                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA




A.M., et al.,


                Plaintiffs,

       V.                                            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 four current and/or former teachers and assistant teachers

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 beanbagchairs on top of her,andplace theirfeet and legs on topofthe bean

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 of the 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 courtmust 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.'" AktieselskabetAF 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 plaintiffpleads factual 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-defendant-
unlawfully-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 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 respondeatsuperior theory ofliability under Section 1983. The
plaintiffs concede that the traditional theory ofrespondeatsuperiordoes 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 onlygeneral reference to all the defendants
 is in paragraph 35: "Defendants' conduct was asubstantial factor in causingPlaintiffA.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 reliefunder 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 underSection 1983 an employeemusthaveactedpumuanttoacustomorpolicy
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 orpolicy 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 otherunknown school officials were made aware ofthe abuse and failed to respond to
 thereports. SeeECFNo. 10,SecondAmendedComplaint,IfH22,27. Thosefacts 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 outrageous in character, and so extreme
 in 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 of the Second Amended Complaint
detail egregious conduct that if true 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 ("theparents") are seekingreliefon then-
own 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
