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Barnett v. Baldwin County Bd. of Educ.

United States District Court, S.D. Alabama, Southern Division

October 8, 2014

ALEC DAVID BARNETT, JR., et al, Plaintiffs,
v.
BALDWIN COUNTY BOARD OF EDUCATION, et al., Defendants

Decided October 7, 2014

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For Alec David Barnett, Jr., Sidney Pennington, Lenora Chapman, Renee Williams, Andre Stephenson, Isabelle Martinez, Lenka Lampkin, Plaintiffs: Eric Tavaris Hutchins, LEAD ATTORNEY, Alexander City, AL.

For Baldwin County Board of Education, Defendant: Robert C. Campbell, III, LEAD ATTORNEY, Campbell Duke Law Firm, Mobile, AL; James R. Seale, Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, AL; Robert Nash Campbell, Campbell, Duke & Campbell, Mobile, AL.

For Dr. Alan T. Lee, Norman Moore, Robert Callahan, Jr., David Cox, David Tarwater, Elmer McDaniel, Angie Swiger, Shannon Cauley, Chuck Anderson, Defendants: Robert C. Campbell, III, LEAD ATTORNEY, Campbell Duke Law Firm, Mobile, AL; Robert Nash Campbell, LEAD ATTORNEY, Campbell, Duke & Campbell, Mobile, AL; James R. Seale, Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, AL.

For Lee Mansell, Defendant: Mark S. Boardman, LEAD ATTORNEY, Katherine H. Watkins, Boardman, Carr, Bennett, Watkins, Hill & Gamble, P.C., Chelsea, AL; Robert C. Campbell, III, LEAD ATTORNEY, Campbell Duke Law Firm, Mobile, AL; James R. Seale, Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, AL; Robert Nash Campbell, Campbell, Duke & Campbell, Mobile, AL.

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ORDER

KRISTI K. DuBOSE, UNITED STATES DISTRICT JUDGE.

This action is before the Court on the motion for judgment on the pleadings filed by defendants Baldwin County Board of Education, Superintendent Dr. Alan T. Lee, Board President Norman Moore, Board Vice President Robert Callahan, Jr., Board Member David Cox, Board Member David Tarwater, Board Member Elmer McDaniel, Board Member Angie Swiger, Board Member Shannon Cauley, Principal Lee Mansell and Principal Chuck Anderson (docs. 29, 30); the response filed by Alec David Barnett, Jr. as parent and next friend of R.P., a minor, Sidney Pennington as parent and next friend of D.P., a minor, Lenora Chapman as parent and next friend of D.C., a minor, Renee Williams as parent and next friend of A.W., a minor, Andre Stephenson as parent and next friend of L.S., a minor, Isabelle Martinez as parent and next friend of C.M., a minor, and Lenza Lampkin as parent and next friend of R.L., a minor (doc. 32); and the defendants' reply (doc. 33). Upon consideration and for the reasons set forth herein, the motion is GRANTED in part and DENIED in part.

I. Factual background

Plaintiffs are the parents or next friends of minor children who attend Foley Intermediate School and Central Baldwin Middle School. R.P., D.P., D.C., L.S., C.M., and R.L. attend Foley Intermediate. Student A.W. attends Central Baldwin. They allege that " [d]efendants have engaged in and continue to systematically engage in a racist and discriminatory pattern [policy or custom] of placing the overwhelming majority of African-American, Hispanic, bi-racial, Caucasian students with friends of color, and children whose family members are in inter-racial relationships in On Campus Suspension" in either an enclosed cubicle, the " black box", pushed against a wall or in a locked closet as punishment or discipline. Plaintiffs allege that while the students are confined, they are separated from their learning environment, are allowed to leave only for lunch and bathroom breaks which results in instances of the

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students soiling their clothes with urine, defecation or menstruation, or having to smell the stench of other students who previously occupied the " black box", and " as additional punishment" they are not allowed to have a snack.

Plaintiffs allege that defendants were put on notice of this corporal punishment and discipline of the students in February 2012 when plaintiff Barnett and members of the NAACP met with Principal Mansell and Superintendent Lee at Foley Intermediate. Plaintiffs allege that Defendants continue to utilize the cubicles and locked closets after this meeting.

Plaintiffs also allege that this race-based use of the cubicle and a locked closet denies these students and others similarly situated with access to equal educational opportunity and that while they are confined in the cubicle or closet " they did not receive sufficient educational instruction." Plaintiffs also allege that using the cubicle or a locked closet to isolate the students from the classroom and academic environment in either the hallway, in the classroom, in a separate facility, or at the front of the school near the principal's office, was extreme and inhumane, humiliating and intimidating, and subjected the students to ridicule.

Plaintiff Barnett alleges that R. P., a student with an individualized education program (IEP) for Attention Deficit and Hyperactivity Disorder (ADHD) and Emotional Disturbance Disorder (EDD), was placed in a cubicle " in isolation from his classroom and academic environment . . . next to the principal's office at the front of the school . . . in order to punish, humiliate, and intimidate R.P" and subject R.P. to ridicule. (Doc. 3, p. 11) Barnett also alleges that R.P. was placed in the cubicle without his consent and was not free to leave or use the bathroom without approval of administrators or employees of Foley Intermediate. (Doc. 3, p. 16) There is no allegation as to R.P.'s race.

Plaintiff Pennington alleges that D.P., a student with an IEP for ADHD and Irritable Bowel Syndrome (IBS), was placed in a cubicle " in isolation from the classroom and academic environment . . . next to the principal's office at the front of the school . . . to punish, humiliate, and intimidate D.P." and subject D.P. to ridicule. Pennington also alleges that on " numerous occasions", D.P. was " placed in the corner of the classroom in a desk with the desk against the wall and his face facing the wall" and that he " did not receive adequate or any instruction from his teacher" and was ridiculed and ostracized. On one occasion, D.P. was forced to use sandpaper to scrub a word from a brick, which resulted in his hand becoming sore, worn and bleeding.[1] Pennington alleges that D.P. " suffered severe pain when he was not allowed to use the bathroom." (Doc. 3, p. 12) Pennington also alleges that D.P. was placed in the cubicle without his consent and was not free to go to the bathroom, despite his IBS. (Doc. 3, p. 16) There is no allegation as to D.P.'s race.

Plaintiff Chapman alleges that D.C. was placed in a cubicle " in isolation from the classroom and academic environment . . . next to the principal's office at the front of the school . . . in order to punish, humiliate, and intimidate" her and subject her to ridicule. Chapman also alleges that D.C. was not allowed to leave the cubicle, and " on a few occasions, . . . Chapman had to bring a change of clothes because D.C. had urinated and once because of menstruation.

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(Doc. 3, p. 13) Chapman also alleges that D.C. was placed in the cubicle without consent and was not free to leave or to go to the bathroom without approval of administrators or employees of Foley Intermediate. (Doc. 3, p. 16) There is no allegation as to D.C.'s race.

Plaintiff Williams alleges that A.W., a student with an IEP for ADHD, was placed in a cubicle " in isolation from the classroom and academic environment . . . in a separate facility at Central Baldwin . . . in order to punish, humiliate and intimidate A.W." (Doc. 3, p. 13) Williams also alleges that A.W. was placed in the cubicle without consent and was not free to go to the bathroom without approval of administrators or employees of Central Baldwin. There is no allegation as to A.W.'s race.

Plaintiff Stephenson alleges that L.S., a student with an IEP. for Apraxia, was placed in a cubicle " in isolation from the classroom and academic environment . . . next to the principal's office at the front of the school . . . in order to punish, humiliate, and intimidate" L.S. L.S. could " smell the stench of urine . . . from previous students[.]" (Doc. 3, p. 14) Plaintiff Stephenson also alleges that on " numerous occasions", L.S. was placed in a locked closet and that while confined L.S. could not go to the bathroom without the permission of administrators." (Id.) Plaintiff Stephenson alleges that Principal Mansell was aware of this " extremely stressful condition that L.S. had to endure physically and mentally." (Id.) There is no allegation as to L.S.'s race.

Plaintiff Martinez alleges that C.M., a student with an IEP for Oppositional Defiance Disorder (ODD) and ADHD, was placed in a cubicle " in isolation from the classroom and academic environment . . . in the front of the school next to the principal's office . . . in order to punish, humiliate, and intimidate C.M." and subject C.M. to ridicule. (Doc. 3, p. 15) Martinez also alleges that Principal Mansell " would single C.M. out and search her backpack each day when she got off her bus[.]" (Id.) Martinez also alleges that C.M. was placed in the cubicle for " nearly half of the 182 day school year" and " did not receive adequate and sufficient academic instruction." (Id.) Martinez also alleges that C.M. was placed in the cubicle without consent and was not free to leave or go to the bathroom without approval of administrators or employees of Foley Intermediate. (Doc. 3, p. 17) There is no allegation as to C.M.'s race.

Plaintiff Lampkin alleges that R.L. was placed in a cubicle " next to the principal's office at the front of the school . . . in order to punish, humiliate, and intimidate R.L." and to subject R.L. to ridicule. (Doc. 3, p. 15) Lampkin alleges that this happened during the fourth, fifth and sixth grades and that his teacher " prohibited R.L. from observing the blackboard as well [as] refused to instruct R.L. academically." (Id). Lampkin also alleges that R.L. was " placed in a locked closet for multiple days at a time throughout his time at the Foley Intermediate School." (Id.) Lampkin also alleges that R.L. was placed in the cubicle and the locked closet without consent and that " [f]or a period of three consecutive months R.L. was placed" in the cubicle " [w]hile his teacher instructed his fellow students. (Doc. 3, p. 17) R.L. is alleged to be bi-racial.

II. Statement of the law

Pursuant to Rule 12(c), a party may move for judgment on the pleadings, after the pleadings are closed. Fed.R.Civ.P. 12(c). " Judgment on the pleadings is proper when no issues of material fact exist, and the moving party is entitled to judgment as a matter of law based on the substance of the pleadings and any

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judicially noticed facts. We accept all the facts in the complaint as true and view them in the light most favorable to the nonmoving party." Interline Brands, Inc. v. Chartis Specialty Ins. Co., 749 F.3d 962, 965 (11th Cir. 2014) (citing Cunningham v. Dist. Attorney's Office for Escambia Cnty., 592 F.3d 1237, 1255 (11th Cir. 2010) (internal quotations marks omitted). On motion for judgment on the pleadings, the court considers the complaint, answers, and the exhibits thereto. Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000). When the motion is based on allegations of failure to state a claim upon which relief can be granted, it is evaluated the same as a Rule 12(b)(6) motion to dismiss. See Sampson v. Washington Mut. Bank, 453 F.App'x 863, 865 n. 2 (11th Cir. 2011); Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 n. 8 (11th Cir. 2002). In that regard, the allegations in the complaint must be accepted as true and the facts and all inferences must be construed in the light most favorable to the nonmoving party. See Scottsdale Ins. Co. v. Pursley, 450 F.App'x 888, 890 (11th Cir. 2012). The complaint must contain " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To do so, the plaintiff must plead sufficient facts that " allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). " Plausibility" in this context, must be more than a " sheer possibility that a defendant has acted unlawfully," and if the complaint alleges facts that are " merely consistent with" liability, then the pleading " stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. (citing Twombly, 550 U.S. at 557). Overall, the plaintiff must allege more than " labels and conclusions" or a " formulaic recitation of the elements of [the] cause of action." Twombly, 550 U.S. at 555.

The Court may not consider matters outside the pleadings without converting the motion into a motion for summary judgment. Fed.R.Civ.P. 12(d).[2] However, " [a] copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes." Fed.R.Civ.P. 10(c). Thus the Court may consider any documents attached to the complaint. Also, the Court may consider documents attached to an answer if the documents are " (1) central to the Plaintiff's claim; and (2) undisputed, which " in this context means that the authenticity of the document is not challenged." Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)

III. Analysis

As a preliminary consideration, Defendants cite to both the complaint and the first amended complaint in the motion and reply. In this circuit, an amended complaint supersedes the complaint it amends and it becomes the operative complaint in the action Pintando v. Miami-Dade Housing Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (" As a general matter, an amended pleading supersedes the former pleading; the original pleading is abandoned by the amendment, and is no longer

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a part of the pleader's averments against his adversary." ) (quoting Dresdner Bank AG, Dresdner Bank AG in Hamburg v. M/V Olympia Voyager, 463 F.3d 1210, 1215 (11th Cir. 2006)). The amended complaint does not incorporate by specific reference to facts in the original complaint, and therefore, it does not fall under an exception to the general rule. See Liberty Mutual Insurance Co. v. Fleet Force, Inc., 2013 WL 3357167, *8, n. 54 (N.D. Ala. July 1, 2013) (explaining that an exception to the rule " exists when the pleader incorporates by reference allegations from prior pleadings into the new pleading." ) Therefore, the Court looks only to the first amended complaint (doc. 3).

As a second preliminary consideration, the first amended complaint is a disfavored " shotgun complaint" which " contains several counts, each one incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts ( i.e., all but the first) contain irrelevant factual allegations and legal conclusions." Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002). The Eleventh Circuit disfavors shotgun pleadings such as the first amended complaint, explaining that shotgun pleadings " exact an intolerable toll on the trial court's docket." Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir. 1997); see also Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 n. 54 (11th Cir. 2008) (collecting cases). In Pelletier v. Zwiefel, the Eleventh Circuit explained that " [a]nyone schooled in the law who read these complaints, however, would know that many of the facts alleged could not possibly be material to all of the counts. Consequently, [the Defendants] and the district court had to sift through the facts presented and decide for themselves which were material to the particular cause of action asserted, a difficult and laborious task indeed." Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th Cir. 1991). Such is the case here.

A. Claims allegedly conceded by the Plaintiffs

In their reply, Defendants argue that Plaintiffs did not respond to certain arguments raised by Defendants, and therefore, they have conceded those claims. However, the Court of Appeals for the Eleventh Circuit has explained as follows:

As an initial matter, the district court dismissed Boyd's due process and malicious prosecution claims because it held that Boyd abandoned those claims by failing to address them in his response brief to the defendants' motion to dismiss. However, at the motion to dismiss stage, the scope of a court's review must be limited to the four corners of the complaint. St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002). Accordingly, in considering the defendants' motion for judgment on the pleadings, the district court erred by going beyond the face of the complaint. Boyd did not abandon his due process and malicious prosecution claims by failing to adequately address them in his response brief.

The appropriate inquiry at this stage of the litigation should have been whether the allegations of the complaint plausibly indicate that Boyd has a claim for relief. We find that he has not stated a claim for relief as to any cause of action.

Boyd v. Peet, 249 F.App'x 155, 157 (11th Cir. 2007); Stewart v. Bureaus Inv. Group No. 1, LLC, __ F.Supp.2d __, 24 F.Supp.3d 1142, 2014 WL 2462883, *19, n. 18 (M.D. Ala. June 2, 2014) (" Further, it is acknowledged that Ms. Stewart does not rebut every argument raised by Defendants in their opposition brief. At this stage of the litigation,

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the court will not deem any claim abandoned for Ms. Stewart's unresponsiveness to an argument lodged by Defendants. Cf. Boyd v. Peet, 249 F.App'x 155, 157 (11th Cir. 2007) ('[A]t the motion to dismiss stage, the scope of a court's review must be limited to the four corners of the complaint.') The focus here, like the focus during review of a motion to dismiss, belongs on the adequacy of the proposed pleading." ) Although Plaintiffs failed to respond to many of Defendants' arguments as to why certain claims should be dismissed, the Court will not consider those claims as abandoned.

B. Defendants' motion for judgment on the pleadings based upon Plaintiffs' failure to exhaust or attempt to circumvent the administrative remedies under the Individual with Disabilities Education Act (IDEA)

Defendants allege that five of the seven students, R.P., D.P., A.W., L.S. and C.M., for whom the school system has provided an Individualized Education Plan (IEP), failed to exhaust their administrative remedies as required by the Individual's with Disabilities Education Act (IDEA), and therefore the Court lacks subject matter jurisdiction as to these students. Defendants argue that these five plaintiffs are " essentially claiming that the students were not provided a free appropriate public education in the least restrictive environment in violation of the IDEA." (Doc. 30, p. 3) Thus, even though asserting other constitutional or statutory claims, defendants argue that plaintiffs must exhaust first exhaust their remedies under IDEA.

Plaintiffs respond that " the First Amended Complaint plainly demonstrate[s] Plaintiffs' aim is to avail themselves of the remedies Congress afforded them under Title VI . . . [which] allows individual plaintiffs to sue directly in federal court" for race discrimination " by entities receiving federal funding." (Doc. 32, p. 3) Plaintiffs also argue that their Equal Protection claims brought pursuant to § 1983 are based upon race discrimination and thus, not subject to the IDEA's exhaustion requirement and therefore, " the exhaustion requirements under § 1415(1) of the IDEA, which focuses on the rights of children with disabilities, does not bar plaintiffs' claims under Title VI." (Doc. 32, p. 2) As a basis for these claims Plaintiffs allege that the Defendants engaged in a policy and custom of " systematically targeting African-American, Hispanic, bi-racial, inter-racial relationships" and " a Caucasian student who has close friendships with children of color" and that their " discriminatory behavior is manifested by placing the Plaintiffs and an inordinate number of other minority students inside of the 'black box'." (Doc. 32, p. 3)

The Court is faced with the effects of the shotgun complaint. While Plaintiffs assert that all claims are based solely on racially discriminatory pattern of placing their students and other similarly situated students in the cubicle or locked closets; that is not all they have plead. Plaintiffs specifically allege as part of the " Nature of the Action" as follows:

1. . . . Defendants implemented the policy of utilizing the " black box" irrespective of the fact that some students were special needs students with Individual Education Programs (" IEP" ) that prohibited such punishment for such diagnoses as irritable bowel syndrome, ADHD, and emotional disturbance disorder. . . .

(Doc. 3, p. 3)

As part of their " Factual Allegations", the Plaintiffs allege as ...

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