Doe v. Finneytown Local School District

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

T.W. and K.W. as Parents and Legal : Case No. 1:18-cv-668

Guardians of JANE DOE, a Minor, :

: Judge Timothy S. Black

Plaintiffs, :

:

vs. :

:

FINNEYTOWN LOCAL SCHOOL :

DISTRICT, :

:

Defendant. :

ORDER GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS

This case is before the Court on Defendant’s partial motion to dismiss (Doc. 5)

(the “Motion to Dismiss”), as well as the parties’ responsive memoranda (Docs. 7–8).

I. FACTS AS ALLEGED BY PLAINTIFFS1

Plaintiff is a seventh-grade student in FLSD.2 (Doc. 1 at ¶ 8). Defendant is the

FLSD Board of Education.3 (Id. at ¶ 2). Over the past two years, Plaintiff has

experienced a pattern of sexual harassment, at the hands of her male classmates, such as:

sexual comments, lewd gesticulations, and unwanted touching. (Id. at ¶¶ 9–15, 22–25).

1 For purposes of the Motion to Dismiss, the Court must: (1) view the Complaint in the light

most favorable to Plaintiffs; and (2) take all well-pleaded factual allegations as true. (Doc. 1);

Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009).

2 “Plaintiff” refers to Plaintiff Jane Doe. “Plaintiffs” refers to Plaintiffs T.W., K.W., and Jane

Doe, collectively. “FLSD” refers to Finneytown Local School District.

3 The Complaint names FLSD as the defendant. As Defendant notes, this appears to be a

typographical error. (Doc. 5 at 2); Mahdy v. Mason City Sch. Dist., No. 1:16-CV-845, 2017 WL

25504, at *2 (S.D. Ohio Jan. 3, 2017) (stating that a school district “is not sui juris”). The

Court proceeds under the assumption that Plaintiffs have sued the FLSD Board of Education. Id.

Plaintiff, her parents, and her friends have reported the harassment to FLSD’s

teachers, counselors, and principal. (See, e.g., id. at ¶¶ 9, 13, 16, 20–21). However,

based upon the allegations in the Complaint, none of them has taken “effective steps to

end the harassment.” (Id. at ¶ 1).

On September 21, 2018, Plaintiffs filed suit against Defendant. (See id.).

Plaintiffs summarize the Complaint, as follows:

This action alleges Defendant failed to take immediate and

appropriate steps to investigate sex-based harassment and

assault, and that Defendant failed to take prompt and effective

steps to end the harassment once on notice the misconduct had

become sufficiently severe so as to deny Plaintiff access to

Defendant’s educational programs and activities, in violation

of . . . 20 U.S.C. § 1681 . . . , 42 U.S.C. § 1983, . . . [and] the

Ohio Revised Code (“R.C.”).

(Id. at ¶ 1).

The Complaint contains three tort claims: negligence under R.C. § 2307; gross

negligence under R.C. § 2744.03;4 and intentional infliction of emotional distress under

Ohio common law (“IIED”). (Id. at ¶¶ 97–111). The Complaint also contains a request

for punitive damages. (Id. at 22).

On November 20, 2018, Defendant filed the instant Motion to Dismiss. (Doc. 5).

In the Motion to Dismiss, Defendant seeks to dispense with: (A) Plaintiffs’ request for

punitive damages; and (B) Plaintiffs’ tort claims. (Id.) The Motion to Dismiss is now

ripe for adjudication. (Id.)

4 As set out infra, Plaintiffs cannot sue Defendant under R.C. § 2744.03. Nonetheless, the Court

refers to the claim as it is styled in the Complaint.

II. STANDARD OF REVIEW

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) operates to test the

sufficiency of the complaint and permits dismissal of a complaint for “failure to state a

claim upon which relief can be granted.” To show grounds for relief, Fed. R. Civ. P. 8(a)

requires that the complaint contain a “short and plain statement of the claim showing that

the pleader is entitled to relief.”

While Fed. R. Civ. P. 8 “does not require ‘detailed factual allegations,’ . . . it

demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007)). Pleadings offering mere “‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550

U.S. at 555). In fact, in determining a motion to dismiss, “courts ‘are not bound to accept

as true a legal conclusion couched as a factual allegation.’” Twombly, 550 U.S. at 555

(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Further, “[f]actual allegations

must be enough to raise a right to relief above the speculative level.” Id.

Accordingly, “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is plausible

where a “plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. Plausibility “is not

akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Id. “[W]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the complaint has alleged—

but it has not ‘show[n]’—‘that the pleader is entitled to relief,’” and the case shall be

dismissed. Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

III. ANALYSIS

A. Punitive Damages

Defendant argues that Plaintiffs’ request for punitive damages fails as a matter of

law. More precisely, Defendant argues that none of the claims asserted allows a plaintiff

to recover punitive damages from a political subdivision.5 (Doc. 5). The Court agrees.

A request for punitive damages is not an independent claim. See McIntire v.

Baxter Int’l Inc., No. 2:16-CV-185, 2017 WL 1078599, at *6 (S.D. Ohio Mar. 21, 2017)

(explaining that a request for punitive damages is a derivative, rather than a “stand-

alone,” form of relief). Thus, a plaintiff can only recover punitive damages from a

defendant if an underlying claim allows for them. See id.; see also Iron Workers Local

Union No. 17 Ins. Fund & its Trs. v. Philip Morris Inc., 29 F. Supp. 2d 801, 819 (N.D.

Ohio 1998).

Here, Plaintiffs have asserted 20 U.S.C. § 1681, 42 U.S.C. § 1983, and Ohio state

law claims against Defendant. (Doc. 1 at ¶ 1). None of these claims allows Plaintiffs to

recover punitive damages from Defendant, a political subdivision. Burr v. Burns, No.

2:04-CV-1118, 2005 WL 1969532, at *11 (S.D. Ohio Aug. 12, 2005) (regarding Ohio

5 There is no question that Defendant, a board of education, is a political subdivision. See R.C.

§ 2744.01(F); Estate of Olsen v. Fairfield City Sch. Dist. Bd. of Educ., 341 F. Supp. 3d 793, 809

(S.D. Ohio 2018) (concluding that a board of education was a political subdivision).

state law claims); Hart v. Paint Valley Local Sch. Dist., No. 2:01-CV-4, 2002 WL

31951264, at *16 (S.D. Ohio Nov. 15, 2002) (regarding 20 U.S.C. § 1681 and 42 U.S.C.

§ 1983 claims). Thus, Plaintiffs’ request for punitive damages fails as a matter of law.

Plaintiffs do not really dispute this fact. Instead, Plaintiffs argue that the request

for punitive damages should survive the Motion to Dismiss, because: (1) 42 U.S.C.

§ 1983 allows a plaintiff to recover punitive damages in connection with certain

individual capacity claims; and (2) Plaintiffs “may yet move the Court for leave to amend

their Complaint to” assert such individual capacity claims. (Doc. 7 at 5 (citing City of

Newport v. Fact Concerts, Inc., 453 U.S. 247, 269–70 (1981), and Kolstad v. Am. Dental

Ass’n, 527 U.S. 526, 535–36 (1999))).

The Court will not allow Plaintiffs to seek punitive damages from Defendant,

when no claim in the Complaint allows for them. The Court will, however, allow

Plaintiffs to file an amended complaint, in which Plaintiffs may, if and as appropriate,

assert individual capacity claims, request punitive damages, and/or make other reasonable

changes, within 45 days of the date of this Order. The Court concludes that there is good

cause to permit such an amendment. Fed. R. Civ. P. 15(a)(2) (“The court should freely

give leave [to amend] when justice so requires.”). Especially at this early stage of the

litigation, the benefit to Plaintiffs far outweighs the detriment to Defendant.

B. Tort Claims

Defendant argues that Plaintiffs’ tort claims—negligence, gross negligence, and

IIED—fail as a matter of law. More precisely, Defendant argues that it is immune from

them under R.C. § 2744.02. (Doc. 5). Again, the Court agrees.

R.C. § 2744.02(A) provides that, as a general rule, political subdivisions are not

liable for injury, death, or loss, related to the performance of governmental functions:

Except as provided in division (B) of this section, a political

subdivision is not liable in damages in a civil action for

injury, death, or loss to person or property allegedly caused

by any act or omission of the political subdivision or an

employee of the political subdivision in connection with a

governmental or proprietary function.

R.C. § 2744.02(A)(1) (emphasis added).

R.C. § 2744.02(B) sets out five exceptions to this general rule:

(1) Except as otherwise provided in this division, political

subdivisions are liable for injury, death, or loss to person or

property caused by the negligent operation of any motor

vehicle by their employees when the employees are engaged

within the scope of their employment and authority . . . .

(2) Except as otherwise provided in sections 3314.07 and

3746.24 of the Revised Code, political subdivisions are liable

for injury, death, or loss to person or property caused by the

negligent performance of acts by their employees with respect

to proprietary functions of the political subdivisions.

(3) Except as otherwise provided in section 3746.24 of the

Revised Code, political subdivisions are liable for injury,

death, or loss to person or property caused by their negligent

failure to keep public roads in repair and other negligent

failure to remove obstructions from public roads . . . .

(4) Except as otherwise provided in section 3746.24 of the

Revised Code, political subdivisions are liable for injury,

death, or loss to person or property that is caused by the

negligence of their employees . . . , and is due to physical

defects within or on the grounds of, [certain] buildings . . . .

(5) In addition to the circumstances described in divisions

(B)(1) to (4) of this section, a political subdivision is liable for

injury, death, or loss to person or property when civil liability

is expressly imposed upon the political subdivision by a

section of the [R.C.] . . . .

R.C. § 2744.02(B)(1)–(5) (emphasis added).

If none of the R.C. § 2744.02(B) exceptions applies, R.C. § 2744.02 invalidates

tort claims, brought against a political subdivision, based on negligent, grossly negligent,

and intentional conduct alike. Maruschak v. City of Cleveland, No. 1:09-CV-1680, 2010

WL 2232669, at *6 (N.D. Ohio May 28, 2010) (dismissing negligence claim under R.C.

§ 2744.02); Sherick v. Champaign Cty., Ohio, No. 3:12-CV-219, 2012 WL 6738671, at

*3 (S.D. Ohio Dec. 31, 2012) (dismissing gross negligence claim under R.C. § 2744.02);

Olsen, 341 F. Supp. 3d at 812 (dismissing IIED claim under R.C. § 2744.02).6

Here, there is no question that Defendant qualifies for R.C. § 2744.02(A)

immunity. Defendant is a political subdivision (a board of education), engaged in a

governmental function (the provision of education).7 R.C. § 2744.01(C)(2)(c), (F). Plus,

here, there is no question that none of the R.C. § 2744.02(B) exceptions applies. None of

Plaintiffs’ tort claims regard: the operation of motor vehicles, the provision of proprietary

functions, the maintenance of public roads, the physical defects of buildings, or the

express imposition of liability (on political subdivisions).8 (Doc. 1 at ¶¶ 97–111).

6 Ohio Courts have characterized the R.C. § 2744.02 analysis as a “three-tiered” one: at tier one,

the Court determines whether the defendant qualifies for R.C. § 2744.02(A) immunity; at tier

two, the Court determines whether any R.C. § 2744.02(B) exceptions apply; and at tier three, the

Court determines whether any R.C. § 2744.03(A) defenses reinstate immunity. See Range v.

Douglas, 763 F.3d 573, 582–83 (6th Cir. 2014). Here, only tiers one and two warrant discussion.

7 See Olsen, 341 F. Supp. 3d at 809 (The “Board of Education is a political subdivision . . . . The

provision of a system of public education is a governmental function.”).

8 Plaintiffs have not challenged any of these points in their memorandum contra. (Doc. 7).

Based upon the foregoing, Defendant is immune from Plaintiffs’ tort claims under

R.C. § 2744.02.

Plaintiffs raise one notable argument, in opposition to this conclusion. Plaintiffs

argue that, regardless of whether Defendant is entitled to R.C. § 2744.02 immunity,

Plaintiffs can sue Defendant under R.C. § 2744.03(A)(5), for grossly negligent/

intentional conduct. (See Doc. 7 at 7 (claiming that, “[u]nder R.C. § 2744.03(A)(5), a

political subdivision can be liable for gross negligence[,] notwithstanding R.C.

§ 2744.02(B) and the five immunity exceptions listed therein”)). But Plaintiffs are

mistaken.

R.C. § 2744.03(A)(5) provides as follows:

(A) In a civil action brought against a political subdivision ... ,

the following defenses or immunities may be asserted to

establish nonliability:

[. . .]

(5) The political subdivision is immune from liability

if the injury, death, or loss. . . resulted from the exercise

of judgment or discretion . . . unless the judgment or

discretion was exercised with malicious purpose, in bad

faith, or in a wanton or reckless manner.

R.C. § 2744.03(A)(5) (emphasis added).

Per its plain language, R.C. § 2744.03(A)(5) does not contain “an exception to

immunity;” it contains “a defense to liability.” Y.S. v. Bd. of Educ. of Mathews Local

Sch. Dist., 766 F. Supp. 2d 839, 844 (N.D. Ohio 2011) (citations omitted). That is, per its

plain language, R.C. § 2744.03(A)(5) does not allow a plaintiff to avoid any immunities

conferred by R.C. § 2744.02(A); rather, it allows a political subdivision to avoid any

liabilities allowed by R.C. § 2744.02(B). The portion of R.C. § 2744.03(A)(5), referring

to malicious, bad faith, and wanton conduct, is simply an exception to such protection.

Numerous Ohio courts have reached this conclusion. See Logan v. Sycamore

Cmty. Sch. Bd. of Educ., No. 1:09-CV-885, 2012 WL 2011037, at *8 (S.D. Ohio June 5,

2012) (R.C. § 2744.03(A)(5) is “only available as a defense to liability, not as a direct

way to establish liability.”); Y.S., 766 F. Supp. 2d at 844 (“R.C. [§] 2744.03(A)(5) . . . is

not an exception to immunity; it is a defense to liability. . . . The portion of

§ 2744.03(A)(5) referring to malicious purpose, bad faith, or wantonness is really an

exception to the defense, not an exception to immunity.” (citation omitted)).9,10

Thus, notwithstanding Plaintiffs’ argument to the contrary, Defendant is immune

from Plaintiffs’ tort claims under R.C. § 2744.02.

9 Plaintiffs claim that, in Elston, the Supreme Court of Ohio considered whether a political

subdivision was liable under R.C. § 2744.03(A)(5), “without considering whether the five

exceptions listed under [R.C.] § 2744.02(B) were implicated.” (Doc. 7 at 6). This is not

accurate. See Elston v. Howland Local Sch., 865 N.E.2d 845, 848 (Ohio 2007) (considering

“whether a school district may assert the defenses found in R.C. [§] 2744.03(A)(3) and (A)(5) to

establish nonliability in a case in which a political subdivision would otherwise be liable

according to R.C. [§] 2744.02(B)(4)” (emphasis added)).

10 R.C. § 2744.03(A)(5) should not be confused with R.C. § 2744.03(A)(6). The latter applies to

claims against individual employees. See Ohio ex rel. Faulkner v. City of Middletown, Ohio, 688

F. App’x 377, 381 (6th Cir. 2017); see also Thompson v. Buckeye Joint Vocational Sch. Dist., 55

N.E.3d 1, 6 (Ohio Ct. App. 2016) (“The three-tiered analysis of liability applicable to a political

subdivision does not apply when determining whether an employee of the political subdivision

will be liable for harm caused to an individual. . . . Instead, a court must utilize R.C.

[§] 2744.03(A)(6) to analyze immunity for claims against individual employees.”).

IV. CONCLUSION

Based upon the foregoing, the Motion to Dismiss (Doc. 5) is GRANTED.

Plaintiffs’ request for punitive damages is DISMISSED. Likewise, Plaintiffs’ tort

claims—negligence, gross negligence, and IIED—are DISMISSED.

However, at the Court’s discretion, and as justice so requires, the Court sua sponte

GRANTS Plaintiffs leave to file an amended complaint, as permitted in Section III.A,

supra, within 45 days of the date of this Order. Any amended complaint filed by

Plaintiffs shall, inter alia, correct the typographical error referenced in footnote three

supra.

IT IS SO ORDERED.

Date: 10/7/19 en .

ifeechs f Black

United States District Judge

10