Samuel v. Southern Boone School District

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

TAWNYA SAMUEL, and )

MICHAEL SAMUEL, )

on behalf of their minor child, C.S., )

)

Plaintiffs, )

)

vs. ) Case No. 2:24-cv-04130-MDH

)

SOUTHERN BOONE SCHOOL DISTRICT, )

et al., )

)

Defendants. )

ORDER

Before the Court are Defendants’ motion for judgment on the pleadings (Doc. 24) and

motion to dismiss. (Doc. 25). The motions are ripe for review.

BACKGROUND

Plaintiffs, Tawnya Samuel and Michael Samuel, are the parents and guardians of C.S., a

minor. C.S. is enrolled as a student at Southern Boone Middle School. Plaintiffs have brought their

claims against the following defendants: Southern Boone School District; Board of Education of

the Southern Boone School District; Justin Griffith, individually and in his official capacity, as the

Principal of Southern Boone Middle School; William Beaudoin, individually and as the Vice

Principal of Southern Boone Middle School; Ashley Bruce, individually and as the Vice Principal

of Southern Boone Middle School; Melisa Pulkrabek, individually and as a teacher at Southern

Boone Middle School; Tara Blue, individually and as a teacher at Southern Boone Middle School;

Shelby Contrades, individually and as a teacher at Southern Boone Middle School; Julie O’Reilly-

Chapman, individually and as a librarian of Southern Boone Middle School; Ashely Roth,

individually and as a counselor of Southern Boone Middle School; Brett Strauser, individually and

as a counselor of Southern Boone Middle School; Carolyn Pridemore, individually and as the 504

Coordinator; and Dr. Tim Roth, individually and as the Interim Superintendent.

Plaintiffs’ Complaint brings twelve counts against the District, the Board, and eleven

employees of the District. The Claims are Count I - 42 U.S.C. §1983 (against all Defendants);

Count II - Disability Discrimination in Violation of Section 504 of the Rehabilitation Act of 1973,

29 U.S.C. §794 (against all Defendants); Count III - Violation of R.S.Mo. § 160.775 and District

Policies (against all Defendants); Count IV - Violation of Ministerial Duties (against all

Defendants); Count V - Discrimination in Public Accommodations (against all Defendants); Count

VI - Negligence (against all Defendants); Count VII - Intentional or Reckless Infliction of

Emotional Distress (against all Defendants); Count VIII - 42 §1983 Deprivation of Federal Rights

(against all Defendants); Count IX - State Created Danger (against all Defendants); Count X -

Supervisory Liability for Participation In and Encouragement of Unconstitutional Misconduct by

Subordinates (42 U.S.C. §1983) (against Defendants Griffith, Beaudoin, Bruce, and T. Roth);

Count XI - Denial of Substantive Due Process through Failure to Train and Supervise (42 U.S.C.

§1983) (against all Defendants); Count XII Denial of Substantive Due Process through a Policy,

Custom and Practice of Failing to Respond or Prevent Bullying in its Schools (42 U.S.C. §1983)

(against all Defendants).

Plaintiffs’ Complaint is 67 pages and includes over 85 paragraphs of factual allegations.

For purposes of this Order the Court does not reiterate every allegation set forth in the Complaint.

However, the Court construes the allegations in a light most favorable to Plaintiffs.

Plaintiffs allege C.S. is a person with a disability as the term is used under Section 504 of

the Rehabilitation Act of 1973 and under the Americans with Disability Act. C.S. has been

diagnosed and suffers from Attention Deficit Hyperactivity Disorder (“ADHD”), has developed

anxiety, and depression.

C.S. has been enrolled in the Southern Boone Middle School. Plaintiffs allege the District

has failed to follow, and has violated, C.S.’s 504 Plan. Plaintiffs contend Defendants refuse to

adequately follow and provide reasonable accommodations to C.S. The specific details of the

lengthy alleged violations committed by Defendants are contained in the Complaint. The

allegations range from discrimination, failure to follow policies, bullying (including verbal and

physical allegations), harassment, failure to accommodate lunch seating, failure to accommodate

class placement, failure to implement and follow the 504 Plan, retaliation, and deliberately

“ruining” C.S.’s chances of acceptance to an alternative school. Plaintiffs also allege C.S. was

treated differently than similarly situated peers and that Defendants were put on notice of the

hostile, abusive, and unsafe environment.

Plaintiffs’ claim Defendants were aware of C.S.’s physical and mental decline but did

nothing to prevent, and in some instances promoted, the bullying and harassment. Plaintiffs allege

Defendants were not only aware of the incidents but also willfully called out C.S. in front of other

students in a way that contributed to the hostile environment. Plaintiffs allege others have reported

acts of bullying, harassment, and discrimination and were treated differently than C.S. For

example, Plaintiffs allege after C.S. made reports he was blamed, ostracized, and discriminated

against by Defendants. Plaintiffs allege the harassment and bullying of C.S. was so severe and had

such a negative effect on him that his pediatrician notified the school of the issues. The Court again

states this is a generalization of the allegations and that further specificity is unnecessary for

purposes of ruling on the pending motions.

Defendants move to dismiss Plaintiffs’ Complaint arguing: Plaintiffs’ Section 1983 claims

fail to state a claim because Plaintiffs have failed to allege facts that Defendants’ conduct deprived

C.S. of any constitutionally protected federal right, that the District’s training and supervision were

inadequate, or that Defendants were deliberately indifferent. Defendants also contend Plaintiffs

fail to identify a constitutional violation. Defendants argue Plaintiffs’ claims also fail to state a

claim because Plaintiffs have failed to allege any facts that C.S. was denied the benefit of a public

education or how Defendants failed to offer or implement reasonable accommodation under C.S.’s

504 plan. Defendants’ additional arguments are addressed herein.

STANDARD OF REVIEW

The Court applies the same standard on a motion for judgment on the pleadings as in a Fed.

R. Civ. P. 12(b)(6) motion for failure to state a claim. Westcott v. City of Omaha, 901 F.2d 1486,

1488 (8th Cir.1990) (“[W]e review this 12(c) motion under the standard that governs 12(b)(6)

motions.”).

To survive a motion to dismiss, the complaint must state a claim to relief that is plausible

on its face, meaning that the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged. See Ashcroft v. Iqbal,

556 U.S. 662,678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A pleading that offers

labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.”

Ash v. Anderson Merchandisers, LLC, 799 F.3d 957, 960 (8th Cir. 2015) (internal quotations and

citation omitted). The court “must take all factual allegations [made by the plaintiff] as true when

considering a motion to dismiss.” K.J. as Next Friend for K.D. v. St. Joseph Sch. Dist., No. 18-

6113-CV-SJ-SRB, 2019 WL 267743, at *2 (W.D. Mo. Jan. 18, 2019); citing, Great Plains Trust

Co. v. Union Pac. R.R. Co., 492 F.3d 986, 995 (8th Cir. 2007); and Data Mfg., Inc. v. United

Parcel Service, Inc., 557 F.3d 849, 851 (8th Cir. 2009) (noting “[t]he factual allegations of a

complaint are assumed true and construed in favor of the plaintiff, even if it strikes a savvy judge

that actual proof of those facts is improbable”). The Court reviews the Complaint in a light most

favorable to Plaintiffs to determine whether they have stated a claim.

DISCUSSION

1. Southern Boone School District and the Board of Education of the Southern

Boone School District’s Motion for Judgment on the Pleadings as to Count VI -

Negligence and Count VII - Intentional or Reckless Infliction of Emotional

Distress.

Defendants Southern Boone School District (“District”) and The Board of Education of the

Southern Boone School District (“Board”), move for judgment on the pleadings on Counts VI and

VII. Plaintiffs allege in Count VI and VII of their Complaint that “[u]pon information and belief,

the Defendants and the Board and the School District have waived the protections afforded under

Sovereign Immunity for negligence claims through the purchase of liability insurance designed to

ensure these particular types of claims.”

Defendants’ motion for judgment on the pleadings cites the relevant insurance policy,

which states, in part:

EXCLUSIONS

1. This Coverage Agreement does not apply to and we are not liable for:

k. any Claim barred by the doctrines of sovereign immunity or official immunity

(other than attorneys’ fees and other litigation expense incurred in defending the

Claim) and nothing in this Plan Document shall constitute any waiver of whatever

kind of the defense of sovereign immunity; …

Counts VI and VII are premised on the basis that the District’s purchase of liability

insurance acted as a waiver of its sovereign immunity protections. However, the insurance policy

expressly waives coverage of any such claim against the District and the Board. In response,

Plaintiffs argue the insurance policy attached to the initial motion is not complete and is unclear.

Defendants have subsequently attached a complete copy of the insurance agreement in Doc. 34-1.

Pursuant to Missouri Revised Statute section 537.600, public entities are entitled to

sovereign immunity from tort claims: “[s]uch sovereign or governmental tort immunity as existed

at common law in this state . . . shall remain in full force and effect . . . .” It is well-established that

a public school is a state entity. Patterson v. Meramec Valley R-III School District, 864 S.W.2d

14, 15 (Mo. Ct. App. 1993). It is also well-established that a school board is a state entity entitled

to the protection of sovereign immunity. Citing Lehmen v. Wansing, 624 S.W.2d 1, 2 (Mo. 1981).

Wherefore, after a review of the record before the Court, the Court hereby GRANTS the

motion in favor of Defendants Southern Boone School District and The Board of Education of The

Southern Boone School on Counts VI and VII.1

2. Motion to Dismiss § 1983 Claims – Counts I, VIII, X, XI, AND XII.

To begin, the Court reasserts that its current review is whether Plaintiffs have alleged

enough to state a claim to survive a motion to dismiss. Whether Plaintiffs may ultimately prevail

on any such claim(s), or whether summary judgment may be appropriate on any of the claim(s), is

not the issue presently before the Court. Many of Defendants’ arguments go to the merit of whether

Plaintiffs may ultimately be able to “prove” any such claims. This is not the current analysis before

the Court.

Defendants contend Plaintiffs’ Section 1983 claims in Counts I, VIII, IX, X, XI, and XII

fail to state a claim because Plaintiffs have failed to allege facts to demonstrate that Defendants’

conduct deprived C.S. of any constitutionally protected federal right, that the District’s training

1 These Counts would also be dismissed in accordance with the arguments set forth in Defendants’

Motion to Dismiss these claims against these Defendants.

and supervision were inadequate, that Defendants were deliberately indifferent to the conduct of

their agents, or that Defendants failed to follow their anti-bullying policy. Defendants argue

Plaintiffs also failed to identify any actual constitutional violation. Finally, Defendants contend

Plaintiffs’ Section 1983 claims against the individual Defendants fail because they are barred by

immunity.

A. Section 1983 Claims – Constitutionally Protected Right.

Plaintiffs bring several counts - Counts I, VIII, X, XI, and XII - for alleged violations of

42 U.S.C. §1983. To establish a Section 1983 claim, a plaintiff must show: “‘(1) that the

defendant(s) acted under color of state law, and (2) that the alleged wrongful conduct deprived the

plaintiff of a constitutionally protected federal right.’” Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir.

2010) (internal citation omitted).

First, Defendants argue that even if Plaintiffs can establish the first element of their Section

1983 claim, Plaintiffs’ Complaint fails to state a claim that the alleged wrongful conduct deprived

C.S. of a constitutionally protected federal right.

Defendants state that Plaintiffs make two general allegations: 1) that C.S. was bullied by

fellow students and that Defendants failed to properly address the bullying; and 2) that Defendants

failed to properly implement C.S.’s 504 Plan. Plaintiffs argue in both situations that Defendants

treated C.S. less favorably than other similarly situated students. As the Court previously noted,

the factual allegations contained in the Complaint are extensive. While Defendants attempt to

categorize the claims, Plaintiffs’ allegations go beyond Defendants’ characterization.

Plaintiffs allege Defendants offered C.S. no option except to be removed from all his

classes, his favorite teachers, and friends. Plaintiffs allege this, in part, deprived him of his

education and violated his rights. Plaintiffs further contend this option was not in accordance with

how other similarly situated students were treated. It is alleged students who are similarly situated

are granted more options than removing a student from all his classes. In addition, Plaintiffs allege

C.S. was denied the benefits of a public education as Defendants failed to offer or implement

reasonable accommodation under C.S.’s Plan and that Defendants were deliberately indifferent.

Again, the Court does not reiterate all the allegations contained in the Complaint.

Defendants contend Plaintiffs cannot establish the alleged conduct amounted to a

substantive due process violation. In order to prove that the alleged conduct amounted to a

substantive due process violation, Plaintiffs must show that the conduct “shocks the conscience.”

Citing Golden ex rel. Balch v. Anders, 324 F.3d 650, 652-653 (8th Cir. 2003). “The action must

be ‘truly irrational’ and consist of conduct that is more than merely arbitrary, capricious, or

violative of state law. Id. at 652 (internal citations omitted). Substantive due process “is concerned

with violations of personal rights…so severe…so disproportionate to the need presented and…so

inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted

to brutal and inhumane abuse of official power literally shocking to the conscience.” Id. at 653.

Negligence is not sufficient to establish substantive due process liability. See Nicini v. Morra, 212

F.3d 798, 810 (3d Cir. 2000).

Defendants argue Plaintiffs’ allegations they failed to properly implement C.S.’s 504 Plan

or to remedy the alleged bullying against him do not rise to the level of conduct that is “literally

shocking to the conscience.” Defendants contend Plaintiffs have failed to establish any facts

beyond negligence and, as such, their Section 1983 claims fail as a matter of law. However, this

argument is premature. Plaintiffs have sufficiently alleged the elements of their claims and

included allegations that if proven true would state a claim under § 1983. Many of Defendants’

arguments rely on whether Plaintiffs have any evidence to support their allegations. Those

arguments are better suited for a motion for summary judgment.2

Plaintiffs have alleged the deprivation of a constitutionally protected right. They have

alleged claims for failure to supervise and train under § 1983. Plaintiffs have alleged

unconstitutional policy, custom, or practice, and deliberate indifference. Again, while the Court

makes no ruling on whether these claims can be substantiated, Plaintiffs have alleged facts to

survive a motion to dismiss the § 1983 claims.

This same analysis applies to the training and supervision claims and the claim of

supervisory liability. Supervisory liability is limited in § 1983 actions. Ottman v. City of Indep.,

Mo., 341 F.3d 751, 761 (8th Cir. 2003). A “supervisor incurs liability for a violation of a federally

protected right when the supervisor is personally involved in the violation or when the supervisor's

corrective inaction constitutes deliberate indifference toward the violation.” Id. “The supervisor

must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear

of what [he or she] might see.” Id. A supervisor may be held individually liable under §1983 if he

or she directly participates in the constitutional violation. See Riehm v. Engelking, 538 F.3d 952,

962–63 (8th Cir.2008).

To establish personal liability under § 1983 for supervisory defendants, a plaintiff must

allege specific facts of personal involvement in, or direct responsibility for, a deprivation of

constitutional rights. See 42 U.S.C.A. §1983; and Marsh v. Phelps Cnty., 902 F.3d 745, 754 (8th

Cir. 2018). If a supervising official who had no direct participation in an alleged constitutional

2 For example, Defendants argue Plaintiffs’ claims are insufficient because an inference cannot be

drawn that the complained of conduct resulted from an unconstitutional policy or custom.

However, Plaintiffs have alleged the District had policies in place in their allegations. Whether

Plaintiffs can actually identify or provide evidence of any such policies will be determined at a

later date. This same argument applies to Plaintiffs’ allegations of similarly situated students.

violation is sued for failure to train or supervise the offending actor, the supervisor is entitled to

qualified immunity unless plaintiff proves that the supervisor (1) received notice of a pattern of

unconstitutional acts committed by a subordinate, and (2) was deliberately indifferent to or

authorized those acts. Id.

Plaintiffs must provide evidence to support the allegations related to training, Defendants’

individual actions, supervision, and other claims. Plaintiffs have a high burden to establish their

claims but at this stage have pled enough to survive the pending motion to dismiss. At this time

the Court makes no ruling on whether Plaintiffs may ultimately prevail on their claims. Any such

determination will depend on whether Plaintiffs have any evidence to support the allegations.

B. Qualified Immunity.

The doctrine of qualified immunity protects government officials “from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). The question of whether a defendant should be accorded qualified immunity is a question

of law. Hawley v. Nelson, 968 F. Supp. 1372, 1387 (E.D. Mo. 1997), aff’d, 141 F.3d 1168 (8thCir.

1998). “Qualified immunity is available (1) if the law as it relates to the relevant facts was not

clearly established or (2) if a reasonable official could have believed the alleged conduct was

lawful in light of the clearly established law.” Id. (citing Harlow, 457 U.S. at 818-19). In

determining whether the law is clearly established, the court must analyze whether the law “is

sufficiently clear in the context of the specific facts alleged so that a reasonably competent official

would understand that what he or she is doing violates the individual’s rights.” Id. (citing Anderson

v. Creighton, 483 U.S. 635, 640-41 (1987)). “Qualified immunity protects government officials

from suit unless their conduct violates a clearly established constitutional right of which a

reasonable person in the defendant's position would have known. The purpose of the doctrine is to

allow public officers to carry out their duties as they believe are correct and consistent with good

public policy.” Doe v. South Iron R-1 School Dist., 453 F.Supp.2d 1093, 1096 (E.D. Mo. 2006)

(internal citations and quotations omitted)

Defendants argue Plaintiffs have failed to plead facts that establish that a reasonably

competent administrator, counselor, or teacher would understand that they were violating C.S.’s

rights under the Equal Protection Clause of the Constitution. Defendants again argue Plaintiffs’

Complaint fails to allege facts sufficient to support a constitutional violation.

The Court finds Plaintiffs have pled enough to survive a motion to dismiss. The Court

considers Plaintiff’s allegations in a light most favorable to them. The Court makes no

determination on whether Plaintiffs will be able to provide evidence to support their allegations

and makes no ruling on whether Plaintiffs may ultimately prevail on their claims, or whether

summary judgment may be appropriate once discovery is completed.

3. Motion to Dismiss Individual Tort Claims.

A. Immunity.

Defendants argue the tort claims against the individual Defendants in their official capacity

are barred by the doctrine of sovereign immunity. The doctrine of sovereign immunity protects

individual employees of the public entity when they are sued in their official capacity, since such

suits are essentially direct claims against the public entity. Citing Taylor v. St. Louis County Bd.

of Election Com'rs, No. 4:07CV1544 TCM, 2008 WL 250367 at *2 (E.D. Mo. Jan. 29, 2008).

Plaintiffs’ claims in Counts VI and VII against the Individual Employee Defendants in their

official capacities are barred by sovereign immunity.

Defendants argue that the claims against the individual Defendants in their individual

capacity are also barred by official immunity. Defendants contend Counts VI and VII are barred

against the individual employee Defendants as a matter of law because they are public employees

immune from claims arising from the performance of discretionary acts under the doctrine of

official immunity. Official immunity protects public employees from liability for alleged acts of

negligence committed during the course of their official duties for the performance of discretionary

acts or omissions. Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. banc 2008). The

official immunity doctrine does not provide immunity for torts committed when acting in a

ministerial capacity. Id. “Official immunity is intended to provide protection for individual

government actors who, despite limited resources and imperfect information, must exercise

judgment in the performance of their duties.” Id. at 611. “The goal is to permit public employees

to make judgments affecting public safety and welfare without concerns about possible personal

liability.” Id.

The Court is concerned that some of the allegations set forth in Plaintiffs’ Complaint are

presented as discretionary actions taken by the individual Defendants – not ministerial. Again, the

Court is not analyzing whether Plaintiffs may ultimately prevail. However, before Plaintiffs would

be allowed to present this case, in any form, to a jury, Plaintiffs would be required to provide more

specific allegations and evidence regarding what specific ministerial duties were allegedly at issue

in each of their specific claims against each specific individual Defendant. Defendants’ concerns

regarding Plaintiffs’ allegations being vague and overly broad are not taken lightly. However, for

purposes of the motion to dismiss the Court denies the motion to dismiss based on official

immunity. The Court believes these concerns can be adequately addressed through discovery.

B. Insufficiency of Pleading/Burden.

The Court rules similarly regarding Defendants’ arguments that the claim of negligence

against each of the individual Defendants is too vague and that they “cannot litigate a matter when

it is unclear to them what acts and omissions Plaintiffs believe were negligent.” Plaintiffs will

ultimately be required to specify their specific allegations of negligence against each individual

Defendant and to identify specifically the ministerial duty breached. Failure to produce additional

evidence in support of this claim, including how any such actions were not discretionary in nature,

will result in the ultimate dismissal of these claims at the dispositive motion stage.

In Count VII Plaintiffs allege intentional or reckless infliction of emotional distress. “The

tort of intentional infliction of emotional distress has four elements: (1) the defendant must act

intentionally or recklessly; (2) the defendant’s conduct must be extreme and outrageous; and (3)

the conduct must be the cause (4) of severe emotional distress.” Polk v. INROADS/St. Louis, Inc.,

951 S.W.2d 646, 648 (Mo. Ct. App. 1997). “The defendant's conduct must be more than malicious

and intentional; and liability does not extend to mere insults, indignities, threats, annoyances, or

petty oppressions.” Id. The test adopted by Missouri courts is that the “the conduct must be so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,

and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id.

This cause of action has a very high burden for Plaintiffs to meet. However, once again the

Court will allow Plaintiffs to proceed at this time. Whether Plaintiffs will be able to produce

evidence to submit any such claim will be determined after discovery has been completed.

4. Motion to Dismiss Count IV - Violation of Ministerial Duties and Count IX - State

Created Danger.

Defendants move to dismiss Counts IV and IX stating they are not “stand alone claims”

but rather are standard parts of other claims made by Plaintiffs. Defendants argue there are no

separate causes of action for violating ministerial duties or for state created danger. These are

instead elements that must be asserted, along with supporting facts, in other claims. This Court

agrees and grants the motion to dismiss Counts IV and IX. Plaintiffs have not provided any support

or argument that these two separate counts are separate causes of action distinct from their other

claims. These allegations are part of the legal theories Plaintiffs pursue in other Counts.

5. Coverdell Act.

In addition, Defendants argue Plaintiffs’ claims against the individual Defendants are

barred under the Coverdell Act. Citing 20 U.S.C. §§6731-6738 (2006). The Coverdell Act

immunizes teachers, principals, and other school professionals from liability when they take

“reasonable actions to maintain order, discipline, and an appropriate educational environment.”

Citing Husk v. Clark Cnty. Sch. Dist., 125 Nev. 1046, 281 P.3d 1183 (2009). The Coverdell Act

states that it protects teachers from liability for conduct that is “not caused by willful or criminal

misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the

rights or safety of the individual harmed by the teacher”—thereby limiting its grant of immunity

to simple negligence claims, even though the purpose of the Act indicates that it protects teachers’

“reasonable” actions. Id.

The Court again finds Plaintiffs have pled sufficient facts to survive a motion to dismiss.

However, whether Plaintiffs can establish such conduct based on the evidence in this case is yet to

be determined. If Plaintiffs’ claims ultimately amount to claims of negligence, and there is no

evidence of willful or criminal misconduct, gross negligence, or reckless misconduct Plaintiffs’

claims will fail. However, based on the extensive allegations of misconduct alleged in the

Complaint the Court denies the motion to dismiss based on the Coverdell Act at this time.

6. Motion to Dismiss Count II - Disability Discrimination Section 504 of the

Rehabilitation Act of 1973.

A plaintiff must make a showing of “either bad faith or gross misjudgment ... before a

[Section] 504 violation can be made out.” M.P. ex rel. K. v. Indep. Sch. Dist. No. 721, 326 F.3d

975, 981–82 (8th Cir. 2003) (citations omitted). Id. “Where alleged ADA and § 504 violations are

based on educational services for disabled children, the plaintiff must prove that the school

officials acted in bad faith or with gross misjudgment.” See Baker v. Bentonville School District,

610 Fed.Supp.3d 1157, 1164 (W.D. Ark. 2022), citing Richardson v. Omaha Sch. Dist., 957 F.3d

869, 876 (8th Cir. 2020) (citing Birmingham v. Omaha Sch. Dist., 220 F.3d 850, 856 (8th Cir.

2000)). To prove bad faith or gross misjudgment, “a plaintiff must show that the defendant's

conduct departed substantially from accepted professional judgment, practice or standards so as to

demonstrate that the persons responsible actually did not base the decision on such a judgment.”

Id. (internal quotations and citation omitted).

The Court finds Plaintiffs have alleged the elements of this claim. Whether Plaintiffs can

prove Defendants acted in bad faith or with gross misjudgment is premature for the Court to

determine at this time.

7. Motion to Dismiss Count III - Violation of RSMo § 160.775 and District Policies.

RSMo § 160.775 requires every school district in the state to adopt an anti-bulling policy.

The statute defines bullying as “intimidation or harassment that causes a reasonable student to fear

for his or her physical safety.” Plaintiffs allege in Count III that by operation of law, defendant

School District is mandated to comply with this statute and that the failure to do so is a breach of

duty owed the Plaintiffs and others similarly situated and a violation of the statute.

It is not alleged that Defendants failed to adopt an anti-bullying policy. Rather, Plaintiffs

alleged Defendants failed to comply with their adopted anti-bullying policy. Defendants argue this

does not state a cause of action and that the statute is silent regarding how a school district should

comply with its adopted policy.

The Court has reviewed the briefs and the statute at issue. The Court does not find that the

legislature intended to create a separate cause of action or a waiver of sovereign immunity in the

creation of this statute. How Defendants implemented, or allegedly failed to implement, their anti-

bullying policy might be evidence in support, or defense, of other claims in this case. However,

the Court finds Plaintiffs have failed to state a separate cause of action for violation of this statute.

The Court dismisses Count III.

8. Statute of Limitations.

Finally, in Count V, Plaintiffs allege discrimination in public accommodation against

Defendants pursuant to Missouri Revised Statute §213.065. The public accommodation statute is

part of the Missouri Human Rights Act (“MHRA”), which requires that “as a jurisdictional

condition precedent to filing a civil action under this chapter, any person claiming to be aggrieved

by an unlawful discriminatory practice shall make, sign and file with the commission a verified

complaint in writing, within one hundred eighty days of the alleged act of discrimination….” Mo.

Rev. Stat. §213.075.

A Charge of Discrimination brought by Plaintiffs on behalf of C.S. was jointly filed with

the Missouri Commission on Human Rights (“MCHR”) and Equal Employment Opportunity

Commission (“EEOC”) on October 5, 2023. Defendants contend that any acts of discrimination

alleged by Plaintiffs occurring prior to April 8, 2023, are time barred as a matter of law and should

be dismissed.

Plaintiffs did not respond to this argument. The Court finds that any claims brought

pursuant to the Charge of Discrimination the 180-day statutory time period shall apply. Again, the

Court will be able to more properly apply the determination of what claims, if any, are time barred

based upon the specific evidence set forth by Plaintiffs in support of their claims.

DECISION

Wherefore, for the reasons set forth herein, the Court Grants in part and Denies in part

Defendants’ Motions as follows:

The Court GRANTS the motion for judgment on the pleadings on Count VI and Count

VII against the School District and Board of Education. (Doc. 24). Similarly, the Court further

GRANTS the motion to dismiss Plaintiffs’ claims against the individual defendants in their official

capacity.

The Court GRANTS in part the motion to dismiss, and dismisses Count III, Count IV and

Count IX as stated herein.

The Court DENIES Defendants’ motion to dismiss the remaining claims.

IT IS SO ORDERED.

DATED: September 29, 2025

/s/ Douglas Harpool______________

DOUGLAS HARPOOL

UNITED STATES DISTRICT JUDGE