A.H. v. Jackson-Olin High School

          MEMORANDUM OPINION AND ORDER

          ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE

         This matter comes before the court on Defendants Birmingham Board of Education and Jackson-Olin High School's motion to dismiss the amended complaint. (Doc. 15). The amended complaint alleges that despite the existence of an individual education program (“IEP”) requiring a teacher or paraprofessional to strictly supervise minor Plaintiff A.H.'s non-academic or extracurricular activities, teachers failed to supervise A.H. and on two occasions, other students raped or sexually assaulted her at school.

         A.H. filed this lawsuit against the Birmingham Board of Education (“the Board”) and Jackson-Olin High School, alleging that: (1) their failure to supervise her in accordance with the IEP constituted deliberate indifference to her needs (“Count One”); (2) their actions constituted discrimination under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12182 (“Count Two”); and (3) their failure to adequately supervise her was negligent or grossly negligent (“Count Three”).

         The court GRANTS IN PART and DENIES IN PART the motion to dismiss. First, Jackson-Olin High School is not a legal entity subject to suit, so the court DISMISSES it as a defendant WITH PREJUDICE. Second, the court DISMISSES Count One WITHOUT PREJUDICE because A.H. has not alleged facts from which the court can infer the existence of a custom or policy that caused a deprivation of A.H.'s federal rights. Third, the court DENIES the motion to dismiss Count Two because contrary to Defendants' only argument in support of dismissal, a plaintiff can in some circumstances state an ADA claim based on conduct that violates the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. And finally, the court DISMISSES Count Three WITHOUT PREJUDICE because the Board is entitled to state immunity from the state law claims asserted in that count.

         I. BACKGROUND

         At this stage, the court must accept as true the factual allegations in the complaint and construe them in the light most favorable to the plaintiff. Butler v. Sheriff of Palm Beach Cty., 685 F.3d 1261, 1265 (11th Cir. 2012).

         A.H. is a student with “limited cognitive abilities.” (Doc. 12 at 6 ¶ 30). For the 2017-2018 school year, when A.H. was attending the Jackson-Olin High School, the school developed an IEP under the IDEA. (Doc. 12 at 3 ¶ 10). A.H.'s IEP provided that she could participate in non-academic or extracurricular activities only under the strict supervision of a teacher or paraprofessional. (Id. at 3 ¶ 11). A.H. alleges that teachers at Jackson-Olin High School were not trained about the requirements of the IDEA and that the administrative staff “did little or nothing” to ensure that teachers followed the IEPs. (Id. at 4 ¶ 13). As a result, “the IEPs issued for students were largely ignored unless there was an issue with a student potentially failing the grade or class, ” and students with IEPs would wander the halls without supervision. (Id. at 4-5 ¶¶ 12, 14, 27).

         In late October 2017, a male student came to A.H.'s classroom and told the coach supervising the class that another teacher had “sent for A.H.” (Doc. 12 at 5 ¶¶ 24-25). The coach allowed A.H. to leave with the other student unsupervised. (Id. at ¶ 25). The student took A.H. to a classroom and raped her. (Id. at 6 ¶ 28). A.H. reported the rape to her special education teacher. (Id.). The amended complaint does not state what the teacher did about A.H.'s report, but it appears that no one told A.H.'s grandmother-who appears to be A.H.'s guardian-about the rape. (See Id. at 5 ¶ 24).

         Several days later, on November 1, 2017, A.H. was left unattended in the girls' locker room during her physical education class. (Doc. 12 at 4 ¶¶ 15, 17). Four male students entered the locker room, kicked open the bathroom stall where A.H. was located, and streamed themselves on Facebook forcing her to perform oral sex on them. (Id. at 4 ¶ 17). Another student walked in on the assault and stopped the male students. (Id. at 4 ¶ 18). The same student then reported the assault to school authorities, who eventually reported the assault to the Birmingham Police Department. (Id. at 4 ¶ 20). The school suspended A.H. and the male students. (Id. at 5 ¶ 22).

         Slightly over a month later, A.H.'s grandmother took her to a pediatrician, who found that A.H. had contracted chlamydia. (Doc. 12 at 5 ¶ 23). At that point A.H.'s grandmother learned that A.H. had been raped a few days before the locker room assault. (See Id. at 5 ¶¶ 23-24).

         II. DISCUSSION

         Defendants move to dismiss Jackson-Olin High School as a defendant because it is not a legal entity subject to suit, to dismiss the federal counts for failure to state a claim, under Federal Rule of Civil Procedure 12(b)(6), and to dismiss the state law count for lack of subject matter jurisdiction, under Rule 12(b)(1). (Doc. 15).

         A Rule 12(b)(1) motion to dismiss attacks the court's subject matter jurisdiction over case. By contrast, a Rule 12(b)(6) motion to dismiss attacks the legal sufficiency of the complaint. “To survive a [Rule 12(b)(6)] motion to dismiss, the plaintiff must plead ‘a claim to relief that is plausible on its face.'” Butler, 685 F.3d at 1265 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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