United States District Court, D. Colorado
LISA DORSEY, individually and on behalf of a minor J.D., Plaintiff,
PUEBLO SCHOOL DISTRICT 60, BOARD OF EDUCATION OF PUEBLO SCHOOL DISTRICT SIXTY, CORWIN INTERNATIONAL MAGNET SCHOOL, and JOHN DOE, INDIVIDUALLY AND IN OFFICIAL CAPACITY AS PUEBLO SCHOOL DISTRICT TEACHER, Defendants
Lisa Dorsey, on behalf of a minor, other, J.D., Plaintiff:
Collin Joseph Earl, Earl & Earl PLLC-Castle Rock, Castle
Pueblo School District 60, Board of Education of Pueblo
School District Sixty, Corwin International Magnet School,
and John Doe (substitute teacher) an unknown person,
individually and in official capacity as Pueblo School
District Teacher, Defendants: Courtney B. Kramer, LEAD
ATTORNEY, Eric Michael Ziporin, Senter Goldfarb & Rice, LLC,
GRANTING IN PART DEFENDANTS' MOTION TO DISMISS
J. Martínez, United States District Judge.
Lisa Dorsey, on behalf of her minor daughter, J.D., ("
Plaintiff" ) brings this action against Defendants
Pueblo School District 60, Board of Education of Pueblo
School District 60, Corwin International Magnet School
(" Corwin" ), and John Doe, an unknown Pueblo
School District teacher. (ECF No. 30.) Plaintiff sues
Defendants for their negligence, and brings further claims
under Section 504 of the Rehabilitation Act of 1973 ("
§ 504" ), 29 U.S.C. § § 701 et
seq., the Americans with Disabilities Act of 1990
(" ADA" ), 42 U.S.C. § § 12101 et
seq., and 42 U.S.C. § 1983. ( Id. ) This
matter is currently before the Court on Defendants Pueblo
School District 60, Board of Education of Pueblo School
District 60, and Corwin's (collectively "
Defendants" ) Motion to Dismiss Plaintiff's Amended
Complaint (" Motion" ) pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 33.)
Plaintiff responded to the Motion on June 1, 2015, and
Defendants filed their reply on June 18, 2015. (ECF Nos. 36,
37.) For the reasons set forth below, the Motion is granted
in part and denied in part.
Defendants move under Rules 12(b)(1) and 12(b)(6), the Court
will briefly discuss the legal standards that pertain to each
12(b)(1) motions to dismiss for lack of subject matter
jurisdiction generally take one of two forms. A facial attack
questions the sufficiency of the complaint as to its subject
matter jurisdiction allegations. Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995). In
reviewing a facial attack, courts accept all well-pled
allegations as true. Id. A factual attack, on the
other hand, goes beyond the allegations in the complaint and
challenges the facts on which subject matter jurisdiction is
based. Id. at 1003. A factual attack does not permit
the court to presume the complaint's factual allegations
are true, although the court does have " wide discretion
to allow affidavits, other documents, and a limited
evidentiary hearing to resolve disputed jurisdictional facts
under Rule 12(b)(1)." Id. In such
circumstances, the court's reference to evidence beyond
the pleadings will not convert the motion to one under Rules
56 or 12(b)(6), unless the jurisdictional question is
intertwined with the merits of the case. Id. "
The jurisdictional question is intertwined with the merits of
the case if subject matter jurisdiction is dependent on the
same statute which provides the substantive claim in the
Rule 12(b)(6), a party may move to dismiss a claim in a
complaint for " failure to state a claim upon which
relief can be granted." The 12(b)(6) standard requires
the Court to " assume the truth of the plaintiff's
well-pleaded factual allegations and view them in the light
most favorable to the plaintiff." Ridge at Red Hawk,
LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
In ruling on such a motion, the dispositive inquiry is "
whether the complaint contains 'enough facts to state a
claim to relief that is plausible on its face.'"
Id. (quoting Bell A. Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
" Thus, 'a well-pleaded complaint may proceed even
if it strikes a savvy judge that actual proof of those facts
is improbable, and that a recovery is very remote and
unlikely.'" Id. (quoting Twombly,
550 U.S. at 556).
following facts and allegations are gathered from
Plaintiff's Amended Complaint (" the Complaint"
). (ECF No. 30.) Plaintiff J.D. is a minor child who was
formerly enrolled at Corwin. ( Id. at 3.) J.D.
alleges she suffers from " hypoglycemia, asthma and
progressive muscular/skeletal weakness," for which she
received a Section 504 accommodation (" 504 Plan"
). ( Id. ) Per her 504 Plan, Plaintiff was not to be
forced to participate in any school activity that might
" compromise her physical condition." (
Id. at 4.) On February 27, 2014, Plaintiff attended
her gym class at Corwin, where she " was instructed to
participate in a human 'pyramid.' This is an exercise
that places students on top of each other in a standing or
'all fours' position and they build the human
'pyramid.'" ( Id. ) Plaintiff did so,
and was standing on the backs of two students when she became
dizzy and fell. ( Id. ) Because there was no mat to
cushion her fall, Plaintiff was injured. ( Id. )
While at Corwin, Plaintiff alleges that other students
verbally and physically harassed her over the span of several
months. ( Id. at 2-7.) Plaintiff alleges that she
first complained about the bullying in October 2013. (
Id. at 3.) Specifically, Plaintiff complained that a
student had been " tasering" her in the sides and
stomach repeatedly. ( Id. ) The Complaint states,
" Tasering is where a person stiffens their four
fingers, tucks in their thumb and stabs their fingers into
another person's side or stomach as hard as one
can." ( Id. ) This student also stole
Plaintiff's snacks that she used to combat her low blood
sugar. ( Id. ) When Plaintiff complained, a school
official told Plaintiff that she would " take care of
the situation" and " bring the student in
responsible for the bullying." ( Id. )
Plaintiff alleges that nothing was done about these
incidents. ( Id. )
April 8, 2014, " the bullying directed at [Plaintiff]
escalated to physical violence" when a group of students
" punched, slapped and placed [Plaintiff] in a headlock,
leaving bruises on her neck, arms, leg, and stomach" ;
again, the bullying was reported and school officials stated
they would " take care of the situation." (
Id. at 4-5.) The bullying continued throughout
April, and included threats and a suggestion to Plaintiff
that she kill herself, which Plaintiff reported to the same
school officials on April 20, 2014. ( Id. at 5-6.)
Plaintiff was told by Corwin's principal, Ms. Shue, that
they would look into the allegations; Ms. Shue recommended
that Plaintiff be taken out of all her classes and moved to a
different student group, which Plaintiff and her parents
declined to do. ( Id. at 7.) Plaintiff alleges no
further acts of bullying after the April 20, 2014 meeting
with Corwin officials. ( Id. )
further alleges that she requires snacks on a regular basis
throughout the school day due to her hypoglycemia. (
Id. at 10.) One day, Plaintiff forgot to bring her
snacks to school, and Plaintiff's sister later dropped
them off. ( Id. at 10-11.) After the snacks were
dropped off, the school took almost three hours to bring them
to Plaintiff, which she claims was discriminatory and caused
her " weakness, dizziness and nausea." (
Id. at 11.) Finally, Plaintiff alleges that she
underwent leg surgery (apparently unrelated to this lawsuit)
in July 2013 and provided Corwin with a letter from the
Colorado Children's Hospital that stated Plaintiff should
be given two sets of books, one for home and one for school.
( Id. ) Defendants never complied with this request.
( Id. )
large part to the bullying that Corwin allegedly never
addressed, Plaintiff withdrew from the school on April 25,
2014. ( Id. at 7.) Plaintiff was subsequently
diagnosed with depresssion and referred to a psychologist,
who treated her for post-traumatic stress disorder. (
Id. ) Plaintiff now attends a different school that
is further away from her home than Corwin. ( Id. at
8.) " This is a hardship to the [Plaintiff and her
parents] and they are concerned about the distance in case of
any emergencies." ( Id. )
Converting the Motion
Court must first determine whether it must convert
Defendants' Motion, insofar as it argues for dismissal
under Rule 12(b)(1), into a motion for relief under Rule 56
or Rule 12(b)(6). Defendants' Motion is properly
characterized as a facial attack because it appears to argue
that, even accepting Plaintiff's version of events as
true, her claims fail for lack of subject matter
jurisdiction. (ECF No. 33.) However, Defendants do attach the
affidavit of Jerri Garcia, Plaintiff's former physical
education teacher, to their Reply brief; the affidavit
challenges Plaintiff's version of events with respect to
the human pyramid. (ECF Nos. 37, 37-1.) Garcia claims she
never instructed Plaintiff or any other students to
participate in the human pyramid. (ECF No. 37-1 at 2.) In
fact, Garcia claims that she expressly prohibited the
students from doing so. ( Id. )
affidavit could convert the Motion into a factual attack if
the Court considered it. But Defendants did not include the
affidavit, or any argument challenging Plaintiff's claim
that she was forced to participate in the human pyramid, in
their Motion. (ECF No. 33.) Because Plaintiff was unable in
her Response brief to address an argument not raised in
Defendants' Motion, and does not have a further
opportunity to respond to Defendants' Reply, see
D.C.COLO.LCivR 7.1(d), the Court finds that Defendants have
waived this argument, at least for purposes of the instant
Motion. See United States v. Harrell, 642
F.3d 907, 918 (10th Cir. 2011) (arguments raised for the
first time in a reply brief generally are deemed waived). The
Court therefore reviews Defendants' 12(b)(1) Motion under
the same standard applicable to dismissals under 12(b)(6).
Dry v. United States, 235 F.3d 1249, 1253 (10th Cir.
move to dismiss Plaintiff's Complaint in its entirety.
The Court discusses each of Plaintiff's claims in turn.
alleges that Defendants were negligent when they allowed her
to participate in the human pyramid during gym class. (ECF
No. 30 at 9-10.) However, Defendants argue that the Court
lacks subject matter jurisdiction over Plaintiff's state
law tort claim due to the application of the Colorado
Governmental Immunity Act, Colo. Rev. Stat. § §
24-10-101 et seq. (" CGIA" ). (ECF No. 33
at 3.) Plaintiff responds that Defendants have waived any
immunity under the CGIA. (ECF No. 36 at 3.)
in 1971 in response to court decisions abrogating common law
sovereign immunity, the CGIA codifies governmental immunity
from suit in tort cases brought against Colorado public
entities and employees. Colo. Rev. Stat. § 24-10-103(5).
However, the CGIA also contains exceptions, waiving immunity
in certain cases. See Colo. Rev. Stat. §
24-10-106(1). The question of whether governmental immunity
under the CGIA has been waived is one of subject matter
jurisdiction, and the Court therefore properly decides this
issue under Rule 12(b)(1). See Trinity Broad. of
Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.
acknowledges that her tort claim is subject to the CGIA, and
that Defendants are " public entities" within the
meaning of the statute. Colo. Rev. Stat. § §
24-10-105, 24-10-103(5). (ECF No. 36 at 3.) However,
Plaintiff argues that her claims fall under an exception to
the CGIA at § 24-10-106(1)(c), wherein "
[s]overeign immunity is waived by a public entity in an
action for injuries resulting from . . . [a] dangerous
condition of any public building."  ( Id. at
3.) The CGIA defines " dangerous condition" as
 either a physical condition of a facility or the use
thereof  that constitutes an unreasonable risk to the
health or safety of the public,  which is known to exist
or which in the exercise of reasonable care should have been
known to exist and  which condition is proximately caused
by the negligent act or omission of the public entity or
public employee in constructing or maintaining such facility.
. . . A dangerous condition shall not exist solely because
the design of any facility is inadequate.
Colo. Rev. Stat. § 24-10-103(1.3). Defendants contend
that Plaintiff's claims do not fall under the CGIA
definition of a " dangerous condition of any public
building," and that they are therefore immune from suit.
(ECF No. 33 at 4.)
Colorado Supreme Court has clarified that the phrase "
'or the use thereof' means the use of a physical
condition of a facility," and that " thereof"
refers to the facility's physical condition, not to the
facility itself. Jenks v. Sullivan, 826 P.2d 825,
827 (Colo. 1992), overruled on other grounds by Bertrand
v. Bd. of Cnty. Comm'rs of Park Cnty., 872 P.2d 223
(Colo. 1994). That is, the " dangerous condition of any
public building" exception does not include all injuries
resulting from uses of and activities in a public building,
but rather covers only " an injury arising from the
state of the building itself or the use of a state of the
on this provision of the statute, Plaintiff analogizes this
case to Hendricks By & Through Martens v. Weld County
School District, 895 P.2d 1120 (Colo.App. 1995). In
Hendricks, the plaintiff was an elementary school
student who fractured his leg when he slid into an unpadded
wall while playing a game during gym class. Id. at
1122. The object of the game was to run from one end of the
gym to the other without getting hit by the balls being
thrown at the runners. Id. Each end of the gym had a
designated four-foot " safe area." Id. The
plaintiff ran toward the safe area, and slid into the wall to
avoid being hit by one of the balls, thus injuring his leg.
Colorado Court of Appeals held that the plaintiff's
negligence suit was not barred by the CGIA under the "
dangerous condition" exception to immunity. Id.
The court held that the plaintiff did not allege that the
building's design was inadequate, or that his injury was
caused by the intervening acts of a third party, neither of
which would suffice to overcome immunity. Id. at
1123. Rather, the plaintiff argued " that the physical
condition of the building, i.e., the unpadded wall,
combined with its use, constitute[d] a dangerous condition of
a public facility." Id. The court went on to
note that, " [u]nlike previous cases which have involved
injuries arising from the acts of an intervening third party,
arising solely from the activities conducted within the
public building, or arising solely because of inadequate
design, Hendricks' injury resulted from a dangerous
physical condition of the building itself." Id.
Thus, the Hendricks defendants were denied immunity
under the CGIA. Id.
argues that " it is unclear where Plaintiff's case
differs from the facts of Hendrick [ s ],
except one had an unpadded wall and the other a floor."
(ECF No. 36 at 4.) After a careful review of the relevant
case law, however, the Court is required to conclude that the
decision in Hendricks is an anomaly. It is difficult
to reconcile the holding in Hendricks with the
principle that " [i]mmunity is not waived for injuries
that are sustained merely as a result of participating in an
activity within a public building." Douglas v. City
& Cnty. of Denver, 203 P.3d 615, 619 (Colo.App. 2008);
see also Sanchez By & Through DeFerdinando v.
Sch. Dist. 9-R, 902 P.2d 450, 454 (Colo.App. 1995)
(declining to follow Hendricks where disabled
student engaged in parallel bars gymnastics exercise during
physical education class and fell, injuring her knee). More
importantly, Hendricks does not discuss how the
plaintiff's injury from the unpadded wall was "
proximately caused by the negligent act or omission of the
public entity or public employee in constructing or
maintaining such facility." Colo. Rev. Stat. §
Plaintiff has failed to allege any facts to support a finding
that her injury was caused by, or associated with, the
construction or maintenance of the gym. " A dangerous
condition shall not exist solely because the design of any
facility is inadequate." Id. The CGIA defines
" maintenance" as a the act or omission of a public
entity or public employee " in keeping a facility in the
same general state of repair or efficiency as initially
constructed or in preserving a facility from decline or
failure. 'Maintenance' does not include any duty to
upgrade, modernize, modify, or improve the design or
construction of a facility." Id. at §
24-10-103(2.5); Padilla ex rel. Padilla v. Sch. Dist. No.
1, 25 P.3d 1176, 1180-81 (Colo. 2001) (" the
condition must be associated with construction or
maintenance, not solely design" ).
example, in Padilla, a teacher's use of a
storage closet in a school as a " time-out" area
was found not to fall under the immunity exception for a
dangerous condition of a public building. 25 P.3d at 1181.
The plaintiff was a disabled child who had been put in "
time-out" in the storage closet, placed in a stroller
propped against the open door. Id. at 1178. Once
left alone, she became agitated, the stroller fell backward,
and the plaintiff hit her head on the tile floor.
Id. In response to the plaintiff's waiver
argument, the Colorado Supreme Court held:
While Padilla may have sufficiently alleged an act of
negligence, leaving a disabled and distraught child out of
sight and reach in an unstable stroller, we conclude that she
did not demonstrate a sufficient connection between use of
the state of the building and a construction or maintenance
activity or omission for which the School District is
responsible. Padilla's theory of the case only amounts to
a claim that the School District should have upgraded the
design of the closet if it wished to use it as a " time
out" room for students exhibiting disruptive behavior.
This is inadequate to effectuate the waiver. . . . Padilla
merely alleged that the government used the facility in an
unsafe manner, thus only alleging that the government was
negligent in its use of the facility. Therefore,