Case: 1:17-cv-00521-TSB Doc #: 26 Filed: 09/24/18 Page: 1 of 31 PAGEID #: 344

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

KAREN MEYERS, et al., : Case No. 1:17-cv-521

:
Plaintiffs, : Judge Timothy S. Black
:
vs. :
:
CINCINNATI BOARD OF :
EDUCATION, et al., :
:
Defendants. :

ORDER GRANTING PLAINTIFFS’ MOTION TO

AMEND THE COMPLAINT AND GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION TO DISMISS

This civil action is before the Court upon the Plaintiffs’ motion to amend the

complaint (Doc. 21) and the parties’ responsive memoranda (Docs. 24 and 25), and

Cincinnati Public School Defendants’ 1 motion to dismiss Plaintiffs’ complaint (Doc. 13)

and the parties’ responsive memoranda (Docs. 19 and 20).

I. FACTS AS ALLEGED BY THE PLAINTIFF

For purposes of this motion to dismiss, the Court must: (1) view the complaint in

the light most favorable to Plaintiffs; and (2) take all well-pleaded factual allegations as

true. Tackett v. M&G Polymers, 561 F.3d 478, 488 (6th Cir. 2009).

1
Cincinnati Public School Defendants (“CPS Defendants”) refers collectively to Defendants
Cincinnati Board of Education; Mary Ronan, Superintendent of CPS at the relevant time;
Ruthenia Jackson, principal of Carson Elementary School (“Carson”) at the relevant time;
Jeffrey McKenzie, assistant principal of Carson at the relevant time; and Margaret McLaughlin,
who was added as a defendant in the amended complaint and was the Carson school nurse at the
relevant time.

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Gabriel Taye was an eight-year-old, third-grade student at Carson during the

2016–2017 school year. After coming home from school on January 26, 2017, Taye

committed suicide in his bedroom. (Doc. 21-1 2 at ¶¶ 90–94). Two days before his

suicide, Tyus was knocked unconscious by a violent bully in a Carson bathroom. 3 Taye

lay on the bathroom floor, unconscious, for over seven minutes while other students

taunted and kicked him. (Id. at ¶¶ 76–78). Eventually Defendant McKenzie responded

to the incident in the bathroom. Taye was still lying on the floor unconscious and

motionless when Defendant McKenzie arrived and simply stood over Taye. Other

Carson staff including Defendant Jackson arrived later. Shortly after Defendant

McLaughlin arrived, Taye regained consciousness. (Id. at ¶¶ 79–80). Nurse McLaughlin

evaluated Taye, but did not call 911, even though the school’s head injury nursing

protocol required an emergency medical response whenever a student was

unconscious/unresponsive for over one minute. (Id. at ¶ 102). An hour after the incident

McLaughlin called Taye’s mother, Cornelia Reynolds, and misrepresented to her that

Taye had fainted. Reynolds asked McLaughlin if Taye needed to go to the hospital, but

she was told that he needed no further medical treatment. Reynolds was not told that

Taye had been knocked unconscious for over seven minutes. (Id. at ¶¶ 81–82). Reynolds

asked Taye what happened at school, but all Taye could remember was that he fell and

that his stomach hurt. Taye suffered from stomach pain, nausea, and vomiting that night

2
As the Court discusses infra, the amended complaint (Doc. 21-1) is the operative complaint.
3
The incident in the bathroom was captured by a security camera and the footage has been filed
with the Court. (Doc. 4, Ex. A).

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and Reynolds took him to the hospital. The hospital diagnosed him with likely

gastrointestinal issues, but did not evaluate Taye for head trauma because the Carson

Defendants 4 had told Reynolds that he had fainted, not that he had been knocked

unconscious. (Id. at ¶¶ 84–85).

Taye went back to school on January 26, 2017, the day of his death. On that day,

Taye suffered another incident of bullying in the school bathroom when two students

stole his water bottle and flushed it down the toilet. Taye reported the incident to a

teacher, but that teacher was unaware of the seriousness of the incident because the

Carson Defendants had covered up the previous attack on Taye. (Id. at ¶¶ 88–90). Taye

killed himself after returning home from school that night.

Plaintiffs allege that Taye had been a victim of bullying and aggressive behavior

throughout his years at Carson. Moreover, a number of incidents in which Taye was

physically assaulted were concealed from his parents by the Carson Defendants. (Id. at

¶¶ 62–75).

Plaintiffs allege that CPS Defendants fostered and covered up bullying and other

aggressive behavior at Carson and created an unsafe environment for Carson students.

(Doc. 21-1 at ¶¶ 20–61). Pursuant to O.R.C. § 3313.666, Defendant CPS was required to

report any incidents of bullying. In the period of time that represented Taye’s first half of

third grade, Carson reported zero (0) bullying incidents. In the period of time that would

have represented the second half of Taye’s third-grade school year, Carson reported four

4
“Carson Defendants” refers collectively to Defendants Jackson, McKenzie, and McLaughlin.

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(4) bullying incidents, but none involving Taye, including the bathroom attack. (Id. at

¶ 29). Plaintiffs allege that there were significantly more bullying incidents at Carson,

but those incidents were covered-up by the CPS Defendants.

Plaintiffs allege that Carson behavior logs of ten students contain information of

multiple occurrences of bullying and aggressive behavior, none of which were reported

as bullying. The behavior logs specifically refer to several incidents as “bullying.” (Id.

at ¶¶ 32, 33). Other incidents that were documented, but not reported as bullying, include

the punching and choking of students; verbal and physical threats, including threatening

to sexually assault a student at gunpoint; and racist tormenting. (Id. at ¶¶ 34–54).

Plaintiffs also highlight the bullying at Carson through statements of other parents with

children at Carson who attest that officials at Carson were unresponsive to bullying at the

school. (Id. at ¶¶ 55–59). One Carson parent states that CPS Defendants were aware that

her child had expressed suicidal thoughts twice in school journal and she was not notified

until the third time he expressed suicidal ideations. (Id. at ¶ 59).

II. STANDARD OF REVIEW

A. Motion to Amend

Pursuant to Fed. R. Civ. P. 15(a), “leave to amend a pleading shall be freely given

when justice so requires.” Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998) (citing Brooks

v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994)). Rule 15(a) embodies “a liberal policy of

permitting amendments to ensure the determinations of claims on their merits.” Marks v.

Shell Oil Co., 830 F.2d 68, 69 (6th Cir. 1987). In deciding a party’s motion for leave to

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amend, the Court of Appeals for the Sixth Circuit has instructed that district courts must

consider several elements, including “[u]ndue delay in filing, lack of notice to the

opposing party, bad faith by the moving party, repeated failure to cure deficiencies by

previous amendments, undue prejudice to the opposing party, and futility of

amendments . . . .” Coe, 161 F.3d at 341. In the absence of any of these findings, leave

should be “freely given.” Foman v. Davis, 371 U.S. 178, 182 (1962).

Ultimately, determination of whether justice requires the amendment is entrusted

to the sound discretion of a district court. Moore v. City of Paducah, 790 F.2d 557, 559

(6th Cir. 1986).

B. Motion to Dismiss

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) operates to test the

sufficiency of the complaint and permits dismissal of a complaint for “failure to state a

claim upon which relief can be granted.” To show grounds for relief, Fed. R. Civ. P. 8(a)

requires that the complaint contain a “short and plain statement of the claim showing that

the pleader is entitled to relief.”

While Fed. R. Civ. P. 8 “does not require ‘detailed factual allegations,’ . . . it

demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.

544 (2007)). Pleadings offering mere “‘labels and conclusions’ or ‘a formulaic recitation

of the elements of a cause of action will not do.’” Id. (citing Twombly, 550 U.S. at 555).

In fact, in determining a motion to dismiss, “courts ‘are not bound to accept as true a

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legal conclusion couched as a factual allegation[.]’” Twombly, 550 U.S. at 555 (citing

Papasan v. Allain, 478 U.S. 265 (1986)). Further, “[f]actual allegations must be enough

to raise a right to relief above the speculative level[.]” Id.

Accordingly, “[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.’” Iqbal, 556 U.S. at 678. A claim is plausible where a “plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. Plausibility “is not akin to a ‘probability requirement,’

but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

“[W]here the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the

pleader is entitled to relief,’” and the case shall be dismissed. Id. (citing Fed. R. Civ. P.

8(a)(2)).

III. ANALYSIS

A. Motion to Amend the Complaint (Doc. 21)

In response to CPS Defendants’ motion to dismiss, Plaintiffs filed a response in

opposition (Doc. 19) and later a motion to amend with the proposed amended complaint.

(Doc. 21; Doc. 21-1). Plaintiffs propose to amend the complaint in the following ways:

(1) add Carson nurse, Margaret McLaughlin, as a defendant and add a claim against her

for negligence by a nurse (Count VII) and (2) add a new basis for a finding of municipal

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liability against the Defendants Cincinnati Board of Education and Superintendent Ronan

(collectively “Board Defendants”).

CPS Defendants argue that Plaintiffs’ motion to amend the complaint should be

denied because Plaintiffs’ proposed amendments are futile and would not survive CPS

Defendants’ pending motion to dismiss. 5 Yuhasz v. Brush Wellman, Inc., 341 F.3d 559,

569 (6th Cir. 2003)) ("[L]eave to amend may be denied where the amendment would be

futile."); Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir.

2010) ("A proposed amendment is futile if the amendment could not withstand a Rule

12(b)(6) motion to dismiss.")). Accordingly, this Court’s analysis of Plaintiffs’ motion

amend the complaint is dependent upon the application of the arguments in Defendants’

motion to dismiss to Plaintiffs’ proposed amended complaint.

For the reasons set forth below, some claims in Plaintiffs’ proposed amended

complaint are not futile and survive the motion to dismiss. Furthermore, there is no

apparent undue delay, bad faith, or dilatory motivation on the part of Plaintiffs, nor does

there appear to be any prejudice to CPS Defendants in allowing amendment.

Accordingly, Plaintiffs’ motion to amend the complaint (Doc. 21) is granted and

Exhibit 1 to Plaintiffs’ motion to amend the complaint (Doc. 21-1) is the operative

complaint. Plaintiffs shall file the amended complaint forthwith as a separate docket

entry.

5
CPS Defendants do not directly address whether Count VII against Nurse McLaughlin should
be dismissed; instead they argue that the proposed amended complaint adds “no new claims or
substantive allegations about the Defendants who have already moved to dismiss Plaintiff’s
Complaint.” (Doc. 24 at 1).

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B. Motion to Dismiss

In lieu of an answer, CPS Defendants have filed a motion to dismiss all of

Plaintiffs’ claims against CPS Defendants, although, as noted, CPS Defendants do not

address Count VII of the amended complaint against Defendant McLaughlin. The Court

will apply the arguments in Defendants’ motion to dismiss (Doc. 13) and Defendant’s

opposition to Plaintiff’s motion to amend (Doc. 24) to the Court’s analysis of the

amended complaint. (Doc. 21-1).

1. Substantive Due Process (Counts I–III)

To allege adequately a § 1983 claim, Plaintiffs must plead facts that show the

deprivation of a constitutional right caused by someone acting under color of state law.

McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 463 (6th Cir. 2006). Generally, “a State’s

failure to protect an individual against private violence does not constitute a violation of

the Due Process Clause.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S.

189, 197 (1989). However, Courts recognize exceptions this rule including the “state-

created danger” exception, the “special relationship” exception, or the “shocks the

conscience” exception. Here, Plaintiffs allege that CPS Defendants violated Taye’s

substantive due process rights by creating a special danger to Taye (a “state-created

danger” claim), by failing to protect Taye after depriving his parents’ ability to do so (a

“special relationship” claim), and by engaging in acts or omissions that shock the

conscience (a “shocks the conscience” claim). The Court will analyze each of these

claims in turn.

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a. State-Created Danger (Count I)

In order to succeed on a claim under the “state-created danger” exception,

Plaintiffs must show:

(1) an affirmative act by the state which either created or

increased the risk that the plaintiff would be exposed to an act
of violence by a third party; (2) a special danger to the
plaintiff wherein the state's actions placed the plaintiff
specifically at risk, as distinguished from a risk that affects
the public at large; and (3) the state knew or should have
known that its actions specifically endangered the plaintiff.

Jones v. Reynolds, 438 F.3d 685, 690 (6th Cir. 2006) (quoting Cartwright v. City of

Marine City, 336 F.3d 487, 493 (6th Cir. 2003)).

i. Affirmative Act

On the first element, CPS Defendants argue that Plaintiffs have not alleged any

affirmative acts on the part of CPS Defendants, but instead have only alleged omissions

or failures to act. Omissions and failures to act are not affirmative acts. The Sixth

Circuit has clarified that failing to act in the school bullying context does not satisfy the

element of an affirmative act. Stiles ex rel. D.S. v. Grainger Cty., Tenn., 819 F.3d 834,

854-55 (6th Cir. 2016) (“[f]ailing to punish students, failing to enforce the law, failing to

enforce school policy, and failing to refer assaults to [the school resource officer] are

plainly omissions rather than affirmative acts.”)

Yet, here, Plaintiffs do not merely allege that CPS Defendants failed to

communicate with Taye’s parents about the attack in the bathroom or bullying in Carson.

Instead, Plaintiffs allege both that (1) CPS Defendants affirmatively misrepresented to

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Taye’s mother that he had fainted at school even though the CPS Defendants were aware

that Taye had been a victim of bullying and had been knocked unconscious (Doc. 21-1 at

¶ 82) and (2) concealed information regarding bullying at Carson from Plaintiffs and

others. (Id. at ¶ 3). While the Sixth Circuit has not specifically ruled on whether

affirmative misrepresentations and concealment are affirmative acts, other courts have

found that they are affirmative acts in a state-created danger analysis. See, e.g., Kuyper v.

Bd. of Cty. Comm’rs of Weld Cty., No. 09-cv-342, 2010 WL 1287534, at *6 (D. Colo

Mar. 30, 2010) (finding that affirmative misrepresentations were affirmative acts in a

state-created danger analysis); Briscoe v. Potter, 355 F. Supp. 2d 30, 44 (D.D.C. 2004)

(same); D.N. ex rel. Nelson v. Snyder, 608 F. Supp. 2d 615, 627 (M.D. Pa. 2009) (finding

that concealment was an affirmative act in a state-created danger analysis); see also Doe

v. Allentown School District, 2007 WL 2814587, at *6 (E.D. Pa. Sept. 21, 2007) (noting

that concealment could constitute an affirmative act for purposes of the state-created

danger theory). Moreover, the Sixth Circuit has held that mere words by a school official

can constitute an affirmative act. Richardson v. Huber Heights City Sch. Bd. of Educ.,

651 F. App’x 362, 363 (6th Cir. 2016) (finding that a coach telling a high school athlete

“take care of it,” regarding a fight between teammates, constituted an affirmative act).

Accordingly, the Court finds that, in the light most favorable to the Plaintiffs, CPS

Defendants’ affirmative misrepresentation to Taye’s mother about the bathroom attack

and concealment of bullying at Carson constitute affirmative acts.

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Having determined that CPS Defendants committed an affirmative act, the Court

must consider “ whether the individual was safer before the state action than after it.”

Stiles, 819 F.3d at 854 (6th Cir. 2016). Here, Plaintiffs allege that CPS Defendants’ acts

increased danger to Taye because they prevented Taye’s parents from getting an accurate

medical diagnosis as Taye was not checked for head trauma. Moreover, the CPS

Defendants’ acts caused Taye’s mother to send Taye back to school two days after the

bathroom attack, whereupon he was bullied in the bathroom again. A reasonable juror

could find that Defendants’ acts placed Taye in more danger. Therefore, Plaintiffs have

adequately alleged the first element of the state-created danger analysis.

ii. Special Danger

CPS Defendants argue that any affirmative act did not specifically place Taye in

danger, as opposed to the public at large. McQueen, 433 F.3d at 468 (citing Kallstrom v.

City of Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998)). This argument is without merit.

CPS Defendants’ affirmative misrepresentations to Taye’s mother clearly put Taye in

special danger that was not shared with the public at large. Therefore, Plaintiffs have

adequately alleged the second element of the state-created danger analysis.

iii. Mental State

CPS Defendants contend that the state-created danger claims should be dismissed

because CPS Defendants did not act with deliberate indifference. McQueen, 433 F.3d at

469. Deliberate indifference requires that the CPS Defendants “both be aware of facts

from which the inference could be drawn that a substantial risk of serious harm exists,

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and . . . also draw that inference.” The Sixth Circuit has equated deliberate indifference

with “subjective recklessness,” allowing it to be “‘proven circumstantially by evidence

showing that the risk was so obvious that the official had to have known about it.’”

Richardson, 651 F. App’x at 365 (citing Bukowski v. City of Akron, 326 F.3d 702, 710

(6th Cir 2003)).

Here, Plaintiffs have alleged facts that show recklessness and deliberate

indifference by CPS Defendants. A reasonable juror could find that CPS Defendants

should have known that making affirmative misrepresentations to Taye’s mother that

Taye had just fainted, not been knocked unconscious, would result in a substantial risk of

serious harm. Additionally, the amended complaint alleges that CPS Defendants knew

that one of the risks of bullying is suicide. (Doc. 21-1 at ¶¶ 94–98, 100–102). As the

Court discusses in greater detail infra (Section III(B)(4)(a)), the Sixth Circuit has found

that suicide is a foreseeable consequence of bullying. Tumminello v. Father Ryan High

School, Inc., 678 Fed. App’x 281, 288 (6th Cir. 2017) (“If a school is aware of a student

being bullied but does nothing to prevent the bullying, it is reasonably foreseeable that

the victim of the bullying might resort to self-harm, even suicide.”) Therefore, Plaintiffs

have adequately plead that CPS Defendants acted with deliberate indifference.

Accordingly, Plaintiffs have plead each element of a state-created danger claim

and CPS Defendants’ motion to dismiss Count I is denied.

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b. Substantive Due Process – Special Relationship (Count II)

Plaintiffs allege that CPS Defendants committed a due process violation because a

“special relationship” existed between Taye and the CPS Defendants. Under this theory,

“certain ‘special relationships’ created or assumed by the State with respect to particular

individuals may give rise to such an affirmative duty and are enforceable through the Due

Process clause to provide adequate protection.” Soper v. Hoben, 195 F.3d 845, 852 (6th

Cir. 1999) (citing DeShaney, 489 U.S. 189). Generally, the special relationship doctrine

has been limited to “incarceration, institutionalization, or other similar restraint of

personal liberty” and foster care. DeShaney, 489 U.S. at 200, 201 n.9.

CPS Defendants contend that Count II should be dismissed because the school-

student relationship is not a “special relationship.” Indeed, compulsory school attendance

laws do not create a “special relationship” giving rise to a constitutional duty. Soper, 195

F.3d at 853. Moreover, since DeShaney, every circuit court to address the issue has

found that no special relationship exists between students and school administrators. See,

e.g., Id. at 852; Stiles, 819 F.3d at 854; K.B. v. Waddle, 764 F.3d 821, 824 (8th Cir.

2014); Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 856 (5th

Cir. 2012) (en banc); Patel v. Kent Sch. Dist., 648 F.3d 965, 973 (9th Cir. 2011). The

Court therefore agrees with Defendants. Plaintiffs present no facts that warrant breaking

from the established precedent that no constitutional duty arises from the school-student

relationship.

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Therefore, Plaintiffs have failed to allege facts establishing a “special relationship”

and CPS Defendants’ motion to dismiss Count II is granted.

c. Substantive Due Process – Shocks the Conscience (Count III)

CPS Defendants seek to dismiss Plaintiff’s third grounds for alleging a substantive

due process violation, which third ground is that CPS Defendants’ actions “shock the

conscience.” Substantive due process protects individuals from “government actions that

“shock the conscience.” Range v. Douglas, 763 F.3d 573, 588 (6th Cir. 2014) (citing Bell

v. Ohio State Univ., 351 F.3d 240, 249–50 (6th Cir. 2003)). “It also protects the right to

be free from ‘arbitrary and capricious’ governmental actions, which is another

formulation of the right to be free from conscience-shocking actions.” Id. (citing Bowers

v. City of Flint, 325 F.3d 758, 763 (6th Cir. 2003); Pearson v. City of Grand Blanc, 961

F.2d 1211, 1216–17 (6th Cir. 1992). “Conduct shocks the conscience if it ‘violates the

decencies of civilized conduct.’” Id. (citing Cty. of Sacramento v. Lewis, 523 U.S. 833,

846–47 (1998)). Actions that shock the conscience are generally so brutal and offensive

that they do not comport with traditional ideas of fair-play and decency. Id. at 589–90.

Here, Plaintiffs’ complaint is replete with allegations of shocking actions by CPS

Defendants. Plaintiffs’ opposition to the motion to dismiss cites numerous alleged

actions that are conscience shocking, including (1) concealing and covering-up the level

of violence Taye faced at Carson, (2) affirmatively mispresenting the bathroom attack

and the extent and cause of Taye’s injuries; (3) destroying surveillance recordings for the

purpose of covering up the danger at Carson; (4) encouraging violence at Carson; and

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(5) encouraging injuries from violence to be minimized. (Doc. 19 at 21). Frankly, the

allegations that the CPS Defendants were aware that Taye had been knocked unconscious

for several minutes by an incident of bullying and then – instead of calling the ambulance

(as CPS’s policy on head trauma required) so Taye could receive medical care and

notifying Taye’s mother of what happened to her eight-year old son – they lied to his

mother telling her that Taye had just fainted, shocks the conscience of the Court.

Additionally, the Sixth Circuit has provided three factors to consider in

determining whether deliberately indifferent actions shock the conscience: “1) the

voluntariness of the plaintiff’s relationship with the government, 2) whether there was

time for the government actor to deliberate, and 3) whether the government actor was

pursuing a legitimate governmental purpose.” Range, 763 F.3d at 590. First, Taye’s

relationship with the CPS Defendants, while not a “special relationship,” was not

voluntary as attendance at school was mandatory. Second, CPS Defendants had a

considerable amount of time to deliberate their decision to affirmatively misrepresent the

bathroom attack to Taye’s mother, and they had a considerable amount of time to

deliberate their continued covering up of bullying at Carson. Third, the Court can think

of no legitimate government purpose for why the CPS Defendants would affirmatively

misrepresent the bathroom attack to Taye’s mother, would not follow school policy to

contact emergency care when Taye suffered a head injury, and would cover up bullying

at Carson. Therefore, the Range factors support the finding that the CPS Defendants’

actions shock the conscience.

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Viewing the facts in the light most favorable to Plaintiffs, a jury could find that the

alleged actions of the CPS Defendants shock the conscience. Accordingly, the CPS

Defendants’ motion to dismiss Count III is denied.

2. Equal Protection (Count IV)

Next, Plaintiffs allege that CPS Defendants violated Taye’s equal protection

rights. “The Sixth Circuit recognizes two methods of proving an equal protection

violation based on a school official’s response to peer harassment: (1) disparate treatment

of one class of students who complain about bullying as compared to other classes of

students . . . and (2) deliberate indifference to discriminatory peer harassment.” Stiles,

819 F.3d at 851-52.

Here, the Plaintiffs allege that the CPS Defendants violated Taye’s equal

protection rights by treating students injured by bullying and aggression differently than

students injured in accidents. Plaintiffs allege that “[w]hile students who experience

accidents at school are given appropriate and adequate medical treatment, and their

parents are informed of the incident, students who are victims of bullying and student-on-

student aggressive behavior are not protected, their medical needs are not taken seriously,

and their parents are not informed of the incident or the injury, thus depriving them of the

ability to protect their son.” (Doc. 21-1 at 36–37).

CPS Defendants argue that Plaintiffs do not identify any discrimination as

between two different classes of students and only that Defendants treated Taye

differently in two different situations. (Doc. 13 at 18). However, Plaintiffs complaint is

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rife with examples of bullying victims not receiving appropriate medical treatment and

their parents not being informed of bullying incidents. (Doc. 21-1 at ¶¶ 56–60). While

the amended complaint only contains one allegation of a student receiving disparate

treatment from a non-bullying related injury (Id. at ¶¶ 117-18), that is sufficient at the

motion to dismiss stage. Moreover, CPS Defendants have not provided any rational basis

for why the school would provide differential treatment to injured students based on the

cause of the injury.

Accordingly, Plaintiffs have adequately plead an equal protection claim and CPS

Defendants’ motion to dismiss Count IV is denied.

3. Cincinnati Public Schools Municipal Liability (Count V)

Plaintiffs also bring a municipal liability claim under § 1983 against the Board

Defendants. Having already shown a § 1983 violation by CPS Defendants, in order to

plead municipal liability against Board Defendants, Plaintiffs must demonstrate that the

violation of their rights was caused by a policy, custom, or practice of the

municipality. Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 690–

92 (1978). The Sixth Circuit has identified four avenues a plaintiff may take to allege

municipal liablity: “(1) the existence of an illegal official policy or legislative enactment;

(2) that an official with final decision making authority ratified illegal actions; (3) the

existence of a policy of inadequate training or supervision; or (4) the existence of a

custom of tolerance or acquiescence of federal rights violations.” Burgess v. Fischer, 735

F.3d 462, 478 (6th Cir. 2013).

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Plaintiffs assert each of these grounds for municipal liability: (1) that CPS’s anti-

bullying policy is unconstitutional (Doc. 19 at 28); (2) that the Board Defendants had a

custom of inaction related to bullying and aggression (id. at 26–28); (3) that the Board

Defendants failed to adequately train and supervise the Carson Defendants and other

school officials (id. at 29–31); and (4) that the Board Defendants ratified the

unconstitutional acts of the Carson Defendants. (Id. at 32–33).

a. CPS Anti-Bullying Policy

First, the Court agrees with Defendants that the Ohio anti-bullying policy, O.R.C.

§ 3313.666(A)(2), and the CPS “Bullying and Other Forms of Aggressive Behavior”

policy (Doc. 13 at Ex. A) are not facially unconstitutional. 6 Plaintiffs provides no legal

support for why not including their definition of “aggressive behavior” in the CPS anti-

bullying policy makes the policy unconstitutional. Therefore, Defendants’ motion to

dismiss Plaintiffs’ theory of municipal liability based on the constitutionality of the anti-

bullying policy is granted.

b. Board Defendants’ Custom of Inaction

While the Court finds that the CPS anti-bullying policy is not unconstitutional,

Plaintiffs have also alleged that the CPS Defendants developed a custom of covering up

6
The Court is wary of the definition of “bullying, harassment, or intimidation” in both policies.
These policies only define bullying as acts in which a student or group of students commit verbal
or physicals acts more than once towards a particular student. Under these policies, one student
committing violent acts against 100 other students one time each would not qualify as bullying.
Inversely, 100 different students committing 100 acts of violence against one particular student
would not qualify as bullying. The Court is skeptical that these policies in fact prevent the type
of aggressive behavior that occurred at Carson and ultimately led to Taye’s suicide.

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bullying and failing to act to prevent bullying at Carson. To state a municipal liability

claim under an “inaction” theory, Plaintiffs must establish: (1) the existence of a clear

and persistent pattern of § 1983 violations by the school employees; (2) notice or

constructive notice on the part of the Board Defendants; (2) the Board Defendants’ tacit

approval of the unconstitutional conduct, such that their deliberate indifference in their

failure to act can be said to amount to an official policy of inaction; and (4) the Board of

Director’s custom was the “moving force” or direct causal links in the constitutional

deprivation. See Doe v. Claiborne County, 103 F.3d 495, 508 (6th Cir.1996); Powers v.

Hamilton County Pub. Defender Comm'n, 501 F.3d 592, 607 (6th Cir.2007); Arendale v.

City of Memphis, 519 F.3d 587, 599–600 (6th Cir. 2008).

First, the Court has found that Plaintiffs have demonstrated both substantive due

process and equal protection § 1983 violations and their amended complaint is replete

with facts that, taken as true, amount to a pattern of constitutional violations. Second, the

Plaintiffs allege that Defendants McKenzie and Jackson documented a pattern of bullying

and aggression, including injuries to students, in their student behavior logs, which were

available to the Board Defendants. (Doc. 21-1 at ¶¶ 20–61). Moreover, the fact that

Carson officially reported zero (0) incidents of bullying in the first half of Taye’s third-

grade year, even though the behavior log documented several events described as

bullying, may ultimately show that the Board Defendants were aware that bullying was

being concealed at Carson. (Id. at ¶ 29). Third, Plaintiffs allege that the Board

Defendants’ deliberate indifference is demonstrated in their awareness of bullying at

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Carson and their tacit approval of the CPS Defendants actions to conceal that bullying.

Plaintiffs note that at the time of their filing of the initial complaint, the Board

Defendants had not investigated the bullying, aggression, and violence that Taye suffered

at Carson, including the bathroom attack. (Id. at ¶ 141). A reasonable juror could find

this tacit approval of covering-up and failing to investigate incidents of bullying at

Carson reflects recklessness and deliberate indifference on the part of Board Defendants.

Fourth, Plaintiffs allege that the Board Defendants’ custom of not investigating incidents

of bullying and aggression, not treating victims, not notifying parents, and not reporting

the bullying incidents were a moving force behind Taye’s death. These allegations are

sufficient to survive a motion to dismiss.

c. Inadequate Training and Supervision

Plaintiffs also contend that the Board Defendants failed to adequately train and

supervise the Board Defendants and other Carson officials on how to respond to the

aggressive behavior at Carson. (Doc. 19 at 29–31). “To succeed on a failure to train or

supervise claim, the plaintiff must prove the following: (1) the training or supervision

was inadequate for the tasks performed; (2) the inadequacy was the result of the

municipality's deliberate indifference; and (3) the inadequacy was closely related to or

actually caused the injury.” Ellis ex rel. Pendergrass v. Cleveland Mun. School Dist.,

455 F.3d 690, 700 (6th Cir. 2006).

The Court already found supra (Section III(B)(3)(b)) that Plaintiffs have

adequately plead that the Board Defendants acted with deliberate indifference and that

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the Board Defendants’ deliberate indifference was closely related to or actually caused

Taye’s injuries. As to the first prong, Plaintiffs state that the Board Directors failed to

train or supervise their staff to ensure that they complied with their legal obligations and

the CPS anti-bullying policy. There are a number of allegations in the amended

complaint that suggest that the CPS Defendants were not adequately trained or supervised

in how to respond to bullying at Carson, including how they reported bullying in

behavior logs and how they reported bullying incidents pursuant to O.R.C. § 3313.666,

how they communicated (or did not communicate) incidents of bullying to parents of

bullied children, and how they treated the injuries of bullied students. Taken as true,

Plaintiffs have successfully alleged that the Board Defendants did not adequately train

and supervise school officials, including the Carson Defendants. Therefore, Plaintiffs’

allegation that the Board Defendants inadequately trained/supervised Carson officials

provides another basis for municipal liability.

d. Ratification

The final basis Plaintiffs allege for municipal liability is that the Board

Defendants, as final policymakers, ratified the unconstitutional acts of the Carson

Defendants. It is undisputed that the Board Defendants were final policymakers. The

Sixth Circuit recognizes two methods for finding ratification: (1) when an individual with

policymaking authority issues a final decision affirming a subordinate’s decision on the

merits or otherwise, and thereby adopting it as municipal policy, Meyers v. City of

Cincinnati, 14 F.3d 1115, 1118–19 (6th Cir. 1994), and (2) when a policymaker fails to

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meaningfully investigate the acts of a subordinate. Leach v. Shelby Cty. Sherriff, 891

F.2d 1241, 1246–48 (6th Cir. 1989). Plaintiffs allege that Board Defendants failed to

investigate the unconstitutional acts of the Carson Defendants and therefore ratified their

actions.

“[E]vidence that a municipality inadequately investigated an alleged

constitutional violation can be seen as evidence of a policy that would condone the

conduct at issue.” Otero v. Wood, 316 F. Supp. 2d 612, 627–28 (S.D. Ohio 2004). “A

municipality fails to meaningfully investigate when it does not conduct any investigation

into the alleged unconstitutional conduct.” Baker v. Union Tp., Ohio, 2013 WL 4502736,

*23 (S.D. Ohio Aug. 22, 2013) (denying summary judgment in finding municipal liability

based on ratification). Here, Plaintiffs allege that at the time of filing the initial

complaint, Board Defendants had conducted no investigation into the events leading to

Taye’s suicide, including the bathroom attack. (Doc. 21-1 at ¶ 109). Taken as true,

Plaintiffs have clearly alleged that Board Defendants, as final policymakers, ratified the

unconstitutional acts of the Carson Defendants.

At this point, the Court finds that the Plaintiffs’ allegations go beyond mere

conclusory allegations in their municipal liability claim against the Board Defendants. It

remains to be seen whether Plaintiffs will ultimately prevail on their municipal liability

claim, or even survive summary judgment, but Plaintiffs are entitled to discovery. See

Laning v. Doyle, 2015 WL 710427, at *12 (S.D. Ohio Feb. 18, 2015) (denying

defendants’ motion to dismiss § 1983 municipal liability claims and finding that

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dismissing municipal liability claims where knowledge of custom, policy, and practice is

unobtainable absent some preliminary discovery can lead to unfair results). Accordingly,

CPS Defendants’ motion to dismiss Count V is denied.

4. State Claims

Plaintiffs also allege an array of state law claims against the Carson Defendants.

As an initial matter, Defendants move to dismiss all these claims because they contend

that they have political subdivision immunity. The Ohio Political Subdivision Immunity

Act grants immunity from suit to any government employee sued in his individual

capacity unless:

(a) The employee’s acts or omissions were manifestly outside

the scope of the employee’s employment or official
responsibilities;

(b) The employee’s acts or omissions were with malicious

purpose, in bad faith, or in a wanton or reckless manner;

(c) Civil liability is expressly imposed upon the employee by

a section of the Revised Code.

O.R.C. § 2744.03(A)(6).

The Court already found supra (Section III(B)(1)(a)(iii)) that the Carson

Defendants alleged acts were, at a minimum, reckless. Therefore, the Carson Defendants

do not have political subdivision immunity under the exception provided by O.R.C.

§ 2744.03(A)(6)(b).

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a. Wrongful Death (Count VI)

Plaintiffs bring a claim for wrongful death against the Carson Defendants. To

maintain a claim for wrongful death under Ohio law, a plaintiff must show “(1) the

existence of a duty… (2) a breach of that duty, and (3) proximate causation between the

breach of duty and the death.” Littleton v. Good Samaritan Hosp. & Heath Ctr., 39 Ohio

St.3d 86, 92, 529 N.E.2d 449 (1988). School officials have a duty “to exercise that care

necessary to avoid reasonably foreseeable injuries to their students.” Estate of Smith v.

W. Brown Local Sch. Dist., 26 N.E.3d 890, 899 (12th Dist. App. 2015), appeal not

allowed sub nom. Estate of Smith v. Burrows, 36 N.E.3d 189 (Ohio 2015). An injury is

foreseeable if a reasonably prudent person should have anticipated that injury would be

the “probable result of the performance or nonperformance of an act.” Id.

Thus, as Defendants argue, Carson Defendants can be held liable only if Taye’s

suicide was reasonably foreseeable. (Doc. 13 at 28 (citing Fischer v. Morales, 526

N.E.2d 1098, 1101 (Ohio App. 10th Dist. 1987)). Plaintiffs make numerous allegations

that Taye’s suicide was a reasonably foreseeable consequence of the bullying he suffered,

including that the CPS anti-bullying policy included a disclaimer noting that suicide was

a known risk of bullying. (Doc. 21-1 at ¶¶ 95–99, 133). Defendants argue that, while

bullying or a loss of consciousness can lead to suicide, “[s]chool officials would have no

reason to think it is likely that Taye would kill himself.” (Doc. 13 at 28). Under Ohio

law, there is no bright line rule dictating whether school officials are liable for the

suicides of students who were victims of bullying. See Mohat v. Horvath, 11th Dist.

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Lake No. 2013-L-009, 2013-Ohio-4290, 2013 WL 5450296 (holding school official

liable for student’s suicide where school official failed to take action to alleviate

bullying); Galloway v. Chesapeake Union Exempted Vill. Sch. Bd. of Educ., 2012 WL

5268946, at *5–7 (S.D. Ohio Oct. 23, 2012) (same); but see Estate of Smith, 26 N.E.3d at

892-95 (dismissing wrongful death claim finding that student’s suicide from bullying was

not foreseeable).

Although applying Tennessee law, the Sixth Circuit’s recent decision in

Tumminello is informative in determining whether Taye’s suicide was reasonably

foreseeable:

Our newspapers and television networks consistently report

instances when young people harm themselves or others after
being bullied by their peers. Such occurrences may not be
common within an individual school, but because reports of
these tragedies are consistent and well-publicized, all school
districts should realize that self-harm is a reasonably
foreseeable result of bullying, without requiring specific
evidence of the victim's mental state. If a school is aware of
a student being bullied but does nothing to prevent the
bullying, it is reasonably foreseeable that the victim of the
bullying might resort to self-harm, even suicide.

Tumminello, 678 Fed. App’x at 288 (emphasis added). The Sixth Circuit ultimately

affirmed the dismissal of wrongful death claims against the school in finding that the

student’s suicide was not foreseeable because the plaintiff’s complaint did not include

facts alleging that the school was aware of abuse and harassment that the student

experienced. That is not the case here. Plaintiffs have alleged not only that the Carson

Defendants were aware that Taye was a victim of abuse and harassment, but that they

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concealed that abuse and harassment from Taye’s parents. Therefore, the Court finds that

Taye’s suicide was a reasonably foreseeable consequence of the bathroom attack and the

Carson Defendants’ cover-up of that attack.

Accordingly, Defendants motion to dismiss Count VI is denied.

b. Intentional Infliction of Serious Emotional Distress (Count VIII)

Plaintiffs next bring a claim against the Carson Defendants for intentional

infliction of emotional distress. Under Ohio law, a claim for intentional infliction of

emotional distress requires a showing of intentional or reckless, extreme and outrageous

conduct that causes severe emotional distress. Lundy v. General Motors Corp., 101 Fed.

App’x 68, 73–74 (6th Cir. 2004) (citing Yeager v. Local Union 20, 6 Ohio St.3d 369, 453

N.E.2d 666, 671 (1983)). In order to survive a motion to dismiss, it is sufficient for a

plaintiff to allege that as “direct and proximate cause of Defendants’ intentional, reckless

and/or negligent infliction of emotional distress Plaintiffs have suffered severe

humiliation, distress, depression, and anxiety.” Ponder v. Bank of America, N.A., 2011

WL 8307207, *7 (S.D. Ohio Mar. 8, 2011).

As discussed supra (Section III(B)(1)(a)(iii)), Plaintiffs have adequately alleged

that the Carson Defendants acted recklessly, which was a moving force behind Taye’s

suicide. The amended complaint alleges that Carson Defendants’ reckless actions, which

led to Taye’s suicide, caused Taye and his parents severe emotional distress. (Doc. 21-1

at ¶¶ 200–01). Understandably, the Carson Defendants do not refute that the Plaintiffs

have suffered severe emotional distress. Therefore, Plaintiffs have adequately plead a

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claim for intentional infliction of emotional distress.

Accordingly, Defendants’ motion to dismiss Count VIII is denied.

c. Negligent Infliction of Emotional Distress (Count IX)

Next, Plaintiffs allege that the Carson Defendants (1) negligently inflicted

emotional distress on Ms. Reynolds as a bystander to Taye’s suicide and (2) negligently

inflicted emotional distress on Ms. Reynolds and Mr. Taye as bystanders to watching the

recording of the bathroom attack. (Id. at ¶¶ 202–03). Under Ohio law, Plaintiffs must

allege (1) that they were bystanders, (2) that they “reasonably appreciated the terror that

took place, whether or not the victim suffered actual physical harm,” and (3) that they

“suffered serious emotional distress as a result of this cognizance or fear of peril.” Walker

v. Firelands Cmty. Hosp., 170 Ohio App. 3d 785, 798 (6th Dist. App. 2007).

On Plaintiffs’ first grounds for negligent infliction of emotional distress,

Defendants merely argue that this claim is derivative of her wrongful death claim and

should be dismissed “because they are not responsible for the underlying wrongful death

tort.” (Doc. 13 at 33). However, the Court already found that Plaintiffs have adequately

alleged a wrongful death claim against Carson Defendants. (Supra Section III(B)(4)(a)).

Defendants make no other argument for why Ms. Reynold’s first grounds for negligent

infliction of emotional distress should be dismissed and the Court finds that Plaintiffs

have adequately plead each element of the claim. Accordingly, as to Plaintiff Reynold’s

first grounds for relief under Count IX, Defendants’ motion to dismiss is denied.

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On Plaintiffs’ second grounds for negligent infliction of emotional distress,

Defendants argue that, by watching the video of the bathroom attack on Taye, Ms.

Reynolds and Mr. Taye were not in fact bystanders to the incident. This argument is

well-taken. Ohio courts have found that watching a video recording of a traumatic event

that has already occurred does not make an individual a bystander. Dalton v. Fort

Hamilton-Hughes Mem’l Hosp., 1998 WL 191418 at *2 (Ohio 12th Dist. App. 1998).

Accordingly, Defendants’ motion to dismiss the second grounds for relief under Count

IX is granted.

d. Loss of Consortium (Count X)

Plaintiffs Reynolds and Taye, as mother and father of Gabriel Taye, bring a loss of

consortium claim against the Carson Defendants. A “parent may recover damages, in a

derivative action against a third-party tortfeasor who intentionally or negligently causes

physical injury to the parent’s minor child for loss of filial consortium.” Gallimore v.

Children’s Hosp. Med. Ctr., 67 Ohio St.3d 244, 251, 617 N.E.2d 1052 (1993). A loss of

consortium claim is “derivative in that the claim is dependent upon the Defendant’s

having committed a legally cognizable tort.” Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84,

93, 585 N.E.2d 384 (1992).

Defendants only argument against Plaintiffs’ loss of consortium claim is that

Plaintiffs have no cognizable claims against the Carson Defendants. However, the

Plaintiffs have adequately plead several legally cognizable torts and have adequately

plead all of the elements of a loss of consortium claim.

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Accordingly, Defendants’ motion to dismiss Count X is denied.

e. Failure to Report Child Abuse (Count XI)

Plaintiffs additionally allege that the Carson Defendants failed to report child

abuse. The Ohio statute mandating reporting of suspected child abuse or neglect provides

in relevant part:

No person… who is acting in an official or professional

capacity and knows, or has reasonable cause to suspect based
on facts that would cause a reasonable person in a similar
position to suspect, that a child… has suffered or faces a
threat of suffering any physical or mental wound, injury,
disability, or condition of a nature that reasonably indicates
abuse or neglect of the child shall fail to immediately report
that knowledge.

O.R.C. § 2151.421(A)(1)(a).

Essentially, Plaintiffs argue that the bathroom attack by students at Carson was an

act of child abuse and the Carson Defendants failed to report that abuse to a children’s

services agency or law enforcement, as required. Defendants point out that putting

Plaintiff’s definition of child abuse into effect would lead to law enforcement or

children’s services being called for every incident of peer-on-peer violence. Defendants

additionally note that no court has ever defined an altercation between elementary school

students as child abuse. (Doc. 13 at 35). The Court agrees with Defendants. Plaintiffs’

proposed reading of the child abuse statute is over-expansive and leads to absurd results.

Accordingly, Defendants motion to dismiss Count XI is granted.

f. Spoliation (Count XII)

Finally, Plaintiffs allege that the CPS Defendants spoiled evidence. To adequately

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plead a claim for spoliation, Plaintiffs must show “(1) pending or probable litigation

involving the plaintiff, (2) knowledge on the part of defendant that litigation exists or is

probable, (3) willful destruction of evidence by defendant designed to disrupt the

plaintiff's case, (4) disruption of the plaintiff's case, and (5) damages proximately caused

by the defendant's acts.” Smith v. Howard Johnson Co., 615 N.E.2d 1037, 1038 (Ohio

1993).

Defendants’ only argument is that Plaintiffs do not have any cognizable tort claims

against Defendants and therefore Plaintiffs cannot show any damages resulting from the

alleged spoliation. (Doc. 13 at 36–37). Again, the Court has found that Plaintiffs have

adequately alleged several cognizable torts against CPS Defendants. The Court finds that

Plaintiffs have pled each element of a spoliation claim. As the majority of Plaintiffs’

claims survive Defendants’ motion to dismiss, the CPS Defendants’ alleged destruction

of surveillance tapes will likely disrupt Plaintiffs’ case going forward.

Accordingly, Defendants’ motion to dismiss Count XII is denied.

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IV. CONCLUSION

For the foregoing reasons:

1) Plaintiffs’ motion to amend the complaint (Doc. 21) is GRANTED;

Plaintiffs shall file the amended complaint (Doc. 21-1) forthwith as a
separate docket entry;

2) Defendants’ motion to dismiss (Doc. 13) is GRANTED IN PART and

DENIED IN PART as follows:

a. Defendants’ motion to dismiss Counts II and XI is GRANTED,

and those claims are DISMISSED.

b. Defendants’ motion to dismiss Counts I, III, IV, VI, VIII, X, and

XII are DENIED, and those claims shall proceed.

c. Defendants’ motion to dismiss Plaintiffs’ claim for municipal

liability (Count V) is GRANTED as to ground one
(unconstitutional policy) and DENIED as to grounds two, three,
and four (custom, inadequate training/supervision, ratification).
Count V shall so proceed.

d. Defendants’ motion to dismiss Plaintiffs’ claim for negligent

infliction of emotional distress (Count IX) is DENIED as to
ground one (Doc. 21-1 at ¶ 202) and GRANTED as to ground
two (Id. at ¶ 203). Count IX shall so proceed.

IT IS SO ORDERED.

Date: 9/24/18
Timothy S. Black
United States District Judge

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