Kerns v. Indep. Sch. Dist. No. 31 of Ottawa Cnty.

984 F.Supp.2d 1144

Duane and Donna KERNS, individually and as the next of kin of and natural parents of Colton Kerns, a deceased minor, Plaintiffs,

v.INDEPENDENT SCHOOL DISTRICT NO. 31 OF OTTAWA COUNTY,¹Mark Alexander, individually and in his official capacity, Defendants.

Case No. 13–CV–290–TCK–PJC.

United States District Court, N.D. Oklahoma.

Oct. 31, 2013.

A. Laurie Koller, Guy Allen Thiessen, Patrick Eugene Carr, Carr & Carr, Tulsa, OK, for Plaintiffs.

Frederick Jay Hegenbart, Staci Lynette Roberds, Rosenstein Fist & Ringold, Tulsa, OK, for Defendants.

OPINION AND ORDER

TERENCE C. KERN, District Judge.

Before the Court is Defendants' partial motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) (Doc. 12).

I. Factual Allegations

This suit was brought in state court by Plaintiffs Duane and Donna Kerns (“Parents”), individually and as the next of kin and natural parents of their deceased son, Colton Kerns (“Colton”), and was subsequently removed. Parents allege that, on April 20, 2012, Colton, an eleventh grader at Fairland Public Schools, was on school grounds with many other students preparing for the senior prom. During this time, Colton was consuming alcohol on school grounds. The supervising teachers became aware that Colton was intoxicated, and one teacher contacted the Superintendent of Fairland Public Schools, Defendant Mark Alexander (“Alexander”). Around 12:30 p.m., Alexander came to the school and confronted Colton. After Colton affirmed to Alexander that he had been drinking, Alexander prohibited Colton from attending prom and suspended him for the remainder of the school year. Colton was “extremely upset and still intoxicated.” (Compl. ¶ 24.) Alexander then directed two other students to take Colton home in Colton's vehicle. Parents allege that Alexander did not call Parents to determine if they were available to pick up Colton, did not call law enforcement, did not inquire as to whether the students assigned to take Colton home had also been drinking, and did not notify Parents once the decision was made to send Colton home in his vehicle with other students.²

After leaving the school, the student driving Colton's vehicle made a stop and exited the vehicle. Colton got into the drivers' seat and refused to move. Colton drove the other students to their homes and then continued driving. While driving, he called and/or texted several people “expressing his anger and frustration and threaten[ing] to outrun the police.” ( Id. ¶ 32.) A short time later, Colton died in a one-vehicle car accident. According to the Complaint, the wreck was caused “in whole or in part” by Colton's “intoxicated and emotional state.” ( Id. ¶ 34.)

Parents sued the School District and Alexander in his official and individual capacities, asserting two claims: (1) violation of Colton's substantive due process right under the Fourteenth Amendment to be free of state-created danger, in violation of 42 U.S.C. § 1983 (“§ 1983 claim”); ³ and (2) negligence. Defendants moved to dismiss all § 1983 claims against the School District and Alexander based on the lack of any alleged violation of Colton's constitutional rights. Alternatively, Defendants moved to dismiss the § 1983 claim against the School District and the “official capacity” claim against Alexander based on the absence of allegations supporting municipal liability. Alternatively, Defendants moved to dismiss the § 1983 claim against Alexander in his individual capacity based on qualified immunity. Finally, Defendants moved to dismiss any claim for punitive damages against the School District or Alexander in his official capacity. Defendants did not move to dismiss the negligence claim.

II. Rule 12(b)(6) Standard

In considering a motion to dismiss under Rule 12(b)(6), a court must determine whether the plaintiff has stated a claim upon which relief may be granted. The inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’ ” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In order to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must “ ‘nudge [ ][his] claims across the line from conceivable to plausible.’ ” Id. at 1177 (quoting Twombly, 550 U.S. at 547, 127 S.Ct. 1955). Thus, “the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Id.

The Tenth Circuit has interpreted “plausibility,” the term used by the Supreme Court in Twombly, to “refer to the scope of the allegations in a complaint” rather than to mean “likely to be true.” Robbins v. Okla. ex rel. Okla. Dep't of Human Servs., 519 F.3d 1242, 1247 (10th Cir.2008). Thus, “if [allegations] are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.” Id. (internal quotations omitted). “The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Id. “This requirement of plausibility serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them.” Id. at 1248. In addition, the Tenth Circuit has stated that “the degree of specificity necessary to establish plausibility and fair notice, and therefore the need to include sufficient factual allegations, depends on context.” Id.

III. Constitutional Violation⁴

Generally, the Due Process Clause of the Fourteenth Amendment does not impose an obligation on the state to protect individuals from the actions of third parties. See Christiansen v. City of Tulsa, 332 F.3d 1270, 1279 (10th Cir.2003) (explaining that state actors are liable only for their own acts and not the actions of third parties). One exception to this rule, which is urged by Parents in this case, applies when state officials create or increase the danger that ultimately caused harm to the plaintiff. See id. at 1281 (labeling these types of claims as “danger-creation claims”). Danger-creation claims “ultimately rest on the specifics of a substantive due process claim—i.e. a claim predicated on reckless or intentional injury-causing state action which ‘shocks the conscience.’ ” Armijo v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1262 (10th Cir.1998). Liability is imposed based upon the state actors' “culpable knowledge and conduct in affirmatively placing an individual in a position of danger, effectively stripping a person of her ability to defend herself, or cutting off potential sources of private aid.” Id. at 1263. Thus, the “environment created by the state actors must be dangerous; they must know it is dangerous; and, to be liable, they must have used their authority to create an opportunitythat would not otherwise have existed for the third party's [acts] to occur.” Id.

The Tenth Circuit has articulated a six-part test governing danger-creation claims:

(1) the charged state entity and the charged individual actors created the danger or increased plaintiff's vulnerability to the danger in some way; (2) plaintiff was a member of a limited and specifically definable group; (3) defendants' conduct put plaintiff at substantial risk of serious, immediate, and proximate harm; (4) the risk was obvious or known; (5) defendants acted recklessly in conscious disregard of that risk; and (6) such conduct, when viewed in total, is conscience shocking.

Christiansen, 332 F.3d at 1281 (internal quotations omitted). In their motion to dismiss, Defendants argue that Parents' allegations, accepted as true, cannot satisfy the first or sixth elements of this test.

A. First Element—Created or Increased Vulnerability to the Danger

Defendants argue that Plaintiffs have failed to allege any affirmative actions by Alexander that satisfy this element. Specifically, Defendants contend that (1) the danger already existed because Colton was already intoxicated, and (2) “[b]y directing two students (one of which the Plaintiffs do not contend was drinking) to drive [Colton] home, [Alexander] put [Colton] in no more danger than that which he already faced when he drove home on his own.” (Mot. to Dismiss 9.)

Parents' allegations are sufficient to survive a motion to dismiss as to this element. At the time of the state action, Colton had created the danger flowing from intoxication. However, Colton had not left school grounds or attempted to leave in his vehicle. Instead, he remained on school grounds under adult supervision when school officials discovered he was intoxicated. At this juncture, Alexander intervened in the situation by suspending him from school, prohibiting him from attending prom, and directing two other students to drive him home in his vehicle. Alexander allegedly made affirmative decisions and took affirmative actions that impacted the situation in a manner that at least potentially increased the danger Colton faced, and this states a plausible claim of “danger creation” under Tenth Circuit law. See Armijo, 159 F.3d at 1264 (addressing summary judgment evidence and finding triable questions of fact as to § 1983 danger-creation claim after student committed suicide in his home) (finding that principal and counselor's actions potentially “increased the risk of harm” to student where they (1) suspended a special education student, (2) knew he was very angry, (3) knew he had access to firearms in his home, (4) knew he had made suicidal comments, (5) decided to drive him and leave him alone in house, and (6) failed to...