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Abrams-Jackson v. Avossa

United States District Court, S.D. Florida

March 28, 2017



          KENNETH A. MARRA United States District Judge.

         This cause is before the Court upon Defendants' Motion to Dismiss (DE 11). The Motion is fully briefed and ripe for review. The Court has carefully considered the Motion and is otherwise fully advised in the premises.

         I. Background

         Plaintiff Raquel Abrams-Jackson brings an eleven-count Complaint against Defendants Robert Avossa[1] (“Avossa”), Cheryl McKeever[2] (“McKeever”) and the Palm Beach County School District (Board) (“PBSB”) pursuant to 42 U.S.C. §§ 1983 and 1988 against all Defendants (count one); 42 U.S.C. § 1983 against PBSB (count two); 42 U.S.C. § 1983 for a violation of the First Amendment against all Defendants (count three); 42 U.S.C. § 1983 for a violation of equal protection of law against all Defendants (count four); 42 U.S.C. § § 1985 and 1986 for conspiracy against all Defendants (count five); Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e (“Title VII”), for race discrimination against all Defendants (count six), Age Discrimination in Employment Act, 29 U.S.C. § 621 (“ADEA”), against all Defendants (count seven); Title VII retaliation against all Defendants (count eight); 42 U.S.C. § 1983 for a violation of procedural due process against all Defendants (count nine); 42 U.S.C. § 1983 for a violation of substantive due process against all Defendants (count ten) and a count for respondent superior against the PBSB (count eleven).

         According to the Complaint, Plaintiff, a Black woman over the age of 40, has been a teacher for the Palm Beach County School District since 1997. (Compl. ¶ ¶ 8, 12.) In October of 2014, Plaintiff was involuntarily moved from her previous position to Palm Beach Lakes Community High School. (Compl. ¶ 14.) Because of her experience, Plaintiff became more active in union activities. (Compl. ¶ 16.) On or about November 2015, McKeever gave Plaintiff a cease and desist letter. (Compl. ¶ 17.) On or about November 17, 2015, Plaintiff went to a school board meeting to address her concerns, but was cut off while addressing the school board and escorted out of the room. (Compl. ¶ ¶ 18-19.) Subsequently, during a teacher work day meeting, McKeever singled out Plaintiff, and proceeded to mock and ridicule her. (Compl. ¶ ¶ 22-23, 26-27.)

         Defendants move to dismiss the Complaint on the following grounds: (1) the Complaint does not comply with general pleading requirements; (2) the Complaint improperly names the “School District” as a defendant rather than the School Board of Palm Beach County; (3) the claims brought against the individuals in their official capacity are the equivalent of bring claims against the local government entity; (4) count one should be stricken as redundant; (5) the section 1983 claims against PBSB should be dismissed as that entity cannot be liable under a theory of respondent superior; (6) the individual capacity claims should be dismissed because there are no allegations that Defendants acted in their individual capacity and they are entitled to qualified immunity; (7) the conspiracy claims should be dismissed because a school board cannot conspire with its own agents or employees; (8) the individual Defendants are not employers under Title VII or the ADEA; (9) the remaining Title VII and ADEA claims should be dismissed for failure to state a claim; (10) there are no due process claims when there are adequate state remedies; (11) punitive damages under Title VII and ADEA are not proper and (12) the Complaint fails to allege irreparable harm to require a preliminary injunction.

         II. Legal Standard

         Rule 8(a)(2) of the Federal Rules of Civil Procedure requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).

         "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quotations and citations omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Thus, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. When considering a motion to dismiss, the Court must accept all of the plaintiff's allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

         III. Discussion

         A. Naming the “School District” as opposed to the “School Board of Palm Beach County”

         Defendants assert that the proper Defendant to be named is the School Board of Palm Beach County and relies upon Article IX, Section 4 of the Florida Constitution[3] as well as Florida Statutes § § 1001.32(2), [4] 1001.41[5] and 1001.40.[6] The Court agrees with Defendants that the school board, as opposed to the school district, is the proper entity to be sued, and Plaintiff does not provide any authority to the contrary. The Court will allow Plaintiff leave to amend to name the proper Defendant.

         B. Section 1983 Claims Official Capacity Claims against Defendants Avossa and McKeever

         Defendants Avossa and McKeever move to dismiss all official capacity claims against them pursuant to 42 U.S.C. § 1983 on the basis that these claims are the functional equivalent of section 1983 claims against the local government entity for which the individuals work. This is consistent with Eleventh Circuit precedent. See Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (“when an officer is sued under § 1983 in his or her official capacity, the suit is simply another way of pleading an action against an entity of which an officer is an agent.”) (internal quotation marks omitted); see also Penley v. Eslinger, 605 F.3d 843, 854 (11th Cir. 2010) (“Official-capacity suits . . . generally represent only another way of pleading an action against an entity of which an officer is an agent.”) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)).

         Based on this precedent, the Court dismisses with prejudice the section 1983 official capacity claims against the individual Defendants.[7]

         Count one

         Count one incorporates all preceding paragraphs of the Complaint and simply “claims damages under 42 U.S.C. § § 1983 and 1988.” (Compl. ¶ ¶ 36-37.) By proceeding in this fashion, Plaintiff has incorporated facts that in no way relate to this specific count.[8] See Grief v. Jupiter Med. Ctr., Inc., No. 08-80070-CIV, 2008 WL 2705436, at * 4 (S.D. Fla. July 9, 2008) (in referencing other numbered paragraphs, care should be taken so that only relevant paragraphs of the complaint are referenced). Furthermore, a claim must do more than simply plead damages. For this reason, count one is dismissed with leave to amend.[9]

         Count two

         Count two does not identify the substantive right PBSB allegedly violated. Instead, it only refers to 42 U.S.C. § 1983. Section 1983, however, does not create any substantive rights, it merely provides a remedy for deprivations of rights established by the United States Constitution or the laws of the United States. See Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). As such, the Court dismisses this count and will allow Plaintiff leave to amend to assert a viable claim.

         Counts three and four

         Counts three and four seek to hold the PBSB and the individual Defendants liable for constitutional violations under section 1983. The Court will discuss the claims against the PBSB first.

         “The Supreme Court has placed strict limitations on municipal liability under § 1983.” Grech v. Clayton Cnty., 335 F.3d 1326, 1329 (11th Cir. 2003) (citing City of Canton v. Harris, 489 U.S. 378, 385 (1989) and Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)). A city's liability under Section 1983 “may not be based on the doctrine of respondeat superior.” Id. A local government is “liable under Section 1983 only for acts for which the local government is actually responsible.” Marsh v. Butler Cnty., 268 F.3d 1014, 1027 (11th Cir. 2001), abrogated on other grounds, Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). “Indeed, a [local government entity] is liable only when the . . . ‘official policy' causes a constitutional violation.” Grech, 335 F.3d at 1329. Thus, Plaintiff must “‘identify a municipal ‘policy' or ‘custom' that causes his injury.'” Id. (quoting Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998)).

         A § 1983 plaintiff “has two methods by which to establish a policy: identify either (1) an officially promulgated policy or (2) an unofficial custom or practice shown through the repeated acts of a final policymaker.” Id. “Because a [school board ] rarely will have an officially-adopted policy of permitting a particular constitutional violation, most plaintiffs . . . must show that the [school board] has a custom or practice of permitting it and that the [school board]'s custom or practice is ‘the moving force [behind] the constitutional violation.'” Id. at 1330 (quoting City of Canton, 489 U.S. at 389).

         To establish “§ 1983 liability against a municipality based on custom, a plaintiff must establish a widespread practice that, ‘although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law.'” Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)); see also Wayne v. Jarvis, 197 F.3d 1098, 1105 (11th Cir. 1999), overruled on other grounds, Manders v. Lee, 338 F.3d 1304 (11thCir. 2003) (“To establish a policy or custom, it is generally necessary to show a persistent and widespread practice.”).

         With respect to PBSB's custom, the Complaint merely alleges that the “policies, practices, customs and/or procedures as set forth in this Complaint” and the “failure to train and supervise” employees were the moving force behind the constitutional violations. (Compl. ¶ ¶ 49-50; see also Compl. ΒΆΒΆ 56, 64.) The Court finds these allegations to be too conclusory. The Complaint does not identify the policy or custom at issue. Nor does the Complaint provide any facts in support of the PBSB's alleged failure to train or supervise its employees. There are no facts that give rise to ...

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