Callaway v. Okmulgee School District 1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

JENNIFER SCOTT CALLAWAY, )

as parent and next friend of D.C., )

a minor child, )

)

Plaintiff, )

)

v. ) Case No. CIV-21-51-SLP

)

INDEPENDENT SCHOOL DISTRICT )

NO. 1 OF OKMULGEE COUNTY )

a/k/a OKMULGEE PUBLIC SCHOOLS, )

a Political Subdivision of the )

State of Oklahoma, et al., )

)

Defendants. )

O R D E R

Before the Court are two related motions. First, Defendant Independent School

District No. 1 of Okmulgee County (“the School District”) filed a Partial Motion to

Dismiss1 with Combined Brief in Support filed by [Doc. No. 13], which is at issue, see

Pl.’s Resp. [Doc. No. 20]; Def.’s Reply [Doc. No. 22]. Second, Defendants Stephanie Lee

and Dalawna Brent (“the Individual Defendants”) have jointly filed a Motion to Dismiss

with Combined Brief in Support [Doc. No. 14], which is at issue, see Pl.’s Resp. [Doc. No.

21]; Def.’s Reply [Doc. No. 23]. For the following reasons, both motions are GRANTED.

1 Although captioned as a “partial” motion to dismiss, the School District moved to dismiss all

five counts asserted against it. See generally [Doc. No. 13]. Neither party articulates what facts

cause it to be a “partial” motion, and the Court can ascertain none aside from the omission of the

claims against the Individual Defendants (which they separately moved on). Thus, it is more

accurately a full “Motion to Dismiss,” and the Court considers it as such.

I. Background2

This lawsuit arises from an incident involving D.C., a minor. At all relevant times,

D.C. was enrolled as a fifth-grade student at Dunbar Intermediate School (“Dunbar”),

which is within the School District. D.C. has been diagnosed with Autism Spectrum

Disorder, which causes a number of substantial educational limitations, including difficulty

communicating verbally. Specifically, D.C. struggles with a “‘severe receptive and

expressive language disorder’ which manifests in D.C. speaking no more than 2 to 3 words

at a time.” Compl. [Doc. No. 2] ¶ 34. As a result, D.C. has been on an Individualized

Education Plan (“IEP”) pursuant to the Individuals with Disabilities Education Act

(“IDEA”) since enrolling in the School District as a kindergartener in 2016. D.C. began

his fifth-grade year at Dunbar during the 2020-2021 school year. Dunbar enrolls fifth,

sixth, seventh, and eighth grade students.

On September 10, 2020, D.C.’s mother met with several School District officials—

including Defendant Dalawna Brent, the School District’s Special Education Director—to

review and finalize D.C.’s IEP for the upcoming school year. As it had in previous years,

D.C.’s IEP required an adult aide to accompany him in all school activities, including “all

toileting activities.” Id. ¶ 37. More specifically, the IEP stated that D.C. “requires adult

attendance and some assistance with toileting” and “will ask to be taken to the restroom.”

2 The factual summary herein is taken from Plaintiff’s Complaint [Doc. No. 2] and accepted as

true for the purpose of deciding the Motions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Id. ¶ 39. Rochelle Pierson, a School District employee who had been D.C.’s aide in primary

school, continued to serve as D.C.’s aide at Dunbar.

Special education teacher Shelia Nelson taught all of Dunbar’s special education

students, including D.C.3 At the time of the incident, however, Ms. Nelson “was on an

extended absence from school due to an injury, leaving no teacher for the special education

students.” Rather than replace Ms. Nelson with another special education teacher, the

School District elected to have Ms. Pierson and one other special education aide “cover for

Ms. Nelson and supervise the special education students.”4 Id. ¶ 44.

As a result of this arrangement, D.C. was allowed to leave the classroom and use

the restroom unattended during the school day on September 21, 2020. The restroom, like

the special education classroom, was located in the hallway used by the older seventh and

eighth grade students. One of these older students “confronted” D.C. in the restroom and

subsequently “photographed and recorded D.C.’s genitals while he was using the

bathroom.” Id. ¶ 47. After the incident, the older student “share[d] and/or distribute[d] the

photographs to other Dunbar students.” Id. ¶ 48. Eventually, one of these other students

alerted school officials about the photos.

Dunbar’s principal, Defendant Stephanie Lee, called D.C.’s mother on September

30 to explain what had happened to D.C. Plaintiff’s mother immediately went to Dunbar

3 Neither Ms. Pierson nor Ms. Nelson are party to this action.

4 It is unclear whether Ms. Nelson had eight or nine students in her class. Compare Compl. [Doc.

No. 2] ¶ 42 (“[T]here were approximately eight (“8”) other special education students in the special

education class with D.C.”), with id. ¶ 45 (“[T]here were just two adult aides in the special

education classroom to supervise the eight special education students.”).

to discuss the incident with school administrators and to take D.C. home. Though School

District employees told D.C.’s mother that the photos of her son had been deleted, they

could not provide proof of this statement. Defendant Lee told D.C.’s mother that she could

not provide any substantive information about the incident because the police were

handling the matter. When D.C.’s mother contacted the Okmulgee Police Department, she

was told that tribal or federal authorities would need to handle the matter because the

student who photographed D.C. was Native American. After the Okmulgee Police

Department explained there was nothing more they could do, D.C.’s mother reached out to

tribal police. The tribal police told her that they were unaware of the incident, and that no

one from the School District had contacted them. Following the incident, the School

District offered “limited or no assistance to help [D.C.] cope with being a victim of sexual

violence.” Id. ¶ 56.

Plaintiff filed suit against the School District and the Individual Defendants,

asserting five causes of action: (1) negligence against the School District; (2) negligent

hiring, training, supervision, and retention against the School District; (3) a violation of

D.C.’s equal protection rights pursuant to 42 U.S.C. § 1983 against the School District and

the Individual Defendants; (4) a violation of the Americans with Disabilities Act (“ADA”)

against the School District; and (5) a violation of § 504 of the Rehabilitation Act against

the School District.5

5 Though not clear from the Complaint, Plaintiff clarifies she “is not pursuing claims against the

Individual Defendants for violations of Section 504 and the ADA.” Resp. [Doc. No. 21].

The School District has moved to dismiss Plaintiff’s federal claims pursuant to Rule

12(b)(1) and, in the alternative, all five claims pursuant to Rule 12(b)(6). The Individual

Defendants have moved to dismiss Plaintiff’s § 1983 claim against them pursuant to

Federal Rule of Civil Procedure 12(b)(6).

II. Governing Standard

A. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) permits a court to dismiss a complaint for lack

of subject matter jurisdiction. Motions to dismiss under Rule 12(b)(1) “generally take one

of two forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to

subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter

jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). When

considering a facial attack, as the Court does here, the Court accepts the factual allegations

of the complaint as true. Pueblo of Jemez v. United States, 790 F.3d 1143, 1148 n. 4 (10th

Cir. 2015).

B. Rule 12(b)(6)

A complaint is subject to dismissal if it “fail[s] to state a claim upon which relief

can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint

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

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss,

requires a litigant to plead facts which allow “the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is

not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Id.

When analyzing a complaint under this standard, the Court first identifies “the

allegations in the complaint that are not entitled to the assumption of truth,”—i.e., legal

conclusions and bare assertions. Id. at 679–81. It then evaluates the remaining factual

allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681.

Accordingly, “mere ‘labels and conclusions,’ and ‘a formulaic recitation of the elements

of a cause of action’ will not suffice; a plaintiff must offer specific factual allegations to

support each claim.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir.

2011) (quoting Twombly, 550 U.S. at 555). Although “Plaintiff is not required to set forth

a prima facie case for each element, she is required to set forth plausible claims.” Khalik

v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012). “While ‘[s]pecific facts are not

necessary,’ some facts are.” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)).

Pleadings that do not allow for at least a “reasonable inference” of the legally relevant facts

are insufficient. Iqbal, 556 U.S. at 678.

Further, regarding § 1983 claims, there is a “need for careful attention to particulars,

especially in lawsuits involving multiple defendants.” Pahls v. Thomas, 718 F.3d 1210,

1225 (10th Cir. 2013); see also Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008)

(explaining that when plaintiff brings § 1983 claims against multiple defendants, “it is

particularly important . . . that the complaint make clear exactly who is alleged to have

done what to whom”).

III. Discussion

A. Exhaustion of Administrative Procedures

The School District argues the Court lacks jurisdiction over Plaintiff’s federal

claims because she did not first exhaust the IDEA’s administrative procedures under 20

U.S.C. § 1415(l). The Court addresses this challenge first because the Tenth Circuit has

treated the IDEA’s exhaustion requirement as jurisdictional. See Muskrat v. Deer Creek

Pub. Sch., 715 F.3d 775, 784–85 (10th Cir. 2013) (citing Cudjoe v. Indep. Sch. Dist. No.

12, 297 F.3d 1058, 1063 (10th Cir. 2002)). Thus, the initial inquiry is whether Plaintiff

was required to exhaust her administrative remedies under IDEA.

This answer is found in a two-step framework set out in two recent Supreme Court

cases: Fry v. Napoleon Community Schools, 580 U.S. 154 (2017) and Luna Perez v. Sturgis

Public Schools, 598 U.S. 142 (2023).6 “The former case asks whether the gravamen of the

complaint alleges a denial of a free appropriate public education, and the latter case asks

whether the relief sought is of the type the IDEA offers.” Stevens ex rel. D.S. v. Berryhill

Bd. of Educ., 710 F. Supp. 3d 1062, 1069 (N.D. Okla. 2024). “If the answer to both is yes,

administrative exhaustion under the IDEA is required.” Id.

6 Although Luna Perez was decided during the pendency of this action—and after the parties

submitted their briefing on the instant Motions—its holding nevertheless controls here. See

Harper v. Va. Dep’t. of Tax’n., 509 U.S. 86, 97 (1993) (“When this Court applies a rule of federal

law to the parties before it, that rule is the controlling interpretation of federal law and must be

given full retroactive effect in all cases still open on direct review and as to all events, regardless

of whether such events predate or postdate our announcement of the rule.”); Garman v. Campbell

Cnty. Sch. Dist. No. 1, 462 F. App'x 785, 789 (10th Cir. 2012).

The parties dispute whether the Complaint alleges the denial of a “free appropriate

public education”—commonly called a FAPE. However, the parties did not have the

benefit of Luna Perez at the time they briefed this issue, and Luna Perez’s holding is

dispositive here. The Complaint only seeks compensatory and punitive damages, Compl.

[Doc. No. 2] at 18–19, relief the IDEA cannot provide. Thus, because the Complaint only

seeks monetary damages, analysis under the Fry prong is unnecessary,7 as the Complaint

is not subject to the IDEA’s exhaustion requirement pursuant to Luna Perez. See Shefke

ex rel. Doe v. Macomb Intermediate Sch. Dist., No. 22-1283, 2023 WL 3698219, at *2 (6th

Cir. May 23, 2023) (unpublished) (“The parties dispute at length whether [the] complaint

alleges the denial of a FAPE. But in light of Perez, we need not decide that question to

resolve this appeal: the complaint seeks monetary damages only and thus, pursuant to

Perez, is not subject to the IDEA's exhaustion requirement.”).8 Accordingly, under Luna

7 Nevertheless, the Court does find that the denial of a FAPE appears to be a central component of

Plaintiff’s claims. For example, in support of her ADA claim, Plaintiff alleges the School District

(1) “[f]ail[ed] to provide appropriate services and supports for D.C. to be able to safely attend

school,” (2) “failed to support and accommodate D.C.’s educational program to meet his needs as

adequately as the needs of students without disabilities,” and (3) “failed to reasonably

accommodate D.C. because he needed ASD services to enjoy meaningful access to the benefits of

a public education.” Compl. [Doc. No. 2] ¶¶ 104–105. Similarly, Plaintiff’s claim under § 504 of

the Rehabilitation Act alleges that the School District “discriminated against D.C. by failing to

adequately staff the special education classroom” and by failing to “provide D.C. the adult aide he

is required, in violation of D.C.’s documented needs.” Compl. [Doc. No. 2] ¶ 117. Plaintiff

concludes the result of both claims is that the School District “altered D.C.’s education and

subjected him to a hostile educational environment, and denied services, programs, and activities

to D.C. that were full and equal to programs and activities provided to non-disabled persons.” Id.

¶¶ 107, 121.

8 The Tenth Circuit has not weighed in following Luna Perez’s publication. Accordingly, the

Court relies on well-reasoned opinions from courts outside of this circuit for their persuasive value.

Perez, Plaintiff is excused from administrative exhaustion resulting in this Court having

subject matter jurisdiction over Plaintiff’s federal claims.

B. Abandoned Claims and Claims Not Raised

Before turning to the substantive analysis, the Court first attempts to clarify the

pending claims. Having difficulty discerning the exact claims asserted against them,

Defendants moved to dismiss on numerous grounds. For example, the Individual

Defendants asserted a defense of qualified immunity and also moved to dismiss the § 1983

claim for failure to state a claim under numerous theories including equal protection,

substantive due process, and procedural due process. See generally [Doc. No. 14]. The

School District, on the other hand, also moved to dismiss the claims under various theories,

but appeared to only interpret the § 1983 claim against it as alleging municipal liability

based on a violation of the Equal Protection Clause related to a “class of one” theory. [Doc.

No. 13] at 10–14.

Plaintiff’s Response to the Individual Defendants argues that “Defendants appear to

confuse the nature of Plaintiff’s claims” as they sought dismissal “under a number of

theories that Plaintiff is not advancing.” Resp. [Doc. No. 21] at 5, 7. Plaintiff goes on to

say, “[f]or instance, Plaintiff is not asserting § 1983 claims based on Title IX.” Id. at 5.

Plaintiff states she only “alleges the Individual Defendants violated D.C.’s rights secured

by the Fourteenth Amendment pursuant to (1) an equal protection theory; and (2) a state

created danger theory.” Id. at 7. Further, in her Response to the School District, Plaintiff

includes a footnote stating, “[The School District] is also liable to Plaintiff under § 1983

under the state-created danger doctrine” but because the School District “has not

challenged Plaintiff’s § 1983 claims under that doctrine [in the Motion to Dismiss],”

Plaintiff did not substantively discuss that claim in that Response. [Doc. No. 20] at 5, n.3.

Making matters more confusing, Plaintiff’s Response briefs seem to abandon some

claims and theories while simultaneously attempting to enlarge others, in an apparent bid

to clarify and remedy perceived pleading defects.9 For example, the Court cannot clearly

discern whether Plaintiff intended to bring an equal protection claim under one theory or

under two separate theories: (1) a “class of one” theory related to the alleged staffing

deficiencies in D.C.’s classroom as compared to the staffing in non-disabled classrooms;

and/or (2) a gender-based discrimination theory stemming from sexual harassment.10

As to the factual nature giving rise to the claims, Plaintiff also states that Defendants

“materially misunderstand” the basis for the Fourteenth Amendment claims, explaining

that “none of Plaintiff’s claims are based on the Defendant’s failure to adhere to D.C.’s

IEP” but rather, “Plaintiff’s claims arise as a result of the Individual Defendants [sic] failure

9 To the extent Plaintiff’s Response briefs attempt to add to or amend her claims or allegations, the

Court declines to consider the same as they were not pleaded in the four corners of the Complaint.

Kearney v. Dimanna, 195 F. App'x 717, 721 (10th Cir. 2006) (“It is well-established . . . that in

determining whether to grant a motion to dismiss, the district court, and consequently this court,

are limited to assessing the legal sufficiency of the allegations contained within the four corners

of the complaint.”) (citing Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995)).

10 Both of Plaintiff’s Response briefs affirmatively state that “Plaintiff’s equal protection claim is

based on what courts have referred to as a class-of-one claim . . . .” [Doc. No. 21] at 13; [Doc.

No. 20] at 22. Yet, both Responses go on to argue in the same section that the Individual

Defendants (and therefore, the School District) may be held liable under a supervisory liability

theory “for the student-on-student harassment under § 1983” as it is “is indisputable that a student

has a constitutional right to be free from physical abuse and harassment under the equal protection

clause of the Fourteenth Amendment.” [Doc. No. 20] at 20–21 (citing Murrell v. Sch. Dist. No. 1,

Denver, 186 F.3d 1238, 1249 (10th Cir. 1999)); [Doc. No. 21] at 17 (citing Schaefer v. Las Cruces

Pub. Sch. Dist., 716 F. Supp. 2d 1052 (D.N.M. 2010) which cites Murrell). While Plaintiff cites

to Schaefer and Murrell, neither case had “class of one” claims.

to ensure that the [School District’s] special education classroom was adequately staffed

with employees who were capable of supervising special education students.” Id.

(emphasis by Plaintiff). Curiously, this is in direct conflict with an allegation in the

Complaint: “[School District] employees, including Defendants Lee and Brent, each

violated D.C.’s right to equal access by failing to ensure that the special education

classroom at Dunbar was adequately staffed and by failing to ensure that the explicit

requirements of D.C.’s IEP were being followed.” [Doc. No. 2] ¶ 85 (emphasis added).

Under Fed. R. Civ. P. 8(a)(2), a complaint only requires “a short and plain statement

of the claim showing that the pleader is entitled to relief” and does not require the plaintiff

to set forth legal theories. Johnson v. City of Shelby, Miss., 574 U.S. 10, 11 (2014); Zokari

v. Gates, 561 F.3d 1076, 1084 (10th Cir. 2009). However, “[d]istinct theories of liability

generally are plead in separate counts.” Chandler v. HK Hosp., LLC, No. CV 22-16

MV/KK, 2022 WL 17847658, at *3 (D.N.M. Dec. 22, 2022). This is because, in part, a

complaint “must ‘give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests.’” Zokari, 561 F.3d at 1084 (quoting Twombly, 550 U.S. at

555); Jaiyeola v. Garmin Int'l, Inc., No. 2:20-CV-2068-JWB-JPO, 2020 WL 4678378, at

*3 (D. Kan. Aug. 12, 2020) (“[T]he purpose of organizing a complaint into separate counts

is to place defendants on notice as to exactly what they are defending against, whether an

entirely separate cause of action or alternative theories of recovery.”); cf. Bd. of Trs. of the

Trucking Emps. of N. Jersey Welfare Fund, Inc. v. 160 E. 22nd St. Realty, LLC, No. CV

15-889 (ES) (JAD), 2016 WL 4582046, at *8 (D.N.J. Sept. 2, 2016) (unreported) (stating,

“[t]o the extent [the plaintiff seeks to hold the defendants] liable under [two different

theories], those theories must be pleaded in separate counts” and ordering the plaintiff to

“re-plead” those claims in an amended complaint); Chandler, 2022 WL 17847658, at *3

(requiring the plaintiff to plead distinct legal theories of liability in separate counts as the

inclusion of multiple theories under one count was “ambiguous and unnecessarily

complicate[d]”). Further, where a plaintiff does not offer a legal theory in the complaint,

“the Court will not create one for him.” Boersma v. Otte, No. 23-CV-221-ABJ, 2024 WL

4251817, at *8 (D. Wyo. Aug. 21, 2024), appeal dismissed, No. 24-8064, 2025 WL 820923

(10th Cir. Jan. 6, 2025).

Here, the Court finds that to the extent Plaintiff failed to respond to, or affirmatively

abandoned, claims or theories raised by Defendants in their Motions to Dismiss, the same

are deemed waived.11 As to what remains, the Court finds all five counts are pending

against the School District, whereas only Count III is alleged against the Individual

Defendants. Further, as to Count III against the Individual Defendants, Plaintiff has alleged

(and sufficiently addressed in her Response briefs to avoid abandonment) three theories

underlying this claim: (1) a violation of equal protection based on a “class of one” theory

stemming from disparate treatment regarding staffing of D.C.’s classroom and that of

11 See Paycom Payroll, LLC v. Richison, 758 F.3d 1198, 1203 (10th Cir. 2014) (“Waiver is

accomplished by intent, but forfeiture comes about through neglect.”); C1.G ex rel. C.G. v.

Siegfried, 38 F.4th 1270, 1282 (10th Cir. 2022) (affirming district court's conclusion

that plaintiff abandoned facial constitutional claim “by not addressing it in his response to

[d]efendants' motion to dismiss”); see also Lee v. Ne. Ill. Reg'l Commuter R.R. Corp., 912 F.3d

1049, 1053-54 (7th Cir. 2019) (explaining that a complaint “can be subject to dismissal if

a plaintiff does not provide argument in support of the legal adequacy of the complaint,” such as

“when a party fails to develop arguments related to a discrete issue or when a litigant

effectively abandons the litigation by not responding to alleged deficiencies in a motion

to dismiss”).

“students without disabilities”; (2) a violation of equal protection based on a theory of

supervisory liability stemming from gender-based discrimination in the form of sexual

harassment by a peer student; and (3) a violation of substantive due process under a state-

created danger theory. Count III is asserted against the School District under a municipal

liability theory pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978).

With this housekeeping complete, the Court can move forward with the substantive

analysis. The Court first takes up the Individual Defendants’ arguments, followed by the

School District’s.

C. Fourteenth Amendment Violations

Both the School District and the Individual Defendants move for dismissal of the

§ 1983 claim under Rule 12(b)(6). The Individual Defendants argue for qualified

immunity and additionally assert dismissal is proper because (1) the Individual Defendants

were not directly involved in the incident and therefore cannot be subject to personal

liability,12 (2) Plaintiff fails to sufficiently plead the Individual Defendants are liable under

a supervisory liability theory, and (3) Plaintiff has not met the burden required by a “class

of one” equal protection claim. Id. at 14–17.

12 “A § 1983 defendant sued in an individual capacity may be subject to personal liability and/or

supervisory liability.” Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011). Personal liability

“under § 1983 must be based on personal involvement in the alleged constitutional violation.” Id.

Here, the Complaint contains no allegations that the Individual Defendants were personally

involved in the incident or violation. Further, Plaintiff appears to concede she is not pursuing a

personal liability theory, arguing instead that the “the Individual Defendants are liable under §

1983 for their deliberate indifference in their supervisory roles.” Resp. [Doc. No. 21] at 9–10.

Accordingly, to the extent Plaintiff intended to assert a personal liability theory (which is not

entirely clear), that theory fails.

The qualified immunity defense provides the governing framework for the Court’s

analysis of Plaintiff’s claims. See Hunt v. Montano, 39 F.4th 1270, 1284 (10th Cir. 2022)

(“[w]hen a § 1983 defendant raises qualified immunity . . . the burden shifts to the plaintiff

to establish both prongs of the defense.”); see also Bledsoe v. Carreno, 53 F.4th 589, 606

(10th Cir. 2022) (“[w]here, as here, defendants moved for dismissal of § 1983 claims under

Rule 12(b)(6) based on qualified immunity, there is a presumption that the defendant is

immune from suit.” (internal quotation marks and citation omitted)).

“Although qualified immunity defenses are typically resolved at the summary

judgment stage, district courts may grant motions to dismiss on the basis of qualified

immunity.” Myers v. Brewer, 773 F. App'x 1032, 1036 (10th Cir. 2019) (quoting Thomas

v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014)). “Asserting a qualified immunity defense

via a Rule 12(b)(6) motion, however, subjects the defendant to a more challenging standard

of review than would apply on summary judgment.” Thomas, 765 F.3d at 1194 (internal

quotation marks omitted). “At the motion to dismiss stage, it is the defendant's conduct as

alleged in the complaint that is scrutinized for objective legal reasonableness.” Id. (brackets

and internal quotation marks omitted).

In resolving a motion to dismiss based on qualified immunity, courts evaluate (1)

“whether the facts that a plaintiff has alleged make out a violation of a constitutional right,”

and (2) “whether the right at issue was clearly established at the time of defendant's alleged

misconduct.” Fisher Sand & Gravel, Co. v. Giron, 465 F. App'x 774, 779 (10th Cir. 2012);

see also Keith v. Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013). “The burden is on the

plaintiff to prove both parts of this test.” Giron, 465 F. App'x. at 779. “Courts have

discretion to decide the order in which they address these two prongs.” Roberts v. Winder,

16 F.4th 1367, 1374 (10th Cir. 2021) (citing Pearson v. Callahan, 555 U.S. 223, 236

(2009)).

As to the second prong, Plaintiff must identify “clearly established” law that would

have notified Defendants their actions were unlawful. See Washington v. Unified Gov't of

Wyandotte Cnty., 847 F.3d 1192, 1202 n.3 (10th Cir. 2017). Plaintiff may show the law to

be “clearly established” by citing an on-point Supreme Court or Tenth Circuit decision, or

by showing “the clearly established weight of authority from other courts must have found

the law to be” as Plaintiff maintains. Grissom v. Roberts, 902 F.3d 1162, 1168 (10th Cir.

2018) (internal quotation marks and citation omitted). An on-point decision means the

precedent is “particularized to the facts”—that it “involves materially similar facts” to the

case at hand. Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017); see also

Mullenix v. Luna, 577 U.S. 7, 12 (2015) (“The dispositive question is whether the violative

nature of particular conduct is clearly established. This inquiry must be undertaken in

light of the specific context of the case, not as a broad general proposition.” (internal

quotation marks and citations omitted)). In other words, on-point precedent cannot define

a right at “a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). There

does not have to be “a case directly on point, but existing precedent [nonetheless] must

have placed the statutory or constitutional question beyond debate.” Frasier v. Evans, 992

F.3d 1003, 1014 (10th Cir. 2021), cert. denied, 142 S. Ct. 427 (2021) (quoting al-Kidd, 563

U.S. at 741).

In recent years, the Supreme Court “has issued a number of opinions reversing

federal courts in qualified immunity cases.” White v. Pauly, 580 U.S. 73, 79 (2017). “The

Court has found this necessary both because qualified immunity is important to society as

a whole, and because as an immunity from suit, qualified immunity is effectively lost if a

case is erroneously permitted to go to trial.” Id. (internal quotation marks and citations

omitted). “[T]he defense of qualified immunity gives public officials the benefit of legal

doubts.” Donovan v. City of Milwaukee, 17 F.3d 944, 951 (7th Cir. 1994) (internal

quotation marks omitted). Thus, qualified immunity provides “ample room for mistaken

judgments” and protects all but “the plainly incompetent or those who knowingly violate

the law.” Malley v. Briggs, 475 U.S. 335, 314, 343 (1986).

Here, the Court will start with the first prong because of the overlap between the

parties’ Rule 12(b)(6) arguments and the requirement for Plaintiff to show the Individual

Defendants violated a statutory or constitutional right.

1. Qualified Immunity

i. Substantive Due Process – State-Created Danger Theory

In the context of injuries inflicted by private actors, the Supreme Court has

explained: “the Due Process Clauses generally confer no affirmative right to governmental

aid, even where such aid may be necessary to secure life, liberty, or property interests of

which the government itself may not deprive the individual.” DeShaney v. Winnebago

Cnty. Dep't of Soc. Servs., 489 U.S. 189, 196 (1989). “As a general matter . . . a State’s

failure to protect an individual against private violence simply does not constitute a

violation of the Due Process Clause.” Id. at 197. Since DeShaney, the Tenth Circuit has

recognized two exceptions to the general rule that state actors are not liable for private

violence: (1) the “special relationship doctrine”; and (2) the “danger creation” theory.

Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995). Plaintiff asserts her claims against

the School District and the Individual Defendants under the latter theory. [Doc. No. 20] at

5; [Doc. No. 21] at 13.

“Under the danger creation theory, state officials can be liable for the acts of third

parties where those officials ‘created the danger’ that caused the harm.” Marino v. Mayger,

118 F. App’x. 393, 401 (10th Cir. 2004) (quoting Armijo v. Wagon Mound Pub. Sch., 159

F.3d 1253, 1260 (10th Cir. 1998)). The danger creation theory is a “narrow exception”

that “applies only when a state actor ‘affirmatively acts to create, or increases a plaintiff's

vulnerability to, danger from private violence.’” Moore v. Guthrie, 438 F.3d 1036, 1042

(10th Cir. 2006) (quoting Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001)). “To

invoke the danger-creation exception, a plaintiff must establish as a threshold matter (1)

private violence, and (2) affirmative conduct on the part of the state in placing the plaintiff

in danger.” Hernandez, 734 F.3d at 1259; see also Est. of B.I.C. v. Gillen, 710 F.3d 1168,

1173 (10th Cir. 2013). If these preconditions are met, a plaintiff must then satisfy all

elements of a six-part test:

(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 specifically 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.

Christiansen v. City of Tulsa, 332 F.3d 1270, 1281 (10th Cir. 2003) (quoting Gonzales v.

City of Castle Rock, 307 F.3d 1258, 1263 (10th Cir. 2002)). Here, the Court does not

proceed to the six-part test because the “affirmative conduct” precondition is not met.

A state created danger claim cannot proceed without an “affirmative act” or

“affirmative conduct” by the state official. See, e.g., Graham v. Indep. Sch. Dist. No. I-89,

22 F.3d 991, 995 (10th Cir. 1994) (affirming dismissal of danger creation claims on a

motion to dismiss because “plaintiffs cannot point to any affirmative actions by the

defendants that created or increased the danger to the victims”); Gray v. Univ. of Colo.

Hosp. Auth., 672 F.3d 909, 920 (10th Cir. 2012) (“‘affirmative conduct’ is a necessary

precondition to such application” (quoting Graham, 22 F.3d at 995)). “The affirmative

conduct requirement typically involves conduct imposing ‘an immediate threat of harm,

which by its nature has a limited range and duration,’ and is ‘directed at a discrete plaintiff

rather than the public at large.’” Hernandez, 734 F.3d at 1259 (quoting Ruiz v. McDonnell,

299 F.3d 1173, 1183 (10th Cir. 2002)). Inaction, an omission to act, or even nonfeasance

cannot be the basis of a danger creation claim. Gillen, 710 F.3d at 1173 (“Our precedents

consistently conclude that mere negligence or inaction is not enough.”); Graham, 22 F.3d

at 995 (“alleged nonfeasance in the face of specific information which would mandate

action does not invoke the protections of the Due Process Clause.”).

Here, Plaintiff’s allegations regarding the Individual Defendants are sparse. In her

Response, Plaintiff argues the Individual Defendants “deliberately chose not to provide a

substitute/interim special education teacher despite knowing there was a need to do so.”

Resp. [Doc. No. 21] at 20. However, this allegation is not in the Complaint. Instead, the

Complaint alleges the School District “elected” to have the aides cover for Ms. Nelson and

does not identify the individual decision-maker. Id. ¶ 44. While Plaintiff alleges both

administrators were “responsible for the education program to D.C. under an IEP,” it is

unclear what this encompasses. Compl. [Doc. No. 2] ¶¶ 6, 7. For example, Defendant

Brent was on the “IEP team” that helped to review and finalize D.C.’s IEP. Id. at ¶ 32.

But the Complaint does not allege that either Defendant Lee or Defendant Brent were

responsible for hiring or staffing teachers or aides in the classrooms. This deficiency,

alone, is fatal to Plaintiff’s claim against the Individual Defendants.

However, assuming arguendo that the Individual Defendants were the decision-

makers for staffing D.C.’s special education classroom, the allegations set forth by Plaintiff

constitute, at most, a failure to act. For example, the Complaint does not allege that the

failure to staff a replacement teacher was “directed at a discrete” party—a key

characteristic of an “affirmative act.” Hernandez, 734 F.3d at 1259. Plaintiff, however,

argues that this failure to act could still rise to the requisite “affirmative action” necessary

because D.C.’s aide was a “safety valve for D.C.” that D.C. lost access to “because of the

Individual Defendants’ affirmative act of pulling Ms. Pierson from her full-time

supervision of D.C. so that she could cover for the short-staffed special education class.”

[Doc. No. 21] at 16.

In support of this “safety valve” argument, Plaintiff cites to a single case—Currier

v. Doran. 242 F.3d at 922. Currier, however, is distinguishable from the circumstances

presented here. In Currier v. Doran, the court suggested that “the state can be liable when

it affirmatively places private citizens in harm's way by removing what would otherwise

be safety valves” or by “cutt[ing] off potential sources of private aid.” Id. at 922. In that

case, the Tenth Circuit found affirmative conduct where a defendant social worker told the

victims’ mother to stop reporting abuse, even though the social worker had previously

received reports indicating abuse. Id. at 910, 921–22. The court held that by discouraging

reports of abuse, the caseworker “increased the children’s vulnerability to [] abuse” and

interfered with public protective services. Id. at 922. This factual backdrop is clearly

different from the situation here where there is no indication that the Individual Defendants

were aware of and ignored a history of harassment by the student that photographed D.C.

(or any other student).

Thus, the Complaint fails to allege facts that would plausibly demonstrate that the

Individual Defendants engaged in affirmative conduct that created or increased the danger

to D.C. Because this precondition is not met, the inquiry ends here. Accordingly, Plaintiff

has failed to assert a substantive due process violation by the Individual Defendants under

the state-created danger doctrine.

ii. Equal Protection – “Class of One”

Plaintiff asserts a “class of one” equal protection claim against the Individual

Defendants, alleging that D.C., as a special needs student, was subjected to “abuses” that

“students without disabilities” were not due to Dunbar’s special education classroom not

being adequately staffed. [Doc. No. 2] ¶¶ 85-86. As discussed below, Plaintiff’s

Complaint fails to plausibly allege a “class of one” claim against the Individual Defendants.

“In order to assert a viable equal protection claim, plaintiffs must first make a

threshold showing that they were treated differently from others who were similarly

situated to them.” Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998); Aramburu

v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997). While equal protection claims

typically arise from actions taken against certain protected classes, Plaintiff does not allege

D.C. was part of a protected class. Rather, Plaintiff seeks to proceed on a “class of one”

theory “where the plaintiff alleges that she has been intentionally treated differently from

others similarly situated and that there is no rational basis for the difference in treatment.”

Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011) (quoting Vill.

of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).

To succeed on a class of one theory, “a plaintiff must first establish that others,

similarly situated in every material respect were treated differently.” Id. (internal

quotations and citation omitted). Then, the plaintiff must “show this difference in treatment

was without rational basis, that is, the government action was irrational and abusive, and

wholly unrelated to any legitimate state activity.” Id. This standard is objective—if there

is a reasonable justification for the challenged action, the Court does not inquire into the

government actor's actual motivations. Id. Thus, this is an “exacting burden[]” because “it

is exceedingly difficult to demonstrate that any difference in treatment is not attributable

to a quirk of the plaintiff or even to the fallibility of administrators whose inconsistency is

as random as it is inevitable.” Jicarilla Apache Nation v. Rio Arriba Cnty., 440 F.3d 1202,

1213 (10th Cir. 2006).

Notably, the Tenth Circuit has taken a cautious approach in “class of one” cases,

wary of “turning even quotidian exercises of government discretion into constitutional

causes.” Jicarilla., 440 F.3d at 1209. The Tenth Circuit’s “circumspection in this regard

stems from the fact that when ‘looking only at one individual there is no way to know

whether the alleged difference in treatment was occasioned by legitimate or illegitimate

considerations without a comprehensive and largely subjective canvassing of all possible

relevant factors.’” A.M. v. Holmes, 830 F.3d 1123, 1167 (10th Cir. 2016) (quoting Jennings

v. City of Stillwater, 383 F.3d 1199, 1213–14 (10th Cir. 2004)). “It is therefore imperative

for the class-of-one plaintiff to provide a specific and detailed account of the nature of the

preferred treatment of the allegedly favored class.” Id.

As the Individual Defendants observe, numerous district courts in this circuit have

held that a “class of one” claim is not available in an educational setting.13 [Doc. No. 14]

at 26. Particularly applicable here, in Mueting v. Unified Sch. Dist. No. 443, the court

analyzed—and rejected—a class of one claim asserted by a public school student who had

autism and other disabilities. No. 2:24-CV-02381-HLT-BGS, 2025 WL 1311029 (D. Kan.

May 6, 2025). The Meuting plaintiff sued the school district and two administrators,

claiming they “intentionally treated [the student] differently from other similarly situated

students . . . by failing to provide qualified and trained teachers and staff . . . .” Id. But

unlike Plaintiff in this case who uses students “without disabilities” as the comparator

group, [Doc. No. 2] ¶ 86, the Meuting plaintiff claimed unequal treatment as compared to

13 See e.g., Mueting v. Unified Sch. Dist. No. 443, No. 2:24-CV-02381-HLT-BGS, 2025 WL

1311029, at *5 (D. Kan. May 6, 2025) (“an educational dispute is not the ideal setting for a class-

of-one theory”); Coffman v. Hutchinson Cmty. Coll., 2019 WL 3093506, at *15 (D. Kan. 2018)

(collecting cases); see also Quarrie v. Wells, 2019 WL 1466900, at *6 (D.N.M. 2019) (noting

that Coffman “collect[ed] cases and [found] class-of-one claims plainly unavailable in the public

education setting”).

other disabled students who, according to that plaintiff, “had access to qualified [school]

teachers and staff” when he did not. Id.

The court in Meuting ultimately agreed with its sister courts, declining to apply the

class of one theory on the grounds that it “is not a good fit for the public-education setting

. . . given [a student’s] highly individualized characteristics and needs.” Critically, the

court reasoned that it “is not plausible that [the student’s] treatment can meaningfully be

compared to the treatment of other students with disabilities.” Moreover, the Mueting court

explained that even if it “presume[d] that a class-of-one theory were appropriate in this

academic setting,” the plaintiff failed to state an equal protection claim. This is because

the plaintiff failed to “identify his comparators or explain in any way how they were

‘similarly situated in every material respect’” which was “fatal to his equal protection

claim.” Id. Specifically, because the plaintiff did “not identif[y] another student who

shares his characteristics,” he did not meet the requirement to “identify a comparator who

was treated differently,” causing the court to conclude that the administrators were entitled

to qualified immunity due to the failure to plead a viable constitutional violation. Id.

The Court agrees with the Meuting Court’s analysis. However, while the Court

agrees that an educational setting is likely not fertile ground for a “class of one” equal

protection claim, the Court declines to go so far as to hold it is unavailable in this case.

Instead, the Court finds that Plaintiff failed to state a claim for a class of one equal

protection violation.

Again, Plaintiff’s allegations against the two administrators are scant. She alleges

the Individual Defendants “each violated D.C.’s right to equal access by failing to ensure

that the special education classroom at Dunbar was adequately staffed . . . .” [Doc. No. 2]

¶ 85.14 Plaintiff further alleges that “[s]tudents without disabilities were not subjected to

the abuses D.C. was subjected to, as described herein.” Id. ¶ 86. “This difference in

treatment was due, in whole or in part, to D.C.’s status as a student with disabilities and is

unconstitutional.” Id.

These allegations are fatal to Plaintiff’s equal protection claim for several reasons.

First, they “are not entitled to the assumption of truth because they are entirely conclusory.”

Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012); see also Bixler v. Foster,

596 F.3d 751, 756 (10th Cir. 2010). Second, and most critically, the single sentence

referencing “students without disabilities” is the only mention of the alleged comparator(s)

in the Complaint. No specific students without disabilities are identified, and the

Complaint does not include a “specific and detailed account of the nature of the preferred

treatment of the allegedly favored class.” Holmes, 830 F.3d at 1167. Plaintiff’s Response

on this issue contains only two sentences of analysis to explain the basis for why she has

sufficiently pled her equal protection claim, and those two sentences cite the previously

quoted paragraph 86 as well as paragraph 43. [Doc. No. 20] at 21–22 (“While other

students were provided an educational environment that was adequately staffed, D.C. and

the other special needs students were not [citing ¶ 43].” That paragraph, however, only

14 As noted previously, despite the Complaint also referencing a failure to comply with D.C.’s IEP

as a basis for the equal protection claim, Plaintiff’s Response brief explicitly abandoned that

theory. Resp. [Doc. No. 21] at 7 (“none of Plaintiff’s claims are based on the Defendants’ failure

to adhere to D.C.’s IEP”) (emphasis by Plaintiff).

alleges that D.C.’s special education teacher “was on an extended absence from school due

to an injury, leaving no teacher for the special education students.” [Doc. No. 2] ¶ 43.

Further, Plaintiff provides no explanation or legal authority as to how D.C.—a

student on an IEP with an autism diagnosis and “substantial educational limitations”—

could be “similarly situated in all material respects” to a student without disabilities.

Kansas Penn Gaming, LLC, 656 F.3d at 1218. One court analyzing this issue declined to

find other disabled students to be a proper comparator class to a student on an IEP given

that, like here, “all of the students operated under their own IEPs, each of which addressed

that particular student’s different needs.” A.B. ex rel. B.S. v. Adams-Arapahoe 28J Sch.

Dist., 831 F. Supp. 2d 1226, 1254 (D. Colo. 2011) (“The different behavior, education, and

care plans in place for the students in [a special education] class makes them not similarly

situated for purposes of the showing an equal protection violation.”). Thus, students not

on an IEP at all are certainly not a proper comparator to D.C. in the circumstances presented

here. Plaintiff has failed to state a class of one equal protection claim.

iii. Equal Protection – Supervisory Liability

Plaintiff also asserts an equal protection claim based on a supervisory liability

theory, alleging the Individual Defendants exhibited “deliberate indifference to known

sexual harassment” by “failing to ensure that the special education classroom at Dunbar

was adequately staffed.” [Doc. No. 2] ¶¶ 81, 85. A plaintiff bringing a cause of action for

supervisory liability must show that there was an “affirmative link” between the supervisor

and the constitutional violation. George ex rel. Bradshaw v. Beaver Cnty., 32 F.4th 1246,

1255 (10th Cir. 2022). To show an “affirmative link” and establish supervisory liability, a

plaintiff must demonstrate: “(1) the defendant promulgated, created, implemented or

possessed responsibility for the continued operation of a policy that (2) caused the

complained of constitutional harm, and (3) acted with the state of mind required to establish

the alleged constitutional deprivation.” Id.; Dodds v. Richardson, 614 F.3d 1185, 1199

(10th Cir. 2010).

The Tenth Circuit has held that, in some circumstances, sexual harassment by a

third-party can subject an individual to supervisory liability for violation of the equal-

protection clause—"not for the harasser's conduct, per se, but for failure to take adequate

steps to stop it.” See Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1249–51

(10th Cir. 1999) (discussing one student's sexual harassment of another and stating, a

“supervisory employee may be held liable under section 1983 upon a showing of deliberate

indifference to known sexual harassment”). However, where the complained-of conduct

occurred by a third-party rather than a state actor, a supervisor may only be held liable

under § 1983 where the “supervisor or employer participates in or consciously

acquiesces in sexual harassment by an outside third party . . . .” Id. (internal quotations

and citations omitted) (emphasis in original). Critically, “‘liability under § 1983 must be

predicated upon a ‘deliberate’ deprivation of constitutional rights by the defendant’ and

not upon mere negligence.” Id. at 1251 (quoting Woodward v. City of Worland, 977 F.2d

1392, 1399 (10th Cir. 1992)).

Further, the Tenth Circuit has emphasized that because § 1983 is a “vehicle[] for

imposing personal liability on government officials,” there is a “need for careful attention

to particulars, especially in lawsuits involving multiple defendants.” Pahls, 718 F.3d at

1225 (10th Cir. 2013). It is “insufficient” to contend that “defendants”—generally—

infringed on a plaintiff’s rights. Id. Rather, a plaintiff must take care to “make clear

exactly who is alleged to have done what to whom . . . as distinguished from collective

allegations.” Id. (emphasis in original). This is doubly true in the context of supervisory

liability where the Tenth Circuit mandated that this “particularized approach applies with

full force when a plaintiff proceeds under a theory of supervisory liability.” Id. This is

because various officials “often have different powers and duties.” Id. (citations and

internal quotations omitted).

As the Tenth Circuit succinctly explained:

To make out [a] viable § 1983 [] claim[] and to overcome defendants'

assertions of qualified immunity, plaintiffs here must establish that each

defendant—whether by direct participation or by virtue of a policy over

which he possessed supervisory responsibility—caused a violation of

plaintiffs' clearly established constitutional rights, and that each defendant

acted with the constitutionally requisite state of mind. Plaintiffs must do

more than show that their rights “were violated” or that “defendants,” as a

collective and undifferentiated whole, were responsible for those violations.

They must identify specific actions taken by particular defendants, or specific

policies over which particular defendants possessed supervisory

responsibility, that violated their clearly established constitutional rights.

Failure to make this showing both dooms plaintiffs' § 1983 [] claims and

entitles defendants to qualified immunity.

Pahls, 718 F.3d at 1228 (10th Cir. 2013) (internal citations omitted).

Here, Plaintiff’s Complaint is devoid of allegations that would support the claim for

supervisory liability against the Individual Defendants based on the student-on-student

sexual harassment of D.C. For example, Plaintiff’s claim against the Individual Defendants

is solely based on their alleged failure to “adequately staff” the special education

classroom, but the Complaint lacks any allegation that the Individual Defendants were

responsible for hiring, staffing, or training special education teachers or aides.15 See

generally, [Doc. No. 2]. And as with the substantive due process claim, Plaintiff’s

allegations that both Defendant Lee and Defendant Brent were “responsible for the

education program provided to D.C. under an IEP” is insufficient, even taken in the light

most favorable to the Plaintiff. An individual could be responsible for “educating” or

developing curriculum without being responsible for administrative tasks such as hiring or

training. Further, as pled in the Complaint, the Individual Defendants are apparently both

equally responsible for the “education program” with no detail or allegations as to their

individual roles, assignments, or decision-making authority. This is simply not enough to

meet the required pleading standards, especially for a § 1983 claim. See Brown v. Montoya,

662 F.3d 1152, 1165 (10th Cir. 2011) (dismissing a § 1983 claim under supervisory liability

where the plaintiff used “collective allegations” and “fail[ed] to isolate the allegedly

unconstitutional acts of” each individual official).

To the extent Plaintiff alleges that the Individual Defendants “should have known”

that D.C. would be sexually harassed or harmed if there were inadequate supervision and

“failed to stop it,” [Doc. No. 2] ¶¶ 81, 83, such a theory has been rejected by the Tenth

Circuit. See Woodward, 977 F.2d at 1399 (“[I]f a plaintiff merely shows that a supervisor

15 While Plaintiff attempts to correct this deficiency in her Response, [Doc. No. 21] at 9, through

alleging that the Individual Defendants were responsible for training staff on how to supervise

special needs students, the Court declines to consider these allegations as they were not pleaded in

the four corners of the Complaint. Kearney, 195 F. App'x. at 721 (10th Cir. 2006); see also Daniels

v. Indep. Sch. Dist. No. (0-001) of Oklahoma Cnty., Oklahoma, No. CIV-17-974-R, 2018 WL

2145009, at *2 (W.D. Okla. May 9, 2018) (“The Court will not allow Plaintiff to expand the

allegations in her Complaint through argument of counsel in a response brief.” (citing Cnty. of

Santa Fe v. Pub. Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002)).

‘should have known’ that a subordinate was violating someone's constitutional rights and

it is not established that the supervisor actually had such knowledge, the plaintiff will not

have established a deliberate, intentional act by the supervisor to violate constitutional

rights. At most, the plaintiff will have established only that the supervisor was negligent in

not observing what he should have seen.”).

Here, there is no allegation that D.C. had been harassed before, that the student who

harassed D.C. had a history of similar misconduct, or that the Individual Defendants were

even aware of the staffing deficiencies in D.C.’s classroom. See generally [Doc. No. 2].

Accordingly, there is certainly nothing in the Complaint to suggest that Defendant Brent

or Defendant Lee deliberately or intentionally acted to violate D.C.’s constitutional rights.

Woodward, 977 F.2d at 1399. Similarly, there are no allegations that allow the Court to

infer that either Defendant Lee or Defendant Brent “consciously acquiesced” to sexual

harassment by a third-party student. Murrell, 186 F.3d at 1249–51. In fact, the Complaint

seems to suggest the opposite, at least as it pertains to Defendant Lee, who called Plaintiff

to inform her of the incident and promptly turned the matter over to the police. Compl.

[Doc. No. 2] ¶ 50–52. While the Complaint recites that D.C. was injured due to the

Individual Defendants’ “deliberate indifference to his rights,” such allegation is entirely

conclusory and may be disregarded. See Khalik, 671 F.3d at 1193 (10th Cir. 2012); see

also Bixler, 596 F.3d at 756 (10th Cir. 2010). Plaintiff has failed to state a claim against

the Individual Defendants under a theory of supervisory liability. Accordingly, the Court

finds that Plaintiff failed to state a claim against the Individual Defendants under Rule

12(b)(6) for a Fourteenth Amendment violation.

In conclusion, Plaintiff has not plausibly alleged any connection between Defendant

Lee or Defendant Brent and a constitutional violation. Accordingly, Plaintiff has failed to

overcome the Individual Defendants’ qualified immunity defense. Brown, 662 F.3d at

1166; Keith, 707 F.3d at 1188 (10th Cir. 2013). Based on this conclusion, the Court need

not address prong two of the qualified immunity analysis. White v. Lucero, 135 F.4th 1213,

1218 (10th Cir. 2025). Count III against the Individual Defendants is DISMISSED WITH

PREJUDICE.16

2. Municipal Liability of School District

Plaintiff also asserts her § 1983 claim against the School District, alleging it “had

unconstitutional customs or policies of allowing sexual assaults to occur to OPS special

needs students.” Compl. [Doc. No. 2] ¶ 93. Plaintiff further alleges that the School

District’s “policies and/or practices constituted disparate treatment of special needs

students and had a disparate impact on special needs students.” Id. ¶ 96. Specifically,

these policies or customs posed “substantial risks to the health and safety of special needs

students like D.C,” and the School District’s actions “evinced deliberate indifference to the

serious needs of special needs students” and “deliberate indifference to D.C.’s right to

equal protection under the Fourteenth Amendment. Id. ¶¶ 94–95, 98. The alleged policies

and customs are: failing to train and hire teachers and aides for the special education

classrooms, failing to respond to a need for training and supervision of agents that work

16 See, e.g., Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010) (instructing district court to

dismiss based on qualified immunity “with prejudice”); Lybrook v. Members of Farmington Mun.

Sch. Bd. of Educ., 232 F.3d 1334, 1341–42 (10th Cir. 2000) (affirming district court order granting

motion to dismiss with prejudice on qualified immunity grounds).

with students with disabilities, failing to ensure that all OPS employees followed students’

IEPs, and fostering “an atmosphere and a system of indifference to the needs of special

needs students like D.C.” Id. ¶ 93.

In its Motion to Dismiss, the School District argues Plaintiff has not established

municipal liability as “Plaintiff has not demonstrated the alleged conduct was the result of

failure to provide appropriate training or implement policies.” [Doc. No. 22] at 6. Further,

the School District argues that an “isolated incident does not sufficiently establish a

custom, policy or practice on the part of the School District.” [Doc. No. 13] at 14.

“To establish municipal liability under § 1983, ‘a plaintiff must show 1) the

existence of a municipal policy or custom, and 2) that there is a direct causal link between

the policy or custom and the injury alleged.’” Meadows v. City of Oklahoma City, 851 F.

App'x 127, 130 (10th Cir. 2021) (unpublished) (quoting Hinton v. City of Elwood, Kan.,

997 F.2d 774, 782 (10th Cir. 1993)). “In order to establish municipal, or in this case School

District, 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; Whitson v. Bd. of Cnty. Comm’rs of Cnty.

of Sedgwick, 106 F.4th 1063, 1066–67 (10th Cir. 2024).

So to avoid dismissal under Rule 12(b)(6), Plaintiff must allege sufficient facts to

plausibly demonstrate “(1) that a [School District] employee committed a constitutional

violation; and (2) that a [School District] policy or custom was the moving force behind

the constitutional deprivation.” Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir.

2004); see also Myers v. Oklahoma Cnty. Bd. of Cnty. Comm’rs, 151 F.3d 1313, 1320 (10th

Cir. 1998). The official policy “must be a policy statement, ordinance, regulation, or

decision officially adopted and promulgated by a municipality’s officers.” Murrell, 186

F.3d at 1249 (citations and internal quotations omitted). “Absent such an official policy, a

municipality may also be held liable if the discriminatory practice is so permanent and well

settled as to constitute a ‘custom or usage’ with the force of law.” Id. “Although the

existence or nonexistence of such a policy, practice, or custom is a question of fact for the

jury, it is not a fact that can be baldly asserted at the pleading stage.” Abila v. Funk, No.

CV 14-1002 JB/SMV, 2016 WL 9021834, at *17 (D.N.M. Dec. 14, 2016) (citations

omitted).

As an initial matter—and dispositive here—the absence of a constitutional violation

by the Individual Defendants precludes a finding of liability against the School District.

See Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775, 788 (10th Cir. 2013) (school district

not liable under Monell because plaintiffs did not establish that any district employee

committed a constitutional violation); Fenn v. City of Truth or Consequences, 983 F.3d

1143, 1150 (10th Cir. 2020). This is true under each of the three theories alleged against

the Individual Defendants.

Further, the court cannot infer any plausible claim that the Individual Defendants or

any unnamed school officials17 acted pursuant to a custom long accepted by

17 At times, the Complaint alludes generally to other, unnamed School District employees. See

e.g., Compl. [Doc. No. 2] ¶ 97.

the School District or that there was widespread unconstitutional conduct in the School

District that was so permanent and well settled as to constitute a custom or usage with the

force of law. See e.g., Powe v. City of Chicago, 664 F.2d 639, 650 (7th Cir. 1981) (“[T]he

mere allegation of a single act of unconstitutional conduct by a municipal employee will

not support the inference that such conduct was pursuant to official policies. On the other

hand, where the plaintiff alleges a pattern or a series of incidents of unconstitutional

conduct, then the courts have found an allegation of policy sufficient to withstand a

dismissal motion.”). Accordingly, the School District is entitled to dismissal of

Plaintiff’s 42 U.S.C. § 1983 claim, and it is DISMISSED WITH PREJUDICE.18

D. ADA Claim and Rehabilitation Act Claim

Plaintiff asserts claims against the School District for violations of Title II of the

ADA and § 504 of the Rehabilitation Act. Given the substantial overlap in these claims,

the Court analyzes them together. See Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque

Pub. Sch., 565 F.3d 1232, 1245 (10th Cir. 2009) (“Because these provisions involve the

same substantive standards, we analyze them together.”); Urban ex rel. Urban v. Jefferson

Cnty. Sch. Dist. R–1, 89 F.3d 720, 728 (10th Cir.1996) (“[W]e analyze [plaintiff's] ADA

claim by reference to [S]ection 504's standards . . .”).

“Title II of the ADA states, ‘no qualified individual with a disability shall, by reason

of such disability, be excluded from participation in or be denied the benefits of the

18 Dismissal with prejudice is appropriate where “granting leave to amend would be

futile.” Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (citing Grossman

v. Novell, Inc., 120 F.3d 1112, 1126 (10th Cir. 1997)).

services, programs, or activities of a public entity, or be subjected to discrimination by any

such entity.” J.V. v. Albuquerque Pub. Sch., 813 F.3d 1289, 1295 (10th Cir.

2016) (quoting 42 U.S.C. § 12132). A plaintiff must plausibly allege: “(1) that he or she

is a qualified individual with a disability; (2) that he or she was either excluded from

participation in or denied the benefits of some public entity's services, programs, or

activities, or was otherwise discriminated against by the public entity; and (3) that such

exclusion, denial of benefits, or discrimination was by reason of the plaintiff's

disability.” Id. (quoting Gohier v. Enright, 186 F.3d 1216, 1219 (10th Cir. 1999)).

Section 504 of the Rehabilitation Act states: ‘No otherwise qualified individual with

a disability . . . 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.’” Hollonbeck v. U.S. Olympic

Comm., 513 F.3d 1191, 1194 (10th Cir. 2008) (quoting 29 U.S.C. § 794(a)). To state a

claim under § 504, a plaintiff must plausibly allege “(1) plaintiff is handicapped under the

Act; (2) [s]he is ‘otherwise qualified’ to participate in the program; (3) the program receives

federal financial assistance; and (4) the program discriminates against plaintiff.” Id. To

prevail on their § 504 claim for compensatory damages, Plaintiff must prove intentional

discrimination; however, intentional discrimination does not require proof of “personal

animosity or ill will.” Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir.

1999). Instead, “intentional discrimination can be inferred from a defendant's deliberate

indifference to the strong likelihood that pursuit of its questioned policies will likely result

in a violation of federally protected rights.” Id.; see also A. J. T. by & through A. T. v.

Osseo Area Sch., Indep. Sch. Dist. No. 279, 605 U.S. ---, 145 S. Ct. 1647, 1649 (2025).

Plaintiff’s first basis for alleging these claims appears to stem from the denial of

“ASD specific services.” Specifically, Plaintiff alleges that the School District “failed to

reasonably accommodate D.C. because he needed ASD services to enjoy meaningful

access to the benefits of a public education, and [the School District was] on notice that he

needed those ASD specific services but did not provide those services.” Compl. [Doc. No.

2] ¶ 105. It is entirely unclear what “ASD specific services” refers to. The allegations

related to the ADA claim only vaguely recite that the School District “denied services,

programs and activities to D.C. that were full and equal to programs and activities provided

to non-disabled persons.” Id. ¶ 107. These allegations are not only vague, but they “are

not entitled to the assumption of truth because they are entirely conclusory.” Khalik, 671

F.3d at 1193 (10th Cir. 2012).

Setting aside those allegations, Plaintiff further alleges the School District

discriminated against D.C. “by failing to adequately staff the special education classroom

and not provide D.C. the adult aide he is required, in violation of D.C.’s documented

needs.” [Doc. No. 2] ¶ 117. Plaintiff’s Response echoes the same, stating the School

District failed to provide D.C. with “meaningful access to the bathroom” and “failed to

provide the simple accommodation of providing an aide to accompany D.C. to the

bathroom.” Resp. [Doc. No. 20] at 26, 28. However, D.C. clearly had “access” to the

bathroom, and the Complaint expressly states that the School District provided an aide to

D.C. who was present the day of the incident. Compl. [Doc. No. 2] ¶¶ 36, 44–46.

Further, Plaintiff’s argument that the School District’s short staffing constitutes

intentional discrimination is unavailing. Resp. [Doc. No. 20] at 26–27. Plaintiff devotes

little explanation to establishing intentionality, concluding only that intent must exist

because the School District was aware of D.C.’s IEP and he “was allowed to use the

restroom without an aide.” Id. The Court disagrees. Plaintiff has not plausibly alleged

that any understaffing by the School District was the result of intentional discrimination

against D.C. or other students with disabilities. Further, a single incident where D.C.

attended the bathroom unsupervised and without his aide does not rise to the level of

intentional discrimination. Clark v. Las Cruces Pub. Sch. Dist., No. 10-CV-307 WJ/GBM,

2010 WL 11619179, at *4 (D.N.M. Sept. 22, 2010) (dismissing a § 504 claim “because a

single instance in which a school district failed to comply with the terms of a student’s IEP

does not rise to the level of a violation of either the IDEA or the RA”).

Plaintiff’s second basis for her ADA and § 504 claims stems from peer-on-peer

disability-based harassment. Resp. [Doc. No. 20] at 27– 29. Both parties cite Sutherlin v.

Indep. Sch. Dist. No. 40 of Nowata Cnty., Okla., 960 F. Supp. 2d 1254, 1267 (N.D. Okla.

2013) for the five-part test that a plaintiff must satisfy in order to impose liability on a

school district for disability-based student-on-student harassment: “(1) the plaintiff is an

individual with a disability, (2) he or she was harassed based on that disability, (3) the

harassment was sufficiently severe or pervasive that it altered the condition of his or her

education and created an abusive educational environment, (4) the defendant knew about

the harassment, and (5) the defendant was deliberately indifferent to the harassment.” Id.

(citing S.S. v. E. Kentucky Univ., 532 F.3d 445, 454 (6th Cir. 2008)).

The School District argues that Plaintiff cannot meet several of these elements,

“namely that D.C. was harassed based on his disability, that the harassment was severe

enough to alter the condition of D.C.’s education, and that School District personnel were

aware of and deliberately indifferent to this disability-based harassment.” Mot. [Doc. No.

13] at 26–27. Plaintiff’s Response argues she “has alleged that D.C. was taken advantage

of by an older student specifically because of his disability.” [Doc. No. 13] at 20. The

Complaint, however, contains no such allegation, and a citation to the Complaint is

conspicuously absent after this sentence. Accordingly, the Court agrees with the School

District that Plaintiff has failed to establish these elements and therefore, failed to state a

claim for peer-on-peer disability-based harassment. Counts IV and V are DISMISSED

WITH PREJUDICE.19

E. State Law Claims

Plaintiff’s remaining claims are brought under Oklahoma state law. A district court

has discretion to adjudicate the merits of the state-law claims when “the values of judicial

economy, convenience, fairness, and comity” indicate that retaining jurisdiction over

the state-law claims would be appropriate. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,

349−50 (1988); see also 28 U.S.C. § 1367(c)(3) (providing that a district court may decline

to exercise supplemental jurisdiction over state law claims, where, as here, “the district

court has dismissed all claims over which it has original jurisdiction.”); City of Chicago v.

19 See N. Mill St., LLC v. City of Aspen, 6 F.4th 1216, 1235 n.22 (10th Cir. 2021) (observing that

“dismissal with prejudice is generally appropriate under Rule 12(b)(6) when amending the

complaint would be futile”).

Int'l Coll. of Surgeons, 522 U.S. 156, 172 (1997) (emphasizing that district courts have

significant discretion to decline supplemental jurisdiction); VR Acquisitions, LLC v.

Wasatch Cnty., 853 F.3d 1142, 1150 (10th Cir. 2017). But “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 . . . will point toward declining to exercise jurisdiction

over the remaining state-law claims.” Carnegie-Mellon, 484 U.S. at 350 n.7.

After considering the relevant factors, the Court declines to exercise jurisdiction

over Plaintiff’s remaining state law claims. See Crane v. Utah Dep't of Corr., 15 F.4th

1296, 1314 (10th Cir. 2021) (“When all federal claims have been dismissed, the court may,

and usually should, decline to exercise jurisdiction over any remaining state claims.”

(quoting Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011)); Barnett v. Hall,

Estill, Hardwick, Gable, Golden & Nelson, P.C., 956 F.3d 1228, 1238 (10th Cir. 2020)

(“The Supreme Court has encouraged the practice of dismissing state claims or remanding

them to state court when the federal claims to which they are supplemental have dropped

out before trial.”); Brooks v. Gaenzle, 614 F.3d 1213, 1230 (10th Cir. 2010) (Resolution of

Plaintiff's state law claims is “best left for a state court's determination.”). Accordingly,

Plaintiff's state law claims are DISMISSED WITHOUT PREJUDICE.

IV. Conclusion

IT IS THEREFORE ORDERED that Defendants Stephanie Lee and Dalawna

Brent’s Motion to Dismiss with Combined Brief in Support [Doc. No. 14] is GRANTED

and Plaintiff’s claims against Defendants Lee and Brent are DISMISSED WITH

PREJUDICE.

IT IS FURTHER ORDERED that Defendant Independent School District No. 1 of

Okmulgee County’s Partial Motion to Dismiss with Combined Brief in Support [Doc. No.

13] is GRANTED as to Plaintiffs claims arising under federal law—specifically Counts

II, IV, and V—and those claims are DISMISSED WITH PREJUDICE. The Court

DECLINES to exercise jurisdiction over the remaining state claims, so Counts I and II are

DISMISSED WITHOUT PREJUDICE.

IT IS SO ORDERED this 11" day of July, 2025.

Lez bi

SCOTT L. PALK

UNITED STATES DISTRICT JUDGE

39