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D.B.G. v. Robeson County Board of Education

United States District Court, E.D. North Carolina, Southern Division

March 1, 2019

D.B.G., a minor, CARLOS BAEZA CORDOVA, and TERESA DE JESUS GARCIA GONZALEZ, Plaintiffs,
v.
ROBESON COUNTY BOARD OF EDUCATION; LANCE ADAM HAIR individually and in his official capacity; JOHNNY HUNT, individually and in his official capacity as Superintendent of Robeson County Public Schools; ROBERT LOCKLEAR, individually and in his official capacity as Principal of St. Paul's Elementary School; RAYMOND CUMMINGS, individually and in his official capacity as Director of Transportation of Robeson County Public Schools; and CHRISTOPHER JONES, individually and in his official capacity as TIMS Coordinator for the public schools of Robeson County, Defendants.

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE

         This matter is before the court on defendants Robeson County Board of Education ("School Board"), Robert Locklear ("Locklear"), Raymond Cummings ("Cummings"), and Christopher Jones' ("Jones", collectively "defendants") motions to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(5), [1] and failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).[2] (DE 35). The issues raised have been fully briefed by the parties, and in this posture are ripe for ruling. For the following reasons, defendants' motion is granted in part and denied in part as set forth herein.

         STATEMENT OF THE CASE

         This case concerns liability for an alleged sexual assault of a student by a school bus driver. Plaintiffs commenced this action on July 10, 2018. Plaintiffs filed proof of service on August 16, 2018. In their amended complaint dated September 10, 2018, plaintiffs assert claims for violation of 42 U.S.C. § 1983 by defendants; state law negligence by defendant School Board and defendant Locklear in his official capacity, and by defendant Cummings and defendant Jones in their official and individual capacities; battery, false imprisonment, and intentional infliction of emotional distress against defendant Hair in his individual capacity and as an employee of defendant School Board; negligent infliction of emotional distress against defendant Hair in his individual and in his capacity as an employee of defendant School Board. Plaintiffs seek compensatory and punitive damages.

         On October 30, 2018, defendants filed in the instant motion to dismiss. Defendants argue that defendant Jones has not been served with the summons and complaint in this case; plaintiffs' official capacity claims should be dismissed because they are duplicative of plaintiffs' claims against defendant School Board; the complaint fails to allege respondeat superior liability against defendant School Board for the alleged actions of defendant Hair; plaintiffs' claims against defendants are barredby governmental immunity; and punitive damages against defendant School Board fail to state a valid claim. In support of the motion, plaintiffs submit affidavits from defendant Jones ("Jones Aff" (DE 35-1)), Melody Coons ("Coons Aff" (DE 35-2)), and Hugh Mcllwain ("Mcllwain Aff." (DE 35-3)). Defendants also filed their answer on October 30, 2018.

         On November 20, 2018, plaintiffs filed their response in opposition to the motion to dismiss. Plaintiffs argue that defendants did not rebut the presumption of service; defendants Cummings and Jones are public employees and therefore governmental immunity does not apply to claims against them; plaintiffs may pursue state law claims for negligence against both defendant School Board and defendants Locklear, Cummings, and Jones; respondeat superior liability is permissible as against defendant School Board for the actions of its employee, defendant Hair; defendants' motion does not address plaintiffs' § 1983 claims; and plaintiff waives any claim to punitive damages against defendant School Board for vicarious liability.

         On December 3, 2018, defendants replied to plaintiffs' response opposing the motion to dismiss. Defendants argue that presumptive service is not implicated in this case; and plaintiffs' official capacity claims against defendants Locklear, Cummings, and Jones are redundant. In support of defendants' reply, they attach the affidavit of Robert Locklear ("Locklear Aff." (DE 45-1)).

         In the meantime, plaintiffs also filed a motion for extension of time to serve defendant Jones on November 20, 2019, which the court later granted on January 14, 2019. Plaintiffs then filed a second motion for extension of time to serve defendant Jones on February 11, 2019, which the court granted on February 15, 2019.

         STATEMENT OF FACTS

         The facts alleged in the complaint may be summarized as follows.[3] During the 2012-2013 school year, D.B.G. was enrolled in fifth grade at St. Paul's Elementary School, a public school operated by Defendant School Board in Robeson County. (Compl. ¶ 20). At all relevant times, in accordance with N.C. G.S. § 115C-241, Defendant School Board provided transportation to its enrolled students on buses that followed routes and schedules determined by Defendant School Board and its agents and employees. (Id. ¶ 21). During the 2012-2013 school year, the minor plaintiff D.B.G. was assigned to the bus driven by Defendant Hair, who was supposed to pick her up and drop her off at a designated stop near her home. Id. ¶ 22).

         Throughout the 2012-2013 school year, defendant Hair allegedly used his used his authority, control, and access to plaintiff D.B.G. to subject her to sexual improprieties, set forth fully in plaintiffs' complaint. (See id. ¶¶ 24-27). Plaintiffs allege that before defendant Hair began to exploit and abuse plaintiff D.B.G., he had already been accused of impropriety with another female student on his bus. (Id. ¶ 28). The accusation of impropriety with a student was made to defendants School Board, Locklear, Cummings, and/or Jones. (Id.). However, defendants did not take any actions to train or monitor defendant Hair or take other appropriate actions, such as investigating defendant Hair, report defendant Hair to law enforcement, or fire or discipline defendant Hair. (Id. ¶¶ 29-31).

         In December 2013, a teacher learned that defendant Hair was sending obscene pictures to students. (Id. ¶37). A criminal investigation followed. (Id.). Defendant Hair admitted to numerous criminal offenses against schoolchildren, including plaintiff D.B.G.. (Id.). He eventually pled guilty to two counts of felonious restraint, two counts of using minors to assist in obscenity, two counts of disseminating obscene material to minors, and two counts of taking indecent liberties with children. (Id.). Defendant Hair entered his guilty plea pursuant to a bargain with the prosecutor, and the offenses to which he pled guilty did not encompass all of his misconduct with children in the Robeson County public schools. (Id.).

         COURT'S DISCUSSION

         A. Standard of Review

         A motion to dismiss under Rule 12(b)(1) challenges the court's subject matter jurisdiction. Such motion may either 1) assert the complaint fails to state facts upon which subject matter jurisdiction may be based, or 2) attack the existence of subject matter jurisdiction in fact, apart from the complaint. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). When a defendant challenges the factual predicate of subject matter jurisdiction, a court "is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The nonmoving party in such case "must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists." Id.

         A motion under Rule 12(b)(5) challenges the sufficiency of service of process. See Fed.R.Civ.P. 12(b)(5). "When the process gives the defendant actual notice of the pendency of the action, the rules ... are entitled to a liberal construction" and "every technical violation of the rule or failure of strict compliance may not invalidate the service of process." Armco, Inc. v. Penrod-StaufferBldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984). Nevertheless, "the rules are there to be followed, and plain requirements for the means of effecting service of process may not be ignored." Id. The plaintiff bears the burden of establishing that process properly has been served. Dalenko v. Stephens, 917 F.Supp.2d 535, 542 (E.D. N.C. 2013); see also Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993) (holding the plaintiff must prove service of process if challenged).

         "To survive a motion to dismiss" under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Factual allegations must be enough to raise aright to relief above the speculative level." Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, "[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff," but does not consider "legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement[, ] . . . unwarranted ...


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