Dunlap v. Monroe Cnty. Bd. of Educ.

ROBERT DUNLAP, et al., Plaintiffs, v. MONROE COUNTY BOARD OF EDUCATION, Defendant.

CIVIL ACTION NO. 1:16-11535

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD

October 18, 2017

MEMORANDUM OPINION AND ORDER

Pending before the court is defendant Monroe County Board of Education's ("Monroe County BOE" or "BOE") motion to dismiss. (ECF No. 11). For reasons appearing to the court, that motion is GRANTED in part and DENIED in part.

I. Background

According to the complaint, the allegations of which are taken as true for purposes of this motion, during the 2015-2016 school year, K.S. was a kindergarten student at Peterstown Elementary School in Monroe County, West Virginia. See Complaint ¶ 7. During this timeframe, K.S. rode a school bus that was operated by defendant Monroe County Board of Education ("Monroe County BOE" or "BOE"). See id. at ¶ 8. Richard Riffe, an employee of Monroe County BOE, was one of the drivers of K.S.'s bus. See id. Students of all ages, from kindergarten through high school, rode K.S.'s bus. See id. at ¶ 9. One student riding on the bus with K.S. was B.B., a minor whose date of birth is December 8, 2000. See id. at ¶ 10.

Plaintiff Lynda Dunlap is K.S.'s biological grandmother. See id. at ¶ 2. The parental rights of K.S.'s biological mother have been terminated and Robert and Lynda Dunlap were appointed the guardians of K.S. See id. at ¶ 3. K.S. has resided with the Dunlaps since he was a few months old. See id. On or about January 12, 2016, Robert Dunlap met K.S. at the bus stop near their home as he usually did at the end of the school day. See id. at ¶ 14. After getting off the bus, K.S. asked Mr. Dunlap to help him zip up and button his pants. See id. Finding it "odd" that K.S.'s pants were unzipped and unbuttoned, Mr. Dunlap questioned K.S. about why his pants were unzipped and K.S. informed "Mr. Dunlap that he and B.B. had been playing a new `doctor' game." Id.

The next day, January 13, 2015, the Dunlaps reported the incident to Lisa Mustain, the principal at James Monroe High School. See id. at 15. As a result of a meeting between the Dunlaps, Mustain, and Monroe County Deputy Sheriff M.J. Heller, an appointment was scheduled for K.S. to be interviewed by a child abuse expert at the Child and Youth Advocacy Center ("CYAC"). See id. at 16. During a forensic interview at the CYAC on January 14, 2016, "K.S. disclosed that B.B. had sexually assaulted him on many occasions by performing oral sex on him andby fondling or groping him. These sexual assaults occurred on the bus." Id. at 17. Surveillance videos from the bus corroborated K.S.'s account of the abuse. See id. at 20-21.

On November 30, 2016, the Dunlaps filed the instant complaint on their own behalf and as the guardians and next friends of K.S. Named as a defendant is Monroe County BOE. Count I is a claim for violation of Title IX and Count II is a claim for vicarious liability. Counts III-V are claims for negligent training, negligent supervision, and negligent retention.

The BOE has moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Specifically, the BOE argues that the Title IX claim on K.S.'s behalf fails because it fails to plead facts sufficient to establish that: 1) K.S. was subjected to harassment based upon his sex; 2) the BOE was deliberately indifferent in its response to the sexual assault of K.S.; and 3) the BOE had actual knowledge of the sexual assault of K.S. by B.B. As to the Title IX claim brought by the Dunlaps on their own behalf, the BOE asserts that it must be dismissed because the Dunlaps lack standing to bring it. Finally, defendant argues that the remaining claims brought by the Dunlaps on their own behalf must be dismissed for failure to state a claim upon which relief can be granted.

II. Standard of Review

"[A] motion to dismiss for failure to state a claim for relief should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim." Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir. 1989) (citation omitted) (quoting Conley v. Gibson, 355 U.S. 41, 48 (1957), and Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir. 1969)). "In considering a motion to dismiss, the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Ibarra v. United States, 120 F.3d 474, 474 (4th Cir. 1997).

In evaluating the sufficiency of a pleading, the cases of Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), provide guidance. When reviewing a motion to dismiss, under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief may be granted, a court must determine whether the factual allegations contained in the complaint "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests," and, when accepted as true, "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (quoting Conley v.Gibson, 355 U.S. 41, 47 (1957); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 127 S. Ct. at 1969. As the Fourth Circuit has explained, "to withstand a motion to dismiss, a complaint must allege 'enough facts to state a claim to relief that is plausible on its face.'" Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013) (quoting Twombly, 550 U.S. at 570).

According to Iqbal and the interpretation given it by our appeals court,

[L]egal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pled facts for Rule 12(b)(6) purposes. SeeIqbal, 129 S.Ct. at 1949. We also decline to consider "unwarranted inferences, unreasonable conclusions, or arguments." Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n. 26 (4th Cir. 2009); see alsoIqbal, 129 S. Ct. at 1951-52.

Ultimately, a complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Facial plausibility is established once the factual content of a complaint "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In other words, the complaint's factual allegations must produce an inference of liability strongenough to nudge the plaintiff's claims "'across the line from conceivable to plausible.'" Id. at 1952 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

Satisfying this "context-specific" test does not require "detailed factual allegations." Id. at 1949-50 (quotations omitted). The complaint must, however, plead sufficient facts to allow a court, drawing on "judicial experience and common sense," to infer "more than the mere possibility of misconduct." Id. at 1950. Without such "heft," id. at 1947, the plaintiff's claims cannot establish a valid entitlement to relief, as facts that are "merely consistent with a defendant's liability," id. at 1949, fail to nudge claims "across the line from conceivable to plausible." Id. at 1951.

Nemet Chevrolet, LTD v. Consumeraffairs.com, Inc., 591 F.3d 250, 255-56 (4th Cir. 2009).

III. Analysis

A. Sufficiency of Title IX allegations

Under Title IX, "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. . . ." 20 U.S.C. § 1681(a). Monroe County BOE argues that the Title IX claim is subject to dismissal because it "fail(s) to allege that K.S. was subjected to harassment based upon his sex. . . ." ECF No. 12 at p.5. The BOE goes on to state "[t]he sexual harassment that is at issue in the instant matter is sexual harassment that occurred between K.S., a male,and B.B., a male, while allegedly being supervised by a male bus driver, Mr. Riffe." Id. The BOE's argument is without merit.

First, the complaint clearly alleges that K.S. was subjected to harassment and abuse based on sex and states sufficient facts in support of that allegation including, but not limited to, the following:

On January 14, 2016, K.S. disclosed that B.B. had sexually assaulted him on many occasions by performing oral sex on him and by fondling or groping him. These sexual assaults occurred on the Bus.

* * *

K.S. was subjected to repeated sexual harassment and sexual abuse on the Bus that was perpetrated by a fellow student, B.B. Such sexual harassment and abuse was severe, pervasive, and objectively offensive for many reasons, including but not limited to the following:

a. it included repeated acts of unwanted sexual contact and sexual intercourse, as those terms are defined by West Virginia law.

b. it was perpetrated by a fifteen-year-old boy on a 5-6 year old boy who was half the size of the perpetrator.

c. it occurred on the Bus, which was being supervised by Mr. Riffe and others at various times.

Complaint at ¶¶ 17 and 55. Accordingly, the sexual abuse/harassment allegations are sufficiently pled.

To the extent that defendant appears to argue that plaintiffs cannot maintain a Title IX sexual harassment/abuse claim because the victim and abuser/harasser are of the same sex,such an argument is without merit. "Where, as here, the harasser is the same sex as the victim, demonstrating that the harassment was based on sexual desire suffices to show that the harassment was based on the victim's sex." Doe v....