The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MARTHA PAYNE, as parent and next )
friend of M.P., a minor )
)
Plaintiff, )
)
v. ) Case No. CIV-21-00555-JD
)
INDEPENDENT SCHOOL DISTRICT )
I-001 OF JACKSON COUNTY, a/k/a )
NAVAJO PUBLIC SCHOOLS, and )
TIM HAGEN, )
)
Defendants. )
ORDER
Before the Court is Tim Hagen’s (“Hagen”) Motion to Dismiss (“Motion”). [Doc.
No. 11]. The Motion seeks dismissal of the claim asserted against Hagen in the Amended
Complaint filed by Martha Payne, as parent and next friend of M.P., a minor (“Plaintiff”).
[Doc. No. 8]. Plaintiff responded in opposition [Doc. No. 13], and Hagen replied [Doc.
No. 14]. For the following reasons, the Court dismisses Plaintiff’s claim against Hagen
under Federal Rule of Civil Procedure 12(b)(6).
I. BACKGROUND
At the time of the events in question, M.P. was a four-year-old pre-kindergarten
student at Defendant Independent School District I-001 of Jackson County, also known as
Navajo Public Schools (“NPS”). Brandon Sollis (“Sollis”) was a high school student at
NPS. Hagen was the driver of the school bus that M.P. and Sollis rode to and from
school.
On October 22, 2019, Sollis kissed M.P. and touched her in a sexual manner while
they were on the bus. On October 23, 2019, Sollis again kissed M.P. while they were
riding the bus. That day, M.P. told her mother who then notified school officials of Sollis’
sexually inappropriate behavior. Hagen was not one of the officials notified. On October
24, 2019, Sollis physically assaulted M.P. on the bus. Sollis touched M.P. under her
clothes and had M.P. sit on his lap while they were on the bus.
Hagen was present during each of these incidents because he was the driver of the
bus. Hagen had the authority to stop Sollis’ conduct and prevent him from riding the bus.
He was also in charge of supervising the students on the bus. But Hagen did not do
anything despite being “a witness to the conduct as the bus driver and supervisor.” Am.
Compl. [Doc. No. 8] ¶ 36.
On October 25, 2019, Jackson County Sheriff’s Deputy Rusty Garrett received a
report from NPS regarding Sollis’ sexual assault of M.P. Deputy Garrett investigated, and
eventually Sollis was charged with Lewd Molestation in the District Court of Jackson
County. M.P. is the victim in the criminal case. See id. ¶ 32.
Plaintiff filed suit in the District Court of Jackson County, Oklahoma. Defendants
removed the case to this Court. Plaintiff brings claims against NPS for negligence,
violation of Title IX, and violation of M.P.’s substantive due process rights under the
Fourteenth Amendment through 42 U.S.C. § 1983. Against Hagen, Plaintiff only brings
the substantive due process claim.
II. LEGAL STANDARD
“Rule 12(b)(6) dismissal ‘is appropriate if the complaint alone is legally
insufficient to state a claim.’” Serna v. Denver Police Dep’t, 58 F.4th 1167, 1169 (10th
Cir. 2023) (quoting Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081,
1104–05 (10th Cir. 2017)). The Court must “view the allegations and all reasonable
inferences in favor of the plaintiffs.” Hubbard v. Okla. ex rel. Okla. Dep’t of Hum. Servs.,
759 F. App’x 693, 696 (10th Cir. 2018) (unpublished).
In considering a motion to dismiss under Rule 12(b)(6), the inquiry is “whether the
complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’”
Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is facially plausible ‘when
the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.’” Doe v. Woodard, 912 F.3d 1278,
1299 (10th Cir. 2019) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). However,
“the tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions” and “whether a complaint states a plausible claim for
relief will . . . be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Ashcroft, 556 U.S. at 678, 679.
III. ANALYSIS
Hagen argues that Plaintiff, who relies on the state-created danger theory for her
substantive due process claim, has failed to plead a claim for relief. Alternatively, Hagen
contends the claim against him should be dismissed because he is entitled to qualified
immunity. Plaintiff argues she has successfully alleged a violation of M.P.’s substantive
due process and equal protection rights.1 Because the Court concludes Plaintiff has failed
to plausibly allege a substantive due process claim against Hagen, it does not reach the
issue of whether Hagen is entitled to qualified immunity.
Generally, the due process clause of the Fourteenth Amendment “does not require
the state to protect life, liberty, and property of its citizens against invasion by private
actors.” Est. of B.I.C. v. Gillen, 710 F.3d 1168, 1173 (10th Cir. 2013). The Tenth Circuit,
however, has recognized a “narrow” exception to this rule. Gray v. Univ. of Colo. Hosp.
Auth., 672 F.3d 909, 921 (10th Cir. 2012). The exception, known as the state-created
danger theory, provides that “state officials can be liable for the acts of private parties
where those officials created the very danger that caused the harm.”2 Est. of B.I.C., 710
F.3d at 1173.
1 In her Response, Plaintiff argues that she has “alleged sufficient facts to support
a § 1983 claim under the equal protection clause” against Hagen. [Doc. No. 13 at 11].
However, in the Amended Complaint, an equal protection claim is nowhere to be found.
“The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the
four corners of the complaint after taking those allegations as true, and [the Court] will
not consider evidence or allegations outside the four corners of the complaint . . . .”
Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1286 n.1 (10th Cir. 2019) (citation
omitted) (quoting Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994)). Therefore,
the Court does not consider Plaintiff’s equal protection arguments.
2 The Tenth Circuit has also recognized an exception where “the state has assumed
a special relationship with and control over an individual.” Est. of B.I.C., 710 F.3d at
1173. This exception applies in the context of “incarceration, institutionalization, or other
similar restraint of personal liberty.” Gray, 672 F.3d at 916 (quoting DeShaney v.
Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989)). Neither of the parties
argues this exception applies to the facts of this case. Cf. Isaacs v. Konawa Pub. Schs.,
Nos. 21-7016 & 21-7039, 2022 WL 1100402, at *2 n.5 (10th Cir. Apr. 13, 2022)
To invoke this theory, a plaintiff must show there was violent conduct by a private
actor and affirmative conduct by a state actor. “[T]he affirmative conduct required to
support a danger creation claim ‘should be directed at a discrete plaintiff.’” Gray, 672
F.3d at 926 (emphasis omitted) (quoting Ruiz v. McDonnell, 299 F.3d 1173, 1183 (10th
Cir. 2002)). It must have also “created or increased the danger to the victims.” Id. at 916.
“[F]oreseeability cannot create an affirmative duty to protect,” and “[i]naction by the
state in the face of a known danger is not enough to trigger the obligation.” Id.
After these preconditions have been established,
the plaintiff must demonstrate that 1) plaintiff was a member of a limited
and specifically definable group; 2) defendant’s conduct put plaintiff at
substantial risk of serious, immediate, and proximate harm; 3) the risk was
obvious or known; 4) defendant acted recklessly in conscious disregard of
that risk; 5) such conduct when viewed in total, is conscience shocking; and
6) defendant created the danger or increased the plaintiff’s vulnerability to
the danger in some way.
Id. at 920 (internal ellipses and bracket omitted).
Here, Plaintiff has not plausibly alleged that any of Hagen’s actions constituted
affirmative conduct directed specifically at M.P. Essentially, all of Plaintiff’s allegations
regarding Hagen’s conduct pertain to actions he did not take—i.e., passive conduct. See
Am. Compl. ¶ 36 (“Hagen allowed Sollis’[] conduct to continue . . . .” (emphasis added));
Id. ¶ 67 (“Hagen failed his duty to supervise the school children on the school bus . . . .”
(emphasis added)); Id. ¶ 36 (stating that, by “allowing Sollis to continue to ride the bus
(unpublished) (showing the elements that the plaintiff must allege to assert a special
relationship claim).
and interact with M.P.,” Hagen placed M.P. in a vulnerable position (emphasis added)).
Such allegations are too passive to meet the Tenth Circuit’s standards.
For example, in Graham, a mother alleged “another student shot and killed her
son” and the “school district employees had received [prior] warnings that a student who
had threatened violence against [her son] was on school grounds with a gun.” Graham v.
Indep. Sch. Dist. No. I-89, 22 F.3d 991, 993 (10th Cir. 1994). However, the Tenth Circuit
affirmed “dismissal of the complaint because it failed to allege ‘affirmative actions by the
defendants that created or increased the danger to the victims.’” Gray, 672 F.3d at 916
(quoting Graham, 22 F.3d at 995).
In Sutton, a child told his mother that he had been sexually assaulted at school
while using the bathroom. Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226,
1230 (10th Cir. 1999). The child was sexually assaulted in the bathroom a second time
despite the principal having assured the mother that her son “would be supervised at all
times while in the bathroom.” Id. Yet, the Tenth Circuit held the state-created danger
substantive due process claim failed because “the complaint did not sufficiently plead
‘affirmative acts on the part of [the principal].’” Gray, 672 F.3d at 918 (quoting Sutton,
173 F.3d at 1239).
These cases show the standards Plaintiff’s allegations must meet to plausibly
allege affirmative conduct. Knowing that an act of private violence is ongoing nor failing
to stop such violence is alone not sufficient. The reasoning behind this seemingly harsh
rule is the concept that § 1983 is not intended to replace state tort law. See Ruiz v.
McDonnell, 299 F.3d 1173, 1184 (10th Cir. 2002). Considering these standards, the Court
concludes Plaintiff has not sufficiently alleged that Hagen created or increased the danger
to M.P. through any affirmative action. Because Plaintiff did not successfully allege the
state-created danger theory’s preconditions, it need not analyze the remaining six factors.
However, even if all the preconditions were met, Plaintiff has not plausibly alleged
that Hagen’s conduct “shocked the conscience” under the applicable legal standard.
“Conduct that shocks the judicial conscience . . . is deliberate government action that is
arbitrary and unrestrained by the established principles of private right and distributive
justice.” Isaacs v. Konawa Pub. Schs., Nos. 21-7016 & 21-7039, 2022 WL 1100402, at *3
(10th Cir. Apr. 13, 2022) (unpublished) (quotations omitted) (quoting Seegmiller v.
LaVerkin City, 528 F.3d 762, 767 (10th Cir. 2008)). “To show a defendant’s conduct is
conscience shocking, a plaintiff must prove a government actor arbitrarily abused his
authority or employed it as an instrument of oppression.” Hernandez v. Ridley, 734 F.3d
1254, 1261 (10th Cir. 2013) (quotations and alterations omitted) (quoting Williams v.
Berney, 519 F.3d 1216, 1220 (10th Cir. 2008)).
In order to discern whether the facts of the instant case “shock the
conscience” so as to rise to the level of a substantive due process violation,
[the Court] must 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 v. Harder, 64 F.3d 567, 573 (10th Cir. 1995) (citations omitted).
With these standards in mind, Hagen’s conduct does not shock the conscience.
Plaintiff alleges that, while driving the bus, Hagen witnessed Sollis’ conduct and did not
do anything to stop M.P. from being sexually assaulted. But Plaintiff does not recount
how far back in the bus M.P. and Sollis were sitting or how Hagen observed Sollis’
misconduct despite simultaneously driving the bus. The Amended Complaint only
includes factual allegations like Sollis’ conduct “was visible,” and Hagen’s “perspective
[was] similar,” albeit not identical, to that of the children on the bus. Am. Compl. ¶ 36.
This is not enough to allege that Hagen acted arbitrarily or oppressively.
Although the Court views reasonable inferences in favor of Plaintiff, it must still
“draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). In this light, Plaintiff’s allegations do not describe conduct that was “egregious
and outrageous” as to this defendant. Hernandez, 734 F.3d at 1261. Thus, even if Plaintiff
plausibly alleged the necessary preconditions under the state-created danger theory, the
Court alternatively concludes the claim should be dismissed as to Hagen since his
conduct did not shock the conscience. See Hubbard v. Okla. ex rel. Okla. Dep’t of Hum.
Servs., 759 F. App’x 693, 708 (10th Cir. 2018) (unpublished) (“Even knowingly
permitting unreasonable risks to continue does not necessarily rise to the level of
conscience shocking.” (quoting DeAnzona v. City & Cty. of Denver, 222 F.3d 1229, 1235
(10th Cir. 2000))).
IV. CONCLUSION
For these reasons, the Court concludes that Plaintiff has not alleged enough facts
to state a claim to relief against Hagen that is plausible on its face. The Court GRANTS
Hagen’s Motion to Dismiss [Doc. No. 11] and DISMISSES the substantive due process
claim against him without prejudice.
IT IS SO ORDERED this 16th day of May 2024.
W. DISHMAN
UNITED STATES DISTRICT JUDGE