United States District Court, D. Nevada
John Phipps, individually, and as Guardian ad litem for Montgomery Phipps; and Dina Phipps, Plaintiffs,
Clark County School District; Lachelle Dean James; J. Schell; D. Couthern; and M. Caldwell, Defendants.
GLORIA M. NAVARRO, District Judge.
This § 1983 action is brought on behalf of Montgomery Phipps ("Montgomery"), a minor child, and by Montgomery's parents, John and Dina Phipps (collectively, "Plaintiffs"). Pending before the Court is the Motion to Dismiss (ECF No. 44) filed by Defendants Darnell Couthern, Matthew Caldwell, and Jeffrey Schell (collectively, "the Officer Defendants"), and Clark County School District ("CCSD") (collectively, "the CCSD Defendants"). Plaintiffs filed a Response (ECF No. 45), and the CCSD Defendants filed a Reply (ECF No. 46). With leave of the Court, Plaintiffs also filed a Supplement (ECF No. 50).
Montgomery has an identified disability known as autism, can neither speak nor write, and is "essentially non-verbal." (Am. Compl., 5:¶14, ECF No. 36.) "In the spring of 2010, [Montgomery] began attending Variety School, a school for disabled students within the Clark County School District." ( Id. at 5: ¶15.) "In August of 2011, [Montgomery] began the school year at Variety School with various substitute' teachers, " and "[a]s the school year went on, [John and Dina] noticed random rug burns and bruises on Montgomery." ( Id. at 5:¶¶16-17.)
"Plaintiffs complained to the principal of the school about this, " and "were told that the principal had investigated the matter and found that Montgomery caused his own rug burns and bruises and assured [John and Dina] that the teacher(s) had nothing to do with this." ( Id. at 5:¶17.) Plaintiffs were not informed when, at some point in 2012, and prior to March 2, 2012, "another parent from the same classroom alleged that they suspected abuse in the classroom, " and "contacted CCSD personnel, placing the CCSD on notice." ( Id. at 5:¶18, 6:¶19.)
"Specifically, on or about March 2, 2012, Sgt. D. Couthern, a supervisor within the CCSD, was made aware of specific abuse allegations regarding students in a classroom at Variety School, " who "were non-verbal autistic children." ( Id. at 6:¶19.) No parents were notified at that time, and instead, "Couthern instructed CCSD personnel M. Caldwell and J. Schell to install hidden cameras within the classroom, " which "were monitored at an off-site location via internet live feed." ( Id. at 6:¶¶20-22.)
As shown on video, on March 6, 2012, Montgomery was "subjected to torture and abuse" by Lachelle James "and a substitute teacher, " as witnessed by "Doe Classroom Teachers" within the classroom, and by "M. Caldwell and/or J. Schell" via video camera. ( Id. at 6:¶¶22-24, 7.) Defendant James was arrested the same day for child abuse and battery. ( Id. at Ex. 1.) In the Supplement, Plaintiffs also allege abuse of Montgomery's older brother, John Weston Phipps, who is also "a disabled nonverbal autistic child." (ECF No. 50.)
Plaintiffs filed suit in state court on November 6, 2012, alleging causes of action against CCSD, Lachelle James, and the Variety School. (Compl., Ex. A to Notice of Removal, ECF No. 1.) CCSD and the Variety School removed the action to this Court on January 2, 2013. ( Id. ) Defendant James was not served until June 6, 2013. (Aff. of Service, ECF No. 28.) On August 20, 2013, Plaintiffs filed an Amended Complaint (ECF No. 36) omitting the Variety School and naming the Officer Defendants as parties. On September 18, 2013, the CCSD Defendants filed the instant Motion to Dismiss (ECF No. 44).
According to Plaintiffs' Amended Complaint, "[t]his is a civil rights action... against CCSD pursuant to Title 42 U.S.C. § 1983 for deprivation of Montgomery Phipps' Constitutional civil rights and his Fourteenth Amendment interests including substantive due process rights and Fourth Amendment rights." (Am. Compl., 9:¶46.) Plaintiffs allege that "CCSD had actual or constructive knowledge during Montgomery Phipps' enrollment that teachers and agents of CCSD... were engaged in conduct that posed a foreseeable, pervasive and unreasonable risk of constitutional injury to Montgomery Phipps." ( Id. at 9:¶47.)
Plaintiffs allege that "[t]he Fourteenth Amendment liberty interest includes the right to be free from unnecessary and unreasonable force or intentional, reckless or deliberately indifferent or oppressive conduct that causes emotional or psychological harm, " and that "[e]xcessive force by a teacher, official, aide, or police against a student violates the student's constitutional rights." ( Id. at 9:¶¶48-49.) Accordingly, Plaintiffs allege that, "[w]hether reviewed in the context of reasonableness or shock the conscience, ' the actions hereinabove described violated Montgomery Phipps' constitutional rights." ( Id. at 9:¶50.)
Plaintiffs allege that "CCSD had actual and/or constructive notice and acted with deliberate indifference when":
(1) its teachers and/or aides failed to intervene in the abuse and allowed it to continue;
(2) its surveillance personnel watched the abuse take place but failed to intervene and allowed it to continue;
(3) it failed to advise the parents of students in the class that a parent had alleged and/or suspected abuse in the classroom so that the parents could make a decision for themselves about returning their student to said classroom;
(4) it failed to ensure that in watching the surveillance of the classroom that if abuse actually happened, it would be ...