United States District Court, S.D. Ohio, Western Division, Dayton
WENDY PYFRIN FEUCHT, Individually and as the Co-Administrator of the Estate of BETHANY THOMPSON, et al., Plaintiffs,
v.
TRIAD LOCAL SCHOOLS BOARD OF EDUCATION, et al., Defendants.
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 ...