P. A. v. Fayette County Board of Education

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

P.A., et al.,

Plaintiffs,

v. CIVIL ACTION NO. 2:19-cv-00705

FAYETTE COUNTY BOARD OF EDUCATION, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendants Fayette County Board of Education and Donna

Evans’ Motion to Dismiss. (ECF No. 11.) For the reasons set forth below, Defendants’ Motion is

DENIED in part, and GRANTED in part.

I. BACKGROUND

This action arises out of alleged injuries sustained by a developmentally disabled minor at

a Pre-K school program on September 11, 2018 in Fayette County, West Virginia. (ECF No. 1.)

This action was brought on behalf of P.A., by and through his parent and next friend, H.K., and by

H.K. individually.1 (Id.) Plaintiffs filed this action against the Fayette County Board of Education

(“FCBOE”) and Donna Evans (“Evans”) (collectively, “Defendants”), an occupational therapist,

on September 27, 2019. (Id.)

1 In order to protect the privacy of Plaintiff P.A., initials shall be used to identify both P.A. and Plaintiff H.K.

Collectively, the Court shall reference them as “Plaintiffs.” Plaintiffs assert that Defendants have actual knowledge

of the identities of Plaintiffs H.K. and P.A. (ECF No. 1 at 1, n.1.)

The following alleged facts are taken from the Plaintiffs’ Complaint. At the time of the

events giving rise to this action, P.A. was a four-year-old minor with developmental disabilities,

including a diagnosis of Autism Spectrum Disorder. (Id. at ¶¶ 11–12.) P.A. is nonverbal and has

deficits in pre-writing, fine motor, self-care, and sensory modulation skills, and he requires

assistance with self-care activities, including hygiene and eating. (Id. at ¶¶ 12–13.)

P.A. was enrolled as a special needs student at Gatewood Elementary School in the Pre-K

school program at the beginning of the 2018–19 school year. (Id. at ¶ 16.) Because of his

disabilities, P.A. required special education services at Gatewood Elementary, including an

adaptive swing and weighted vest; a helmet; occupational therapy; and speech-language therapy.

(Id. at ¶ 17.) P.A. was also provided specialized transportation to Gatewood Elementary on

account of his lack of communication. (Id. at ¶ 19.) During this time, Evans provided P.A.’s

occupational therapy. (Id. at ¶ 18.)

Plaintiffs allege that, on September 11, 2018, P.A. left for Gatewood Elementary and did

not have any bruises or other injuries when he departed. (Id. at ¶¶ 20–21.) During the lunch

period, Plaintiffs allege that Evans “physically and forcefully slammed P.A. into a cube chair” and

further physically abused and restrained him. (Id. at ¶ 22.) Evans’ alleged slamming and

restraining of P.A. resulted in “severe physical and emotional damages,” including bruising and

abrasions on P.A.’s arms and back, edema to P.A.’s lower spine, an “extreme” fear of therapists,

and “significant developmental regression.” (Id.) Plaintiffs allege that P.A.’s teacher witnessed

this incident and later called H.K. to apologize for Evans’ misconduct and stated that the incident

“shouldn’t have happened.” (Id. at ¶ 24.)

Plaintiffs also allege that FCBOE failed to timely and appropriately discipline Evans for

the incident. (Id. at ¶ 33.) Further, Plaintiffs assert that H.K. requested at an Individualized

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Education Program meeting that cameras or other monitoring equipment be used in classrooms

prior to P.A. returning to school and that other parents of students made similar requests, but that

FCBOE refused to implement any of the requested changes. (Id. at ¶¶ 34–36.) Plaintiffs allege

that as a result of the misconduct and refusal to implement the requests, P.A. did not return to

Gatewood Elementary until December 2018. (Id. at 42.)

Plaintiffs have asserted the following claims against only Defendant Evans: Count I,

violation of the Fourth Amendment under 42 U.S.C. § 1983; Count II, violation of substantive due

process under 42 U.S.C. § 1983; Count III, violation of procedural due process under 42 U.S.C. §

1983; and Count XII, common-law battery. (See generally id.)

Plaintiffs have asserted the following claims against only Defendant FCBOE: Count IV,

municipal liability under 42 U.S.C. § 1983; Count V, violation of Section 504 of the Federal

Rehabilitation Act, 29 U.S.C. § 794(a); Count VI, violation of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12132; Count XI, negligent hiring, supervision, and retention. (See

generally id.)

Finally, Plaintiffs have asserted the following claims against both Defendants FCBOE and

Evans: Count VII, state constitutional tort under Article III, Sections 1, 5, 6 and 10, and Article

XII of the West Virginia Constitution; Count VIII, violation of the West Virginia Human Rights

Act, W. Va. Code § 5-11-1, et seq.; Count IX, intentional infliction of emotional distress; Count

X, negligence; and Count XIII, individual damages sustained by Plaintiff H.K. (See generally id.)

On December 11, 2019, Defendants moved this Court to dismiss the Complaint in its

entirety. (ECF No. 11.) Plaintiffs responded on December 26, 2019. (ECF No. 15.) Defendants

did not file a reply. As such, this motion is fully briefed and ripe for adjudication.

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II. LEGAL STANDARD

A pleading must include “a short and plain statement of the claim showing that the pleader

is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see McCleary-Evans v. Md. Dep't of Transp., State

Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (stating that this requirement exists “to give

the defendant fair notice of what the . . . claim is and the grounds upon which it rests”) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To withstand a motion to dismiss made

pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must plead enough facts “to

state a claim to relief that is plausible on its face.” Wikimedia Found. v. Nat'l Sec. Agency, 857

F.3d 193, 208 (4th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

678. Stated another way, the factual allegations in the complaint “must be sufficient ‘to raise a

right to relief above the speculative level.’” Woods v. City of Greensboro, 855 F.3d 639, 647 (4th

Cir. 2017) (quoting Twombly, 550 U.S. at 555). Well-pleaded factual allegations are required;

labels, conclusions, and a “formulaic recitation of the elements of a cause of action will not do.”

Twombly, 550 U.S. at 555; see also King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (“Bare

legal conclusions ‘are not entitled to the assumption of truth’ and are insufficient to state a claim.”

(quoting Iqbal, 556 U.S. at 679)).

In evaluating the sufficiency of a complaint, this Court first “identif[ies] pleadings that,

because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556

U.S. at 679. This Court then “assume[s] the[ ] veracity” of the complaint's “well-pleaded factual

allegations” and “determine[s] whether they plausibly give rise to an entitlement to relief.” Id.

Review of the complaint is “a context-specific task that requires [this Court] to draw on its judicial

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experience and common sense.” Id. “[T]o satisfy the plausibility standard, a plaintiff is not required

to plead factual allegations in great detail, but the allegations must contain sufficient factual heft

to allow a court, drawing on judicial experience and common sense, to infer more than the mere

possibility of that which is alleged.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th

Cir. 2017) (internal quotation marks omitted).

III. DISCUSSION

Defendants begin by arguing that because FCBOE and Evans are entitled to qualified

immunity on all claims Plaintiffs have asserted, all claims therefore fail as a matter of law and

should result in the dismissal of the Complaint in its entirety. (ECF No. 12 at 4.) Defendants then

argue that Plaintiffs have sued Evans both in her official capacity and her personal capacity, and

that such “official capacity” claims are redundant of the claims asserted against FCBOE. (Id. at

7–8.) Next, Defendants argue that Plaintiffs’ claim of intentional infliction of emotional distress

against Evans is duplicitous of the claim for battery and should be dismissed. (Id. at 8.) Then,

Defendants assert that the claims of intentional infliction of emotional distress and the claim

asserting a violation of the West Virginia Human Rights Act must be dismissed against FCBOE

because a political subdivision cannot be held responsible for the intentional conduct of its

employees. (Id. at 8–9.) Next, Defendants argue that the claims alleging violations of the

Rehabilitation Act and ADA must be dismissed because the Complaint fails to assert allegations

that would show any alleged discrimination was intentional. (Id. at 9–11.) Further, Defendants

argue that FCBOE cannot be held liable for any claim under 42 U.S.C. § 1983 asserted by the

Plaintiffs because the Complaint has failed to meet the pleading standards of Twombly and Iqbal.

(Id. at 11.) Then, Defendants assert that Plaintiffs’ claim brought pursuant to the West Virginia

Human Rights Act fails because it also has failed to meet the pleading standards of Twombly and

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Iqbal. (Id. at 12–13.) Finally, Defendants argue that Plaintiffs’ claim for punitive damages against

the Defendants are barred by the provisions of West Virginia Code § 29-12A-7. (Id. at 13.) The

Court will first address the issue of qualified immunity before turning to the remaining arguments.

A. Qualified Immunity

Defendants have moved for the dismissal of “all claims” based on an assertion of qualified

immunity afforded to Evans.2 (Id. at 4.) The purpose of qualified immunity is to ensure that

government officials performing discretionary functions can perform their duties “free from the

specter of endless and debilitating lawsuits.” Torchinsky v. Siwinski, 942 F.2d 257, 260 (4th Cir.

1991) (citing Anderson v. Creighton, 483 U.S. 635, 638 (1987)). When performing discretionary

functions, government officials are “entitled to qualified immunity from liability for civil damages

to the extent that ‘their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Rish v. Johnson, 131 F.3d 1092, 1095 (4th

Cir. 1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, qualified immunity

protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v.

Briggs, 475 U.S. 335, 341 (1986).

While a defendant may assert a qualified immunity defense through a Rule 12(b)(6)

motion, “the defense faces a formidable hurdle” and “is usually not successful.” Owens v.

Baltimore City State’s Attorney’s Office, 767 F.3d 379, 396 (4th Cir. 2014) (quoting Field Day,

2 Despite moving for the dismissal of “all claims” on the assertion of qualified immunity, Defendants appear to have

failed to address how this immunity defense applies to Counts VII (state constitutional tort), Count XI (negligent

hiring, supervision, retention), Count XII (battery), and Count XIII (individual damages asserted by H.K.), all state-

law claims. Regardless, this Court finds that even if Defendants had addressed these claims, Plaintiffs have alleged

sufficient facts to overcome the qualified immunity defense at this stage of the proceedings. Qualified immunity on

state law claims largely follows federal law. See City of Saint Albans v. Botkins, 228 W. Va. 393, 398, 719 S.E.2d

863, 868 (2011). For the reasons more fully discussed in Section A of this Order, the Court finds that Defendants are

not entitled to qualified immunity on Plaintiffs’ state law claims. Therefore, Defendants’ motion is DENIED as to

Counts VII, Count XI, Count XII, and Count XII as they relate to the qualified immunity defense.

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LLC v. Cnty. of Suffolk, 463 F.3d 167, 191–92 (2d Cir. 2006)). This is because, at this very early

stage in the proceedings, dismissal under Rule 12(b)(6) is only appropriate if the plaintiff “fails to

state a claim that is plausible on its face.” Id. at 396 (quoting Iqbal, 556 U.S. at 678) (emphasis in

original). When a defendant asserts the qualified immunity defense at this stage, the plaintiff's

burden is to demonstrate that his § 1983 claim “satisfies the following two-prong test: ‘(1) the

allegations underlying the claim, if true, substantiate a violation of a federal statutory or

constitutional right; and (2) this violation was of a clearly established right of which a reasonable

person would have known.’” Souk v. City of Mount Hope, Civ. Action No. 2:14-cv-26442, 2015

WL 5698509 at *5 (S.D. W. Va. Sep. 28, 2015) (quoting Occupy Columbia v. Haley, 738 F.3d

107, 118 (4th Cir. 2013)).

The Supreme Court once required a district court to first address the threshold question of

whether there was a constitutional violation alleged before turning to the second question of

whether, if a violation was found, that the violation was of clearly established law. See Saucier v.

Katz, 533 U.S. 194, 201 (2001). Under the Supreme Court’s more recent decision in Pearson v.

Callahan, 555 U.S. 223 (2009), however, a district court retains discretion in determining the order

in which to address the two prongs of the qualified immunity inquiry. The present case alleges

violations of fundamental and well-established constitutional principles. Accordingly, this Court

recognizes that the analysis established in Saucier to be beneficial and thus analyzes first, whether

a constitutional violation occurred, and second, whether the right violated was clearly established.

See Souk, 2015 WL 5698509 at *5. The first task for this Court, then, is to scrutinize the Complaint

and determine whether any constitutional violation has been plausibly alleged. Because Plaintiffs

have alleged several constitutional violations, the Court addresses each in turn, beginning with

Plaintiffs’ Fourth Amendment claim.

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1. Fourth Amendment

Plaintiffs have invoked the protections of the Fourth Amendment here alleging that Evans,

in seizing P.A., “unlawfully subjected P.A. to excessive, unreasonable, and unnecessary physical

force, which proximately caused P.A. serious physical and long-term psychological harm.” (ECF

No. 1 at ¶ 56.) Therefore, the Court begins its analysis by examining Plaintiffs’ claim under the

Fourth Amendment.

The Fourth Amendment generally prohibits searches and seizures of citizens absent a

warrant supported by probable cause. Wofford v. Evans, 390 F.3d 318. 325 (4th Cir. 2004). It also

prohibits police officers from using excessive force to seize and detain citizens, and “this applies

equally to the conduct of resource officers in schools.” Z.F. v. Adkins, 2:18CV00042, 2019 WL

1559022 at *3 (citing E.W. v. Dolgos, 884 F.3d 172, 179 (4th Cir. 2018)); see also DesRoches by

DesRoches v. Caprio, 156 F.3d 571, 574 (4th Cir. 1998) (“Searches and seizures carried out by

school officials are governed by the same Fourth Amendment principles that apply in other

contexts.”). Whether a school official has used excessive force is examined under a reasonableness

standard “in light of the facts and circumstances confronting [him], without regard to [his]

underlying intent or motivation.” Graham, 490 U.S. at 397. This is an objective inquiry and

requires a court to consider the amount of force used, the student’s age, and school context, among

other things. See Jones v. Buchanan, 325 F.3d 520, 530–31 (4th Cir. 2003) (noting that the level

of force used caused severe injuries was a relevant consideration); E.W. v. Dolgos, 884 F.3d 172,

179 (4th Cir. 2018) (noting that it is “prudent to consider [] the suspect’s age and the school

context”).

Here, Plaintiffs have clearly and sufficiently alleged a Fourth Amendment claim of an

unreasonable seizure effectuated by excessive force. Plaintiffs have alleged that Evans “physically

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slammed” and restrained P.A., a four-year-old boy with significant developmental disabilities,

into a cube chair with such force that it resulted in excessive bruising, edema, a fear of therapists,

and significant developmental regression. (ECF No. 1 at ¶ 22.) As alleged, the facts indicate a

use of force that was disproportionate to any need presented and further indicate what could be

considered severe injuries. As such, Plaintiffs have plead sufficient allegations to support a

plausible Fourth Amendment unreasonable seizure and excessive force claim.

Having established that Plaintiffs have sufficiently pled a plausible constitutional violation,

this Court next addresses whether the violation was of a clearly established law. See Meeker, 415

F.3d at 323. This part of the analysis examines “whether a reasonable [official] could have

believed [the challenged conduct] to be lawful, in light of clearly established law,” at the time of

the incident. Id. (quoting Anderson v. Creighton, 483 U.SS. 635, 641 (1987). A right is “clearly

established” if “the contours of the right [are] sufficiently clear that a reasonable officer would

understand that what he is doing violates that right.” Hill v. Crum, 727 F.3d 312, 321 (4th Cir.

2013) (quoting Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)).

However, it is unnecessary for the specific action and facts alleged to be held unlawful previously

in order to constitute a clearly established right. H.H. ex rel. H.F. v. Moffett, 335 Fed.Appx. 306,

314 (4th Cir. 2009). Rather, the clearly established element serves as “a notice-giving provision”

that provides government officials with “fair warning” that conduct violates the Constitution.

Souk, 2015 WL 5698509 at *10. The Fourth Amendment, however, requires a “high level of

specificity” because “it is sometimes difficult for an officer to determine how the relevant legal

doctrine, here excessive force, will apply to the factual situation the officer confronts.” E.W., 884

F.3d at 186. A seizure in the school context may be “permissible in its scope when the measures

adopted are reasonably related to the objectives of the [seizure] and not excessive[ ] . . . in light of

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the age and sex of the student and the nature of the infraction.” New Jersey v. T.L.O., 469 U.S.

325, 342 (1985).

Context is therefore critical to the reasonableness analysis. Here, Evans allegedly

“physically and forcefully” slammed P.A. into a chair. (ECF No. 1 at ¶ 22.) Further, Evans

allegedly physically restrained P.A. such that P.A. sustained extensive bruising “all over his back

and arms,” as well as abrasions on his arms. (Id. at ¶ 56.) P.A. was a four-year-old boy at the time

of the alleged incident. (Id. at ¶ 11.) Moreover, P.A. was diagnosed with Autism Spectrum

Disorder, was nonverbal, and needed assistance with numerous daily activities because of his

diagnosis. (Id. at ¶ 12.) Evans had personal knowledge of P.A.’s disabilities because she was his

occupational therapist at Gatewood Elementary. (Id. at ¶ 18.) There has been no allegation of a

need for increased force to place P.A. in his cube chair, and Evans possessed superior size and

strength. (Id. at ¶ 23.) Any reasonable occupational therapist would know that slamming and

physically restraining a four-year-old special needs student with such force as to cause extensive

bruising and abrasions would violate that student’s Fourth Amendment protections against

unreasonable seizures. See, e.g., Conklin v. Jefferson Cty. Bd. of Educ., 205 F.Supp.3d 797, 807

(N.D. W. Va. 2016) (finding special education teacher not entitled to qualified immunity from due

process claim where teacher used excessive force against disabled student). Therefore, this Court

finds that, at this early stage in these proceedings, Plaintiffs have sufficiently alleged a plausible

violation of the Fourth Amendment such that Defendants’ assertion of qualified immunity is

defeated.

Nevertheless, this Court recognizes the need for further factual development in addressing

the issue of qualified immunity. See Souk, 2015 WL 5698509 at *12. Indeed, on the issue of

reasonableness, “qualified immunity is peculiarly well-suited for resolution at the summary

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judgment stage.” Id. at *10. While cognizant of the need for early resolution on the issue of

qualified immunity, that need should not “alter the substantive standards governing pre-trial

motions.” Id. In this case, Plaintiffs have managed to plead sufficient factual allegations to support

their Fourth Amendment claim of excessive force. Defendants’ motion is DENIED as to Count I

of the Complaint.

2. Substantive Due Process

Having already established that Plaintiffs have defeated the Defendants’ assertion of

qualified immunity as to the Fourth Amendment claim, the Court now examines Plaintiffs’ cause

of action asserting a violation of the Fourteenth Amendment’s right to substantive due process.

(ECF No. 1 at 9.) Defendants argue that Defendant Evans “placed” P.A. in a cube chair and that

this placement into the chair was “objectively reasonable given his developmental disabilities.”

(ECF No. 12 at 7.) As such, Defendants maintain they are entitled to qualified immunity and that

the Complaint fails to plead sufficient allegations that Evans’ conduct was malicious or objectively

unreasonable. (Id.)

The Supreme Court has recognized that “corporal punishment in public schools implicates

a constitutionally protected liberty interest . . . to be free from . . . unjustified intrusions on personal

security.” Ingraham v. Wright, 430 U.S. 651, 672 (1977). Like the Fourth Amendment analysis

above, the proper inquiry into a substantive due process violation focuses on the force imposed by

school officials. Meeker v. Edmundson, 415 F.3d 317, 321 (4th Cir. 2005). A school official can

violate a student’s rights to substantive due process if “the force applied caused injury so severe,

was so disproportionate to the need presented, and was so inspired by malice or sadism rather than

a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of

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official power literally shocking to the conscience.” Hall v. Tawney, 621 F.2d 607, 613 (4th

Cir.1980).

Plaintiffs’ Complaint clearly alleges facts sufficient to state a constitutional violation under

this analysis. As this Court has already addressed, Plaintiffs allege that Evans used force

disproportionate to any need and “physically and forcefully” slammed and restrained P.A., a four-

year-old developmentally disabled boy, into a cube chair. (See id. at ¶ 22.) The Complaint further

alleges that this use of force resulted in both physical and emotional injuries, including extensive

bruising, edema, and significant developmental regression. (Id.) Moreover, Plaintiffs have alleged

that Evans had personal knowledge of P.A.’s disabilities such that she should have known her

conduct could result in injury to P.A. Finally, Plaintiffs allege that Evans’ conduct was so

objectively unreasonable that P.A.’s teacher, who had witnessed this event, later called H.K. to

state that the event “shouldn’t have happened.” (See id. at ¶ 24.) Under these allegations, Plaintiffs

have clearly alleged a plausible constitutional violation.

Having established that Plaintiffs have sufficiently pled a plausible constitutional violation,

this Court next addresses whether the violation was of a clearly established law. See Meeker, 415

F.3d at 323. This Court has little difficulty in finding that a reasonable occupational therapist

would know that physically slamming a child into a chair interferes with the child’s constitutional

liberty interests. “The Fourteenth Amendment liberty interest in bodily integrity has been

recognized since at least 1977,” and the Fourth Circuit has also recognized that the “arbitrary use

of corporal punishment” has been prohibited by the Fourteenth Amendment since the Hall decision

in 1980. See Meeker, 415 F.3d at 323.3 Importantly, “even where a teacher may have a

3 The Fourth Circuit also recognized in Meeker that even in jurisdictions where corporal punishment is administered

pursuant to established disciplinary codes, and thus not actionable as a substantive due process violation, “claims

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conceivably permissible justification for use of a restraint, her actions will not be protected by

qualified immunity when they amount to an ‘abuse of official power literally shocking to the

conscience.’” Moffett, 335 Fed.Appx. at 314. Here, even if Defendants claim that the justification

for such force was to place P.A. in the chair, Evans’ alleged use of force was clearly

disproportionate to that goal such that it amounts to an abuse of official power literally shocking

to the conscience. Plaintiffs have managed to plead sufficient factual allegations to overcome

Defendants’ qualified immunity defense as to the substantive due process claim. Defendants’

motion is DENIED as to Count II of the Complaint.

3. Procedural Due Process

Defendants have moved for the dismissal of “[a]ll claims” asserted on the basis of qualified

immunity but have neglected to address Count III in their accompanying memorandum of law.

(ECF No. 12 at 4–7.) Plaintiffs urge the Court to deny Defendants’ motion as to Count III because

P.A. has demonstrated a property interest in education and that the Defendants’ actions and

inaction deprived P.A. of that property interest. (ECF No. 15 at 7, n.3.)

The Supreme Court has recognized that a protected interest within the Fourteenth

Amendment is not created by the Constitution, but rather is created by an independent source of

law, such as state statutes. See Goxx v. Lopez, 419 U.S. 565, 572–73 (1975). The State of West

Virginia has guaranteed special needs students access to a free public education, thus creating a

protected interest within the Fourteenth Amendment. See W. Va. Const. art. XII, § 1(“The

alleging arbitrary acts of violence are.” 415 F.3d at 324. Other circuits are in agreement. See, e.g., Neal v. Fulton

County Bd. of Educ., 229 F.3d 1069, 1073 (11th Cir. 2000); P.B. v. Koch, 96 F.3d 1298, 1304 (9th Cir. 1996) (holding

that when there is no disciplinary need to use force against a student, “one can reasonably infer” that the violent actions

were taken “not in good faith but for the purpose of causing harm”); Webb v. McCullough, 828 F.2d 1151, 1159 (6th

Cir. 1987) (holding that lack of evidence that the blows were disciplinary raised the possibility that the “need to strike

. . . was so minimal or non-existent that the alleged blows were a brutal and inhumane abuse of . . . official power,

literally shocking to the conscience”).

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Legislature shall provide, by general law, for a thorough and efficient system of free schools.”);

W. Va. Code St. R. § 126-16, ch. 1 (“A free appropriate public education (FAPE) must be available

to all students residing in the state between the ages of three and twenty-one, inclusive,

who are eligible for special education services.”).

Here, Plaintiffs have pled sufficient facts to overcome Defendants’ assertion of qualified

immunity at this stage. In addition to the allegation that P.A. was forcefully slammed into a chair

and restrained there, (See ECF No. 1 at ¶ 22), Plaintiffs have alleged that H.K. submitted

complaints to the FCBOE and Gatewood Elementary administration regarding the above-

described incident and made requests for recording instruments to be installed in the classroom

before P.A. could return to the school. (Id. at ¶¶ 34–35.) Plaintiffs allege that the FCBOE and the

school refused these requests and took no action in disciplining Defendant Evans. (Id. at ¶ 33.)

As a result of these failures, P.A. was unable to return to school until December 2018. (Id. at ¶¶

40, 42, 80.) Notwithstanding Defendants’ lack of argument concerning Count III, Plaintiffs’ have

sufficiently plead a plausible procedural due process claim. Defendants’ motion is DENIED as to

Count III of the Complaint.

4. Municipal Liability

Defendants next argue that Plaintiffs have failed to plead sufficient allegations to support

a municipal liability claim pursuant to § 1983 against Defendant FCBOE. (ECF No. 12 at 11–12.)

Defendants assert that Plaintiffs have only plead a conclusory allegation that the FCBOE had a

policy and base that allegation on a single, solitary incident that is insufficient to establish

municipal liability. (Id. at 12.) Plaintiffs, however, maintain they have met the pleading standards

because the sole incident complained of was “plainly obvious” such that the FCBOE should have

been on notice of the need to properly train its employees. (ECF No. 15 at 11.)

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First, a municipality may be liable under § 1983 if the municipality itself subjects an

individual to a deprivation of rights or causes an individual to be subjected to such deprivation.

Connick v. Thompson, 563 U.S. 51, 59 (2011) (citing Monell v. New York City Dept. of Social

Servs., 436 U.S. 658, 692 (1978)). Under § 1983, municipalities are responsible only for “their

own illegal acts.” Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986) (citing Monell, 436 U.S. at

665–83). Municipalities are not vicariously liable for their employees’ actions under § 1983.

Monell, 436 U.S. at 691.

Thus, to establish a § 1983 claim against a municipality, a plaintiff must show that the

action that caused their injury was “pursuant to official municipal policy.” Id. at 691, 694.

A policy or custom for which a municipality may be held liable can arise 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 “manifest [s] deliberate

indifference to the rights 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.”

Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (citing Carter v. Morris, 164 F.3d 215, 218 (4th

Cir. 1999)). Plaintiffs here have asserted a failure-to-train theory to support their § 1983 claim

against FCBOE.

In order to establish municipal liability on a claim of failure to train, a plaintiff must show

that “the failure to train amounts to deliberate indifference to the rights of those with whom

municipal employees will come into contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 388

(1989). Deliberate indifference, in the context of a failure to train, can be shown in one of two

ways. First, a plaintiff may show a “pattern of similar constitutional violations” by municipal

employees. Connick v. Thompson, 563 U.S. 51, 61 (2011). Second, a municipality may face

liability for a single incident where the need for training concerning an officer's conduct was

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“plainly obvious.” Doe v. Broderick, 225 F.3d 440, 456 (4th Cir. 2000). Plaintiffs have opted to

advance their argument under the theory that the need to train employees on the proper restraint of

special needs students was “plainly obvious.”

Here, Plaintiffs have sufficiently plead a failure-to-train claim against the FCBOE. As

discussed, Plaintiffs have alleged that Defendant Evans, an employee of FCBOE, physically

slammed and restrained P.A. in a cube chair. (ECF No. 1 at ¶ 22.) This use of force resulted in

numerous injuries to P.A., including excessive bruising, edema, and developmental regression.

(Id.) The need to train employees on the proper handling and restraint of special needs students

was plainly obvious, and the risk of not training employees was realized as alleged by the injuries

sustained by P.A. in Plaintiffs’ Complaint. For these reasons, Plaintiffs have sufficiently plead a

municipal liability claim and have overcome the Defendants’ claim of qualified immunity at this

stage. Defendants’ motion is DENIED as to Count IV of the Complaint.

B. Official Capacity

Defendants next move for the dismissal of all claims asserted against Defendant Evans in

her official capacity, asserting the claims are redundant of the claims against the FCBOE. (ECF

No. 12 at 7–8.) Plaintiffs have responded in kind by voluntarily dismissing, without prejudice,

their claims against Defendant Evans in her official capacity. (ECF No. 15 at 3, n.1.)

Therefore, Defendants’ motion is GRANTED regarding all claims against Defendant

Evans in her official capacity. All claims asserted against Defendant Evans in her official capacity

are hereby DISMISSED without prejudice.

C. Intentional Infliction of Emotional Distress

Defendants next move this Court to dismiss Plaintiffs’ intentional infliction of emotional

distress (“IIED”) because it is duplicitous of Plaintiffs’ claim of battery. (ECF No. 12 at 8.).

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Plaintiffs have responded by offering to voluntarily withdraw its IIED claim, without prejudice.

(ECF No. 15 at 3, n.1.)

Therefore, Defendants’ motion is GRANTED regarding Plaintiffs’ claim of intentional

infliction of emotional distress. Plaintiffs’ claim of intentional infliction of emotional distress is

hereby DISMISSED without prejudice.

D. Immunity under the West Virginia Governmental Tort Claims and Insurance Reform Act

Next, Defendants argue for the dismissal of Count VIII as asserted against FCBOE.

Defendants argue that Count VIII, which asserts a violation of the West Virginia Human Rights

Act (“WVHRA”), is subject to dismissal because political subdivisions “cannot be held vicariously

liable for the intentional acts of its employees.”4 ECF (No. 12 at 8–9.)

Defendants’ argument is based on language within the West Virginia Governmental Tort

Claims and Insurance Reform Act (the “GTCA”). See W. Va. Code § 29-12A-4(b)–(c).

Subsection (b) establishes that a “political subdivision” shall not be liable in damages in a civil

action for injury “caused by any act or omission of the political subdivision or an employee of the

political subdivision in connection with a governmental or proprietary function[.]” Relatedly,

subsection (c) establishes that a political subdivision may be liable for injury only in one of the

following five instances: (1) when the injury is caused by the negligent operation of any vehicle

by its employees when engaged within the scope of their employment and authority; (2) when the

injury is the result of negligence by an employee acting within the scope of employment; (3) when

the injury is caused by the negligent failure of the political subdivision to keep public roads, streets,

sidewalks, and other related pathways and grounds open and in good repair; (4) when the injury is

4 Defendants also argue that Plaintiffs’ IIED claim against the FCBOE is subject to dismissal for this same reason. As

the IIED claim has already been voluntarily withdrawn by Plaintiffs, the Court does not address this argument here.

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caused by the negligence of its employees and it occurs on or within the grounds of the buildings

used by the political subdivision; and (5) when liability is expressly imposed upon the political

subdivision by another provision of the West Virginia Code. W. Va. Code § 29-12A-4(c)(1)–(5).

Plaintiffs argue that FCBOE cannot be immune from liability in this action because the

WVHRA expressly imposes liability upon FCBOE and that the immunity afforded by the GTCA

does not apply. (Id.) This Court agrees. By the plain language of § 29-12A-4(c)(5), liability may

be imposed upon a political subdivision if expressly provided for by another provision of the West

Virginia Code. Therefore, the Court must determine whether the WVHRA expressly imposes

liability upon FCBOE.

The WVHRA makes it unlawful

(6) For any person being the owner, lessee, proprietor, manager, superintendent,

agent or employee of any place of public accommodations to:

(A) Refuse, withhold from or deny to any individual because of his or her race,

religion, color, national origin, ancestry, sex, age, blindness or disability, either

directly or indirectly, any of the accommodations, advantages, facilities,

privileges or services of the place of public accommodations;

W. Va. Code § 5-11-9. A “person” is defined by the WVHRA as “one or more individuals,

partnerships, associations, organizations, corporations, labor organizations, cooperatives, legal

representatives, trustees, trustees in bankruptcy, receivers and other organized groups of

persons[.]” W. Va. Code § 5-11-3(a). A county board of education is a “person” under this

definition. See Syl. Pt. 2, Board of Educ. of Lewis Cnty. v. West Virginia Human Rights Comm’n,

182 W. Va. 41, 42, 385 S.E.2d 637, 638 (1989).

The WVHRA expressly imposes liability on the FCBOE. Defendants’ motion is DENIED

as it relates to Plaintiffs’ claim of a violation of the WVHRA against Defendant FCBOE.

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E. The Rehabilitation Act, the Americans with Disabilities Act, and the West Virginia Human

Rights Act

Next, Defendants argue for the dismissal of claims asserting violations of Section 504 of

the Rehabilitation Act (Count V), the Americans with Disabilities Act (Count VI), and the

WVHRA (Count VIII) because Plaintiffs have failed to allege sufficient facts that would show

intentional discrimination. (ECF No. 12 at 9–11.) Defendants maintain that Plaintiffs have only

made “conclusory allegations” that FCBOE’s actions were intentionally discriminatory and are

not sufficient under the pleading standards set forth in Twombly and Iqbal. This Court will address

the Rehabilitation Act and the ADA together, before addressing the WVHRA.

1. Section 504 of the Rehabilitation Act and the Americans with Disabilities Act

The Fourth Circuit has determined that, because § 504 of the Rehabilitation Act and Title

II of the ADA both prohibit discrimination against an otherwise qualified person with a disability,

the same analysis should be applied to both. See Doe v. University of Md. Medical Sys. Corp., 50

F.3d 1261, 1264 n.9 (4th Cir. 1995) (“Because the language of the two statutes is substantially the

same, we apply the same analysis to both.”). With this in mind, the Court will analyze the

Defendants’ motion to dismiss under this standard.

The Fourth Circuit has determined that three elements are necessary to establish a violation

of either § 504 or Title II of the ADA.

In order to establish a violation of either of these statutes, a plaintiff must prove:

(1) that he has a disability; (2) that he is otherwise qualified for the employment or

benefit in question; and (3) that he was excluded from the employment or benefit

due to discrimination solely on the basis of the disability.

Id. at 1264–65. Defendants’ argument focuses solely on the third element, specifically that

Plaintiffs’ have failed to allege sufficient facts that the discrimination was solely on the basis of

the disability. (ECF No. 12 at 11.) This Court disagrees.

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At this stage, Plaintiffs merely need to plead sufficient allegations such that a claim is

plausible on its face. A claim has facial plausibility when the plaintiff pleads sufficient facts to

allow the Court to make a reasonable inference that a defendant is liable for the misconduct

alleged. Here, Plaintiffs have not made solely conclusory allegations that the misconduct was

intentionally discriminatory, as the Defendants argue. Rather, Plaintiffs allege that Defendants

knew of P.A.’s disabilities, considering his enrollment in and receiving of special needs services,

(ECF No. 1 at ¶¶ 17–18); that Defendants were aware of the alleged incident, (Id. at ¶¶ 33, 37);

and that the FCBOE failed to take any disciplinary or corrective action in response to the incident.

(Id. at ¶¶ 33–40.) Perhaps most importantly to this Court’s analysis, however, is the allegation

that no non-disabled students were subjected to the same alleged misconduct or denied access to

educational services. (Id. at ¶¶ 105, 114, 130.) This allegation in particular is sufficient to allow

the Court to draw the reasonable inference that the Defendants’ alleged misconduct was the result

of intentional or purposeful discrimination.

Therefore, for the above reasons, Defendants’ motion to dismiss Counts V and VI of the

Complaint is DENIED.

2. The West Virginia Human Rights Act

Similarly, Defendants assert that Plaintiffs have failed to sufficiently plead that the alleged

conduct of the Defendants was a result of any discrimination based on P.A.’s disability. (ECF No.

12 at 13.) Rather, they argue that Plaintiffs have only stated in a “conclusory fashion” that the

conduct was “due to [P.A.’s] disability.” (Id. at 13.)

As previously stated, the WVHRA makes it unlawful

(6) For any person being the owner, lessee, proprietor, manager, superintendent,

agent or employee of any place of public accommodations to:

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(A) Refuse, withhold from or deny to any individual because of his . . . disability,

either directly or indirectly, any of the accommodations, advantages,

facilities, privileges or services of the place of public accommodations;

W. Va. Code § 5-11-9 (emphasis added). “Therefore, a cause of action under the WVHRA must

be predicated upon an unlawful motivation, not simply an unlawful injury.” Arbaugh v. Bd. of

Educ., Cnty. of Pendleton, 329 F.Supp.2d 762, 772 (N.D. W. Va. 2004).

As described above, Plaintiffs have sufficiently alleged facts that establish a facially

plausible claim of a violation of the WVHRA. Again, critical to that determination is the allegation

that no non-disabled students were either abused or denied access to services as a result of that

abuse. (ECF No. 1 at ¶¶ 105, 114, 130.)

Therefore, for the foregoing reasons, Defendants’ motion to dismiss Count VIII of the

Complaint is DENIED.

F. Punitive Damages

Finally, Defendants argue that the GTCA, specifically West Virginia Code § 29-12A-7,

prohibits the award of punitive damages against a political subdivision and its employees. (ECF

No. 12 at 13.) Section 29-12A-7 states as follows:

Notwithstanding any other provisions of this code or rules of a court to the contrary,

in an action against a political subdivision or its employee to recover damages for

injury, death, or loss to persons or property for injury, death, or loss to persons or

property caused by an act or omission of such political subdivision or employee:

(a) In any civil action involving a political subdivision or any of its employees as a

party defendant, an award of punitive or exemplary damages against such political

subdivision is prohibited.

Plaintiffs counter that Defendant Evans is not covered by the statute and therefore is subject to

punitive damages, and also assert that the GTCA’s prohibition of punitive damages does not apply

to federal claims pursuant to W. Va. Code § 29-12A-18(e). Section 29-12A-18(e) states that the

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prohibition of punitive damages against political subdivisions does not apply to “[c]ivil claims

based upon alleged violations of the constitution or statutes of the United States except that the

provisions of section eleven of this article shall apply to such claims or related civil actions.”5

The Court will first address Defendant Evans and finds that the prohibition on punitive

damages does not extend to the employee of a political subdivision. Under the plain language of

the GTCA, it does not prohibit or otherwise limit punitive damages against employees of political

subdivisions. Id. (“In any civil action involving a political subdivision or any of its employees as

a party defendant, an award of punitive or exemplary damages against such political subdivision

is prohibited.” (emphasis added). See also Webb v. Raleigh Cnty. Sheriff’s Dept., 761 F.Supp.2d

378, 395–96 (S.D. W. Va. 2010) (“However, under a plain reading of the statute, its terms do not

limit punitive damages against the employees of a subdivision.”)

Similarly, because Plaintiffs have plead a plausible § 1983 claim against Defendant

FCBOE, the Court finds that the prohibition on punitive damages does not apply to FCBOE at this

stage. Again, the plain language of section 18 is clear: Article 12A does not apply to civil claims

“based upon alleged violations of the constitution or statutes of the United States[.]” Here,

Plaintiffs have plausibly alleged a violation under the United States Constitution and have filed

that claim pursuant to 42 U.S.C. § 1983. See, e.g., Cummings v. City of Wheeling, West Virginia,

Civ. Action No. 5:19-cv-271, 2019 WL 6609693 at *3 (N.D. W. Va. Dec. 5, 2019).

Therefore, based on the foregoing reasons, Defendants’ motion to dismiss on the issue of

punitive damages is DENIED.

5 Generally, West Virginia Code § 29-12A-11 provides that a political subdivision shall defend its employees in civil

actions where the alleged injury was caused by an act or omission of the employee within the scope of his employment.

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IV. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss, (ECF No. 11), is GRANTED

in part and DENIED in part.

IT IS SO ORDERED.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any

unrepresented party.

ENTER: August 14, 2020

es 7 INSTON, CHIEF JUDGE

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