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C H v. School Board of Okaloosa County

United States District Court, N.D. Florida, Pensacola Division

September 30, 2019

C.H., a minor, by RUSSELL HILLIGOSS, and TAMMY HILLIGOSS, his natural guardians, Plaintiff,
v.
THE SCHOOL BOARD OF OKALOOSA COUNTY, FLORIDA; MARY BETH JACKSON; STACIE SMITH; ARDEN FARLEY; ALAN LAMBERT; JON WILLIAMS; ROY FRAZIER; JEAN HENNION; and DOES 1-30, Defendants.

          ORDER

          M. CASEY RODGERS UNITED STATES DISTRICT JUDGE.

         Plaintiff C.H. is an autistic, nonverbal child who allegedly suffered physical and verbal abuse at the hands of his special education teacher, Roy Frazier, and a teacher's aide, Jean Hennion, while he was enrolled at Silver Sands School in Okaloosa County, Florida during the 2014-15 and 2015-16 school years. C.H., through his parents, Russell and Tammy Hilligoss, filed the instant action against the Okaloosa County School Board and seven individual defendants, alleging federal constitutional and statutory claims, as well as claims under Florida law.[1] All eight named defendants have separately moved for dismissal of C.H.'s claims.[2] Having carefully considered the law, the complaint, and the parties' arguments, the Court rules as follows.

         I. Background

         The basic facts, as alleged in the Second Amended Complaint, ECF No. 55, and construed in favor of C.H., are as follows.[3]

         A. The Parties

         Plaintiff C.H. is an autistic, nonverbal child enrolled in the exceptional students education (“ESE”) program at Silver Sands School in Fort Walton Beach, Florida. Silver Sands is a public school in the Okaloosa County School District (“the School District”), governed and overseen by Defendant Okaloosa County School Board (“School Board”). During the time period relevant to this case, Defendant Mary Beth Jackson was the Superintendent of the School District[4] and Defendant Stacie Smith was the Assistant Superintendent of Human Resources.[5] The School District also employed an investigator, Defendant Arden Farley, who was responsible for, as relevant to this case, investigating allegations of misconduct by instructional personnel and school administrators

         For the 2014-15 and 2015-16 school years, C.H. was assigned to the classroom of Defendant Roy Frazier, a special education instructor at Silver Sands, and Defendant Jean Hennion, Frazier's aide. Defendant Alan Lambert served as Silver Sands' principal until his retirement midway through the 2015-16 school year, after which, Defendant Jon Williams became principal.

         B. The Allegations of Abuse at Silver Sands

         C.H. alleges that Frazier and Hennion physically and verbally abused him, as well as other ESE students at Silver Sands, from the beginning of the 2014-15 school year until the end of the 2015-16 school year. Throughout that approximate two-year period, Frazier pushed, slapped, punched, kicked, pinched, flicked, threw shoes at, and withheld food from C.H., often physically injuring him as a result. It is also alleged that Frazier regularly strapped C.H. onto a stationary exercise bike, confined him in a cardboard box, or secluded him in a small, dark room-for hours at a time.[6]The allegations of abuse further include: the use of duct tape on ESE students as restraints; tying a sack over a student's head, causing him to panic and undress himself; swinging students by their arms and legs, then throwing them to the floor, causing at least one student, C.H., to suffer head injuries; striking C.H. with a closed fist causing red marks and bruising; calling students “inappropriate” names, see ECF No. 55 at 20; making vulgar and offensive comments to students about their parents; and routinely locking students in a hot transport van. The alleged abuse occurred openly in classrooms, in school hallways, and on school field trips.

         According to the complaint, Frazier's conduct did not go unreported to school administration officials.[7] Numerous unnamed Silver Sands employees who “witnessed” Frazier physically and verbally abusing ESE students reported their observations directly to Principal Lambert “on multiple occasions during the fall semester of the 2015-2016 school year.” See id. at 28. Many times, Principal Lambert reassured the reporting employee that he would talk to Frazier and “tak[e] care of” the matter. See id. However, he never spoke with Frazier and never acted to stop the abuse. Instead, in many instances, he retaliated against the reporting employees by “separating them from their assigned students, moving them to different classrooms, and changing one aide's assigned lunch hour to 9:15 a.m.” See id. at 32-33. In another instance, Principal Lambert told a teacher's aide that he “had only one year left until retirement” and “not to ruin that time” by reporting physical abuse and “forcing him to deal with the consequences of such a report.” See id. at 28-29. Principal Lambert did, in fact, retire “midway through the 2015-2016 school year, ” without ever having fulfilled his state-mandated obligation to report Frazier's alleged abuse to the Florida Department of Children and Families (“DCF”) or otherwise taken any action to protect Frazier's students. See id. at 9.

         In January 2016, Principal Williams joined Silver Sands. At the time, Frazier was still openly abusing ESE students in classrooms, school hallways, and on school field trips. On February 16 and 18, 2016, teacher's aides in Frazier's classroom sent “written notification” of Frazier's ongoing abuse to four School District officials- Principal Williams, Investigator Farley, HR Assistant Superintendent Smith, and Superintendent Jackson-in which they described a litany of separate incidents of abusive conduct.[8] See id. at 29-30. At this point, Smith emailed Frazier to advise him of “the seriousness of the allegations against” him and the “need for [his] students to be protected from him.” See id. at 31. Thereafter, Investigator Farley investigated and substantiated the physical abuse allegations, then detailed his findings in an “[i]nvestigative [s]ummary” that was sent to Principal Williams, HR Assistant Superintendent Smith, Superintendent Jackson, and Jeffrey McInnis, an attorney for the school district.[9] See id. at 30-31. In the summary, Investigator Farley recommended that Frazier be disciplined and “evaluated to assess whether an environment of disabled students is where he should work.” See id. As with Principal Lambert, none of these school officials made a mandatory report of Frazier's abuse to DCF.

         Approximately 10 days later, on March 16, 2016, HR Assistant Superintendent Smith sent a letter to Superintendent Jackson recommending that Frazier receive a three-day suspension for “not following student [behavioral intervention plans]” and “not documenting accurate travel locations when he took students on field trips.” See id. at 31. The next day, Superintendent Jackson sent two letters-one addressed to Frazier, the other to the School Board-also recommending a three-day suspension for the same reasons. None of the letters discussed, or even mentioned, the substantiated reports that Frazier was physically abusing ESE students. Frazier was ultimately suspended for three days; however, he was not required to serve the suspension “immediately or even on consecutive days.” See id. Instead, he was permitted to choose three dates, over the course of a month, that were convenient for him.[10]

         Throughout this period-and, indeed, through the end of the 2015-2016 school year-school officials left Frazier in the same ESE classroom, where he continued physically abusing C.H. and other ESE students. And, Silver Sands employees continued reporting the abuse to school officials. In April 2016, for example, a teacher's aide voiced her concerns in a phone call with HR Assistant Superintendent Smith and Superintendent Jackson. These two officials “disregarded” the aide's report. See id. at 32. Other aides were instructed by the “administration to only reply ‘today was a good day, '” if asked by a student's parents how the school day went. See id. at 33. Finally, it is alleged that unnamed “administration” officials intentionally made a false report to DCF in order to conceal Frazier's abuse. More specifically, on one occasion, Frazier allegedly punched C.H. so hard in the chest that it echoed across the hallway and caused red marks and bruising. Administration officials allegedly described the incident to DCF, but purposely identified a different child as the victim so that DCF would not know to investigate the actual victim, C.H. Other than this alleged false report to DCF, none of the defendants in this case reported Frazier's conduct to appropriate authorities, despite their state-mandated reporting obligation.

         C. The Allegations of Abuse at Kenwood Elementary School

         “Shortly after” receiving notice of Frazier's abusive conduct at Silver Sands, the School Board, Superintendent Jackson, HR Assistant Superintendent Smith, and Investigator Farley “were contacted regarding” another ESE instructor, Marlynn Stillions, who allegedly was physically abusing ESE students at another school in the School District, Kenwood Elementary School. See ECF No. 55 at 34. Stillions had reportedly kicked and shoved ESE students; pinched their faces and bodies causing red marks and bruising; forced vinegar into students' mouths and sprayed it in their faces; slammed a student's head into the wall; purposefully tripped a student, carried him forcefully into the cafeteria by the waistband and shirt, and then threw him on the floor; and confined students in a basket, placed a bean bag “on or near” the children's genitals, and then stepped on it, causing pain. See ECF No. 55 at 26.

         On April 26, 2016, Kenwood's then-principal, Angelyn Vaughan, sent an email to the School District's Human Resources Department describing “alleged Code of Ethics violations made by several [School District] employees who had seen Stillions acting abusively to” ESE students. See id. at 34. The next day, Investigator Farley began investigating Stillions' alleged misconduct and, in time, he interviewed 20 employees at Kenwood, many of whom recounted Stillions' history of physically and verbally abusing ESE students over an approximate two-year period.[11] During the investigation, Investigator Farley and unnamed School District administrators had Kenwood employees agree not to discuss the investigation or their knowledge of Stillions' abuse, allegedly in an effort to further conceal the abuse. On June 17, 2016, Investigator Farley presented an “Investigative Summary Report” to HR Assistant Superintendent Smith and Principal Joan Pickard, who took over as Kenwood's principal when Angelyn Vaughan left the position.[12] The report detailed Farley's investigative findings, which included multiple confirmed instances of child abuse by Stillions, and recommended that Stillions be disciplined.

         One month later, on July 18, 2016, HR Assistant Superintendent Smith sent an email to Superintendent Jackson, Investigator Farley, and Principal Pickard acknowledging the School District's failure “to emphasize and/or enforce the mandatory requirement to report child abuse” and requesting that, in light of the “Stillions events, ” child abuse/neglect training be provided to employees during the 2016-17 school year. See ECF No. 55 at 36-37. The next day, Pickard sent a reply email to the same officials expressing that the employees' failure to report was a result of their not knowing “what/when” to report and fearing retaliation by a teacher's union if they reported abuse. See id. On August 1, 2016, HR Assistant Superintendent Smith dismissed the case against Stillions as untimely and determined that Farley's investigative report would not be included in Stillions's personnel records. Thereafter, the School Board, Superintendent Jackson, HR Assistant Superintendent Smith, Investigator Farley and Melody Sommer, the ESE program director for the School District, approved Stillions for a transfer to Silver Sands for the 2016-17 school year, where Stillions was placed in another ESE classroom with even more severely disabled students.

         Throughout the relevant time period in this case, none of the School District officials reported Stillions's abuse to the students' parents or to appropriate authorities, despite their state-mandated reporting obligation. C.H. alleges that this was all part of a “long-standing custom, policy, and/or practice” within the School District of deliberate indifference and concealment of the abuse of ESE students.

         D. Procedural Posture

         C.H. has alleged claims against actors at all levels of the School District; thus, his theories of liability differ based on each defendant's alleged actions, responsibilities, and knowledge of the alleged abuse. Briefly stated, C.H. alleges that: (1) two defendants-Frazier and Hennion-physically and verbally abused him and other ESE students; and (2) six defendants-Principal Lambert, Principal Williams, Investigator Farley, HR Assistant Superintendent Smith, Superintendent Jackson, and the School Board-were aware of Frazier and Hennion's abuse but failed to intervene and take remedial action, which allowed the abuse to continue. In the complaint, C.H. alleges constitutional claims of unlawful restraint, substantive due process, equal protection, and conspiracy to interfere with his civil rights on theories of individual and supervisory liability (Counts One through Ten). He also asserts federal law claims against the School Board under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 701, et seq. (Counts Eleven and Twelve), as well as state law battery and negligence claims against Frazier and Hennion (Counts Sixteen and Seventeen), and state law claims against the School Board for negligent hiring, training, retention, and supervision, and respondeat superior (Counts Fourteen and Fifteen). In response, all eight defendants have moved for dismissal of C.H.'s claims under Federal Rule of Civil Procedure 12(b)(6).[13]

         II. Legal Standard

         A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a complaint. Federal pleading rules require a complaint to contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” See Fed.R.Civ.P. 8(a)(2). While detailed allegations are not required, there must be “more than labels and legal conclusions, and a formulaic recitation of the elements of a cause of action” will not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, the factual allegations in a complaint must state a claim that is “plausible on its face, ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and which “raise a right to relief above the speculative level, ” Twombly, 550 U.S. at 555.

         In deciding whether a plaintiff has set forth a plausible claim, the court must accept the factual allegations in the complaint as true, Erickson v. Pardus, 551 U.S. 889, 94 (2007), and draw all reasonable inferences in the plaintiff's favor, Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). However, “[l]egal conclusions without adequate factual support are entitled to no assumption of truth.” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011). The plausibility determination presents a “context-specific task that requires [a] court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. Dismissal is appropriate only where, “on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action.” Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006) (quoting Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993)).

         III. Discussion

         The Court begins with C.H.'s claims against the individual defendants only, including the issues of whether any of the defendants is entitled to qualified immunity for the federal claims and whether Frazier and Hennion are entitled to official immunity for the state law claims. The Court then addresses C.H.'s federal and state law claims against the School Board, followed by the conspiracy claims.

         A. Individual Defendants, Constitutional Claims

         Five of the counts in the complaint-Counts Five, Six, Seven, Nine, and Ten-are constitutional claims brought against individual defendants pursuant to 42 U.S.C. § 1983.[14] To state a claim under § 1983, a plaintiff must allege the deprivation of a constitutional or federal statutory right by someone acting under of state law. Doe v. Sch. Bd. of Broward Cty., Fla., 604 F.3d 1248, 1265 (11th Cir. 2010). In this case, it is undisputed that all of the individual defendants were acting under color of state law in regard to the conduct alleged by C.H.: they acted in their capacities as a teacher, teacher's aide, principal, investigator, assistant superintendent, or superintendent for a public school district. The only dispute, for purposes of the sufficiency of the § 1983 individual capacity claims at least, is whether C.H. has adequately alleged that these defendants' conduct deprived him of a constitutional or federal statutory right.

         1. Roy Frazier

         C.H. alleges that Frazier's abusive conduct constituted an unreasonable seizure, in violation of the Fourth Amendment (Count Nine), and constitutionally excessive force, in violation of the Due Process Clause of the Fourteenth Amendment (Count Ten). In response, Frazier argues that C.H. has failed to state a § 1983 claim against him and, in any event, he is entitled to qualified immunity.

         a. Unreasonable Seizure, Fourth Amendment

         Regarding the Fourth Amendment claim, the Court finds that the allegations in this case do not support a cause of action under § 1983. In the Eleventh Circuit, claims 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. See, e.g., T.W. ex rel. Wilson v. Sch. Bd. of Seminole Cty., Fla., 610 F.3d 588, 612 (11th Cir. 2010); Neal ex rel. Neal v. Fulton Cty. Bd. of Educ., 229 F.3d 1069, 1075 (11th Cir. 2000). C.H. has not cited, and the Court has not found, any Eleventh Circuit authority applying the Fourth Amendment to claims of excessive corporal punishment by school officials, even where the allegedly abusive conduct included improper physical restraint of a student. See id. Thus, the Court concludes that the Fourteenth Amendment, rather than the Fourth Amendment, is the appropriate vehicle for assessing the constitutionality of Frazier's conduct.[15]

         b. Substantive Due Process, Fourteenth Amendment

         Regarding the Fourteenth Amendment claim, the Court finds that C.H. has adequately alleged a cause of action under § 1983. School officials violate the substantive component of the Due Process clause when their use of allegedly excessive corporal punishment rises to the level of “arbitrary, egregious, and conscience-shocking behavior” that is “unjustifiable by any government interest.” See Neal, 229 F.3d at 1074-75; see also Ingraham v. Wright, 430 U.S. 651 (1977). To state a substantive due process claim in this context, a student must allege facts demonstrating that: “(1) a school official intentionally used an amount of force that was obviously excessive under the circumstances, and (2) the force used presented a reasonably foreseeable risk of serious bodily injury.” Neal, 229 F.3d at 1075. The first element has an objective and a subjective component, both of which must be met before the school official may be subject to liability. See id. at 1075 n.3. The objective component requires a court to consider the “totality of the circumstances” when deciding “whether the amount of force used is obviously excessive, ” including: (1) the need to administer corporal punishment to the student; (2) the relationship between the need for punishment and the amount of punishment administered; (3) the extent of any injury inflicted; and (4) whether or not the student is disabled. See id.; Wilson, 610 F.3d at 600; see also Hatfield v. O'Neill, 534 Fed.Appx. 838, 845 (11th Cir. 2013) (noting that the disability factor is “particularly significant” when the plaintiff's disability is “profound”). The subjective component focuses on whether the school official “subjectively intended to use that 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.

         Applying these factors, the Court finds that C.H. has alleged facts sufficient to satisfy the objective component of a substantive due process claim for excessive corporal punishment against Frazier. To begin with, the complaint describes a multi-year pattern of physical abuse by Frazier, ranging from pinching and flicking to punching and kicking, from swinging C.H. by his arms and legs to throwing C.H., head first, to the ground. Frazier also allegedly withheld food from C.H. and, on numerous occasions, for hours at a time, strapped C.H. to a stationary bike, confined him in a cardboard box, secluded him in a dark room, or locked him in a hot transport van. This amount of force, if true, is objectively “obviously excessive” under the totality of the circumstances alleged here.

         Turning to the first and second factors, the factual allegations, if true, establish that there was little or no need for Frazier to use physical force against C.H. Frazier was not acting in self-defense, or with any identifiable pedagogical or disciplinary purpose, or to protect C.H. from harming himself or others. See Wilson, 610 F.3d at 600; see also Hatfield, 534 Fed.Appx. at 845-46 (holding the need for a teacher to strike a developmentally disabled child in the head was nonexistent where the teacher was not acting in self-defense, or with a disciplinary purpose, or in an attempt to protect the child). It is certainly plausible that C.H., like any student, sometimes posed challenges in the classroom. However, given C.H.'s disabilities, it is inconceivable that those challenges would ever require the type and amount of physical force administered by Frazier here. Compare Wilson, 610 F.3d at 588 (restraining autistic student by pinning 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 Cty. Sch. Bd., 636 F.Supp.2d 1317, 1324 (M.D. Fla. 2009) (finding it disproportionate to slam an autistic student on a desk for failing to pay attention or control bodily functions because the conduct being addressed “was that of the uncontrollable behavior of a special needs student”) and J.V. v. Seminole Cty. Sch. Bd., No. 6:04cv1889, 2007 WL 7261470, at *8 (M.D. Fla. Mar. 21, 2007) (explaining that a teacher body slamming an autistic student on desk for screaming, arm flapping, and self-stimulation was a disproportionate response because the conduct being addressed was normal behavior for autistic children); see also B.M. ex rel. M.F. v. Thompson, No. 3:13cv13, 2013 WL 4547344, at *5 (M.D. Fla. Aug. 27, 2013) (finding allegations that a teacher lodged an unprovoked attack by throwing a pencil at a severely disabled student “when there was no need for any use of force at all, ” considered with the surrounding circumstances, sufficient to state a plausible claim for relief). The Court thus finds that the first and second factors have been adequately alleged in this case.

         The third factor-the extent of C.H.'s injury-has also been adequately alleged. The complaint alleges that as a result of Frazier's force, C.H. experienced head injury, red marks and bruising, physical pain, and hunger. It is also alleged that C.H. now suffers from post-traumatic stress disorder. In this context, which involves a profoundly disabled and vulnerable child victim, C.H.'s alleged physical and psychological injuries are sufficiently severe to state a plausible substantive due process claim. See, e.g., Kirkland ex rel. Jones v. Greene Cty. Bd. of Education, 347 F.3d 903 (11th Cir. 2003) (school official struck unarmed and unthreatening student with a metal cane with enough force to cause a large knot and migraine headaches); Williams v. Fulton Cty. Sch. Dist., 181 F.Supp.3d 1089, 1135 (N.D.Ga. 2016) (allegations that autistic child suffered scrapes, bruises, and post-traumatic stress disorder sufficient to state claim for excessive corporal punishment); B.M. ex rel. M.F. v. Thompson, No. 3:13cv13, 2013 WL 4547344 (M.D. Fla. Aug. 27, 2013) (allegations that disabled child's post-traumatic disorder was 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”).

         On balance, the totality of the alleged circumstances, taken as true and viewed in the light most favorable to C.H., state a plausible claim that Frazier used an “obviously excessive” amount of physical force against C.H. The Court thus finds that the allegations satisfy the objective component of a substantive due process claim for excessive corporal punishment.

         The Court also finds that C.H. has plausibly stated a claim that Frazier “subjectively intend[ed] 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. This subjective component of an excessive corporal punishment claim may be satisfied where a school official's alleged conduct creates an inference of malice. Malice may be inferred from the existence of a pattern of abusive conduct, see Soltys, 636 F.Supp.2d at 1325, the official's use of derogatory language during the alleged abuse, see Hatfield, 534 Fed.Appx. at 847, and abusive conduct that presented a “foreseeable risk of serious bodily injury, ” see Kirkland, 347 F.3d at 904.

         In this case, the requisite subjective intent and malice are readily apparent from C.H.'s allegations. According to the complaint, Frazier threw things at ESE students, including C.H., because he found it “funny, ” and he pinched them to purposely inflict pain and redirect their attention. See ECF No. 55 at 16. Frazier also allegedly verbally antagonized C.H., and other ESE students, as part of his multi-year pattern of abuse. Finally, much of Frazier's alleged physically abusive conduct presented a risk of serious injury to the particularly vulnerable children at whom it was directed. These allegations, together with the lack of legitimate governmental interest in subjecting C.H. to any physical force, plausibly support an inference that Frazier's conduct was intentional and malicious.

         In sum, the Court finds C.H.'s factual allegations sufficient to plausibly establish that Frazier intentionally used amounts of force against C.H. that were obviously excessive under the circumstances and that Frazier's conduct presented a foreseeable risk of serious bodily injury. Accepting these allegations as true, which the Court must do at this stage, Erickson, 551 U.S. at 94, the Court finds Frazier's conduct to be the “kind of egregious official abuse of force that would violate substantive due process protections, ” see Neal, 229 F.3d at 1076.

         2. Other Individual Defendants

         C.H. also asserts constitutional claims against five additional defendants in their individual capacities: Principal Lambert, Principal Williams, Investigator Farley, HR Assistant Superintendent Smith, and Superintendent Jackson.[16] C.H. does not claim that these five defendants personally participated in any of Frazier's alleged physically abusive conduct. Instead, C.H. alleges that each defendant is personally liable, under a theory of supervisory liability, because he or she failed to act in response to reports of Frazier's abuse and, thereby, exhibited reckless disregard for and deliberate indifference to C.H.'s rights under the Fourth (unreasonable seizure) and Fourteenth Amendments (due process and equal protection).

         Supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability. Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010). However, they may be liable for their own misconduct. Iqbal, 556 U.S. at 676-77. Actionable misconduct occurs where the supervisor “personally participate[d] in the alleged constitutional violation” or where “there is a causal connection between actions of the supervising official and the alleged constitutional violation.” See id. The causal connection can be established in several ways. First, a plaintiff can show that a “history of widespread abuse”-one that was “obvious, flagrant, rampant and of continued duration”-put a “responsible supervisor” on notice of the need to correct the alleged constitutional deprivations, but he failed to do so. Broward Cty., 604 F.3d at 1266. Importantly, “[t]here is no bright line identifying when misconduct transforms from a couple of isolated instances into a pattern of abuse.” Williams, 181 F.Supp.3d at 1128 (citing Broward Cty., 604 F.3d at 1266). “One or two incidents of abuse is generally insufficient to indicate a pattern.” Id.; see also Broward Cty., 604 F.3d at 1266. However, allegations of anything more than that are generally found sufficient at the motion to dismiss stage, even where the abusive acts were committed by a single employee. See Williams, 181 F.Supp.3d at 1122; see also Valdes v. Crosby, 450 F.3d 1231, 1244 (11th Cir. 2006) (13 complaints of prisoner abuse over 1.5 year period); Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 456-57 (5th Cir. 1994) (five prior incidents of sexually inappropriate behavior by teacher); Shaw v. Stroud, 13 F.3d 791, 800 (4th Cir. 1994) (finding knowledge of at least three prior incidents of excessive force was sufficient to be widespread); Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 728-29 (3d Cir. 1989) (five complaints of abuse by two teachers over 4 years found sufficient); J.V., 2005 WL 1243756, at *3 (repeated acts of abuse by a single teacher). Alternatively, the plaintiff can establish causation with facts supporting “an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so.” Keating, 598 F.3d at 762. Finally, the causal connection can be established where the supervisor's “improper custom or policy results in deliberate indifference to constitutional rights.” See Broward Cty., 604 F.3d at 1266.

         a. Unreasonable Seizure, Fourth Amendment

         The Court begins with the claim that the supervisory defendants' conduct “demonstrated recklessness and/or deliberate indifference to” C.H.'s right to be free from unreasonable seizure, in violation of the Fourth Amendment. See ECF No. 55 at 61. Because the Court has already determined that no Fourth Amendment violation occurred, this claim provides no basis for relief and will be dismissed. See Beshers v. Harrison, 495 F.3d 1260, 1264 n.7 (11th Cir. 2007) (explaining that a constitutional violation by a subordinate is a necessary predicate to supervisory liability); Campbell v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999) (stating that a claim for supervisory liability fails where there is no underlying constitutional violation by a subordinate).

         b. Substantive Due Process, Fourteenth Amendment

         Regarding the Fourteenth Amendment claim, the Court finds that C.H. has failed to allege a supervisory liability claim under § 1983 against Investigator Farley, but he has adequately stated a claim against Principal Lambert, Principal Williams, Assistant Superintendent Smith, and Superintendent Jackson.

         i. Investigator Farley

         C.H. has failed to state a claim for supervisory liability against Investigator Farley because the factual allegations in the complaint do not plausibly establish- directly or inferentially-that Farley was a supervisory official. Although Investigator Farley is alleged to have had responsibility for “establishing, implementing and/or enforcing policies and procedures regarding the training and/or supervision of employees, ” see ECF No. 55 at 9, and he recommended disciplinary measures for Frazier in his report, there is no allegation that Farley was a part of the School District chain of command or a “responsible supervisor” with respect to Frazier or Hennion. Indeed, the facts related to Farley plausibly show only that he was tasked with investigating the complaints, and then passed his reports and recommendations to his supervisors, who essentially ignored his substantiated findings of physical abuse and recast Frazier's misconduct in a more favorable light. There is no factual allegation showing that Farley had authority to remove Frazier or C.H. from the classroom, or otherwise effectuate that result. In short, C.H. has offered no factual or legal support for the proposition that an investigator for a school district, like Farley, can be deemed a supervisor of the school district's employees.[17]Consequently, dismissal of the supervisory liability claim against Investigator Farley is appropriate.

         ii. Principal Lambert

         The complaint alleges facts demonstrating that Principal Lambert was aware of Frazier's history of physically abusing nonverbal, developmentally disabled children and failed to stop it.[18] Frazier's alleged abuse was blatant-it occurred in classrooms, in school hallways, and on school field trips-and continued for at least two years. Silver Sands employees allegedly reported Frazier's conduct directly to Principal Lambert numerous times throughout the fall semester of the 2015-16 school year, yet Principal Lambert ignored the reports and, in at least one instance, actively suppressed them. Principal Lambert retired in December 2016 without ever having made a mandatory report to the DCF Child Abuse Hotline or otherwise taken action to protect Frazier's students. These allegations are more than sufficient to state a claim for a “history of widespread abuse” that a supervisor, Principal Lambert, failed to stop.

         The complaint also adequately alleges that Principal Lambert employed a custom of deliberate indifference to Frazier's conduct. “[A] principal who fails to appropriately respond to repeated reports of a subordinate's abuse of students may, depending on the facts of the case, be said to have acted with deliberate indifference.” Williams, 181 F.Supp.3d at 1128 (citing Doe v. Bd. of Educ. of Consol. Sch. Dist. 230 Cook Cty., Ill, 18 F.Supp.2d 954, 958 (N.D. Ill. 1998) (denying summary judgment in a school abuse case for principal/assistant superintendent, band director, and a handful of other defendants because there was sufficient evidence suggesting some defendants may have “turned a blind eye” to teacher's abuse of students)); Hill v. Cundiff, 797 F.3d 948, 979 (11th Cir. 2015) (stating that a jury could find a principal's “doing nothing” in response to reports of sexual harassment amounted to deliberate indifference that subjected student to further abuse); Taylor, 15 F.3d at 457 (denying summary judgment where principal “demonstrated deliberate indifference to [teacher's] offensive acts by failing to take action that was obviously necessary to prevent or stop the abuse”).

         Here, C.H. alleges that Principal Lambert engaged in a pattern of dismissiveness and intimidation towards the numerous Silver Sands employees who reported Frazier's abusive conduct.[19] These alleged facts, if true, plausibly establish that Principal Lambert knew Frazier was harming disabled students for at least eighteen months and did nothing about it-or worse, took actions that may have condoned or acquiesced in it. Accordingly, the Court finds C.H. has stated a substantive due process claim for supervisory liability against Principal Lambert.

         iii. Principal Williams

         The complaint also plausibly alleges facts sufficient to support an inference that Principal Williams was aware of Frazier's history of physically abusing nonverbal, developmentally disabled children and failed to stop it. Principal Williams did not become Silver Sands' principal until January 2016, by which time the alleged abuse had been ongoing for at least 1.5 years. There are no allegations that Principal Williams was on the faculty at Silver Sands-or anywhere else in the School District-before assuming the principal position. Thus, even viewed in the light most favorable to C.H., the complaint does not support a reasonable inference that Principal Williams would have had an opportunity to learn of Frazier's abusive conduct before January 2016, at the earliest.

         However, C.H.'s factual allegations plausibly show that after joining Silver Sands in January 2016, Principal Williams received notice of Frazier's history of physically abusing students. Again, it is alleged that the abuse was “obvious, flagrant, and rampant” in that it occurred openly in classrooms, in school hallways, and on school field trips. Principal Williams also allegedly received “written notification” of the “ongoing abuses” from teachers' aides in Frazier's classroom in early February 2016, which detailed a litany of separate incidents of physical abuse. See ECF No. 55 at 29. The abuse allegations were substantiated by an internal investigation shortly thereafter, yet Principal Williams and other School District officials left Frazier in the “same [ESE] classroom, ” where he continued the same physical abuse of students, through the end of the 2015-16 school year. See Id. at 32-33. Teachers' aides allegedly continued reporting the ongoing abuse to Principal Williams and he, like Principal Lambert before him, allegedly did nothing about it, retaliating against the aides instead. Throughout the relevant time period in this case, Principal Williams never made a mandatory report to the DCF Child Abuse Hotline. Taken together, these allegations plausibly support C.H.'s claim that Principal Williams was on notice of a need to correct Frazier's history of physically abusing ESE, but failed to do so.

         iv. HR Assistant Superintendent Smith and Superintendent Jackson

         The same is true for HR Assistant Superintendent Smith and Superintendent Jackson.[20] According to the complaint, these two defendants received written notice of Frazier's lengthy history of physical abuse against ESE students at the same time as Principal Williams-on February 16 and 18, 2016. At this point, Smith allegedly advised Frazier of the “seriousness of the allegations against” him and the “need for [his] students to be protected from him.” See id. at 31. Thereafter, the physical abuse allegations were substantiated by an internal investigation submitted to HR Assistant Superintendent Smith and Superintendent Jackson, among others. Nevertheless, and inexplicably, Frazier was allegedly left in the “same [ESE] classroom, ” where he continued the same physically abusive conduct, through the end of the 2015-16 school year. See id. at 32-33. During this period, Silver Sands employees allegedly continued making reports directly to these two supervisory defendants that Frazier was still harming ESE students.[21] It is alleged that neither of these defendants ever acted to eliminate the danger that Frazier posed to ESE students or reported his abuse to the DCF Child Abuse Hotline, despite their state-mandated reporting obligation. Taken together, these factual allegations plausibly support an inference that HR Assistant Superintendent Smith and Superintendent Jackson were aware of many more than “one or two incidents” of child abuse by Frazier and, thus, of a need to stop his behavior, but failed to do so. See Williams, 181 F.Supp.3d at 1122 (observing that “anything more than” one or two incidents of abuse is “generally sufficient” to “indicate a pattern” at the motion to dismiss stage). This plausibly establishes a causal connection between Frazier's alleged constitutional violations and the two supervisory defendants' actions and inactions.

         At this point, the Court finds it important to emphasize that the above determinations do not amount to a final conclusion that the alleged conduct of any of the supervisory defendants-Principal Lambert, Principal Williams, HR Assistant Superintendent Smith, or Superintendent Jackson-did, as a matter of fact or law, violate C.H.'s substantive due process rights. Indeed, there are many “good faith but ineffective responses that might satisfy a school official's [constitutional] obligation[s]” with respect to allegations that a teacher is physically abusing students. See Taylor, 15 F.3d at 456 n.12. Here, C.H. claims that the supervisory defendants knowingly abdicated their duty to protect him, which, in turn, resulted in a constitutional injury. Whether C.H. ultimately will be able to establish the requisite knowledge and “blind eye” acquiescence in Frazier's alleged abuse is unknowable at this stage. However, given the flexible notice pleading standard and the detailed allegations of abuse, the knowledge and roles of the supervisory defendants, and their alleged failure to report or take corrective action, the Court finds the complaint sufficient to merit the development of an evidentiary record to permit full consideration of all relevant facts before a final conclusion is reached.[22]

         c. Equal Protection, Fourteenth Amendment[23]

         C.H. also argues that Principal Lambert, Principal Williams, HR Assistant Superintendent Smith, and Superintendent Jackson violated his rights under the Equal Protection Clause.[24]

         “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Generally, equal protection violations arise when the state classifies and treats “some discrete and identifiable group of citizens differently from other groups.” See Corey Airport Serves., Inc. v. Clear Channel Outdoor, Inc., 682 F.3d 1293, 1296 (11th Cir. 2012). To state an equal protection claim, the plaintiff must therefore show that the state treated him differently than other similarly situated persons based on his or her membership in an identifiable group or class of persons. See id.; see also Leib v. Hillsborough Cty. Pub. Transp. Comm'n, 558 F.3d 1301, 1305 (11th Cir. 2009). In addition, “proof of discriminatory intent or purpose is a necessary prerequisite to any Equal Protection Clause claim.” Corey, 682 F.3d at 1297 (citing Parks v. City of Warner Robins, 43 F.3d 609, 616 (11th Cir. 1995)). Importantly, for purposes of stating an equal protection claim against a supervisor pursuant to § 1983, the plaintiff must allege facts showing that the supervisory defendant acted with discriminatory intent or purpose. See Iqbal, 556 U.S. at 676-77; see also C.C. ex rel. Andrews v. Monroe Cty. Bd. of Educ., 427 Fed.Appx. 781, 783 (11th Cir. 2011) (citing T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir. 2010)). Specifically, this requires the plaintiff to show that the supervisory defendant undertook a discriminatory action “because of, not merely in spite of, the action's adverse effect upon an identifiable group.” See Iqbal, 556 U.S. at 677; see also Andrews, 427 Fed.Appx. at 783.

         The supervisory defendants generally argue that C.H. has failed to state an equal protection claim. The Court disagrees. Here, C.H. alleges that he and other nonverbal disabled students were intentionally treated differently than verbal, disabled students and/or non-disabled students. See ECF No. 55 at 71. Specifically, C.H. alleges that Frazier targeted and abused nonverbal, disabled students, “as opposed to other students who were verbal enough to report his abuse.” Id. at 21. It is similarly alleged that the supervisory defendants concealed, failed to stop, and failed to adequately address the abuse of nonverbal, disabled students because of their profound disability and inability to speak out against the abuse.[25]See id. at 71. At this early stage of the proceedings, the Court finds these allegations sufficient to state an equal protection claim against Principal Lambert, Principal Williams, HR Assistant Superintendent Smith, and Superintendent Jackson. See Williams, 181 F.Supp.3d at 1137-38 (finding plaintiff stated a plausible equal protection claim against school principal where he alleged that abuse of nonverbal, disabled students was concealed or ignored while other verbal, disabled and non-disabled students were “not subject to the same abusive treatment . . . and reports of their abuse were not ignored”); see also Grindle, 599 F.3d at 588-89 (determining that jury could reasonably infer that principal acted with intent to ...


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