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Case: 1:12-cv-00088-SA-DAS Doc #: 58 Filed: 09/19/13 1 of 29 PageID #: 388

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

ABERDEEN DIVISION

R.S. (A MINOR BY AND THROUGH
HIS NEXT FRIEND, GEORGIA SMITH) AND
GEORGIA SMITH, INDIVIDUALLY

PLAINTIFFS

V.

CIVIL ACTION NO. 1:12-CV-00088-SA-DAS

STARKVILLE SCHOOL DISTRICT;
JAMES MITCHELL, INDIVIDUALLY;
CHRIS WALTERS, INDIVIDUALLY;
TATE FISCHER, INDIVIDUALLY;
KEITH FENNELL, INDIVIDUALLY;
SEAN MCDONNALL, INDIVIDUALLY

DEFENDANTS

MEMORANDUM OPINION

Defendants have filed a Motion for Judgment on the Pleadings [42]. Additionally, the

Individual Defendants have filed a Motion to Dismiss based on qualified immunity [44]. Upon due

consideration of the motions, responses, rules, and authorities, the Court finds that Defendants’

Motion for Judgment on the Pleadings should be granted in part and denied in part, and that

Individual Defendants’ Motion to Dismiss should be denied.

FACTUAL AND PROCEDURAL BACKGROUND

R.S., a Caucasian minor, suffers from SLD (Specific Learning Disability) and Irritable Bowel

Syndrome. While a student in the Starkville School District, Plaintiffs allege R.S. was bullied,

harassed, assaulted, and otherwise mistreated by both fellow students and Starkville High School

teachers and coaches because of his race and disability. Plaintiffs allege school personnel largely

ignored, and at times actively encouraged and participated in, the mistreatment of R.S.

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Defendants request a judgment on the pleadings asserting Plaintiffs have not met their burden

under Federal Rule of Civil Procedure 12(c). Plaintiffs’ second amended complaint [28] alleges

Defendants violated Plaintiffs’ rights under the Equal Protection Clause and Substantive Due

Process Clause of the Fourteenth Amendment, 42 U.S.C. §§ 1981, 1983, and 1985, First Amendment

freedom of speech, Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation

Act of 1973, and 42 U.S.C. § 12203. Plaintiffs’ complaint also alleges that Defendants’ conduct

constitutes negligence under state law and common law infliction of emotional distress.

APPLICABLE STANDARD

“After the pleadings are closed—but early enough not to delay trial—a party may move for

judgment on the pleadings.” FED. R. CIV. P. 12(c). The Court’s inquiry on a motion for judgment

on the pleadings is necessarily limited to the pleadings themselves. See Ark. River Co. v. U.S., 840

F.Supp. 1103, 1104 (N.D. Miss. 1993) (“A motion for judgment on the pleadings is a self-

descriptive motion which aptly explains that the court's inquiry is strictly limited to the pleadings.”).

As with a Rule 12(b)(6) motion, the Court may treat a motion for judgment on the pleadings as one

for summary judgment when “matters outside the pleadings are presented to and not excluded by

the court . . .” FED. R. CIV. P. 12(d).

A Rule 12(c) motion is governed by the same standards as a Rule 12(b)(6) motion—that is,

that the Court must determine upon a review of the pleadings whether the plaintiff has stated a valid

claim for relief. Brown v. CitiMortgage, Inc., 472 F. App’x 302, 303 (5th Cir. 2012) (per curiam)

(citing St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440 n.8 (5th Cir. 2000)). “[A]

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d

929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.,

129 S. Ct. 1937.

The Fifth Circuit has further explained that this standard requires that “factual allegations

must be ‘enough to raise a right to relief above the speculative level.’” Oceanic Exploration Co. v.

Phillips Petroleum Co. ZOC, 352 F. App’x 945, 950 (5th Cir. 2009) (per curiam) (quoting Twombly,

550 U.S. at 555, 127 S. Ct. 1955). In evaluating the validity of a plaintiff’s claims, the Court “will

accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Great

Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312–13 (5th Cir. 2002).

However, the Court will not “accept as true conclusory allegations or unwarranted deductions of

fact.” Id. at 313; Brown, 472 F. App’x at 303.

ANALYSIS AND DISCUSSION

42 U.S.C. § 1981

The Court first addresses Plaintiffs’ claim that Defendants violated 42 U.S.C. § 1981. In

their motion, Defendants argue that Plaintiffs failed to plead facts sufficient to set forth a prima facie

case under § 1981. Specifically, Defendants contend Plaintiffs failed to allege intentional

discrimination by Defendants on the basis of race. They also argue Plaintiffs failed to allege

discriminatory conduct based on any activity enumerated in § 1981. Plaintiffs fail to address or even

reference the § 1981 claim in their response.

“Section 1981 does not provide a general cause of action for race discrimination. Rather, it

prohibits intentional race discrimination with respect to certain enumerated activities.” Arguello v.

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Conoco, 330 F.3d 355, 358 (5th Cir. 2003). Section 1981(a) provides, “All persons within the

jurisdiction of the United States shall have the same right in every State and Territory to make and

enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as is enjoyed by white citizens, and shall be

subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no

other.” 42 U.S.C. § 1981.

Plaintiffs’ complaint does not allege any facts that would allow the Court to reasonably infer

Defendants discriminated against Plaintiffs with regard to an activity enumerated by § 1981.

Plaintiffs generally allege in their complaint that R.S. was the victim of bullying based upon his

“status as a white disabled person and a special education student.” Plaintiffs additionally allege

that, on separate occasions, two teachers not named as parties to this suit harassed R.S. because of

his race. First, Plaintiffs allege a black teacher made “racial comments about R.S.’s skin color”

during a class discussion. Second, Plaintiffs contend another black teacher “harassed R.S. during

Black History Month programs.” While Plaintiffs’ complaint alleges many instances of racially

motivated bullying and harassment by other students, it makes no other allegations of Defendants

acting or failing to act because of his race. Whereas Plaintiffs have failed to allege facts sufficient

to suggest that Defendants discriminated against R.S. with regard to any particular enumerated

activity under § 1981, the Court finds that Plaintiffs have failed to state a claim under § 1981.

Fourteenth Amendment Equal Protection

As to Plaintiffs’ Equal Protection claim, Defendants argue that Plaintiffs’ complaint failed

to identify any similarly situated person who was treated differently than R.S. Relying on Plyler v.

Doe, Defendants maintain that by failing to identify such a person, Plaintiffs have failed to state a

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valid claim for relief arising under the Fourteenth Amendment Equal Protection Clause. 457 U.S.

202, 216, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982) (“[A]ll persons similarly circumstanced shall be

treated alike.”). Plaintiffs argue in their response memorandum that they have stated a valid claim

because all other students and football players were treated differently that R.S.

Plaintiffs’ complaint, however, does not make any allegations regarding similarly situated

persons treated differently by Defendants. In fact, Plaintiffs’ allegations are solely limited to actions

committed against R.S. without reference or comparison to any individual or group of individuals

in similar circumstances who received different treatment. While Plaintiffs assert in their response

to Defendants’ motion that they will be able to prove through the discovery process that other

students who complained of bullying and harassment saw their attackers reprimanded and punished,

no such allegation, however vague, may be found in their complaint.

“Under federal law, the Equal Protection Clause essentially directs that all persons similarly

situated be treated alike.” Wheeler v. Miller, 168 F.3d 241, 252 (5th Cir. 1999). “To state an equal

protection claim, ... [p]laintiffs must allege, inter alia, that similarly situated individuals have been

treated differently.” Yates v. Stalder, 217 F.3d 332, 334 (5th Cir. 2000). Plaintiffs did not allege that

Defendants treated R.S. differently than any similarly situated individuals. Therefore, the Court

finds that Plaintiffs failed to state a valid claim for a violation of Plaintiffs’ rights under the

Fourteenth Amendment Equal Protection Clause.

Fourteenth Amendment Substantive Due Process

Turning next to Plaintiffs’ substantive due process claim, the Court is again placed in the

position of reading between the lines of Plaintiffs’ complaint. Though the Second Amended

Complaint alleges only a violation of R.S.’s “right to safety at school,” Plaintiffs in their response

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memorandum argue that their substantive due process claim is based on a right to bodily integrity,

that a special relationship existed between R.S. and Defendants, and that Defendants created a

dangerous environment that ultimately led to the foreseeable violations of R.S.’s constitutional

rights.

Essentially, all of Plaintiffs’ allegations against Defendants may properly be classified as

either the failure to prevent and/or the encouragement of harassing and bullying conduct toward R.S.

by other students or the direct participation in bullying and harassing conduct toward R.S. by school

personnel. The Court will first address Plaintiffs’ claims in relation to harm R.S. allegedly suffered

as a result of the actions of other students.

Defendants correctly argue that they were under no duty to protect R.S. from violence

perpetrated by third parties. The Supreme Court has long held that “a State’s failure to protect an

individual against private violence simply does not constitute a violation of the Due Process

Clause.” Deshaney v. Winnebago Cnty. Dept. of Social Svcs, 489 U.S. 189, 197, 109 S. Ct. 998,

103 L. Ed. 2d 249 (1989). In Deshaney, the Supreme Court recognized a limited exception to their

holding where a state creates a special relationship with a particular citizen by taking that person

into state custody against his will. 489 U.S. at 199-200, 109 S. Ct. 998. In their response, Plaintiffs

attempt to fit within this exception by arguing that R.S.’s learning disability and/or time spent in “In

School Suspension” (ISS) created a special relationship with Defendants.

The Fifth Circuit has held in at least three separate en banc opinions that the special

relationship exception does not apply in the public school context. See Doe v. Covington Cnty. Sch.

Dist., 675 F.3d 849 (5th Cir. 2012) (en banc) (reaffirming that compulsory school attendance laws

do not create special relationship between public schools and students); Doe v. Hillsboro Indep. Sch.

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Dist., 113 F.3d 1412 (5th Cir. 1997) (en banc) (reasoning that, unlike the restraints of prisons and

mental institutions, school custody is intermittent and therefore insufficient to create a special

relationship between public schools and students); Walton v. Alexander, 44 F.3d 1297 (5th Cir.

1995) (en banc) (declining to apply the special relationship exception to a residential school). Based

on the Fifth Circuit’s clear precedent, the Court finds no legal support for Plaintiffs’ claims that

R.S.’s learning disability and/or time spent in ISS created a special relationship with Defendants.

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1

Plaintiffs also argue in their response that Defendants knowingly created a dangerous

environment that in turn led to the violation of R.S.’s constitutional right to bodily integrity by other

students. As the Fifth Circuit recently reaffirmed, though, such a state-created danger theory has

not been adopted by our Circuit. Covington, 675 F.3d at 864 (“Unlike many of our sister circuits,

we have never explicitly adopted the state-created danger theory.”); see also Kovacic v. Villarreal,

628 F.3d 209, 214 (5th Cir. 2010); Bustos v. Martini Club, Inc., 599 F.3d 458, 466 (5th Cir. 2010)

(noting that the Fifth Circuit has not recognized the state-created danger theory of liability).

Even if the state-created danger theory were to apply, Plaintiffs here fail to allege facts

sufficient to plead a violation of a constitutional right thereunder. The Fifth Circuit, though never

Plaintiffs cite a single district court opinion in support of their argument that a student’s
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learning disability may create a special relationship with a public school. See Teague ex rel.
CRT v. Texas Indep. Sch. Dist., 386 F. Supp. 2d 893 (S.D. Tex 2005). However, the district
court did not explain the circumstances in which a special relationship might exist between a
school district and a special education student, and the Fifth Circuit has not extended the special
relationship exception based on these facts. Therefore, the Court declines to extend the
exception based solely on dicta from another district court.

Plaintiffs cite no authority for the proposition that ISS fits within the meaning of custody as
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expressed in Deshaney and interpreted by the Fifth Circuit in Doe v. Hillsboro. Additionally,
Plaintiffs fail to allege that R.S. was subject to any type of detention by Defendants in their
complaint and raise the specific allegation that R.S. was placed in ISS for the first time in
response to Defendants’ motion. As such, the Court finds this argument without merit.

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expressly adopting the theory, has outlined the required elements of such a claim. In order to state

a claim for relief under the state-created danger theory, a plaintiff must allege “the defendants used

their authority to create a dangerous environment for the plaintiff and that the defendants acted with

deliberate indifference to the plight of the plaintiff.” Covington, 675 F.3d at 865. To establish

deliberate indifference in the context of state-created danger, the plaintiff must show “the

environment created by the state actors [is] dangerous; they must know it is dangerous; and . . . they

must have used their authority to create an opportunity that would not otherwise have existed for the

third party’s crime to occur.” Piotrowski v. City of Houston, 237 F.3d 567, 585 (5th Cir. 2001)

(quoting Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 201 (5th Cir. 1994)).3

Plaintiffs failed to allege in their complaint that Defendants created any such dangerous

environment. Instead, Plaintiffs allege that Defendants failed to protect R.S., failed to stop the

bullying, and failed to prevent further harassment. Similar to the state actors in Deshaney, Plaintiffs

have at most alleged Defendants stood by and did nothing to assist R.S. 489 U.S. at 203, 109 S. Ct.

998. They have not alleged any facts that would allow the Court to reasonably infer that Defendants

used their authority to create a dangerous environment and, ultimately, the opportunity for Plaintiffs’

harm.

Plaintiffs allege numerous additional facts in their response memorandum that do not appear

in Plaintiffs’ complaint, including several pages of specific allegations against each individually

The Court rejects Plaintiffs’ contention that the standard for deliberate indifference articulated
3
in Alton v. Texas A&M University applies here. 168 F.3d 196, 200 (5th Cir. 1999). The
standard in Alton applies to determine whether a supervisory official may be liable for the acts of
a subordinate. Id. (relying on Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443 (5th Cir. 1994)).
Plaintiffs have not alleged the other students were subordinates of the Defendants or acting under
color of state law. Thus, the Alton test is inapplicable.

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named defendant. Though a Rule 12(c) motion may be treated as one for summary judgment when

matters outside the pleadings are presented to the Court, the Court declines to do so in this case and

will not consider factual allegations outside the pleadings. Pursuant to Local Rule 16(b)(3)(B), the

Court stayed all matters in this case in response to the Individual Defendants’ assertion of qualified

immunity. See Porter v. Valdez, 424 F.App’x 382, 386 (5 Cir. 2011) (explaining that when

th

qualified immunity is raised at the pleading stage, the Court’s analysis must be limited to the facts

alleged in the complaint); Mitchell v. Forsyth, 472 U.S. 511, 512, 105 S. Ct. 2806, 2808, 86 L. Ed.

2d 411 (1985) (“[q]ualified immunity . . . is an immunity from suit rather than a mere defense to

liability”) (emphasis in original). Therefore, the Court declines to broaden its review to matters

outside the pleadings.

As to Plaintiffs’ argument that Defendants’ own bullying and harassing conduct toward R.S.

violated his right to bodily integrity, the Court finds such conduct, as pled in Plaintiffs’ complaint,

to be insufficient to support Plaintiffs’ substantive due process claim. Plaintiffs’ complaint sets forth

ten allegations of bullying and harassing behavior toward R.S. by teachers and coaches. Six of these

allegations refer to statements made to R.S. by teachers not named to this suit. Two of the

allegations refer to statements made by Individual Defendants. The remaining allegations state that

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“[n]o coach had spoken to R.S. in ten (10) days” and that “[c]oaches and [t]eachers refer, in R.S.

presence, to him as gay, SPED, ‘pussy,’ and other derogatory and harassing terms.” Nowhere in the

complaint do Plaintiffs allege physical harm or any physical contact committed by Defendants

against R.S. Plaintiffs’ allegations of direct bullying and harassing by Defendants do not give rise

“[Sean] McDonnell told the students R.S. ‘tattled’ on them.” “[Tate] Fisher [sic] said R.S.
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needed someone to bully him.”

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to a constitutional claim. See Ellis v. Hargrove, 75 F. App’x 229, 230 (5th Cir. 2003); Acadia Ins.

Co. v. Hinds Cnty. Sch. Dist., 2013 WL 2182799, *5 n.4 (S.D. Miss. May 20, 2013). For these

reasons, Plaintiffs have failed to state a valid claim for relief under the Fourteenth Amendment

Substantive Due Process Clause.

First Amendment Freedom of Speech

Defendants attack Plaintiffs’ First Amendment claim on the basis that Plaintiffs failed to

allege any speech curtailed by Defendants. In response, Plaintiffs direct the Court to the allegation

in the complaint that R.S. was removed from the football team in retaliation for filing the original

complaint. Plaintiffs also allege, for the first time, in their response that Defendants increased their

bullying and harassment of R.S. after Georgia Smith filed a complaint with the Mississippi

Department of Education. As previously stated, the Court is limited to a review of the pleadings in

evaluating Defendants’ motion and will only consider the allegations found within Plaintiffs’

complaint.

Looking then to the complaint, the Court finds that Plaintiffs have stated a valid claim for

First Amendment retaliation. “[T]o establish a First Amendment retaliation claim against an

ordinary citizen, [plaintiffs] must show that (1) they were engaged in constitutionally protected

activity, (2) the defendants’ actions caused them to suffer an injury that would chill a person of

ordinary firmness from continuing to engage in that activity, and (3) the defendants’ adverse actions

were substantially motivated against the plaintiffs’ exercise of constitutionally protected conduct.

Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002). The Court notes that Plaintiffs’ burden to

overcome a Rule 12(c) motion is not the same as that required by a Rule 56 motion for summary

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judgment. At this stage of litigation, Plaintiffs must have pled “only enough facts to state a claim

to relief that is plausible on its face.” Twombly, 550 U.S. at 547, 127 S. Ct. 1955.5

Plaintiffs’ filing of the original complaint is clearly constitutionally protected activity under

the First Amendment right to petition. U.S. CONST. AMEND. I; Cal. Motor Transp. Co. v. Trucking

Unlimited, 404 U.S. 508, 510, 92 S. Ct. 609, 30 L. Ed. 2d 642 (1972) (“The right of access to the

courts is indeed but one aspect of the right of petition.”). Further, Plaintiffs support their claim by

alleging that R.S. had been a member of the football team during the previous two school years and

that he was removed twelve days after the original complaint was filed. The Fifth Circuit has

previously found close timing between a plaintiff’s exercise of protected activity and the adverse

action sufficient to sustain an inference of liability for retaliation. See, e.g., Jones v. Greninger, 188

F.3d 322, 325 (5th Cir. 1999) (A prisoner may establish a prima facie case of retaliation under §

1983 by “alleg[ing] a chronology of events from which retaliation may plausibly be inferred.”);

Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (citing with approval Garrett v.

Constar, Inc., CIV. A. 397-CV-2575R, 1999 WL 354239 (N.D. Tex. May 25, 1999) (finding

plaintiff made a prima facie showing of Title VII retaliation where the adverse employment action

occurred four months after the protected activity)). Viewing these facts in the light most favorable

The Court is also cognizant of Plaintiffs’ failure to specifically name the Individual Defendants
5
in their allegations of retaliation. While Plaintiffs would be required to offer evidence
establishing the specific acts committed by each individually named defendant in order to
survive a motion for summary judgment, their burden to survive Defendants’ Motion for
Judgment on the Pleadings is much lower. Plaintiffs allege that James Mitchell, Tate Fischer,
and Chris Walters were football coaches at Starkville High School and that Keith Fennell and
Sean McDonnell were the principal and assistant principal. Whereas coaches and administrators
would likely have the authority to remove students from a school sports team, the Court finds
Plaintiffs’ retaliation claim to be facially plausible as against each Individual Defendant.
Whether Plaintiff can establish such specific proof as will be required to prevail against
Defendants is a separate question that must be addressed at a later stage of litigation.

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to Plaintiffs, the Court finds that Plaintiffs have stated a plausible claim for relief and that

Defendants’ Motion for Judgment on the Pleadings must be denied as to the First Amendment claim.

42 U.S.C. § 1985

The Court next looks to Plaintiffs’ conspiracy claim under 42 U.S.C. § 1985. Defendants

contend Plaintiffs failed to allege any underlying violation of constitutional rights. “Section 1985(3)

provides no substantive rights itself; it merely provides a remedy for violation of the rights it

designates. The primary question . . . , therefore, is whether a person[’s] injur[y]... deprive[s] [him]

of ‘the equal protection of the laws, or of equal privileges and immunities under the laws’ within the

meaning of § 1985(3).” Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 372, 99 S.

Ct. 2345, 60 L. Ed. 2d 957 (1979).

Defendants also argue that violations of due process cannot serve as the basis for a § 1985

claim and that Plaintiffs cannot state a prima facie case due to the applicability of the intracorporate

conspiracy doctrine. The Fifth Circuit has long held that “a school board and its employees

constitute a single legal entity which is incapable of conspiring with itself for the purposes of §

1985(3).” Hilliard v. Ferguson, 30 F.3d 649, 653 (5th Cir. 1994). Plaintiffs in their complaint allege

that each of the Individual Defendants was employed at all relevant times by Starkville High School.

Therefore, the Court finds that Plaintiffs have failed to state a valid claim for a violation of § 1985.

Individual Defendants’ Qualified Immunity Defense

Individual Defendants, in addition to adopting and incorporating all arguments asserted by

the School District in their joint motion for judgment on the pleadings, filed a separate motion

arguing that the doctrine of qualified immunity requires the dismissal of four of Plaintiffs’ claims

as to them individually. Specifically, Individual Defendants argue Plaintiffs failed to sufficiently

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and properly allege a violation of a clearly established constitutional right as required to sustain their

Equal Protection, Substantive Due Process, First Amendment, and § 1985 claims.

“The doctrine of qualified immunity protects government officials from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.

Ct. 808, 172 L. Ed. 2d 565 (2009) (internal quotations omitted). “[Q]ualified immunity is an

immunity from suit rather than a mere defense to liability.” Id. (internal quotations omitted). Once

a government official asserts qualified immunity, it is the plaintiff’s burden to prove that he is not

entitled to it. Michalik v. Hermann, 422 F.3d 252, 258 (5th Cir. 2005).

In evaluating qualified immunity, the Court employs a two-step process. The Court must

determine whether the plaintiff has alleged a violation of a clearly established constitutional right

and whether the government official’s conduct was objectively reasonable under the law at the time

of the incident. Id. at 257-58. “To be clearly established, a right must be sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.” Reichle v.

Howards, --- U.S. ---, 132 S. Ct. 2088, 2093, 182 L. Ed. 2d 985 (2012) (internal quotations omitted).

Further, “[i]f qualified immunity is raised in a motion to dismiss, ‘it is the defendant's conduct as

alleged in the complaint that is scrutinized for objective legal reasonableness.’” Senu–Oke v.

Jackson State Univ., 283 F. App’x 236, 239 (5th Cir. 2008) (quoting Behrens v. Pelletier, 516 U.S.

299, 309, 116 S. Ct. 834, 133 L. Ed. 2d 773 (1996)). In conducting this analysis, the Court may

address these issues in any order according to its sound discretion and in light of the circumstances

of the case at hand. Pearson, 555 U.S. at 236, 129 S. Ct. 808.

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Based upon the Court’s findings that Plaintiffs failed to state a plausible claim for relief as

to their claims under the Equal Protection Clause, Substantive Due Process Clause, and § 1985, the

Court finds the question of Individual Defendants’ qualified immunity resolved as to these claims.

See Whitley v. Hanna, 2013 WL 4029134 (5th Cir. Aug. 8, 2013) (holding that a finding of failure

to state a claim also resolves the question of qualified immunity raised in a motion to dismiss) (citing

Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 410 (5th Cir. 2009)).

As to Plaintiffs’ First Amendment claim, the law has long been clearly established that

government officials cannot retaliate against ordinary citizens for exercising their First Amendment

rights. As early as 1996, the Fifth Circuit recognized a cause of action for First Amendment

retaliation against an ordinary citizen. Rolf v. City of San Antonio, 77 F.3d 823, 827-28 (5th Cir.

1996). In 2002, the Fifth Circuit specifically endorsed the standard used by other circuits to

determine when a plaintiff has established a claim for First Amendment retaliation in cases where

there is no employment or other contractual relationship between the plaintiffs and the government.

Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002). Two years later (and eight years before the

Individual Defendants’ alleged conduct), the Fifth Circuit clarified that ordinary citizen First

Amendment retaliation claims are not subject to the public concern requirement applicable to claims

brought by public employees. Kinney v. Weaver, 367 F.3d 337, 358 (5th Cir. 2004) (“Because the

government has no legitimate interest in denying a benefit to ‘ordinary citizens’ on account of their

speech on matters of public concern, there is no interest balancing involved in the First Amendment

analysis for ‘ordinary citizen’ cases.”).

Based on the Fifth Circuit’s clear jurisprudence, the Court finds the law prohibiting

retaliation by government actors for the exercise of ordinary citizens’ First Amendment rights to

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have been so clearly established in 2012, that any reasonable official would have understood that

removing R.S. from the football team in retaliation for the filing of the original complaint would

violate the law. Therefore, taking the allegations of the complaint as true, the Court finds Plaintiffs’

complaint alleges conduct by Individual Defendants that was objectively unreasonable in light of

the clearly established law at the time, and as such, Individual Defendants are not entitled to

qualified immunity at this point in the proceedings as to Plaintiffs’ First Amendment retaliation

claim.6

Municipal Liability under § 1983

Returning to Defendants’ joint motion, Defendants contend that the School District cannot

be liable for Plaintiffs’ Equal Protection, Substantive Due Process, or First Amendment claims

because Plaintiffs’ failed to allege their injuries were caused by any official policy or custom. It is

well settled law that municipal entities may be subject to liability under § 1983. Monell v. Dep’t of

Soc. Servs. of City of N.Y., 436 U.S. 658, 690, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). However,

the doctrine of respondeat superior cannot serve as the basis for such liability. Id. at 691, 98 S. Ct.

2018 (“. . . Congress did not intend municipalities to be held liable unless action pursuant to official

municipal policy of some nature caused a constitutional tort. In particular, we conclude that a

municipality cannot be held liable solely because it employs a tortfeasor . . . ”) (emphasis in

original).

In order to succeed then, a plaintiff must be able to show that his harm was caused by a

violation of a constitutional right and that the municipal entity is itself responsible for the violation.

Defendants argue, without citing to any supporting authority, that they are entitled to the
6
dismissal of all claims against them in their individual capacities because Plaintiffs only alleged
actions committed in their official capacities. The Court finds this argument without merit and
inappropriate for a 12(c) motion.

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Pembaur v. City of Cincinnati, 475 U.S. 469, 470, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986).

“Official municipal policy includes the decisions of a government’s lawmakers, the acts of its

policymaking officials, and practices so persistent and widespread as to practically have the force

of law.” Connick v. Thompson, ---- U.S. ----, 131 S. Ct. 1350, 1359, 179 L. Ed. 2d 417 (2011).

As the Court has determined that Plaintiffs have not stated valid claims for violations of the

Equal Protection Clause and the Substantive Due Process Clause, the School District cannot be

liable as to those claims. Further, Plaintiffs allege only that Defendants failed to enforce the School

District’s policies with regard to R.S. Plaintiffs do not allege that Defendants acted, or failed to act,

in accordance with any official policy to ignore or encourage bullying or that Defendants’ conduct

was the result of a pervasive custom or practice of the School District or that any Individual

Defendant acted as a final policymaker. Plaintiffs’ allegations of isolated events are insufficient to

allow the Court to reasonably infer that the driving force behind them was action attributable to the

School District. As such, Plaintiffs merely alleged wrongdoing by School District employees that

cannot serve as the basis for imposing liability on the School District.

ADA, § 504, and § 12203 Claims

In addition to Plaintiffs’ constitutional claims, Plaintiffs allege Defendants intentionally

discriminated against R.S. because of his learning disability in violation of § 504 of the

Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act, that Defendants

8

7

7

“No otherwise qualified individual with a disability . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance . . .” 29
U.S.C. § 794.
“Subject to the provisions of this subchapter, no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132.

8

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created a hostile learning environment in violation of the ADA, and that Defendants retaliated

against R.S. in violation of 42 U.S.C. § 12203. Defendants attack Plaintiffs’ claims by arguing that

9

they cannot be raised under § 1983, that individual liability is not available under the Rehabilitation

Act or the ADA, that Plaintiffs’ claims are barred by res judicata, and that Plaintiffs failed to plead

sufficient facts to state a claim for retaliation.

The Fifth Circuit has clearly held that the Rehabilitation Act provides only for suit against

a program or activity receiving federal financial assistance and therefore does not provide for

individual liability. Lollar v. Baker, 196 F.3d 603, 609 (5th Cir. 1999) (citing 29 U.S.C. § 794).

Further, the Fifth Circuit held that such legislative acts, which expressly provide “comprehensive

enforcement and remedial measures for violations of [their] provisions,” preclude plaintiffs from

seeking to enforce their rights against defendants in their individual capacities under § 1983. Id. at

610.

In rejecting the use of § 1983 for Rehabilitation Act claims against individuals, the Fifth

Circuit noted with approval two cases from other circuits. Both of these cases held that the

comprehensive remedial framework of the ADA bars claims against individuals under § 1983. Id.

(citing Holbrook v. City of Alpharetta, 112 F.3d 1522, 1531 (11th Cir. 1997); Alsbrook v. City of

Maumelle, 184 F.3d 999, 1010-11 (8th Cir. 1999)); see also D.A. v. Houston Indep. Sch. Dist., 629

F.3d 450, 456-57 (5th Cir. 2010) (holding that ADA and § 504 claims cannot be brought under §

1983). The Court therefore finds Plaintiffs’ claims under the ADA and § 504 must be dismissed

against the Individual Defendants.

“No person shall discriminate against any individual because such individual has opposed any
9
act or practice made unlawful by this chapter or because such individual made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under this
chapter.” 42 U.S.C. § 12203.

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The Fifth Circuit has not addressed whether § 12203 provides for personal liability for

individuals. However, the Eleventh Circuit has specifically found individual liability to be available

in the limited context of Title II of the ADA. Higdon v. Jackson, 393 F.3d 1211, 1218 (11th Cir.

2004) (citing Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1165-1180 (11th Cir. 2003)); but see

Albra v. Advan, Inc., 490 F.3d 826, 830-834 (11th Cir. 2007) (declining to extend individual

liability for violations of § 12203 in the context of Title I of the ADA). District courts in other

circuits have split on the issue. See Datto v. Harrison, 664 F. Supp. 2d 472, 491-92 (E.D. Pa. 2009)

(finding “individual liability may be imposed for retaliation claims under the ADA involving either

public entities or public accommodations”); P.N. v. Greco, 282 F. Supp. 2d 221, 243-44 (D. N.J.

2003) (finding that individual liability is not available because the ADA itself does not provide for

individual liability for retaliation).

The Court need not determine this issue, however, as Plaintiffs have failed to allege

sufficient facts to state a valid claim for relief for retaliation under the ADA. In their complaint,

Plaintiffs allege that Defendants retaliated against R.S. by removing him from the football team after

the original complaint was filed. Though they now argue in response to Defendants’ motion that

Defendants also increased their bullying and harassment of R.S. after Plaintiffs filed a complaint

with the Mississippi Department of Education, no such allegations are found in Plaintiffs’ complaint

and, as the Court has stated, will not be considered.

Section 12203(a) provides that “[n]o person shall discriminate against any individual because

such individual has opposed any act or practice made unlawful by this chapter or because such

individual made a charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under this chapter.” Plaintiffs have not alleged that Defendants retaliated

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against them because of the numerous informal complaints and reports made to school personnel

regarding the bullying and harassment of R.S. Rather, Plaintiffs specifically claim Defendants

removed R.S. from the football team in retaliation for Plaintiffs’ filing of the original complaint,

which did not include any claims under the ADA or the Rehabilitation Act. As such, the Court finds

Plaintiffs have failed to plead sufficient facts to raise their claim for retaliation under § 12203 above

the speculative level and such claim must be dismissed as to all Defendants.

As to Plaintiffs’ claims of disability discrimination against the School District, Plaintiffs’

claims are not barred by the doctrine of res judicata as Defendants contend. Defendants argue that

Plaintiffs’ claims under the ADA and § 504 are essentially the same as those made by Plaintiffs in

a complaint to the Mississippi Department of Education under the IDEA.
10

Defendants cite D.A.

ex rel. Latasha A. v. Houston Indep. Sch. Dist. in support of their argument that Plaintiffs’ claims

are redundant and should be precluded. 629 F.3d 450, 454 (5th Cir. 2010). In that case, the Fifth

Circuit held that issue preclusion applies “where the legal standards underlying such claims are not

significantly different,” and “[t]hus, the resolution of an IDEA claim in the school district’s favor

will frequently preclude parents’ resort to redundant claims under § 504 and ADA.” Id. at 455. In

response, Plaintiffs broadly argue that the ADA and § 504 encompass more than the School

District’s alleged failure to comply with IEPs.

In a footnote to their complaint, Plaintiffs allege the School District has been found in
10
violation of R.S.’s Individualized Education Plans (IEPs) by the Mississippi Department of
Education. Plaintiffs maintain this allegation in their response memorandum. Defendants
contest this allegation and urge the Court to consider a letter from the Mississippi Department of
Education as a part of the pleadings due to Plaintiffs’ reference to the MDE investigation in the
complaint. In the alternative, Defendants urge the Court to convert this single issue to a
summary judgment review. The Court finds Defendants’ res judicata argument to be
unsupported by case law regardless of the MDE’s findings and therefore declines to consider
Defendants’ Exhibit 1.

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The Fifth Circuit has not held that all ADA and § 504 claims are precluded by the resolution

of IDEA claims. Rather, in Houston, the issue before the Court was “what remedies remain under

§ 504 and the ADA for children whose parents are dissatisfied with the school’s determinations

under IDEA.” Id. at 454. Also, the plaintiffs’ claims were based on “mere disagreement with the

correctness of the educational services rendered” rather than some intentional discrimination based

on disability. Id. at 455. In contrast, Plaintiffs’ complaint alleges, as an alternative theory to their

retaliation claims, that R.S. was removed from the football team because of his learning disability.

This type of alleged intentional discrimination because of a disability is entirely different from the

disagreements over compliance with the IDEA that the Court in Houston contemplated. Id.

Though Plaintiffs’ complaint mentions R.S.’s IEPs in passing, the Court finds Plaintiffs’

claims under the ADA and § 504 are not precluded by Plaintiffs’ IDEA claims because the

complaint alleges intentional discrimination and not merely the failure to follow IEPs. Therefore,

the Court denies Defendants’ motion as to Plaintiffs’ intentional discrimination claims under the

ADA and § 504.

Turning lastly to Plaintiffs’ claim that Defendants are liable for creating a hostile learning

environment under the ADA, the Fifth Circuit has not adopted such a theory of liability. In Flowers

v. S. Reg’l Physician Servs. Inc., the Fifth Circuit recognized a cause of action under the ADA for

disability-based harassment based upon a hostile work environment theory. 247 F.3d 229, 232-35

(5th Cir. 2001). However, the Court’s holding was limited to an employment context and was

grounded in similarities between the ADA and Title VII. Id. at 234 (“Not only are Title VII and the

ADA similar in their language, they are also alike in their purposes and remedial structures. Both

Title VII and the ADA are aimed at the same evil—employment discrimination against individuals

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of certain classes.”) The Fifth Circuit has not extended this type of claim, or even addressed whether

such a cause of action might be available, to a student in a public school setting. As such, the Court

finds that Plaintiffs have failed to state a valid claim for relief under the ADA for creation of a

hostile learning environment.

State Law Claims and the MTCA

Plaintiffs’ complaint also alleges that Defendants’ conduct constitutes negligence under state

law and that Defendants are liable under Mississippi common law for the infliction of emotional

distress. Defendants contend these claims are barred by three provisions of the Mississippi Tort

Claims Act. First, Defendants argue the MTCA expressly reserves absolute sovereign immunity for

claims arising from the performance of discretionary functions by public officials within their

official duties. MISS. CODE ANN. § 11-46-9(1)(d). Second, Defendants argue that the MTCA

precludes liability for actions arising out of the exercise of discretion in the purchase of equipment,

construction or maintenance of facilities, hiring of personnel, and general provision of adequate

government services. MISS. CODE ANN. § 11-46-9(a). Third, Defendants argue there is no liability

under the MTCA arising out of legislative or judicial action or inaction or for administrative action

or inaction of a legislative or judicial nature. MISS. CODE ANN. § 11-46-9(a).

Pursuant to Mississippi Code § 11-46-3 and § 11-46-1, school districts are political

subdivisions and governmental entities of the state and are generally immune from negligence

actions. Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So. 2d 1234, 1236 (Miss. 1999). While

Mississippi Code § 11-46-5 “waives immunity for actions for money damages based upon the torts

of governmental entities and their employees..., [t]his waiver is expressly subject to the exclusions

or exemptions enumerated in Section 11–46–9.” Id. (internal citations omitted).

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Section 11-46-9(1)(d) of the Mississippi Codes states that “[a] governmental entity and its

employees acting within the course and scope of their employment or duties shall not be liable for

any claim [b]ased upon the exercise or performance or the failure to exercise or perform a

discretionary function or duty on the part of a governmental entity or employee thereof, whether or

not the discretion be abused.” Under Mississippi law, “[a] duty is discretionary when it is not

imposed by law and depends upon the judgment or choice of the government entity or its employee.”

Miss. Transp. Comm’n v. Montgomery, 80 So. 3d 789, 795 (Miss. 2012). However, “[a] duty is

ministerial if it is positively imposed by law and required to be performed at a specific time and

place, removing an officer’s or entity’s choice or judgment.” Id.

The Mississippi Supreme Court has further explained that courts are to utilize a two-part

public-function test in order to determine whether governmental conduct is discretionary in nature.

Id. This two-part test requires the Court to first determine “whether the activity in question involved

an element of choice or judgment.” Id. If so, the Court must then determine “whether that choice

or judgment involved social, economic, or political-policy considerations.” Id.

Defendants contend their actions, as alleged in Plaintiffs’ complaint, were discretionary and

entitle them to immunity against Plaintiffs’ state law claims because the manner in which schools

address bullying and discipline students is determined on a case-by-case basis and is the necessary

result of many fact specific judgment calls. Additionally, Defendants assert that bullying is socially

and morally unacceptable, so actions and decisions relating to such behavior necessarily implicate

social policy. Though Plaintiffs do not specifically address the MTCA or the public-function test

in their response, their complaint alleges the Individual Defendants are not entitled to immunity

under the MTCA because their conduct constituted willful and intentional misconduct. They also

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argue in their response that Defendants’ acts were not discretionary, that Defendants owed R.S. a

duty of ordinary care, and that Defendants had a statutory duty under Mississippi Code § 37-9-69

to maintain appropriate control and discipline of students.

Plaintiffs cite T.K. v. Simpson Cnty. Sch. Dist., in support of their argument that Defendants

had a duty of ordinary care to protect R.S. from harm. 846 So. 2d 312, 319 (Miss. Ct. App. 2003).

In stating the rule that schools are required to exercise ordinary care to protect students, Simpson

relied upon L.W. v. McComb Separate Municipal Sch. Dist., a case that has been expressly

overruled by the Mississippi Supreme Court. 754 So. 2d 1136, 1141 (Miss. 1999) (overruled by

Montgomery, 80 So. 3d at 797.). The court in L.W. found that a school board might still be liable

for conduct that would be discretionary under of § 11-46-9(1)(d) where a statutory duty also applied.

Id. The court reasoned that the existence of an applicable statutory duty implicated the ordinary care

standard required by § 11-46-9(1)(b) such that a defendant could only be immune under § 11-46-

9(1)(d) if he acted with ordinary care. Id. at 1141-42. In other words, the court held that the ordinary

care standard applied to § 11-46-9(1)(d) determinations of discretionary function immunity.

In Montgomery, the Mississippi Supreme Court expressly overruled this reasoning and held

that the two-part public function test alone must be used to determine whether a governmental entity

is entitled to discretionary function immunity under § 11-46-9(1)(d). 80 So. 3d at 797 (“To the

extent L.W., Brewer, and Cargile may be read to condone an interplay between Section 11-46-

9(1)(b) and Section 11-46-9(1)(d) to determine whether the discretionary conduct of the

governmental entity is exempt from liability by applying the ordinary-care standard, these cases, and

any other cases which stand for this proposition, are expressly overruled.”). The Mississippi Court

of Appeals has further explained that “[the] task is not to simply ask whether the [school] [d]istrict’s

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allegedly negligent activities fall within broad statutory duties. Instead, we employ the two-part

public-function test.” J.S. v. Lamar Cnty. Sch. Dist., 94 So. 3d 1247, 1251 (Miss. Ct. App. 2012).

Accordingly, the Court must evaluate Defendants’ alleged actions in light of the two-part

public function test to determine whether Defendants are eligible for discretionary immunity under

§ 11-46-9(1)(d). The Court first addresses Defendants’ alleged failure to stop or prevent other

students from bullying R.S. Plaintiffs argue Defendants owed R.S. a duty to punish the students who

bullied R.S. under Mississippi Code § 37-9-69. The Mississippi Supreme Court “has applied this

statute only in a limited context, mainly in cases concerning the disorderly conduct of students, or

intentional acts on the part of individuals . . .” Covington Cnty. Sch. Dist. v. Magee, 29 So. 3d 1, 5

(Miss. 2010). Indeed, the Mississippi Supreme Court has expressly held that the duty to hold

students to strict account for disorderly conduct imposed by § 37-9-69 was ministerial rather than

discretionary. Lang, 764 So. 2d at 1241.

Subsequent cases have upheld the finding in Lang, focusing on whether a defendant’s alleged

actions are subject to the ministerial duty of § 37-9-69. See J.S. v. Lamar Cnty. Sch. Dist., 94 So.

3d 1247, 1252 (Miss. Ct. App. 2012); Q.A., ex. rel. D.W. v. Pearl Public Sch. Dist., 87 So. 3d 1073,

1079 (Miss. Ct. App. 2011); Dixon ex rel. Dixon v. Alcorn Cnty. Sch. Dist., 2012 WL 273079, *4

(N.D. Miss. Jan. 30, 2012). Whereas Plaintiffs’ complaint alleges Defendants negligently failed to

enforce School District policies, failed to respond to complaints of other students bullying R.S., and

failed to discipline students who bullied R.S., the Court finds § 37-9-69 properly applies. As such,

the Court finds these acts to be ministerial in nature and thus, to the extent Plaintiffs’ negligence

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claims are based on such conduct, they are not barred by the discretionary immunity of § 11-46-

9(1)(d) or § 11-46-9(a).11

However, Plaintiffs also allege Defendants’ failed to implement policies to prevent further

bullying. Defendants contend that decisions relating to the implementation of school district anti-

bullying policies are discretionary in that they require judgment on the part of school boards and

involve social policy due to the social and moral unacceptability of bullying. Additionally,

Defendants argue that the adoption and enforcement of school district policies is legislative and

judicial in nature and the Defendants are therefore immune under § 11-46-9(a). Plaintiffs do not

address Defendants arguments’ or their allegations that Defendants failed to implement appropriate

policies in their response. Though Defendants’ alleged direct failure to discipline students for

disorderly conduct implicates the ministerial duties of § 37-9-69, no such duty arises from their

alleged failure to implement policies. Rather, the Court finds that Plaintiffs’ negligence claims,

insomuch as they are based on a failure to implement policies, are barred by the MTCA under both

§ 11-46-9(1)(d) and § 11-46-9(a).

Plaintiffs’ complaint further alleges that Defendants are liable for the infliction of emotional

distress based inter alia on Defendants’ intentional and/or willful actions and/or inactions. The

Mississippi Supreme Court has held that torts which require proof of malice as an essential element

are excluded from the MTCA under § 11–46–5(2). See Zumwalt v. Jones Cnty. Bd. of Supervisors,

19 So. 3d 672, 688–89 (Miss. 2009). Section 11-46-5(2) states that “an employee shall not be

The Court’s finding that Defendants’ alleged conduct was ministerial rather than discretionary
11
does not remove the absolute personal immunity afforded the Individual Defendants for actions
committed within the course and scope of employment. Graves v. Hinds Cnty., Miss., 2012 WL
2574494 (S.D. Miss. July 2, 2012) (citing MISS. CODE § 11-46-7(2)).

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considered as acting within the course and scope of his employment and a governmental entity shall

not be liable or be considered to have waived immunity for any conduct of its employee if the

employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense

other than traffic violations.”

The Mississippi Court of Appeals has articulated that intentional infliction of emotional

distress may be outside the scope of the MTCA. Weible v. Univ. of S. Miss., 89 So. 3d 51, 64-65

(Miss. Ct. App. 2011), reh’g denied (Feb. 7, 2012), cert. denied, 94 So. 3d 290 (Miss. 2012) (relying

on Summers ex rel. Dawson v. St. Andrew’s Episcopal Sch., Inc., 759 So. 2d 1203, 1211

(Miss.2000) (finding intentional infliction of emotional distress may be predicated on behavior that

is malicious)). Accordingly, the Court finds that to the extent Plaintiffs’ claim for intentional

infliction of emotional distress is based on malicious conduct, it is not barred by the MTCA as to

the Individual Defendants and immunity is not waived as to the School District.

In their response, Plaintiffs contend that their complaint assert