# Doe v. Cabell County Board of Education

> District Court, S.D. West Virginia · February 24, 2022

URL: https://www.frixlaw.com/law-library/cases/10730227

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** February 24, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

JANE DOE and J. DOE,
as parent, natural guardians
and next friends of JOHN DOE,

Plaintiffs,

v. CIVIL ACTION NO. 3:21-0031

CABELL COUNTY BOARD OF EDUCATION and
JASON CURRY,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendant Cabell County Board of Education’s (“CCBOE”)
Motion to Dismiss Amended Complaint (ECF No. 49). For the reasons herein, the Motion is
GRANTED IN PART and DENIED IN PART.
I. FACTUAL BACKGROUND
On October 6, 2021, Plaintiffs Jane Doe and her husband J. Doe filed an amended
complaint on behalf of their minor son, John Doe. Plaintiffs alleged that their son, a severe-
special-needs middle schooler at a Cabell County school, was inappropriately touched by his
teacher’s aide, Mr. Curry, on two separate occasions. See e.g., Am. Compl. The first incident
occurred on October 15, 2019. See id. ¶ 6. A special-needs teacher witnessed the event. Id. ¶ 7.
The victim, who is nonverbal, was unable to tell his parents about the assault; the victim’s
parents were not told or otherwise advised by the school about the incident. Id. ¶¶ 8-9. School
personnel did not document the October incident. Id. ¶ 10.
A second incident of inappropriate touching occurred on November 22, 2019. Id. ¶ 11.
The school principal reported the second incident to the Cabell County Sheriff’s Department. Id.
¶ 12. The Sheriff’s Department created an incident report of “forcible fondling” based on witness
accounts. Id. ¶¶ 11, 13. In a meeting on the same day, the principal advised Plaintiffs of the

second incident and mentioned in passing that he had previously advised Curry not to let John
Doe sit on his lap. Id. ¶ 14. On November 22, 2019, school personnel also prepared an incident
report regarding the events in October, though those details were never shared with the victim’s
parents. Id. ¶ 15.
On November 25, 2019, the Cabell County prosecutor charged Curry with sexual abuse.
Id. ¶ 16. At a meeting with the Prosecuting Attorney’s office, Plaintiffs learned for the first time
of the October incident. Id. ¶ 17. Plaintiffs had not previously been advised of details, nor had
they seen an incident report regarding the events. Id. Soon thereafter, Plaintiffs learned that an
aide in the victim’s general education room told another aide and teacher that she suspected
Curry was “doing things” to the victim. Id. ¶ 18. Despite the CCBOE (and its agents) being

mandatory reporters of sex crimes against minors, the original October assault was not reported
to the authorities. Id. ¶ 19. The CCBOE also did not have video cameras in special-needs self-
contained classrooms, as required by West Virginia law. Id. ¶ 20.
Plaintiffs filed a complaint alleging the following causes of action against Curry and the
CCBOE: Violation of 42 U.S.C. § 1983 (Count I); State Constitutional Tort (Count II);
Negligence (Count III); Tort of Outrage/Reckless Infliction of Emotional Distress (Count IV);
Disability Discrimination in Violation of West Virginia Human Rights Act (Count V); Disability
Discrimination in Violation of Americans with Disabilities Act (Count VI); Violation of the
Rehabilitation Act (Count VII); Civil Assault and Aiding and Abetting Civil Assault (Count
VIII); Civil Battery and Aiding and Abetting Civil Battery (Count IX). Defendant CCBOE
moved to dismiss all counts against it for failure to state a claim, except for the claim asserted in
Count III.
II. LEGAL STANDARD

To survive a motion to dismiss, a plaintiff’s complaint must contain “a short and plain
statement of the claim showing [the plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
facts contained in the statement need not be probable, but the statement must contain “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In considering the
plausibility of a plaintiff’s claim, the Court must accept all factual allegations in the complaint as
true. Id. Still, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citation omitted).

Whether a plausible claim is stated in a complaint requires a court to conduct a context-
specific analysis, drawing upon the court’s own judicial experience and common sense. Id. at
679. If the court finds from its analysis that “the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged-but it has not
‘show[n]’-‘that the pleader is entitled to relief.’” Id. (quoting, in part, Fed. R. Civ. P. 8(a)(2)).
Nonetheless, a plaintiff need not show that success is probable to withstand a motion to dismiss.
Twombly, 550 U.S. at 556 (“[A] well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of those facts is improbable, and that a recovery is very remote and
unlikely.”).
III. ANALYSIS
A. Count I: 42 U.S.C. § 1983
As an initial matter, it is well established that a state’s political subdivisions are amenable
to suit under § 1983. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1976). Yet the fact that

political subdivisions are suitable defendants does not render them vicariously liable for the
actions of their employees. Id. at 694. Rather, a plaintiff must “adequately plead and prove the
existence of an official policy or custom that is fairly attributable to the municipality and that
proximately caused the deprivation of their rights.” Semple v. City of Moundsville, 195 F.3d 708,
712 (4th Cir. 1999). The Fourth Circuit Court of Appeals has clarified that:
[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) (quoting Carter v. Morris, 164 F.3d 215, 218
(4th Cir. 1999)). The Fourth Circuit has noted that “[a]lthough prevailing on the merits of a
Monell claim is difficult, simply alleging such a claim is, by definition, easier.” Owens v.
Baltimore Attorney’s Office, 767 F.3d 379, 403 (4th Cir. 2014). In this context, “[t]he recitation
of facts need not be particularly detailed, and the chance of success need not be particularly
high.” Id.
Defendant argues that Plaintiffs have failed to allege facts sufficient to support a municipal
liability claim. See Def.’s Mem. at 4-6, ECF No. 50. There is no challenge to any formally
adopted policy of the CCBOE. See Pls.’ Resp. at 5-11, ECF No. 28.1 Instead, Plaintiffs allege

1 Plaintiffs’ Renewed Response (ECF No. 56) incorporates by reference their original
Response (ECF No. 28) but does not restate those arguments and only addresses the Monell
that the CCBOE had an unofficial custom of deliberate indifference and failure to respond to
abuse by employees and failed to train its employees in preventing and reporting sexual abuse.
Am. Compl. ¶¶ 21-34.2
With respect to Plaintiffs’ failure-to-train allegations, the Court begins by acknowledging

“that the inadequacy of [] training may serve as the basis for § 1983 liability” where “such
inadequate training can justifiably be said to represent ‘city policy.’” City of Canton, Ohio v.
Harris, 489 U.S. 378, 388 (1989). This standard requires Plaintiffs to allege “that a municipal
governing body ... has followed a policy of inadequate training” for duties for which “‘the need
for more or different training is so obvious, and the inadequacy so likely to result in the violation
of constitutional rights, that the policymakers ... can reasonably be said to have been deliberately
indifferent to the need.’” Revene v. Charles Cnty. Com’rs, 882 F.2d 870, 874–75 (4th Cir. 1989).
In meeting this burden, “[a] single act ... alleged cannot suffice, standing alone, to establish the
existence of such a policy.” Id. at 875.
Here, though, Plaintiffs connect the failure-to-train allegation to their other Monell claim:

that other incidents of misconduct have occurred over the last several years and the CCBOE has
failed to respond to each of these instances, resulting in Doe’s abuse. See Am. Compl. ¶ 28.
Further, the Complaint alleges that other CCBOE employees knew or suspected misconduct and
failed to report it, which allowed Curry to continue assaulting Doe. Id. at ¶¶ 7, 18. The need to
provide training to teachers and aides regarding sexual assault prevention and reporting for
nonverbal special-needs student is plainly obvious. These allegations are admittedly
undeveloped, and Plaintiffs will be required to prove them as this action moves forward. Yet, for

claim. As such, the Court will use both this Response and the Renewed Response where
applicable.
2 Plaintiffs allege alternative theories of Monell liability, which the Court need not
address at this stage because they have adequately alleged at least one theory.
the limited purpose of a motion to dismiss, Plaintiffs have sufficiently stated a claim under
Monell. See Davis v. Milton Police Dep’t, No. 20-0036, 2020 WL 2341238 at *11 (S.D.W. Va.
May 11, 2020). Accordingly, as to the Monell claim, the Motion is DENIED.
B. Statutory Immunity

Defendant asserts that it is statutorily immune from Counts II, IV, V, VIII, and IX. The
West Virginia Government Tort Claims Act (“GTCA”) immunizes political subdivisions from
civil lawsuits in certain situations. See W. Va. Code Ann. § 29-12A-1 et seq. Under the statute,
political subdivision includes county boards of education. See id. § 29-12A-3(c). “[A] political
subdivision is not liable in damages in a civil action for injury, death, or loss to persons or
property allegedly 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.” Id. at § 29-
12A-4(b)(1). Therefore, the CCBOE is immune from any intentional conduct it may have taken
as an entity, despite Plaintiffs’ assertions to the contrary. See Zirkle v. Elkins Road Public
Service Dist., 655 S.E.2d 155 (“We therefore conclude that claims of intentional and malicious

acts are included in the general grant of immunity in W.Va. Code, 29–12A–4(b)(1). Only claims
of negligence specified in W. Va. Code, 29–12A–4(c) can survive immunity from liability under
the general grant of immunity in W. Va. Code, 29–12A–4(b)(1))).” Of course, the GTCA’s
general grant of immunity is subject to certain enumerated exceptions including:
(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 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.”
P.A. v. Fayette Cnty. Bd. of Educ., 2020 WL 4740481 at *8 (S.D.W. Va. Aug. 14, 2020) (citing
W. Va. Code § 29-12A-4(c)(1)-(5)).

Thus, the CCBOE may be liable for “injury, death, or loss to persons or property caused
by the negligent performance of acts by their employees while acting within the scope of
employment.” Id. § 29-12A-4(c)(2) (emphasis added). However, “[s]imply put, West Virginia
political subdivisions are not liable for the intentional malfeasance of their employees.” Jones v.
Bd. of Educ. of Putnam Cnty., W. Va., 432 F. Supp. 3d. 635, 647 (S.D.W. Va. 2020) (internal
citations omitted).
i. Counts IV (Intentional Infliction of Emotional Distress), VIII (Aiding and Abetting Civil
Assault), and IX (Aiding and Abetting Civil Battery)

This explanation of the grant of immunity in the GTCA is sufficient to resolve Counts IV,
VIII, and IX, because each of these Counts alleges a tort that is, by definition, intentional3 on the
part of the CCBOE itself and by its employee. Further, “a mere allegation of negligence does not
turn an intentional tort into negligent conduct,” Weigle v. Pifer, 139 F. Supp. 3d 760, 780
(S.D.W. Va. 2015) (internal quotation marks and citation omitted). As the Counts alleged are
intentional torts, municipal liability will not lie for Plaintiffs’ claims of intentional infliction of
emotional distress4, aiding and abetting civil assault, and aiding and abetting civil battery.
Accordingly, the Motion, as to Counts VIII and IX is GRANTED.

3 Aider and abettor liability is only for those counts that adequately plead an underlying
tort. Further, it is only applicable when one “knows that the other’s conduct constitutes a breach
of duty and gives substantial assistance or encouragement to the other so to conduct himself….”
Restatement Second of Torts § 876(b). While West Virginia has recently recognized aider-and-
abettor liability in a civil tort context, Boone v. Activate Healthcare, LLC, 859 S.E.2d 419, 425
(W. Va. 2021), because Defendant is immune here from the underlying intentional tort, it would
defeat the purposes of immunity to allow Defendant to be held liable in this capacity, for
“knowingly aiding and abetting” an intentional tort. Am. Compl. ¶¶ 65, 68, 71, 72.
4 The Court recognizes that, in West Virginia, a claim of “intentional” infliction of
emotional distress can be proven either by intentional or reckless behavior. See Syl. Pt. 6,
Harless v. First Nat. Bank in Fairmont, 289 S.E.2d 692 (W. Va. 1982). However, reckless
ii. Counts II (State Constitutional Tort) and V (Violation of the WVHRA)
a. Count II (State Constitutional Tort)
The West Virginia Constitution provides that “[n]o person shall be deprived of life,
liberty, or property, without due process of law, and the judgment of his peers.” W.V. const., art.

III, § 10. But even where a cause of action exists under Article III § 10 of the West Virginia
Constitution, the GTCA may be a shield. See Syl. Pt. 2, Hutchinson v. City of Huntington, 479
S.E.2d 649 (W. Va. 1996) (“Unless barred by one of the recognized statutory, constitutional or
common law immunities, a private cause of action exists where a municipality or local
governmental unit causes injury by denying that person rights that are protected by the Due
Process Clause embodied within Article 3, § 10 of the West Virginia Constitution.”).
Accordingly, the provisions of the GTCA apply in full to the state constitutional claim. However,
unlike the intentional tort claims, Plaintiffs have alleged negligent behavior by the Board that
could serve as a basis for liability for this claim.5 At this stage, the unchallenged6 assertions of
negligence are sufficient, and the Motion is DENIED.

behavior still requires behavior that is more than negligence. See Syl. Pt. 2, Travis v. Alcon
Labs., Inc., 504 S.E.2d 419 (W. Va. 1998) (requiring plaintiff to prove that the defendant acted
intentionally or “recklessly when it was certain or substantially certain emotional distress would
result from his conduct…”) As such, per Zirkle, the CCBOE may not be held liable.
5 Plaintiffs allege that the CCBOE “did not advise the victim’s parents with respect to the
original incident… because Defendants knew the victim could not communicate what had
occurred to his parents or others because of his disability.” Am. Compl. ¶ 47. The Court agrees
that because this specific allegation of discrimination is explicitly couched in intentional terms, it
is insufficient to state a claim. See Jones, 432 F. Supp. 3d 635, 647-48. However, Plaintiffs have
also alleged a range of negligent conduct in Count III which Defendant did not challenge and
could constitute discrimination.
6 Defendant challenged the sufficiency of the allegations in this Count by alleging that
Plaintiffs have failed to an adequate allege policy or custom to impose state constitutional
liability, but as discussed above, that argument fails.
b. Count V (Violation of the WVHRA)
Defendant contends that it is entitled to statutory immunity from the WVHRA claim
because the underlying allegations involve only Defendant Curry’s intentional conduct. Def.’s
Mem. at 14-15. Plaintiffs respond that they have alleged negligent and intentional acts which can

constitute the basis for liability here. Pls.’ Resp. at 18.
Under the WVHRA, it is unlawful for “any person being the owner, lessee, proprietor,
manager, superintendent, agent or employee of any place of public accommodations to ...
[r]efuse, withhold from or deny to any individual because of his or her ... 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(6)(A). An exception to the statutory
immunity grant given by the GTCA exists “when liability is expressly imposed upon the political
subdivision by another provision of the West Virginia Code.” W. Va. Code Ann. § 29-12A-
(c)(5). The WVHRA is a statute which “expressly imposes liability upon [a county board of
education] and the immunity afforded by the GTCA does not apply.” P.A., 2020 WL 4740481, at

*8. Accordingly, Defendant could be liable for its actions under this provision, and the Motion
must be DENIED.
C. Count VI: Disability Discrimination in Violation of the Americans with Disabilities Act
(“ADA”) and Count VII: Violation of the Rehabiliation Act

Both the ADA and Section 504 of the Rehabilitation Act prohibit discrimination against
qualified individuals with disabilities. See 42 U.S.C. § 12132 (ADA) (“[N]o qualified individual
with a disability shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.”); 29 U.S.C. § 794(a) (Section 504) (“No otherwise qualified
individual with a disability in the United States ... shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance....”). The ADA permits
plaintiffs to seek money damages against public entities that have engaged in disability
discrimination, whereas Section 504 permits plaintiffs to seek money damages from entities that

receive federal funds. See Barnes v. Gorman, 536 U.S. 181, 184–96 (2002).
Courts “construe the ADA and Rehabilitation Act to impose similar requirements. Thus,
despite the different language these statutes employ, they require a plaintiff to demonstrate the
same elements to establish liability.” Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454,
461 (4th Cir. 2012). A plaintiff asserting a claim of disability discrimination under either Act
“must allege that (1) she has a disability, (2) she is otherwise qualified to receive the benefits of a
public service, program, or activity, and (3) she was excluded from participation in or denied the
benefits of such service, program, or activity, or otherwise discriminated against, on the basis of
her disability.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498
(4th Cir. 2005); Halpern, 669 F.3d at 461.

Defendant’s sole argument is that Plaintiffs’ claim fails where they simply recite legal
conclusions and do not sufficiently allege that Doe’s “particular medical ailments fit within the
statutory scheme that exists under the ADA and Rehab Act.” Def.’s Mem. at 17. Plaintiffs
contend that they have pleaded facts supporting Doe’s medical ailments, such as the facts that he
“has severe special needs requiring an aide,” “is a qualified individual with a disability,” that the
“disability substantially limits one or more major life activities,” and that he is nonverbal. Pls.’
Resp. at 20 (quoting Compl. ¶¶ 5, 34, 35, 40, 41, 46).7

7 Plaintiffs’ Renewed Response did not address these contentions but incorporated by
reference their initial response. The paragraphs quoted in the original Complaint survive in the
Amended Complaint as ¶¶ 5,47, 48, 53, 54, 59.
Given that examples of “major life activities” include “caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking… speaking, breathing, learning, reading,
concentrating, thinking, communicating….,” Plaintiffs’ assertion that John Doe is nonverbal and
has severe special needs is enough to allege that he is a qualified individual for ADA purposes.

29 C.F.R. § 1630.2(i)(i). Further, he was place in a special-needs classroom and allegedly
assaulted by a special-needs aide. This shows that the school recognized that he had a disability.
Given the direction to interpret “disability” broadly, the Court finds that Plaintiffs have
sufficiently alleged John Doe’s disability to survive a motion to dismiss. 42 U.S.C. §
12102(4)(A). Accordingly, the Motion as to these Counts is DENIED.
D. Punitive Damages

The last issue to address is Plaintiffs’ claim for punitive damages. West Virginia law
prohibits awards of punitive damages against political subdivisions. See W. Va. Code Ann. § 29-
12A-7. However, the limitation on punitive damages is not applicable to claims “based upon
alleged violations of the constitution or statutes of the United States[.]” Id. § 29-12A-18(e). Here,
Plaintiffs have plausibly alleged a violation under the United States Constitution and have filed
that claim pursuant to 42 U.S.C. § 1983. Accordingly, at this point, Plaintiffs’ claim for punitive
damages may stand and Defendant’s Motion to Dismiss as to them is DENIED.
IV. CONCLUSION
For the foregoing reasons, Defendant CCBOE’s Motion to Dismiss (ECF No. 49) is
GRANTED IN PART and DENIED IN PART. As to Counts I, II, V, VI, and VII the Motion is
DENIED. As to Counts IV, VIII, and IX, the Motion is GRANTED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.

ENTER: February 24, 2022

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10730227. Public record. Not legal advice.