Isaacs v. Konawa Public Schools

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

JESSI ISAACS, as Personal )

Representative, for the Estate )

of Rhindi Kay Isaacs, Deceased, )

and Next of Kin, )

) Case No. CIV-20-187-KEW

Plaintiff, )

)

v. )

)

KONAWA PUBLIC SCHOOLS, INDEPENDENT )

SCHOOL DISTRICT I-004, THE BOARD )

OF EDUCATION OF KONAWA PUBLIC )

SCHOOLS, JOSEPH SCOGGINS, in his )

official capacity as employee of )

KONAWA PUBLIC SCHOOLS, and in )

his individual capacity, )

)

Defendants. )

OPINION AND ORDER

Plaintiff Jessi Isaacs initiated this action on behalf of her

deceased daughter, Rhindi Issacs (“Rhindi”), in the District Court

of Seminole County, Oklahoma on May 22, 2020, against Defendants

Independent School District I-004 of Seminole County, Oklahoma,

the Konawa Public Schools (the “School District”), the Board of

Education of Konawa Public Schools (the “Board”), Joseph Scoggins

(“Scoggins”), in his official capacity as an employee of the Konawa

Public Schools, and Oklahoma School Insurance Group (“OSIG”). The

action was removed to this Court on June 18, 2020, and the

Defendants filed a partial motion to dismiss on June 24, 2020. The

parties consented to the undersigned judge on July 28, 2020.

In lieu of filing a response to the partial motion to dismiss,

and in accordance with the deadlines contained in the Court’s

scheduling order, Plaintiff filed an Amended Complaint on August

14, 2020, wherein she sued Scoggins individually and in his

official capacity as a School District employee, in addition to

the School District and the Board. Plaintiff did not name OSIG as

a defendant in the Amended Complaint. On August 28, 2020, the

School District and the Board filed Defendants’ Partial Motion to

Dismiss and Brief in Support (Docket Entry #24) and Defendant

Scoggins filed his Motion to Dismiss Amended Complaint and Brief

in Support (Docket Entry #25). These motions now come before the

Court for ruling.

Plaintiff’s Allegations

On March 8, 2019, Plaintiff’s daughter, Rhindi, was a member

of the Konawa Junior High softball team, when she was involved in

a tragic accident while traveling on the School District’s activity

bus with five other members of the softball team and its driver,

Scoggins, who was a coach and School District employee. On the way

back from a softball game in Okemah, Oklahoma, the activity bus

was involved in a head-on collision with an SUV, driven by third-

party John Tallbear (“Tallbear”). See Amended Complaint, ¶¶ 5, 8-

10 (Docket Entry # 21).

Plaintiff alleges that prior to the accident, Rhindi was not

sitting in her seat but was instead sitting on the floor or the

steps of the bus. She alleges that at the time of the accident,

Rhindi was standing in the stairwell of the bus, while the other

students were sitting in their seats in the first three rows of

the bus. The stairwell portion of the bus was the exact spot where

Tallbear’s SUV impacted the bus in the collision. Scoggins and the

other students survived the crash, but Rhindi did not. Tallbear

and another individual did not survive. Id. at ¶¶ 9-10, 12.

Plaintiff also alleges that the surviving students have

reported they could see the approaching SUV in their lane (the

right lane) and that Scoggins communicated to them that he planned

to avoid the accident by veering the bus into the left lane prior

to impact, in an attempt to have any impact by the SUV be at the

back of the bus. Plaintiff contends that prior to impact, Scoggins

intentionally veered the bus to the left, yelling “BRACE

YOURSELVES,” but the bus and SUV collided head on when the SUV

returned to the left lane. Plaintiff asserts that other drivers

who encountered the SUV pulled over to avoid a collision, and

Scoggins should have minimized or avoided the collision by pulling

the bus to the shoulder and stopping. Id. at ¶¶ 13-15.

Plaintiff further contends that after the accident, when

questioned by the middle school principal about Rhindi’s

whereabouts, Scoggins first reported Rhindi had been on the right

side of the bus with two other student athletes. When the principal

still could not locate Rhindi, he again asked Scoggins about

Rhindi. Plaintiff asserts Scoggins told the principal Rhindi had

been transported to the hospital by ambulance. The principal later

learned that Rhindi was still on the bus and was deceased. Id. at

¶ 11.

Plaintiff asserts the following claims against the School

District, the Board, and Scoggins, individually and in his official

capacity as a School District employee: (1) a state law claim for

negligence under the Oklahoma Governmental Tort Claims Act

(“GTCA”); (2) a state law claim under the Oklahoma Constitution,

Article II, § 7, based upon a violation of substantive due process

rights under the danger creation exception; (3) a federal claim

under 42 U.S.C. § 1983 for violations of the Due Process Clause

under the Fifth and Fourteenth Amendments to the United States

Constitution; and (4) a federal claim under 42 U.S.C. § 1983 for

a violation of substantive due process based upon the danger

creation exception.

The School District and Board filed their partial motion to

dismiss, seeking dismissal of the Board arguing it is not a proper

party to the lawsuit because it is not a legal entity capable of

being sued. They also sought dismissal of any negligence claims

alleged by Plaintiff under certain GTCA exemptions based upon

negligent hiring, training, supervision, and retention, failing to

adopt or enforce policies related to chaperones, teachers and

coaches serving as bus drivers, and prevention of activity buses

from being in motion unless all passengers are seated. The School

District and Board sought dismissal of Plaintiff’s claim brought

under the Oklahoma Constitution because no private right of action

is available. They further sought dismissal of Plaintiff’s federal

claims brought under 42 U.S.C. § 1983 for violation of her

substantive due process rights, including a claim brought under

the danger creation exception. The School District and Board did

not seek dismissal of Plaintiff’s common-law negligence claim. See

Defendants’ Partial Motion to Dismiss (Docket Entry # 24).

Through his motion to dismiss, Scoggins asserts any

negligence claim against him personally is precluded because he

was acting in the scope of his employment at the time of the

accident. He asserts Plaintiff’s state constitutional claim is

barred because there is no private right of action under the

Oklahoma Constitution. He further asserts that Plaintiff has

failed to state a claim under the substantive due process standard

or under a danger creation exception of substantive due process.

Scoggins maintains that he is entitled to qualified immunity on

Plaintiff’s federal claims brought against him. See Scoggins’

Motion to Dismiss (Docket Entry # 25).

Standard on a Motion to Dismiss

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and

Ashcroft v. Iqbal, 556 U.S. 662 (2009), the United States Supreme

Court set forth the plausibility standard applicable to a motion

to dismiss filed under Fed. R. Civ. P. 12(b)(6). Clearly, Bell

Atlantic changed the legal analysis applicable to such motions,

creating a “refined standard.” Khalik v. United Airlines, 671 F.3d

1188, 1191 (10th Cir. 2012) (citation omitted). Bell Atlantic

stands for the summarized proposition that “[t]o survive a motion

to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim for relief that is plausible

on its face.’” Ashcroft, 556 U.S. at 678, quoting Bell Atlantic,

550 U.S. at 570. The Supreme Court did not parse words when it

stated in relation to the previous standard that “a complaint

should not be dismissed for failure to state a claim unless it

appears beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief” is “best

forgotten as an incomplete, negative gloss on an accepted pleading

standard.” Bell Atlantic, 550 U.S. at 546.

The Court of Appeals for the Tenth Circuit has interpreted

the plausibility standard as referring “to the scope of the

allegations in the complaint: if they are so general that they

encompass a wide swath of conduct, much of it innocent, then the

plaintiffs ‘have not nudged their claims across the line from

conceivable to plausible.’” Robbins v. Oklahoma, 519 F.3d 1242,

1247 (10th Cir. 2008). The Bell Atlantic case, however, did not

intend the end of the more lenient pleading requirements of Fed.

R. Civ. P. 8(a)(2). Khalik, 671 F.3d at 1191. Rather, in Khalik,

the Tenth Circuit recognized the United States Supreme Court’s

continued endorsement of Rule 8’s “short and plain statement”

requirement in the case of Erickson v. Pardus, 551 U.S. 89 (2007),

wherein the Supreme Court found “[s]pecific facts are not

necessary; the statement need only ‘give the defendant fair notice

of what the . . . claim is and the grounds upon which it rests.’”

Id. at 93.

Initial Matters Regarding Defendants’ Motions

1) Request for Court to Strike School District & Board’s Motion

As an initial matter, Plaintiff requests that the Court strike

the School District and Board’s motion to dismiss because two

motions were filed in the case, one on behalf of the School

District and the Board, and a separate motion on behalf of

Scoggins. However, nothing in the Federal Rules of Civil Procedure

or this Court’s Local Rules precluded Defendants from filing

separate motions for each Defendant. The separate Motions to

Dismiss complied with the requirements of LCvR 7.1(b),(c).

2) Request that Motion Be Treated as Motion for Summary Judgment

Plaintiff also objects to the School District and Board’s

introduction section of their motion to dismiss, asserting that

the motion should be denied because the introduction references

facts that are not included in the Amended Complaint. Federal Rule

of Civil Procedure 12(f) references the requirement that a motion

to dismiss be treated as a motion for summary judgment when matters

outside the pleadings are presented to and not excluded by the

court. The Court declines to convert the motion to one for summary

judgment. To the extent the School District and Board included

factual information in the introduction section of their motion

that was not included in Plaintiff’s Amended Complaint, the Court

does not consider it in ruling upon the Motion.

3) The Board is Not a Proper Party to this Action

In addition to alleging state and federal claims against the

School District, Plaintiff included the Board of Education for the

Konawa Public Schools as a defendant in the case. The School

District argues that the Board is not a legal entity subject to

suit, citing several federal district court cases from Oklahoma,

including one from this district. Plaintiff responds by citing to

a case filed by Board of Education of Oklahoma City Public Schools,

Independent School District No. 89, Oklahoma County v. Dowell, et

al., 498 U.S. 237 (1991), where Plaintiff contends the Board of

Education sued on its own behalf. Plaintiff further argues that

her federal claims are not limited under Oklahoma law and can be

brought against the Board.

Section 5-105 of the Oklahoma Statutes provides generally

that every school district is a body corporate and for public

purposes, it possesses the usual powers of a corporation. Okla.

Stat. tit. 70, § 5-105. It dictates that the name of a school

district shall be designated as “Independent (or Elementary, if it

is an elementary school district) School District Number ____ (such

number as may be designated by the State Board of Education) of

_______ (the name of the county in which the district is located

. . . ) County, Oklahoma.” Id. Section 5-105 further states that

a school district “may sue and be sued” in its name. Id. A board

of education is established by Title 70 - “[t]he governing board

of each school district in Oklahoma is hereby designated and shall

hereafter be known as the board of education of such district.”

Okla. Stat. tit. 70, § 5-106. Section 5-106, however, makes no

mention of any authority by a school board to sue or be sued.

Federal Rule of Civil Procedure 17 states that the capacity

for a corporation to sue or be sued is determined by the law of

the state in which the corporation was organized. See Fed. R. Civ.

P. 17(b)(2). Oklahoma law also provides that corporations must sue

or be sued in their corporate name. See Okla. Stat. tit. 18, §

1016.

The Court finds the cases from the other federal district

courts in Oklahoma persuasive on this issue. For example, in

Primeaux v. Independent School District No. 5 of Tulsa County,

Oklahoma, 954 F.Supp.2d 1292 (N.D. Okla. 2012), the court examined

the language of Sections 5-105 and 5-106 of Title 70 of the

Oklahoma Statutes and determined that “Oklahoma school boards are

not separate, suable entities” and dismissed the claims against

the school board. Id. at 1294-95. The Primeaux court also noted

that because the school district and the district’s board were

both named as defendants in the case for the same claims, as

Plaintiff has done in this case, the claims were duplicative. Id.

at 1295. Also, in Teams Systems International, LLC v. Haozous,

2015 WL 2131479 (W.D. Okla., May 7, 2015), the court dismissed

claims against a board of directors, finding the issue analogous

to a board of education of a school district and that “the board

may not sue or be sued.” Id. at 2. Further, in Hopkins v. Bacone

College, 2016 WL 6604357 (E.D. Okla., Nov. 8, 2016), the court

relied on these other decisions and determined that the college’s

board of trustees was not a suable entity. Id. at 2.

Accordingly, the Board is not a proper party and is hereby

dismissed from the action.

4) Section 1983 Official Capacity Claims Against Scoggins

Scoggins contends that the federal claims brought against him

in his official capacity under § 1983 should be dismissed because

they are merely claims brought against the School District, which

is also named as a defendant in the action. This Court agrees that

such claims are duplicative and should be dismissed as against

Scoggins in his official capacity. See D.L. v. Unified School Dist.

No. 497, 392 F.3d 1223, 1227 (10th Cir. 2004) (recognizing district

court’s dismissal of official capacity claims as redundant of

naming of District); Rubio v. Turner Unified School Dist. No. 202,

453 F.Supp.2d 1295, 1300 (D. Kan. 2006) (suit against both the

school district and individuals in their official capacities was

duplicative). As a result, Scoggins in his official capacity is

properly dismissed from this action.

Plaintiff’s Federal Substantive Due Process Claims

1) Pertinent Standards to Plaintiff’s § 1983 Claims

a) Qualified Immunity-Scoggins

Scoggins contends that he is entitled to qualified immunity

regarding Plaintiff’s federal substantive due process claims.

“Individual defendants named in a § 1983 action may raise a defense

of qualified immunity,” Cillo v. City of Greenwood Village, 739

F.3d 451, 459 (10th Cir. 2013), which “shields public officials .

. . from damages actions unless their conduct was unreasonable in

light of clearly established law,” Gann v. Cline, 519 F.3d 1090,

1092 (10th Cir. 2008)(quotations omitted). Generally, “when a

defendant asserts qualified immunity, the plaintiff carries a two-

part burden to show: (1) that the defendant’s actions violated a

federal constitutional or statutory right, and, if so, (2) that

the right was clearly established at the time of the defendant’s

unlawful conduct.” Cillo, 739 F.3d at 460.

b) Municipal Liability-School District

When a § 1983 claim is asserted against a municipality, such

as the School District, a court must consider “(1) whether

plaintiff’s harm was caused by a constitutional violation, and (2)

if so, whether the city is responsible for that violation.” Collins

v. City of Harker Heights, 503 U.S. 115, 120 (1992). However, “a

municipality cannot be held liable solely because it employs a

tortfeasor—or, in other words, a municipality cannot be held liable

under § 1983 on a respondeat superior theory.” Monell v. New York

City Dep’t of Social Servs., 436 U.S. 658, 691 (1978) (emphasis in

original).1 A municipality is liable under § 1983 “when execution

of a government’s policy or custom, whether made by its lawmakers

or by those whose edicts or acts may fairly be said to represent

official policy, inflicts the injury that the government as an

entity is responsible[.]” Id.

2) Deprivation of Life-Substantive Due Process Claim

Plaintiff contends in her Amended Complaint that Scoggins and

the School District violated Rhindi’s substantive due process

rights under § 1983 by depriving her of life in violation of the

Fifth and Fourteenth Amendments to the United States Constitution.2

“The Fourteenth Amendment prohibits a State from depriving

‘any person of life, liberty, or property without due process of

law.’” Hernandez v. Ridley, 734 F.3d 1254, 1258 (10th Cir. 2013),

1 In the Amended Complaint, Plaintiff alleges that “[p]ursuant

to respondeat superior, Konawa Independent School District as employer

of their agent, Scoggins, are liable for the willful acts of its

employee, while he was driving the activity bus.” Amended Complaint, ¶

42.

2  The Court notes that “[t]he Due Process Clause of the Fifth

Amendment applies only to action by the federal government while the Due

Process Clause of the Fourteenth Amendment applies to actions by state

governments.” Koessel v. Sublette County Sheriff’s Dept., 717 F.3d 736,

748 n.2 (10th Cir. 2013). Based on the allegations of the Amended

Complaint, Plaintiff has no claim for relief under the Fifth Amendment.

quoting U.S. Const. amend. XIV, § 1. The substantive component of

the Due Process Clause of the Fourteenth Amendment “bars certain

arbitrary, wrongful government actions ‘regardless of the fairness

of the procedures used to implement them.’” Zinermon v. Burch, 494

U.S. 113, 125 (1990), quoting Daniels v. Williams, 474 U.S. 327,

331 (1986). The Tenth Circuit has held that “there must be an

element of deliberateness in directing the misconduct toward

plaintiff before the Due Process Clause is implicated.” Seamons v.

Snow, 84 F.3d 1226, 1234 (10th Cir. 1996); see also Daniels, 474

U.S. at 331 (noting the guarantee of due process applies to

“deliberate decisions of government officials to deprive a person

of life, liberty, or property”). However, the clause is “phrased

as a limitation on the State’s power to act, not as a guarantee of

certain minimal levels of safety and security.” DeShaney v.

Winnebago County Dep’t of Social Servs., 489 U.S. 189, 195 (1989).

A violation of substantive due process is “not implicated by a

negligent act of an official causing unintended loss of or injury

to life, liberty, or property.” Daniels, 474 U.S. at 328 (emphasis

in original).

A substantive due process violation also requires that the

state actor engage in conduct that “shocks the conscience.” Rochin

v. California, 342 U.S. 165, 172 (1962). To meet this standard, “a

plaintiff must do more than show that the government actor

intentionally or recklessly caused injury to the plaintiff by

abusing or misusing government power.” Uhlrig v. Harder, 64 F.3d

567, 574 (10th Cir. 1995); see also Koessel, 717 F.3d at 750 (“Even

most intentionally inflicted injuries caused by misuse of

government authority will not meet this standard.”) (citation

omitted). “[T]he plaintiff must demonstrate a degree of

outrageousness and a magnitude of potential or actual harm that is

truly conscience shocking.” Uhlrig, 64 F.3d at 574. This “requires

a high level of outrageousness, because the Supreme Court has

specifically admonished that a substantive due process violation

requires more than an ordinary tort[.]” Id.3 Whether such conduct

shocks the conscience is a question of law for the court. See Perez

v. Unified Gov’t of Wyandotte Cty./Kan. City, Kan., 432 F.3d 1163,

1168 n.4 (10th Cir. 2005); see also Moore v. Guthrie, 438 F.3d

1036, 1040 (10th Cir. 2006) (“The ultimate standard for determining

whether there has been a substantive due process violation is

whether the challenged government action shocks the conscience of

federal judges.”) (quotation omitted).

In the Amended Complaint, Plaintiff alleges it was at least

grossly negligent for Scoggins to: (1) disobey the rules of the

3 When considering whether conduct is conscience shocking,

courts should “bear in mind three basic principles highlighted by the

Supreme Court in evaluating substantive due process claims: (1) the need

for restraint in defining their scope; (2) the concern that § 1983 not

replace state tort law; and (3) the need for deference to local

policymaking bodies in making decisions impacting upon public safety.”

Uhlrig, 64 F.3d at 573 (citations omitted).

road and veer into oncoming traffic, (2) fail to locate Rhindi

after the accident, and (3) misrepresent her whereabouts to the

principal. She also contends “it was totally without regard to the

life & wellbeing of Rhindi Isaacs for . . . Scoggins to allow

Rhindi to stand in the stair[well] of the bus when he knew that

his plan was to impact the oncoming vehicle.” Id. at ¶¶ 16-17.

Considering Plaintiff’s allegations against Scoggins as true,

the Court does not find Scoggins’ conduct as conscience shocking

in a constitutional sense. Plaintiff has not demonstrated

deliberate conduct by Scoggins wherein he intended to cause the

death of Rhindi. The Amended Complaint asserts that Scoggins veered

from the right lane of traffic into the left lane of traffic to

avoid hitting Tallbear’s SUV, which was traveling in the right

lane. Thus, he did not veer into oncoming traffic. The students

were sitting in the first three rows of the bus and Rhindi was in

the stairwell—all at the front of the bus. As alleged by Plaintiff,

Scoggins’ plan was that if the SUV hit the bus, it would hit the

rear of the bus. Although his plan in hindsight could certainly be

viewed as negligent or perhaps even reckless to the safety of all

the students on the bus, Scoggins’ conduct was not deliberate

toward Rhindi and was a decision made in the moment to veer into

the left lane to avoid the SUV, instead of pulling to the side of

the road. Moreover, although the allegations of Scoggins’ conduct

after the accident are troubling to the Court, like his conduct

leading up to the accident, Scoggins’ conduct is likely negligent,

but it does not “demonstrate a degree of outrageousness and a

magnitude of potential or actual harm that is truly conscience

shocking.” Uhlrig, 64 F.3d at 574; see also DeAnzona v. City and

County of Denver, 222 F.3d 1229, 1235 (10th Cir. 2000) (“[M]ere

negligence does not shock the conscience.”).

As to the School District, Plaintiff alleges the Board knew

there was a chronic shortage of bus drivers and chaperones, but it

continued to vote and approve activity trips for students placing

them in danger of injury or death. Amended Complaint at ¶ 23.

Plaintiff contends the School District was deliberately

indifferent to student safety by: (1) violating national safety

standards, specifically the National School Transportation

Specifications & Procedures, recommended for all Oklahoma schools,

which required that chaperones accompany students on activity

trips and that students remain seated in their seats while the bus

was moving, (2) requiring teachers and coaches to act as drivers

because of understaffing, resulting in distracted drivers and

violations of federal motor carrier guidelines limiting drivers to

being on duty for no more than fifteen hours, and (3) failing to

train their bus drivers to stay right of center or to pull off on

the shoulder if necessary to avoid a collision. Plaintiff asserts

that these policies, customs, or procedures of the School District

were deliberately indifferent “to the constitutional rights of

their students’ life and liberty,” and resulted in Rhindi’s death.

Id. at ¶¶ 24-30.

Construing Plaintiff’s allegations against the School

District as true, they do not rise to the level of conscience

shocking conduct. See Green v. Post, 574 F.3d 1294, 1302 (10th

Cir. 2009) (“To rise to the level of a constitutional violation,

a deliberately indifferent act must be one which is conscience-

shocking—the Supreme Court has acknowledged that not every

deliberately indifferent action will rise to the ‘constitutionally

shocking level.’”), quoting Bublitz v. Cottey, 327 F.3d 485, 490

(7th Cir. 2003). Violations of state law do not constitute a

violation of the Federal Constitution. See Nordlinger v. Hahn, 505

U.S. 1, 26 (1992) (“A violation of state law does not by itself

constitute a violation of the Federal Constitution.”). Moreover,

failing to follow certain state and federal regulations does not

rise above the level of negligence. See Ruiz v. McDonnell, 299

F.3d 1173, 1184 (10th Cir. 2002), cert. denied, 538 U.S. 999 (2003)

(finding that state defendants’ failure to conduct requisite

background and insurance checks based on state and federal statutes

and regulations governing child care licensing did not rise above

the level of negligence and therefore did not constitute

conscience-shocking conduct). Further, “[e]ven knowingly

permitting unreasonable risks to continue does not necessarily

rise to the level of conscience shocking.” DeAnzona, 222 F.3d at

1235 (10th Cir. 2000); see also Moore, 438 F.3d at 1041 (“[T]he

Supreme Court has specifically admonished that a substantive due

process violation requires more than an ordinary tort and that

merely allowing unreasonable risks to persist in the workplace is

not necessarily conscience shocking.”), quoting Uhlrig, 64 F.3d at

574, citing Collins, 503 U.S. at 128.

Accordingly, although the death of three individuals in such

a manner is always tragic and shocking, the Court finds the conduct

of Scoggins and the School District is not shocking to this Court’s

judicial conscience in a constitutional sense. In making this

determination, the Court has considered the basic principles set

out by the Supreme Court for evaluating substantive due process

claims, and in reaching the decision, exercises restraint in

defining the scope of such a claim, accounts for concern that §

1983 not replace state tort law, and gives deference to local

policymaking bodies in making decisions impacting upon public

safety. Uhlrig, 64 F.3d at 573 (citations omitted). Scoggins is

therefore entitled to qualified immunity on this claim, and

Plaintiff has failed to satisfy the requirements for municipal

liability against the School District.

3) Danger creation exception-Substantive Due Process

Plaintiff further alleges that “the acts and omissions of the

[D]efendants constituted a state-created danger that caused

[Rhindi’s] death.” Id. at ¶ 30. “Generally, state actors may only

be held liable under § 1983 for their own acts, and not for the

violent acts of third parties.” Ruiz, 299 F.3d at 1182, citing

DeShaney, 489 U.S. at 197. There are, however, two exceptions to

the general rule: (1) the special relationship exception and (2)

the danger creation exception. Here, Plaintiff alleges only a

substantive due process violation under the danger creation

exception.4

“To invoke the danger-creation exception, a plaintiff must

establish as a threshold matter (1) private violence, and (2)

affirmative conduct on the part of the state in placing the

plaintiff in danger.” Hernandez, 734 F.3d at 1259, citing Gray v.

University of Colo. Hosp. Auth., 672 F.3d 909, 920 & n.8 (10th

4 If Plaintiff was raising a substantive due process claim

against Scoggins and the School District under the special relationship

exception, her claim would fail. A special relationship arises when “the

State’s affirmative act of restraining the individual’s freedom to act

on his own behalf – through incarceration, institutionalization, or other

similar restraint of personal liberty – which is the ‘deprivation of

liberty’ triggering the protections of the Due Process Clause[.]”

DeShaney, 489 U.S. at 200. “Inaction by the state in the face of a known

danger is not enough to trigger the obligation[,]” because “[t]he

affirmative duty to protect arises not from the State’s knowledge of the

individual’s predicament . . . but from the limitation which it has

imposed on his freedom to act on his own behalf.” Id.; see also Graham

v. Independent School District No. I-89, 22 F.3d 991, 995 (10th Cir.

1994) (“In the absence of a custodial relationship, we believe plaintiffs

cannot state a constitutional claim based upon the defendants’ alleged

knowledge of dangerous circumstances.”). In Maldonado v. Josey, the Tenth

Circuit determined that “[a]lthough a child may well be in the ‘custody’

of the school authorities during school hours, this custody does not

amount to a restraint that prohibits the child and his parents from

caring for the basic needs of the child.” 975 F.2d 727, 732 (10th Cir.

1992), cert. denied, 507 U.S. 914 (1993). Thus, “[t]he Tenth Circuit has

held repeatedly that because schools do not provide for a child’s basic

needs, schoolchildren do not have a special relationship with the

government.” DeAnzona, 222 F.3d at 1234.

Cir. 2012). If these preconditions are met, a plaintiff must then

satisfy all elements of a six-part test: “(1) [defendant] created

the danger or increases plaintiff’s vulnerability to the danger in

some way; (2) plaintiff was a member of a limited and specifically

definable group; (3) defendant’s conduct put plaintiff at

substantial risk of serious, immediate, and proximate harm; (4)

the risk was obvious or known; (5) defendants acted recklessly in

conscious disregard of that risk; and (6) such conduct, when viewed

in total, is conscience shocking.” Id. (quotation omitted).

The Court finds that Plaintiff has not satisfied either pre-

condition of the danger creation exception. She has pointed to no

conduct by Scoggins that was affirmative conduct that placed Rhindi

in danger. First, Scoggins’ conduct prior to the accident was not

directly aimed at Rhindi. See Ruiz, 299 F.3d at 11883 (“[T]he

conduct should be directed at a discrete plaintiff[.]”). Second,

Plaintiff does not allege that Scoggins told Rhindi to stand in

the stairwell of the bus. Plaintiff only alleges that he did not

stop her from doing it. Allowing her to stand in the stairwell

does not constitute affirmative conduct. See Estate of B.I.C. v.

Gillen, 710 F.3d 1168, 1173 (10th Cir. 2013) (“There is, however,

a question as to whether there is sufficiently affirmative conduct

on the part of the state in placing the plaintiff in danger. Our

precedents consistently conclude that mere negligence or inaction

is not enough.”).

Likewise, Plaintiff has not demonstrated affirmative conduct

by the School District. In Gray v. University of Colorado Hosp.

Auth., 672 F.3d 909 (10th Cir. 2012), the Tenth Circuit found that

“because the act of establishing such policies and customs does

not pose a direct threat to any one particular individual but

affects a broader populace, we deem such act too remote to

establish the necessary causal link between the danger to the

victim and the resulting harm.” Id. at 926, citing Ruiz, 299 F.3d

at 1183. It concluded that “Defendants’ adoption of policies and

customs generally applicable to all EMU patients, even if done in

reckless disregard of a generalized risk, did not constitute

affirmative conduct sufficient to impose § 1983 liability on

Defendants under the state-created danger theory.” Id. at 927. The

same would be true as to any of the School District’s alleged

policies, customs, or procedures in this case.

The other precondition, private violence, “requires a private

act of violence to have caused the victim’s harm.” Hernandez, 734

F.3d 1254, 1259 (10th Cir. 2013), citing Gray, 672 F.3d at 928.

“Violence requires “[a]t the very least” some degree of

deliberateness on the part of the private actor; negligence is

insufficient.” Id., citing Gray, 672 F.3d at 928-29. Plaintiff has

not alleged in the Amended Complaint that Tallbear’s driving was

an act of violence. The only mention of any action by Tallbear is

“that the factual allegations as described herein constitute

negligence and/or gross negligence” of Defendants and Mr.

Tallbear. Amended Complaint, ¶ 21, p. 6. “[N]o constitutional

violation occurs when a private party’s underlying negligent act

is directly responsible for the victim’s harm.” Hernandez, 734

F.3d at 1259.

In any event, even if Plaintiff can satisfy the preconditions,

she must still meet the six-part test, which includes a showing

that the conduct is conscience shocking. See Moore, 438 F.3d at

1042 (noting that a plaintiff’s duty to allege actions that shock

the conscience applies to the special relationship and danger

creation exceptions). As previously discussed herein, the Court

determined that the alleged conduct of Scoggins and the School

District does not shock the judicial conscience in the

constitutional sense.

Accordingly, Scoggins is entitled to qualified immunity on

Plaintiff’s state-created danger substantive due process claim,

and Plaintiff has failed to satisfy the requirements for municipal

liability against the School District.

Amendment of the Pleadings

Federal Rule of Civil Procedure 15(a)(2) states that “[t]he

court should freely give leave [to amend] when justice so

requires.” However, denial of amendment is appropriate, “if the

amendment would be futile[.]” Jones v. Norton, 809 F.3d 564, 573

(10th Cir. 2015).

“Rule 7 requires a request for relief to be made by a motion

that (1) is in writing, (2) ‘states with particularity the grounds

for seeking the order,’ and (3) specifies the relief sought.”

Albers v. Board of Cty. Comm’rs of Jefferson City, Colo., 771 F.3d

697, 706, quoting Fed. R. Civ. P. 7(b). In Albers, the court

“recognized the importance of Fed. R. Civ. P. 7(b) and have held

that normally a court need not grant leave to amend when a party

fails to file a formal motion.” Id. Here, Plaintiff never sought

leave to file another amended complaint by formal motion nor did

she request to do so in her responses. See Burnett v. Mortgage

Elec. Registration Sys., Inc., 706 F.3d 1231, 1238 n.4 (10th Cir.

2013) (“Where a plaintiff does not move for permission to amend

the complaint, the district court commits no error by not granting

such leave.”).

Moreover, even after Defendants filed their latest motions to

dismiss, Plaintiff again did not seek to amend, but she instead

included additional factual allegations in her response briefs.

See Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson,

P.C., 956 F.3d 1228, 1236 (10th Cir. 2020) (“When a party faces a

motion to dismiss and it believes that it can overcome objections

with an amendment to the pleading, it should seek leave to amend

at that time. Efficient adjudication of disputes requires that the

party present its best effort to state a claim before the court

addresses the motion to dismiss.”).

In her response to Defendants’ motions, Plaintiff includes

additional factual information that was not part of the Amended

Complaint. Specifically, she includes references in the response

brief alleging Scoggins violated provisions in the Oklahoma School

Bus Driver’s Manual, the Konawa Public School Bus Rider’s Guide,

and the Oklahoma Commercial Driver’s License Manual. She also

alleges facts related to the accident that were not included in

the Amended Complaint, including that Scoggins “intentionally

steered the bus into the SUV[,]” “met with the surviving members

of the softball team to inform them to keep secret his plan to

steer into the path of the oncoming SUV[,]” and that “[a]fter

impact, based on the positioning of her remains, Scoggins stepped

over Rhindi in order for him to exit the bus.” See Plaintiff’s

Response to Scoggins’ Motion to Dismiss, pp. 6-11 (Docket Entry #

29).

Regarding the School District, Plaintiff includes the

following additional facts in her response: (1) references to the

Student Handbook, Bus Rider’s Guide regarding chaperones; (2)

notifications to the Board by the principal that teachers and

coaches were overworked and it was dangerous for them to transport

students on the activity bus after working a full day; (3)

notification to the Board by the principal that “new drivers needed

to be hired to safely transport students;” (4) personnel who

transported students on the activity buses “routinely began their

bus driving duties at 5:00 a.m. in the bus yard and continue their

duties with regard to transporting students on activity trips until

10:00 p.m.;“ (5) “Scoggins met with the surviving members of the

softball team to inform them to keep secret his plan to steer into

the path of the oncoming SUV;” (6) the concern of parents over the

exhaustion of coach/bus drivers which resulted in parents not

allowing their child to ride on the activity bus; and (7)

notifications to the Board by the principal and concerned parents

that coaches/bus drivers were violating the 15-hour rule. See

Plaintiff’s Response in Opposition to Defendants’ Partial Motion

to Dismiss, pp. 6-8, 10-11 (Docket Entry # 28).

In any event, even considering the additional factual

information contained in Plaintiff’s responses, the Court finds

Plaintiff fails to allege conduct by Scoggins or the School

District that is conscience shocking in a constitutional sense for

the same reasons addressed herein. Accordingly, the Court finds

amendment would be futile.

State Law Claims

As detailed herein, Plaintiff’s Amended Complaint fails to

state a federal claim upon which relief can be granted against

Scoggins or the School District. The only remaining claims are

state law claims of negligence and claims under the Oklahoma

Constitution, which come before the Court only on the basis of

supplemental jurisdiction. See 28 U.S.C. § 1367(a). “When all

federal claims have been dismissed, the court may, and usually

should, decline to exercise jurisdiction over any remaining state

claims.” Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir.

2011). If a case has been removed from state court and the federal

claims are dismissed by the federal court, it has discretion to

either dismiss the state law claims or remand them to state court.

See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).

Here, based on the authority in 28 U.S.C. § 1367(c), the Court

declines to exercise supplemental jurisdiction over Plaintiff’s

remaining state law claims of negligence and violation of the

Oklahoma Constitution. These claims are hereby remanded to the

District Court of Seminole County, Oklahoma.

IT IS THEREFORE ORDERED that Defendants’ Partial Motion to

Dismiss and Brief in Support (Docket Entry #24) is hereby GRANTED,

in relation to Plaintiff’s claims for violations of Rhindi Isaac’s

Fourteenth Amendment rights to substantive due process. Moreover,

the Board is dismissed as a party to the action. The Court declines

to exercise supplemental jurisdiction over Plaintiff’s remaining

state law claims against the School District, and they are

therefore REMANDED to the District Court of Seminole County,

Oklahoma.

IT IS FURTHER ORDERED that Defendant Scoggins’ Motion to

Dismiss Amended Complaint and Brief in Support (Docket Entry #25)

is hereby GRANTED, in relation to Plaintiff’s claims for violations

of Rhindi Isaac’s Fourteenth Amendment rights to substantive due

process. The Court declines to exercise supplemental jurisdiction

over Plaintiff’s remaining state law claims against Scoggins, and

they are therefore REMANDED to the District Court of Seminole

County, Oklahoma.

IT IS SO ORDERED this 31st day of March, 2021.

_____________________________

KIMBERLY E. WEST

UNITED STATES MAGISTRATE JUDGE