JORDAN v. CHATHAM COUNTY SCHOOLS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ABIGAIL JORDAN and BERTA )

JORDAN, individually, )

)

Plaintiffs, )

)

v. ) 1:22-CV-12

)

CHATHAM COUNTY BOARD OF )

EDUCATION; DAN BARNWELL; )

G. DOE (a minor); M. DOE )

(a minor); GYM TEACHER DOE A; )

GYM TEACHER DOE B; DOES 1 )

through 20, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court is a Motion to Dismiss Amended Complaint

filed by Defendant Chatham County Board of Education

(“Chatham”). (Doc. 21.) For the reasons stated herein, Chatham’s

motion will be granted in part and denied in part.

I. FACTUAL BACKGROUND

On a motion to dismiss, a court must “accept as true all of

the factual allegations contained in the complaint.” Ray v.

Roane, 948 F.3d 222, 226 (4th Cir. 2020) (internal quotation

mark omitted) (quoting King v. Rubenstein, 825 F.3d 206, 212

(4th Cir. 2016)). The facts, taken in the light most favorable

to Plaintiffs, are as follows.

Plaintiffs Abigail (“Abigail”) and Berta (“Berta”) Jordan

are sisters who attended the Bennett School in the Chatham

County Public School System from 2012 to 2019. (Am. Compl.

(Doc. 20) ¶ 23.)1 Both were “excellent students with above-

average grades,” and Abigail “has been mentioned in the local

newspaper for being an outstanding honor roll student.” (Id.

¶ 24.)

Berta has Asperger’s syndrome, a condition on the autism

spectrum, which caused her to be “bullied by her peers at

Bennett from her first day at the school in 2012.” (Id. ¶¶ 25–

26.) Bennett’s staff were aware of Berta’s Asperger’s syndrome

“for the entirety of her enrollment at Bennett.” (Id. ¶ 25.)

Specifically, two students “regularly bullied [Berta] on the

basis of [her] autism” by taking turns “preventing [Berta] from

using the bathroom to such an extent that [Berta] would soil the

clothes she was wearing.” (Id. ¶¶ 27–28.) “This behavior

occurred so often that [Berta’s mother] would sometimes have to

come to the school several times per week in order to provide

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

[Berta] with new clothes.” (Id. ¶ 28.) One of these alleged

bullies is the daughter of Defendant Dan Barnwell (“Defendant

Barnwell”), the Principal of Bennett during the 2017-2018 School

Year. (Id. ¶¶ 8, 27.) “Over the course of several years,”

Berta’s mother spoke “weekly . . . with [Defendant] Barnwell, in

his role as the school principal, about his daughter’s bullying

behavior toward [Berta],” but Defendant Barnwell “did nothing to

help” Berta or her mother. (Id. ¶ 29.)

During physical education class on September 11, 2017,

Berta “was pushed to the floor.” (Id. ¶ 30.) As her sister

Abigail went over to help Berta sit on a bench, Defendant G.

Doe, a boy in the class, approached Abigail and “hit her with a

ball in the head . . . in a repetitious manner five (5) or six

(6) times, without the ball ever leaving his hand.” (Id.) At the

time this incident occurred, G. Doe was “under suspension” and

“should have never been allowed to be in the PE class.” (Id.

¶ 31.) Both Plaintiffs were affected by this incident. Berta was

“left with large bruises” from being pushed to the floor, and

Abigail was diagnosed with a concussion after she “felt sick to

her stomach and had neck pain” for days after the incident. (Id.

¶¶ 32, 33.) During the 2017-2018 School Year, Defendant Gym

Teacher Doe A (“Gym Teacher Doe A”) was a gym teacher at

Bennett. (Id. ¶ 9.)

Plaintiffs’ mother “was never informed of the September

2017 incident by the school, but instead had to be told by other

parents.” (Id. ¶ 34.) On September 15, 2017, Plaintiffs’ mother

“had a phone call with Tracy Fowler, Executive Director of

Student Services at [Chatham] to discuss the September 2017

Incident.” (Id. ¶ 35.) During this phone call, Plaintiffs’

mother “mentioned the ongoing bullying against [Berta]. No

action was taken as a result of this phone call.” (Id.) On

September 19, 2017, Plaintiffs’ mother met with Barnwell and

Fowler to discuss the incident. (Id. ¶ 36.) Barnwell informed

Plaintiff’s mother that there was video footage of the incident

but denied Plaintiffs’ mother’s request to see the footage.

(Id.) Barnwell also denied Plaintiffs’ mother’s request to speak

with the gym teacher about the incident. (Id.) Plaintiffs allege

that this “effectively shielded [their mother] from all evidence

of what had happened.” (Id.) During this September 19 meeting,

Plaintiffs’ mother “again raised the issue of systematic

bullying at Bennett School against [Berta],” but “[a]gain,

nothing was done to help [Berta].” (Id. ¶ 37.)

After the September 11, 2017, incident, Plaintiffs “no

longer felt safe” at Bennett School. (Id. ¶ 39.) “As a result,

[Plaintiffs’ mother] made the difficult decision to homeschool

[Plaintiffs] for approximately five months from September 2017,

until February 2018.” (Id. ¶ 40.) “Based on the September 2017

incident, and other similarly outrageous incidents,” Defendant

Barnwell resigned from his position as Bennett’s principal in

early 2018. (Id. ¶ 38.)

In January 2019, “again during PE class,” Defendant M. Doe,

another student, “was standing less than ten feet away from

[Abigail]2 when he slammed the ball in her left temple.” (Id.

¶ 41.) “The impact of the hit was so severe, that [Abigail] does

not remember being hit,” and video footage accessed by

Plaintiffs’ mother shows Abigail “trying to walk, and then

tumbling to the floor.” (Id. ¶ 42.) During the 2018-2019 School

Year, Defendant Gym Teacher Doe B (“Gym Teacher Doe B”) was a

gym teacher at Bennett. (Id. ¶ 10.)

As a result of this incident, Abigail was diagnosed with “a

severe concussion and damage to the C-2 to C-7 vertebrae in her

neck and upper back,” as well as “post-concussion syndrome.”

(Id. ¶ 43–44.) Abigail’s post-concussion syndrome has had “a

severe negative impact[]” on her vision, “including, but not

limited to, diminishing vision and eye coordination” causing her

2 The amended complaint states that “classmate M. DOE was

standing less than ten feet away from her when he slammed the

ball . . . .” (Am. Compl. (Doc. 20) ¶ 41 (emphasis added).) This

allegation does not specify which Plaintiff was hit by M. Doe,

however, based on context and other allegations, this court

assumes that “her” refers to Abigail.

to suffer from double vision, resulting in “continuous motion

sickness and constant migraine headaches to the extent that she

must take migraine medication,” and her “ability to read has

been jeopardized.” (Id. ¶¶ 45–46.) Abigail also has “difficulty

with her vestibular system,” which is “essential to normal

movement and equilibrium.” (Id. ¶ 45.)

“The cost of necessary treatment and therapies stemming

from [Abigail’s] injuries from the January 2019 incident has

reached several thousand dollars.” (Id. ¶ 47.) Additionally,

Abigail “now needs special accommodations to continue school,”

and “was unable to continue her early college program. Had she

not been injured, [Abigail] would have finished her early

college program, [and] would have started college.” (Id. ¶ 48.)

After the 2017 and 2019 incidents, Chatham “failed to provide

accommodations to [Plaintiffs],” stating that “they did not have

a qualified teacher in the building.” (Id. ¶ 49.) Further,

Chatham “failed to follow the IEP that was in place” for

Plaintiffs.” (Id. ¶ 50.) “As a result of their experiences at

Bennett,” Plaintiffs “both suffer from severe depression,” and

Abigail “has also lost more than 30 lbs. since January of 2019.”

(Id. ¶ 51.)

Plaintiffs bring thirteen total claims against Defendants,

including Chatham and various Bennett employees: Defendant

Barnwell, Gym Teacher Doe A, Gym Teacher Doe B, and Does 1-20

(“Doe Defendants”)3 (collectively “Chatham Employees”). Two

individual Doe Defendants, identified as G. Doe and M. Doe, are

minor children identified as parties in the Amendment Complaint,

(Am. Compl. (Doc. 20) ¶¶ 3, 4), and are named defendants in the

Third and Fourth Causes of Action, (id. at 18–23), the Seventh,

Eighth, Ninth, and Tenth Causes of Action, (id. at 28, 30, 32,

33). G. Doe and M. Doe are not included as Doe Defendants in

this opinion, as they are currently unknown and unserved.

Plaintiffs’ individual causes of action are somewhat

confusingly pled. For example, the First Cause of Action,

brought pursuant to Title II of the Americans with Disabilities

Act, has a subtitle of “Against Defendant Chatham.” (Id. at 11.)

Plaintiffs allege that Berta “suffered as a direct and proximate

result of Defendant’s unlawful discrimination,” (id. ¶ 62),

which appears to contend Defendant Chatham acted unlawfully.

However, in the prayer for relief, Plaintiff prays for “judgment

against Defendants and in favor of Plaintiff,” (id.), suggesting

that Plaintiff may be seeking relief under the First Cause of

Action against all Defendants. The same potential confusion

arises under the Second Cause of Action. (See id. at 14–18.)

3 Doe Defendants are individuals employed by Chatham during

all times relevant to this litigation, whose names and job

titles are currently unknown. (Id. ¶ 11.)

This court finds that the prayer for relief as to each

individual cause of action is not sufficient to modify the

substantive allegations of the language in the cause of action,

and therefore the First and Second Cause of Action allege

violations as to Defendant Chatham only.

Plaintiffs allege that Chatham’s action violated Title II

of the Americans with Disabilities Act (“ADA”), as well as

Section 504 of the Rehabilitation Act. (Id. ¶¶ 55–72; “Claims I

and II.”) Claims V and VI allege negligence against Chatham,

Defendant Barnwell, Doe Defendants, Gym Teacher Doe A (Claim V),

and Gym Teacher Doe B (Claim VI), for the 2017 (Claim V) and

2019 (Claim VI) gym incidents, with regard to Abigail.

(Id. ¶¶ 91–111.) Claims XI and XII allege negligent infliction

of emotional distress against Chatham, Defendant Barnwell, Doe

Defendants, Gym Teacher Doe A (Claim XI), and Gym Teacher Doe B

(Claim XII), for the 2017 (Claim XI) and 2019 (Claim XII) gym

incidents, with regard to Berta, for witnessing Abigail’s

bullying. (Id. ¶¶ 136-147.) Claim XIII alleges negligent

infliction of emotional distress against Chatham, Defendant

Barnwell, Doe Defendants, Gym Teacher Doe A, and Gym Teacher Doe

B, with regard to Abigail, for witnessing Berta’s bullying. (Id.

¶¶ 148-152.)

II. PROCEDURAL HISTORY

This suit was initially filed by Plaintiffs’ mother as

guardian ad litem for Plaintiffs on January 10, 2022. (Compl.

(Doc. 1) at 1.) Chatham moved to dismiss on November 14, 2022

(Doc. 17), and supported this motion with a brief, (Doc. 18),

and three exhibits, including Plaintiffs’ birth certificates,

(Doc. 17-1), an affidavit by the records custodian for the North

Carolina School Boards Trust, (Doc. 17-2), and an affidavit by

Chatham’s Chief Finance Officer, (Doc. 17-3).

Plaintiffs filed an amended complaint, (Doc. 20), on

December 5, 2022, and Chatham again moved to dismiss, (Docs. 21,

22). Chatham’s second motion to dismiss and its supporting brief

did not include the three exhibits attached to its first motion

to dismiss, but these exhibits are incorporated by reference in

Chatham’s motion to dismiss and its supporting brief. (See

Chatham County Board of Education’s Mot. to Dismiss Am. Compl.

(Doc. 21) at 2; Mem. of Law in Supp. of Chatham County Board of

Education’s Mot. to Dismiss Am. Compl. (“Chatham’s Br.”) (Doc.

22) at 10.) Plaintiffs filed a response, (Doc. 27), on February

8, 2023, and Chatham filed a reply, (Doc. 28), on February 22,

2023. Chatham’s second motion to dismiss, (Doc. 21), is now ripe

for ruling.

III. STANDARDS OF REVIEW

A. 12(b)(1) and 12(b)(2)

Under Rule 12(b)(1), a party may seek dismissal based on

the court’s “lack of subject-matter jurisdiction.” Fed. R. Civ.

P. 12(b)(1). Subject-matter jurisdiction is a threshold issue

that relates to the court’s power to hear a case, and must be

decided before a determination on the merits of the case.

Constantine v. Rectors & Visitors of George Mason Univ., 411

F.3d 474, 479–80 (4th Cir. 2005). A motion under Rule 12(b)(1)

raises the question of “whether [the plaintiff] has a right to

be in the district court at all and whether the court has the

power to hear and dispose of [the] claim.” Holloway v. Pagan

River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012).

The burden of proving subject matter jurisdiction rests with the

plaintiff. McNutt v. Gen. Motors Acceptance Corp. of Indiana,

298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219

(4th Cir. 1982). When evaluating a Rule 12(b)(1) motion to

dismiss, a court “may consider evidence outside the pleadings,

and should grant the motion “only if the material jurisdictional

facts are not in dispute and the moving party is entitled to

prevail as a matter of law.” Richmond, Fredericksburg & Potomac

R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

A defendant may challenge subject-matter jurisdiction

facially or factually. See Kerns v. United States, 585 F.3d 187,

192 (4th Cir. 2009). In a facial challenge, a defendant asserts

that the allegations, taken as true, are insufficient to

establish subject-matter jurisdiction. See id. The court then

effectively affords a plaintiff “the same procedural protection

as he would receive under a Rule 12(b)(6) consideration,” taking

the facts as true and denying the Rule 12(b)(1) motion if the

complaint “alleges sufficient facts to invoke subject matter

jurisdiction.” Id. (quoting Adams, 697 F.2d at 1219). In a

factual challenge, a defendant asserts that the jurisdictional

allegations are false, and the court may look beyond the

complaint to resolve the disputed jurisdictional facts without

converting the motion to one for summary judgment. Id. at 192–

93. However, where the Eleventh Amendment bar has been asserted

by a party, that party has the burden of proving that it is

entitled to immunity. Hutto v. S.C. Ret. Sys., 773 F.3d 536, 543

(4th Cir. 2014).

B. 12(b)(6)

To survive a Rule 12(b)(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)). A claim is plausible on its

face “when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is

liable for the misconduct alleged” and demonstrates “more than a

sheer possibility that a defendant has acted unlawfully.” Id.

When ruling on a motion to dismiss, this court accepts the

complaint’s factual allegations as true. Id. Further, this court

liberally construes “the complaint, including all reasonable

inferences therefrom . . . in the plaintiff’s favor.” Est. of

Williams-Moore v. All. One Receivables Mgmt., Inc., 335 F. Supp.

2d 636, 646 (M.D.N.C. 2004). This court does not, however,

accept legal conclusions as true, and “[t]hreadbare recitals of

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

statements, do not suffice.” Iqbal, 556 U.S. at 678.

Generally, in resolving a Rule 12(b)(6) motion to dismiss,

“a district court cannot consider matters outside the pleadings

without converting the motion into one for summary judgment.”

Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013)

(citing Fed. R. Civ. P. 12(d)). The court can, however, properly

consider “documents attached to the complaint, as well as those

attached to the motion to dismiss, so long as they are integral

to the complaint and authentic.” Philips v. Pitt Cnty. Mem’l

Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citation omitted). As

is the case before this court, “when the plaintiff attaches or

incorporates a document upon which his claim is based,” and

contradictions or inconsistencies exist between the complaint

and any attached or incorporated documents, “crediting the

document over conflicting allegations in the complaint is

proper.” Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 167

(4th Cir. 2016). Neither party has challenged the authenticity

of the exhibits attached to Chatham’s first motion to dismiss,

(Docs. 17-1, 17-2, 17-3), therefore this court will consider

them in ruling on Chatham’s motion to dismiss.

IV. ANALYSIS

A. ADA and Rehabilitation Act Claims

Plaintiffs first allege that Chatham violated Title II of

the ADA, 42 U.S.C. § 12132, and Section 504 of the

Rehabilitation Act, 29 U.S.C. § 794, by denying Berta reasonable

accommodations for her Asperger’s syndrome in the form of

failing to prevent her from being bullied by classmates. (Am.

Compl. (Doc. 20) ¶¶ 55–72.) Defendants move to dismiss these

claims, arguing that Plaintiffs have failed to state a claim

under both Title II and Section 504. (Chatham’s Br. (Doc. 22) at

11.)

Title II of the ADA provides that “no qualified individual

with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C.

§ 12132. Similarly, Section 504 of the Rehabilitation Act

provides that “[n]o otherwise qualified individual with a

disability in the United States . . . shall, solely by reason of

her or his disability, be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination under

any program or activity receiving Federal financial assistance.”

29 U.S.C. § 794(a).

“To the extent possible, [courts] construe the ADA and

Rehabilitation Act to impose similar requirements. Thus, despite

the different language these statutes employ, they require a

plaintiff to demonstrate the same elements to establish

liability.” Halpern v. Wake Forest Univ. Health Scis., 669 F.3d

454, 461 (4th Cir. 2012) (internal citations omitted). To bring

a claim under either statute, a plaintiff must establish: “(1)

they have a disability; (2) they are otherwise qualified to

receive the benefits of a public service, program, or activity;

and (3) they were denied the benefits of such service, program,

or activity, or otherwise discriminated against, on the basis of

their disability.” Nat’l Fed’n of the Blind v. Lamone, 813 F.3d

494, 503 (4th Cir. 2016).

To state a claim against an entity for “student-on-student”

harassment or bullying under ADA Title II and Section 504, a

plaintiff must show that (1) she was an individual with a

disability, harassed by fellow students based on her disability;

(2) “the disability-based harassment was sufficiently ‘severe,

pervasive, and objectively offensive’ that it effectively

deprived [her] of ‘access to educational benefits and

opportunities’ at school;” and (3) “the school knew about the

disability-based student-on-student harassment and was

deliberately indifferent to it.” S.B. ex rel. A.L. v. Bd. of

Educ. of Harford Cnty., 819 F.3d 69, 75–76 (4th Cir. 2016)

(citing Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 649–50

(1999); Est. of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d

982, 996 (5th Cir. 2014); S.S. v. E. Kentucky Univ., 532 F.3d

445, 454 (6th Cir. 2008)).

The bar for “deliberate indifference” is high: “a school

may not be held liable under . . . § 504 for what its students

do, but only for what is effectively ‘an official decision by

[the school] not to remedy’ student-on-student harassment.” S.B.

ex rel. A.L., 819 F.3d at 76–77 (quoting Davis, 526 U.S. at

642). “Thus, it is not enough that a school has failed to

eliminate student-on-student harassment, or to impose the

disciplinary sanctions sought by a victim. . . . Instead, a

school will be liable for student-on-student harassment only

where its ‘response . . . or lack thereof is clearly

unreasonable in light of the known circumstances.’” Id. at 77

(quoting Davis, 526 U.S. at 648).

Plaintiffs allege that Berta was “denied reasonable

accommodations for her disability” in violation of Title II and

Section 504 in two ways. (Am. Compl. (Doc. 20) ¶¶ 61, 71.)

First, Plaintiffs allege that Berta was “severely bullied,”

often publicly, “by her classmates because of her disability.”

(Id.) Plaintiffs also allege that school employees were aware of

this bullying because Berta’s mother “had to come to the school

on a weekly basis to provide a change of clothes” for her when

her classmates would bully her by preventing her from using the

bathroom, “forcing her to soil her clothes.” (Id.) Additionally,

Berta’s mother “attempted to address the bullying of [Berta]

with Barnwell on a weekly basis,” but “[d]espite being aware of

the situation, [Chatham], through its employees, did nothing to

protect [Berta] and did not undertake any actions to curb the

bullying.” (Id.) Second, Plaintiffs allege that Berta was

“singled [out] because of her disability when she was viciously

pushed to the ground by a classmate” on September 11, 2017.

(Id.) Again, Plaintiffs allege that “[d]espite being aware of

[Berta’s] propensity to be bullied, [Chatham], through its

employees, did nothing to prevent this incident and did not

undertake any action afterward to prevent it from happening

again.” (Id.)

Plaintiffs clearly allege that Berta was an individual with

a disability, specifically, Asperger’s syndrome, and that she

was harassed and bullied by classmates because of her

Asperger’s. (Id. ¶¶ 25–27; see also id. ¶ 57 (“Asperger’s

syndrome often causes [Berta] to behave in a manner that is

considered unusual. This behavior in turn often causes [Berta]

to be bullied by her peers.”).) Plaintiffs’ allegations that

Berta’s bullies prevented her from using the restroom at school

to the point where she regularly soiled her clothing, (id.

¶ 28), is certainly harassment that is sufficiently “severe,

pervasive, and objectively offensive” such that Berta was

deprived of educational opportunities and benefits at school.

Though sparse, Plaintiffs’ allegations regarding Chatham’s

knowledge that Berta was bullied because of her Asperger’s

syndrome are sufficient to warrant an inference that Chatham may

have been deliberately indifferent to the harassment and

bullying Berta faced. Plaintiffs allege that one of Berta’s

regular bullies was the daughter Defendant Dan Barnwell, the

Bennett School principal, (id. ¶¶ 27, 28), and Plaintiffs allege

that their mother spoke with Barnwell in his capacity as

principal “weekly . . . about his daughter’s bullying behavior

toward [Berta],” (id. ¶ 29.) Plaintiffs further allege that

Barnwell

informed [Plaintiffs’ mother] that there existed video

footage of [the September 2017 incident]. However,

[Plaintiffs’ mother’s] request to see it was denied by

Barnwell. Barnell also refused to allow [Plaintiffs’

mother] to speak with the gym teacher about the

September 2017 Incident. In doing so, Barnwell

effectively shielded [Plaintiffs’ mother] from all

evidence of what had happened.

(Id. ¶ 36.) During that same meeting, Plaintiffs allege that

their mother “again raised the issue of systematic bullying at

Bennett School against [Berta],” but nothing was done to help

Berta. (Id. ¶ 37.) From these facts, particularly considering

the allegation that one of Berta’s primary bullies was the

school principal’s child, and that the nature of Berta’s

bullying was that so severe that she routinely soiled her

clothing and the school was aware of this, it is reasonable for

this court to infer that Chatham’s “response . . . or lack

thereof [was] clearly unreasonable in light of the known

circumstances.” S.B. ex rel. A.L., 819 F.3d at 77. For these

reasons, this court finds that Plaintiffs have plausibly alleged

facts stating a claim to relief under ADA Title II and Section

504 of the Rehabilitation Act. Therefore, Chatham’s motion to

dismiss Claims I and II of the complaint must be denied.

B. State Law Claims Against Chatham

Plaintiffs allege state law claims for negligence and

negligent infliction of emotional distress against Chatham. (Am.

Compl. (Doc. 20) at 26, 28, 35, 37, 39 (Fifth, Sixth, Eleventh,

Twelfth, and Thirteenth Causes of Action).) Chatham argues that

Plaintiffs’ state law tort claims should be dismissed under Rule

12(b)(1) because Chatham is entitled to governmental immunity.

(Chatham’s Br. (Doc. 22) at 9–11.) Plaintiffs allege that

Chatham has waived its governmental immunity4 from tort claims

“by obtaining liability insurance for the negligence of torts of

its agents or employees” pursuant to N.C. Gen. Stat. § 115C-42.

(Am. Compl. (Doc. 20) ¶¶ 6-7.) Chatham argues that it has not

waived immunity because it has only “elected to participate in

the North Carolina School Boards Trust,” and has not otherwise

4 Though the parties use the phrases “sovereign immunity”

and “governmental immunity” interchangeably, (see Am. Compl.

(Doc. 20) ¶¶ 6–7; Chatham’s Br. (Doc. 22) at 9–11; Pls.’ Resp.

in Opp. to Def. Chatham County Board of Education’s Mot. to

Dismiss Am. Compl. (“Pls.’ Resp.”) (Doc. 27) at 3; Reply in

Supp. of Chatham County Board of Education’s Mot. to Dismiss Am.

Compl. (“Chatham’s Reply”) (Doc. 28) at 2), “[i]t is well

settled that a local school board is not ‘the State of North

Carolina’ for ordinary legal purposes. There is a difference

between the State and state agencies — which possess sovereign

immunity — and local government entities such as local school

boards — which possess only governmental immunity, not sovereign

immunity,” Devore for Horton v. Samuel, 287 N.C. App. 24, 27,

882 S.E.2d 389, 392 (2022) (citing State ex rel. Stein v.

Kinston Charter Acad., 379 N.C. 560, 886 S.E.2d 647 (2021)).

purchased any general liability insurance coverage. (Chatham’s

Br. (Doc. 22) at 10.)

“Under North Carolina law, a board of education is a

governmental agency and is ‘not ordinarily liable in a tort

action unless the board has waived its sovereign immunity.’”

G.D. by & through S.G. v. Kannapolis City Schs. Bd. of Educ.,

1:22-CV-1001, 2023 WL 3125342, at *6 (M.D.N.C. Apr. 27, 2023)

(quoting Herring v. Liner, 163 N.C. App. 534, 537, 594 S.E.2d

117, 119 (2004)). Pursuant to N.C. Gen. Stat. § 115C-42, “a

board may waive its sovereign immunity by securing liability

insurance that ‘actually indemnifies the board of education or

its employees.’” Id. “A coverage agreement with the North

Carolina School Boards Trust [NCSBT] ‘does not waive [sovereign]

immunity because the NCSBT does not qualify as liability

insurance under section 155C-42.’” Id. (quoting J.W. v. Johnston

Cnty. Bd. of Educ., No. 11-CV-707, 2012 WL 4425439, at *10

(E.D.N.C. Sept. 24, 2012) (collecting cases)).

By arguing that it has not purchased liability insurance

sufficient to constitute a waiver of sovereign immunity under

N.C. Gen. Stat. § 115C-42, Chatham makes a factual challenge to

subject-matter jurisdiction. Therefore, Chatham has the burden

of proving it is entitled to immunity, Hutto, 773 F.3d at 543,

and the court may look beyond the complaint to resolve the

disputed jurisdictional facts without converting the motion to

one for summary judgment. Kerns, 585 F.3d at 192–93.

Here, Chatham provides undisputed evidence that, though it

is a member of the NCSBT, it has not waived immunity. (See

Chatham’s Br. (Doc. 22) at 10.) Chatham’s agreement with the

NCSBT states that “the NCSBT Coverage Agreement expressly is not

considered a waiver of governmental immunity as provided in

N.C.G.S. § 115C-42.” (Doc. 17-2 at 4; Chatham’s Br. (Doc. 22) at

10 (emphasis added).) Further, Chatham’s Chief Finance Officer

attested in an affidavit that Chatham “has not purchased or

otherwise secured any liability insurance coverage or risk

protection for claims other than that which it has obtained by

virtue of its participation in the [NCSBT],” as well as that

Chatham “has not waived immunity from suit under N.C. Gen. Stat.

§ 115C-42 by purchasing or otherwise obtaining any contract or

policy of insurance[.]” (Doc. 17-3 at 1; Chatham’s Br. at 10.)

Plaintiffs do not respond to Chatham’s arguments and

evidence that it has not waived sovereign immunity by purchasing

liability insurance under N.C. Gen. Stat. § 115C-42. Because

Chatham’s proffered evidence reflects that it participates in

the NCSBT, which does not constitute a waiver of sovereign

immunity, and has not otherwise purchased any liability

insurance, this court finds that Chatham is entitled to

sovereign immunity as to Plaintiffs’ state law claims, therefore

Claims V, VI, XI, XII, and XIII must be dismissed as to Chatham.

C. State Law Claims Against Chatham Employees

Plaintiffs allege negligence and negligent infliction of

emotional distress against Chatham Employees: Defendant

Barnwell, Defendant Gym Teacher Doe A, Defendant Gym Teacher Doe

B, and Doe Defendants 1–20. (Am. Compl. (Doc. 20) ¶¶ 91-111,

136-152 (Claims V, VI, XI, XII, XIII).) This court must

determine whether Plaintiffs are suing Chatham Employees in

their individual or official capacities. When a plaintiff sues a

local government officer or employee in the person’s official

capacity, the plaintiff is in effect suing the government entity

that employs that individual. Meyer v. Walls, 347 N.C. 97, 110,

489 S.E.2d 880, 887 (1997). Thus, governmental immunity can be a

defense to a plaintiff’s tort claims against a person sued in

their official capacity. Mullis v. Sechrest, 347 N.C. 548, 555,

495 S.E.2d 721, 725 (1998) (teacher sued in his official

capacity was entitled to governmental immunity to the same

extent as local school board).

For state law claims, North Carolina jurisprudence requires

that a complaint specify whether a plaintiff sues a public

official or employee in their individual or official capacity.

White v. Trew, 366 N.C. 360, 364, 736 S.E.2d 166, 169 (2013);

Mullis, 347 N.C. at 552-53, 495 S.E.2d at 723-25; Brattain v.

Stanly Cnty. Bd. Of Educ., No. 19cv1037, 2020 WL 6364718, at *3

(M.D.N.C. Oct. 29, 2020); White v. City of Greensboro, 532 F.

Supp. 3d 277, 328 (M.D.N.C. 2021), on reconsideration in part,

586 F. Supp. 3d 466 (M.D.N.C. 2022). If the capacity in which a

defendant is sued is unclear, the court “must presume that the

defendant is being sued only in his official capacity.” White,

366 N.C. at 364, 736 S.E.2d at 169.

To determine whether a public official or employee is

being sued in their official or individual capacity,

Pleadings should indicate in the caption the capacity

in which a plaintiff intends to hold a defendant

liable. For example, including the words “in his

official capacity” or “in his individual capacity”

after a defendant’s name obviously clarifies the

defendant’s status. In addition, the allegations as to

the extent of liability claimed should provide further

evidence of capacity. Finally, in the prayer for

relief, plaintiffs should indicate whether they seek

to recover damages from the defendant individually or

as an agent of the governmental entity. These simple

steps will allow future litigants to avoid problems

such as the one presented to us by this appeal.

White, 366 N.C. at 364, 736 S.E.2d at 169; see also Brattain,

2020 WL 6364718, at *3; Thorpe v. Barrow, No. 15-CV-511, 2017 WL

3497551, at *3 (E.D.N.C. Aug. 15, 2017); Davis v. Matroo, No.

13-CV-00233, 2013 WL 5309662, at *3 (E.D.N.C. Sept. 19, 2013).

Plaintiffs’ caption names Defendants as “Chatham County

Board of Education, et. al.” (Am. Compl. (Doc. 20) at 1.) The

caption does not individually name the Defendants or include the

words “official capacity” or “individual capacity” with respect

to the individually named Defendants. (Id.)

The allegations in the amended complaint do not provide

clarity as to whether the Chatham Employees are being sued in

their individual or official capacity. The headings of each

cause of action brought against Chatham Employees do not state

in what capacity they are being sued, and Plaintiffs fail to

mention the words “individual capacity” anywhere in their

amended complaint.5

Turning to the relief sought, Plaintiffs seek actual

damages and an injunction against Defendant Barnwell, Defendant

Gym Teacher Doe A, Gym Teacher Doe B, and Doe Defendants 1-20.

(Id. at ¶¶ 98, 111, 141, 147, 152.) However, there are no

references in the prayer for relief that Defendants are being

sued in their individual capacities. (See id.)

5 Plaintiffs state in their response: “Defendants violation

of Plaintiff’s well established rights resulting in injury

support Plaintiff’s suit against the Defendants in both their

official and individual capacities.” (Pls.’ Resp. (Doc. 27) at

3.) However, North Carolina law is clear that Plaintiffs must

allege in their complaint whether they are suing Defendants in

their individual or official capacities. White v. Trew, 366 N.C.

360, 364, 736 S.E.2d 166, 169 (2013). See also Mullis v.

Sechrest, 347 N.C. 548, 554, 495 S.E.2d 721, 725–25 (1998) (“It

is a simple matter for attorneys to clarify the capacity in

which a defendant is being sued. Pleadings should indicate in

the caption the capacity in which a plaintiff intends to hold a

defendant liable. . . .”).

Because it is not clear whether Plaintiffs are suing

Defendant Barnwell, Defendant Gym Teacher Doe A, Defendant Gym

Teacher Doe B, and Doe Defendants 1-20 in their individual or

official capacities, this court must presume they are named in

their official capacity only. White, 366 N.C. at 364, 736 S.E.2d

at 169 (if clarity as to “the capacity in which a defendant is

being sued” “is lacking, we must presume that the defendant is

being sued only in his official capacity”) (citing Mullis, 347

N.C. at 552, 554, 495 S.E.2d at 723–25). In addition to the

presumption set forth in White, the language of the amended

complaint suggests official capacity state law claims. That

language includes, inter alia, “[a]s educators, the Defendants

had a duty to ensure that Abigail Jordan was educated in a safe

secure manner.” (Am. Compl. (Doc. 20) ¶¶ 92, 100, 149.) The

language used to establish the duty violated appears to refer to

an official capacity duty.

Official-capacity state law claims against an individual

are treated as actions against the governmental entity. Mullis,

347 N.C. at 554-55, 495 S.E.2d at 725 (“official-capacity suits

are merely another way of pleading an action against the

governmental entity”). As explained above, Chatham is entitled

to governmental immunity as to the state law claims in Claims V,

VI, XI, XII, and XIII. Chatham Employees, sued in their official

capacity, are entitled to governmental immunity on the same

state law claims. Therefore, Claims V, VI, XI, XII, and XIII

must be dismissed as to Defendant Barnwell, Defendant Gym

Teacher Doe A, Defendant Gym Teacher Doe B, and Doe Defendants

1-20.

Vv. CONCLUSION

For the foregoing reasons,

IT IS THEREFORE ORDERED that Chatham’s motion to dismiss,

(Doc. 21), is GRANTED IN PART and Claims V, VI, XI, XII, and XIII

are dismissed.

IT IS FURTHER ORDERED that Chatham’s motion to dismiss,

(Doc. 21), is DENIED IN PART as to Claims I and II and those

claims shall proceed.

This the 29th day of September, 2023.

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