Myers v. Boardman Local School District Board of Education

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

SHELI MYERS, as guardian of M.M., a ) CASE NO. 4:21-cv-2048

minor, )

)

)

PLAINTIFF, ) JUDGE SARA LIOI

)

vs. ) MEMORANDUM OPINION

) AND ORDER

BOARDMAN LOCAL SCHOOL DISTRICT )

BOARD OF EDUCATION, et al., )

)

)

DEFENDANTS. )

Before the Court are (1) the motion of defendant Patricia Passarelli (“Passarelli”) to dismiss

pursuant to Fed. R. Civ. P. 12(b)(6) all of plaintiff Sheli Myers’ (“Myers”) claims against her (Doc.

No. 9); and (2) the motion of defendant Kieran Curl (“Curl”) for partial judgment on the pleadings

(as to the first and third claims) pursuant to Fed. R. Civ. P. 12(c) (Doc. No. 14).1 Myers filed a

brief in opposition to Passarelli’s motion. (Doc. No. 11.) Passarelli filed a reply in further support

of her motion. (Doc. No. 12.) Myers also filed a brief in opposition to Curl’s motion (Doc. No. 15)

and Curl filed a reply (Doc. No. 16). For the reasons set forth herein, Passarelli’s motion to dismiss

is granted in part and denied in part; Curl’s motion for judgment on the pleadings is granted. The

first and third claims in the complaint are dismissed as to all defendants, even the non-moving

defendant. The case will proceed as to the second, fourth, fifth, sixth, and seventh claims.

1 Any page number references herein will be to the consecutive page numbers applied to each individual document by

the electronic filing system, a citation practice recently adopted by this Court despite a different directive in the Initial

Standing Order for this case.

I. Procedural Background

On October 29, 2021, Myers filed her complaint for damages against the Boardman Local

School District Board of Education (the “Board”), Curl, and Passarelli, asserting the following

seven claims for relief (four federal claims and three state claims): (1) against Curl and Passarelli

under 42 U.S.C. § 1983 for excessive force and unlawful seizure in violation of the Fourth

Amendment; (2) against Curl and Passarelli under 42 U.S.C. § 1983 for denial of substantive due

process in violation of the Fourteenth Amendment; (3) against Curl and Passarelli under 42 U.S.C.

§ 1983 for denial of equal protection in violation of the Fourteenth Amendment; (4) against the

Board under 42 U.S.C. § 1983 for failure to train and supervise and for unconstitutional customs,

policies, and practices causing constitutional violations; (5) against Curl for assault and battery;

(6) against Curl for intentional infliction of emotional distress; and (7) against the Board and

Passarelli for wanton and reckless hiring, retention, and supervision. (See Doc. No. 1, Complaint.)

The Board filed its answer. (Doc. No. 10.) Curl filed her separate answer (Doc. No. 8) and,

two months later, filed her motion for partial judgment on the pleadings (Doc. No. 14). Passarelli

filed only her motion to dismiss, with no accompanying answer. (Doc. No. 9.)

II. Standard of Review

The standard for both a Rule 12(b)(6) motion and a Rule 12(c) motion is the same. E.E.O.C.

v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001) (citing Grindstaff v. Green, 133 F.3d

416, 421 (6th Cir. 1998)). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint

must plead facts sufficient to state a claim for relief that is plausible on its face. Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Although this pleading

standard does not require great detail, the factual allegations in the complaint “must be enough to

raise a right to relief above the speculative level[.]” Id. at 555 (citing authorities).

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“‘For purposes of a motion for judgment on the pleadings, all well-pleaded material

allegations of the pleadings of the opposing party must be taken as true, and the motion may be

granted only if the moving party is nevertheless clearly entitled to judgment.’” JPMorgan Chase

Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (quoting S. Ohio Bank v. Merrill Lynch,

Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973)). The Court, however, “need not

accept as true legal conclusions or unwarranted factual inferences.” Mixon v. Ohio, 193 F.3d 389,

400 (6th Cir. 1999) (citing Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)).

“The motion is granted when no material issue of fact exists and the party making the motion is

entitled to judgment as a matter of law.” Paskvan v. City of Cleveland Civil Serv. Comm’n, 946

F.2d 1233, 1235 (6th Cir. 1991) (citation omitted).

“In ruling on a Rule 12(c) motion, the court considers all available pleadings, including the

complaint and the answer.” Dudek v. Thomas & Thomas Attorneys & Counselors at Law, LLC,

702 F. Supp. 2d 826, 832 (N.D. Ohio 2010) (citation omitted). “The court can also consider: (1)

any documents attached to, incorporated by, or referred to in the pleadings; (2) documents attached

to the motion for judgment on the pleadings that are referred to in the complaint and are central to

the plaintiff’s allegations, even if not explicitly incorporated by reference; (3) public records; and

(4) matters of which the court may take judicial notice.” Id. (citations omitted).

III. Discussion

A. Factual Allegations

Myers is the mother and legal guardian of M.M., an eleven-year-old child who attends

school at Boardman Center Intermediate School within the Boardman Local School District. M.M.

is affected by an autism spectrum disorder and other learning disabilities, including attention

deficit hyperactivity disorder, obsessive compulsive disorder, anxiety, and dyslexia. (Doc. No. 1

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¶¶ 4, 13–14.) Passarelli was a teacher employed by the Board and working at M.M.’s school; she

was an intervention specialist, teaching a class of children with special needs, learning disabilities,

and/or autism spectrum disorders. (Id. ¶ 10.) Curl was a classroom aide employed by the Board;

she was working at M.M.’s school, providing services in Passarelli’s classroom. (Id. ¶¶ 8, 11.) The

complaint alleges that Passarelli was Curl’s direct supervisor (id. ¶ 11), which Passarelli accepts

as true only for purposes of her Rule 12(b)(6) motion, but otherwise denies (see Doc. No. 9 at 3

n.1). Both Passarelli and Curl are being sued in their individual capacities, as “persons” who were

“acting under color of law” within the meaning of Section 1983. (Doc. No. 1 ¶¶ 8–10, 12.)

The complaint outlines several incidents of alleged mistreatment of M.M. by Curl:

(1) On September 20, 2020, when Passarelli was out of the classroom and the

students were under the sole supervision of Curl, Curl “began yelling at and

belittling M.M. and another special needs student, shouting, among other

things, that ‘Mrs. Passarelli doesn’t deserve you two and you don’t even

belong here!’” This caused the two students to “cry[] hysterically.” (Id. ¶¶

19–21). Myers contacted Passarelli, who confirmed that she had observed

M.M. crying; Passarelli assured Myers that she would “put an end to . . .

Curl’s behaviors.” (Id. ¶¶ 22–23.)

(2) On October 5, 2020, Curl “became verbally abusive with M.M. again,

causing him to cry in front of the other students in class.” Myers contacted

Passarelli, who “apologized” and “promis[ed] again to speak with [Curl].”

(Id. ¶¶ 25–26.)

(3) On October 20, 2020, Curl yelled at M.M.: “If you don’t do your homework,

I’ll put you on the side of the road!” After school, M.M. reported this to

Myers, who contacted Passarelli. Passarelli confirmed the incident but

“defended [Curl] . . . , claiming she was only joking.” Myers explained that,

due to his autism, M.M. “did not understand jokes like that, could not

comprehend sarcasm, and took the statements of his teachers literally.”

Passarelli again agreed to “discuss this” with Curl. (Id. ¶¶ 27–29.)

(4) In late October 2020, “on several different occasions, [Curl] struck M.M.

on the head and made demeaning comments to him . . . to reprimand or

correct him.” Each time Curl stated: “You know I’m just joking; don’t tell

your mom!” Myers discussed each incident with Passarelli, but they

“continued to occur.” (Id. ¶¶ 30–31.)

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(5) On November 11, 2020, while two other boys in the class were fighting,

M.M. “was punched in the face.” Although he was exonerated, the next day,

“Curl singled out M.M., took him out of class into the hallway, yelled at

him, and called him a liar.” (Id. ¶ 32.)

(6) On another occasion later in 2020, Passarelli “proactively called” Myers to

inform her that M.M. would likely be upset after school because, while

Passarelli was out of the classroom, “Curl became very angry with M.M.

and two other boys for not returning from recess fast enough[,]” and

“screamed at the boys until all three were ‘hysterically crying’” when

Passarelli returned. (Id. ¶ 33.)

(7) On other occasions, “Curl would also threaten M.M. by saying, ‘Don’t

make me go and get my hammer out of my trunk!’ and ‘Don’t make me get

my bungee cord out of the trunk, tie you to it, and drive!’”—each time

warning M.M. that she was “joking” and that he should neither “tell [his]

mom[]” nor “go running and crying to Mrs. Passarelli!” (Id. ¶ 34.)

These incidents of alleged abuse culminated in the events of January 19, 2021, which form

the primary factual basis for the claims in the complaint. On that day, as he often did, M.M.

approached Curl to request cold water, which, according to Passarelli’s explanation to Myers,

caused Curl to “bec[o]me angry” because she “believ[ed] M.M.’s mother should [send] him to

school with his own water.” Passarelli was out of the classroom at the time. After M.M. returned

to his desk, Curl “walked up behind M.M. holding a stapler and a note for M.M.’s mother stating”

that she should send him to school with his own bottled water, especially on days when there was

gym class. (Id. ¶¶ 35–39 (emphasis omitted).) When Passarelli returned to the classroom, she

“found M.M. in distress and immediately noticed the large, yellow note attached to M.M.’s head.”

Passarelli “dug the staples out of M.M.s head and removed the note.” (Id. ¶¶ 42–43.) Passarelli did

not, however, report Curl’s action to anyone at that time, including Myers. (Id. ¶ 44.) After school,

when M.M. told his mother about the incident, Myers “observed the wounds the staples had made

in her son’s head.” (Id. ¶ 45.) Myers immediately called Passarelli “who admitted that she was

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aware of the incident and confirmed that she personally ‘dug’ the staples out of M.M.’s head.” (Id.

¶ 46.) It should be noted that Passarelli admits only for purposes of the motion that the note was

stapled to M.M.’s head and that she personally dug the staples out. She otherwise denies this,

asserting that the note was only stapled to M.M.’s hair. (Doc. No. 9 at 3 n.1; see also Doc. No. 1

¶ 50.)

Although Passarelli assured Myers once again that she would “handle the incident[,]” since

Passarelli had never followed through after any previous incident to “stop[] . . . Curl’s continuing

abuse, . . . and because of the outrageous nature of the abuse, [Myers] brought the incident to the

attention of [the Board] herself.” (Doc. No. 1 ¶ 47.) The Board “gave [Curl] a ‘warning’ and

allowed her to return to the classroom.” (Id. ¶ 48.)

Myers alleges that Passarelli “condoned, encouraged, ratified, knowingly acquiesced to,

and/or approved of all of [Curl’s] abuse of M.M., [as] described above.” (Id. ¶ 49.) Although

admitting that this is taken as true for purposes of her motion, Passarelli otherwise denies that she

had any control over Curl’s behavior and/or that she condoned any alleged abuse. (Doc. No. 9 at

3 n.1.)

B. Analysis

In her Rule 12(b)(6) motion, Passarelli argues that Myers fails to state any claim under 42

U.S.C. § 1983 and that her state law claim fails because Passarelli and Curl had no employment

relationship. In her Rule 12(c) motion, Curl asserts that she is entitled to judgment on the pleadings

on the first and third claims for the same reasons argued by Passarelli.

1. Failure to State § 1983 Claim(s)

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

Constitution or a federal statute has been violated and (2) the violation was committed by a person

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acting under color of state law.” Jordan v. Stroughter, No. 21-1204, 2022 WL 620119, at *2 (6th

Cir. Feb. 23, 2022) (citing West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40

(1988)).

a) First Claim — Fourth Amendment Excessive Force

Myers’ first claim for relief alleges that Curl used excessive force against M.M. in violation

of the Fourth Amendment (Doc. No. 1 ¶ 53); that Passarelli authorized, condoned, failed to

intervene, and knowingly acquiesced in Curl’s conduct (id. ¶ 57); and that a reasonable teacher in

Passarelli’s position would have known that the use of force at issue violated M.M.’s clearly

established Fourth Amendment right to be free from excessive force and unreasonable searches

and seizures (id. ¶ 58).2

Passarelli argues that the Sixth Circuit has repeatedly held that a student’s claim of

excessive force by a teacher is properly analyzed under the Fourteenth Amendment, rather than

under the Fourth Amendment. (Doc. No. 9 at 7 (citing, among other cases, Lillard v. Shelby Cnty.

Bd. of Educ., 76 F.3d 716, 724–25 (6th Cir. 1996) (holding that claims that a teacher had slapped

one student and sexually harassed two others implicated the Fourteenth Amendment’s substantive

due process and its shocks-the-conscience standard, not the Fourth Amendment’s excessive force

or search/seizure)).)

Myers concedes that “a Fourth Amendment excessive force claim may be duplicative when

asserted alongside a Fourteenth Amendment substantive due process claim.” (Doc. No. 11 at 1 n.1

(citing Kouider on behalf of Y.C. v. Parma City Sch. Dist. Bd. of Educ., 480 F. Supp. 3d 772, 784–

85 (N.D. Ohio 2020) (holding that “[w]here plaintiffs have brought both Fourth Amendment

2 There are no allegations in the complaint that suggest any “search” or “seizure.”

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excessive force claims and Fourteenth Amendment substantive due process claims, courts have

dismissed the Fourth Amendment claims as duplicative[]”) (citing cases)).)

Therefore, the first claim in Myers’ complaint is dismissed as to all defendants, including

the non-moving Board. To that extent, both motions are granted.

b) Second Claim — Fourteenth Amendment Substantive Due Process

The second claim in Myers’ complaint alleges that M.M. has the constitutional right to

personal security and bodily integrity and to be free from arbitrary governmental conduct that lacks

all socially redeeming value. (Doc. No. 1 ¶¶ 62–63.) It further alleges that Curl’s conduct, which

allegedly was authorized, condoned, and acquiesced to by Passarelli, violated those rights in a

manner that shocks the conscience. (Id. ¶¶ 65–66.)

Passarelli denies she was Curl’s supervisor but argues, in any event, that an alleged

supervisor cannot be liable under § 1983 for a subordinate’s conduct solely on the basis of

respondeat superior. (Doc. No. 9 at 8 (quoting Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.

1984) (Ҥ 1983 liability of supervisory personnel must be based on more than the right to control

employees[]” (emphasis added in motion) and there “must be a showing that the supervisor

encouraged the specific incident of misconduct or in some other way directly participated in

it[]”)).) Passarelli argues that, to be liable, a supervisor must be on notice of misconduct and in

some way supportive of the misconduct. (Id. (citing Poe v. Haydon, 853 F.2d 418, 429 (6th Cir.

1988) (mere awareness of alleged harassment and failure to take appropriate action is insufficient

to impose supervisory liability under § 1983)).) Passarelli asserts that Myers’ allegation that

Passarelli was aware of several prior incidents of Curl’s verbal abuse of students (including M.M.)

and of one instance where Curl hit M.M. in the head, but that she failed to act to stop such abuse

is insufficient to establish the requisite widespread, obvious, flagrant, rampant, and/or continued

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duration to show a substantive due process violation by Curl that can be imputed to Passarelli. In

addition, since there is no dispute that Passarelli was not present during any of the incidents,

especially the January 19, 2021 incident, Passarelli argues that she cannot be found to have actually

participated in any violation. (Doc. No. 9 at 10.)

In opposition, Myers argues that, in addition to Passarelli’s knowledge of all the incidents

of verbal and physical abuse and her failure to stop them despite Myers’ complaints, Passarelli

also “failed to report the incident to law enforcement, the school administration, or [p]laintiff[,]”

and “took affirmative steps to cover-up [sic] [Curl’s] abuse.” (Doc. No. 11 at 2 (citing Bass v.

Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999) (recognizing that alleged failure to report, coupled

with an attempt to cover up, was sufficient to support a claim for supervisory liability under §

1983)).)

In reply, Passarelli argues that Bass is distinguishable because it was decided on summary

judgment and because the use of excessive force and subsequent supervisory failure to act occurred

in the presence of the supervisor. (Doc. No. 12 at 3–4.) Passarelli continues to insist that the

complaint does no more than allege Passarelli’s awareness of Curl’s behavior (which Passarelli

argues did not exhibit a “history of widespread abuse” that would have put her on notice), and fails

to allege any more than possible negligence, which is insufficient to establish supervisory liability.

(Id. at 3.)

Passarelli does not address the allegations that she initially admitted to Myers “that she was

aware of the [January 19] incident and confirmed that she personally ‘dug’ the staples out of

M.M.’s head[,]” but then “covered up and failed to report” Curl’s behavior and “would later falsely

claim that [Curl] only stapled M.M.’s hair, not his head.” (Doc. No. 1 ¶¶ 46, 50.) Nor does

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Passarelli explain how this could not be construed as the type of active involvement in the alleged

excessive force that would be sufficient to state a claim.

The Court concludes that, when the facts are considered in a light most favorable to Myers,

the complaint includes sufficient allegations to withstand the motion to dismiss on the second

claim. To that extent, therefore, Passarelli’s motion is denied.

c) Third Claim — Fourteenth Amendment Equal Protection

The third claim in Myers’ complaint alleges that Passarelli (and Curl) “treated M.M.

differently than other similarly situated students who did not have disabilities or special needs[,]”

and “singled [him] out for mistreatment because of his disabilities and special needs.” (Doc. No. 1

¶¶ 71–72.) Myers alleges that Curl’s conduct was “intentional, malicious, and discriminatory” and

that it was authorized, condoned, and acquiesced to by Passarelli. (Id. ¶ 74.) Myers alleges that

this discriminatory treatment violated M.M.’s right to equal protection and that the behavior “was

extreme, outrageous, and shocks the conscience.” (Id. ¶¶ 74–75.)

To prevail on this equal protection claim, Myers has “‘the burden of showing that [the

defendants] intentionally treated [M.M.] differently—because he is disabled—than similarly

situated students who were like him in all relevant respects.’” Gohl v. Livonia Pub. Schools Sch.

Dist., 836 F.3d 672, 684 (6th Cir. 2016) (quoting S.S. v. E. Ky. Univ., 532 F.3d 445, 458 (6th Cir.

2008)).

Passarelli argues that there are no facts alleged to show that M.M. was treated differently

because of his disability and, in fact, Myers acknowledges that M.M. required, and was placed in,

special education classes where all of the students had disabilities and/or special needs. (Doc. No.

9 at 10–11.) In opposition, Myers claims that the different treatment was the fact that M.M. was

the only student, disabled or otherwise, who had a note stapled to his head. (Doc. No. 11 at 7.)

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Myers further argues that a reasonable inference of discrimination on the basis of disability can be

drawn from the history of Curl’s mistreatment of M.M. and Passarelli’s alleged condoning of that

treatment. (Id. at 7–8.)

Myers’ reliance on ¶ 71 of the complaint, alleging that defendants “treated M.M. differently

than other similarly situated students who did not have disabilities or special needs[,]” is

misplaced. This is not a “fact.” It is no more than a conclusory allegation. There are simply no

facts in the complaint identifying any similarly situated students or any circumstances where such

students were treated differently than M.M. Even accepting as true that M.M. had a note stapled

to his head, that does not automatically mean it was because of his disability.

The complaint fails to state a claim under § 1983 for a violation of the Equal Protection

Clause of the Fourteenth Amendment. Therefore, the third claim for relief is dismissed as to all

defendants, including the non-moving Board. To that extent, both motions are granted.

2. Seventh Claim — Wanton and Reckless Hiring, Retention, and Supervision

In her seventh claim for relief, Myers alleges that Passarelli was Curl’s “direct supervisor”

and that Passarelli (along with the Board) “had a duty to exercise reasonable care in hiring,

retaining, and supervising their employees and direct reports.” (Doc. No. 1 ¶¶ 96, 98.) Myers

claims that “[b]y failing to supervise, discipline, or terminate [Curl] after her repeated mistreatment

and abuse of M.M., [the Board] and Passarelli wantonly and recklessly disregarded the great

probability of substantial harm that would befall M.M. . . .” (Id. ¶ 103.)

“The elements of a claim for negligent hiring, supervision, and retention are (1) the

existence of an employment relationship, (2) the employee’s incompetence, (3) the employer’s

knowledge of the employee’s incompetence, (4) the employee’s act or omission causing the

plaintiff’s injuries, and (5) a causal link between the employer’s negligence in hiring, supervising,

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and retaining and the plaintiff’s injuries.” Lehrner v. Safeco Ins./Am. States Ins. Co., 872 N.E.2d

295, 305 (Ohio Ct. App. 2007).

Passarelli argues that she was not Curl’s employer and, therefore, cannot be liable for

negligent supervision of Curl. (Doc. No. 9 at 12.) In opposition, Myers argues that, although

Passarelli did not have the authority to hire or fire Curl, she did have the responsibility to supervise

her in the classroom. (Doc. No. 11 at 8–9 (citing Doe v. Roman, No. 2001-AP-05-0044, 2002 WL

31732468 (Ohio Ct. App. Dec. 4, 2002)).) Passarelli argues in reply that Doe v. Roman is

inapplicable because the court therein failed to conduct an “analysis of the actual elements for a

‘reckless supervision’ claim[.]” (Doc. No. 12 at 7.)

The complaint alleges that Passarelli was the “direct supervisor” of Curl, which Passarelli

accepts as true for purposes of this motion, but otherwise denies. In her reply, Passarelli repeats

the argument that she was not Curl’s employer and, therefore, had no duty to supervise. But the

Court will not make that determination at this juncture, concluding that it may very well be

dependent upon Ohio statutes governing schools and their operation and/or the Board’s particular

policies governing Boardman Local Schools and the responsibilities of various employees. It is

well within the realm of possibility that a classroom aide, although hired/fired by the Board, is

nonetheless under the day-to-day supervision of the teacher(s) within whose classroom(s) the aide

serves, in much the same way that the principal, who typically does not hire/fire teachers,

nonetheless has some responsibility for supervision of the teachers.

At this juncture, the allegations in the seventh claim of the complaint are sufficient to

withstand a motion to dismiss. To that extent, Passarelli’s motion is denied.

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IV. Conclusion

For the reasons set forth herein, the first and third claims in Myers’ complaint are dismissed

as to all defendants (including the Board) and, to that extent only, both Passarelli’s motion and

Curl’s motion are granted. The case will proceed as to the second, fourth, fifth, sixth, and seventh

claims in the complaint.

The Court will, by separate order, schedule the Case Management Conference.*

IT IS SO ORDERED.

Dated: July 11, 2022 bt □□

HONORABLE SARA LIOI

UNITED STATES DISTRICT JUDGE

3 Passarelli is reminded that she has not filed an answer and should do so within the time provided by the Civil Rules

of Procedure.

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