Case Information
*1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION C.F. DOE, by his Next Friend, MOTHER OF C.F. DOE,
Plaintiff, Civil Case No. 21-11136 v. Honorable Linda V. Parker DETROIT PUBLIC SCHOOLS COMMUNITY DISTRICT and SAMMIE EDWARDS,
Defendants. _________________________________/ OPINION AND ORDER GRANTING IN PART AND DENYING WITHOUT
PREJUDICE IN PART DEFENDANT DETROIT PUBLIC SCHOOLS FOR JUDGMENT ON THE PLEADINGS (ECF NO. 15)
This lawsuit arises from a May 2, 2018 incident at a school within the , involving then-second grade student C.F. Doe and former DPSCD employee Defendant Sammie Edwards. At the time of the incident, Edwards was employed as an educator and guidance counselor. In a Complaint filed in state court and removed to federal court on May 18, 2021, C.F. Doe, through his mother, alleges the following claims:
I. Substantive Due Process Violation of Constitutional Rights Under the Fourteenth Amendment of the United States Constitution Pursuant to 42 U.S.C. § 1983 Defendant Edwards;
*2 II. Municipal/Supervisory Liability Pursuant to 42 U.S.C. § 1983 Defendant DPSCD; III. Gross Negligence Defendant Edwards; IV. Assault Defendant Edwards; V. Intentional Infliction of Emotional Distress Defendant
Edwards; VI. Violation of the Persons with Disabilities Civil Rights Act, [Mich. Comp. Laws §] 37.1001, et seq. Defendant DPSCD and Edwards;
(Compl., ECF No. 1 (capitalization removed).) on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), filed August 26, 2021. (ECF No. 15.) The motion is fully briefed. (ECF Nos. 17, 18.) Finding is dispensing with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f). I. Standard of Review
A Rule 12(c) motion is subject to the same standard of review as a motion to dismiss for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). Grindstaff v. Green , 133 F.3d 416, 421 (6th Cir. 1998). A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. RMI Titanium Co. v. Westinghouse Elec. Corp. , 78 F.3d 1125, 1134 *3 (6th Cir. 1996). To survive a motion to dismiss, a complaint need not contain Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007). A complaint does not Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 557).
As the Supreme Court provided in Iqbal and Twombly motion to dismiss, a complaint must contain sufficient factual matter, accepted as Id . (quoting Twombly , content that allows the court to draw the reasonable inference that the defendant is Id . (citing Twombly , 550 U.S. at 556). The stage; it simply calls for enough facts to raise a reasonable expectation that discove Twombly , 550 U.S. at 556. must accept the factual allegations in the complaint as true. Erickson v. Pardus , 551 U.S. 89, 94 (2007). This presumption is not applicable to legal conclusions, however. Iqbal *4 Id . (citing Twombly , 550 U.S. at 555).
Ordinarily, the court may not consider matters outside the pleadings when deciding a Rule 12(b)(6) motion to dismiss. Weiner v. Klais & Co., Inc. , 108 F.3d 86, 88 (6th Cir. 1997) (citing Hammond v. Baldwin , 866 F.2d 172, 175 (6th Cir. 1989)). A court that considers such matters must first convert the motion to dismiss to one for summary judgment. See Fed. R. Civ. P 12(d). However, [c]omplaint and any exhibits attached thereto, public records, items appearing in so long as they are referred to in the [c]omplaint and are central to the claims , 528 F.3d 426, 430 Jones v. Cincinnati , 521 F.3d 555, 562 (6th Cir. 2008) (quoting Passa v. City of Columbus , 123 F. A
Under certain circumstances, video evidence may be considered when deciding a motion to dismiss. Bailey v. City of Ann Arbor , 860 F.3d 382, 386-87 (6th Cir. 2017) (holding that a court may consider a video when deciding a motion to dismiss where it s the incident,
. DPSCD has submitted a *5 video recording of the incident in support of its motion. (Notice of Filing & Photo of Video, ECF Nos. 24, 25.) The recording provides a clear picture of the events at issue. one. [1] (Compl. ¶¶ 43, 44, ECF No. 1 at Pg ID 15.) The Court II. Factual Background
A. Edwards Around 1999, Edwards began working as a teacher for DPSCD (formerly
Detroit Public Schools ). (Compl. ¶ 10, ECF No. 1 at Pg ID 11.) In January 2007, DPSCD suspended Edwards for violating a work rule prohibiting fraternizing with students, which includes but is not limited to touching, excessive conversation, or other non-job-re Id . ¶ 12.) Edwards was suspended again in November 2014 for violating work rules prohibiting ommit[ing] an act which might endanger the safety or lives of others threats, and unprofessional conduct. ( Id . ¶ 14.) In April 2016, DPSCD again *6 work rules, including conducting herself in an Id . ¶ 16, Pg ID 12.)
During the 2016-2017 and 2017-2018 academic years, DPSCD placed Edwards at Brewer Academy. ( Id. ¶ 17.) Edwards was a guidance counselor, but was assigned to cover classrooms with teacher vacancies. ( Id. ¶¶ 17-18.) In January 2018, Edwards was again suspended for violating a work rule related to performing all work assigned by an administrator properly and unprofessional conduct and insubordination. ( Id. ¶ 20.)
In addition to Edwards workplace violations within DPSCD, she has a criminal history. ( Id. ¶ 20.) In 2003, Edwards was charged with one count of child abuse third degree, a felony, and one count of child abuse fo[u]rth degree, a misdemeanor, in connection with an incident that occurred on or around December 30, 2003, while . . . employed by the district ( Id. ¶ 23.) On January 20, 2004, Edwards pled guilty to one or both of these charges, was placed on probation, and received a delayed sentence under Michigan Compiled Laws § 771.1. ( Id. ¶ 24, Pg ID 13.) During her one-year period of probation, Edwards remained a DPSCD employee. ( Id. ¶ 25.)
B. C.F. Doe At the time of the relevant incident, C.F. Doe was a seven-year-old, second
grade student at Brewer Academy. ( Id. ¶ 29.) Since at least 2016, C.F. Doe had an *7 Individualized Education Program due to diagnosed speech and language impediments and intellectual disabilities. ( Id. ¶ 26.) C.F. Doe was known to have hyperactivity, emotional regulation, aggression, expression, learning and
( Id. ¶ 25.) C. The Incident On May 2, 2018, C.F. Doe was sent to see Edwards in her capacity as a
guidance counselor because he was exhibiting behavioral problems. ( Id. ¶ 28.) That day, Edwards was supervising a seventh-grade classroom. ( Id. ¶ 30, Pg ID 14.) Therefore, C.F. Doe was sent to that classroom instead of office. ( Id. ¶ 31.)
While in the seventh-grade classroom, an older student made threatening comments to C.F. Doe. ( Id. ¶ 33.) In response, C.F. Doe said he wanted to fight the older student. ( Id. ) Edwards then began ridiculing and embarrassing C.F. Doe in front of the class. ( Id. ¶ 34.) Waving a ruler as she spoke, Edwards brought up Don King, a notorious boxing match promotor, and told the students she was that they did not know who Don King is. ( Id. ¶ 35.) Edwards can , and then she told the class ( Id. ¶ 38.) She then told C.F. Doe to stand up. ( Id .)
*8 In response to thi -grade . ( Id. ¶ 39, Pg ID 15.) The student next to C.F. Doe nudged or without great force pushed him forward. (Video at 00:46.) At this point, Edwards reached into her purse and stated that she would
Id. at 00:50; Compl. ¶ 40, ECF No. 1 at Pg ID 15.) Another student began slapping an open area on the ground (Video at 00:56; Compl. Id. ¶ 39, Pg ID 15.) As C.F. Doe walks toward the open area, the seventh-grade students laughed and jeered at C.F. Doe, who began to cry. (Video at 1:03, Compl. ¶ 42, Pg ID 15.) In response, the students shouting intensified and some began clapping. (Video at 1:07-:16.)
After discovering that one of the students had recorded the incident, Edwards took the cellphone and three of the students to Angela McNeil-Chisholm, the Academic Engagement Administrator at Brewer Academy. (Compl. ¶¶ 44-45, ECF No. 1 at Pg ID 15.)
On September 4, 2018, DPSCD charged Edwards in connection with the May 2 incident with unprofessional conduct and violating a work rule prohibiting employees from [ting] an act which might endanger the safety of [sic] ( Id. ¶ 46.) On September 11, 2018, DPSCD terminated Edwards employment. ( Id. ¶ 47.) In connection with the incident, the Wayne County Prosecutor charged Edwards with child abuse in the fourth degree on or about *9 January 13, 2020. ( Id. ¶ 48, Pg ID 16.) As a result of the incident, C.F. Doe has ( Id. ¶ 49.)
III.
DPSCD seeks dismissal of Counts I and II of the Complaint, arguing that the and, even if they do, the school district is not liable for any constitutional violation. DPSCD next argues that it cannot be liable for the intentional torts asserted against (Count VI) is pre-empted by the Michigan Mandatory Special Education Act . C.F. Doe first requests discovery pursuant to Federal Rule of Civil Procedure 56(d) and provides an affidavit from counsel setting forth the discovery needed to fully address the motion. (Resp. Br. at 8-9, ECF No. 17 at Pg ID 215-16; Shiener Aff., ECF NO. 17-3.) Specifically, counsel history of misconduct while employed by DPSCD; (ii) evidence related to other and *10 mistreatment of students attendance at DPSCD; and (v) evidence of past misconduct by Edwards showing her propensity to abuse children and . . . need for additional supervision and training. (Shiener Aff. ¶ 10, ECF No. 17-3 at Pg ID 267-68.)
C.F. Doe also the facts establish a violation of his substantive due process rights and DP failure to train or supervise theory. C.F. Doe also responds that his PWDCRA claim is not pre-empted. C.F. Doe does not address DPSCD respect to his tort claims; however, the Complaint clearly reflects that he asserts those claims only against Edwards. IV.
Rule 56(d) provides a mechanism for the non-movant to establish that discovery is needed to oppose a summary judgment motion. [2] Fed. R. Civ. P. 56(d). [S]ummary judgment [must] be refused where the nonmoving party has Anderson v. Liberty Lobby , 477 U.S. 242, 250 n.5 (1986). However, DPSCD has filed a Rule 12(c) motion for judgment on the pleadings, not a motion for summary judgment. It has not presented matters outside the pleadings in support of the motion and, therefore, there is no reason for the Court to treat the motion as one for *11 summary judgment pursuant to Federal Rule of Civil Procedure 12(d). Therefore, the statement in Rule 12(d), which C.F. Doe quotes in his brief, must be given a reasonable opportunity to present all the material that is pertinent
not applicable. A Rule 12(c) motion, like a Rule 12(b)(6) motion to dismiss, tests the legal sufficiency of the complaint while assuming the facts alleged as true. See supra . A plaintiff is not entitled to discovery to file a well-pleaded complaint that is, a complaint containing sufficient facts to allege a plausible claim. See Kaylor v. Fields a well-pleaded complaint. It is not a device to enable a plaintiff to make a case to discovery upon filing of the complaint. The very purpose of [Federal Rule of o Yuhasz v. Brush Wellman, Inc. , 341 F.3d 559, 566 (6th Cir. 2003) (quoting Rutman Wine Co. v. E. & J. Gallo Winery , 829 F.2d 729, 738 (9th Cir. 1987)); see also Pittman v. Spectrum Health Sys. , 612 plaintiff was deprived of his right to conduct adequate discovery under Rule 56,
to show they had any parallel right to *12 ; Inman v. Am. Paramount Fin. -49 (11th Cir. 2013) (citing Chudasama v. Mazda Motor Corp. , 123 F.3d 1353, 1367 (11th Cir. 1997) ( challenges to the legal sufficiency of a claim or defense, such as a motion to dismiss based on failure to state a claim for relief, should . . . be resolved before )).
Moreover, the discovery claimed to be need relates be evident below, the discovery sought w claim. V. Applicable Law & Analysis
A. Substantive Due Process The Due Process Clause of the Fourteenth Amendment protects individuals
from state actions that deprive the individual of life, liberty, or property without due process of law. U.S. Const. amend. XIV, § 1. Substantive due process Gohl v. Livonia Pub. Schs. Sch. Dist. , 836 F.3d 672, 678 (6th Cir. 2016) (quoting Cnty. of Sacramento v. Lewis , 523 U.S. 833, 846 (1998)). *13 y be Lewis , 523 U.S. at 847 (citing cases); see also Webb v. McCullough , 828 F.2d 1151, 1158 (6th Cir. 1987) (quoting Hall v. Tawney , 621 F.2d 607, 613 (4th Cir. 1980)) (holdi personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock t
The Supreme Court has explained that whether governmental conduct shocks the conscience depends on the factual circumstances of the case. Lewis , 523 U.S. at 851-53. More specifically, in circumstances where government actors
are afforded a reasonable opportunity to deliberate various alternatives prior to electing a course of action . . . , their actions will be deemed conscience- towards the plaintiff s federally protected rights. In contradistinction, in a rapidly evolving, fluid, and dangerous predicament which precludes the luxury of calm and reflective pre-response deliberation . . . public servants
Claybrook v. Birchwell , 199 F.3d 350, 359 (6th Cir. 2000) (quoting Lewis , 523 U.S. at 852-53) .
Doe by *14 Doe v. Livonia Pub. Schs. , No. 13-cv-11687, 2018 WL 4953086, at *8 (E.D. Mich. Oct. 12, 2018) (citing Lewis , 523 U.S. at 851).
In its motion, applied caused injury so severe, was so disproportionate to the need presented, and was so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally Br. in Support of Mot. at 9-10, ECF No. 15 at Pg ID 142-43 (quoting Webb , 828 F.2d at 1158 (alteration omitted).) Subsequent to Webb , however, the Sixth Circuit adopted a standard for evaluating the use of physical force in a school setting, which asks four guiding questions: -faith effort to
maintain or restore discipline or maliciously and sadistically for the very purpose of c
Domingo v. Kowalski , 810 F.3d 403, 411 (6th Cir. 2016) (quoting Gottlieb v. Laurel Highlands Sch. Dist. , 272 F.3d 168, 173 (3d Cir. 2001)). Yet this case does .
17 at Pg ID 216.) In the Complaint, however, C.F. Doe does not allege that Edwards *15 physically touched him, directly or indirectly, or that a fight ensued between C.F. Doe and any student because of The video does not suggest otherwise.
C.F. Doe argues standard to assess whether Edwards Br. at 12-13, ECF No. 17 at Pg ID 219-20.) DPSCD does not argument in reply. The Court finds it unnecessary to decide which yard stick to apply, however.
This is because the Sixth Circuit h bullying can suffice to shock the conscience. Gohl , 836 F.3d at 680; see also Ivey v. Wilson , 832 F.2d 950, 954-55 (6th Cir. 1987) (holding that verbal abuse or rights). Notwithstanding the lack of precedent in a comparable setting, the Court is aware that district courts within the Sixth Circuit have held that verbal assaults of students by teachers and other school employees are not conscience-shocking. See N.P. v. Kenton Cnty. Pub. Schools , No. 20-142, 2021 WL 4432511, at *3 (E.D. Ky. Sept. 27, 2021) (relying on Gohl t process claim based on only alleged harassment and bullying); Lininger v. St. Marys City Sch. Dist. Bd. of Educ. , No. 3:16cv2853, 2019 WL 188050, at *10-11
s regular insults of *16 player did not support substantive due process claim). Other Circuit Courts have expressly held that verbal abuse and - See, e.g., Costello v. Mitchell Pub. Sch. Dist. , 266 F.3d 916, 921 (8th Cir. 2001) (upholding the dismissal of substantive due process claim b verbal harassment, which included calling the student derogatory names and belittling her on a daily basis in front of her classmates); Doe v. Gooden , 214 F.3d 952, 955 (8th Cir. 2000) (finding that teacher using foul language, telling students that their handwrit inappropriate and appalling, but did not violate the students constitutional ; Abeyta v. Chama Valley Indep. Sch. Dist. , 77 F.3d 1253, 1257-58 (10th Cir. 1996) (concluding that teacher repeatedly calling student a prostitute in front of the class and permitting her classmates to taunt her over a month-and-a-half period did not amount to a substantive due process violation); Moore v. Lusks , 667 s bullying of student, ; L.H. Pittston Areas Sch. Dist. *17 granting summary judgment on substantive due process claim based on teacher telling eighth grade student in
; see also Doe v. Patrick , 437 F. Supp. 3d 160, 172 (N.D.N.Y. 2020) (finding that a to use the restroom and teasing and mocking him for needing to stop, resulting in ot so outrageous as to shock the
J.D.P by & through Oliver v. Montgomery Cnty. Bd. of Educ. , No. 2:20-cv-420, 2021 WL 706759, at *4 (M.D. Ala. Feb. 23, ideotaped and posted on social media, did not rise to a substantive due process violation). conduct toward C.F. Doe was, at best, highly inappropriate and unprofessional. [3] Experts in both the medical and psychological and e *18 psychological fields recognize the impact that humiliation and bullying can have on children, particularly those with developmental disabilities. Unfortunately, however, this Court must conclude based on Sixth Circuit precedent and the decisions of other circuit and district courts that the non-physical harassment and abuse presented here does not give rise to a substantive due process violation. This Court scoured for cases within this Circuit and in other Circuits compelling a different conclusion and found none.
After having viewed the video, the Court was both stunned and saddened to see a seven-year-old child suffering fear and humiliation as a result of a situation deliberately orchestrated by a school guidance counselor. Notably, the guidance counselor had a history of discipline and was on probation when the incident occurred. Nevertheless, as relates to Edwards and C.F. Doe, it is alleged to be a one-time incident, and the video reflects that the incident lasted less than a minute and a half. Nuchols v. Berrong - time, exaggerated threat of harm made in a moment of anger does not rise to the level of a co As such, the allegations in the instant case fail to support a substantive due process claim.
B. Liability for the Alleged Substantive Due Process Violation C.F. Doe seeks to hold DPSCD liable for alleged constitutional violation under Monell v. Department of Social Services of New York , 436 U.S. *19 658 (1978). To succeed on a Monell claim, the plaintiff must establish the violation of a constitutional right and that the municipality is responsible for that violation. Doe v. Claiborne Cnty. , 103 F.3d 495, 505-06 (6th Cir. 1996). The rights mandates the dismissal of his Monell claim against DPSCD, as well. Robertson v. Lucas under Monell
C.
C.F. Doe asserts gross negligence, assault, and intentional infliction of
emotional distress claims against Edwards, only, and a PWDCRA claim against Edwards and DPSCD. The Court has supplemental jurisdiction over these claims under 28 U.S.C. § 1367. In § 1367, Congress granted district courts the discretion to exercise supplemental jurisdiction if inter alia all claims over which there is original jurisdiction have been dismissed. 28 U.S.C. § 1367(c). District courts over state law claims. Musson Theatrical, Inc. v. Fed. Express Corp. , 89 F.3d 1244, 1254 (6th Cir. 1996). This discretion is circumscribed, however, by Id . (quoting Carnegie-Mellon Univ. v. Cohill Rule 12(b)(6) dismissal, there is a strong presumption in favor of dismissing *20 Id dismissed before trial, the balance of considerations usually will point to dismissing state law claims, or remanding them to state court if the action was state law claims. No scheduling order has been issued, discovery has not begun, and the Court has yet to invest significant time or resources in the litigation besides addressing the pending Rule 12(c) motion. On the other hand, the interest of comity strongly counsels VI. Conclusion
For the reasons set f 1983 claims (Counts I and II) are subject to dismissal. The Court declines to exercise supplemental jurisdiction over the remaining claims in the Complaint (Counts III-VI). For that reason, the Court deems it inappropr dismissal of those claims and is remanding this action to state court.
Accordingly, *21 IT IS ORDERED , DPSCD s motion for judgment on the pleadings (ECF
No. 15) is GRANTED IN PART AND DENIED IN PART in that Counts I and II of the Complaint, only, are DISMISSED WITH PREJUDICE .
IT IS FURTHER ORDERED that this action is REMANDED to the Circuit Court for Wayne County, Michigan.
IT IS SO ORDERED.
s/ Linda V. Parker LINDA V. PARKER U.S. DISTRICT JUDGE
Dated: March 31, 2022
NOTES
[1] In fact, the video begins only after some of the facts alleged in the Complaint occurred. However, the uncaptured facts are not in dispute.
[2] Rule 56(d) was previously codified at Rule 56(f).
[3] In Domingo - Gohl , 836 F.3d at 679 (citing Domingo , 810 F.3d at 415). The discussion of psychological injury in Domingo , however, related to whether a substantive due process claim can survive in the absence of a physical injury resulting from the use of force by a teacher. In other words, the court was evaluating the fourth prong of the Domingo/Gottlieb analysis plaintiff. The court did not address whether a substantive due process claim can be based on verbal or psychological harassment, alone.