United States District Court, N.D. Ohio, Eastern Division
Monique Jones, individually and on behalf of her minor son, C.H., Plaintiff,
Avon Local School District Board of Education, et al. Defendants.
MEMORANDUM OF OPINION AND ORDER
PATRICIA A. GAUGHAN JUDGE
matter is before the Court upon Defendants Kimberly Fuller
and Psych & Psych's Motion to Dismiss Plaintiff's
Second Amended Complaint. For the following reasons, the
motion is GRANTED.
Monique Jones, individually and on behalf of her minor son,
C.H., filed her original Complaint against defendants Avon
Local School District Board of Education, Michael Laub
(Superintendent), Jason Call (Principal of Avon Heritage
South Elementary School), Loretta Oley (Teacher), and Lynn
Maslinski (Teacher) in the Lorain County Court of Common
Pleas. A First Amended Complaint was filed adding defendant
Kimberly Fuller (Licensed Therapist at Diana Santanonio,
Ed.S. & Associates, LLC dba Psych & Psych Services)
and removing as defendants Maslinski and Laub. The case was
thereafter removed to this Court. Defendants Fuller and Psych
& Psych filed a Motion to Dismiss the Amended
Complaint. That motion was moot with the filing of a Second
Amended Complaint which generally alleges the following.
a minor who was a student at Avon Heritage South Elementary
School. Plaintiff Monique Jones is his mother. C.H. began the
2014-2015 school year as a third grader in defendant
Oley's class. He was the only African American student in
the class. Jones met with Oley in September 2014 because she
wanted to build a relationship with the teacher. At the
meeting, Jones mentioned that she had recently been diagnosed
with Attention Deficit Disorder (ADD). Oley told Jones that
she thought C.H. had ADD or Attention Deficit Hyperactivity
Disorder (ADHD) and then frequently mentioned this in
conversations thereafter with Jones although Jones noted that
he had not previously had any symptoms of such. In late
September, Oley suggested that C.H. be placed on a 504 plan
(under the Rehabilitation Act) for his frequent urination.
C.H. has Benign Urinary Frequency Syndrome. Principal Call
also contacted Jones regarding the plan in hopes that it
would be established prior to the upcoming standardized
testing. The plan was established on October 3, 2014.
Unbeknownst to Jones, Oley had been physically and
emotionally abusing C.H. on a daily basis until November 6,
2014, when he was removed by Jones from the school. Eleven
specific instances of abuse are listed. Jones learned of the
abuse on November 3, 2014, when C.H. came home from school
and told her about it. Jones reported the abuse to Principal
Call the next morning in a telephone call. A meeting was
scheduled by Call with Jones for the morning of November 5.
Jones sent C.H. to school on November 4, “hoping that
her conversation with Mr. Call would address the situation
and because she was concerned about truancy issues.” It
is unknown whether abuse occurred on that day. At the
November 5 meeting, Jones reiterated that Oley had been
abusing C.H. and requested that C.H. be removed from
Oley's classroom, but Call refused. Call excused C.H.
from school for the rest of the day of November 5. A
follow-up meeting was scheduled for November 7. Jones
“trusted Mr. Call's educational expertise, and
feeling satisfied that the situation would be resolved,
[Jones] sent C.H. to school on November 6.” But, C.H.
came home that day and reported that Oley had continued to
physically and emotionally abuse him. On November 6, Oley
kept C.H. in from recess to complete a test, threw test
papers in his face and yelled “wrong, wrong,
wrong.” Jones did not thereafter send him back to
the school. She formally withdrew C.H. on November 11. Call
did not report the abuse as required by Ohio law. Pursuant to
a prior referral by Oley, Jones had scheduled an appointment
for November 4, 2014 with Psych & Psych to have C.H.
formally evaluated for ADD/ADHD. Fuller met with C.H. and
Jones three times between November 4 and December 12. He was
not diagnosed with ADD/ADHD. Jones reported Oley's abuse
of C.H. to Fuller during the meetings, including the first
meeting on November 4. Fuller never reported the allegations
of abuse as required by Ohio law. As a result, C.H. suffered
additional abuse under Oley's supervision. On December 9,
2014, C.H. was diagnosed, by a separate facility, with post
traumatic stress disorder (PTSD) as a result of Oley's
abuses and discrimination.
Second Amended Complaint asserts ten claims for relief. One
claim is asserted against Fuller: Count Nine alleges that she
failed to report Oley's abuse as required by Ohio Revised
Code § 2151.421 which proximately caused Oley's
matter is now before the Court upon Fuller and Psych &
Psych's Motion to Dismiss the Second Amended Complaint.
“Dismissal is appropriate when a plaintiff fails to
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6). We assume the factual allegations in the complaint
are true and construe the complaint in the light most
favorable to the plaintiff.” Comtide Holdings, LLC
v. Booth Creek Management Corp., 2009 WL 1884445
(6th Cir. July 2, 2009) (citing Bassett v.
Nat'l Collegiate Athletic Ass'n, 528 F.3d 426,
430 (6th Cir.2008)). In construing the complaint in the light
most favorable to the non-moving party, “the court does
not accept the bare assertion of legal conclusions as enough,
nor does it accept as true unwarranted factual
inferences.” Gritton v. Disponett, 2009 WL
1505256 (6th Cir. May 27, 2009) (citing In re
Sofamor Danek Group, Inc., 123 F.3d 394, 400
(6th Cir.1997). As outlined by the Sixth Circuit:
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.” “Specific
facts are not necessary; the statement need only give the
defendant fair notice of what the ... claim is and the
grounds upon which it rests.”Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
However, “[f]actual allegations must be enough to raise
a right to relief above the speculative level” and to
“state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 555, 570. A
plaintiff must “plead[ ] factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
Keys v. Humana, Inc., 684 F.3d 605, 608 (6th
Cir.2012). Thus, Twombly and Iqbal require
that the complaint contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face based on factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged. Twombly, 550
U.S. at 570; Iqbal, 556 U.S. at 678. The complaint
must contain “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555.
Nine alleges that Fuller was subject to the mandatory reporting
requirements of the Ohio statute and failed to report the
allegations of abuse that Monique Jones reported to her
beginning on November 4, 2014, and that her ...