United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM & RECOMMENDATION
L. Howell, United States Magistrate Judge
the Court is Defendant's Motion to Dismiss. [# 7]. On
September 11, 2017, Plaintiff filed her Complaint asserting
claims of failure to provide a free appropriate public
education, in violation of 29 U.S.C. § 794, the
Fourteenth Amendment, and N.C. Gen. Stat. § 115C-107.2;
excessive force; negligent infliction of emotional distress;
and negligence. [# 1]. On December 20, 2017, Defendant filed
its motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(1),
(2), and (6). [# 7]. The District Court referred the motion
to this Court. Accordingly, Defendant's motion is now
before this Court for a Memorandum and Recommendation to the
District Court. The Court will recommend the District Court
grant Defendant's Motion to Dismiss. [# 7].
Relevant Factual Background
facts in this case center on an alleged incident that
occurred on September 19, 2014, when T.W. was fifteen years
and enrolled in Kings Mountain High School's Supporting
Academics and Independent Living (SAIL) program. [Compl.
¶¶ 1, 7]. Defendant is the board of education that
oversees the Cleveland County School District wherein Kings
Mountain High School (KMHS) is located. [Id. at
¶¶ 1, 6]. Plaintiff alleges Defendant “has
purchased insurance to cover claims as outlined
herein.” [Id. at ¶ 68].
to 2014, T.W. had been diagnosed with autism spectrum
disorder. [Id. at ¶ 7]. Autism is a
developmental disorder marked by challenges with
communication and social skills. [Id. at ¶ 7].
T.W. had also been diagnosed with anxiety disorder and
narcolepsy. [Id. at ¶ 7].
2014, before starting the SAIL program, a special team
convened and created T.W.'s individualized education plan
(IEP). [Compl. ¶ 10]. The KMHS “exceptional
children” teacher Rachel Bye was present and signed
T.W.'s IEP. [Id. at ¶ 12]. T.W.'s IEP
included a behavioral intervention plan (BIP). [Id.
at ¶ 10]. The BIP outlined that if T.W. were to have a
behavior issue, T.W.'s mother should be called
“rather than retraining her.” [Id. at
¶ 10]. Further, the BIP stated the Police Department
should be contacted only if T.W.'s safety were in danger.
[Id. at ¶ 10]. If a situation were to arise
where T.W. had to be restrained, T.W.'s BIP stated males
were neither to be involved in the intervention nor to touch
T.W.; this fact was communicated to KMHS staff. [Id.
at ¶¶ 11, 13]. At some point before the incident,
T.W.'s mother notified the school that T.W. is afraid of
the police and would run away if the police were called.
[Compl. ¶ 8]. To help familiarize T.W. before school
started, T.W. met with KMHS administrators and staff.
[Id. at ¶ 14].
September 19, 2014, T.W. was late to school. [Id. at
¶ 15]. T.W. had been sick and absent the prior two days.
[Id. at ¶ 15]. That morning, T.W.'s mother
told the school to call her if T.W. started to feel unwell.
[Id. at ¶ 16]. A staff member escorted T.W. to
the exceptional children classroom. [Id. at ¶
17]. The exceptional children classroom has an adjoining door
with Ms. Blanton's classroom. [Compl. ¶ 21].
day's lesson, T.W. needed the use of her computer tablet,
but T.W. had issues unlocking the tablet's passcode.
[Id. at ¶ 18]. Then, T.W. quarreled with the
classroom's ‘applied behavior analysis tech'
about the tablet. [Id. at ¶ 19]. T.W.
acquiesced and returned the tablet. [Id. at ¶
19]. Afterward, T.W. told Rachel Bye she wanted to go to the
front office and call her mother because she was not feeling
well. [Id. at ¶ 20]. T.W. had not memorized her
mother's phone number. [Id. at ¶ 20]. T.W.
thought the office would help her. [Compl. ¶ 20]. Rachel
Bye denied T.W.'s request. [Id. at ¶ 21].
Bye told T.W. “she must first memorize her mother's
number, and then she could either make the phone call in Ms.
Bye's classroom or the adjoining classroom, Ms.
Blanton's room.” [Id. at ¶ 21].
T.W. made moves to exit the exceptional children classroom
through the main classroom door. [Id. at ¶ 22].
Bye blocked T.W.'s attempt. [Id. at ¶ 22].
Then, T.W. tried to go out through the main classroom door of
Ms. Blanton's classroom. [Id. at ¶ 22]. Mr.
Green, a substitute teacher, blocked T.W's efforts.
[Compl. ¶ 22]. At that moment, assistant principal
Jeremy Shields called Ms. Blanton's classroom on an
unrelated matter. [Id. at¶ 23]. Ms. Blanton
answered and told Shields there was a problem and Shields was
needed in her classroom. [Id. at ¶ 23]. Shields
recruited Officer Davis to assist him. [Id. at
¶ 24]. Officer Davis is a 41 year old Caucasian male.
[Id. at ¶ 24]. When Shields and Davis arrived
at Ms. Blanton's classroom, T.W. was still attempting to
exit. [Id. at ¶ 24]. Officer Davis switched
with Mr. Green and continued blocking T.W. from leaving Ms.
Blanton's classroom. [Compl. ¶ 24]. T.W. told
Officer Davis she had permission to call her mother.
[Id. at ¶ 25].
suggested to T.W. that they should move to another room for
privacy. [Id. at ¶ 26]. T.W. stated she did not
want privacy but only to call her mother. [Id. at
¶ 26]. Then, Officer Davis grabbed at T.W. [Id.
at ¶ 27]. T.W. pulled away. [Id. at ¶27].
Davis shoved T.W. into another room. [Compl. ¶ 27]. T.W.
fell to the floor. [Id. at ¶ 27]. As T.W.
attempted to get back up, Davis pushed her back down.
[Id. at ¶ 28]. Davis got on top of T.W. and
attempted to handcuff her. [Id. at ¶ 28]. T.W.
resisted and struggled to get away. [Id. at ¶
28]. Officer Davis punched T.W.'s face. [Id. at
¶ 28]. Officer Davis then “placed his hand on
[T.W.'s] neck and proceeded to punch her again and
again.” [Compl. ¶ 28]. T.W. could not breathe.
[Id. at ¶ 29]. Officer Davis continued to punch
T.W., and at one point Davis gathered T.W.'s hair, pulled
her head back, and again hit T.W. across the side of her
face. [Id. at ¶ 30].
effort to escape further harm, T.W. bit Davis' hand.
[Id. at ¶ 31]. Davis responded by administering
pepper spray on T.W. and punched her again. [Id. at
¶ 31]. At that moment, the pepper spray effects were so
strong T.W. was nearly blind. [Id. at ¶ 31].
Rachel Bye witnessed Davis pepper spraying T.W. [Compl.
¶ 31]. Bye then felt she “had to walk away.”
[Id. at ¶ 31]. No one tried to stop the attack.
[Id. at ¶ 33].
assistant principal Shields ordered T.W. to stand up.
[Id at ¶ 34]. T.W. complied. [Id at
¶ 34]. Then, Officer Davis grabbed T.W.'s hair and
slung her across the room. [Id at ¶ 34]. As
T.W. lay on the ground, Davis pepper sprayed her a second
time. [Compl. ¶ 34]. Davis continued attacking T.W.
until he heard sirens approaching. [Id. at ¶
35]. T.W. asked Shields for napkins and water. [Id
at ¶ 36]. Shields retrieved some napkins and threw them
on the ground near T.W. [Id at ¶ 36]. Shields
did not get T.W. water. [Id. at ¶ 36].
arrived and found T.W. on the floor-bloodied and hysterical.
[Id at ¶ 37]. T.W.'s nose and lip were
bleeding. [Compl. ¶ 37]. There was blood on the floor in
front of where T.W. sat handcuffed. [Id at ¶
37]. T.W. was hyperventilating. [Id at ¶ 37].
T.W. repeated she could not see and she only wanted to call
her mother. [Id at ¶ 38]. EMS reported as soon
as T.W. was laid down on a stretcher, an officer handcuffed
her to the stretcher. [Id at ¶ 39]. Then, a
different officer boarded the ambulance with T.W. for
transport. [Id at ¶ 39].
entire incident occurred during the time T.W.'s mother
drove back home. [Compl. ¶ 40]. Rachel Bye called
T.W.'s mother and told her there had been an altercation
between T.W. and Officer Davis. [Id at ¶ 40].
T.W.'s mother asked Bye to speak with her daughter.
[Id at ¶ 39]. Bye stated T.W. could not speak
at that time. [Id at ¶ 40]. T.W.'s mother
then asked to speak with Officer Davis. [Id at
¶ 40]. Bye told T.W.'s mother she could not speak
with him. [Id at ¶ 40]. Bye told T.W.'s
mother to return to the school. [Compl. ¶ 41].
T.W.'s mother asked for clarification of what exactly
happened. [Id at ¶ 41]. Bye stated she did not
know and hung up. [Id at ¶ 41].
weekend following the attack, Officer Davis was notified he
was going to be taken out of KMHS for unspecified reasons.
[Id. at ¶ 46]. Less than a month later, Davis
was reinstated as a school resource officer at KMHS.
[Id. at ¶ 46].
physical injuries included contusions of the eyelid, acid
chemical burns, acute headaches, and bald spots on her head
where her hair had been ripped out. [Id. at ¶
42]. T.W.'s emotional injuries, which are ongoing,
include: “increased tearfulness, disrupted sleep due to
nightmares, irritability, fatigue, a sixty-pound weight gain,
feelings of hopelessness, helplessness, and worthless [sic],
decreased concentration, an exaggerated startle reflex,
auditory and visual hallucinations, increased anxiety, panic
attacks, depression, isolation, difficulty being in groups of
people, restlessness, tension, worry, racing thoughts,
re-experiencing the trauma, and suicidal thoughts.”
[Compl. ¶ 43]. T.W. has been ...