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Lopez v. Hobbs Municipal School District

United States District Court, D. New Mexico

August 14, 2019

KRISTY LOPEZ, as parent and next friend, and on behalf of her minor child, J.L., Plaintiff,
HOBBS MUNICIPAL SCHOOL DISTRICT, a political subdivision of the State of New Mexico; TJ PARKS, in his official capacity as Superintendent of the Hobbs Municipal School District; JOSE MARES, in his official capacity as the Hobbs High School Boys Varsity Head Soccer Coach; GREG HASTON, in his official capacity as Athletic Director of Hobbs High School; BRENDA WILSON, in her official capacity as Athletic Director of Hobbs High School; ZEKE KANEY, in his official capacity as Assistant Principal of Hobbs High School; JOHN DOES I-X; JANE DOES I-X; BLACK and WHITE ENTITIES I-X, Defendants.

          Joseph M. Zebas, Zebas Law Firm, LLC, Hobbs, New Mexico, for Plaintiff Kristy Lopez.

          Jason M. Burnette and Jean M. Gannon, German • Burnette & Associates, LLC, Albuquerque, New Mexico, for Defendants Hobbs Municipal School District, TJ Parks, Jose Mares, Greg Haston, Brenda Wilson, and Zeke Kaney.



         THIS MATTER came on for consideration on Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint filed December 28, 2018. ECF No. 20. Upon consideration thereof, the motion should be granted in part and denied in part.[1]


         Plaintiff Kristy Lopez, on behalf of her son, J.L. (a minor), brought federal and state law claims against Hobbs Municipal School District[2] (“School District”), its employees TJ Parks, Jose Mares, Greg Haston, Brenda Wilson, and Zeke Kaney in their official capacities (the “individual defendants, ” and collectively with the School District, “Defendants”), John Does I-X, Jane Does I-X, and Black and White Entities I-X. Her Second Amended Complaint alleges that during the fall 2016 soccer season, various older players engaged in repeated acts of hazing younger players with the knowledge and acquiescence of school officials. The alleged hazing involved acts of sexual misconduct including slapping or grabbing the younger players' testicles, “grabbing their butts, ” so-called “tea bagging” the younger players, and “dog piling” whereby older players held younger players to the ground and digitally penetrated them. Second Am. Compl. at 5-6 (ECF No. 19). The complaint further alleges Mr. Mares, the head soccer coach, learned of a video of one such incident but ordered its destruction so as to not damage the soccer team. Id. at 6. According to the complaint, these acts occurred on the playing field during practice, the school bus, and hotel rooms during away games. Id. at 6, 8-9, 11. Ms. Lopez alleges that J.L. was the target of one such incident in late-September 2016 and became withdrawn, irritated, and lost interest in playing soccer. Id. at 6-7. The complaint also alleges the School District maintained policies and procedures to prevent harassment of and violence to students, including sexual abuse. Id. at 9. In addition, it alleges the School District adopted the National Federation of State High School Associations' policies, which require the reporting of sexual harassment and prompt remedial action. Id. at 20-21. Despite this requirement, and despite the individual defendants' alleged knowledge of the sexual harassment on the soccer team, they either took no action to stop it or affirmatively instructed the students not to report such conduct. Id. at 21-22.

         In her complaint, Ms. Lopez sought compensatory and punitive damages and alleged a denial of substantive due process (Count I); negligent operation of a public building or park under the New Mexico Tort Claims Act (NMTCA) (Count II); violation of Title IX (Count III); civil conspiracy to deprive J.L. of his Fourteenth Amendment and Title IX rights (Count IV); negligence for failure to protect J.L. under the NMTCA (Count V); failure to report sexual misconduct by Defendant Mares (Count VI); school district and municipal liability based on a failure to train and supervise Defendant Mares (Count VII); school district and municipal liability for negligent hiring (Count VIII); failure to comply with National Federation of State High School Associations policy against hazing, sexual misconduct, and other forms of harassment (Count IX); assault and battery against J.L. (Count X); and intentional infliction of emotional distress (Count XI).

         The School District and the individual defendants moved to dismiss Ms. Lopez's Second Amended Complaint pursuant to Rule 12(b)(6). Defs.' Mot. to Dismiss (ECF No. 20). The motion is fully briefed. The court held a hearing on July 22, 2019, including oral argument. See ECF No. 68. At the hearing, the parties advised that Ms. Lopez would voluntarily dismiss several counts. The counts include Counts IV (civil conspiracy), VI (failure to report), X (assault and battery), and XI (intentional infliction of emotional distress). Insofar as Counts VII (failure to train and supervise), VIII (negligent hiring), IX (failure to comply with policy), they would be dismissed as separate causes of action, but certain factual allegations therein would be incorporated into her substantive due process claim. Ms. Lopez also voluntarily dismissed her claims against John Does I-X, Jane Does I-X and Black and White Entities I-X.


         To survive the motion to dismiss as to each remaining claim, Ms. Lopez's complaint must contain a short, plain statement of the claim showing she is entitled to relief. Fed.R.Civ.P. 8(a)(2). Dismissal is not warranted if, accepting all factual allegations in the complaint as true, Ms. Lopez has stated a legally cognizable claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Although she need not show certainty of success on the merits, her allegations must plausibly suggest wrongdoing by a particular defendant. Id. at 676; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).

         A. Claims Remaining After the Hearing Against Both the Individual Defendants and the School District (Counts I, II, III & V) are Redundant

         28 U.S.C. § 1983 authorizes suit against “every person, who, under color of” state law, deprives a U.S. citizen of his federal rights. Local school districts are “persons” within the meaning of that statute, and they thus may be subject to suit for violation of federal law when the deprivation is caused by a custom or policy of the district. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 663, 694 (1978). A § 1983 plaintiff may sue a school district directly or may bring an “official-capacity suit” against one of its agents. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). In such lawsuits, the plaintiff seeks to recover from the district itself. Id. It is therefore axiomatic that a suit against both a school district and its agent in his official capacity is redundant.

         A § 1983 plaintiff may also bring a “personal-capacity suit” and seek to impose liability upon a government official separately for his own actions taken “under color of state law.” Id. The official-personal distinction turns on the capacity in which an official is sued, not the capacity in which he inflicted the alleged injury. Hafer v. Melo, 502 U.S. 21, 26 (1991). Yet the nature of such lawsuits is not always apparent. See Graham, 473 U.S. at 165. On occasion, courts must assess whether the parties have characterized the lawsuit as against a defendant's official or personal capacity. See, e.g., Shabazz v. Coughlin, 852 F.2d 697, 700 (2d Cir. 1988) (looking to the language of the complaint, plaintiff's requested remedies, and defendants' affirmative defenses).

         Most tellingly here, the case is styled as a suit against the individual defendants in their official-capacities only and that has not changed through two amendments. Second Am. Compl. 1. Corroborating this, the complaint names each individual defendant, describes his or her position, and then expressly states that each “is named in [his or her] official capacity.” Id. at 3-4. Furthermore, Defendants in their motion to dismiss plainly and reasonably construe the complaint as containing only official-capacity allegations. Mot. to Dismiss 8-9. Ms. Lopez did not object or attempt to clarify after Defendants reiterated this understanding in the Joint Status Report (ECF No. 2) and at the hearing. And although Ms. Lopez in her response cites personal-capacity cases and at one point generally suggests the individual defendants are liable in their “individual capacities, ” using the term “individual capacity” as to Defendant Mares, Resp. at 8-10, such tangential references do not overcome all other contrary indications. The court therefore construes her federal claims as against the ...

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