United States District Court, S.D. West Virginia, Bluefield
MEMORANDUM OPINION AND ORDER
A. FABER SENIOR UNITED STATES DISTRICT JUDGE.
before the court is defendant Monroe County Board of
Education's (“Monroe County BOE” or
“BOE”) motion to dismiss. (ECF No. 11). For
reasons appearing to the court, that motion is
GRANTED in part and DENIED
to the complaint, the allegations of which are taken as true
for purposes of this motion, during the 2015-2016 school
year, K.S. was a kindergarten student at Peterstown
Elementary School in Monroe County, West Virginia.
See Complaint ¶ 7. During this timeframe, K.S.
rode a school bus that was operated by defendant Monroe
County Board of Education (“Monroe County BOE” or
“BOE”). See id. at ¶ 8. Richard
Riffe, an employee of Monroe County BOE, was one of the
drivers of K.S.'s bus. See id. Students of all
ages, from kindergarten through high school, rode K.S.'s
bus. See id. at ¶ 9. One student riding on the
bus with K.S. was B.B., a minor whose date of birth is
December 8, 2000. See id. at ¶ 10.
Lynda Dunlap is K.S.'s biological grandmother. See
id. at ¶ 2. The parental rights of K.S.'s
biological mother have been terminated and Robert and Lynda
Dunlap were appointed the guardians of K.S. See id.
at ¶ 3. K.S. has resided with the Dunlaps since he was a
few months old. See id. On or about January 12,
2016, Robert Dunlap met K.S. at the bus stop near their home
as he usually did at the end of the school day. See
id. at ¶ 14. After getting off the bus, K.S. asked
Mr. Dunlap to help him zip up and button his pants. See
id. Finding it “odd” that K.S.'s pants
were unzipped and unbuttoned, Mr. Dunlap questioned K.S.
about why his pants were unzipped and K.S. informed
“Mr. Dunlap that he and B.B. had been playing a new
`doctor' game.” Id.
next day, January 13, 2015, the Dunlaps reported the incident
to Lisa Mustain, the principal at James Monroe High School.
See id. at 15. As a result of a meeting between the
Dunlaps, Mustain, and Monroe County Deputy Sheriff M.J.
Heller, an appointment was scheduled for K.S. to be
interviewed by a child abuse expert at the Child and Youth
Advocacy Center (“CYAC”). See id. at 16.
During a forensic interview at the CYAC on January 14, 2016,
“K.S. disclosed that B.B. had sexually assaulted him on
many occasions by performing oral sex on him and by fondling
or groping him. These sexual assaults occurred on the
bus.” Id. at 17. Surveillance videos from the
bus corroborated K.S.'s account of the abuse. See
id. at 20-21.
November 30, 2016, the Dunlaps filed the instant complaint on
their own behalf and as the guardians and next friends of
K.S. Named as a defendant is Monroe County BOE. Count I is a
claim for violation of Title IX and Count II is a claim for
vicarious liability. Counts III-V are claims for negligent
training, negligent supervision, and negligent retention.
has moved to dismiss the complaint pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure. Specifically, the
BOE argues that the Title IX claim on K.S.'s behalf fails
because it fails to plead facts sufficient to establish that:
1) K.S. was subjected to harassment based upon his sex; 2)
the BOE was deliberately indifferent in its response to the
sexual assault of K.S.; and 3) the BOE had actual knowledge
of the sexual assault of K.S. by B.B. As to the Title IX
claim brought by the Dunlaps on their own behalf, the BOE
asserts that it must be dismissed because the Dunlaps lack
standing to bring it. Finally, defendant argues that the
remaining claims brought by the Dunlaps on their own behalf
must be dismissed for failure to state a claim upon which
relief can be granted.
Standard of Review
motion to dismiss for failure to state a claim for relief
should not be granted unless it appears to a certainty that
the plaintiff would be entitled to no relief under any state
of facts which could be proved in support of his claim."
Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d
324, 325 (4th Cir. 1989) (citation omitted) (quoting
Conley v. Gibson, 355 U.S. 41, 48 (1957), and
Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.
1969)). "In considering a motion to dismiss, the court
should accept as true all well-pleaded allegations and should
view the complaint in a light most favorable to the
plaintiff." Mylan Laboratories, Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also
Ibarra v. United States, 120 F.3d 474, 474 (4th Cir.
evaluating the sufficiency of a pleading, the cases of
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009), provide
guidance. When reviewing a motion to dismiss, under Federal
Rule of Civil Procedure 12(b)(6), for failure to state a
claim upon which relief may be granted, a court must
determine whether the factual allegations contained in the
complaint “give the defendant fair notice of what the .
. . claim is and the grounds upon which it rests, ”
and, when accepted as true, “raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957); 5 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1216 (3d ed.
2004)). “[O]nce a claim has been stated adequately, it
may be supported by showing any set of facts consistent with
the allegations in the complaint.” Twombly,
127 S.Ct. at 1969. As the Fourth Circuit has explained,
“to withstand a motion to dismiss, a complaint must
allege ‘enough facts to state a claim to relief that is
plausible on its face.'” Painter's Mill
Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013)
(quoting Twombly, 550 U.S. at 570).
to Iqbal and the interpretation given it by our
[L]egal conclusions, elements of a cause of action, and bare
assertions devoid of further factual enhancement fail to
constitute well-pled facts for Rule 12(b)(6) purposes.
See Iqbal, 129 S.Ct. at 1949. We also decline to
consider “unwarranted inferences, unreasonable
conclusions, or arguments.” Wahi v. Charleston Area
Med. Ctr., Inc., 562 F.3d 599, 615 n. 26 (4th Cir.
2009); see also Iqbal, 129 S.Ct. at 1951-52.
Ultimately, a complaint must contain “sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Iqbal, 129 S.Ct. at 1949 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007)). Facial plausibility is established once
the factual content of a complaint “allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. In other
words, the complaint's factual allegations must produce
an inference of liability strong enough to nudge the