Meyers v. Cincinnati Bd. of Educ.

343 F.Supp.3d 714

Karen MEYERS, et al., Plaintiffs,

v.CINCINNATI BOARD OF EDUCATION, et al., Defendants.

Case No. 1:17-cv-521

United States District Court, S.D. Ohio, Western Division.

Signed September 24, 2018

Alphonse Adam Gerhardstein, Janaya Trotter Bratton, Jennifer Lynn Branch, Gerhardstein & Branch Co. LPA, Cincinnati, OH, Carla Leader, The Law Office of Carla Loon Leader, LLC, Michele Young, Christine Marie Hammond, Gregory S. Young Co., L.P.A., Gregory Scott Young, David J. Young Company, L.P.A., Cincinnati, OH, for Plaintiffs.

Aaron Mark Herzig, Philip D. Williamson, Taft, Stettinius, & Hollister LLP, Cincinnati, OH, Daniel Joseph Hoying, Cincinnati Public Schools, Cincinnati, OH, Ian R. Smith, Ralph Gary Winters, McCaslin, Imbus & McCaslin, Cincinnati, OH, for Defendants.

ORDER GRANTING PLAINTIFFS' MOTION TO AMEND THE COMPLAINT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

Timothy S. Black, United States District Judge

This civil action is before the Court upon the Plaintiffs' motion to amend the complaint (Doc. 21) and the parties' responsive memoranda (Docs. 24 and 25), and Cincinnati Public School Defendants'¹ motion to dismiss Plaintiffs' complaint (Doc. 13) and the parties' responsive memoranda (Docs. 19 and 20).

I. FACTS AS ALLEGED BY THE PLAINTIFF

For purposes of this motion to dismiss, the Court must: (1) view the complaint in the light most favorable to Plaintiffs; and (2) take all well-pleaded factual allegations as true. Tackett v. M&G Polymers , 561 F.3d 478, 488 (6th Cir. 2009).

Gabriel Taye was an eight-year-old, third-grade student at Carson during the 2016–2017 school year. After coming home from school on January 26, 2017, Taye committed suicide in his bedroom. (Doc. 21-1² at ¶¶ 90–94). Two days before his suicide, Tyus was knocked unconscious by a violent bully in a Carson bathroom.³ Taye lay on the bathroom floor, unconscious, for over seven minutes while other students taunted and kicked him. (Id. at ¶¶ 76–78). Eventually Defendant McKenzie responded to the incident in the bathroom. Taye was still lying on the floor unconscious and motionless when Defendant McKenzie arrived and simply stood over Taye. Other Carson staff including Defendant Jackson arrived later. Shortly after Defendant McLaughlin arrived, Taye regained consciousness. (Id. at ¶¶ 79–80). Nurse McLaughlin evaluated Taye, but did not call 911, even though the school's head injury nursing protocol required an emergency medical response whenever a student was unconscious/unresponsive for over one minute. (Id. at ¶ 102). An hour after the incident McLaughlin called Taye's mother, Cornelia Reynolds, and misrepresented to her that Taye had fainted. Reynolds asked McLaughlin if Taye needed to go to the hospital, but she was told that he needed no further medical treatment. Reynolds was not told that Taye had been knocked unconscious for over seven minutes. (Id. at ¶¶ 81–82). Reynolds asked Taye what happened at school, but all Taye could remember was that he fell and that his stomach hurt. Taye suffered from stomach pain, nausea, and vomiting that night and Reynolds took him to the hospital. The hospital diagnosed him with likely gastrointestinal issues, but did not evaluate Taye for head trauma because the Carson Defendants⁴ had told Reynolds that he had fainted, not that he had been knocked unconscious. (Id. at ¶¶ 84–85).

Taye went back to school on January 26, 2017, the day of his death. On that day, Taye suffered another incident of bullying in the school bathroom when two students stole his water bottle and flushed it down the toilet. Taye reported the incident to a teacher, but that teacher was unaware of the seriousness of the incident because the Carson Defendants had covered up the previous attack on Taye. (Id. at ¶¶ 88–90). Taye killed himself after returning home from school that night.

Plaintiffs allege that Taye had been a victim of bullying and aggressive behavior throughout his years at Carson. Moreover, a number of incidents in which Taye was physically assaulted were concealed from his parents by the Carson Defendants. (Id. at ¶¶ 62–75).

Plaintiffs allege that CPS Defendants fostered and covered up bullying and other aggressive behavior at Carson and created an unsafe environment for Carson students. (Doc. 21-1 at ¶¶ 20–61). Pursuant to O.R.C. § 3313.666, Defendant CPS was required to report any incidents of bullying. In the period of time that represented Taye's first half of third grade, Carson reported zero (0) bullying incidents. In the period of time that would have represented the second half of Taye's third-grade school year, Carson reported four (4) bullying incidents, but none involving Taye, including the bathroom attack. (Id. at ¶ 29). Plaintiffs allege that there were significantly more bullying incidents at Carson, but those incidents were covered-up by the CPS Defendants.

Plaintiffs allege that Carson behavior logs of ten students contain information of multiple occurrences of bullying and aggressive behavior, none of which were reported as bullying. The behavior logs specifically refer to several incidents as "bullying." (Id. at ¶¶ 32, 33). Other incidents that were documented, but not reported as bullying, include the punching and choking of students; verbal and physical threats, including threatening to sexually assault a student at gunpoint; and racist tormenting. (Id. at ¶¶ 34–54). Plaintiffs also highlight the bullying at Carson through statements of other parents with children at Carson who attest that officials at Carson were unresponsive to bullying at the school. (Id. at ¶¶ 55–59). One Carson parent states that CPS Defendants were aware that her child had expressed suicidal thoughts twice in school journal and she was not notified until the third time he expressed suicidal ideations. (Id. at ¶ 59).

II. STANDARD OF REVIEW

A. Motion to Amend

Pursuant to Fed. R. Civ. P. 15(a), "leave to amend a pleading shall be freely given when justice so requires." Coe v. Bell , 161 F.3d 320, 341 (6th Cir. 1998) (citing Brooks v. Celeste , 39 F.3d 125, 130 (6th Cir. 1994) ). Rule 15(a) embodies "a liberal policy of permitting amendments to ensure the determinations of claims on their merits." Marks v. Shell Oil Co. , 830 F.2d 68, 69 (6th Cir. 1987). In deciding a party's motion for leave to amend, the Court of Appeals for the Sixth Circuit has instructed that district courts must consider several elements, including "[u]ndue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendments...." Coe , 161 F.3d at 341. In the absence of any of these findings, leave should be "freely given." Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

Ultimately, determination of whether justice requires the amendment is entrusted to the sound discretion of a district court. Moore v. City of Paducah , 790 F.2d 557, 559 (6th Cir. 1986).

B. Motion to Dismiss

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) operates to test the sufficiency of the complaint and permits dismissal of a complaint for "failure to state a claim upon which relief can be granted." To show grounds for relief, Fed. R. Civ. P. 8(a) requires that the complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief."

While Fed. R. Civ. P. 8"does not require ‘detailed factual allegations,’ ... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Pleadings offering mere " ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ " Id. (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). In fact, in determining a motion to dismiss, "courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation[.]’ " Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain , 478 U.S. 265, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ). Further, "[f]actual allegations must be enough to raise a right to relief above the speculative level[.]" Id.

Accordingly, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. A claim is plausible where a "plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Plausibility "is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief,’ " and the case shall be dismissed. Id. (citing Fed. R. Civ. P. 8(a)(2) ).

III. ANALYSIS

A. Motion to Amend the Complaint (Doc. 21)

In response to CPS Defendants' motion to dismiss, Plaintiffs filed a response in opposition (Doc. 19) and later a motion to amend with the proposed amended complaint. (Doc. 21; Doc. 21-1). Plaintiffs propose to amend the complaint in the following ways: (1) add Carson nurse, Margaret McLaughlin, as a defendant and add a claim against her for negligence by a nurse (Count VII) and (2) add a new basis for a finding of municipal liability against the Defendants Cincinnati Board of Education and Superintendent Ronan (collectively "Board Defendants").

CPS Defendants argue that Plaintiffs' motion to amend the complaint should be denied because Plaintiffs' proposed amendments are futile and would not survive CPS Defendants' pending motion to dismiss.⁵ Yuhasz v. Brush...