United States District Court, M.D. Alabama, Eastern Division
REPORT AND RECOMMENDATION
Russ Walker United States Magistrate Judge
Ronnie Elvington (“plaintiff”) and Betsy
Elvington (“plaintiff's wife”), sue multiple
individual and municipal defendants for money damages,
alleging state law claims and constitutional violations under
42 U.S.C. § 1983. See Doc. 60. Named as
defendants in the second amended complaint are the Phenix
City Board of Education (“Phenix BOE”), the
Russell County Department of Human Resources (“Russell
County DHR), Thomas Vickers (“Vickers”), Randy
Wilkes (“Wilkes”), Antonio Griffin
(“Griffin”), Kimberly Price
(“Price”), Jason Sasser (“Sasser”),
David Jones (“Jones”), Paul Stamp
(“Stamp”), Mesha Patrick (“Patrick”),
Patricia Alexander (“Alexander”), Brady Baird
(“Baird”), John Donohue (“Donohue”),
Fran Ellis (“Ellis”), Will Lawrence
(“Lawrence”), and Jan Casteel
(“Casteel”). The second amended complaint is
comprised of eight counts. See Id. The first three
assert federal claims under 42 U.S.C. § 1983:
unreasonable seizure and detention in contravention of the
Fourth Amendment and deprivation of liberty in violation of
the Fourteenth Amendment by all defendants (count one);
failure to train and supervise against all defendants except
Price (count two); and failure to implement appropriate
policies, customs and practices by all defendants (count
three). Id. at 13-18. Counts four through seven
assert state law claims of negligence (count four), breach of
failure to provide a safe working environment (count five),
breach of contract (count six), and premises liability (count
seven). Id. at 18-21. In the final count,
plaintiff's wife sues all defendants for loss of
consortium (count eight). Id. at 21-22.
matter is before the court on the motion to dismiss filed by
Wilkes, Vickers, Sasser, Griffin, Jones, and Bonnie
Burns (the “school official
defendants”), see Doc. 63; the motion to
dismiss filed by Russell County DHR, Price, and Casteel (the
“DHR defendants”), see Doc. 65; and the
motion to dismiss filed by the Phenix BOE, Stamp, Patrick,
Alexander, Baird, Donahue, Ellis, and Lawrence (the
“Phenix BOE defendants”), see Doc.
The court has subject matter jurisdiction pursuant to 28
U.S.C. §§ 1331, 1343, and 1367. Personal
jurisdiction and venue are not contested. The parties have
fully briefed the motions, and the court takes the motions
under submission on the pleadings without oral argument. For
the reasons that follow, the court concludes that the motions
to dismiss are due to be granted as to plaintiffs'
federal claims in counts one, two, and three; that all claims
against the Russell County DHR should be dismissed; and that
the district court should decline to exercise supplemental
jurisdiction over the state law claims.
Federal Rule of Civil Procedure 12(b)(6) Standard of
order to survive a motion to dismiss for failure to state a
claim pursuant to Fed.R.Civ.P. 12(b)(6), the plaintiff must
allege “enough facts to state a claim for relief that
is plausible on its face.” Bell Atlantic Corp., v.
Twombly, 550 U.S. 544, 570 (2007). The standard for a
motion to dismiss under Rule 12(b)(6) was explained in
Twombly, and refined in Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009), as follows:
Two working principles underlie our decision in
Twombly. First, the tenet that a court must accept
as true all the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice. Rule 8 marks a notable and
generous departure from the hypertechnical, code-pleading
regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than
conclusions. Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss. Determining
whether a complaint states a plausible claim for relief will
… be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense. But where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct,
the complaint has alleged - but it has not shown - that the
pleader is entitled to relief.
Iqbal, 556 U.S. at 678-79 (citations and internal
Twombly-Iqbal two-step analysis begins “by
identifying the allegations in the complaint that are not
entitled to the assumption of truth” because they are
conclusory. Id., at 680; Mamani v. Berzain,
654 F.3d 1148, 1153 (11th Cir. 2011) (“Following the
Supreme Court's approach in Iqbal, we begin by
identifying conclusory allegations in the Complaint.”).
After conclusory statements are set aside, the
Twombly-Iqbal analysis requires the Court to assume
the veracity of well-pleaded factual allegations, and then to
determine whether they “possess enough heft to set
forth ‘a plausible entitlement to relief.'”
Mack v. City of High Springs, 486 Fed.Appx. 3, 6
(11th Cir. 2012) (quotation omitted.) “To survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face' … that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citations omitted).
Establishing facial plausibility, however, requires more than
stating facts that establish mere possibility.
Mamani, 654 F.3d at 1156 (“The possibility
that - if even a possibility has been alleged
effectively - these defendants acted unlawfully is not enough
for a plausible claim.”) (emphasis in original).
Plaintiffs are required to “allege more by way of
factual content to nudge [their] claim[s] … across the
line from conceivable to plausible.” Iqbal,
556 U.S. at 683 (internal editing and citation omitted.).
was employed by the Phenix BOE as a full-time
paraprofessional working with special needs students at
Central High School beginning in 2014. (Doc. 60, ¶ 24).
His employment agreement with the school was signed by Wilkes
as the superintendent of schools and approved by the Phenix
BOE and its members. Id., ¶ 25. In prior years,
plaintiff served as a substitute teacher and was familiar
with the students, the Phenix BOE defendants, and the school
official defendants. Id., ¶ 26.
Phenix BOE defendants approved a student code of conduct that
addressed behavior, attendance, and other matters.
Id., ¶¶ 27-28. Pursuant to the code of
conduct, there were three levels of offenses: Class I-minor
offenses, Class-intermediate offenses II, and Class II-major
offenses. Id., ¶ 28. The code of conduct
expressly prohibited students from assaulting, threatening,
or striking a school board employee or another student. The
code also prohibited touching of other students.
Id., ¶ 29.
alleges that, prior to the subject incident, he expressed his
concerns regarding the safety of students and employees by
notifying the Phenix BOE defendants and school official
defendants on several occasions regarding violent incidents
involving K.U. and other students. Id., ¶ 30.
Plaintiff emailed school officials Vickers, Griffin, and
Wilkes about dangerous situations involving several students.
Id., ¶ 31. Plaintiff spoke with board member
Stamp several times about these issues. Id.
Plaintiff alleges that the Phenix BOE defendants and school
official defendants had notice of previous incidents
involving the student K.U. and his violent behavior, as well
as his history of inappropriately touching other students.
Id., ¶ 32. In a letter dated March 13, 2016 to
Montray Thompson, which was copied to Wilkes, Burns, Vickers,
and Griffin, plaintiff specifically relayed his safety
concerns regarding the volatile and dangerous behavior of
students T.R. and K.U. toward students and staff.
Id., ¶¶ 33-34.
around March 15, 2016, plaintiff underwent a surgical
procedure in which a defibrillator/pacemaker was placed in
his chest. Id., ¶ 35. He remained out of work
until April 16, 2016. Id. On May 11, 2016, he was
informed that his contract would not be renewed for the next
school year. Id., ¶ 36.
19, 2016, when plaintiff was performing his job duties in a
class, he was approached by K.U., who wanted to leave early.
Id., ¶ 37. Plaintiff told K.U. that school was
almost over and he needed to remain seated. Id. With
his back to K.U., plaintiff continued working. Plaintiff
heard another student call out to him to “watch
out.” Id., ¶ 38. Plaintiff alleges that
when he turned around to see what was going on, K.U. pushed
him up against the wall and punched him in the chest with a
closed fist. Id., ¶ 39.
effort to get K.U. off him, plaintiff restrained K.U. until
the other teachers, Ms. McQuiston and Ms. Johnson, could
reach him to assist. Id., ¶ 40. The incident
shook up plaintiff, and he went home for the day once the
situation was contained by the other teachers present.
Id., ¶ 41.
thereafter, plaintiff received a call at his home from
defendant Sasser, a Central High School assistant principal.
Id., ¶ 42. Sasser asked plaintiff to describe
what happened and told plaintiff to stay out of school until
he could discuss the situation with defendant Vickers,
Central High School's principal. Id.
20, 2016, plaintiff went to the school to discuss the
situation with principal Vickers. Id., ¶ 43. He
was unable to locate Vickers, so he spoke with defendant
Griffin, another Central High School assistant principal.
Id. Griffin told plaintiff that he needed to discuss
the situation with the school resource officer and instructed
plaintiff to go home to wait for a call from the resource
officer. Id., ¶ 44. Before leaving for home,
plaintiff gave his school keys to Griffin and asked that he
be put on leave without pay for the remaining week of the
school year. Id.
claims he was not contacted by anyone from the school
administration after that date. Id., ¶ 45. He
asserts that the Phenix BOE defendants and school official
defendants failed to investigate the incident further, in
violation of their own policies and procedures. Id.
He alleges that their inaction was “willful and beyond
their authority and discretionary functions.”
21, 2016, plaintiff learned from his cardiologist that his
pacemaker was not functioning properly, which plaintiff
alleges was a result of its being dislodged when K.U. punched
him in the chest. Id., ¶ 46. On July 5, 2016,
plaintiff underwent a second surgery to correct the
positioning of his pacemaker. Id., ¶ 47.
8, 2016, defendant Price came to plaintiff's home to show
him a report regarding an investigation of child abuse.
Id., ¶ 48. Price is employed by Russell County
DHR as a case worker. Id., ¶ 6. Price relayed
the results of the investigation, which
“indicated” child abuse of K.U. during the May
19, 2016 incident. Id., ¶ 48. Plaintiff alleges
that he was never notified or interviewed about the
investigation. Id. Price presented plaintiff with a
typewritten letter reflecting a determination of
“indicated.” Id. The letter was signed
by Florence Bellamy, who has since been succeeded by Jan
Casteel as the director and supervisor of the Russell County
13, 2016, plaintiff's cardiologist authored a letter
stating that the plaintiff's pacemaker could have been
dislodged by K.U.'s punch. Id., ¶ 49.
Additionally, documentation from the pacemaker itself
indicated that it was, in fact, dislodged during the relevant
time frame. Id. Within ten days of Price's visit
to advise plaintiff of the results of the investigation,
plaintiff notified the Russell County DHR of his intention to
contest the findings and request an administrative hearing.
Id., ¶ 50.
administrative hearing conducted on March 20, 2017, concluded
in plaintiff's favor, with the determination of
“indicated” found to be incorrect because
plaintiff was physically assaulted by K.U. Id.,
alleges that, despite his giving multiple warnings to
defendants regarding K.U.'s violent behavior prior to the
incident's occurring, he and other classroom staff were
told by school official defendants to overlook K.U.'s
behavior because his parents had a lawyer who could cause
trouble for the school system. Id., ¶ 54.
Plaintiff alleges that Wilkes, Burns, Vickers, and Griffin
acted with deliberate indifference egregious enough to rise
to the level of a constitutional violation when, although
they were aware of K.U.'s propensity for violence, they
did nothing about it. Id., ¶ 53. Plaintiff
alleges that their deliberate indifference, coupled with the
failure of the Phenix BOE defendants and school official
defendants to implement and follow established rules and
regulations governing student conduct, resulted in the
violation of plaintiff's constitutional rights.
Id. Plaintiff made numerous reports regarding K.U.,
but he was told he could do nothing due to the student's
behavioral disability. Id.
alleges that Russell DHR employees Casteel and Price failed
to follow standard policies and procedures in failing to
interview him before making a determination of
“indicated, ” and that such failure violated
Alabama law and cannot be considered to be within the
performance of their discretionary duties. Id.,
¶ 56. He asserts that the Russell County DHR had a
policy, pattern, and practice of allowing its employees to
fail to adhere to specified rules and procedures, which
resulted in a violation of plaintiff's constitutional
rights. Id., ¶ 57. Plaintiff claims that he has
suffered damages as a result of defendants' conduct, and
he seeks compensatory and punitive damages against
defendants. Id., ¶¶ 58- 59.
Plaintiff's wife also seeks damages for loss of
consortium. Id., ¶ 60.
count one of the second amended complaint, plaintiff sues all
defendants under 42 U.S.C. § 1983 for violations of the
Fourth and Fourteenth Amendment based on alleged unreasonable
seizures and detentions and a deprivation of liberty without
due process. Id., ¶¶ 63-68. In count two,
plaintiff sues all defendants except Price (the DHR case
worker) under § 1983, alleging that defendants
promulgated a custom or policy of inadequate training and
supervision that resulted in the deprivation of his
constitutional rights. Id., ¶¶ 69-77. He
alleges that the Russell County DHR's inadequate training
and supervision resulted in an incorrect and unfounded
determination of “indicated.” Id.,
¶ 70. He alleges that the school official defendants
acted willfully and in bad faith by failing to take safety or
corrective measures after being notified on numerous
occasions of physical incidents as it relates to K.U. and
other students. Id., ¶ 71. The final §
1983 claim in count three sues all defendants for adopting
and implementing policies and customs that allowed Price to
conduct an investigation of child abuse without interviewing
all involved persons. Id., ¶ 79. Plaintiff
claims that the manner in which the child abuse report was
handled improperly violated his constitutional rights.
Id., ¶ 80. He states that defendants acted in
bad faith in failing to interview him or notify him as to the
allegations. Id., ¶ 81. Plaintiff claims that
the failure of defendants to implement the requirements of
Alabama Administrative Code §§
660-5.34.05(1)(e) and 660-5-34.05(4)(j) resulted in
violations of his constitutional rights.
State Law Claims
count four, plaintiff sues all defendants for negligence.
Id., ¶¶ 85-89. He claims that the DHR
defendants were negligent in failing to discharge their
duties as set forth in DHR regulations and in Alabama
Administrative Code § 660-5-34. Id., ¶ 86.
He alleges that the Phenix BOE defendants and school official
defendants acted negligently and beyond their authority when
the school official defendants reported an incident of child
abuse to DHR without a proper investigation, and failed to
respond appropriately to prior reports of K.U.'s violent
and sexually harassing behavior. Id., ¶ 87.
Plaintiff alleges that the school official defendants brought
in a third party to evaluate and assess K.U. prior to the
incident involving plaintiff. Id., ¶ 88.
count five, plaintiff sues the Phenix BOE defendants and
school official defendants for breach of the duty of care to
provide a safe work environment. Id., ¶¶
90-92. He alleges that defendants had knowledge of K.U.'s
problematic behavior and failed to address the situation.
Id., ¶ 91. Following plaintiffs formal letter
notifying defendants of K.U.'s conduct, plaintiffs
employment contract was not renewed. Id.
count six, plaintiff sues the Phenix BOE defendants and
school official defendants for breach of contract.
Id., Â¶Â¶ 93-95. He states that these defendants
breached their duty to contract in good faith and deal fairly
with him when they failed to take any safety measures after
being notified of K.U.'s violent behavior. Id.,
¶¶ 94-95. In counts four, five, and six, he
alleges that defendants' actions and omissions resulted
in injuries to him, including serious emotional distress,
loss of property and employment, humiliation, embarrassment,
and damage to reputation. He seeks compensatory and punitive
damages, along with attorneys' fees and costs.
Id., ¶¶ 89, 92, 95.
sues the Phenix BOE and school official defendants for
premises liability in count seven. Id., ¶¶
96-105. He alleges that he was an employee-invitee on the
school premises for the purpose of performing his duties as a
teacher and employee. Id., ¶ 97. He alleges
that defendants knew or should have known of the unreasonably
dangerous situation that existed, but they failed to correct
the condition or to warn plaintiff of it. Id.,
¶¶ 98-99. Plaintiff alleges that, as a result of
defendants' negligence, he suffered severe personal
injuries, including trauma to his heart. Id., ¶
101. He claims both physical and psychological damages.
Id., ¶ 103.
count eight, plaintiffs wife sues all defendants for loss of
consortium due to the injuries sustained by plaintiff.
Id., ¶¶ 106-107.
before the court are three motions to dismiss with supporting
briefs filed by defendants. See Docs. 63-68.
Plaintiffs filed a response in opposition, see Doc.
70, and defendants replied, see Docs. 71, 74, 75.
School Official Defendants' Motion
Randy Wilkes, principal Thomas Vickers, assistant principal
Jason Sasser, assistant principal Antonio Griffin, special
education coordinator David Jones, and director of special
services Bonnie Burns (the school official defendants) move
to dismiss the second amended complaint for failure to state
a cause of action pursuant to Fed.R.Civ.P. (12)(b)(6) and on
the basis of qualified immunity and state-agent immunity.
(Docs. 63, 64). Plaintiffs respond that they have pled
sufficient facts demonstrating the school official
defendants' liability, including allegations regarding
the school official defendants' knowledge of the specific
safety concerns involving K.U. and their failure to act on
these concerns because K.U. could “cause trouble for
the school.” Plaintiffs contend that qualified immunity
does not preclude suit against the school official defendants
because they violated the clearly established substantive due
process right of bodily integrity. Plaintiffs argue that
state-agent immunity does not apply because the school
official defendants are not agents of the state, but, even if
they are, their actions were willful, malicious, and in bad
faith, which prevents application of the state-agent immunity
Russell County DHR ...