Hattie Porter vs Duval School Board, et al

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 30, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-11944
Non-Argument Calendar
________________________
D.C. Docket No. 3:09-cv-00285-TJC-MCR
HATTIE PORTER,
lllllllllllllllllllll Plaintiff-Appellant,
versus
DUVAL COUNTY SCHOOL BOARD,
DENISE ROBINSON, Principal, individually,
VALERIE STANSFIELD, Vice Principal, individually,
DEBBIE MENARD, individually,
DETECTIVE CHARLES WILSON, individually,
lllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 30, 2010)
Before BARKETT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:

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Hattie Porter (“Porter”), proceeding pro se, appeals the dismissal of her
amended complaint against the Duval County School Board (“Duval”) and four
named school officials for failure to state a claim. The district court dismissed1
Porter’s 42 U.S.C. § 1983 claims with prejudice but dismissed her state law claims
without prejudice. On appeal, Porter argues that the district court erred by
denying her motion to remand, requiring her to amend her complaint, and
dismissing her amended complaint for failure to state a claim. After thorough
review, we affirm.
I.
First, we decline to address Porter’s motion to remand because she waived
her claims relating to the motion by either abandoning them on appeal or failing to
raise them before the district court. Although we construe pro se pleadings under
a “less stringent standard than pleadings drafted by attorneys, . . . . issues not
raised below are normally deemed waived.” Tannenbaum v. United States, 148
The school officials argue that this Court lacks jurisdiction over Porter’s claims against them.1
We do not agree. Porter’s notice of appeal states that she appeals her claims against “The Duval
County School Board, et al.” The Rules of Appellate Procedure require the appellant to specify
the party taking the appeal and expressly allow the appellant to use the form “A, B, et al.” to
identify the parties to the action. Fed. R. App. P. 3(c)(1)(A). Pursuant to this rule, Porter
identified the judgment that she was appealing, the “Final Order of Dismissal,” which dismissed
her claims against both the Board and the individual school officials. See Fed. R. App. P.
3(c)(1)(B).
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F.3d 1262, 1263 (11th Cir. 1998). Porter failed to argue before the district court
that removal was improper because the notice of removal did not comply with one
of the district court’s local rules. Similarly, on appeal Porter has abandoned her
argument, which she raised below, that the notice of removal was untimely by
failing to address it in her briefs. See Greenbriar, Ltd. v. City of Alabaster, 881
F.2d 1570, 1573 n.6 (11th Cir. 1989) (holding that issues not argued on appeal are
deemed abandoned); Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 n.4 (11th
Cir. 2008). Therefore, Porter waived all claims relating to her motion to remand.
II.
Porter argues that the district court erred when it granted appellees’ motion
for a more definite statement and required her to file an amended complaint. We
review for abuse of discretion a district court’s grant of a motion for a more
definite statement. Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 131 (5th Cir.
1959). Federal Rule of Civil Procedure 12(e) provides that “[a] party may move2
for a more definite statement of a pleading to which a responsive pleading is
allowed but which is so vague or ambiguous that the party cannot reasonably
prepare a response.”
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as2
binding precedent all Fifth Circuit decisions issued prior to October 1, 1981.
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We cannot say that the district court abused its discretion by granting the
motion for a more definite statement. Porter’s original complaint was vague and
ambiguous. The complaint included numerous claims against multiple defendants
stated in lengthy, unnumbered paragraphs. Porter accused various school officials
of lying to her, harassing her, and discriminating against her but did not allege
sufficient facts to support these allegations. Moreover, Porter identified as the
basis for relief for all of her claims “article 9 of [t]he Florida Constitution of due
process and [t]he United States Constitution of the Fourteenth Amendment due
process clause etc.” It is unclear what other provisions Porter was referencing
when she included “etc.” in her claim for relief. The school board and school
officials could not reasonably prepare a response given the lack of detail in
Porter’s complaint. Thus, the district court acted within its discretion when it
granted the motion for a more definite statement and required Porter to amend her
original complaint.
III.
Porter next argues that the district court erred in dismissing her amended
complaint for failure to state a claim. This Court reviews de novo orders granting
a Rule 12(b)(6) motion to dismiss. Edwards v. Prime, Inc., 602 F.3d 1276, 1291
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(11th Cir. 2010). We accept all of the factual allegations in the complaint as true
and construe them in the light most favorable to the plaintiff. Id. While we
construe pro se plaintiffs’ pleadings liberally, courts may not act as de facto
counsel or “rewrite an otherwise deficient pleading in order to sustain an action.”
GJR Invs., Inc. v. Cnty. of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998),
overruled on other grounds as recognized in Randall v. Scott, 610 F.3d 701, 709
(11th Cir. 2010).
Rule 8 requires that a pleading contain a “short and plain statement of the
claim showing that the pleader is entitled to relief” and that “[e]ach allegation . . .
be simple, concise, and direct.” Fed. R. Civ. P. 8(a)(2), (d)(1). Rule 8 does not
require a plaintiff to provide detailed factual allegations. Ashcroft v. Iqbal, ---
U.S.---, 129 S. Ct. 1937, 1949 (2009). But a complaint will not suffice if it offers
no more than “labels and conclusions,” or “an unadorned, the defendant-
unlawfully-harmed-me accusation.” Id. “Nor does a complaint suffice if it tenders
naked assertions devoid of further factual enhancement.” Id. (quotation marks
omitted). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Id. (quotation marks omitted).
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A. Denial of Access to School Premises
Porter argues that her claim that school officials violated her constitutional
rights by denying her access to school property is cognizable under 42 U.S.C.
§ 1983. To prove a violation under 42 U.S.C. § 1983, a plaintiff must show that
an entity, acting under the color of state law, deprived her of a right under the
United States Constitution or federal law. See 42 U.S.C. § 1983.
Porter’s claim as to the school’s restrictions on her access to school property
was not cognizable under § 1983. While parents have a general due process right
to direct their children’s education without unreasonable interference by the states,
Meyer v. Nebraska, 262 U.S. 390, 400, 43 S. Ct. 625, 627 (1923), Porter has
provided no legal support for the proposition that this right includes the right to
access school premises. See, e.g., Lovern v. Edwards, 190 F.3d 648, 655–56 (4th
Cir. 1999) (affirming dismissal of non-custodial parent’s claim that prohibiting
him from entering school property violated his due process rights as frivolous).
Therefore, the district court correctly dismissed this claim.
B. Failure to Respond to Porter’s Report of Inappropriate Touching
We also reject Porter’s argument that she stated a cognizable claim against
the individual school officials for failing to address her report that a male student
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inappropriately touched her daughter. First, the school officials responded to
Porter’s report. Porter acknowledges that Vice Principal Stanfield met with the
male student who allegedly touched Porter’s daughter after she reported the
incident. Porter also acknowledges that, after her report, the Principal prohibited
all male students from sitting with female students on the bus. A report that the
Department of Child and Families prepared, and which Porter attached to her
amended complaint, reflects that: (1) the male student denied touching Porter’s
daughter inappropriately, (2) “school personnel have addressed the concern and
now keep the children apart at the bus stop,” and (3) there was “no need for
[counseling] services.”
Second, public schools generally do not have the requisite level of control
over children to give rise to a constitutional duty to protect them from third-party
actors. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655, 115 S. Ct. 2386,
2392 (1995). Moreover, Porter’s amended complaint did not expressly allege a
violation of her child’s due process rights. The district court did not err in
dismissing Porter’s claim against the school officials.
C. Claims Against the School Board
Porter next argues that she stated a colorable claim against the Duval
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County School Board for failing to respond adequately to her complaint that
school officials did not discipline the student who touched her daughter
inappropriately. To impose liability on a municipal government entity, such as a
school board, under § 1983, “the plaintiff must identify a municipal policy or
custom causing the deprivation of federal rights.” Sauls v. Pierce Cnty. Sch. Dist.,
399 F.3d 1279, 1287 (11th Cir. 2005) (quotation marks omitted). Municipal
entities, cannot be held liable on a theory of respondeat superior. Id. Further, a
plaintiff must show that the municipal action was taken with “deliberate
indifference to its known or obvious consequences.” Davis v. DeKalb Cnty. Sch.
Dist., 233 F.3d 1367, 1375–76 (11th Cir. 2000) (quotation marks omitted); see
also Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629,
648, 119 S. Ct. 1661, 1673 (1999) (holding that a school district’s failure to
respond to student-on-student harassment in its schools can support a private suit
for money damages under Title IX only if district was deliberately indifferent to
known acts of sexual harassment).
Porter failed to state a cognizable claim against the Duval County School
Board. Porter failed to identify a custom or policy that caused the deprivation of
her or her daughter’s federal rights. See Sauls, 399 F.3d at 1287. Nor did Porter
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allege in her amended complaint that the Board acted with deliberate indifference.
Thus, the district court correctly dismissed Porter’s claims against the Board.
AFFIRMED.
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