The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:24-CV-678-BO-KS
J.H., by and through his parent and guardian,)
Tessiah Smithen, and TESSIAH SMITHEN )
in her individual capacity, )
Plaintiffs, )
)
V. ) ORDER
)
WAKE COUNTY BOARD OF )
EDUCATION, ef al., )
Defendants. )
This cause comes before the Court on three motions to dismiss plaintiffs’ amended
complaint filed by defendants Wake County Board of Education, Taylor, Moore, Savage, Vierno,
Ford, Freeman, and Alston. [DE 84]; [DE 86]; [DE 88]. Plaintiff has failed to respond to the
motions to dismiss, and the time for doing so has expired. In this posture, the motions are ripe for
disposition.
Plaintiff J.H. initiated this action by filing a complaint alleging claims arising from abuse
by his classroom teacher. See [DE 1]. Following a hearing, the Court denied various motions to
dismiss without prejudice and permitted plaintiff leave to amend the complaint. [DE 75]. In their
amended complaint, plaintiffs, J.H. and his mother, allege claims for violations of Section 504 of
the Rehabilitation Act, 29 U.S.C. §§ 794, et seq., the Americans with Disabilities Act, 42 U.S.C.
§§ 12101, et seg., the Fourteenth Amendment under 42 U.S.C. § 1983, and the North Carolina
Constitution as well as claims for negligence, negligent infliction of emotional distress, intentional
infliction of emotional distress, assault/battery, and gross negligence.
The moving defendants have moved to dismiss plaintiffs’ operative, amended complaint.
The Wake County Board of Education, Taylor, Moore, Savage, and Vierno seek to dismiss all
claims against them for lack of subject matter jurisdiction and failure to state a claim upon which
relief can be granted. [DE 84]; [DE 85]; Fed. R. Civ. P. 12(b)(1); id. Rule 12(b)(6). Defendants
Ford and Freeman have also moved to dismiss all claims against them for lack of subject matter
jurisdiction and failure to state a claim. [DE 86]; [DE 87]. And defendant Alston has also moved
to dismiss all claims against him for lack of subject matter jurisdiction and failure to state a claim.
[DE 88]; [DE 89].
The Court has considered the amended complaint in light of the applicable standards. See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Guzman v. Acuarius Night Club LLC, 167
F.4th 217, 221 (4th Cir. 2026); Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009);
Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991). For those reasons argued by the moving defendants in their motions and memoranda in
support, [DE 84] — [DE 89], plaintiffs’ claims against defendants Wake County Board of
Education, Taylor, Moore, Savage, Vierno, Ford, Freeman, and Alston are dismissed. Because the
Court concludes that plaintiffs have failed to allege plausible claims for relief against the moving
defendants, the claims against the moving defendants are dismissed with prejudice.
In their amended complaint, plaintiffs appear to have added a new defendant, Tanya Byrd-
Robinson. [DE 78] § 16.! Plaintiffs did not, however, file summons to be issued for defendant
Byrd-Robinson. Plaintiffs shall, within fourteen days of the date of entry of this order, show cause
why defendant Byrd-Robinson should not be dismissed pursuant to Fed. R. Civ. P. 4(m): Within
! The Clerk is DIRECTED to correct the docket to reflect the addition of a plaintiff and a defendant
to this action as of the date of the filing of the amended complaint.
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the same time-period, plaintiffs shall notify the Court how they intend to proceed with their
remaining claims against defendant James Rencher.
CONCLUSION
Accordingly, the pending motions to disrniss [DE 84]; [DE 86]; [DE 88] are GRANTED
for the reasons laid out therein. All claims against defendants Wake County Board of Education,
Taylor, Moore, Savage, Vierno, Ford, Freeman, and Alston are DISMISSED with prejudice.
Plaintiffs shall, within fourteen (14) days of the date of entry of this order, show cause why
defendant Byrd-Robinson should not be dismissed pursuant to Fed. R. Civ. P. 4(m) and further
notify the Court how they intend to proceed with their remaining claims against defendant James
Rencher. Failure to comply with this order may result in dismissal of the remaining claims without
prejudice.
The Clerk is DIRECTED to correct the docket to reflect the addition of a plaintiff and a
defendant to this action as of the date of the filing of the amended complaint.
SO ORDERED, this /2 day of May 2026.
UNITED STATES DISTRICT FUDGE