The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
ASHLIE COMBS, et al.,
PlaintiffS,
v. Case No. 4:24-cv-1197-CLM
ETOWAH COUNTY BOARD OF
EDUCATION et al.,
Defendants.
MEMORANDUM OPINION
Mr. and Mrs. Combs sue the Etowah County Board of Education on
behalf of their minor child, C.C., after she suffered severe bullying at
school. (Doc. 1). The Combs also sue four educators in their individual and
official capacities: Superintendent Alan Cosby, Principal Allison Lee,
Assistant Principal Ray Cargill, and Counselor Cassie Newcomb. (Id.). In
response, all Defendants ask the court to dismiss. (Docs. 8–10). For the
reasons explained below, the court GRANTS all motions.
BACKGROUND
Because the Combs are defending against motions to dismiss, the
court takes their pleaded facts as true. Crowder v. Delta Air Lines, Inc.,
963 F.3d 1197, 1202 (11th Cir. 2020).
A. Bullying
C.C. is a student at Rainbow Middle School, a school within the
Etowah County School District. Two aspects of C.C.’s life are relevant
here: (1) C.C. is Catholic, and (2) C.C. has a learning disability that
necessitates her participation in an individualized education program
(“IEP”). The Combs allege that C.C.’s classmates bullied and harassed her
on three occasions based on both characteristics.
The first bulling incident occurred in October 2022 when a student
told C.C. that she would likely be removed from her home because of her
Catholic faith. The same student later told C.C. that Catholics are
“sinners, killers, devil worshippers, and slave owners” and encouraged
C.C. to convert to “real” Christianity. (Doc. 1, p. 4). Three months later,
C.C.’s classmates physically assaulted her during their Physical
Education class. According to the Combs,
those students surrounded C.C. and began kicking, slapping,
scratching, and shoving her. In addition, they repeatedly
ridiculed C.C. for her disability, calling her a “chicken shit,”
“bastard,” and “coward” who was “weak.” C.C. sustained
severe injuries after one of the students kicked her in the
back of the knee to prevent her from escaping the circle and
another slammed her body and head into a concrete wall.
(Id., p. 4). No adult was present during the assault. It was only after the
class period ended that Mrs. Stanfield (a Rainbow Middle teacher) sent
C.C. to the nurse, who in turn sent C.C. home for the day. Because of the
assault, C.C. was diagnosed with a concussion, put on bed rest for several
days, and received monitoring for seizure activity. The third and final
incident of bullying occurred in March 2023 when a male classmate
informed C.C. he knew where she lived because he followed her home from
school one day.
B. School Administration
C.C. informed Rainbow Middle’s school counselor Cassie Newcomb
about the bullying and harassment. Mrs. Combs also reported both the
Catholic comments and the assault to the Assistance Principal of Rainbow
Middle, Ray Cargill. In response, Cargill allegedly admitted that the
assault was not the first incident of Rainbow Middle teachers failing to
supervise their students. Mrs. Combs brought the assault back up several
weeks later in an IEP meeting with Rainbow Middle’s Principal (Allison
Lee) and requested the school file a police report. Principle Lee assured
Mrs. Combs that Rainbow Middle prohibits fighting and responds to
physical altercations with disciplinary actions.
Following the IEP meeting, Rainbow Middle filed an Alabama
Uniform Incident / Offense Report about C.C.’s assault with the Rainbow
City Police Department. Less than a month later, Mrs. Combs filed a
second Offense Report with the Gadsden Police Department against the
student that followed C.C. home. The next day, Principal Lee emailed the
Combs to inform them that C.C. was being “put on homebound and would
complete coursework remotely at home . . .” (Id., p. 6).1
C. Lawsuit
The Combs claim that the Etowah County Board of Education and
its employees “witnessed, ratified, provoked, and allowed misconduct to
go unpunished, and actually and proximately promulgated and/or
otherwise actually or proximately caused injury and psychological and
emotional distress to C.C.” (Id., p. 7). Based on this allegation, the Combs
assert the following claims:
Count Claim Defendants
I Negligent/ wanton hiring, training, Cosby, Lee, Cargill, and
and supervising fictitious defendants
II Negligent implementation and Cosby, Lee, Cargill,
maintenance of safe environment for Newcomb, and fictious
students defendants
III Breach of contract Cosby, Lee, Cargill,
Newcomb, and fictious
defendants
1 According to the School Board, Mrs. Combs requested in writing that C.C. switch to remote
learning. (Doc. 8, fn 1).
IV Title VI violation School Board, Cosby,
Lee, Cargill, Newcomb,
and fictious defendants
V ADA Title II violation the School Board, Cosby,
Lee, Cargill, Newcomb,
and fictious defendants
VI Rehabilitation Act § 504 violation the School Board, Cosby,
Lee, Cargill, Newcomb,
and fictious defendants
VII Fourteenth Amendment violation the School Board, Cosby,
(Due Process and Equal Protection) Lee, Cargill, Newcomb,
and fictious defendants
In response, all Defendants ask the court to dismiss for failure to
state any plausible claim. Rather than filing a response brief, the Combs
filed an affidavit of plaintiff’s counsel, Martha Lynn Sherrod. (Doc. 12). In
her affidavit, Ms. Sherrod testifies that “Defendant’s Motion to Dismiss .
. . is in actuality a Motion for Summary Judgement and as such is
premature[.]” (Id., ¶ 3). But Ms. Sherrod does not (and cannot) provide
facts supporting this contention; Defendants submit no matters outside of
their pleadings for the court’s consideration. Jones v. Auto. Ins. of
Hartford, Conn., 917 F.2d 1528, 1529 (11th Cir. 1990). The court thus
evaluates Defendants’ motions as motions to dismiss under Rule 12, not
motions for summary judgment under Rule 56.
STANDARD
“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) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. But those “[f]actual allegations must be enough
to raise a right to relief above the speculative level.” Twombly, 550 U.S.
at 555.
ANALYSIS
The court divides its analysis by Defendant, beginning with the
School Board and then turning to the individual Defendants. All claims
against fictious defendants fail because fictious party practice is generally
not allowed in federal court. Richardson v. Johnson, 598 F.3d 734, 738
(11th Cir. 2010).
1. Etowah County Board of Education
The Combs bring four claims against the School Board: an alleged
violation of Title VI of the Civil Rights Act, Title II of the ADA, Section
504 of the Rehabilitation Act, and the Fourteenth Amendment. (Doc. 1, p.
12–15). All claims against the School Board fail; the court thus GRANTS
the Board’s motion to dismiss. (Doc. 8).
A. Title VI: Under Title VI, “[n]o person in the United States shall,
on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance.” 42 U.S.C § 2000d. The Combs never pleaded C.C.’s race, color,
or national origin nor that C.C. was bullied, or that the School Board failed
to intervene in bullying, because of any such characteristic. Title VI
doesn’t prohibit discrimination based on religion or disability—the only
alleged protected characteristics C.C. possessed. So the Combs’ Title VI
claim fails as a matter of law and is therefore DISMISSED WITH
PREJUDICE.
B. ADA and Rehabilitation Act: “Discrimination claims under the
ADA and the Rehabilitation Act are governed by the same standards, and
the two claims are generally discussed together. [Generally,] [t]o state a
claim under Title II and § 504, a plaintiff must demonstrate (1) that he is
a qualified individual with a disability; (2) that he was either excluded
from participation in or denied the benefits of a public entity's services,
programs, or activities, or was otherwise discriminated against by the
public entity; and (3) that the exclusion, denial of benefit, or
discrimination was by reason of the plaintiff's disability.” J.S., III, a minor
by and through J.S. Jr. v. Houstin County Bd. of Educ., 877 F.3d 979, 985
(11th Cir. 2017) (internal citation and quotation omitted).
Though the Eleventh Circuit has not done so, at least one district
court within the Eleventh Circuit modified the usual prima-facie
framework for peer-on-peer conduct claims brought against school boards.
See C.D.J. by and through Kozlowski v. Montgomery County Bd. of Educ.,
No. 2:23-cv-706, 2024 WL 3240567, *4 (M.D. Ala. June 28, 2024). In that
case, the court required the plaintiff to “allege that (1) [s]he has a
disability, (2) [s]he was harassed based on that disability, (3) the
harassment was sufficiently severe or pervasive that it altered the
condition of h[er] education and created an abusive education
environment, (4) the [school board] knew about the harassment, and (5)
the [school board] was deliberately indifferent to the harassment.” Id.
Under either framework, Combs’ ADA and §504 claims fail. Though
the Combs claim C.C. is disabled, their complaint fails to plausibly allege
any adverse action taken because of that disability. (Doc. 1, ¶ 12). While
the Combs assert C.C.’s bullying was “because of her disability,” they
provide no factual assertions to support such a legal conclusion. (Id.). For
instance, the Combs allege three instances of peer harassment: the
Catholic comments, the assault, and the following-home incident. But the
Combs never provide factual support to show any of these instances were
because of C.C.’s learning disability. See generally (doc. 1). Nor do the
Combs allege the Board or its employees failed to protect (or otherwise
discriminated against), C.C. because of her disability. (Id.). The Combs
fail to connect any adverse action to C.C.’s learning disability, so both
claims against the Board fail. Because the Combs may sufficiently plead
their ADA and §504 claims with more detail, the court DISMISSES these
claims WITHOUT PREJUDICE.
C. Fourteenth Amendment: The Combs next allege violations of the
Fourteenth Amendment’s Equal Protection Clause, Substantive Due
Process, and Procedural Due Process. (Doc. 1, p. 16). The Combs’
Fourteenth Amendment claim fails on all theories because the Board is
protected by Monell v. Dep’t of Soc. Services. 436 U.S. 658 (1978). Under
Monell, “a local government [including a school board] may not be sued
under § 1983 for an injury inflicted solely by its employees or agents.
Instead, it is when execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said
to represent official policy, inflicts the injury that the government as an
entity is responsible under § 1983.” Id. at 694.
To overcome Monell and assert constitutional claims against the
Board, the Combs must sufficiently allege that C.C. “has been deprived of
constitutional rights by either an express policy or a widespread practice
that, although not authorized by written law or express municipal policy,
is so permanent and well settled as to constitute a custom and usage with
the force of law.” Cuesta v. Sch. Bd. of Miami-Dade County, Fla., 285 F.3d
962, 966 (11th Cir. 2002) (internal quotation omitted). “Even in the
absence of an express policy or custom a local government body can be
held liable for a single act or decision of a municipal official with final
policymaking authority in the area of the act or decision.” Id. at 968
(internal quotation omitted).
The Combs fail to allege the Board maintained an official policy or
unofficial custom that caused C.C. constitutional harm. The Combs also
fail to assert that any individual involved had final policymaking
authority or what decisions that individual made that constitutionally
harmed C.C. To overcome Monell, the Combs must plead either an official
School Board policy, an unofficial Board custom, or specific acts done by
specific Defendants possessing a specific type of authority that caused
C.C. the deprivation of a specific constitutional right. Conclusory
allegations that “Defendants” harmed C.C. is insufficient to plausibly
allege municipal liability. See (doc 1, p. 16–17).
Because the Combs could overcome Monell with more artful
pleading, the court DISMISSES their Fourteenth Amendment claim
against the Board WITHOUT PREJUDICE.
2. Individual Defendants
On top of the School Board, the Combs sue Superintendent Alan
Cosby, Principal Allison Lee, Assistant Principal Ray Cargill, and
Counselor Cassie Newcomb in their personal and official capacities. The
Combs pursue state and federal law claims against these Defendants. But
as explained below (and as explained above regarding the Board) all
federal claims fail. The court therefore defers evaluating the Combs’ state-
law claims until the Combs sufficiently plead federal jurisdiction.
A. Official Capacity: As the individual Defendants highlight, “[i]n
contrast to individual capacity suits, when an officer is sued under Section
1983 in his or her official capacity, the suit is simply ‘another way of
pleading an action against an entity of which an officer is an agent.’ . . .
Because suits against a municipal officer sued in his official capacity and
direct suits against municipalities are functionally equivalent, there no
longer exists a need to bring official-capacity actions against local
government officials, because local government units can be sued directly
(provided, of course, that the public entity receives notice and an
opportunity to respond).” Busby v. City of Orlando, 931 F.2d 764, 776
(11th Cir. 1991) (internal citations omitted). Because the individual
Defendants were all employed by their co-defendant, the Etowah County
Board of Education, the Combs’ official capacity claims are redundant.
The court thus DISMISSES such claims WITHOUT PREJUDICE.
B. Personal Capacity: Having dismissed all official capacity claims,
the court turns its attention to the Combs’ four federal claims against the
individual Defendants.
o Title VI: The Combs’ Title VI claim against Superintendent
Cosby, Principal Lee, Assistant Principal Cargill, and Counselor
Newcomb fail for the same reasons Title VI fails against the School Board:
the complaint contains no facts showing any individual Defendant treated
C.C. a certain way because of her race, color, or national origin. Even if
the complaint did allege race or national origin-based discrimination,
Title VI doesn’t provide a cause of action against individuals. Shotz v. City
of Plantation, 344 F.3d 1161, 1170 (11th Cir. 2003). So the court
DISMISSES WITH PREJUDICE the Combs’ Title VI claim in its
entirety.
o ADA and Rehabilitation Act: Similarly, the Combs’ ADA and
§504 claims fail against the individual Defendants because “there is no
individual capacity liability under Title II of the ADA or RA.” Badillo v.
Thorpe, 158 Fed. Appx. 208, 211 (11th Cir. 2005). The Combs’ ADA and
the Rehabilitation Act claims against the individual Defendants in their
personal capacities thus fail and are DISMISSED WITH PREJUDICE.
o Fourteenth Amendment: Finally, the court DISMISSES the
Combs’ Fourteenth Amendment claim WITHOUT PREJUDICE. In
Alabama, principals, vice principals, superintendents, and counselors are
state employees that may benefit from qualified immunity. See Hill v.
Cundiff, 797 F.3d 948, 978–80 (11th Cir. 2015); see also T.R. by and
through Brock v. Lamar Cnty. Bd. of Educ., 25 F.4th 877 (11th Cir. 2022).
State officials sued in their individual capacities for violating federal law
are generally shielded from liability insofar as their conduct occurred
while performing a discretionary function and didn’t violate clearly
established law of which a reasonable person would’ve known. See Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982).
All complained of actions (supervising students, counseling
students, disciplining students, responding to parental complaints,
creating and implementing school policies, reporting school altercations
etc.) are within the discretionary authority of principals, vice principals,
superintendents, and counselors. Hinson v. Bias, 927 F.3d 1103, 1116
(11th Cir.) (“The term ‘discretionary authority’ covers ‘all actions of a
governmental official that (1) were undertaken pursuant to the
performance of his duties, and (2) were within the scope of his authority.’”)
(internal citation omitted). And the Combs fail to plausibly allege a
deprivation of C.C.’s constitutional rights. According to the Combs,
C.C. suffered peer-based harassment and bullying on the
basis of her disability and religion. The harassment and
bullying were sufficiently severe or pervasive to alter the
condition of C.C.’s education and create an abusive
educational environment. Indeed, C.C. was deprived of
property without due process when she was forced to go on
homebound where she completed coursework at home
through the online learning program Odysseyware.
Defendants had actual notice of the peer-based harassment
and bullying of C.C. or would have gained such notice if they
had exercised due and proper diligence. Defendants, with
deliberate indifference, failed or refused to respond to the
peer-based harassment and bullying of C.C. Indeed, despite
multiple reports of the peer-based harassment and bullying,
Defendants not only did nothing to prevent further harm to
C.C. but also blamed her for her peers’ conduct. Defendants’
behavior was so egregious as to shock the conscience in that
the conduct was brutal and offensive to human dignity so as
to violate C.C.’s right to substantive due process. There is a
causal connection between Defendants’ conduct (acts and/or
omissions) and the deprivation of C.C.'s Constitutional
rights. As a direct and proximate result of Defendants' acts
and/or omissions in violation of C.C.’s federal civil rights,
C.C. has suffered emotional, physical, and financial injuries.
(Doc. 1, ¶¶ 61–66).
Though the Combs use language associated with Fourteenth
Amendment claims, the complaint fails to allege any facts to support such
language. Put differently, the Combs never explain the who, what, or how
of the alleged constitutional infringement. The complaint doesn’t
attribute any action to Superintendent Cosby, Principal Lee, Assistant
Principal Cargill, or Counselor Newcom that constitutionally harmed C.C.
The Combs also don’t plead which of C.C.’s constitutional rights
Defendants allegedly infringed on. Because of the discretionary nature of
all involved actions and the failure to plausibly allege constitutional
harm, the individual Defendants all benefit from qualified immunity on
the Combs’ Fourteenth Amendment claims.
CONCLUSION
To sum up, the Combs fail to plausibly state any federal claim
against the Board, Superintendent Cosby, Principal Lee, Assistant
Principal Cargill, or Counselor Newcomb. The court thus defers ruling on
any state-law claim until the Combs sufficiently plead a federal claim to
invoke federal jurisdiction. The court DISMISSES WITHOUT
PREJUDICE the following federal claims:
e ADA violation against the Board,
e Rehabilitation Act violation against the Board,
e Fourteenth Amendment violation against the Board,
e All official capacity claims against the individuals, and
e Fourteenth amendment violation against the individuals in
their personal capacities.
The court will allow the Combs one chance to replead these claims.
If the Combs wish to file an amended complaint, they must do so on or
before August 1, 2025.
All other federal claims fail as a matter of law and are therefore
DISMISSED WITH PREJUDICE.
Done and Ordered on July 16, 2025.
L. MAZE
UNITED STATES DISTRICT JUDGE
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