Telethia Barrett v. Board of Education, No. 14-1448 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1448 TELETHIA BARRETT; G. B., Plaintiffs - Appellants, v. BOARD OF EDUCATION OF JOHNSTON COUNTY, NC; DR. EDWARD CROOM; SHELLY MARSH; KEITH BEAMON; CHRIS GODWIN; ROBIN HERRIDGE; JANET LEBO; LINDA EDMUNDSON; CHRISTY TURNER; SHELLEY SIEGERT; ANNA GARDNER, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:13-cv-00668-BO) Submitted: October 28, 2014 Before AGEE and Circuit Judge. FLOYD, Circuit Decided: Judges, and November 6, 2014 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Robert C. Ekstrand, Stefanie A. Smith, EKSTRAND & EKSTRAND LLP, Durham, North Carolina, for Appellants. Jill R. Wilson, Robert J. King, III, Julia C. Ambrose, BROOKS, PIERCE, MCCLENDON, HUMPHREY & LEONARD, LLP, Raleigh, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Telethia Barrett, and her minor daughter, G.B., appeal the district court’s judgment granting the Appellees’ motions to dismiss under Rule 12(b)(6) of the Procedure for failing to state a claim. Federal Rules of Civil We affirm. We review de novo a district court’s order granting a motion to dismiss for failing to state a claim. Waugh Chapel S., LLC v. United Food & Commercial Workers Union, 728 F.3d 354, 361 (4th Cir. 2013). The facts in the complaint are viewed in the light most favorable to the plaintiffs. Loan Inv. Bank, F.S.B., 710 F.3d 551, 554 McCauley v. Home (4th Cir. 2013). However, we need not accept the plaintiffs’ legal conclusions regarding those facts. Id. The plaintiffs’ factual allegations “must be enough to raise a right to relief above the speculative level, thereby nudging conceivable to plausible.” its claims across the line from Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 543 (4th Cir. 2013) (internal quotation marks and alterations omitted). In other words, the plaintiffs must demonstrate “more than ‘a sheer possibility that a defendant has acted unlawfully.’” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The plaintiffs must “articulate facts, when accepted as true, that show that the plaintiff[s have] stated a claim 2 entitling [them] to relief.” Id. (internal quotation marks omitted and alterations added). The under Board, § 1983, is for purposes of a indistinguishable civil from a rights lawsuit municipality. Riddick v. Sch. Bd. of City of Portsmouth, 238 F.3d 518, 522 n.3 (4th Cir. 2000). The employing a tortfeasor. Board cannot Id. at 522. be liable simply for As there is no respondeat superior liability under § 1983, Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978), “[t]o hold a municipality (a local government entity) liable for a constitutional violation under § 1983, the plaintiff must show that the execution of a policy or custom of the municipality caused the violation.” Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004). Love- “Municipal policy may be found in written ordinances and regulations, in certain affirmative decisions of individual policymaking officials, or in certain omissions on the part of policymaking officials that manifest deliberate indifference to the rights of citizens.” Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999) (citations omitted). Outside of formal decisionmaking channels, a “municipal custom may arise if a practice is so persistent and widespread and so permanent and well settled as to constitute a custom or usage with the force of law.” marks omitted). Id. (internal quotation The Board may also be liable if the alleged 3 violation was caused by an individual’s official actions that may be found to represent the Board’s official policy. 238 F.3d at 522-23. authority to establish action ordered. But the individual municipal policy must with Riddick, possess respect final to the Id. at 523. We conclude that the Appellants’ claims against the Board of Education of Johnson County, North Carolina (“Board”), fail because the Appellants failed to make sufficient factual allegations that move the claims from conceivable to plausible. There were no factual allegations showing that the Board had a policy, custom, or practice that led to the alleged violations. The Appellants merely expressed a belief or an opinion without any supporting factual allegations. to identify defendants with had factual final The Appellants also failed allegations authority to with respect to the actions ordered. that any establish of individual municipal policy For the same reason, the Appellants failed to show that the Board engaged in deliberate indifference to their rights or that it had a persistent and widespread practice that led to the alleged violations. * * Assuming, arguendo, that the Appellants brought a standalone claim under 42 U.S.C. § 2000d (2012), we conclude that they failed to state a claim. 4 Regarding district court the found individual that they defendants, were entitled while to the qualified immunity, we affirm based on our conclusion that the Appellants failed to plead sufficient facts showing that the individual defendants violated the Appellants’ rights. any reason appearing on the record. Martin, 980 F.2d 943, 952 (4th We may affirm for Republican Party of N.C. v. Cir. 1992). The Appellants failed to identify who allegedly excluded G.B. from the Board’s programs, and who was responsible for the alleged abuse. In the complaint, the Appellants failed to allege which defendant was responsible for which violation, sometimes pleading that all the defendants were responsible. This global manner of pleading made the claims at issue less plausible because some of the individual defendants had no reason to have known or interacted with the Appellants at the time of the alleged violations. Regarding the direct claim brought under North Carolina’s constitution, we affirm for the reasons cited by the district court. See, e.g., Edwards v. City of Concord, 827 F. Supp. 2d 517 (M.D.N.C. 2011) (plaintiff’s state law claim that defendant in his individual capacity committed an intentional tort was an adequate remedy). Because no claims survived the Appellees’ motions to dismiss, the court properly dismissed the claim for punitive damages. 5 Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 6

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