B.H. v. Clark County School District

• Court: District Court, D. Nevada
• Decided: December 18, 2023
• Docket: 2:23-cv-00564
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 B.H., a minor by and through hr Parent, Case No. 2:23-CV-564 JCM (DJA) Sirbrina Bell, 8 ORDER Plaintiff(s), 9 v. 10 CLARK COUNTY SCHOOL DISTRICT, 11 et al.,

12 Defendant(s).

13 14 Presently before the court is defendants Ryan Lewis (“Lewis”) and Kathryn Fitzgerald 15 (“Fitzgerald”)’s motion for partial dismissal of plaintiffs B.H. and Sirbrina Bell (collectively 16 “plaintiffs”)’s complaint. (ECF No. 10). Plaintiffs filed a response (ECF No. 15), to which 17 defendants replied. (ECF No. 21). 18 Defendants Clark County School District (“CCSD”) and Scarlett Perryman (“Perryman”) 19 20 joined in defendants Lewis and Fitzgerald’s motion for partial dismissal (ECF No. 12) and 21 subsequent reply. (ECF No. 22). 22 I. Background 23 This action arises out of the alleged mistreatment of plaintiff B.H. in her special education 24 class. At the time of the incident, B.H. was a five-year-old girl diagnosed with autism spectrum 25 26 disorder who attended an elementary school within the Clark County School District. (ECF No. 1 27 at 2, 4). 28 1 On August 10, 2022, a specialized programs teacher’s assistant witnessed Fitzgerald, 2 B.H.’s instructor, grab B.H.’s wrist and force her into a bathroom door, where Fitzgerald 3 proceeded to turn off the bathroom lights and close the bathroom door. (Id. at 5). Fitzgerald 4 admitted to the CCSD police department that she locked B.H. in the bathroom and left her there 5 6 because she would not stop singing a nursery rhyme. (Id.). 7 The complaint further alleges that Fitzgerald regularly left her students, including B.H., 8 alone in the classroom without supervision for extended periods of time. (Id.). The teacher’s 9 assistant also witnessed Fitzgerald use “corporal punishment” on her students. (Id. at 6). 10 Specifically, Fitzgerald grabbed B.H. by the hand and squeezed in between her index finger and 11 12 thumb to obtain the child’s compliance. (Id.). The complaint provides that Fitzgerald went so far 13 as to instruct other teachers and their respective aides how to employ this technique. (Id. at 7). 14 A CCSD employee reported that Fitzgerald manipulated her classroom door so that it only 15 opened if the handle was pulled in an upward direction. (Id. at 6). Fitzgerald allegedly 16 manipulated the door because most of the disabled students in her class opened it by pulling down 17 18 on the handle, and Fitzgerald understood that manipulating the handle would prevent students with 19 disabilities from opening the door, thus trapping them inside the classroom. (Id.). Lewis, the 20 school’s principal, learned of this specific incident, but he failed to discipline any CCSD employee. 21 (Id. at 2, 6). 22 Perryman, the Region 1 associate superintendent of CCSD, became aware of Fitzgerald’s 23 24 actions after communicating with a special education instructional facilitator and a CCSD 25 teacher’s aide. (Id. at 2-3, 7-8). The complaint also alleges that once Perryman began to learn that 26 the CCSD police department began investigating Fitzgerald’s misconduct, Perryman instructed the 27 28 1 special educational instructional facilitator to complete a CCF-624 form for every incident 2 involving Fitzgerald and to back-date such forms. (Id. at 8-9).1 3 The CCSD police department investigator concluded that Fitzgerald violated CCSD policy 4 and opined that the CCF-624 forms created after the start of the investigation appeared to be “an 5 6 attempted cover-up of failings throughout [the school district].” (Id. at 9). 7 B.H. and her mother, Sirbrina Bell, filed their complaint on April 14, 2023, against CCSD, 8 Perryman, Lewis, and Fitzgerald, asserting the following causes of action: (1) assault; (2) battery; 9 (3) negligence; (4) negligent hiring, training, and supervision; (5) intentional infliction of 10 emotional distress; (6) violation of constitutional right to substantive due process; (7) violation of 11 12 constitutional right to equal protection; (8) violation of constitutional protections for disabled 13 persons; (9) abuse of a vulnerable person/enhanced damages; and (10) violation of the 14 Rehabilitation Act of 1973. (Id. at 10-24). 15 Defendants filed the instant motion seeking partial dismissal of plaintiffs’ complaint, 16 moving the court to take the following actions: (1) dismiss the official capacity claims against 17 18 Lewis, Fitzgerald, and Perryman; (2) dismiss all claims against Lewis and Perryman except the 19 sixth cause of action for violation of a constitutional right to substantive due process; (3) dismiss 20 plaintiffs’ fifth cause of action for intentional infliction of emotional distress; (4) dismiss plaintiffs’ 21 seventh cause of action for violation of constitutional right to equal protection; and (5) deny any 22 leave to amend. 23 24 The court finds that plaintiffs pleaded their causes of action for intentional infliction of 25 emotional distress sufficiently to survive a motion to dismiss, but not their cause of action for 26 27 28 1 Although not defined in plaintiffs’ complaint, the surrounding language indicates that a CCF-624 form is a document that reports an incident involving misconduct. 1 violation of constitutional right to equal protection. Moreover, the official capacity claims against 2 Lewis, Fitzgerald, and Perryman are duplicative of the claims against CCSD, thus warranting their 3 dismissal. 4 Finally, although plaintiffs’ response raises valid points as to why certain claims against 5 6 Lewis and Perryman should remain, their complaint fails to specifically name these defendants in 7 relation to these claims, warranting dismissal of all causes action against them except for violation 8 of a constitutional right to substantive due process. 9 II. Legal Standard 10 A court may dismiss a complaint for “failure to state a claim upon which relief can be 11 12 granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint must provide “[a] short and 13 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); 14 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed 15 factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the 16 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). 17 18 “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 19 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual 20 matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citation 21 omitted). 22 In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply 23 24 when considering motions to dismiss. First, the court must accept as true all well-pleaded factual 25 allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. 26 Id. at 678–79. Mere recitals of the elements of a cause of action, supported only by conclusory 27 statements, do not suffice. Id. at 678. 28 1 Second, the court must consider whether the factual allegations in the complaint allege a 2 plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s complaint 3 alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the 4 alleged misconduct. Id. at 678. 5 6 When the complaint does not permit the court to infer more than the mere possibility of 7 misconduct, the complaint has “alleged—but not shown—that the pleader is entitled to relief.” Id. 8 (internal quotation marks omitted). Additionally, when the allegations in a complaint have not 9 crossed the line from conceivable to plausible, the plaintiff's claim must be dismissed. Twombly, 10 550 U.S. at 570. 11 12 The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 13 1216 (9th Cir. 2011). The Starr court stated, in relevant part: 14 First, to be entitled to the presumption of truth, allegations in a complaint or 15 counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing 16 party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the 17 opposing party to be subjected to the expense of discovery and continued litigation. 18 Id. 19 If the court grants a Rule 12(b)(6) motion to dismiss, it should grant leave to amend unless 20 21 the deficiencies cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 22 655, 658 (9th Cir. 1992). Under Rule 15(a), the court should “freely” give leave to amend “when 23 justice so requires,” and absent “undue delay, bad faith, or dilatory motive on the part of the 24 movant, repeated failure to cure deficiencies by amendments . . . undue prejudice to the opposing 25 party . . . futility of the amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). The court 26 27 should grant leave to amend “even if no request to amend the pleading was made.” Lopez v. Smith, 28 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks omitted). 1 III. Dicussion 2 A. Official capacity claims 3 Defendants argue that official capacity claims against Lewis, Fitzgerald, and Perryman 4 should be dismissed, as they are duplicative of official capacity claims against CCSD. 5 6 “A suit against a government official in his official capacity is equivalent to a suit against 7 the government itself.” Larez v. Los Angeles, 946 F.2d 630, 645 (9th Cir. 2001). Where both the 8 public entity and a municipal officer are named in a lawsuit, a court may dismiss the individual 9 named in his official capacity as a redundant defendant. See Ctr. for Bio-Ethical Reform, Inc. v. 10 Los Angeles Sheriff’s Dep’t, 533 F.3d 780, 799 (9th Cir. 1986). 11 12 Plaintiffs assert causes of action against defendants Lewis, Fitzgerald, and Perryman in 13 both their individual and official capacity. (ECF No. 1). Defendants have represented that they 14 do not dispute that a claim against them in an individual capacity can be maintained under federal 15 law. (ECF No. 21 at 3). 16 The official capacity claims against Lewis, Fitzgerald, and Perryman are duplicative of the 17 18 official capacity claims against CCSD. Similar to cases involving police officers and claims 19 asserted under 42 U.S.C. § 1983, official capacity claims against individual school administrators 20 are duplicative of claims against the school district itself. See Everett H. v. Dry Creek Joint 21 Elementary Sch. Dist., 5 F. Supp. 1164, 1180 (C.D. Cal. 2014) (“[a]lthough Plaintiffs’ First Claim 22 herein is against the individuals in their official rather than their individual capacities, that 23 24 distinction does not help Plaintiffs since suing the administrators in their official capacity is 25 nothing more than another way of stating a claim against the District itself and is therefore 26 duplicative”) (citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)). 27 28 1 The court dismisses the official capacity claims against Defendants Lewis, Fitzgerald, and 2 Perryman, as they are duplicative of claims against CCSD. Lewis, Fitzgerald, and Perryman 3 remain defendants regarding claims asserted against them in their individual capacity, except for 4 those dismissed for other reasons, as elucidated, infra. 5 6 B. Limitation of claims asserted against Lewis and Perryman 7 Defendants aver that all causes of action against Lewis and Perryman, except for violation 8 of a constitutional right to substantive due process, should be dismissed because they require a 9 great degree of inference as to their conduct and relate to the conduct of Fitzgerald only. 10 The crux of the complaint hinges on the actions of and alleged abuse committed by 11 12 Fitzgerald. In their response, plaintiffs argue that although it does not appear “at this early stage” 13 that Lewis and Perryman were present when Fitzgerald assaulted, battered, and abused B.H., their 14 complaint indeed alleges that Lewis and Perryman were aware of this conduct and ignored it. (ECF 15 No. 15 at 9). The rest of plaintiffs’ claims allege a cover-up related to the abuse and neglect, as 16 well a failure to supervise, by Lewis and Perryman. (Id. at 9-10). 17 18 The court is tasked with a difficult decision regarding whether to limit the claims asserted 19 against Lewis and Perryman. Although plaintiffs’ response to defendants’ motion alleges facts 20 that would likely satisfy the pleading standard and survive a motion to dismiss, their complaint, 21 which is the operative document in this action, is vague. Specifically, there is no notation next to 22 each cause of action showing which claim corresponds to which defendants. 23 24 The role of the court is to be the finder of fact, not to deduce the minutiae of an unclear 25 pleading to see which defendants are implicated in certain causes of action. Although plaintiffs 26 now task the court to conduct this exercise, it refuses to engage in such a practice. See Couturier 27 v. Am. Invsco Corp., No. 2:12-cv-01104-APG-NJK, 2013 WL 4499008, at *3 (D. Nev. Aug. 20, 28 1 2013) (“[a] judge is the impartial umpire of legal battles, not a party’s attorney. He is neither 2 required to hunt down arguments the parties keep camouflaged, nor required to address 3 perfunctory and undeveloped arguments.”). 4 Given the lack of clarity in plaintiffs’ complaint, the court dismisses all causes of action 5 6 against Lewis and Perryman, except for violation of a constitutional right to substantive due 7 process, without prejudice. 8 C. Intentional infliction of emotional distress 9 Defendants next move for dismissal of plaintiffs’ claim for intentional infliction of 10 emotional distress. 11 12 To establish a cause of action for intentional infliction of emotional distress under Nevada 13 law, a plaintiff must establish: (1) that the defendant's conduct was extreme and outrageous; (2) 14 that the defendant either intended or recklessly disregarded the causing of emotional distress; (3) 15 that the plaintiff actually suffered severe or extreme emotional distress; and (4) that the defendant's 16 conduct actually or proximately caused the distress. Olivero v. Lowe, 995 P.2d 1023, 1025 (Nev. 17 18 2000). “Extreme and outrageous conduct is that which is outside all possible bounds of decency 19 and is regarded as utterly intolerable in a civilized community.” Maduike v. Agency Rent-A-Car, 20 953 P.2d 24, 26 (Nev. 1998) (quotation omitted). 21 Defendants posit that this claim fails as a matter of law because allegations of anxiety and 22 depression without an indication of treatment are insufficient. (ECF No. 10 at 5); see Miller v. 23 24 Jones, 970 P.2d 571, 577 (ruling that the plaintiff’s testimony that he was depressed for some time 25 but did not seek any medical or psychiatric assistance was insufficient to support an intentional 26 infliction of emotional distress claim). 27 28 1 Plaintiffs aptly point out that Miller was decided at the summary judgment stage, when 2 discovery concluded. (ECF No. 15 at 7). Unlike in Miller, discovery is still ongoing in this case, 3 and additional pleadings may render new facts. Furthermore, plaintiffs’ complaint alleges that 4 B.H. “was required to incur expenses for medical and psychological/psychiatric care in an amount 5 6 unknown at this time, and will be required to incur expenses in the future for medical and 7 psychological/psychiatric care and treatment.” (ECF No. 1 at 16). The court thus finds it 8 premature to dismiss plaintiffs’ claim for intentional infliction of emotional distress. 9 Plaintiffs’ claim for intentional infliction of emotional distress is pleaded sufficiently, and 10 remains in the complaint as asserted against defendants CCSD and Fitzgerald. 11 12 D. Constitutional right to equal protection 13 Finally, defendants move for dismissal of plaintiffs’ claim for violation of constitutional 14 right to equal protection.2 The court adopts the test for selective enforcement, as plaintiffs allege 15 that CCSD employees enforced certain actions against B.H. that were not inflicted upon other 16 students in CCSD who did not suffer from disabilities. (ECF No. 1 at 19). 17 18 To successfully challenge “selective enforcement” under the Fourteenth Amendment equal 19 protection clause, plaintiffs must demonstrate (1) that enforcement had a discriminatory effect and 20 (2) the [defendants] were motivated by a discriminatory purpose. Rosenbaum v. City & Cnty. of 21 San Francisco, 484 F.3d 1142, 1152 (9th Cir. 2007) (citation omitted). “In addition to the showing 22 of discriminatory purpose and effect, plaintiffs seeking to enjoin alleged selective enforcement 23 24 must demonstrate the [defendant’s] misconduct is part of a ‘policy, plan, or a pervasive pattern.’” 25 Id. at 1153 (citing Thomas v. Cnty. of Los Angeles, 978 F.2d 504, 509 (9th Cir. 1993)). 26

27 2 Plaintiffs allege violations of the equal protection clause of the Fourteenth Amendment 28 to the United States Constitution and Article 1, § 9 of the Constitution of the State of Nevada. (ECF No. 1 at 19). 1 Discriminatory effect is shown when a plaintiff demonstrates that other similarly situated 2 individuals not in the plaintiff’s protected class were not subject to the same conduct. United 3 States v. Armstrong, 517 U.S. 456, 465 (1996). “To show discriminatory purpose, a plaintiff must 4 establish that ‘the decision-maker . . . selected or reaffirmed a particular course of action at least 5 6 in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.’” 7 Rosenbaum, 484 F.3d at 1153 (quoting Wayte v. United States, 470 U.S. 598, 610 (1985)). 8 Plaintiffs’ complaint fails to allege that similarly situated individuals were not subject to 9 the same discrimination alleged by B.H. The complaint consists of blanket and conclusory 10 assertions that non-disabled student received preferential treatment. (ECF No. 1 at 19-20). 11 12 Historically, “threadbare allegations” of “different treatment to similarly situated 13 individuals” would defeat a motion to dismiss. Kansas Penn Gaming, LLC v. Collins, 656 F.3d 14 1210, 12-18-19 (10th Cir. 2011). In the wake of Twombly and Iqbal, the legal standard must be 15 applied with care. Id. at 1219. Therefore, “it is imperative for the class-of-one plaintiff to provide 16 a specific and detailed account of the nature of the preferred treatment of the favored class.” 17 18 Jennings v. City of Stillwater, 383 F.3d 1199, 1214. 19 There simply is not enough detail in plaintiffs’ complaint to satisfy this burden, as there 20 are no specific allegations of different treatment B.H. received compared to similarly situated 21 individuals not in her protected class. 22 Plaintiffs’ claim for violation of constitutional right to equal protection as to defendants 23 24 CCSD and Fitzgerald is dismissed without prejudice. 25 E. Leave to amend 26 Plaintiffs request that the court permit them leave to amend their complaint if the court 27 were to dismiss any causes of action. (ECF No. 15 at 10). 28 1 The court should freely give leave to amend when justice so requires. See Fed. R. Civ. P. 2 15(a)(2). “In the absence of any apparent or declared reason—such as undue delay, bad faith or 3 dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments 4 previously allowed, undue prejudice to the opposing party by virtue of allowance of the 5 6 amendment, futility of amendment, etc.—the leave should, as the rules require, be ‘freely given.’” 7 Foman v. Davis, 371 U.S. 178, 182 (1962). Leave to amend should be granted if it appears at all 8 possible that a plaintiff can correct any defect. See generally Lopez v. Smith, 203 F.3d 1122 (9th 9 Cir. 2000). 10 The court grants leave for plaintiffs to amend their complaint. Plaintiffs have yet to file an 11 12 amended complaint in the action. Additionally, allowing plaintiffs to amend their complaint would 13 not cause undue prejudice to defendants. Finally, there is a probability for plaintiffs to cure the 14 defects in their complaint if given leave to amend. 15 IV. Conclusion 16 Accordingly, 17 18 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendants Ryan Lewis, 19 Kathryn Fitzgerald, Clark County School District, and Scarlett Perryman’s motion for partial 20 dismissal of plaintiffs B.H. and Sirbrina Bell’s complaint (ECF No. 10), be, and the same hereby 21 is, GRANTED IN PART and DENIED IN PART. 22 The official capacity claims against defendants Ryan Lewis, Kathryn Fitzgerald, and 23 24 Scarlett Perryman are dismissed without prejudice. 25 All causes of action against defendants Ryan Lewis and Scarlett Perryman, except for 26 violation of a constitutional right to substantive due process, are dismissed without prejudice. 27 28 1 Plaintiffs’ claim for violation of constitutional right to equal protection as to defendants 2 Clark County School District and Kathryn Fitzgerald is dismissed without prejudice. 3 Plaintiffs’ claim for intentional infliction of emotional distress remains in the complaint as 4 asserted against defendants Clark County School District and Kathryn Fitzgerald. 5 6 Plaintiffs shall file any amended complaint within twenty-one (21) days of receiving this 7 order. 8 DATED December 18, 2023. 9 __________________________________________ 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28