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Avery v. City of Hoover

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

July 17, 2015

CITY OF HOOVER, et al., Defendants.



I. Introduction

Former Hoover High School student Ashlynn Avery brings this lawsuit against the City of Hoover, Alabama, the Hoover City Board of Education, the principal of Hoover High School, a school resource officer, and a school employee. The lawsuit relates to an incident that began while Ms. Avery was in "in school suspension" or ISS. Ms. Avery alleges that the incident snowballed and that ultimately, a school resource officer shoved her "face first into a file cabinet, " handcuffed her, and took her to the Hoover police station. (Doc. 39, ¶¶ 20b-21).[1] Ms. Avery contends that she sustained injuries during the arrest.

In her second amended complaint, Ms. Avery asserts that the defendants violated her rights under the United States Constitution and federal and state law. (Doc. 39). The defendants have moved to dismiss all of Ms. Avery's claims. (Docs. 42, 44, 46, 48, 49). As discussed below, the Court grants the motions in part and denies them in part.

II. Standard of Review

Rule 8(a)(2) of the Federal Rules of Civil Procedure states that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "Generally, to survive a [Rule 12(b)(6)] motion to dismiss and meet the requirement of Fed.R.Civ.P. 8(a)(2), a complaint need not contain detailed factual allegations, ' but rather only enough facts to state a claim to relief that is plausible on its face.'" Maledy v. City of Enterprise, 2012 WL 1028176, *1 (M.D. Ala. March 26, 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). "Specific facts are not necessary; the statement needs only give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555).

"Thus, the pleading standard set forth in Federal Rule of Civil Procedure 8 evaluates the plausibility of the facts alleged, and the notice stemming from a complaint's allegations." Keene v. Prine, 477 Fed.Appx. 575, 583 (11th Cir. 2012). "Where those two requirements are met... the form of the complaint is not significant if it alleges facts upon which relief can be granted, even if it fails to categorize correctly the legal theory giving rise to the claim." Id. When deciding a motion to dismiss, the Court must assume the truth of the factual allegations in the complaint and view those allegations in the light most favorable to the plaintiff. Adinolfe v. United Tech. Corp., 768 F.3d 1161, 1169 (11th Cir. 2014) (internal citations omitted).

III. Factual and Procedural Background

The events that give rise to this lawsuit occurred while Ms. Avery was a student in the City of Hoover public school system. Ms. Avery suffers from dyslexia, asthma, Type II Diabetes, and sleep apnea. (Doc. 39, ¶ 14). Consequently, in the fall of 2008, the Hoover public school system developed an individualized education plan ("IEP") for Ms. Avery. The school system issued addendums to Ms. Avery's IEP in 2009 "and thereafter." (Doc. 39, ¶ 16).[2]

In her amended complaint, Ms. Avery states that her dyslexia is "so severe, that she is able to read and write at only a very basic level, and this affects all her school subjects." (Doc. 39, ¶ 16). According to her IEP, Ms. Avery "tries to avoid class when she knows it is something that is difficult." (Doc. 39, ¶ 18a). To address these challenges, Ms. Avery's IEP calls for various types of instructional support such as books on tape and access to a computer. (Doc. 39, ¶ 19a).

On May 3, 2011, Hoover High School personnel suspended Ms. Avery for allegedly skipping class. (Doc. 39, ¶ 12). According to the second amended complaint, the reason the school gave for the ISS was pretextual-Ms. Avery was actually placed in ISS "as a punishment for what were the alleged effects" of the medical conditions in Ms. Avery's IEP. (Doc. 39, ¶ 14).

While in ISS, Ms. Avery was instructed to read Huckleberry Finn. Hoover High School did not give Ms. Avery the book on tape or access to a computer to help her complete the assignment. (Doc. 39, ¶ 19a). Because of her medical conditions, Ms. Avery dozed off while reading the book. (Doc. 39, ¶ 18b). To wake Ms. Avery, the ISS supervisor, defendant Joshua Whited, struck the cubicle in which Ms. Avery was sitting with his hand, causing the cubicle to hit Ms. Avery's head. (Doc. 39, ¶ 19b). When Ms. Avery dozed off again, Mr. Whited took the book that Ms. Avery was reading, "slammed the book onto the desk... in which she was sitting, ... and screamed for her to wake up." (Id. ). The book bounced on the desk and hit Ms. Avery in the chest. (Doc. 39, ¶ 44).

Startled, Ms. Avery became hysterical. (Doc. 39, ¶ 20b). Ms. Avery was ordered to leave the room. As she walked toward the principal's office, Ms. Avery called her mother from her cell phone. (Doc. 39, ¶ 20b). Trailing Ms. Avery down the hallway, Officer Bryant "made aggressive contact against her by slapping her backpack." (Doc. 39, ¶ 20b). Because Ms. Avery did not know who was behind her, Ms. Avery said "leave me alone." (Doc. 39, ¶ 20b). Officer Bryant then shoved Ms. Avery "face first into a file cabinet and handcuffed her." (Id. ).

Ms. Avery was taken to the police station. (Id. ¶ 21). On the way, she vomited in the police car. (Doc. 39, ¶ 21). While handcuffed, Ms. Avery sustained injuries to her arm and wrist. Ms. Avery wore a cast for a month, and she required treatment for temporary hearing loss after the incident. (Doc. 39, ¶ 22). Ms. Avery alleges that she also suffered emotional trauma for which she needed "extended mental counseling." (Doc. 39, ¶ 23).

In her second amended complaint, Ms. Avery contends that Officer Bryant and Mr. Whited violated the City's policies concerning the use of force and the Board's disciplinary policies. (Doc. 39, ¶¶ 24-25).[3] Ms. Avery also states that the "Hoover School System has used suspensions against children with behavioral disabilities, " (Id. ¶ 28), and that "[t]he actions of the Hoover School System encouraged and allowed police intervention [and] has prevent[ed] [Ms. Avery] from receiving full access to educational opportunities to which [she] is entitled." (Doc. 39, ¶ 29).

Based on this alleged conduct, Ms. Avery asserts an excessive force claim against Officer Bryant and the City of Hoover under 42 U.S.C. § 1983. (Doc. 39, p. 6).[4] She asserts state law assault and battery claims against Officer Bryant and Mr. Whited. (Doc. 39, p. 7). Ms. Avery also asserts against all of the defendants a deliberate indifference claim under 42 U.S.C. § 1983 and a claim for violation of the ADA for "criminalizing disabilities and suspending children for manifestations of disabilities." (Doc. 39, pp. ...

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