United States District Court, S.D. Florida
OPINION AND ORDER
KENNETH A. MARRA United States District Judge.
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.
Raquel Abrams-Jackson brings an eleven-count Complaint
against Defendants Robert Avossa (“Avossa”),
Cheryl McKeever (“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).
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.)
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
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).
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).
Naming the “School District” as opposed to the
“School Board of Palm Beach County”
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 as well as Florida Statutes
§ § 1001.32(2),  1001.41 and 1001.40. 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
Section 1983 Claims Official Capacity Claims against
Defendants Avossa and McKeever
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)).
on this precedent, the Court dismisses with prejudice the
section 1983 official capacity claims against the individual
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. 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
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.
three and four
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
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)).
§ 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).
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.”).
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.
¶¶ 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