United States District Court, D. Colorado
K.D., by his next friend and parent, Sherise Nipper; and SHERISE NIPPER as an individual, Plaintiffs,
HARRISON SCHOOL DISTRICT TWO, HARRISON SCHOOL DISTRICT TWO BOARD OF EDUCATION, ANDRE SPENCER, PhD, in his official and individual capacity, LORNA BRESKE, in her individual capacity, SERGIO DELOURENCO, in his individual capacity, MONICA GLICKMAN, in her individual capacity, ELIZABETH COLLINS, in her individual capacity, JOHN DOE, in his official individual capacity, and DOES 1 through 10, inclusive Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS
WILLIAM J. MARTINEZ, UNITED STATES DISTRICT JUDGE
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
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.
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).
following facts, taken from the Second Amended Complaint
(“complaint”) (ECF No. 36), are deemed to be true
for purposes of Defendants' Motion.
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. ¶¶
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.)
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.)
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.)
Allegations Against the Various Individual Defendants Before
the Stabbing Incident
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.
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.)
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.)
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.)
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
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.)
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.'”
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.
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.
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
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.
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.)
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.)
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.)
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.
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