Opinion
CIVIL 1:22-cv-00087-MR-WCM
03-06-2023
SUZAN McKINNEY PARRIS, as Guardian Ad Litem for D.P., a minor, Plaintiff, v. CLEVELAND COUNTY BOARD OF EDUCATION; MARK PATRICK, in his individual capacity; and LATOSA WILBURN, in her individual capacity, Defendants.
ORDER
MARTIN REIDINGER CHIEF UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court on Defendant Mark Patrick's Motion to Dismiss [Doc. 10]; Defendant Latosa Wilbourn's Motion to Dismiss [Doc. 12]; Defendant Cleveland County Board of Education's Motion to Dismiss [Doc. 16]; the Magistrate Judge's Memorandum and Recommendation [Doc. 29] regarding the disposition those motions; and the Objections by Defendant Cleveland County Board of Education and Defendant Mark Patrick [Docs. 30, 31] to the Memorandum and Recommendation.
Pursuant to 28 U.S.C. § 636(b) and the Standing Orders of Designation of this Court, the Honorable W. Carleton Metcalf, United States Magistrate Judge, was designated to consider the Defendants' motions and to submit a 1 recommendation for their disposition. On December 16, 2022, the Magistrate Judge issued a Memorandum and Recommendation regarding the pending motions. [Doc. 29]. The parties were advised that any objections to the Magistrate Judge's Memorandum and Recommendation were to be filed in writing within fourteen (14) days of service. [Id.]. Defendant Cleveland County Board of Education filed its Objections on December 23, 2022. [Doc. 30]. Defendant Mark Patrick filed his Objections on December 28, 2022. [Doc. 31]. The Plaintiff filed replies to these Objections on January 6 and January 10, 2023, respectively. [Docs. 32, 33].
After a careful review of the Memorandum and Recommendation and the Defendants' Objections thereto, the Court concludes that the Magistrate Judge's proposed conclusions of law are correct and consistent with current case law. Accordingly, the Court hereby accepts the Magistrate Judge's recommendation regarding the Defendants' motions to dismiss.
Accordingly, IT IS, THEREFORE, ORDERED that the Defendants' Objections [Docs. 30, 31] are OVERRULED, and the Memorandum and Recommendation of the Magistrate Judge [Doc. 29] is ACCEPTED. 2
IT IS FURTHER ORDERED that:
1. Defendant Mark Patrick's Motion to Dismiss [Doc. 10] is GRANTED IN PART and DENIED IN PART as follows:
a. Plaintiff's claim for civil conspiracy is DISMISSED.
b. In all other respects, Defendant Patrick's Motion to Dismiss is DENIED, and the following claims against Patrick are allowed to proceed: negligence/gross negligence; claim pursuant to Section 1983; violation of the ADA; punitive damages; and false imprisonment.
2. Defendant Latosa Wilbourn's Motion to Dismiss [Doc. 12] is GRANTED IN PART and DENIED IN PART as follows:
a. Plaintiff's claim for civil conspiracy is DISMISSED.
b. In all other respects, Wilbourn's Motion to Dismiss is DENIED, and the following claims against Wilbourn are allowed to proceed: negligence/gross negligence; claim pursuant to Section 1983; violation of the ADA; punitive damages; and claim for false imprisonment.
3. Defendant Cleveland County Board of Education's Motion to Dismiss Plaintiffs' Complaint [Doc. 16] is GRANTED IN PART and DENIED IN PART as follows:
a. Plaintiff's claims for negligence/gross negligence; and negligent training, negligent supervision, and negligent retention are DISMISSED WITHOUT PREJUDICE.
b. Plaintiff's claims pursuant to Section 1983, for violation of the North Carolina Constitution, for civil conspiracy, and for punitive damages are DISMISSED.
c. In all other respects, the Board's Motion to Dismiss is DENIED, and the Plaintiff's ADA claim against the Board shall be allowed to proceed.
IT IS SO ORDERED.