H.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

R.H. ex rel. R.H. and A.H. ex rel. R.H.,

Plaintiffs,

v. Case No.: 3:26-cv-79-WWB-PDB

DUVAL COUNTY SCHOOL BOARD

and KELSEY BETTS,

Defendants.

/

ORDER

THIS CAUSE is before the Court on Defendant Kelsey Betts’s Motion to Dismiss

(Doc. 7) and Plaintiffs’ Response (Doc. 16).1 For the reasons set forth below, Defendant’s

Motion will be granted.

I. BACKGROUND

Plaintiff R.H. was, at all times relevant to the Complaint, an Exceptional Student

Education (“ESE”) student in second grade at Westview K-8, which is operated by

Defendant Duval County School Board. (Doc. 3, ¶¶ 1, 4). R.H. is diagnosed with Autism

Spectrum Disorder and has an Individualized Education Plan. (Id. ¶ 2).

On November 8, 2023, Defendant Kelsey Betts was supervising an ESE classroom

of roughly fifteen students. (Id. ¶ 10). During a transition between classrooms, Betts

escorted the children to the main hallway restroom and allowed groups of two to three

1 Plaintiffs’ Response fails to comply with this Court’s January 13, 2021 Standing

Order. In the interests of justice, the Court will consider the filing, but any further failures

to comply with all applicable rules and orders of this Court, including the Standing Orders,

may result in the striking or denial of filings without notice or leave to refile.

ESE students to enter the restroom unsupervised. (Id. ¶¶ 12–13). Although R.H. was

accompanied by his personal therapist at school, Betts instructed R.H.’s therapist not to

accompany him into the restroom to permit R.H. to gain independence. (Id. ¶¶ 11, 14).

While R.H. was in the restroom with another student, a general-education student exited

the restroom and informed a school Registered Behavior Technician “that two kids were

‘humping’ in the bathroom.” (Id. ¶ 15). Upon entering the bathroom, the Technician

witnessed another ESE student thrusting against R.H. while both students had their pants

down. (Id. ¶ 16). As a result of the incident, R.H. experienced significant emotional

trauma, behavioral regression, increased anxiety, and sleep disturbance. (Id. ¶ 18). R.H.

was subsequently transferred to a new school. (Id. ¶ 19).

R.H. alleges claims against Defendant Betts for negligence (Count III), negligent

infliction of emotional distress (Count IV), violation of R.H.’s Fourteenth Amendment right

to bodily integrity pursuant to 42 U.S.C. § 1983 (Count VI), and his parents, A.H. and

R.H., allege a claim for loss of companionship (Count VIII). (See generally Doc. 3).

II. LEGAL STANDARD

“A pleading that states a claim for relief must contain . . . a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to

dismiss a complaint for “failure to state a claim upon which relief can be granted.” In

determining whether to dismiss under Rule 12(b)(6), a court accepts the factual

allegations in the complaint as true and construes them in a light most favorable to the

non-moving party. See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1269 (11th Cir.

2009). Nonetheless, “the tenet that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions,” and “[t]hreadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, “[t]o 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.’” Id. (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.

III. DISCUSSION

Betts moves to dismiss all the claims alleged against her. In their Response,

Plaintiffs state that they “withdraw Counts III, IV, and VIII” and “do not oppose dismissal

of those counts without prejudice.” (Doc. 16 at 1). Accordingly, the Court will grant the

Motion as to Counts III, IV, and VIII without further discussion and such claims will be

dismissed without prejudice.

In the remaining count, Plaintiffs allege, pursuant to § 1983, that Betts violated

R.H.’s Fourteenth Amendment right to bodily integrity by showing deliberate indifference

to a substantial risk of sexual assault and that Betts’s actions were “conscience-shocking

and violated clearly established constitutional rights.” (Doc. 3, ¶¶ 45–46). Betts argues

that Plaintiffs’ claim is barred by qualified immunity. Alternatively, Betts argues that

Plaintiffs fail to state a claim because they allege only psychological injury and fail to

allege that permitting a student to use a hallway restroom unsupervised violates a clearly

established constitutional right or is conscience shocking.

“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.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (quotation omitted). “An official who asserts

entitlement to qualified immunity must first establish that . . . [s]he was acting within the

scope of h[er] discretionary authority.” Alcocer v. Mills, 906 F.3d 944, 951 (11th Cir.

2018). A government official is acting within the scope of h[er] discretionary authority if

the actions “(1) were undertaken pursuant to the performance of h[er] duties, and (2) were

within the scope of h[er] authority.” Moore v. Pederson, 806 F.3d 1036, 1042 (11th Cir.

2015) (quotation omitted). Betts argues that escorting students between classrooms and

to the restroom during the school day are within the scope of her discretionary duty, which

Plaintiffs do not dispute. The supervision of students falls within the discretionary duties

of a teacher. See, e.g., Elvington v. Phenix City Bd. of Educ., No. 3:18-cv-120, 2019 WL

1117930, at *13 (M.D. Ala. Feb. 14, 2019), adopted, 2019 WL 117912 (M.D. Ala. Mar. 11,

2019).

Betts is, therefore, “entitled to qualified immunity under § 1983 unless (1) [she]

violated a federal statutory or constitutional right, and (2) the unlawfulness of [her] conduct

was clearly established at the time” of the incident. District of Columbia v. Wesby, 583

U.S. 48, 62–63 (2018) (quotation omitted). Plaintiffs bear the burden of establishing that

qualified immunity is inappropriate. Alcocer, 906 F.3d at 951. Plaintiffs’ failure to make

that showing as to either prong is fatal, and the Court need only find that one is lacking.

See id.; Pearson, 555 U.S. at 236.

Plaintiffs argue that Betts violated R.H.’s Fourteenth Amendment right to bodily

integrity and personal security in school. Specifically, Plaintiffs argue that Betts’s decision

to allow multiple ESE students to use the public restroom—as opposed to the dedicated

restroom in their classroom—unaccompanied by a supervising adult and with knowledge

that R.H. had never done so, violated R.H.’s Fourteenth Amendment right to be free from

bodily injury.2 “In non-custodial settings, such as in public schools, conduct by a

government actor will rise to the level of a substantive due process violation only if the

act can be characterized as arbitrary or conscience-shocking in a constitutional sense.

Adams v. Demopolis City Schs., 80 F.4th 1259, 1274 (11th Cir. 2023)3; see also Rodney

K. v. Mobile Cnty. Bd. of Educ., No. 22-11022, 2025 WL 3295850, at *5–6 (11th Cir. Nov.

26, 2025).

While “liability for negligently inflicted harm is categorically beneath the threshold

of constitutional due process,” “conduct intended to injure in some way unjustifiable by

any government interest is the sort of official action most likely to rise to the conscience-

shocking level.” County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). “[E]ven where

a student dies, school officials’ behavior does not shock the conscience if it is no more

2 Plaintiffs also rely on allegations that school officials were on notice of the risks

posed by Betts’s actions and of behavioral concerns within the ESE program. (Doc. 16

at 3). These facts, however, do not appear within Count VI of the Complaint and it is well-

settled that parties cannot amend their pleadings “via a response to a motion to dismiss.”

Llauro v. Tony, 470 F. Supp. 3d 1300, 1313 n.6 (S.D. Fla. 2020) (quotation omitted).

Accordingly, the Court does not consider such allegations. (See Doc. 3, ¶¶ 40, 43).

3 Although Plaintiffs argue that “this case involves a school setting that was

unquestionably custodial in nature,” (Doc. 16 at 6), they fail to cite any legal authority

supporting that proposition and “[i]t is well-established that ‘schoolchildren are not in a

custodial relationship with the state.’” L.S. ex rel. Hernandez v. Peterson, 982 F.3d 1323,

1329 (11th Cir. 2020) (quoting Nix v. Franklin Cnty. Sch. Dist., 311 F.3d 1373, 1378 (11th

Cir. 2002)). Accordingly, the Court applies the standard for non-custodial settings.

than reckless or deliberately indifferent. Rather, something more is required, like

malicious[ ] conduct or obviously excessive force.” Littlejohn v. Sch. Bd. of Leon Cnty.,

132 F.4th 1232, 1245 (11th Cir. 2025) (internal citations and quotations omitted). “In the

school context, the Eleventh Circuit has repeatedly emphasized that the conscience-

shocking standard is demanding and that ordinary disciplinary disputes and

administrative decisions typically do not implicate substantive due process.” Stith v.

Sutherland, No. 5:25-cv-1340, 2026 WL 524776, at *8 (N.D. Ala. Feb. 25, 2026)

(collecting cases).

The cases that Plaintiffs cite in support of their argument involve corporal

punishment by teachers and school officials. See Ingraham v. Wright, 430 U.S. 651, 673–

74 (1977); Kirkland ex rel. Jones v. Greene Cnty. Bd. of Educ., 347 F.3d 903, 904–05

(11th Cir. 2003); Neal ex rel. Neal v. Fulton Cnty. Bd. of Educ., 229 F.3d 1069, 1074–75

(11th Cir. 2000). Plaintiffs do not cite any cases in support of their argument that Betts’s

actions “shock the conscious” within the constitutional sense or with facts that resemble

those alleged in this case. Having carefully reviewed a number of persuasive opinions in

similar cases, the Court finds that Plaintiffs have fallen short of alleging conscious-

shocking behavior in this case.

In Doe v. Huntsville City Schools Board of Education, the plaintiff, an eight-year-

old student with Asperger’s Syndrome and Charcot-Marie-Tooth Syndrome, alleged that

he was repeatedly subjected to bullying and physical assaults at school. 546 F. Supp. 3d

1043, 1046 (N.D. Ala. 2021). The plaintiff notified his two teachers of the bullying seven

or eight times, but neither intervened. Id. Thereafter, the plaintiff’s mother sent two e-

mails to one of the plaintiff’s teachers, both of which went unanswered, and then went to

the school to speak with the assistant principal. Id. The plaintiff’s family continued to

attempt to contact administrators in the following days, including by e-mail and telephone,

without response while the physical attacks continued. Id. The plaintiff’s physician

provided a letter to the school setting forth the permanent nature of the injuries to the

plaintiff because of the bullying. Id. at 1046–47. Despite this and assurances that the

plaintiff and his bullies would be separated the following semester, the assistant principal

instead made the plaintiff and one of his bullies “shake hands” and “become friends.” Id.

at 1047. Following this meeting, the bully told the plaintiff that since they were friends it

was ok for him to hit the plaintiff, and that the plaintiff should not tell on his friend. Id. The

attacks continued and ultimately the plaintiff was taken out of the school by his mother.

Id. As a result of the bullying, the plaintiff had to have surgery to remove one testicle that

was permanently damaged by the assaults and to repair the other. Id. The court

determined that given the age and particular vulnerabilities of the student, coupled with

the alleged failure to respond to repeated notifications regarding the bullying and an

intervention that ultimately rendered the plaintiff more susceptible to bullying, the plaintiff

had sufficiently alleged, at the motion to dismiss stage, a substantive due process claim.

Id. at 1050–51.

Similarly, in Doe ex rel. Doe v. Hoover City Board of Education, the plaintiff, a first-

grade student, was sexually assaulted by a group of her classmates on numerous

occasions. No. 2:19-cv-243, 2020 WL 5548804, at *1 (N.D. Ala. Sept. 16, 2020). Prior

to the plaintiff’s parents becoming aware of the abuse and reporting it to the school, the

principal was made aware that another girl had also been a victim of the abusers. Id.

Once the school was notified of the abuse, the plaintiff was returned to the same class

with her abusers and experienced several more incidents of bullying, including having her

hair cut, being pushed, and being bit before she was withdrawn from the school. Id. at

*2. The court, in ruling on a motion to dismiss, determined that the plaintiff had adequately

alleged a substantive due process claim because the teacher permitted multiple students

to use the restroom at the same time without supervision, despite knowing that another

student had reported been sexually assaulted, and only required the offenders to “run

laps” upon learning of the alleged abuse, rendering a particularly young student more

vulnerable and susceptible to the alleged abuse. Id. at *11–13.

However, in Moore v. Chilton County Board of Education, the court granted a

motion to dismiss on a substantive due process claim based on repeated and relentless

bullying of a high school student—which ultimately caused the student to commit

suicide—despite the school’s alleged knowledge of the bullying and failure to intervene.

936 F. Supp. 2d 1300, 1312–13 (M.D. Ala. 2013). Likewise, in Rodney K., the Eleventh

Circuit held that coaches that did not directly participate in hazing that resulted in severe

injuries to numerous high school students were not liable for substantive due process

violations, even if the coaches were aware of the hazing and failed to intervene. 2025

WL 3295850, at *6.

In C.D.J. ex rel. Kozlowski v. Montgomery County Board of Education, the court

granted a motion to dismiss a substantive due process claim where a non-verbal autistic

middle school student with learning disabilities was brutally attacked on the school bus

and the bus driver failed to intervene or render aid to the bleeding student and an assistant

principal, with knowledge of the student’s fear of the bully, told him to get on the bus

anyway. No. 2:23-cv-706, 2024 WL 3240567, at *1–2, *5–6 (M.D. Ala. June 28, 2024).

As the C.D.J. court noted, those cases denying motions to dismiss on peer-to-peer

violence are rare and the Eleventh Circuit has not yet extended substantive due process

claims by students outside the realm of corporal punishment. Id. at *6 (collecting cases);

see also F.V. ex rel. Vargas v. Randolph Cnty. Bd. of Educ., No. 2:20-CV-142, 2022 WL

988362, at *2, *4–5 (M.D. Ala. Mar. 31, 2022) (granting motion to dismiss substantive due

process claims for failure to prevent known bullying against third-grade student that

resulted in at least one instance of physical assault leading to loss of consciousness while

the supervising teacher was “on his phone and was not paying attention to the students”

(quotation omitted)); Riser v. Jefferson Cnty. Bd. of Educ., No. 2:19-cv-2122, 2020 WL

6870557, at *2, *6 (N.D. Ala. Nov. 23, 2020).

Having carefully reviewed the allegations of the Complaint, and considering the

above referenced cases, this Court finds that Plaintiffs have failed to allege a

constitutional violation against Betts. R.H. is both young and disabled, which courts have

factored heavily in favor of permitting the claim to move forward. See Hatfield v. O’Neill,

534 F. App’x 838, 847 (11th Cir. 2013) (“[T]he conscience-shocking threshold is more

quickly reached in cases where the victim is particularly vulnerable to abuse and is

otherwise defenseless.” (quotation omitted)); see also Doe, 546 F. Supp. 3d at 1050.

Nevertheless, the remaining allegations, although disturbing, fall short of alleging

conscious-shocking behavior on the part of Betts. There are no allegations that R.H. had

been previously threatened or that Betts was aware of similar conduct occurring in the

past. As set forth above, Plaintiffs make a conclusory allegation that “[s]chool officials

had actual notice of the risk posed by unsupervised restroom use by ESE students and

of prior behavioral concerns within the program,” (Doc. 3, ¶ 40), but this allegation is not

incorporated into Count VI and, even if it was, offers nothing more than conclusory

statements that lack factual support that Betts had notice of the particular danger that

occurred in this case. Finally, although Plaintiffs place significant weight on the allegation

that Betts prevented R.H.’s therapist from entering the restroom with him, there are no

allegations that his therapist was present to prevent physical attacks or to protect R.H.

from his peers. Based on the alleged facts, Plaintiffs have not alleged conscious-

shocking behavior sufficient to proceed against Betts as to Count VI.

Plaintiffs argue that they should be granted leave to amend Count VI. Because it

is not clear that amendment would be futile and Plaintiffs have not yet had an opportunity

to amend, the Court will permit Plaintiffs one opportunity to amend the pleading as to

Count VI.

IV. CONCLUSION

Therefore, it is ORDERED and ADJUDGED as follows:

1. Defendant Kelsey Betts’s Motion to Dismiss (Doc. 7) is GRANTED.

2. Counts III, IV, VI, and VIII of the Complaint (Doc. 3) are DISMISSED

without prejudice.

3. On or before September 8, 2026, Plaintiffs may file an amended pleading

to correct the deficiencies noted herein with respect to Count VI. The failure

to timely do so may result in the dismissal of all claims without further notice.

DONE AND ORDERED in Jacksonville, Florida on August 25, 2026.

WENDY W. B

UNITED STATES T JUDG

Copies furnished to:

Counsel of Record

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