M. CASEY RODGERS, UNITED STATES 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, Roy Frazier, and a teacher's aide, Jean Hennion, while he was
The basic facts, as alleged in the First Amended Complaint, ECF No. 64, and construed in favor of N.R., are as follows.
Plaintiff N.R. is an autistic, nonverbal child enrolled in the exceptional students education ("ESE") program at Silver Sands School in Fort Walton Beach, Florida. Silver Sands 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
From 2014 to 2017, N.R. was assigned to the classroom of Defendants Roy Frazier, a special education instructor at Silver Sands, and Jean Hennion, Frazier's aide. Defendant Alan Lambert served as Silver Sands' principal until his retirement midway through the 2015-2016 school year, after which, Defendant Jon Williams became principal.
N.R. alleges that Frazier and Hennion physically and verbally abused him, as well as other ESE students at Silver Sands, from the beginning of the 2014-2015 school year until the end of the 2015-2016 school year. Throughout that approximate two-year
According to the complaint, Frazier's conduct did not go unreported to school administration officials.
In January 2016, Principal Williams joined Silver Sands. At the time, Frazier was still openly abusing ESE students in classrooms, school hallways, and on school field trips. On February 16 and 18, 2016, teacher's aides in Frazier's classroom sent "written notification" of Frazier's ongoing abuse to four School District officials— Principal Williams, Investigator Farley, HR Assistant Superintendent Smith, and Superintendent Jackson—in which they described a litany of separate incidents of abusive conduct. See id. at 29-30.
Approximately 10 days later, on March 16, 2016, HR Assistant Superintendent Smith sent a letter to Superintendent Jackson recommending that Frazier receive a three-day suspension for "not following student [behavioral intervention plans]" and "not documenting accurate travel locations when he took students on field trips." See id. at 31. The next day, Superintendent Jackson sent two letters— one addressed to Frazier, the other to the School Board—also recommending a three-day suspension for the same reasons. None of the letters discussed, or even mentioned, the substantiated reports that Frazier was physically abusing ESE students. Frazier was ultimately suspended for three days; however, he was not required to serve the suspension "immediately or even on consecutive days." See id. Instead, he was permitted to choose three dates, over the course of a month, that were convenient for him.
Throughout this period—and, indeed, through the end of the 2015-2016 school year—school officials left Frazier in the same ESE classroom, where he continued physically abusing N.R. and other ESE students. And, Silver Sands employees continued reporting the abuse to school officials. In April 2016, for example, a teacher's aide voiced her concerns in a phone call with HR Assistant Superintendent Smith and Superintendent Jackson. These two officials "disregarded" the aide's report. See id. at 32. Other aides were instructed by the "administration to only reply `today was a good day,'" if asked by a student's parents how the school day went. See id. at 33. Finally, it is alleged that unnamed "administration" officials intentionally made a false report to DCF in order to conceal Frazier's abuse. More specifically, on one occasion, Frazier allegedly punched a student so hard in the chest that it echoed across the hallway and caused red marks and bruising. Administration officials allegedly described the incident to DCF, but purposely identified a different child as the victim so that DCF would not know to investigate the actual victim. Other than this alleged false report to DCF, none of the defendants in this
"Shortly after" receiving notice of Frazier's abusive conduct at Silver Sands, the School Board, Superintendent Jackson, HR Assistant Superintendent Smith, and Investigator Farley "were contacted regarding" another ESE instructor, Marlynn Stillions, who allegedly was physically abusing ESE students at another school in the School District, Kenwood Elementary School. See ECF No. 64 at 34. Stillions had reportedly kicked and shoved ESE students; pinched their faces and bodies causing red marks and bruising; forced vinegar into students' mouths and sprayed it in their faces; slammed a student's head into the wall; purposefully tripped a student, carried him forcefully into the cafeteria by the waistband and shirt, and then threw him on the floor; and confined students in a basket, placed a bean bag "on or near" the children's genitals, and then stepped on it, causing pain. See id. at 26.
On April 26, 2016, Kenwood's then-principal, Angelyn Vaughan, sent an email to the School District's Human Resources Department describing "alleged Code of Ethics violations made by several [School District] employees who had seen Stillions acting abusively to" ESE students. See id. at 34-35. The next day, Investigator Farley began investigating Stillions' alleged misconduct and, in time, he interviewed 20 employees at Kenwood, many of whom recounted Stillions' history of physically and verbally abusing ESE students over an approximate two-year period.
One month later, on July 18, 2016, 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. See ECF No. 64 at 36-37. 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. On August 1, 2016, HR Assistant Superintendent Smith dismissed the case against Stillions as untimely and determined that his investigative report would not be included in Stillions's personnel records. Thereafter, the School Board, Superintendent Jackson, HR Assistant Superintendent Smith, Investigator Farley and Melody Sommer, the
Throughout the relevant time period in this case, none of the School District officials reported Stillions' abuse to the students' parents or to appropriate authorities, despite their state-mandated reporting obligation. N.R. 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 the abuse of ESE students.
N.R. has alleged claims against actors at all levels of the School District; thus, his theories of liability differ based on each defendant's alleged actions, responsibilities, and knowledge of the alleged abuse. Briefly stated, N.R. alleges that: (1) two defendants—Frazier and Hennion— physically and verbally abused him and other ESE students; and (2) six defendants —Principal Lambert, Principal Williams, Investigator Farley, HR Assistant Superintendent Smith, Superintendent Jackson, and the School Board—were aware of Frazier and Hennion's abuse but failed to intervene and take remedial action which allowed the abuse to continue. In the complaint, N.R. alleges constitutional claims of unlawful restraint, substantive due process, equal protection, and conspiracy to interfere with his civil rights on theories of individual and supervisory liability (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 state law battery and negligence claims against Frazier and Hennion (Counts Sixteen and Seventeen), and state law claims against the School Board for negligent hiring, training, and supervision, and respondeat superior (Counts Fourteen and Fifteen). In response, all eight defendants have moved for dismissal of N.R.'s claims under Federal Rule of Civil Procedure 12(b)(6).
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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and which "raise a right to relief above the speculative level," Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
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. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (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, 129 S.Ct. 1937. 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.R.'s claims against the individual defendants, including the issue of whether any of the defendants is entitled to qualified immunity for the federal claims and whether Frazier and Hennion are entitled to official immunity for the state law claims. The Court then addresses N.R.'s federal and state law claims against the School Board.
Five of the counts in the complaint —Counts Five, Six, Seven, Nine, and Ten—are constitutional claims brought against individual defendants pursuant to 42 U.S.C. § 1983.
N.R. alleges that Frazier's abusive conduct constituted an unreasonable seizure, in violation of the Fourth Amendment (Count Nine), and constitutionally excessive force, in violation of the Due Process Clause of the Fourteenth Amendment (Count Ten). In response, Frazier argues that N.R. has failed to state a § 1983 claim against him and, in any event, he is entitled to qualified immunity.
Regarding the Fourth Amendment claim, the Court finds that the allegations in this case do not support a cause of action under § 1983. In the Eleventh Circuit, claims involving physical abuse in a school setting are analyzed exclusively under the substantive due process component of the Fourteenth Amendment, which encompasses a fundamental right to be free from excessive corporal punishment at the hands of public school officials. See, e.g., T.W. ex rel. Wilson v. Sch. Bd. of Seminole Cty., Fla., 610 F.3d 588, 612 (11th Cir. 2010); Neal ex rel. Neal v. Fulton Cty. Bd. of Educ., 229 F.3d 1069, 1075 (11th Cir. 2000). N.R. has not cited, and the Court has not found, any Eleventh Circuit authority applying the Fourth Amendment to claims of excessive corporal punishment by school officials, even where the allegedly abusive conduct included improper physical restraint of a student. See id. Thus, the Court concludes that the Fourteenth Amendment, rather than the Fourth Amendment, is the appropriate vehicle for assessing the constitutionality of Frazier's conduct.
Regarding the Fourteenth Amendment claim, the Court finds that N.R. has adequately alleged a cause of action under § 1983. School officials violate the substantive component of the Due Process clause when their use of allegedly excessive corporal punishment rises to the level of "arbitrary, egregious, and conscience-shocking behavior" that is "unjustifiable by any government interest." See Neal, 229 F.3d at 1074-75; see also Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). To state a substantive due process claim in this context, a student must allege facts demonstrating that: "(1) a school official intentionally used an amount of force that was obviously excessive under the circumstances, and (2) the force used presented a reasonably foreseeable risk of serious bodily injury." Neal, 229 F.3d at 1075. The first element has an objective and a subjective component, both of which must be met before the school official may be subject to liability. See id. at 1075 n.3. The objective component requires a court to consider the "totality of the circumstances" when deciding "whether the amount of force used is obviously excessive," including: (1) the need to administer corporal punishment to the student; (2) the relationship between the need for punishment and the amount of punishment administered; (3) the extent of any injury inflicted; and (4) whether or not the student is disabled. See id.; Wilson, 610 F.3d at 600; see also Hatfield v. O'Neill, 534 F. App'x 838, 845 (11th Cir. 2013) (noting that the disability factor is "particularly significant" when the plaintiff's disability is "profound."). The subjective component focuses on whether the school official "subjectively intended to
Applying these factors, the Court finds that N.R. has alleged facts sufficient to satisfy the objective component of a substantive due process claim for excessive corporal punishment against Frazier. To begin with, it is alleged that N.R., an ESE student with a profound disability, was subjected to a multi-year pattern of physical abuse by Frazier, which included pinching, flicking, pushing, slapping, punching, and kicking N.R. and other ESE students. It is further alleged that Frazier withheld food from N.R. and other ESE students, threw shoes at them "because he found it funny," confined them in cardboard boxes for hours on end, and locked them in a hot transport van. Frasier also, on multiple occasions, and for hours at time, allegedly strapped N.R. to a stationary bike, which, on one instance, tipped over and fell on top of N.R. This amount of force, if true, is objectively "obviously excessive" under the totality of the circumstances alleged here.
Under the first and second factors, N.R.'s allegations, if true, establish that the little or no need for Frazier to use physical force against him. Notably, Frazier was not acting in self-defense, or with any identifiable pedagogical or disciplinary purpose, or to protect N.R. from harming himself or others. See Wilson, 610 F.3d at 600; see also Hatfield, 534 F. App'x at 845-46 (holding the need for a teacher to strike a developmentally disabled child in the head was nonexistent where the teacher was not acting in self-defense, or with a disciplinary purpose, or in an attempt to protect the child). It is certainly plausible that N.R., like any student, sometimes posed challenges in the classroom. However, given N.R.'s profound mental disabilities, it is inconceivable that those challenges would need to be met with the type and amount of physical force administered by Frazier here. Compare Wilson, 610 F.3d at 588 (restraining autistic student by pinning arms behind his back was not excessive given student's refusal to leave classroom, use of vulgarities, and threats to have teacher arrested) with M.S. ex rel. Soltys v. Seminole Cty. Sch. Bd., 636 F.Supp.2d 1317, 1324 (M.D. Fla. 2009) (finding it disproportionate to slam an autistic student on a desk for failing to pay attention or control bodily functions because the conduct being addressed "was that of the uncontrollable behavior of a special needs student") and J.V. v. Seminole Cty. Sch. Bd., No. 6:04cv1889, 2007 WL 7261470, at *8 (M.D. Fla. Mar. 21, 2007) (explaining that a teacher body slamming an autistic student on desk for screaming, arm flapping, and self-stimulation was a disproportionate response because the conduct being addressed was normal behavior for autistic children); see also B.M. ex rel. M.F. v. Thompson, No. 3:13-CV-13-J-12JBT, 2013 WL 4547344, at *5 (M.D. Fla. Aug. 27, 2013) (finding allegations that the teacher lodged an unprovoked attack by throwing a pencil at a severely disabled student "when there was no need for any use of force at all," considered with the surrounding circumstances, sufficient to state a plausible claim for relief). The Court thus finds that the first and second factors have been adequately alleged in this case.
The third factor—the extent of N.R.'s injury—has also been adequately alleged. The complaint alleges that as a result of Frazier's force, N.R. suffered numerous physical injuries and pain and suffering. Specifically, it is alleged that N.R. was injured from being "pushed, slapped, punched and/or kicked" by Frazier on numerous occasions,
On balance, the totality of the alleged circumstances, taken as true and viewed in the light most favorable to N.R., state a plausible claim that Frazier used an "obviously excessive" amount of physical force against N.R. The Court thus finds that the allegations satisfy the objective component of a substantive due process claim for excessive corporal punishment.
The Court also finds that N.R. has plausibly stated a claim that Frazier "subjectively intend[ed] to use [an] obviously excessive amount of force in circumstances where it was foreseeable that serious bodily injury could result." See Neal, 229 F.3d at 1075 n.3. The subjective component of an excessive corporal punishment claim may be satisfied where a school official's alleged conduct creates an inference of malice. Malice may be inferred from the existence of a pattern of abusive conduct, see Soltys, 636 F. Supp. 2d at 1325, the official's use of derogatory language during the alleged abuse, see Hatfield, 534 F. App'x at 847, and abusive conduct that presented a "foreseeable risk of serious bodily injury," see Kirkland, 347 F.3d at 904.
In this case, the requisite subjective intent and malice are readily apparent from N.R.'s allegations. According to the complaint, Frazier threw things at ESE students, including N.R., because he found it "funny," he pinched them to purposely inflict pain and redirect their attention, and he confined them to cardboard boxes for hours at time "so Frazier would not be bothered." See ECF No. 64 at 16, 18. Frazier also allegedly verbally antagonized N.R., and other ESE students, and routinely called them inappropriate names as part of his multi-year pattern of abuse. Finally, much of Frazier's alleged physically abusive conduct presented a risk of serious injury to the particularly vulnerable children at whom it was directed. These allegations, together with the lack of legitimate governmental interest in subjecting N.R. to the aforementioned force, plausibly support an inference that Frazier's conduct was intentional and malicious.
In sum, the Court finds N.R.'s factual allegations sufficient to plausibly establish that Frazier intentionally used amounts of force against N.R. that were obviously excessive under the circumstances and that Frazier's conduct presented a foreseeable risk of serious bodily injury. Accepting
N.R. also asserts constitutional claims against five additional defendants in their individual capacities: Principal Lambert, Principal Williams, Investigator Farley, HR Assistant Superintendent Smith, and Superintendent Jackson.
The Court begins with N.R.'s substantive claims under § 1983. 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, 129 S.Ct. 1937. Actionable misconduct occurs where the supervisor "personally participate[d] in the alleged constitutional violation" or "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 which was "obvious, flagrant, rampant and of continued duration," put the supervisor on notice of the need to correct the alleged constitutional deprivations, but he failed to do so. Broward Cty., 604 F.3d at 1266. Importantly, "[t]here is no bright line identifying when misconduct transforms from a couple of isolated instances into a pattern of abuse." Williams, 181 F. Supp. 3d at 1128 (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 where 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) (thirteen complaints about 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 sufficient); J.V. ex rel. Ortiz v. Seminole Cty. Sch. Bd., No. 04-cv-1889, 2005 WL 1243756 at *3 (M.D. Fla. May 25, 2005) (repeated acts of abuse by a single teacher). Alternatively, the plaintiff can establish 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."
The Court begins with the claim that the supervisory defendants' conduct "demonstrated recklessness and/or deliberate indifference to" N.R.'s right to be free from unreasonable seizure, in violation of the Fourth Amendment. See ECF No. 64 at 61. Because the Court has already determined that no Fourth Amendment violation occurred, this claim provides no basis for relief and will be dismissed. See Beshers v. Harrison, 495 F.3d 1260, 1264 n.7 (11th Cir. 2007) (explaining that a constitutional violation by a subordinate is a necessary predicate to supervisory liability); Campbell v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999) (stating that a claim for supervisory liability fails where there is no underlying constitutional violation by a subordinate).
Regarding the Fourteenth Amendment claim, the Court finds that N.R. has failed to allege a supervisory liability claim under § 1983 against Investigator Farley, but he has adequately stated a claim against Principal Lambert, Principal Williams, Assistant Superintendent Smith, and Superintendent Jackson.
N.R. has failed to state a claim for supervisory liability against Investigator Farley because the factual allegations in the complaint do not plausibly establish— directly or inferentially—that Farley was a supervisory official. 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. 64 at 8, 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 Frazier or Hennion. 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 recast Frazier's misconduct in a more favorable light. There is no factual allegation showing that Farley had authority to remove Frazier or N.R. from the classroom, or otherwise effectuate that result. In short, N.R. 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.
The complaint alleges facts demonstrating that Principal Lambert was aware of Frazier's history of physically abusing nonverbal, developmentally disabled children and failed to stop it.
The complaint also adequately alleges that Principal Lambert employed a custom of deliberate indifference to Frazier's conduct. "[A] principal who fails to appropriately respond to repeated reports of a subordinate's abuse of students may, depending on the facts of the case, be said to act with deliberate indifference." Williams, 181 F. Supp. 3d at 1128 (citing Doe v. Bd. of Educ. of Consol. Sch. Dist. 230 Cook Cty., Ill, 18 F.Supp.2d 954, 958 (N.D. Ill. 1998) (denying summary judgment in a school abuse case for principal/assistant superintendent, band director, and a handful of other defendants because there was sufficient evidence suggesting some defendants may have "turned a blind eye" to teacher's abuse of students)); Hill v. Cundiff, 797 F.3d 948, 979 (11th Cir. 2015) (stating that a jury could find a principal's "doing nothing" in response to reports of sexual harassment amounted to deliberate indifference that subjected student to further abuse); Taylor Indep. Sch. Dis., 15 F.3d at 457 (denying summary judgment where principal "demonstrated deliberate indifference to [teacher's] offensive acts by failing to take action that was obviously necessary to prevent or stop the abuse.").
Here, N.R. alleges that Principal Lambert engaged in a pattern of dismissiveness and intimidation towards the numerous Silver Sands employees who reported Frazier's abusive conduct.
The complaint also plausibly alleges facts sufficient to support an inference that Principal Williams was aware of Frazier's history of widespread abuse against nonverbal, developmentally disabled children and failed to stop it. Principal Williams did not become Silver Sands' principal until January 2016, by which time the alleged abuse had been ongoing for at least 1.5 years. There are no allegations that Principal Williams was on the faculty at Silver Sands—or anywhere else in the School District—before assuming the principal position. Thus, even viewed in the light most favorable to N.R., the complaint does not support a reasonable inference that Principal Williams would have had an opportunity to learn of Frazier's abusive conduct before January 2016.
However, N.R.'s factual allegations plausibly show that after joining Silver Sands in January 2016, Principal Williams received notice of Frazier's history of physically
The same is true for HR Assistant Superintendent Smith and Superintendent Jackson.
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 Lambert, Principal Williams, HR Assistant Superintendent Smith, or Superintendent Jackson—did, as a matter of fact or law, violate N.R.'s substantive due process 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 Indep. Sch. Dis., 15 F.3d at 456 n.12. Here, N.R. claims that the supervisory defendants knowingly abdicated their constitutional duties. Whether N.R. ultimately will be able to establish the requisite knowledge and "blind eye" acquiescence in Frazier's alleged abuse is unknowable at this stage. However, given the liberal requirements of notice pleading and the detailed allegations of abuse, the knowledge and roles of the supervisory defendants, and their alleged failure to report or take corrective action, the Court finds the complaint sufficient to merit the development of an evidentiary record to permit full consideration of all relevant facts before a final conclusion is reached about the constitutionality of the defendants' conduct.
N.R. also argues that Principal Lambert, Principal Williams, Investigator Farley, HR Assistant Superintendent Smith, and Superintendent Jackson violated his rights under the Equal Protection Clause.
"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall `deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Generally, equal protection violations arise when the state classifies and treats "some discrete and identifiable group of citizens differently from other groups." See Corey Airport Servs., Inc. v. Clear Channel Outdoor, Inc., 682 F.3d 1293, 1296 (11th Cir. 2012). In order to state an equal protection claim, the plaintiff must therefore show that the state treated him differently than other similarly situated persons based on his or her membership in an identifiable group or class of persons. See id.; see also Leib v. Hillsborough Cty. Pub. Transp. Comm'n, 558 F.3d 1301, 1305 (11th Cir.
The supervisory defendants generally argue that N.R. has failed to state an equal protection claim. The Court disagrees. Here, N.R. alleges that he and other nonverbal, disabled students were intentionally treated differently than verbal, disabled students and/or nondisabled students. See ECF No. 64 at 71. Specifically, N.R. alleges that Frazier targeted and abused nonverbal, disabled students, "as opposed to other students who were verbal enough to report his abuse." Id. at 21. It is similarly alleged the supervisory defendants concealed, failed to stop, and failed to adequately address the abuse of nonverbal, disabled students
All of the individual defendants argue that they are entitled to qualified immunity with respect to N.R.'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 v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003). "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)).
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, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (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 reasonably be disputed that the acts forming the basis for N.R.'s § 1983 claims are discretionary in nature. Moreover, the Court has already found that the allegations in the complaint, taken as true, state plausible claims that: (1) Frazier's alleged abuse violated N.R.'s substantive due process right to be free from excessive corporal punishment; and (2) the supervisory defendants alleged response to reports of Frazier's abuse was constitutionally insufficient. Thus, for purposes of qualified immunity, the Court must now consider whether reasonable school officials would have known and understood that such conduct—actual abuse in Frazier's case, apathy in response to reports of abuse in the case of the supervisory defendants—is unconstitutional.
Regarding Frazier, the Court has little difficulty finding that a reasonable special education teacher would know that maliciously punching, kicking, slapping, starving, and confining a child—for hours at a time—to a stationary bike, cardboard box, or hot transport van interferes with that child's constitutional liberty interests. It has been clearly established for decades that this level of physically abusive conduct —arbitrary and excessively severe corporal punishment of public school children, particularly developmentally disabled students—violates the students' constitutional rights. See Sandin v. Conner, 515 U.S. 472, 485, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (citing Wright, 430 U.S. at 674, 97 S.Ct. 1401); see also Kirkland, 347 F.3d at 905; Neal, 229 F.3d at 1075; Hatfield, 534 F. App'x at 847. Accepting the allegations in the complaint as true, N.R. has pled sufficient facts to overcome qualified immunity for Frazier at this stage. Consequently, Frazier's motion to dismiss N.R.'s
The same is true for all of the remaining individual defendants. 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. 662, 676-77, 129 S.Ct. 1937 (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 the precedent of the Supreme Court and the Eleventh Circuit, Wright, 430 U.S. at 672-74, 97 S.Ct. 1401; Neal, 229 F.3d at 1075; 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, 105 S.Ct. 3249.
In this case, the alleged acts and omissions on the part of the individual defendants, accepted as true, plausibly establish violations of the above federal statutory and constitutional provisions. A reasonable supervisory school official would have known that Frazier's alleged multi-year history of physically abusing 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 N.R.'s allegations are substantiated presents "another issue for another time." Williams, 181 F. Supp. 3d at 1129. For now, N.R. has pled enough facts to overcome qualified immunity for the five supervisory defendants at this stage.
N.R. brings claims under Florida law against only two of the individual defendants, Frazier and Hennion. Three state law claims are alleged against Frazier: (1) a violation of the rights of a developmentally disabled person under Fla. Stat. § 393.13 (Count Thirteen); (2) negligence (Count Sixteen); and (3) battery (Count Seventeen). There are two state law claims against Hennion: (1) negligence (Count Sixteen); and (2) battery (Count Seventeen). In response, Frazier and Hennion separately argue that N.R. has failed to state a claim for battery and, in any event, they are entitled to official immunity for the state law claims.
To state a cause of action for the tort of battery under Florida law, a plaintiff must allege that the defendant intentionally inflicted harmful or offensive contact on another person. See Quilling v. Price, 894 So.2d 1061, 1063 (Fla. 5th DCA 2005); Chorak v. Naughton, 409 So.2d 35, 39 (Fla. 2d DCA 1981). "To establish the required intent to commit battery, the plaintiff must show that defendant exhibit[ed] a deliberate intent to injure or engage[d] in conduct which [wa]s substantially certain to result in injury." Rubio v. Lopez, 445 F. App'x 170, 175 (11th Cir. 2011) (citing D'Amario v. Ford Motor Co., 806 So.2d 424, 438 (Fla. 2001)).
For the same reasons that N.R. has adequately alleged an excessive corporal punishment claim against Frazier, he has also adequately pled his parallel state law claim for battery against him. The complaint also adequately states a plausible claim for battery against Hennion. Accepting the factual allegations as
Frazier and Hennion both assert the defense of official immunity in response to N.R.'s state law tort claims, pursuant to Fla. Stat. § 768.28(9)(a). Under this provision, state officers, employees and agents are immune from suit in their personal capacity for discretionary actions taken within the scope of their official authority. See id. This statutory immunity may be pierced only where a state official either: (1) acts outside the scope of his employment; or (2) acts "in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." See id. Thus, to survive a motion to dismiss on official immunity grounds, a plaintiff must provide a good faith factual basis in the complaint for concluding that the state official either acted outside the scope of his employment or in bad faith. Brown v. McKinnon, 964 So.2d 173, 175 (Fla. 3d DCA 2007). Courts construing the bad faith prong of § 768.29(9)(a) use the actual malice standard, Parker v. State Bd. of Regents ex rel. Fla. State Univ., 724 So.2d 163, 167 (Fla. 1st DCA 1998), which means the conduct must be committed with "ill will, hatred, spite, [or] evil intent," Reed v. State, 837 So.2d 366, 368-69 (Fla. 2002).
In this case, it cannot reasonably be disputed that the alleged abusive acts forming the basis of N.R.'s state law claims against Frazier were discretionary in nature. Thus, Frazier is only entitled to statutory immunity if the complaint contains good faith, factually supported allegations of actual malice. As the Court has already found, the complaint is replete with factual allegations—including Frazier's own alleged statements, his alleged multi-year history of committing the same physically abusive acts, the alleged lack of pedagogical or disciplinary justification for his acts—which, if true, plausibly support a conclusion that Frazier acted in bad faith and with actual malice. The Court thus finds that N.R. has pled sufficient facts to overcome statutory immunity at this stage.
Similarly, it cannot reasonably be disputed that the alleged abusive acts forming the basis for N.R.'s state law negligence and battery claims against Hennion were discretionary in nature. Further, as with Frazier, Hennion's own alleged statements —e.g., verbally antagonizing ESE students, including N.R., by calling them names and making offensive comments about their parents; threatening the safety of another teacher's aide who reported Frazier's abuse—and her alleged multi-year pattern of committing the same unjustified and physically abusive conduct, together, plausibly support a conclusion that Hennion acted with "ill will, hatred, spite, [or] evil intent" so as to satisfy the actual malice standard. See id. Therefore, the Court finds that N.R. has also pled sufficient facts to overcome Hennion's official immunity defense at this stage.
N.R. alleges nine claims against the School Board, with each claim presenting an alternative theory of municipal liability: civil rights violations under 42 U.S.C § 1983 based on an alleged unofficial policy or custom of allowing employees to use excessive force against and deny equal protection to N.R. and other ESE students (Counts Two and Three);
To establish liability under 42 U.S.C. § 1983, a plaintiff must assert the violation of a specific constitutional right committed by someone acting under color of state law. Broward Cty., 604 F.3d at 1265. Here, N.R. alleges that the School Board, a municipal entity, violated his rights under the Fourth Amendment (unreasonable seizure) and the Fourteenth Amendment (excessive force and equal protection). More specifically, it is alleged that the School Board had an unofficial custom of deliberate indifference and failure to respond to abusive conduct by teachers; failed to implement or enforce policies regarding training, supervising, or disciplining employees in the reporting of child abuse and to prevent the violation of constitutional rights of students; and cultivated an atmosphere of intimidation to prevent reports of child abuse or encourage instructing employees not to report constitutional violations. In response, the School Board argues that N.R. has failed to allege facts sufficient to support a claim for municipal liability under § 1983 and Monell v. Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Court disagrees.
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, 98 S.Ct. 2018. 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
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, 98 S.Ct. 2018. 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, 98 S.Ct. 2018. 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.R. 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, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). To state such a claim, N.R. 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 caused the employees to violate a citizen's constitutional rights. Id. at 389-91, 109 S.Ct. 1197; 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
Without repeating the analysis detailed above, the Court finds simply that the first three elements necessary to state a claim of deliberate indifference to widespread abuse are satisfied based on: (1) Frazier's open and continuous physical abuse of ESE students at Silver Sands over a two-year period; (2) constructive knowledge to the School Board based on Superintendent Jackson's knowledge of that abuse;
Lastly, the Court finds that N.R. has plausibly alleged that the School Board's custom, and its failure to adequately supervise and train employees, was a "moving force" behind the violations of N.R.'s substantive due process and equal protection rights. As detailed above, the allegations in this case include many more than one or two isolated prior incidents of abuse. Superintendent Jackson was on notice of multiple instances of abuse by Frazier, which were substantiated by February or March of 2016, and took no action to implement District-wide or even just Silver Sands-specific corrective policies, supervision, training, or procedures for reporting abuse. She then received notice of Stillions' similar pattern of abusing ESE students but, again, no action was taken, at least not for several months. As a result, Principal Williams continued failing to adequately supervise Frazier; classroom aides continued being discouraged from reporting abuse or told to report only to the principal for the purpose of concealing the conduct; and N.R. was left in the classroom to continue enduring Frazier's abuse. These allegations support an inference that the School Board's custom of inaction, and its failure to adequately supervise and train employees, were a moving force behind the continued abuse of N.R. and, as a result, caused the underlying constitutional violations. See Williams, 181 F. Supp. 3d at 1124 (where complaints of a multi-year pattern of abuse were met with a school district's custom of inaction, the allegations were sufficient to suggest the custom was
N.R. also brings discrimination claims against the School Board pursuant to Title II of the American with Disabilities Act, 42 U.S.C. § 12131, et seq., (the "ADA") 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.R.'s claims concern alleged discriminatory and malicious physical abuse of
N.R. also brings the following claims against the School Board under Florida law: (1) negligent hiring, training, retention and/or supervision (Count Fourteen); and (2) respondeat superior (Count Fifteen).
The School Board argues that N.R. has failed to state a claim that it was negligent in hiring Frazier and Hennion. To state a claim for negligent hiring under Florida law, a plaintiff must allege facts showing that:
Malicki v. Doe, 814 So.2d 347, 362 (Fla. 2002). Importantly, in this context, the "core predicate for imposing liability is one of reasonable foreseeability." Id. In other words, "the inquiry is focused on whether the specific danger that ultimately manifested itself ... reasonably could have been foreseen at the time of hiring." Id. at 363.
In this case, the Court finds N.R.'s allegations insufficient to state a negligent hiring claim. The complaint does not allege any facts that would plausibly suggest the School Board was on notice of, or reasonably could have foreseen, any harmful propensities or unfitness for employment in Frazier or Hennion. See Duquesne v. City of Miami Beach, No. 1:12cv20575, 2012 WL 3061603, at *10 (S.D. Fla. July 26, 2012) (dismissing negligent hiring claim based on lack of allegations about "any incidents from the [employee's] history before being hired"). Nor are there any factual allegations that would support a claim that Frazier and Hennion were not competent and qualified to teach ESE students when they were hired. See Mumford v. Carnival Corp., 7 F.Supp.3d 1243, 1249-50 (S.D. Fla. 2014) (dismissing negligent hiring claim where complaint lacked factual allegations (1) that the employer "knew or should have known of the unfitness or harmful propensities of its medical staff members"; and (2) as to "why the medical staff was not competent or duly qualified" before being hired). The facts pled are thus insufficient to "state a claim to relief that is plausible on its face." See Iqbal, 129 S. Ct. at 1949.
The School Board argues N.R. has failed to state a claim for negligent retention. In contrast to negligent hiring, "[n]egligent retention occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further actions such as investigating, discharge, or reassignment." Fernandez v. Bal Harbour Vill., 49 F.Supp.3d 1144, 1153 (S.D. Fla. 2014). "The factors constituting notice, employee fitness, ... the type of action reasonably required of the employer[,]" and "the negligence of an
Applying these principles, the Court finds that N.R. has adequately alleged a claim against the School Board for negligent retention of Frazier and Hennion. 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.R. alleges that the School Board breached that duty when it received numerous reports that Frazier and Hennion were physically abusing ESE students, confirmed the accuracy of those abuse reports with an internal investigation, and then chose not to meaningfully discipline Frazier or otherwise stop the abuse. Instead, it is alleged that the School Board knowingly left Frazier in the same ESE classroom, where he continued the same physical abuse of students, including N.R., for months thereafter. According to the complaint, N.R. suffered physical and psychological injuries as a proximate result. This is sufficient to state a plausible claim for negligent retention.
The School Board asserts that sovereign immunity bars N.R.'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
In this case, N.R. alleges that the School Board was negligent by failing to "adequately and appropriately train [its] employees in identifying, documenting, and/or reporting child abuse," see ECF No. 64 at 92, which includes the School Board's alleged failure to properly implement and enforce its training on state-mandated reporting obligations, see ECF No. 61 at 19-20. N.R. maintains that these represent 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.R,'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.R. 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.R.'s negligent training claim. For now, N.R. has carried his initial burden of alleging facts sufficient to support a cause of action.
N.R. alternatively claims that the School Board is vicariously liable for the allegedly negligent actions of its employees, Frazier and Hennion, 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, Frazier and Hennion's conduct can only be viewed as bad faith, malicious, and in wanton disregard of human rights, precluding liability for the School Board. N.R. 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 Frazier and Hennion'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.R. that, at this stage, notice pleading allows the respondeat superior claim to go forward.
N.R. also alleges claims of "conspiracy to interfere with [his] civil rights" under 42 U.S.C. §§ 1983 and 1985(3) against the School Board and six of the individual defendants—Superintendent Jackson, HR Assistant Superintendent Smith, Investigator Farley, Principal Lambert, Principal Williams, and the teacher's assistant, Jean Hennion.
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; (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);
"The linchpin of [any] conspiracy is agreement, which presupposes communication." Bailey v. Bd. of Cty. Comm'rs of Alachua Cty., 956 F.2d 1112, 1122 (11th Cir. 1992). Conclusory allegations of an agreement, without any factual basis to make the allegations plausible, are insufficient to state a conspiracy claim. Williams, 181 F. Supp. 3d at 1148. However, an agreement may be inferred "from the relationship of the parties, their overt acts and concert of action, and the totality of their conduct." Am. Fed'n of Labor and Congress of Indus. Orgs. v. City of Miami, FL, 637 F.3d 1178, 1192 (11th Cir. 2011).
Applying these principles, the Court finds that N.R. has stated plausible §§ 1983 and 1985(3) claims for conspiracy against Principal Williams, Investigator Farley, HR Assistant Superintendent Smith, Superintendent Jackson, and the School Board.
The factual allegations, if true, plausibly show that the defendants knew of and communicated with each other about Frazier's reported physical abuse of ESE students, confirmed the accuracy of the abuse reports, and then all chose not to meaningfully intervene or stop the abuse, inform the parents of Frazier's students that their children were being abused, or fulfill their state-mandated reporting duties, which, again, is a felony under Florida law. See Fla. Stat. § 39.205(1). At least one defendant —Principal Williams—is specifically alleged to have engaged in intimidation and retaliation against Silver Sands employees who reported abuse, see ECF No. 64 at 32-33, while two others—Superintendent Jackson and HR Assistant Superintendent Smith—allegedly misrepresented the nature and extent of Frazier's misconduct in his disciplinary record, see id. at 31. Investigator Farley, for his part, allegedly "made Kenwood employees agree" not to discuss the Stillions's investigation
The same is true with respect to the § 1985(3) conspiracy claim. The above-described allegations plausibly establish the existence of a conspiracy among the four defendants, various acts that were taken in furtherance of the conspiracy, and a resultant deprivation of N.R.'s substantive due process right not to be subjected to excessive corporal punishment at the hands of a public school teacher. N.R. does not specifically allege in the § 1985(3) count that these defendants were motivated by a class-based animus, but it is evident from his other allegations and his substantive equal protection claim that he is asserting N.R.'s disability as the motivating factor. Accordingly, the Court finds N.R. has pled sufficient facts to support a conspiracy claim under § 1985(3) against Principal Williams, Investigator Farley, HR Assistant Superintendent Smith, Superintendent Jackson, and the School Board.
As to Principal Lambert and Hennion, however, N.R.'s conspiracy claims are due to be dismissed because, with respect to both, the complaint fails to allege any non-conclusory facts that would allow the Court to infer that they "agreed" to join a conspiracy to conceal and cover up Frazier's abuse. Hennion is the most obviously deficient—as a mere teacher's aide in Frazier's classroom, she was not a member of school administration and there is no factual basis from which to infer that she ever communicated or met with, must less had any sort of personal or professional relationship with, any of the other alleged conspirators. N.R.'s blanket assertions that all "[d]efendants reached a mutual understanding" and "conspired with each other" are too conclusory to plausibly establish that Hennion, specifically, agreed to join the conspiracy. 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).
The conspiracy claims against Principal Lambert are similarly deficient. There is not one factual allegation suggesting that Principal Lambert communicated with any of the other alleged conspirators about physical abuse by teachers at Silver Sands. To the contrary, N.R. explicitly alleges that Principal Lambert strived to prevent disclosure of such information to other school administration officials before his retirement. Based on the complaint, the Court can only conclude that Principal Lambert was successful in that endeavor
The defendants also argue that N.R.'s civil conspiracy claims are barred by the intracorporate conspiracy doctrine. At this stage, the Court disagrees. It is true that under the intracorporate conspiracy doctrine, a legal entity— such as the School District or 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," see McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000); see also Denney, 247 F.3d at 1190,
Accordingly:
