L.P., by and through her guardians, J.P. anc K.P., and J.P. and K.P. individually, Plaintiffs,
v.
WAKE COUNTY BOARD OF EDUCATION, in its official capacity, ET AL., Defendants.
United States District Court, E.D. North Carolina, Western Division
December 14, 2021
ORDER
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
This cause comes before the Court on the parties' motions for leave to file excess pages, defendants' motions to dismiss, and plaintiffs' motion to strike reply to response to motion. For the reasons that follow, the motions to file excess pages [DE 30, 36] are GRANTED. Plaintiffs' motion to strike [DE 44] is GRANTED IN PART and DENIED IN PART. Defendants' motions to dismiss [DE 31, 42] are DENIED IN PART and the remainder is STAYED and held in ABEYANCE.
BACKGROUND
On September 11, 2020, plaintiffs K.P and J.P. filed suit on behalf of their daughter, L.P., against Wake County Board of Education, various administrators, and teachers at Scotts Ridge Elementary School. Plaintiffs allege discrimination in violation of Section 504 of the Rehabilitation Act ("Section 504"), 29 U.S.C. § 794, et seq. (Count I) and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., (Count II); violation of L.P.'s Fourteenth and Fourth Amendment rights (Counts III-VII[1]), pursuant to 42 U.S.C. § 1983; and state law
claims of negligence, negligent infliction of emotional distress, and false imprisonment (Counts VIII-X). Both parties filed motions for leave to file excess pages. All defendants, except defendants Liggett and Lopes, filed a motion to dismiss [DE 31] in April 2021. Liggett and Lopes filed their own motion to dismiss [DE 42] in June 2021, in which they renewed and incorporated the arguments set forth in the previous motion to dismiss. Plaintiffs filed a motion to strike improper arguments from defendants' filings and, in the alternative, requested permission to address the arguments in a sur-reply.
L.P. was a student at Scotts Ridge public elementary school from 2017-2020 for her third, fourth, and fifth grade years. L.P. has learning disabilities, anxiety, and communication disabilities. Plaintiffs allege in their first amended complaint that between 2017-2020, L.P. was physically restrained by school administrators and secluded in a closet, whose door was held shut and whose light only functioned sometimes. Plaintiffs allege that the seclusion and restraint started when L.P. was a seven-year-old third grader. Plaintiffs allege that L.P. was discriminatorily subjected to punishment in the form of restraint and seclusion for actions, such as flipping markers, asking questions, and tipping her chair, for which her non-disabled peers were not punished. Plaintiffs allege that the restraint and seclusion caused extreme stress and anxiety in L.P. Her mental health deteriorated, she became suicidal, and she became fearful of school.
Plaintiffs allege in one instance, L.P. was so distressed at being shut in the closet that she ripped her hair out, ripped some of her scalp off, pinched her toes in the door, and peeled the plastic wall coverings off the walls. Throughout 2017-2018, L.P.'s parents asked the school to use positive interventions with L.P. and expressed concern over her increasing fear. Plaintiffs allege that, at that time, they did not know that L.P. was being restrained and secluded. Plaintiffs allege that school administrators deliberately hid the fact that they were restraining and secluding L.P. from her parents by failing to notify them, telling them that L.P. was having a rough day instead of
explaining that L.P. was upset from being secluded, or telling them that L.P. was simply in a timeout. On December 3, 2019, L.P. had a panic attack when she saw another disabled student being taken into the seclusion room. As a result of the panic attack, L.P. had to leave school and was unable to attend from December 3-5.
Plaintiffs allege that during her time at Scotts Ridge, L.P. was secluded for significant amounts of time. The teachers did not always record when they used restraint and seclusion, although they were required to do so. From 2019-2020, twelve instances of seclusion were documented, which resulted in 15.67 hours of lost instructional time for L.P.[2] K.P. and J.P. did not find out what was happening to their daughter until February 21, 2019, when K.P. was sent a video from a concerned parent showing L.P. being dragged from the cafeteria for wanting to eat lunch with her non-disabled peers. Plaintiffs confronted the school about how this treatment was inappropriate and caused L.P. serious harm. Plaintiffs allege that the school then falsely stated that it would limit the use of restraint and seclusion on L.P. Plaintiffs allege that L.P. continued to be restrained and secluded.
On November 21, 2019, K.P. emailed state representative Sydney Batch about defendants' use of seclusion and restraint. Rep. Batch's office forward the message to Lindsay Mahaffey, a member of the Wake County Public School System ("WCPSS") Board of Education ("Board"). On November 22, 2019, Mahaffey forwarded the message to WCPSS Superintendent Moore, WCPSS Assistant Superintendent for Special Education Services Hamilton, and other WCPSS administrators asking them to investigate the use of restraint and seclusion at the school. Hamilton forwarded the message to WCPSS Director for Social and Behavioral Programing Lopes and WCPSS Senior Administrator for Special Education Services Liggett, directing them to contact
Scotts Ridge Principal Leach so that administrators could dig deeper into the allegations. Plaintiffs allege no further action or investigation took place.
DISCUSSION
I. Motion for Leave to File Excess Pages
Both parties filed motions, pursuant to Local Rule 7.2, requesting leave to exceed the page and word limitations in their filings. This case involves a lengthy first amended complaint that alleges causes of actions under the Constitution, federal statutes, and state law. It is 78 pages long and has 261 paragraphs. Plaintiffs and defendants filed extensive filings to fully respond in order to these allegations. For good cause shown, the Court GRANTS the parties' motions for leave to file excess pages [DE 30 & 36]. This Court will consider the full memoranda submitted by the parties.
II. Motion to Strike
Plaintiffs filed a motion to strike defendants' reply [DE 41] to plaintiffs' response and defendants' attachments [DE 41-1]. Plaintiffs argue that defendants assert new grounds for dismissal not included in defendants' motion to dismiss [DE 31], and that defendants improperly reference plaintiffs' original complaint. Plaintiffs also seek permission to file a sur-reply.
A court may strike from a pleading any immaterial matter pursuant to Federal Rule of Civil Procedure Rule 12(f). An amended complaint supersedes the original complaint, rendering the original complaint of no effect. Young v. City of Mount Ranter, 238 F.3d 567, 572 (4th Cir. 2001); see Fawzy v. Wauquiez Boats SNC, 873 F.3d 451, 455 (4th Cir. 2017). Defendants' references to an inoperative, superseded complaint are improper and immaterial. As such, they should be struck.
Courts may "strike arguments made for the first time in a reply brief." Penguin Restoration, Inc. v. Nationwide Mut. Ins., Co., No. 5T3-CV-63-BO, 2014 WL 715123, at *2 (E.D. N.C. Feb. 21, 2014); see Buser v. So. Food Serv., Inc., 73 F.Supp.2d 556, 568 n.12 (M.D. N.C. 1999).
Plaintiffs correctly assert that the defendants' argument that exceptions to exhaustion do not apply to plaintiffs' case is a new argument. Plaintiffs assert in the first amended complaint that exceptions to the administrative exhaustion requirement apply to their case. Defendants' motion to dismiss only asserts that the exhaustion requirement applies does not address whether, even if the exhaustion requirement applies, whether plaintiffs' case qualifies for an exception. The first time that defendants address whether exceptions to exhaustion apply is in defendants' reply [DE 41]. The Court finds this an improperly raised new argument. As such, it should be struck.
The Court finds that DE 41-1 is not new evidence. DE 41-1 contains documents that were referenced and explained in defendants' motion to dismiss [DE 31]. Thus, this filing is only a further elaboration of an argument previously raised. Sur-replies may be allowed when new submissions or arguments are included in a reply brief in such a way that impairs the non-movant's ability to respond. Seay v. Tenn. Valley Auth., 339 F.3d 454, 481 (6th Cir.2003); Norton v. Rosier, No. 7:14-CV-00260-FL, 2017 WL 4399194, at *4 (E.D. N.C. Sept. 29, 2017) ("Courts generally allow a party to file a sur-reply 'only when fairness dictates based on new arguments raised in the previous reply.'") (citation omitted). The Court does not find that fairness requires a sur-reply.
Plaintiffs' motion to strike [DE 44] is GRANTED as to references to the original complaint and as to new arguments relating to exceptions to exhaustion in DE 41. The Court will not consider those portions of defendants' reply. Plaintiffs' motion [DE 44] is DENIED as to striking DE 41-1 and as to permission to file a sur-reply.
III. Motions to Dismiss
Defendants filed motions to dismiss [DE 31, 42] alleging several jurisdictional claims, an affirmative defense, and argue that plaintiffs have failed to state claims upon which relief can be granted.
1. Service of process
On April 13, 2021, defendants moved to dismiss claims against Liggett and Lopes pursuant to Federal Rule of Civil Procedure Rule 12(b)(5) for insufficient service of process. Service was executed as to Lopes on April 29, 2021 [DE 37] and as to Liggett on May 13, 2021 [DE 40]. The Court finds that service as to Lopes and Liggett is proper. Lopes and Liggett concede as much in their...
