M.P., a Minor v. Monroe Local Schools

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

M.P., by and through

legal guardians, : Case No. 1:19-cv-01056

Plaintiff, : Judge Michael R. Barrett

v. :

Monroe Local Schools, et al., :

Defendants. :

OPINION AND ORDER

This matter is before the Court on the Motion to Dismiss filed by Defendants

Monroe Local School District Board of Education ("School Board"),1 Nancy Stratton, and

Melissa Giffen2 (Doc. 20) and the Motion for Judgment on the Pleadings filed by the City

of Monroe, Ohio Police Department and Bradley Jackson (Doc. 24). Plaintiff M.P. filed

Responses in Opposition (Docs. 27, 29) and Defendants filed Replies (Doc. 28, 30).

I. BACKGROUND

Plaintiff was 11-years-old on December 6, 2018, and his parents bring this action

on his behalf. (Doc. 1 ¶ 8); see FED. R. CIV. P. 17(c)(2). Plaintiff attended Monroe

Elementary School during the 2018-2019 school year, and was present at school on

December 6, 2018. (Doc. 1 ¶ 16). Monroe Elementary School is within the district of

1 Defendant School Board explains that the Complaint incorrectly names "Defendant Monroe Local

Schools" as a defendant, and that it will proceed under the assumption "that Plaintiff[] meant to sue the

Monroe Local School District Board of Education to avoid Plaintiff[] having to amend." (Doc. 20 PageID 57-

58).

2 Defendant Giffen explains that the Complaint incorrectly spells her last name as Giffin. (Doc. 20

PageID 54).

Defendant School Board. (Id. ¶¶ 9, 16). Defendants Stratton and Giffen were the principal

and vice principal, respectively, of Monroe Elementary School on December 6, 2018. (Id.

¶¶ 10, 17). Defendant Jackson was a school resource officer for Defendant School Board,

a police officer for Defendant City of Monroe, Ohio Police Department, and at Monroe

Elementary School on December 6, 2018. (Id. ¶¶ 14, 19).

Plaintiff has attention-deficit hyperactivity disorder ("ADHD") and oppositional

defiant disorder ("ODD") which are both neurodevelopmental disorders characterized by,

among other things, impaired social interaction and communication, and restrictive and

repetitive behaviors. (Id. ¶ 8). Plaintiff qualifies for special education and related services

under the Individuals with Disabilities Education Act ("IDEA"). (Id.)

On December 6, 2018, Plaintiff and another child volunteered to stay in a

classroom, instead of going outside to recess, with a third child who had recently

undergone significant surgery and was prohibited from going to outside recess due to that

surgery. (Id. ¶ 20). Upon noticing Plaintiff and other two children inside the classroom,

possibly unsupervised, an unidentified para-professional of Monroe Elementary School

ordered the three students to go to outside recess. (Id. ¶ 21). The three children told the

para-professional that they had received permission to remain inside, and attempted to

explain why, but the para-professional ordered them to go outside a second time. (Id.)

The child who recently underwent surgery complied with the para-professional's

second order and went outside in tears. (Id. ¶ 22). Plaintiff did not comply. (Id. ¶ 23).3

Instead, Plaintiff requested to go to "the quiet room," one of his accommodations under

his 504 Plan provided to him by the school pursuant to Section 504 of the Rehabilitation

3 It is not clear what the third child did or where that child went.

Act of 1973 ("Section 504"). (Id. ¶¶ 23, 25). The para-professional denied Plaintiff's

requested accommodation and summoned Defendant Stratton to the classroom. (Id.

¶ 23). When Defendant Stratton arrived, Plaintiff requested to go to the quiet room. (Id.

¶ 24). Defendant Stratton denied Plaintiff's requested accommodation and summoned

Defendant Giffen to the classroom. (Id.) Defendant Giffen arrived and denied Plaintiff's

requested accommodation to go to the quiet room. (Id. ¶ 25). Defendant Giffen ordered

Plaintiff to go to outside recess and threatened to summons Defendant Jackson. (Id.

¶ 26). Plaintiff remained inside. (Id.)

At this time, Defendant Jackson yelled Plaintiff's name from down the hallway. (Id.

¶ 28). Plaintiff remained inside. (Id. ¶ 27). Defendant Jackson subsequently walked to the

classroom, where Plaintiff, Defendant Stratton, Defendant Giffen, and the para-

professional were, and ordered Plaintiff to go outside. (Id. ¶ 29).4 Plaintiff then went

outside. (Id. ¶ 30).

Defendant Jackson followed Plaintiff as Plaintiff exited the building. (Id. ¶ 31).

Once outside, Defendant Jackson immediately threw his drink on the ground and, without

warning, grabbed Plaintiff from behind in an aggressive manner. (Id.) Defendant Jackson

proceeded to scream at, manhandle, and handcuff Plaintiff. (Id. ¶ 32). Plaintiff was

shocked. (Id. ¶ 33).5 Defendant Jackson then threated to send Plaintiff to "juvie" over the

4 The Court acknowledges that, in his Answer, Defenant Jackson alleges that, when he entered the

classroom, he found "Plaintiff exhibiting unusual-for-Plaintiff verbal and physical behaviors, including

refusing to follow school rules and instructions of the staff, and a glassy-eyed stare and a challenging

posture." (Doc. 23 ¶ 29). However, at this juncture, all well-pleaded material allegations of the pleadings of

the party opposing the motion for judgment on the pleadings must be taken as true, and the motion may be

granted only if the moving party is nevertheless clearly entitled to judgment. See JPMorgan Chase Bank,

N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007).

5 The Court acknowledges that, in his Answer, Defendant Jackson alleges "that, while walking outside,

Plaintiff made statements to [Defendant] Jackson, challenged his authority, and turned around abruptly so

that Plaintiff's face was within inches of Jackson's face" and "Jackson believed (1) Plaintiff might swing on

Christmas holiday and marched Plaintiff out of the other students', who were at outdoor

recess, sight. (Id. ¶ 34).

Defendant Stratton, Giffen, and Jackson, who was physically leading Plaintiff, then

marched Plaintiff through the school's hallways, past other teachers and volunteer

parents, to the school's office. (Id. ¶ 35). During their travel to the office, Defendant

Jackson threated to send Plaintiff to "juvie" over the Christmas holiday again and, more

than once, physically lifted up Plaintiff's handcuffed hands behind Plaintiff's back which

caused Plaintiff pain. (Id. ¶¶ 36-37). Plaintiff said nothing during the travel to the office.

(Id. ¶ 37).

The school's video surveillance system memorialized above. (Id. ¶ 38).

Upon their arrival at the office, Defendant Jackson left Plaintiff sitting in his

handcuffs while Defendant Jackson spoke with Defendant Giffen. (Id. ¶ 39). After

Defendant Jackson and Defendant Giffen spoke with each other, they returned to Plaintiff

and told Plaintiff that he was a bad kid, told Plaintiff that he had always been a bad kid,

and asked Plaintiff what Plaintiff thought he would do now. (Id. ¶ 38 PageID 9).6 After

Plaintiff sat in the office for 15 or 20 minutes, someone called his parents, and someone

removed Plaintiff's handcuffs while his mother drove to the school. (Id. ¶ 39 PageID 9).

Upon her arrival to the school's office, Plaintiff's mother found Plaintiff in a frozen,

catatonic state. (Id. ¶ 40).

him and (2) the best way to de-escalate the situation and prevent a physical altercation from taking place

was to temporarily handcuff Plaintiff." (Doc. 23 ¶¶ 31-32). But see JPMorgan Chase Bank, N.A., 510 F.3d

at 581.

6 The Complaint includes two paragraphs 38 and 39. (Doc. 1 ¶¶ 38-39 PageID 8-9).

Plaintiff's mother spoke to Defendant Jackson and Defendant Giffen. (Id.)

Defendant Jackson told Plaintiff's mother that Plaintiff refused to comply with Defendant

Jackson's instructions to go outside and Defendant Jackson feared that Plaintiff would

strike Defendant Jackson. (Id. ¶ 41). Defendant Jackson also told Plaintiff's mother that

he had handcuffed three other children Plaintiff's age in his career as a school resource

officer and police officer. (Id.) Plaintiff's mother requested to view the school's video

surveillance system and was denied access to the video while she was at the school on

December 6, 2018. (Id. ¶ 43). A subsequent review of the video revealed that Defendant

Jackson's statements to Plaintiff's mother were false. (Id. ¶ 44).

Plaintiff has experienced extreme emotional distress, humiliation, and anxiety, was

afraid to return to school, and missed a number of days of school as a result of the events

at school on December 6, 2018. (Id. ¶¶ 46-47). Plaintiff also has been diagnosed with

post-traumatic stress disorder ("PTSD") and requires regular treatment with a cognitive-

based behavioral therapist as treatment for his PTSD as a result of the events. (Id. ¶ 48).

Plaintiff's Complaint includes 12 causes of action7 against the various Defendants:

violations of the Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution; a

violation of Section 504; a violation of the Americans with Disabilities Act ("ADA"); assault;

battery; negligent supervision and training; negligence; intentional infliction of emotional

7 Although the Complaint lists 15 claims, it skips counts six and 14 and also improperly includes a request

for punitive damages as a separate claim. (Doc. 1); (Doc. 1-1); see Dalton v. Animas Corp., 913 F. Supp.

2d 370, 378 (W.D. Ky. 2012) (explaining that "a claim for punitive damages is not a separate cause of

action, but a remedy potentially available for another cause of action.").

distress; negligent infliction of emotional distress; and respondeat superior.8 (Doc. 1;

(Doc. 1-1).9

II. ANALYSIS

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a complaint for

"failure to state a claim upon which relief can be granted." Federal Rule of Civil

Procedure 12(c) permits a party to move for judgment on the pleadings "[a]fter the

pleadings are closed—but early enough not to delay trial—[.]" The standard of review for

a Rule 12(c) motion is the same as the standard for a Rule 12(b)(6) motion. Fritz v.

Charter Tp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010).

In deciding a Rule 12(b)(6) motion, the Court must "construe the complaint in the

light most favorable to the plaintiff, accept [the plaintiff's] allegations as true, and draw all

reasonable inferences in favor of the plaintiff." Bassett v. Nat'l Collegiate Athletic Ass'n,

528 F.3d 426, 430 (6th Cir. 2008) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476

(6th Cir. 2007)). To withstand a Rule 12(b)(6) motion, a complaint must contain "more

than labels and conclusions [or] a formulaic recitation of the elements of a cause of

action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Court does not

require "heightened fact pleading of specifics, but only enough facts to state a claim for

relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

8 Plaintiff concedes that his respondeat superior claim against Defendant School Board should not proceed.

(Doc. 27 PageID 134).

9 The second document that contains the Complaint starts its numbered paragraphs at 54 despite the fact

that the first document that contains the Complaint ends at numbered paragraph 106. Compare (Doc. 1

PageID 20, with (Doc. 1-1 PageID 21). In an attempt to avoid additional confusion, the Court will refer to

PageID numbers, instead of paragraph numbers, when citing the second document that contains the

Complaint.

the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).

a. Defendant City of Monroe, Ohio Police Department

Defendant City of Monroe, Ohio Police Department argues that judgment on the

pleadings is appropriate regarding all of Plaintiff's claims against it, as it is not sui juris,

i.e., is not its own entity and is not capable of being sued. (Doc. 24 PageID 105). Plaintiff

concedes that Defendant City of Monroe, Ohio Police Department is not sui juris. (Doc. 29

PageID 146-147). Plaintiff states that he will move to amend his Complaint to include the

proper defendant as City of Monroe, Ohio. (Id.) However, over one year later, Plaintiff has

yet to move to amend. In light of Plaintiff's concession and inaction, and to advance the

case, the Court will dismiss all of the claims against Defendant City of Monroe, Ohio

Police Department.

b. 42 U.S.C. § 1983

Section 1983 imposes civil liability on a person acting under color of state law who

deprives another of the "rights, privileges, or immunities secured by the Constitution and

laws." 42 U.S.C. § 1983. Section 1983 "'is not itself a source of substantive rights,' but

merely provides 'a method for vindicating federal rights elsewhere conferred.'" Graham v.

Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3

(1979)). To state a viable claim under Section 1983, a plaintiff must allege that he was

deprived of a right secured by the Constitution or laws of the United States, and the

deprivation was caused by a person acting under color of law. See Webb v. United States,

789 F.3d 647, 659 (6th Cir. 2015) (citing Marcilis v. Twp. of Redford, 693 F.3d 589, 595

(6th Cir. 2012)).

i. Right Against Unlawful Seizure and to Due Process10

Plaintiff alleges that Defendant Jackson violated Plaintiff's constitutional right

against unlawful seizure and to due process when Defendant Jackson seized Plaintiff and

did so without parental notification or consent. (Doc. 1 ¶¶ 49-53, 54-64).

1. Official capacity

With respect to Plaintiff's claims against Defendant Jackson in his official capacity,

i.e., against the City of Monroe, "local governments are responsible only for their own

illegal acts. They are not vicariously liable under § 1983 for their employees' actions."

Connick v. Thompson, 563 U.S. 51, 60 (2011) (emphasis in original) (internal citations

and quotation marks omitted); see Galloway v. Chesapeake Union Exempted Vill. Sch.

Bd. of Educ., No. 1:11-CV-850, 2012 WL 5268946, at *7 (S.D. Ohio Oct. 23, 2012) ("Since

an official capacity claim against an individual equates to a claim against the entity or

office employing the official, a suit against a governmental official in his or her official

capacity therefore should be treated as a suit against the governmental entity" (citing

Kentucky v. Graham, 473 U.S. 159, 166 (1985))). "Instead, a municipality is liable under

§ 1983 only if the challenged conduct occurs pursuant to a municipality's 'official policy,'

such that the municipality's promulgation or adoption of the policy can be said to have

'cause[d]' one of its employees to violate the plaintiff's constitutional rights. D'Ambrosio v.

Marino, 747 F.3d 378, 386 (6th Cir. 2014) (quoting Monell v. New York City Dep't of Soc.

Servs., 436 U.S. 658, 692 (1978)). Municipal liability based on the actions of an employee

or agent is also known as Monell liability.

10 As the parties address these claims in tandem, the Court will too. Also, Plaintiff concedes that these

claims should not proceed against Defendants School Board, Stratton, and Giffen. (Doc. 27 PageID 125).

To adequately plead Monell liability, a plaintiff must allege "(1) the existence of an

illegal official policy or legislative enactment; (2) that an official with final decision making

authority ratified illegal actions; (3) the existence of a policy of inadequate training or

supervision; or (4) the existence of a custom of tolerance [of] or acquiescence [to] federal

rights violations." Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013); accord Brooks

v. Spiegel, No. 20-6437, 2021 WL 4026728, at *1 (6th Cir. Sept. 3, 2021).

Defendant Jackson argues that the Complaint does not sufficiently plead Monell

liability. (Doc. 24 PageID 107); (Doc. 30 PageID 167-68). Plaintiff responds that he

"intend[s] to produce evidence that those with final decision making authority approved of

[Defendant Jackson's] actions." (Doc. 29 PageID 149). However, the Complaint does not

allege that a City of Monroe official with final decision-making authority ratified Defendant

Jackson's actions. (Doc. 1); (Doc. 1-1). The Complaint also does not identify a City of

Monroe policy or custom or allege that a City of Monroe policy or custom caused any of

the alleged constitutional violations to occur. (Doc. 1); (Doc. 1-1). Plaintiff fails to allege

plausible Monell claims against Defendant Jackson in his official capacity. Dismissal of

these claims against Defendant Jackson is appropriate.

2. Individual capacity

Turning to Plaintiff's claims against Defendant Jackson in his individual capacity,

Defendant Jackson argues that the he is entitled to qualified immunity. (Doc. 24

PageID 108-10); (Doc. 30 PageID 168-72).

"An official sued under §1983 is entitled to qualified immunity unless it is shown

that the official violated a statutory or constitutional right that was 'clearly established' at

the time of the challenged conduct." Plumhoff v. Rickard, 572 U.S. 765, 778 (2014)

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)); accord Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982) (Qualified immunity shields "government officials performing

discretionary functions . . . from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable

person would have known."). The Sixth Circuit has explained:

To determine whether a government official is entitled to qualified immunity,

we consider the two-part test described in Saucier v. Katz, which asks

whether "a constitutional right would have been violated on the facts

alleged" and, if so, whether the right was "clearly established." 533 U.S.

194, 200-01 . . . (2001). We are free to address the second question first,

analyzing whether the constitutional right that purportedly prohibited a

defendant's conduct was clearly established, without addressing whether

there was a constitutional violation at all. Pearson v. Callahan, 555 U.S.

223, 236 (2009).

Occupy Nashville v. Haslam, 769 F.3d 434, 442 (6th Cir. 2014) (footnote omitted). "[A]

defendant cannot be said to have violated a clearly established right unless the right's

contours were sufficiently definite that any reasonable official in the defendant's shoes

would have understood that he was violating it." Plumhoff, 572 U.S. at 778-79. However,

there need not be a prior case directly on point for a law to be clearly established;

generalized statements of the law or a general constitutional rule already identified in the

decisional law are sufficient. Kennedy v. City of Cincinnati, 595 F.3d 327, 337 (6th Cir.

2010). Although qualified immunity typically is addressed at the summary judgment stage,

the defense may be raised and considered on a motion to dismiss. Hardy v. Jefferson

Cmty. College, 260 F.3d 671, 677 (6th Cir. 2001).

For purposes of his Motion for Judgment on the Pleadings, Defendant Jackson

argues that, even assuming that Plaintiff sufficiently alleges that a seizure occurred on

December 6, 2018, in the school setting, a student's right to be free from temporary

handcuffing and right to have his or her parents notified before such handcuffing are not

clearly established, and no reasonable officer in his position would have believed that

temporarily restraining Plaintiff, or doing so before notifying Plaintiff's parents, were clear

violations of Plaintiff's constitutional rights. (Doc. 24 PageID 108-10); (Doc. 30

PageID 170-72).

Construed in the light most favorable to Plaintiff, as the Court must at this juncture,

the allegations in the Complaint implicate a right to be free from unlawful seizures in the

school setting. On December 6, 2018, it was well-established that the Fourth Amendment

applied, although in a relaxed manner, to school officials in the school setting. N.J. v.

T.L.O., 469 U.S. 325, 342 (1985) (A seizure is "permissible in its scope when the

measures adopted are reasonably related to the objectives of the [seizure] and not

excessive[] . . . in light of the age and sex of the student and the nature of the infraction.");

S.E. v. Grant County Bd. of Educ., 544 F.3d 633, 641 (6th Cir. 2008) (applying Fourth

Amendment to a claim of a school official's unlawful detainment of a student, and stating

that a "school official may detain a student if there is a reasonable basis for believing that

the pupil has violated the law or a school rule") (internal quotation marks omitted). "[E]ven

as to action less than an outrage, "officials can still be on notice that their conduct violates

established law . . . in novel factual circumstances." Safford Unified Sch. Dist. #1 v.

Redding, 557 U.S. 364, 377-378 (2009) (quoting Hope v. Pelzer, 536 U.S. 730, 741

(2002)). The Court finds that a reasonable police officer serving as school resource officer

for an elementary school, at a minimum, knew or should have known that handcuffing, in

the manner and duration alleged, a child who is complying with an order to go to outside

would be unconstitutional. See United States v. Lanier, 520 U.S. 259, 271 (1997); T. L.O.,

469 U.S. at 342. The grant of qualified immunity is not appropriate as to Plaintiff's Fourth

Amendment claim against Defendant Jackson in his individual capacity at this stage in

the proceedings.

Plaintiff does not respond to Defendant Jackson's assertion that it is clearly

established that a school's temporary detention of a minor student does not require prior

notification to the student's parents. (Doc. 24 PageID 109); (Doc. 30 PageID 172-73);

see, e.g., Wofford v. Evans, 390 F.3d 318, 325 (4th Cir. 2004) ("The Constitution does

not impose a duty of parental notification before the pupil's disciplinary detainment while

such school guardianship persists."). The Court treats Plaintiff's silence as a concession,

and will dismiss Plaintiff's due process claim brought against Defendant Jackson in his

individual capacity.

ii. Right to Equal Protection

Plaintiff brings a Section 1983 claim based on disability discrimination under the

Equal Protection Clause of the Fourteenth Amendment against Defendants Stratton,

Giffen, and Jackson. (Doc. 1 ¶¶ 65-71).11

"The Equal Protection Clause is essentially a direction that all persons similarly

situated should be treated alike." J.B.F. v. Kentucky Dep't of Educ., No. 5:15-CV-33-REW,

2016 WL 3167546, at *9 (E.D. Ky. June 3, 2016), aff'd sub nom. J.B.F. by & through

Stivers v. Kentucky Dep't of Educ., 690 F. App'x 906 (6th Cir. 2017) (quoting Foster v.

Michigan, 573 F. App'x 377, 396 (6th Cir. 2014)). The clause "commands that no state

shall deny to any person within its jurisdiction the equal protection of the laws." Id. (quoting

Bible Believers v. Wayne Cnty., Mich., 805 F.3d 228, 256 (6th Cir. 2015) (en banc)). "To

11 Plaintiff concedes that this claim should not proceed against Defendant School Board. (Doc. 27

PageID 125).

state an equal protection claim, a plaintiff must adequately plead that the government

treated the plaintiff disparately as compared to similarly situated persons and that such

disparate treatment burdens a fundamental right, targets a suspect class, or has no

rational basis." Id. (quoting Bible Believers, 805 F.3d at 256); see Johnson v. Bredesen,

624 F.3d 742, 746 (6th Cir. 2010).

The Equal Protection Clause does not prohibit classifications; rather, it prohibits

differential treatment of persons who are in all relevant respects alike. S.S. v. E. Ky. Univ.,

532 F.3d 445, 457 (6th Cir. 2008) (citing Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)).

Because people with disabilities are not considered a protected or suspect class for

purposes of an equal protection challenge, a state may treat disabled students differently,

so long as its actions are rationally related to some legitimate governmental purpose. Id.

1. Defendants Stratton and Giffen

Defendants Stratton and Giffen argue that the Complaint does not include specific

allegations against them. (Doc. 20 PageID 61); (Doc. 28 PageID 137-38). Plaintiff

responds that the Complaint contains "sufficient facts to plausibly infer that Defendants

Giffen and Stratton treated him differently than other children entitled to reasonable

accommodations by repeatedly denying [him] the accommodation and instead . . .

choosing to involve law enforcement." (Doc. 27 PageID 126). The Complaint, though,

does not allege that Defendants Stratton and Giffen repeatedly denied Plaintiff's

requested accommodation or involved Defendant Jackson. The Complaint alleges that

Defendants Stratton and Giffen each denied Plaintiff's requested accommodation once

on December 6, 2018, and Defendant Giffen warned that she would contact Defendant

Jackson but, instead, Defendant Jackson appeared from down the hallway and

approached the group on his own. (Doc. 1 ¶¶ 24-28). Further, the Complaint does not

allege, and the Court cannot infer, that Defendants Stratton and Giffen treated Plaintiff

differently as compare to similarly situated students, and the Court need not accept as

true Plaintiff's legal conclusions that Defendants Stratton and Giffen did so. See Twombly,

550 U.S. at 555 (the Court is "not bound to accept as true a legal conclusion couched as

a factual allegation") (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Dismissal of

this claim against Defendants Stratton and Giffen, in their official and individual capacities,

is warranted.

2. Defendant Jackson

Defendant Jackson argues that the Complaint contains no factual allegations to

support its legal conclusion that Defendant Jackson discriminated against Plaintiff

because of Plaintiff's status as a child with a disability. (Doc. 24 PageID 110-12); (Doc. 30

PageID 173-75).

For reasons similar to those provided in Section II(b)(i)(1) of this Opinion and

Order, Plaintiff fails to allege a plausible Monell claim against Defendant Jackson in his

official capacity with respect to Plaintiff's equal protection clause claim. Dismissal of this

claim is appropriate.

The Complaint alleges that "Defendants discriminated against [Plaintiff], in whole

or in part, because of his status as a child with a disability," Plaintiff "was physically

restrained based, in whole or part, on his disabilities or manifestations of his disabilities,"

and "[s]tudents without disabilities were not subjected to the abuses [he] was subjected

to, as described [in the Complaint]." (Doc. 1 ¶¶ 67-69). The Court finds that the Complaint

contains adequate factual allegations, or factual content that allows the Court to draw the

reasonable inference, that Defendant Jackson treated Plaintiff differently than similarly

situated non-disabled minor students and Defendant Jackson's actions towards Plaintiff

on December 6, 2018 were not rationally related to some legitimate governmental

purpose. At this juncture, Plaintiff's equal protection clause claim against Defendant

Jackson in his individual capacity survives.

c. Section 504 of the Rehabilitation Act of 1973 and ADA12

Plaintiff alleges that Defendant School Board and Defendant Jackson, in his official

capacity, violated Section 504 and the ADA. (Doc. 1 ¶¶ 72-80, 81-87).13

As a general matter, Section 504 provides that "[n]o otherwise qualified individual

with a disability . . . 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). Title II of

the ADA similarly provides that, "[s]ubject to the provisions of this subchapter, 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.

Section 504 and the ADA "combat discrimination against disabled individuals . . .

[and] allow[ ] disabled individuals to sue certain entities, like school districts, that exclude

12 As the parties address these claims in tandem, the Court will too. Additionally, the Court notes that no

Defendant argues that Plaintiff's claims under Section 504 or the ADA should be dismissed for failure to

exhaust administrative remedies under the IDEA. See, e.g., Alexander v. Lawrence Cty. Bd. of

Developmental Disabilities, No. 1:10-CV-697, 2012 WL 831769, at *10 (S.D. Ohio Mar. 12, 2012). But see

Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 755 (2017) (holding that exhausting administrative remedies

under the IDEA is required only when the substance and gravamen of a plaintiff's complaint seeks redress

for a school's failure to provide a "Free Appropriate Public Education").

13 Plaintiff concedes that these claims should not proceed against Defendants Stratton, Giffen, and Jackson

in his individual capacity. (Doc. 27 PageID 126); (Doc. 29 PageID 155).

them from participation in, deny them benefits of, or discriminate against them in a

program because of their disability." Doe v. Sumner Cty. Bd. of Educ., No. 3:19-CV-

01172, 2020 WL 5797980, at *2 (M.D. Tenn. Sept. 29, 2020) (quoting Gohl v. Livonia

Pub. Sch. Sch. Dist., 836 F.3d 672, 681 (6th Cir. 2016) (alterations in original)). "Given

the similarities in the two statutory provisions," courts in this Circuit have long merged

their analyses under both. M.J. by & through S.J. v. Akron City Sch. Dist. Bd. of Educ.,

1 F.4th 436, 452 (6th Cir. 2021) (quoting Qiu v. Univ. of Cincinnati, 803 F. App'x 831, 836

(6th Cir. 2020)). A plaintiff seeking to state a claim under either statute, involving a school,

program, or activity receiving federal financial assistance, must show that he is

(1) disabled under the statute, (2) otherwise qualified for participation in the program, and

(3) being excluded from participation in, denied the benefits of, or subjected to

discrimination under the program by reason of14 his disability. Sumner Cty. Bd. of Educ.,

2020 WL 5797980, at *2; accord Maddox v. University of Tennessee, 62 F.3d 843, 846

(6th Cir. 1995); see H.M. v. Bd. of Educ. of the Kings Loc. Sch. Dist., 117 F. Supp. 3d

992, 1012 (S.D. Ohio 2015).

Only the third prong is in dispute for purposes of Defendants' respective motions.

The Complaint adequately pleads, or the Court can reasonably infer, that Plaintiff's school

receives federal funding; Plaintiff has ADHD and ODD, disabilities for which he receives

the accommodation at school of going to the quiet room; and, with this quiet room

14 To establish the causation under both statutes, plaintiffs must establish a but-for relationship between

the protested act and the individual's disability. M.J. by & through S.J., 1 F.4th at 453 (citation omitted)

(internal quotation marks omitted). "[U]nder the ADA, plaintiffs must present sufficiently significant evidence

of animus toward the disabled that is a but-for cause of the discriminatory behavior." Id. "And showing

causation under [Section 504] is even harder. Plaintiffs must show that the school and its employees

discriminated against them solely by reason of their disability." Id.

accommodation, he is otherwise qualified to attend school. (Doc. 1 ¶¶ 8-9, 23, 73, 75,

82).

i. Defendant School Board

Defendant School Board argues that Plaintiff has not alleged sufficient facts to

establish that it denied Plaintiff the benefits of school because of, or solely by reasons of,

his disabilities. (Doc. 20 PageID 62); (Doc. 28 PageID 138-39). The Court can reasonably

infer that the Complaint adequately pleads the third prong's denial of benefits requirement

i.e., that Plaintiff was denied educational benefits, because he alleges that he missed a

number of days as a result of the events that took place at school on December 6, 2018.

(Doc. 1 ¶¶ 46-48). However, the Complaint does not adequately plead, and the Court

cannot reasonably infer, the third prong's causation element i.e., that Plaintiff was

discriminated against because of his disabilities. Even construing the allegations in the

Complaint in Plaintiff's favor, as the Court must at this juncture, there are no factual

allegations that the School Board, or its employee's, denied benefits to Plaintiff because

of, or solely by reason of, his ADHD and ODD. And, to the extent that Plaintiff asserts that

Defendants Stratton and Giffen directed him to go outside to "the crowded recess area

with complete indifference to [Plaintiff]'s disability and [] current emotional state," such

allegations are not in the Complaint and he cannot amend his Complaint in his Response

in Opposition. (Doc. 27 PageID 127). Plaintiff fails to state a claim under Section 504 or

the ADA against Defenant School Board.

ii. Defendant Jackson, in his official capacity

Like Plaintiff's claims against Defendants Stratton and Giffen, the Court can

reasonably infer that the Complaint adequately pleads the third prongs' denial of benefits

element against Defendant Jackson, as Plaintiff alleges that Plaintiff missed a number of

days as a result of the events that took place at school on December 6, 2018. (Doc. 1

¶¶ 46-48). Unlike Plaintiff's claims against Defendants Stratton and Giffen, though, the

Court can reasonably infer the third prong's causation element with respect to the claims

against Defendant Jackson. Construing the allegations in the Complaint in Plaintiff's

favor, it contains sufficient allegations that allow the Court to draw the reasonable

inference that Defendant Jackson, acting for the City of Monroe, is liable for the alleged

misconduct under Section 504 and the ADA. Although the Complaint does not contain

allegations about a specific well-treated comparator student, or comparators students, it

alleges that students without disabilities were not subjected to handcuffing by Defendant

Jackson for instructional or punitive purposes. (Id. ¶¶ 77, 77 PageID 15, 17).15 Plaintiff

states a claim under Section 504 and the ADA against Defenant Jackson in his official

capacity. Dismissal of these two claims is not warranted.

d. State tort claims

i. Negligent supervision and training

Plaintiff brings a claim for negligent supervision and training against Defendant

School Board. (Doc. 1 ¶¶ 96-100); (Doc. 27 PageID 128-31). Defendant School Board

contends that it is entitled to immunity under Ohio's Political Subdivision Tort Liability Act,

codified in Ohio Revised Code Chapter 2744, and no exceptions to that Act apply here.

(Doc. 20 PageID 63-64); (Doc. 28 PageID 140). Plaintiff does not respond to this

immunity argument. (Doc. 27 PageID 128-31).

15 The Complaint contains two paragraphs numbered 77. (Doc. ¶¶ 77, 77 PageID 15, 17).

"A plaintiff is not required to affirmatively demonstrate an exception to immunity at

the pleading stage because that would require the plaintiff to overcome a motion for

summary judgment in his complaint." Shively v. Green Loc. Sch. Dist. Bd. of Educ., 579 F.

App'x 348, 359 (6th Cir. 2014). "Instead, a plaintiff is only required to allege a set of facts

which, if proven, would plausibly allow him to recover." Id. (citing Mohat v. Horvath, 2013-

Ohio-4290, ¶ 29).

Ohio's Political Subdivision Tort Liability Act addresses when political subdivisions,

their departments and agencies, and their employees are immune from liability for their

actions. Est. of Olsen v. Fairfield City Sch. Dist. Bd. of Educ., 341 F. Supp. 3d 793, 809

(S.D. Ohio 2018) (citing Lambert v. Clancy, 2010-Ohio-1483, ¶ 8, 125 Ohio St. 3d 231,

233, 927 N.E.2d 585, 588). A three-tiered analysis is used to determine whether a political

subdivision is immune from tort liability:

First, R.C. 2744.02(A)(1) sets out a general rule that political subdivisions

are not liable in damages. In setting out this rule, R.C. 2744.02(A)(1)

classifies the functions of political subdivisions into governmental and

proprietary functions and states that the general rule of immunity is not

absolute, but is limited by the provisions of R.C. 2744.02(B), which details

when a political subdivision is not immune. Thus, the relevant point of

analysis (the second tier) then becomes whether any of the exceptions in

R.C. 2744.02(B) apply. Furthermore, if any of R.C. 2744.02(B)'s exceptions

are found to apply, a consideration of the application of R.C. 2744.03

becomes relevant, as the third tier of analysis.

Greene Cty. Agric. Soc. v. Liming, 2000-Ohio-486, 89 Ohio St. 3d 551, 556–57, 733

N.E.2d 1141, 1146 (citations omitted).

Ohio Revised Code § 2744.02(A)(1) provides that "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." Defendant School

Board is a political subdivision under the Act. Ohio Rev. Code § 2744.01(F). The provision

of a system of public education is a governmental function. Id. § 2744.01(C)(2)(c).

Accordingly, Defendant School Board is entitled to immunity under Ohio Revised Code

§ 2744.02(A)(1).

Ohio Revised Code § 2744.02(B) enumerates five exemptions from immunity for

political subdivisions. Those exemptions are, in brief: negligent operation of any motor

vehicle by employees; negligent performance of acts by employees with respect to

proprietary functions of the political subdivision; failure to keep public roads in repair and

to remove obstructions from public roads; negligence of employees that occurs within or

on the grounds of, and is due to physical defects within or on the grounds, buildings used

in connection with the performance of a governmental function; and when civil liability is

expressly imposed upon the political subdivision by a section of the Ohio Revised Code.

Id. § 2744.02(B)(1)-(5). None of the enumerated exceptions apply to the facts in this case.

There are no allegations of a negligent operation of a motor vehicle, a negligently

performed proprietary function, an injury due to an obstructed public road, a physical

defect on school grounds, or a section of the Revised Code which expressly imposes

liability on Defendant School Board. Thus, Ohio Revised Code § 2744(B) does not apply,

and Defendant School Board is immune from liability. See Shively, 579 F. App'x at 359;

cf. Cline v. Tecumseh Loc. Bd. of Educ., 2021-Ohio-1329, ¶ 13; Burchard v. Ashland Cty.

Bd. of Developmental Disabilities, 2018-Ohio-4408, ¶ 31. Dismissal of this claim is proper.

ii. Remaining tort claims against Defendants Stratton,16 Giffen,

and Jackson in his individual capacity only17

Plaintiff brings claims of negligence and negligent infliction of emotional distress

against Defendants Stratton, Giffen, and Jackson; claims of assault and battery against

Defendant Jackson; and claims for intentional infliction of emotional distress against

Defendants Giffen and Jackson. (Doc. 1 ¶¶ 88-91, 92-95, 101-04, 105-06); (Doc. 1-1

PageID 21); see (Doc. 29 PageID 157).

Defendants Stratton and Giffen argue that they are entitled to immunity under

Ohio's Political Subdivision Tort Liability Act due to their positions as public school

administrators for Defendant School Board. (Doc. 20 PageID 64-65); (Doc. 28

PageID 140-41). Plaintiff responds that dismissal is not warranted as the allegations in

the Complaint lead to the reasonable inference that, on December 6, 2018, Defendants

Stratton and Giffen acted wantonly in violation of Ohio Revised Code § 2744.03(A)(6).

(Doc. 27 PageID 132). Defendant Jackson similarly argues that he is entitled to immunity

under Ohio's Political Subdivision Tort Liability Act due to his position as school resource

officer for Defendant School Board and police officer for the City of Monroe, and because

no exception under the Act applies. (Doc. 24 PageID 116-19). Plaintiff responds that the

allegations in the Complaint lead to the reasonable inference that, on December 6, 2018,

Defendant Jackson acted maliciously, in bad faith, wantonly or recklessly toward Plaintiff,

in violation of Ohio Revised Code § 2744.03(A)(6). (Doc. 27 PageID 158-59).

16 In each of Plaintiffs negligence claims, he misspells Defendant Stratton's name as "Stafford." (Doc. 1

¶¶ 98, 102); (Doc. 1-1 PageID 21).

17 As the parties address these remaining tort claims together, the Court will too. Additionally, Plaintiff

concedes that all of these claims should not proceed against Defendant Jackson in his official capacity.

(Doc. 29 PageID 157). Plaintiff also concedes that his assault claim should not proceed against Defendant

Giffen. (Doc. 27 PageID 128).

The three-tier analysis discussed above does not apply when examining immunity

pursuant to Ohio Revised Code § 2744 in regard to individual employees of a political

subdivision. Cramer v. Auglaize Acres, 2007-Ohio-1946, ¶ 17, 113 Ohio St. 3d 266, 270,

865 N.E.2d 9, 13. Instead, Ohio Revised Code § 2744.03(A)(6) provides that an employee

of a political subdivision is immune from liability unless one of the following applies:

(a) The employee's acts or omissions were manifestly outside of the scope

of the employee's employment or official responsibilities;

(b) The employee's acts or omissions were with malicious purpose, in bad

faith, or in a wanton or reckless manner;

(c) Civil liability is expressly imposed upon the employee by a section of the

Revised Code.

Id. (citing Ohio Rev. Code § 2744.03(A)(6)).

As the terms are used in Chapter 2744, "malice" is the "willful and intentional

design to injure or harm another, usually seriously, through conduct that is unlawful or

unjustified;" "bad faith" includes a "dishonest purpose, conscious wrongdoing, or breach

of a known duty through some ulterior motive;" "wanton misconduct is the failure to

exercise any care toward those to whom a duty of care is owed in circumstances in which

there is great probability that harm will result;" and "reckless conduct" is "characterized

by the conscious disregard of or indifference to a known or obvious risk of harm to another

that is unreasonable under the circumstances and is substantially greater than negligent

conduct." Burghardt v. Ryan, No. 5:19-CV-2788, 2021 WL 4245036, at *15 (N.D. Ohio

Sept. 17, 2021) (first citing Otero v. Wood, 316 F. Supp. 2d 612, 629 (S.D. Ohio 2004);

then citing Anderson v. Massillon, 2012-Ohio-5711, ¶ 29, 134 Ohio St. 3d 380, 387, 983

N.E.2d 266, 273); accord Anderson, 2012-Ohio-5711, Syllabus 3, ¶ 33 (citing BLACK'S

LAW DICTIONARY 1613–14 (8th ed. 2004) (one acting in a wanton manner is aware of the

risk of the conduct but is not trying to avoid it and is indifferent to whether harm results)).

The Complaint does not contain factual allegations that, if proven, would plausibly

allow Plaintiff to recover against Defendants Stratton and Giffen for negligence and

negligent infliction of emotional distress. See Shively, 579 F. App'x at 359. There are no

allegations that those two were aware that there was a risk of, or great probability of, harm

to Plaintiff when they denied his request to go to the quiet room and ordered him to go to

outside recess with the other students on December 6, 2018. And, the Complaint does

not allege that either Defendant Stratton or Giffen involved Defendant Jackson. Dismissal

of these two negligence claims against these two Defendants is proper.

The Complaint alleges that, on December 6, 2018, Defendant Jackson knew that

Plaintiff was a minor student with diagnoses of ADHD and ODD; threw a drink down after

following Plaintiff to outside recess; without warning, grabbed Plaintiff from behind in an

aggressive manner; proceeded to scream at, manhandle, and handcuff Plaintiff; threated

to send Plaintiff to "juvie" over the Christmas holiday; marched Plaintiff inside in front of

Plaintiff's peers; marched Plaintiff through the school's hallways in front of some of the

school's teachers and more of Plaintiff's peers; again threated to send Plaintiff to "juvie"

over the Christmas holiday; more than once, physically lifted up Plaintiff's handcuffed

hands behind Plaintiff's back causing pain; left Plaintiff handcuffed in a chair in the school

office for up to 20 minutes; while Plaintiff was handcuffed in the office, told Plaintiff that

he was a bad kid, told Plaintiff that he had always been a bad kid, and asked Plaintiff what

Plaintiff thought he would do now; and mislead Plaintiff's mother while recapping her on

Plaintiff's behavior and the need for handcuffs. (Doc. 1 ¶¶ 31-45, 101-104); (Doc. 1-1

PageID 21-22). The Court finds that these allegations are sufficient, at this juncture, to

show that the Defendant Jackson is not entitled to state-law immunity. See Shively, 579 F.

App'x at 359. The negligence and intentional tort claims against Defendant Jackson will

proceed.

Finally, with respect to Plaintiff's intentional infliction of emotional distress claim

against Defendant Giffen, the Complaint alleges that, at the school office, while Plaintiff

remained handcuffed and sitting down, Defendant Giffen told Plaintiff that he was a bad

kid, told Plaintiff that he had always been a bad kid, and asked Plaintiff what Plaintiff

thought he would do now. (Doc. 1 ¶ 38 PageID 9). The Complaint alleges this taunting

was extreme and outrageous, caused Plaintiff psychological and emotional injuries, and

his resulting mental anguish was such that no reasonable person could be expected to

endure it. (Doc. 1 ¶¶ 105-06); (Doc. 1-1 PageID 21). The Court finds that the allegations—

that Defendant Giffen taunted Plaintiff, a handcuffed minor student with known diagnoses

of ADHD and ODD, immediately after Defendant Jackson screamed at, manhandled,

handcuffed, and paraded Plaintiff from outside recess, through the school's hallways, and

to the school's office—are sufficient at this stage of the pleadings to show that the

Defendant Giffen is not entitled to state-law immunity as to this claim. See Shively, 579 F.

App'x at 359. Dismissal of this claim against Defendant Giffen is not warranted.

III. CONCLUSION

Based on the foregoing, it is hereby ORDERED that Defendants' respective Motion

to Dismiss (Doc. 20) and Motion for Judgment on the Pleadings (Doc. 24) are each

GRANTED in part and DENIED in part. No claims remain against Defendants School

Board, Stratton, or City of Monroe, Ohio Police Department. The only claim that remains

against Defendant Giffen is Plaintiff's claim for intentional inflectional emotional distress.

Plaintiff's Fourth Amendment and Equal Protection Clause claims remain against

Defendant Jackson in his individual capacity. Plaintiff's claims under Section 504 and the

ADA remain against Defendant Jackson in his official capacity. Plaintiff's claims for

negligence, negligent infliction of emotional distress, assault, battery, and intentional

infliction of emotional distress also remain against Defendant Jackson. The Court will

schedule a telephone conference to discuss the calendar in this matter shortly.

IT IS SO ORDERED.

_/s Michael R. Barrett_______

Michael R. Barrett, Judge

United States District Court