Doe v. Campbell Drive K-8 Center

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-23741-CIV-ALTONAGA/Reid

MARY DOE, AS PARENT

GUARDIAN OF JANE DOE,

Plaintiff,

v.

CAMPBELL DRIVE K-8 CENTER, et al.,

Defendants.

______________________________________/

ORDER

THIS CAUSE came before the Court upon Defendants, Campbell Drive K-8 Center

(“Campbell K-8”) and the School Board of Miami-Dade County’s (“School Board[’s]”) Motion

to Dismiss Plaintiff’s Complaint and Motion to Strike [ECF No. 20], filed on November 1, 2024.

Plaintiff, Mary Doe, as Parent Guardian of Jane Doe, filed a Response [ECF No. 22], to which

Defendants filed a Reply [ECF No. 29]. The Court has carefully considered the record, the parties’

written submissions, and applicable law. For the following reasons, the Motion is granted in part

and denied in part.

I. BACKGROUND

This case arises from a series of alleged sexual assaults that occurred at Campbell K-8, a

public school maintained and operated by the School Board. (See Am. Compl. [ECF No. 5] ¶¶ 3–

5, 16). Plaintiff alleges that Joseph Tolliver, a physical education teacher at Campbell K-8,

sexually harassed, assaulted, and raped minor student Jane Doe while on school property. (See id.

¶¶ 9–11, 16). The abuse allegedly began in January 2023, when Jane Doe was in 7th grade, and

continued through the calendar year, into Jane Doe’s 8th grade school year. (See id. ¶ 16).

According to Plaintiff, Tolliver — then in his late thirties — preyed on Jane Doe in the

school detention classroom, where only Jane Doe and Tolliver were present, with no supervision

or security (see id. ¶¶ 11–12); and Tolliver raped Jane Doe in “empty offices, [the] campus parking

lot, and janitor closets[,]” (id. ¶ 17 (alterations added)). Tolliver led Jane Doe to odd, secluded

locations throughout the school, walking with her in view of security cameras and with the

awareness of security personnel and campus staff. (See id. ¶¶ 18–19). Jane Doe reported these

rapes and sexual assaults to Defendants. (See id. ¶ 21).

Plaintiff also details a string of sexual assaults at Campbell K-8 predating Tolliver’s

harassment and assault of Jane Doe, including multiple instances where Tolliver was named as the

assailant. (See id. ¶¶ 10, 13, 19–20). For example, between 2012 and 2020, Campbell K-8

Environmental Safety Incident Reports document 12 instances of sexual harassment involving

unidentified victims and aggressors.1 (See id. ¶ 13). More recently, between 2021 and 2023, at

least three female middle school students accused Tolliver of sexual assault; alleging

“inappropriate sexual comments,” “inappropriate physical contact[,]” “sexual intercourse,” and

the showing or sending of “sexually explicit photographs.” (Id. ¶ 10 (alteration added)). The

victims reported each of these incidents to Defendants, including to the principals of the school.

(See id. ¶ 21).

Despite these reports of sexual assaults, Defendants not only retained Tolliver as an

employee without notifying students or parents, but also continued to grant him unsupervised

access to students. (See id. ¶¶ 11–12, 15–20). Defendants maintained “relaxed policies and

procedures” and “inadequately trained and prepared their staff” regarding how to respond to

reported incidents of sexual assaults. (Id. ¶ 14).

1 The Amended Complaint does not provide additional details of these reported instances of sexual

harassment, including whether they involved minor students. (See Am. Compl. ¶ 13).

On September 30, 2024, Plaintiff initiated this action against Defendants. (See generally

Compl. [ECF No. 1]). She brings three claims: (1) a Title IX claim of deliberate indifference to

sexual harassment (see Am. Compl. ¶¶ 23–34); (2) a 42 U.S.C. section 1983 claim of failure to

train employees, leading to the violation of Jane Doe’s right to equal protection of the law (see id.

¶¶ 40–48); and (3) a state-law negligence claim (see id. ¶¶ 35–39). Plaintiff seeks compensatory

damages, attorney’s fees and costs, and “other relief allowed under the law[.]” (Id. ¶¶ 34, 39, 48).

In response, Defendants filed the present Motion under Federal Rules of Civil Procedure 12(b)(1)

and 12(b)(6), asking the Court to dismiss Campbell K-8 as a named party and Plaintiff’s Amended

Complaint in its entirety. (See generally Mot.).

II. LEGAL STANDARDS

Fed. R. Civ. P. 12(b)(1). “Federal courts are courts of limited jurisdiction.” Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). It is presumed that a federal court lacks

jurisdiction in a case until the party asserting a claim demonstrates the court has jurisdiction over

the subject matter. See id. “If the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).

“Facial attacks” to a complaint, such as the one raised here to the Title IX claim, “require

the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter

jurisdiction, and the allegations in [her] complaint are taken as true for the purposes of the motion.”

Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (alteration added; alterations adopted;

quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). “On a facial

attack, a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6)

motion — the court must consider the allegations of the complaint to be true.” Id. (citation

omitted).

Fed. R. Civ. P. 12(b)(6). A motion to dismiss for failure to state a claim serves to test the

sufficiency of the complaint; it does not decide the merits of the case. See Milburn v. United

States, 734 F.2d 762, 765 (11th Cir. 1984). “To survive a motion to dismiss [under Rule 12(b)(6)],

a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that

is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration added; quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A pleading withstands a motion to dismiss

if it alleges “factual content that allows the court to draw the reasonable inference that the

defendant[s] [are] liable for the misconduct alleged.” Id. (alterations added; citing Twombly, 550

U.S. at 556).

This pleading standard “does not require ‘detailed factual allegations,’ but it demands more

than an unadorned, the-defendant[s]-unlawfully-harmed-me accusation.” Id. (quoting Twombly,

550 U.S. at 555 (alteration added; citation omitted)). “In other words, a plaintiff must provide the

grounds for his entitlement to relief but needn’t include detailed factual allegations.” Soho Ocean

Resort TRS, LLC v. Rutois, No. 21-cv-11392, 2023 WL 242350, at *2 (11th Cir. Jan. 18, 2023)

(citing Twombly, 550 U.S. at 555). When considering a motion to dismiss, a court must construe

the complaint in the light most favorable to the plaintiff and take its factual allegations as true. See

Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (citation

omitted).

III. DISCUSSION

Defendants ask the Court to dismiss Campbell K-8 as an improper party and to dismiss all

claims of the Amended Complaint. (See generally Mot.; Reply). Specifically, Defendants argue:

(1) the Title IX claim should be dismissed for lack of subject matter jurisdiction and for failure to

state a claim for relief (see Mot. 6–13);2 (2) the section 1983 claim should be dismissed for failure

to state a claim (see Mot. 13–15); and (3) the remaining state-law negligence claim should be

dismissed for failure to state a claim and failure to sufficiently plead satisfaction of the pre-suit

requirements of section 768.28(6), Florida Statutes (see Mot. 15–16). The Court addresses each

argument in turn.

Campbell K-8. Defendants first argue Campbell K-8 should be dismissed as a party

because the School Board is the proper defendant under Florida law. (See Mot. 6). Plaintiff asserts

that Campbell K-8 should remain a defendant because “specific failures” at the school level

“contributed to the alleged harm,” and “the policy rationale underlying Title IX and Section 1983”

encourages school accountability. (Resp. 4). Defendants have the better argument.

Both the School Board and Campbell K-8, as parts of the public school system in the state

of Florida, are entities established by the Florida Constitution. See Art. IX, § 4(a), Fla. Const.

Florida law provides that “[t]he governing body of each school district shall be a district school

board[,]” and “[e]ach district school board is constituted a body corporate[.]” Fla. Stat. § 1001.40

(alterations added). District school boards are empowered to “operate, control, and supervise all

free public schools in their respective districts[.]” Id. § 1001.32(2) (emphasis and alteration

added). Further, Florida law provides that plaintiffs should bring lawsuits against the school board,

not the school itself. See id. § 1001.41(4). The school board is the proper entity to “[c]ontract,

sue, and be sued” as the “contracting agent for the district school system.” Id. (alteration and

emphasis added).

The School Board is also, logically, the proper defendant because Plaintiff brings claims

stemming from school policies (see generally Am. Compl.), and Florida grants school boards

2 The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers

of all court filings.

“final policymaking authority” for the school district, Whittaker v. St. Lucie Cnty. Sch. Bd., No.

10-14172-Civ, 2011 WL 3424564, at *5 (S.D. Fla. Aug. 5, 2011) (quoting K.M. v. Sch. Bd. of Lee

Cnty. Fla., 150 F. App’x 953, 957 (11th Cir. 2005) (citations omitted)). In sum, the School Board,

rather than Campbell K-8, is the proper entity to answer Plaintiff’s claims. Cf. Lee v. Pierre, No.

19-cv-81631, 2020 WL 13847521, at *3–4 (S.D. Fla. Jan. 28, 2020) (holding that under Florida

law a school board is not legally distinct from the school district).

Title IX Claim. The School Board’s3 challenge to Plaintiff’s Title IX claim is two pronged:

it argues Plaintiff both inadequately alleges subject matter jurisdiction under Rule 12(b)(1) (see

Mot. 12) and fails to state a claim for relief under Rule 12(b)(6) (see id. 6–12).

Rule 12(b)(1). The School Board asserts that the Court does not have jurisdiction to hear

the Title IX claim following the Supreme Court’s decision in Cummings v. Premier Rehab Keller,

P.L.L.C., 596 U.S. 212 (2022). (See Mot. 12–13). Plaintiff requests damages related to her Title

IX claim for “past and future pain and suffering, mental anguish, and past and future medical and

therapeutic care.” (Id. 12 (quoting Am. Compl. ¶ 34)). Following the holding in Cummings, which

effectively bars compensatory damages for emotional distress in Spending Clause statutes like

Title IX, see 596 U.S. at 218, 222, the School Board argues that Plaintiff’s emotional damages

request leaves her without standing for the Court to adjudicate her case (see Mot. 12).

The Eleventh Circuit has held — even in the wake of Cummings — that “[r]equesting an

improper remedy is not fatal to a claim. A complaint is sufficient if it alleges facts that establish

that the plaintiff is entitled to any relief that the court can grant.” A.W. v. Coweta Cnty. Sch. Dist.,

110 F.4th 1309, 1315 (11th Cir. 2024) (emphasis and alteration added; citation omitted). The

3 Because Campbell K-8 is dismissed, the Court references “Defendant” in the singular for the remainder

of this Order, although both Campbell K-8 and the School Board raise the remaining issues.

Supreme Court has previously recognized the availability of damages for Title IX claims resulting

from intentional teacher-on-student sexual harassment, which Cummings did not disturb. See

Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 76 (1992). Moreover, in addition to the

damages Defendant identifies in its Motion, Plaintiff requests “attorneys’ fees and costs” and

“other relief allowed under the law” as Title IX damages. (Am. Compl. ¶ 34). Thus, this argument

is unavailing.

Rule 12(b)(6). Next, Defendant argues Plaintiff fails to sufficiently state a Title IX claim.

(See Mot. 6–12). Under Title IX, “[n]o person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be subjected to discrimination under

any education program or activity receiving Federal financial assistance[.]” 20 U.S.C. § 1681(a)

(alterations added). To state a claim for teacher-on-student sexual harassment under Title IX, a

plaintiff must allege that: (1) “a school official with authority to address the alleged discrimination

and to institute corrective measures” (2) had “actual knowledge” of the discrimination and (3) was

“deliberately indifferent” to the discrimination.4 Doe v. Sch. Bd. of Palm Beach Cnty., 15-cv-

80175, 2015 WL 4698462, at *3 (S.D. Fla. June 2, 2015) (citations omitted).

The School Board argues Plaintiff fails to sufficiently allege all three elements. First,

Defendant asserts the Amended Complaint fails to allege that the “appropriate person” had notice

4 Curiously, Defendant and Plaintiff address a fourth element they seem to agree Plaintiff is required to

plead to sufficiently state a Title IX claim: that the discrimination was “so severe, pervasive, and objectively

offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” (Mot. 7

(quoting Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1293 (11th Cir. 2007); additional

citation omitted); see also Resp. 7–8 (citation omitted)). This element is not required to allege teacher-on-

student sexual harassment under Title IX; rather, it applies exclusively to student-on-student sexual

harassment claims, which the instant claim is not. See Davis v. Monroe Cnty Bd. of Educ., 526 U.S. 629,

650–53 (1999) (indicating the application of a more rigorous standard for student-on-student Title IX

claims); see also Sauls v. Pierce Cnty. Sch. Dist., 399 F.3d 1279, 1284 (11th Cir. 2005) (explaining the

Supreme Court’s heightened standard, requiring severity of harm, only applies to student-on-student sexual

harassment claims under Title IX).

of the sexual harassment. (Mot. 7). Plaintiff points to her allegations showing the School Board

“had actual knowledge of prior and repeated instances of [Tolliver’s] inappropriate conduct,” as

well as “knowledge of specific risks posed by leaving him unsupervised with students.” (Resp. 5

(alteration added)). The Amended Complaint details at least three separate incidents of sexual

assaults, harassment, and rapes by Tolliver between 2021 and 2023. (See Am. Compl. ¶ 10; see

also Resp. 5). Plaintiff further alleges the victims reported every incident to Defendant. (See Am.

Compl. ¶ 21).

As a result of these reports, “every principal . . . was put on notice of the [past] allegations.”

(Id. (alteration added)). As Defendant concedes, principals are generally considered proper actors

to receive notice in Title IX suits, since they likely hold authority to issue corrective measures.

(See Mot. 7); see also Sch. Bd. of Palm Beach Cnty., 2015 WL 4698462, at * 6 (finding a principal

to be an appropriate actor for purposes of Title IX notice). Read in the light most favorable to

Plaintiff, and taking her allegations as true, then, responsible actors at Campbell K-8 had actual

knowledge of the rapes and sexual assaults committed by Tolliver prior to the victimization of

Jane Doe. (See id.); see also Brooks, 116 F.3d at 1369 (holding that courts must construe the

complaint in the light most favorable to the plaintiff and take its factual allegations as true).

To avoid this conclusion, the School Board simultaneously acknowledges, yet tries to

negate, Plaintiff’s allegations that the victims reported all incidents of rapes and sexual assaults to

Defendant. (See Am. Compl. ¶ 21; see also Mot. 4). Defendant dismissively characterizes

Plaintiff’s allegation as a “catch-all phrase that everything alleged was reported by the victims to

Campbell and the School Board[.]” (Mot. 4 (alteration added)).5 Defendant appears to believe

5 Defendant states that Plaintiff may not merely list “weird and inappropriate” conduct reported to a

decisionmaker to sufficiently allege notice. (Mot. 9). Certainly, Plaintiff pleads more than simply “weird

and inappropriate” conduct; she alleges that school principals knew of the rapes and sexual assaults of

multiple minor victims by a school authority figure.

Rule 12(b)(6) requires more information from Plaintiff, noting the Amended Complaint lacks

“actual incidents, dates, accusers[,]” and the names of the people who received such reports. (Id.

(alteration added))

But “detailed factual allegations are not required” to state a plausible claim under Rule

12(b)(6). (Mot. 5 (quotation marks omitted; citing Twombly, 550 U.S. at 555)). Plaintiff alleges

that Tolliver’s victims reported the incidents that occurred between 2021 and 2023, and therefore

put the principals of the school at the time of the rapes and sexual assaults on notice. (See Am.

Compl. ¶¶ 10, 21). Further, to the extent Defendant requires additional information regarding the

reports, “[a]llegations made ‘upon information and belief’ at this early stage are permissible

because the facts alleged are peculiarly within the possession and control of the defendant[.]” Joe

Hand Promotions, Inc. v. Goldshtein, No. 18-60522-Civ, 2018 WL 7080029, at *3 (S.D. Fla. June

18, 2018) (alterations added; quotations omitted; quoting Estate of Faull v. McAfee, No. 13-cv-

1746, 2017 WL 117312, at *2 (M.D. Fla. Jan. 12, 2017) (citation omitted)); (see also Am. Compl.

¶¶ 21, 30 (pleading the reports to principals on information and belief)). Here, Defendant is in the

best position to know the reports’ contents. Plaintiff’s statement regarding the reports to

appropriate actors is sufficient at the motion-to-dismiss stage.

And while Defendant repeatedly argues the Amended Complaint lacks allegations that

Defendant knew of Tolliver’s behavior toward Jane Doe (see Mot. 7–9), the Eleventh Circuit does

not “require notice of the prior harassment of the Title IX plaintiff herself[,]” Doe v. Sch. Bd. of

Broward Cnty., 604 F.3d 1248, 1257 (11th Cir. 2010) (alteration added; emphasis in original

citations omitted). Naturally, the undersigned declines to do so. See In re Rodriguez, No. 9-20863-

Civ, 2015 WL 9697324, at *9 (S.D. Fla. Dec. 9, 2015) (stating the Court “is bound by Eleventh

Circuit precedent”). As such, Plaintiff’s allegations concerning the first two elements of her Title

IX claim are sufficient.

Defendant next argues that Plaintiff fails to allege facts that speak to its supposed deliberate

indifference. (See Mot. 10). Yet, the Eleventh Circuit has stated, regarding deliberate indifference

in a Title IX suit, “where a school district has knowledge that its remedial action is inadequate and

ineffective, it is required to take reasonable action in light of those circumstances to eliminate the

behavior[.]” Sch. Bd. of Broward Cnty., 604 F.3d at 1261 (alteration added, quotation marks and

citation omitted). Plaintiff alleges a string of egregious missteps on the part of the School Board.

Multiple victims alerted principals at Campbell K-8 to previous instances of Tolliver’s sexual

assaults and rapes of young female students. (See Am. Compl. ¶¶ 10, 21). In response, Defendant

continued to allow Tolliver unsupervised access to students, failed to warn parents and students of

Tolliver’s actions, and allowed him to continue his employment at Campbell K-8. (See id. ¶¶ 17,

19–20). Plaintiff sufficiently alleges deliberate indifference.

Section 1983 Claim. “[T]o adequately state a claim for municipal liability under [section]

1983, a plaintiff must plead (1) that [her] constitutional rights were violated; (2) the municipality

had a ‘custom or policy that constituted deliberate indifference to that constitutional right,’ and (3)

that policy or custom caused the violation.” Wade v. City of Miami Beach, 565 F. Supp. 3d 1248,

1251 (S.D. Fla. 2021) (alterations added; quoting McDowell v. Brown, 392 F.3d 1283, 1289 (11th

Cir. 2004) (citation omitted)). “To meet the ‘deliberate indifference’ standard, a plaintiff must

allege that ‘the municipality knew of a need to train and/or supervise in a particular area and . . .

made a deliberate choice’” not to act. Id. (alteration added; quoting Gold v. City of Miami, 151

F.3d 1346, 1350 (11th Cir. 1998)). Further, “[b]ecause a municipality rarely will have an officially

[] adopted policy of permitting a particular constitutional violation, most plaintiffs must show that

the municipality has a custom or practice of permitting the violation and that the custom or practice

is the ‘moving force’ behind the constitutional violation.” Doe v. School Bd. of Miami-Dade Cnty.,

403 F. Supp. 3d 1241, 1264 (S.D. Fla. 2019) (alterations added; citation omitted).

Defendant first contends that Plaintiff fails to allege “deliberate indifference” to a

constitutional violation, because she does not allege Defendant’s notice of any wrongdoing. (See

Mot. 14). As discussed, the Amended Complaint sufficiently pleads the school principals’

awareness of prior sexual assaults against students. (See, e.g., Am. Compl. ¶ 21). The Court,

therefore, turns to Defendant’s remaining argument for dismissal of the section 1983 claim — that

Plaintiff fails to allege how Defendant’s lack of training led to the sexual assault of Jane Doe or

deprivation of her rights. (See Mot. 14).

Plaintiff alleges Defendant violated Jane Doe’s right to equal protection of the law6 by

failing to train employees to report and address sexual harassment, as demanded by Title IX. (See

Am. Compl. ¶¶ 41, 45–46). Plaintiff alleges principals knew of a string of accusations of Tolliver’s

sexual assaults. (See id. ¶¶ 10, 21). Members of security personnel and campus staff also allegedly

knew of “Tolliver’s repeated predation and alone time with Jane Doe,” particularly during

“abnormal hours” and in “odd places” across campus. (Id. ¶¶ 17–19). In addition, Plaintiff details

a general history of sexual harassment allegations over the past ten years at Campbell K-8. (See

id. ¶ 13). Despite these repeated incidences indicating the need for training, Defendant failed to

6 The Court notes Plaintiff does not identify the specific constitutional right violated by Defendant’s actions

in the body of her Amended Complaint. See Young v. Miami-Dade Cnty., No. 16-23852-Civ, 2020 WL

2110012, at *5 (S.D. Fla. Apr. 21, 2020) (finding that to state a section 1983 municipal liability claim, a

plaintiff “must identify the specific constitutional right violated and identify the custom or policy that

constituted deliberate indifference to that constitutional right” (emphasis in original)). Plaintiff only

references an Equal Protection violation in the title of the heading of the section 1983 claim. (See id.; see

also Am. Compl. 8). Defendant is apparently on notice of the claim, however, given it does not raise the

issue. (See generally Mot.; Reply).

provide adequate training on “recognizing, preventing[,] and addressing sexual harassment

promptly and equitably[—]” among other deficiencies. (Id. ¶ 45(a) (alterations added)).

Plaintiff’s claims are not mere generalized allegations.7 The Amended Complaint alleges

knowledge by Defendant of many serious incidents involving multiple victims prior to Jane Doe’s

victimization. (See Am. Compl. ¶¶ 10, 13, 21). Plaintiff alleges Defendant failed to take any

action, despite receiving notice. (See id. ¶¶ 30–33). Additionally, she tethers her allegations of

inadequate training to the school’s responsibilities as a public institution under Title IX,

referencing the need for school officials to know the “identity of the School District’s Title IX

coordinator” and the school’s “legal obligations pursuant to Title IX[.]”8 (Id. ¶¶ 42(a), 46

(alteration added)). Plaintiff sufficiently pleads the first two elements of a section 1983 claim.

Finally, Plaintiff sufficiently alleges the third element of a section 1983 claim: that a policy

or custom caused the violation. Plaintiff notes Defendant’s “relaxed policies and procedures” and

“inadequate[] train[ing]” “created the perfect nexus that allowed the sexual battery, harassment[,]

and rape of []Jane Doe.” (Am. Compl. ¶ 14 (alterations added)). Alleging a school board’s failure

to adequately train its employees to combat a string of known abuses, followed by abuse of the

same nature, is enough to allege the board’s actions were the moving force behind the continued

abuse for purposes of a section 1983 claim. See, e.g., N.R. by Ragan v. Sch. Bd. of Okaloosa Cnty.,

7 Defendant attempts to equate this case to Watts v. City of Hollywood, 146 F. Supp. 3d 1254 (S.D. Fla.

2015), stating that the Court there dismissed a section 1983 claim for making mere “generalized allegations”

regarding a lack of adequate training. (Mot. 14). The Court’s reasoning for dismissing the section 1983

claim in Watts is more nuanced. First, in Watts, the plaintiff failed to state any details regarding the alleged

existence of a particular deficient policy. See Watts, 146 F. Supp. 3d at 1272. Plaintiff makes no such

allegations in the present case, instead implying the lack of training amounted to a policy. Further, the

section 1983 dismissal in Watts hinged not only on generalized accusations regarding “negligent training,”

but also on the plaintiff’s failure to allege prior notice of wrongdoing and the absence of allegations that

the city made a choice not to act following notice, among other reasons. See Watts, 146 F. Supp. 3d at

1272–73.

8 The Court notes this final fact not because the allegation is necessary for Plaintiff to sufficiently state a

claim to avoid dismissal, but rather, as a markedly distinguishing factor from the plaintiff in Watts. See id.

418 F. Supp. 3d 957, 992–93 (N.D. Fla. 2019); Doe v. Faerber, 446 F. Supp. 2d 1311, 1316–17

(M.D. Fla. Aug. 14, 2006); J.L., ex. rel. K.L. v. Benton, No. 20-cv-01309, 2021 WL 3171907, at

*2–4 (N.D. Ala. July 27, 2021).

Plaintiff has alleged that Defendant “knew of a need to train and/or supervise in a particular

area and the [School Board] made a deliberate choice not to take any action[,]” serving as the

moving force behind the violation. D.P. v. Sch. Bd. of Palm Beach Cnty., 658 F. Supp. 3d 1187,

1227 (S.D. Fla. 2023) (alterations added; quoting Lewis v. City of W. Palm Beach, 561 F.3d 1288,

1293 (11th Cir. 2009)). While municipal liability under section 1983 is undoubtedly difficult to

establish, see Watts, 146 F. Supp. 3d. at 1273, the standard at the motion-to-dismiss stage is not so

high as to effectively preclude claims where plaintiffs allege a pattern of constitutional violations

spurred by a public entity’s failure to properly train its employees.

Negligence Claim. Under Florida law, to state a negligence claim, a plaintiff must allege

the existence of a duty, breach of that duty, causation, and damages. See Clay Elec. Co-op., Inc.

v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003). Plaintiff brings a state-law negligence claim against

Defendant, claiming it had “a duty to protect the safety of minors who attended” Campbell K-8;

as well as “a duty to reasonably supervise, investigate, hire, and retain its teachers, and a duty to

not subject its students to unqualified, unfit, and dangerous teachers.” (Am. Compl. ¶ 36). She

claims Defendant breached this duty, causing Jane Doe’s sexual assaults, harassment, and rapes.

(See id. ¶¶ 37–38).

Defendant does not contest that it owed duties, generally, to Jane Doe as a student of

Campbell K-8. (See generally Mot.; Reply). Instead, Defendant argues that Plaintiff fails to allege

a breach of any duty, because Plaintiff does not sufficiently plead Defendant’s knowledge of the

original harmful conduct. (See Mot. 15–16). Defendant contends it could not act rationally in

response to an unknown harm. (See id.). Again, Defendant’s argument that Plaintiff fails to plead

Defendant’s knowledge of Tolliver’s conduct is unconvincing. Plaintiff alleges multiple victims

alerted principals of Campbell K-8 to Tolliver’s behavior, yet the school continued to allow

Tolliver unsupervised access to young girls, did not warn parents or students of these allegations,

and kept Tolliver employed at the school. (See Am. Compl. ¶¶ 20–21). Since the victims informed

the principals, directly, of the previous accusations of rapes and sexual assaults, Plaintiff

sufficiently alleges Defendant had notice.

Defendant’s next argument for dismissal of the state-law negligence claim is similarly

deficient. Defendant asserts Plaintiff fails to sufficiently plead she has satisfied the pre-suit

requirements of section 768.28(6)(a), Florida Statutes. (See Mot. 16). Plaintiff maintains that her

general allegation that “[a]ll conditions precedent to bringing this action have been satisfied or

waived” is sufficient to withstand dismissal. (Am. Comp. ¶ 8 (alteration added); Resp. 13). The

Court agrees.

Defendant is correct that the statute requires strict compliance; plaintiffs must provide

notice to the state agency of the action. See Aitcheson v. Fla. Dep’t of Highway Safety & Motor

Vehicles, 117 So. 3d 854, 856 (Fla. 4th DCA 2013). Nevertheless, a general statement in a

complaint that a plaintiff “performed all conditions precedent prior to bringing” the action is

sufficient to avoid dismissal. Savales v. Waters, No. 19-cv-523, 2020 WL 1138259, at *6 n.2

(M.D. Fla. Mar. 9, 2020) (quotation marks and citation omitted).

CASE NO. 24-23741-CIV-ALTONAGA/Reid

IV. CONCLUSION

For the foregoing reasons, it is

ORDERED AND ADJUDGED that Defendants’ Motion to Dismiss Plaintiff's Complaint

and Motion to Strike [ECF No. 20] is GRANTED in part and DENIED in part. Campbell Drive

K-8 Center is dismissed from the action.

DONE AND ORDERED in Miami, Florida, this 19th day of December, 2024.

li uh UW. AE

CECILIA M. ALTONAGA

CHIEF UNITED STATES DISTRICT JUDGE

ce: counsel of record

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