# BRADSHER v. ALAMANCE-BURLINGTON BOARD OF EDUCATION

> District Court, M.D. North Carolina · August 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10653802

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** August 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10653802

## How later opinions describe it (automated extraction)

- holding that “substantive due process protects the liberty interests ov/y of persons affirmatively restrained by the United States from acting on their own behalf’

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF NORTH CAROLINA

MAKTYA BRADSHER and )
SHANNON BRADSHER, )
)
Plaintiffs, )
) Case No. 1:23CV827
v. )
)
TONYA JANE COPE, 7x her individual )
capacity, and ALAMANCE- )
BURLINGTON BOARD OF )
EDUCATION, )
)
Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on a Motion to Dismiss by Defendant Tonya Jane Cope
[Doc. # 17] and a Motion to Dismiss by Defendant Alamance-Burlington Board of Education
(“School Board”) [Doc. #10]. The instant matter involves an altercation between two students
that occurred at a local public high school. Plaintiffs Maktya Bradsher and her mother
Shannon Bradsher bring this action under 42 U.S.C. § 1983 against teacher Tonya Cope in her
individual capacity and against the School Board, alleging that Defendants violated Maktya’s
due process tights to her liberty interest in personal security and bodily integrity and her
property interest in educational benefits. Plaintiffs also allege claims for negligence and gross
negligence, with a demand for punitive damages. For the reasons set forth below, the Court
recommends that both Defendant Cope’s and Defendant School Board’s respective motions

to dismiss be granted as to the § 1983 claims, and that the Court decline to exercise
supplemental jurisdiction over any remaining state law claims.
I BACKGROUND
Plaintiffs allege that in October 2022, Makiya was a student at Cummings High School
(“Cummings”) in Burlington, North Carolina, which is a public school owned and operated
by the School Board. (Compl. [Doc. #1] 4 13.) According to the Complaint, in August 2022,
Mekya Haith-Herbin enrolled at Cummings as a student. (Compl. §]16.) The Complaint
alleges that Haith-Herbin had a criminal history that included violence and was on probation
at the time she enrolled in Cummings and that Defendants knew of this history. (Compl.
4/16.) According to the Complaint, Haith-Herbin sought friendship with Makiya and
repeatedly requested that the two become friends, a proposition that Makiya repeatedly
declined. (Compl. 717.) Plaintiffs allege that Haith-Herbin was “obsessed” with Makiya and
posed a threat to her, and that both of these things were known, or should have been known,
to the administrators and staff at Cummings. (Compl. § 18.)
Plaintiffs allege that on October 11, 2022, Makiya, Defendant Cope, and other students
wete in Defendant Cope’s classroom at Cummings before first period. (Compl. 4 19.)
According to the Complaint, Makiya was speaking to another classmate when Haith-Herbert
entered the classroom and asked Makiya if there was “anything you want to say to me?” and
“do you want to fight me?” (Compl. §] 20.) The Complaint alleges that Defendant Cope did
not address Haith-Herbert’s conduct. (Compl. J 22.) Plaintiffs allege that Maktya attempted
to ignore Haith-Herbert, but Haith-Herbert advanced toward Maktya, at which point Maktya
“stood up to prepate to defend herself.’ (Compl. 23.) According to the Complaint,

Defendant Cope still did not intervene. (Compl. §[ 23.) Plaintiffs allege that Haith-Herbert
then approached Makiya, pulled out a knife, and began to physically beat and stab Maktya.
(Compl. J 24.) Plaintiffs allege that during the assault, Defendant Cope did not say anything
ot attempt to intervene or stop the fight in any way. (Compl. § 27.) The Complaint alleges
that Makiya was stabbed nine times in the head, face, and chest, suffered lacerations, and
requited medical attention including four staples in her head and three stitches in her face.
(Compl. 29-30.)
II. DISCUSSION
A. Standard of Review
When considering a motion to dismiss for failure to state a claim upon which relief
may be granted under Federal Rule of Civil Procedure 12(b)(6), the Court must consider
whether the complaint “contain[s] 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when
the plaintiff provides enough factual content to enable the court to reasonably infer that the
defendant is liable for the misconduct alleged. Id. This standard “demands more than an
unadorned, the-defendant-hatmed-me accusation.” Id. In other words, “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by mete
conclusory statements, do not suffice.” Id.

B. Defendant Cope’s Motion to Dismiss § 1983 Claim
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured
by the Constitution and the laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.” West v. Atkins, 487
US. 42, 48 (1988). “The traditional definition of acting under color of state law requires that
the defendant in a § 1983 action have exercised power possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state law. Section
1983’s color-of-law prerequisite is synonymous with the more familiar state-action
requirement applicable to Fourteenth Amendment claims, and the analysis for each is identical.
Both inquities demand that the conduct allegedly causing the deprivation of a federal right be
fairly attributable to the State.” Davison v. Randall, 912 F.3d 666, 679 (4th Cir. 2019) (internal
citations and quotations omitted). Here, Plaintiffs contend that there are sufficient allegations
in the Complaint to state a claim that Defendant Cope violated Makiya’s Due Process Right
to personal security and bodily integrity, contending that “students have a right to be free from
unreasonable threats to theit personal safety.” (Pls.’ Resp. Br. [Doc. #22] at 7.)
In the Motion to Dismiss, Defendant Cope contends that the crux of the Complaint
involves allegations of a failure to protect Makiya against private violence, which does not
constitute a violation of the Due Process Clause. (Cope’s Br. [Doc. #18] at 7-8.) In this
regatd, the Due Process Clause ordinarily does not require the state or its officials to protect
individuals from harms caused by non-state actors. DeShaney v. Winnebago Cnty. Dep’t of
Soc. Setvs., 489 U.S. 189, 201-02 (1989). However, there ate two potential exceptions to this
tule. Specifically, liability under § 1983 could be proper where either (1) the victim is in a

special relationship with the government entity, such as where the individual is in custody, or
(2) affirmative acts of the government produce a “state-created danger.”
Plaintiffs first argue that sufficient facts have been alleged to state a claim for liability
under the state-created danger doctrine. “[T]o establish § 1983 liability based on a state-created
danger theory, a plaintiff must show that the state actor created or increased the risk of private
danger, and did so directly through affirmative acts, not merely through inaction or omission.”
Doe v. Rosa, 795 F.3d 429, 439 (4th Cir. 2015); see DeShaney, 489 U.S. at 201 (“While the
State may have been aware of the dangers that [the child] faced. . . it played no part in their
creation, nor did it do anything to render him any more vulnerable to them.”); see also Pinder
v. Johnson, 54 F.3d 1169, 1175-76 (4th Cir. 1995) (“As was true in DeShaney, the state did
not ‘create’ the danger, it simply failed to provide adequate protection from it.”); Willey v. Bd.
of Educ., 557 F. Supp. 3d 645, 666 (D. Md. 2021) (“Standing by and doing nothing in the
face of danger or failing to provide protection from danger does not implicate the state in the
harm caused by third parties—a more active role is required.”). The state-created danger
exception to establish lability under § 1983 is narrow; “the bar for what constitutes an
‘affirmative act’ is high.” ‘Turner v. Thomas, 930 F.3d 640, 645 (4th Cir. 2019).
The Fourth Circuit considered the state-created danger theory in Stevenson ex rel.
Stevenson v. Martin County Board of Education, 3 F. App’x 25 (2001), which is unpublished
and not binding, but is persuasive. In Stevenson, a ten-year-old student was beaten and bullied
by two classmates on a regular basis over a two-month period. Id. at 27. His parent reported
the assaults and requested that he be separated from these classmates. The principal and
counselor confirmed that they would be placed in separate classes, but this was not done. Id.

Soon thereafter, the student was punched in the head while in class, and when the student
asked his teacher for help, she allegedly responded by stating “[t]here isn’t anything I can do”
and that the student “deserved it anyway.” Imd. at 28. The assault was not reported to the
juvenile authorities by school staff, and the student’s father eventually submitted a juvenile
petition. Id. While this was ongoing, the beatings continued and the bullies harassed the
student and his father at a public festival, after which the father pulled his child from the
school and enrolled the student in a private school. Id. The student filed, zwter alia, a § 1983
claim against the board of education and several school officials, alleging that the “defendants
violated his liberty interest in bodily integrity.” Id. at 30. In addressing these claims, the
Fourth Circuit first noted that “[t]he law is clear that a State’s failure to protect an individual
against private violence simply does not constitute a violation of the Due Process Clause.” Id.
(internal quotation omitted). The Fourth Circuit then noted that one “exception to the general
tule that a state is not liable for the acts of third parties occurs when the state itself creates the
danger.”
In order to create a danger, the state has to take some affirmative steps. Liability
does not arise when the state stands by and does nothing in the face of danger.
See [DeShaney, 489 U.S.] at 203. Failing to provide protection from danger
does not implicate the state in the harm caused by third parties. See Pinder, 54
F.3d at 1175.
In Pinder this court was faced with a case in which it had to decide the contours
of DeShaney’s state-created danger exception. Pinder’s ex-boyfriend, Pittman,
broke into her home, assaulted her, and threatened to kill her and her three
children. Pinder called the police, and when an officer arrived, she told him
about the attack and the threats. The officer arrested Pittman and assured
Pinder that she could safely leave her children at home alone while she went to
work because Pittman would be in custody. However, because the police
charged Pittman with misdemeanor offenses, he was released almost
immediately. While Pinder was at work, Pittman set fire to her house, killing
her three children who were asleep. Pinder sued the arresting officer, claiming

that he had created the danger. See id. at 1172. This court dismissed her suit
because it was “purely an omission claim” where all that could be said was that
the officer “stood by and did nothing when suspicious circumstances dictated
a more active tole.”’ Id. at 1175 (quoting DeShaney, 489 U.S. at 203). The
state’s conduct was not on that “point on the spectrum between action and
inaction” such that it was implicated in the injury. Id.
The facts in DeShaney ate equally disturbing. Randy DeShaney beat his four-
yeat-old son Joshua so severely that Joshua suffered permanent brain damage.
This tragic incident came after the Winnebago County Department of Social
Services (DDS) in Wisconsin had been informed of child abuse. In fact, DDS
had obtained a court order placing Joshua in the temporary custody of a hospital
after DeShaney’s beatings put Joshua there, but thereafter DDS released Joshua
into his father’s custody. Caseworkers had also made monthly visits to the
DeShaney home, in which they observed suspicious injuries on Joshua’s body.
See DeShaney, 489 U.S. at 192-93. The Court nevertheless held that the state
was not liable for a constitutional violation. ‘The facts only amounted to a failure
of the DDS to protect Joshua from private violence and the state had no
constitutional duty to protect Joshua. See id. at 202-03.
Given the rejection of the plaintiffs’ § 1983 claims in DeShaney and Pinder, we
have to conclude in this case that the school officials did not create the danger
that Alex faced at the hands of his classmates. . . .
Stevenson, 3 F. App’x at 31-32. The Fourth Circuit acknowledged that “[t]he school surely
could have done mote to protect Alex” but concluded that “the failure to protect by itself is
not sufficient to trigger constitutional liability in this situation.” Id. at 32.
In the instant matter, upon review of the Complaint in the light most favorable to
Plaintiffs, the Complaint does not sufficiently allege facts that suggest that Defendant Cope
took any affirmative act that rendered Maktya to be in a more vulnerable position, or created
ot increased the tisk of danger, in order to sufficiently plead § 1983 liability under the theory
of the state-created danger exception. Plaintiffs cite to L.R. v. School District, 836 F.3d 235,
244 (3d Cir. 2016), in which a kindergarten teacher released a student to an unknown adult (an
action) which resulted in harm to the minor. Plaintiffs also cite to Doe #1 v. Montgomery

County Board of Education, No. 21-0356 PJM, 2021 WL 6072813, at *2, *11 (D. Md. Dec.
23, 2021), in which the plaintiff alleged a string of sexual assaults in the locker room that were
reported multiple times, and the plaintiff further alleged that the principal “tried to cover up”
the prior assaults and refused to provide any supervision in the locker room even after being
specifically directed to provide supervision, which then facilitated the subsequent assault. The
Court in Doe #1 reasoned that:
One can debate philosophically whether actions such as those present here ate
mere failures to act as opposed to “affirmative” acts. But, in marked contrast
to neutral failure-to-act cases, where a defendant does nothing at all after notice
of an assault, the allegations in the present case, certainly as to [the principal],
involve steps, purposefully taken, that arguably enhanced the dangerous
situations that resulted in the injuries to the Minor-Plaintiffs.
Doe #1, 2021 WL 6072813, at *12. Plaintiffs also point to DJ ex rel. Hughes v. School Board,
488 F. Supp. 3d 307 (E.D. Va. 2020), in which a middle school student, by and through his
patents, brought an action against various actors alleging that his Due Process rights were
violated as a result of an incident where White football players allegedly battered and assaulted
Black teammates in the locker room, videotaped the incident, and circulated the video on
social media. The court allowed the case to proceed based on the alleged fact that the state
actot in question ““zncreased the risk of private danger’ by failing to have adult supervision in the
locker room after assuring patents that supervision would occur following a similar incident
in the locker room roughly one week before DJ suffered injury.” DJ, 488 F. Supp. 3d at 327.
The court focused on the complaint’s allegations of: “similarity of the incidents, the temporal
proximity of the incidents, the requirements to have students dress for practice together in the
locker rooms, the affirmative assurances of [the coach] to have adult supervision over the
minor children in the locker room, and the failure to implement supervision” in reaching its

determination to allow the claim to survive the motion to dismiss stage. Id. Finally, Plaintiff
similarly cites to H.B. v. State Board of Education, No. 4:14-CV-204-BO, 2015 WL 2193778
(E.D.N.C. May 11, 2015). In that case, the victim was repeatedly assaulted by a classmate, and
his parents discussed the assaults and received assurance they would be kept apart, but the
victim was then assigned and required to shate a room with that classmate in the school
dormitory. The victim was repeatedly raped by the classmate in the dormitory, and even after
reporting the rape was sent back to stay in the same room, with the classmate, unsupervised,
for the rest of the week. The Court found that “the complaint sufficiently alleges that
defendants in this instance created the danger.” H.B., 2015 WL 2193778, at *2-4.
The complaint alleges that defendants knew that S.D. had physically attacked
C.B. in the past, knew that S.D. had been the victim of sexual abuse himself,
and knew of C.B.’s parents’ concerns regarding C.B.’s enrollment as a residential
student and the increased opportunity for contact with S.D. The complaint
alleges that despite this awareness and defendants’ assurances that steps would
be taken to protect C.B. from S.D., defendants knowingly assigned C.B. to
S.D.’s dormitory room, where the two would be left together unsupervised for
an extended period overnight.

[P]laintiff here alleges that the State did more than fail to protect him; plaintiff
alleges that the State, either intentionally or with reckless indifference, placed
plaintiff in a situation in which it knew that danger could and most likely would
atise. Where the State’s behavior surpasses a passive failure to act, it may
properly be considered to have “directly enabled” the dangerous situation which
resulted in injury to the victim.
Id. at *4-5.
In contrast, however, in the present case there is no allegation that Defendant Cope
took any such affirmative steps that facilitated the assault. Plaintiffs do not allege that
Defendant Cope took any affirmative action that placed Maktya in a more vulnerable state.

Instead, Plaintiffs focus on Defendant’s Cope znaction (inaction based on failing to restrict
Haith-Herbin from entering the classroom, not stopping the fight, not seeking help). The
allegations in the Complaint do not allege that Makiya was in a situation like the minor in L.R.
where she was ptesumably safe from Haith-Herbin and Ms. Cope took an affirmative action
to place her in harm’s way. In fact, the Complaint alleges that Haith-Herbin was dangerous
ptior to her enrolling in Cummings and remained that way while enrolled. The Complaint
does not plead any facts suggesting that Defendant Cope exacerbated or increased the danger
that Haith-Herbin already presented to Makiya or engaged in behavior that surpassed a passive
failure to act. There is no allegation that Defendant Cope covered up prior assaults, or made
some false assurance that Makiya relied on to end up in a more vulnerable position, or assigned
Makiya to stay alone in a room with Haith-Herbin without supervision, or otherwise took
affirmative action that facilitated the assault.
In support of their argument that Defendant Cope created a danger, Plaintiffs point to
the allegations that Defendant Cope knew Haith-Herbin had a history of violence prior to
coming to Cummings (Compl. 16); knew Haith-Herbin intended to physically assault Makiya
after Hatth-Herbin entered the classroom (Compl. [| 20, 65); permitted Haith-Herbin into the
classroom, creating an “effective safe haven for Haith-Herbin’s misconduct” in the classroom
where Makiya was located (Compl. ff] 64, 65); and permitted Haith-Herbin to assault Makiya.
(Pls.’? Resp. [Doc. #22] at 9.) While in their brief, Plaintiffs attempt to articulate these
allegations to be actions undertaken by Defendant Cope, in the Complaint itself, Plaintiffs
allege that Defendant Cope allowed the assault “without interference.” (Compl. J 65.) To the
extent that Plaintiff seeks to characterize Defendant Cope’s lack of interference (inaction) as

10

“actions,” the Court must “resist the temptation to accept plaintiffs’ attempts to artfully
recharacterize inaction as action.” Burns-Fisher v. Romero-Lehrer, 57 F.4th 421, 426 (4th Cir.
2023) (quoting Graves v. Lioi, 930 F.3d 307, 327 (4th Cir. 2019)). Notably, the Complaint
does not allege that Defendant Cope encouraged Haith-Herbin to enter the room, or told
Haith-Herbin when and where to find Maktya alone, or assigned or requited Maktya to be
placed with Haith-Herbin, or engaged in any other affirmative action that created or increased
the danger. Instead, the allegations reflect only that Defendant Cope stood by and did not
intervene when Haith-Herbin entered the classroom and shouted “anything you want to say
to me?” and “do you want to fight me” before approaching Makiya, who in response then
stood up to engage in the fight. (Compl. {/f] 20-21.) Even if the allegations the Complaint set
forth are proven, they would not support a claim that Cope either created or increased the tisk
of danger to Makiya. As such, the facts as alleged in the Complaint do not support a finding
of § 1983 lability under the state-created danger doctrine.
As noted above, in addition to the state-created danger theory, § 1983 liability can be
predicated on a special relationship, when the individual is incarcerated or institutionalized.
As explained by the Fourth Circuit:
The DeShaney Court did indicate that an affirmative duty to protect may arise
when the state restrains persons from acting on theit own behalf. [DeShaney,
489 U.S.] at 199-200; see also Revere v. Massachusetts General Hospital, 463
USS. 239, 244, 103 S. Ct. 2979, 2983, 77 L. Ed. 2d 605 (1983); Youngberg v.
Romeo, 457 U.S. 307, 317, 102 S. Ct. 2452, 2458-59, 73 L. Ed. 2d 28 (1982).
The Court explained that “when the State by the affirmative exercise of its
power so testrains an individual’s liberty that it renders him unable to care for
himself, and at the same time fails to provide for his basic human needs . . . it
transeresses the substantive limits on state action set by the Eighth Amendment
and the Due Process Clause.” DeShaney, 489 U.S. at 200, 109 S. Ct. at 1005.

11

The specific source of an affirmative duty to protect, the Court emphasized, is
the custodial nature of a “special relationship.” DeShaney reasoned that “[t]he
affirmative duty to protect arises not from the State’s knowledge of the
individual’s predicament or from its expressions of intent to help him, but from
the limitation which it has imposed on his freedom to act on his own behalf.”
Id. Some sort of confinement of the injured party—incarceration,
institutionalization, or the like—is needed to trigger the affirmative duty. Id.
This Court has consistently read DeShaney to require a custodial context before
any affirmative duty can atise under the Due Process Clause. See, e.g., Rowland,
41 F.3d at 174-75 (noting that when the state has not restricted one’s ability to
cate for oneself, the rationale for an affirmative duty falls away); Piechowicz v.
United States, 885 F.2d 1207, 1215 (4th Cir. 1989) (holding that “substantive
due process protects the liberty interests ov/y of persons affirmatively restrained
by the United States from acting on their own behalf’) (emphasis added).
Pinder, 54 F.3d at 1174-75.
Though not alleged in the Complaint, in their response brief to Defendant Cope’s
Motion to Dismiss, Plaintiffs argue that the question as to whether a special relationship
existed between Defendant Cope and Makiya should proceed to discovery because the Fourth
Circuit has not clearly defined the student-teacher relationship and whether it constitutes a
special relationship that would give tise to an affirmative duty to protect under § 1983.
However, the Fourth Circuit has agreed with other circuits in finding that a student’s
relationship with a school—or teacher—generally does not create a special relationship that
triggers protections of the Due Process Clause. See Stevenson, 3 F. App’x at 30-31 (collecting
cases) (holding that because “[a]ttending school is not the equivalent of incarceration or
institutionalization,” no special relationship forms between a student and a public school that
implicates the Due Process Clause). As explained by the Fourth Circuit in Stevenson:
Several circuits have been faced with the issue of whether a school-student
relationship is a special relationship triggering the protections of the Due
Process Clause. They have held uniformly that no special relationship exists
because the student is not in physical custody and, along with parental help, is
able to cate for his basic human needs. See Doe v. Hillsboro Indep. Sch. Dist.,
LZ

113 F.3d 1412, 1415 (5th Cir.1997) (en banc); Doe v.. Claiborne County, 103
F.3d 495, 510 (6th Cir. 1996); Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729,
732 (8th Cir.1993); Maldonado v. Josey, 975 F.2d 727, 731 (10th Cir.1992); D.R.
v. Middle Bucks Atea Vocational Technical Sch., 972 F.2d 1364, 1372 (3d
Cir.1992) (en banc); J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 272
(7th Cir.1990). This circuit has also recognized that “incarceration,
institutionalization, or the like” is needed to “trigger the affirmative duty” under
the Due Process Clause. Pinder v. Johnson, 54 F.3d 1169, 1175 (4th Cir.1995)
(en banc).
Following the lead of our sister circuits, we hold that the Martin County School
officials did not have a “special relationship” with Alex that triggered the
protections of the Due Process Clause in this case. When a student attends
public school, his liberty is not restrained to the extent contemplated in
DeShaney. Attending school is not the equivalent of incarceration of
institutionalization. See Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452,
73 L. Ed. 2d 28 (1982) (Fourteenth Amendment imposes a duty upon the state
to protect involuntary committed, mentally ill patients); Estelle v. Gamble, 429
US. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (the state’s deliberate indifference
to prisoners’ medical needs violates the Eighth Amendment). Although a
student must remain in school during the day and the school functions much as
a patent during that time, the state has not assumed total responsibility for the
student’s care. The student’s parents retain the ability to provide for his basic
human needs, and the child remains free to seek their help and protection. See
Claiborne County, 103 F.3d at 509-10; D.R., 972 F.2d at 1371-73. Therefore,
the state, simply by virtue of its maintenance of a public school system, does
not become constitutionally liable for failing to prevent all student-on-student
violence. Although the school officials here may have been irresponsible and
ineffective in not heeding the warnings that Alex was helpless at the hands of
bullies, they have not committed a constitutional violation.
Stevenson, 3 F. App’x at 30-31. As noted above, the decision is Stevenson is unpublished but
is persuasive. Maktya was not in a custodial relationship with the school or Defendant Cope,
and there is no basis here for a § 1983 claim based on a special relationship.
Finally, Plaintiffs also refer to Maktya’s property interest in a public education and allege
a Due Process violation because she was unable to attend school for several months after the
assault. However, Defendant Cope notes that the ordinary context in which courts find that
an individual has been deprived of a property interest in a public education is when a student
13

is expelled or punished, and the Complaint does not allege that Makiya was expelled or
punished in any way. (Cope’s Br. at 6-7.) As to this claim, the Fourth Circuit has held that
“Twlhen school officials suspend or expel a student, it triggers the student’s property interest
in a public education.” Stevenson, 3 F. App’x at 29. Here, as in Stevenson, Plaintiffs have
not alleged that Makiya was suspended or expelled, and there are no allegations to support the
contention that Defendants acted deliberately to force her out of school or singled her out to
deprive her of a public education. Therefore, Plaintiff has not stated a § 1983 claim on this
basis.
For all of these reasons, the Court concludes that Plaintiff has failed to state a claim
under § 1983 against Defendant Cope.
C. School Board’s Motion to Dismiss § 1983 Claim
Under § 1983, municipal liability 1s limited to action for which the municipality 1s
“actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986). Municipal
lability under § 1983 applies to local government entities, when “the action that is alleged to
be unconstitutional implements or executes a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that body’s officers.” Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690 & n.55 (1978). A policy or custom for which municipal liability can
atise under § 1983 may be established in four ways:
(1) through an express policy, such as a written ordinance or regulation; (2)
through the decisions of a person with final policymaking authority; (3) through
an omission, such as a failure to properly train officers, that “manifests
deliberate indifference to the tights of citizens”; or (4) through a practice that is
so “persistent and widespread” as to constitute a “custom or usage with the
force of law.”

14

Starbuck v. Williamsburg James City Cnty. Sch. Bd., 28 F.4th 529, 533 (4th Cir. 2022) (internal
brackets omitted) (quoting Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003)).
Here, the School Board argues that Plaintiffs fail to allege facts that would set forth a
§ 1983 claim because the Complaint does not allege sufficient facts to plausibly establish that
a constitutional right has been violated. Defendant School Board further argues that even if
the Court determined there was sufficient evidence to allege a constitutional violation, it
should not be held liable because Plaintiffs have not alleged sufficient facts to establish
municipal liability. Specifically, the School Board argues that: (1) the Complaint does not allege
that there was a custom or policy attributable to the School Board; (2) the allegations in the
Complaint focus on the conduct of a single employee rather than the conduct or decision of
a person with final policy-making authority, and a governmental entity cannot be held liable
under § 1983 on a theory of respondeat superior, (Def. School Board’s Br. [Doc. #11] at 14); (3)
that Plaintiffs fail to allege any facts, beyond conclusory statements, that the Board has a
ptactice so widespread and persistent that it constitutes a custom or usage with the force of
the law, (Def. School Board’s Br. at 16); and (4) that Plaintiffs have not pled sufficient facts
to state a claim for failure to train. Plaintiffs respond that the facts set forth in the Complaint
allege that the School Board, as a final policymaker, upheld the decision and actions of
Defendant Cope and that there was a failure to train, which both demonstrate a policy or
custom that can give tise to § 1983 liability.
However, as discussed above, Plaintiff has failed to allege a constitutional violation by
Defendant Cope. Plaintiffs’ § 1983 claim seeks to impose liability on the School Board based
on the actions of Defendant Cope, and Plaintiffs point to the allegation in the Complaint that

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the Board encouraged, ratified and or approved Cope’s actions. (Compl. {] 74.) While the
Complaint alleges that the School Board “expressly or tacitly encouraged, ratified, and/or
approved of the acts and/or omissions alleged herein and knew or should have known that
such conduct was unjustified and would result in violations of constitutional rights” such an
allegation is conclusory. Moreover, as discussed in detail above, Ms. Cope’s actions did not
constitute a violation of Makiya’s constitutional rights, and therefore any approval of those
actions would not establish a policy that gave tise to a constitutional violation. See Johnson
v. Balt. Police Dep’t, No. 22-2095, 2024 WL 1209744, at *6 (4th Cir. Mar. 21, 2024) (“A
municipality can be liable under § 1983 only where its policies are the moving force behind
the constitutional violation. [Plaintiff]’s Monell claim fails without a predicate constitutional
violation to proceed.” (internal quotations and brackets omitted)); Ryu v. Whitten, 684 F.
App’x 308, 311 (4th Cir. 2017) (noting that there can be no municipal lability absent an
underlying constitutional injury at the hands of an individual official (citing City of Los Angeles
v. Heller, 475 U.S. 796, 799 (1986)).
In addition to ratification of Ms. Cope’s conduct, Plaintiffs focus much of their
argument on alleged failure to train. “In limited circumstances, a local government’s decision
not to train certain employees about their legal duty to avoid violating citizens’ rights may rise
to the level of an official government policy for purposes of § 1983.” Connick v. Thompson,
563 U.S. 51, 61 (2011). Allegations of mere negligence are insufficient; “only where the failure
to train amounts to deliberate indifference to the rights of persons with whom the police come
into contact” does municipal liability arise. City of Canton v. Harris, 489 U.S. 378, 388 (1989);
see also Connick, 563 U.S. at 61; Jordan ex rel. Jordan v. Jackson, 15 F.3d 333, 341 (4th Cir.

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1994). However, this failure to train claim is again based on alleged constitutional violations
by Defendant Cope. Given that Plaintiffs have failed to allege a constitutional violation by
Defendant Cope, Plaintiffs cannot state a § 1983 Monell claim against the School Board for
failure to train Defendant Cope. See, e.g., Mitchell v. City of Charlotte, No. 3:23-cv-00006-
RJC-SCR, 2024 WL 1509675, at *9 (W.D.N.C. Mar. 1, 2024) (“Where a plaintiff alleges a
municipal policy or custom by failure to train, the plaintiff must show that ... the subordinates
actually violated the plaintiffs constitutional or statutory rights ... .” (internal quotation
omitted)), report and recommendation adopted, No. 3:23-cv-00006-RJC-SCR, 2024 WL
1342612 (W.D.N.C. Mat. 29, 2024).
Plaintiffs also argue that the Complaint sets forth deficiencies in policy implemented
by the School Board, as the final policy-maker. Specifically, Plaintiffs point to the facts alleged
in the Complaint that the School Board:
a. Failed to enact any policy that required or encouraged their administrators, staff
or teachers to report concerning student conduct;
b. Had no clear policy that requested or requited the reporting of concerning
student conduct by other students, including conduct that would reasonably
lead the administration to recognize the student posed a threat of violence;
c. Failed to enact a policy or protocol for assessing or supervising students with
criminal or violent histories, or managing the threat posed by such students;
d. Had no protocol for utilizing readily available information or conducting a
threat assessment when violent individuals enrolled in school;
e. Did not review internal incident reports or student records to identify potential
indicators of the threat of future violence at school;
f. Had no method for consulting with qualified internal or external security
professionals or otherwise consider the need for additional security measures as
to students who posed a high risk of school violence;
g. Had no safety protocol in place for identified threats of violence, including
violence with an edged weapon, that occurred within the school or inside a
classtoom;
h. Failed to have a supervision mechanism for students it knew to be dangerous
and violent;

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i. Purported to prohibit students from bringing weapons onto campus, but did
nothing to effectuate such prohibition;
j. Failed to establish clear and appropriate procedures for its teachers and staff
regarding how to assess and address threats of violence at the school;
k. Had no protocol or procedures for alerting others to an immediate threat of
violence, whether for purposes of protection, prevention or assistance;
l. Had no clear policies for student discipline, including the role of teachers in
effectuating student discipline.
(Compl. §] 75.)
According to Plaintiffs, the Board’s policies and inadequate training were the moving
force behind “Defendant Cope’s increasing the danger posed to Maktya.” (Pls.’ Resp. Br.
[Doc. #24] at 16.) However, as discussed above, Plaintiffs have not alleged facts indicating
that a state actor, Defendant Cope, intruded on a constitutional right. It is possible that
Plaintiffs may be alleging a state law negligence claim based on these alleged failures, but that
is a separate issue, and Plaintiffs have not linked the policies to a violation of a constitutional
right to support a claim under § 1983.1
Reviewing the allegations in the Complaint in the light most favorable to Plaintiffs and
construing all inferences in Plaintiffs’ favor, Plaintiff has failed to state a § 1983 claim against
the School Board, and the Court recommends that the § 1983 claim against the School Board
be dismissed.

! Likewise, as previously discussed, the School Board itself does not have a special relationship with Maktya
that would require it to protect her from third party harm for purposes of § 1983. The Court notes that to the
extent Plaintiffs cite to state court cases to support the state claims for negligence, the determination of the
availability of a § 1983 claim is distinct from the determination of state law claims, and the Court is not reaching
the possibility of a state action for negligence against Defendant Cope or the School Board, since those claims
ate best addressed in state court if the federal clatms are dismissed.
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D. State Law Claims
Having concluded that Plaintiffs have failed to state a § 1983 claim against any
Defendant, the Court may decline to exercise supplemental jurisdiction over the remaining
state law claims. 28 U.S.C. § 1367(c)(3). The Court is recommending dismissal of all federal
claims, and the remaining state law claims raise important issues of state law regarding the
liability of school boards and teachers and claims of immunity. Therefore, the Court should
decline to exercise supplemental jurisdiction over any remaining state law claims, including
Plaintiffs’ claims for negligence, gross negligence, and punitive damages. As such, Plaintiffs’
state law claims should be dismissed without prejudice to Plaintiffs asserting those claims in
state coutt.
II. CONCLUSION
IT IS THEREFORE RECOMMENDED that Defendant Cope’s Motion to Dismiss
[Doc. #17] and Defendant School Board’s Motion to Dismiss [Doc. #10] be GRANTED
with respect to Plaintiffs § 1983 claims, that the federal claims be dismissed, that the Court
decline to exercise supplemental jurisdiction over the remaining state law claims, that the state
law claims be dismissed without prejudice, and that this case be dismissed.
This, the 12% day of August, 2024.

LY
nited States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10653802. Public record. Not legal advice.