R.A v. Iredell-Statesville School District Board of Education

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:20-CV-00192-KDB-SCR
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the Court on a Motion to Strike, or, in the Alternative, to
Dismiss the Second Amended Complaint submitted by Iredell-Statesville School District Board of
Education (“Board”) (Doc. No. 98) and the parties’ briefs and exhibits. (Doc. Nos. 99, 104 &
106).
The Motions have been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1) and are ripe for disposition.
Having fully considered the arguments, the record, and the applicable authority, the
undersigned respectfully recommends that Defendant Board’s Motions to Strike and Dismiss
(Doc. No. 98) be denied.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Factual Background
Plaintiffs brought this lawsuit asserting numerous federal and North Carolina state law
claims related to the physical, verbal, and emotional abuse of Plaintiff G.A. by G.A.’s teacher
C.G.A. (“G.A.”), BY AND THROUGH HIS PARENT
AND GUARDIAN, R.A., AND R.A. INDIVIDUALLY,
Plaintiffs,
v.
IREDELL-STATESVILLE SCHOOL DISTRICT
BOARD OF EDUCATION, et. al.
Defendants.
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Defendant Robin Johnson (“Defendant R. Johnson”). (Doc. No. 94). G.A. is a minor child with
Autism Spectrum-Disorder and a communication disability. Id. ¶ 1. The child’s mother is R.A.
Id. ¶ 38. In 2016-2017, G.A. attended kindergarten within the Iredell-Statesville School District
(“ISSD”), where he was assigned Defendant R. Johnson as his special education teacher. Id. ¶ 57.
In 2017-2018, G.A. attended first grade within the ISSD at Cloverleaf Elementary School,
where he was placed in a “separate special education setting” taught by Defendant R. Johnson. Id.
¶¶ 61-82. G.A. allegedly was subjected to different treatment than non-disabled students. Id. ¶¶
64, 65, 144. Specifically, Plaintiffs allege that Defendant R. Johnson placed G.A. in a “trash
can/recycle bin from which he was unable to get out.” Id. ¶ 64. Plaintiffs allege that while G.A.
was in the first grade, Jennifer Bender, another teacher at the school, witnessed the abusive
treatment of G.A. and reported the treatment to Defendant Cloer, who was the Principal of
Cloverleaf Elementary School. Id. ¶¶ 44, 72. Plaintiffs allege that Defendant Cloer shared that
report with upper-level district personnel including Defendants B. Johnson (Superintendent of the
School District), Lesane (Associate Superintendent for Human Resources), and McClenahan
(Executive Director of Exceptional Children of the School District). Id. ¶¶ 41-44, 74. Defendants
Cloer, B. Johnson, Lesane, and McClenahan (collectively, “Defendant School Officials”)
allegedly failed to report Defendant R. Johnson’s abusive behavior to authorities. Id. ¶ 80.
In 2018-2019, G.A. remained in the special education classroom at Cloverleaf Elementary
School with Defendant R. Johnson as his second-grade teacher. Id. ¶ 83. Plaintiffs allege that R.
Johnson continued to physically, verbally, and emotionally abuse G.A. throughout second grade.
Id. ¶¶ 83-100, 152. Such abuse allegations include denying G.A. the use of a desk while non-
disabled students did not have their desks removed. Id. ¶¶ 91-93, 145, 152, 160, 175. Plaintiffs
allege that although R.A. and “multiple parents of disabled children” reported R. Johnson’s abuse,
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none of Defendant School Officials took action to intervene or report Defendant R. Johnson. Id.
¶¶ 93, 97, 99.
In 2019-2020, G.A. attended third grade in a special education class at a different school
where R. Johnson was no longer his teacher. Id. ¶¶ 101, 103-104. On September 23, 2019,
“Defendant Board, through G.A.’s [Individualized Education Plan] team, decided G.A. was no
longer allowed to attend school on a daily basis due to his maladaptive behaviors that had
intensified over the past year as a result of the abusive treatment.” Id. ¶ 117. Therefore, G.A. only
had “access to school . . . for two (2) hours—and then one (1) hour—each week.” Id. ¶ 118.
However, during this year, another child reported that R. Johnson abused him. Id. ¶¶ 106,
108. The parent of this child reported these concerns to a therapist. Id. The therapist questioned
previous students of R. Johnson and then filed a report with the Iredell County Sheriff’s Office.
Id. ¶¶ 109-110. The police opened an investigation, and ultimately, Defendant R. Johnson pled
guilty to two counts of misdemeanor assault on a handicapped person. Id. ¶¶ 110, 131.
B. Procedural History
This case has a lengthy procedural history, which the undersigned has outlined in detail
below as it is important background in deciding this Motion. On February 2, 2021, Plaintiffs filed
their First Amended Complaint as a matter of course. (Doc. No. 3). Plaintiffs alleged multiple
federal claims under Section 504 of the Rehabilitation Act of 1974 (“Section 504”), the Americans
with Disabilities Act (“ADA”), and 42 U.S.C. § 1983. Id. Plaintiffs also brought claims of
negligence, negligent infliction of emotional distress, and false imprisonment under North
Carolina law. Id. Plaintiffs brought these various claims against the Board, the School Officials,1
1 In their First Amended Complaint, Plaintiffs brought claims against Andrew Mehall, then the current principal of
Cloverleaf Elementary School, in his individual capacity. (Doc. No. 3). On August 5, 2021, Mehall was terminated
in this suit pursuant to the District Judge’s order granting and denying in part Defendants’ motions to dismiss. (Doc.
No. 56).
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and teacher R. Johnson. Id. In response, Defendants filed motions to dismiss. (Doc. Nos. 20, 24,
26 & 29).
On June 17, 2021, the then-assigned Magistrate Judge recommended dismissal of
Plaintiffs’ § 1983 claims against the Board, but other federal and state law claims against the Board
remained. (Doc. No. 43). The Magistrate Judge also recommended dismissal of the § 1983 claims
against Defendant School Officials and dismissal of the punitive damages claim against Defendant
B. Johnson. Id. However, the Magistrate Judge concluded that Plaintiffs’ negligence and
negligent infliction of emotional distress claims should remain because Defendant School Officials
were not entitled to public official immunity. Id.
On July 1, 2021, the Board, Defendant School Officials, and Plaintiffs objected to the
Magistrate Judge’s recommendations. (Doc. Nos. 44-47). However, on August 5, 2021, the
presiding District Judge adopted the Magistrate Judge’s recommendations. (Doc. No. 56).
Defendant School Officials appealed the decision to the Fourth Circuit. (Doc. Nos. 59 &
63). The Board did not appeal, but later requested clarification of the District Judge’s Order. (Doc.
No. 61). On September 7, 2021, the District Judge entered a Text-Only Order, which stated the
following:
By consent, Defendant School Board’s [Doc. No.] 61 Motion for Clarification is
granted. As agreed among the parties, the Court’s [Doc. No.] 56 Order is to be
construed to hold that the School Board has waived immunity for potential liability
for Plaintiffs’ claims only to the extent of the range and limits of its insurance
coverage.
(September 7, 2021 Text-Only Order).
On June 7, 2022, the Fourth Circuit reversed this Court’s decision in part finding that
Plaintiffs failed to allege facts sufficient to pierce the public official immunity afforded to the
Defendant School Officials. R.A. v. Johnson, 36 F.4th 537 (4th. Cir. 2022); (Doc. No. 72). This
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ruling did not opine on Plaintiffs’ claims against the Board.
On September 14, 2022, this Court issued a Pretrial Order and Case Management Plan with
a deadline to file an “Amendment of the Pleadings” by February 14, 2023. (Doc. No. 76 at 1). On
that deadline date, Plaintiffs submitted a Motion for Leave to Amend together with a proposed
Second Amended Complaint for Damages. (Doc. Nos. 82 & 82-1). Plaintiffs informed this Court
that they were “not seeking to add any new causes of action.” (Doc. No. 83 at 3). Instead, Plaintiffs
stated that they “sought to clarify allegations and add details about the claims for relief sought in
this action based on newly discovered evidence.” Id. The Board and Defendant School Officials
opposed the motion for leave to amend. (Doc. Nos. 84-86).
On March 20, 2023, the then-assigned Magistrate Judge granted Plaintiffs’ motion “[f]or
the reasons stated in the Plaintiffs’ briefs” and ordered Plaintiffs to “file their Second Amended
Complaint within five days of this Order.” (March 20, 2023 Text-Only Order). On March 24,
2023, Plaintiffs timely filed their Second Amended Complaint. (Doc. No. 94). Plaintiffs now
bring claims against the Board under the ADA, Section 504, and for negligence.2
The Board, in its pending Motion, asks the Court to strike the filed Second Amended
Complaint pursuant to Federal Rule of Civil Procedure 12(f) and to dismiss Plaintiffs’ claims
against the Board pursuant to Rule 12(b)(1), Rule 12(b)(2), and Rule 12(b)(6). (Doc. No. 98).
II. DISCUSSION
A. Motion to Strike
The School Board moves to strike the Second Amended Complaint under Rule 12(f)(2)
citing Plaintiffs’ failure to comply with the leave to amend granted by the Court under Rule
15(a)(2). The Board argues the Second Amended Complaint “contains significant, material
2 On October 18, 2023, the undersigned separately issued a Memorandum and Recommendation, which recommended
granting the Defendant School Officials’ Motion to Dismiss. (Doc. No. 118).
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differences from the proposed second amended complaint which this Court granted Plaintiffs leave
to file.” (Doc. No. 99 at 9). In response, Plaintiffs assert that the filed Second Amended Complaint
“did not change or recast any claims or make any material changes that would prejudice Defendant
Board.” (Doc. No. 104 at 10). Plaintiffs argue the Second Amended Complaint only “clarified
title, references, and factual allegations that were already included in the previously proposed
Second Amended Complaint.” Id. Defendants submitted exhibits to this Court which marked the
deviations between the proposed Second Amended Complaint, and the document filed with the
Court. (Doc. Nos. 96-2 & 98-1).
This Court has already denied a motion to strike the Second Amended Complaint made by
the School Officials in a separate filing. (Doc. Nos. 96 & 108). Defendant School Officials
similarly argued that the additional factual allegations included in the filed Second Amended
Complaint violated the Court’s order allowing Plaintiffs to file “their S[econd] A[mended]
C[omplaint]” and should be stricken. (Doc. No. 108). In denying the Defendant School Officials’
Motion to Strike and Alternative Motion to Dismiss the Second Amended Complaint, the
Honorable Kenneth D. Bell found “none of the additions or other modifications are so substantial
or material that the Court would have reached a different conclusion on the request to file a
S[econd] A[mended] C[omplaint].” Id. at 5. “Further, the School Officials have not established
how they will be unfairly prejudiced if the Court allows the S[econd] A[mended] C[omplaint] to
stand.” Id.
The Board’s arguments in the instant Motion are nearly identical. As Judge Bell reasoned
in his Order denying the Motion to Strike filed by the School Official Defendants, none of the
additions between the Second Amended Complaint as initially presented and as filed are “so
substantial or material” as to “unfairly prejudice” the Defendants. (Doc. No. 108 at 5). Therefore,
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the undersigned respectfully recommends that the Board’s Motion to Strike the Second Amended
Complaint be denied.
B. Motion to Dismiss for Lack of Subject Matter Jurisdiction and Personal
Jurisdiction
Defendant Board urges the Court to dismiss the state law negligence claim based on
governmental immunity. A city or county board of education “is a governmental agency, and
therefore may not be liable in a tort action except insofar as it has duly waived its immunity . . .
pursuant to statutory authority.” Overcash v. Statesville City Bd. of Educ., 348 S.E.2d 524, 526
(N.C. Ct. App. 1986). A North Carolina statute authorizes a local board of education to waive
governmental immunity through the purchase of liability insurance. See N.C. Gen. Stat. § 115C-
42; see also Lucas v. Swain Cnty. Bd. of Educ., 573 S.E.2d 538, 541 (N.C. Ct. App. 2002). The
North Carolina statute states:
Any local board of education, by securing liability insurance as hereinafter
provided, is hereby authorized and empowered to waive its governmental immunity
from liability for damage by reason of death or injury to person or property caused
by the negligence or tort of any agent or employee of such board of education when
acting within the scope of his authority or within the course of his employment.
Such immunity shall be deemed to have been waived by the act of obtaining such
insurance, but such immunity is waived only to the extent that said board of
education is indemnified by insurance for such negligence or tort.
N.C. Gen. Stat. § 115C-42. A “board waives its immunity only to the extent of its liability
insurance coverage, and the insurance contract must be purchased from a North Carolina-licensed
or otherwise qualified insurance company.” J.W. v. Johnston Cnty. Bd. Of Educ., No. 5:11–CV–
707–D, 2012 WL 4425439, at *9 (E.D.N.C. Sept. 24, 2012) (citing N.C. Gen. Stat. § 115C-42).
In its Motion, Defendant Board acknowledges that it elected to participate in the North
Carolina School Boards Trust (“the Trust”) to obtain insurance, but states this does not meet the
requirements necessary to waive immunity under N.C. Gen. Stat. § 115C-42. (Doc. No. 99 at 11-
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12). On the other hand, Plaintiffs have included allegations that “Defendant Board contracted with
the [Trust]. . . which then contracted with a commercial carrier to provide excess liability insurance
coverage to the Defendant Board.” (Doc. No. 94 ¶ 50). Plaintiffs argue that by obtaining this
excess liability insurance coverage, the School Board has waived its governmental immunity for
claims. (Doc. No. 104 at 18).
Defendant Board advanced its government immunity defense at an earlier stage of this
proceeding, (Doc. Nos. 20 & 21), which the then-assigned Magistrate Judge rejected in his
Memorandum and Recommendation (Doc. No. 43)3 and was subsequently adopted by the District
Judge. (Doc. No. 56).
The Second Amended Complaint involves the same Section 504, ADA, and negligence
claims,4 and standards of review. Thus, the issue of waiver of immunity by the Board through the
purchase of excess liability insurance has already been decided, and it is the law of the case. Law
of the case doctrine “posits that when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the same case.” Fusaro v. Howard, 19
F.4th 357, 367 (4th Cir. 2021) (quoting United States v. Aramony, 166 F.3d 655, 664 (4th Cir.
1999)). The Fourth Circuit has yet to consider whether the law-of-the-case rule applies to motions
to dismiss, but district courts in the Fourth Circuit have “applied the doctrine to deny such motions
when a court’s prior ruling continues to apply with ‘equal force’ to an amended complaint.” See
Layani v. Ouazana, No. SAG-20-420, 2022 WL 11949038, at *3-4 (D. Md. Oct. 20, 2022) (citing
Noel v. PACCAR Fin. Corp., 568 F. Supp. 3d 558, 567 (D. Md. 2021)).5
3 Defendant Board’s arguments as to exclusion of coverage were also considered and addressed in the prior findings
by the Court. (Doc. Nos. 43, 56 & September 7, 2021 Text-Only Order).
4 Plaintiffs did not seek to add any new causes of action to the Second Amended Complaint, but dropped the previously
dismissed § 1983 claims. (Doc. Nos. 83 & 94).
5 Even assuming the law-of-the-case doctrine does not apply to motions to dismiss, the undersigned has closely
reviewed and finds persuasive the rationale and analysis in the prior decisions as it relates to Plaintiffs’ claims against
the Board. (Doc. Nos. 43 & 56).
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For these reasons, the undersigned respectfully recommends that the Board’s motion to
dismiss the negligence claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2)
be denied.
C. Motion to Dismiss For Failure to State a Claim
In reviewing a Rule 12(b)(6) motion, “the court should accept as true all well-pleaded
allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs.,
Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The Plaintiffs’ “[f]actual allegations must be
enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). “[O]nce a claim has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the complaint.” Id. at 563. A complaint attacked
by a Rule 12(b)(6) motion to dismiss will survive if it contains sufficient facts to “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. Defendants argue here that Plaintiffs have failed to plausibly allege facts sufficient
to support their ADA and Section 504 federal claims and state law negligence claim. The Court
will address each of these in turn.
i. Federal Claims under the ADA and Section 504
Title II of the ADA and Section 504 are closely related, and both “prohibit disability-based
discrimination against qualified individuals.” O.V. v. Durham Pub. Sch. Bd. of Educ., No.
1:17CV691, 2018 WL 2725467, at *23 (M.D.N.C. June 6, 2018), report and recommendation
adopted, 2018 WL 3370644 (M.D.N.C. July 10, 2018). Since “the language and purpose of both
Acts [are] substantially the same, the same analysis applies to claims brought under both statutes.”
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Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1264 n.9 (4th Cir. 1995). To bring a claim
under either statute, the plaintiff must establish: (1) that plaintiff has a disability; (2) that plaintiff
is otherwise qualified for the benefit or program in question; and (3) that plaintiff was excluded
from the benefit or program due to discrimination solely on the basis of disability. Q.C. v.
Winston-Salem/Forsyth Cnty. Schs. Bd. of Educ., No 1:19-cv-1152, 2021 WL 1430697, at *6
(M.D.N.C. Apr. 15, 2021) (citing Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494, 503 (4th Cir.
2016)). The two statutes differ in their application of the third element. Under a Section 504
claim, the plaintiff must establish that he was excluded solely on the basis of the disability, while
the ADA allows a claim where the disability was a “motivating cause” of the exclusion. Halpern
v. Wake Forest Univ. Health Scis., 669 F.3d 454, 462 (4th Cir. 2012) (quoting Baird ex rel. Baird
v. Rose, 192 F.3d 462, 468–69 (4th Cir. 1999)). To establish discrimination under Section 504 in
education cases, “something more than a mere failure to provide the ‘free appropriate education’
required by [IDEA] must be shown.” Sellers by Sellers v. Sch. Bd. of Manassas, 141 F.3d 524,
528–29 (4th Cir. 1998) (quoting Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir. 1982)). The
Fourth Circuit recognizes that “either bad faith or gross misjudgment should be shown before a
[Section] 504 violation can be made out, at least in the context of education of [disabled] children.”
Id. at 529 (quoting Monahan, 687 F.2d at 1171).
While it is true that Plaintiffs have filed a Second Amended Complaint, the undersigned
has closely reviewed the ADA and Section 504 allegations and finds that the same causes of actions
are at issue and the same standard of review applies. If anything, Plaintiff has only added facts to
support the ADA and Section 504 claims. Previously, the District Judge adopted the then-assigned
Magistrate Judge’s findings that Plaintiffs have pled enough to survive a motion to dismiss on their
Section 504 and ADA claims, and the undersigned finds no reason to depart from the prior
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decision. Because this case involves the same basic facts and causes of actions, the undersigned
recommends that the prior findings of this Court should apply here with equal force. See Layani,
2022 WL 11949038, at *3-4 (citing Noel, 568 F. Supp. 3d at 567). In addition, the undersigned
has reviewed and finds persuasive the reasoning articulated in prior decisions finding Plaintiffs
have sufficiently pled Section 504 and ADA claims against the Defendant Board. (Doc. Nos. 43
& 56). Therefore, the undersigned respectfully recommends that Defendant Board’s motion to
dismiss these federal law claims pursuant to Federal Rule of Civil Procedure 12(b)(6) be denied.
ii. State Law Negligence Claims
Previously, in reviewing Plaintiffs’ First Amended Complaint, the District Judge adopted
the then-assigned Magistrate Judge’s findings that Plaintiffs have stated a plausible negligence
claim against the Board. (Doc. Nos. 43 & 56). Similar to the ADA and Section 504 claims,
Plaintiffs advance the same negligence claim against the Board and the same standard of review
applies. Therefore, the undersigned recommends that the prior findings of this Court should apply
here with equal force. See Layani, 2022 WL 11949038, at *3-4 (citing Noel, 568 F. Supp. 3d at
567). The undersigned sees no basis to decide the issue differently. Also, the undersigned has
reviewed and finds persuasive the reasoning articulated in the prior decisions finding that Plaintiffs
have sufficiently pled a negligence claim against the Defendant Board. (Doc. Nos. 43 & 56).
Therefore, the undersigned respectfully recommends that Defendant Board’s motion to dismiss
the negligence claim pursuant to Federal Rule of Civil Procedure 12(b)(6) be denied.
III. RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that
Defendant Board’s Motion to Strike or, in the Alternative, Dismiss Second Amended Complaint
(Doc. No. 98) be DENIED.
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IV. TIME FOR OBJECTIONS
The parties are hereby advised that, pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72 of
the Federal Rules of Civil Procedure, written objections to the proposed findings of fact,
conclusions of law, and recommendation contained in this Memorandum must be filed within
fourteen days after service of same. Failure to file objections to this Memorandum with the Court
constitutes a waiver of the right to de novo review by the District Judge. Diamond v. Colonial
Life & Acc. Ins. Co., 416 F.3d 310, 315-16 (4th Cir. 2005). Moreover, failure to file timely
objections will preclude the parties from raising such objections on appeal. Id. “In order ‘to
preserve for appeal an issue in a magistrate judge’s report, a party must object to the finding or
recommendation on that issue with sufficient specificity so as reasonably to alert the district court
of the true ground for the objection.’” Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017) (quoting
United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007)).
The Clerk is directed to send copies of this Memorandum and Recommendation to the
parties’ counsel, and the Honorable Kenneth D. Bell.
SO RECOMMENDED.
Signed: November 3, 2023
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