K. D. v. Harrison School District Two

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

          WILLIAM J. MARTINEZ, UNITED STATES DISTRICT JUDGE

         In this lawsuit, Plaintiff K.D., through his mother, Sherise Nipper, and Sherise Nipper in her own capacity (together, “Plaintiffs”) sue Defendant Harrison School District Two (“School District”), its board (“School Board”), and various School District employees. Plaintiffs allege that Defendants took no steps to stop pervasive bullying against K.D. at school. This bullying, Plaintiffs say, was race-motivated (K.D. is white in a majority non-white school) and disability-motivated (K.D. has a walking disability). Plaintiffs therefore allege racial discrimination in violation of Title VI of the Civil Rights Act of 1964 (“Title VI”), 42 U.S.C. §§ 2000d et seq.; racial discrimination in violation of the Fourteenth Amendment's Equal Protection Clause (asserted by way of 42 U.S.C. § 1983); disability discrimination in violation of the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. §§ 794 et seq.; and disability discrimination in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.

         Currently before the Court is a Motion to Dismiss filed by all Defendants save for the specifically named “John Doe” Defendant and the other generic Doe Defendants. (ECF No. 39.) For purposes of this Order, the Court will refer to the moving Defendants simply as “Defendants.” They seek dismissal of all causes of action asserted against them. As explained below, the Court will grant the Motion to Dismiss except as against K.D.'s Title VI cause of action. The stay of discovery will therefore be lifted and the case will go forward against the School District on the Title VI claim, and-at least for now-against John Doe and the other Does on all claims.

         I. LEGAL STANDARD

         Federal Rule of Civil Procedure 12(b)(6) permits the Court to dismiss for “failure to state a claim upon which relief can be granted.” The Rule 12(b)(6) standard requires the Court to “assume the truth of the [claimant's] well-pleaded factual allegations and view them in the light most favorable to the [claimant].” 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 [or counterclaim] contains ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). “Thus, ‘a well-pleaded complaint [or counterclaim] 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).

         II. FACTS

         The following facts, taken from the Second Amended Complaint (“complaint”) (ECF No. 36), are deemed to be true for purposes of Defendants' Motion.

         A. Background

         K.D. was born in 2005. (Id. ¶ 8.) He lives with his mother, Sherise Nipper, and stepfather, Nicholas Nipper, in Colorado Springs. (Id. ¶ 7.) Sherise Nipper and K.D. moved to Colorado in 2015 so Sherise could obtain cannabis to treat her epilepsy. (Id. ¶¶ 20-21.)

         In the 2015-16 school year, K.D. attended Pikes Peak Elementary School (“Elementary School”), within the School District. (Id. ¶ 24.) In the 2016-17 school year, K.D. attended Carmel Middle School (“Middle School”), also within the School District. (Id.) Only a field separates the Middle School campus from the Elementary School campus. (Id.)

         About 50% of the School District's students are Hispanic; about 25% are white; and about 15% are black. (Id. ¶ 25.) During the time period relevant to this lawsuit, the enrollment at Pikes Peak Elementary School and Carmel Middle School roughly mirrored the racial breakdown of the School District generally-Hispanic students formed the majority, followed by white students and then black students. (Id.) K.D. is white. (Id. ¶ 26.)

         K.D. has a disability known as idiopathic toe walking (habitually walking “on tiptoes”). (Id. ¶¶ 28, 53.) He therefore has a noticeably different walking style and he tends to wear out the toe area of his shoes quickly. (Id. ¶ 28.)

         B. Allegations Against the Various Individual Defendants Before the Stabbing Incident

         The core of Plaintiffs' complaint is the alleged lack of response by Defendants to Hispanic students' persistent bullying of K.D. based on his race; and students' persistent bullying of K.D. based on his disability. Plaintiffs estimate that K.D. was bullied “approximately 75 times.” (Id. ¶ 68.) This bullying culminated in a school fight where a Hispanic student stabbed K.D. with a highly sharpened pencil-and K.D. has not since returned to the Middle School. Before providing details on the stabbing incident (see Part II.C, below), the Court will summarize the specific instances of alleged bullying that led up to it.

         In April 2015, a Hispanic student at the Elementary School punched K.D. on the side of his head in the school cafeteria. (Id. ¶ 40.) This incident predates the 2015-16 school year, which the complaint otherwise portrays to be the beginning of the relevant time period. (See id. ¶ 24.) Plaintiffs provide no explanation for this apparent discrepancy. In any event, a school nurse gave K.D. cursory treatment twice and both times sent him back to class, but the nurse never reported the incident to School District authorities or to K.D.'s parents. (Id.) That same day, a Hispanic student told K.D., “Kill yourself.” (Id. ¶ 41.)

         K.D. told his parents about the punch and the taunt when he returned home from school that day. (Id.) K.D.'s parents complained to “Defendant Doe school authorities including individuals in Defendant Breske's office about this incident and continued to communicate their concerns to the school on a weekly basis.” (Id.) Breske, however, is the Middle School's principal. (Id. ¶ 12.) It is unclear why K.D.'s parents complained to the Middle School administration, rather than the Elementary School administration. Similarly, K.D.'s parents say they “specifically spoke to Defendants[] Spencer, . . . Delourenco, [and] Glickman” (id. ¶ 41), but none of those individuals work at the Elementary School. Rather, Glickman and Delourenco are both assistant principals at the Middle School. (Id. ¶¶ 13-14). Spencer is the School District's superintendent. (Id. ¶ 11.)

         Although Spencer, as compared to Breske, Delourenco, or Glickman, likely could exercise some authority regarding the Elementary School, the accusations regarding him are confusing. As noted, Plaintiffs contend that K.D.'s parents “specifically spoke” with Spencer. However, the very next paragraph of the complaint alleges that they did not speak with Spencer because persons at the School District's main office said that all requests for appointments with Spencer must be made through an online system, yet the Nippers did not have a computer to use and their smartphones were useless because the website was not mobile-friendly. (Id. ¶ 42.) K.D.'s parents faced this obstacle multiple times and “continued to inform [the District's] authorities, administrators and agents that they did not have a computer.” (Id. ¶ 43.)

         Making no headway, Sherise Nipper used her smartphone to start a change.org petition directed at Spencer to “stop the bullying at [P]ikes [P]eak [E]lementary.” (Id. ¶ 44.) “According to the petition posting on the website, the petition was to be delivered to [Spencer].” (Id. ¶ 45.) Plaintiffs do not allege that the petition was actually delivered to Spencer or anyone else.

         On another occasion (date unspecified), K.D. rode his bike to school (whether Elementary School or Middle School, likewise unspecified) but bullies tried to grab him as he rode, so he turned around and went home. (Id. ¶ 46.) K.D.'s parents “called the police who went to the school and spoke to [District] authorities and Defendant Doe(s).” (Id.) “No action was taken . . . to the Nippers' knowledge.” (Id.)

         Another incident of bullying took place in the fall of 2016 at the Middle School. (Id. ¶ 47.) In this incident, “students were spitting on K.D.” (Id.) Sherise Nipper reported the incident to Principal Breske, “who merely said ‘boys will be boys.'” (Id.)

         Also in the fall of 2016, a group of Hispanic students at the Middle School prevented K.D. from taking his bike to the bike rack. (Id. ¶ 48.) K.D.'s parents “called the school and informed a District employee of this incident” and requested “an adult monitor [at] the bike rack, ” but nothing came of the request. (Id.)

         Again in the fall of 2016, “students made fun of K.D. inside the gym locker room because K.D. was ‘so white.'” (Id. ¶ 49.) K.D. told his parents about this incident who then reported it to “authorities” at the Middle School. (Id.)

         Sometime during September 2016, another student kicked K.D. in the head during music class. (Id. ¶ 51.) The teacher verbally reprimanded the student, but took no other action. (Id.)

         In late September 2016, K.D.'s toe-walking disability prompted an argument between him and “other children” at the Middle School. (Id. ¶ 52.) K.D. told his parents about the incident who then reported it to “District authorities, ” to no effect. (Id.)

         Around the same time, K.D. was fitted with special casts and orthotics to treat his toe-walking. (Id. ¶¶ 53-54.) One of the persons who signed K.D.'s cast was a family friend and owner of the marijuana dispensary where Sherise Nipper obtains cannabis. (Id. ¶ 54.) The dispensary is named Weed Pimp Nation, and the owner signed the cast “WP4L, ” meaning “Weed Pimp for Life.” (Id. ¶¶ 22, 54.) Soon after, however, Defendant John Doe (K.D.'s gym teacher at the time), noticed the “WP4L” inscription and asked K.D., “in front of other students, why he had something representing ‘white power' on his cast.” (Id. ¶ 54.) Later the same day, K.D.'s locker was vandalized and some of his personal items were damaged. (Id. ¶ 57.)

         K.D. did not know what “white power” meant so he described the gym incident to his parents. (Id. ¶ 55.) They, in turn, feared racially motivated retaliation against K.D. and reported the incident to a person “believed to be” Assistant Principal Glickman. (Id.) Glickman “responded that this was a misunderstanding on the part of the gym teacher, ” and did nothing. (Id.) K.D.'s parents also reported the locker vandalization, but this report went only to unnamed “Defendant school authorities.” (Id. ¶ 57.)

         The following day, a group of Hispanic students from another school joined a group of Hispanic students from the Middle School and waited at the bike rack for K.D.'s arrival, intent on bullying him. (Id. ¶ 58.) When K.D. saw this group, he turned his bike around and rode home. (Id.) K.D.'s parents returned to the school and spoke with to “school authorities” and a “coach, ” whose names they do not know. (Id. ¶ 59.) One of them said that they knew about the incident and that a video existed, but the video could not be shared due to privacy laws. (Id.) From this point forward, one of K.D.'s parents always accompanied him to school. (Id. ¶ 60.)

         K.D.'s parents then returned to meet with a person “who they believe was” Assistant Principal Glickman. (Id. ¶ 61.) Glickman “believed the harassment was racially motivated” but “also accused K.D. of engaging in racially motivated verbal harassment against other students.” (Id.) Glickman did not take action to prevent any bullying. (Id.)

         Still around the same time, Nicholas Nipper was walking K.D. to school and observed Hispanic children bullying a child with Down syndrome on the field between the Middle School and Elementary School. (Id. ¶ 62.) Nicholas Nipper intervened and one of the students, “I.P., ” told him, “I'm going to jump your kid.” (Id.) Nicholas Nipper “went straight to [the Middle School] and reported [this to] the School District ...