N.F. ex rel. Her Minor Child M.F. v. Albuquerque Pub. Sch., Case No. 14-cv-699 SCY/RHS

N.F. on behalf of her minor child M.F. Plaintiffs, v. ALBUQUERQUE PUBLIC SCHOOLS et al. Defendants.

Case No. 14-cv-699 SCY/RHS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

January 30, 2015

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court on Defendant Kenneth Jehle's Motions to Dismiss. Docs. 26, 51. Defendant asserts qualified immunity and seeks dismissal of Plaintiff's due process, equal protection, unlawful seizure, and state law claims. Having reviewed Defendant's Motions, and being fully advised, the Court finds that the Motions should be GRANTED in part and DENIED in part.

I. BACKGROUND

M.F. attends Taft Middle School, a school in the Albuquerque public school system ("APS"), where she mainly receives special education instruction due to a learning disability. Doc. 49, First Amended Complaint ("FAC") ¶¶ 4-5, 70-71.¹ Jehle was, at all times relevant for this order, M.F.'s sixth grade English instructor and special education sponsor teacher responsible for helping facilitate M.F.'s curriculum. Id. ¶¶ 11-12, 69, 72-73. Plaintiff, M.F.'s mother, alleges that that on several occasions, throughout 2013-2014, Jehle sexually assaulted and harassed M.F. in violation of her constitutional rights. See generally id.

Specifically, Jehle stared at M.F's buttocks on multiple occasions and once attempted to get her to sit in his lap in a chair he referred to as the "Cuddle Chair." Then, around February 2014, Jehle "cornered" M.F. and lightly slapped her on her stomach, upper thighs, and buttocks. On a separate occasion, he reached into her back pants pocket to quiet a ringing cellphone. Finally, on roughly March 3, 2014, Jehle approached M.F. as she was seated on a railing and, while touching his upper thighs to her knees, dropped a lip gloss in her lap and intentionally slid his hand across her genitals to retrieve it. Id. ¶¶ 74-80. After the lip gloss incident, M.F. and a friend reported Jehle to the Taft Middle School administration. Id. ¶ 81.

On or about March 4, 2014, the Taft Middle School administration contacted Plaintiff to inform her of this incident. Id. ¶ 82. The administration sought to have a meeting between Jehle and M.F., but Plaintiff opposed the meeting. Id. On the same day, the administration referred the incident to the Bernalillo County Sheriff's Office ("BCSO") and on March 5, 2014, Taft administration placed Jehle on administrative leave. Id. ¶ 83-84. On April 1, 2014, BCSO arrested Jehle for the crime of Criminal Sexual Contact of a Minor. Id. ¶ 85.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint for failure to state a claim upon which the court can grant relief. Under this Rule, a motion to dismiss "admits all well-pleaded facts in the complaint as distinguished from conclusory allegations." Mitchell v. King, 537 F.2d 385, 386 (10th Cir. 1976) (citing Jones v. Hopper, 410 F.2d 1323 (10th Cir. 1969)). While a complaint does not require detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss, it "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Once the court accepts as true well-pleaded factual allegations, it must then consider whether "they plausibly give rise to an entitlement to relief." Barrett v. Orman, 373 F. App'x 823, 825 (10th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009)). The court's consideration, therefore, is limited to determining whether the complaint states a legally sufficient claim upon which the court can grant relief. See Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). The court is not required to accept conclusions of law or the asserted application of law to the alleged facts. See Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir. 1994). Nor is the Court required to accept as true legal conclusions that are presented as factual allegations. See Brooks v. Sauceda, 85 F. Supp. 2d 1115, 1123 (D. Kan. 2000). The Court must, however, view a plaintiff's allegations in the light most favorable to her. Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013).

Qualified immunity protects public officials from liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a defendant raises this defense, the burden shifts to the plaintiff to show both that the defendant's alleged conduct violated the law and that that law was clearly established when the alleged violation occurred. Anderson v. Creighton, 483 U.S. 635, 640 (1987). A right is clearly established "if [t]he contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. The action at issue need not have been previously declared unlawful, but its unlawfulness must be obvious in light of preexisting law. Beedle v. Wilson, 422 F.3d 1059 (10th Cir. 2005). Apparent unlawfulness is generally demonstrated when there is controlling authority on point or when the clearly established weight of authority from other courts supports plaintiff's interpretation of thelaw. Id. As with other motions to dismiss, to survive a motion to dismiss based on qualified immunity, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Iqbal, 556 U.S. at 677 (quotation omitted).

III. PLAINTIFF'S FEDERAL CLAIMS

Plaintiff brings three federal causes of action against Defendant: (1) violation of M.F.'s constitutional right to bodily integrity, (2) violation of M.F.'s constitutional right to equal protection, and (3) violation of M.F.'s constitutional right against illegal seizure. In addition to these federal claims, Plaintiff pleads an alternative state law claim for battery. Defendant asserts that he has qualified immunity with regard to Plaintiff's federal causes of action, and that Plaintiff has failed to state a cause of action under the New Mexico Tort Claims Act. Docs. 26, 51. For the following reasons, the Court finds that he should be denied qualified immunity as to Plaintiff's due process and equal protection claims. Furthermore, Defendant is not entitled to qualified immunity on Plaintiff's claims that Defendant unlawfully seized M.F. when he cornered and lightly slapped her and when he subsequently approached her and touched her genitals. The Court will, however, grant Defendant's motion to dismiss the battery claim.

A. Substantive Due Process -- Bodily Integrity

The first issue the Court will address is whether Defendant's alleged mistreatment of M.F. violated M.F.'s Fourteenth Amendment substantive due process right to bodily integrity. As both parties recognize, it is well-settled that a teacher's physical mistreatment of a student offends the substantive protections afforded by the due process clause if this mistreatment rises to "the high level of a brutal and inhuman abuse of official power literally shocking to the conscience." Abeyta by & Through Martinez v. Chama Valley Indep. Sch. Dist. No. 19, 77 F.3d1253, 1257-1258 (10th Cir. 1996). This is a rigorous standard. ² "To show a defendant's conduct is conscience shocking, a plaintiff must prove a government actor arbitrarily abused his authority or employed it as an instrument of oppression." Hernandez v. Ridley, 734 F.3d 1254, 1261 (10th Cir. 2013). Moreover, "[t]he behavior complained of must be egregious and outrageous." Id. Not every assault committed by a government official violates satisfies this standard. Williams v. Berney, 519 F.3d 1216, 1223 (10th Cir. 2008). For instance, the Tenth Circuit has recognized that teacher misconduct that is a "complete abuse of . . . authority" may, nonetheless, fall short of a substantive due process violation. Abeyta, 77 F.3d at 1258; see also Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996) (a teacher's rubbing of a student's stomach accompanied by a suggestive remark, while "deplorable," was not "of the outrageous and shocking character that is required for a substantive due process violation.").

Here, Defendant acknowledges that the allegations made by Plaintiff are "troubling." Doc. 51 at 9. Nevertheless, Defendant claims they are not so severe or egregious so as to literally shock the conscience of a federal judge. Plaintiff vigorously disagrees. As she sees it, the Tenth Circuit has "not created a sliding scale of sexual abuse for . . . school students," but has instead held that "all instances of teacher sexual molestation or abuse of a student violate the Due Process Clause." Doc. 57 at 8. Admittedly, Abeyta supports Plaintiff's position, at least on a verygeneral level. See Abeyta, 77 F.3d at 1255 ("Sexual assault or molestation by a school teacher violates a student's substantive due process rights."). However, because Abeyta never defines sexual assault or sexual molestation and does not, by its own terms, involve allegations of sexual molestation, Plaintiff's invocation of Abetya cannot, standing alone, determine the right outcome in this case.

The Court supposes that one could read Abeyta's reference to "sexual molestation" as an affirmation that a teacher's unwelcome sexual contact, no matter how minor, is actionable under the Fourteenth Amendment. But this is not the most natural reading of Abeyta, especially given the Tenth Circuit's later discussion, in that case, of how brutal and offensive teacher behavior must be to rise to the level of a due process violation. See Abeyta, 77 F.3d at 1257-58 (concluding that a teacher's repeatedly calling a student a prostitute over the course of a month and a half, and inciting the student's classmates to do so as well, did not inflict...