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Case 1:19-cv-20204-UU Document 12 Entered on FLSD Docket 02/08/2019 Page 1 of 23

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

CASE NO. 1:19-cv-20204-UU

Jane Doe, by and through her mother and next


friend, Mary Doe,

Plaintiff,

vs.

The School Board of Miami-Dade County, et. al.,

Defendants.
_____________________________________/

DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT AND TO STRIKE


CLAIMS FOR PUNITIVE DAMAMGES
Case 1:19-cv-20204-UU Document 12 Entered on FLSD Docket 02/08/2019 Page 2 of 23
Jane Doe, a minor, v. The School Board of Miami-Dade County, Florida, et. al.
Case No. 1:19-cv-20204-UU - Defendants’ Motion to Dismiss Complaint

Defendants, The School Board of Miami-Dade County, Florida (hereinafter “School Board”),
and Alberto Carvalho, Superintendent (“Superintendent Carvalho”) of Miami-Dade County
Public Schools (“MDCPS”) (collectively “Defendants”), hereby move to dismiss Plaintiff’s
Complaint, and Strike Claims for Punitive Damages for the reasons set forth herein.
PRELIMINARY STATEMENT

Plaintiff, Jane Doe (“Plaintiff”), a minor, asserts violations of Title IX and Section 1983 by
the School Board and Superintendent Carvalho stemming from alleged sexual assaults against
Jane Doe. She also alleges various supplemental state law tort claims against Defendants.
Dismissal is proper for a myriad of reasons. As an initial matter, Plaintiff’s Complaint is an
improper shotgun pleading which impermissibly adopts the allegations of all preceding counts,
causing each successive count to carry all that came before and the last count to be a
combination of the entire Complaint. Also, the Complaint impermissibly brings claims against
both Defendants in the same count without specifying which of the Defendants are responsible
for which acts or omissions. Additionally, Plaintiff fails to state a cause of action against The
School Board for violations of Title IX as she has not alleged facts sufficient to establish that the
School Board (1) had actual notice of peer-to-peer discrimination or sexual harassment against
the or (2) that the School Board acted with deliberate indifference to known acts of harassment in
its programs or activities which barred her from access to educational opportunities or benefits.
Further, Plaintiff fails to state a cause of action against The School Board for violations of 42
U.S.C. §1983 as the Complaint is devoid of facts to show that it failed to promulgate policies
which lead to the alleged incidents. Plaintiff’s state law claims fail to allege facts sufficient state
a cause of action against Defendants and do not state with any specificity what negligent acts
each Defendant committed. Furthermore, the Plaintiff impermissibly brings various
supplemental claims against Superintendent, Alberto Carvalho, which are improper since he is
entitled to Qualified Immunity. Finally, Plaintiff seeks punitive damages without alleging any
facts to support outrageous conduct and though punitive damages are not recoverable against
governmental agencies in claims brought pursuant to 42 U.S.C. §1983 or Title IX of the
Education Amendments of 1972, 20 U.S.C. §1681.

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Jane Doe, a minor, v. The School Board of Miami-Dade County, Florida, et. al.
Case No. 1:19-cv-20204-UU - Defendants’ Motion to Dismiss Complaint

BACKGROUND FACTS
Plaintiff alleges she was a fourteen-year old student at Carol City High School, (Compl. ¶ 1),
a school within Defendants’ district, when, on or about October 24, 2017, October 27, 2017, and
November 6, 2017, she was the victim of sexual assaults in the restroom(s) of the school.
(Compl. ¶¶ 17, 19, 24). Plaintiff avers all of the following alleged facts. She did not report the
assaults to anyone at school on the dates they occurred. (Compl. ¶¶ 18, 22, 25). Her friends
encouraged her to come with them to report the “sexual harassment” to school officials on
November 7, 2017. (Compl. ¶ 26). Her friends, not her, first reported the incidents to the school
principal on November 7, 2017. (Compl. ¶ 26). Following the reporting by her friends to the
principal, she was called to the school’s main office to meet with and be interviewed by the
school assistant principal about the incident. (Compl. ¶ 30). School administration contacted
Miami-Dade County Schools Police, who also met with her to investigate the incidents.
(Compl., p. 7, ¶ 31, n.3). Plaintiff wrote a statement of the incidents. (Compl. ¶ 35). The school
police officer asked her to clarify the facts surrounding the incidents. (Compl. ¶ 38). The school
police officer referred her to a school counselor. (Compl. ¶ 39). She “agreed to add” to her
statement that she was a “willing participant” in and “wasn’t really forced” to participate in the
incidents in question. (Compl. ¶ 51). The assistant principal further investigated the incidents
by interviewing two of the male students and determined based upon her investigation
thatPlaintiff’s statement was the same as theirs. (Compl. ¶ 53). She and all three male students
each received a five (5)-day reassignment to another school location for a violation of the Code
of Student Conduct. (Compl. ¶¶ 62, 78). Plaintiff did not attend the disciplinary center and did
not return to Carol City High School after November 7, 2017. (Compl. ¶¶ 64, 76). The Miami-
Dade County State Attorney’s Office investigated the incidents. (Compl., p. 12, n.6). The
MDCPS school police officers followed up their investigation by visiting Plaintiff’s house to
alert her of a possible safety risk resulting from the incidents and advised her to seek medical
treatment. (Compl. ¶ 79). The MDCPS school police officers escorted her to receive a medical
evaluation. (Compl. ¶ 80). Plaintiff initially desired to attend home school after the incidents
that occurred at Carol City High School. (Compl. ¶ 88). By January 16, 2018, Plaintiff began to
consider a transfer of public high schools instead of home school. (Compl. ¶ 89). By February
23, 2018, Plaintiff’s official transfer request out of Carol City High School to another high
school within Defendants’ school district was granted. (Compl. ¶¶ 84, 101).

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Jane Doe, a minor, v. The School Board of Miami-Dade County, Florida, et. al.
Case No. 1:19-cv-20204-UU - Defendants’ Motion to Dismiss Complaint

Plaintiff acknowledges that school officials conducted an investigation into incidents giving
rise to this case. (Compl. ¶ 71). Plaintiff avers that her mother initially believed that school
officials had conducted a “full and proper investigation of the matter.” (Compl. ¶ 71). Plaintiff’s
Complaint does not allege that she made a formal complaint with the MDCPS Office of Civil
Rights Compliance (“CRC Office”), or any other official above the principal’s level, regarding
the school’s administrative investigation of the incidents of October 24, 2017, October 27, 2017,
and November 6, 2017. (Compl. ¶ 75(a)). Plaintiff does not allege that Defendants ignored her
request for an internal affairs investigation against the first school police offer who investigated
the October 24, 2017, October 27, 2017, and November 6, 2017 incidents. (Compl. ¶ 102).
Plaintiff does not allege that Defendants ignored her request for a student records expungement
review. (Compl. ¶ 103). Plaintiff’s allegation that she was “harmed academically” is vague; she
does not allege that she was unable to complete the 2017-2018 school year (or attend the 2018-
2019 school year) at a traditional high school and earn passing grades overall as a result of any
action or inaction by Defendants. (Compl. ¶¶ 104, 105).
STANDARD OF LAW
To survive a motion to dismiss, a Complaint must contain factual allegations which are
“enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). Thus, “[w]hile a Complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (citations
omitted). Rather, the facts set forth in the Complaint must be sufficient to “nudge the [ ] claims
across the line from conceivable to plausible.” Id. at 570. The Eleventh Circuit Court of
Appeals has explained that courts “make reasonable inferences in Plaintiff’s favor, “‘but we are
not required to draw plaintiff’s inference.’” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260-
61 (11th Cir. 2009) (internal citations omitted). Under Federal Rule of Civil Procedure 12 (f), a
court may on its own motion or by motion of a party, “strike from a pleading, an insufficient
defense or any redundant, immaterial, impertinent or scandalous matter.” Impertinent matter is
defined as statements that do not pertain, and are not necessary to the issues in question. See
Arstil v. Housing Authority of City of Tampa, 54 F.Supp. 2d 1289, 1291 (M.D.Fla. 1999). A
motion to strike pursuant to Rule 12 (f) is an appropriate method of challenging a prayer for

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Jane Doe, a minor, v. The School Board of Miami-Dade County, Florida, et. al.
Case No. 1:19-cv-20204-UU - Defendants’ Motion to Dismiss Complaint

relief that is not available under applicable law. Id. at 1296; Moore v. City of Lakeland Police
Department, 2014 WL 12621584, *2 (M.D.Fla. April 1, 2014).
MEMORANDUM OF LAW
I. THE COMPLAINT IS AN IMPROPER SHOTGUN PLEADING
Rule 8(a)(2) requires a complaint to include "a short and plain statement of the claim
showing that the pleader is entitled to relief." Rule 10(b) further provides that a party must state
its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of
circumstances. FRCP 10(b) Each claim founded on a separate transaction or occurrence — and
each defense other than a denial — must be stated in a separate count or defense. Id. Complaints
that violate either Rule 8(a)(2) or Rule 10(b), or both, are often disparagingly referred to as
"shotgun pleadings." Weiland v. Palm Beach County Sheriff’s Office, 792 F. 3d 1313, 1320
(11th Cir. 2015). The Eleventh Circuit has identified four types or categories of shotgun
pleadings. “The most common type — by a long shot — is a complaint containing multiple
counts where each count adopts the allegations of all preceding counts, causing each
successive count to carry all that came before and the last count to be a combination of the entire
complaint. Id. Another is the relatively rare sin of asserting multiple claims against multiple
defendants without specifying which of the defendants are responsible for which acts or
omissions, or which of the defendants the claim is brought against. Id. The unifying
characteristic of all types of shotgun pleadings is that they fail to one degree or another, and in
one way or another, to give the defendants adequate notice of the claims against them and the
grounds upon which each claim rests. Weiland v. Palm Beach County Sheriff’s Office, 792 F. 3d
at 1323.
Here, the Plaintiff’s Complaint constitutes an impermissible shot-gun pleading which should
be dismissed as each count (whether directed at The School Board, Superintendent Carvalho, or
both) adopts the allegations of all other preceding counts; thereby making it impossible for each
Defendant to file a proper response to the Complaint. Additionally, the Plaintiff asserts
supplemental claims for Negligence (Count IV), Negligent Training (Count V), Negligence per
se (Count VI) and Intentional Infliction of Emotional Distress (Count VII) against both
Defendants without specifying which of the Defendants are responsible for the various acts and
omissions contained within those counts. To make matters worse, Counts IV through VII
incorporates and adopts the allegations contained within the various claims asserted against The

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Jane Doe, a minor, v. The School Board of Miami-Dade County, Florida, et. al.
Case No. 1:19-cv-20204-UU - Defendants’ Motion to Dismiss Complaint

School Board; thereby rendering it impossible for Defendant, Superintendent Carvalho, to


determine which of the one-hundred twenty-six allegations (126) directed at The School Board
in Counts I- III are also meant for Superintendent Carvalho. It is unclear whether Plaintiff’s
shotgun Complaint was meant to confuse the Defendants. Nonetheless, dismissal is proper.
II. PLAINTIFF HAS NOT STATED A VALID TITLE IX CLAIM AGAINST THE
SCHOOL BOARD (Counts I and II)
Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance.” Doe v. Bibb County Sch.
Dist., 126 F. Supp. 3d 1366, 1375 (M.D. Ga. 2015), aff'd, 688 Fed. Appx. 791 (11th Cir. 2017)
(unpublished) (citing 20 U.S.C. § 1681(a)). A school district may be held liable for a violation
of Title IX based on student-on-student sexual harassment only where (1) “the funding recipient
acts with deliberate indifference to known acts of harassment in its programs or activities,” and
(2) the “harassment [ ] is so severe, pervasive, and objectively offensive that it effectively bars
the victim’s access to an educational opportunity or benefit.” Davis v. Monroe County Bd. of
Educ., 526 U.S. 629, 633 (1999). The Eleventh Circuit and federal district courts have further
expounded the Davis standard. A public school system is only liable for peer-on-peer sexual
harassment if: “(1) the defendant is a federal funding recipient; (2) an appropriate person [has]
actual knowledge of the discrimination or harassment the plaintiff alleges occurred; (3) the
defendant is deliberately indifferent to known acts of harassment; and (4) the discrimination is so
severe, pervasive, and objectively offensive that it effectively bars the victim's access to an
educational opportunity or benefit.” 126 F. Supp. at 1376 (adopting the test established by
Williams v. Bd. of Regents of University System of Georgia, 477 F.3d 1282, 1293 (11th Cir.
2007) and Hill v. Cundiff, 797 F.3d 948, 970 (11th Cir. 2015)).
a. Plaintiff Has Not Sufficiently Alleged That An Appropriate Person Had Actual
Knowledge Of Discrimination Or Harassment Against Her By Her Peers.
There is no question that the behavior alleged in this case is unbecoming of any adolescent
and is prohibited on all of Defendants’ school campuses.1 Nevertheless, the Plaintiff’s

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“When interacting with each other, children often exhibit behavior that would be wholly
unacceptable between adults. . . .The real world of school discipline is a rough-and-tumble place
where students practice newly learned vulgarities, erupt with anger, tease and embarrass each
other, share offensive notes, flirt, push and shove in the halls, grab and offend.’” Hawkins v.
Sarasota County Sch. Bd., 322 F.3d 1279, 1288 (11th Cir. 2003) (citing the Brief of Amici

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Jane Doe, a minor, v. The School Board of Miami-Dade County, Florida, et. al.
Case No. 1:19-cv-20204-UU - Defendants’ Motion to Dismiss Complaint

Complaint fails to allege facts from which this Court can conclude that the School Board had
actual knowledge of peer-to-peer sexual harassment against the Plaintiff. A damages remedy
will not lie under Title IX unless an official who at a minimum has authority to address alleged
discrimination and to institute corrective measures on behalf of recipient's behalf has actual
knowledge of discrimination in recipient's programs and fails adequately to respond." Gebser v.
Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998).
Plaintiff’s Complaint concedes that the Plaintiff admitted she was a “willing participant” in
the sexual conduct that occurred between Plaintiff and her male peers from October 17, 2017
through November 6, 2017. (Compl. ¶ 51). Further, Plaintiff’s Complaint does not allege that
school officials had actual notice of discrimination or harassment against her at the hands of her
peers prior to, or on the dates of, the events in question. Plaintiff’s Complaint does not set forth
concise allegations about which appropriate school official(s) had actual notice of which facts
constituting sexual assault by her peers and on which date(s). She alleges only that some school
employees had actual notice of peer-on-peer harassment by her three (3) male peers after her
friends reported it to the school principal on the day after the last incident occurred.
Plaintiff avers that she did not initially report the incidents to school administration or anyone
else; instead her friends lodged a report with school administration that is unspecified in
Plaintiff’s Complaint. The Complaint refers only to a generalized report of “sexual harassment”
by Plaintiff’s friend. (Compl. ¶ 29) (alleging that Plaintiff’s friends “reported the sexual assaults
of Jane to principal Ja Marv Dunn and to a school security guard.”). The Complaint does not
allege any specifics about what was stated by her friends to school administration or school
police that would help this Court understand when the School Board allegedly received actual
notice of discrimination or harassment against the Plaintiff by her peers.
Despite failing to allege any facts that the School Board received actual notice of
discrimination or harassment, the Plaintiff concedes that she gave a written statement to school
officials that left them unclear on what happened in the school’s bathrooms. She admits that
after being referred to at least a third school official, a school counselor, she then “agreed to add”
to her written statement that she was a “willing participant” in the incidents. She avers that her
statement was consistent with the statements of the alleged perpetrators of the sexual harassment.

Curiae National School Boards Ass'n et al. at 11, in Davis, 526 U.S. 629, 119 S.Ct. 1661, 143
L.Ed.2d 839 (1999) (No. 97-843)).

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Jane Doe, a minor, v. The School Board of Miami-Dade County, Florida, et. al.
Case No. 1:19-cv-20204-UU - Defendants’ Motion to Dismiss Complaint

Plaintiff’s Complaint also implies that she suffered the effects of sexual harassment because
of vague allegations of “coercion” by the school police officer with regard to the amendment to
her written statement. (Compl. ¶¶ 49, 51). The Complaint only uses the word “coercion,”
however, in a list of allegations of negligent conduct by school officials. (Compl., p. 30).
Plaintiff fails to allege that the School Board had actual knowledge of any coercion causing a
violation of Title IX. Even assuming Plaintiff’s implied allegation is true, such an action would
be an intentional violation of law and outside the scope of an officer’s proper conduct to
discharge his duties, relieving the School Board from any liability for such conduct.
There is no allegation that any of the male students had ever bothered Plaintiff before the
incidents; there is no allegation that Plaintiff made reports of sexual harassment or assault by the
males in question, or any other peers, to school officials before the incidents or after the school
administration’s investigation; there is no allegation that the male students were arrested or
charged with sexual assault; there is no allegation that the School Board or any other school
official rejected or failed to follow through on Plaintiff’s request for an internal affairs
investigation regarding the school police officer. In light of these circumstances, it was not
clearly unreasonable for the school administration to conclude that the student conduct was
consensual thus depriving The School Board of any actual knowledge of discrimination or
harassment.
b. Plaintiff Has Not Sufficiently Alleged That The School Board Was Deliberately
Indifferent To Known Acts Of Harassment
Plaintiff has failed to allege any facts from which the Court can conclude that the School
Board’s investigation into Plaintiff’s alleged incidents was unreasonable in light of the
circumstances. According to the Supreme Court,
Deliberate indifference makes sense as a direct liability theory only where the
recipient has the authority to take remedial action, and Title IX's language itself
narrowly circumscribes the circumstances giving rise to damages liability under
the statute. If a recipient does not engage in harassment directly, it may not be
liable for damages unless its deliberate indifference “subject[s]” its students to
harassment, i.e., at a minimum, causes students to undergo harassment or makes
them liable or vulnerable to it.

Davis, 526 U.S. at 630; accord Bibb, 126 F. Supp. at 1376 (explaining that a Title IX violation
can be based on deliberate indifference before an attack that makes a plaintiff more vulnerable to

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Jane Doe, a minor, v. The School Board of Miami-Dade County, Florida, et. al.
Case No. 1:19-cv-20204-UU - Defendants’ Motion to Dismiss Complaint

the attack or, in certain circumstances, deliberate indifference after an attack that causes a
plaintiff to endure additional discrimination).
Counts I and II of Plaintiff’s Complaint gloss over a key element required for stating a valid
Title IX claim—that school officials in this case were not clearly unreasonable in deciding to
treat the reported incidents as mutual sexual misconduct based on events that unfolded at the
time in question. Davis prohibits Plaintiff from alleging that she suffered harm because the
school administration and/or school police made a wrong judgment call about the nature of the
events that occurred at school.
…that [Title IX funding] recipients may be liable for their deliberate indifference
to known acts of peer sexual harassment—does not mean that recipients can avoid
liability only by purging their schools of actionable peer harassment or that
administrators must engage in particular disciplinary action. Id. at 648 (emphasis
added).

Davis, 526 U.S. at 648.


The Supreme Court instructs that “courts should refrain from second-guessing the
disciplinary decisions made by school administrators.” Davis, 526 U.S. at 648. Instead, federal
courts must analyze whether the School Board “respond[ed] to known peer harassment in a
manner that [was] not clearly unreasonable.” Id. at 649 (emphasis added). The standard is not
“a mere ‘reasonableness’ standard … In an appropriate case, there is no reason why courts, on a
motion to dismiss, for summary judgment, or for a directed verdict, could not identify a response
as not ‘clearly unreasonable’ as a matter of law.” Id. In Davis, a student alleged sexual
harassment when her classmate repeatedly subjected her to attempted groping and vulgar
comments. Davis, 526 U.S. at 633-34. The student reported these incidents to her teacher, who
in turn reported the incidents to the principal. Id. at 634. When the harassment continued, and
more students came forward alleging the same misconduct, the school administration failed to
investigate further. Id. The case at bar is distinguishable. Plaintiff avers that the school
administration conducted an investigation, but takes issue with the quality of the investigation.
In stark contrast to Davis, where “[d]istrict administrators [were] well aware of the daily
ritual” of severe peer-on-peer sexual harassment, Davis, 526 U.S. at 650-51, here school
administrators relied on what was known to them at the time, based on the police officers
investigation, their own investigation, and Plaintiff’s own statements. Even if school
administrators turned out to be wrong in thinking that Plaintiff was a willing participant in the

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Jane Doe, a minor, v. The School Board of Miami-Dade County, Florida, et. al.
Case No. 1:19-cv-20204-UU - Defendants’ Motion to Dismiss Complaint

incidents in question, they were not clearly unreasonable under the circumstances at that time.
“[A] funding recipient cannot be held liable simply because it did not conduct an appropriate
investigation (even if such conduct could expose it to potential administrative action by the
DOE).” Bibb, 126 F. Supp.3d at 1378; see also Doe v. Emerson College, 271 F.Supp.3d 337,
354-356 (D. Mass. 2017) (quoting Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 174 (1st
Cir. 2007), rev’d on other grounds, 555 U.S. 246 (2009) that “Title IX does not guarantee that an
investigation will yield the outcome that a complainant desires. Nor does it require that all
complainants be deemed credible, simply because they are complainants. A school satisfies its
obligations if it engages in a reasonable process for investigating and addressing claims of sexual
harassment … Whether or not every decision Emerson made in the course of its investigation
was correct is not the appropriate focus of a Title IX claim. . . . Title IX does not require
educational institutions to take heroic measures, to perform flawless investigations, [or] to craft
perfect solutions.”).
In Bibb, a special education student attending a high school in the defendant’s district was
raped in a bathroom by seven male students after being released into one of the student’s custody
by her teacher. Doe v. Bibb Cty. Sch. Dist., 688 F. App’x at, 793. None of the boys involved
had a history of sexual violence or harassment at the school. Id. The girl and her mother
brought a Title IX suit alleging that the district’s actions before and after being put on notice
about her rape constituted deliberate indifference. Bibb, 126 F. Supp. at 1376 at 1376. They
argued, inter alia, “that the School District abdicated its investigatory responsibility under Title
IX by not continuing to investigate what actually happened in the restroom, i.e., whether it was
consensual, after the [local police’s] conclusion that [the girl] recanted.” Id. at 1377. The court
held that the district’s conduct in this regard did not amount to deliberate indifference, as “a
funding recipient cannot be held liable simply because it did not conduct an appropriate
investigation (even if such conduct could expose it to potential administrative action by the
DOE).” Id. at 1378-79.
As in Bibb, Plaintiff’s theory of liability is that the School District violated Title IX through
its conduct following her sexual assault. Even if this Court believes that an appropriate school
official had actual knowledge of a sexual assault or sexual harassment against Plaintiff as of
November 7, 2017, the allegations of the Complaint make clear that their responses were still not
clearly unreasonable. Plaintiff concedes that school administration conducted an investigation

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Jane Doe, a minor, v. The School Board of Miami-Dade County, Florida, et. al.
Case No. 1:19-cv-20204-UU - Defendants’ Motion to Dismiss Complaint

that included interviewing her and the alleged perpetrators. She concedes that they contacted her
mother, who came to the school and did not express alarm or dissatisfaction. Even though
Plaintiff was reassigned to an alternative school location for five (5) days (which she elected not
to attend), it was a short amount of time and she was not penalized for failing to attend. Plaintiff
concedes that she was referred to the school counselor. She concedes that school officials
intended to keep the male students away from her. She concedes that school police officers
followed up at her home to advise her to seek medical treatment for possible exposure to a
sexually-transmitted disease. Plaintiff does not allege that any appropriate school official knew
that (unspecified) hospital employees had the opinion that she was sexually assaulted. She does
not allege that her request for an internal affairs investigation into the school police officer was
disregarded, ignored, or that it did not proceed or conclude. Plaintiff concedes that the incidents
were investigated by the Miami-Dade State Attorney’s Office, but does not allege that the male
students were arrested or charged. Plaintiff avers that she was given a transfer out of Carol City
High School to another public high school in Defendant’s school district, after she changed her
mind about enrolling in home school. Finally, Plaintiff does not allege that she made a formal
complaint of sexual harassment or sexual assault to the MDCPS Civil Rights Compliance Officer
or any other formal complaint about sexual harassment or sexual assault that was ignored prior to
the initiation of this lawsuit. For these reasons it is clear that Plaintiff has not alleged facts to
support the theory that The School Board was deliberately indifferent to known acts of
harassment.
c. Plaintiff Has Not Sufficiently Alleged That Action Or Inaction By The School
Board Effectively Barred Her From Educational Opportunity Or Benefit
To state a claim against the School Board, the behavior the male students at issue must also
be “severe enough to have a ‘systemic’ effect of denying the victim equal access to an
educational program or activity.” Hawkins v. Sarasota County Sch. Bd., 322 F.3d 1279, 1289
(11th Cir. 2003). “We take this to mean that gender discrimination must be more widespread
than a single instance of one-on-one peer harassment and that the effects of the harassment touch
the whole or entirety of an educational program or activity.” Id. In Hawkins, three female
students alleged that they had been “quite persistent” in alerting their teacher to their male peer’s
“disgusting” and explicit overt sexual behavior toward them that was “persistent, continuing to
occur on a frequent basis for several months,” and that the school principal was aware of the
ongoing harassment. Id. at 1282-1283. The behavior included sexually explicit and vulgar

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Jane Doe, a minor, v. The School Board of Miami-Dade County, Florida, et. al.
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language and acts of objectively offensive touching. Although neither the perpetrator nor the
victims fully understood its ramifications, the harassment was unwelcome and intimidating. Id.
at 1288. The girls “faked being sick in order not to go to school,” and “cried more frequently,
appeared anxious, and were reluctant to go to school.” Id. at 1281. Nevertheless the Court held
that the harassment did not systematically deprive the victims of access to the educational
opportunities of the school. Id., 322 F.3d at 1289.
In the case at bar, Plaintiff concedes that Defendants granted her a transfer to another public
high school, away from her male offenders, during the same 2017-2018 school year in which the
incidents occurred. Similarly, in Bibb, the female student received home-based instruction after
the sexual assault, and later, when her parent was ready to return her to school, the district paid
for a private school. The district court in Bibb distinguished these facts from other Eleventh
Circuit cases where the female students remained at viable risk to further discrimination or
harassment as a result of the actions or inactions by school officials. “This is a far cry from the
situations in both Williams and Hill where there was a risk that if the students continued to
attend their former schools they would have been subjected to further sexual harassment.” Bibb,
126 F. Supp. 3d at 1382 (distinguishing Williams, 477 F.3d 1282 and Hill, 797 F.3d 948, 970).
Here, Plaintiff likewise fails to allege that she was systemically barred from returning to
Defendants’ school district or at risk of being denied an education because of Defendants’ action
or inaction. Plaintiff alleges only a harmful effect on her “reputation and standing in the
community” at large, (Compl. ¶¶ 4, 115), not specifically an inability to access her education.
Finally, Plaintiff does not allege that any action(s) of Defendants caused her to undergo
harassment or made her vulnerable to it. While Plaintiff makes vague allegations about her
grades “disqualifying her from taking certain advanced courses and from consideration for a
magnet program at a new school,” (Compl. ¶ 115), she does not allege that she was otherwise
qualified for or applied to such programs. Plaintiff has not sufficiently alleged that the
discrimination was so severe, pervasive, and objectively offensive that it effectively barred her
access to an educational opportunity or benefit. For all of the aforementioned reasons, Counts I
and II should be dismissed with prejudice.
III. PLAINTIFF HAS NOT STATED A VALID SECTION 1983 CLAIM AGAINST
THE SCHOOL BOARD
Plaintiff asserts a violation of 42 U.S.C. § 1983 against the School Board based upon a duty
to train its employees on its policies for reporting and addressing sexual harassment of students

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like Plaintiff. (Compl. ¶ 120). The School Board may not be held liable for constitutional
deprivations on the theory of respondeat superior. See Hill, 797 at 977 (citing Denno v. Sch.
Bd. of Volusia Cty., Fla., 218 F.3d 1267, 1276 (11th Cir.2000)). Instead, “municipal liability is
limited to action for which the municipality is actually responsible.” Id. (citing Pembaur v. City
of Cincinnati, 475 U.S. 469, 479–80, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986)). A
municipality therefore may be held liable “only if such constitutional torts result from an official
government policy, the actions of an official fairly deemed to represent government policy, or a
custom or practice so pervasive and well-settled that it assumes the force of law.” Id. (internal
citation omitted). In Hill, the Plaintiff alleged that the School Board should be subjected to
municipal liability for a “catch in the act” official policy coupled with allegedly inadequate
training policies that led school employees to formulate a rape-bait sting operation that led to a
female student’s sexual assault. Hill, 797 F.3d at 977. The Eleventh Circuit held that, “even
assuming, without deciding, that these policies are attributable to the Board,” the district court
did not err in granting summary judgment because Plaintiff did not establish a “causal link
between the municipal action and the deprivation of federal rights.” Id. (internal citations
omitted). The evidence must show the deprivation of the constitutional right is a “plainly
obvious consequence” of the municipal action. Id.
Here, as in Hill, the School Board could not have anticipated the sexual misconduct
perpetrated against Plaintiff by three teen-aged students on three separate occasions, outside of
the presence of adults, with no prior notice of similar conduct. Therefore, their behavior was not
a “plainly obvious consequence” of the School Board’s failure to train its employees on how to
respond to and address reports of sexual harassment. Plaintiff does not allege that the School
Board failed to promulgate a policy against student-on-student discrimination and harassment, or
a policy on student discipline, nor does she allege how the School Board’s lack of training led to
her being sexually assaulted or denied the benefits of Defendant’s educational programs.
Plaintiff makes only generalized allegations about her belief that the School Board lacks
adequate training materials and/or programs for employees on recognizing, preventing, and
addressing sexual harassment promptly and equitably. (Compl. ¶ 123(a)). Furthermore, Plaintiff
does not allege how this alleged lack of training has caused a systemic deprivation of her federal

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rights.2 The remainder of Plaintiff’s Section 1983 allegations is based on respondeat superior,
(Compl. ¶¶ 123(b)-(k)), a theory which is clearly barred. For these reasons, Count III should be
dismissed with prejudice.
IV. PLAINTIFF’S STATE LAW NEGLIGENCE CLAIMS SHOULD BE
DISMISSED PURSUANT TO 28 U.S.C. § 1367(C)
This Court has the discretion to decline to exercise supplemental jurisdiction over non-
diverse state law claims, where the court has dismissed all claims over which it had original
jurisdiction, pursuant to 28 U.S.C. § 1367(c). Although a district court may choose not to
dismiss such a case, "state courts, not federal courts, should be the final arbiters of state law."
Ingram v. School Bd. of Miami–Dade County, 167 F. App'x 107, 108 (11th Cir. 2006); see also
Hicks v. Moore, 422 F.3d 1246, 1255 n. 8 (11th Cir. 2005) (citing United Mine Workers of Am.
v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966) ("Certainly, if the federal
claims are dismissed before trial, . . . the state claims should be dismissed as well.")); Raney v.
Allstate Ins. Co., 370 F.3d 1086, 1088-89 (11th Cir. 2004). Unless the deficiencies in Plaintiff's
federal claims are remedied, the court should decline to exercise supplemental jurisdiction over
Plaintiff's state-law claims. See Estate of Amergi ex rel. Amergi v. Palestinian Auth., 611 F.3d
1350, 1366-67 (11th Cir. 2010) (noting that a district court has "considerable discretion" in
exercising its supplemental jurisdiction).
a. Plaintiff Has Not Stated A Valid Claim Against Defendants For Negligence/Failure
To Investigate (Count IV)
Plaintiff alleges negligence for a breach of a duty of care owed to her by Defendants “in the
manner that they investigated” the reported incidents of October 24, 2017, October 27, 2017, and
November 6, 2017. (Compl. ¶ 134). Plaintiff concedes that an investigation into the incidents
was conducted by school administration and a school police officer. However, she takes issue
with the quality of the investigation. (Id. at (a.)-(p.)). The Florida Third District Court of
Appeals has held that where there is no further sexual abuse after a report of abuse is made, a
negligence claim based on the adequacy of the investigation and response to the report of sexual
abuse cannot be upheld. See State, Dept. of Health and Rehab. Services v. L.N. By and Through

2
Plaintiff attempts to demonstrate facts to support a custom by the School Board by pointing to
one other student, “X.X.,” who she claims reported “to a high-ranking District employee” that he
was subjected to ongoing bullying constituting sexual harassment. (Compl. P. 26, ¶ (d)). But
Plaintiff does not allege that the facts of his case were similar to hers in any way or that the same
school officials in that case had actual notice of the same type of behavior alleged in this case.

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Negron, 624 So. 2d 280, 281 (Fla. 3d Dist. App. 1993). In this case, Plaintiff does not allege that
she was subjected to further sexual assault or harassment after her friend reported the initial three
incidents to school officials and the investigation was conducted. Furthermore, the alleged harm
suffered by Plaintiff as a result of Defendants’ alleged failure to investigate is vague and
conclusory. (Compl. ¶ 135). See, e.g., International Security Mgmt. Grp., Inc. v. Rolland, 2018
WL 6818442, *11 (Fla. 3d DCA 2018) (ordering directed verdict where Plaintiff did not
demonstrate how the defendants’ purported failure to properly investigate contributed in any way
to his asserted injury). Plaintiff has failed to state a claim for negligence based upon the
“manner” of investigation by school officials. Accordingly, Count IV against Defendants should
be dismissed with prejudice.
b. Plaintiff Has Not Stated A Valid Claim Against Defendants For Negligence/Failure
To Train (Count V)
Plaintiff alleges negligence for a breach of the duty of care to properly train employees owed
to her by Defendants. Negligent training is a variant of negligent
supervision. “Negligent supervision occurs when during the course of employment, the
employer becomes aware or should have become aware of problems with an employee that
indicated his unfitness, and the employer fails to take further actions such as investigation,
discharge, or reassignment.” Dep’t of Envtl. Protection v. Hardy, 907 So. 2d 655, 660 (Fla. 5th
DCA 2005) (citing Garcia v. Duffy, 492 So. 2d 435 (Fla. 2d DCA 1986)). Negligent training
occurs when an employer is negligent in the implementation or operation of a training
program. Behrman v. Allstate Ins. Co., 388 F. Supp. 2d 1346 (S.D. Fla. 2005), aff'd, 178 Fed.
Appx. 862 (11th Cir. 2006). In the instant case, Count V, which alleges negligence in failure to
train, should be dismissed for two reasons. First, the School Board is a governmental entity
which enjoys sovereign immunity under Florida Statute §768.28, and as such, is immune from
suit regarding training of police officers or school resource officers. In Jackson v. Montesino,
summary judgment was granted in favor of a municipality because training of police officers
involves the exercise of discretion at the highest level and an area in which courts must not
intervene. 2009 WL 1515511 (S.D. Fla. 2009); Swofford v. Eslinger, 686 F. Supp. 2d 1277
(M.D. Fla. 2009) (applying Florida law). As the Court stated in Lewis, “a City's decision
regarding how to train its officers and what subject matter to include in the training is clearly an
exercise of government discretion regarding fundamental questions of policy and planning.” 260
F.3d 1260 (11th Cir. 2001). Second, Plaintiff fails to allege that Defendants were ever aware of

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a specific lack of training or related problems and failed to take further action. Thus she fails to
meet the basic requirements to state a claim for negligent supervision/training and dismissal of
Count V is appropriate.
c. Plaintiff Has Not Stated A Valid Claim Against Defendants For Negligence Per Se
(Count VI)
Plaintiff alleges negligence per se against Defendants for the failure of other school
employees to immediately contact the Florida Department of Children and Families (“DCF”)
pursuant to Florida Statutes, § 39.201(1)(c). (Compl. ¶¶ 143-147). A statute will not be deemed
to have created a private cause of action, absent evidence in its language creating such an action.
Murthy v. N. Sinha Corp., 644 So.2d 983, 985 (Fla. 1994). Where the statute does not expressly
provide for a private cause of action, courts must look to legislative intent. Id. The Supreme
Court of Florida has stated that “legislative intent, rather than the duty to benefit a class of
individuals, should be the primary factor considered by the court in determining whether a cause
of action exists when a statute does not expressly provide for one.” Id.; See Freehauf v. School
Bd. of Seminole Cnty., 623 So.2d 761, 763 (Fla. 5th DCA 1993); See also Thibault v. White,
2017 WL 1902173 (S.D. Fla. 2017). A statute that merely makes provisions to secure the safety
or welfare of the public as an entity, will not be construed to establish civil liability. Murthy at
986. “A violation of [§39.201] does not expressly create a civil cause of action.” Hatfield v. Sch.
Dist. of Sarasota County, Fla., 2011 WL 13302419, at *3 (M.D. Fla. June 29, 2011)
(citing Welker v. So. Baptist Hosp. of Fla., Inc., 864 So. 2d 1178, 1182 (Fla. Dist. Ct. App. 2004
, quashed on other grounds, 908 So.2d 317 (Fla. 2005)). “Nor does a violation of this statute
create an implied cause of action for damages.” Id. “Consequently, [Plaintiff] cannot assert a
claim that the potential third-party defendants had a legal duty to report the suspected child abuse
suffered by [Jane Doe] or that they breached a duty they owed to [Jane Doe] under Fla. Stat. §
39.201.” Id. Plaintiff has failed to allege which provision of Fla. Stat. Sec. 39.201(1)(c)
provides for a civil action and the cited statute provides no such relief. Dismissal of Count VI is
appropriate.
d. Plaintiff Has Not Stated A Valid Claim Against Defendants For Intentional
Infliction of Emotional Distress (Count VII)
Plaintiff alleges claims of intentional infliction of emotional distress (“IIED”) against
Defendants on the basis of actions by other school officials. (Compl. ¶¶ 148-153). Florida’s
Sovereign Immunity Statute, §768.28(9)(a), Florida Statutes, prohibits the assertion of claims

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involving “wanton and willful conduct” against the state or any of its subdivisions. Section
768.28(9)(a) specifically states in relevant part that, “[t]he state or its subdivisions shall not be
liable in tort for the acts or omissions of an officer, employee, or agent…committed with
malicious purpose or in a manner exhibiting wanton and willful disregard for human rights,
safety or property.” §768.28(9)(a); see also Willis v. Dade County Sch. Bd., 411 So. 2d 245, 246
(Fla. 3d DCA 1982) (affirming dismissal of a complaint where the complaint alleged that a
teacher maliciously assaulted and battered the plaintiff by sexually assaulting the student).
A school board is a public entity entitled to the protections of sovereign immunity. See
Doe v. Sinrod, 90 So.3d 852, 854 (Fla. 4th DCA 2012). As it relates to claims for intentional
infliction of emotional distress, the requirement of “intent or reckless conduct” is equivalent to
“willful and wanton conduct” which is precluded by the sovereign immunity statute. Williams v.
City of Minneola, 619 So.2d 983 (Fla. 5th DCA 1983) (holding that the sovereign immunity
statute barred the assertion of the claim against a city); Samedi v. Miami-Dade County, 134 F.
Supp. 2d 1320 (S.D. Fla. 2001)(holding that a claim of intentional infliction of emotional distress
against a county was barred by the sovereign immunity statute). Thus, Plaintiff’s claim cannot be
asserted against the School Board which is a sovereign entity. See e.g. Schutt v. Lewis, 2013
WL 3323667 (M.D.Fla.)(holding that plaintiff’s intentional inflectional of emotional distress
claim against a city and county were barred by sovereign immunity); Smith v. City of Oak Hill,
2011 WL 4597347 (M.D.Fla.)(holding that sovereign immunity prevented plaintiff from
asserting an intentional infliction of emotional distress claim against a city); Zabriske v. City of
Kissimmee, 2010 WL 3927658 (M.D.Fla.) (sovereign immunity barred an intentional infliction
of emotional distress claim against a city).
By definition, a claim of intentional infliction of emotional distress is committed in bad faith
and falls outside the scope of official school district duties. See Williams v. City of Minneola,
619 So. 2d at 986. It is clear that neither the School Board nor Superintendent Carvalho could be
held liable for acts committed by employees outside of the course and scope of their employment
or committed in bad faith or with a malicious purpose or in a manner exhibiting wanton and
willful disregard for human rights, safety or property.3 Importantly, Plaintiff’s Complaint is
devoid of any factual allegations regarding any intentional act by any MDCPS employee, the

3
Individually-named Defendants would also be immune for liability for tort claims if Plaintiff’s
allegations of malice are unsupported by the evidence. See §768.28(a), Fla. Stat. (2014).

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School Board, or by Superintendent Carvalho individually. Instead, Plaintiff merely alleges “As
detailed above (in her preceding 149 paragraphs) Defendants through the actions of school
officials and other school district employees intentionally and recklessly retaliated….” (Compl.
¶150). The plaintiff’s allegations boil down to clams of negligent acts and are legally
insufficient to establish a claim for intentional infliction of emotional distress.
Assuming arguendo, that Plaintiffs IIED claim was not barred by the operation of § 768.28,
Fla. Stat., and that all of the conduct Plaintiff complains of is taken as true, that conduct simply
does not rise to the level of extreme conduct necessary to support a claim for Intentional
Infliction of Emotional Distress. Under Florida law, to prove a claim for intentional infliction of
emotional distress, a plaintiff must show “(1) deliberate or reckless infliction of mental suffering;
(2) outrageous conduct; (3) the conduct caused the emotional distress; and (4) the distress was
severe.” Thomas v. Hosp. Bd. of Dir. of Lee Cnty., 41 So. 3d 246, 256 (Fla. 2d DCA 2010)
(citing Liberty Mut. Ins. Co. v. Steadman, 968 So. 2d 592, 594 (Fla. 2d DCA 2007)). In addition,
a defendant’s actions must be “so outrageous in character, and so extreme in degree as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in
a civilized community.” Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277, 278 (Fla. 1988). In
applying the standard, the subjective response of the person that is the target of the actor’s
conduct does not control the question of whether the tort of intentional infliction of emotional
distress occurred. See Metropolitan, 467 So.2d at 278. Rather, the court must evaluate the
conduct as objectively as possible to determine whether it is “atrocious, and utterly intolerable in
a civilized community.” Id. Whether alleged conduct is outrageous enough to support a claim of
intentional infliction of emotional distress is a matter of law, not a question of fact. Byrd v. BT
Foods, Inc., 948 So.2d 921, 928 (Fla. 4th DCA 2007) (affirming summary judgment dismissal of
intentional infliction of emotional distress where an HIV-infected employee was teased by co-
workers). Here, Plaintiff fails to either allege or describe conduct that could be considered
outrageous beyond all bounds of decency and is devoid of a single intentional act by
Superintendent Carvalho individually. For these reasons, Count VII against Defendants should
be dismissed with prejudice.
V. SUPERINTENDENT CARVALHO IS ENTITLED TO QUALIFIED
IMMUNITY (ALL COUNTS AND SPECIFICALLY COUNTS IV-VII)
“Qualified immunity protects government officials performing discretionary functions from
suits in their individual capacities, unless their conduct violates clearly established statutory or

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constitutional rights of which a reasonable person would have known.” Sampson v. City of
Brunswick, 549 Fed. Appx. 858, 859 (11th Cir. 2013). Plaintiff must show that (1) “the facts
viewed in the light most favorable to the plaintiff establish a constitutional violation by
[Carvalho],” and (2) “that it was clearly established at the time of the incident that the actions of
[Carvalho] were unconstitutional.” Sampson, 549 Fed. Appx. at 860. To obtain qualified
immunity, the defendant/public official must first prove she was acting within the scope of her
discretionary authority when the allegedly wrongful acts occurred. Id. at *4. Then the burden
shifts to the plaintiff to show that the grant of the qualified immunity is inappropriate. Id.
Plaintiff alleges state law tort claims against Superintendent Carvalho in his official capacity.
Plaintiff’s claims against Superintendent Carvalho must fail where she does not allege any
action by him that was clearly unreasonable. See Davis v. Monroe County Bd. of Educ., 526
U.S. 629, 649 (1999); Morse v. Frederick, 551 U.S. 393, 393 (2007). This standard shields all
government officials except the plainly incompetent or those who knowingly violate the law.
Nicholson v. Georgia Dept. of Health Resources, 918 F.2d 145, 146 (11th Cir. 1990) (citing
Malley v.Briggs, 475 U.S. 335, 341 (1986); Stewart v. Baldwin County Bd. of Educ., 908 F.2d
1499, 1503 (11th Cir. 1990)). “Where discriminatory intent is an element of a cause of action, it
is plaintiff’s burden to come forward with concrete evidence of such intent.” Cason Enterprises,
Inc. v. Metropolitan Dade County, 20 F.Supp.2d 1331, 1341 (S.D. Fla. 1998). “[O]nly in
exceptional cases will government actors have no shield against claims made against them in
their individual capacities.” Foy v. Holston, 94 F.3d 1528, 1532 (11th Cir. 1996); See also Gattis
v. Brice, 136 F.3d 724 (11th Cir. 1998). “Qualified immunity is too important a right of public
servants and too important a public policy to be nullified so easily.” Id at 1533. Plaintiff alleges
no facts whatsoever to demonstrate that Superintendent Carvalho acted unreasonably in any way.
Instead, Plaintiff alleges only state law tort claims against Superintendent Carvalho premised
on the alleged actions or inactions of other individuals. Plaintiff fails to allege facts sufficient to
support a claim that Superintendent Carvalho violated her federal constitutional rights by acting
clearly unreasonable to cause her harm. Instead, Plaintiff makes bare and conclusory allegations
that negligent actions of others should be imputed to Superintendent Carvalho and rise to the
level of a constitutional violation. See Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982)
(“[B]are allegations of malice should not suffice to subject government officials either to the
costs of trial or to the burdens of broad-reaching discovery.”). Moreover, Plaintiff does not

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allege that Superintendent Carvalho intentionally discriminated against her or that he is


responsible for any specific action or inaction causing her “emotional distress, psychological
trauma and academic harm.” Not only has Plaintiff not asserted a valid claim that she was
subjected to constitutional harm at the hands of school administration or school police, but she
certainly has not stated a valid claim against Superintendent Carvalho in his official or individual
capacity for same. Therefore, Plaintiff has not met her burden of alleging that the grant of
qualified immunity to Superintendent Carvalho is inappropriate and dismissal with prejudice as
to Counts IV-VII is appropriate
VI. PLAINTIFF’S CLAIMS FOR PUNITIVE DAMAGES MUST BE STRICKEN
Plaintiff seeks punitive damages at the end of her 153 Count Complaint. There is no basis
for punitive damages as to any Count of Plaintiff’s Complaint. It is well settled that punitive
damages are not recoverable against a governmental agency, such as the School Board, in a
claim brought pursuant to 42 U.S.C. §1983. The Supreme Court has held that governmental
agencies are immune from punitive damages for claims brought pursuant to 42 U.S.C. §1983.
City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981)(holding that punitive damages
were not recoverable against a municipality in a §1983 suit). Consequently, a plaintiff may
recover compensatory damages against a governmental agency under §1983, but punitive
damages are not available. Healy v. Town of Pembroke Park, 831 F.2d 989, 991 (11th Cir.
1987). Federal courts have acknowledged school boards as governmental agencies with respect
to federal claims. Cabrera-Rodriguez v. The School Bd. of Miami-Dade County, 2012 WL
4338848 (S.D.Fla. September 20, 2012)(holding that plaintiff could not maintain a punitive
damages claim against the defendant, school board, under the Americans with Disabilities Act);
School Bd. of Lee County v. MM, 2007 WL 983274, *6 (M.D.Fla. March 27, 2007)(a school
board “is a body corporate and governmental agency duly empowered by the Constitution and
statutes of the State of Florida to administer, manage and operate” the schools within a school
district). District courts in the 11th Circuit have consistently prohibited the assertion of punitive
damages claims against governmental agencies under §1983, applies to school boards. Kubany v.
The School Bd. of Pinellas County, 839 F.Supp. 1544, 1551 (M.D.Fla. 1993)(“On the issue of
damages, as defendant School Board points out, punitive damages are not available under §1983
from a government entity.”); Abrams-Jackson v. Avossa, 2017 WL 1153895, *5 (S.D.Fla. March
28, 2017)(striking plaintiff’s claim for punitive damages against a school board under §1983).

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Similarly, punitive damages are not recoverable in private actions brought to enforce Title
IX. In Mercer v. Duke University, 50 Fed.Appx. 643 (4th Cir. 2002), the Fourth Circuit reversed
a jury verdict for the plaintiff and held that punitive damages were not available in a private
cause of action under Title IX. In reaching its conclusion, the court acknowledged that it was
well settled that Title IX, is modeled after Title VI and interpreted in the same manner. Id. at
644. The court noted that in Barnes v. Gorman, 536 U.S. 181, 189-190 (2002), the Supreme
Court determined that punitive damages were not available for private actions brought under
Title VI. Thus, the court in Mercer, found that this determination compelled the conclusion that
punitive damages were not available in private actions brought to enforce Title IX. Mercer, 50
Fed.Appx. at 644.
Numerous courts have cited to Mercer in support of the dismissal of punitive damages claims
brought under Title IX. See e.g. Benacquista v. Spratt, 217 F.Supp. 3d 588, 606-607 (N.D.N.Y.
2016)(holding that punitive damages were not available against the board of a state school
district under Title IX); Minnis v. Bd. of Supervisors of Louisiana State University, 972 F.Supp.
2d 878, 889 (M.D.La. 2013)(holding that plaintiff’s motion to dismiss was granted, insofar as the
complaint sough punitive damages against the defendant, board of a state university under Title
IX); Hooper v. North Carolina, 379 F.Supp. 2d 804, 811 (M.D.N.C. 2005)(dismissing a punitive
damages claim under Title IX asserted against the defendant, a state university).
As to Plaintiff’s supplemental state law claims, Florida Statute § 768.72 provides “no claim
for punitive damages shall be permitted unless there is a reasonable showing by evidence in the
record or proffered by the claimant which would provide a reasonable basis for recovery of such
damages.” A defendant may be held liable for punitive damages only if the trier of fact, based on
clear and convincing evidence, finds that the defendant was personally guilty of intentional
misconduct or gross negligence.” Fla. Stat. § 768.72(2) Plaintiff “must plead specific acts
committed by a defendant” and not merely allege “conclusory allegations to recover punitive
damages.” Porter v. Ogden, Newell & Welch, 241 F.3d 1334, 1340 (11th Cir. 2001). Plaintiff
has not alleged any facts against Defendants which evince intentional and willful misconduct or
gross negligence and therefore any claim for punitive damages should be stricken entirely from
the Complaint.
WHEREFORE, Defendants respectfully request this honorable Court grant their Motion to
Dismiss with prejudice as appropriate.

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Local Rule 7.1(A)(3) Certificate of Good Faith Conference as to Motion to Strike


Prior to filing the instant Motion, Defendants through their undersigned counsel,
Schuyler A. Smith and Mary Lawson, conferred with Plaintiff’s counsel, who opposes the relief
sought.
Dated: February 8, 2019

Respectfully Submitted,

Walter J. Harvey HAMILTON, MILLER & BIRTHISEL


School Board Attorney Attorneys for Defendants
The School Board of Miami-Dade 150 SE 2nd Avenue, Suite 1200
County, Florida Miami, Florida 33131
1450 NE 2nd Avenue, Suite 430 Telephone: (305) 379-3686
Miami, Florida 33132 Facsimile: (305) 373-2294

/s/ Mary C. Lawson /s/ Schuyler A. Smith


MARY C. LAWSON, ESQ. SCHUYLER A. SMITH, ESQ.
Assistant School Board Attorney FBN: 70710
FBN: 584223 E-mail: ssmith@hamiltonmillerlaw.com
E-mail: mlawson@dadeschools.net Patricia Concepcion
Counsel for Defendants School Board and E-mail: pconcepcion@hamiltonmillerlaw.com
Superintendent Alberto Carvalho FBN: 109058
Counsel for Defendants School Board and
Superintendent Alberto Carvalho

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 8, 2019 the foregoing was electronically filed with
the Clerk of Court via CM/ECF system, which will send a notice of electronic filing to the counsel
of record on the service list below.
/s/ Schuyler A. Smith
Schuyler A. Smith, Esq.

SERVICE LIST

LEWIS F. MURPHY, ESQUIRE ALLISON L. HERTOG, ESQUIRE


STROOCK & STROOCK & LAVAN, LLP MAKING SCHOOL WORK, P.L.
200 S. Biscayne Blvd., Suite 3100 1550 Madruga Avenue, Suite 333
Miami, FL 33133 Miami, FL 33146
(305) 789-9300 (305) 663-9233
lmurphy@stroock.com Allison@makingschoolwork.com
jsammataro@stroock.com Attorney for Ms. Doe
crodriguez@stroock.com
Attorney for Ms. Doe

ALICE K. NELSON, ESQUIRE EMILY MARTIN


NELSON LAW GROUP NEENA CHAUDHRY
14043 Shady Shores Drive SHIWALI PATEL
Tampa, FL 33613 ELIZABETH TANG
(813) 254-5517 NATIONAL WOMEN’S LAW CENTER
alice@nelsonlg.com 11 Dupont Circle, Suite 800
Attorney for Ms. Doe Washington, D.C. 20036
(202) 588-5180
emartin@nwlc.org
nchaudhry@nwlc.org
spatel@nwlc.org
etang@nwlc.org
Attorney for Ms. Doe

22