Rogers v. Pike Road Board of Education

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

LASHUNDRA ROGERS, )

individually and as next )

friend of A.B., a minor, )

)

Plaintiff, ) CIVIL ACTION NO.

)

v. ) 2:21cv455-MHT

) (WO)

PIKE ROAD BOARD OF )

EDUCATION et al., )

)

Defendants. )

OPINION

Following a school-bus assault on her daughter,

Lashundra Rogers filed this lawsuit, naming as defendants

three school officials--Turkessia McGaskill, David

Sikes, and Charles Ledbetter--in their individual and

official capacities. She charges them with violating the

Fourteenth Amendment and seeks relief under 42 U.S.C.

§ 1983.1 Jurisdiction is proper under 28 U.S.C. § 1331

(federal question) and 28 U.S.C. § 1343 (civil rights).

1. Rogers brings the § 1983 claim on only her own

behalf. She also brings five claims on behalf of her

The school officials now seek to dismiss Rogers’s

complaint to the extent it lies against them. For the

reasons discussed below, they will be dismissed in both

their individual and official capacities.

I. MOTION-TO-DISMISS STANDARD

The school officials seek dismissal, in part, on

qualified-immunity grounds. At this stage, “the

qualified immunity inquiry and the [Fed.R.Civ.P.]

12(b)(6) standard become intertwined.” Ledea v.

Metro-Dade Cnty. Police Dep’t, 681 Fed. App’x 728, 729

(11th Cir. 2017) (internal quotation marks omitted).

The qualified-immunity inquiry is explained in more

detail later.

In any event, in considering the school officials’

motion to dismiss, the court must accept Rogers’s

allegations as true, see Hishon v. King & Spalding, 467

daughter, A.B., under Title IX, 20 U.S.C. §§ 1681-1688,

against defendant Pike Road Board of Education. These

claims are not before the court at this time.

U.S. 69, 73 (1984), and construe the complaint in her

favor, see Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir.

1993). The court may also draw “reasonable inferences”

from the facts alleged in the complaint. Chesser v.

Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001).

II. BACKGROUND

The facts in this case are upsetting and are

recounted here as alleged, in relevant part, in the

complaint. In October 2019, Rogers’s daughter, A.B., was

a 14-year-old student at Pike Road High School. Over a

series of three days, S.H., a 17-year-old student,

assaulted A.B. while riding the school bus.

Rogers and her husband first received notice that an

incident had occurred on the last of those three days,

when they were contacted by the school. That day, Rogers

and her husband arrived at the school and met with

principal Sikes and assistant principal McGaskill, as

well as a school guidance counselor and state and county

officials. Rogers and her husband were not permitted to

be in the room where A.B. was writing her statement about

the incident; Rogers has received only partial

descriptions of this statement from McGaskill.

Someone informed Rogers and her husband that a

student “had touched A.B. inappropriately” on the school

bus; that the bus driver had witnessed the contact and

reported the incident to the school; and that there was

video footage of the touching from the bus camera.2

However, Rogers and her husband were not permitted to

view the footage because other minors appeared on the

tape. A.B. was too rattled to share with Rogers the

details of the school-bus assault. At this time, Rogers

believed that there had been only one school-bus incident

in which S.H. had touched A.B.

2. The complaint does not allege that the

individuals who conveyed this information were the

defendant school officials nor even members of the school

staff. Although not dispositive, because there were

others who met with Rogers that day--including state and

county officials--the court makes no assumptions as to

the identity of these individuals.

Answering a query from Rogers that day, McGaskill

told her that A.B. did not need a hospital examination.

Rogers and her husband did not seek medical treatment for

A.B. That same day, the school-bus incident was

identified as a “Sex Offense | Sexual Contact |

Compulsion | No Consent” under Ala. Code § 13A-6-66 on

the incident report prepared by a county official.

The next day, A.B. again rode the bus to school,

where other students harassed and taunted her in response

to S.H.’s having been reported the previous day. That

afternoon, Rogers relayed this retaliatory behavior to

McGaskill and asked her to protect A.B. and to prevent

future harassment. McGaskill told Rogers that she could

not do anything about the misconduct because she did not

witness it. Afterward, A.B. stopped riding the bus but

was similarly harassed by students at school over the

next six weeks. She eventually withdrew from the school.

Sexual-abuse charges were brought against S.H. in

county juvenile court. Before the hearing, in September

2020, a county prosecutor showed Rogers and her husband

clips of A.B.’s assault from the bus camera. At that

meeting, Rogers and her husband learned for the first

time that S.H. had inappropriately touched A.B. for three

consecutive days rather than one. The footage also

showed S.H. choking A.B. Later, Rogers learned from her

daughter that S.H. had inserted his fingers into A.B.’s

vagina during at least one of the school-bus incidents

that school officials described as “inappropriate

touching.”

III. DISCUSSION

The school officials argue that Rogers’s charge

against them should be dismissed based on their qualified

immunity. For the reasons stated below, the court agrees

and additionally finds that the official-capacity claim

against them must be dismissed for lack of standing.

A. Qualified Immunity

Qualified immunity shields “government officials

‘from liability for civil damages insofar as their

conduct does not violate clearly

established ... constitutional rights of which a

reasonable person would have known.’” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). The doctrine

applies to individual-capacity (rather than

official-capacity) claims. See Smith ex rel. Smith v.

Siegelman, 322 F.3d 1290, 1294 (11th Cir. 2003).

Here, in invoking qualified immunity, McGaskill,

Sikes, and Ledbetter bear the initial burden of showing

that they “act[ed] within the scope of [their]

discretionary authority when the challenged action

occurred.” Patel v. City of Madison, 959 F.3d 1330, 1338

(11th Cir. 2020). Their discretionary authority

“include[s] all actions ... that (1) ‘were undertaken

pursuant to the performance of [their] duties,’ and (2)

were ‘within the scope of [their] authority.’” Jordan

v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994) (quoting Rich

v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988)). If

they establish that they acted within their discretionary

authority, “the burden shifts to [Rogers] to show that

qualified immunity is not appropriate.” Lee v. Ferraro,

284 F.3d 1188, 1194 (11th Cir. 2002).

There is no dispute that the school officials are

government officials and acted within the scope of their

discretionary authority. Rogers thus bears the burden

of demonstrating that qualified immunity does not apply.

She must show that the school officials both violated her

constitutional rights and that they did so at a time when

clearly established law rendered their conduct

unconstitutional. See Maddox v. Stephens, 727 F.3d 1109,

1120 (11th Cir. 2013).

The court can consider these two prongs in any order

“in light of the circumstances in the particular case at

hand.” Pearson, 555 U.S. at 236. Here, the court

begins--and ultimately concludes--its qualified-immunity

inquiry by asking whether there was clearly established

law, at the time the school officials acted, as to the

constitutional violation that Rogers claims. Because

there was no such clearly established law, the court need

not reach the question of whether a violation in fact is

established. See Maddox, 727 F.3d at 1121 (“[W]e are

afforded the flexibility to determine that the right

allegedly violated was not clearly established without

deciding whether a constitutional violation occurred at

all.”).

Rogers argues that McGaskill and Sikes violated the

Fourteenth Amendment by “unlawfully ... depriv[ing] [her]

of and withhold[ing] from her critical information about

her daughter’s sexual assault” and thereby interfering

with constitutional interests she enjoys as a parent.

Second Amended Complaint (Doc. 40) at ¶ 51; see id. at

¶¶ 49, 52. In later filings, she specifies that they

violated her “substantive due process right arising under

the fourteenth amendment’s liberty clause[,] which

protects her from unjustified state interference with her

parent[al] rights, as A.B.’s mother.”3 Pl.’s Response to

3. Given Rogers’s focus on her parental “right to

liberty,” “right to privacy within the familial

relationship,” and “right to due process,” Second Amended

Complaint (Doc. 40) at ¶ 51, the court understands that

Individual Defs.’ Motion to Dismiss (Doc. 48) at 13; see

id. at 11-12 (“[Defendants] unjustifiably interfered with

[Rogers’s] right to rear her daughter by intentionally

and unlawfully deciding to withhold from and deprive

[her] of critical information and details ... about the

sexual harassment and retaliation A.B. suffered on the

school bus ... which prevented [Rogers] from having

necessary information upon which to base important

decisions about A.B.’s immediate and future medical care,

mental health care, and supportive measures or remedies

in violation of her clearly established constitutional

rights as A.B.’s parent.”).4

she pled only a substantive-due-process claim against the

school officials in the operative complaint. But cf.

Defs.’ Motion to Dismiss (Doc. 42) at 9-10, 17-18.

4. Rogers briefly alleges that the school officials

implemented a “custom, policy, or practice” of denying

the right to comprehensive parental notification. Second

Amended Complaint (Doc. 40) at ¶ 52. But the complaint

lacks specific factual allegations as to the existence

of such a policy that would support this conclusory

claim. The court finds that she has not pled a separate

§ 1983 claim as to a custom, policy, or practice.

“‘The relevant, dispositive inquiry in determining

whether a right is clearly established is whether it

would be clear to a reasonable officer that his conduct

was unlawful in the situation he confronted.’” Vinyard

v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002) (quoting

Saucier v. Katz, 533 U.S. 194, 202 (2001)). “A right may

be clearly established for qualified immunity purposes

in one of three ways: ‘(1) case law with

indistinguishable facts clearly establishing the

constitutional right; (2) a broad statement of principle

within the Constitution, statute, or case law that

The operative complaint also states that the school

officials “deprive[d] [Rogers] of critical information

and details about the ... retaliation A.B. suffered on

the school bus on or about” the day she was informed

about A.B.’s assault. Id. at ¶ 52. But the complaint

does not allege any retaliation on the bus that day--and

even in the following days (until A.B. stopped taking the

bus), she does not allege that the school officials had

any information about retaliation on the bus that they

withheld from her. See id. at ¶¶ 14-20. Indeed, the

complaint suggests that Rogers and her family were the

parties telling defendant McGaskill about retaliatory

conduct on the bus and at school. See id. at ¶¶ 15, 17-

20. The court finds that Rogers has not pled a separate

§ 1983 claim as to retaliation.

clearly establishes a constitutional right; or (3)

conduct so egregious that a constitutional right was

clearly violated, even in the total absence of case

law.’” Maddox, 727 F.3d at 1121 (quoting Lewis v. City

of W. Palm Beach, 561 F.3d 1288, 1291-92 (11th Cir.

2009)).

Even taking all facts alleged in the complaint as

true, Rogers does not carry her burden of showing that

the claimed violation interferes with a clearly

established right under any of the three available

pathways. First, she proffers no case law with

indistinguishable facts that clearly establishes a

constitutional right for parents to be notified

immediately about the comprehensive details of their

child’s assault.5 See Pl.’s Response (Doc. 48) at 19

5. Rogers “cannot carry [her] burden of proving the

law to be clearly established by stating constitutional

rights in general terms,” Foy v. Holston, 94 F.3d 1528,

1532 (11th Cir. 1996), as with a wide-ranging

“right ... to be free from unjustified government

interference with her right to rear her daughter,” Pl.’s

Response (Doc. 48) at 11. See Loftus v. Clark-Moore, 690

F.3d 1200, 1204 (11th Cir. 2012) (“The inquiry whether a

(presenting case law with “similar but nevertheless

different facts” (emphasis added)).

Second, she does not identify any broad statement of

principle that clearly establishes a constitutional right

to such comprehensive parental notification. Under this

pathway, a plaintiff “may ‘point to a broader, clearly

established principle [that] should control the novel

facts [of the] situation.’” Loftus v. Clark-Moore, 690

F.3d 1200, 1204 (11th Cir. 2012) (quoting Terrell v.

Smith, 668 F.3d 1244, 1255 (11th Cir. 2012) (alterations

in original)). Rogers cites Arnold v. Board of Education

of Escambia County, 880 F.2d 305 (11th Cir. 1989), to

suggest a “constitutionally-protected right to be free

from unwarranted governmental intrusion and interference

with her familial relations,” Pl.’s Response (Doc. 48)

at 19, but--even if Arnold stands for that

proposition--it is too generalized to clearly establish

federal right is clearly established ‘must be undertaken

in light of the specific context of the case, not as a

broad general proposition.’” (quoting Coffin v. Brandau,

642 F.3d 999, 1013 (11th Cir. 2011) (en banc))).

a right to comprehensive parental notification on the

instant facts. So too with Hope v. Pelzer, 536 U.S. 730

(2002), which she cites to suggest that a constitutional

violation lies when state actors “unnecessarily place[]

the health and/or safety” of individuals “at risk,”

Pl.’s Response (Doc. 48) at 19. Neither case--one,

Arnold, dealing with school officials coercing a minor’s

abortion and the other, Hope, with prison officials using

a hitching post--establishes a principle with such

“‘obvious clarity’ by the case law so that ‘every

objectively reasonable [public-school] official facing

the circumstances would know that the official’s conduct

... violate[d] federal law’” by not immediately

disclosing the full details of a student’s school-bus

assault to the student’s parent. Terrell v. Smith, 668

F.3d 1244, 1256 (11th Cir. 2012) (quoting Vinyard, 311

F.3d at 1351).6

6. Nor do the cases Rogers cites elsewhere support

a constitutional violation where school officials offered

her some--but not all--of the information they possessed

about A.B.’s assault. Whatever infringement on parental

Third, she does not identify any conduct by

defendants so egregious as to disclose on its face that

a constitutional right was clearly violated. Contrary

to her contentions, “the unlawfulness of [the school

officials’] conduct” is not “blatantly apparent.” Pl.’s

Response (Doc. 48) at 20. School officials who tell

parents that their child was assaulted on a school bus

without sharing the full nature and circumstances of the

assault do not thereby fall within the “‘narrow’” pathway

reserved for conduct that “‘so obviously violate[s] [a]

constitution[al]’” provision that “‘prior case law is

unnecessary.’” Loftus, 690 F.3d at 1205 (quoting

Terrell, 668 F.3d at 1255, 1257). The school officials

are “entitled to qualified immunity because the law was

not clearly established that [their] actions were so

conscience shocking as to violate [Rogers’s] liberty

prerogatives comes from their lack of candor with Rogers,

it falls well short of the constitutional stakes of

petitions for visitation, as in Troxel v. Granville, 530

U.S. 57 (2000), or termination of parental rights, as in

M.L.B. v. S.L.J., 519 U.S. 102 (1996), and Santosky v.

Kramer, 455 U.S. 745 (1982).

interest in the care, custody, and management” of her

daughter. Maddox, 727 F.3d at 1121.

On the facts Rogers alleges, there is no clearly

established constitutional right to comprehensive

parental notification. “Under the circumstances, no

clearly established right to family privacy has been

shown to have been violated by the conduct of Defendants.

This conclusion is so even if the investigation [and

notification] ... procedures were not ‘textbook

perfect.’” Foy v. Holston, 94 F.3d 1528, 1537 (11th Cir.

1996) (quoting Manzano v. S.D. Dep’t of Soc. Servs., 60

F.3d 505, 513 (8th Cir. 1995)). Indeed, Rogers “cites

no decision of the Supreme Court,” the Eleventh Circuit,

or the Supreme Court of Alabama “that would have provided

[the school officials] notice that [their] conduct

violated [her] rights” under the Fourteenth

Amendment--and Rogers “fails to explain how [the school

officials’] conduct otherwise violated the

Constitution.” Loftus, 690 F.3d at 1205. Because there

was no clearly established constitutional right to

comprehensive parental notification as to A.B.’s

school-bus assault, Rogers cannot carry her burden under

the two-prong qualified-immunity inquiry. Accordingly,

the court finds that school officials McGaskill and Sikes

are entitled to qualified immunity as to the

individual-capacity claim against them.7

As to Ledbetter, the superintendent of Pike Road’s

school system, Rogers’s complaint is vague as to why he

7. Though the court dismisses Rogers’s charge

against McGaskill and Sikes, it does not decide whether

a student denied access to medical care or forced out of

school by retaliation may have a § 1983 claim in that

student’s own right for a constitutional violation. The

court is troubled by the failures to ensure that A.B.

received appropriate post-assault medical care and to

protect her from harm more generally, while also

cognizant that case law may foreclose certain avenues of

constitutional relief, even had A.B. pursued them (which

she did not). See Wyke v. Polk Cnty. Sch. Bd., 129 F.3d

560, 569 (11th Cir. 1997) (“[S]chool attendance laws

alone are not ... sufficient to give rise to an

affirmative duty of protection .... By mandating school

attendance, the state simply does not restrict a

student’s liberty in the same sense that it does when it

incarcerates prisoners or when it commits mental patients

involuntarily. Absent that type of restraint, there can

be no concomitant duty to provide for the student's

safety and general well-being.” (internal quotation marks

omitted)).

is charged and he is absent from all factual allegations,

with the exception of a single mention in a mass list of

all defendants. Without alleging any specific facts to

support the proposition, the complaint suggests that he

was responsible for some policy that interfered with

Rogers’s claimed right to comprehensive parental

notification. Regardless, to the extent that Rogers may

have adequately pled a charge against him, Ledbetter

enjoys qualified immunity in his individual capacity for

the same reasons as do McGaskill and Sikes.

B. Prospective Injunctive Relief

That leaves Rogers’s claim against the three school

officials in their official capacities under § 1983. She

seeks to enjoin them “from implementing any policy,

custom, or practice in the future which deprives any

parent of any student in the Pike Road School System of

critical information and details of any sexual assault

upon said parent’s child.” Second Amended Complaint

(Doc. 40) at § X.C (emphasis added); see id. at ¶¶ 5-7.

The court is obliged to determine whether Rogers has

Article III standing, even where no party has raised the

issue, see Bochese v. Town of Ponce Inlet, 405 F.3d 964,

974-75 (11th Cir. 2005), including whether Rogers’s

claimed injury is likely redressable by a decision in her

favor, see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561

(1992). Here, Rogers’s daughter withdrew from Pike Road

High School, and Rogers nowhere suggests that A.B. will

be subject to the school officials’ authority in the

future, much less that the complained-of conduct will

recur. See Second Amended Complaint (Doc. 40) at ¶ 20.

Nor has Rogers alleged any other facts (or sought to

bring any class claims) sufficient to justify the blanket

prospective injunctive relief she seeks.

To the extent A.B. is no longer under the school

officials’ authority, Rogers “currently has no legally

protected interest” under the Fourteenth Amendment and

the court’s “entry of prospective injunctive relief ...

would therefore not redress any future harm [she] might

suffer.” Arnold v. Martin, 449 F.3d 1338, 1341 (11th

Cir. 2006). The court cannot “fashion an injunctive

order to remedy future harm because [Rogers] has not

shown that she will likely suffer such harm.” Id. at

1342. Because Rogers’s alleged retrospective injuries

are not redressable by prospective injunctive relief, the

court must dismiss her official-capacity claim against

all three school officials for lack of standing.

Of course, if this construction of her § 1983 claim

is in error, Rogers may ask the court to reconsider.

* * *

The court stresses that it is not categorically

stating that a school official’s withholding of

information from a parent could never, in any

circumstance, give rise to a constitutional violation.

So too, there may be certain school investigations where

parents ought not be notified at all. Cf. Arnold, 880

F.2d at 314 (“[W]e are not ... constitutionally mandating

that counselors notify the parents of a minor who

receives counseling regarding pregnancy.”). In any

event, on the record now before it, the court holds that

Rogers’s claim against the three school officials must

be dismissed in full on qualified-immunity and for lack-

of-standing grounds.

An appropriate judgment will be entered.

DONE, this the 29th day of September, 2022.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE