Elvington v. Phenix City Board of Education

          REPORT AND RECOMMENDATION^[1]

          Susan Russ Walker United States Magistrate Judge

         I. Introduction

         Plaintiffs, 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.

         This matter is before the court on the motion to dismiss filed by Wilkes, Vickers, Sasser, Griffin, Jones, and Bonnie Burns^[2] (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. 67.^[3] 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.

         II. Federal Rule of Civil Procedure 12(b)(6) Standard of Review

          In 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 edits omitted).

         The 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.).

         III. Factual Background^[4]

         Plaintiff 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.

         The 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.

         Plaintiff 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.

         On or 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.

         On May 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.

         In an 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.

         Shortly 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.

         On May 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.

         Plaintiff 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.” Id.

         On June 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.

         On July 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 DHR. Id.

         On July 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.

         An 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., ¶¶ 51-52.

         Plaintiff 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.

         Plaintiff 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.

         IV. Plaintiffs' Claims

         A. Federal Claims

         In 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)^[5] and 660-5-34.05(4)(j)^[6] resulted in violations of his constitutional rights.

         B. State Law Claims

         In 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.

         In 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.

         In count six, plaintiff sues the Phenix BOE defendants and school official defendants for breach of contract. Id., ¶¶ 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.

         Plaintiff 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.

         In count eight, plaintiffs wife sues all defendants for loss of consortium due to the injuries sustained by plaintiff. Id., ¶¶ 106-107.

         V. Defendants' Motions

         Pending 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.

         A. School Official Defendants' Motion

         Superintendent 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 doctrine.

         B. Russell County DHR ...