REPORT AND RECOMMENDATION

LEO I. BRISBOIS, Magistrate Judge.

This matter came before the undersigned United States Magistrate Judge upon Defendant School District's Motion to Dismiss. [Docket No. 8]. The motion has been referred to the undersigned Magistrate Judge for a report and recommendation, (see Order of Referral [Docket No. 16]), pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1. The Court held a hearing on the Motion on January 15, 2014. (Minute Entry [Docket No. 23]). For reasons outlined below, the Court recommends that Defendant School District's Motion to Dismiss, [Docket No. 8], be GRANTED in part and DENIED in part.

I. BACKGROUND

D.B. ("Plaintiff") is a 7-year-old boy whose mother and natural guardian, A.T., initiated this action on October 8, 2013, by filing a Complaint, [Docket No. 1], which names as defendants Independent School District 31, (the "Defendant School District"); and Nickolas Hargett, (Defendant Hargett"), a bus driver for Defendant School District, in both his individual and official capacities. Plaintiff generally alleges that on February 20, 2013, in response to Plaintiff's throwing a tantrum on the bus, Defendant Hargett prevented Plaintiff from exiting the bus at his driveway and instead dropped him at another stop 0.14 miles away. (Id.)

On October 29, 2013, Defendant School District, representing itself and Defendant Hargett in his official capacity, made their Motion to Dismiss, [Docket No. 8],1 and filed their Memorandum in Support thereof, [Docket No. 10]. The case was originally assigned to the Hon. Ann D. Montgomery, who recused on November 1, 2013, resulting in reassignment to the Hon. Michael J. Davis. (Order [Docket No. 15]). Subsequently, on November 5, 2013, Chief Judge Davis referred the School Defendants' Motion to Dismiss to this Court for report and recommendation. (Order [Docket No. 16]). On November 15, 2013, Plaintiff filed his Memorandum, [Docket No. 18], and supporting materials, [Docket Nos. 19, 19-1, 19-2]; and the School Defendants filed their Reply, [Docket No. 20], on November 27, 2013, at which time the Motion was fully briefed. The Court heard argument on the Motion on January 15, 2014. (Minute Entry [Docket No. 23]).

II. DEFENDANT SCHOOL DISTRICT'S and DEFENDANT HARGETT'S OFFICIAL CAPACITY MOTION TO DISMISS [Docket No. 8]

Defendant School District and Defendant Hargett in his individual capacity move to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

A. Facts2

The incident that gave rise to this lawsuit occurred on February 20, 2013, when Plaintiff was 6 years old. (Compl. [Docket No. 1], at ¶14). Plaintiff lived with his mother, father, and older brother in Wilton, Minnesota, and he and his older brother attended Central Elementary School, which is managed and administered by Defendant School District. (Id. at ¶¶ 14, 16, 19). In 2012, Plaintiff was diagnosed with emotional behavior disorder and attention deficithyperactivity disorder. (Id. at ¶¶17-18). Since his diagnosis of emotional behavior disorder in Spring 2012, Defendant School District has classified Plaintiff as a "special education" student, and has developed an Individualized Education Program that mainstreamed him for most classes, but provided interventions to support his social, emotional, and behavioral needs. (Id. at ¶ 17).

Defendant School District provides bus service for elementary school students who live more than a mile from their school. (Id. at ¶ 20). Plaintiff and his brother regularly ride the bus to school, but they ride the bus home infrequently because they regularly participate in afterschool activities that provide alternative transportation. (Id. at ¶ 21). When they do ride the bus home, their regular stop is a group of mail boxes approximately 0.14 miles from their home. (Id. at ¶ 22). However, on February 18, 2013, two days before the incident that gave rise to this lawsuit, Defendant School District determined that Plaintiff and his brother should be dropped off at their driveway, instead of their regular stop, because an accumulation of snow at the regular stop made it difficult for the bus to maneuver. (Id. at ¶ 22). On the day before the incident, February 19, 2013, Plaintiff and his brother rode home on the bus without incident. (Id. at ¶ 23).

On February 20, 2013, Defendant Hargett drove the bus, and an additional Defendant School District employee was on the bus as Bus Monitor. (Id. at ¶¶ 25-26). Plaintiff and his brother sat across the aisle from one another. (Id. at ¶ 24). During the bus ride, several students were in and out of their seats while the bus was moving, including Plaintiff, who crossed the aisle to hit and/or kick his older brother. (Id. at ¶27). Defendant Hargett took no action with regard to any of the other students; however, both he and the Bus Monitor instructed Plaintiff to remain in his seat. (Id. at ¶¶ 26, 28, 44).

Plaintiff did not comply, and at some point, Defendant Hargett pulled over, stopped the bus, and ordered Plaintiff to move to a seat at the front of the bus. (Id. at ¶¶ 28-29). Plaintiff again did not comply, and the bus remained stopped for approximately 12 minutes. (Id. at ¶¶ 29-30). After that time, Defendant Hargett walked back to Plaintiff and pulled him by his wrists into a standing position, whereupon Plaintiff went limp, and Defendant Hargett lowered Plaintiff to the floor. (Id. at ¶ 30). Defendant Hargett continued driving his route and reached Plaintiff's residence, near the end of the route, approximately 20 minutes later. (Id. at ¶ 33).

As the bus approached Plaintiff's residence, Plaintiff walked to the front of the bus holding his coat, but Defendant Hargett told Plaintiff to "go back and sit down." (Id. at ¶ 35). When the bus reached Plaintiff's residence, Defendant Hargett allowed Plaintiff's older brother to exit, but closed the bus doors while Plaintiff was still standing in the stairwell. (Id. at ¶¶ 36-39). Defendant Hargett proceeded to drive to the bus's regular stop, at the mail boxes, approximately 0.14 miles from Plaintiff's residence, where he allowed Plaintiff to exit the bus. (Id. at ¶¶ 39-41). At that time, the temperature outside was approximately 10 degrees Fahrenheit, with a wind chill of -2 degrees. (Id. at ¶ 45).

It took Plaintiff approximately 5-10 minutes to walk home from the mailboxes, and when he arrived home, he was crying. (Id. at ¶ 46). Plaintiff later told his father that when Defendant Hargett dropped off his older brother and began to drive away, he worried that he would never see his family again. (Id. at ¶ 40). Afterward, Plaintiff generally refused to discuss the incident, and alleges that he has suffered "significant psychological and emotional trauma"; that "[h]e is angry, fearful, and . . . finds it difficult to trust adults." (Id. at ¶¶ 49, 52, 71-72). During a subsequent interview, Defendant Hargett said that he dropped Plaintiff at the mailboxes instead of at his residence to "give a healthy and immediate consequence for his actions on the bus." (Id. at ¶¶ 43, 54).

Plaintiff's mother later confronted various Defendant School District employees and administrators, who first promised to look into the incident, and who later discussed aspects of their investigation with her. (Id. at ¶¶ 47-48, 51, 54, 57-59, 61, 63). However, Defendant School District has not allowed Plaintiff's mother to review recorded video of the incident, and generally refused to discuss the contents of the video. (Id. at ¶¶ 55-58, 61-63). Defendant Hargett resigned his position as a bus driver for Defendant School District on February 25, 2013, upon which Defendant School District declared the incident closed. (Id. at ¶¶ 60-61).

On February 25, 2013, Plaintiff's mother filed a mistreatment complaint with the Minnesota Department of Education (the "DOE"), which reported the matter to the Bemidji, Minnesota, Police Department, which ultimately decided not to bring criminal charges against Defendant Hargett. (Id. at ¶¶ 64, 67). The DOE later determined that Defendant Hargett had neglected D.B., which constituted maltreatment under Minn. Stat. § 626.556, subd. 2(f), but that Plaintiff "did not suffer any physical consequences." (Id. at ¶ 69 (quoting DOE Report)). Also in late February 2013, Plaintiff's mother spoke about the incident with the various civil rights organizations and with local media. (Id. at ¶ 65). As the result of the publicity, she was contacted by B.L., the grandmother of another Central Elementary School student, who said that her grandson reported that children were "scared" of Defendant Hargett because of unspecified "prior incidents." (Id. at ¶ 66).

In his Complaint, [Docket No. 1], Plaintiff's Count I alleges a 42 U.S.C § 1983 claim against Defendant Hargett, without distinguishing whether the Defendant Hargett is named in his individual or official capacity, or both. (Id. at ¶¶ 74-77). Specifically, Plaintiff alleges that Defendant Hargett (a) violated his Fourth Amendment right to be free from unreasonable searches and seizures and from excessive force; (b) violated his Fifth and Fourteenth Amendment substantive due process rights not to be deprived of life, liberty, or property without due process of law; and (c) violated his Fifth and Fourteenth Amendment rights of procedural due process not to be punished without first being given notice of his alleged offense and a hearing at which he is represented by counsel and allowed to present evidence and cross-examine opposing witnesses. (Id.). Additionally, Plaintiff's Count II seeks punitive damages against Defendant Hargett with respect to the 42 U.S.C. § 1983 claim.3 (Id. at ¶¶ 78-79). Plaintiff also alleges various Minnesota state law claims against Defendant Hargett in his individual capacity only.4

Additionally, Plaintiff's Complaint, [Docket No. 1], alleges the following claims against Defendant School District:

B. Standard of Review

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." In addressing a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim, "we look only to the facts alleged in the complaint and construe those facts in the light most favorable to the plaintiff." Riley v. St. Louis County of Mo., 153 F.3d 627, 629 (8th Cir. 1998), cert. denied 525 U.S. 1178 (1999), citing Double D Spotting Serv., Inc. v. Supervalu, Inc., 136 F.3d 554, 556 (8th Cir. 1998). All reasonable inferences must be drawn in favor of the nonmoving party. See Maki v. Allete, Inc., 383 F.3d 740, 742 (8th Cir. 2004).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulistic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). "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," and "[w]here a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of `entitlement to relief.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Twombly, 550 U.S. at 556-67. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 664.

C. Discussion

1. Plaintiff's 42 U.S.C. § 1983 claim against Defendant Hargett in his official capacity

In his written briefing, Plaintiff argues that official capacity claims are allowed in 42 U.S.C. § 1983 actions as "an alternative means of pleading municipal liability under the same standards applicable to Monell claims." (Pl.'s Mem. [Docket No. 18], at 13-14). However, at the January 15, 2014, motions hearing, Plaintiff conceded that they could not reach Defendant School District vicariously by means of an official capacity 42 U.S.C. § 1983 claim against Defendant Hargett, but rather, could only reach the Defendant School District by means of a Monell claim, which is discussed in Part II.C.2, infra.7

Accordingly, with regard to Plaintiff's 42 U.S.C. § 1983 official capacity claim, this Court recommends that, the Motion to Dismiss, [Docket No. 8], be GRANTED, and that Plaintiff's 42 U.S.C. § 1983 claim against Defendant Hargett, to the extent that it seeks to reach him in his official capacity, be DISMISSED with prejudice.8

2. Plaintiff's Monell claim against Defendant School District

Defendant School District argues that Plaintiff fails to allege facts sufficient to support his Monell claim. Defendant School District contends that Plaintiff neither sufficiently identifies any "policy," nor sets forth facts sufficient to demonstrate a "practice" or "custom."9 (Defs.' Mem. [Docket No. 10], at 5-11). Plaintiff argues (1) that he need not identify a particular policy, practice or custom at the pleading stage; and (2) that he has both sufficiently described the policies, practices, or customs at issue, and sufficiently alleged facts that would allow an inference that such policies, practices, or customs are in place. (Pl.'s Mem. [Docket No. 18], at 4-11).

"When a complaint is filed, a plaintiff may not be privy to the facts necessary to accurately describe or identify any policies or customs which may have caused the deprivation of a constitutional right." Doe v. Sch. Dist. of City of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003); see also Shqeirat v. United States Airways Group, 515 F.Supp.2d 984, 995 (D. Minn. 2007) (Montgomery, J.) (quoting Doe). Consequently, a plaintiff's "failure . . . to specifically plead the existence of an unconstitutional policy or custom, in itself, is not fatal to their claim for relief." Doe, 340 F.3d at 614.

Nonetheless, in order to survive a Rule 12(b)(6) motion, a complaint alleging a Monell claim must at the least "allege facts which would support the existence of an unconstitutional policy or custom." Id. In the present case, Plaintiff's Complaint, [Docket No. 1], fails to do so.

In the present case, with regard to his Monell claim, Plaintiff does not identify any facts which from which any inference regarding any particular policy, custom, or practice could be drawn, but he instead merely alleges the following:

(Compl. [Docket No. 1], at ¶¶ 81-83).

These three paragraphs by themselves contain only boilerplate allegations asserting the mere generic elements of a Monell claim without any factual allegations specific to this case. Therefore, the allegations in the Complaint are insufficient to state a Monell claim. In Triemert v. Washington County, No. 13-cv-1312 (PJS/JSM), 2013 U.S. Dist. LEXIS 179067 (D. Minn. Nov. 18, 2013) (Mayeron, M.J.), adopted by 2013 U.S. Dist. LEXIS 178294 (D. Minn. Dec. 19, 2013) (Schiltz, J.), this District held that similarly "vague and conslusory allegations" were "not sufficient to state a Monell claim." Id. at *29-30. Because of the similarity of the complaint language, it is worth quoting Triemert at length:

Id. (dismissing for failure to state a claim); see also Ulrich v. Pope County, 715 F.3d 1054, 1061 (8th Cir. 2013) (affirming district court's dismissal of a Monell claim where the plaintiff "alleged no facts in his complaint that would demonstrate the existence of a policy or custom" that caused the alleged depravation of the Plaintiff's rights).

Plaintiff argues that the facts allegations in his Complaint are sufficient to state a failure-to-train Monell claim against the Defendant School District. (Pl.'s Mem. [Docket No. 18], at 9). The Eighth Circuit has identified three elements for a 42 U.S.C. § 1983 claim that alleges failure to train employees: (1) that the government entity's training practices were inadequate; (2) that the government entity was deliberately indifferent to the rights of others in adopting the training practices, such that their failure reflects a deliberate or conscious choice by the government entity; and (3) that the alleged deficiencies in the training practices caused the plaintiff's injury. B.A.B. v. Bd. of Educ. of St. Louis, 698 F.3d 1037, 1040 (8th Cir. 2012) (citing Parrish v. Ball, 594 F.3d 993, 997 (8th Cir. 2010) (citing, in turn, Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996) (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)))). Essentially, a plaintiff "must prove that `the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the [government entity] can reasonably be said to have been deliberately indifferent to the need.'" B.A.B., 698 F.3d at 1040 (quoting Parrish, 594 F.3d at 998). "`Deliberate indifference' entails a level of culpability equal to the criminal law definition of recklessness." Bender v. Regier, 385 F.3d 1133, 1137 (8th Cir. 2004).

In the present case, once again aside from the boilerplate allegations contained in Paragraphs 81-83 of his Complaint, Plaintiff has not pled any facts whatsoever concerning the Defendant School District's training practices. Thus, the allegations in the Plaintiff's Complaint are insufficient to assert even the first element of a failure-to-train Monell claim.

Additionally, Plaintiff has not pled any other specific facts that would allow this Court to infer that Defendant School District was "deliberately indifferent" to conduct such as that allegedly engaged in by Defendant Hargett. "Generally, an isolated incident of alleged . . . misconduct . . . cannot, as a matter of law, establish a municipal policy or custom creating liability under § 1983." Ulrich, 715 F.3d at 1061. In the present case, Plaintiff's Complaint merely describes an isolated incident, and does not allege any incidents beyond this one.10

Plaintiff also argues that the fact that Defendant Hargett was allowed to resign, rather than being terminated, suggests a pattern, practice, or custom of deliberate indifference to inadequate training. However, he offers no authority to support such a novel conclusion.

In short, Plaintiff fails to allege any specific facts identifying any particular policy, practice, pattern, or custom to support his Monell claim against Defendant School District. Consequently, with regard to Plaintiff's Monell claim against the Defendant School District, this Court recommends that the Motion to Dismiss, [Docket No. 8], be GRANTED, and that Count III of Plaintiff's Complaint be DISMISSED without prejudice.

3. Plaintiff's claims of vicarious liability for state law torts against Defendant School District

Defendant School District argues that Plaintiff failed to sufficiently plead that Defendant Hargett's intentional conduct was reasonably foreseeable and, consequently, that Plaintiff's claim of vicarious liability for state law torts fails under Rule 12(b)(6). (Defs.' Mem. [Docket No. 10], at 12-13). Plaintiff argues both (1) that he is not required to show foreseeability at the pleading stage, making the Defendant School District's argument premature; and (2) that Defendant Hargett's actions were reasonably foreseeable. (Pl.'s Mem. [Docket No. 18], at 11-13).

Under Minnesota law, a school district "may be held responsible for [its employee]'s alleged [state law] torts under a respondeat superior theory, if they occurred within the scope of his employment." Rau v. Roberts, No. 08-cv-2451 (RHK/JJK), 2009 U.S. Dist. LEXIS 3994, at *5 (D. Minn. Jan. 21, 2009) (Kyle, J.) (citing Freiler v. Carlson Mktg. Group, Inc., 751 N.W.2d 558, 583 (Minn. 2008); Schneider v. Buckman, 433 N.W.2d 98, 101 (Minn. 1988). "This is true even for intentional torts like assault and battery, as long as [the employee]'s conduct was `foreseeable, related to and connected with acts otherwise within the scope of employment.'" Id. (quoting Frieler, 751 N.W.2d at 583 (quoting, in turn, Fahrendorff v. N. Homes, Inc., 597 N.W.2d 905, 910)).

Deciding whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 663-64. When analyzing a complaint on a 12(b)(6) motion to dismiss, courts should read the complaint "as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible." Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). "A motion to dismiss a complaint should not be granted unless it appears beyond doubt that a plaintiff can prove no set of facts that would entitle him to relief." Merry v. Presitge Capital Mkts, Ltd., 944 F.Supp.2d 702, 706 (D. Minn. 2013) (Nelson, J.) (citing Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994)). Facts pled which "give the defendant fair notice of what the claim is and the grounds upon which it rests" meet the 12(b)(6) standard. Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

In the present case, the Court finds that Plaintiff's Complaint, [Docket No. 1], considered as a whole, gives the Defendant School District fair notice of Plaintiff's claim of its vicarious liability for state law torts committed by its employee Defendant Hargett, and therefore, the Complaint as to this claim meets the Rule 12(b)(6) standard.

Additionally, "whether an employee acted within the scope of his employment `is ordinarily a question of fact for the jury,'" Id. at *6 (quoting Hentges v. Thomford, 569 N.W.2d 424, 427 (Minn. Ct. App. 1997), and "[t]he Court may not resolve fact disputes on a motion to dismiss." Id. (citing Fla. State Bd. of Admin v. Green Gree Fin. Corp., 270 F.3d 645, 663 (8th Cir. 2001)). The Court, in considering the case authority cited by the Defendant School District in support of its Motion to Dismiss Plaintiff's state tort vicarious liability claim,11 observes that none of these cases were decided on a Rule 12 motion to dismiss, but instead, they were all decided at the Rule 56 summary judgment stage. Thus, in addition to finding that Plaintiff has sufficiently pled vicarious liability on the part of the Defendant School District with regard to state law tort claims asserted against Defendant Hargett, the Court also finds that this aspect of Defendant School District's Motion to Dismiss is premature.

Consequently, the Court recommends that, with regard to Plaintiff's vicarious liability claim against the Defendant School District, the Motion to Dismiss, [Docket No. 8], be DENIED without prejudice.

III. CONCLUSION

Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY RECOMMENDED that Defendant School District's Motion to Dismiss, [Docket No. 8], be GRANTED in part and DENIED in part such that: