United States District Court, W.D. North Carolina, Charlotte Division
C. MULLEN, UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendants' Motion to
Dismiss (Doc. No. 10), Plaintiffs' Memorandum in
Opposition of Defendants' Motion to Dismiss (Doc. No.
13), and Defendants' Reply to the Response to the Motion
to Dismiss (Doc. No. 14). The parties' motions are ripe
RM is an eleven-year-old fifth grader. (Doc. No. 1 at 3). At
the time of alleged conduct RM attended Highland Creek
Elementary School. Id. at 4. The Defendants have
adopted the Plaintiffs' factual allegations alleged in
Plaintiffs' Complaint for purposes of their Motion to
Dismiss. (Doc. No. 11 at 2). These factual allegations are
September 4, 2014 RM told Student 1 that he was deathly
allergic to cashews and pistachios to which Student 1
responded that RM should “watch out” because he
was going to bring nuts to school the next day. (Doc. No. 1
at 5). RM's mother, MM, called the school about the
incident and emailed Principal Saxton on September 7, 2014
requesting a meeting about the incident. Id. at 6.
next day, the school held a meeting with RM, his parents,
Principal Saxton, the assistant principal, school counselor
Stacey Kata, the school nurse, and several other district
staff. Id. At that meeting RM and his parents were
told that Student 1's comments would be treated as a 26c
violation and handled accordingly. Id. In addition,
following this meeting RM met with the school counselor and
the District prepared an emergency plan for RM detailing the
signs of allergic reaction and the appropriate medical
September RM and MM reported other incidents to the school
involving Student 1 as well as other students. Id.
In response, the school counselor came up with a plan for RM
to place a note in a box to meet with her when an incident
arose and the school increased supervision of the students.
these efforts, RM continued to be bullied. Id.
Consequently, Plaintiffs had another meeting with Principal
Saxton, guidance counselor Stacey Kata and 4th
grade teacher Mrs. Davis on September 25, 2015. Id.
At this meeting, Plaintiffs expressed that they believed more
significant action needed to be taken to stop the bullying.
Id. at 7.
next day, Principal Saxton brought RM into his office and
told RM that RM was accountable for the bullying and that the
bullying situation would improve if RM was nicer to Student
1. Id. RM told Principal Saxton of bullying incident
that occurred that day in the lunchroom. Id.
Principal Saxton and RM watched the surveillance tape from
the cafeteria, which corroborated what RM had said. Then,
Principal Saxton called Student 1 into his office and told
both students that he was “hitting the reset
button” and that they were to start over. Id.
September 28, 2014 MM emailed Principal Saxton discussing the
latest incident and her dissatisfaction with the lack of
results of the previous meeting. Id. Then on
September 29, 2014, MM hand delivered a note to Heath
Morrison and sent a certified copy to the entire school board
that explained the bullying RM had been subjected to over the
month. Id. at 9. In response, Community
Superintendent Dr. Hayes contacted MM the following day.
Id. Dr. Hayes told MM that Superintendent Ann Clark
called him expressing concern that action was taken to ensure
RM's safety. (Id.). MM requested that Student 1
be removed from RM's class. Id. Dr. Hayes said
that was not possible but offered to have RM change schools.
Id. MM told Dr. Hayes that she had consulted an
attorney who said that the District did have the option of
removing the child and offered to get the attorney involved.
Id. at 10.
October 2, 2014 a meeting was held between the Plaintiffs, VP
Brice, and Dr. Hayes. (Id. In it Dr. Hayes explained
the behavioral plan that they would be implementing and told
the Plaintiffs that it was similar to a restraining order.
Id. Dr. Hayes also acknowledged “that things
have not gone the way the needed to up until this point,
” including that Student 1 was not given a 26c in
accordance with the Code of Student Conduct as had been
discussed at the September 8, 2014 meeting. Id.
asked if RM should have a 504 plan and due to that request
the District created a detailed plan that stated that Student
1 would be removed from RM's class to be effective that
day. Id. The plan ensured RM and Student 1 did not
have lunch together and did not interact during recess.
Furthermore, the plan detailed a process for RM to report
when he felt threatened through an agreed upon hand gesture
to designated school staff or go to a safe place in the media
center. Id. at 11. This was the first discipline
taken against Student 1 for the bullying of RM. Id.
this plan did not end the bullying situation. The day the
plan was implemented, RM was asked by Student 1's friends
why Student 1 had been moved and at recess that day a friend
of Student 1 would not allow RM to participate in the
assigned activity at recess. Id. Over the next three
months other bullying incidents occurred including Student 1
repeatedly joining activities RM was participating in during
recess. Id. at 11-13.
October 8, 2014, Student 1 was suspended for telling other
students to continue to bully RM. Id. at 11. That
day VP Brice again tried to persuade the Plaintiffs to place
RM and their daughter into another school. Id. at
November 4 and 5, 2014, MM sent emails to Dr. Hayes about
Student 1's continued bullying of RM and these emails
noted that a classmate had assaulted RM's sibling KM.
Id. There was no disciplinary consequences for this
assault and KM's teacher told the Plaintiffs that she
could not discipline the student due to the direction of
Principal Saxton. Id. MM then emailed Superintended
Clark on November 5 describing these latest incidents and Dr.
Hayes replied that the only option left was to transfer RM
and KM to another school. Id.
about November 25, 2014, Dr. Hayes, Stephanie McKineey, and
the Plaintiffs held another meeting and Dr. Hayes'
proposed again to move RM and KM to a different school;
Plaintiffs again declined. Id. at 13 Then, on
December 18, 2014, Plaintiffs met with Principal Saxton and
Principal Saxton agreed that RM's interactions with
Student 1 needed to be eliminated. Id.
January 2015 the classes of RM and Student 1 began combining
regularly in the same room. (Id. at 14). RM told MM
that this was occurring April 2, 2015. Id. In April
2015, RM was diagnosed with Post Traumatic Stress Disorder.
Id. at 15. On May 12, 2015 MM withdrew RM from
Complaint Plaintiffs filed on July 5, 2016, the Plaintiffs
allege eight causes of action. They are: (1) Intentional
Infliction of Emotional Distress; (2) Negligent Infliction of
Emotional Distress; (3) Negligent Supervision and Training;
(4) Federal Constitutional Claims; (5) State Constitutional
Claims; (6) violation of the Americans with Disabilities Act;
(7) violation of Section 504 of the Rehabilitation Act of
1973; and (8) violation of North Carolina's Persons with
Disabilities Protection Act.
the Defendants argue numerous reasons for the dismissal of
all the Plaintiffs' claims, many of their arguments
invoke Rule 12(b)(6). Thus, the standard for evaluating a
Rule 12(b)(6) motion is detailed here.
general rule, pleadings must entail “only ‘a
short and plain statement of the claim showing that the
pleader is entitled to relief, ' in order to ‘give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley
v. Gibson, 355 U.S. 41, 47 (1957)). This standard
instructs that, when faced with a Rule 12(b)(6) motion to
dismiss, “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).
Thus, a “complaint may proceed even if it strikes a
savvy judge that actual proof of [the facts alleged] is
improbable, and ‘that a recovery is very remote and
unlikely.'” Twombly, 550 U.S. at 556
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). However, these broad requirements still
“demand more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
complaint must state a claim that “raise[s] a right to
relief above the speculative level” and must contain
more than “naked assertion[s] . . . without some
further factual enhancement.” Twombly, 550
U.S. at 555-57.
PLAINTIFFS' IIED, NIED & NEGLIGENT SUPERVISION AND
TRAINING CLAIMS AGAINST DEFENDANT BOARD
Carolina boards of education are entitled to governmental
immunity from lawsuits that allege tortious or negligent
conduct unless the Board waived governmental immunity. N.C.
Gen. Stat. § 115C-42. Immunity is only waived “to
the extent that the board of education is indemnified by
insurance for such negligence of tort.” Id.;
see Magana v. Charlotte-Mecklenburg Bd. of Educ.,
183 N.C.App. 146, 148, 645 S.E.2d 91, 92-93 (2007)
(“With respect to immunity, a county board of education
is a governmental agency, and is therefore not liable in a
tort or negligence action except to the extent that it has
waived its governmental immunity pursuant to statutory
relevant times during the Complaint, the Board did not carry
any liability insurance for personal injury claims totaling
less than one million dollars. (Aff. of Daniel Pliszka,
¶ 5-7). However, the Board does have two excess policies
to cover certain liabilities above one million dollars.
(Id. at ¶ 7). The first is a general liability
policy purchased from Genesis Insurance Company
(“Genesis”). (Id. at ¶ 8). The
Genesis policy states that it "is not intended by the
Insured to waive its governmental immunity as allowed by
North Carolina General Statutes Sec. 115C-42 . . . this
policy provides coverage only for occurrences or wrongful
acts for which the defense of governmental immunity is
clearly not applicable." (Id. ¶ 10, Ex. A,
p. 18, Endorsement Number 9). The policy provides that
Genesis "agree[s] to indemnify the Insured for ultimate
net loss in excess of the retained limit which the Insured
becomes legally obligated to pay...." and "[o]ur
indemnification obligation shall not arise until the Insured
itself has paid in full the entire amount of its retained
limit". (Id., Ex. A, p. 31). The Board's
retained limit is one million dollars and after payment of
the retained limit, the Genesis policy covers additional
liability up to five million dollars. (Id., Ex. A,
second is an excess policy purchased from Great American
Insurance (“Great American”). (Id. at
¶ 9). The Great American policy provides excess coverage
up to fifteen million dollars. However, similar to the
Genesis policy, the Great American policy is only triggered
"unless and until the Insured or the Insured's
'underlying insurance' is obligated to pay the full
amount of the Underlying Limits of Insurance."
(Id. ¶¶ 11-12, Ex. B, p. 22). The Great
American policy defines "Underlying Insurance" as
the Genesis policy. (Id., Ex. B, p. 2, 4).
Board has no liability insurance that provides coverage for
tort claims resulting in less than one million dollars of
damages. The Board's excess coverage is only triggered
for claims in excess of one million dollars and only for
claims in which the Board has paid the retention amount. In
other words, the excess policies never provide coverage if
the Board is otherwise immune from the claim.
North Carolina Court of Appeals has repeatedly upheld,
through the process outlined above, that Defendant Board has
not waived its governmental immunity. See Doe v.
Charlotte-Mecklenburg Bd. of Educ., 222 N.C.App. 359,
362, 731 S.E.2d 245, 247 (2012) (the appellate court noting
that the trial court granted the Board's motion to
dismiss for the alleged tort claims because the Board
“had not waived immunity by the purchase of liability
insurance.”); Irving v. Charlotte-Mecklenburg Bd.
Of Educ., 2013 WL 5508370 ( N.C.App. October 1, 2013)
(citation omitted) (“because the school board had ...