United States District Court, W.D. Arkansas, Harrison Division
CHAD AND TONYA RICHARDSON, Individually and As Parents and Next Friends of L. PLAINTIFFS
OMAHA SCHOOL DISTRICT; JACOB SHERWOOD, Superintendent; AMANDA GREEN, Principal; and DAWN DILLON, Teacher DEFENDANTS
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE.
before the Court are a Motion for Partial Dismissal (Doc. 5)
and Brief in Support (Doc. 6) filed by Defendants Omaha
School District, Jacob Sherwood, Amanda Green, and Dawn
Dillon; a Response in Opposition (Doc. 12) and Brief in
Support (Doc. 13) filed by Plaintiffs Chad and Tonya
Richardson; and Defendants' Reply (Doc. 18). On February
12, 2018, the Court held a hearing on the Motion, and the
parties had the opportunity to present oral argument. For the
reasons given below, the Motion for Partial Dismissal (Doc.
5) is GRANTED.
lawsuit arises from an administrative appeal of claims made
before the Arkansas Department of Education
(“ADE”) by a disabled student, “L”
(“Student”), who attended school in the Omaha
School District (“the District”). Plaintiffs
filed a due process complaint before the ADE on November 19,
2016, alleging that the District had failed to provide
Student with a free, appropriate public education, in
violation of the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400, et seq.
The parties participated in a hearing before a hearing
officer appointed by the ADE, and the hearing officer issued
her Final Decision and Order on the due process complaint on
April 14, 2017. See Doc. 1-2.
13, 2017, Plaintiffs filed a lawsuit in this Court, seeking
judicial review of the hearing officer's decision.
Plaintiffs asserted a single claim in that lawsuit, and
hereafter, the Court will refer to this earlier-filed case as
“Richardson I.” See Case No.
3:17-CV-3053. In Richardson I, Plaintiffs'
counsel argued that although Student and his parents had
prevailed on some issues before the hearing officer, they had
lost on other issues. Therefore, for purposes of the
administrative appeal, Plaintiffs wished the Court to
consider them the "aggrieved party, " as that term
is defined in the IDEA. See 20 U.S.C. §
1415(i)(2)(A) (“Any party aggrieved by the [hearing
officer's] findings and decision . . . [has] the right to
bring a civil action with respect to the complaint.”).
argued in Richardson I that the hearing officer
found that the District had committed certain wrongdoing with
respect to Student's educational plan, and the hearing
officer made the following findings in Plaintiffs' favor:
(1) the District failed to conduct a comprehensive evaluation
of Student, (2) the District provided Student with
inappropriate Individual Education Plans (“IEPs”)
for three consecutive years while Student was enrolled in
school, (3) Student regressed in the last two years he was in
school, (4) Student's IEPs were not reasonably calculated
to enable him to make appropriate progress, and (5)
Student's IEPs lacked provisions for social skills
training and social skills goals.
these favorable findings, Plaintiffs disagreed with certain
other findings the hearing officer made, which were
not in their favor, including that: (1) the District
had educated Student in the least restrictive learning
environment, and (2) the District provided an appropriate
education to Student while the administrative appeal was
pending. The Court also believes it likely that Plaintiffs
disagreed with some of the hearing officer's key factual
findings in Richardson I, namely, that Student's
teacher, Dawn Dillon, did not bully Student or allow
bullying in her class, and that Superintendent Jacob Sherwood
and Principal Amanda Green conducted thorough investigations
into Student's bullying allegations.
I was ultimately dismissed because Plaintiffs never
served the District with the complaint. The Court dismissed
the case without prejudice on November 8, 2017. The Court
noted in its dismissal order that it appeared that Plaintiffs
might be barred from refiling their IDEA claim due to the
running of the statute of limitations, as Plaintiffs'
counsel had filed Richardson I on the last day of
the 90-day deadline to appeal the hearing officer's
decision. See Doc. 7, Case No. 3:17-CV-3053.
on December 4, 2017-nearly a month after Richardson
I was dismissed-Plaintiffs filed the instant case, which
the Court will call “Richardson II.”
Richardson II is different than Richardson
I, at least in terms of the causes of action asserted
and the defendants sued. Whereas Richardson I
characterized Plaintiffs as the “aggrieved party”
and requested district court review of the hearing
officer's substantive findings, Richardson II
does not request such review (as it is time-barred) and
instead asserts in Count I that Plaintiffs were the
“prevailing party” at the administrative level
and are now entitled to attorney fees. Richardson II
names not only the District as a Defendant, but also Jacob
Sherwood, who is the District's Superintendent and the
CEO of the District's Board of Education, Amanda Green,
who is Principal of Omaha Elementary School, where Student
attended, and Dawn Dillon, who was Student's fifth and
sixth grade science teacher. In addition, the Complaint now
before the Court in Richardson II provides more
details about Student and his educational experiences than
Richardson I, as well as eight new causes of action.
particular, Count II of the Richardson II Complaint
alleges that the District discriminated against Student in
violation of the Rehabilitation Act, 29 U.S.C. § 701,
et seq. Plaintiffs believe the District had
knowledge that other children were bullying Student because
of his disabilities, but the District took no steps to
protect him. Plaintiffs therefore accuse the District of
being deliberately indifferent to the bullying.
III is similar to Count II in that it alleges that the
District discriminated against Student in violation of the
Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12131-12165, in that Student did not
receive the same services, programs, and activities that
children without disabilities received, due to the fact that
Student was subjected to a hostile and bullying environment
at school, and the District failed to stop it.
IV is a 42 U.S.C. § 1983 claim based on
“state-created danger, ” and is asserted against
the District and Defendants Sherwood, Green, and Dillon, in
their individual and official capacities. The
“state-created danger” described here is the
is another Section 1983 claim for “supervisory
liability for participation in and encouragement of
unconstitutional misconduct by subordinates”-another
Due Process claim. See Doc. 1 at 21. This claim is
asserted against Sherwood, who has supervisory authority over
all District employees, and against Green, who has
supervisory authority over Dillon. Plaintiffs' legal
theory in Count V is that Sherwood and Green knew, or should
have known, that their subordinates were
“unconstitutionally placing L in a place of harm where
he would be subjected to ongoing, and targeted bullying and
the resulting foreseeable deprivations of L's
Constitutional rights to a public education, to bodily
integrity, to be secure and to be left alone free from
bullying and harassment, and to substantive due process under
the Fourteenth Amendment to the Constitution of the United
States.” Id. at 22. Count V also cites the
District's failure to investigate an incident that took
place at school on October 6, 2016, when Student had a major
seizure in Dillon's science class and never came back to
school after that. Plaintiffs complain that the District
failed to enforce its no-bullying policies, was deliberately
indifferent to bullying, refused to implement effective
bullying-prevention strategies, and tacitly authorized
bullying in the schools through inaction.
VI is another Section 1983 claim, lodged only against the
District, for denial of Due Process due to the District's
alleged failure to train and supervise its teachers to
prevent and stop bullying.
VII is similar to Count VI, in that Count VII is also a
Section 1983 claim lodged against the District for having a
policy, custom, or practice of failing to respond to or
prevent bullying in its schools. The Count claims there is a
persistent pattern of inappropriate responses to bullying by
the District, but offers no specific examples of such
bullying other than Student's.
VIII is for punitive damages against all Defendants, as
Plaintiffs maintain that all Defendants committed willful,
wanton, and malicious acts against Student; and Count IX is
the state law tort of intentional infliction of emotional
distress, again asserted against all Defendants.
jointly filed a Motion for Partial Dismissal (Doc. 5),
seeking to dismiss all Counts but II and III. In addition, or
perhaps in the alternative, Defendants argue that the
individual Defendants are entitled to qualified immunity. The
Motion is now ripe for consideration.
survive a motion to dismiss, a pleading must provide “a
short and plain statement of the claim that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The purpose
of this requirement is to “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 Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). The Court must accept as true all factual
allegations set forth in the Complaint by the plaintiff,
drawing all reasonable inferences in the plaintiff's
favor. See Ashley Cnty., Ark. v. Pfizer, Inc., 552
F.3d 659, 665 (8th Cir. 2009).
the complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. “A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.' Nor does a
complaint suffice if it tenders ‘naked assertions'
devoid of ‘further factual enhancement.'”
Id. In other words, ...