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"BurtsDefendants").

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 beanbagchairs on top of her,andplace theirfeet andlegs on topofthebean

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 for partial dismissal ofplaintiffs' 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 amotion to dismiss pursuant to Federal Rule ofCivil Procedure 12(b)(6), "a

complaint must contain sufficient factual matter, accepted as true, to 'state aclaim to reliefthat is

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

Twombly, 550 U.S. 544,570 (2007)). When considering amotion to dismiss under Rule 12(b)(6),

"the court must assume 'all the allegations in the complaint are true (even ifdoubtful in fact),' and

the court must give the plaintiff 'the benefit of all reasonable inferences derived from the facts

alleged.'" Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008)

(internal citations omitted).

Aclaim is facially plausible when "the plaintiffpleadsfactual content that allows the court

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

556 U.S. at 678 (citing Twombly, 550 U.S. at 556). While the factual allegations in the complaint

need not be "detailed," the Federal Rules require more than "an unadorned, the-defendantunlawfully-haimed-me accusation." Id. (citing Twombly, 550 U.S. at 555). "In determining

whether acomplaint states aclaim, the court may consider the facts alleged in the complaint.

ECF No. 15.
documents attached thereto or incorporated therein, and matters of which it may take judicial

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 Court is defendant Bridges' motion for dismissal ofCounts I, V, IX,

and Xofthe 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 that Bridges cannot be liable for negligence and negligent supervision as alleged

in Counts IX and X-they can only potentially be liable for gross negligence and gross negligent

supervision as alleged mCounts IV and VI. Accordingly, the Court will DISMISS Counts IX and

Xofthe Second Amended Complaint as against Bridges.

Bridges further contends that Count 1-which alleges that defendants deprived A.M ofher

Fourth Amendment Rights to he free of excessive 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 that the traditional theory ofrespondeatsuperior does not apply in this context.
but note that aprivate corporation can be held liable under Section 1983 ifits employee "acted

pursuant to acustom or policy ofthe corporation "Smith v. Corrections Corp. ofAmerica, Inc.,

674 RSupp. 2d 201, 205 (D.D.C. 2009) (citing Monell v. Dep't ofSoc. 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

against defendants Hurts and Rigley. Additionally, the only general reference to all the defendants

is in paragraph 35: "Defendants' conduct was asubstantial factor in causing PlaintiffA.M.'s harm

as descnbed herein." There is no mention ofdefendant Bridges, nor ageneral reference to all the

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

adequately pleaded aclaim for relief under Section 1983 against Bridges. Accordingly, there is

nothing for theCourt to dismiss.

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

would dismiss for failure to state aclaim for reliefunder Rule 12(b)(6). In order to find aprivate

corporation liable under Section 1983 an employeemust have acted pumuanttoacustomor policy and there must be a"direct causal link between a[] policy and the alleged constitutional

depnvation." City ofCanton. Ohio v. Harris, 489 U.S. 378,385 (1989). Acustom or policy can

cause aconstitutional violation under the following circumstances:

[1] [FJor instance, the [corporation] or one of its policymakers (could havel explicitly adopted the policy that was the movingLceTrc2m2
violation ... [o]r [2] apolicymaker 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 of its policymakers,

created apolicy or custom that led to the Fourth Amendment violation. Rather they allege that

Rigley and other unknown school officials were made aware ofthe abuse and failed to respond to

thereports. SeeECFNo. 10, Second AmendedComplaint, IfH 22,27. Those facts seem to comport

with atheoiy ofliability under the second and third circumstances listed above. However, the

pleaded facts fall short ofestablishing the high standard set out in Harris. For one, plaintiffs do

not plead that defendant Rigley (the principal of Bridges) 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. Were they informed after the fact or were they made aware earlier and 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 ofestablishing extreme and outrageous conduct" necessary to support an intentional

infliction of emotional distress ("IIED") claim. ECF No. 20 at 4. Bridges cites D.C. case law

noting that "[l]iabilitywill be imposed only for conduct so outrageousin character, and so extreme
in degree, as to go beyond all possible bounds of decency, 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

their disabilities. 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 Melissa Kopolow McCall and Matthew McCall ("the parents") are seeking reliefon thenown behalfas individuals, and not only on behalfoftheir daughter. To the extent plaintiffs seek

relieffor loss ofparent-child consortium. Bridges further asks the Court to dismiss that claim since

it is unrecognizable under D.C. law. The plaintiffs concede that they are not puisuing those claims

as mdividuals, nor do they seek relieffor 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