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N.P. v. The School Board of Okaloosa County

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

September 30, 2019

N.P., a minor, by EDDIE PERILLO, his natural guardian, Plaintiff,



         Plaintiff N.R. is an autistic, nonverbal child, who allegedly suffered physical and verbal abuse at the hands of his special education teacher, Marlynn Stillions, while he was enrolled at Kenwood Elementary School in Okaloosa County, Florida during the 2014-15 and 2015-16 school years. N.R., through his father, Eddie Perillo, filed the instant action against the Okaloosa County School Board, the Sheriff of Okaloosa County in his official capacity, and eight individual defendants, alleging federal constitutional and statutory claims, as well as claims under Florida law.[1] All defendants except Stillions have moved for dismissal of N.P.'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. 135, and construed in favor of N.P., are as follows.[3]

         A. The Parties

         Plaintiff N.P. is an autistic, nonverbal child enrolled in the exceptional students education (“ESE”) program at Kenwood in Fort Walton Beach, Florida. Kenwood 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 Program Director for the ESE Department was Melody Sommer.[6] 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. Deputy Dwayne Vasiloff was employed by the Okaloosa County Sheriff's Office as Kenwood's Resource Officer.[7] Defendant Marlynn Stillions was a special education instructor at Kenwood during the 2014- 15 and 2015-16 school years. Defendant Angelyn Vaughan was the principal at Kenwood until she retired after the 2015-16 school year, at which time Julie Pickard became Kenwood's principal.[8]

         B. The Allegations of Abuse at Kenwood

         In April 2014, N.P., a nonverbal three-year old child diagnosed with autism spectrum disorder, began attending the pre-kindergarten ESE program at Kenwood. During the 2014-15 and 2015-16 school years, when N.P. was four and five years old, he was assigned to Stillions's special education classroom. During those years, unnamed school employees observed N.P. and other nonverbal students suffer numerous abuses by Stillions. For example, as “disciplinary tactics, ” Stillions forced vinegar into N.P.'s mouth and sprayed it in his face, or instructed teacher's assistants to do so; kneed him in the head and body to force him to sit down; angrily screamed and yelled at him and other ESE nonverbal students; and, for “not behaving” or “for the sole purpose of provoking and upsetting” them, Stillions would deprive N.P. and other ESE students of their lunch or portions of their breakfast. According to the Second Amended Complaint, Stillions would purposefully trip N.P. as he entered the cafeteria and, at times, restrained him by the waistband and shirt, carried him into the cafeteria, and threw him on the floor. It is alleged that on numerous occasions, N.P. was observed lying on the floor of the cafeteria visibly upset or crying as Stillions used her foot to push or kick him down one of the aisles. In addition, Stillions secluded nonverbal ESE students, including N.P., in a basket, where she would place a bean bag on or near the child's genitals and step on it to cause the child pain.[9] Also on numerous occasions, Stillions grabbed and pinched N.P.'s face and body, causing red marks and bruises. On at least one occasion, Stillions allegedly told another employee that grabbing and pinching students was how she relieved her own stress. It is alleged that Stillions targeted N.P. and other nonverbal students because of their vulnerable status and inability to speak out or complain. N.P. is alleged to have suffered physical pain from abuse, evidenced by red marks and bruises on his skin, as well as emotional pain, including post-traumatic stress disorder, all of which has resulted in medical expenses.

         According to the complaint, the abuse was “rampant and widespread” and “consistent” over a two-year period and many unnamed School District employees observed Stillions inflicting abuse on N.P. and others. It is alleged generally that all of the defendants were on notice of Stillions's conduct but failed to intervene or otherwise properly report the abuse.[10] Specifically, Kenwood Principal Vaughan was told in August 2014 by one employee that another Kenwood employee had observed Stillions spraying a student in the face with a squirt bottle, yet Vaughan took no action in response. In February 2016, a Kenwood employee reported to Principal Vaughan that Stillions had grabbed N.P. by the waist band and collar of his shirt. Again, nothing was done. A month later, in March 2016, a Kenwood employee reported to Vaughan that N.P. had red marks on his face from Stillions pinching him. Principal Vaughan took no action to investigate or intervene until April 26, 2016, when she sent an email to the School District's Human Resources Department describing “Code of Ethics violations” reported by several School District employees “who had seen Stillions acting abusively to nonverbal, disabled ESE students at Kenwood.” ECF No. 135 ¶ 102. Farley commenced an investigation into Stillions's conduct the next day, April 27. As discussed further below, by late February 2016, HR Assistant Superintendent Smith and Superintendent Jackson were already on notice of similar abuse at a different school within the School District, Silver Sands, where another ESE teacher was also abusing nonverbal disabled ESE students. It is alleged that the School Board, as well as Jackson, Smith, and Farley were notified about Stillions's abuse “shortly after” being made aware of the abuse at Silver Sands.

         As part of Farley's investigation of Stillions, he interviewed approximately 20 School District employees. Those interviewed expressed grave concerns about Stillions's behavior and recounted the history of her abuse of ESE students, including N.P., dating back to the 2014-15 school year. During the investigation, Farley and unnamed School District administrators told employees they were not to discuss the investigation or their knowledge of Stillions's conduct, which was allegedly intended to intimidate Kenwood employees and to further conceal the multi-year pattern of abuse. It is also alleged that school officials, namely Superintendent Jackson, HR Assistant Superintendent Smith, Principal Julie Pickard, and ESE Director Melody Sommer were aware of Farley's investigation. On June 17, 2017, Farley presented an Investigative Summary Report to Smith and Pickard, which outlined the details and findings of his investigation, including multiple confirmed allegations of child abuse of N.P. Although Farley recommended some disciplinary measures against Stillions, he did not make a mandatory report to the Florida Department of Children and Families (“DCF”) Abuse Hotline as required by law, and neither did Smith or Pickard.

         Kenwood Resource Officer, Deputy Vasiloff, was also allegedly on notice of Stillions's widespread abuse of ESE students, including N.P., and failed to intervene or report the abusive conduct.[11] N.P. alleges that investigators from the DCF “approached” Vasiloff sometime between 2015 (N.P.'s second year in Stillions's classroom) and 2017 regarding alleged child abuse of ESE students. Also, although DCF was called at least 50 times for investigative visits to Kenwood regarding student abuse from 2015-2017, Vasiloff intentionally refused to conduct the required law enforcement investigations and, in the vast majority of cases, did not generate any report regarding the allegations of abuse.[12]

         On July 18, 2016, one month after Farley's report on Stillions, 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. ECF No. 135 at ¶109. 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. Two weeks later, on August 1, 2016, Smith “dismissed the case” against Stillions as untimely and decided not to include Farley's report in Stillions's personnel records. The School Board, Jackson, Smith, Farley and Sommer then approved Stillions for a transfer to Silver Sands for the following 2016-17 school year, where she 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. N.P. 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 abuse of ESE students.[13]

         C. The Allegations of Abuse at Silver Sands

         By February 2016, even before being notified of Stillions's abusive conduct, School District officials Jackson, Smith, and Farley were aware of abusive conduct towards ESE students at Silver Sands. Roy Frazier, an ESE instructor at Silver Sands, and one teacher's aide, subjected nonverbal ESE students in Frazier's classroom to persistent physical and verbal abuse, restraint, and seclusion tactics. Frazier reportedly “pushed, slapped, punched, and kicked” ESE students entrusted to his care with great force, made students cry by pinching and flicking them, and restrained students against their will for hours, strapping them into a stationary exercise bike, confining them to cardboard boxes, and placing them in a small, dark room. He told an aide that he was using behavioral techniques intended to redirect the students' attention by inflicting pain on them. He also would take ESE students on “field trips, ” which were nothing more than opportunities for him to shop at garage sales while leaving the students locked in a hot transport van. According to the complaint, Teacher's aides repeatedly reported this conduct to the principal of Silver Sands, Farley, Jackson, and Smith over a two year period, yet no action was taken until early 2016, when Farley conducted an investigation into the reports of abuse by Frazier.[14] An administrative assistant at Silver Sands acknowledged that employees were instructed by School District administration to report abuse allegations only to the principal for the purpose of concealing the abuse and intentionally circumventing the mandatory reporting requirements of Florida law.

         On February 24, 2016, Farley submitted his investigative report to the Human Resources Division where Smith was the HR Assistant Superintendent, confirming seven out of seven abuse allegations, which he characterized as “ethical violations, ” including wrongful physical contact with ESE students. On March 5, 2016, Farley sent a summary of the investigation to Smith and Jackson. On March 16, 2016, Smith then sent Jackson a letter recommending that Frazier receive a 3-day paid suspension for “not following student [behavioral intervention plans]” and “not documenting accurate travel locations when he took students on field trips.” ECF 135, ¶94. The next day, Superintendent Jackson recommended the paid suspension to the School Board. It is alleged that Jackson and Smith “intentionally concealed” the confirmed physical abuse of nonverbal disabled ESE students by Frazier.[15] Id. It is also alleged that Frazier remained in the classroom through the end of the school year and when asked, prior to the end of the school year, why Frazier had been left in the classroom with the same nonverbal students, Jackson and Smith did nothing. It is further alleged that School District administrators retaliated against aides who complained of or reported the abuse, moving them to different classrooms or changing their lunch hour to prevent them from being present with Frazier and witnessing further abuse. Jackson, Smith, and Farley each failed to make a mandatory report of the abuse to the DCF.[16] N.P. alleges that this was all part of a “longstanding custom, policy, and/or practice” within the School District of deliberate indifference to, and concealment of, abuse of ESE students.

         C. Procedural Posture

         In the Second Amended Complaint, N.P. alleges constitutional claims of unlawful restraint, substantive due process, equal protection, and conspiracy to interfere with N.P.'s civil rights on theories of individual and supervisory liability and a custom of deliberate indifference and concealment (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 various state law claims against Stillions for negligence and battery (Counts Eighteen and Twenty[17]), and state law claims against the School Board and the Okaloosa County Sheriff for negligent hiring, training, and supervision, and respondeat superior (Counts Fourteen through Seventeen). In response, nine of the ten defendants moved to dismiss for failure to state a claim, raising issues of governmental and qualified immunity, exhaustion of administrative remedies, and the intracorporate conspiracy doctrine.[18]

         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 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 N.P.'s constitutional claims against the individual defendants under supervisory liability, including whether any of them are entitled to qualified immunity. The Court then addresses N.P.'s constitutional and federal law claims against the School Board, followed by the constitutional conspiracy claims, and state law claims against the School Board and Sheriff.

         A. Individual Defendants, Constitutional Claims

         In Counts Five, Six, and Seven, N.P. alleges violations of his substantive due process and equal protection rights under 42 U.S.C. § 1983 (providing a cause of action for the deprivation of a constitutional or federal statutory right by a state actor).[19] More specifically, N.P. argues that Superintendent Jackson, HR Assistant Superintendent Smith, Investigator Farley, Principal Vaughan, Principal Pickard, ESE Program Director Sommer, and Deputy Vasiloff are liable as supervisors because they had notice of Stillions's abusive conduct, failed to adequately respond, cultivated a culture and atmosphere of intimidation in the School District that precluded reports or instructed others not to report, and established and implemented policies that allowed a custom of deliberate indifference, which in turn caused continued abuse in violation of N.P.'s substantive due process rights.[20] In addition, it is alleged that the defendants targeted N.P. for different treatment by their deliberate indifference because he was a nonverbal disabled ESE student, in violation of his right to equal protection.[21]

         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 N.P.: they acted in their capacities as a deputy, program director, principal, investigator, assistant superintendent, or superintendent of a public school district. Because it is not alleged that these defendants participated in the physical abuse of N.P., the only issue is whether N.P. has adequately alleged that these defendants deprived him of his constitutional rights while acting as Stillions's supervisors.

         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. Doe v. Sch. Bd. of Broward Cty., Fla., 604 F.3d 1248, 1266 (11th Cir. 2010). Importantly, “[t]here is no bright line identifying when misconduct transforms from a couple of isolated instances into a pattern of abuse.” Williams v. Fulton Cty. Sch. Dist., 181 F.Supp.3d 1089, 1128 (N.D.Ga. 2016) (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 if 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. In other words, the requisite causal connection for establishing supervisory liability is shown where the “responsible supervisor” is on notice of widespread abuse and the need to correct the deprivation but fails to do so. See Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).

         1. Jackson, Smith, Vaughan, and Farley

         As an initial matter, Jackson and Vaughan, as the District Superintendent and the Principal of Kenwood, respectively during the relevant time frame, were clearly supervisors, and they do not argue otherwise. Smith and Farley, however, argue that they did were not Stillions's supervisors. N.P. responds that supervisory liability is not dependent on a direct supervisor relationship, citing 29 U.S.C. § 152(11) (defining supervisor broadly to include an individual with authority to hire, transfer, discharge, or discipline “or to effectively recommend such action”).

         In Smith's view, the pleading conflates into one category individuals with various roles under the hierarchy created for schools in the Florida Constitution and the Florida statutes, which gives the Superintendent and the Principal supervisory authority over personnel.[22] On consideration, the Court is not prepared to find, as a matter of law or fact, that Smith was a supervisor. There is no express allegation that she was Stillions's supervisor and no allegation that she had oversight over Stillions's classroom conduct. Nonetheless, drawing all inferences N.P.'s favor, given Smith's title of Assistant Superintendent and her role in advising the Superintendent with regard to disciplinary matters, together with the allegation that she dismissed the disciplinary case against Stillions and participated in the decision to transfer her to Silver Sands, the Court finds that it is plausible on these allegations to infer that Smith had a supervisory role. Whether that inference will be justified on a fully developed record is a question for another day.[23]

         However, no such plausible inference arises from the allegations about Farley's role as Investigator. 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. 135, ¶22, 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 Stillions. 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 recommended disciplinary actions against Stillions. There is no factual allegation showing that Farley had authority to remove Stillions from the classroom, or otherwise effectuate that result. In short, N.P. 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.[24] Consequently, Counts Five, Six, and Seven fail to state a claim against Farley.

         Turning to the substance of the § 1983 claims, Jackson, Smith, and Vaughan argue that the Second Amended Complaint fails to show a constitutional violation for purposes of supervisory liability. Each argues that she did not participate in the underlying abuse, but, as already noted, their personal participation in the abuse is neither alleged nor is it required for supervisory liability. Notably, they do not argue that Stillions's underlying conduct did not amount to a substantive due process violation. Thus, the defendants' liability for a substantive due process violation as supervisors will turn on their knowledge of, and conduct in response to, that violation.

         Regarding notice and causation, Jackson, Smith, and Vaughan, argue that the allegations of the Second Amended Complaint amount to nothing more than mere labels and conclusions. While it is true that some allegations are conclusory in nature, i.e., that Stillions's abusive conduct was “rampant and widespread and witnessed by, and/or reported to” numerous School Board and School District employees or that they were “on notice” and “had knowledge of the abuse, ” the Court concludes that the Second Amended Complaint contains factual allegations sufficient to substantiate a plausible inference on issues of notice and causation as to these defendants. Jackson and Smith argue that the complaint does not plausibly show they were aware of widespread abuse at Kenwood prior to the end of the school year, but this argument too narrowly confines the issue to Stillions's conduct alone and does not accurately reflect the allegations as a whole. N.P. alleges District-wide abuse beginning with the complaints against Frazier. It is sufficiently alleged that Jackson and Smith were aware of Frazier's multi-year abuse of many ESE students at Silver Sands by at least February 2016 or early March 2016, when Farley completed his investigation of Frazier and confirmed the abuse. “Shortly after” learning of Frazier's abuse, Jackson and Smith were allegedly made aware of the complaints of abuse by Stillions, ECF No. 135, ¶¶ 104, 101, which also included multiple incidents of abuse over a two-year period. The allegations are clear that Jackson and Smith knew of the complaints against Stillions at least by the start of Farley's investigation into her conduct on April 27, 2016.

         The complaint also alleges that Jackson and Smith inextricably took no action to remove either Frazier or Stillions from the classroom or adequately discipline them. Thus, it is plausibly alleged that, because Frazier's and Stillions's conduct impacted many ESE students at two different schools, Jackson and Smith were aware of widespread abuse before the end of the 2015-16 school year and the need to remove these teachers and implement corrective policies in the School District. 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). Their inaction and concealment of the abuse in several instances plausibly establishes a causal connection between the action and inaction of Jackson and Smith and the alleged constitutional violations of Frazier and Stillions, causing N.P. to continue suffering abuse through the end of the 2015-16 school year.[25]

         Principal Vaughan argues that the three single complaints she received about Stillions's abuse, one as early as August 2014, were insufficient to put her on notice of a pattern of ongoing constitutional injury. The Court disagrees. Vaughan received and ignored a complaint about Stillions in August 2014, when it was reported that Stillions used a spray bottle to spray ESE students in the face. Vaughan ignored a second report in February 2016 of Stillions having grabbed N.P. by the waist band and collar, and in March 2016, Vaughan received a third report of Stillions causing red marks on N.P.'s face. Even then, no immediate action was taken. Vaughan finally took action at the end of April, and an investigation was initiated. However, she made no report of abuse to DHS and did not remove Stillions from the classroom or otherwise protect N.P. from further abuse through the end of the school year. Giving N.P.'s allegations every reasonable inference, as the Court must at this stage, they plausibly suggest Vaughan was on notice of a pattern of abuse by Stillions as of March 2016 (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.

         On the supervisory equal protection claim, it is necessary for N.P. to allege facts showing that the supervisory defendants acted with discriminatory intent or purpose, which, as noted above, requires a showing that the supervisory defendants' discriminatory actions or omissions were taken “because of, not merely in spite of, the action's adverse effect upon an identifiable group.” See Iqbal, 556 U.S. at 676- 77. Discriminatory intent on the part of Jackson, Smith, and Vaughan is properly inferred from the allegations of the complaint. N.P. alleges that he and other nonverbal, disabled students were intentionally treated differently than verbal, disabled students and/or nondisabled students because of their disabilities and inability to speak out. N.P. also alleges that Stillions targeted and abused nonverbal, disabled students, “because she knew they were vulnerable, defenseless children and she knew they were unable to report the abuse, advocate for themselves, or otherwise confront her for such conduct.” ECF No. 135, ¶66. He further alleges that Jackson, Smith, and Vaughan were deliberately indifferent to the rights of the nonverbal, disabled ESE students, including N.P., because of their disability. 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.[26] At this early stage of the proceedings, the Court finds these allegations sufficient to permit an inference of discrimination as to against Jackson, Smith, and Vaughan. 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 nondisabled students were “not subject to the same abusive treatment . . . and reports of their abuse were not ignored”); see also T.E. v. Grindle, 599 F.3d 583, 588-89 (7th Cir. 2010)) (determining that a jury could reasonably infer that the principal acted with intent to discriminate on the basis of gender where there was evidence that she covered up and attempted to downplay the sexual abuse of female students); cf. Hill v. Cundiff, 797 F.3d 948, 978 (11th Cir. 2015) (holding that a school principal can violate a female student's rights under Equal Protection Clause when he does nothing in response to known sexual harassment and such inaction amounts to deliberate indifference).

         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 Vaughan, HR Assistant Superintendent Smith, or Superintendent Jackson-did, as a matter of fact or law, violate N.P.'s substantive due process or equal protection 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, and discriminatory intent is also highly fact intensive. N.P. claims that the supervisory defendants' conduct knowingly and with discrimination abdicated their duty to protect him, which, in turn, resulted in constitutional injury. Whether N.P. ultimately will be able to establish the requisite knowledge and “blind eye” acquiescence in Stillions's alleged abuse is unknowable at this stage. However, given the flexible notice pleading standard[27] and the detailed allegations of abuse, and the knowledge, intent, and roles of the supervisory defendants, together with 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.[28][29] See Cottone, 326 F.3d at 1360 (stating the “causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and [s]he fails to do so”).

         2. Pickard and Sommer

         Pickard became Kenwood's principal “following the 2015-2016 school year, ” which was after Principal Vaughan retired. ECF No. 135 ¶25. There is no plausible allegation that her actions, inaction, or concealment of Stillions's abuse--which could only have been based on her knowledge and actions as a supervisor after the fact, in the summer of 2016--caused any constitutional injury to N.P. before the end of the 2015-16 school year. Although there are allegations that Pickard failed to report and actively participated in a subsequent cover-up, any factual allegations that Pickard was on notice of continuing, ongoing abuse are too conclusory and in fact are contrary to the allegation that she became principal following the 2015-16 school year.

         There also is no plausible factual allegation that Sommer, the program director for the ESE program, had knowledge of widespread abuse and acted with indifference causing injury to N.P. She is alleged to have participated in transferring Stillions to Silver Sands, but no injury is alleged after that time. The only allegation involving Sommer before the end of the school year that could establish a causal connection to harm to N.P. is that she knew of Farley's investigation of Stillions and made no report to DCF. Without more, these bare allegations are insufficient to provide a basis for inferring she was on notice of widespread abuse and was deliberately indifferent. Consequently, the Second Amended Complaint fails to state a claim of supervisory liability against Pickard or Sommer in Counts Five, Six, and Seven.

         3. Vasiloff

         Deputy Vasiloff was employed by the Okaloosa County Sheriff's Office as Kenwood's Resource Officer. He was not employed by the School District. N.P. concedes there is no assertion that Vasiloff personally participated in the abuse and thus is relying on Vasiloff's actions and omissions for supervisory liability. Without citation to law, N.P. states it is “common sense” that Vasiloff was acting in a supervisory role and asserts that the issue of whether he was a supervisor is factual in nature and should not be resolved at the motion to dismiss stage. Although there are allegations that Vasiloff was empowered to protect the safety of children and, in a conclusory manner, that he was aware of ongoing abuse of ESE students at Kenwood and failed to report it or to participate in investigations when approached by DCF at some point during the 2015-16 school year, there are no factual allegations within ¶¶ 31-32 (cited by N.P.) or any other paragraphs of the Second Amended Complaint that plausibly show that Vasiloff held a supervisory position over teachers at the school, let alone Stillions. Therefore, Counts Five, Six, and Seven fail to state a claim of supervisory liability against Vasiloff.

         4. Qualified Immunity

         All defendants argue they are entitled to qualified immunity with respect to N.P's constitutional claims. A complaint is subject to dismissal under Rule 12(b)(6) where its allegations, on their face, show that an affirmative defense bars recovery on the claim. Cottone, 326 F.3d at 1357. “In reviewing a motion to dismiss based on qualified immunity, [a] district court is required to accept the factual allegations in the plaintiff's complaint as true and draw all reasonable inferences in favor of the plaintiff.” Epps v. Watson, 492 F.3d 1240, 1242 n.1 (11th Cir. 2007) (quoting Wilson v. Strong, 156 F.3d 1131, 1133 (11th Cir 1998)).

         The affirmative defense of qualified immunity shields public officials performing discretionary functions from suit in their individual capacities, unless their conduct “violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To receive the benefit of qualified immunity, an official must first show that he was acting within his discretionary authority when the allegedly unlawful acts occurred. See Cottone, 326 F.3d at 1357. Once this showing is made, the burden shifts to the plaintiff to show that the official is not entitled to qualified immunity. Id. at 1358. An official is not entitled to qualified immunity where: (1) his alleged conduct violated a federal statutory or constitutional right; and (2) the right was clearly established at the time of the violation. Id. at 1358-59. A right is “clearly established” if “it would be clear to a reasonable [public official] that his conduct was unlawful in the situation he confronted.” Id. at 1359. In other words, the state of the law must have provided the official with “fair warning that [his] alleged [conduct] was unconstitutional.” Id.

         In this case, it cannot be reasonably disputed that the acts forming the basis of N.P.'s § 1983 claims are discretionary in nature.[30] Moreover, the Court has already found that the allegations in the operative complaint, taken as true, do not state a plausible constitutional claim for supervisory liability against Farley, Pickard, Sommer, and Vasiloff. Consequently, they are entitled to qualified immunity on the § 1983 claims in Counts Five, Six, and Seven.

         As to Jackson, Smith, and Vaughan, the Court has found the complaint, taken as true, sufficient to state plausible supervisory substantive due process and equal protection claims. Thus, for purposes of qualified immunity, the Court must now consider whether reasonable school officials would have known and understood that such conduct is unconstitutional. It has long been clearly established that supervisory liability under § 1983 is imposed against supervisory officials in their individual capacities for: (1) their own culpable action or inaction in response to notice of constitutional deprivations resulting from a subordinate's “history of widespread abuse”; and (2) conduct reflecting an “improper custom or policy” of deliberate indifference to the constitutional rights of others. Broward Cty., 604 F.3d at 1266; Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999); see also Iqbal, 556 U.S. at 676-77 (recognizing supervisory liability for equal protection violations). The right to be free from arbitrary and excessive corporal punishment in a school context is also clearly established under Supreme Court and Eleventh Circuit precedent, see Ingraham v. Wright, 430 U.S. 651, 672-74 (1977); Neal ex rel. Neal v. Fulton Cty. Bd. of Educ., 229 F.3d 1069, 1075 (11th Cir. 2000); Kirkland, 347 F.3d at 904, as is the right to be free from intentional and arbitrary disparate treatment on account of disability, see Cleburne, 473 U.S. at 446. A reasonable supervisory school official would have known that the alleged multi-year history of physical abuse of nonverbal ESE 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. The question of whether the allegations can be substantiated presents “another issue for another time.” Williams, 181 F.Supp.3d at 1129. For now, N.P. has pled enough facts to overcome qualified immunity as to Jackson, Smith and Vaughan on Counts Five, Six, and Seven at this stage.

         B. The School Board--Federal Claims

         1. Constitutional Claims

         Counts One, Two, and Three allege that the School Board, a municipal entity, is responsible for the violation of N.P.'s rights to be free from unreasonable seizure and the use of excessive force at the hands of Stillions, [31] as well as equal protection under the laws based on the intentional targeting of nonverbal ESE students for abuse.[32]See Monell v. Dep't of Social Services, 436 U.S. 658 (1978) (discussing municipal liability). There is no challenge to any formally adopted policy of the School Board. Instead, it is alleged that the School Board had an unofficial custom of deliberate indifference and failure to respond to abusive conduct by teachers; failed to implement or enforce policies regarding training, supervising or disciplining employees in the reporting of child abuse and to prevent the violation of constitutional rights of students; and cultivated an atmosphere of intimidation to prevent reports of child abuse or ...

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