Wright v. Carroll Cnty. Bd. of Educ.

Decision Date26 August 2013
PartiesRICHARD A. WRIGHT, et al., Plaintiffs, v. CARROLL COUNTY BOARD OF EDUCATION, et al., Defendants.
CourtU.S. District Court — District of Maryland

Plaintiffs Richard A. Wright and Amy M. Wright (the "Wrights"), as parents and next friends of R.W., their minor child, have filed suit with respect to the alleged bullying of their "special needs" son in the fall of 2008, when he was a fifth grade student at Carrolltowne Elementary School ("Carrolltowne") in Sykesville, Maryland.1 The Second Amended Complaint ("S.A.C.", ECF 22) asserts violations of various federal statutes and claims under Maryland law,2 and names a host of defendants, in their individual and official capacities. They are: the Carroll County Board of Education (the "Board"); Jennifer A. Seidel, President of the Board; Barbara J. Shreeve, Vice President of the Board; Gary W. Bauer, Cynthia L. Foley, and Virginia R. Harrison, members of the Board; Steven H. Guthrie, Superintendent of the Carroll County Public School System (the "School System"); Curtis T. Schnorr, Director of Elementary Education forthe Board; Russell S. Gray, Director of Special Education at Carrolltowne; Terry Ball, Principal of Carrolltowne; Shavon T. Showers, Assistant Principal of Carrolltowne; Michelle Fliegel, R.W.'s teacher at Carrolltowne; Linda Barton, an "instructional specialist" for the Board; a Jane Doe defendant, identified as a speech therapist (collectively, the "Carroll County Defendants"). In addition, plaintiffs have sued Rochelle S. Eisenberg, Esq. and Andrew G. Scott, Esq., who served as the Board's legal counsel during the relevant time, and their law firm, Pessin Katz Law, P.A. ("Pessin Katz") (collectively, the "Pessin Katz Defendants"). Plaintiffs seek both compensatory and punitive damages and unspecified injunctive relief.

On May 24, 2012, I dismissed plaintiffs' First Amended Complaint ("F.A.C.," ECF 7), without prejudice and with leave to amend. See Memorandum Opinion ("Mem. Op.," ECF 20) & Order (ECF 21). Thereafter, plaintiffs filed the Second Amended Complaint, which is at issue here. It contains five counts, four of which are largely the same as the four counts contained in the First Amended Complaint.3

Count I again presents a "Claim for Deprivation of Constitutional Rights" under 42 U.S.C. § 1983 and the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., lodged against the Carroll County Defendants. In particular, plaintiffs assert that R.W. is "entitled to equal protection of the law while a student" at Carrolltowne, "bodily integrity and the freedom from ongoing threat of assault,"4 a free appropriate public education ("FAPE"), and an Individualized Education Plan ("IEP"), "without the requirement that his parents procure the assistance and bear the expense of an attorney." S.A.C. ¶ 41. The Wrights further allege that theCarroll County Defendants' "pattern of customs, usages and practices . . . including being deliberately neglectful of the abusive and violent conduct, deprived R.W. of his federal and state rights to a free appropriate public education, under the color of state law, in violation of 42 U.S.C. § 1983 and [the] IDEA." S.A.C. ¶ 45. Further, they claim that Ball and the Board "failed to adequately train and supervise teacher staff in . . . techniques to defuse bullying." Id. ¶ 46.

In Count II, plaintiffs renew their "Claim for Deprivation of Constitutional Rights" under 42 U.S.C. § 1985 and the IDEA, claiming that the Carroll County Defendants, "individually and in concert with one another, deprived the Plaintiff, R.W., of his right to a [FAPE] under [the IDEA] by failing to impose discipline against" a student who "bullied" R.W., and, instead, "effectively imposing discipline against [R.W.]" S.A.C. ¶ 50.

Count III presents claims under Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.5 In Count III, plaintiffs renew their claim that the Carroll County Defendants "fail[ed] to ensure that R.W. was not the victim of invidious discrimination by virtue of his disability, and . . . by making him bear the educational consequence by regressing him a grade level when that action clearly was not merited by his educational achievement." S.A.C. ¶ 54. They have added an allegation that the Carroll County Defendants "retaliated" against R.W. for "asserting his disability rights." Id. ¶ 56. In particular, they allege that R.W.'s "speech therapy instructor, Jane Doe . . . exposed R.W. to photographs tending to portray members of the judiciary as hostile to students, for the express purpose of frightening him." Id.

In Count IV, the only new claim added to the Second Amended Complaint, plaintiffs assert violations of Title II of the ADA and Section 504 of the Rehabilitation Act against the Pessin Katz Defendants. Plaintiffs allege that on February 15, 2012, after R.W. was placed at a new school, defendants Eisenberg, Scott, and Pessin Katz attended the educational meeting between plaintiffs and the Board, for the "purpose of creating an adversarial atmosphere," to "frustrate" the meeting and to "threat[en]" R.W.'s "compromised physical, mental and emotional state." Id. ¶ 58. In plaintiffs' view, the presence of the lawyers at R.W.'s new school was "reprehensible." Id. They also claim that Pessin Katz is liable for the acts of Scott and Eisenberg under a theory of respondeat superior. Id. ¶ 17.

Count V again presents a claim for "Common Law Gross Negligence," alleging that defendants breached their duty of care to R.W. "by failing to ensure he was not the victim of invidious and purposeful discrimination," despite "knowledge of the discriminatory bullying activity being visited upon him by the student perpetrator." Id. ¶ 61. Plaintiffs have added an allegation that defendants' "retaliated" against R.W. with "reckless indifference or actual malice." Id. ¶ 62.

Pursuant to Fed. R. Civ. P. 12(b)(6), the Carroll County Defendants and the Pessin Katz Defendants have moved to dismiss for failure to state a claim. See ECF 43 ("Pessin Katz Motion"); ECF 44 ("Carroll County Motion"). They also filed supporting memoranda. See ECF 43-1 ("Pessin Katz Memo"); ECF 44-1 ("Carroll County Memo"). Additionally, the Carroll County Defendants incorporated by reference the arguments made in their memorandum in support of their motion to dismiss the First Amended Complaint (ECF 11-1).

Plaintiffs oppose the Carroll County Motion ("Opposition" or "Opp.," ECF 49-1),6 incorporating, by reference, the arguments made in their opposition to the Carroll County Defendants' motion to dismiss the First Amended Complaint (ECF 14). Plaintiffs have not opposed the Pessin Katz Motion. Instead, they have moved to disqualify counsel for the Pessin Katz Defendants and also moved to strike the Pessin Katz Motion (collectively, ECF 45), which they have supported with a memorandum (ECF 47). The Pessin Katz Defendants oppose the motion to disqualify as well as the motion to strike ("Pessin Katz Opp.," ECF 50).

No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I will deny plaintiffs' motion to disqualify and their motion to strike, and I will grant the defendants' motions to dismiss, with prejudice.

Factual and Procedural Background

The facts alleged in the Second Amended Complaint are largely identical to those alleged in the First Amended Complaint, which I recounted in the Memorandum Opinion of May 24, 2012. See ECF 20. However, for convenience, I will revisit the pertinent factual allegations, construing them in the light most favorable to plaintiffs. See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

R.W. was born in May 1997. S.A.C. ¶ 1. He is "a special needs child, suffering from the developmental disorder known as autism." Id. ¶ 20. In September 2008, R.W. was a fifth grade student at Carrolltowne, and "was on an educational track to graduate from elementary school to middle school." Id. As early as September 2, 2008, and during late September and early October 2008, his mother, Ms. Wright, told R.W.'s teacher, Ms. Fliegel, and several otherunidentified "school officials" and "staff," about R.W.'s "fear" of "M.," a "male peer," and his "fears of reporting to school." Id. ¶ 21. Ms. Ball, the Principal of Carrolltowne, assured Ms. Wright "that the situation was viewed with appropriate gravity and would be dealt with appropriately." Id. Nevertheless, R.W. endured cruel and "serious episodes of student-on-student violence" inflicted by M., including being "stabbed at or struck with pencils, being pushed and punched, [and] being ridiculed for the affect and mannerisms which are the effect of his disability." Id. ¶ 23.

As a result of M.'s conduct, R.W. became "extremely school avoidant." Id. ¶ 21. Then, on or about October 22, 2008, M. "attacked" R.W. at school, and also "threatened," "taunted," "ridiculed," and "assaulted" R.W. Id. Plaintiffs maintain that M. attacked R.W. because of his "affect and disability." Id. Ms. Showers, Carrolltowne's Assistant Principal, summoned Ms. Wright to school on October 22, 2008, where Ms. Wright observed that R.W. had "withdrawn into a tightly wound fetal position." Id. ¶ 22. In addition, "both of his eyes were blackened and his lower lip was swollen." Id.

In response to the events of October 22, 2008, Ms. Wright contacted Curtis Schnorr, Director of Elementary Education for the Board, and arranged "a three-day period of observation at R.W.'s classes from October 27-29, 2008." Id. ¶ 23. During her visit, Ms. Wright spoke with many of R.W.'s teachers. To Ms. Wright's dismay, "several of [them] indicated that they had no specific information about the bullying attacks visited upon R.W. by M. from members of [the] school administration." Id. ¶¶ 23, 26. Ms. Wright also observed that...

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