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M.S. v. Hamilton County Department of Education

United States District Court, E.D. Tennessee, Chattanooga

September 29, 2017

M.S. (a minor, by his parent and next friend, Sharonda Covington), et al., Plaintiffs,



         This matter is before the Court on the defendants' motions to dismiss this § 1983 action in its entirety for failure to state a claim under Rule 12(b)(6). Defendant Durham School Services, L.P. (“Durham”) moves to dismiss the amended complaint. [Doc. 21]. Defendants Hamilton County Department of Education (“HCDE”) and Benjamin Coulter (“Coulter”) similarly move to dismiss the amended complaint. [Doc. 24]. The plaintiffs filed a consolidated response to both motions, [Doc. 40], to which Durham replied, [Doc. 42], and HCDE and Coulter replied, [Doc. 44]. The matters are ripe for review.

         I. FACTS

         The facts of this case arise out of an indisputably tragic school bus accident that occurred on November 21, 2016. On the afternoon of November 2, 2016, Johnthony Walker (“Walker”) was driving Bus 366 on his after-school bus route when he struck a telephone pole, flipped the bus on its side, and hit a tree. The plaintiffs allege that Walker was speeding on a narrow, curvy residential road when the accident occurred. On board the bus were 37 children from Woodmore Elementary School, located in Chattanooga, Tennessee. As a result of the accident, six of the children died, another six were treated in the intensive care unit, and many others were treated for various, less-severe injuries.

         Defendant Durham is a student services transportation company that contracted with the HCDE to provide school bus transportation services at Woodmore Elementary School, among others. Walker was employed by Durham as a bus driver and was not named as a defendant in this litigation. Defendant Coulter was the Supervisor of Transportation for HCDE at the time of this accident.

         The plaintiffs allege that the transportation contract created a “joint undertaking” between Durham and the HCDE to ensure that students were transported to and from school on school busses. As evidence of this “joint undertaking, ” the plaintiffs allege that the contract required Durham to purchase and equip the school busses with recording equipment and submits that anyone who destroyed the equipment or digital records could be subjected to prosecution. [Amended Complaint, Doc. 3 ¶ 20]. The plaintiffs submit “upon information and belief” that no Tennessee statute prohibits the tampering with of the digital recording of a private person, and therefore, “Durham's private property was afforded the protection of governmental property”, thereby making Durham a state actor. [Id.]. Further, HCDE had access to review the video recordings and GPS monitoring systems installed on the busses. [Id. ¶¶ 21-22]. The contract provided that changes to the rules or regulations had to be “mutually agreed upon.” [Id. ¶ 23].

         The plaintiffs note in their complaint many of the safety rules in HCDE's transportation policy require drivers to adhere to traffic laws and other regulations to promote safety. [Id. ¶¶ 33-34]. The plaintiffs allege that the defendants were aware that Walker was violating the HCDE transportation policy by failing to adhere to traffic laws, [Id.], not caring about the students, [Id. ¶ 50], and saying that driving the bus was merely a part time job. [Id.].

         The plaintiffs further allege that “in early November 2016, ” the defendants received written complaints from students, parents, and Woodmore school employees that Walker was “recklessly endangering the safety of the young children on his route” by braking suddenly, taking sharp turns, driving dangerously fast, and intentionally attempting to injure students. [Id. ¶¶ 35-38]. Coulter was aware of some of these concerns and the principal of Woodmore's concerns regarding Walker's driving and behavior. [Id. ¶55]. “Upon information and belief, ” Walker was assigned to Bus 366 “as punishment;” however, the plaintiffs have not alleged who made this assignment. [Id. ¶ 65].

         The plaintiffs allege that the defendants' “approval of a deliberate indifference towards Johnthony Walker's repeated and sadistic use of bodily harm . . . to control the behavior of elementary school children and [the defendants'] continuous instruction to the young children to board Walker's bus each day caused injury to the Plaintiffs, ” including bodily injury that occurred following the November 21, 2016 accident. [Id. ¶ 61].

         The plaintiffs bring this class action on behalf of M.S., a minor on Bus 366 who survived the crash, and others similarly situated, namely, “the children who were passengers on Woodmore Elementary School Bus 366 during the afternoon route on November 21, 2016, and their respective parents/guardians and/or estates.” [Id. ¶ 85]. The plaintiffs allege five causes of action of both state and federal claims. The plaintiffs have brought some claims pursuant to 41 United States Code § 1983 (“§ 1983”) as well as state common law tort claims. Count One alleges a § 1983 action against all defendants based on a “breach of duty to protect against state-created danger.” Count Two alleges a § 1983 action against all defendants based on a constitutional right to bodily integrity, applicable to the states through the Fourteenth Amendment. [Id. ¶ 114]. Count Three alleges § 1985[1] claim based on a conspiracy to deprive the plaintiffs of the same constitutional right. Counts Four alleges Tennessee common law tort claims of negligence and gross negligence. [Id. ¶ 138]. Count Five alleges Tennessee common law tort claims of assault and battery. [Id. ¶ 146].


         Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) eliminates a pleading or portion thereof that fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Moreover, Federal Rule of Civil Procedure 8(a)(2) requires the complaint to contain a “short plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A motion to dismiss under Rule 12(b)(6) requires the Court to construe the allegations in the complaint in the light most favorable to the plaintiff and accept all the complaint's factual allegations as true. Meador v. Cabinet for Human Res., 902 F.2d 474, 475 (6th Cir. 1990). The Court may not grant a motion to dismiss based upon a disbelief of a complaint's factual allegations. Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990). The Court must liberally construe the complaint in favor of the party opposing the motion. Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995). However, the plaintiff must allege facts that, if accepted as true, are sufficient “to raise a right to relief above the speculative level, ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), and to “state a claim to relief that is plausible on its face.” Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. Moreover, this Court need not “‘accept as true a legal conclusion couched as a factual allegation.'” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Ashcroft, 556 U.S. at 678. Lastly, this Court may consider documents central to the plaintiff's claims to which the complaint refers and incorporates as exhibits. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001).

         Generally, under Rule 12(d), if matters outside of the pleadings are presented and not excluded by the court, a motion to dismiss should be treated as a motion for summary judgment and disposed of as provided for in Rule 56. Fed.R.Civ.P. 12(d). However, the Court may consider a document attached the motion pleadings even if not incorporated by reference or attached to the complaint under certain circumstances. Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507, 514 (6th Cir. 1999). Where a document is referred to in the complaint and is central to the plaintiff's claim but not attached or incorporated by reference in the complaint, the defendant may submit the document to be considered with the motion to dismiss and such consideration does not convert the motion to dismiss to a motion for summary judgment. Id. (citing Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997)). Here, the plaintiff's complaint contains an entire subsection titled “The July 1, 2013 Contract Between the District and Durham.” [Amended Complaint, Doc. 3 at 6]. In this subsection, the plaintiff specifically cites to the contract but the contract was not attached or incorporated by reference in the complaint. The contract was attached to Durham and HCDE's motions to dismiss and will be considered by the Court in this motion to dismiss. Because the contract is specifically referenced in the plaintiff's complaint, indeed quotations directly from the complaint are alleged, and the contract terms form the basis of holding Durham liable, the consideration of this contract does not convert these motions to motions for summary judgment.

         III. ANALYSIS

         Counts One, Two, and Three allege causes of action pursuant to § 1983. Section 1983 provides a cause of action where a person acting under the color of state law deprived the plaintiff of a constitutional right. 42 U.S.C. § 1983. To sustain a motion to dismiss pursuant to Rule 12(b)(b), the plaintiff must sufficiently allege two elements, (1) that there was a deprivation of a constitutional right, and (2) that the deprivation was caused by a person acting under the color of state law. Wittstock v. Mark A. Van Sile, Inc., 330F.3d 899, 902 (6th Cir. 2003) (citing Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003)). In limited situations, a private actor may be considered a state actor under § 1983. Id.

         A. Durham as a State Actor

         Durham moves to dismiss Counts One, Two, and Three alleging § 1983 violations because Durham is a private actor, not a state-actor, and therefore cannot be liable under § 1983. The principal inquiry in determining whether a private party's actions constitute “state action” under the Fourteenth Amendment is whether the actions may be “fairly attributable to the state.” Wolotsky v. Huhn, 960 F.2d 1331, 1332 (6th Cir. 1992) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). The Sixth Circuit applies three tests to determine whether a private actor's conduct may be attributable to the state: (1) the nexus or symbiotic relationship test; (2) the public function test; and (3) the state compulsion test. Id. (citing Lugar, 457 U.S. at 939). The Sixth Circuit has also discussed another test, the entwinement test. Marie v. Am. Red Cross, 771 F.3d 344, 362 (6th Cir. 2014). In its motion to dismiss, Durham argues that the plaintiff has failed to allege any facts that meet any of the three tests. However, in their response, the plaintiffs argue they have plausibly alleged facts to support a claim under the nexus test, the state compulsion test, and the entwinement test. [Doc. 41 at 7]. The plaintiffs argue that the nexus, symbiotic relationship, and the entwinement tests are similar enough that they may be analyzed collectively. [Id.]. Because the plaintiffs do not argue that they have sufficiently alleged a relationship under the public function test, that test will not be considered as a basis for recovery or discussed in this memorandum opinion.

         i) State Compulsion Test

         The state compulsion test “requires that a state exercise such coercive power or provide such significant encouragement, either overt or covert, that in law the choice of the private actor is deemed to be that of the state.” Wolotsky, 960 F.2d at 1335. This requires more than mere approval or acquiescence of the private party's conduct. Id. (citing Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). This test requires “proof that the state significantly encouraged or somehow coerced” the private actor to take a particular action “so that the choice is really that of the state.” Ellison v. Garbarino, 48 F.3d 192, 195 (6th Cir. 1995). The Supreme Court further held that although a school was subject to “extensive ...

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