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Schiffbauer v. Schmidt

United States District Court, D. Maryland

March 24, 2015

KATHERINE SCHIFFBAUER et al.
v.
LAWRENCE E. SCHMIDT et al

Page 847

[Copyrighted Material Omitted]

Page 848

For Katherine Schiffbauer, Next Friends of K.S., Craig Schiffbauer, Next Friends of K.S., Plaintiffs, ThirdParty Plaintiffs: James Charles Strouse, LEAD ATTORNEY, Strouse Legal Services, Columbia, MD.

For Lawrence E. Schmidt, Esq., President, Board of Education for Baltimore County, S. Dallas Dance, Ph.D., Superintendent, Baltimore County Public Schools, Rebecca Rider, Ms., Principal, Chatsworth Elementary School, David Mitchell, Mr., Support Person, Chatsworth Elementary School, Trish Redding, Nurse, Chatsworth Elementary School, Shirille Jones, Teacher, Chatsworth Elementary School, Defendants, ThirdParty Defendants: Adam E Konstas, Lisa Y Settles, Pessin Katz Law, P.A., Towson, MD.

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MEMORANDUM

William M. Nickerson, Senior United States District Judge.

Before the Court is a motion to dismiss filed by Defendant Board of Education of Baltimore County (the Board)[1] and the following Individual Defendants: Lawrence E. Schmidt, S. Dallas Dance, Rebecca Rider, David Mitchell, Patricia Redding,[2] and Shirelle Jones.[3] ECF No. 22. The motion is ripe. Upon review of the filings and the applicable case law, the Court determines that no hearing is necessary, Local Rule 105.6, and that the motion will be granted.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Katherine and Craig Schiffbauer, through counsel, bring this action on behalf of themselves and on behalf of their son, K.S., for whom they are his Next Friends and Guardians. K.S. is currently ten years old and has been diagnosed with, Attention Deficit Hyperactivity Disorder, Obsession Compulsive Disorder, and a mood disorder (not otherwise specified). At all times relevant, K.S. was enrolled in a special education class at Chatsworth Elementary School in Baltimore County, Maryland. Defendant Shirelle Jones, who

Page 850

is African American, was his teacher. K.S. is Caucasian and was the only Caucasian student left in the special education class after the other Caucasian student left, allegedly after being bullied by an African American student, C.G. Am. Compl. ¶ 18. It is further alleged that K.S. was also bullied by C.G. on a continuing basis but Jones was always very protective of C.G. Id. ¶ 59. Plaintiffs also aver that Jones generally treated white students differently than African American students. Id. ¶ 58.

Defendant David Mitchell was the Support Person assigned to K.S.'s classroom and is also African American. On May 23, 2014, " C.G. was again attacking K.S. on the playground" and when K.S. " sought to retaliate," he was physically restrained by Defendant Mitchell and taken to the quiet room. Id. ¶ ¶ 24-25. While the procedural rules governing the restraint of students dictate that students are not to be restrained once they are in the quiet room, Plaintiffs assert that Mitchell continued to restrain K.S. even after he was placed there. K.S. states he was " slammed into a wall, and grabbed very hard causing bruises on his arms and back." Id. ¶ 29.

After K.S. " de-escalated," the school nurse, Defendant Patricia Redding, called Mrs. Schiffbauer saying she thought it would be a good idea for her to pick up K.S. early that day because K.S. was upset, was having a hard time breathing, and had some bruising. Id. ¶ ¶ 32, 34. When Mrs. Schiffbauer came to pick up K.S., she noticed multiple bruises on K.S. and took him immediately to their physician, Dr. Peter Ferra. Dr. Ferra examined K.S., observed the bruises, and had Mrs. Schiffbauer call the Department of Social Service (DSS) to report potential abuse. A representative of DSS called Nurse Redding and she reported that the bruises were the result of a struggle restraining K.S., and not the result of abuse. DSS did no further investigation at that time, although, at some point and at the insistence of Dr. Ferra, DSS did conduct some further investigation but found no liability or cause for child abuse. Id. ¶ 57. Mrs. Schiffbauer also contacted the police but the police declined to intervene, saying that this was a school matter. At some point, Plaintiffs also contacted the school in an attempt to obtain video surveillance tapes of the May 23rd incident but they were told that none existed, although Plaintiffs allege that there are many cameras in the special education rooms.

Mr. and Mrs. Schiffbauer kept K.S. at home for the next two school days but he returned to school, with his mother, on May 29th. Mrs. Schiffbauer spoke with the school Principal, Defendant Rebecca Rider, and the Assistant Principal and pleaded that K.S. be kept away from C.G. and Mr. Mitchell. Plaintiffs assert that request was ignored and K.S. was again placed in the special education class with Defendant Jones, C.G., and Defendant Mitchell. On June 3rd, K.S. had another incident involving C.G. and K.S. was again placed in support. Plaintiffs allege that throughout the remainder of the year, K.S. was afraid of school and begged his parents not to send him back.

Plaintiffs assert that, prior to the May 23, 2014, incident, Plaintiffs did not suspect or have reason to suspect that the Board was failing to provide K.S. with a safe and fair educational opportunity. Since that time, however, they have come to believe that Defendants Jones and Mitchell abused K.S. on other occasions as well. Id. ¶ 52. Plaintiffs further assert, on information and belief, that " school officials knew or should have known that Mr. Mitchell was abusing K.S. and other children in Special Education," id. ¶ 62; that Defendants Rider, Redding, and Jones " all

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knew or should have known of Mr. Mitchell's abuse of K.S. and other children" and " should have reported Mr. Mitchell to those in authority at [the Board], the DSS, and the police, but failed to do so." Id. ¶ 63. Also on information and belief, Plaintiffs assert that K.S. and other children in Defendant Jones' classroom " were subject to a hostile educational environment based on their disability" and " to verbal and other physical abuse, mainly from C.G.," causing " intense fear and other psychological damage which continues to the present." Id. ¶ 64. They conclude that Defendants Dance,[4] Rider, Redding, Jones, Mitchell and the Board were " malicious and in reckless disregard of Plaintiff's (sic) rights." Id. ¶ 66.

On the basis of these allegations, Plaintiffs bring the following claims: Violation of Constitutional Rights under 42 U.S.C. § 1983, Count I; Discrimination in Violation of the Americans with Disabilities Act (ADA), Count II; Violation of § 504 of the Rehabilitation Act of 1973 (Rehabilitation Act), Count III; and Violation of Title VI of the Civil Rights Act of 1964 (Title VI), Count IV. Defendants have moved to dismiss all claims against all Defendants.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must contain " sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Such determination is a " context-specific task," Iqbal, 556 U.S. at 679, in which the factual allegations of the complaint must be examined to assess whether they are sufficient " to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. " [A] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted). Such deference, however, is not accorded to labels and legal conclusions, formulaic recitations of the elements of a cause of action, and bare assertions devoid of further factual enhancement. Iqbal, 556 U.S. at 678.

III. DISCUSSION

A. Section 1983 Claim

Section 1983 establishes a cause of action against any " person" who, acting under color of state law, " subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. Thus, to state a legally cognizable claim under Section 1983, Plaintiffs " must establish three elements: (1) the deprivation of a right secured by the Constitution or a federal statute; (2) by a person; (3) acting under color of state law." Jenkins v. Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997).

Defendants move to dismiss the § 1983 claim against the Board on the ground that the Board is not a " person" within the meaning of § 1983. It is well established that county school boards in Maryland are considered state agencies

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and that, as state agencies, school boards are not considered " persons" under § 1983. Mayo v. Bd. of Educ. of Prince George's Cnty., 797 F.Supp.2d 685, 689 (D. Md. 2011). In opposing the motion, Plaintiffs acknowledge that § 1983 is limited to claims against " persons," but then makes no response to Defendants' argument. See Opp'n at 9. Instead, Plaintiffs cite a largely irrelevant provision in the Maryland Code that conditionally waives the defense of sovereign immunity under the Eleventh Amendment for certain claims up to $100,000 against Maryland school boards. Id. (citing Md. Code Ann., Cts. & Jud. Proc. § 5-518(c)). While that provision may waive immunity for certain claims once those claims are established against a school board, Plaintiffs must still first establish a valid claim. Here, they cannot do so because the Board is not a person subject to § 1983 liability.

Similarly, Defendants move to dismiss the claims against the Individual Defendants to the extent that they are being sued in their official capacities. It is well established that, just as State agencies are not persons under § 1983, nor are its officials acting in their official capacities. Rosenfeld v. Montgomery Cnty. Pub. Schs., 41 F.Supp.2d 581, 585-86 (D. Md. 1999). Again, Plaintiffs respond with a largely irrelevant argument relating to " bystander liability" under § 1983. Opp'n at 9 (citing Randall v. Prince George's Cnty., Md., 302 F.3d 188 (4th Cir. 2002)). Bystander liability is simply a theory under which supervisors can be held liable in their individual capacities for the acts of their subordinates and this theory has nothing to do with the viability of official capacity claims against state actors. In that same section of their Opposition, Plaintiffs seem to concede that only individual capacity claims can be brought against the Individual Defendants under § 1983. Id. at 10 (citing Hafer v. Melo, 502 U.S. 21, 23, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) for the proposition that " state official (sic) sued in their individual capacities are 'persons' for purposes of 1983" and affirming that Plaintiffs " do allege that the individual defendants should be held personally liable for their actions and their indifference to K.S.'s injuries caused by Mr. Mitchell" ).

As to the claims against the Individual Defendants in their individual capacities, Defendants argue that they are entitled to qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), " 'insofar as their conduct [did] not violate clearly established constitutional rights of which a reasonable person would know.'" Mot. at 8. Resolution of qualified immunity is typically a two-part inquiry:

First, [the court] must decide whether a constitutional right would have been violated on the facts alleged. Next, assuming that the violation of the right is established, courts must consider whether the right was clearly established at the time such that it would be clear to an objectively reasonable officer that his conduct violated that right.

Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d 324, 330-31 (4th Cir. 2009). Furthermore, because qualified immunity is an immunity from suit " rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial," Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), questions of qualified immunity should be resolved " at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). " Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before

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the commencement of discovery." Mitchell, 472 U.S. at 526.

In addressing Plaintiffs' claims, Defendants appear to place themselves in two different categories. Defendants begin their discussion of immunity in somewhat general, collective terms, arguing that Plaintiffs have failed to demonstrate that a constitutional right was violated. See Mot. at 8-10. This portion of their argument would seem to apply more specifically to those Defendants that had direct contact with K.S. -- Defendants Jones, Mitchell, and Redding. Defendants then seem to shift their focus and limit their argument to those in supervisory capacities, opining, " [p]resumably, Plaintiffs seek to hold the Individual Defendants liable under the theory of supervisory liability." Id. at 10. In this portion of their motion, Defendants only discuss the specific factual allegations against Defendants Schmidt, Dance and Rider. Id. 12-14.

Regarding that latter group of Defendants, the supervisors, Plaintiffs concede that they must " clear a very high bar" to establish liability. Opp'n at 11.[5] Establishing supervisor liability under § 1983 requires proof of the following elements:

(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed " a pervasive and unreasonable risk" of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show " deliberate indifference to or tacit authorization of the alleged offensive practices," ; and (3) that there was an " affirmative causal link" between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.
. . .
Establishing a " pervasive" and " unreasonable" risk of harm requires evidence that the conduct is widespread, or at least has been used on several different occasions and that the conduct engaged in by the subordinate poses an unreasonable risk of harm of constitutional injury.

Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citations omitted).

As to Defendants Schmidt and Dance, the Amended Complaint provides no factual basis, whatsoever, from which to conclude that they had knowledge of any pervasive or widespread unconstitutional conduct. Plaintiffs provide specific factual allegations regarding only a single incident of abuse and they acknowledge that these Defendants " had no direct involvement in the matter." Opp'n at 13. Although Plaintiffs allege that Rider, Redding and Jones " should have reported Mr. Mitchell to those in authority at [the Board]," they also allege that Rider, Redding and Jones " failed to do so." Am. Compl. ¶ 63.[6]

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As to Defendant Rider, she was informed about the May 23rd quiet room incident. Although Plaintiffs allege that she did not immediately accede to Mrs. Schiffbauer's request that K.S. be " kept away from C.G. and Mr. Mitchell," id. ¶ 44, when informed that K.S. had another issue with a student on June 3rd, Plaintiffs acknowledge that she offered to move K.S. to another classroom. Id. The Amended Complaint does not indicate how Plaintiffs responded to that offer. The school year ended shortly thereafter.

In attempting to support their claims against Rider and the other Defendants in their Opposition, Plaintiffs go well beyond the allegations in the Amended Complaint and, at times, even take positions counter to the allegations in the Amended Complaint. In the Opposition, Plaintiffs argue that " Principal Rider said there were no surveillance cameras in the Special Education room. This was a deliberate misstatement showing her bad faith and indifference to multiple injuries to K.S." Opp'n at 12. What Plaintiffs allege in the Amended Complaint, however, is that she simply said that " there was no footage for the areas requested." Am. Compl. ¶ 47. Plaintiffs argue in their Opposition that " Principal Rider refused to admit any wrong-doing. This is in spite of many bruises on K.S.' body. Nurse Redding was either told to lie about K.S.' assault or simply ignored her responsibilities to examine and report abuses." Opp'n at 13. There is nothing in the Amended Complaint, however, to support the conclusion that Rider ever told Nurse Redding to lie. Plaintiffs acknowledge in the Amended Complaint that Nurse Redding told Mrs. Schiffbauer that K.S. " had some bruising" when she called her to come pick up him up on May 23.

Similarly, Plaintiffs argue in the Opposition that " When DSS contacted Nurse Redding, she failed to report anything, saying K.S. reported to her but there was nothing special or incriminating about K.S.' injuries." Opp'n at 12. In the Amended Complaint, Plaintiffs acknowledge that Nurse Redding, when contacted by DSS, told them that " K.S.'s injuries were a result of a struggle in restraint and that there was no issue of child abuse." Am. Compl. ¶ 37. The factual allegations in the Amended Complaint would indicate that Defendants never denied that K.S. suffered bruising as a result of his struggle with Mitchell.

The Court cannot conclude that the allegations in the Amended Complaint support the conclusion that Principal Rider was deliberately indifferent to a pervasive risk of any constitutional harm. The Amended Complaint provides factual support for a single incident of the use of limited physical force to restrain K.S. Plaintiffs allege in the Amended Complaint that " when K.S. sought to retaliate" against C.G., Mitchell physically restrained him and took him to the quiet room. The official school report, quoted in the Amended Complaint, describes an incident that lasted

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just a few minutes. The unidentified reporter stated,

" I witnessed Mr. Mitchell utilizing the Tact-2 Seated Restraint . . . . I entered the quiet room as Mr. Mitchell was telling K.S. to calm down so he could release the hold. At 12:58 p.m., Mr. Mitchell released the hold but K.S. became physically aggressive. The restraint resumed until 12:59 p.m. The restraint ended at 1:00 P.M. Mitchell released the restraint and sat with K.S. a few minutes as K.S. de-escalated."

Am. Compl. ¶ 32. While Plaintiffs assert that continuing to restrain a child once he is placed in the quiet room is against the school's procedural rules, id. ¶ 28, they do not challenge the accuracy of this report.

The Court also notes that Plaintiffs are not particularly clear as to the alleged constitutional dimension of their claim. In the Amended Complaint, Plaintiffs assert that Defendant Mitchell " violated minor Plaintiff K.S.'s rights under the Equal Protection Clause of the Fourth Amendment to the United States Constitution by actions including, but not limited to, utilizing unjustified and unreasonable force against K.S. and others." Am. Compl. ¶ 70.[7] Plaintiffs then allege that Defendant Mitchell violated K.S.'s and others rights " under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by actions, including but not limited to, depriving Plaintiffs of equal protection under the law on the basis of race." Id. ¶ 71. Next, Plaintiffs allege that all of the Defendants violated:

[Plaintiffs' and others'] rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution by actions, including but not limited to:
a. Intentionally interfering with the parent child relationship by concealing information regarding the physical and emotional trauma inflicted on K.S. and others by David Mitchell.
b. Intentionally interfering with Craig and Kathy Schiffbauer's, and K.S. and others right to provide and receive nurture, support, and comfort regarding a highly traumatic event.

Id. ¶ 73.

In their Opposition, however, Plaintiffs seem to abandon all but their equal protection claim on the basis of race. In the single paragraph under the heading, " Plaintiffs Do Adequately Allege the Deprivation of a Constitutional Right," Plaintiffs assert, " '[t]o survive a motion to dismiss an equal protection claim, a plaintiff must plead sufficient facts to demonstrate plausibly that he was treated differently from others who were similarly situated and that the unequal treatment was the result of discriminatory animus.'" Opp'n at 14 (quoting Townes v. Jarvis, 577 F.3d 543, 551 (4th Cir. 2009)).[8] Plaintiffs then point to their allegations that Defendant Jones " treated white students differently from African-American students" and " was very protective of C.G., an African-American student." Id. (quoting Am. Compl. ¶ ¶ 58, 59 and 60).[9]

The Court notes that the only allegations of unequal treatment based on race now appear to be directed at Defendant Jones. That unequal treatment consisted of sending K.S. to support when K.S. attempted to retaliate against C.G. As to Defendant Mitchell, the Defendant most

Page 856

directly involved in the incident on which Plaintiffs focus, Plaintiffs do allege in their Amended Complaint that Mitchell deprived Plaintiffs of equal protection on the basis of race. They assert in their Opposition, however, that K.S. " was attacked by Mr. Mitchell solely on the basis of K.S.' disability." Opp'n at 16 (emphasis added). There are no allegations of any unequal treatment by Nurse Redding on the basis of race.

" In order to survive a motion to dismiss an equal protection claim, a plaintiff must plead sufficient facts to demonstrate plausibly that he was treated differently from others who were similarly situated and that the unequal treatment was the result of discriminatory animus." Equity in Athletics, Inc. v. Dept. of Educ., 639 F.3d 91, 108 (4th Cir. 2011 (citing Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001) and Twombly, 550 U.S. at 560) (emphasis added). At most, they are now alleging unequal treatment on the basis of race by just one of the Defendants, and even that allegation is somewhat conclusory, i.e., that Defendant Jones treated white students " differently" and was " very protective" of one particular African American student. Regardless, nowhere in the Amended Complaint do they allege discriminatory animus on the part of Defendant Jones.

Considering the equal protection claim against Defendant Mitchell,[10] were the Court to ignore that Plaintiffs now attribute his conduct solely to K.S.'s disability and, therefore, no longer to K.S.'s race, the Court would still find Defendant Mitchell entitled to qualified immunity. Mitchell restrained a student who, whether provoked by another student or not, was attempting to retaliate against that other student. When Mitchell released K.S. from restraint, he became physically aggressive and Mitchell restrained him again for a few minutes and then released him. It is true that Plaintiffs allege that K.S. reported that he was slammed against a wall and grabbed very hard and Plaintiffs focus on the fact that K.S. experienced bruising. That, however, is not inconsistent with what could occur when one is trying to restrain an unruly, physically aggressive student. While Mitchell perhaps was or should have been aware that his conduct violated standard school protocol, a reasonable person in his position would not have known that this conduct violated clearly established constitutional rights.[11]

B. ADA and Section 504 of the Rehabilitation Act Claims

In the Amended Complaint, Plaintiffs cite Moxley v. Town of Walkersville, 601 F.Supp.2d 648 (D. Md. 2009),[12] apparently in

Page 857

support of an argument that the Individual Defendants could be held liable under the ADA and the Rehabilitation Act. Am. Compl. ¶ 84. The portion of the Moxley decision referenced by Plaintiffs deals with the scope of legislative immunity and the case was not brought under either the ADA or the Rehabilitation Act. Thus, it has no relevance. Regardless, Plaintiffs acknowledge in their Opposition that there is no individual liability under either statute. Thus, these claims against all but the Board must be dismissed.

There is the potential for the Board to be liable under the ADA or the Rehabilitation Act. Title II of the ADA provides, in pertinent part: " Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Section 504 of the Rehabilitation Act provides, in pertinent part: " No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . ." 29 U.S.C. § 794(a) (emphasis added).

Although there is a difference in the causation language used in these statutes, the elements are essentially the same: " [I]n the context of a student excluded from an educational program, to prove a violation of either [the ADA or § 504], the plaintiff must establish that (1) he has a disability, (2) he is otherwise qualified to participate in the defendant's program, and (3) he was excluded from the program on the basis of his disability." Halpern v. Wake Forest Univ. Health Sciences, 669 F.3d 454, 461 (4th Cir. 2012).[13] It is undisputed that K.S. has a disability and the Court will assume he was otherwise qualified to participate in the special educational program offered at Chatsworth Elementary.

In the Amended Complaint, Plaintiffs allege that the Board failed in its responsibility to provide him the educational opportunities to which he was entitled " by subjecting Plaintiff to a hostile educational environment." Am. Compl. ¶ 89. In the brief discussion of facts in support of this claim, Plaintiffs cite the attack by Defendant Mitchell " solely on the basis of K.S.' disability" and Defendant Rider's and Redding's cover up of that alleged abuse. Opp'n at 16. Plaintiffs then declare that " [i]n Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999), the Supreme Court has held that a school district's deliberate indifference to pervasive, severe disability based harassment that affects a student's access to school resources would be actionable." Id. (emphasis added).

Davis was actually a case addressing a sex-based, hostile environment claim brought under Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. § 1681 et seq. In that context, the Court held that a Title IX claim against the school board for student-on-student harassment could be maintained upon a

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showing that school officials were " deliberately indifferent to sexual harassment, of which they [had] actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." Davis, 526 U.S. at 650. In the case before it, the Court found that the plaintiff had stated a claim under Title IX because school officials were aware that another student was sexually harassing and assaulting the plaintiff, and yet did nothing to stop the harassment for five months. See Davis, 526 U.S. at 653--54.

Several courts, including this Court, have found by analogy to Davis,

that a school district's deliberate indifference to severe and pervasive harassment of a disabled child by his peers states a claim under § 504 of the Rehabilitation Act and Title II of the ADA, when five elements are satisfied: (1) the child is an individual with a disability; (2) he or she was harassed based on that disability; (3) the harassment was sufficiently severe or pervasive that it altered the condition of his or her education and created an abusive educational environment; (4) the defendant had actual knowledge of the harassment; and (5) the defendant was deliberately indifferent to the harassment.

Wright v. Carroll Cnty. Bd. of Educ., Civ. No. 11-3103, 2013 WL 4525309, at *16 (D. Md. Aug. 26, 2013) (collecting cases). While Plaintiffs' citation to Davis, a student-on-student harassment case, renders Plaintiffs' intent somewhat unclear, the Court will assume that Plaintiffs are asserting a disability harassment claim based upon the conduct of Jones and Mitchell as well as the alleged bullying by C.G.

Even with that assumption, the Court finds that the allegations in the Amended Complaint fail to present harassment that was sufficiently severe or pervasive that it altered the condition of K.S.'s education. As to C.G.'s conduct, the Amended Complaint speaks in general terms of his attacking and bullying K.S. " on a continuing basis," without specifying the duration or intensity of that bullying. As to Jones' conduct, as noted above, the allegations are that she treated students " differently" based upon race, not disability. As to Mitchell, as also noted above, Plaintiffs point to a single instance of the use of physical force to restrain K.S. when K.S. sought to retaliate against C.G.

This Court's ruling in Wright is perhaps instructive. In Wright, the Plaintiffs' son, R.W., suffered from autism and they alleged that from the beginning of his fifth grade school year he was bullied by M., another student. Despite his mother telling school officials of her son's fear of that other student and their assurance that they would appropriately deal with the situation, their son " [n]evertheless, endured cruel and 'serious episodes of student-on-student violence' inflicted by M., including being 'stabbed at or struck with pencils, being pushed and punched, [and] being ridiculed for the affect and mannerisms which are the effect of his disability.'" Id. at *3 (quoting the complaint). In one incident, seven or eight weeks into the school year, M. " attacked," " threatened," " taunted," " ridiculed," and " assaulted" R.W., and when R.W.'s mother arrived at the school, she " observed that R.W. had 'withdrawn into a tightly wound fetal position.'" with " 'both of his eyes were blackened and his lower lip was swollen.'" Id. As a result of these attacks, R.W. " became extremely afraid to attend school." Id. at *4. Even under those facts, this Court held that the plaintiffs had not met the " severe and pervasive" standard given the " exceedingly brief period of harassment" and

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granted the defendants' motion to dismiss. Id. at *17. Plaintiffs' nonspecific allegations regarding C.G.'s bullying certainly do not meet that standard.

If the Court also considers the May 23rd incident involving Mitchell, we are still only dealing with a single incident of very limited duration. Plaintiffs' vague allegation that they " are informed and believe . . . that Mrs. Jones and Mr. Mitchell abused their son on other occasions as well," Am. Compl. ¶ 52, does not save their claim. See Wright, [WL] at *17 (noting that while " plaintiffs vaguely aver that 'further incidents' of bullying took place," " plaintiffs have not alleged any facts about these events or incidents to show that they involved harassment qualitatively similar to [the incident when R.W. was assaulted])." The Court readily acknowledges that an allegation that the harasser was a teacher or a school support person, and not just another student, significantly raises the potential severity and pervasiveness of the interaction. Nonetheless, the only interaction alleged with any detail remains a single incident of brief duration.[14]

C. Title VI Claim

Section 601 of Title VI provides that: " No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. The statute defines " program or activity" to include a " local educational agency," which is " a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools in a city, county, township, school district, or other political subdivision of a State . . . ." 42 U.S.C. § 2000d--4a(2)(B); 20 U.S.C. § 7801(26)(A). Defendant Board[15] moves to dismiss the Title VI claim: (1) on the ground that Plaintiffs have failed to sufficiently pinpoint the timing of the Board's receipt of federal funds so as to trigger its obligations under the statute; and (2) on the ground that Plaintiffs have failed to allege intentional discrimination based on race. Because the Court agrees with the second ground, it need not reach the first.

As with Plaintiffs' other claims, the basis for their Title VI claim is somewhat unclear and appears to have shifted between the filing of the Amended Complaint and the submission of their Opposition. In Count IV of the Amended Complaint, Plaintiffs focus almost exclusively on Defendant Mitchell and allege that they were " targeted and harassed by David Mitchell on the basis of their race," Am. Compl. ¶ 103, and that the Board had notice that " Mitchell's harassment of K.S. was based on race," but failed to investigate or respond to that racial harassment. Id. ¶ ¶ 104-106. In opposing the motion to dismiss, Plaintiffs make the following factual argument:

Shirille (sic) Jones discriminated against K.S., the only white child in her class. She allowed C.G., an African-American, to buloly (sic) K.S. and then put K.S. in the support room when K.S. attempted to retaliate. The Board knew about Ms.

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Jones' actions through Principal Rider. The Board was obligated to stop the discrimination and is liable for the actions of Mr. Mitchell.

ECF No. 30-1 at 17. Thus, the focus now seems to be more on Defendant Jones, which perhaps is consistent with Plaintiffs' current position that Mitchell's conduct was motivated solely by K.S.'s disability. Regardless of the current focus, the Court finds that Plaintiffs have failed to allege intentional discrimination just as they failed to establish that element in support of their § 1983 claim.

IV. CONCLUSION

For the above stated reasons, Defendants' motion will be granted. A separate order will issue.

ORDER

In accordance with the accompanying memorandum, and for the reasons stated therein, IT IS this 24th day of March, 2015, by the United States District Court for the District of Maryland, ORDERED:

(1) That Defendants' Motion to Dismiss, ECF No. 22, is GRANTED;

(2) That the Amended Complaint is DISMISSED and this case CLOSED; and

(3) That the Clerk of the Court shall transmit a copy of this Memorandum and Order to all counsel of record.


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