. Rizzo, 391 F.3d 1133, 1136(10th Cir.2004).

Because Defendants styled their Motion to Dismiss as a factual 12(b)(1) motion, they attached Plaintiff's birth certificate as an exhibit in order to demonstrate that Plaintiff's action was time barred.Doc. 9, Ex. 1.In her Response to the Motion to Dismiss, Plaintiff argued that her claims are subject to equitable tolling and attached nine exhibits to support that contention.Doc. 21, Exs. A-H.Since the parties havepresented relevant evidence outside the pleadings, I recommend that the Court construe Defendants' Motion to Dismiss as a Motion for Summary Judgment under Rule 56.SeeFED. R. CIV. P. 12(d).Consequently, I will proceed under the standards applicable to a summary judgment motion.

I recognize that when converting a motion under Rule 12(b)(6) to a Rule 56 motion, "the trial court should give the parties notice of the changed status of the motion and thereby provide the parties to the proceeding the opportunity to present to the court all material made pertinent to such motion by Rule 56."Ohio v. Peterson, Lowry, Rall, Barber & Ross, 585 F.2d 454, 457(10th Cir.1978).This Report and Recommendations, therefore, serves as notice to the parties of the proposal that Defendants' Motion to Dismiss be treated as a motion for summary judgment.The parties may, in filing objections to this Report and Recommendations, submit further evidence necessary to the Court's ruling.

Because my recommendations with respect to the motion to amend are interrelated to my recommendations on the dispositive motion, I will also address the Motion to Amend Complaint herein.

IV.STANDARD OF REVIEW

A.Summary Judgment under Federal Rule of Civil Procedure 56

Pursuant to Rule 56, the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitledto judgment as a matter of law."FED. R. CIV. P. 56(a).The court must adhere to three principles when evaluating a motion for summary judgment.First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts.SeeAnderson v. Liberty Lobby, 477 U.S. 242, 249(1986).Second, the court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party.SeeHunt v. Cromartie, 526 U.S. 541, 551-54(1999).Third, the court cannot decide any issues of credibility.SeeAnderson, 477 U.S. at 255.

B.Amendment of the Complaint

Based on the timing of Plaintiff's Motion to Amend, she is beyond the period during which she can amend her complaint as a matter of course.SeeFed. R. Civ. P. 15(a)(1).Therefore, the "decision to grant leave to amend a complaint . . . is within the trial court's discretion."Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027(10th Cir.1994).Leave to amend shall be freely given "when justice so requires," but need not be given where amendment would be futile.Fed. R. Civ. P. 15(a)(2);Foman v. Davis, 371 U.S. 178, 182(1962)."A proposed amendment is futile if the complaint, as amended, would be subject to dismissal."Jefferson County Sch. Dist. No. R-1 v. Moody's Investor's Serv., Inc., 175 F.3d 848, 859(10th Cir.1999).

To avoid a finding of futility, therefore, the amended complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible onits face."Ashcroft v. Iqbal, 556 U.S. 662, 678(2009)(quotingBell Atlantic Corp. v. Twombly, 550 U.S. 544, 570(2007)).A complaint fails to state a claim when it makes conclusory allegations of liability without supporting factual content.SeeTwombly, 550 U.S. at 555;Iqbal, 556 U.S. at 678-79.While the court must accept all the factual allegations in the complaint as true, it is "not bound to accept as true a legal conclusion couched as a factual allegation."Iqbal, 556 U.S. at 678.

V. PLAINTIFF'S FEDERAL CLAIMS ARE TIME-BARRED

Plaintiff brings her federal claims under § 1983andTitle IX of the Educational Amendments of 1972, as amended by the Civil Rights Restoration Act of 1987, 20 U.S.C. § 1681 et seq.("Title IX").In Counts II and V she alleges deprivation of her Fourth and Fourteenth Amendment rights by Defendant Shaw because of Defendant Shaw's conduct.Doc. 1, Ex. 1 ¶¶ 69-78, 98-104.In Counts III and IV she alleges violations of Title IX and the Fourteenth Amendment by all the Defendants arising from their failure to...