Opinion

Robinson v. Washington County Board of Education

Court: District Court, D. Maryland
Filed: Oct 12, 2023
Cited by: 0 cases
Authority: More cited than 23.2%

concluding that cases involving “fundamentally” or “materially similar” facts are not necessary to a finding that the law is clearly established

How later courts described this case

concluding that cases involving “fundamentally” or “materially similar” facts are not necessary to a finding that the law is clearly established
“While the State may have been aware of the dangers that [the child] faced . . . it played no part in their creation, nor did it do anything to render him any more vulnerable to them.”
“As DeShaney indicates and our case law specifies, a ‘special relationship’ is all but synonymous with a custodial relationship.”
recognizing that the state-created danger exception “applies only when the state affirmatively acts to create or increase the risk that resulted in the victim’s injury”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

LATISHA ROBINSON, Individually

and as Parent and Natural Guardian of

A.T., a minor

Plaintiff,

Civil No. 1:22-cv-01102-ELH

BOARD OF EDUCATION OF

WASHINGTON COUNTY, et al.,

Defendants.

MEMORANDUM OPINION

A.T. was a six-year-old public school student in the first grade in Hagerstown, Maryland,

when she was sexually abused by two female classmates. Thereafter, A.T.’s mother, plaintiff

Latisha Robinson, individually and as parent and natural guardian of A.T., filed suit against the

Washington County Board of Education (the “BOE” or the “Board”); Dr. Boyd Michael III, the

county superintendent1; Dana Peake, the principal of the school where the abuse occurred; and

Lauren Housel, a teacher at the school. See ECF 1. The Amended Complaint (ECF 21) is the

operative pleading.2

Pursuant to Fed. R. Civ. P. 12(b)(6), the defendants have moved to dismiss Counts II and

III of the Amended Complaint. ECF 24 (“Motion”).3 Plaintiff opposes the Motion. ECF 29

(“Opposition”). Defendants have replied. ECF 34 (“Reply”).

1 Dr. Michael retired in July 2022, after 43 years of service. ECF 24 at 1 n. 1.

2 The Amended Complaint generally refers to Ms. Robinson as the sole plaintiff. But,

some of the submissions refer to “plaintiffs,” i.e., Ms. Robinson and A.T. In general, I shall refer

to Ms. Robinson as the “plaintiff.”

3 Although defendants have not moved to dismiss Counts I, IV, and IV of the Amended

Complaint, they did not file an answer as to those counts. However, “the majority view [is] that a

No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that

follow, I shall grant the Motion in part and deny it in part.

I. Procedural Background

The Complaint (ECF 1) contained five counts. In particular, plaintiffs asserted a claim

against the Board for violation of Title IX of the Education Amendments Act of 1972, 20 U.S.C.

§§ 1681 et seq. (hereafter, “Title IX”) (Count I); a claim pursuant to 42 U.S.C. § 1983 for failure

to train, lodged against the Board, Michael, and Peake (Count II); a § 1983 claim against the Board,

Michael, and Peake alleging “State-Created Danger” (Count III); a claim of negligence, asserted

against all defendants (Count IV); and a claim of negligent supervision, monitoring, and training,

lodged against the Board, Michael, and Peake (Count V).

Defendants moved to dismiss Counts I, II, III, and V of the Complaint, pursuant to Fed. R.

Civ. P. 12(b)(6). ECF 4. In addition, they sought to dismiss Count IV, to the extent that it asserted

a claim of educational malpractice. Id. They otherwise answered the suit. ECF 5. In the

opposition (ECF 11), plaintiff sought leave to amend Counts II and III to add claims against

Michael and Peake in their individual capacities.

By Memorandum Opinion (ECF 18) and Order (ECF 19) of March 14, 2023, I denied the

motion to dismiss as to Counts I, IV, and V, but I granted it as to Count II and III as to the Board,

as well as to Michael and Peake in their official capacities. See Robinson v. Bd. of Educ. of

Washington Cty., ELH-22-01102, 2023 WL 2499854 (D. Md. Mar. 14, 2023). But, I also granted

partial motion to dismiss stays the time to file a responsive pleading.” Singhal & Company, Inc.

v. VersaTech, Inc., JKB-19-01209, 2019 WL 4120434, at *6 n.2 (D. Md. Aug. 28, 2019); see also

Saman v. LBDP, Inc., DKC-12-1083, 2012 WL 5463031, at *4 n.1 (D. Md. Nov. 7, 2012); Tingley

Systems, Inc. v. CSC Consulting, Inc., 152 F. Supp. 2d 95, 122 (D. Mass. 2001). And, in the

Motion, defendants reference their Answer to the original Complaint. See, e.g., ECF 24 at 3 (citing

ECF 5, ¶ 43).

plaintiff leave to amend the suit to add claims against Michael and Peake in their individual

capacities. Id.

The Amended Complaint followed on April 4, 2023. ECF 21. The substantive allegations

in the Amended Complaint concerning Counts I, IV, and V are largely the same as the allegations

in the Complaint.4 But, plaintiff now alleges that Michael was tasked with “supervising and

running the Board of Education.” ECF 21, ¶ 16. And, Count II now names only Peake as a

defendant, id. at 23, and it no longer contains language concerning “Failure to Train.” Compare

ECF 1 at 23. Similarly, Count III now names only Michael as a defendant, and it replaces the

language indicating liability for “State-Created Danger,” id. at 25, with “Supervisory Liability.”

ECF 21 at 25.

In addition, the Amended Complaint indicates that Michael has been sued in his individual

capacity. Id. at 25. But, plaintiff does not expressly sue Peake in her individual capacity. See id.

at 23. And, plaintiff no longer alleges: “At all times relevant, Michael acted within the scope of

his employment as an agent and servant of the Board of Education.” ECF 21-2, ¶ 16.

4 Although plaintiff submitted a redlined version of the Amended Complaint, as required,

it is not always apparent which text is new. See ECF 21-2. For example, in the redlined version

of the Amended Complaint, paragraph 88 appears to be a new allegation. Id. ¶ 88. Yet, paragraph

88 in the Amended Complaint is identical to paragraph 88 in the Complaint. Moreover, the

redlined version of Count II and Count III does not always reflect what has been deleted.

II. Factual Background5

In the fall of 2019, A.T. was six years of age and a student in the first grade at Ruth Ann

Monroe Primary School (the “School”). ECF 21, ¶ 37.6 Housel was A.T.’s teacher. Id. A.T.

“generally enjoyed attending school and learning.” Id.

Housel sent a text message to plaintiff on November 6, 2019, expressing concern about

A.T.’s classroom conduct. Id. ¶¶ 37, 38. Housel noted that “A.T. often spent time playing in the

back of the classroom with Student A instead of learning in her seat during math class.” Id. ¶ 39.

Housel sent a second message to plaintiff on or about November 13, 2019. ECF 5, ⁋ 38.7

Ms. Robinson became concerned about A.T.’s classroom environment “after receiving two

messages of this nature” from Housel. ECF 21, ¶ 40. Therefore, she contacted Housel on or about

November 13, 2019, and asked to move A.T. to a different class to separate her from Student A.

Id. ¶ 40.8 Housel responded on November 18, 2019. Id. She informed plaintiff that she had

spoken to the administration and that moving A.T. to another class “‘would be a process.’” Id. ¶

40. Ms. Robinson claims that no further action was taken with respect to her request. Id.

5 At this juncture, the Court assumes the truth of the allegations in the Amended Complaint.

See Fusaro v. Cogan, 930 F.3d 241, 248 (4th Cir. 2019).

6 Defendants assert that the School is subsidized under “Title I, Part A of the Elementary

and Secondary Education Act, as amended by the Every Student Succeeds Act.” ECF 24 at 2 n.3.

7 Plaintiff claims that she received two messages from Housel. ECF 21, ¶ 40. But, the

Amended Complaint is unclear as to when the second message was transmitted.

8 Defendants admit that plaintiff “raised the possibility of moving A.T. to another class,”

but state that the request was sent on November 15, 2019, rather than November 13, 2019. ECF 5,

⁋ 40. The discrepancy is immaterial.

Also in the fall of 2019, A.T.’s father noticed that A.T. was engaging in sexualized

behavior. Id. ¶ 41. He claims that A.T. “started kissing his other children on the mouth and was

talking about ‘boyfriends and girlfriends.’” Id.9

Then, on December 4, 2019, Ms. Robinson “received a phone call from [the School]

requesting that she come in and meet with Housel and Peake immediately.” Id. ¶ 42. At the

meeting, at which A.T. was present, Peake informed plaintiff that A.T. had “‘made a bad decision’”

and “‘took nude photos of herself’” in the School bathroom, using a school iPad. Id. Housel

indicated that the images were discovered based on a report from another student. Id. But, A.T.

later told her mother “that student A had instructed her to take the photographs.” Id. ¶ 43.

Ms. Robinson subsequently received a call from Stephen Pittman, a Child Protective

Services employee for the Washington County Department of Social Services. Id. ¶ 44.10

Plaintiffs met with Pittman and a social services victim advocate, Victoria Morrison, on December

10, 2019. Id. ¶ 45. Pittman interviewed A.T. while “Morrison asked plaintiff questions about A.T.,

their home, and plaintiff’s own childhood.” Id.

Thereafter, Pittman “informed Plaintiff that A.T. had been sexually abused by other

students in her class. . . .” Id. ¶ 46. He explained that School employees “discovered the abuse”

because some of the incidents were “video-recorded” on “the school-issued classroom iPad.” Id.

He also indicated that Housel found photographs of A.T. in the “deleted folder on the classroom

iPad . . . .” Id. The School subsequently “examined” all 200 of the School iPads. Id. Videos of

9 It appears that A.T.’s parents do not reside together.

10 Defendants assert that on December 4, 2019, in response to discovering the photographs,

they contacted the school’s resource officer, who was also a member of the Washington County

Sherriff’s Department, as well as the Department of Social Services. ECF 5, ⁋ 43. Further,

defendants claim that those two departments proceeded to collect “all of the pertinent evidence

and conducted the investigation into the students’ activities.” Id.

A.T. and two other female students were found in the “‘Deleted’ folder” on “at least one of the

devices.” Id..

Moreover, Pittman stated that at least five videos were recorded on different dates during

the fall semester of 2019, including November 15, 2019. Id. ¶¶ 48, 50. Each video involved A.T.,

student A, and at least one other child. Id. ¶ 48. The videos showed the children “engaged” in

“licking” of each other’s genitals and “kissing.” Id. ¶ 47. And, “the videos showed the other

children kissing A.T. on the mouth and licking her vaginal and genital area . . . .” Id. According

to Pittman, all of the incidents recorded on the videos “took place in Housel’s classroom, behind

a bookshelf, in the back of the classroom.” Id. ¶ 48.

Upon learning of the sexual abuse of A.T., plaintiff attempted to contact Peake to obtain

more information and to determine how the school planned “to protect A.T.” Id. ¶ 54. Plaintiff

alleges that Peake never responded. Id. Robinson also claims that defendants did not “reach out”

to her or A.T. to investigate the incidents. Id. ¶ 55. Further, plaintiff asserts that defendants “made

no efforts to move A.T. to another class, offer her any counseling services, provide her with

additional academic assistance or accommodations, or offer A.T. any other means of support or

additional security to prevent future incidents of sexual abuse at school.” Id. ¶ 56. And, plaintiff

claims, even after the abuse was discovered, “A.T. remained in Housel’s class” with her abusers,

without any attempt by defendants “to separate” A.T. from “the other female classmates who

abused her.” Id. ¶ 59.

Plaintiff attempted to register A.T. for another Washington County public elementary

school, because of her concerns about A.T.’s safety at the School. Id. ¶ 60. On December 18, 2019,

plaintiff received a letter from the school to which she had applied for a transfer, denying

admission because “‘an investigation was still underway.’” Id. ¶ 60. The letter directed plaintiff to

contact Peake for more information. Id. But, plaintiff alleges that “when [she] called Peake, she

never received a response.” Id.

Robinson asserts that she wrote to the BOE to inquire as to the status of the investigation

and to inform the Board that she could not send A.T. to School until measures were taken to assure

A.T.’s safety. Id. ¶ 62. In a letter of January 10, 2020, the Board claimed that it was unable to

provide plaintiff “with any further information” about the matter, but that “it was taking the matter

very seriously.” Id.

Plaintiff claims that by February 2020, she still had not received any information as to

safety measures that defendants “planned to take” for A.T. or “the status of the investigation.” Id.

¶ 63. Therefore, she asserts that she “had no choice but to move herself, A.T., and the remainder

of their family to Frederick County so that A.T. could attend” a new public school. Id.

Ms. Robinson contends that A.T. was denied the ability to attend public school in

Washington County from December 19, 2019 through March 2020. Id.11 And, plaintiff asserts

that A.T. has suffered financial loss in order “to move A.T. to another county to receive sufficient

public education . . . .” Id. ¶ 69.

Plaintiff also complains that the School’s personnel failed to “conduct routine reviews of

the content” of the School’s iPads. Id. ¶ 52. Nor did the Board develop and implement policies

and procedures pertaining to the monitoring of student use of the devices. Id. ¶ 53.

According to plaintiff, A.T. “has suffered and will continue to suffer serious and severe

physical and emotional damages of a permanent and lasting nature.” Id. ¶ 68; see also id. ¶ 58.

Before the abuse, for example, A.T. excelled in school. Id. ¶ 66. However, according to plaintiff,

11 The Court takes judicial notice of the fact that as of March 2020, the public schools in

Maryland began to shut down because of the global COVID-19 pandemic. Fed. R. Evid. 201.

the abuse has had a “negative impact” on A.T.’s participation in school programs and her

“academic performance.” Id. ¶ 64. Further, she “suffered psychological and emotional trauma that

interfered with her daily functioning,” namely, “increased feelings of anxiety and anger,

nightmares, flashbacks, intrusive thoughts about the abuse and struggle[s] with eating, sleeping,

and concentrating.” ¶ 64. “A.T. also began to exhibit sexualized behavior by chatting on the

internet with adults in a sexualized manner and taking sexually suggestive photographs of herself

at home.” Id. ¶ 65. Moreover, she “struggles with headaches and stomach aches as physical

manifestations of the anxiety and depression she still experiences.” Id. ¶ 66. And, she “has

“developed a form of body dysmorphia where the sight of her own body embarrasses her and

makes her feel a sense of shame.” Id.12

III. Standard of Review

A defendant may test the legal sufficiency of a plaintiff’s complaint by way of a motion to

dismiss under Rule 12(b)(6). Nadendla v. WakeMed, 24 F.4th 299, 304–05 (4th Cir. 2022); Fessler

v. Int’l Bus. Machs. Corp., 959 F.3d 146, 152 (4th Cir. 2020); Paradise Wire & Cable Defined

Benefit Pension Plan v. Weil, 918 F.3d 312, 317 (4th Cir. 2019); In re Birmingham, 846 F.3d 88,

92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165–66 (4th Cir. 2016);

McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff’d sub nom., McBurney v. Young,

569 U.S. 221 (2013). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if

the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6).

12 Plaintiff alleges that she provided notice of her claims pursuant to the Local Government

Tort Claims Act, Md. Code (2020 Repl. Vol.), § 5-302 et seq. of the Courts and Judicial

Proceedings Article, as well as the Maryland Tort Claims Act, Md. Code (2021 Repl. Vol.), § 12-

101 et seq. of the State Government Article. See ECF 1, ¶ 9.

Whether a complaint states a claim for relief is assessed by reference to the pleading

requirements of Fed. R. Civ. P. 8(a)(2). See Migdal v. Rowe Price-Fleming Int’l Inc., 248 F.3d

321, 325–26 (4th Cir. 2001); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002).

That rule provides that a complaint must contain a “short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of the rule is to provide

the defendant with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).

To survive a motion under Fed. R. Civ. P. 12(b)(6), a complaint must contain facts

sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see

Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (citation omitted) (“Our decision in Twombly

expounded the pleading standard for ‘all civil actions’ . . . .”); see also Fauconier v. Clarke, 966

F.3d 265, 276 (4th Cir. 2020); Paradise Wire & Cable Defined Benefit Pension Plan, 918 F.3d at

317–18; Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). “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.” Iqbal, 556 U.S. at 678. “But where the well-

pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the

complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’” Id. at

679 (quoting Fed. R. Civ. P. 8(a)(2)).

To be sure, a plaintiff need not include “detailed factual allegations” to satisfy Rule 8(a)(2).

Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not countenance dismissal of a

complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v.

City of Shelby, Miss., 574 U.S. 10, 11 (2014) (per curiam). But, mere “‘naked assertions’ of

wrongdoing” are generally insufficient to state a claim for relief. Francis v. Giacomelli, 588 F.3d

186, 193 (4th Cir. 2009) (citation omitted).

In other words, the rule demands more than bald accusations or mere speculation.

Twombly, 550 U.S. at 555; see Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir.

2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation

of the elements of a cause of action,” it is insufficient. Twombly, 550 U.S. at 555. “[A]n

unadorned, the-defendant-unlawfully-harmed-me accusation” does not state a plausible claim of

relief. Iqbal, 556 U.S. at 678. Instead, to satisfy the minimal requirements of Rule 8(a)(2), the

complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of

action, “even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote

and unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks omitted).

In reviewing a Rule 12(b)(6) motion, “a court ‘must accept as true all of the factual

allegations contained in the complaint,’ and must ‘draw all reasonable inferences [from those facts]

in favor of the plaintiff.’” Retfalvi v. United States, 930 F.3d 600, 605 (4th Cir. 2019) (alteration

in Retfalvi) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th

Cir. 2011)); see Semenova v. Md. Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck v.

Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015). However, “a court is not required to

accept legal conclusions drawn from the facts.” Retfalvi, 930 F.3d at 605 (citing Papasan v. Allain,

478 U.S. 265, 286 (1986)); see Glassman v. Arlington Cnty., 628 F.3d 140, 146 (4th Cir. 2010).

“A court decides whether [the pleading] standard is met by separating the legal conclusions from

the factual allegations, assuming the truth of only the factual allegations, and then determining

whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to the

legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011),

cert. denied, 566 U.S. 937 (2012). But, “[m]ere recitals of a cause of action, supported only by

conclusory statements, are insufficient to survive” a Rule 12(b)(6) motion. Morrow v. Navy

Federal Credit Union, 2022 WL 2526676, at *2 (4th Cir. July 7, 2022).

When ruling on a Rule 12(b)(6) motion, courts ordinarily do not “‘resolve contests

surrounding the facts, the merits of a claim, or the applicability of defenses.’” King v. Rubenstein,

825 F.3d 206, 214 (4th Cir. 2016) (citation omitted); see Bing v. Brio Sys., LLC, 959 F.3d 605,

616 (4th Cir. 2020). But, “in the relatively rare circumstances where facts sufficient to rule on an

affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss

filed under Rule 12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc);

accord Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009).

Because Rule 12(b)(6) “is intended [only] to test the legal adequacy of the complaint,” Richmond,

Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his principle

only applies . . . if all facts necessary to the affirmative defense ‘clearly appear[ ] on the face of

the complaint.’ ” Goodman, 494 F.3d at 464 (emphasis in Goodman) (quoting Forst, 4 F.3d at

250).

“Generally, when a defendant moves to dismiss a complaint under Rule 12(b)(6), courts

are limited to considering the sufficiency of allegations set forth in the complaint and the

‘documents attached or incorporated into the complaint.’” Zak v. Chelsea Therapeutics Int’l, Ltd.,

780 F.3d 597, 606 (4th Cir. 2015) (quoting E.I. du Pont de Nemours & Co., 637 F.3d at 448).

Ordinarily, the court “may not consider any documents that are outside of the complaint, or not

expressly incorporated therein[.]” Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th

Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 576 U.S. 155 (2015); see

Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007).

However, “a court may properly take judicial notice of ‘matters of public record’ and other

information that, under Federal Rule of Evidence 201, constitute ‘adjudicative facts.’” Goldfarb v.

Mayor and City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015) (citation omitted); see

also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Katyle v. Penn Nat’l

Gaming, Inc., 637 F.3d 462, 466 (4th Cir. 2011), cert. denied, 565 U.S. 825 (2011); Philips v. Pitt

Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Under Fed. R. Evid. 201, a court may take

judicial notice of adjudicative facts only if they are “not subject to reasonable dispute,” because

they are “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of

accurate and ready determination by resort to sources whose accuracy cannot reasonably be

questioned.”

IV. Discussion

A. Section § 1983

Pursuant to 42 U.S.C. § 1983, plaintiff alleges that the Peake and Michael deprived A.T.

of her “clearly established constitutionally protected educational rights, equal protection rights,

and right to bodily integrity under the Fourteenth Amendment to the United States Constitution.”

ECF 21, ¶ 95; see id. ¶¶ 3–6, 113.

Section 1983 allows “a party who has been deprived of a federal right under the color of

state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687,

707 (1999). It provides that a plaintiff may file suit against any person who, acting under color of

state law, “subjects, or causes to be subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured

by the Constitution and laws” of the United States. 42 U.S.C. § 1983; see, e.g., Nieves v. Bartlett,

587 U.S. ___, 139 S. Ct. 1715, 1721 (2019); Filarsky v. Delia, 566 U.S. 377 (2012); see also

Owens v. Balt. City State’s Attorney’s Office, 767 F.3d 379 (4th Cir. 2014), cert. denied sub nom.

Balt. City Police Dep’t v. Owens, 575 U.S. 983 (2015). § 1983 “‘is not itself a source of substantive

rights,’ but provides ‘a method for vindicating federal rights elsewhere conferred.’” Albright v.

Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see

Safar v. Tingle, 859 F.3d 241, 245 (4th Cir. 2017).

To state a claim under § 1983, a plaintiff must allege (1) that a right secured by the

Constitution or laws of the United States was violated, and (2) that the alleged violation was

committed by a “person acting under the color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988);

see Davison v. Randall, 912 F.3d 666, 679 (4th Cir. 2019); Crosby v. City of Gastonia, 635 F.3d

634, 639 (4th Cir. 2011), cert. denied, 565 U.S. 823 (2011); Wahi v. Charleston Area Med. Ctr.,

Inc., 562 F.3d 599, 615 (4th Cir. 2009); Jenkins v. Medford, 119 F.3d 1156, 1159–60 (4th Cir.

1997). “The first step in any such claim is to pinpoint the specific right that has been infringed.”

Safar, 859 F.3d at 245.

“The statutory color-of-law prerequisite is synonymous with the more familiar state-action

requirement—and the analysis for each is identical.” Philips, 572 F.3d at 180 (citing Lugar v.

Edmondson Oil Co., 457 U.S. 922, 929 (1982)); see Davison, 912 F.3d at 679. A person acts under

color of state law “only when exercising power ‘possessed by virtue of state law and made possible

only because the wrongdoer is clothed with the authority of state law.’” Polk Cnty. v. Dodson,

454 U.S. 312, 317–18 (1981) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)); see

also Philips, 572 F.3d at 181 (citations and internal quotation marks omitted) (“[P]rivate activity

will generally not be deemed state action unless the state has so dominated such activity as to

convert it to state action: Mere approval of or acquiescence in the initiative of a private party is

insufficient.”).

The Amended Complaint alleges that Peake and Michael were, at all relevant times, acting

under color of state law, ECF 21, ¶¶ 89, 100, with a duty, inter alia, to refrain from acting in

violation of A.T.’s constitutionally guaranteed rights, id. ¶¶ 90, 101. However, plaintiff does not

allege that Peake or Michael are liable for failing to prevent the sexual abuse of A.T. Rather, it is

their conduct after learning of the abuse that is in issue.

As discussed in the prior Memorandum Opinion, ECF 18 at 25–27, § 1983 suits against a

state official acting in an official capacity are generally barred, because the official is not regarded

as a “person” under 42 U.S.C. § 1983. In contrast, a personal capacity suit, which seeks to impose

individual liability on a government official for an action taken under color of state law, is allowed.

Murphy v. Virginia, 2022 WL 17484286, at *2 (4th Cir. Dec. 7, 2022) (per curiam). But, individual

liability must be based on personal conduct. See Wright v. Collins, 766 F.2d 841, 850 (4th Cir.

1985).

Notably, there is no liability under § 1983 based on a theory of respondeat superior. King

v. Riley, 76 F.4th 259, 269 (4th Cir. 2023). As the Supreme Court explained in Iqbal, 556 U.S. at

677, in a § 1983 suit, “each Government official . . . is only liable for his or her own misconduct.”

As a result, “a plaintiff must plead that each Government-official defendant, through the official’s

own individual action, has violated the Constitution.” Id. at 676; see also Younger v. Crowder, 79

F.4th 373, 381 n.12 (4th Cir. 2023). Therefore, a supervisor’s “mere knowledge” that his

subordinates are engaged in unconstitutional conduct is not sufficient to establish a claim. Iqbal,

556 U.S. at 677; see King, 76 F.4th at 269; Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001).

Because “liability [under § 1983] is personal, a complaint must contain specific allegations

of each individual’s conduct . . . .” King, 76 F.4th at 269. Boilerplate assertions are not sufficient.

Timpson ex rel. Timpson v. Anderson Cnty. Disabilities and Special Needs Bd., 31 F.4th 238, 258

(4th Cir. 2022); see also Moss v. Harwood, 19 F.4th 614, 624–25 (4th Cir. 2021) (in the context

of summary judgment, requiring evidence as to each defendant).

Accordingly, the question is whether plaintiff has alleged facts that, if proven, would render

Peake or Michael individually liable for “‘the deprivation of a federal right . . . .’” Murphy, 2022

WL 17484286, at *2 (citation omitted).

B. Count II (Defendant Peake)

In Count II, plaintiff asserts that Peake violated A.T.’s rights under the Fourteenth

Amendment to the Constitution. ECF 21, ¶¶ 88–98. According to plaintiff, Peake, as the principal

of the School, “was tasked with adopting, implementing, enforcing, and promulgating policies”

and “protocols” of the Board. Id. ¶ 89. Plaintiff alleges that Peake violated A.T.’s clearly

established constitutional right of “equal access to public education” by “refusing to communicate

with A.T.’s mother to discuss [A.T.’s] physical safety at school”; “declining to take measures to

prevent future sexual abuse of A.T.”; “failing to ensure A.T. would be able to attend another

school” in the same district if she could not safely attend the School; and “failing to implement

any responsive means after the abuse occurred to ensure that A.T. received equal access to public

education.” Id. ⁋ 93. Plaintiff also claims that Peake’s actions after becoming aware of the

“student-on-student sexual abuse” of A.T., id. ¶ 91, “demonstrated a disregard for, and deliberate

indifference to,” A.T.’s right to “bodily integrity under the Fourteenth Amendment . . . .” Id. ¶ 95.

I first consider whether plaintiff has stated a claim against Peake under the Equal Protection

Clause of the Fourteenth Amendment. I then consider whether plaintiff has stated a claim against

Peake under the Due Process Clause of the Fourteenth Amendment.

1. Equal Protection

The Equal Protection Clause of the Fourteenth Amendment provides: “No State shall . . .

deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.

XIV, § 1. The Clause is concerned with disparate treatment “through the enactment,

administration, or enforcement” of laws and regulations. Sylvia Dev. Corp. v. Calvert Cnty., 48

F.3d 810, 818 (4th Cir. 1995). In essence, it is “a direction that all persons similarly situated should

be treated alike” by the government. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440

(1985).

Of relevance here, the Equal Protection Clause has been interpreted to protect a student’s

“‘right to be free from sexual harassment in an educational setting.’” Feminist Majority

Foundation v. Hurley, 911 F.3d 674, 702 (4th Cir. 2018) (quoting Jennings v. Univ. of N.C., 482

F.3d 686, 701 (4th Cir. 2007)). Indeed, the “[Equal Protection] Clause not only guards against

sexual harassment perpetrated by a school administrator against students, [but] also protects

students from a school administrator’s deliberate indifference that allows such harassment to occur

and persist.” Hurley, 911 F.3d at 702. In addition, the Fourth Circuit has recognized that “a victim

of student-on-student sexual harassment”—as distinguished from teacher-on-student sexual

harassment—“can pursue an equal protection claim predicated on a school administrator’s

deliberate indifference to such harassment.” Id. (emphasis added).

“To state an equal protection claim for deliberate indifference to known student-on-student

sexual harassment, a plaintiff must first allege that she ‘was subjected to discriminatory peer

harassment.’” Id. (quoting Stiles ex rel. D.S. v. Grainger Cnty., Tenn., 819 F.3d 834, 852 (6th Cir.

2016)). “Second[], the plaintiff must allege that the school administrator ‘responded to the

discriminatory peer harassment with deliberate indifference, i.e., in a manner clearly unreasonable

in light of known circumstances.’” Hurley, 911 F.3d at 702 (quoting Stiles ex rel. D.S., 819 F.3d

at 852)). “In other words, the plaintiff must allege that the school administrator knew about

harassment of the plaintiff and acquiesced in that conduct by refusing to reasonably respond to it.”

Hurley, 911 F.3d at 702–03 (citation and internal quotation marks omitted). “Third, the plaintiff

must allege that the school administrator’s deliberate indifference was motivated by a

discriminatory intent.” Id. at 703.

In general, discriminatory intent “implies that the decisionmaker . . . selected or reaffirmed

a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects

upon an identifiable group.” Sylvia Dev. Corp., 48 F.3d at 819 n. 2 (quoting Pers. Adm’r of Mass.

v. Feeney, 442 U.S. 256, 279 (1979)). Therefore, “[t]o succeed on an equal protection claim, a

plaintiff must . . . demonstrate that he has been treated differently from others with whom he is

similarly situated and that the unequal treatment was the result of intentional or purposeful

discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001); see also Equity in

Athletics, Inc. v. Dep’t of Educ., 639 F.3d 91, 108 (4th Cir. 2011). “Once this showing is made,

the court proceeds to determine whether the disparity in treatment can be justified under the

requisite level of scrutiny.” Morrison, 239 F.3d at 654. Courts apply different levels of scrutiny

depending on the type of classification. See id. at 654–55.

In evaluating a plaintiff’s deliberate indifference claim under the Equal Protection Clause,

a court may draw on the “‘substantial[lly] similar’” deliberate indifference standard applied in

Title IX cases. Hurley, 911 F.3d at 703 (quoting Williams ex rel. Hart v. Paint Valley Local Sch.

Dist., 400 F.3d 360, 369 (6th Cir. 2005)); see also Hill v. Cundiff, 797 F.3d 948, 979 (11th Cir.

2015). Deliberate indifference under Title IX “is a high standard that requires more than a showing

of mere negligence.” Doe v. Fairfax Cnty. School Bd., 1 F.4th 257, 271 (4th Cir. 2021). But, “a

‘half-hearted investigation or remedial action will [not] suffice to shield a school from liability.’”

Willey v. Bd. of Educ. of St. Mary’s Cnty., 557 F. Supp. 3d 645, 662 (D. Md. 2021) (quoting S.B.

ex rel. A.L. v. Bd. of Educ. of Harford Cnty., 819 F.3d 69, 77 (4th Cir. 2016)) (alteration in

original).

“Further, a school can be liable not only where its deliberate indifference effectively causes

the harassment, but also where a school’s deliberate indifference made a plaintiff more vulnerable

to future harassment.” Willey, 557 F. Supp. 3d at 662. Indeed, even “a single, pre-notice incident

of severe sexual harassment” can provide a basis for liability, if the school’s “response to [that]

single incident . . . or lack thereof, was clearly unreasonable and thereby made the plaintiff more

vulnerable to future harassment or further contributed to the deprivation of the plaintiff’s access

to educational opportunities.” Doe, 1 F.4th at 274.

In Willey, 557 F. Supp. 3d at 662, Judge Grimm concluded that a plaintiff had sufficiently

pleaded deliberate indifference by alleging that, after the defendant school received notice of the

alleged harassment, it “did nothing at all in response: it did not investigate; it did not counsel; it

did not confront; it did not intervene; it did not take the report seriously; it did not discipline; it did

not contact [the perpetrator’s] parents; it did not take meaningful action; it did not take any

remedial action; it did not warn; it did not formulate a plan; it did not train; it did not take

precautions; it did not implement protective measures; it did not follow its own policies and

procedures; [and] it did not take a single step to ensure [the victim’s] safety and wellbeing.”

The case of Hurley, 911 F.3d 674, is also instructive. There, a feminist organization and

some of its members sued a public university and its current and former presidents, alleging sex

discrimination and retaliation, in violation of Title IX and the Equal Protection Clause. Id. at 679.

The plaintiffs were the victims of prolonged and vitriolic cyber-sexual bullying and harassment.

See id. at 680–84. They alleged, among other things, that Hurley, the school president, “sought to

downplay the harassment and threats, and . . . made no effort to stop them.” Id. at 703. Moreover,

plaintiffs alleged that Hurley “ratified the ‘right’ of angry students to target female classmates,”

without “disciplinary consequences.” Id.

The district court granted a motion to dismiss the suit. Id. at 685. On appeal, the Fourth

Circuit concluded that plaintiffs stated an equal protection claim against Hurley, the university

president, id. at 703, but determined that he was entitled to qualified immunity. Id. at 706. The

Court also affirmed the dismissal in part of the Title IX retaliation claim, but vacated the dismissal

of the Title IX sex discrimination claim and the remainder of the Title IX retaliation claim. Id.

With regard to the Title IX sex discrimination claim, the Court noted that the university

“was not entirely unresponsive to allegations of harassment . . . .” Id. at 689. Nevertheless, the

Court stated that the university “did not engage in efforts that were ‘reasonably calculated to end

[the] harassment.’” Id. (citation omitted). On this basis, the Court concluded that the plaintiffs

adequately alleged deliberate indifference. Id. at 691.

The Court also concluded that the plaintiffs adequately alleged an equal protection claim

against Hurley, “largely for the reasons set forth in [its] discussion of the Title IX sex

discrimination claim.” Id. at 703. In particular, the Court explained that “Hurley responded to

[the] harassment [of plaintiffs by other students] with deliberate indifference, in that he had the

authority to address and curtail the harassment but failed to do so over a period of months.” Id.

In addition, the Court concluded that plaintiffs’ allegations that Hurley “ratified the ‘right’ of angry

students to target female classmates with hateful, sexist, threatening harassment, free from any

disciplinary consequences”, “sought to downplay the harassment and threats, and . . . made no

effort to stop them,” were “sufficient to state the intent element of the equal protection claim.” Id.

Nonetheless, the Court granted Hurley qualified immunity on the ground that, at the time of

Hurley’s alleged wrongdoing, “controlling authority did not clearly establish the right to be free

from a university administrator’s deliberate indifference to student-on-student sexual harassment.”

Id. at 704.

The Supreme Court has cautioned that its “conclusion . . . that [schools] may be liable for

their deliberate indifference to known acts of peer sexual harassment . . . does not mean that

[schools] can avoid liability only by purging their schools of actionable peer harassment or that

administrators must engage in particular disciplinary action.” Davis v. Monroe Cnty Bd. of Educ.,

526 U.S. 629, 648 (1998). Indeed, the requirement that a school’s response be “clearly

unreasonable in light of known circumstances” reflects the Court’s judgment that “courts should

refrain from second-guessing the disciplinary decisions made by school administrators.” Id.; see

also Doe v. Bd. of Educ. of Prince George’s Cnty., 982 F. Supp. 2d 641, 657 (D. Md. 2013)

(“Reading Title IX to require federal courts to second-guess what is, at most, a debatable

administrative decision would invite an avalanche of Title IX litigation and risk resultant financial

harm to school districts.”).

The Supreme Court’s discussion of the mental state required for “deliberate indifference”

in cases arising under the Eighth Amendment provides guidance, even though the deliberate

indifference claim asserted here arises under the Equal Protection Clause. In Farmer v. Brennan,

511 U.S. 825 (1994), the Court explained that “deliberate indifference l[ies] somewhere between

the poles of negligence at one end and purpose or knowledge at the other.” Id. at 836. That is,

according to the Court, “acting or failing to act with deliberate indifference to a substantial risk of

serious harm to a prisoner is the equivalent of recklessly disregarding that risk.” Id. (emphasis

added). In particular, the Court determined that a prison official may be liable for deliberate

indifference to a prisoner’s needs only if there exists “a substantial risk of serious harm,” id. at

834, and the official is “both . . . aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he . . . also draw[s] the inference.” Id. at 837.

Thus, the deliberate indifference standard has “both an objective and a subjective

component.” Moss, 19 F.4th at 624. The objective component requires a plaintiff to allege facts

that, if proved, would establish that he was “exposed to an objectively ‘substantial risk of serious

harm.’” Younger, 79 F.4th at 382 (citation omitted). The subjective component requires a plaintiff

to allege facts that, if proved, would establish that “the defendants ‘subjectively recognized’ that

there was such a risk,” but ignored it. Moss, 19 F.4th at 624 (quoting Anderson v. Kingsley, 877

F.3d 539, 545 (4th Cir. 2017)); see Younger, 79 F.4th at 382. In other words, the mental state of

“deliberate indifference” is equivalent to the mental state of recklessness as it is defined in Model

Penal Code § 2.02(2)(c): “a person must ‘consciously disregar[d]’ a substantial risk of serious

harm.” Farmer, 511 U.S. at 839 (quoting Model Penal Code § 2.02(2)(c) (alteration in Farmer)).

With these principles in mind, I turn to consider whether plaintiff has adequately pleaded

each of the three elements necessary to state a claim against Peake for deliberate indifference to

student-on-student sexual harassment. See Hurley, 911 F.3d at 702–03.

As noted, under Hurley “a plaintiff [asserting deliberate indifference to student-on-student

sexual harassment] must first allege that she ‘was subjected to discriminatory peer harassment.’”

Id. at 702 (quoting Stiles ex rel. D.S., 819 F.3d at 852). Here, plaintiff alleges that A.T. was

subjected to repeated sexual abuse by other students during the fall of 2019. See ECF 21, ¶¶ 47–

50. In particular, plaintiff alleges that videos recorded on a classroom iPad “showed the other

children kissing A.T. on the mouth and licking her vaginal and genital area while the incidents

were being filmed.” Id. ¶ 47. This conduct is perhaps more accurately characterized as “abuse”

than “harassment.” Moreover, it is not immediately evident that sexual abuse of this kind is

necessarily “discriminatory.” Cf. Arbaugh v. Bd. of Educ., Cnty. of Pendleton, 329 F. Supp. 2d

762, 772 (N.D. W. Va. 2004) (finding that plaintiff alleging sexual abuse failed to state a claim

under the West Virginia Human Rights Act because “no evidence shows that [plaintiff] was

sexually abused . . . because of his sex”) (emphasis in original). Nonetheless, I need not address

the question, because defendants appear to concede that plaintiff has adequately alleged

discriminatory peer harassment under Hurley. ECF 24 at 11 (“Plaintiff fails to assert allegations

that meet the proper pleading standards to support element (2) and (3).”).

With respect to the second element, deliberate indifference, plaintiff asserts that Peake was

designated as plaintiff’s “point of contact” for any inquiries regarding the school’s response to the

abuse of A.T. ECF 29 at 5. And, according to plaintiff, she “attempted to contact Peake to obtain

more information about what had occurred and what steps [the School] was taking to protect A.T.”

ECF 21, ¶ 54. But, “Peake never responded to Plaintiff’s communications or requests for

information pertaining to how A.T. would be kept safe at school in the future.” Id. Plaintiff also

alleges that, because of defendants’ failure to respond to her concerns, she attempted to register

A.T. for another school in the district. Id. ¶ 60. Thereafter, she received a letter from that school,

indicating that she should contact Peake. Id. Yet, “when Plaintiff called Peake, she never received

a response.” Id. Moreover, plaintiff alleges that Peake declined “to take measures to prevent future

sexual abuse of A.T.,” despite knowing that A.T. was still at risk. Id. ¶ 93.

For their part, defendants argue that Peake’s alleged failure to communicate “in the face of

an ongoing DSS investigation, was at best an error of judgment and not a constitutional

deprivation.” ECF 24 at 11. Moreover, defendants assert that Peake did not have authority “to

alter A.T.’s attendance or otherwise allow her to attend another school.” Id.; see also id. at 10 n.8

(citing Md. Code (2022 Repl. Vol.), §§ 4-101, 4-109 of the Education Article (“Educ.”)

(LexisNexis 2023)). Indeed, according to defendants, Peake responded to the situation

appropriately when she “made the mandatory police/DSS reporting, and turned over all available

evidence so an investigation could be performed by the police and DSS.” ECF 24 at 11.

In my view, plaintiff has sufficiently alleged that Peake acted with deliberate indifference

to A.T.’s abuse. In particular, plaintiff alleges that Peake learned of the abuse in December 2019

but (1) thereafter refused to communicate with A.T.’s mother about A.T.’s safety at School; (2)

“declin[ed] to take measures to prevent future sexual abuse of A.T. despite knowing that it was

likely to continue occurring”; (3) “fail[ed] to ensure that A.T. would be allowed to attend another

school within the same school district if safely attending [the School] was not possible”; and (4)

“fail[ed] to implement any respons[e] after the abuse occurred.” ECF 21, ¶¶ 91, 93. If these

allegations are proven, a factfinder could conclude that Peake’s response, or lack thereof, was

clearly unreasonable in light of the circumstances known to her. See Willey, 557 F. Supp. 3d at

662 (finding allegation that school failed to “take a single step to ensure [a victim’s] safety and

wellbeing” sufficient to plead deliberate indifference).

In addition, these allegations, if established, would satisfy both the objective and subjective

components of the deliberate indifference standard as defined in Farmer and its progeny.

Specifically, plaintiff’s allegations that A.T. was subjected to repeated sexual abuse in the

classroom are sufficient to plead the existence of a substantial risk of serious harm. And, plaintiff’s

allegation that Peake was aware of the abuse in December 2019 suffices as an allegation that Peake

“subjectively recognized” the substantial risk posed to A.T. See Moss, 19 F.4th at 624.

To be sure, defendants describe Peake’s response after learning of A.T.’s abuse in a more

favorable light. ECF 24 at 11. Nonetheless, in ruling on a motion to dismiss, I must accept

plaintiff’s allegations as true.13 Moreover, to the extent that defendants ask the Court to rule as a

matter of law that Peake had no authority to transfer A.T. to another school, they have provided

no authority to support such a ruling. Indeed, the sections of the Education Article cited by

defendants say nothing about Peake’s authority to act. Educ. § 4-101(a) provides that “educational

matters that affect the counties shall be under the control of a county board of education in each

county,” and Educ. § 4-109(c) provides that “the county board shall determine the geographical

attendance area for each school . . . .” The Court cannot infer from such general provisions that

Peake was unable to arrange for A.T. to attend a different school.

In sum, I am satisfied that plaintiff’s allegations of inaction by Peake suffice to plead the

second element of an equal protection claim under Hurley.

With respect to the third element of a deliberate indifference claim, i.e., discriminatory

intent, plaintiff argues that she “is informed and believes that Peake’s deliberate indifference was

motivated by discriminatory intent spurred by A.T.’s gender and status as a female student who

had suffered sexual abuse at the hands of other female students.” ECF 21, ¶ 94. She relies primarily

on Peake’s repeated inaction as support for her assertion that Peake acted with discriminatory

intent. See ECF 29 at 13.

According to plaintiff, after the School discovered the videos, it scheduled a meeting on

December 4, 2019, at which “Peake informed Plaintiff that A.T. ‘made a bad decision and decided

to take the school iPad into the restroom and take nude photos of herself.’” ECF 21, ¶ 42. The fact

that A.T. had been victimized was not yet known. See id. (“A.T. later indicated to Plaintiff that

Student A had instructed her to take the photographs.”). After the school “found A.T.’s

13 Of course, defendants will have the opportunity to substantiate their competing view of

the relevant facts when the record is further developed.

photographs in the deleted folder on the classroom iPad, all 200 of the school iPads were

examined,” and the abuse was discovered from review of the devices. Id. ¶ 46. As noted, plaintiff

maintains that Peake then ignored her repeated requests for assistance. Id. ¶¶ 54, 60.

In response, defendants contend that plaintiff “has failed to assert that she was been [sic]

treated differently from similarly situated students or even any of the students involved in the

various incidents,” or “that . . . Peake was acting with discriminatory intent or purpose.” ECF 24

at 11. In particular, defendants assert that plaintiff has not alleged that Peake “selected . . . a

particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects

upon an identifiable group.” Id. at 12 (quoting Borkowski v. Balt. Cnty., Maryland, 414 F. Supp.

3d 788, 808 (D. Md. 2019)).

Defendants are correct that, as a general matter, a plaintiff asserting an equal protection

violation must allege “that the decisionmaker . . . selected . . . a particular course of action at least

in part ‘because of,’ not merely in spite of,’ its adverse effects upon an identifiable group.’”

Hernandez v. New York, 500 U.S. 352, 360 (1991) (quoting Feeney, 442 U.S. at 279). Nonetheless,

Hurley, 911 F.3d 674, and several cases applying it, suggest that for a claim based on deliberate

indifference, allegations of inaction in the face of sexual harassment or abuse are sufficient to plead

discriminatory intent.

In Hurley, 911 F.3d at 703, the Fourth Circuit concluded that the plaintiffs’ allegations that

the defendant “sought to downplay the harassment and threats, and . . . made no effort to stop

them,” were “sufficient to state the intent element . . . .” Citing Hurley, the court in Danvers as

next friends of Danvers v. Loudoun Cty. Sch. Bd., RDA-21-1028, 2022 WL 4585524 (E.D. Va

Sep. 29, 2022), concluded that the plaintiff’s allegations “that both [defendants] were apathetic

and dismissive when confronted by the [plaintiff’s] complaints” of sexual harassment were

sufficient to plead discriminatory intent. Id. at *14. Similarly, in M.B. v. Chapel Hill-Carrboro

City Schs. Bd. of Educ., LCB-20-796, 2021 WL 4412406, (M.D.N.C. Sep. 27, 2021), the court

concluded that allegations that the defendants “were either openly skeptical of, or inclined to

minimize, Plaintiff's disclosure and did little to stop the alleged harassment [provided] . . . a

sufficient basis from which to infer discriminatory intent.” Id. at *5.

Following Hurley, Danvers, and M.B., I am satisfied that it is appropriate to infer

discriminatory intent from Peake’s alleged inaction in the face of A.T.’s abuse. The Feeney

standard cited by defendants does not preclude such an inference. Indeed, it is well established

that a plaintiff can establish discriminatory intent through an inference based on circumstantial

evidence. See Vill. of Arlington Heights v. Met. Housing Dev. Corp., 429 U.S. 252, 266 (1977)

(“Determining whether invidious discriminatory purpose was a motivating factor demands a

sensitive inquiry into such circumstantial and direct evidence of intent as may be available.”).

Under Hurley, inaction in the face of sexual abuse is circumstantial evidence that may support an

inference of discriminatory intent.

In sum, the allegations concerning Peake’s conduct in response to the sexual abuse of A.T.,

and plaintiff’s repeated efforts to address the matter with her, are sufficient to state an equal

protection claim.

2. Substantive Due Process

Defendants contend that plaintiff has not stated a viable claim for a substantive due process

violation. ECF 24 at 13 n.9. Further, defendants argue that there is “no basis in the law to support

a substantive due process claim against Ms. Peake in her individual capacity for acts involving

third parties for which she had no notice and was not personally involved.” Id. at 14–15.

The Fourteenth Amendment includes a “substantive due process right against state actor

conduct that deprives an individual of bodily integrity.” Doe v. Rosa, 795 F.3d 429, 436–37 (4th

Cir. 2015). As a rule, state actor liability is limited and generally does not attach in instances of

private conduct, such as student-on-student attacks. DeShaney v. Winnebago Cty. Dep’t of Soc.

Servs., 489 U.S. 189, 195 (1989) (the Due Process Clause “cannot fairly be extended to impose an

affirmative obligation on the State to ensure that those interests do not come to harm through other

means”). Nonetheless, the Supreme Court has recognized at least two exceptions to this general

rule: the special relationship doctrine and the state-created danger doctrine. Id. at 195–96, 199–

200.

(a) Special Relationship

The first exception to the general rule of non-liability of a state actor for private conduct is

the special relationship doctrine. It applies when the state and the aggrieved individual have a

special relationship by which the state has an affirmative duty to protect the individual from harm

inflicted by a third party. DeShaney, 489 U.S. at 200–01; see also Waybright v. Frederick Cty.,

MD, 528 F.3d 199, 207 (4th Cir. 2008) (“As DeShaney indicates and our case law specifies, a

‘special relationship’ is all but synonymous with a custodial relationship.”).

In DeShaney, 489 U.S. at 200, the Supreme Court explained that the special relationship

exception applies in custodial situations, “when the State by the affirmative exercise of its power

so restrains an individual’s liberty that it renders him unable to care for himself.” Typically, such

restraint occurs by way of “some sort of confinement . . . such as incarceration, institutionalization,

or the like.” Waybright, 528 F.3d at 207 (4th Cir. 2008) (citing Pinder v. Johnson, 54 F.3d 1169,

1175 (4th Cir. 1995)).

The case of Stevenson ex rel. Stevenson v. Martin Cty. Bd. of Educ., 3 F. App’x 25 (4th

Cir. 2001) (per curiam), although unpublished, provides guidance. In that case, during a two-month

period, a ten-year-old sixth-grade student was beaten and bullied by two classmates on a regular

basis. Id. at 27. In particular, the student was bludgeoned in the head while in art class, and when

the student asked his teacher for help, she allegedly responded by stating “‘[t]here isn’t anything I

can do’” and that the student “‘deserved it anyway.’” Id. at 28. The school principal failed to report

the physical assault to the juvenile authorities, and the student’s father eventually submitted a

juvenile petition. Id. All the while, the beatings continued. Then, the bullies harassed the student

and his father at a music festival, at which point the father chose to enroll the student in a private

school. Id.

The student filed, inter alia, a § 1983 claim against the board of education and several

school officials, alleging that the “defendants violated his liberty interest in bodily integrity.” Id.

at 30. Of relevance here, the Fourth Circuit concluded that a relationship between a school and a

student is not a “special relationship” that gives rise to due process protections requiring the

defendants to protect the student from harm inflicted by a third party. Id. at 31. The Court said,

id.: “Following the lead of our sister circuits, we hold that the Martin County School officials did

not have a ‘special relationship’ with [the student] that triggered the protections of the Due Process

Clause in this case.” The Court reasoned, id.: “When a student attends public school, her liberty

is not restrained to the extent contemplated in DeShaney. Attending school is not the equivalent

of incarceration or institutionalization . . . the state, simply by virtue of its maintenance of a public

school system, does not become constitutionally liable for failing to prevent all student-on-student

violence.”

In her Opposition, plaintiff acknowledges that the Fourth Circuit has found, generally, that

the relationship between a school and a student is not “special” and therefore does not give rise to

due process protections. See ECF 29 at 15 n.4 (citing Stevenson ex rel. Stevenson, 3 F. App’x at

31).

Therefore, Peake did not have a “special relationship” with A.T. that would give rise to

due process protections. See, e.g., O.W. by next friend Bass v. Sch. Bd. of City of Virginia Beach,

___ F. Supp. 3d ___, 2023 WL 1994355, at *14 (E.D. Va. 2023); Doe # 1 v. Montgomery Cnty.

Bd. of Educ., PJM-21-0356, 2021 WL 6072813, at *10 (D. Md. Dec. 23, 2021). Accordingly, to

the extent that plaintiff attempts to hold Peake liable for a due process violation under the special

relationship doctrine, she has failed to state a claim in Count II.14 See McClure v. Charlotte-

Mecklenburg Bd. of Educ., KDB-20-5, 2021 WL 7448762, at *4 (W.D.N.C. Mar. 18, 2021)

(stating that “the state is not constitutionally liable for preventing student-on-student violence just

because it operates the school at which the violence takes place.”); B.M.H. v. Sch. Bd. of City of

Chesapeake, 833 F. Supp. 560, 571 (E.D. Va. 1993) (“Even if public schools have some duty under

state law to protect students, that is not enough to place the affirmative burdens of the Fourteenth

Amendment Due Process Clause upon teachers, principals, and administrators to protect each child

from possible harm by third parties.”).

14 In Doe v. Board of Educ. of Prince George’s Cnty., 888 F. Supp. 2d 659 (D. Md. 2012),

the plaintiffs alleged that the defendant school board was liable under Title IX and state tort law

for failing to protect their son from sexual harassment committed by a classmate. Id. at 661–63.

Citing DeShaney, the defendants argued, among other things, that the school had no duty under

the law of negligence to protect the plaintiffs’ son from abuse by a third party. Id. at 669. The

court disagreed, observing that “the standard for proving a negligence claim under state tort law is

lower than the standard for proving that the state’s failure to protect someone from private violence

violates the Due Process Clause.” Id. at 669 (citing DeShaney, 489 U.S. at 201–02).

(b) State-Created Danger Liability

The second exception to non-liability of a state actor for private conduct is the state-created

danger doctrine. In her Opposition, plaintiff argues that the state-created danger doctrine provides

a basis for the liability of Peake. ECF 29 at 14-17; see also ECF 34 at 4.

Defendants insist that plaintiff’s claim must fail, because Peake’s alleged conduct “did not

lead to further assaults.” ECF 34 at 5 (emphasis in original). Moreover, they claim that Peake’s

conduct did not amount to “affirmative action” that increased A.T.’s danger, as is required for

liability under the state-created danger doctrine. Id.

“[T]o establish § 1983 liability under the state-created danger doctrine, a plaintiff must

show that the state actor created or increased the risk of private danger, and did so directly through

affirmative acts, not merely through inaction or omission.” Rosa, 795 F.3d at 439; see DeShaney,

489 U.S. at 201 (“While the State may have been aware of the dangers that [the child] faced . . . it

played no part in their creation, nor did it do anything to render him any more vulnerable to

them.”); Paige v. Herring, 2022 WL 337131, at *2 (4th Cir. Feb. 4, 2022) (per curiam) (same);

Callahan v. N.C. Dep’t of Pub. Safety, 18 F.4th 142, 146 (4th Cir. 2021) (same); Graves v. Lioi,

930 F.3d 307, 319 (4th Cir. 2019) (recognizing that the state-created danger exception “applies

only when the state affirmatively acts to create or increase the risk that resulted in the victim’s

injury”).

The state-created danger exception is narrow; “the bar for what constitutes an affirmative

act is high.” Turner v. Thomas, 930 F.3d 640, 645 (4th Cir. 2019). And, as the Fourth Circuit said

in Pinder, 54 F.3d at 1175: “It cannot be that the state commits an affirmative act or creates a

danger every time it does anything that makes injury at the hands of a third party more likely.”