# BRATTAIN v. STANLY COUNTY BOARD OF EDUCATION

> District Court, M.D. North Carolina · October 29, 2020

URL: https://www.frixlaw.com/law-library/cases/10253625

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** October 29, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253625

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253625. Public record. Not legal advice.