BRATTAIN v. STANLY COUNTY BOARD OF EDUCATION

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RUTH BRATTAIN, individually, )

and as guardian of H.W., a )

minor child, )

)

Plaintiffs, )

)

v. ) 1:19cv1037

)

STANLY COUNTY BOARD OF )

EDUCATION, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.

This lawsuit arises out of alleged mistreatment of H.W., a

minor child and student, by teachers and administrators of the

Stanly County Schools system. Plaintiff Ruth Brattain -- H.W.’s

grandmother and legal guardian -- brings a number of state and

federal law claims against multiple defendants in various

capacities: the Stanly County Board of Education, d/b/a Stanly

County Schools (“BOE”); Daniel Goodman, individually and in his

official capacity as principal of Locust Elementary School, a

school owned and operated by Stanly County Schools; Leigh Hayes,

individually and in her official capacity as Exceptional Children

Director for Stanly County Schools; Shannon Batchelor,

individually and in her official capacity as Director of Student

Services for Stanly County Schools; Karen Morgan, individually as

a teacher at Oakboro Elementary School, a school owned and operated

by Stanly County Schools; and Angela Tucker, individually as a

teacher at Oakboro Elementary School.

Plaintiffs filed their original complaint on October 10, 2019

(Doc. 1), and Defendants filed a partial motion to dismiss and

answer on January 31, 2020 (Doc. 5).1 Plaintiffs responded with

an amended complaint on February 20, 2020 (Doc. 8), and Defendants

filed a partial motion to dismiss and answer on April 3 (Doc. 13).

Before the court is Defendants’ second partial motion to dismiss

for failure to state a claim upon which relief can be granted under

Federal Rules of Civil Procedure 12(b)(1), (2), and (6), although

Defendants only address the last ground.2 Plaintiffs filed a

response opposing Defendants’ motion (Doc. 15), and Defendants

filed a reply (Doc. 16). The motions are fully briefed and ready

for decision.3 For the reasons set forth below, Defendants’ motion

1 By combining their motion to dismiss with their answer, Defendants’

filing violates Local Rule 7.3(a), which provides that “[e]ach motion

shall be set out in a separate pleading.” Because Plaintiffs have fully

responded and not raised this defect, the court will proceed to the

merits of the motion.

2 While Defendants style their motion to dismiss as pursuant to Rules

12(b)(1), 12(b)(2), and 12(b)(6), they do not actually make any arguments

under Rules 12(b)(1) or 12(b)(2). Of course, a court can sua sponte

review subject matter jurisdiction. Hicks v. Ferreyra, 965 F.3d 302,

310 (4th Cir. 2020). However, subject matter jurisdiction exists here

in the form of federal question jurisdiction over Plaintiffs’ federal-

law claims, and the court has supplemental jurisdiction over the related

state-law claims. Defendants do not make any arguments about personal

jurisdiction. Accordingly, the court will review Defendants’ motion

under Rule 12(b)(6) alone.

3 The court’s analysis is made somewhat more difficult by a number of

errors in Defendants’ brief in support of their motion to dismiss. In

particular, Defendants frequently cite to the original complaint, rather

to dismiss will be granted in part and denied in part.

I. BACKGROUND

The facts alleged in the amended complaint, viewed in the

light most favorable to Plaintiffs, show the following:

H.W. was born prematurely and subjected to early intervention

services due to concerns about in utero oxygen deficiency and

exposure to illegal drugs. (Doc. 8 ¶ 19.) By time he enrolled in

preschool in Stanly County Schools, he was diagnosed with

developmental delays in speech and adaptive behavior and placed in

the Exceptional Children program for students with disabilities;

at this time, school records also documented aggression and

oppositional defiance. (Id. ¶ 21.) At the end of his first year

of preschool, school records “demonstrated indications of positive

progress without any indication of oppositional defiant

behaviors.” (Id. ¶ 22.) Records the next year, his pre-

kindergarten year in Stanly County Schools, “confirmed measurable

progress,” and he was placed in a regular classroom for

kindergarten the following year. (Id. ¶¶ 23, 25.) Within the

first three months of his kindergarten year, however, H.W. was

suspended for threatening physical harm to his teachers and started

than the amended complaint, and thereby address arguments that Plaintiffs

do not make. In addition, there are numerous typos that lend to the

confusion. See, e.g., Doc. 14 at 12 (referring to “Defendant City of

Albemarle” when there is no such defendant); id. at 13 (referring to an

“Equal Protection” claim when Plaintiffs do not appear to make any

federal equal protection claims).

receiving behavioral health therapy and medications to manage

irritability associated with autism and attention deficit

hyperactivity disorder. (Id. ¶¶ 25-26.) At the time, he was also

placed on a behavior intervention plan (“BIP”), to which he

“initially responded well.” (Id. ¶ 27.) However, by the end of

his kindergarten year, in spring 2013, H.W.’s behavior had

“regressed,” he was placed in a more restrictive classroom setting,

and he was prescribed additional medications to manage autism.

(Id. ¶¶ 28-29.)

By spring 2014, H.W. “required additional intervention,” and

medical records confirmed “increased intensity and frequency of

aggressive behaviors over the prior year.” (Id. ¶ 31.) Around

this time, James Wood, a services facilitator for the Stanly County

Department of Health, reached out to administrators at H.W.’s

school, Oakboro Elementary School, and offered to help coordinate

supplemental services for H.W. (Id. ¶¶ 32-34.) According to

Plaintiffs, Mr. Wood’s efforts were “ignored.” (Id. ¶ 34.)

However, at the close of the school year, a school team met to

approve a new BIP for H.W. for use during 2014-2015, his second-

grade school year. (Id. ¶ 35.) The final plan was dated May 21,

2014, and was designed to decrease the intensity and duration of

H.W.’s behavioral outbursts, or “meltdowns.” (Id. ¶ 36.) The BIP

included a tiered “action plan” for use when H.W. was having an

outburst, to include isolating him from other students in the

classroom for no more than 15 minutes, escorting him to the

principal’s office where he would have 30 more minutes to calm

down, before ultimately contacting his guardian and sending him

home. (Id. ¶¶ 37-40.)

H.W. started his second-grade school year August 20, 2014.

(Id. ¶ 42.) By September 8, Brattain, his guardian, learned that

Defendants were using a “calm down” room for him that was not

identified in his BIP. (Id. ¶ 43.) H.W. told Brattain that he

was not supposed to tell anyone about the “bad room” and that he

had been to the “bad room” a “bunch of times.” (Id. ¶ 44.)

Brattain met with Karen Morgan, one of H.W.’s teachers, who

initially denied, but ultimately acknowledged, using an

alternative room. (Id. ¶ 45.) According to Plaintiffs, the room

was “dark, dirty, and appeared to be used as a storage room for

cleaning supplies. The room did not have windows, cleaning

supplies were stored on shelves accessible at a child’s height,

there was a hole in the ceiling with insulation falling through,

electrical outlets lined the walls, and toys were intermingled on

the shelves with cleaning supplies.” (Id. ¶ 46.) Plaintiffs

allege that H.W. was left in the room “unattended, unsupervised,

with the door shut and lights off for extended periods of time,”

on “multiple occasions,” at times without food and missing his

medications. (Id. ¶¶ 47-49.)

Brattain first met with school officials on September 8, 2014,

to discuss the seclusion room; the meeting was continued to allow

county representatives to attend. (Id. ¶ 51.) A second meeting

was held September 18, 2014, and was attended by Oakboro’s

principal, Goodman; H.W.’s teachers, Tucker and Morgan; and BOE

representatives including Batchelor and Hayes. (Id. ¶ 52.) At

this meeting, Tucker admitted to using the seclusion room, and

Goodman confirmed it was employed at his direction to limit

property destruction in his office. (Id. ¶ 53.) As a result of

the meeting, a “more detailed plan” for H.W. was created that

“confirmed appropriate safe spaces” and concluded that the group

should reconvene if H.W.’s behavior problems continued. (Id.

¶ 56.)

H.W.’s “inappropriate behavior continued to increase

throughout the fall semester,” and Defendants did not reconvene.

(Id. ¶ 57.) Plaintiffs allege that Defendants should have known

that the seclusion room violated North Carolina law and Stanly

County regulations and that BOE failed to take any action to

discipline Goodman, Tucker, or Morgan or to offer assistance to

H.W. after discovering the use of the seclusion room. (Id. ¶¶ 62-

63.)

In January 2015, H.W. was suspended for making violent

drawings. (Id. ¶ 65.) In February 2015, at the initiation of

Brattain, Oakboro school and BOE officials had a meeting in which

Brattain relayed concerns she had about H.W.’s safety. (Id. ¶ 71.)

At some point thereafter, H.W. was transferred to a new school,

where his “behavioral outbursts improved immediately.” (Id. ¶¶

74, 76.) However, by April 2015, Brattain learned that H.W.’s

teacher at his new school was stealing his medications, and

Brattain removed H.W. from Stanly County Schools and enrolled him

in the Cabarrus County School system. (Id. ¶¶ 77-78.) Plaintiffs

allege that, as a result of these experiences, H.W. suffers from

post-traumatic stress disorder (“PTSD”) and panic attacks, now

requires extensive therapy and medications, and “continues to test

well below his peers and his behavioral adaptation skills are

severely impaired.” (Id. ¶¶ 68, 83-85.)

II. ANALYSIS

A motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) tests the legal sufficiency of a complaint. Francis v.

Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). To survive a Rule

12(6)(6) motion, “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, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). In considering the motion, a court will “assume as true

all . . . well-pleaded facts and draw all reasonable inferences in

favor of the plaintiff.” Nanni v. Aberdeen Marketplace, Inc., 878

F.3d 447, 452 (4th Cir. 2017). “Rule 12(b)(6) protects against

meritless litigation by requiring sufficient factual allegations

to raise a right to relief above the speculative level so as to

nudge the claims across the line from conceivable to plausible.”

Sauers v. Winston-Salem/Forsyth Cty. Bd. of Educ., 179 F. Supp. 3d

544, 550 (M.D.N.C. 2016) (alterations and quotations omitted).

A. Official Capacity Allegations

Before turning to the merits of the amended complaint, the

court first addresses two preliminary arguments raised by

Defendants.

First, Defendants argue that Plaintiffs’ complaint does not

comply with mandatory pleading requirements to state individual-

capacity claims, and so these claims should be dismissed. (Doc.

14 at 6-8.) This argument is without merit. As to the state-law

claims, North Carolina requires a complaint to clearly state the

capacity in which a public official is being sued, and if it is

unclear, the courts will presume the official is being sued in his

or her official capacity only. See White v. Trew, 736 S.E.2d 166,

168-69 (N.C. 2013); Mullis v. Sechrest, 495 S.E.2d 721, 723-25

(N.C. 1998). This generally requires the plaintiff to state the

defendant’s capacity in the caption, allegations, and prayer for

relief. See White, 736 S.E.2d at 168-69. Plaintiffs clearly meet

this standard. The caption of the amended complaint specifically

states the capacity in which each Defendant is being sued. So,

too, do the allegations (see Doc. 8 ¶¶ 8-12), the headings for

each cause of action,4 and the prayer for relief (where each cause

of action is referenced). Not only does this comply with the

letter of White and Mullis, it complies with the spirit as well -

- “affording the defendant proper notice to prepare a defense.”

See White, 736 S.E.2d at 169. There can be no doubt from the

amended complaint in which capacity each Defendant is being sued.

As to the federal-law claims, “This court has recognized that

although the official capacity presumption may exist under North

Carolina law, it does not apply in the context of a Section 1983

suit.” Doe v. Durham Pub. Sch. Bd. of Educ., No. 1:17CV773, 2019

WL 331143, at *7 (M.D.N.C. Jan. 25, 2019) (alterations and

quotations omitted). In any event, as discussed, Plaintiffs have

clearly delineated the capacity in which each Defendant is being

sued in the caption, allegations, and prayer for relief, which is

more than sufficient. See id. (plaintiff adequately pleaded

individual-capacity § 1983 claims when the caption expressly

stated that each defendant was being sued in their individual and

official capacities even though the allegations and prayer for

relief did not).

Second, Defendants argue that certain official-capacity

claims should be dismissed as duplicative of the same claims

4 For example, under the claim for “Negligent Inflection of Emotional

Distress” the complaint reads “Defendants Morgan & Tucker Individually.”

against BOE.5 (Doc. 14 at 8-10.) Plaintiffs respond that it would

be premature to dismiss on these grounds and suggest summary

judgment might be a more appropriate time for the court to

reconsider. (Doc. 15 at 9.) Defendants are correct. “It is

duplicative to bring the same claim against a defendant in his

official capacity and against the government entity that employs

that defendant, and in such a case the official capacity claim

should be dismissed.” Howard v. City of Durham, No. 1:17CV477,

2018 WL 1621823, at *8 (M.D.N.C. Mar. 31, 2018) (citing Love–Lane

v. Martin, 355 F.3d 766, 783 (4th Cir. 2004)); see also Kentucky

v. Graham, 473 U.S. 159, 166 (1985) (“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.”). Accordingly, the court will

dismiss the official-capacity claims as to Goodman, Batchelor, and

Hayes where BOE is also named as a Defendant, i.e., the Fourteenth

Amendment due process claim, the Rehabilitation Act of 1973 § 504

claim, and the North Carolina Constitution claim.6

5 Defendants appear to believe that official-capacity claims have been

brought against all five individual Defendants, but this is incorrect.

Specifically, Plaintiffs bring official-capacity claims against only

Goodman, Batchelor, and Hayes. And the only claims in which BOE is also

named as a Defendant -- and hence could be considered duplicative of the

official-capacity claims -- are the Fourteenth Amendment due process

claim, the Rehabilitation Act § 504 claim, and the North Carolina

Constitution claim.

6 Defendants also argue that the official-capacity, state-law tort claims

against Goodman, Hayes, and Batchelor should be dismissed because they

Having addressed these initial issues, the court now turns to

the merits of Brattain’s claims.

B. Federal Claims

1. Fourteenth Amendment to the U.S. Constitution

Brattain’s first cause of action is brought against all

Defendants under 42 U.S.C. § 1983 and alleges violations of H.W.’s

rights under the Fourteenth Amendment to the U.S. Constitution.

(Doc. 8 ¶¶ 1, 87.) The court will first address the § 1983 claim

as to the individual Defendants sued in their individual

capacities, and then as to BOE.

a. Individual Defendants

“To state a claim under § 1983, a plaintiff must allege the

violation of a right secured by the Constitution and laws of the

United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” West v.

Atkins, 487 U.S. 42, 48 (1988). For an individual to be liable

under § 1983, “it must be affirmatively shown that the official

charged acted personally in the deprivation of the plaintiff’s

rights. The doctrine of respondeat superior has no application

under this section.” Wright v. Collins, 766 F.2d 841, 850 (4th

are barred by governmental immunity. (Doc. 14 at 10-12.) However,

Brattain has not alleged any state-law tort claims as to those Defendants

in their official capacities. The only state-law tort claim against

Goodman, Hayes, and Batchelor is intentional infliction of emotional

distress, which Brattain brings against Defendants solely in their

individual capacities.

Cir. 1985) (citation and quotations omitted). “The first step in

[a § 1983] claim is to identify the specific constitutional right

allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271

(1994). Here, Brattain states two specific constitutional rights

that Defendants allegedly violated: H.W.’s property right in

education and a right to bodily integrity. (Doc. 8 ¶ 87.)

When a state provides a free public education, as North

Carolina does,7 courts have found this creates a property interest

that is protected by the Due Process Clause. See Pegram v. Nelson,

469 F. Supp. 1134, 1138 (M.D.N.C. 1979) (citing Goss v. Lopez, 419

U.S. 565 (1975)). This interest is more properly framed as a

procedural due process right in the disciplinary suspension or

academic dismissal setting, i.e., that a student has a right to

notice and some type of informal hearing prior to being suspended

from school. See id. Moreover, “[t]he property interest in

education created by the state is participation in the entire

process. The myriad activities which combine to form that

educational process cannot be dissected to create hundreds of

separate property rights, each cognizable under the Constitution.”

Id. at 1139 (citation omitted) (emphasis added). Recognizing the

countervailing need for schools to maintain order and discipline,

7 North Carolina provides a free public education “to every person of

the State less than 21 years old, who has not completed a standard high

school course of study.” N.C. Gen. Stat. § 115C–1.

as well as for school officials to have some discretion in how

they operate their schools, courts have been reticent to find a

due process violation with every decision that results in a

student’s exclusion from some facet of the educational process,

and prior cases have generally cabined due process right-to-

education claims to situations of actual suspension or otherwise

significant limitations that could reasonably amount to a

student’s “total exclusion” from school. See id. at 1140; see

also O.V. v. Durham Pub. Sch. Bd. of Educ., No. 1:17CV691, 2018 WL

2725467, at *27 (M.D.N.C. June 6, 2018), report and recommendation

adopted, No. 1:17CV691, 2018 WL 3370644 (M.D.N.C. July 10,

2018)(granting a motion to dismiss on a § 1983 right-to-education

claim that alleged students with disabilities were being removed

from general education classrooms and placed in segregated,

special education-only classes).

Here, Plaintiffs allege multiple instances of in-school

isolation that suggest that H.W. may have functionally experienced

“total exclusion from the educational process.” See Goss, 419

U.S. at 576. Specifically, Plaintiffs allege that H.W. was “left,

forgotten . . . for extended periods of time, on multiple

occasions” in the seclusion room. (Doc. 8 ¶ 49.) They allege

that the “‘bad room’ was incorporated as a standard practice to

manage [H.W.’s] meltdowns.” (Id. ¶ 50.) And Brattain alleges she

had no notice of the use of the room. Other courts reviewing cases

on similar facts have found, at least at the motion to dismiss

stage, that such allegations can survive dismissal. See Williams

v. Fulton Cty. Sch. Dist., 181 F. Supp. 3d 1089, 1131-32 (N.D. Ga.

2016) (complaint alleging that a special needs student was left in

a “closet-like room,” “repeatedly,” and on “multiple occasions,

sometimes up to hours at a time . . . just barely plausibly

allege[s] that [the student] was submitted to enough lengthy

timeouts that he was ‘functionally’ totally removed from the school

environment without due process”); see also Laney v. Farley, 501

F.3d 577, 581-82 (6th Cir. 2007) (dismissing claim as to in-school

suspensions but noting that “[u]nder certain circumstances, in-

school isolation could well constitute as much deprivation of

education as at-home suspension” depending “on the extent to which

the student was deprived of instruction or the opportunity to

learn” (citation omitted)); Orange v. County of Grundy, 950 F.

Supp. 1365, 1368 (E.D. Tenn. 1996) (finding that use “of isolation

as a form of punishment . . . [by placing students] in the text

book storage room” for a full day without access to food or toilet

facilities could implicate both substantive and procedural due

process rights); but see Couture v. Bd. of Educ. of Albuquerque

Pub. Sch., 535 F.3d 1243, 1257 (10th Cir. 2008) (placing disabled

student in a timeout room 21 times for a total of 12 hours over

two and one-half months does not violate due process although

noting that “[a]t some point, punishment timeouts used excessively

might become the functional equivalent of the out-of-school

suspension at issue in Goss”). It is a close question here. But

at this preliminary stage and on the allegations before it -- where

Plaintiffs allege that H.W. was placed in the seclusion room “for

extended periods of time, on multiple occasions” and “forgotten”

to the point of missing his medications and meals as part of a

“standard practice” incorporated to manage his outbursts (Doc. 8

¶¶ 47-50) -- the court finds it plausible that H.W.’s removal may

have risen to the level of total exclusion from the school

environment sufficient to state a due process claim. Whether the

removals were so frequent and lengthy as to be characterized as

“total exclusion” from the educational process –- facts uniquely

within the knowledge of Defendants at this point –- should await

further factual development.

As to H.W.’s right to bodily integrity, the Fourth Circuit

has recognized that students have a due process right to bodily

integrity when there are allegations of “malicious corporal

punishment inflicted by school officials.” Meeker v. Edmundson,

415 F.3d 317, 320 (4th Cir. 2005) (citing Hall v. Tawney, 621 F.2d

607 (4th Cir. 1980)). While most of the cases focus on excessive

physical punishment, see, e.g., Hall, 621 F.2d at 614 (paddling a

student that resulted in hospitalization), this district has read

Supreme Court and Fourth Circuit precedent for the proposition

that “students have a liberty interest in freedom from unreasonable

restraint and mistreatment.” See W.E.T. ex rel. Tabb v. Mitchell,

No. 1:06CV487, 2008 WL 151282, at *4 (M.D.N.C. Jan. 10, 2008).

Indeed, Mitchell denied a school district’s motion to dismiss,

finding that a teacher “maliciously placing masking tape over a

disabled student’s mouth whom she knew to have severe asthma, and

subsequently forcefully ripping it off, violates his

constitutional right to bodily integrity.” Id. at *5. The present

situation is analogous. Allegations that H.W., a special needs

student, was placed in a dark seclusion room -- in direct violation

of North Carolina law, Stanly County policy, and H.W.’s own BIP -

- on multiple occasions and for extended periods of time,

unsupervised, and within reach of cleaning supplies and electrical

outlets, plausibly state a violation of his right to bodily

integrity. Therefore, Brattain has pled, at this stage, two

specific constitutional rights that Defendants allegedly violated.

In their brief, Defendants do not address the § 1983 claim as

to Tucker and Morgan, H.W.’s teachers. Accordingly, Defendants

have offered no grounds to dismiss this count, and their motion to

dismiss will be denied as to these two Defendants. Moreover, the

claim appears to be plausibly stated. As pleaded, both Morgan and

Tucker admitted to placing H.W. in the seclusion room. (Doc. 8 at

¶¶ 45-47, 53.) Accepting this allegation as true for the purposes

of a motion to dismiss, it states a § 1983 claim for a right to

education and bodily integrity as to Tucker and Morgan.

Defendants Goodman, Hayes, and Batchelor argue that Brattain

has failed to state a plausible § 1983 claim as to them. (Doc. 14

at 15-16.) This is true as to Hayes and Batchelor. Hayes and

Batchelor both worked as directors in the Stanly County Schools

central office. The complaint does not state that either put H.W.

in a seclusion room directly or even knew about the use of the

seclusion room prior to the September 18, 2014 meeting. Nor does

the complaint allege that use of the seclusion room continued after

that meeting. In other words, Plaintiffs have not shown that

Batchelor and Hayes “directed, supervised, participated in,

authorized or even . . . condoned by knowing acquiescence the

specific incident upon which this claim for relief is based,” i.e.,

use of the seclusion room. See Hall, 621 F.2d at 615.

Perhaps recognizing this, Plaintiffs also allege deliberate

indifference on the part of Hayes and Batchelor by not removing

H.W. from Morgan and Tucker’s classroom after learning about the

seclusion room. (Doc. 8 ¶¶ 89-92.) “Deliberate indifference is

a very high standard -- a showing of mere negligence will not meet

it. Actions that in hindsight are unfortunate or even imprudent

will not suffice. Indeed, a supervisory official who responds

reasonably to a known risk is not deliberately indifferent even if

the harm is not averted.” Doe, 2019 WL 331143, at *8-9 (quoting

Baynard v. Malone, 268 F.3d 228, 236 (4th Cir. 2001) (citations

omitted)). For example, while a principal’s “failure to respond

to mounting evidence of potential misconduct” by a teacher might

be sufficient for deliberate indifference, see Baynard, 268 F.3d

at 236, mere negligence in responding to potential misconduct

likely will not suffice, see Doe, 2019 WL 331143, at *9-11 (no

deliberate indifference by principals to a teacher’s sexual abuse

of a student when the principals did not know about the abuse and

otherwise acted promptly as to any allegations of inappropriate

conduct).

Brattain has not alleged facts indicating that Hayes and

Batchelor had “personal knowledge of and involvement in the alleged

deprivation of [H.W.’s] rights” to education and bodily integrity

as required under § 1983. See Wright, 766 F.2d at 850. Nor has

Brattain shown that either acted with deliberate indifference to

the fact that H.W.’s constitutional rights were being violated.

Indeed, the opposite -- from the complaint it appears that once

BOE learned of the seclusion room, both Hayes and Batchelor

attended a meeting to discuss the situation with Brattain, and use

of the room immediately stopped. (See Doc. 8 ¶¶ 51-52.) At that

meeting, BOE officials also created a “more detailed plan” that

“confirmed appropriate safe spaces” for H.W. (Id. ¶ 56.) Thus,

the § 1983 due process claims against Hayes and Batchelor will be

dismissed.

The final individual Defendant is Goodman. As a preliminary

matter, Goodman argues that he is entitled to qualified immunity

for the § 1983 claim.8 “Government officials performing

discretionary functions are entitled to qualified immunity from

liability for civil damages to the extent that ‘their conduct does

not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Wilson v. Layne,

141 F.3d 111, 114 (4th Cir. 1998) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). Qualified immunity “is an affirmative

defense that must be pleaded by a defendant official.” Harlow,

457 U.S. at 815. School officials may assert a qualified immunity

defense. See Doe, 2019 WL 331143, at *17. Because qualified

immunity only protects actions within the scope of the official’s

discretionary authority, the defendant “bears the initial burden

of demonstrating that the conduct of which the plaintiff complains

falls within the scope of the defendant’s duties.” Henry v.

Purnell, 501 F.3d 374, 377 n.2 (4th Cir. 2007) (citation and

quotations omitted). Once the defendant properly asserts

qualified immunity, “[t]he plaintiff bears the burden of proof on

the . . . question [of] whether a constitutional violation

occurred.” Id. at 377. If the plaintiff meets this burden, the

defendant then bears the burden of proof on the question of whether

the right in question was clearly established at the time of the

8 Because the court has concluded that Brattain failed to state a § 1983

claim as to Hayes and Batchelor, it need not consider their qualified

immunity defense.

alleged misconduct. See id. at 378.

At this juncture, Goodman’s qualified immunity defense

stumbles at the first step. Goodman bears “the initial burden of

demonstrating that the conduct of which [Brattain] complains falls

within the scope” of his duties. See id. at 377 n.2. “[A]n

official who performs an act clearly established to be beyond the

scope of his discretionary authority is not entitled to claim

qualified immunity under § 1983.” In re Allen, 106 F.3d 582, 593

(4th Cir. 1997). The complaint alleges that use of the seclusion

room expressly violated North Carolina law, BOE policy, and H.W.’s

own BIP. (Doc. 8 ¶¶ 43, 60.) As such, its use was “clearly

established to be beyond [Goodman’s] discretionary authority,” and

Goodman cannot assert a qualified immunity defense at this time.9

See Allen, 106 F.3d at 593.

Turning to the merits, the court finds that Plaintiffs’ § 1983

claim survives a motion to dismiss. As pleaded, the seclusion

room “was employed at [Goodman’s] direction to limit destruction

of property within his office.” (Doc. 8 at ¶ 53.) The complaint

also alleges that Goodman took steps to hide the use of the room.

(Id. ¶ 58.) Accepting this as true for the purposes of a motion

9 Denying Goodman’s qualified immunity defense at this time does not

necessarily mean the issue is finally resolved against him. See Swick

v. Wilde, No. 1:10CV303, 2012 WL 3780350, at *15 & n.23 (M.D.N.C. Aug.

31, 2012) (denying an officer’s qualified immunity defense at the summary

judgment stage where it rested on a factual dispute but noting defendants

remain entitled to assert the defense at trial).

to dismiss, as the court must, it finds that Plaintiffs have

pleaded a § 1983 claim for a right to education and bodily

integrity as to Goodman.

b. Stanly County Board of Education

To succeed on a § 1983 claim against a municipality or

municipal agency, Plaintiffs must demonstrate a constitutional

violation as a result of an official policy, practice, or custom.

White v. City of Greensboro, 408 F. Supp. 3d 677, 691 (citing

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). A

policy, practice, or custom for which a municipality may be held

liable can arise in one of four ways: “(1) through an express

policy, such as a written ordinance or regulation; (2) through the

decisions of a person with final policymaking authority; (3)

through an omission, such as a failure to properly train officers,

that manifests deliberate indifference to the rights of citizens;

or (4) through a practice that is so persistent and widespread as

to constitute a custom or usage with the force of law.” Lytle v.

Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (alterations and

quotations omitted).

Plaintiffs do not clearly allege a precise BOE “policy,

practice, or custom” that supposedly led to a violation of H.W.’s

constitutional rights. Plaintiffs do not argue that use of the

seclusion room itself was a policy or practice of BOE, and nor

could they because, as Plaintiffs acknowledge, the express policy

of BOE was to forbid such use of seclusion. (Doc. 8 ¶¶ 60, 96;

see also Stanly County Schools Regulation Code 4302-R Rules for

Use of Seclusion and Restraint in Schools.) Further, the actions

of Morgan, Tucker, and Goodman cannot impose liability on BOE, as

“[i]t is well settled that ‘isolated incidents’ of

unconstitutional conduct by subordinate employees are not

sufficient to establish a custom or practice for § 1983 purposes.”

Lytle, 326 F.3d at 473 (citation omitted). The complaint,

construed in Plaintiffs’ favor, reveals that once BOE discovered

use of the seclusion room, it was not used again.

Plaintiffs also argue that BOE “developed and operated a

pervasive culture and/or custom of deliberate indifference to the

needs of exceptional children with the school district.” (Doc. 8

¶ 95.) Again, “deliberate indifference” is a high bar, and

Plaintiffs do not meet it here. Plaintiffs plead very few facts

upon which to predicate their claim of deliberate indifference.

The sum total of these allegations is contained in two paragraphs

of a 120-paragraph amended complaint: Plaintiffs allege that

“Defendants’ widespread deliberate indifference created a culture

where teachers and administrators were permitted and encouraged to

ignore the clearly identified behavioral needs of exceptional

children like Minor Plaintiff by failing to create a safe and

responsive learning environment” (id. ¶ 80); and that James Wood,

a care services coordinator with Stanly County, said that his

efforts to coordinate resources for “multiple families with

exceptional children” were “refused or at best, ignored” (id. ¶

81). In assessing a complaint on a Rule 12(b)(6) motion, “mere

legal conclusions are not accepted as true, and ‘threadbare

recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.’” White, 408 F. Supp. 3d

at 690-91 (quoting Iqbal, 556 U.S. at 678) (alterations omitted).

Even when viewed in the light most favorable to Brattain, these

allegations fail to support that BOE had a policy, practice, or

custom of ignoring the needs of exceptional children as required

to impose municipal liability under § 1983.10 Defendants’ motion

to dismiss Plaintiffs’ § 1983 claim as to BOE will therefore be

granted.

2. Rehabilitation Act of 1973

Brattain’s other federal claim alleges a violation of Section

10 In fact, much of the rest of Plaintiffs’ complaint belies the notion

that BOE had a pattern or practice of ignoring the needs of exceptional

children, at least as it pertains to H.W. Before the events in question

in August and September 2014, it appears BOE tried a variety of

approaches with H.W., with some success. In 2010, H.W. was enrolled in

a BOE preschool where he “demonstrated indications of positive progress.”

(Doc. 8 ¶ 22.) He next attended pre-kindergarten at another BOE school,

where he received positive year-end reviews and received an end-of-year

Individualized Educational Plan. (Id. ¶ 23.) The year after that, H.W.

was initially placed in a regular classroom for kindergarten until

behavioral issues led to the creation of a BIP, to which H.W. “initially

responded well.” (Id. ¶¶ 25-27.) When his behavior regressed, his

school created a new BIP for use in the 2014-15 school year. (Id. ¶ 35.)

(It is this BIP that Plaintiffs allege Defendants violated with the

seclusion room.) There is no allegation that Brattain was dissatisfied

with BOE’s treatment of H.W. prior to the 2014-15 school year and the

seclusion room.

504 of the Rehabilitation Act of 1973 and is brought against all

Defendants. (Doc. 8 ¶¶ 108-116.) The factual basis for this cause

of action is the same as the others. Defendants have not moved to

dismiss this claim, except insofar as it is included in their

contention that the official-capacity claims against Goodman,

Batchelor, and Hayes are duplicative of the claim against BOE.

For the reasons stated above, Defendants are correct, and the

official-capacity claims against these three Defendants will be

dismissed. In so doing, the court renders no opinion on the merits

of this claim.

C. North Carolina State Claims

1. Intentional Infliction of Emotional Distress

Plaintiffs bring a claim of intentional infliction of

emotional distress against each of the five individual Defendants

in their individual capacities. (Doc. 8 ¶¶ 99-103.)

In North Carolina, the tort of intentional infliction of

emotional distress requires proof of “(1) extreme and outrageous

conduct, (2) which is intended to cause and does cause (3) severe

emotional distress to another.” Dickens v. Puryear, 276 S.E.2d

325, 335 (N.C. 1981). The tort can also exist where the

defendant’s actions indicate a reckless indifference to the

possibility of severe emotional distress. Id. “Extreme and

outrageous conduct” exists “when a defendant’s conduct exceeds all

bounds usually tolerated by decent society.” Watson v. Dixon, 502

S.E.2d 15, 19 (N.C. App. 1998), aff’d, 532 S.E.2d 175 (N.C. 2000)

(citation omitted). “Severe emotional distress” means “any

emotional or mental disorder, such as, for example, neurosis,

psychosis, chronic depression, phobia, or any other type of severe

and disabling emotional or mental condition which may be generally

recognized and diagnosed by professionals trained to do so.”

Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 395 S.E.2d

85, 97 (N.C. 1990).

Once again, Defendants do not address Tucker and Morgan in

their motion to dismiss. Accordingly, the court makes no

determination as to them.11

Defendants Goodman, Hayes, and Batchelor argue that they are

entitled to public official immunity for Brattain’s intentional

infliction of emotional distress claim. (Doc. 14 at 18-21.) But

public official immunity is not a defense to an intentional tort.

Hawkins v. State, 453 S.E.2d 233, 242 (N.C. App. 1995) (affirming

the denial of a motion to dismiss and noting that “[b]ecause malice

encompasses intent . . . if a party alleges an intentional tort

claim, the doctrine of qualified immunity does not immunize public

officials or public employees from suit in their individual

capacities.”); Wells v. N.C. Dep’t of Correction, 567 S.E.2d 803,

11 Plaintiffs’ alternative claim for negligent infliction of emotional

distress against Morgan and Tucker in their individual capacities (Doc.

8 ¶¶ 104-107) is similarly not challenged at this time.

813 (N.C. App. 2002) (“[I]f the plaintiff alleges an intentional

tort claim . . . neither a public official nor a public employee

is immunized from suit in his individual capacity.”). Public

official immunity is therefore not a defense to this claim.

Turning to the merits, the court finds that Brattain has

stated a claim for intentional infliction of emotional distress as

to Goodman. Plaintiffs allege that the seclusion room was

“employed at [Goodman’s] direction to limit destruction of

property within his office.” (Doc. 8 ¶ 53.) This was in direct

violation of H.W.’s BIP, BOE policy, and state law. (Id. ¶¶ 38-

40, 60.) Goodman’s alleged actions evince at least a reckless

disregard for the possibility of causing severe emotional

distress. And Plaintiffs allege that, as a consequence, H.W. has

been diagnosed with PTSD and requires medication and ongoing

therapy by medical providers. (Doc. 8 ¶¶ 68, 83, 103.)

Accordingly, Plaintiffs have stated a plausible claim as to

Goodman.

The same cannot be said for Hayes and Batchelor. Like

Brattain’s § 1983 claim, the complaint pleads no facts suggesting

that either Hayes or Batchelor knew about, condoned, or otherwise

participated in the use of the seclusion room. And both appear to

have taken steps to prohibit its use after they found out about

it, as evidenced by a modified behavioral plan after the September

18, 2014 meeting “that provided a variety of ‘safe time out areas

[that] would be in Minor Plaintiff’s best interest.’” (Doc. 8

¶ 56.) There are no allegations that the seclusion room continued

after this meeting. Even assuming that Hayes and Batchelor could

have subsequently removed H.W. from Morgan and Tucker’s classroom,

the failure to do so does not rise to “extreme and outrageous

conduct” required for an intentional infliction of emotional

distress claim. Cf. Sauers, 179 F. Supp. 3d at 553 (allegations

of bullying by school officials do not “show conduct that goes

beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community” as

required under North Carolina law) (quotations and citation

omitted). Accordingly, Defendants’ motion to dismiss Brattain’s

intentional infliction of emotional distress claim as to Hayes and

Batchelor will be granted.

2. North Carolina Constitution

Finally, and in the alternative, Plaintiffs allege that

Defendants’ actions violated Article I, Sections 1, 15, and 19 of

the North Carolina Constitution. (Doc. 8 ¶¶ 117-120.) They bring

this claim as to all Defendants.

As to the individual Defendants, “it is a matter of

‘fundamental jurisprudence the [North Carolina] Constitution

itself does not recognize or create rights which may be asserted

against individuals.’” Sauers, 179 F. Supp. 3d at 558 (quoting

Corum v. Univ. of N.C., 413 S.E.2d 276, 292–93 (N.C. 1992).

Accordingly, the court will dismiss this claim as to the individual

Defendants.

As to BOE, Brattain can only bring a direct claim under the

North Carolina Constitution if there is no adequate state-law

remedy available to provide relief. See Edwards v. City of

Concord, 827 F. Supp. 2d 517, 521 (M.D.N.C. 2011) (“To assert a

direct constitutional claim . . . a plaintiff must allege that no

adequate state remedy exists to provide relief for the injury.”

(quoting Copper v. Denlinger, 688 S.E.2d 426, 428 (N.C. 2010)).

Direct constitutional claims “protect a plaintiff’s right to

redress when doctrines like sovereign immunity preclude the

possibility of common law remedies.” Swick, 2012 WL 3780350, at

*31 (citing Craig v. New Hanover Cnty. Bd. of Educ., 678 S.E.2d

351, 355 (N.C. 2009)).

Here, the court has denied Defendants’ assertion of public

official immunity for the North Carolina tort claim of intentional

infliction of emotional distress and is permitting the claim to go

forward as to Defendants Goodman, Morgan, and Tucker. In other

words, Brattain is able to “enter the courthouse doors and present

[her] claim.” See id. Because she has adequate state remedies

available, the court will dismiss her claims under the North

Carolina Constitution.

D. Punitive Damages

Finally, Plaintiffs’ amended complaint seeks punitive

damages. (Doc. 8 at 25 ¶ 2.) Defendants move to dismiss claims

for such relief on the grounds that punitive damages are not

available against a municipal government or against individuals to

the extent the allegations amount to negligence.12 (Doc. 16 at 10-

11.)

Based on the foregoing, the only remaining claims are a

Rehabilitation Act claim against BOE and several claims against

individual Defendants in their individual capacities. As to the

Rehabilitation Act claim against BOE and all five individual

Defendants, punitive damages may not be awarded in suits brought

under § 504 of the Rehabilitation Act. Barnes v. Gorman, 536 U.S.

181, 189 (2002).

As to the Fourteenth Amendment § 1983 claims, Defendants are

correct that neither municipalities nor officials sued in their

official capacity are liable for punitive damages under § 1983.

See Iglesias v. Wolford, 539 F. Supp. 2d 831, 841 (E.D.N.C. 2008).

However, the only remaining § 1983 claims are against Defendants

Goodman, Morgan, and Tucker in their individual capacities.

Punitive damages may be awarded in a § 1983 action against

individual public officials where the defendant’s conduct is shown

12 While not technically a “claim,” other courts have dismissed a

plaintiff’s request for punitive damages at the motion to dismiss stage

where the defendant has properly moved for dismissal and where dismissal

is otherwise appropriate. See, e.g., Iglesias v. Wolford, 539 F. Supp.

2d 831, 841 (E.D.N.C. 2008); Googerdy v. N.C. Agr. & Tech. State Univ.,

386 F. Supp. 2d 618, 625 (M.D.N.C. 2005).

to be “motivated by evil motive or intent, or when it involves

reckless or callous indifference to the federally protected rights

of others.” Smith v. Wade, 461 U.S. 30, 56 (1983); Johnson v.

City of Fayetteville, 91 F. Supp. 3d 775, 817 (E.D.N.C. 2015).

This threshold applies even where the underlying standard of

liability for compensatory damages is one of recklessness. Smith,

461 U.S. at 56. Here, Plaintiffs allege that Defendants’ placement

of H.W. in the “bad room” “shocked[ed] the conscience” and was

“inspired by malice [and] corruption.” (Doc. 8 ¶ 98.) These

allegations, along with the facts alleged, are sufficient to state

a claim at this early stage. It will be up to the factfinder to

determine if the individual Defendants are liable and, if so, if

their actions merit punitive damages.

As to the individual-capacity intentional infliction of

emotional distress claims as to Defendants Goodman, Morgan, and

Tucker, punitive damages are available in an intentional

infliction of emotional distress claim because a required element

for such a claim is “extreme and outrageous conduct,” which

satisfies the necessary aggravating factor. See Watson v. Dixon,

511 S.E. 2d 37, 41 (N.C. App. 1999), aff’d, 532 S.E.2d 175 (N.C.

2000); N.C. Gen. Stat. § 1D-15. Here, too, Plaintiffs allege that

Defendants’ actions “were extreme and outrageous and exceed all

bounds usually tolerated by decent society.” (Doc. 8 ¶ 100.)

Again, it would be up to the factfinder to determine liability and

decide whether punitive damages are available in this instance.

Accordingly, the court will dismiss Plaintiffs’ request for

punitive damages as to the Rehabilitation Act claims but otherwise

deny Defendants’ motion to dismiss punitive damages as to the other

remaining claims.

III. CONCLUSION

For the reasons stated above,

IT IS THEREFORE ORDERED that Defendants’ motion to dismiss

(Doc. 13) is GRANTED IN PART AND DENIED IN PART as follows:

1. Defendants’ motion to dismiss Plaintiffs’ Section 1983

Fourteenth Amendment claim as to Defendants Hayes, Batchelor, and

BOE is GRANTED, and those claims are DISMISSED.

2. Defendants’ motion to dismiss Plaintiffs’ intentional

infliction of emotional distress claim as to Defendants Hayes and

Batchelor is GRANTED, and those claims are DISMISSED.

3. Defendants’ motion to dismiss Plaintiffs’ claims under

the North Carolina Constitution as to all Defendants is GRANTED,

and those claims are DISMISSED.

4. Defendants’ motion to dismiss claims for punitive

damages is GRANTED as to the remaining Rehabilitation Act claims.

5. Defendants’ motion to dismiss is otherwise DENIED. As

a result, the following claims will proceed: Plaintiffs’ Section

1983 Fourteenth Amendment claim as to Defendants Goodman, Tucker,

and Morgan (except as to official-capacity claims against the

individual Defendants); Plaintiffs’ claim under the Rehabilitation

Act of 1973 as to all Defendants (except as to official-capacity

claims against the individual Defendants); Plaintiffs’ claim for

intentional infliction of emotional distress as to Goodman,

Tucker, and Morgan; and Plaintiffs’ claim for negligent infliction

of emotional distress as to Tucker and Morgan.

/s/ Thomas D. Schroeder

United States District Judge

October 28, 2020