M. CASEY RODGERS, District Judge.
Plaintiff N.R. is an autistic, nonverbal child, who allegedly suffered physical and verbal abuse at the hands of his special education teacher, Marlynn Stillions, while he was enrolled at Kenwood Elementary School in Okaloosa County, Florida during the 2014-15 and 2015-16 school years. N.R., through his father, Eddie Perillo, filed the instant action against the Okaloosa County School Board, the Sheriff of Okaloosa County in his official capacity, and eight individual defendants, alleging federal constitutional and statutory claims, as well as claims under Florida law.
The basic facts, as alleged in the Second Amended Complaint, ECF No. 135, and construed in favor of N.P., are as follows.
Plaintiff N.P. is an autistic, nonverbal child enrolled in the exceptional students education ("ESE") program at Kenwood in Fort Walton Beach, Florida. Kenwood is a public school in the Okaloosa County School District ("the School District"), governed and overseen by Defendant Okaloosa County School Board ("School Board"). During the time period relevant to this case, Defendant Mary Beth Jackson was the Superintendent of the School District
In April 2014, N.P., a nonverbal three-year old child diagnosed with autism spectrum disorder, began attending the pre-kindergarten ESE program at Kenwood. During the 2014-15 and 2015-16 school years, when N.P. was four and five years old, he was assigned to Stillions's special education classroom. During those years, unnamed school employees observed N.P. and other nonverbal students suffer numerous abuses by Stillions. For example, as "disciplinary tactics," Stillions forced vinegar into N.P.'s mouth and sprayed it in his face, or instructed teacher's assistants to do so; kneed him in the head and body to force him to sit down; angrily screamed and yelled at him and other ESE nonverbal students; and, for "not behaving" or "for the sole purpose of provoking and upsetting" them, Stillions would deprive N.P. and other ESE students of their lunch or portions of their breakfast. According to the Second Amended Complaint, Stillions would purposefully trip N.P. as he entered the cafeteria and, at times, restrained him by the waistband and shirt, carried him into the cafeteria, and threw him on the floor. It is alleged that on numerous occasions, N.P. was observed lying on the floor of the cafeteria visibly upset or crying as Stillions used her foot to push or kick him down one of the aisles. In addition, Stillions secluded nonverbal ESE students, including N.P., in a basket, where she would place a bean bag on or near the child's genitals and step on it to cause the child pain.
According to the complaint, the abuse was "rampant and widespread" and "consistent" over a two-year period and many unnamed School District employees observed Stillions inflicting abuse on N.P. and others. It is alleged generally that all of the defendants were on notice of Stillions's conduct but failed to intervene or otherwise properly report the abuse.
As part of Farley's investigation of Stillions, he interviewed approximately 20 School District employees. Those interviewed expressed grave concerns about Stillions's behavior and recounted the history of her abuse of ESE students, including N.P., dating back to the 2014-15 school year. During the investigation, Farley and unnamed School District administrators told employees they were not to discuss the investigation or their knowledge of Stillions's conduct, which was allegedly intended to intimidate Kenwood employees and to further conceal the multi-year pattern of abuse. It is also alleged that school officials, namely Superintendent Jackson, HR Assistant Superintendent Smith, Principal Julie Pickard, and ESE Director Melody Sommer were aware of Farley's investigation. On June 17, 2017, Farley presented an Investigative Summary Report to Smith and Pickard, which outlined the details and findings of his investigation, including multiple confirmed allegations of child abuse of N.P. Although Farley recommended some disciplinary measures against Stillions, he did not make a mandatory report to the Florida Department of Children and Families ("DCF") Abuse Hotline as required by law, and neither did Smith or Pickard.
Kenwood Resource Officer, Deputy Vasiloff, was also allegedly on notice of Stillions's widespread abuse of ESE students, including N.P., and failed to intervene or report the abusive conduct.
On July 18, 2016, one month after Farley's report on Stillions, HR Assistant Superintendent Smith sent an email to Superintendent Jackson, Investigator Farley, and Principal Pickard acknowledging the School District's failure "to emphasize and/or enforce the mandatory requirement to report child abuse" and requesting that, in light of the "Stillions events," child abuse/neglect training be provided to employees during the 2016-17 school year. ECF No. 135 at ¶ 109. The next day, Pickard sent a reply email to the same officials expressing that the employees' failure to report was a result of their not knowing "what/when" to report and fearing retaliation by a teacher's union if they reported abuse. See id. Two weeks later, on August 1, 2016, Smith "dismissed the case" against Stillions as untimely and decided not to include Farley's report in Stillions's personnel records. The School Board, Jackson, Smith, Farley and Sommer then approved Stillions for a transfer to Silver Sands for the following 2016-17 school year, where she was placed in another ESE classroom with even more severely disabled students.
Throughout the relevant time period in this case, none of the School District officials reported Stillions's abuse to the students' parents or to appropriate authorities, despite their state-mandated reporting obligation. N.P. alleges that this was all part of a "long-standing custom, policy, and/or practice" within the School District of deliberate indifference and concealment of abuse of ESE students.
By February 2016, even before being notified of Stillions's abusive conduct, School District officials Jackson, Smith, and Farley were aware of abusive conduct towards ESE students at Silver Sands. Roy Frazier, an ESE instructor at Silver Sands, and one teacher's aide, subjected nonverbal ESE students in Frazier's classroom to persistent physical and verbal abuse, restraint, and seclusion tactics. Frazier reportedly "pushed, slapped, punched, and kicked" ESE students entrusted to his care with great force, made students cry by pinching and flicking them, and restrained students against their will for hours, strapping them into a stationary exercise bike, confining them to cardboard boxes, and placing them in a small, dark room. He told an aide that he was using behavioral techniques intended to redirect the students' attention by inflicting pain on them. He also would take ESE students on "field trips," which were nothing more than opportunities for him to shop at garage sales while leaving the students locked in a hot transport van. According to the complaint, Teacher's aides repeatedly reported this conduct to the principal of Silver Sands, Farley, Jackson, and Smith over a two year period, yet no action was taken until early 2016, when Farley conducted an investigation into the reports of abuse by Frazier.
On February 24, 2016, Farley submitted his investigative report to the Human Resources Division where Smith was the HR Assistant Superintendent, confirming seven out of seven abuse allegations, which he characterized as "ethical violations," including wrongful physical contact with ESE students. On March 5, 2016, Farley sent a summary of the investigation to Smith and Jackson. On March 16, 2016, Smith then sent Jackson a letter recommending that Frazier receive a 3-day paid suspension for "not following student [behavioral intervention plans]" and "not documenting accurate travel locations when he took students on field trips." ECF 135, ¶ 94. The next day, Superintendent Jackson recommended the paid suspension to the School Board. It is alleged that Jackson and Smith "intentionally concealed" the confirmed physical abuse of nonverbal disabled ESE students by Frazier.
In the Second Amended Complaint, N.P. alleges constitutional claims of unlawful restraint, substantive due process, equal protection, and conspiracy to interfere with N.P.'s civil rights on theories of individual and supervisory liability and a custom of deliberate indifference and concealment (Counts One through Ten). He also asserts federal law claims against the School Board under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 701, et seq. (Counts Eleven and Twelve), as well as various state law claims against Stillions for negligence and battery (Counts Eighteen and Twenty
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a complaint. Federal pleading rules require a complaint to contain a "short and plain statement of the claim showing that the pleader is entitled to relief." See Fed. R. Civ. P. 8(a)(2). While detailed allegations are not required, there must be "more than labels and legal conclusions, and a formulaic recitation of the elements of a cause of action" will not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, the factual allegations in a complaint must state a claim that is "plausible on its face," Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and which "raise a right to relief above the speculative level," Twombly, 550 U.S. at 555.
In deciding whether a plaintiff has set forth a plausible claim, the court must accept the factual allegations in the complaint as true, Erickson v. Pardus, 551 U.S. 889, 94 (2007), and draw all reasonable inferences in the plaintiff's favor, Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). However, "[l]egal conclusions without adequate factual support are entitled to no assumption of truth." Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011). The plausibility determination presents a "context-specific task" that requires a court to draw on judicial experience and common sense." Iqbal, 556 U.S. at 679. Dismissal is appropriate only where, "on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action." Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006) (quoting Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993)).
The Court begins with N.P.'s constitutional claims against the individual defendants under supervisory liability, including whether any of them are entitled to qualified immunity. The Court then addresses N.P.'s constitutional and federal law claims against the School Board, followed by the constitutional conspiracy claims, and state law claims against the School Board and Sheriff.
In Counts Five, Six, and Seven, N.P. alleges violations of his substantive due process and equal protection rights under 42 U.S.C. § 1983 (providing a cause of action for the deprivation of a constitutional or federal statutory right by a state actor).
In this case, it is undisputed that all of the individual defendants were acting under color of state law in regard to the conduct alleged by N.P.: they acted in their capacities as a deputy, program director, principal, investigator, assistant superintendent, or superintendent of a public school district. Because it is not alleged that these defendants participated in the physical abuse of N.P., the only issue is whether N.P. has adequately alleged that these defendants deprived him of his constitutional rights while acting as Stillions's supervisors.
Supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability. Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010). However, they may be liable for their own misconduct. Iqbal, 556 U.S. at 676-77. Actionable misconduct occurs where the supervisor "personally participate[d] in the alleged constitutional violation" or where "there is a causal connection between actions of the supervising official and the alleged constitutional violation." See id. The causal connection can be established in several ways. First, a plaintiff can show that a "history of widespread abuse"—one that was "obvious, flagrant, rampant and of continued duration"—put a "responsible supervisor" on notice of the need to correct the alleged constitutional deprivations, but he failed to do so. Doe v. Sch. Bd. of Broward Cty., Fla., 604 F.3d 1248, 1266 (11th Cir. 2010). Importantly, "[t]here is no bright line identifying when misconduct transforms from a couple of isolated instances into a pattern of abuse." Williams v. Fulton Cty. Sch. Dist., 181 F.Supp.3d 1089, 1128 (N.D. Ga. 2016) (citing Broward Cty., 604 F.3d at 1266). "One or two incidents of abuse is generally insufficient to indicate a pattern." Id.; see also Broward Cty., 604 F.3d at 1266. However, allegations of anything more than that are generally found sufficient at the motion to dismiss stage, even if the abusive acts were committed by a single employee. See Williams, 181 F. Supp. 3d at 1122; see also Valdes v. Crosby, 450 F.3d 1231, 1244 (11th Cir. 2006) (13 complaints of prisoner abuse over 1.5 year period); Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 456-57 (5th Cir. 1994) (five prior incidents of sexually inappropriate behavior by teacher); Shaw v. Stroud, 13 F.3d 791, 800 (4th Cir. 1994) (finding knowledge of at least three prior incidents of excessive force was sufficient to be widespread); Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 728-29 (3d Cir. 1989) (five complaints of abuse by two teachers over 4 years found sufficient); J.V., 2005 WL 1243756, at *3 (repeated acts of abuse by a single teacher). Alternatively, the plaintiff can establish causation with facts supporting "an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so." Keating, 598 F.3d at 762. Finally, the causal connection can be established where the supervisor's "improper custom or policy results in deliberate indifference to constitutional rights." See Broward Cty., 604 F.3d at 1266. In other words, the requisite causal connection for establishing supervisory liability is shown where the "responsible supervisor" is on notice of widespread abuse and the need to correct the deprivation but fails to do so. See Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).
As an initial matter, Jackson and Vaughan, as the District Superintendent and the Principal of Kenwood, respectively during the relevant time frame, were clearly supervisors, and they do not argue otherwise. Smith and Farley, however, argue that they did were not Stillions's supervisors. N.P. responds that supervisory liability is not dependent on a direct supervisor relationship, citing 29 U.S.C. § 152(11) (defining supervisor broadly to include an individual with authority to hire, transfer, discharge, or discipline "or to effectively recommend such action").
In Smith's view, the pleading conflates into one category individuals with various roles under the hierarchy created for schools in the Florida Constitution and the Florida statutes, which gives the Superintendent and the Principal supervisory authority over personnel.
However, no such plausible inference arises from the allegations about Farley's role as Investigator. Although Investigator Farley is alleged to have had responsibility for "establishing, implementing and/or enforcing policies and procedures regarding the training and/or supervision of employees," see ECF No. 135, ¶ 22, and he recommended disciplinary measures for Frazier in his report, there is no allegation that Farley was a part of the School District chain of command or a "responsible supervisor" with respect to Stillions. Indeed, the facts related to Farley plausibly show only that he was tasked with investigating the complaints, and then passed his reports and recommendations to his supervisors, who essentially ignored his substantiated findings of physical abuse and recommended disciplinary actions against Stillions. There is no factual allegation showing that Farley had authority to remove Stillions from the classroom, or otherwise effectuate that result. In short, N.P. has offered no factual or legal support for the proposition that an investigator for a school district, like Farley, can be deemed a supervisor of the school district's employees.
Turning to the substance of the § 1983 claims, Jackson, Smith, and Vaughan argue that the Second Amended Complaint fails to show a constitutional violation for purposes of supervisory liability. Each argues that she did not participate in the underlying abuse, but, as already noted, their personal participation in the abuse is neither alleged nor is it required for supervisory liability. Notably, they do not argue that Stillions's underlying conduct did not amount to a substantive due process violation. Thus, the defendants' liability for a substantive due process violation as supervisors will turn on their knowledge of, and conduct in response to, that violation.
Regarding notice and causation, Jackson, Smith, and Vaughan, argue that the allegations of the Second Amended Complaint amount to nothing more than mere labels and conclusions. While it is true that some allegations are conclusory in nature, i.e., that Stillions's abusive conduct was "rampant and widespread and witnessed by, and/or reported to" numerous School Board and School District employees or that they were "on notice" and "had knowledge of the abuse," the Court concludes that the Second Amended Complaint contains factual allegations sufficient to substantiate a plausible inference on issues of notice and causation as to these defendants. Jackson and Smith argue that the complaint does not plausibly show they were aware of widespread abuse at Kenwood prior to the end of the school year, but this argument too narrowly confines the issue to Stillions's conduct alone and does not accurately reflect the allegations as a whole. N.P. alleges District-wide abuse beginning with the complaints against Frazier. It is sufficiently alleged that Jackson and Smith were aware of Frazier's multi-year abuse of many ESE students at Silver Sands by at least February 2016 or early March 2016, when Farley completed his investigation of Frazier and confirmed the abuse. "Shortly after" learning of Frazier's abuse, Jackson and Smith were allegedly made aware of the complaints of abuse by Stillions, ECF No. 135, ¶¶ 104, 101, which also included multiple incidents of abuse over a two-year period. The allegations are clear that Jackson and Smith knew of the complaints against Stillions at least by the start of Farley's investigation into her conduct on April 27, 2016.
The complaint also alleges that Jackson and Smith inextricably took no action to remove either Frazier or Stillions from the classroom or adequately discipline them. Thus, it is plausibly alleged that, because Frazier's and Stillions's conduct impacted many ESE students at two different schools, Jackson and Smith were aware of widespread abuse before the end of the 2015-16 school year and the need to remove these teachers and implement corrective policies in the School District. See Williams, 181 F. Supp. 3d at 1122 (observing that "anything more than" one or two incidents of abuse is "generally sufficient" to "indicate a pattern" at the motion to dismiss stage). Their inaction and concealment of the abuse in several instances plausibly establishes a causal connection between the action and inaction of Jackson and Smith and the alleged constitutional violations of Frazier and Stillions, causing N.P. to continue suffering abuse through the end of the 2015-16 school year.
Principal Vaughan argues that the three single complaints she received about Stillions's abuse, one as early as August 2014, were insufficient to put her on notice of a pattern of ongoing constitutional injury. The Court disagrees. Vaughan received and ignored a complaint about Stillions in August 2014, when it was reported that Stillions used a spray bottle to spray ESE students in the face. Vaughan ignored a second report in February 2016 of Stillions having grabbed N.P. by the waist band and collar, and in March 2016, Vaughan received a third report of Stillions causing red marks on N.P.'s face. Even then, no immediate action was taken. Vaughan finally took action at the end of April, and an investigation was initiated. However, she made no report of abuse to DHS and did not remove Stillions from the classroom or otherwise protect N.P. from further abuse through the end of the school year. Giving N.P.'s allegations every reasonable inference, as the Court must at this stage, they plausibly suggest Vaughan was on notice of a pattern of abuse by Stillions as of March 2016 (the third complaint to her), and that she responded to each complaint with indifference and inaction that could rise to a constitutional violation, especially in light of N.P.'s vulnerable status as a very young nonverbal, disabled child.
On the supervisory equal protection claim, it is necessary for N.P. to allege facts showing that the supervisory defendants acted with discriminatory intent or purpose, which, as noted above, requires a showing that the supervisory defendants' discriminatory actions or omissions were taken "because of, not merely in spite of, the action's adverse effect upon an identifiable group." See Iqbal, 556 U.S. at 676-77. Discriminatory intent on the part of Jackson, Smith, and Vaughan is properly inferred from the allegations of the complaint. N.P. alleges that he and other nonverbal, disabled students were intentionally treated differently than verbal, disabled students and/or nondisabled students because of their disabilities and inability to speak out. N.P. also alleges that Stillions targeted and abused nonverbal, disabled students, "because she knew they were vulnerable, defenseless children and she knew they were unable to report the abuse, advocate for themselves, or otherwise confront her for such conduct." ECF No. 135, ¶ 66. He further alleges that Jackson, Smith, and Vaughan were deliberately indifferent to the rights of the nonverbal, disabled ESE students, including N.P., because of their disability. The supervisory defendants concealed, failed to stop, and failed to adequately address the abuse of nonverbal, disabled students because of their profound disability and inability to speak out against the abuse.
At this point, the Court finds it important to emphasize that the above determinations do not amount to a final conclusion that the alleged conduct of any of the supervisory defendants—Principal Vaughan, HR Assistant Superintendent Smith, or Superintendent Jackson—did, as a matter of fact or law, violate N.P.'s substantive due process or equal protection rights. Indeed, there are many "good faith but ineffective responses that might satisfy a school official's [constitutional] obligation[s]" with respect to allegations that a teacher is physically abusing students, see Taylor, 15 F.3d at 456 n.12, and discriminatory intent is also highly fact intensive. N.P. claims that the supervisory defendants' conduct knowingly and with discrimination abdicated their duty to protect him, which, in turn, resulted in constitutional injury. Whether N.P. ultimately will be able to establish the requisite knowledge and "blind eye" acquiescence in Stillions's alleged abuse is unknowable at this stage. However, given the flexible notice pleading standard
Pickard became Kenwood's principal "following the 2015-2016 school year," which was after Principal Vaughan retired. ECF No. 135 ¶ 25. There is no plausible allegation that her actions, inaction, or concealment of Stillions's abuse—which could only have been based on her knowledge and actions as a supervisor after the fact, in the summer of 2016—caused any constitutional injury to N.P. before the end of the 2015-16 school year. Although there are allegations that Pickard failed to report and actively participated in a subsequent cover-up, any factual allegations that Pickard was on notice of continuing, ongoing abuse are too conclusory and in fact are contrary to the allegation that she became principal following the 2015-16 school year.
There also is no plausible factual allegation that Sommer, the program director for the ESE program, had knowledge of widespread abuse and acted with indifference causing injury to N.P. She is alleged to have participated in transferring Stillions to Silver Sands, but no injury is alleged after that time. The only allegation involving Sommer before the end of the school year that could establish a causal connection to harm to N.P. is that she knew of Farley's investigation of Stillions and made no report to DCF. Without more, these bare allegations are insufficient to provide a basis for inferring she was on notice of widespread abuse and was deliberately indifferent. Consequently, the Second Amended Complaint fails to state a claim of supervisory liability against Pickard or Sommer in Counts Five, Six, and Seven.
Deputy Vasiloff was employed by the Okaloosa County Sheriff's Office as Kenwood's Resource Officer. He was not employed by the School District. N.P. concedes there is no assertion that Vasiloff personally participated in the abuse and thus is relying on Vasiloff's actions and omissions for supervisory liability. Without citation to law, N.P. states it is "common sense" that Vasiloff was acting in a supervisory role and asserts that the issue of whether he was a supervisor is factual in nature and should not be resolved at the motion to dismiss stage. Although there are allegations that Vasiloff was empowered to protect the safety of children and, in a conclusory manner, that he was aware of ongoing abuse of ESE students at Kenwood and failed to report it or to participate in investigations when approached by DCF at some point during the 2015-16 school year, there are no factual allegations within ¶¶ 31-32 (cited by N.P.) or any other paragraphs of the Second Amended Complaint that plausibly show that Vasiloff held a supervisory position over teachers at the school, let alone Stillions. Therefore, Counts Five, Six, and Seven fail to state a claim of supervisory liability against Vasiloff.
All defendants argue they are entitled to qualified immunity with respect to N.P's constitutional claims. A complaint is subject to dismissal under Rule 12(b)(6) where its allegations, on their face, show that an affirmative defense bars recovery on the claim. Cottone, 326 F.3d at 1357. "In reviewing a motion to dismiss based on qualified immunity, [a] district court is required to accept the factual allegations in the plaintiff's complaint as true and draw all reasonable inferences in favor of the plaintiff." Epps v. Watson, 492 F.3d 1240, 1242 n.1 (11th Cir. 2007) (quoting Wilson v. Strong, 156 F.3d 1131, 1133 (11th Cir 1998)).
The affirmative defense of qualified immunity shields public officials performing discretionary functions from suit in their individual capacities, unless their conduct "violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To receive the benefit of qualified immunity, an official must first show that he was acting within his discretionary authority when the allegedly unlawful acts occurred. See Cottone, 326 F.3d at 1357. Once this showing is made, the burden shifts to the plaintiff to show that the official is not entitled to qualified immunity. Id. at 1358. An official is not entitled to qualified immunity where: (1) his alleged conduct violated a federal statutory or constitutional right; and (2) the right was clearly established at the time of the violation. Id. at 1358-59. A right is "clearly established" if "it would be clear to a reasonable [public official] that his conduct was unlawful in the situation he confronted." Id. at 1359. In other words, the state of the law must have provided the official with "fair warning that [his] alleged [conduct] was unconstitutional." Id.
In this case, it cannot be reasonably disputed that the acts forming the basis of N.P.'s § 1983 claims are discretionary in nature.
As to Jackson, Smith, and Vaughan, the Court has found the complaint, taken as true, sufficient to state plausible supervisory substantive due process and equal protection claims. Thus, for purposes of qualified immunity, the Court must now consider whether reasonable school officials would have known and understood that such conduct is unconstitutional. It has long been clearly established that supervisory liability under § 1983 is imposed against supervisory officials in their individual capacities for: (1) their own culpable action or inaction in response to notice of constitutional deprivations resulting from a subordinate's "history of widespread abuse"; and (2) conduct reflecting an "improper custom or policy" of deliberate indifference to the constitutional rights of others. Broward Cty., 604 F.3d at 1266; Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999); see also Iqbal, 556 U.S. at 676-77 (recognizing supervisory liability for equal protection violations). The right to be free from arbitrary and excessive corporal punishment in a school context is also clearly established under Supreme Court and Eleventh Circuit precedent, see Ingraham v. Wright, 430 U.S. 651, 672-74 (1977); Neal ex rel. Neal v. Fulton Cty. Bd. of Educ., 229 F.3d 1069, 1075 (11th Cir. 2000); Kirkland, 347 F.3d at 904, as is the right to be free from intentional and arbitrary disparate treatment on account of disability, see Cleburne, 473 U.S. at 446. A reasonable supervisory school official would have known that the alleged multi-year history of physical abuse of nonverbal ESE students, and the abject failure of supervisory school officials to address and prevent that abuse, would result in a violation of the students' constitutional rights. The question of whether the allegations can be substantiated presents "another issue for another time." Williams, 181 F. Supp. 3d at 1129. For now, N.P. has pled enough facts to overcome qualified immunity as to Jackson, Smith and Vaughan on Counts Five, Six, and Seven at this stage.
Counts One, Two, and Three allege that the School Board, a municipal entity, is responsible for the violation of N.P.'s rights to be free from unreasonable seizure and the use of excessive force at the hands of Stillions,
The Supreme Court "has placed strict limitations on municipal liability under § 1983." Grech v. Clayton Cty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003). A municipal entity, like the School Board in this case, cannot be held liable under § 1983 "simply because its agent causes an injury, even a constitutional injury." Gilmere v. City of Atlanta, Ga., 737 F.2d 894, 902 (11th Cir. 1984). Thus, a § 1983 claim against a municipality may not be premised on a theory of respondeat superior. Monell, 436 U.S. at 691. Instead, a plaintiff must identify a municipal custom or policy that caused his injuries. Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). In other words, liability may only attach where the municipality's custom or policy caused municipal employees to violate the plaintiff's constitutional rights. Id.
A plaintiff can establish municipal liability under Monell in three ways: (1) identify an official policy; (2) identify an unofficial custom or practice that is "so permanent and well settled as to constitute a custom and usage with the force of law"; or (3) identify a municipal official with final policymaking authority whose decision violated the plaintiff's constitutional rights.
Municipalities may be sued for "constitutional deprivations visited pursuant to governmental `custom' even though such custom has not received formal approval through the [municipality's] official decisionmaking channels." Monell, 436 U.S. at 690-91. Custom consists of "persistent and widespread . . . practices" or "deeply embedded traditional ways of carrying out . . . policy" that, although unwritten, are "so permanent and well settled as to [have] . . . the force of law." See id. at 691 & n.56. In cases alleging municipal "inaction," a custom arises where a municipality fails to correct "the constitutionally offensive actions of its employees" and instead "tacitly authorizes" or "displays deliberate indifference towards the misconduct." Griffin v. City of Opa-Locka, 261 F.3d 1295, 1308 (11th Cir. 2001). Importantly, the municipality must have actual or constructive knowledge of the widespread unconstitutional practice to form a custom of indifference, and "random acts or isolated incidents are insufficient." See Depew v. City of St. Marys, Georgia, 787 F.2d 1496, 1499 (11th Cir. 1986). To plausibly state a § 1983 claim against the School Board based on deliberate indifference to widespread abuse, N.P. must sufficiently allege: (1) the existence of a widespread and a persistent pattern of abuse by the teachers; (2) that the School Board had actual or constructive knowledge of the abuse; (3) that the School Board tacitly approved or deliberately ignored the abuse, such that their inaction became a custom; and (4) that the School Board's custom of inaction through deliberate indifference was a "moving force" behind the constitutional violations. Williams, 181 F. Supp. 3d at 1121.
In addition to the allegations of a custom of inaction in responding to reports of child abuse, the complaint asserts that the School Board is liable for its failure to train and supervise employees regarding student abuse. The School Board's liability under § 1983 for a failure to train and supervise is similarly limited to circumstances where the failure to train or supervise amounts to deliberate indifference and is based on an official policy or custom. See City of Canton v. Harris, 489 U.S. 378, 387 (1989). To state such a claim, N.P. must sufficiently allege that: (1) the employees were inadequately trained or supervised, (2) this failure to adequately train or supervise is the policy or custom of the government entity, and (3) the policy or custom caused the employees to violate a citizen's constitutional rights. Id. at 389-91; see also Gold, 151 F.3d at 1350. Because "a municipality will rarely have an express written or oral policy of inadequately training or supervising its employees," a policy or custom may be shown where the failure to train or supervise evidenced "deliberate indifference" to constitutional rights in the face of a "history of widespread prior abuse" or where a pattern of prior similar incidents put the municipality on notice of a need to train or supervise. Gold, 151 F.3d at 1350-51 (quoting City of Canton, 489 U.S. at 388-89, and Wright v. Sheppard, 919 F.2d 665, 674 (11th Cir. 1990)).
The School Board argues that the allegations of notice are insufficient to support the claim. The Court disagrees.
As noted, showing a custom attributable to the School Board is not enough; the custom must also be a "moving force" behind the violation. Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997). As detailed above, the allegations in this case include many more than one or two isolated prior incidents of abuse. The School Board, through Jackson and Smith, was on notice of multiple instances of abuse by Frazier, which were confirmed by February or March of 2016, yet they took no action to implement District-wide corrective policies, supervision, training, or procedures for reporting abuse. Similarly, Principal Vaughan at Kenwood failed to investigate Stillions until the end of April 2016, although she had received three reports of abuse as of March 2016. N.P. was left in the classroom to suffer Stillions's abuse, even after notice of complaints that she had abused N.P. and many other nonverbal students for a period of nearly two years. These allegations support an inference that the School Board's custom of inaction was a moving force behind the continued abuse of N.P.
N.P. also brings discrimination claims against the School Board pursuant to Title II of the ADA, 42 U.S.C. § 12131, et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("§ 504").
The IDEA offers federal funds to states in exchange for a commitment to furnish a "free appropriate public education" ("FAPE")
The Supreme Court has specifically noted that a claim involving physical abuse of a disabled student by a teacher, acting out of animus or frustration, "is unlikely to involve the adequacy of special education—and thus is unlikely to require exhaustion." Id. at 756 n.9. The gravamen of N.P.'s claims concerns alleged discriminatory and malicious physical abuse of N.P., and other nonverbal, disabled students, not the appropriateness of an educational program.
N.P. also brings claims against all defendants for conspiracy to interfere with his civil rights, pursuant to 42 U.S.C. §§ 1983, 1985(3) (Count Four against the School Board, Count Eight against the named defendants). As to each conspiracy claim, N.P. alleges that the defendants agreed together to conceal the ongoing abuse for the purpose of cultivating a culture of intimidation that prevented employees from reporting abuse. The defendants move to dismiss, variously arguing that: (1) N.P. has failed to provide any non-conclusory factual allegations of an unlawful agreement to violate his rights; and (2) the intracorporate conspiracy doctrine bars these claims.
To state a claim for civil conspiracy under § 1983, a plaintiff must allege: (1) a violation of his federal rights under color of state law by at least one state actor; (2) an "understanding" among the defendants to violate those rights; and (3) a resultant "actionable" harm." See Grider v. City of Auburn, Ala., 618 F.3d 1240, 1260 (11th Cir. 2010); Hadley v. Gutierrez, 526 F.3d 1324, 1332 (11th Cir. 2008) (stating that there must be a causal connection been the conspiracy and the constitutional harm). In contrast, a claim for conspiracy to interfere with civil rights under § 1985(3) requires factual allegations showing: (1) the existence of a conspiracy; (2) for the purpose of depriving a person or class of persons of equal protection under the law; (3) an act in furtherance of the conspiracy; and (4) a resultant injury or deprivation of a constitutional right. Denney v. City of Albany, 247 F.3d 1172, 1190 (11th Cir. 2001). The primary difference between a § 1985(3) conspiracy claim and its § 1983 counterpart, as relevant to this case at least, is that the second element of a § 1985(3) claim requires proof that a conspirator's action was motivated by a "class-based, invidiously discriminatory animus'; whereas, there is no such requirement under § 1983.
Applying these principles, the Court first finds that as to several defendants, there is no allegation of fact from which an agreement to violate N.P.'s rights, or to engage in a cover up to violate his rights, could be inferred. Deputy Vasiloff is not alleged to have met or conferred with the administrators, and there is no relationship between him and the other named defendants from which an agreement could be inferred. Nor is there any basis for inferring that his failure to report or to participate in DCF investigations was the result of any such agreement with defendants. N.P. alleges that, "[o]n at least one occasion during the course of DCF investigations, a deputy with the [Sheriff's Office] instructed the parents of a nonverbal ESE student at Silver Sands who had been abused by Frazier, not to pursue prosecution of Frazier," but Vasiloff is not alleged to have instructed anyone not to prosecute. Moreover, the assertion that such an "instruction was part of a longstanding custom, policy, and/or practice within the [Sheriff's Office] and [School District] to conceal the abuse of nonverbal, disabled ESE students, including N.P," ECF No. 135, ¶ 129, is a mere conclusion. This allegation is too conclusory to state a claim that Vasiloff or anyone from the Sheriff's Office was involved in the alleged conspiracy and cover up.
As to Pickard, she was not the principal until after the end of the 2015-16 school year and consequently could not have participated in any conspiracy to violate N.P.'s constitutional rights or cover up complaints that resulted in a violation of his rights. There is no allegation that N.P. was harmed after the end of the 2015-16 school year. For similar reasons, the conspiracy claim fails as to Sommer. It is alleged that she knew of Farley's investigation of Stillions before the end of the school year and generally conspired, but that is all. See Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984) (explaining that "conclusory, vague and general" allegations of a conspiracy are insufficient to withstand a motion to dismiss). Any conspiratorial action by her after the end of the school year could not have caused a violation of N.P.'s constitutional rights, which had already occurred by then, and similarly, any cover up after that time is not alleged to have caused further harm to N.P. Therefore, the motions to dismiss Count Eight will be granted as to Vasiloff, Pickard, and Sommer.
The Court finds that N.P. has stated plausible claims for conspiracy under §§ 1983 and 1985(3) against Jackson, Smith, Vaughan, Farley, and the School Board.
The School Board, Jackson, and Smith also argue that N.P.'s civil conspiracy claims are barred by the intracorporate conspiracy doctrine. At this stage, the Court agrees. As an initial matter, however, the defendants contend that the threadbare and conclusory allegations in the conspiracy counts that they conspired with Vasiloff and "other members" of the Sheriff's Office should be dismissed for purposes of this analysis, and the Court agrees. Vasiloff has already been dismissed on other grounds, and the Court agrees that allegations that he or any member of the Sheriff's Office participated in the conspiracies are wholly conclusory and unsupported by any plausible facts alleged. This leaves only the School Board and members of the administration. While it is true that under the intracorporate conspiracy doctrine, a legal entity—such as the School Board in this case—"cannot conspire with its employees, and its employees, when acting in the scope of their employment, cannot conspire among themselves," McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000); see also Denney v. City of Albany, 247 F.3d 1172, 1190 (11th Cir. 2001), the doctrine is not without exceptions. One exception allows proof of a conspiracy in "the rare instance" where corporate employees acted for their own personal purposes rather than those of their employer. See H & B Equip. Co., Inc. v. Int'l Harvester Co., 577 F.2d 239, 244 (5th Cir. 1978).
N.P. brings state law claims against the School Board and the Sheriff's Office related to the hiring, training, and supervision/retention of Stillions and Vasiloff, respectively, and seeks to hold the entities vicariously liable under the theory of respondeat superior. The School Board and Sheriff each move to dismiss the negligent hiring, training, supervision/retention claims for failure to state a claim and on sovereign immunity grounds (Counts Fourteen and Fifteen), and the School Board moves to dismiss the respondeat superior claim on sovereign immunity grounds (Count Sixteen).
The School Board argues that N.P. has failed to state a claim of negligent retention, and the Sheriff argues that N.P. has failed to state a claim for negligent supervision.
Applying these principles, the Court finds that N.P. has adequately alleged a claim against the School Board for negligent retention of Stillions. To begin with, it is beyond dispute that the School Board had a "common law duty to protect [students] from the result of negligent hiring, supervision, or retention" of employees "whose negligent or intentional acts . . . [could] foreseeably cause injuries to students." See Sch. Bd. of Orange Cty. v. Coffey, 524 So.2d 1052, 1053 (Fla. 5th DCA 1988) (school board had duty to protect student from negligent supervision and retention of school teacher who sexually abused student); see also Wyke v. Polk Cty. Sch. Bd., 129 F.3d 560, 571 (11th Cir. 1997) (citing Rupp v. Bryant, 417 So.2d 658, 666 (Fla. 1982)) ("Florida schools have a duty to supervise students placed within their care."). N.P alleges that the School Board breached its duty when it received numerous reports that Stillions was physically abusing ESE students and failed to protect him. It is sufficiently alleged, as detailed above, that the School Board had at least constructive notice through Jackson, Smith, and Vaughan of Stillions's physically abusive conduct. Thus, it is plausible that the School Board knew or should have known of her unfitness for the job before the end of the 2015-16 school year but took no action to remove her from the classroom, resulting in continued abuse. Whether the School Board responded reasonably after it had notice is a question of fact, and thus, this claim will not be dismissed against the School Board.
The Sheriff argues that N.P.'s assertion that he knew or should have known of Vasiloff's conduct is conclusory. The Court agrees. As the Supreme Court has explained, even under notice pleading, which permits general allegations of knowledge and does not require a heightened pleading standard, this rule "does not give him license to evade the less rigid—though still operative—strictures of Rule 8." Iqbal, 556 U.S. at 686-87. Although the Sheriff disciplined Vasiloff in June 2017 for neglecting his duties at Kenwood, N.P. does not plausibly raise an inference that the Sheriff was on notice of Vasiloff's failure to investigate with DCF or of Vasiloff's general unfitness during the 2015-16 school year. Statements that the Sheriff was "on notice" or "had knowledge" are alone insufficient. See Watts v. City of Hollywood, Fla., 146 F.Supp.3d 1254, 1269 (S.D. Fla. 2015) ("As with any other claim asserted in federal court, conclusory allegations do not suffice to satisfy the notice element of a negligent supervision claim; specific facts must be alleged."). Equally insufficient are the conclusory allegations that Stillions's and Frazier's conduct was "rampant" and was "reported to" Sheriff's Office "employees" (¶¶ 68, 69, 83). These allegations do not implicate Vasiloff. In any event, his misconduct alone (¶¶ 118-119) does not establish notice to the Sheriff in the absence of a plausible allegation that a school administrator or employee or DCF investigator made a complaint to the Sheriff about Vasiloff during the 2015-16 school year.
The School Board asserts that sovereign immunity bars N.H.'s common law claims for negligent training and respondeat superior.
In the context of a negligence claim, Florida courts have held that sovereign immunity extends to "discretionary" governmental functions, but not to acts that are "operational in nature." See Kaisner v. Kolb, 543 So.2d 732, 736 (Fla. 1989). A "discretionary function" is one in which "the governmental act in question involved an exercise of executive or legislative power such that, for the court to intervene by way of tort law, it inappropriately would entangle itself in fundamental questions of policy and planning." Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., 402 F.3d 1092, 1117-18 (11th Cir. 2005) (citing Henderson v. Bowden, 737 So.2d 532, 538 (Fla. 1999)). In contrast, an operational function is one not inherent in policy or planning but merely reflects a secondary decision as to how those policies or plans will be implemented. See id. at 1118. Distinguishing between the boundary of discretionary policy-making and operational choices generally is a highly fact-dependent exercise. See Commercial Carrier Corp. v. Indian River Cty., 371 So.2d 1010, 1020 (Fla. 1979) (laying out four-part factual test).
In the context of a negligence claim, Florida courts have held that sovereign immunity extends to "discretionary" governmental functions, but not to acts that are "operational in nature." See Kaisner v. Kolb, 543 So.2d 732, 736 (Fla. 1989). A "discretionary function" is one in which "the governmental act in question involved an exercise of executive or legislative power such that, for the court to intervene by way of tort law, it inappropriately would entangle itself in fundamental questions of policy and planning." Cook, 402 F.3d at 1117-18 (citing Henderson, 737 So. 2d at 538). In contrast, an operational function is one not inherent in policy or planning but merely reflects a secondary decision as to how those policies or plans will be implemented. See id. at 1118. Distinguishing between the boundary of discretionary policy-making and operational choices generally is a highly fact-dependent exercise. See Commercial Carrier Corp. v. Indian River Cty., 371 So.2d 1010, 1020 (Fla. 1979) (laying out four-part factual test).
In this case, N.P. alleges that the School Board was negligent by failing to "adequately and appropriately train employees in identifying, documenting, and/or reporting child abuse," ECF No. 135, ¶¶ 275, which includes the alleged failure to properly implement and enforce training on state-mandated reporting obligations. N.P. maintains that these were operational choices to which sovereign immunity does not apply. The Court agrees, in part.
Claims for negligent training are typically barred by sovereign immunity because a "decision regarding how to train . . . [employees] and what subject matter to include in the training is clearly an exercise of governmental discretion regarding fundamental questions of policy and planning." Lewis v. City of St. Petersburg, 260 F.3d 1260, 1266 (11th Cir. 2001); see also Cook, 402 F.3d at 1118. Nevertheless, negligent training claims premised on "the implementation or operation of [a] training program, as opposed to the program's content, may involve operational functions," depending on the facts of the case. See Mercado v. City of Orlando, 407 F.3d 1152, 1162 (11th Cir. 2005).
Applying these principles here, to the extent N.P.'s negligent training claim challenges the content of the School Board's training policies and procedures, it is directed at a discretionary governmental function and, therefore, barred by sovereign immunity. To the extent N.P. is challenging the School Board's alleged operational negligence in the implementation of its training policies and procedures, he has stated a plausible claim for relief. The Court finds that the complaint appears to be directed at the alleged failure to implement or conduct training. However, the Court emphasizes the preliminary nature of this finding. After the parties have developed a factual record during discovery, the Court will be better positioned to evaluate whether sovereign immunity applies to N.P.'s negligent training claim. For now, he has carried his initial burden of alleging facts sufficient to support a cause of action.
Not so as to the Sheriff. Again, only conclusory allegations are aimed at the Sheriff. It is merely alleged that Vasiloff knew of abuse, failed to investigate or report it, and therefore the Sheriff must have inadequately trained him. "The negligent training cause of action is not this broad." Watts, 146 F. Supp. 3d at 1269 (noting it is not sufficient to merely allege an employee did something wrong so there must have been inadequate training; "instead, [plaintiff] must identify a training program or policy and explain specifically how the City was negligent in implementing it"); Gelbard, 845 F. Supp. 2d at 1341 (complaint must allege "specific training or [a] subject matter that Defendant failed to provide to its police force," and it was not sufficient that the complaint relied only on "legal conclusions that are couched as factual").
N.P. alternatively claims that the School Board is vicariously liable for the allegedly negligent actions of its employee, Stillions, under a theory of respondeat superior. Under Florida's doctrine of respondent superior, a local government is liable in tort for the actions or omissions of an employee committed within the scope of his or her employment, but it is shielded from liability if the employee "acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." Fla. Stat. § 768.28(9)(a).
The School Board argues that the respondeat superior claim should be dismissed because under the facts pled, Stillions's conduct can only be viewed as bad faith, malicious, and in wanton disregard of human rights, precluding liability for the School Board. N.P. responds that federal notice pleading requirements permit him to plead in the alternative.
Federal Rule of Civil Procedure 8(d) "expressly permits the pleading of both alternative and inconsistent claims." United Tech. Corp. v. Mazer, 556 F.3d 1260, 1273 (11th Cir. 2009); see also Brookhaven Landscape & Grading Co. v. J.F. Barton Contracting Co., 676 F.2d 516, 523 (11th Cir. 1982) ("Litigants in federal court may pursue alternative theories of recovery, regardless of their consistency."). In this context, however, if the facts alleged "can occur only from bad faith or malicious or wanton and willful conduct, then the claim against the government entity fails" on sovereign immunity grounds. Gregory, 719 F. App'x at 873.
While it is difficult to conceive of any portion of Stillions's conduct as negligent on the facts alleged, cases illustrate that a "disciplinary tactic" that amounts to intentional battery may not always rise to the level of being malicious or wanton. Compare Carestio v. Sch. Bd. of Broward Cty., 866 So.2d 754 (Fla. 4th DCA 2004) (allowing jury to decide whether school employees who kicked and punched a student for disruptive behavior were within the scope of employment or acting in a willful and wanton manner) with Gregory, 719 F. App'x at 873 (dismissing where a 16-year-old was shot six times in the back, finding the conduct "much more reprehensible and unacceptable than mere intentional conduct"). Therefore, the Court agrees with N.P. that, at this stage, notice pleading allows the respondeat superior claim to go forward.
In sum, claims remaining in this suit are the following: Substantive Due Process and Equal Protection claims against the School Board (Counts Two and Three) and Jackson, Smith, and Vaughan (Counts Five, Six, and Seven); the conspiracy claims against the School Board (Count Four) and Jackson, Smith, Vaughan, and Farley (Count Eight); the ADA and Rehabilitation Act claims against the School Board (Counts Eleven and Twelve); claims of negligent supervision/retention and negligent training against the School Board (Count Fourteen), and respondeat superior (Count Sixteen) against the School Board; as well as claims that were not challenged by the Sheriff (respondeat superior) or by Stillions, who filed an Answer.
Accordingly:
