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Kirk v. Monroe City School Board

United States District Court, W.D. Louisiana, Monroe Division

August 24, 2018

BONNIE KIRK INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, “JS”
v.
MONROE CITY SCHOOL BOARD, ET AL.

          TERRY A. DOUGHTY, Judge

          SUPERSEDING REPORT AND RECOMMENDATION

          Karen L. Hayes United States Magistrate Judge

         Before the undersigned Magistrate Judge, on reference from the District Court, is a motion to dismiss for failure to state a claim upon which relief can be granted, [doc. # 4], filed by defendants Monroe City School Board, Brent Vidrine, Roosevelt Rankins, Whitney Martin (incorrectly sued initially as “Whitney Morton”); and W. R. Berkley Corp (initially sued as XYZ Insurance Company). The motion is opposed. For reasons set forth below, it is recommended that the motion be granted.

         Background

         On November 8, 2017, Bonnie Kirk filed the instant complaint individually, and on behalf of her minor child, “JS, ” against the Monroe City School Board (“MCSB”); Brent Vidrine, MCSB Superintendent; Roosevelt Rankins, Neville High School Dean of Student Affairs; Whitney Martin, former Neville High School Principal (incorrectly named in the complaint as “Whitney Morton”); and W. R. Berkley Corp (initially sued as XYZ Insurance Company). Kirk asserted claims under 42 U.S.C. § 1983 for violations of the Fourteenth Amendment to the U.S. Constitution, 42 U.S.C. § 1981, Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681. She also set forth state law tort claims for defamation and slander. Kirk requested resulting compensatory, special, punitive, and exemplary damages; reasonable attorney's fees; costs; interest; and equitable relief.

         The court recites the following narrative that was set forth in plaintiff's original complaint:

[i]n a continuing saga of events commencing on August 15, 2016, the Neville High School Dean of Students Defendant ROOSEVELT RANKINS made an announcement for teachers to send all students with dye in their hair to the office. All African American males were sent to the office as a result of this announcement. “JS”, who had dyed his hair over the summer was one of the students. Defendants ROOSEVELT RANKINS, WHITNEY [MARTIN], and other school officials prevented the minor “JS” from attending class, and eating lunch because his hair was dyed blond but allowed white students and female students with dye in their hair to attend class.
On August 16, 2016, Plaintiff went to the school and attempted to meet with Defendant RANKINS and then with the former principal WHITNEY [MARTIN], who advised that they would allow “JS” to go to class contingent upon Plaintiff's agreement to change “JS'” hair over the weekend.
Subsequently, Plaintiff met to discuss the situation with Defendant VIDRINE who was visiting the school. Defendant VIDRINE pointed out that the school's district dress code bars “outlandish” hair colors and asked why “JS”'s hair couldn't be one color instead of “two toned.” Plaintiff informed Defendant VIDRINE that she just saw three white students in the hallway who had dyed hair. Defendant VIDRINE stated he would talk with Defendants [MARTIN] AND RANKINS on the condition that “JS” would “tone the hair down a bit.”
Plaintiff further learned from the MONROE CITY SCHOOL BOARD that there were no disciplinary referrals nor dress code policy related to students' hair for the 2016-2017 school year and that no other students were disciplined in the school during the 2016-2017 school year for their color or dyeing their hair.
Defendant RANKINS ridiculed the minor “JS” by calling him a thug and even went so far as to ask him “if he was gay with ‘that mess' in his head.” RANKINS made further comments about “JS” to other students and other school officials, stating to them that “JS”, “Looked like a thug with that mess in his hair.” RANKINS continued to ridicule “JS” and made comments to other school officials that “JS” looked “a fool.” RANKINS continued to berate, portray and convey “JS” as a thug and a disrespectful child because of his hair. RANKINS continued with his intimidation and ridicule tactics towards “JS” every other day and even encouraged other students not to talk to “JS”, isolating “JS” from his fellow colleagues.
“JS” was one of the managers on the Neville High School football team; however, RANKINS isolated, overlooked, and ignored “JS” while being attentive to and treating other managers with respect.
Plaintiff complained to school officials that “JS” was feeling depressed and sad because he was the subject of ridicule and discrimination by school officials. In retaliation, on November 16, 2016, Defendant RANKINS called “JS” to his office and stated that he was about to, “get his butt out of here, ” making reference to an incident whereby RANKINS allegedly encouraged a fellow female student to lie and say “JS” committed an unsubstantiated act. Thereby causing “JS” to be suspended on November 14, 2016, from school and face an expulsion hearing which said expulsion was denied on November 30, 2016.
In the interim, “JS” was not allowed to travel to New Orleans with the school's football team for the state championship game because of the alleged unsubstantiated allegation. In March, 2017, “JS” was featured in many articles including the New York Daily News. After this, the school administrators began ostracizing “JS” and ridiculed him even more. “JS” was distraught and traumatized by the actions of Neville High School officials.
Plaintiff filed a complaint with the U.S. Department of Education Office for Civil Rights who launched an investigation and concluded that the MONROE CITY SCHOOL BOARD discriminated and retaliated against Plaintiff in violation of Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments Act of 1972.

(Compl., ¶ A) (with minor modifications).

         On March 5, 2018, defendants filed the instant motion to dismiss for failure to state a claim upon which relief can be granted. In support of their motion, defendants argued that, 1) Kirk, in her individual capacity asserted no actionable legal claim against any party; 2) the nature of each defendant's actions was not specifically alleged, or shown that each acted with deliberate indifference or with conscious disregard for any legally protected right under Titles VI and IX; 3) no official governmental policy or custom of the MCSB was identified as the moving force behind plaintiff's claim; 4) the complaint did not allege that any specific defendant was delegated with indicia of authority to act as a policymaker; 5) no conduct was specified in the complaint as an official action of the MCSB to show that it acted with deliberate indifference to plaintiff's rights under Titles VI and IX; 6) the MCSB, Vidrine, Rankins, and Martin were entitled to qualified immunity; 7) plaintiff could not assert a claim for punitive damages against defendants; and 8) plaintiff's discrimination and tort law claims were time-barred.

         On May 29, 2018, the undersigned issued a report recommending that defendants' motion be granted, and that plaintiff's federal law claims be dismissed with prejudice, but that her state law claims be dismissed without prejudice. (May 29, 2018, Report and Recommendation [doc. # 12]). In so doing, the undersigned found that plaintiff failed to allege facts to plausibly establish that defendants intentionally discriminated against JS on the basis of gender or race. Id. However, the recommendation of dismissal was subject to plaintiff's opportunity to seek leave of court to amend her complaint with a proposed pleading that cured the deficient allegations. Id.

         On June 13, 2018, plaintiff availed herself of that opportunity and filed a motion for leave to amend her complaint, which the court granted. [doc. #s 16-20]. The amended complaint provided, in part, that,

Plaintiff further amends paragraph A “Facts” to add that All and Only African American males were sent to the office as a result of this announcement. None of the other individuals with dyed hair were rounded up and sent to the office and none of the individuals with dyed hair agreed to un-dye their hair. However, “JS” was singled out and the only student not allowed to attend his class and was subject to repetitive harassment, intimidation and bullying about his hair color by RANKINS and MARTIN. Plaintiff complained to the MCSB Superintendent, Defendant Brent Vidrine and Sam Moore the Child Welfare and Attendance Officer who works for the Monroe City School Board, School Board Members Brandon Johnson and the then President of the MCSB Rodney Mcfarland about MCSB, RANKIN AND MARTIN's discriminatory and retaliatory actions against her son “JS”. Subsequently, Plaintiff filed a grievance with the MCSB.
Plaintiff further adds to the facts that she spoke with Defendant Vidrine, MCSB then president, and other school board members who advised her that there was no direct policy related to blonde hair itself, since it was common for white students and female students to be allowed to wear Blond, purple, red, or gray dyed hair.

(Pl. Amend. Compl. [doc. # 20]).

         The amended complaint further alleged, inter alia: 1) violations of the fourteenth amendment to the United States Constitution; 2) deprivation of rights under 42 U.S.C. §§ 1981 & 1983; and 3) violations of the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g, stemming from defendants' disclosure of information to the local press about a minor. Id. Plaintiff also formally substituted W.R. Berkley Corporation for the fictitious XYZ Insurance Company. Id. Finally, plaintiff attached a copy of an August 9, 2017, report issued by the United States Department of Education, Office for Civil Rights (the “OCR Report”), which determined, by a preponderance of the evidence, that Monroe City Schools discriminated and retaliated against J.S. in violation of Titles VI and IX. (OCR Report, Amend. Compl., Exh. A).

         In light of the amended complaint, the District Court referred the matter back to the undersigned for issuance of a supplemental report and recommendation. (June 21, 2018, Minute Entry [doc. # 22]). Thereafter, the undersigned ordered the parties to file supplemental memoranda that addressed the amended complaint. (June 21, 2018, Order [doc. # 22]). The parties so complied. [doc. #s 23-27].

         In the meantime, J.S. reached the age of majority. See Defs. Suppl. Memo. & Exh. [doc. # 23]. Accordingly, the court accorded Kirk the opportunity to amend her complaint to substitute her son as plaintiff. (July 25, 2018, Order [doc. # 28]). On August 10, 2018, Jaylon Sewell, was substituted as plaintiff. (Amend. Compl. [doc. #29]). Thus, the matter is ripe.

         Standard of Review

         The Federal Rules of Civil Procedure sanction dismissal where the plaintiff fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A pleading states a claim for relief, inter alia, when it contains a “short and plain statement . . . showing that the pleader is entitled to relief . . .” Fed.R.Civ.P. 8(a)(2). Circumstances constituting fraud or mistake, however, must be alleged with particularity. Fed.R.Civ.P. 9(b).

         To withstand 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, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007)). A claim is facially plausible when it contains sufficient factual content for the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Plausibility does not equate to possibility or probability; it lies somewhere in between. See Iqbal, supra. Plausibility simply calls for enough factual allegations to raise a reasonable expectation that discovery will reveal evidence to support the elements of the claim. See Twombly, 550 U.S. at 556, 127 S.Ct. at 1965. Although the court must accept as true all factual allegations set forth in the complaint, the same presumption does not extend to legal conclusions. Iqbal, supra. A pleading comprised of “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” does not satisfy Rule 8. Id. “[P]laintiffs must allege facts that support the elements of the cause of action in order to make out a valid claim.” City of Clinton, Ark. v. Pilgrim's Pride Corp., 632 F.3d 148 (5th Cir. 2010).

         Assessing whether a complaint states a plausible claim for relief is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, supra. (citation omitted). A well-pleaded complaint may proceed even if it strikes the court that actual proof of the asserted facts is improbable, and that recovery is unlikely. Twombly, supra. Nevertheless, a court is compelled to dismiss an otherwise well-pleaded claim if it is premised upon an invalid legal theory. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827 (1989).

         When considering a motion to dismiss, courts generally are limited to the complaint and its proper attachments. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citation omitted). However, courts may rely upon “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice” - including public records. Dorsey, supra; Norris v. Hearst Trust, 500 F.3d 454, 461 n9 (5th Cir. 2007) (citation omitted) (proper to take judicial notice of matters of public record).

         Law and Analysis

         I. Proper Party Plaintiff

         In their motion to dismiss, as supplemented, defendants argued that Bonnie Kirk lacked standing to assert claims in her own right. However, Jaylon Sewell has since been ...


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