Doe v. Cumberland County Board of Education

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

NO. 5:20-CV-523-FL

JANE DOE, by her next friend, Tonisha )

Pullen-Smith, )

)

Plaintiff, )

)

v. )

)

CHRISTIAN QUALLY, individually and as )

ORDER

an agent of Cumberland County Schools; )

CLARENCE SCOFIELD, individually and )

as an agent of Cumberland County Schools; )

and CUMBERLAND COUNTY BOARD )

OF EDUCATION (Cumberland County )

Schools), )

)

Defendants.

This matter is before the court upon motions to dismiss filed by defendants Cumberland

County Board of Education (“School Board”) (DE 14, 29) and Christian Qually (“Qually”) (DE

31). The issues raised have been briefed fully, and in this posture, are ripe for ruling. For the

following reasons, defendant School Board’s motions are granted in part and denied in part, and

defendant Qually’s motion is granted.

STATEMENT OF THE CASE

Plaintiff Jane Doe, a minor, by her next friend Tonisha Pullen-Smith (“Pullen-Smith”),

commenced this action October 5, 2020, by filing motion for leave to proceed in forma pauperis,

with proposed complaint, asserting a claim for violation of Title IX of the Education Amendments

of 1972, 20 U.S.C. 1681, et seq., (“Title IX”) against defendant School Board; a claim for violation

of the Fourteenth Amendment to the United States Constitution, pursuant to 42 U.S.C. § 1983,

against defendant Clarence Scofield (“Scofield”); and state law claims for negligent infliction of

emotional distress against defendants Scofield and Qually.1 Plaintiff seeks compensatory

damages, attorneys’ fees and costs, and jury trial.

On October 26, 2020, defendant School Board filed the instant first motion to dismiss for

lack of subject matter jurisdiction, lack of personal jurisdiction, insufficient process and service of

process, and failure to state a claim upon which relief can be granted. In support, defendant School

Board relies upon a memorandum of law and a copy of an insurance policy issued to defendant

School Board (“the Policy”). On November 6, 2020, United States Magistrate Judge Robert T.

Numbers, II, granted plaintiff’s motion to proceed in forma pauperis, and upon frivolity review

pursuant to 28 U.S.C. § 1915, allowed plaintiff’s claims to proceed. Later that day, the clerk issued

summonses as to all defendants, and plaintiff responded in opposition to defendant School Board’s

first motion to dismiss.

On November 30, 2020, defendant School Board replied in support, relying upon

unpublished orders in the cases Shaver v. Cooleemee Volunteer Fire Dep’t, No. 1:07-CV-175,

2008 WL 942560 (M.D.N.C. April 7, 2008) and J.W. v. Johnston Cnty. Bd. of Educ., No. 5:11-

CV-707-D, 2014 WL 4771613 (E.D.N.C. Sept. 24, 2014), and filed the instant second motion to

dismiss, re-raising all grounds for dismissal asserted in its first motion, except insufficient process

and service of process. That same day, defendant Qually filed the instant motion to dismiss,

seeking dismissal of plaintiff’s complaint for lack of subject matter jurisdiction and personal

jurisdiction.

1 Plaintiff originally filed her complaint on the docket, separate from her motion to proceed in forma pauperis.

Following notice of deficiency issued by the court, plaintiff filed a corrected motion to proceed in forma pauperis,

attaching a proposed complaint thereto October 15, 2020.

On December 23, 2020, defendant Scofield answered plaintiff’s complaint, and one week

later, the court entered its initial order on planning and scheduling. Plaintiff responded in

opposition to defendant Qually’s motion to dismiss and defendant School Board’s second motion

to dismiss January 4, 2021. A few weeks later, defendant Qually replied in support of his motion

to dismiss. The court entered case management order February 10, 2021, with a deadline for

discovery to conclude by September 30, 2021, and dispositive motions by November 1, 2021.

STATEMENT OF FACTS

The facts alleged in plaintiff’s complaint may be summarized as follows. Beginning in

August 2018, while plaintiff was a 12-year-old student at South View Middle School (“SVMS”)

in Cumberland County, North Carolina, she was allegedly sexually molested by a female student,

C.F., who was two years older than plaintiff, in the SVMS bathroom, on the SVMS school bus,

and off of SVMS property. (Compl. (DE 22) ¶¶ 5, 8, 11, 16-18, 20). When plaintiff attempted to

stop the alleged abuse, C.F. allegedly threatened, assaulted, and bullied her, and encouraged other

students to do the same. (Id. ¶¶ 18-19, 22-24). Several teachers allegedly witnessed the bullying,

and plaintiff wrote letters to her teachers reporting the bullying. (Id. ¶¶ 26-27). In response,

plaintiff’s teachers allegedly stated that C.F. and plaintiff were merely “experiencing ups and

downs.” (Id.).

In or around January 2019, C.F. allegedly choked plaintiff in the school hallway in front

of several students. (Id. ¶ 33). Plaintiff reported the alleged incident to a teacher, Ms. Fux, who

called the principal of SVMS, defendant Qually. (Id. ¶¶ 26, 33). After plaintiff informed defendant

Qually about the alleged ongoing sexual abuse and harassment, he called C.F. to his office, and

she denied the allegations. (Id. ¶ 34). Thereafter, defendant Qually allegedly directed plaintiff

and C.F. to return to their classroom, but plaintiff refused, due to her fear of C.F., and instead

remained in the office for the remainder of the day. (Id. ¶ 35).

Defendant Qually contacted the school resource officer, defendant Scofield, and also

notified Pullen-Smith. During his meeting with Pullen-Smith, defendant Qually questioned

whether Pullen-Smith was aware of plaintiff’s “issues with a female student”, and allegedly

advised Pullen-Smith that plaintiff was “involved in this trend of liking girls.” (Id. ¶¶ 36-37).

Defendant Qually allegedly did not propose any solutions to mitigate C.F.’s alleged abuse and

bullying. (Id. at 37). At the end of the school day, defendant Scofield walked plaintiff to the

school bus, and plaintiff was allegedly harassed during the entire bus ride. (Id. ¶ 38). When

plaintiff arrived home, she informed Pullen-Smith about the alleged sexual abuse and harassment.

(Id. ¶ 39).

The next day, Pullen-Smith returned to SVMS to discuss plaintiff’s alleged abuse with

defendant Qually. (Id. ¶ 40). Pullen-Smith indicated that she wanted to file a police report, but

defendant Qually allegedly told her the situation did not “rise to the level of needing to file a police

report”, encouraged Pullen-Smith to talk to C.F.’s mother instead, and also suggested that Pullen-

Smith should talk to her daughter to ensure she was not the aggressor. (Id. ¶¶ 40-41).

Later in January 2019, several students allegedly taunted plaintiff and accused her of lying

about the alleged abuse she experienced. (Id. ¶ 44). Plaintiff reported the taunting to a teacher,

Ms. Nieves, who allegedly told plaintiff that it was her fault. (Id. ¶ 45). The next day, Pullen-

Smith went to SVMS to report Ms. Nieves’s response to defendant Qually, who allegedly

responded that he knew all of his teachers and did not think that Ms. Nieves would say such a

thing. (Id.). Thereafter, Ms. Nieves allegedly began treating plaintiff differently. (Id. ¶ 66).

Specifically, Ms. Nieves would not speak to plaintiff, answer plaintiff’s questions about

schoolwork, or allow plaintiff to use the restroom. (Id.).

As a result of the alleged abuse and harassment, plaintiff’s mental health deteriorated. (Id.

¶¶ 21, 28, 56). Plaintiff stopped interacting with her family, became depressed, began acting out

in class, and eventually in March 2019, plaintiff attempted suicide, after which she was

involuntarily committed for 17 days. (Id. ¶¶ 28, 48, 50, 56-57). When plaintiff returned to school,

rumors circulated regarding her absence, and the bullying and threats resumed, of which Ms.

Nieves, Ms. Fux, and defendant Qually were allegedly aware. (Id. ¶¶ 62-63, 65). Unable to focus

on her schoolwork, plaintiff would hide in the bathroom for up to three class periods a day, and

sometimes, she would spend the entire day in the principal’s office to avoid the alleged harassment.

(Id. ¶ 65). Pullen-Smith went to SVMS to advocate for plaintiff’s protection, but the administrators

and staff were allegedly unresponsive, and instead, five days after plaintiff returned to SVMS from

involuntary commitment, she was suspended for insubordination. (Id. ¶ 68).

In total, plaintiff missed 38 days of school during the 2018-2019 academic year, due to

defendants’ alleged failure to address the bullying, harassment, and abuse plaintiff experienced.

(Id. ¶ 80). In June 2019, plaintiff was placed in the custody of the North Carolina Department of

Social Services under a juvenile petition, and thereafter, she was placed in a Level III residential

treatment facility, where she is expected to remain until June 2021. (Id. ¶¶ 81-82).

Additional facts pertinent to the motion will be discussed below.

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.

Federal Rule of Civil Procedure 12(b)(2) allows for dismissal of a claim for lack of personal

jurisdiction. “When a district court considers a question of personal jurisdiction based on the

contents of a complaint and supporting affidavits, the plaintiff has the burden of making a prima

facie showing in support of its assertion of jurisdiction.” Universal Leather, LLC v. Koro AR,

S.A., 773 F.3d 553, 558 (4th Cir. 2014). At this stage, the court “must construe all relevant pleading

allegations in the light most favorable to plaintiff, assume credibility, and draw the most favorable

inferences for the existence of jurisdiction.” Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989);

see Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir.1993) ( “[T]he district court must draw

all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiff’ s

favor.”). “Absent waiver or consent, a failure to obtain proper service on the defendant deprives

the court of personal jurisdiction over the defendant.” Koehler v. Dodwell, 152 F.3d 304, 306

(4th Cir. 1998).

A motion to dismiss under Federal Rule of Civil Procedure Rule 12(b)(4) challenges the

sufficiency of process, while Rule 12(b)(5) motions challenge the sufficiency of service of process.

See Fed. R. Civ. P. 12(b)(4),(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-Stauffer Bldg. 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.

“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 a right 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 inferences, unreasonable conclusions, or arguments.”

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations

omitted).

B. Analysis

1. Service of Defendant School Board

Defendant School Board seeks to dismiss plaintiff’s complaint for insufficient process and

service of process. “A summons must be served with a copy of the complaint. The plaintiff is

responsible for having the summons and complaint served within the time allowed by Rule 4(m)

and must furnish the necessary copies to the person who makes service.” Fed. R. Civ. P. 4(c)(1).

The time limits set forth in Rule 4(m) require that plaintiff serve all defendants within 90 days

after a complaint is filed. Fed. R. Civ. P. 4(m).

Here, defendant School Board concedes that it was served with summons and complaint

within the requisite time period under Rule 4(m). (See Mem. (DE 28) at 2). Nevertheless, it argues

that plaintiff’s claims against it should be dismissed because plaintiff initially served her complaint

on defendant School Board on October 7, 2020, without any summons, which “legally necessitated

that [defendant School] Board timely respond.” (Mem. (DE 28) at 2). Defendant School Board’s

argument is unpersuasive. Although plaintiff prematurely served her proposed complaint on

defendant School Board October 7, 2020, at that juncture, the magistrate judge had not ruled on

plaintiff’s motion to proceed in forma pauperis. Accordingly, the clerk had not issued summonses,

and plaintiff had no way to serve any summons on defendant School Board. Moreover, the United

States Court of Appeals for the Fourth Circuit has held that the service period under Rule 4(m) is

tolled while the court considers a motion to proceed in forma pauperis. See Robinson v. Clipse,

602 F.3d 605, 608 (4th Cir. 2010). Thus, plaintiff had no obligation to serve defendant School

Board on October 7, 2020, because her motion to proceed in forma pauperis remained pending.

Defendant School Board’s contention that service of plaintiff’s proposed complaint on

October 7, 2020, required a timely response by defendant School Board is unavailing. As early as

October 15, 2020, eleven days before defendant School Board moved to dismiss for insufficient

process and service of process, the docket reflected that the document served on defendant School

Board was a proposed complaint, rather than a legally operative complaint, because the magistrate

judge had not yet performed frivolity review. In effect, the face of the docket should have apprised

defendant School Board that it had no obligation to answer or otherwise respond to plaintiff’s

proposed complaint.

Finally, defendant School Board cites Shaver, 2008 WL 942560, at *2 and Anderson v.

Hoffman, No. 7:15-CV-14-FL, 2016 WL 11430764, at *7 (E.D.N.C. Feb. 16, 2016) for the

proposition that receiving actual notice of an action does not cure defects in service. However,

Shaver and Anderson are instructively distinguishable, because unlike plaintiff here, the plaintiffs

in those cases never properly effected service within the requisite time period.

For all these reasons, defendant School Board’s motion to dismiss is denied in this part.

2. Title IX Claim

Defendant School Board moves to dismiss plaintiff’s Title IX claim. Title IX provides that

“[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits

of, or be subjected to discrimination under any education program or activity receiving Federal

financial assistance.” 20 U.S.C. § 1681(a). To state a Title IX claim on the basis of student-on-

student sexual harassment, a plaintiff must plausibly allege that:

(1) they were a student at an educational institution receiving federal funds; (2) they

suffered sexual harassment that was so severe, pervasive, and objectively offensive

that it deprived them of equal access to the educational opportunities or benefits

provided by their school; (3) the school, through an official who has authority to

address the alleged harassment and to institute corrective measures, had actual

notice or knowledge of the alleged harassment; and (4) the school acted with

deliberate indifference to the alleged harassment.

Doe v. Fairfax Cty Sch. Bd., ___ F. 3d ___, 2021 WL 2446782, *3 (4th Cir. 2021) (citations

omitted).

Whether student-on-student harassment rises to the level of severe or pervasive, “depends

on a constellation of surrounding circumstances, expectations, and relationships, including, but not

limited to, the ages of the harasser and the victim and the number of individuals involved.” Davis

Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 651 (1999)) (citations

omitted). Courts “must bear in mind that schools are unlike the adult workplace and that children

may regularly interact in a manner that would be unacceptable among adults.” Id. (citation

omitted). In consequence, “insults, banter, teasing, shoving, pushing and gender-specific conduct

that is upsetting to the students subjected to it” is not actionable in the school setting. Id. at 651-

52. Rather, to be severe or pervasive, student-on-student harassment must effectively deny the

victim access to the school’s educational resources and benefits. Id. This can occur if the

harassment:

(1) results in the physical exclusion of the victim from an educational program or

activity; (2) so undermines and detracts from the victim’s educational experience

as to effectively deny her equal access to an institution’s resources and

opportunities; or (3) has a concrete, negative effect on the victim’s ability to

participate in an educational program or activity.

Fairfax Cty. Sch. Bd., ___ F.3d at ___, 2021 WL 2446782, at *13 (citing Jennings v. Univ. of N.

Carolina, 482 F.3d 686, 699 (4th Cir. 2007) (alterations and quotations omitted)). For purposes of

this inquiry, the court “must consider all of the surrounding circumstances and use common sense

and an appropriate sensitivity to social context to identify objectively hostile or abusive

conduct.” Id. (citing Jennings, 482 F.3d at 696 (citations and brackets omitted)).

Imputation of liability to an educational institution involves two considerations: (1)

whether the institution had actual knowledge of the student-on-student sexual harassment; and (2)

whether the institution was “deliberately indifferent” to that harassment. Davis, 526 U.S. at 646–

47. For purposes of the first consideration, a school’s receipt of “a report or complaint alleging

sexual harassment is sufficient to establish actual notice under Title IX. This is an objective inquiry

which asks whether an appropriate official in fact received such a report or complaint and whether

a reasonable official would construe it as alleging misconduct prohibited by Title IX.” Fairfax Cty

Sch. Bd., ___ F.3d at ___, 2021 WL 2446782, at *7. Under the second consideration, a school

acts with deliberate indifference “where its response . . . or lack thereof is clearly unreasonable in

light of the known circumstances.” S.B. ex rel. A.L. v. Bd. of Educ. of Harford Cty., 819 F.3d 69,

76-77 (4th Cir. 2016) (citing Davis, 526 U.S. at 648). “While deliberate indifference is a high

standard that requires more than a showing of mere negligence, a half-hearted investigation or

remedial action will [not] suffice to shield a school from liability.” Fairfax Cty. Sch. Bd., ___

F.3d at ___, 2021 WL 2446782, at *10 (citing Baynard v. Malone, 268 F.3d 268, 236 (4th Cir.

2001) and S.B. ex rel. A.L., 819 F.3d at 76).

Here, plaintiff alleges, and defendant School Board does not dispute, that she was a student

at an educational institution receiving federal funds. (Compl. (DE 22) ¶ 86). Moreover, plaintiff

plausibly alleges that she experienced harassment on the basis of sex. (Id. ¶¶ 16, 18-20, 87); cf.

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (holding that discrimination

consisting of same–sex sexual harassment is actionable under Title VII); see also Doe on Behalf

of Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998) (holding that same-sex sexual

harassment is actionable under Title IX as well as under Title VII);

Dunlap v. Monroe Cty. Bd. of Educ., No. CV 1:16-11535, 2017 WL 4684181, at *4 (S.D.W. Va.

Oct. 18, 2017) (“[N]umerous courts have recognized that same-sex harassment is actionable under

Title IX.” (collecting cases)); cf. Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586, 616 (4th Cir.

2020) (concluding that, under Title IX, discrimination against a person for being transgender or

homosexual constitutes discrimination of the basis of sex).

Turning to whether the alleged harassment was severe or pervasive, plaintiff plausibly

alleges that the harassment had a concrete, negative effect on plaintiff’s ability to participate in the

educational opportunities and benefits provided by SVMS. Indeed, plaintiff alleges that, due to

the alleged harassment, her mental health deteriorated, she was unable to focus on schoolwork,

she hid in the bathroom for up to three class periods a day to avoid harassment, she sat with her

head down on her desk in class, she went to a teacher’s classroom for lunch and did not go to the

gym due to fear, she attempted suicide, and she missed a total of 38 days of school during a single

academic year. (Id. ¶¶ 25, 28, 64-66, 80); see Fairfax Cty. Sch. Bd., ___ F.3d at ___, 2021 WL

2446782, at *14 (“[A] reasonable jury could reasonably find that the alleged sexual assault was

severe enough to deprive [plaintiff] of equal access to educational opportunities or benefits . . .

where the plaintiff . . . presented evidence showing that the alleged harassment made her feel

humiliated, anxious, and uncomfortable, caused her to suffer severe emotional distress, and

thereby had a negative impact on her participation . . . in school programs and on her academic

performance.” (quotations omitted)).

Arguing that the alleged harassment was not sufficiently severe or pervasive, defendant

School Board contends that plaintiff’s complaint is devoid of any suggestion that her grades

suffered. While plaintiff’s complaint does not reference her grades specifically, it allows the

reasonable inference that her grades suffered, where it states that she could not focus on school

work, she missed a significant amount of school, and “she would stay in her room and sleep all

day.” (Id. ¶¶ 47, 64, 80). Defendant School Board also argues that plaintiff’s behavioral issues

and actions outside of school, such as her suicide attempt at home, caused her absences from

school, rather than the alleged harassment. Defendant School Board’s argument ignores the fact

that the harassment allegedly precipitated her behavioral issues and psychological symptoms,

which in turn, led to plaintiff’s absences from school. See, e.g., (Compl. (DE 22) ¶ 21) (alleging

that, after C.F. began sexually abusing plaintiff, “Pullen-Smith noticed that [plaintiff’s] behavior

was changing, and plaintiff began to exhibit symptoms of depression”); (Id. ¶ 47) (“[Plaintiff’s

anxiety, fear, and inability to escape bullying in the school setting caused [plaintiff] to engage in

maladaptive behaviors at home.”).

Finally, highlighting that plaintiff began to exhibit symptoms of depression before

defendant Qually received notice of the alleged harassment, defendant School Board contends that

its conduct did not cause plaintiff’s psychological symptoms. This argument is unpersuasive.

While the timing of defendant Qually’s notice is relevant to deliberate indifference, it has no

bearing on whether the alleged harassment was severe or pervasive. See Fairfax Cty. Sch. Bd.,

___ F.3d at ___, 2021 WL 2446782, at *13 (“[T]he main object of inquiry for [the severe or

pervasive] prong is the alleged sexual harassment, rather than the defendant’s response thereto . .

. Indeed, the latter is relevant only to the issue of deliberate indifference. Thus, to the extent that

the School Board claims it did not bar [plaintiff’s] access to educational opportunities, its

argument is misguided.” (citing Jennings, 482 F.3d at 696–99 and Davis, 526 U.S. at 650-51)). In

sum, the court finds that plaintiff sufficiently alleges severe or pervasive harassment.

Turning to the next element, plaintiff plausibly alleges that defendant School Board,

through defendant Qually—an official who has authority to address the alleged harassment and to

institute corrective measures—had actual notice or knowledge of the alleged harassment. First,

several of the alleged acts of harassment occurred in the bathroom at SVMS, on the school bus,

and in the hallways of SVMS, (see Compl. (DE 22) ¶¶ 16, 18, 20, 33), so defendant Qually had

control over the context in which the alleged harassment occurred, as well as the authority to

discipline the alleged harasser. See Davis, 526 U.S. at 646 (“Where . . . the misconduct occurs

during school hours and on school grounds[,] . . . the [educational institution] retains substantial

control over the context in which the harassment occurs.”). Moreover, plaintiff establishes actual

knowledge by alleging that she notified defendant Qually of the alleged harassment in January

2019. (See Compl. (DE 22) ¶¶ 33-34); Fairfax Cty. Sch. Bd., ___ F.3d at ___, 2021 WL 2446782,

at *3 (“[A] school’s receipt of a report that can objectively be taken to allege sexual harassment is

sufficient to establish actual notice or knowledge under Title IX—regardless of whether school

officials subjectively understood the report to allege sexual harassment or whether they believed

the alleged harassment actually occurred.”).

Finally, taking plaintiff’s allegations as true, liability can be imputed to defendant School

Board on the theory of deliberate indifference. Defendant Qually questioned C.F. about the alleged

abuse, and when C.F. denied the allegations, defendant Qually allegedly instructed plaintiff and

C.F. to return to the classroom, which they shared together, discouraged Pullen-Smith from filing

a police report, and characterized the alleged harassment as “issues with a female student”,

advising that plaintiff “was involved in this trend of liking girls.” (Id. ¶¶ 34-37). As such, plaintiff

plausibly alleges a clearly unreasonable response in light of the known circumstances, establishing

deliberate indifference. See Fairfax Cty Sch. Bd., ___ F.3d at ___, 2021 WL 2446782, *11 (“[A]

reasonable jury could draw any number of conclusions that would support a finding of deliberate

indifference . . . [including] . . . that the school officials improperly trivialized and dismissed the

reports of sexual assault; that they simply assumed, without adequate investigation, that the bus

incident was a consensual sexual encounter between teenagers; . . . that they tried to sweep the

reports under the rug. . . ; that they engaged in a “blame-the-victim” mentality in investigating and

dealing with the bus incident.”); Feminist Majority Found. v. Hurley, 911 F.3d 674, 690 (4th Cir.

2018) (“[T]he mere act of listening to students is not a remedy in and of itself.”); S.B. ex rel. A.L.,

819 F.3d at 77 (observing that “half-hearted investigation or remedial action” is insufficient to

shield school from Title IX liability).

Defendant School Board argues its response was reasonable because defendant Qually

notified Pullen-Smith and contacted law enforcement. However, the fact that defendant “took

limited steps in response to the harassing and threatening [plaintiff], those actions do not preclude

Title IX liability at [the motion to dismiss] stage.” Hurley, 911 F.3d at 690 (citing Davis, 526 U.S.

at 649 (recognizing that court may determine, in appropriate situation, that institution did not act

with deliberate indifference as matter of law)). Moreover, although defendant Qually initially

contacted defendant Scofield, the school resource officer, he allegedly discouraged Pullen Smith

from filing a police report, (see Compl. (DE 22) ¶¶ 40-41), which undermines defendant School

Board’s argument that defendant Qually consulted law enforcement.

In sum, plaintiff states a claim under Title IX, and therefore, defendant School Board’s

motion to dismiss is denied in this part.

3. Equal Protection Claim

Defendant School Board moves to dismiss plaintiff’s equal protection claim asserted under

42 U.S.C. § 1983.2 On the face of the complaint, plaintiff asserts this claim against defendant

Scofield only. (See Compl. (DE 22) ¶¶ 100-104). Nevertheless, “[o]ut of an abundance of caution,

Defendant Board’s motion to dismiss assumes it is also directed to Defendant Board and, therefore,

also addresses that claim herein.” (Mem. (DE 30) at 13, n.3). To the extent plaintiff asserts her

equal protection claim under § 1983 against defendant Scofield in his official capacity, such claim

is“in effect, . . . against the governmental entity employing [the defendant].” Nivens v.

Gilchrist, 444 F.3d 237, 249 (4th Cir. 2006). Accordingly, the court turns to consider whether

plaintiff states an equal protection claim under § 1983 against defendant School Board.

2 The Fourth Circuit has held that a plaintiff may bring an equal protection claim against a school administrator

in his or her individual capacity under 42 U.S.C. § 1983 for the school administrator’s own deliberate indifference to

student-on-student harassment. Hurley, 911 F.3d at 699-702. On the face of plaintiff’s complaint, however, plaintiff

asserts her equal protection claim under § 1983 against defendant Scofield only. (See Compl. (DE 22) ¶¶ 100-104).

While such claim may be construed as also asserted against defendant School Board, since plaintiff’s complaint states

that defendant Scofield is an agent of Cumberland County Schools, it cannot be construed as being raised against

defendant Qually in his individual capacity. Therefore, the court does not address whether plaintiff states an equal

protection claim under § 1983 against defendant Qually in his individual capacity. Likewise, where defendant Scofield

has not moved to dismiss, the court does not consider whether plaintiff states an equal protection claim under § 1983

against defendant Scofield in his individual capacity.

Defendant School Board “cannot be held liable solely for the acts of others, e.g., ‘solely

because it employs a tortfeasor.’” Los Angeles Cty., Cal. v. Humphries, 562 U.S. 29, 36 (2010)

(quoting Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691 (1978)). Instead,

“[a] plaintiff stating a [ ] claim via § 1983 for violation of the Equal Protection Clause by a school

district or other municipal entity must show that the harassment was the result of municipal

custom, policy, or practice.” Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257–58 (2009)

(citing Monell, 436 U.S. at 694). “[O]fficial policy can be inferred from a municipality’s omissions

as well as from its acts.” Wellington v. Daniels, 717 F.2d 932, 935–36 (4th Cir. 1983). However,

“such omissions are actionable only if they constitute ‘tacit authorization’ of or ‘deliberate

indifference’ to constitutional injuries.” Id. at 936 (citing Avery v. Burke Cty., 660 F.2d 111, 114

(4th Cir. 1981) (“[T]he conduct of the boards may be actionable if their failure to promulgate

policies and regulations rose to the level of deliberate indifference.”).

As stated in more detail herein, plaintiff plausibly alleges that defendant School Board

acted with deliberate indifference to known harassment, and that her abuse was prolonged as a

result. (See, e.g., Compl. (DE 22) ¶ 68) (“Pullen-Smith went to SVMS multiple times to advocate

for [plaintiff] and ensure her protection at school. The administrators and staff were largely

unresponsive. [Defendant] Qually refused to take action against the aggressors, but 5 days after

[plaintiff] returned to SVMS, he suspended her for insubordination.”). In consequence, plaintiff

states an equal protection claim under § 1983 against defendant School Board. See Hurley, 911

F.3d at 703 (“[W]e are satisfied that — largely for the reasons set forth in our discussion of the

Title IX sex discrimination claim — the plaintiffs have sufficiently alleged an equal protection

claim.”); see also Hill v. Cundiff, 797 F.3d 948, 979 (11th Cir. 2015) (referring to Title IX analysis

in discussing equal protection claim); Williams ex rel. Hart v. Paint Valley Local Sch. Dist., 400

F.3d 360, 369 (6th Cir. 2005) (recognizing “substantial[ ]” similarity between standards for

deliberate indifference claims under Title IX and § 1983). Accordingly, defendant School Board’s

motion to dismiss is denied in this part.

4. Governmental Immunity

To the extent plaintiff asserts negligent infliction of emotional distress claims against

defendant School Board, or against defendant Qually in his official capacity, defendants School

Board and Qually seek to dismiss such claims, on the basis of governmental immunity.

Under North Carolina law, “[a] county or city board of education is a governmental agency,

and therefore may not be liable in a tort action except insofar as it has duly waived its immunity

from tort liability pursuant to statutory authority.” Overcash v. Statesville City Bd. of Educ., 83

N.C. App. 21, 22–23 (1986) (collecting cases); see, e.g., Presnell v. Pell, 298 N.C. 715, 721 (1979);

Huff v. Northampton Cty. Bd. of Ed., 259 N.C. 75, 79 (1963). “As a general rule, the doctrine of

governmental, or sovereign immunity bars actions against, inter alia, the state, its counties, and its

public officials sued in their official capacity.” Herring ex rel. Marshall v. Winston-Salem/Forsyth

Cty. Bd. of Educ., 137 N.C. App. 680, 683 (2000). “[A] suit against a defendant in his official

capacity means that the plaintiff seeks recovery from the entity of which the public servant

defendant is an agent.” Meyer v. Walls, 347 N.C. 97, 110 (1997).

“N.C. Gen. Stat. § 115C–42 is the exclusive means of a local board of education to waive

immunity.” Ripellino v. N. Carolina Sch. Boards Ass’n, Inc., 158 N.C. App. 423, 428 (2003)

(citing Lucas v. Swain County Bd. of Educ., 154 N.C. App. 357, 361 (2002)). The statute provides:

Any local board of education, by securing liability insurance as hereinafter

provided, is hereby authorized and empowered to waive its governmental immunity

from liability for damage by reason of death or injury to person or property caused

by the negligence or tort of any agent or employee of such board of education when

acting within the scope of his authority or within the course of his employment.

Such immunity shall be deemed to have been waived by the act of obtaining such

insurance, but such immunity is waived only to the extent that said board of

education is indemnified by insurance for such negligence or tort.

N.C. Gen. Stat. § 115C-42.

Here, Certain Underwriters at Lloyd’s (“Underwriters”) issued defendant School Board the

Policy, which provides coverage for liability arising from sexual harassment and sexual abuse.

(Policy (DE 30-1) at 4, 9). As relevant here, “Underwriters’ duty under the Policy shall be to

indemnify the NAMED ASSURED for ULTIMATE NET LOSS in excess of the applicable SELF

INSURED RETENTION.” (1d. at 16) (capitalization in original). The Policy defines those terms

as follows:

A: NAMED ASSURED:

Cumberland County Board of Education

24. SELF INSURED RETENTION means that United States Dollar amount specified in the

SCHEDULE OF SELF INSURED RETENTIONS which the ASSURED is obligated to pay of the

ULTIMATE NET LOSS, after the application of any applicable MAINTENANCE DEDUCTIBLE, and

before the Specific Excess Limit of Insurance of this Policy responds to the same loss.

30. ULTIMATE NET LOSS means the total sum which the ASSURED is obligated to pay because of

loss or damage covered under any Coverage Section of this Policy, either through adjudication or

compromise, after first making proper deductions for all subrogation, RECOVERY(IES) and

salvages.

(Policy (DE 30-1) at 4, 31-32). Moreover, defendant School Board’s self insured retention for

liability arising from sexual harassment and sexual abuse is $150,000.00. (id. at 9).

Under the foregoing provisions, defendant School Board must pay a $150,000.00 self-

insured retention for sexual harassment and sexual abuse liability before Underwriters is obligated

to indemnify defendant School Board. Yet, because defendant School Board is immune from

liability for tort claims, it cannot be required to pay any part of the $150,000.00 self insured

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retention, and in turn, Underwriters will not indemnify defendant School Board. Therefore, the

Policy does not constitute a waiver of defendant School Board’s governmental liability. See N.C.

Gen. Stat § 115C–42 (“[S]uch immunity is waived only to the extent that said board of education

is indemnified by insurance for such negligence or tort.”); see also Magana v. Charlotte-

Mecklenburg Bd. of Educ., 183 N.C. App. 146, 149 (2007) (“[T]he policy provides that it will not

indemnify the Board unless the Board has first paid $1,000,000 to the claimant. Since the Board

has statutory immunity from liability for tort claims, it cannot be required to pay any part of the

$1,000,000 self-insured amount and, therefore, the excess policy will provide no

indemnification.”); Hinson v. City of Greensboro, 232 N.C. App. 204, 212–13 (2014)

(“[D]efendant Greensboro purchased a $5 million excess liability policy with a $3 million self-

insured retention from the Genesis Insurance Company . . . under the terms of the policy, the City

[of Greensboro] is responsible for paying $3,000,000.00 before there is any potential coverage

under the Genesis Insurance policy . . . we hold that defendant Greensboro has not waived its

immunity as to plaintiff’s State claims.” (brackets in original)).

Plaintiff argues, however, that defendant School Board may have waived its immunity by

participating in a governmental risk pool or purchasing other insurance policies. Because plaintiff

“cannot state with certainty . . .without the benefit of discovery” whether defendant School Board

participated in a governmental risk pool, or purchased other insurance policies in addition to the

Policy, plaintiff argues that defendants School Board’s and Qually’s motions to dismiss should be

denied to allow discovery on the immunity issue. (Mem. (DE 41) at 7).

The “doors of discovery” do not unlock “for a plaintiff armed with nothing more than

conclusions.” Iqbal, 556 U.S. 678; see also Green v. Kearney, 203 N.C. App. 260, 268, (2010)

(“In order to overcome a defense of immunity, the complaint must specifically allege a waiver of

immunity. Absent such an allegation, the complaint fails to state a cause of action.” (brackets

omitted)). Here, plaintiff alleges “[u]pon information and belief, the Defendant [School Board]

has waived immunity for the state law claims by purchasing liability insurance.” (Compl. (DE 22)

¶ 116). Plaintiff’s bare assertion of waiver of governmental immunity fails in the face of defendant

School Board’s showing that no waiver of governmental immunity has occurred.

Accordingly, defendants School Board’s and Qually’s motions to dismiss are granted in

this part. To the extent plaintiff asserts negligent infliction of emotional distress claims against

defendant School Board or against defendant Qually in his official capacity, such claims are

dismissed on the basis of governmental immunity

5. Public Official Immunity

Defendant Qually seeks dismissal of plaintiff’s negligent infliction of emotional distress

claim, asserted against him in his individual capacity, on the basis of public official immunity.

“A suit against a defendant in his individual capacity means that the plaintiff seeks recovery

from the defendant directly.” Isenhour v. Hutto, 350 N.C. 601, 608 (1999) (quoting Meyer, 347

N.C. at 110). “It is settled in this jurisdiction that a public official, engaged in the performance of

governmental duties involving the exercise of judgment and discretion, may not be held personally

liable for mere negligence in respect thereto.” Meyer, 347 N.C. at 112. “The rule in such cases is

that an official may not be held liable unless it be alleged and proved that his act, or failure to act,

was corrupt or malicious, or that he acted outside of and beyond the scope of his duties.” Smith

v. State, 289 N.C. 303, 331 (1976). “An employee, on the other hand, is personally liable for

negligence in the performance of his or her duties proximately causing an injury.” Isenhour, 350

N.C. at 610 (internal citations omitted).

In distinguishing between public officials and public employees, North Carolina law

recognizes several distinctions, including: “(1) a public office is a position created by the

constitution or statutes; (2) a public official exercises a portion of the sovereign power; and (3) a

public official exercises discretion, while public employees perform ministerial duties.” Id.

“Discretionary acts are those requiring personal deliberation, decision and judgment; duties are

ministerial when they are absolute, certain, and imperative, involving merely the execution of a

specific duty arising from fixed and designated facts.” Meyer, 347 N.C. at 113 (internal quotations

omitted).

North Carolina law creates the office of school principal by statute providing for school

administrators. See N.C. Gen. Stat. § 115C-287.1(a); Farrell v. Transylvania Cty. Bd. of Educ.,

175 N.C. App. 689, 696 (2006). Additionally, North Carolina courts recognize “that school

officials such as superintendents and principals perform discretionary acts requiring personal

deliberation, decision, and judgment.” Farrell, 175 N.C. App. at 695 (citing Gunter v. Anders, 114

N.C. App. 61, 67–68 (1994)). Accordingly, principals are entitled to public official immunity for

their discretionary acts. See Farrell, 175 N.C. App. at 695; Gunter, 114 N.C. App. at 67–68.

Defendant Qually, as principal of SVMS, is entitled to public official immunity, unless

plaintiff plausibly alleges his actions were corrupt or malicious, or beyond the scope of his duties.

See Smith, 289 N.C. at 331. Malice and corruption are difficult to show because “it is presumed

that a public official in the performance of his official duties acts fairly, impartially, and in good

faith and in the exercise of sound judgment or discretion, for the purpose of promoting the public

good and protecting the public interest.” In re Annexation Ordinance No. 300–X, 304 N.C. 549,

551 (1981). “A defendant acts with malice when he wantonly does that which a man of reasonable

intelligence would know to be contrary to his duty and which he intends to be prejudicial or

injurious to another.” Grad v. Kaasa, 312 N.C. 310, 313 (1984). For purposes of this inquiry, “a

conclusory allegation that a public official acted willfully and wantonly should not be sufficient,

by itself, to withstand a Rule 12(b)(6) motion to dismiss. The facts alleged in the complaint must

support such a conclusion.” Meyer, 347 N.C. at 114.

Here, plaintiff fails to plausibly allege that any acts or omissions by defendant Qually were

corrupt or malicious, or beyond the scope of his duties. See Smith, 289 N.C. at 331. Defendant

Qually allegedly questioned C.F. about the harassment allegations, alerted the school resource

officer, and contacted Pullen-Smith. (Compl. (DE 22) ¶¶ 34, 36-37). Plaintiff does not explain

how such acts exceeded the scope of defendant Qually’s duties, as SMVS principal, and in fact,

plaintiff’s complaint alleges that “[a]t all relevant times, Defendant Qually was an employee of

CCS acting within the scope of his employment and authority at CCS.” (Id. ¶ 91).

Moreover, although defendant Qually allegedly sent plaintiff and C.F. back to the same

classroom when C.F. denied the allegations; inquired whether Pullen-Smith was aware of

plaintiff’s “issues with a female student”, advising that plaintiff was “involved in this trend of

liking girls”; discouraged Pullen-Smith from filing a police report because “the situation did not

rise to that level”; suggested that Pullen-Smith talk to plaintiff to ensure that she was not the

aggressor; and refused to take action against the alleged aggressors, (see id. ¶¶ 35, 47, 40-41, 44-

45, 68), plaintiff’s complaint is devoid of any facts suggesting that defendant Qually committed

the foregoing actions with the intent “to be prejudicial or injurious to another.” Grad, 312 N.C. at

313. Although the court found herein that plaintiff plausibly alleges deliberate indifference,

deliberate indifference is not synonymous with malice. See Baynard, 268 F.3d at 236

(quoting Farmer v. Brennan, 511 U.S. 825, 835 (1994) (“deliberate indifference describes a state

of mind more blameworthy than negligence” but “is satisfied by something less than acts or

omissions for the very purpose of causing harm or with knowledge that harm will result”)). And

plaintiff’s conclusory assertion that defendant Qually acted “negligently, recklessly, and in bad

faith”, (Compl. (DE 22) ¶¶106-107), cannot overcome public official immunity. See Meyer, 347

N.C. at 114.

Accordingly, defendant Qually’s motion to dismiss is granted in this part, and plaintiff’s

negligent infliction of emotional distress claim asserted against defendant Qually in his individual

capacity is dismissed.

6. Official Capacity Claim

Defendant Qually moves to dismiss plaintiff’s claim 42 U.S.C. § 1983, to the extent

plaintiff asserts such a claim against defendant Qually in his official capacity.3 “As long as the

government entity receives notice and an opportunity to respond, an official-capacity suit is, in all

respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S.

159, 166 (1985). A § 1983 claim against a school official in his or her official capacity “is

essentially a claim against the [School] Board and thus should be dismissed as duplicative.” Love-

Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004); see Huggins v. Prince George’s Cty., Md., 683

F.3d 525, 532 (4th Cir. 2012). Here, defendant School Board is subject to plaintiffs’ § 1983 action.

(See Compl. (DE 22) ¶ 7). Additionally, defendant School Board has been given notice and an

opportunity to respond. (See, e.g., Motion to Dismiss (DE 14)). Accordingly, to the extent

3 Plaintiff asserts three claims in total: 1) a Title IX claim, 2) a claim under 42 U.S.C. § 1983, and 3) a negligent

infliction of emotional distress claim. As stated in more detail herein, the court dismisses plaintiff’s negligent

infliction of emotional distress claims asserted against defendant Qually in his individual and official capacities.

Moreover, Title IX does not provide a cause of action against individual defendants. See Fitzgerald, 555 U.S. at 247

(“Title IX reaches institutions and programs that receive federal funds... [and]... has consistently been interpreted as

not authorizing suit against school officials, teachers, and other individuals.”). Therefore, the only remaining claim

that could be asserted against defendant Qually in his official capacity is plaintiff’s claim under 42 U.S.C. § 1983.

plaintiff asserts a § 1983 claim against defendant Qually in his official capacity, such claim is

dismissed.

CONCLUSION

Based on the foregoing, defendant Cumberland County’s motions to dismiss (DE 14, 29)

are GRANTED IN PART and DENIED IN PART, and defendant Qually’s motion to dismiss (DE

31) is GRANTED.

Plaintiff's Title IX and § 1983 claims against defendant School Board are ALLOWED to

proceed. Plaintiff's claim for negligent infliction of emotional distress against defendant Qually

in his individual capacity is DISMISSED on the basis of public official immunity. To the extent

plaintiff asserts negligent infliction of emotional distress claims against defendant School Board

or defendant Qually in his official capacity, such claims are DISMISSED on the basis of

governmental immunity. To the extent plaintiff asserts a 42 U.S.C. § 1983 claim against defendant

Qually in his official capacity, such claim is DISMISSED.

SO ORDERED, this the 21st day of June, 2021.

United States District Judge

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