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Dorsey v. Pueblo School District 60

United States District Court, D. Colorado

October 26, 2015

LISA DORSEY, individually and on behalf of a minor J.D., Plaintiff,

          For Lisa Dorsey, on behalf of a minor, other, J.D., Plaintiff: Collin Joseph Earl, Earl & Earl PLLC-Castle Rock, Castle Rock, CO.

         For 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, Denver, CO.


         William J. Martínez, United States District Judge.

         Plaintiff 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.


         Because Defendants move under Rules 12(b)(1) and 12(b)(6), the Court will briefly discuss the legal standards that pertain to each rule.

         Rule 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 case." Id.

         Under 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).


         The 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. )

         On 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. )

         Plaintiff 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. )

         Due in 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. )

         III. ANALYSIS

         A. Converting the Motion

         The 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. )

         Garcia's 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. 2000).

         B. Plaintiff's Claims

         Defendants move to dismiss Plaintiff's Complaint in its entirety. The Court discusses each of Plaintiff's claims in turn.

         1. Negligence Claim

         Plaintiff 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.)

         Enacted 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. 1993).

         Plaintiff 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." [1] ( Id. at 3.) The CGIA defines " dangerous condition" as follows:

[1] either a physical condition of a facility or the use thereof [2] that constitutes an unreasonable risk to the health or safety of the public, [3] which is known to exist or which in the exercise of reasonable care should have been known to exist and [4] 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.)

         The 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 building." Id.

         Relying 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. Id.

         The 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.

         Plaintiff 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. § 24-10-103(1.3).

         Indeed, 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" ).

         For 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, ...

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