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Doe v. Albuquerque Public Schools

United States District Court, D. New Mexico

May 29, 2018

JANE DOE “VICTIM”, Plaintiff,
v.
ALBUQUERQUE PUBLIC SCHOOLS “APS, ” MONTE VISTA ELEMENTARY SCHOOL “MONTE VISTA, ” JOHN AND JANE DOE APS OFFICIALS AND EMPLOYEES, AMY LAUER,[1] AND WILLIAM BEEMS Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS COUNTS IV AND V and DENYING DEFENDANT'S MOTION TO DISMISS AS TO COUNT II

         THIS MATTER comes before the Court upon Defendant Amy Lauer's Motion to Dismiss, or in the Alternative, Motion for Judgment on the Pleadings to Dismiss Plaintiff's Claims for Negligence, Violation of Constitutional and Civil Rights and Intentional and Negligent Infliction of Emotional Distress, filed on April 4, 2018 (Doc. 20). Having reviewed the parties' pleadings and the applicable law, the Court finds that Defendant's motion is well-taken as to Counts IV and V and, therefore, is granted. However, the motion is denied as to Count II.

         BACKGROUND

         Plaintiff has filed this action pursuant to Title IX, Title VII and other federal statutory provisions alleging that she was sexually assaulted by Defendant William Beems while she was a student at Monte Vista Elementary approximately twenty years ago. In this motion, Defendant Lauer moves to dismiss all of Plaintiff's claims asserted against her under Fed.R.Civ.P. 12(b)(6) or in the alternative, Rule 12(c). The Complaint contains six counts:

Count I: Sexual Assault, Abuse and Battery against Defendant Beems;
Count II: Negligence and Premises Liability;
Count III: Vicarious Liability and Premises Liability;
Count IV: Negligent and Intentional Infliction of Emotional Distress;
Count V: Violations of Plaintiff's Due Process, Equal Protection and Constitutional Rights (state and federal); and
Count VI: Outrage, Systemic Failure and Prima Facie Tort.

         Defendant Lauer seeks dismissal of Counts II, IV and V under Fed.R.Civ. P. 12(b)(6) or alternatively, Rule 12(c). As Defendant points out, Plaintiff inaccurately characterizes Ms. Lauer's motion as a Motion for Summary Judgment, confusing Rule 12(c) with Rule 56. See Doc. 25 at 1, n.1 and at 3-5. Plaintiff contends that because there are genuine issues of fact, the Court should not dismiss any of Plaintiff's claims, but she seems to overlook the fact that claims which fail to meet the much lower threshold under Rule 12(b)(6) or Rule 12(c) threshold may also be dismissed.

         Defendant moves for dismissal of the state law claims in Count II (Negligence and Premises Liability) and Count IV (Negligent and Intentional Infliction of Emotional Distress) and for Plaintiff's §1983 claims in Count V. However, Plaintiff waives her claim for intentional or negligent infliction of emotional distress in Count IV, agreeing with Defendant that it is not an enumerated tort under the New Mexico Tort Claims Act, and thus Count IV fails to state a claim. See Doc. 28 at 21 and Doc. 31at 11; see Romero v. Otero et al, 678 F.Supp. 1535, 1540 (D.N.M. 1987); Silva v. Town of Springer et al, 121 N.M. 428, 435 (Ct.App. 1996); see also Rall v. Hobbs Mun. Sch. Dist., No. CIV 15-2 0518 RB/CG, 2016 WL 10588125, at *5 (D.N.M. Mar. 16, 2016) (“Plaintiffs do not point to a waiver of immunity for their . . . intentional infliction of emotional distress claim, nor can the Court find authority for such a waiver.”). Plaintiff nevertheless contends that Count IV should remain as an element of damages because it is linked to the injury caused by conduct for which there is no waiver, see Doc. 28 at 21, but this contention has no merit as there is no legal basis for an award of damages for a claim that does not exist. Plaintiff is not precluded from seeking such damages if they are recoverable through other causes of action. The Court therefore dismisses Count IV under 12(b)(6).

         DISCUSSION

         Defendant has asserted the defense of qualified immunity, which shields 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.” Romero v. Story, 672 F.3d 880 (10th Cir. 2012). Where an individual defendant asserts qualified immunity, the burden shifts and the plaintiff must come forward with sufficient evidence to show (1) that the defendant violated a constitutional or statutory right, and (2) that the right was clearly established at the time of the conduct. See McBeth v. Himes, 598 F.3d 708, 716 (10th Cir. 2010). A court may consider these two inquiries in any order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).

         The same two-part test for qualified immunity applies in the context of a motion to dismiss. Leverington v. City of Colorado Springs, 643 F.3d 719, 732 (10th Cir. 2011); Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012) (a motion filed under Federal Rule of Civil Procedure 12(c) is evaluated under the same standard applicable to motions filed under Rule 12(b)(6). Under Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court must accept as true all well pleaded facts, as distinguished from conclusory allegations, and those facts must be viewed in the light most favorable to the non-moving party. Shero v. City of Grove, Okl., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Twombly, 550 U.S. 544). The complaint must plead sufficient facts, taken as true, to provide plausible grounds that discovery will reveal evidence to support the plaintiff's allegations. Id. A motion to dismiss is properly granted when a complaint provides no “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         A motion filed under Federal Rule of Civil Procedure 12(c) is evaluated under the same standard applicable to motions filed under Rule 12(b)(6). See Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012). In considering the motion, the Court must “accept all facts pleaded by the non-moving party as true and grant all reasonable inferences from the pleadings in favor of the same.” Id.

         I. Insufficiency of Allegations for §1983 Claims

         In Count V, Plaintiff asserts “Violations of Plaintiff's Due Process, Equal Protection and Constitutional Rights.” Defendant contends that Plaintiff has not alleged any facts with respect to Ms. Lauer's involvement in these federal claims and further, has failed to identify in the complaint how she violated those rights.

         A. Lack of Specificity Regarding §1983 Claims

         The complaint contains 212 numbered paragraphs with allegations against Ms. Lauer and the various other Defendants in this case, with 111 of those contained in Count V.[2] Under the Iqbal-Twombly standard, “it is ‘particularly important' that ‘the complaint make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her.'” Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011), cited in Rall v. Hobbs Mun. Sch. Dist., No. CIV 15-0518 RB/CG, 2016 WL 10588125, at *5 (D.N.M. Mar. 16, 2016).

         The vast majority of the allegations relate solely to the conduct of Defendant Beems. For example, the complaint alleges that when Defendant Beems was a teacher at Monte Vista Elementary School (“Monte Vista”) between 1998 and 2003, he “made Plaintiff sit on his lap or close to him while he fondled, groped, petted, and touched her in sexually explicit ways in intimately private areas.” Compl., ¶108. Other allegations refer to the Defendants collectively, for example:

“Defendants permitted a regime of physical conduct of a sexual nature by William Beems in violation of the Plaintiff's rights.” Compl., ¶139;
“Defendants, APS and OEOS [Office of Equal Opportunity Services], Jane and John Doe defendants breached their duties and failed to protect Plaintiff's rights from the ...

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