Campbell v. Independent School District No. 33 of Creek County, Oklahoma

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

B.C., a minor child, by and through her )

mother and next friend, )

LEANNE CAMPBELL, )

)

Plaintiff, )

)

v. )

) Case No. 24-cv-00059-SH

INDEPENDENT SCHOOL DISTRICT )

NO. 33 OF CREEK COUNTY, )

OKLAHOMA a/k/a SAPULPA )

PUBLIC SCHOOLS; and JOHNNY )

BILBY, an individual, )

)

Defendants. )

OPINION AND ORDER

Before the Court is Defendant Johnny Bilby’s motion to dismiss.1 Plaintiff LeAnne

Campbell, as mother and next friend of B.C., a minor, alleges that B.C. was subject to

bullying and sexual harassment at her middle school due to her status as a member of the

LGBTQ+ community. As relevant to this motion, Plaintiff brings claims against Bilby in

his individual capacity under 42 U.S.C. § 1983, contending he violated B.C.’s substantive

due process and equal protection rights. The Court finds that both claims fail as pled.

Plaintiff fails to plead that Bilby or his subordinates engaged in affirmative conduct, as

required for the substantive due process claim. As for equal protection, the Court finds

that such a claim requires a showing that Bilby acted with the requisite state of mind—

here, purposeful discrimination. Plaintiff has failed to plead such intent. The Court will

allow Plaintiff to move to amend.

1 The parties have consented to the jurisdiction of a U.S. Magistrate Judge for all purposes

under 28 U.S.C. § 636(c)(1) and Fed. R. Civ. P. 73(a). (ECF No. 16 at 5.)

Factual Background

Taking the factual allegations in the second amended petition (ECF No. 5-18) as

true and viewing them in the light most favorable to the nonmoving party, Plaintiff alleges

as follows: B.C. was a student at Independent School District No. 33 of Creek County,

Oklahoma a/k/a Sapulpa Public Schools (“SPS”), and Johnny Bilby (“Bilby”) was

Assistant Superintendent of SPS. (See id. ¶¶ 2–3, 10.) In 2022, Bilby also served as

“Acting Principal” of Sapulpa Middle School (the “Middle School”). (Id. at 6 n.2.2)

B.C. is a minor child who identifies as a member of the LGBTQ+ community. (Id.

¶¶ 1, 11.) Beginning in January 2022, during her seventh-grade year at the Middle School,

B.C. was regularly bullied and sexually harassed by her classmates. (Id. ¶¶ 10, 24, 37.)

On January 26, 2022, a student poured applesauce on B.C.’s head while other

students called her homophobic slurs.3 (Id. ¶¶ 10, 12.) The next week, her headphones

were stolen and destroyed. (Id. ¶ 17.) B.C. reported both incidents to her mother, LeAnne

Campbell (“Campbell”). (Id. ¶¶ 16, 18.) Each time, Campbell called the school to make

an official report, but school personnel never returned her calls. (Id.) Despite occurring

in the presence of many school employees, no one investigated these incidents. (Id. ¶¶ 10,

17, 19.)

On February 2, 2022, students purposefully pulled off B.C.’s sweatshirt and bra

during gym class. (Id. ¶¶ 20, 24.) After this incident, Campbell and Bilby met to discuss

the continued bullying and harassment of B.C. (Id. ¶¶ 29–30.) The February 2022

meeting was “unhelpful.” (Id. ¶ 30.) Bilby did not investigate the bullying, interview

teacher or student witnesses, or issue any discipline. (Id.) Instead, his only resolution

2 References to page numbers refer to the ECF header.

3 The petition lists the various derogatory names and slurs used against B.C. (Id. ¶ 37.)

was to allow B.C. to finish the remainder of the school year remotely. (Id.)

The bullying and sexual harassment continued upon B.C.’s in-person return to

class that Fall. (Id. ¶ 31.) In August 2022, a male student used “extremely sexually

suggestive and offensive language” towards B.C. while they were both standing in the

lunch line in the presence of Middle School employees. (Id. ¶¶ 31–32.) On November 9,

2022, B.C. hid in a school restroom after two students threatened to “jump” her. (Id. ¶

35.) A school official escorted B.C. out of the restroom after Campbell called the school.

(Id. ¶ 36.)

Further, throughout Fall 2023, B.C. was repeatedly assaulted and harassed during

gym class. (Id. ¶ 40.) That October, she was injured while participating in a “human tug-

of-war” game and was purposefully tackled in a game of touch football. (Id. ¶¶ 41, 43–

44.) That November, students called B.C. slurs and attempted to hit her in the face during

dodgeball, even though students were instructed not to intentionally aim for others’

heads. (Id. ¶ 45–46.) Campbell again reported these incidents to Bilby, but again the

school took no action. (Id. ¶ 47.)

No students have ever been punished for their conduct towards B.C. (Id. ¶ 48.)

Procedural Background

Campbell filed the current operative petition on January 25, 2024. (ECF No. 5-18.)

As pertinent here, the petition asserts claims against SPS and Bilby under 42 U.S.C.

§ 1983 for violation of 5th and/or 14th Amendment.4 (Id. ¶¶ 77–97.) The petition first

outlines the claims against SPS, asserting that the school denied B.C. of her rights to due

process and equal protection under the law. (E.g., id. ¶¶ 82, 85.) The petition then alleges

4 The petition also asserts claims against SPS under Title IX, 20 U.S.C. §§ 1681–1689, and

the Oklahoma Governmental Tort Claims Act (“GTCA”), Okla. Stat. tit. 51, §§ 151–172.

(E.g., id. ¶¶ 49–92.)

that Bilby similarly caused violations of B.C.’s federally protected rights. (E.g., id. ¶¶ 95–

96.) The claims are brought against Bilby in his individual capacity. (Id. ¶ 3.) At first

glance, the claims appear primarily based on Bilby’s failure to train and supervise others.

(Id. ¶¶ 93–97.) In their briefing, however, the parties treat the petition as attempting to

assert claims for personal and supervisory liability.5 (ECF No. 14 at 14–15; ECF No. 22 at

7–15; ECF No. 23 at 6–10.)

Bilby moves to dismiss under Rule 12(b)(6), asserting that (1) Campbell has not

established a constitutional violation, much less one committed by him; (2) he is entitled

to qualified immunity; and (3) the claims against him are duplicative of the claims against

SPS.6 (ECF No. 14.) Although Campbell references equal protection in the petition and

explicitly argues it in her brief, Bilby largely ignores Campbell’s equal protection

arguments, only briefly attempting to distinguish one authority. (See ECF No. 22 at 7–

11; ECF No. 23 at 4.) Instead, Bilby focuses almost exclusively on the alleged due process

violation. (E.g., ECF No. 23 at 6–9.) The Court will address both equal protection and

due process.7

5 When a defendant is sued in his individual capacity, he may be subjected to personal

liability, supervisory liability, or both. Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir.

2011). Personal liability imposes liability on individual defendants who are personally

involved in alleged constitutional violations. Id. Supervisory liability imposes liability on

defendant-supervisors who create, promote, or carry out policies that deprive plaintiffs of

their constitutional rights. Id. at 1163–64.

6 Bilby additionally argues that any GTCA claims against him must be dismissed, as

Oklahoma law shields employees acting within the scope of their employment. (ECF No.

14 at 20 (citing Okla. Stat. tit. 51, § 163(C)).) Campbell is not asserting any GTCA claims

against Bilby, and the Court need not address this argument further.

7 The federal pleading rules “do not countenance dismissal of a complaint for imperfect

statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby,

574 U.S. 10, 11 (2014) (per curiam); see also A. Benjamin Spencer, 5A Fed. Prac. & Proc.

(Wright & Miller) § 1357 (4th ed.) (“the district court is under a duty to examine the

complaint to determine if the allegations provide for relief on any possible legal theory”).

Analysis

I. Standard of Review – Qualified Immunity & 12(b)(6)

Campbell brings her claims against Bilby under 42 U.S.C. § 1983, which states:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State . . . subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress . . . .

The doctrine of qualified immunity shields state actors “from damages actions unless

their conduct was unreasonable in light of clearly established law.” Gutierrez v. Cobos,

841 F.3d 895, 899 (10th Cir. 2016) (citation and internal quotation marks omitted).

When an individual defendant asserts qualified immunity, there is a presumption that he

is immune from suit. Sanchez v. Guzman, 105 F.4th 1285, 1292 (10th Cir. 2024). To

overcome this presumption, it is the plaintiff’s burden to show (1) the defendant’s conduct

violated a constitutional right, and (2) the right was clearly established at the time of the

alleged misconduct. Id. If this burden is not met, the defendant is entitled to qualified

immunity. Cummings v. Dean, 913 F.3d 1227, 1239 (10th Cir. 2019).

The Court applies “the same standard in evaluating dismissals in qualified

immunity cases as to dismissals generally.” Shero v. City of Grove, 510 F.3d 1196, 1200

(10th Cir. 2007). To survive a 12(b)(6) motion to dismiss, “a plaintiff must plead sufficient

factual allegations ‘to state a claim to relief that is plausible on its face.’” Brokers’ Choice

of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1104 (10th Cir. 2017) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is facially plausible ‘when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.’” Id. (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)). All such reasonable inferences are resolved in the plaintiff’s favor.

Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013). “Factual allegations must be

enough to raise a right to relief above the speculative level on the assumption that all the

allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at

555–56 (citations and footnotes omitted). A motion to dismiss is properly granted when

a complaint provides no “more than labels and conclusions” or a “formulaic recitation” of

the elements. Id. at 555.

Taken together, the Court considers whether Campbell “allege[d] sufficient facts

that show—when taken as true—[Bilby] plausibly violated [B.C.’s] constitutional rights,

which were clearly established at the time of the violation.” Schwartz v. Booker, 702 F.3d

573, 579 (10th Cir. 2012).

II. “Duplicative” Claims

As a preliminary matter, the Court rejects Bilby’s arguments that the claims against

him are “official capacity claims” that must be dismissed as duplicative. (ECF No. 14 at

17–19; ECF No. 23 at 5–6.)

In a § 1983 action, a state official may be sued in his official and/or individual

capacity. A suit against a defendant in his individual capacity “seek[s] to impose personal

liability upon a government official for actions taken under color of state law.” Kentucky

v. Graham, 473 U.S. 159, 165 (1985). Official-capacity suits “generally represent only

another way of pleading an action against an entity of which an officer is an agent.” Id.

(quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). Such claims may

be brought in the name of the officer, in his official capacity. See, e.g., Cox v. Glanz, 800

F.3d 1231, 1254 (10th Cir. 2015) (noting “a suit against Sheriff Glanz in his official capacity

as sheriff is the equivalent of a suit against Tulsa County” (cleaned up)). Or, if the entity

is already a defendant in the case, such claims may be dismissed as redundant. See

Bennett v. Johnson, No. 09-CV-612-TCK-PJC, 2010 WL 2465499, at *5 (N.D. Okla. June

11, 2010) (“Because the City is already a Defendant in this lawsuit, the ‘official capacity’

claims against [the officer] are redundant and may be dismissed.”).

Bilby sidesteps Plaintiff’s specific invocation of “individual capacity.” (ECF No.

5-18 ¶ 3.) Instead, he argues that, because “all actions taken by Defendant Bilby were in

his official capacity as Superintendent,” he cannot be held individually liable. (ECF No.

14 at 19.) The Supreme Court explicitly rejected this argument over 30 years ago. See

Hafer v. Melo, 502 U.S. 21, 27 (1991) (rejecting argument that “state officials may not be

held liable in their personal capacity for actions they take in their official capacity”). As

explained in Hafer, § 1983 provides a remedy for individuals who have been deprived of

their constitutional rights by state officials acting under color of state law. Id. at 27–28.

This means Bilby can be held individually liable for his actions precisely because of his

authority as Assistant Superintendent and Acting Principal. See id. at 27–28 (“The

requirement of action under color of state law means that Hafer may be liable for

discharging respondents precisely because of her authority as auditor general. We cannot

accept the novel proposition that this same official authority insulated Hafer from suit.”).

Campbell’s individual capacity claims against Bilby are cognizable and are not duplicative

of her claims against SPS.

III. Due Process: Danger Creation Theory

Campbell claims Bilby personally violated B.C.’s due process rights by failing to

investigate known incidents of bullying and sexual harassment. (ECF No. 5-18 ¶ 30; ECF

No. 22 at 11–12.)

The Due Process Clause ensures that “[n]o State shall . . . deprive any person of

life, liberty, or property, without due process of law . . . .” U.S. Const. amend. XIV, § 1.

Generally, state actors are only liable under § 1983 for their own constitutionally violative

acts and not for the acts of third parties. Robbins v. Oklahoma, 519 F.3d 1242, 1251 (10th

Cir. 2008). There are, however, two exceptions to this rule—the special relationship

doctrine and the danger creation theory. Uhlrig v. Harder, 64 F.3d 567, 571–72 (10th

Cir. 1995). Plaintiff asserts the danger creation theory is applicable here. (ECF No. 5-18

¶ 94; ECF No. 22 at 11.)

Under the danger creation theory, state officials may be held liable for third-party

acts “where those officials ‘created the danger’ that caused the harm.” Seamons v. Snow,

84 F.3d 1226, 1236 (10th Cir 1996). To invoke this exception, a plaintiff must first show

as a threshold matter (1) private violence and (2) affirmative state conduct that places the

plaintiff in danger. Hernandez v. Ridley, 734 F.3d 1254, 1259 (10th Cir. 2013); see also

Moore v. Guthrie, 438 F.3d 1036, 1042 (10th Cir. 2006) (explaining this “narrow

exception” only applies when a state actor “affirmatively acts to create, or increases a

plaintiff’s vulnerability to, danger from private violence” (quoting Currier v. Doran, 242

F.3d 905, 923 (10th Cir. 2001))). If these preconditions are met, a plaintiff must then

allege the following:

(1) defendant created the danger or increased plaintiff’s vulnerability to the

danger in some way; (2) plaintiff was a member of a limited and specifically

definable group; (3) defendant’s conduct put plaintiff at substantial risk of

serious, immediate, and proximate harm; (4) the risk was obvious or

known; (5) defendant[] acted recklessly in conscious disregard of that risk;

and (6) such conduct, when viewed in total, is conscience shocking.

Hernandez, 734 F.3d at 1259 (cleaned up).

Bilby contends Campbell has not alleged facts establishing the “affirmative con-

duct” precondition and the “conscience shocking” element of her claim. (ECF No. 14 at

13; ECF No. 23 at 7–9.) The Court agrees that Campbell has not alleged any affirmative

conduct on behalf of Bilby. It does not address whether Bilby’s actions shock the

conscience.

The state-created danger theory requires Campbell to allege facts demonstrating

Bilby’s affirmative conduct created or increased the danger to B.C. See Ruiz v. McDonnell,

299 F.3d 1173, 1183 (10th Cir. 2002). Affirmative conduct generally involves “an imme-

diate threat of harm, which by its nature has a limited range and duration” that is

“directed at a discrete plaintiff rather than the public at large.” Id. Mere negligence or

inaction does not satisfy the affirmative conduct requirement. Estate of B.I.C. v. Gillen,

710 F.3d 1168, 1173 (10th Cir. 2013) (“Our precedents consistently conclude that mere

negligence or inaction is not enough.”).

Here, Campbell relies on inaction—i.e., the failure to investigate and issue

discipline—to support a substantive due process violation, but this is insufficient under

Tenth Circuit precedent. See, e.g., Ruiz, 299 F.3d at 1183 (finding social worker’s failure

to conduct background check on childcare facility that later caused an infant’s death did

not satisfy affirmative conduct precondition); see also Jane Doe No. 2. v. Oologah-Talala

Indep. Sch. Dist. No. 4, No. 21-CV-240-JDR-SH, 2024 WL 1357612, at *2 (N.D. Okla. Mar.

29, 2024) (finding school resource officer’s failure to report or conduct investigation of

alleged sexual harassment did not satisfy affirmative conduct precondition). Campbell

has not alleged facts plausibly showing that Bilby’s affirmative conduct increased or

created the danger to B.C.

IV. Equal Protection: Student-on-Student Sexual Harassment

Campbell next claims Bilby violated B.C.’s equal protection rights through his fail-

ure to act when informed that SPS students were bullying and sexually harassing B.C.

based on her LGBTQ+ status. (ECF No. 22 at 7–10.) Campbell bases her claim on the

Tenth Circuit’s decision in Murrell v. School District No. 1, Denver, 186 F.3d 1238 (10th

Cir. 1999), which recognized that a school administrator’s deliberate indifference to

student-on-student sexual harassment can support equal protection liability. Before de-

termining if Campbell has alleged an equal protection violation, the Court first addresses

the supervisory nature of a claim brought under Murrell and the state of such claims

following the Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009).

A. The Murrell Claim

The Equal Protection Clause guarantees that “[n]o State shall . . . deny to any

person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV,

§ 1. In Murrell, the Tenth Circuit found that a state official could be liable under § 1983

for violating the Equal Protection Clause “upon a showing of deliberate indifference to

known sexual harassment.” 186 F.3d at 1250; see also Schaefer v. Las Cruces Pub. Sch.

Dist., 716 F. Supp. 2d 1052, 1066 (D.N.M. 2010) (noting sexual harassment by a third

party can cause a supervisor to be liable “not for the harasser’s conduct, per se, but for

failure to take adequate steps to stop it”). Deliberate indifference is something more than

“mere negligence.” Murrell, 186 F.3d at 1250. To state a claim of deliberate indifference

in this context, the plaintiff must allege that the state actor (1) knew of the harassment

and (2) acquiesced in the harassment by refusing to reasonably respond to it. Id.

While Murrell does not speak in terms of personal or supervisory liability, it relied

heavily on supervisory liability case law in articulating this standard. Id. (citing

Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir. 1992); Noland v. McAdoo,

39 F.3d 269, 271 (10th Cir. 1994); and Jojola v. Chavez, 55 F.3d 488, 490 (10th Cir.

1995)). All the cited authorities had their origins in the Tenth Circuit’s analysis in

Woodward, where it stated, “We are persuaded that the proper articulation of the test for

supervisory liability under section 1983 is that set forth by the Third Circuit . . . , where it

was stated that supervisor liability requires ‘allegations of personal direction or of actual

knowledge and acquiescence.’” 977 F.2d at 1400; see also Noland, 39 F.3d at 271 (quoting

Woodward as stating, “if a supervisor or employer participates in or consciously acqui-

esces in sexual harassment by an outside third party or by co-workers, . . . the supervisor

or employer may[, nevertheless,] be liable”); Jojola, 55 F.3d at 490 (citing Woodward for

the proposition that “plaintiffs must allege, and prove, defendants actually knew of and

acquiesced in [the employee’s] behavior”).

Other courts have similarly recognized the “compelling parallels between [a super-

visory liability] claim and an equal protection claim premised on a school administrator’s

deliberate indifference to known student-on-student sexual harassment.” Feminist

Majority Found. v. Hurley, 911 F.3d 674, 702 (4th Cir. 2018) (citing Murrell and noting

“[w]hen confronting a school administrator’s deliberate indifference to student-on-

student sexual harassment, our sister circuits have relied on the principle that a

government official can be liable for a subordinate’s sexually harassing behavior”).

The question then becomes how a Murrell-type claim can be shown after Iqbal’s

rejection of longstanding supervisory liability cases.

B. Iqbal’s Rejection of Mere Knowledge and Acquiescence

In Iqbal, a Muslim Pakistani citizen was arrested, detained, and held in extremely

restrictive conditions in response to a post-9/11 Department of Justice policy. 556 U.S.

at 667–68. He brought a Bivens action based on a theory of supervisory liability against

Attorney General John Ashcroft and FBI Director Robert Mueller. Id. at 669. Iqbal

alleged Ashcroft and Mueller “knew of, condoned, and willfully and maliciously agreed to

subject [him] to harsh conditions of confinement as a matter of policy, solely on account

of his religion, race, and/or national origin.” Id. (cleaned up).

The Supreme Court noted that, “[w]here the claim is invidious discrimination in

contravention of the First and Fifth Amendments, our decisions make clear that the plain-

tiff must plead and prove that the defendant acted with discriminatory purpose.” Id. at

676. Iqbal disagreed—arguing “that, under a theory of ‘supervisory liability,’ petitioners

can be liable for ‘knowledge and acquiescence in their subordinates’ use of discriminatory

criteria to make classification decisions among detainees.’” Id. at 677. The Supreme

Court rejected this argument as inconsistent with the bar on vicarious liability. Id.; see

also id. at 676 (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a

plaintiff must plead that each Government-official defendant, through the official’s own

individual actions, has violated the Constitution.” (emphasis added)).

Indeed, the Supreme Court found “the term ‘supervisory liability’ is a misnomer”

and that it was “purpose” rather than “knowledge” that was required. Id. at 677.

Following Iqbal, the Tenth Circuit has concluded that a plaintiff cannot plausibly allege a

§ 1983 claim against a defendant-supervisor by showing he “behaved knowingly or with

deliberate indifference that a constitutional violation would occur at the hands of his

subordinates, unless that is the same state of mind required for the constitutional

deprivation he alleges.” Dodds v. Richardson, 614 F.3d 1185, 1204 (10th Cir. 2010)

(citation and internal quotation marks omitted). Given Murrell’s dependency on

supervisory liability case law in establishing the standard for student-on-student sexual

harassment, the reasoning of Iqbal and Dodds applies equally here.

C. The Murrell Claim Post-Iqbal

The state of mind required to establish an equal protection violation is purposeful

discrimination. Bird v. W. Valley City, 832 F.3d 1188, 1208 (10th Cir. 2016) (using the

term intentional, but citing cases using the term purposeful). Purposeful discrimination

requires more than “intent as volition” or “intent as awareness of consequences”; instead,

it requires “a course of action because of, not merely in spite of, the action’s adverse effects

upon an identifiable group.” Iqbal, 556 U.S. at 676–77 (cleaned up); see also T.E. v.

Grindle, 599 F.3d 583, 589 (7th Cir. 2010) (“the Equal Protection Clause does not require

that the state actor be motivated solely by the plaintiff's membership in a protected

class”).

To state a Murrell-type claim for student-on-student sexual harassment post-

Iqbal, a plaintiff must allege (1) she was subjected to discriminatory peer harassment;

(2) the school administrator responded to that harassment with deliberate indifference—

that is, the administrator knew about the harassment and acquiesced in that conduct by

refusing to reasonably respond to it; and (3) the administrator’s deliberate indifference

was motivated by a discriminatory intent.8 Feminist Majority, 911 F.3d at 702–03.

8 The Court recognizes that other courts within the Tenth Circuit, including in this district,

have not added this third element—usually relying on Murrell without any reference to

the effect of Iqbal and Dodds, or by assuming that the requisite state of mind is deliberate

indifference. See, e.g., Doe v. Roaring Fork Sch. Dist., 510 F. Supp. 3d 971, 977 (D. Colo.

2020) (effect of Iqbal and Dodds not raised); R.C. by & through Culver v. Indep. Sch.

Dist. No. 2, No. 23-CV-478-JFJ, 2024 WL 3570014, at *3 (N.D. Okla. July 29, 2024)

(same); Lameda ex rel. S.L. v. Indep. Sch. Dist. No. 29, No. CIV-21-119, 2021 WL

4302773, at *2 (W.D. Okla. Sept. 21, 2021) (same); T.Y. v. Shawnee Mission Sch. Dist.

USD 512, No. 17-2589, 2018 WL 2722501, at *12 (D. Kan. June 6, 2018) (same); Doe v.

Taos Mun. Schs., No. 20-CV-01041, 2024 WL 4264507, at *12 (D.N.M. Sept. 23, 2024)

(citing Dodds but finding, “the requisite state of mind for a sexual harassment case is

deliberate indifference”). But see Armenta ex rel. H.A. v. Indep. Sch. Dist. No. 5, No. CIV-

22-00659, 2024 WL 3089658, at *3 n.4 (W.D. Okla. June 21, 2024) (“Before Iqbal,

deliberate indifference would have been the appropriate standard.”).

D. Campbell Has Failed to Plead that Bilby Acted with the

Requisite State of Mind

Campbell meets part, but not all, of her burden of pleading an equal protection

claim. Campbell has pled that Bilby was deliberately indifferent to known sexual

harassment. She has alleged that (1) students regularly called B.C. homophobic slurs,

physically assaulted her, and, on one occasion, purposefully pulled off her sweatshirt and

bra (ECF No. 5-18 ¶¶ 12, 23–24, 37, 40); (2) Bilby was aware of this harassment (see id.

¶¶ 29–30, 47); and (3) Bilby did not investigate these acts, interview any witnesses, or

issue any discipline (id. ¶¶ 30, 61). Further, Bilby does not dispute that B.C. suffered

sexual harassment. (ECF No. 23 at 2 (stating that Plaintiff “details the allegations that

her peers were harassing” B.C.); id. at 9 (noting Plaintiff’s supervisory claims are

premised on deliberate indifference to “sexual harassment against” B.C.).)

However, Campbell has not pled that Bilby purposefully discriminated against B.C.

Because Campbell has not alleged Bilby acted with the state of mind necessary to violate

B.C.’s equal protection rights, Campbell’s claim is dismissed without prejudice.9 See

Armenta, 2024 WL 3089658, at *2–3 & n.4 (dismissing § 1983 equal protection claim for

student-on-student harassment, because complaint failed to allege superintendent acted

with purposeful discrimination).

9 To be sure, Plaintiff may plead the requisite purposeful discriminatory intent by

reference to circumstantial evidence, including the official’s efforts to downplay

harassment and his inaction in attempting to stop known harassment. See Feminist

Majority, 911 F.3d at 703; Grindle, 599 F.3d at 589. Here, the petition alleges that faculty

members witnessed and allowed other student-on-student homophobic harassment to

continue with impunity. (ECF No. 5-18 ¶ 39.) But, it is unclear whether the petition is

alleging that Bilby, himself, failed to act in the face of known sexual harassment based on

B.C.’s LGBTQ+ status or otherwise acted in a way that indicated he had the requisite

discriminatory intent. Indeed, it is unclear whether Plaintiff is even attempting to plead

that Bilby had such intent, which is unsurprising given other courts’ and the parties’

apparent agreement that only deliberate indifference was required by law. This is

something that Plaintiff may be able to clarify by amendment to her pleading.

V. Failure to Train and Supervise SPS Teachers

Campbell last claims Bilby violated B.C.’s constitutionally protected rights through

his “failure to train, supervise, and discipline his subordinates.” (ECF No. 5-18 ¶ 95.) This

claim fails for the same reasons as the underlying due process and equal protection

claims.

A. Equal Protection

To the extent the claim of failure to train and supervise is based on an equal

protection violation, Campbell has not alleged Bilby acted with the necessary state of

mind—i.e., purposeful discrimination. (See Section IV(D), supra.) Thus, Campbell has

not plausibly alleged such a claim. Cf., e.g., Galvan v. Bd. of Cnty. Commissioners, No.

CV 14-619, 2016 WL 10539052, at *4 (D.N.M. May 6, 2016) (dismissing equal protection

supervisory liability claim for failure to show purposeful discrimination).

B. Due Process

To the extent the claim of failure to train and supervise is based on a due process

violation, Campbell has alleged that Bilby acted with the necessary state of mind—i.e.,

deliberate indifference. See Schneider v. City of Grand Junction Police Dep’t, 717 F.3d

760, 769 (10th Cir. 2013) (assuming without deciding that deliberate indifference is the

applicable state of mind). However, this claim must fail for another reason: Campbell

has not alleged an underlying due process violation committed by Bilby’s subordinates.

In order to bring a § 1983 supervisory liability claim based on subordinate conduct,

there must be an underlying constitutional violation committed by the subordinate.

Sherman v. Klenke, 653 F. App’x 580, 589 (10th Cir. 2016) (“for a claim of supervisory

liability to succeed, the plaintiff must establish a subordinate’s underlying constitutional

violation”) (unpublished).10 Here, Campbell does not allege that Bilby’s subordinates

violated B.C.’s due process rights. Campbell alleges that Middle School teachers regularly

witnessed the bullying and harassment B.C. was experiencing but failed to fill out official

incident reports, discipline offending students, or investigate the matters further. (See

e.g., ECF No. 5-18 ¶¶ 15, 25, 34, 36, 39–40.) All of Campbell’s allegations relate to

inaction, which does not satisfy the affirmative conduct precondition necessary to

establish due process liability. (See Section III, supra.) Because Campbell has not

plausibly alleged an underlying constitutional due process violation committed by one of

Bilby’s subordinates, Campbell cannot assert a violation of her rights by failure to train

and supervise that subordinate. See Hurst v. Madera, No. 16-cv-01914, 2018 WL 684769,

at *9–10 (D. Colo. Feb. 2, 2018) (dismissing failure to supervise claim because plaintiff

did not sufficiently allege a constitutional violation committed by defendant-supervisor’s

subordinate); BPS v. Board of Trustees for Colo. Sch. for the Deaf and Blind, No. 12-cv-

02664, 2014 WL 6990312, at *10–13 (D. Colo. Apr. 28, 2014) (same, but with failure to

train claim).

Conclusion

The Court recognizes that its ruling today on the requirements for an equal

protection claim are contrary to the parties’ expectations when pleading and briefing their

arguments. As Plaintiff does not seek leave to amend in her response brief, the Court has

not addressed amendment in this order. The Court does not consider such a request to

be affected by the original scheduling order, which was issued well before the parties had

10 Unpublished decisions are not precedential, but they may be cited for their persuasive

value. 10th Cir. R. 32.1(A).

notice of the Court’s position on this issue. Any motion for leave to amend shall be filed

within 14 days of this order.

IT IS THEREFORE ORDERED that Defendant Johnny Bilby’s Motion to Dismiss

(ECF No. 14) is GRANTED. Plaintiffs claims against Defendant Johnny Bilby are

DISMISSED WITHOUT PREJUDICE.

ORDERED this 19th day of November, 2024.

>,

Vc MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT

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