# Stevens v. Berryhill Board of Education

> District Court, N.D. Oklahoma · January 2, 2024

URL: https://www.frixlaw.com/law-library/cases/10387378

## Case

- **Court:** District Court, N.D. Oklahoma
- **Decided:** January 2, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

(1) ANGELA STEVENS, as Next Friend to
and on behalf of D.S., a minor,

Plaintiff,

v. No. 19-cv-637-WPJ-JFJ

(1) BERRYHILL BOARD OF EDUCATION,
(2) BERRYHILL PUBLIC SCHOOLS,
(3) ZACH ARTERBERRY,
(4) LEVI BRADLEY, as Next Friend of T.B., a Juvenile,
(5) MEGAN ENNIS, Individually and in her capacity
as a teacher at Berryhill Public Schools
(6) RONNA TAYLOR, Individually and in her capacity
as a principal at Berryhill Public Schools,
(7) JAMES FOX, Individually and in his capacity
as principal at Berryhill Public Schools,
(8) BRIAN HAILEY, Individually and in his capacity
as an Assistant Principal at Berryhill Public Schools,

Defendants.

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court1 upon motions to dismiss filed on January 14,
2020, by Defendant Independent School District No. 10 of Tulsa County, referred to in the caption
as “Berryhill Public Schools”2 (“School District”) (Doc. 13), and Defendants Ronna Taylor, James
Fox, and Brian Hailey in their individual and official capacities (collectively “Administrators”)
(Doc. 14). Having reviewed the parties’ arguments, the relevant documents, and the applicable
law, the Court finds the Defendant School District’s Motion is well-taken, except as to its

1 Chief United States District Court Judge William P. Johnson of the District of New Mexico was assigned this case
as a result of the Tenth Circuit Order designating Judge Johnson to hear and preside over cases in the Northern District
of Oklahoma.
2 The School District is hereby directed to file a Form CV-26 Notice of Party Name Correction, available at
https://www.oknd.uscourts.gov/forms/civil, within 10 business days after entry of this order.
administrative exhaustion argument, and grants its Motion in part and denies it in part. The Court
finds the Defendant Administrators’ Motion is well-taken and therefore grants it.
BACKGROUND3
Plaintiff is the adoptive mother of D.S., a minor child who developed stunted growth and
learning disabilities after his biological mother habitually used methamphetamine during her

pregnancy. Doc. 2, at ⁋⁋ 17–18. D.S. attended Berryhill Public Schools, located in Tulsa County,
Oklahoma. Id. at ⁋⁋ 3, 16. Because of D.S.’s learning disabilities and a diagnosis for ADHD, he
was on an Individualized Education Plan (“IEP”). Id. at ⁋ 17.
While at Berryhill, D.S.’s stunted growth unfortunately made him a target of repeated
bullying. Id. at ⁋ 18. During his seventh-grade year, in 2016–2017, D.S. was forced into a closed
locker; was hit in the face hard enough to cause a black eye by another student (and Defendant),
“T.B.”; was placed in in-school suspension with T.B., who struck D.S. in the head with a book and
further threatened D.S.; and was subject to further verbal abuse. Id. at ⁋⁋ 19–20, 23, 25–26.
Plaintiff and D.S. reported the bullying to school officials and Plaintiff spoke with officials

numerous times, but the school did not follow through on a promised investigation or take other
action to stop the bullying. Id. at ⁋⁋ 21–24.
In eighth grade, the bullying continued. Id. at 27. D.S. was pushed against a wall and
punched in the stomach by one student and was slapped a number of times by another student,
“M.P.” Id. at ⁋ 27–28. Around February 2019, student (and Defendant) Zach Arterberry simulated
a forced sex act, “dry humping,” on D.S. and unzipped his pants, exposed his crotch, and shoved
it in D.S.’s face. Id. at ⁋ 29. Several bullying occasions occurred in the presence of teacher (and
Defendant) Megan Ennis, who did not intervene and instead, during the “dry humping” incident,

3 The following recitation of facts derive from Plaintiff’s Complaint (Doc. 2), which the Court, as it must on a motion
to dismiss, accepts as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2008).
merely took a picture of the event, laughing. Id. Then, in April 2019, Defendants Arterberry and
T.B. taped D.S.’s mouth shut and taped his hands together behind his back, tied his shoelaces
together, pulled his pants down, attempted to pull his underwear down, touched D.S.’s face with
Arterberry’s exposed penis, and called D.S. derogatory names. Id. at ⁋⁋ 29–34. All while a third
student videoed the event and posted it on Snapchat, and while a fourth student held the door shut

to prevent D.S.’s escape. Id. at ⁋⁋ 35–36. Ms. Ennis was again present for this altercation but said
only “enough” and “pull your pants up.” Id. at ⁋⁋ 33, 37. When this attack was over, D.S. fled to
the hallway where he believed he would be on camera, but Ms. Ennis confronted him and ordered
him to return to the classroom. Id. at ⁋ 38. Ultimately, Ms. Ennis failed to report the incident to the
principal and the next day, D.S.’s parents reported it. Id. at ⁋ 39. The school suspended T.B. and
Zach Arterberry for the few days that remained in the year. Id. at ⁋ 41.
The school principal, Defendant Ronna Taylor, stated that she did not feel that D.S. was in
an environment where he could learn in the classroom, so she made it clear to Ms. Ennis that D.S.
would still receive a passing grade. Id. at ⁋ 42. Since the number one priority of the school was to

protect and to educate, the principal went on to apologize, saying “I am sorry that we have failed”
D.S. Id. at ⁋ 43. Following the bullying, D.S. attempted suicide and has been hospitalized several
times for depression and suicidal ideations. Id. at ⁋ 45.
On November 25, 2019, Plaintiff, as next friend of her son, D.S., filed suit. Doc. 2. She
brought seven claims against eight defendants: the School District and its board of education; the
three Administrators; a teacher; and two students. Id. Plaintiff sued for violation of Title IX of the
Education Amendments Act of 1972, 20 U.S.C. §§ 1681 et seq. (Count One); violation of Title II
of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., and § 504 of the
Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et seq. (Count Two); violation of equal protection
and substantive due process under 42 U.S.C. § 1983 (Count Three); negligent and intentional
infliction of emotional distress (Count Four)4; battery (Count Five); negligent hiring and
supervision (Count Six); and punitive damages (Count Seven). Doc. 2.
The School District and its Administrators filed a partial answer and their respective
motions to dismiss. Docs. 12–14. Plaintiff timely responded to each motion to dismiss (Docs. 19,

20) and the School District and Administrators replied (Docs. 21, 22).
STANDARD
The federal rules require a complaint to contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To “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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although a court must accept all the complaint’s
factual allegations as true, the same is not true of legal conclusions. See id. Mere “labels and
conclusions” or “formulaic recitation[s] of a cause of action” will not suffice. Twombly, 550 U.S.

at 555. “Thus, in ruling on a motion to dismiss, a court should disregard all conclusory statements
of law and consider whether the remaining specific factual allegations, if assumed to be true,
plausibly suggest the defendant is liable.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214
(10th Cir. 2011).

4 Plaintiff’s Count Four is actually two state law claims. “Oklahoma courts say that negligent infliction of emotional
distress is not an independent tort but is in effect the tort of negligence.” Wilson v. Muckala, 303 F.3d 1207, 1213
(10th Cir. 2002). Oklahoma courts also recognize the “tort of intentional infliction of emotional distress, also known
as the tort of outrage.” Computer Pubs. Inc. v. Welton, 49 P.3d 732, 735 (Okla. 2002).
DISCUSSION
1. School District
Defendant School District, in its motion to dismiss, makes four arguments. First, it argues
that the Board of Education should be dismissed as a party because it is not a separate legal entity
under Oklahoma law. Doc. 13, at 2, 5–6. Second, it argues the Court lacks subject matter

jurisdiction to hear Plaintiff’s claims under the ADA and § 504 because the Plaintiff has failed to
exhaust her administrative remedies under the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. §§ 1400 et seq. Id. at 2, 6–11. Third, it contends that the intentional infliction
of emotional distress claim should be dismissed because a governmental entity cannot be held
liable under the Oklahoma Governmental Tort Claims Act (“GTCA”) for torts that cannot be
committed by an employee acting in good faith. Id. at 3, 12–13. Fourth and last, it argues the
Plaintiff’s claim for punitive damages fails because such damages are not available against the
School District under either federal or Oklahoma law. Id. at 3–4, 13–15. Overall, Defendant School
District seeks dismissal of all claims against the Board of Education, Plaintiff’s Count Two (ADA

and § 504), Count Four (intentional infliction of emotional distress), and Count Seven (punitive
damages).5
Plaintiff concedes to most of Defendant School District’s arguments. See Doc. 19, at 2.
Plaintiff concedes that the School District’s Board of Education should be dismissed and that the
intentional infliction of emotional distress claim should be dismissed against the School District.
Id. Plaintiff also concedes that punitive damages are not available against the School District for

5 The School District does not move to dismiss Count One for violation of Title IX, Count Three for violation of 42
U.S.C. § 1983, Count Four (negligent infliction of emotional distress), or Count Six for negligent training and
supervision. See Doc. 12. The Court will construe Plaintiff’s allegation of negligent infliction of emotional distress
against the School District within Count Four—which is really a negligence claim. See supra n.4. Finally, Plaintiff’s
Count Five for battery is brought against the two student defendants, not the School District.
her state tort claims but asserts that punitive damages are available against the School District for
her federal claims. Id. at 2, 8–9.
The sole issues remaining for the Court’s examination are Count Two for violation of Title
II of the ADA and § 504, and the availability of punitive damages against the School District under
federal law.

A. Administrative Exhaustion — Title II of the ADA, § 504, and the IDEA
Defendant School District argues this Court lacks subject matter jurisdiction to hear
Plaintiff’s Title II of the ADA and § 504 claims because Plaintiff was required first to exhaust her
administrative remedies under the IDEA. Doc. 13, at 6. Plaintiff disagrees. See Docs. 2, 19.
Whether Plaintiff was required to exhaust her administrative remedies under the IDEA is
controlled by two recent Supreme Court cases, Fry v. Napoleon Community Schools, 580 U.S. 154
(2017) and Luna Perez v. Sturgis Public Schools, 598 U.S. 142 (2023). The former case asks
whether the gravamen of the complaint alleges a denial of a free appropriate public education, and
the latter case asks whether the relief sought is of the type the IDEA offers. If the answer to both

is yes, administrative exhaustion under the IDEA is required. The Court will address each case,
respectively.
i. Fry: IDEA and the Denial of a Free Appropriate Public Education
The parties’ dispute largely revolves around the breadth of the Supreme Court’s 2017
decision in Fry v. Napoleon Community Schools, 580 U.S. 154 (2017). Defendant School District
claims Fry is dispositive and requires dismissal since the gravamen of Plaintiff’s complaint is that
D.S. was denied a free appropriate public education, thus triggering IDEA’s administrative
exhaustion requirement. Doc. 13, at 6–11. Although Plaintiff met with or spoke to school directors
many times regarding the bullying D.S. experienced, see Doc. 2 at ⁋⁋ 21, 24, 28, 39, 42, she does
not describe any administrative proceedings with the school district. Plaintiff disagrees. See Doc.
19. Plaintiff argues the School District has “likely overstated the benefit and holdings of [Fry] as
it applies to this one.” Id. at 3. Instead, Plaintiff claims that she was not required to exhaust
administrative remedies for three reasons: “the abuse is entirely in the past as a result of D.S. being
home schooled and [Defendant] Arterberry graduating from high school;” “seeking compensatory

damages through the administrative process would be futile;” and she “does not seek non-
discriminatory access to the school in this litigation.” Doc. 2 at ⁋⁋ 65–67. For the reasons detailed
below, the Court finds that Defendant School District’s Fry argument is well-taken.
In Fry, a child with severe cerebral palsy sought permission from the public school she
attended to have her service dog join her in school. 580 U.S. 154, 161–162 (2017). The school
refused her request and her parents sued, alleging violations of Title II of the ADA and § 504 of
the Rehabilitation Act. Id. at 163–164. The district court granted the school district’s motion to
dismiss, concluding that the Fry’s were required to first exhaust the IDEA’s administrative
procedures. Id. at 164. A divided panel on the Sixth Circuit Court of Appeals affirmed. Id. The

Supreme Court granted certiorari to address confusion among the Courts of Appeals as to the scope
of IDEA’s exhaustion requirement, § 1415(l). Id.
Fry began with a “welcome to—and apology[y] for—the acronymic world of federal
legislation” regarding education and discrimination. Id. at 158. It explained that the “IDEA offers
federal funds to States in exchange for a commitment: to furnish a ‘free appropriate public
education’—more concisely known as a FAPE—to all children with certain physical or intellectual
disabilities.” Id. The IDEA defines a FAPE as “special education and related services”—both
“instruction” tailored to meet a child’s “unique needs” and sufficient “supportive services” to
permit the child to benefit from that instruction. See id.; 20 U.S.C. §§ 1401 (9), (26), (29). The
IDEA’s “primary vehicle” for providing a FAPE is a personalized plan called an “individualized
education program” (“IEP”) for each qualifying child. Fry, 580 U.S. at 158; see § 1414(d).
Additionally, “[t]o ensure that children with disabilities were being afforded all of the educational
benefits of the [IDEA], Congress mandated . . . a host of procedural safeguards[] so that parents
and advocates could participate fully in the design and implementation of [a] child’s FAPE.”

Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1064 (10th Cir. 2002) (citation omitted).
Procedural safeguards within the IDEA include various notice requirements, “an
opportunity to present complaints with respect to any matter relating to the child’s identification,
evaluation, or educational placement,” the opportunity for an impartial due process hearing on any
such complaints, and the right to appeal any finding or decision reached in that due process hearing.
Id. (citing § 1415). “As part of the bargaining of providing children with educational rights and
parents with procedural safeguards to protect those rights, Congress required that parents turn first
to the statute’s administrative framework . . . [and] educational professionals, as opposed to courts,
to remedy disputes over a child’s education.” Id. at 1064–65. Thus, the IDEA’s administrative

exhaustion requirement became law:
Nothing in this chapter shall be construed to restrict or limit the rights, procedures,
and remedies available under the Constitution, the Americans with Disabilities Act
of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting
the rights of children with disabilities, except that before the filing of a civil action
under such laws seeking relief that is also available under this subchapter, the
procedures under subsections (f) and (g) shall be exhausted to the same extent as
would be required had the action been brought under this subchapter.

20 U.S.C. § 1415(l) (emphasis added).
The IDEA interacts with two other relevant statutes: Title II of the ADA, 42 U.S.C. §§
12131 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. §§ 794 et seq., “which cover both
adults and children with disabilities, in both public schools and other settings.” Fry, 580 U.S. at
159. These statutes “aim to root out disability-based discrimination, enabling each covered person
. . . to participate equally to all others in public facilities and federally funded programs.” Id. at
170. “In short, the IDEA guarantees individually tailored educational services, while Title II and
§ 504 promise non-discriminatory access to public institutions.” Id. at 170–71. Importantly, Title
II and § 504 do not have comparable exhaustion requirements to the IDEA. See id. at 161. Equally

important, however, the only thing “a plaintiff must seek in order to trigger [the IDEA’s]
exhaustion rule[] is relief for the denial of a FAPE.” Id. at 166; see 20 U.S.C. § 1415(l). “If a
lawsuit charges such a denial, the plaintiff cannot escape [the exhaustion requirement] merely by
bringing her suit under a statute other than the IDEA—such as [§ 504].” Fry, 580 U.S. at 168. In
sum, the IDEA’s exhaustion requirement is triggered, as the Supreme Court held in Fry, when the
gravamen of the plaintiff’s complaint alleges the denial of a FAPE. Id. at 158; but see infra Section
A.ii.
To determine whether the IDEA’s exhaustion requirement has been triggered, the Court
must examine the plaintiff’s complaint to see whether she “seeks relief for the denial of an

appropriate education.” Id. at 169. This examination should “consider substance, not surface” and
look to the “gravamen” of the complaint, “even if not phrased or framed in precisely that way.”
Id. at 169–70. In Fry, the Supreme Court offered two “clue[s] to whether the gravamen of a
complaint against a school concerns the denial of a FAPE, or instead addresses disability-based
discrimination.” Id. at 171.
First, could the Plaintiff have brought essentially the same claim if the alleged
conduct had occurred at a public facility that was not a school—say, a public theater
or library? And second, could an adult at the school—say an employee or visitor—
have pressed essentially the same grievance? When the answer to those questions
is yes . . . there is no FAPE obligation and yet the same basic suit could go forward.
But when the answer is no, then the complaint probably does concern a FAPE, even
if it does not explicitly say so; for the FAPE requirement is all that explains why
only a child in the school setting (not an adult in that setting or a child in some
other) has a viable claim.

Id.
Plaintiff pleads numerous times throughout her complaint that D.S. was denied a FAPE.
See, e.g., Doc. 2, at ⁋ 42 (“Taylor, a school principal, said that she did not feel that D.S. was in an
environment where he could learn in [the] classroom, so she had made it clear to the teacher that
D.S. would receive a passing grade.”); ⁋ 52 (“The bullying suffered by D.S. was so severe,
pervasive, and objectively offensive that [it] deprived him of the educational benefits provided by
the school.”); ⁋ 89 (“The inaction of the school and its personnel in response to the repeated
incidents of bullying has denied D.S. an education . . . .”); § 117 (“As a result of the continued
bullying and mistreatment, D.S. has suffered damages, including . . . loss of educational
opportunity.”).
Plaintiff directs the Court to Padilla v. School District No. 1, 233 F.3d 1268, 1274 (10th
Cir. 2000), for the proposition that exhaustion is not required when a plaintiff has alleged injuries
that could not be redressed by the IDEA. Doc. 19, at 5–6. Padilla involved a minor who suffered
a skull fracture and exacerbation of a seizure disorder when she fell over while restrained in a
stroller in a windowless closet without supervision. Padilla, 233 F.3d at 1271. The plaintiff sought
“damages solely to redress the fractured skill and other physical injuries she suffered” because of
the alleged ADA violations. Id. at 1274. “Under these narrow circumstances,” the Tenth Circuit
“fail[ed] to see how the IDEA’s administrative remedies, oriented as they are to providing

prospective educational benefits, could possibly begin to assuage Plaintiff’s severe physical, and
completely non-educational, injuries.” Id. Here, Plaintiff’s repeated allegations of D.S.’s
educational harm distinguishes her case—factually—from the “completely non-educational” harm
suffered in Padilla.
Rather, the Court finds the Tenth Circuit’s decision in Carroll v. Lawton Independent
School District No. 8, 805 F.3d 1222 (10th Cir. 2015), more instructive. There, a third-grade girl
with autism was injured at school when her teacher “‘punished’ [her] by pulling her undergarments
so hard into a ‘wedgie’ that [her] underwear was torn” and “placed [her] in a dark closet” several
times. Id. at 1225. The girl suffered both emotional and academic damage from these events, after

which her parents sued under Title II, § 504, § 1983, and numerous state tort theories, including
negligence, intentional infliction of emotional distress, assault, and battery. Id. The parents argued
exhaustion was unnecessary because they alleged non-educational injuries to their daughter. Id. at
1226.
The Tenth Circuit disagreed. It explained that “[t]hough not all of the injuries alleged in
the complaint are educational, the Carrolls [] ‘alleged injuries that could be redressed to [some]
degree by the IDEA’s administrative procedures and remedies.” Id. at 1228. (quoting Padilla, 233
F.3d at 1274). Thus, they sought “relief that is also available under the IDEA.” Id. The court
distinguished the case from Padilla, explaining that it was “not a case involving solely ‘severe

physical, and completely non-educational, injuries’ for which the IDEA can offer no remedy.” Id.
(quoting Padilla, 233 F.3d at 1274) (emphasis in original). Since the parents’ allegations included
allegations of educational injuries, the case did not qualify for “the narrow circumstances that . . .
[make] exhaustion unnecessary” and the school district had to “be given an initial opportunity to
ascertain and alleviate the alleged problem” through the administrative process set out in the
IDEA.” Id. (internal quotation marks omitted).
As in Carroll, Plaintiff alleges both educational and non-educational injuries. Since she
does not allege solely non-educational injuries like in Padilla, the exhaustion requirement in this
regard is not circumvented. In sum, the gravamen of Plaintiff’s complaint alleges the denial of a
FAPE. Precedent up to and including Fry would require Plaintiff to first exhaust her administrative
remedies. However, the inquiry does not end at Fry because the IDEA’s exhaustion requirement
is necessary only when the Plaintiff is seeking relief that is also available under the IDEA.
ii. Luna Perez and Available Relief
In Fry, the Supreme Court held that § 1415(l)’s exhaustion requirement does not apply

unless the plaintiff “seeks relief for the denial of” a free appropriate public education “because that
is the only ‘relief’” IDEA’s administrative process can supply. Fry, 580 U.S. 154, 165, 168 (2017).
However, the Court left unresolved an analogous but different question “about the meaning of §
1415(l): Is exhaustion required when the plaintiff complains of the denial of a FAPE, but the
specific remedy she requests—[money damages]—is not one that an IDEA hearing officer may
award?” Id. at 165 n.4.
The Supreme Court, earlier this year, answered this question in Luna Perez v. Sturgis
Public Schools, 598 U.S. 142 (2023).6 In Luna Perez, plaintiff alleged that the school had failed
its duties under the IDEA and other laws by providing Mr. Perez—who is deaf—unqualified or

habitually absent sign language aids. Id. at 145. Mr. Perez’s administrative complaint settled, and
he received all the forward-looking equitable relief he sought. Id. He then filed a lawsuit in federal
district court under the ADA seeking backward-looking relief through compensatory damages. Id.
The district court dismissed the suit, agreeing with the defendant that IDEA’s administrative
procedures must have first been exhausted. Id. The Sixth Circuit affirmed because it was bound
by circuit precedent dictating that a “lawsuit that seeks relief for the denial of an appropriate
education is subject to section 1415(l), even if it requests a remedy the IDEA does not allow.”

6 On December 4, 2023, the Court ordered the parties to file supplemental briefing addressing Luna Perez and its
impact on the administrative exhaustion issue in this case. Doc. 46. The parties timely filed the supplemental briefing.
Docs. 48, 49.
Perez v. Sturgis Pub. Sch., 3 F.4th 236, 241 (6th Cir. 2021). The Sixth Circuit pointed out that
most circuits agree with this proposition. Id. Indeed, as the Defendant School District in this case
points out, the Tenth Circuit has at least twice reiterated that “available relief” under the IDEA
means “‘relief for the events, condition, or consequences of which the person complains, not
necessarily relief of the kind the person prefers.’” Cudjoe, 297 F.3d at 1066 (quoting Padilla, 233

F.3d at 1274)). The Tenth Circuit has held that “the IDEA’s exhaustion requirement will not be
excused simply because a plaintiff requests damages, which are ordinarily unavailable in
administrative hearings held pursuant to the statute . . . .” Id. “This approach of focusing on whether
there is any relief available under the IDEA to remedy the injury, as opposed to the particular relief
sought by the plaintiff, is appropriate to ensure that the IDEA process is not short-circuited by a
rush to court seeking damages.” Id. at 1067 (internal quotation marks omitted).
The Supreme Court disagrees with this approach. The Supreme Court, in Luna Perez,
unanimously held that a plaintiff seeking only compensatory damages for an alleged ADA
violation premised on a FAPE denial was not required to exhaust IDEA’s administrative processes

because the relief sought (damages) was not something IDEA can provide. Luna Perez, 598 U.S.
at 150. The Court reached this holding because (1) “the statute’s administrative exhaustion
requirement applies only to suits that ‘seek relief also available under’ IDEA; and (2)
compensatory damages is “a remedy everyone . . . agrees IDEA cannot supply.” Id. at 147 (cleaned
up). Overall, the condition that the “relief [be] also available under IDEA” is a condition that is
simply not met “where a plaintiff brings a suit under another federal law for compensatory
damages—a form of relief everyone agrees IDEA does not provide.” Id. at 147–48.
No court in this circuit has yet to meaningfully apply Luna Perez, especially the Tenth
Circuit Court of Appeals. But as the Fifth Circuit has succinctly put together, the current state of
law between the IDEA, Fry, and Luna Perez is as follows:
in a suit against a public school for alleged violations of the ADA or other similar
anti-discrimination statutes, the court should first assess whether the gravamen of
the complaint concerns the denial of a FAPE or, instead, is based on disability
discrimination. If the complaint does not concern the denial of a FAPE, the plaintiff
need not go[] through the IDEA’s administrative hurdles. On the other hand, if the
complaint is predicated on a FAPE denial, then the court must then ask what relief
is sought. If the relief sought is not one that the IDEA can provide (such as
compensatory damages), then, again, the plaintiff need not go through the IDEA’s
administrative hurdles. But if the relief sought is of the type that the IDEA offers,
then the plaintiff must fully exhaust the administrative processes as required by §
1415(l).

Lartigue v. Northside Indep. Sch. Dist., 86 F.4th 689, 693 (5th Cir. 2023) (citations
omitted). Here, the Court has concluded—and agreed with Defendant School District—
that the gravamen of Plaintiff’s complaint concerns the denial of a FAPE. Dispositively,
however, the only relief Plaintiff requests is backwards-looking compensatory and punitive
damages. See Doc. 2, at ⁋⁋ 66, 118–20. She does not seek any sort of equitable relief the
IDEA provides and, as “everyone agrees,” money damages are a remedy the “IDEA does
not provide.” Luna Perez, 598 U.S. at 147–148.7 Therefore, under Luna Perez, Plaintiff is
not required to first exhaust administrative remedies under the IDEA because the IDEA
cannot provide the relief Plaintiff seeks. Id. at 150; see Lartigue, 86 F.4th at 693–94.
Overall, Plaintiff is not required to exhaust administrative remedies pursuant to §
1415(l). While the gravamen of Plaintiff’s complaint alleges the denial of a FAPE
(consistent with Fry), she seeks relief that the IDEA simply cannot provide (damages).

7 The Luna Perez Court also stated that “a plaintiff who files an ADA action seeking both damages and the sort of
equitable relief IDEA provides may find his request for equitable relief barred or deferred if he has yet to exhaust §
1415(f) and (g).” Luna Perez, 598 U.S. at 150. This is not the situation here since Plaintiff seeks only money damages
and not any equitable relief.
Although the Tenth Circuit has held this does not excuse administrative exhaustion, see
Carroll, 805 F.3d at 1227, the Supreme Court in Luna Perez says it does. This Court has
subject matter jurisdiction over Plaintiff’s ADA and § 504 claims, which may proceed
against Defendant School District.8
B. Availability of Punitive Damages Against the School District

The Defendant School District claims that punitive damages are not available against it
under state tort law (Count Six), Title IX (Count One), Title II and § 504 (Count Two), or § 1983
(Count Three). Doc. 13, at 13–15. Plaintiff concedes that punitive damages are not available
against the Defendant School District under state law. Doc. 19, at 2. She fails to respond to the
Defendant School District’s argument regarding Title IX, Title II and § 504 but argues that punitive
damages are available under § 1983. Id. at 8. The Court will discuss each in turn.
“While there appears to be no binding authority as to the availability of punitive damages
for a Title IX claim, the U.S. Supreme Court has concluded punitive damages are not available in
a claim under Title VI of the Civil Rights Act of 1964.” Roof v. New Castle Pub. Sch., 2015 WL

1040373, at *5 (W.D. Okla. Mar. 10, 2015). The “Court has generally interpreted Title IX
consistently with Title VI, and the rationale for its determination . . . appears equally applicable to
a Title IX case.” Id. Thus, this Court chooses to join the Western District of Oklahoma, among
other courts, in concluding that punitive damages are not available under Title IX. See, e.g., Najera
v. Indep. Sch. Dist. of Stroud, 60 F. Supp. 3d 1202, 1208 (W.D. Okla. 2014) (citing Mercer v. Duke
Univ., 401 F.3d 199, 202 (4th Cir. 2005)).

8 Defendant School District only moves to dismiss the ADA and § 504 claims on the basis of administrative exhaustion
under the IDEA. Doc. 13. It does not move to dismiss the ADA and § 504 claims on the basis that the complaint fails
to plead sufficient facts of an ADA or § 504 claim, nor does it make any arguments in the alternative. Therefore, the
Court only discusses the administrative exhaustion argument raised by Defendant.
Punitive damages are likewise unavailable in an action brought under Title II and § 504.
In Barnes v. Gorman, the Supreme Court decided “whether punitive damages may be awarded in
a private cause of action brought under § 202 of the [ADA], and § 504 of the Rehabilitation Act .
. . .” 536 U.S. 181, 183 (2002). The Court held that since “punitive damages may not be awarded
in private suits brought under Title VI of the 1964 Civil Rights Act, it follows that they may not

be awarded in suits brought under § 202 of the ADA and § 504 of the Rehabilitation Act.” Id. at
189.
Lastly, punitive damages against the School District are likewise unavailable to Plaintiff
under her § 1983 claim. “[A] municipality is immune from punitive damages under 42 U.S.C. §
1983.” City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Principals of municipal
liability apply to public schools. Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175,
1188 (10th Cir. 2010). Thus, the School District is immune from punitive damages under
Plaintiff’s § 1983 claim.
II. Administrator Claims

The Defendant Administrators move to dismiss all claims brought against them in their
official capacities as employees of the School District, as well as claims brought against them in
their individual capacities regarding Title IX, Title II and § 504, negligence, and negligent hiring
and supervision. Doc. 14. The Administrators do not move to dismiss claims regarding § 1983 or
intentional infliction of emotional distress in their individual capacities, nor do they request
dismissal of “Count Seven” for punitive damages.9 See Doc 20; Doc. 22, at 2 n.3.

9 “A plea for punitive damages is generally considered to be an element of recovery of the underlying cause of action;
it does not constitute a separate cause of action.” Rodebush v. Okla. Nursing Homes, Ltd., 867 P.2d 1241, 1247 (Okla.
1993).
Plaintiff, again, concedes to most of Defendant Administrator’s arguments. She concedes
that the Title IX and Title II and § 504 claims should be dismissed against the Administrators in
their official capacity. Doc. 20, at 2. She also concedes that the Title IX, Title II and § 504,
negligence, and negligent hiring and supervision claims should be dismissed against the
Administrators in their individual capacities. Id. Thus, the only matter relating to the

Administrators that requires the Court’s examination is whether the Administrators should be
dismissed from the § 1983, negligence, and negligent hiring and supervision claims in their official
capacities. See id.; Doc. 22, at 2.
Official capacity suits “impose[] liability on the entity that [the individual defendant]
represents.” Couser v. Gay, 959 F.3d 1018, 1023 (10th Cir. 2020) (quoting Brandon v. Holt, 469
U.S. 464, 471 (1985)). Such claims should be treated as claims against the entity. Sawyers v.
Norton, 962 F.3d 1270, 1278 n.4 (10th Cir. 2020) (citing Kentucky v. Graham, 473 U.S. 159, 166
(1985)). Thus, “[i]f a governmental entity is already a defendant in a lawsuit, then any official
capacity claim against its employees are redundant and may be dismissed.” Moore v. Tulsa, 55 F.

Supp. 3d 1337, 1349 (N.D. Okla. 2014) (internal quotation marks omitted). See also Storie v.
Indep. Sch. Dist. No. 13, 834 F. Supp. 2d 1305, 1307–08 (E. D. Okla. 2011). Dismissal is
permissive and a matter of judicial economy. Busby v. City of Tulsa, 2012 WL 1867167, at *5
(N.D. Okla. May 22, 2012) (citing Ebonie S. v. Pueblo Sch. Dist. 60, 819 F. Supp. 2d 1179, 1185
(D. Colo. 2011); Smith v. Bd. of Cnty. Comm'rs, 216 F. Supp. 2d 1209, 1219 (D. Kan. 2002)).
Plaintiff argues without authority that dismissal of claims against the Administrators in
their official capacity “is premature absent a stipulation from the school district that any and all
negligent acts of the [Administrators] were performed in their official capacity and within the
scope of their employment.” Doc. 20, at 3–4. In her view, “it is unknown . . . [whether] the
principals were at all times acting within the scope of their employment.” Id. at 4. The Court fails
to see the necessity of such a stipulation.
“A government employee acting within the scope of employment is relieved from private
(individual) liability for tortious conduct, but when an employee acts outside the scope of
employment the political subdivision is relieved from liability.” Pellegrino v. State ex rel.

Cameron Univ. ex rel. Bd. of Regents of State, 63 P.3d 535, 537 (Okla. 2003). “The concept of
scope of employment is thus tied to whether the employee or the governmental entity may be liable
for a particular act.” Id. Plaintiff agrees dismissal is proper for the negligence and negligent hiring
and supervision claims she brought against the Administrators in their individual capacities. Doc.
20, at 2. If she believed the Administrators have acted outside the scope of their employment, the
proper course of action for Plaintiff would have been to maintain her individual capacity claims
against them. As it is, she presents nothing to sway the Court from dismissing the redundant official
capacity claims as a matter of judicial economy and efficiency. The official capacity claims are
dismissed with prejudice.10 See Romero v. Storey, 2010 WL 11619180, at *2 (D. N.M. Sept. 17,

2010) (Dismissing official capacity claims with prejudice because “the majority of cases which
have dealt with the issue of redundancy in § 1983 lawsuits have held that the appropriate remedy
is, in fact, dismissal of the official capacity claim.”) (compiling cases).
CONCLUSION
IT IS THEREFORE ORDERED that the Motion of the School District to Dismiss All
Claims against the Board of Education and Claims against the School District under the ADA, §
504, the State Law Tort Claim for Intentional Infliction of Emotional Distress, and Punitive
Damages (Doc. 13) is GRANTED IN PART AND DENIED IN PART. All claims against the

10 The dismissal of the official capacity claims with prejudice for failure to state a claim does not affect the claims
against the School District.
Board of Education are DISMISSED WITHOUT PREJUDICE. Count Four (intentional
infliction of emotional distress) and “Count Seven” against the School District are DISMISSED
WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the Motion of Defendants Ronna Taylor, James Fox,
and Brian Hailey to Dismiss All Claims against Them in their Official Capacities [and] the Claims

against Them in their Individual Capacities under Title IX, the ADA, and § 504, and the State Tort
Claims for Negligence and Negligent Training and Supervision (Doc. 14) is GRANTED. All
claims against Taylor, Fox, and Hailey in their official capacities are DISMISSED WITH
PREJUDICE. Count One, Count Two, Count Four for negligence (but not intentional infliction
of emotional distress), and Count Six against Taylor, Fox, and Hailey in their individual capacities
are DISMISSED WITHOUT PREJUDICE.
To summarize, following entry of this order, the status of each claim is as follows:
 Count One for violation of Title IX, 20 U.S.C. §§ 1681 et seq., remains pending against
the School District.

 Count Two for violation of Title II of the ADA and § 504 against the School District
remains pending against the School District.

 Count Three for violation of 42 U.S.C. § 1983 remains pending against the School
District as well as Defendants Megan Ennis, Ronna Taylor, James Fox, and Brian
Hailey individually.

 Count Four for negligent infliction of emotional distress (negligence) remains pending
against Defendant School District.

 Count Four for intentional infliction of emotional distress remains pending against
Defendants Megan Ennis, Ronna Taylor, James Fox, Brian Hailey, Zach Arterberry
and Levi Bradley, as next friend of T.B.

 Count Five for battery remains pending against Defendants Zach Arterberry and Levi
Bradley, as next friend of T.B.

 Count Six for negligent training and supervision remains pending against the School
District.
e The “Count Seven” section of Plaintiffs Complaint is not a freestanding claim.
Plaintiffs prayer for punitive damages based on her other theories of liability is stricken
insofar as it relates to the School District and remains as pled insofar as it relates to the
individual Defendants.

IT IS SO ORDERED.

UNITED wh mie JUDGE

20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10387378. Public record. Not legal advice.