United States District Court, W.D. Louisiana, Monroe Division
BONNIE KIRK INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, “JS”
MONROE CITY SCHOOL BOARD, ET AL.
A. DOUGHTY, Judge
SUPERSEDING REPORT AND RECOMMENDATION
L. Hayes United States Magistrate Judge
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.
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.
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
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
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
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).
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.
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.
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]).
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.,
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].
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
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.
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).
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.
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
Proper Party Plaintiff
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 ...