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Richardson v. Omaha School District

United States District Court, W.D. Arkansas, Harrison Division

March 22, 2018

CHAD AND TONYA RICHARDSON, Individually and As Parents and Next Friends of L. PLAINTIFFS



         Currently 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.

         I. BACKGROUND

         This 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.

         On July 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.”).

         Plaintiffs 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.

         Despite 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.

         Richardson 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.

         Nonetheless, 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.

         In 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.

         Count 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.

         Count 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 bullying.

         Count V 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.

         Count 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.

         Count 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.

         Count 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.

         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.


         To 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).

         However, 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, ...

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