United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE
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.
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
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.
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 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).
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).
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
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
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).
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).