Feucht v. Triad Local Schools Board of Education

         ENTRY AND ORDER GRANTING, IN PART, DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT (DOC. 17), AND DECLINING TO EXERCISE SUPPLEMENTAL JURISDICTION OVER THE REMAINING CLAIMS AND THEREFORE DISMISSING THE REMAINING CLAIMS WITHOUT PREJUDICE TO REFILING IN STATE COURT

          THOMAS M. ROSE, UNITED STATES DISTRICT JUDGE

         Pending before the Court is the Motion to Dismiss Plaintiffs' Amended Complaint (Doc. 17) (the “Motion”), filed by Defendants Triad Local Schools Board of Education (the “Board”), Duane Caudill (“Caudill”), Christopher Piper (“Piper”), and Jessica Gronas (“Gronas”) (collectively, the “Defendants”), pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiffs Wendy Pyfrin Feucht and Paul Thompson (collectively, “Plaintiffs”)^[1] filed a Memorandum in Opposition to the Motion. (Doc. 25.) Defendants filed a Reply in support of the Motion. (Doc. 27.) The Motion is fully briefed and ripe for review.^[2] (Docs. 17, 25, 27.)

         For the reasons discussed below, the Court GRANTS the Motion with respect to the federal law claims alleged in the Amended Complaint (i.e., Counts 1, 2, and 3). Those claims are dismissed. The Court also dismisses certain claims, as set forth below, that Plaintiffs conceded should be dismissed. Pursuant to 28 U.S.C. § 1367(c)(3), the Court declines to exercise supplemental jurisdiction over Plaintiffs' remaining state law and relief claims. Those claims are dismissed without prejudice to refiling in state court. In essence, the Court merely finds that the Amended Complaint does not state a facially plausible claim for relief under federal law.

         I. BACKGROUND

         This case involves the tragic death of 11-year old Bethany Thompson (“Bethany”), who took her own life on October 19, 2016. To say that the circumstances alleged are disheartening is a considerable understatement. The remainder of this Background section consists of allegations taken from Plaintiffs' First Amended Complaint (the “Complaint”) (Doc. 14); none of the allegations have been proven given that the case is still in the pleadings stage.

         Plaintiffs, Wendy Pyfrin Feucht (“Wendy”) and Paul Thompson (“Paul”), are Bethany's mother and father and the co-administrators of her estate. At all relevant times, Piper served as the Superintendent of Trial Local School District, Caudill served as the Principal at Triad Middle School, and Gronas served as the Guidance Counselor at Triad Middle School. Bethany and her parents tried to stop the bullying Bethany faced at school and repeatedly pleaded with certain defendants for help. Defendants failed to stop the bullying, and it continued. Consequently, Bethany suffered severe anguish, distress, and depression, and she ultimately committed suicide. On October 19, 2016, after years of pervasive bullying, harassment, assault and discrimination as a student in the Trial Local School District, Bethany, aged 11 and a sixth grader at Triad Middle School, killed herself with a gunshot to her head.

         From a very early age, Bethany suffered from a visible, permanent deformity on the right side of her face. For many years, and particularly as a student at Triad Middle School, Bethany endured harassment and bullying at school at the hands of numerous students, some of whom are yet to be identified. It took the form of name-calling, verbal and physical harassment, sexual harassment, and physical pushing, shoving and elbowing in the school halls, during class, at recess, and on the bus.

         Other Triad students also suffered unrelenting bullying and discrimination. In 2012, another Triad Middle School student committed suicide, although it is unknown whether bullying was a precipitating cause of that child's death. The 2012 suicide should have put the school district on high alert as to the psychological and emotional needs of its students and should have prompted the school to adopt a zero-tolerance policy regarding aggressive and harassing behavior.

         On December 11, 2014 (about two years before her death), Bethany wrote a letter to another student at recess stating that she was going to kill herself. Bethany's teacher reported the incident, per school rules, and also informed Bethany's mother. As a result of the suicidal statement, Bethany began receiving counseling at school. The Defendants knew or should have known of Bethany's 2014 suicidal threat.

         On numerous occasions during the 2015-2016 school year and other years, Wendy informed the Defendants, including Principal Caudill and other school district employees, that Bethany was being harassed, bullied, and discriminated against. Each time the Defendants assured Wendy that they were aware of the issues and the situation was being handled. On March 21, 2016, in an email, Bethany told Witness No. 1 that Minor No. 1 had shoved her when exiting the art room and that the next time she saw him (Minor No. 1) she elbowed him and told him that she had enough. That same day, Minor No. 1 snuck up on Bethany on the way to the bus and elbowed her. Witness No. 1 emailed Bethany the next day: “I feel so bad because you put up with him, too. Minor No. 1 is mean to everybody, I mean he talks about everybody and he shoved me the other day … I don't know what he will do next either.”

         During the 2016-2017 school year, Bethany and Witness No. 1 were again subjected to severe and pervasive bullying, verbal harassment, and discrimination by Minors No. 1-5, including threats that they would tie the girls up and rape them. Such threats and harassment were specifically premised upon Bethany and Witness No. 1's gender. Minors No. 1-5 discriminated against, harassed, and bullied Bethany in part because she was female and had a disability. Upon information and belief, no more than a cursory investigation was conducted by the Defendants and little to no disciplinary action was ever imposed on the perpetrators of the bullying. Additionally, the Defendants knowingly placed Bethany in the same class with Minor No. 1, who was the ringleader of the group of boys that incessantly bullied Bethany.

         On September 8, 2016 (about a month-and-a-half before her suicide), Bethany informed Principal Caudill that she was being harassed by Minor No. 1, telling him that Minor No. 1 is calling her names and intentionally trying to annoy her both in the classrooms and the hallways. The next day, Bethany's mother (Wendy), called Principal Caudill to inform him that Minor No. 1 was harassing Bethany “again this year.” During that conversation, Principal Caudill blamed Bethany for “instigating Minor No. 1, ” but promised action and to keep Bethany safe. Plaintiffs relied upon the misrepresentations made by Defendants that the bullying was being addressed and that Bethany was safe. However, the Defendants failed to address the bullying, harassment, and discrimination.

         The next day, Wendy sent multiple teachers an email regarding the issues that Bethany was having with Minor No. 1 at school:

“I spoke to Mr. Caudill on Friday about Bethany having issues with Minor No. 1 again this year. Mr. Caudill mentioned something about Bethany instigating Minor No. 1. … My child is not perfect, no child is. I understand that. Obviously, I don't get to see what you all get to see. All I see is my daughter bawling in her room because she is so worried about Minor No. 1 and what he will say at school, if it will get worse, or even physical like it did last year. There's only so much I can do for her here at home as her mother, with guidance, words of encouragement, and promises that authority figures in her school will look out for her. If she is part of the problem, by all means PLEASE let me know and we can have a meeting on what needs to be done. I have instructed her, as Mr. Caudill and I agreed, to completely ignore Minor No. 1. Not to speak or interact with him under any circumstance. That way she can in no way be held responsible for instigating or being part of the problem. I am asking for your help. Minor No. 1 nitpicking is becoming a ‘bullying issue' with Bethany. She's upset during, after, and before school because of him. His actions/words are interfering with her weekends, her happiness, her worries ... her security. She's eleven [and] full of hormones, I get that. However, this is becoming something that is affecting her and turning the other cheek and ignoring the problem isn't resolving anything. I am requesting that she is not put anywhere near him in classes they share together and also that she's not partnered with him for any reason. ….”

         On September 12, 2016, a teacher responded to Wendy's email and indicated that she and others would continue to monitor the situation.

         On or about September 14, 2016 (a little over a month before her suicide), Bethany began expressing suicidal thoughts to Witness No. 1 and Witness No. 3 and expressed that she thought that the bullying and harassment would never end. She told Witness No. 1 that if the school would not do something about the bullying then she would “handle the situation with a gun.” That same day, Witness No. 1 informed her father, Witness No. 2, that Bethany was making suicidal threats and that Bethany said that she was “done with the bullies” and “wanted to kill herself with the gun from the closet.” Upon learning this, Witness No. 2 called Principal Caudill and informed him that Bethany was threatening to kill herself and that both his daughter and Bethany were continually bullied at school. Principal Caudill assured Witness No. 2 that he would contact Bethany's mother right away, that he was aware of the bullying, and that he was “monitoring” the situation. Witness No. 2 relied upon the misrepresentations made by Caudill, and, as a result, did not take action on his own to contact Bethany's parents and did not take action on his own to prevent further bullying or Bethany's threatened suicide.

         On September 15, 2016 (the next day), Principal Caudill informed Guidance Counselor Gronas of Bethany's suicidal threat. That same day, Gronas emailed Caudill: “Bethany said she is not considering harm to herself and that she never told anyone that she was. We talked about focusing on the good in each day and not thinking how people treated her in the past, but every day is a fresh start.” Caudill responded: “Thank you!” However, Caudill and Gronas failed to contact Bethany's parents to inform them of Bethany's suicidal threats or the bullying; failed to secure a psychological evaluation; failed to refer Bethany for counseling; and, failed to take any effective action whatsoever in regard to the information that Bethany was suicidal. In failing to do so, Principal Caudill and Guidance Counselor Gronas failed to follow the School District's bylaws and handbook as it pertained to the actions to be taken by school employees upon learning that a student was suicidal and/or being bullied.

         Defendants [allegedly] violated their own bylaws and policies. In regard to suicidal threats, Section 5350 of the Triad Local School District Bylaws and Policies requires school personnel to take suicidal threats or tendencies with the “utmost seriousness and should be reported immediately to the building administrator” and the building administrator (Principal Caudill) “should immediately notify the parents or appropriate social agencies of the child's suicide attempt or tendencies toward such action.” Principal Caudill and Guidance Counselor Gronas ignored the School District Bylaws and Policies, Principal Caudill failed to address the information provided to him by Witness No. 2, and Principal Caudill failed to inform Bethany's parents or anyone else of the suicidal threats and bullying. Defendants' Student Code of Conduct states that “the Board has a ‘zero tolerance' of violent, disruptive or inappropriate behavior by its students.” Defendants' Sexual Harassment Policy prohibits sexual harassment and defines sexual harassment as: unwelcome and unsolicited sexual advances, requests for sexual favors, sexually motivated physical conduct, and other verbal or physical conduct or communication of a sexual nature.

         On September 22, 2016 (four weeks before her suicide), Bethany was forced to sit at a science table with Minor No. 1 because it was the last seat available. Per the teacher's instructions to ask other students questions before asking the teacher a question, Bethany asked Minor No. 1 a question. Bethany was disciplined for doing so because they had been told not to speak with one another. Four days later, Wendy contacted Principal Caudill to inquire about this incident. At no time during that initial contact and three subsequent emails between Wendy and Principal Caudill did Caudill inform Wendy that her daughter had threatened suicide less than ten days earlier.

         Wendy contacted Principal Caudill again approximately one week prior to Bethany's death to discuss bullying concerns. Caudill failed to inform Wendy that he had information that Bethany was suicidal. During this conversation, Caudill again informed Wendy that the bullying situation was “being handled.” Plaintiffs relied on the many misrepresentations made by Defendants that the bullying was being addressed and did not take any action on their own to prevent the bullying.

         On the date of her death, October 19, 2016, Bethany sought out Guidance Counselor Gronas for a discussion. Plaintiffs believe that those discussions addressed bullying in some way. Bethany later informed witnesses that Gronas denied Bethany permission to hang up anti-bullying posters at the school. Prior to leaving school, Bethany posted signs on the lockers of several other students that said “good luck.” Bethany informed Witness No. 1, Witness No. 3, and Witness No. 4 that she was suicidal. Witness No. 1 informed her father, Witness No. 2, after school that Bethany had stated that she was going to “go home and kill herself.” Witness No. 2 immediately set about trying to contact Bethany's mother, but by the time he reached Wendy, Bethany had already carried out her threat and killed herself.

         In addition to Bethany, other Triad students were also bullied, harassed, and discriminated against, with the actual knowledge of the Defendants, and the Defendants failed to appropriately respond to end those practices and protect the victims. Plaintiffs' action seeks damages and to reform the Triad Local Schools' policies and practices for responding to bullying, harassment, assault, battery, and discrimination.

         II. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” While this Rule “does not require ‘detailed factual allegations' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678. A claim is facially plausible when it includes “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard is not the same as a probability standard, but “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where 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.” Id. (internal quotation marks omitted). Thus, if a plaintiff has “not nudged [its] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Twombly, 550 U.S. at 570.

         When ruling on a motion to dismiss, the Court must accept the factual allegations of the complaint as true and construe them in a light most favorable to the non-moving party. Twombly, 550 U.S. at 554-55. However, the Court is not bound to accept as true a legal conclusion couched as a factual allegation. Id. at 555-56. “In evaluating a motion to dismiss [a court] may consider the complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to the defendant's motion to dismiss so long as they are referred to in the complaint and are central to the claims contained therein.” Luis v. Zang, 833 F.3d 619, 626 (6th Cir. 2016) (internal quotation marks omitted).

         III. ANALYSIS

         A. Plaintiffs' Concession to Dismissing Certain Claims

         Plaintiffs do not oppose dismissal of Count 4 (Violation of the Americans With Disability Act) and Count 10 (Negligent Infliction of Emotional Distress). (See Doc. 25 at PAGEID # 402, 407-08.) Therefore, Counts IV and X of the Complaint are dismissed.

         Additionally, Plaintiffs concede that the Decedent's parents-on their own behalf-do not have a cause of action for violation of Title IX for sex discrimination and clarify that Count 2 is brought on Decedent's behalf. (Id. at PAGEID # 402.) Therefore, any claim by Plaintiffs on their own behalf for violation of Title IX in Count II of the Complaint is dismissed.

         Plaintiffs also concede that their state law claims against the Board-with the exception of Count 11 (Violation of R.C. § 2151.421 Failure to Report Child Abuse)-cannot be asserted against the Board due to governmental immunity. (Id. at PAGEID # 409.) Therefore, Counts V, VI, VII, VIII, IX, and XIII of the Complaint against the Board (only) are dismissed.

         B. Federal Claims (Counts 1, 2, and 3)

         The Complaint therefore includes three claims under federal law against one or more of the Defendants: Count 1 (Violation of U.S. Constitution Amendment XIV Substantive Due Process); Count 2 (Violation of Title IX of the Civil Rights Act of 1964, 20 U.S.C. § 1681 Sex Discrimination) (against the Board only); and Count 3 (Unlawful Policy, Practice, or Custom in Failing to Respond to Bullying, Harassment, Sexual Discrimination, Disability Discrimination and Assault/Battery).

         (1) Count 1 - violation of substantive due process

         42 U.S.C. § 1983 (“Section 1983”) “provides a cause of action for deprivation, under color of state law, of any rights, privileges or immunities secured by the Constitution or laws of the United States.” Horn v. Madison Cnty. Fiscal Court, 22 F.3d 653, 656 (6th Cir. 1994).^[3] “To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under ...