A.M., et al.,

Plaintiffs,

V. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Case No: 17-cv-177-RCL
BRIDGES PUBLIC CHARTER SCHOOL, et al..

Defendants.

MEMORANDUM OPINION

I. BACKGROUND Plaintiffs Melissa Koplow McCall and Matthew McCall filed suit before this Court individually and on behalf of their minor daughter, A.M., a six-year-old child suffering from multiple disabilities. Plaintiffs brought this suit against Bridges Public Charter School ("Bridges"), A.M.'s former elementary school where she received special education services; Kristine Rigley, principal ofBridges;and fourcurrentand/orformerteachers and assistantteachers at Bridges: Collette Burts, Kristen Williams, Donise Wiggins, and Shantelle Fuller (collectively referred to as the"Burts Defendants"). Plaintiffs allege that A.M. and other special education students "were subject to ongoing physical and verbal abuse." ECF No. 10, Second Amended Complaint, 1[17. For instance, plaintiffs assert that on numerous occasions the Burts Defendants would "place A.M. on her cot during naptime, pile beanbag chairs on top of her,andplace theirfeet andlegs on top ofthebean bag chairs to pin A.M. to her cot and completely restrain her from being able to move." Id. at fl 7. Plaintiffs describe numerous other incidents ofabuse, id. at1[21, and allege that defendant Rigley

### was aware ofthe abuse and failed to respond, id. at 122. Based on these allegations, plaintiffs assert ten causes ofaction against the defendants in their Second Amended Complaint. Defendants Badges and Ripley moved forpartial dismissal of plaintiffs' Second Amended 

### Complaint' ECF No. 13. Subsequent to their motion and the response and reply thereto, the parties stipulated that all claims against defendants Burts, Williams, Wiggins, Fuller, and Rigley are dismissed without prejudice by agreement. ECF No. 27. As such. Bridges is the only remaining defendant in this case. II. LEGAL STANDARD 

### To survive a motion to dismiss pursuant to Federal Rule ofCivil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to reliefthat is 

### plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting BellAll. Corp. v. 

### Twombly, 550 U.S. 544,570 (2007)). Whenconsidering a motionto dismiss underRule 12(b)(6), "thecourtmustassume 'all the allegations inthe complaintare true (evenifdoubtful in fact),' and the court must give the plaintiff 'the benefit ofall reasonable inferences derived from the facts 

### alleged.'" AktieselskabetAF21. Nov. 2001 v. FameJeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal citations omitted). A claim is facially plausible when "theplaintiffpleads factual content that allows the court 

### to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 

### 556 U.S. at678 (citing Twombly, 550 U.S. at 556). Whilethe factual allegations inthe complaint need not be "detailed," the Federal Rules require more than "an unadorned, the-defendant

### unlawfully-haimed-me accusation." Id. (citing Twombly, 550 U.S. at 555). "In determining whether a complaint states aclaim, the court may consider the facts alleged in the complaint.

ECF No. 15.

### documents attached thereto or incorporated therein, and matters ofwhich it may takejudicial notice." Stewart v. Nat'lEduc. Ass'n, 471 F.3d 169, 173 (D.C. Cir. 2006).
III. DISCUSSION As an initial matter, the Court will DENY as moot the motion for partial dismissal as it 

### relates to defendant Rigley. On November 13,2017, the parties stipulated that all claims against Rigley were dismissed by agreement. Therefore, Rigley is no longer aparty to this suit and the Court need not rule on the motion to dismiss as it relates to the claims against her. 

### Remaining before the Courtis defendant Bridges' motion for dismissal ofCounts I, V, IX, and Xof the Second Amended Complaint. The Court will first address Counts IX and X, which allege negligence and negligent supervision. Bndges argues that they must be dismissed because D.C. Code §38-1802.04(c)(17) provides that "a public charter school... shall be immune from civil liability

... unless the act or 

### omission: (1) constitutes gross negligence ..." In their response memorandum, plaintiffs agree that they must establish gross negligence under D.C. law. ECF No. 17-1 at 13. For that reason, 

### the parties agree thatBridges cannotbe liable for negligence and negligent supervision as alleged in Counts IX andX-they can only potentiallybe liable for gross negligence and gross negligent supervision as alleged m Counts IV and VI. Accordingly, the Court will DISMISS Counts IX and X ofthe Second Amended Complaint as against Bridges. Bridges furthercontends that Count 1-which alleges thatdefendants deprived A.M of her Fourth Amendment Rights to he free ofexcessive force and unreasonable seizure in violation of 42 U.S.C. §1983 ^must be dismissed because Bridges is not a"person" subject to Section 1983 liability and there is no separate respondeatsuperiortheory ofliability under Section 1983. The 

### plaintiffs concede thatthe traditional theory ofrespondeatsuperiordoes not apply in this context.

### but note that a private corporation can be held liable under Section 1983 ifits employee "acted pursuantto a custom orpolicy ofthe corporation " Smith v. Corrections Corp. of America, Inc., 

### 674 RSupp. 2d 201, 205 (D.D.C. 2009) (citingMonell v. Dep'tofSoc. Ser.s. ofNe. York, 436 U.S. 658, 694 (1978)). 

### Despite the parties briefing on this issue, there is no actual claim for reliefthat the Court 

### can dismiss. The plaintiffs do not specifically allege in the Second Amended Complaint that 

### defendant Bridges violated Section 1983. Under their First Claim for Relief-the Section 1983 violation-plaintiffs allege that "the Defendants HURTS, WIGGINS, WILLIAMS, and/or FULLER deprived A.M. of her right under the Fourth Amendment." ECF No. 10, Second 

### Amended Complaint, 131 (emphasis in original). Paragraphs 33 and 34 only make allegations againstdefendants Hurts and Rigley. Additionally, theonlygeneral referenceto all thedefendants is inparagraph 35: "Defendants' conductwas a substantial factor in causingPlaintiffA.M.'s harm as descnbedherein." There is no mention ofdefendant Bridges, nor a general reference to all the 

### defendants violating the statute, throughout the claim for relief. Therefore, plaintiffs have not 

### adequately pleaded a claim for reliefunder Section 1983 against Bridges. Accordingly, there is nothing for the Court to dismiss. 

### Even ifplaintiffs had specifically named Bridges as having violated the statute, the Court 

### woulddismiss forfailure to state a claim forreliefunderRule 12(b)(6). In orderto find a private 

### corporationliableunderSection 1983 anemployeemusthaveactedpumuanttoacustomorpolicy and there must be a"direct causal link between a[] policy and the alleged constitutional 

### depnvation." CityofCanton. Ohio v. Harris, 489 U.S. 378,385 (1989). A customorpolicycan
cause aconstitutional violation under the following circumstances: [1] [FJor instance, the [corporation] or one ofits policymakers (could havel 

### explicitly adopted the policy that was the movingLceTrc2m2violation

... [o]r [2] a policymaker could knowingly ignore anractice that wac

ft. Smith, 674 F.Supp.2d at 206 (internal citations omitted). 

### Plaintiffs do not specifically allege that defendant Bridges, or one ofits policymakers, created a policy or custom that led to the Fourth Amendment violation. Rather they allege that 

### Rigley and otherunknown school officials were made awareofthe abuse and failed to respondto 

### thereports. SeeECFNo. 10, SecondAmendedComplaint,IfH22,27. Thosefacts seemtocomport with a theoiy ofliability under the second and third circumstances listed above. However, the pleaded facts fall short ofestablishing the high standard set out in Harris. Forone, plaintiffs do 

## not plead that defendant Rigley (the principal ofBridges) or the other unknown supervisory officials are policymakers at Bridges. But more importantly, plaintiffs fail to contend that the alleged conduct led to the constitutional violation. It is unclear to the Court, based on the facts 

### alleged in the Amended Complaint, when the school officials were made aware ofthe alleged abuse. Weretheyinformed afterthe fact orwere they made aware earlierand failed to stop fiiture abusive acts? That distinction is critical to understanding whether the school officials' alleged failure to act created a custom which led to a constitutional violation (in this case a Fourth Amendment violation). Plaintiffs have not provided sufficient factual basis to support such a theoiy. Accordingly, the Court will GRANT defendant Bridges motion to dismiss Count I. Turning to Count V, Bridges argues that plaintiffs have not adequately pleaded a claim for relief against the school because the allegations in the complaint do not meet the "strict requirements of establishing extreme and outrageous conduct" necessary to support an intentional infliction ofemotional distress ("IIED") claim. ECF No. 20 at 4. Bridges cites D.C. case law noting that "[l]iabilitywill be imposed only for conduct so outrageous in character, and so extremein degree, as to go beyond all possible bounds ofdecency, and to be regarded as atrocious, and utterly intolerable in acivilized community." Homan v. Goyal, 711 A.2d 812, 818 (D.C. 1998) (internal citations omitted). The Court does not agree that plaintiffs have not pleaded sufficient 

### facts to meet this high standard. Paragraphs 19 through 22 ofthe Second Amended Complaint detail egregious conduct that iftrue would constitute outrageous behavior. Plaintiffs assert that A.M. and her classmates were physically and verbally abused on arepeated basis as aresult of theirdisabilities. Smce at the motion to dismiss phase, the Court accepts as true the allegations in the complaint, the Court will deny defendant Bridges motion to dismiss this claim. Defendant Bridges also seeks to dismiss Counts I, II, III, VII, and VIII to the extent plaintiffs MelissaKopolow McCall andMatthew McCall ("theparents") are seekingreliefonthenown behalfas individuals, and not only on behalfoftheir daughter. To the extent plaintiffs seek relieffor loss of parent-child consortium. Bridges further asks the Courtto dismiss that claim since itis unrecognizable underD.C. law. Theplaintiffs concedethat they arenotpuisuing those claims as mdividuals, nordo they seekrelieffor loss ofparent-child consortium. There are, therefore, no
such claims to dismiss.IV. CONCLUSION For the reasons stated herein, the Court will grant in part and deny in part the motion for partial dismissal. The Court will DENY the motion as moot with respect to all claims against Rigley. The Court will also DENY the motion with respect to Claim V against defendant Bridges. The Court will GRANT the motion with respect to Claims I, IX, and X and will DISMISS those claims against Bridges. A separate Order accompanies this Memorandum Opinion.

Date: February^ 2018 Royce C. Lamberth United States District Judge