Opinion
CIVIL ACTION NO. 1:20-cv-4666-AT
2021-09-30
D.D.T., BY AND THROUGH his natural parents and guardians, S.C. and D.T., Plaintiff, v. ROCKDALE COUNTY PUBLIC SCHOOLS, Randy Goerner, Dona Pollard and David Lesesne, Defendants.
Carson Modrall, Berman Fink Van Horn, Atlanta, GA, David S. Fried, Joseph Alan White, Fried Bonder White, LLC, Atlanta, GA, for Plaintiff. Jeffrey Robert Daniel, Sherry Hall Culves, Parker, Poe, Adams & Bernstein, LLP, Atlanta, GA, for Defendants.
Carson Modrall, Berman Fink Van Horn, Atlanta, GA, David S. Fried, Joseph Alan White, Fried Bonder White, LLC, Atlanta, GA, for Plaintiff.
Jeffrey Robert Daniel, Sherry Hall Culves, Parker, Poe, Adams & Bernstein, LLP, Atlanta, GA, for Defendants.
ORDER
Amy Totenberg, United States District Judge
Plaintiff's parents and guardians in this case seek damages on behalf of their son, a non-verbal autistic student with disabilities, for his alleged abuse at the hands of his special education teacher and paraprofessional. Through his parents, D.D.T. brings claims under the United States Constitution and 42 U.S.C. § 1983, the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. , Section 504 of the Rehabilitation Act (" Section 504"), and under a variety of state law tort theories. This case is before the Court on Defendants’ Motion to Dismiss [Doc. 12].
For the following reasons, the Motion is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
Consistent with the motion to dismiss standard, the Court views the following facts, which were alleged in Plaintiff's Complaint, as true.
Plaintiff D.D.T. is a disabled, non-verbal minor child who suffers from autism, attention-deficit/hyperactivity disorder ("ADHD"), and intellectual disability. (Compl., Doc. 1 ¶¶ 2, 30.) Plaintiff's disabilities and mental impairments substantially limit his ability to eat, speak, read, learn, interact with others, and perform manual tasks, among other things. (Id. ¶ 31.) At the time of the events at issue in this case, D.D.T. was a student at the General Ray Davis Middle School ("GRDMS") in the Rockdale County School District ("RCSD").
Although Plaintiff filed his lawsuit against Rockdale County Public Schools, the school district's correct legal name is Rockdale County School District. (Defs.’ Brief in Support of Mot. to Dismiss, Doc. 12-1 at 1.) As Defendant has not been prejudiced by Plaintiff's error, the Court DIRECTS Plaintiff to file a notice of correction of the name of the Defendant and identify Rockdale County School District as the proper name of the Defendant.
Given his disabilities, Plaintiff is eligible to receive special education services, as provided under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et. seq. (Id. ¶ 33.) At all times relevant to Plaintiff's Complaint, he was on an Individual Education Plan ("IEP") designed to meet his specific needs. (Id. ¶ 35.) His IEP recognized his "exceptionalities" as "Significant Developmental Delay," "Autism," and "Speech/Language Impairment." (Id. ¶¶ 35-36.) Plaintiff's IEP services also provided for a Behavioral Intervention Plan ("BIP") because the IEP noted that D.D.T. had demonstrated "aggression toward teachers, paraprofessionals and peers." (Id. ¶¶ 39-40.)
During the 2018-2019 school year, Plaintiff was a student at GRDMS, where his special education teacher was Dona Pollard ("Pollard"). (Id. ¶ 17, 45, 47.) David Lesesne ("Lesesne") was assigned as a special education paraprofessional in Pollard's classroom. (Id. ¶ 19.) Randy Goerner ("Principal Goerner") served as the principal at GRDMS during the time that Plaintiff was assigned to Pollard's class. (Id. ¶ 11, 105.) When Plaintiff started at GRDMS, he weighed approximately 110 pounds. (Id. ¶ 46.)
A. The 2018 Abuse Allegations
Pollard began working for RCSD in approximately 2012. (Id. ¶ 48.) Pollard allegedly had no special education teaching experience when she began working for RCSD, though she worked with non-ambulatory special education students prior to Plaintiff joining her class. (Id. ¶¶ 49-50.) Lesesne began working for RCSD in approximately 2006. (Id. ¶ 52.) Plaintiff alleges that both Pollard and Lesesne were the subject of one or more complaints to RCSD and/or GRDMS about their treatment of special education students prior to Plaintiff joining their class — Lesesne for "verbal abuse, physical abuse, and intimidating and threatening behavior" and Pollard for "her refusal to utilize special needs equipment for students which required her to physically move the students." (Id. ¶¶ 51, 53.)
In approximately September 2018, K.W., another paraprofessional employed by RCSD, joined Pollard's class. (Id. ¶¶ 21, 65.) Upon joining the class, K.W. began observing Pollard and Lesesne physically and verbally abusing students, primarily Plaintiff and another disabled boy. (Id. ¶ 66.) Lesesne would brandish a stick-like object and physically threaten Plaintiff and the other boy, (id. ¶ 68), and would spray or dump water on the pair (id. ¶ 69). Lesesne would also throw objects, including shoes, at the boys. (Id. ¶ 70.) Pollard did nothing to correct or prevent Lesesne's conduct. (Id. ¶ 71.) Pollard also participated at times, including "threatening, intimidating, and abusing the boys," along with Lesesne, while referring to the pair as "Frick and Frack" and by other unspecified derogatory terms. (Id. ¶ 67.) 1. Complaints of Abuse
K.W. verbally complained to GRDMS administrators and to human resources personnel with the RCSD board about the behavior she witnessed in Pollard's classroom. (Id. ¶¶ 73-74.) Neither RCSD nor GRDMS, including Principal Goerner, took any action in response to K.W.’s complaints. (Id. ¶ 75.) Instead, GRDMS administrators instructed K.W. to submit any additional complaints in writing. (Id. ¶ 76.)
Accordingly, on October 29, 2018, K.W. emailed Principal Goerner, three GRDMS assistant principals employed by RCSD (Kecia Thomas, Kimberly Kammerer, and Cathleen Young), and GRDMS's lead teacher (Sabrina McCray) regarding a situation in which Pollard threw a projector remote at a student and hit him. (Id. ¶¶ 12-15, 77, 79.) Although email communications indicated that Principal Goerner would investigate the complaint, K.W. was not contacted or interviewed. (Id. ¶ 80.) Neither Principal Goerner nor any other administrator investigated the incident, and neither Pollard nor Lesesne were reprimanded or disciplined. (Id. ) No changes were implemented in Pollard's classroom. (Id. )
In November 2018, K.W. sent another email to Principal Goerner, the three assistant principals, and GRDMS's lead teacher complaining about abuse in Pollard's class, including abuse specifically of Plaintiff. (Id. ¶ 81.) Again, K.W. was not contacted, no investigation was conducted, Pollard and Lesesne were not reprimanded or disciplined, and no changes were implemented in Pollard's classroom. (Id. ¶ 82.)
On December 20, 2018, K.W. sent another email to Principal Goerner, the three assistant principals, and GRDMS's lead teacher, and this time also included GRDMS's Learning Support Coordinator (Jessica Walls), also employed by RCSD. (Id. ¶¶ 16, 83.) In the December email, K.W. reported that: (1) "Pollard attempted to pull a disabled student off the top of a bookshelf before K.W. intervened"; (2) "Pollard then grabbed the same student by the back of his neck and his wrist and shoved him against the wall"; and (3) "Lesesne threw a shoe ‘3 or 4 times’ at a disabled student, who was ‘curled up in the floor in the corner.’ " (Id. ¶ 84.) Though not specified in Plaintiff's Complaint, one of those incidents involved Plaintiff. (Id. ¶ 83.) In response to this email, GRDMS administrators, including Principal Goerner, completed an "Investigation Report" concerning the incident based on statements only from Pollard and Lesesne. (Id. ¶ 86.) GRDMS administrators did not interview or speak with K.W. (Id. ) And although emails responsive to K.W.’s complaint indicated that the incidents called for a "mandatory DFCS referral," Plaintiff alleges, on information and belief, that no GRDMS administrator reported the incident to the Georgia Division of Family and Children Services ("DFCS"). (Id. ¶ 85.) Instead, Pollard received a "letter of correction" because GRDMS's investigation concluded that Pollard "inappropriately restrained but did not injure the student." (Id. ¶ 87.) Lesesne denied throwing shoes at the student, and so, the accusation against him was deemed unsubstantiated by GRDMS administrators. (Id. ¶ 88.)
2. Plaintiff's Parents Informed of Abuse
In December 2018, K.W. witnessed another incident involving Plaintiff and recorded the incident on her cell phone. (Id. ¶¶ 89-90.) The video allegedly depicts Lesesne brandishing a stick-like object in his hand, which he used to threaten Plaintiff, and using his foot to pin Plaintiff to the ground. (Id. ¶ 91.) Each time Plaintiff tried to get up, Lesesne forced him back on the ground using his foot. (Id. ¶ 91.) Instead of immediately reporting this incident to GRDMS administrators, K.W. showed Plaintiff's mother the video recording of the incident when she encountered her at a retail establishment later that month. (Id. ¶ 92-93.) Prior to that encounter, Plaintiff's parents were unaware of any alleged verbal or physical abuse in Pollard's classroom. (Id. ¶ 94.)
3. The Aftermath
In late December 2018 or early January 2019, K.W.’s video recording was given to DFCS, prompting a criminal investigation by the Rockdale County Sheriff's Department. (Id. ¶ 101.) The results of that investigation are presently unknown. (Pl.’s Resp. to Defs.’ Mot. to Dismiss, Doc. 20 at 24, n. 23.) However, Pollard and Lesesne were removed from Plaintiff's classroom so that, when Plaintiff returned to school following his holiday break, he had a new teacher and paraprofessional. (Compl. ¶¶ 102, 104.) On February 4, 2019, Principal Goerner submitted his resignation and indicated that he would retire effective March 29, 2019, before the end of the school year. (Id. ¶ 105.) On March 8, 2019, Pollard submitted her resignation, which became effective on May 28, 2019. (Id. ¶ 106.) K.W. was let go by RCSD. (Id. ¶ 103.) In October 2019, Plaintiff's parents withdrew him from GRDMS. (Id. ¶ 109.)
B. Plaintiff's Alleged Injury
As a result of his alleged abuse, Plaintiff's parents assert that he "regress[ed] noticeably [in his education, development, and behavior], los[t] a considerable amount of weight, and develop[ed] permanent and severe anxiety, loss of appetite and post-traumatic stress for which he is currently being treated with, among other things, prescription drugs." (Id. ¶ 2.) More specifically, beginning in September 2018, Plaintiff started refusing food and eventually dropped from 110 pounds to approximately 65 pounds. (Id. ¶ 96.) Plaintiff has also been diagnosed with anxiety disorder and prescribed Zoloft. (Id. ¶ 100.) Plaintiff allegedly did not experience any anxiety about going to school prior to his enrollment at GRDMS. (Id. ¶ 44.) By the end of the 2018-2019 school year, Plaintiff had made no progress towards his stated IEP goals, though progress reports and report cards from his elementary schools indicated that he was "generally meeting or making sufficient progress toward the goals in his IEPs." (Id. ¶¶ 42, 171.)
On November 16, 2020, Plaintiff, through his parents as guardians, filed his Complaint against Defendant RCSD, alleging that RCSD violated his rights under 42 U.S.C. § 1983 and the Fourteenth Amendment (Counts I-III), the Americans with Disabilities Act ("ADA") (Count V), and Section 504 of the Rehabilitation Act of 1973 (Count VI). Plaintiff's Complaint separately alleges that Principal Goerner, Pollard, and Lesesne (collectively "the Individual Defendants") violated his rights under § 1983 and the Fourteenth Amendment (Count IV) and were negligent (Count VII). Finally, Plaintiff alleges that Pollard and Lesesne committed other related state-law torts (Counts VIII-IX).
II. LEGAL STANDARD
This Court may dismiss a pleading for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A pleading fails to state a claim if it does not contain allegations that support recovery under any recognizable legal theory. 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1216 (3d ed. 2002) ; see also Ashcroft v. Iqbal , 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in the non-movant's favor and accepts the well-pleaded factual allegations therein as true. See Duke v. Cleland , 5 F.3d 1399, 1402 (11th Cir. 1993). The plaintiff need not have provided "detailed factual allegations" to survive dismissal, but the "obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In essence, the pleading "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 (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). "A well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable." Twombly at 556, 127 S.Ct. 1955. But the allegations must still be "plausible." Id. at 547, 127 S.Ct. 1955.
III. DISCUSSION
In assessing Plaintiff's claims, the Court first discusses whether Plaintiff was required to exhaust the Individuals with Disabilities Education Act's ("IDEA") administrative remedies before filing his federal claims. Second, the Court turns to Plaintiff's § 1983 claims against RCSD and the Individual Defendants. Then, the Court addresses Plaintiff's ADA and Section 504 claims and whether Plaintiff has sufficiently alleged RCSD's deliberate indifference. After discussing the federal claims, the Court turns to Plaintiff's state law claims, including his negligence per se claim, and addresses whether Pollard and Lesesne are entitled to official immunity in connection with the asserted state law claims. To conclude, the Court turns to Defendants’ statute of limitations defense and Plaintiff's claim for punitive damages.
A. Federal Claims and IDEA Exhaustion
Defendants contend that Plaintiff's federal claims in effect seek relief for the denial of a "free appropriate public education" ("FAPE"). Therefore, according to Defendants, Plaintiff was required to exhaust the IDEA's administrative remedies before filing those claims in federal court.
By its express terms, 20 U.S.C. § 1415(l) does not apply to state law claims, Therefore, Plaintiff was not required to exhaust administrative remedies under the IDEA prior to asserting his state law claims in this Court.
The goal of the IDEA is "to provide each child with meaningful access to education by offering individualized instruction and related services appropriate to her ‘unique needs.’ " Fry v. Napoleon Cmty. Schs. , 580 U.S. 154, 137 S. Ct. 743, 755, 197 L.Ed.2d 46 (2017). The IDEA offers federal funds to states in exchange for a commitment to provide all "children with disabilities" a FAPE, 20 U.S.C. § 1400(d)(1)(A), and provides relief for children with disabilities for the denial of a FAPE. Id. at 753. An "individualized education program," called an IEP, serves as the "primary vehicle" for providing meaningful access to a FAPE based on a child's individual needs. Id. at 749, 753. Thus, the IDEA's administrative procedures provide a remedial process and mechanism to address parental concerns regarding whether a school district has met its obligation to provide a student with disabilities an educational program, accommodations, and services in conformity with IDEA's FAPE requirements. Id.
The IDEA's exhaustion provision, 20 U.S.C. § 1415(l), "requires that a plaintiff exhaust the IDEA's procedures before filing an action under the ADA, the Rehabilitation Act, or similar [federal] laws when (but only when) her suit seeks relief that is also available under the IDEA." Fry , 137 S. Ct. at 752 ; 20 U.S.C. § 1415(l) ("Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the [ADA], Title V of the Rehabilitation Act[, including § 504 ], or other Federal laws ... except that before the filing of a civil action under such laws seeking relief that is also available under [the IDEA], the [IDEA's administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under [the IDEA]."). As the Supreme Court explained in Fry :
The IDEA establishes formal procedures for resolving disputes as explained by the Supreme Court in Fry : To begin, a dissatisfied parent may file a complaint as to any matter concerning the provision of a free appropriate public education ("FAPE") with the local or state educational agency (as state law provides). See § 1415(b)(6). That pleading generally triggers a "[p]reliminary meeting" involving the contending parties, § 1415(f)(1)(B)(i) ; at their option, the parties may instead (or also) pursue a full-fledged mediation process, see § 1415(e). Assuming their impasse continues, the matter proceeds to a "due process hearing" before an impartial hearing officer. § 1415(f)(1)(A) ; see § 1415(f)(3)(A)(i). Any decision of the officer granting substantive relief must be "based on a determination of whether the child received a [FAPE]." § 1415(f)(3)(E)(i). If the hearing is initially conducted at the local level, the ruling is appealable to the state agency. See § 1415(g). Finally, a parent unhappy with the outcome of the administrative process may seek judicial review by filing a civil action in state or federal court. See § 1415(i)(2)(A).
§ 1415(l) ’s exhaustion rule hinges on whether a lawsuit seeks relief for the denial of a [FAPE]. If a lawsuit charges such a denial, the plaintiff cannot escape § 1415(l) merely by bringing her suit under a statute other than the IDEA ... But if, in a suit brought under a different statute, the remedy sought is not for the denial of a FAPE, then exhaustion of the IDEA's procedures is not required ... And that is true even when the suit arises directly from a school's treatment of a child with a disability — and so could be said to relate in some way to her education.
Id. at 754.
In determining whether a suit indeed seeks relief for the denial of a FAPE, courts look to the "gravamen" or essence of the plaintiff's complaint, "setting aside any attempts at artful pleading." Id. at 755 ; see Durbrow v. Cobb Cnty. Sch. Dist. , 887 F.3d 1182, 1190 (11th Cir. 2018). "That inquiry makes central the plaintiff's own claims," because, "[i]n effect § 1415(l) treats the plaintiff as ‘the master of the claim.’ " Fry , 137 S. Ct. at 755. In reviewing the plaintiff's complaint, courts should avoid a "magic words approach," keeping in mind that § 1415(l) "is not merely a pleading hurdle." Id. Claims going beyond a student's educational experience are not subject to the exhaustion requirement, even if the facts underlying the claims could also constitute a FAPE violation. See J.S., III ex rel. J.S. Jr. v. Hous. Cty. Bd. of Educ. , 877 F.3d 979, 986 (11th Cir. 2017) ("The complaint here specifically alleges that the School Board ‘allowed J.S. [ ] to be removed from his regular classroom, based on discriminatory reasons and for no purpose related to his education’ ... Although this claim could be brought as a FAPE violation for failure to follow J.S.’ IEP, we conclude that it is also cognizable as a separate claim for intentional discrimination under the ADA and § 504."); see also Doe ex rel. Roe v. Fulton Cty. Sch. Dist. , 2021 WL 1105617, at *9 (N.D. Ga. Mar. 23, 2021) ("[A]lthough Defendant's conduct may have also violated Plaintiff's IEP, the gravamen of Plaintiff's’ [sic ] complaint addresses the alleged unlawful intentional discrimination, sexual assaults, and rape that Doe was subjected to in violation of the ADA, § 504, and Title IX and the resulting personal damages she suffered. Accordingly, Plaintiff was not required to exhaust IDEA administrative remedies as a condition for bringing this legal action.") (citation omitted).
The Supreme Court has delineated a pair of hypothetical questions that courts should ask in determining whether a suit seeks relief for the denial of a FAPE: first, whether the claim could have been brought if the alleged conduct occurred at a public facility outside of a school (such as a public theater or library); and second, whether it could have been brought by an adult (such as an employee or visitor) at the school. Id. at 756-57 ; J.S., III , 877 F.3d at 986. Affirmative answers to these questions suggest that the gravamen of a complaint does not concern the denial of a FAPE. If the answer to these questions is no, then a complaint likely concerns a FAPE violation under the IDEA. See Fry , 137 S. Ct. at 756-57 ; Durbrow , 887 F.3d at 1190. Another factor to consider is the history of the proceedings and whether "a plaintiff has previously invoked the IDEA's formal procedures to handle the dispute – thus starting to exhaust the Act's remedies[.]" See Fry , 137 S. Ct. at 757 ; J.S., III , 877 F.3d at 986.
Here, the gravamen of Plaintiff's Complaint is not that Defendants’ conduct violated his IEP or BIP, resulting in a denial of a FAPE, as Defendants argue. Rather, the gravamen of the Complaint as a whole is the alleged "almost daily" physical and verbal abuse and unmerited corporal punishment Plaintiff endured at the hands of Pollard and Lesesne, and the failure of Principal Goerner and RCSD to appropriately intervene or prevent the abuse. (Compl. ¶ 2.) Plaintiff alleges that Lesesne sprayed and/or dumped water on him, physically threatened him with a stick-like object, threw shoes at him, and "us[ed] his foot to pin [him] on the ground." (Id. ¶¶ 68-70.) Plaintiff further alleges that Pollard and Lesesne referred to him and another disabled student as "Frick and Frack" while "disciplining, threatening, intimidating, and abusing" the students. (Id. at ¶ 67.) Plaintiff does not allege that all or most of these incidents occurred as a form of discipline and states that "Pollard and/or Lesesne physically and verbally abused disabled, non-verbal students, including [Plaintiff], because they were vulnerable, defenseless children who they knew were unable to report the abuse, advocate for themselves, or otherwise confront them for such conduct." (Id. at ¶ 121.) Under Fry ’s analysis, Plaintiff's allegations as a whole would be actionable whether the conduct occurred at a non-school public facility or against adults. See Fry , 137 S. Ct. at 756 ("[S]uppose that a teacher, acting out of animus or frustration, strikes a student with a disability, who then sues the school under a statute other than the IDEA. Here too, the suit could be said to relate, in both genesis and effect, to the child's education. But ... we think ... that the substance of the plaintiff's claim is unlikely to involve the adequacy of special education – and thus is unlikely to require exhaustion.").
While "Frick and Frack" may not immediately be understood as a derogatory phrase, it may hold derogatory connotations when used in this context. Frick and Frack were a "famous ice-skating comedy team" known for their "slapstick" routines. Dennis Hevesi, Werner Groebli, Ice Skating's Frick, Dies at 92, N.Y. Times (Apr. 23, 2008), https://www.nytimes.com/2008/04/23/arts/dance/23groebli.html. Certainly, a jury could reasonably find that referring to two disabled students by the name of a comedy team known to be "silly" could be derogatory or demeaning in nature. Id.
Based on Plaintiff's allegations of abuse and assault that could have been legally actionable if these actions had occurred in another public forum or been carried out against a vulnerable adult visiting the school, the Court concludes that the gravamen of Plaintiff's Complaint addresses the alleged unlawful intentional discrimination and abuse that Plaintiff was subjected to in violation of the ADA, § 504, and § 1983, and the personal damages he suffered. Although Plaintiff could have brought a claim for a FAPE violation in connection with some of his claims alleging that Defendants failed to properly implement his IEP and improperly restrained him, his claims are also cognizable under the ADA, § 504, and § 1983. See Fry , 137 S. Ct. at 756 ; J.S., III , 877 F.3d at 986 ; Roe v. Fulton Cnty. Sch. Dist. , 2021 WL 1105617, at *9.
Tellingly, Plaintiff does not request any changes to his IEP or BIP. Plaintiff instead states that his "regression and lack of progress towards the goals laid out by his IEP are not the result of inadequacy of the special education curriculum at GRDMS, nor institutional failure to reasonably accommodate [his] disabilities. Rather, the regression and lack of progress are the direct result of the unconstitutional abuse ... by Pollard and/or Lesesne and the deliberate indifference of Pollard, Goerner, and RCPS." (Compl. at ¶¶ 177-78 (emphasis added)); see Hurd v. Clark Cnty. Sch. Dist. , 2017 WL 4349231, at *4 (D. Nev. Sept. 29, 2017) (holding that claims by students against their teacher did not seek relief for FAPE denial and were not subject to IDEA's administrative exhaustion requirement based on allegations that they were subjected to a "litany of physical and verbal abuse," including being pushed and grabbed, forcefully slapped and hit, shoved into a wall, and stepped on and kicked as they lay on the floor, even where the students claimed that they "were unable to enjoy the benefits of education" because that claim's focus was "on the impact of the alleged abuse and not the failure to provide a FAPE").
B. § 1983 Excessive Use of Force Claims
Plaintiff's Complaint alleges constitutional substantive due process claims, pursuant to 42 U.S.C. § 1983, against RCSD and each of the three Individual Defendants. To state a claim under § 1983, a plaintiff must allege the that individuals or entities acting under color of state law violated the plaintiff's rights guaranteed under federal constitutional or statutory provisions. Doe v. Sch. Bd. of Broward Cnty. , 604 F.3d 1248, 1265 (11th Cir. 2010).
In this case, it is undisputed that Defendants were acting under color of state law in regard to conduct alleged by Plaintiff.
1. Rockdale County School District
RCSD contends that the § 1983 excessive use of force claims must be dismissed against it because (1) Plaintiff has not alleged a cognizable due process violation and/or (2) Plaintiff has not established that RCSD had an official policy, practice, or custom that caused a violation of his constitutional rights.
a. Substantive Due Process Violation
"[C]laims involving physical abuse in a school setting are analyzed exclusively under the substantive due process component of the Fourteenth Amendment, which encompasses a fundamental right to be free from excessive corporal punishment at the hands of public school officials." Harris ex rel. Davis v. Rockdale Cnty. Sch. Dist. , 2020 WL 5639684, at *5 (N.D. Ga. Aug. 12, 2020) ; C.H. ex rel. Hilligoss v. Sch. Bd. of Okaloosa Cnty. , 2019 WL 4774042, at *6 (N.D. Fla. Sept. 30, 2019) ; see also Williams v. Fulton Cnty. Sch. Dist. , 181 F. Supp. 3d 1089, 1130 (N.D. Ga. 2016) (dismissing a Fourth Amendment claim concerning physical abuse in school because "[t]he Eleventh Circuit appears to view claims of abuse in the school setting solely through the lens of the Fourteenth Amendment"). To state a substantive due process claim, the student's allegations of excessive corporal punishment must amount to "arbitrary, egregious, and conscience-shocking behavior." Hatfield v. O'Neill , 534 F. App'x. 838, 844 (11th Cir. 2013). While corporal punishment "typically refers to the application of physical force by a school official to punish a student for some type of school-related misconduct," the standard for analyzing the application of force in schools is always the same, regardless of student misconduct. See id.
Claims based on excessive corporal punishment "have an objective and a subjective component, both of which must be met before a school official may be subject to liability." Neal ex rel. Neal v. Fulton Cnty. Bd. of Educ. , 229 F.3d 1069, 1075 n.3 (11th Cir. 2000). The objective component requires a court to consider the "totality of the circumstances" in determining "whether the amount of force used is obviously excessive." Id. at 1075. Neal identifies a number of factors that courts must consider: (1) the need to apply corporal punishment to the student; (2) the relationship between the need for punishment and the amount of punishment administered; (3) the extent of the injury inflicted; and (4) whether or not a student is disabled. Id. ; T.W. ex rel. Wilson v. Sch. Bd. of Seminole Cnty. , 610 F.3d 588, 600 (11th Cir. 2010) ; Williams , 181 F. Supp. 3d at 1133. The subjective component focuses on whether the teacher intended to cause harm. Neal , 229 F.3d at 1075 n.3. In particular, a court examines whether the teacher's conduct creates an inference of subjective malice. Hatfield , 534 Fed. App'x. at 847. However, the Eleventh Circuit has noted, "if the use of force was objectively reasonable — that is, if it ‘was not excessive as a matter of law and was a reasonable response to the student's misconduct’ — then the subjective intent of the school official is unimportant." T.W. , 610 F.3d 588 at 600.
The Objective Component
Plaintiff has alleged sufficient facts to satisfy the objective component of the Neal test. Plaintiff alleges a semester-long pattern of abuse targeted at him—a non-verbal, autistic student who could not report his abuse to his parents. Plaintiff alleges that Pollard and/or Lesesne threw shoes at him, sprayed and/or poured water on him, and called him inappropriate names while threatening to abuse him, and that Lesesne pinned him down to the ground with his foot. (Compl. ¶¶ 68-70, 91.) According to Plaintiff, these actions were not triggered by or taken in response to a behavioral disruption or a pedagogic need. Plaintiff instead alleges that the "excessive abuse" served "no legitimate government interest." (Id. ¶ 123.) Compare T.W. , 610 F.3d at 600 (holding that a teacher's physical restraint of a student served some pedagogical objective when the student disobeyed instructions, called the teacher names, threatened to have the teacher arrested, swung his hands at the teacher, and refused to stop scratching an insect bite that had become infected), with Hatfield , 534 Fed. App'x. at 845-46 (holding that the need for a teacher to strike a defenseless child in the head was nonexistent because the teacher was not acting in self-defense, or with a disciplinary purpose, or in an attempt to protect the child) and B.M. ex rel. M.F. v. Thompson , No. 3:13-CV-13-J-12 JBT, 2013 WL 4547344, at *5 (M.D. Fla. Aug. 27, 2013) (denying a defendant's motion to dismiss when there were allegations that the teacher's throwing a pencil at a student's head was unprovoked). Accordingly, Plaintiff has plead plausible facts that suggest that there was a nonexistent need for school personnel's use of violent force and that the conduct was "tantamount to arbitrary, egregious, and conscience-shocking behavior." See Neal ex rel. Neal , 229 F.3d at 1075 ; Kirkland ex rel. Jones v. Greene Cnty. Bd. of Educ. , 347 F.3d 903, 904-05 (11th Cir. 2003) ; compare T.W. , 610 F.3d 588 at 601 (affirming district court's determination at summary judgment stage that restraint of autistic student by pinning his arms behind his back was not excessive given student's refusal to leave classroom, use of vulgarities, and threats to have teacher arrested) with M.S. ex rel. Soltys v. Seminole Cnty. Sch. Bd. , 636 F. Supp. 2d 1317, 1324 (M.D. Fla. 2009) (finding it disproportionate to slam an autistic student on a desk for the failure to pay attention or control bodily functions because the conduct being addressed "was that of the uncontrollable behavior of a special needs student").
RCSD cites to Dacosta v. Nwachukwa , 304 F.3d 1045 (11th Cir. 2002) — wherein a college student's substantive due process claims were dismissed after she alleged that her teacher slammed a door in her face, ultimately causing her arm to shatter the glass window on the door, and then "shoved her face" — to suggest that Plaintiff's due process claim does not reach "conscience-shocking" levels. However, the student's due process claim in Dacosta was not dismissed because it did not reach "conscience-shocking" levels. Instead, the Court stated: "Dacosta has alleged intentional battery—a tort under Georgia law. Her right to be free from such a battery is conferred by Georgia law and protected by the Georgia courts. Dacosta cannot point us to any authority suggesting that such conduct, malicious as it may have been, amounted to a deprivation of her rights under the U.S. Constitution, as opposed to a deprivation of her rights under Georgia law ... Dacosta [ ] cannot point to any authority holding that a battery perpetrated by a college teacher upon an adult student rose to the level of a substantive due process violation." Id. at 1048-49 (emphasis added). Dacosta is accordingly inapposite because it involves allegations of assault and battery against an adult college student who did not suffer a disability which rendered her unable to protect herself in any normal fashion and which would be redressable under state tort law.
Finally, although Plaintiff has not alleged that he suffered an immediate serious bodily injury inflicted in one specific assault, he does allege that his ongoing abuse in the classroom caused such acute harm and anxiety that he dropped from 110 pounds to approximately 65 pounds in connection with the trauma suffered from his treatment. (Compl. ¶ 96.) Plaintiff further alleges that he now suffers from permanent and severe anxiety and is being treated with prescription drugs. (Compl. at ¶ 2.); see T.W. , 610 F.3d at 601 (students "who suffer from severe developmental disabilities, are particularly vulnerable to psychological harm, and psychological injuries can be as traumatic, if not more traumatic, than physical injuries"); B.M. , 2013 WL 4547344, at *5 (explaining that allegations of a disabled child's post-traumatic disorder caused by being hit with a pencil were severe enough to "state a plausible claim for relief in that they raise a reasonable expectation that discovery will reveal evidence sufficient to establish a violation of [the student's] constitutional rights"); Williams , 181 F. Supp. 3d at 1135.
Additionally, Plaintiff alleges that he suffered regression in school as a result of his treatment. (Id. at ¶ 171-72.)
On balance, the totality of the alleged facts, taken as true and viewed in the light most favorable to Plaintiff, satisfy the objective component of the substantive due process claim for excessive corporal punishment.
The Subjective Component
The Court also finds that Plaintiff plausibly stated a claim that Pollard and Lesesne subjectively intended "to use [an] obviously excessive amount of force in circumstances where it was foreseeable that serious bodily injury could result." See Neal , 229 F.3d at 1075 n.3. The Eleventh Circuit has instructed district courts assessing the intent prong of substantive due process claims to consider whether a defendant's conduct creates an inference of malice. Hatfield , 534 Fed. Appx. at 847. For example, if a teacher makes derogatory comments during the alleged abuse, that tends to weigh in favor of finding malice. Id. (concluding a teacher's actions were inspired by malice because she struck a disabled student while calling him "fat-ass," "tons of fun," and "retard" and exclaimed the student was "sucking up the oxygen"). In addition, if the school employee's acts are part of a pattern of abusive conduct, this too suggests the presence of malice. M.S. , 636 F. Supp. 2d at 1325 ; see also Kirkland , 347 F.3d at 904 (explaining that a principal's conduct was intentional as he repeatedly struck a student, who was not acting in any threatening manner, with a metal cane). Finally, if the school employee's actions present a "foreseeable risk of serious bodily injury," this too suggests that the employee acted maliciously. See Kirkland , 347 F.3d at 904 (holding that a principal acted with intent as he repeatedly struck a student in the head with a metal cane, presenting a reasonably foreseeable risk of bodily injury).
The totality of Plaintiff's allegations here are sufficient to plausibly plead the requisite subjective intent and malice. According to the Complaint, Pollard and Lesesne performed repeated acts of abuse against Plaintiff and other disabled students, while referring to Plaintiff and a particular disabled student as "Frick and Frack" and other derogatory terms. Pollard and/or Lesesne threw things at Plaintiff, and Lesesne pinned Plaintiff down to the ground with his foot. Moreover, according to the Complaint, "Pollard's and Lesesne's force, abuse, and restraint ... [, which] was intentional, rampant and widespread, created an obvious foreseeable risk of serious bodily and psychological injury and, indeed, caused serious and permanent injury" to a vulnerable student who was unable to report his maltreatment. (Compl. ¶ 124.) These allegations, together with the alleged lack of legitimate school interest in subjecting Plaintiff to unwarranted, abusive physical force and psychologically injurious taunting, plausibly support an inference that Pollard and Lesesne's conduct was intentional and malicious and inflicted palpable serious harm. Accordingly, Plaintiff has pled sufficient facts to allege a substantive due process claim under the U.S. Constitution.
b. Rockdale County School District's Monell Liability
Plaintiff advances two primary theories of district liability: (1) RCSD maintained a custom of inaction and indifference in responding to complaints of student physical abuse and failed to train RCSD employees in the proper handling of such abuse and (2) RCSD final policymakers did nothing to stop Pollard's and Lesesne's abuse of students, despite having been alerted to such abuse. RCSD contends in its Motion to Dismiss that Plaintiff has failed to allege adequate specific facts that support either theory of district liability. The Court first addresses liability under the "custom of inaction" theory.
i. Custom of Inaction Theory of Liability
"A municipal entity ... cannot be held liable under § 1983 ‘simply because its agent causes an injury, even a constitutional injury.’ " Hilligoss , 2019 WL 4774042, at *16 (citing Gilmere v. City of Atlanta , 737 F.2d 894, 902 (11th Cir. 1984) ). However, municipalities (or school districts) may be sued for "constitutional deprivations visited pursuant to governmental ‘custom’; this is true even when such custom has not received formal approval through the [municipality's] official decisionmaking channels." Monell v. Dept. of Soc. Servs. , 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A custom is a "widespread practice that, ‘although not authorized by written law or express municipal policy, is so permanent and well settled as to [have] ... [the] force of law.’ " Griffin v. City of Opa-Locka , 261 F.3d 1295, 1308 (11th Cir. 2001).
In order to state a § 1983 claim against a school district for its "custom of inaction" in responding to complaints of abuse by employees, a plaintiff must plead: (1) the existence of a persistent pattern of abuse by school employees that (2) high level school system and board officials were aware of and then (3) tacitly approved or deliberately ignored the abuse, such that their inaction can be said to be a custom of deliberate indifference to such abuse, and (4) this custom of deliberate indifference was a "moving force" behind the violation of the student's constitutional rights. Williams , 181 F. Supp. 3d at 1121-22 ; see also Hackett v. Fulton Cnty. Sch. Dist. , 238 F. Supp. 2d 1330, 1365 (N.D. Ga. 2002).
Persistent Pattern of Abuse
Plaintiff must first allege that there was a persistent pattern of abuse because an isolated incident of wrongdoing is insufficient to establish a custom of ignoring such wrongdoing. McDowell v. Brown , 392 F.3d 1283, 1290-91 (11th Cir. 2004) (finding no basis for Monell liability where inmate could not point to more than one incident where jail's alleged understaffing led to an inability to transport an inmate in need of medical attention). While one or two incidents of abuse is generally insufficient to indicate a pattern, allegations of more incidents than that on a motion to dismiss may in some instances be sufficient, even if the acts were committed by one employee. The Eleventh Circuit in Doe v. School Board of Broward County, Fla. summarized this principle:
"It is well established in this circuit that supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates" unless the "supervisor personally participates in the alleged constitutional violation" or "there is a causal connection between actions of the supervising official and the alleged constitutional deprivation." Id. This requisite causal connection can be established in the following circumstances: (1) when a "history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so" or (2) when a supervisor's "improper custom or policy results in deliberate indifference to constitutional rights." Id. (internal quotation and citation omitted). For a history of abuse to be sufficiently widespread to put a supervisor on notice, the abuse must be "obvious, flagrant, rampant and of continued duration, rather than isolated occurrences."
Broward Cnty. , 604 F.3d at 1266 ; see also, Williams , 181 F. Supp. 3d at 1122 ; N.P. ex rel. Perillo v. Sch. Bd. of Okaloosa Cnty. , 2019 WL 4774037, at *8 (N.D. Fla. Sept. 30, 2019) ("Principal Vaughan argues that the three single complaints she received about Stillions's abuse ... were insufficient to put her on notice of a pattern of ongoing constitutional injury. The Court disagrees ... Giving N.P.’s allegations every reasonable inference ... they plausibly suggest Vaughan was on notice of a pattern of abuse by Stillions as ... (the third complaint to her), and that she responded to each complaint with indifference and inaction that could rise to a constitutional violation, especially in light of N.P.’s vulnerable status as a very young nonverbal, disabled child."); J.V. ex rel. Ortiz v. Seminole Cnty. Sch. Bd. , No. 04-cv-1889, 2005 WL 1243756, at *3 (M.D. Fla. May 25, 2005) (denying dismissal when school board had knowledge of a single teacher's repeated acts of abuse and still tried to transfer her; if proven, such allegations would "establish tacit authorization" by district); cf. Herndon v. Fagg , 2018 WL 8368659, at *7 (N.D. Ga. May 2, 2018) (finding that where Plaintiff only alleged one isolated incident of employee constitutional misconduct, Plaintiff's § 1983 claim required dismissal).
Here, Plaintiff alleges a semester-long pattern of abuse by Pollard and Lesesne against several disabled students, resulting in ongoing verbal complaints to GRDMS administrators and RCSD human resources personnel and at least three written reports to Principal Goerner and GRDMS assistant principals. (E.g. , Compl. ¶¶ 73-88.) This is adequate to satisfy the pattern of abuse element at the motion to dismiss stage.
RCSD's Knowledge
The school district must also be on some form of notice of the persistent abuse in order to impose Monell liability. See Depew v. City of St. Marys , 787 F.2d 1496, 1499 (11th Cir. 1986). That knowledge may come from actual notice or may be imputed via constructive notice through notice to an appropriate senior official. See City of St. Louis v. Praprotnik , 485 U.S. 112, 130, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) ("[i]t would ... be a different matter if a series of decisions by a subordinate official manifested a "custom or usage" of which the supervisor must have been aware"); Young v. City of Augusta ex rel. DeVaney , 59 F.3d 1160, 1173 (11th Cir. 1995).
Here, Plaintiff has not sufficiently alleged that RCSD or an appropriate senior official had notice of the persistent abuse of disabled students at GRDMS or within RCSD. Instead, Plaintiff offers generalized descriptions of complaints of abuse and conclusory statements relating to RCSD's knowledge of the abuse. Plaintiff states in a conclusory fashion that "[p]rior to D.D.T.’s assignment to her classroom, Pollard had been the subject of one or more complaints to [RCSD] and/or GRDMS administrators about her treatment of special education students, to wit, her refusal to utilize special needs equipment for students which required her to physically move the students." (Compl. ¶ 51.) Additionally, Plaintiff alleges that "[upon information and belief, prior to being assigned to D.D.T.’s classroom, Lesesne had been the subject of one or more complaints to [RCSD] and/or GRDMS administrators about his treatment of special education students, including verbal abuse, physical abuse, and intimidating and threatening behavior." (Id. ¶ 53.)
These allegations are insufficient under § 1983 to create a reasonable inference that RCSD had knowledge of the persistent abuse that led to violations of Plaintiff's rights. The allegations do not reveal who at RCSD received complaints concerning the abuse of disabled students by Lesesne and/or Pollard. It is also unclear when the alleged abuse and related complaints occurred. Plaintiff does not attach any copies of the complaints made to RCSD officials that might flesh out the allegations. As pled, Plaintiff's allegations are insufficient to create a reasonable inference that RCSD board members or executive officers were put on notice of the pattern of abuse of students with disabilities leading to the alleged violations of Plaintiff's constitutional rights in this case.
Plaintiff also makes vague allegations regarding K.W.’s early verbal complaints of abuse to RCSD human resources personnel and GRDMS administrators. Plaintiff does not provide any detail regarding the type of abuse of which K.W. complained and does not specify who in the human resources department at RCSD received K.W.’s complaints. Plaintiff also does not allege that RCSD human resources personnel or GRDMS administrators reported any claims of abuse to RCSD's Superintendent. Contra N.P. ex rel. Perillo , 2019 WL 4774037, at *13 (finding that Plaintiff's allegation that the school district superintendent, the human resources assistant superintendent, and the school principal received reports that multiple disabled students were being abused by two special education instructors at the relevant school was sufficient to plead the school board's constructive knowledge of ongoing abuse of disabled students.). It is understandable that Plaintiff believes that RCSD had knowledge of Pollard and Lesesne's history of abusing disabled students because of K.W.’s complaints to the school principal. But without further specificity regarding the information provided to identified high level RCSD administrators or board members in the 2018-19 school year or preceding years about the ongoing abuse of students with disabilities or D.D.T., Plaintiff has not plausibly pled an adequate factual basis of his contention that such RCSD officials were on actual or constructive notice.
The Court need not reach the third and fourth prongs of the § 1983 "custom of inaction" inquiry because Plaintiff's failure to adequately allege RCSD official's knowledge of Pollard and Lesesne's and/or other teachers’ pattern of abusing disabled students forecloses Plaintiff's deliberate indifference claim. However, the Court recognizes that Plaintiff may ultimately be able to amend his Complaint to clarify and amplify his allegations against RCSD with more specific allegations supporting Plaintiff's claim that (1) RCSD high level administrators and officials knew of a persistent pattern of abuse by Lesesne and Pollard and/or other special education teachers, and (2) maintained a de-facto custom and practice of inaction in handling the abuse of students with disabilities generally and/or students instructed by Pollard and Lesesne. For that reason, the Court authorizes Plaintiff to file an amended complaint within forty-five (45) days of the entry of this Order. If Plaintiff chooses to amend his Complaint, Plaintiff should be specific in alleging which particular individuals or entities were aware of prior complaints of Pollard and Lesesne's abusive conduct, when and how they were informed of the abuse, and other relevant specific details. Plaintiff may attach copies of any written complaints made to RCSD officials or GRDMS administrators to the amended complaint under seal, if such contain confidential student information.
Plaintiff should identify the positions held by the individuals identified.
Plaintiff is also DIRECTED to redact the names of students or to identify students by their initials.
ii. Final Policymaker Theory of Liability
Plaintiff also argues that RCSD may be held liable under a final policymaker theory of liability. "A municipal governing body may be held liable for acts or policies of individuals to whom it delegated final decisionmaking authority in a particular area," such that the individuals have been vested with ultimate, non-reviewable decision-making authority for the challenged action. Holloman ex rel. Holloman v. Harland , 370 F.3d 1252, 1291 (11th Cir. 2004) ; see also Scala v. City of Winter Park , 116 F.3d 1396, 1399 (11th Cir. 1997). "To determine if someone is a final policy maker, [courts] look not only to ‘state and local positive law,’ but also ‘custom and usage having the force of law.’ " Holloman , 370 F.3d at 1292.
In Georgia, "[t]he control and management of a county school district is in the county board of education under the constitution and laws of th[e] State ... and the county board is without power to delegate its authority to manage the affairs of the school district." State Bd. of Educ. v. Elbert Cnty. Bd. of Educ. , 112 Ga.App. 840, 146 S.E.2d 344, 348 (1965) ; OCGA § 20-2-50 ; Chaney v. Fayette Cnty. Pub. Sch. Dist. , 977 F. Supp. 2d 1308, 1319 (N.D. Ga. 2013). The school superintendent is the "executive officer" of the school board, and thus charged with carrying out its policies. Ga. Const., Art. VIII, § 5, ¶ iii. While the school board retains the power to hire and fire educators, see Ga. Const., Art. VIII, § 5, ¶ ii ; O.C.G.A. § 20–2–940, the superintendent has a predominant role in the process. Williams , 181 F. Supp. 3d at 1125.
First, the superintendent often functions as a gatekeeper over personnel decisions because "[a]ll teachers, principals, other certificated professional personnel, and other personnel of a local unit of administration shall be employed and assigned by its governing board on the recommendation of its executive officer." O.C.G.A. § 20–2–211 (2009). Moreover, a superintendent in fact has the power and discretion to temporarily relieve teachers from duty under sufficiently serious circumstances. O.C.G.A. § 20–2–940(g). Finally, the superintendent may issue a formal letter of reprimand to a teacher (which the teacher may appeal to the school board). O.C.G.A. § 20–2–944. For these reasons, a superintendent, as well as the school board, may qualify as a final decisionmaker for the purposes of establishing Monell liability. See Williams , 181 F. Supp. 3d at 1126 (relying in part on Leslie v. Hancock Cnty. Bd. of Educ. , 720 F.3d 1338, 1349 (11th Cir. 2013) to conclude that "superintendents may serve, depending on the factual circumstances, as final policymakers with respect to reporting policies for child abuse and the hiring and firing of teachers who allegedly abuse students").
The Court takes notice "that the normal policy and practice in Georgia is for school boards to consider and hold hearings regarding the hiring and firing of personnel based upon the recommendation of the superintendent, even if, as a technical matter, the board retains the constitutional authority to independently initiate the hiring and firing of personnel." Williams , 181 F. Supp. 3d at 1126 ; see, e.g., Doherty v. Wilson , 356 F. Supp. 35, 37 (M.D. Ga. 1973) (finding, after an evidentiary hearing, that a Georgia "board's general practice has been to defer to the judgment of the superintendent regarding the hiring of teachers").
In addition to superintendents and school boards, a principal can act as a final policymaker for the purpose of Monell liability when the principal's disciplinary decisions are not subject to meaningful board review. See Holloman , 370 F.3d at 1293 (holding that where a school board did not "integrat[e] itself into the pre-[disciplinary] review process, the Board necessarily bound itself to [a principal's] decisions" and that "the School Board's delegation of effectively unreviewable corporal punishment authority constitute[d] a ... basis upon which [the Court found] that [the principal] was a final decision maker.").
The Court takes notice that under Georgia law, the school system superintendent is authorized to recommend the discharge, demotion, renewal, or appointment of teachers. However, as a pragmatic matter, the Court takes note that superintendents typically act upon the recommendation of a principal for the specific school where the teacher is assigned.
At the motion to dismiss stage, it is not necessary for Plaintiff to precisely identify who acted as RCSD's final policymaker because "identifying and proving that a final policymaker acted on behalf of a municipality is ‘an evidentiary standard, and not a pleading requirement.’ " Hoefling v. City of Miami , 811 F.3d 1271, 1280 (11th Cir. 2016). Nevertheless, Plaintiff must properly allege that there was a final policymaker whose actions may be imputed to RCSD. In this case, Plaintiff alleges that K.W. complained about Pollard and Lesesne's abuse to RCSD central office human resources personnel. While the RCSD Board certainly has final policymaking authority and the Superintendent likely as well, there are no facts in Plaintiff's Complaint to indicate that the board's human resources department either relayed this complaint information, or if so, what information was relayed to them. Nor does Plaintiff provide concrete information that plausibly indicates that RCSD's Superintendent prior to the 2018-2019 school year was made aware of the complaints of abuse against Pollard and Lesesne or their pattern of conduct or made an actual decision to refrain from disciplining Pollard and Lesesne or moving forward on their discharge.
By contrast, Plaintiff does allege that several RCSD employees, including Principal Goerner and multiple GRDMS vice principals, were aware of reports that Pollard and Lesesne were abusing disabled children but made the decision to not discipline or reprimand the teacher and paraprofessional. Plaintiff even identifies Principal Goerner as an RCSD official with final policymaking authority. (Compl. ¶ 159.) However, Plaintiff offers no concrete facts to suggest that Principal Goerner or the GRDMS vice principals were vested with final policymaking authority. Plaintiff's conclusory allegations are therefore not sufficient to create a reasonable inference that they were final decisionmakers regarding teacher discipline.
Viewing Plaintiff's Complaint as a whole, Plaintiff has not alleged facts sufficient to state a claim against RCSD under the final policymaker theory of Monell liability. Still, the Court has granted Plaintiff leave to amend his Complaint and recognizes that Plaintiff may ultimately be able to proceed on a § 1983 claim against RCSD under a final policymaker theory of liability if the amended complaint provides more specific allegations that a final decision maker (e.g. , the RCSD Superintendent), acting on behalf of RCSD, made the decision not to take disciplinary action or initiate removal proceedings against Pollard and Lesesne despite his or her knowledge of Pollard and Lesesne's alleged abuse of disabled students.
2. Goerner, Pollard, and Lesesne
The Individual Defendants argue for dismissal of the § 1983 claims against them based on the judicial doctrine of qualified immunity. Specifically, the Individual Defendants contend that "the alleged constitutional right at issue was not clearly established" and that the Individual Defendants were not on notice that their alleged conduct violated Plaintiff's constitutional rights, thus relieving the Individual Defendants of any potential liability pursuant to § 1983. (Defs.’ Br., Doc. 12-1 at 18; Defs.’ Reply, Doc. 23 at 10-11.)
Public officials sued in their individual capacities are entitled to qualified immunity when their discretionary actions do not violate "clearly established federal statutory or constitutional rights of which a reasonable person would have known." Keating v. City of Miami , 598 F.3d 753, 762 (11th Cir. 2010) ; see N.P. ex rel. Perillo , 2019 WL 4774037, at *10. Plaintiff can only overcome the qualified immunity defense by showing that (1) a defendant's conduct violated a constitutional right and (2) this right was "clearly established at the time of the violation." Townsend v. Jefferson Cnty. , 601 F.3d 1152, 1158 (11th Cir. 2010).
"The right to be free from arbitrary and excessive corporal punishment in a school context is [ ] clearly established under Supreme Court and Eleventh Circuit precedent, as is the right to be free from intentional and arbitrary disparate treatment on account of disability." N.P. ex rel. Perillo , 2019 WL 4774037, at *11. As early as 2000, in Neal , the Eleventh Circuit "join[ed] the vast majority of Circuits in confirming that excessive corporal punishment, at least where not administered in conformity with a valid school policy authorizing corporal punishment ... may be actionable under the Due Process Clause when it is tantamount to arbitrary, egregious, and conscience-shocking behavior." 229 F.3d at 1075 ; see also Ingraham v. Wright , 430 U.S. 651, 673-76, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) ("It is fundamental that the state cannot hold and physically punish an individual except in accordance with due process of law ... [W]here school authorities, acting under color of state law, deliberately decide to punish a child for misconduct by restraining the child and inflicting appreciable physical pain, we hold that Fourteenth Amendment liberty interests are implicated.") (citations omitted).
It is also well established in the Eleventh Circuit that supervisory officials are liable under § 1983 for the unconstitutional acts of their subordinates when "there is a causal connection between actions of the supervising official[s] and the alleged constitutional deprivation." Broward Cnty. , 604 F.3d at 1266 (citing Hartley v. Parnell , 193 F.3d 1263, 1269 (11th Cir. 1999) ). The requisite causal connection is established (1) when a "history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so" or (2) when a supervisor's "improper custom or policy results in deliberate indifference to constitutional rights." Id. ; see also N.P. ex rel. Perillo , 2019 WL 4774037, at *11.
A reasonable teacher or paraprofessional would have known that arbitrary, excessive, and unwarranted corporal punishment would violate a student's constitutional rights. Moreover, a reasonable principal or supervisory school official would have known that the alleged physical abuse of nonverbal, disabled students, imposed without a real disciplinary justification or so as to protect the student from harm, in combination with the failure of supervisory school officials to address and prevent such abuse would be contrary to clearly established law governing the use of force against students in public schools. See, e.g., N.P. ex rel. Perillo , 2019 WL 4774037, at *11 (finding that "[a] reasonable supervisory school official would have known that the alleged multi-year history of physical abuse of nonverbal ESE [("exceptional students education")] students, and the abject failure of supervisory school officials to address and prevent that abuse, would result in a violation of the students’ constitutional rights.").
Here, taking the allegations in the Complaint as true as required at this early stage, a reasonable teacher or paraprofessional would have known that the conduct alleged violated Plaintiff's constitutional rights. The question of whether Plaintiff's abuse allegations can be substantiated presents "another issue for another time." Williams , 181 F. Supp. 3d at 1129. But if Plaintiff's allegations are true, he has pled enough facts to overcome an immunity defense in the factual and legal context of this case at this initial stage of the proceedings. However, more will be required as proof at the summary judgment stage.
C. § 1983 Deprivation of Education and Equal Protection Claims
RCSD also moves to dismiss Plaintiff's equal protection (Count II) and deprivation of education (Count III) claims under § 1983.
In Count II, Plaintiff alleges that he suffered intentional, systematic physical and verbal abuse due to his membership in an identifiable class of non-verbal, disabled students. (Compl. ¶ 153.) Plaintiff explains that he and other non-verbal, disabled students were subject to disparate treatment specifically because they lacked the ability to speak out against, report, or otherwise prevent their discriminatory maltreatment. (Id. ¶154.) Despite this alleged discrimination, Plaintiff alleges that RCSD failed to establish, implement, or enforce policies to protect students with disabilities and maintained a custom of allowing discrimination against and abuse of non-verbal, disabled students. (Id. ¶ 156-57.)
In Count III, Plaintiff further alleges that he was deprived of his education due to his membership in the protected class of disabled students and persistently abused, as alleged in both the Complaint's factual allegations and preceding Counts. (Id. ¶ 166.) In particular, Plaintiff states that he regressed educationally and humanly as a result of his treatment and was essentially compelled to leave GRDMS in October of the next school year as a result of his abusive and discriminatory maltreatment. (Id. ¶ 174-77.) He further alleges that, following his withdrawal from GRDMS, he was not able to immediately enroll in a new privately run educational program for autistic students because of these circumstances, thus leaving a gap in his education. (Id. ¶¶ 176, 180.) For all these reasons, Plaintiff contends that he was deprived of his Fourteenth Amendment right to due process and equal protection right to receive a public education pursuant to 42 U.S.C. § 1983.
RCSD contends that Plaintiff's Complaint does not adequately allege a policy or custom leading to the school district's alleged violations of Plaintiff's and other non-verbal, disabled students’ Fourteenth Amendment rights to due process, equal protection, and an equal education. Plaintiff provides only generalized responses to RCSD's motion to dismiss these specific claims.
Considering the allegations as a whole, Plaintiff has not alleged sufficient specific facts to maintain viable claims of an alleged systemic custom and practice under Counts II and III. Plaintiff pled little to no specific facts concerning the alleged systematic, disparate treatment of non-verbal, disabled students at the hands of RCSD. Instead, Plaintiff's Complaint offers particular facts concerning Plaintiff and another disabled student and provides only generic statements regarding the broader class of non-verbal, disabled students. Plaintiff also does not provide any specific facts to support his allegations about the disparate treatment of disabled students in comparison to non-disabled students, or verbal students with disabilities in comparison to non-verbal students with disabilities. For all of these reasons, Plaintiff has not properly alleged facts sufficient to support a plausible inference that Defendant RCSD maintained the unconstitutional custom and practices alleged in Counts II and III that would give rise to Plaintiff's claims in these Counts.
Accordingly, Plaintiff's equal protection, due process, and deprivation of education constitutional claims asserted in Counts II and III against RCSD are DISMISSED WITH PREJUDICE . To the extent that Plaintiff alleges injuries and treatment in these dismissed counts that can be recognized under Count I or under Count V (ADA claim), he may seek such relief through that avenue.
D. ADA and Section 504 Claims
Additionally, RCSD moves to dismiss the remainder of Plaintiff's federal claims for violations of the ADA and Section 504, arguing that Plaintiff has not sufficiently alleged RCSD's deliberate indifference to Pollard and Lesesne's intentional discrimination against Plaintiff on the basis of his disability.
"Title II of the ADA and § 504 of the Rehabilitation Act forbid discrimination on the basis of disability in the provision of public services." J.S., III , 877 F.3d at 985. Discrimination claims under the ADA and the Rehabilitation Act are governed by the same standards. Id. ; see also Cash v. Smith , 231 F.3d 1301, 1305 (11th Cir. 2000). To state a claim under either Title II or Section 504, a plaintiff must sufficiently plead "(1) that he is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that the exclusion, denial of benefit, or discrimination was by reason of the plaintiff's disability." Silberman v. Miami Dade Transit , 927 F.3d 1123, 1134 (11th Cir. 2019) (quoting Bircoll v. Miami-Dade Cnty. , 480 F.3d 1072, 1083 (11th Cir. 2007) ).
Usually, a Title II or § 504 violation only entitles a plaintiff to injunctive relief. Id. (citing Silva v. Baptist Health S. Fla., Inc. , 856 F.3d 824, 831 (11th Cir. 2017) ). In order for a plaintiff to receive compensatory damages, he "must clear an additional hurdle: he must prove that the entity that he has sued engaged in intentional discrimination, which requires a showing of ‘deliberate indifference.’ " Id. (quoting Liese v. Indian River Cnty. Hosp. Dist. , 701 F.3d 334, 348 (11th Cir. 2012) ). In the instant case, Plaintiff seeks monetary damages. RCSD does not appear to contest whether Plaintiff has adequately stated a claim under Title II or Section 504, but rather that Plaintiff cannot show "deliberate indifference" by the school district. (See Defs.’ Br., Doc. 12-1 at 9) ("Plaintiff has not pled a viable disability discrimination claim because he has not shown that RCSD itself was deliberately indifferent ... Plaintiff has not alleged that any RCSD official who knew of their conduct failed to respond to it.").
The Eleventh Circuit, in Silberman , outlined the deliberate indifference standard in this context:
Deliberate indifference ... is an exacting standard. It requires proof that the defendant knew that harm to a federally protected right was substantially likely and ... failed to act on that likelihood. Moreover, in order to hold a government entity liable, the plaintiff must demonstrate that an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the entity's behalf had actual knowledge of discrimination in the entity's programs and failed adequately to respond. To qualify, that official must be high enough up the chain-of-command that his or her acts constitute an official decision by the entity not to remedy the misconduct.
Silberman , 927 F.3d at 1134 (citations omitted) (internal quotation marks and brackets omitted).
1. Rockdale County School District's Knowledge
In this case, Plaintiff alleges that RCSD knew of Pollard and Lesesne's intentional discrimination against him based on his disability (and thus knew that "harm to [his] federally protected right was substantially likely") because there were (1) ongoing verbal complaints to RCSD human resources personnel and GRDMS administrators and (2) multiple written complaints to Principal Goerner, three GRDMS assistant principals, and GRDMS's lead teacher concerning Plaintiff's maltreatment. (Compl. ¶¶ 66-74, 81-84); Silberman , 927 F.3d at 1134. RCSD does not contest the sufficiency of Plaintiff's allegation of RCSD's knowledge. (See Defs.’ Br. at 7-10) ("Plaintiff has not alleged that any RCSD official who knew of their conduct failed to respond to it. On the contrary, his own allegations show that RCSD immediately responded to all of K.W.’s complaints about Pollard and Lesesne."); (Defs.’ Reply at 3-5.) On the issue of whether RCSD knew that harm to Plaintiff's federally protected rights was substantially likely, the Eleventh Circuit's decision in J.S., III ex rel. J.S. Jr. v. Hous. Cnty. Bd. of Educ. is instructive. 877 F.3d 979 (11th Cir. 2017). In that case, the Eleventh Circuit considered whether a school board could be held liable for intentional discrimination against a student and whether an "appropriate person" had notice of the discrimination. The Eleventh Circuit defined appropriate person as, "at a minimum, an official of the recipient entity with authority to take corrective action to end the discrimination." Id. at 987. The Court explained that the official "with notice ... must be high enough up the chain-of-command that his or her acts constitute an official decision by the school district itself not to remedy the misconduct." Id.
The J.S., III Court held that a jury could find a school principal to be an appropriate person with notice sufficient to hold the school board liable for discrimination. It explained that a principal, "as the highest-ranking school official on site at the school, [is] equipped with many ... means of deterring or stopping ... harassment of students, such as admonishing the teacher, conducting a thorough preliminary investigation, swiftly reporting the abuse, and monitoring the teacher's behavior," and that the principal in that case held responsibilities in supervising staff and implementing regulations. Id. at 988. The J.S., III Court also found that a schoolteacher could be an "appropriate person" for purposes of stating a claim under Title II and Section 504. J.S., III , 877 F.3d at 989. According to the Court, a jury could find that the teachers in that case "held some sort of supervisory authority over [the paraprofessional/teacher's aide] given their job descriptions and their designation as persons responsible for the implementation and enforcement of [the student]’ IEP, and that they had the ability and authority to take such actions" like "admonishing the [paraprofessional/teacher's aide], conducting a thorough preliminary investigation, swiftly reporting the abuse, and monitoring the [paraprofessional/teacher's aide's] behavior." Id. (quoting Broward Cnty. , 604 F.3d at 1257 ); see also Walker ex rel. Walker v. Tuscaloosa Cnty. Sch. Bd. , 2019 WL 6117616, at *5 (N.D. Ala. Nov. 18, 2019).
See also Doe , 604 F.3d at 1255 ("Here, it is undisputed that the principal ... had actual notice of the [students’] complaints ... More importantly, both the School Board and [the principal] conceded ... that [the principal] could ‘initiate corrective action’ or place ‘other restrictions’ on an offending teacher in response to a sexual harassment complaint, even if he could not take final adverse employment actions such as terminating the teacher. Therefore, we treat [the principal] as an "appropriate person" to receive actual notice ... Even if the parties disputed this issue, we would not hesitate in concluding that [the principal], as the highest-ranking school official on site ... was ‘high enough on the chain-of-command’ to impute liability to the School Board."); Liese , 701 F.3d at 350.
Here, like the principal in J.S., III , Plaintiff has adequately pled that Principal Goerner was an "appropriate person" with knowledge sufficient to hold RCSD liable for Plaintiff's discrimination because Principal Goerner was the highest ranking official at GRDMS and had "the authority to take corrective action to end" Pollard and Lesesne's discrimination against Plaintiff. Additionally, considering that the ultimate question of who is an appropriate person is ‘necessarily a fact-based inquiry’ because ‘officials’ roles vary among school districts,’ " Doe , 604 F.3d at 1256, Pollard, officials in the RCSD human resources department, and the other GRDMS administrators who received complaints about Pollard and Lesesne's behavior could also be found to be "appropriate persons" under the deliberate indifference analysis, depending on their job responsibilities and facts presented to the Court. Based on the totality of Plaintiff's allegations, Plaintiff has sufficiently alleged that RCSD had knowledge that harm to Plaintiff's federally protected right was substantially likely.
2. Rockdale County School District's Failure to Act
If RCSD "knew that harm to [Plaintiff's] federally protected right was substantially likely," it must also have "failed to act on that likelihood" in order to be liable for damages under Title II of the ADA and Section 504 for intentional discrimination. Silberman , 927 F.3d at 1134 (citing Liese , 701 F.3d at 344 ). "[D]eliberate indifference plainly requires more than gross negligence. Rather, deliberate indifference requires that the indifference be a ‘deliberate choice,’ which is an ‘exacting standard.’ " Liese , 701 F.3d at 344.
Here, Plaintiff alleges that at least six RCSD employees (Principal Goerner, three GRDMS assistant principals, GRDMS's lead teacher, and GRDMS's Learning Support Coordinator) and unspecified RCSD human resources personnel were informed of Plaintiff's abuse at the hands of Pollard and Lesesne. The Complaint further alleges that, despite their actual knowledge, Principal Goerner, GRDMS administrators, and the RCSD human resources department failed to intervene to protect Plaintiff and other students with disabilities from abuse, failed to sufficiently discipline Pollard and Lesesne, failed to report the abuse to the appropriate authorities, failed to notify Plaintiff's parents, and failed overall to take appropriate timely corrective action. (Compl. ¶¶ 73-88, 110-113, 125-129.) Additionally, Plaintiff claims that after several ongoing verbal complaints to GRDMS administrators and RCSD human resources personnel and multiple written complaints about Pollard and Lesesne's abusive conduct, Pollard and Lesesne were permitted to remain in Plaintiff's classroom and continue abusing him and other disabled students. (Id. ¶¶ 73-88.)
RCSD argues in its Reply brief that "RCSD officials" took immediate action after learning of Pollard and Lesesne's alleged actions by initiating an investigation in October and November 2018. (Defs.’ Reply at 6.) By contrast, Plaintiff alleges that RCSD failed to take any action following verbal reports of abuse to its human resources personnel (Compl. ¶¶ 74, 76) and that it failed to investigate at least two written reports of abuse (id. ¶¶ 77-82, 85-86). Plaintiff further alleges that, when RCSD finally did investigate a written report of abuse, it only took statements from Pollard and Lesesne and did not take a statement from the person who reported the abuse. (Id. ¶¶ 83-86.) This allegedly resulted in no disciplinary action being taken against Lesesne and a letter of correction being issued to Pollard. (Id. ¶¶ 87-88.)
In light of these allegations, an inference can be drawn that RCSD knew "harm to [Plaintiff's] federally protected right was substantially likely" and "failed to act on that likelihood." Silberman , 927 F.3d at 1134. This is sufficient to allege that RCSD was deliberately indifferent to Plaintiff's alleged discrimination based on his disability. See J.S., III , 877 F.3d at 989 ("Viewing the evidence in the light most favorable to J.S., a jury could find that Principal Smith ... was deliberately indifferent in failing to follow up with [the paraprofessional/teacher's aid], or speak to J.S. or his parents after her discussion with [the paraprofessional/teacher's aid], and in failing to take adequate action when she was informed a second time that J.S. was being removed from the classroom. There is a genuine issue of material fact as to whether Principal Smith had actual knowledge and whether her response was clearly unreasonable, i.e., deliberately indifferent."); see also Cragg v. Dist. Bd. of Trs. of Miami-Dade Coll. , 2018 WL 8334585, at *8-9 (S.D. Fla. Nov. 30, 2018) (finding that a trier of fact could find a college was deliberately indifferent to Plaintiff's rights under the ADA where the college did not "properly intervene after Plaintiff was allegedly subjected to discrimination. In particular, the Court notes Plaintiff's repeated pleas for due process after her informal suspension, many of which, according to Plaintiff, went unanswered.").
E. Negligence Per Se Claim
The Court next turns to Plaintiff's state-law claims. The Individual Defendants assert that Plaintiff's negligence per se claim is not viable because O.C.G.A. § 19-7-5, the "mandatory reporter" statute at issue, "neither creates a private civil cause of action nor provides a basis for imposing civil liability." (Defs.’ Br. at 24.)
O.C.G.A. § 19-7-5 — the "mandatory reporter" statute — requires teachers and certain other school personnel to report child abuse. A person who "knowingly and willfully fails to do so [is] guilty of a misdemeanor." O.C.G.A. § 19-7-5(h). However, " OCGA § 19–7–5 does not create a private civil cause of action against those professionals who violate the reporting requirement"; instead, those who violate the requirement are subject "only to criminal liability." Reece v. Turner , 284 Ga.App. 282, 643 S.E.2d 814, 818 (2007) ; Cechman v. Travis , 202 Ga.App. 255, 414 S.E.2d 282, 284 (1991) ("The violation of a penal statute does not automatically give rise to a civil cause of action on the part of one who is injured thereby. While OCGA § 19–7–5 establishes the public policy of [Georgia] on the subject of reporting suspected child abuse, it does not expressly create a civil cause of action for damages in favor of the victim or anyone else ... Likewise, there would appear to be nothing within the provisions of OCGA § 19–7–5 which purports to create a private cause of action in tort in favor of an alleged victim of child abuse.") (citations omitted).
The Court notes that this statute has been amended several times in the last few years, including most recently in 2019. Another version of the statute will go into effect on January 1, 2022.
Though dealing with a different statute, the Supreme Court of Georgia, in Murphy v. Bajjani , explained why it would be improper to imply a civil cause of action where one has not been prescribed by the legislature. 282 Ga. 197, 647 S.E.2d 54 (2007). The Court stated:
OCGA § 20–2–1184(d) states that "[a]ny person required to make a report pursuant to this Code section who knowingly and willfully fails to do so shall be guilty of a misdemeanor." Where the breach of a statutory duty can result in criminal liability, the statute is penal in nature and " ‘the violation of a penal statute does not automatically give rise to a civil cause of action on the part of one who is [purportedly] injured thereby.’ " "[C]ivil liability may be authorized where the legislature has indicated a strong public policy for imposing a civil as well as criminal penalty for violation of a penal statute." There is no indication that the legislature intended to impose civil liability in addition to the criminal sanctions set forth in a statute where, as here, nothing in the provisions of the statute creates a private cause of action in favor of the victim purportedly harmed by the violation of the penal statute. While OCGA § 20–2–1184 establishes Georgia's public policy concerning the need to report timely to the appropriate authorities the identity of students
who commit certain proscribed acts on school grounds, it does not create a civil cause of action for damages in favor of the victim or anyone else for the purported failure to report timely.
Id. at 58 (emphasis added) (citations omitted).
The same logic applies here. O.C.G.A. § 19–7–5 imposes criminal liability for the violation of its provisions. O.C.G.A. § 19-7-5(h). While the statute establishes Georgia's public policy on the subject of reporting suspected child abuse, there is no indication that the legislature intended to impose civil liability in addition to criminal sanctions for violation of the statute because nothing in its provisions creates a private cause of action in favor of a victim allegedly harmed by a violation of its provisions. Accordingly, there is no private cause of action under O.C.G.A. § 19–7–5, and the Individual Defendants cannot be held civilly liable for an alleged violation of the statute.
Neither O.C.G.A. § 51-1-6, the negligence per se statute, nor the cases cited by Plaintiff change this analysis. While Coplein v. Wells Fargo Bank, N.A. acknowledges that Georgia's negligence per se statute provides for the recovery of damages upon breach of a statutory duty even when "no cause of action is given in express terms" under the statute, see 2018 WL 3018901 (N.D. Ga. June 18, 2018), at *2, Coplein involves a different reporting statute, O.C.G.A. § 30–5–4. But unlike the "mandatory reporter" statute at issue here, O.C.G.A. § 19-7-5, Georgia courts have never explicitly (or repeatedly) stated that O.C.G.A. § 30–5–4 (the statute at issue in Copelein ) does not give rise to a private cause of action. Cf. Reece , 284 Ga. App. at 286–87, 643 S.E.2d 814 (holding that the mandatory reporter statute "does not create a private civil cause of action against those professionals who violate the reporting requirement"); Cechman , 414 S.E.2d at 284 ("While OCGA § 19–7–5 establishes the public policy of [Georgia] on the subject of reporting suspected child abuse, it does not expressly create a civil cause of action for damages in favor of the victim"); Vance v. TRC , 229 Ga.App. 608, 494 S.E.2d 714, 716 (1997) ("[N]othing within the provision of [ OCGA § 19–7–5 ] purports to create, or indicates an intention to create, a private cause of action in tort in favor of a child whose abuse is not detected or reported.").
Anthony v. Am. Gen. Fin. Servs., Inc. , also cited by Plaintiff, similarly involves a different statute. 287 Ga. 448, 697 S.E.2d 166 (2010). Moreover, the Anthony Court held that the relevant statute, O.C.G.A. § 45–17–11, did not give rise to a private right of action. Id. at 171-75. And while the Anthony Court indicated that the plaintiffs "may be able to pursue civil liability against [the defendant] under other applicable tort or contract laws of this State," the Court did not leave open the possibility of a negligence per se claim based on a violation of the statute at issue in that case. Id. at 175. Moreover, as the Georgia Court of Appeals has explained, "[a] duty cannot rest solely on OCGA § 51–1–6 ... because it merely sets forth general principles of tort law." Branch Banking & Tr. Co. v. Morrisroe , 323 Ga.App. 248, 746 S.E.2d 859, 861 (2013). Therefore, O.C.G.A. § 51-1-6, the negligence per se statute, does not by itself allow Plaintiff to bring a negligence per se claim when the relevant statute does not provide a private cause of action for breach of duty by a mandatory reporter, see O.C.G.A. § 19–7–5. Because there is no private cause of action under O.C.G.A. § 19–7–5, Plaintiff's negligence per se claim is DISMISSED .
F. Remaining State Law Claims and Official Immunity
The Individual Defendants assert that they are entitled to official immunity for purposes of all of Plaintiff's state law tort claims. Because Plaintiff's only state law claim against Principal Goerner is the negligence per se claim, which has been dismissed, the Court does not consider whether Goerner is entitled to official immunity and focuses instead on Pollard and Lesesne's official immunity assertions.
Under Georgia law, "a suit against a public officer acting in his or her official capacity will be barred by official immunity unless the public officer (1) negligently performed a ministerial duty, or (2) acted with actual malice or an actual intent to cause injury while performing a discretionary duty." Reece , 643 S.E.2d at 816-17 ; see Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d) (as amended 1991). The Court first addresses whether Pollard and Lesesne were performing ministerial or discretionary duties when they allegedly caused Plaintiff's injury.
3. Type of Duty Performed by the Pollard and Lesesne
"The determination of whether an action is discretionary or ministerial depends on the character of the specific actions complained of, not the general nature of the job, and is to be made on a case-by-case basis." Greenway v. Northside Hosp., Inc. , 317 Ga.App. 371, 730 S.E.2d 742, 749 (2012) (citation omitted); Vann v. Finley , 313 Ga.App. 153, 721 S.E.2d 156 (2011). "A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty." Grammens v. Dollar , 287 Ga. 618, 697 S.E.2d 775, 777 (2010). "A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed." Id. The Court must "discern[ ] whether the employee had a range of options to choose from based on her own judgment. And in a situation where an official has that sort of discretion, the official is shielded from personal liability for the choices she makes, even if they are poor ones, so long as the official does not act with actual malice or intent to cause injury." Barnett v. Caldwell , 302 Ga. 845, 809 S.E.2d 813, 817 (2018).
Just because an action is "statutorily-mandated" does not mean it is "the equivalent of a ministerial act that deprives the actor of official immunity if done negligently." Murphy , 647 S.E.2d at 57 (holding that the mandated act in O.C.G.A. § 20-2-1185 of developing a school safety plan was a discretionary act because it required the exercise of personal deliberation and judgment, and thus, a school district was immune from liability for failing to create a safety plan, absent evidence of malice); Todd v. Brooks , 292 Ga.App. 329, 665 S.E.2d 11, 13 (2008) (holding that, although a sheriff must by statute impound stray livestock, because the statute did not provide "clear, definite and certain procedures for impounding the bull," because "his duty to impound was not simple or specific," and because the sheriff was "required to make decisions concerning the safety of himself and others," he was "required to exercise considerable deliberation and judgment, which rendered his actions discretionary"). Instead, "[p]rocedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty." Roper v. Greenway , 294 Ga. 112, 751 S.E.2d 351, 353 (2013).
"[D]ecisions concerning the supervision of students and school personnel are considered discretionary, even where specific school policies designed to help control and monitor students have been violated." Reece , 643 S.E.2d at 817 (citations omitted); see Williams , 181 F. Supp. 3d at 1144 ("Determining what conduct crosses the line from appropriate classroom management techniques to inappropriate abuse or punishment such that the conduct should be documented, reported, or addressed in an IEP meeting unquestionably involves the type of professional judgment typical of a discretionary task."); see e.g., Payne v. Twiggs Cnty. Sch. Dist. , 232 Ga.App. 175, 501 S.E.2d 550, 551-52 (1998) (holding that, despite a clear no-weapons policy at a school, a school employee was required to assess the credibility of a student's allegations regarding the presence of a weapon and "make a [discretionary] judgment call as to whether those allegations merited immediate investigation") (collecting cases involving the failure to enforce school policy governing supervision of students); see also Smith v. McDowell , 292 Ga.App. 731, 666 S.E.2d 94, 96-98 (2008) ("Not one recent case exists in which the Georgia courts have found a ministerial duty on the part of a school employee").
Here, Plaintiff alleges that Pollard and Lesesne failed to fulfill their mandated reporting requirements, failed to notify Plaintiff's parents of any alleged abuse, and abused or used excessive and/or unwarranted force against Plaintiff and other disabled students. Each one of these acts (or failures to act) by Pollard and Lesesne is at its core a discretionary act because "[w]hat should be done always will depend to some extent on the circumstances. And that means that the duty cannot — when applied to a public officer — be characterized properly as a ministerial one." Barnett , 302 Ga. 845, 809 S.E.2d 813 at 818. Accordingly, Pollard and Lesesne are entitled to official immunity unless Plaintiff alleges sufficient facts to plausibly suggest they acted with malice or intent to cause injury.
4. Malice or Intent to Injure
Pollard and Lesesne are entitled to official immunity unless they acted with "actual malice or with actual intent to cause injury in the performance of their official functions." Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d). The phrase "actual intent to cause injury" refers to "an actual intent to cause harm to the plaintiff, not merely an intent to do the act purportedly resulting in the claimed injury." Kidd v. Coates , 271 Ga. 33, 518 S.E.2d 124, 125 (1999) (quoting Frame v. Boatmen's Bank , 782 S.W.2d 117, 121 (Mo. Ct. App. 1989) ).
In the context of official immunity, "actual malice requires a deliberate intention to do wrong and denotes express malice or malice in fact." Adams v. Hazelwood , 271 Ga. 414, 520 S.E.2d 896, 898 (1999) (citations omitted). It "does not include ‘implied malice,’ i.e. , the reckless disregard for the rights or safety of others." Tuggle v. Rose , 333 Ga.App. 431, 773 S.E.2d 485, 488 (2015) (citing Murphy , 647 S.E.2d at 60 ); Longino v. Henry Cnty. , 791 F. App'x 828, 838 (11th Cir. 2019). In other words, "[a] ‘deliberate intention to do wrong’ such as to constitute the actual malice necessary to overcome official immunity must be the intent to cause the harm suffered by the plaintiffs." Murphy , 647 S.E.2d at 60 (holding that conclusory allegations of malice were insufficient to survive a motion for judgment on the pleadings because they alleged only "deliberate acts of wrongdoing done with reckless disregard for the safety of others"). Thus, actual malice requires something more than deliberate indifference. Kendall v. Sutherland , No. 1:13-CV-04263-RWS, 2014 WL 5782533, at *16 (N.D. Ga. Nov. 5, 2014) ("Even if he was deliberately indifferent or reckless in ignoring inmate complaints, Plaintiffs’ First and Second Amended Complaints fail to establish malice"). But see Adams , 520 S.E.2d at 898-99 ("[I]n the context of official immunity, actual malice means a deliberate intention to do a wrongful act. Such act may be accomplished with or without ill will and whether or not injury was intended").
Drawing all inferences in favor of Plaintiff, Plaintiff has sufficiently alleged facts to suggest that Pollard and Lesesne acted with "an actual intent to cause harm to the plaintiff." Kidd , 518 S.E.2d at 125. Plaintiff alleges that Pollard and Lesesne physically assaulted and verbally abused him several times and with "no legitimate government interest." (Compl. ¶ 123.) In particular, Plaintiff alleges that Pollard and/or Lesesne threw shoes at him, sprayed and/or poured water on him, and called him inappropriate names while threatening to abuse him, and that Lesesne pinned him down to the ground with his foot. (Id. ¶¶ 68-70, 91.) It would be inappropriate to hold at the motion to dismiss stage that Pollard and Lesesne's conduct does not show "actual malice or [ ] actual intent to cause injury." See Griswold v. Collins , 318 Ga.App. 556, 734 S.E.2d 425, 427 (2012).
G. Statute of Limitations
Defendants also argue that "[t]o the extent Plaintiff asserts any federal or state-law claims that accrued more than two years before he filed suit, those claims are now time-barred." (Defs.’ Br. at 25.)
Plaintiff's federal and state law claims are subject to a two-year statute of limitations. See Lovett v. Ray , 327 F.3d 1181, 1182 (11th Cir. 2003) ( Section 1983 actions); Everett v. Cobb Cnty. Sch. Dist. , 138 F.3d 1407, 1409 (11th Cir. 1998) (ADA and Section 504 actions); O.C.G.A. § 9-3-33 ("actions for injuries to the person shall be brought within two years after the right of action accrues"). O.C.G.A. § 9-3-90(b) tolls the two-year statute of limitations for minors, providing that "individuals who are less than 18 years of age when a cause of action accrues shall be entitled to the same time after he or she reaches the age of 18 years to bring an action as is prescribed for other persons." Additionally, O.C.G.A. § 9-3-90(a) tolls the statute of limitations for legally incompetent persons, stating that "[i]ndividuals who are legally incompetent because of intellectual disability or mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons."
In the case of legally incompetent persons, "it is clear that the statute of limitations does not necessarily toll indefinitely," Williams ex rel. Williams v. Fulton Cnty. Sch. Dist. , 2015 WL 13264434, at *5 (N.D. Ga. Jan. 9, 2015). Georgia case law provides that that such tolling would lift under three circumstances: (1) when the incapacity is lifted; (2) when a guardian is appointed and "does act for" the incapacitated individual; or (3) when a next friend files an action on behalf of the incapacitated individual "seeking recovery for the injury sustained." Cline v. Lever Bros. Co. , 124 Ga.App. 22, 183 S.E.2d 63, 66 (1971) ; see also Harper v. Patterson , 270 Ga.App. 437, 606 S.E.2d 887, 880-91 (2004) (holding that statute of limitation began to run when parent of legally incompetent child filed an action in court on child's behalf); Price v. Dep't of Transp. , 214 Ga.App. 85, 446 S.E.2d 749, 752 (1994) (holding that the entry by the mother, as next friend of an incapacitated plaintiff into her daughter's ongoing case started the running of the statute of limitations).
Assuming that O.C.G.A. § 9-3-90(a) and Cline control because Plaintiff is a minor, disabled and autistic, and that they allow the statute of limitations to start running when Plaintiff's guardians act on his behalf, the statute of limitations has not yet run. Plaintiff's parents learned of Plaintiff's abuse in December 2018 (Compl. ¶ 89-94) and filed this lawsuit in November 2020. Even assuming that Plaintiff's parents "acted" on his behalf in December 2018, all of Plaintiff's claims fall within the statute of limitations period. Accordingly, it would be inappropriate to dismiss any of Plaintiff's claims on statute of limitations grounds.
The Court notes that it need not definitively resolve this issue at the pleading stage because, as the Eleventh Circuit has made clear, "a Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate only if it is ‘apparent from the face of the complaint’ that the claim is time-barred," La Grasta v. First Union Sec. , Inc., 358 F.3d 840, 845 (11th Cir. 2004) (quoting Omar v. Lindsey , 334 F.3d 1246, 1251 (11th Cir. 2003) ).
H. Punitive Damages Against Rockdale County School District
Although Plaintiff has not filed an independent claim for punitive damages, RCSD asks that any claims for punitive damages against it under Counts I-III and V-VI be dismissed. Plaintiff provides no argument in his Response brief concerning this issue. "[I]t is well settled that punitive damages are not available against a government entity." Long v. Fulton Cnty. Sch. Dist. , 807 F. Supp. 2d 1274, 1290 (N.D. Ga. 2011) ; see City of Newport v. Fact Concerts, Inc. , 453 U.S. 247, 271, 101 S. Ct. 2748, 69 L.Ed.2d 616 (1981) ("a municipality is immune from punitive damages under 42 U.S.C. § 1983"); Healy v. Town of Pembroke Park , 831 F.2d 989, 991 (11th Cir. 1987) ("punitive damages are not available under § 1983 against the Town"); Bullard v. DeKalb Cnty. Sch. Dist. , 2006 WL 8432670, at *4 (N.D. Ga. Feb. 9, 2006) ("the court concludes that the plaintiffs’ claim for punitive damages as a remedy for the School District's alleged violation of various federal statutes is due to be dismissed. Punitive damages may not be awarded in suits brought under § 202 of the ADA or § 504 of the Rehabilitation Act."). "It is [also] well established under Georgia law that school districts are political subdivision of the State." Hitchcock v. Polk Cnty. Sch. Dist. , No. 4:07-CV-220-HLM-WEJ, 2009 WL 10669954, at *5 (N.D. Ga. Feb. 24, 2009). Accordingly, any claims for punitive damages against RCSD are DISMISSED WITH PREJUDICE .
IV. CONCLUSION
Defendants’ Motion to Dismiss [Doc. 12] is GRANTED IN PART and DENIED IN PART. Defendant RCSD's Motion to Dismiss is GRANTED as to Counts I, II, and III (the § 1983 counts). Count I is DISMISSED WITHOUT PREJUDICE ; Counts II and III are DISMISSED WITH PREJUDICE . Plaintiff's ADA and Section 504 claims (Counts V and VI) remain pending against RCSD.
The Individual Defendants’ Motion to Dismiss is GRANTED as to Count VII (negligence per se) but DENIED as to Count IV ( § 1983 ). Count VII is DISMISSED WITH PREJUDICE . Plaintiff's § 1983 claim remains pending against the Individual Defendants. Defendants Pollard and Lesesne's Motion to Dismiss is DENIED as to Counts VIII and IX, meaning that Plaintiff's assault and battery and intentional infliction of emotional distress claims remain pending against them.
The Court permits Plaintiff to amend his Complaint, though Plaintiff may well elect not to file an amended complaint or pursue each of the dismissed Counts. If Plaintiff chooses to amend, the amended complaint must be filed within 45 days of the date of this Order. Defendants are DIRECTED to file their Answers within 14 days of the date of this Order. The Court ORDERS that discovery shall commence on the same date.
The Court notes that Constitutional claims are challenging, and Plaintiff has at least at this juncture stated viable claims under the ADA and Section 504.
IT IS SO ORDERED this 30th day of September 2021.