Socash v. Independant School District No.1 of Logan County Oklahoma

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF OKLAHOMA

SERRA SOCASH, as next friend of P.S., )

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Plaintiff, )

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vs. ) Case No. CIV-24-977-R

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INDEPENDENT SCHOOL DISTRICT )

No. 1 of LOGAN COUNTY OKLAHOMA, )

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Defendant. )

ORDER

Before the Court is Defendant Independent School District No. 1 of Logan County

Oklahoma’s Motion to Dismiss [Doc. No. 6]. Plaintiff Serra Socash, as next friend of

minor, P.S., responded [Doc. No. 8] and the matter is now at issue. For the following

reasons, Defendant’s Motion is GRANTED.

Background

Plaintiff alleges the following: On September 1st, 2023, P.S.—a sixth grader at

Guthrie Upper Elementary School—asked her teacher, Mr. Jeff McKinley, to use the

restroom [Doc. No. 1-12 ¶ 21]. Mr. McKinley said no, and P.S. subsequently menstruated

through her pants. Doc. No. 1-12 ¶ 22. She took to social media and posted a photo of Mr.

McKinley referencing the incident. Id. ¶ 23.

On September 7th, P.S. and other students informed their substitute teacher, Ms.

Jesse Parmer, that Mr. McKinley had seen her social media post and was retaliating against

her and others that had commented on the social media post. Id. ¶¶ 24, 27. Specifically,

P.S. told Ms. Parmer that Mr. McKinley rescinded their recess and restroom privileges. Id.

¶¶ 26, 28-29. The students informed Ms. Parmer that they did not want to return to Mr.

McKinley’s classroom because they viewed him as their school bully. Id. ¶ 30.

Later that day, Ms. Parmer emailed the students’ concerns to Principal Ball. Id. ¶ 31.

Principal Ball quickly responded, stating that he would “take care of it.” Id. ¶ 42.

On September 27th, P.S. complained to Principal Ball that Mr. McKinley had yelled

at her, referred to both her and her mother as liars, and generally had been bullying her. Id.

¶ 32. In response, Principal Ball directed Mr. McKinley to apologize to P.S., which he did.

Id. ¶¶ 33-34.

October 11 was P.S.’s last day at Guthrie Upper Elementary School. Id. ¶ 36. That

day, she took multiple audio recordings of Mr. McKinley threatening and bullying her in

class in front of her peers. Id. Mr. McKinley’s repeated misconduct and the District’s

subsequent response caused P.S. to miss class for fear of continued bullying. Id. ¶ 37.

Approximately one week later, P.S.’s mother and grandparents met with Principal

Ball, shared the audio recordings, and discussed the bullying and emotional abuse that Mr.

McKinley was inflicting upon P.S. Id. ¶ 38. The next day, Principal Ball informed P.S.’s

mother that Mr. McKinley’s behavior was under investigation, but also that P.S. had

violated District policy when she recorded the incidents of bullying. Id. ¶ 39. Additionally,

Principal Ball told her that he had already moved P.S. to a different classroom, that he had

provided her with her schoolwork through October 18, and that no further absences would

be excused. Id. ¶ 40.

On October 26, a local news station aired one of P.S.’s audio recordings. Id. ¶ 41. In

the recording, Mr. McKinley can be heard telling P.S.:

“You are an evil, conniving little girl…now you can go home and cry to your

mama I don’t care. You can smile and laugh and think it’s all funny because

yeah you are getting me worked up, so you are winning a little bit, that’s

okay, but in the long run, I’m gonna be alright and you’re not.”

Id. ¶ 40. In the segment, P.S.’s mother stated that Principal Ball’s response to the complaints

was inadequate and that she was pulling P.S. from the school. Id. ¶ 43. When discussing

Principal Ball’s response to her report of student complaints, Ms. Parmer observed that

“obviously nothing happened.” Id. ¶ 42. She was fired the next day. Id. ¶ 44.

Due to this allegedly inadequate response, Plaintiff filed suit in state court, asserting

state law tort claims. Doc. No. 8 at p. 1. Following dismissal of most of these claims by the

state court, Plaintiff filed her Amended Petition, which included federal law claims, and

Defendant subsequently removed the action to this Court. In her Amended Petition,

Plaintiff asserts claims under 42 U.S.C. § 1983 for violation of her Fourteenth Amendment

Due Process and Equal Protection rights, and Title IX of the Education Amendments of

1972, 20 U.S.C. § 1681(a). Doc. No. 1-12. Plaintiff also asserts state law claims for

negligence, negligence per se, and violations of her rights under the Oklahoma

Constitution. Id.

Defendant now seeks dismissal of Plaintiff’s federal law claims pursuant to Federal

Rule of Civil Procedure 12(b)(6), Doc. No. 8 at p. 2, and requests that the Court decline

jurisdiction over Plaintiff’s state law claims if the present motion succeeds. Id. at 12.

Alternatively, Defendant also seeks dismissal of Plaintiff’s state law claims. Id.

Legal Standard

In considering a defendant’s motion to dismiss brought under Rule 12(b)(6), the

Court must determine whether the plaintiff’s complaint contains “enough facts to state a

claim to relief that is plausible on its face,” and whether the factual allegations “raise a

right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,

570 (2007) (citations omitted). The Court “must accept all well-pleaded allegations as true

and construe them in the light most favorable to the plaintiff.” Alvarado v. KOB-TV, L.L.C.,

493 F.3d 1210, 1215 (10th Cir. 2007). However, the Court need not accept as true those

allegations that are conclusory in nature. Erikson v. Pawnee Cty. Bd. of Cty.

Commissioners, 263 F.3d 1151, 1154-55 (10th Cir. 2001). “[C]onclusory allegations

without supporting factual averments are insufficient to state a claim upon which relief can

be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Discussion

I. Federal Law Claims

A. 42 U.S.C. § 1983—Fourteenth Amendment Equal Protection Clause1

“[S]exual harassment by a state actor can constitute a violation of the equal

protection clause.” Murrell v. Sch. Dist. No. 1, Denver, 186 F.3d 1238, 1249 (10th Cir.

1 The Amended Complaint does not separate the substantive due process claim from the

Equal Protection claim, while the Response purports to distinguish the two claims.

However, the bulk of Plaintiff’s municipal liability argument is placed in the substantive

due process portion of her Response. Because both claims require a showing of municipal

liability and both arguments appear to intermingle, the Court interprets Plaintiff’s

municipal liability arguments to be applicable to both her substantive due process and her

Equal Protection claims.

1999). “A school district’s liability for sexual harassment under the Equal Protection clause

is analyzed under a municipal liability framework.” Rost ex rel. K.C. v. Steamboat Springs

RE-2 Sch. Dist., 511 F.3d 1114, 1124 (10th Cir. 2008) (internal citations omitted). “A

municipality may not be held liable under § 1983 solely because its employees inflicted

injury on the plaintiff.” Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010)

(citation omitted). Instead, “to establish…liability for sexual harassment under the

Fourteenth Amendment, a plaintiff must demonstrate that a state employee’s

discriminatory actions are representative of an official policy or custom of the municipal

institution, or are taken by an official with final policy making authority.” Murrell, 186

F.3d at 1249 (citations omitted). “In the absence of an official policy, a municipality may

still be liable for the widespread and persistent practice of sexual harassment which

constitutes a custom.” Rost, 511 F.3d at 1125.

Like in Rost, Plaintiff’s first alleged policy or custom centers on Defendant’s failure

to either have adequate policies or to adhere to its existing policies. Doc. No. 8 at pp. 7-9.

She alleges an unconstitutional policy or custom of failure to investigate misconduct,

discounting the credibility of student allegations, and failing to enact policies that require

an adherence to reporting requirements. Doc. No. 12-1 ¶ 56. She specifically contends that

“Plaintiff’s disclosure of Mr. McKinley’s misconduct to Defendant and other students,

Defendant’s lack of a sufficient investigation, and Defendant’s repeated statements that

they would investigate the matter, while only pushing back on Plaintiff and forcing her to

return to McKinley’s class,” id. ¶ 58, evidences this custom.

When presented with Equal Protection claims premised upon the “custom of failure

to receive, investigate, or act on complaints of constitutional violations…a plaintiff must

prove (1) a continuing, widespread, and persistent pattern of misconduct by the state; (2)

deliberate indifference or tacit authorization of the conduct by policy-making officials after

notice of the conduct; and (3) a resulting injury to the plaintiff.” Rost, 511 F.3d at 1125

(citations omitted).

Here, Plaintiff’s allegations fall short of these requirements. Although she alleges

that Defendant mishandled her complaints, she does not identify any prior incidents of

teacher-on-student bullying or harassment, or additional facts that would plausibly allege

a widespread or persistent pattern across the District. She also fails to allege that Defendant

had notice of prior incidents such that it could be reasonably inferred that it acted with

deliberate indifference. See Waller v. City and Cty. of Denver, 932 F.3d 1277, 1287 (10th

Cir. 2019) (“One prior incident, even if it was a constitutional violation sufficiently similar

to put officials on notice of a problem, does not describe a pattern of violations.”) (internal

citations, quotation marks, and brackets omitted).

Plaintiff also alleges a custom based on Defendant’s failure to train its employees

to respond to complaints of teacher-on-student abuse. Doc. No. 1-12 ¶ 56(c). “The

deliberate indifference standard may be satisfied when the municipality has actual or

constructive notice that its action or failure to act is substantially certain to result in a

constitutional violation, and it consciously or deliberately chooses to disregard the risk of

harm.” Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998). Typically, notice is

“established by proving the existence of a pattern of tortious conduct.” Id. However,

deliberate indifference may also “be found absent a pattern of unconstitutional behavior if

a violation of federal rights is a highly predictable or plainly obvious consequence of a

municipality’s action or inaction, such as when a municipality fails to train an employee in

specific skills needed to handle recurring situations, thus presenting an obvious potential

for constitutional violations.” Id. at 1307-08 (citation and quotation marks omitted).

Here, Plaintiff acknowledges in her Response that she does not allege a pattern of

tortious conduct. Doc. No. 8 at p. 6. Instead, she argues that this case presents one of the

“narrow circumstances” in which such a pattern is unnecessary. Id. But apart from a few

conclusory statements, Plaintiff has not alleged facts supporting a plausible inference that

Defendant’s employees received constitutionally insufficient training or that a lack of

training presents a plainly obvious risk of a constitutional violation. On the contrary, the

Amended Petition alleges that Principal Ball ultimately transferred P.S. to a different

classroom and launched an investigation into Mr. McKinley’s conduct. Because her

pleadings lack a factual basis to plausibly allege deliberate indifference through a failure

to train, she has failed to state a claim for municipal liability.

Accordingly, because Plaintiff failed to allege that her injury was caused by a policy

or custom of the District, she cannot state a claim for municipal liability, and her Equal

Protection claim necessarily fails.

B. 42 U.S.C. § 1983—Fourteenth Amendment Due Process Clause

The municipal liability framework also applies to Plaintiff’s substantive due process

claim, like her Equal Protection claim, it similarly fails to state a claim for municipal

liability for the reasons described above.

Plaintiff’s substantive due process claim is seemingly premised on the danger-

creation exception to the general rule that “a state’s failure to protect an individual against

private violence simply does not constitute a violation of the Due Process Clause.”

DeShaney v. Winnebago Cty. Dep’t of Soc. Services, 489 U.S. 189, 197 (1989); see also

Rost, 511 F.3d at 1125; Doc. No. 1-12 ¶¶ 61-71. Similarly, under the general rule,

negligence alone generally does not trigger protection under the Due Process Clause. See

Davidson v. Cannon, 474 U.S. 344, 348 (1986). “To invoke the danger-creation theory, a

plaintiff must show a state actor affirmatively acted to create, or increases a plaintiff’s

vulnerability to, danger from private violence.” T.D. v. Patton, 868 F.3d 1209, 1222 (10th

Cir. 2017) (internal quotations and alterations omitted). “If a plaintiff meets those

preconditions, she must next demonstrate: (1) the charged state entity and the charged

individual actors created the danger or increased plaintiff’s vulnerability to the danger in

some way; (2) plaintiff was a member of a limited and specially definable group; (3)

defendants’ conduct put plaintiff at substantial risk of serious, immediate, and proximate

harm; (4) the risk was obvious or known; (5) defendants acted recklessly in conscious

disregard of that risk; and (6) such conduct, when viewed in total, is conscience shocking.

Id. (citations omitted) (cleaned up).

Here, while the Amended Petition is deficient in multiple respects regarding the

danger-creation theory, suffice it to say the misconduct alleged does not “shock the

conscience.” Defendant, citing Abeyta v. Chama Valley Indep. Sch. Dist., 77 F.3d 1253

(10th Cir. 1996), contends that because Plaintiff alleges only sexual harassment and verbal

abuse, her danger-creation claim cannot survive under “[e]ven the most liberal review.”

Doc. No. 6 at pp. 5-7. In Abeyta, a sixth-grade female student was called a prostitute by

her teacher and taunted for over a month. Abeyta, 77 F.3d at 1255. The Tenth Circuit held

that because the plaintiff alleged sexual harassment instead of sexual assault or molestation,

as well as because calling a 12-year-old girl a prostitute did not comprise constitutionally

actionable psychological abuse, it did not “shock the conscience.” Id. at 1255-58. Here,

like in Abeyta, the alleged bullying and Principal Ball’s allegedly inadequate response are

not conscience shocking. Therefore, Plaintiff’s substantive due process claim fails.

C. Title IX

Plaintiff next alleges violation of Title IX for sexual harassment resulting is a

deprivation of educational opportunities and benefits, as well as a hostile educational

environment. Doc. No. 1-12 ¶¶ 74-75.

Under Title IX, “No person in the United States shall, on the basis of sex, be

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

under any education program or activity receiving Federal financial assistance[.]” The

Supreme Court has interpreted Title IX as providing a limited private right of action for

damages. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 277, 290 (1998). “A

plaintiff must allege four factors to state a claim of school district liability under Title IX.

She must allege that the district (1) had actual knowledge of, and (2) was deliberately

indifferent to (3) harassment that was so severe, pervasive and objectively offensive that it

(4) deprived the victim of access to the educational benefits or opportunities provided by

the school.” Murrell v. Sch. Dist. #1, Denver, Colo., 186 F.3d 1238, 1246 (10th Cir. 1999)

(citation omitted).

Here, Plaintiff failed to plausibly allege that Defendant acted with deliberate

indifference. “Deliberate indifference exists where the response to the harassment or lack

thereof is clearly unreasonable in light of the known circumstances.” Forth v. Laramie Cty.

Sch. Dist. No. 1, 85 F.4th 1044, 1069 (10th Cir. 2023) (internal citations, brackets, and

quotation marks omitted). This a “high standard” that “requires more than negligence by

school officials.” Ross v. Univ. of Tulsa, 180 F.Supp.3d 951, 965, 969 (N.D. Okla. 2016)

(citation omitted). Moreover, “[c]ourts should not ‘second guess decisions’ made by school

officials or permit students to demand certain remedies.” Id. at 968-69 (citation and

quotation marks omitted). Additionally, “[t]he type of educational setting must be

considered in determining the reasonableness of a response.” Id. (citation omitted).

Plaintiff contends that “Defendant acted with deliberate indifference by failing to

properly investigate Plaintiff’s allegations and to inform law enforcement or other

government officials.” Doc. No. 1-12 ¶ 87. She argues that that Defendant’s response to

complaints of abuse and lax punishment of Mr. McKinley is comparable to that of the

school district’s response in Armenta v. Indep. Sch. Dist. No. 5 of Garvin Cty., No. CIV-

22-659-JD, 2024 WL 3089658 (W.D. Okla. June 21, 2024). In Armenta, the school district

allowed the starting quarterback of the high school football team to attend his prom,

baccalaureate, and graduation despite finding that he had sexually assaulted an

intellectually disabled middle school student on school grounds (and had similarly

assaulted two other female students). Armenta, 2024 WL 3089658, at *1. The victim of the

assault, in contrast, was required to attend online classes until the investigation into the

alleged assault was completed. Id. The court found that the school district’s response was

clearly unreasonable because it largely punished the victim, while hardly punishing the

perpetrator. Id. at *11.

The present facts are distinguishable. While Plaintiff contends that Mr. McKinley

received a “slap on the wrist” like the perpetrator in Armenta, the pleadings reflect that as

allegations intensified, so did Principal Ball’s response. Construed in Plaintiff’s favor, her

allegations show that Ms. Parmer informed Principal Ball that students, including P.S. were

being punished for making a social media post using a picture of Mr. McKinley by having

their recess and restroom privileges taken away. Because of this, Ms. Parmer reported that

the students viewed Mr. McKinley as their bully. Mr. McKinley did nothing. A few weeks

later, P.S. told Principal Ball that Mr. McKinley had referred to her and her mother as liars.

Principal Ball made Mr. McKinley apologize. Upon learning a couple of weeks later that

the apology had not worked, Principal Ball moved P.S. to another classroom and launched

an investigation into Mr. McKinley’s conduct. Unlike the administration in Armenta,

Defendant did not consciously turn a blind eye to the misconduct once it was evident that

P.S. was the victim of bullying. Taken as a whole, Plaintiff has not adequately alleged that

the response was clearly unreasonable.

Accordingly, because Plaintiff failed to plausibly allege that Defendant acted with

deliberate indifference to Plaintiff’s complaints, Defendant’s Motion as to the Title IX

claim is GRANTED.

II. State Law Claims

Having disposed of Plaintiff’s federal claims, the only issues that remain are matters

of state law. “A district court’s decision whether to exercise [supplemental] jurisdiction

after dismissing every claim over which it had original jurisdiction is purely discretionary.”

Apache Tribe of Okla. v. Brown, 966 F.Supp.2d 1188, 1197-98 (W.D. Okla. 2013) (quoting

Carlsbad Tech., Inc. v. HIF Bio., Inc., 556 (U.S. 635, 639-40 (2009)). The Tenth Circuit

instructs that “[w]hen all federal claims have been dismissed, the court may, and usually

should, decline to exercise jurisdiction over any remaining state law claims.” Koch v. City

of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011) (citations and quotation marks omitted).

Indeed, “in the usual case in which all federal-law claims are eliminated before trial, the

balance of factors to be considered under the pendent jurisdiction doctrine—judicial

economy, convenience, fairness, and comity—will point toward declining to exercise

jurisdiction over the remaining state law claims.” Carnegie-Mellon Univ. v. Cohill, 484

U.S. 343, 350 n. 7 (1988).

Here, the Court finds that it is appropriate to decline to exercise its jurisdiction over

Plaintiff’s state law claims.

Conclusion

For the reasons stated above, the Court finds that dismissal is proper on all claims

brought pursuant to 42 U.S.C. § 1983 and Title IX, and that Plaintiff’s remaining state

claims should be remanded to state court.

IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss, Doc. No. 6,

is GRANTED. IT IS FURTHER ORDERED that the remainder of Plaintiff’s action,

asserting purely state law claims, is remanded to the District Court of Logan County,

Oklahoma, case number CJ-24-43.

IT IS SO ORDERED this 10th day of January, 2025.

DAVID L. RUSSELL

UNITED STATES DISTRICT JUDGE

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