HCDE and Coulter Full Response

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA
M.S. (a minor, by his parent and next )

Friend Sharonda Covington) and )
Sharonda Covington and Derek Stepp, )
) CASE NO. 1:16-CV-00501-JRG-SKL
Plaintiffs, individually and on )
behalf of all others similarly ) JURY DEMAND
situated, )
)
v. )
)
HAMILTON COUNTY DEPARTMENT )
OF EDUCATION; DURHAM )
SCHOOL SERVICES, L.P., individually )
and BENJAMIN COULTER, individually, )
)
Defendants. )
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO STATE

A CLAIM UNDER THE FEDERAL CONSTITUTION OR FEDERAL STATUTE
PURSUANT TO RULE 12(b)(6) OF THE FEDERAL RULES OF CIVIL PROCEUDRE
Come defendants Hamilton County Department of Education (HCDE) and Benjamin
Coulter (hereinafter HCDE defendants) and, for the reasons explained below, respectfully
move this court pursuant to Federal Rule of Civil Procedure 12(b)(6) and 28 United States Code
section 1331 to dismiss this cause of action for failure to state a claim cognizable under the
federal constitution or a federal statute. In addition, insofar as the court reviews plaintiffs state
tort claims, the HCDE Defendants also request that Count V be dismissed pursuant to Tennessee
Code Annotated sections 29-20-201(a) and 29-20-205(2) of Tennessees Government Tort
Liability Act (GTLA) and 28 United States Code section 1367(c)(3). 1
1
On February 6, 2017, HCDE Defendants filed a Motion for Leave to Exceed Page Limit Pursuant to
Local Rule 7.1(b) [16], in which they asked leave to exceed the twenty-five page limit set forth in Local
Rule 7.1(b) (by up to ten additional pages, for a total of thirty-five) given the complexity of the claims
alleged against them. See id. HCDE Defendants appreciate that the Court has not yet ruled on that
Case 1:16-cv-00501-JRG-SKL Document 25 Filed 02/10/17 Page 1 of 33 PageID #: 156

Nature of the Complaint
This cause of action arises out of the tragic events of November 21, 2016, when a school
bus carrying thirty-seven children from Woodmore Elementary School and driven by Johnthony
Walker overturned. Six children ultimately died, and many more were injured. During all
relevant times, Durham provided transportation for the Woodmore students as an independent
contractor. Mr. Walker, the driver, was a Durham employee, and Mr. Coulter was, and continues
to be, HCDEs supervisor of transportation.
The complaint consists of five counts. Count I alleges a claim under 42 United States
Code section 1983 against all defendants for breach of duty to protect against a state-created
danger, i.e. Mr. Walkers driving, resulting in violations to M.S.s constitutional right to bodily
integrity. Count II also alleges a claim under section 1983 against all defendants for violations
of bodily integrity resulting from injuries caused by Mr. Walkers driving. Count III alleges a
claim under 42 United States Code section 1985 against all defendants for a conspiracy to
deprive M.S. of his constitutional rights for failing to prevent the bus accident. Count IV alleges
a claim against Durham only for negligence and gross negligence pursuant to state tort law.
Count V alleges assault and battery pursuant to state tort law as to all defendants.
As the Supreme Court remarked in a similar case, The facts of this case are undeniably
tragic. DeShaney v. Winnebago County Dept of Soc. Servs., 489 U.S. 189, 191 (1989). Yet, as
in DeShaney, neither Mr. Coulter nor HCDE violated any of the students constitutional rights,
and neither is responsible for the alleged acts of Mr. Walker, a third-party Durham employee.
As explained below, plaintiffs federal causes of action must fail because plaintiffs have failed to
plausibly allege that Mr. Coulter or any other HCDE employee violated M.S.s constitutional
motion and respectfully request that the Court grant that motion and excuse their filing of this thirty-four
page memorandum without such a ruling.

rights, and as a consequence, the HCDE Defendants are absolved of liability. Even assuming for
the sake of argument that a HCDE employee violated one of his constitutional rights, plaintiffs
will nevertheless be unable to demonstrate that the alleged violation constituted a HCDE
regulation, policy, or custom again absolving HCDE of liability. Personal liability for Mr.
Coulter or any other HCDE employee fails under the doctrine of qualified immunity.
Standard for Rule 12(b)(6) Motions to Dismiss
A court ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) conducts a two-step analysis. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); see also
Oates v. Target Corp., No. 11CV14837, 2012 WL 4513723, at *2 (E.D. Mich. Oct. 2, 2012).
First, the court distinguishes the complaints well-pleaded factual allegations from allegations
that are mere legal conclusions. See Iqbal, 556 U.S. at 679; see also Oates, 2012 WL 4513723,
at *2. While legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations, and are not themselves entitled to an assumption of truth.
Iqbal, 556 U.S. at 679. Similarly, legal conclusions couched as factual allegations need not be
accepted as true. Id. at 678; see also id. (Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.). However, a 12(b)(6) motion
does not challenge a plaintiffs well-pleaded allegations of fact, and a court assumes their truth
after separating them from the complaints legal conclusions and factual allegations couched as
legal conclusions. See id.; see also Flanory v. Bonn, 604 F.3d 249, 252 (6th Cir. 2010).
Second, after identifying the complaints well-pleaded allegations of fact and assuming
their truth, a court must assess whether the complaint states a plausible claim for relief; only
[one] that states a plausible claim for relief survives a motion to dismiss. See Iqbal, 556 U.S. at
678-79; see also Oates, 2012 WL 4513723, at *2. 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. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)). The court asks not whether the plaintiff will ultimately
prevail, but whether the facts permit it to infer more than the mere possibility of misconduct.
Id. at 679. This plausibility standard is not akin to a probability requirement, but it asks for
more than a sheer possibility that a defendant has acted unlawfully. Id. at 678. Where a
complaint pleads facts that are merely consistent with a defendants liability, it stops short of the
line between possibility and plausibility of entitlement to relief. Id. (internal quotation marks
omitted). Determining whether a complaint states a plausible claim is context-specific [and]
requir[es] the reviewing court to draw on its experience and common sense. Id. at 679.
In addition, to survive a motion to dismiss, a plaintiff must plead all of the necessary
elements of a cause of action and facts in support thereof. See Gordon v. Am.s Collectibles
Network, Inc., No. 3:09-CV-206, 2010 WL 925785, at *4 (E.D. Tenn. Mar. 8, 2010) (dismissing
a claim pursuant to Rule 12(b)(6) where the plaintiff failed to plead all of the elements of a
statutory cause of action or facts sufficient to indicate their existence); Schmitz v. Allstate Ins.
Co., No. 2:08-CV-87, 2010 WL 3655892, at *8 (E.D. Tenn. Sept. 14, 2010) ([C]omplaints are
dismissed frequently for not alleging all of the elements of a claim and facts to support such
elements, thus failing to state a claim. (citing Fed. R. Civ. P. 12(b)(6)); see also Elsman v. Std.
Fed. Bank, 46 F. Appx 792, 799 (6th Cir. 2002) (To survive a motion to dismiss under Rule
12(b)(6), a complaint must contain either direct or inferential allegations respecting all the
material elements to sustain a recovery under some viable legal theory. (internal quotation
marks omitted)); Hill v. Bowles, No. 1:04-1151-T-AN, 2005 WL 3466005, at *7 (W.D. Tenn.
Dec. 16, 2005) ([A] litigant has an obligation to spell out its arguments squarely and distinctly,

or else forever hold its peace. . . . It is not this courts duty to put together a convincing . . . claim
for Plaintiffs . . . . [t]o do otherwise would be to depart from the courts role as an impartial
decision-maker and to become an advocate.).
A claim of conspiracy brought pursuant to 42 United States Code 1985 must be pleaded
with the same specificity as conspiracy claims under [section] 1983. Dallas v. Holmes, 137 F.
Appx 746, 752 (6th Cir. 2005) (internal quotation marks omitted); see Spadafore v. Gardner,
330 F.3d 849, 854 (6th Cir. 2003) (It is well-settled that conspiracy claims must be pled with
some degree of specificity and that vague and conclusory allegations unsupported by material
facts will not be sufficient to state such a claim under [section] 1983.). [B]road, conclusory
allegations without facts to support a conspiracy theory will not be sufficient to state a section
1985 conspiracy claim, and [f]ailure to allege membership in a protected class, and
discrimination based on such membership, requires dismissal of such a claim. Dallas, 137 F.
Appx at 752-53.
A Rule 12(b)(6) motion may be granted based on an affirmative defense where the
undisputed facts definitively ascertainable from the allegations of the complaint establish it
conclusively. See Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 613 (6th Cir. 2009). 2
2
Government officials are liable only for their own misconduct and, as a result, damage claims against
[them] arising from alleged violations of constitutional rights must allege, with particularity, facts that
demonstrate what each defendant did that violates the asserted constitutional right. Stiles v. Grainger
Cnty. Schs., No. 3:13-CV-7-PLR-HBG, 2015 WL 1294168, at *7 (E.D. Tenn. Mar. 23, 2015) (quoting
Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008)). A plaintiff must allege that a specific defendant
performed a specific act that suffices to state a federal civil rights claim. Id. (quoting Kesterson v.
Moritsugu, 149 F.3d 1183, at *4 (6th Cir. 2015) (unpublished table decision)). Courts appropriately
dismiss a complaint where it merely identifies defendants as holding a particular position without specific
allegations concerning acts performed by each individual defendant that resulted in a deprivation of [a]
plaintiffs constitutional rights. Id. (quoting Marcillis v. Twn. of Bedford, 693 F.3d 589, 596 (6th Cir.
2012)). Simply lumping all the defendants together in each claim and providing no factual basis to
distinguish their conduct fails to satisfy the minimum standardthat a complaint give each defendant fair
notice of what the plaintiffs claim is and the ground upon which it rests. Id. (quoting Marcillis, 693
F.3d at 605)). In order to state a [section 1983] action against a [state] official, a plaintiff must allege
that a specific defendant performed a specific act that suffices to state a claim. Long v. Tenn. Valley

Allegations Set Forth in the Complaint
Plaintiffs have filed a thirty-two page complaint with one hundred forty-seven (147)
separate paragraphs. The following is a summary of allegations believed relevant to this motion.
Durham School Services, L.P. (Durham) is a subsidiary of National Express, L.L.C., a
multi-national company advertised as the largest provider of home-to-school transportation in the
United States. (See Compl. 12.) During all relevant times, Durham provided transport for
Woodmore school children pursuant to a contract with HCDE. (See id. at 7, 12, 14 & Ex. A.)
Among other provisions, the contract provided that HCDE and Durham would work together to
establish bus routes, scheduling, and assignments. (See id. at 19.) The contract also required
Durham to equip buses with cameras, radios, and GPS technology which would enable staff to
monitor the path and speed of a bus. (Id. at 21-22.) HCDE was to be given access to the
[GPS] system. (Id. at 22.) Plaintiffs further allege, but without citation to the contract, that
both Durham and HCDE were responsible for monitoring the speed and path of buses. (Id.)
Plaintiffs also assert that the contract provided for cooperation and mutual agreement as to rules
and regulations incidental to Durhams transport of Hamilton County school children. (See id. at
23-24.)
The complaint discusses several rules applicable to school transportation. One such rule
provided that school principals were responsible for putting students on and removing students
from the bus each day while on their campus. (Compl. 31(d).) A rule labeled Routes
required drivers to follow the specific route assignment without any deviations. (Id. at 33.)
Auth., No. 3:09-CV-114, 2010 WL 1223917, at *6 (E.D. Tenn. Mar. 24, 2010). In the context of a Bivens
action (and by extension, a section 1983 action), defendants must be identified with particularity, and
a complaint containing only collective references to defendants does not adequately state a [section
1983] claim. Marcillis, 693 F.3d at 596 (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir.
2008)); Long, 2010 WL 1223917, at *4 n.8 (noting that section 1983 and Bivens actions serve legally
analogous purposes, and that section 1983 case law generally applies to Bivens actions).

A Safety rule required drivers to follow speed limits. (Id. at 34.) Another rule labeled
Student Injury required the bus driver to notify his supervisor of any student injuries. (Id. at
42.) The Second Jobs rule provided, in part, that it is dangerous for bus drivers to work a
complete shift and/or have less than six hours sleep prior to running a route. (Id. at 49.)
The complaint alleges that in early November 2016, all of the named defendants received
written complaints from HCDE employees, parents, and children that Durham employee and
school bus driver Johnthony Walker was recklessly endangering the safety of the young children
on his route at Woodmore Elementary School. (Compl. 35; see also id. at 36-37, 60.)
Woodmores principal is also alleged to have notified the named defendants on more than one
occasion about similar complaints. (See id. at 38.) Plaintiffs allege [n]either [Mr.] Coulter,
Durham nor [HCDE] took action to stop the dangerous behavior and continued to instruct the
students to board the school bus each day with the actual knowledge that they were being placed
in immediate danger. (Id. at 39; see also id. at 41, 45, 47, 57-58.) Plaintiffs allege that the
HCDE Defendants failed to monitor or discipline Mr. Walker pursuant to applicable rules,
including the Route rule. (See id. at 40.) Plaintiffs further allege that the HCDE Defendants
had actual knowledge of Mr. Walker violating the Student Injury rule and did nothing. (Id. at
44.)
Plaintiffs allege HCDE Defendants did nothing to enforce the Second Jobs rule when
they had actual knowledge of the rules violation by Mr. Walker. (Compl. 52.) They allege
that HCDE Defendants were aware of a statement by Mr. Walker that he did not care about the
students. (See id. at 50.) It is alleged that the Safety rule which required the driver to check for
sleeping children on the bus before exiting was relevant and that HCDE Defendants ignored its
violation by Mr. Walker. (See id. at 54.)

Plaintiffs allege that the HCDE Defendants subjected M.S. to [Mr.] Walkers repeated
and sadistic infliction of bodily harm, including the fear of death, to control the behavior of his
passengers. (Compl. 59-62; see also id. at 63-64 for descriptions of the effect of Mr.
Walkers actions, including a general description of injuries.) Plaintiffs allege on information
and belief that Mr. Walker had been placed on Bus 366 by Durham and HCDE as punishment
for unspecified reasons and without further factual allegations. (Id. at 65.) It is alleged that the
HCDE Defendants ignored Mr. Walkers request for an assistant to help with discipline and
that Mr. Coulter admonished Mr. Walker to stop referring so many students for discipline. (Id.
at 67.) The plaintiffs describe the events of the bus crash of November 21, 2016 in Paragraphs
70-84.
LAW AND ANALYSIS
Plaintiffs have brought three federal claims pursuant to section 1983 each of which
relies on M.S.s substantive due process right to bodily integrity as protected by the Fourteenth
Amendment. 3 It is important to note that section 1983 does not create substantive rights but
merely provides remedies for deprivations of rights established elsewhere. City of Oklahoma
City v. Tuttle, 471 U.S. 808, 816 (1985). 4 For successful prosecution, a section 1983 claim must
satisfy two elements: (1) the deprivation of a right secured by the Constitution or laws of the
United States (2) that was caused by a person acting under color of state law. See Collins v. City
of Harker Heights, Tex., 503 U.S. 115, 120 (1992); Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir.
2003); Doe v. Claiborne Cnty., Tenn., 103 F.3d 495, 505-06 (6th Cir. 1996); see also Powers v.
3
The Supreme Court has extended substantive due process through the Fourteenth Amendment to protect
against unjustified intrusions of personal security DeShaney, 489 U.S. at 195 (quoting Ingraham v.
Wright, 430 U.S. 651, 673 (1977)).
4
The protections of substantive due process have generally been limited to matters relating to marriage,
family, procreation, and the right to bodily integrity. Albright v. Oliver, 510 U.S. 266, 272 (1994); see
also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 847-849 (1992).

Hamilton Cnty. Pub. Defender Commn, 501 F.3d 592, 608 (6th Cir. 2007) (holding that a
plaintiff proceeding under section 1983 must show that a defendants constitutional violation was
both the cause in fact and proximate cause of his injury).
Not every claim that alleges a violation of bodily integrity states a claim under section
1983. The Supreme Court has admonished courts that the Due Process Clause of the Fourteenth
Amendment . . . does not transform every tort committed by a state actor into a constitutional
violation. DeShaney, 489 U.S. at 202. The central concern in identifying a valid section 1983
claim is the existence of a state actor (i.e. a person acting under color of state law) who
causes the violation of bodily integrity as opposed to private actors such as Mr. Walker and his
employer Durham. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978) (recognizing that
most rights secured by the Constitution are protected only against infringement by
governments) (citing Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974); Civil Rights
Cases, 109 U.S. 3, 17-18 (1883)).
As discussed above, plaintiffs acknowledge that Mr. Walker was an employee of Durham
not HCDE. The transportation contract referenced in the Complaint and submitted as Exhibit
A makes abundantly clear, not only that Mr. Walker was a Durham employee, but that matters of
selection, training, supervision, and discipline remain solely with Durham.
Durham is an independent CONTRACTOR, and not an Officer, Agent, or

Employee of the DISTRICT. Furthermore, CONTRACTORS officers, agents
and employees shall be the officers, agents and employees of the CONTRACTOR
and not of the DISTRICT.
....
Durham shall be solely responsible for hiring sufficient personnel to perform

CONTRACTOR duties under this Agreement . . . . Such personnel shall be
CONTRACTORS employees and, in no event, shall be the employees of the
DISTRICT. CONTRACTOR shall be solely responsible for providing such

personnel with appropriate supervision, training, and direction in the performance
of personnel job duties.
(Ex. A at pp. 2-3, nos. 9 & 14.)
As discussed below, government actors are generally not responsible for the alleged torts
of third parties such as Mr. Walker and his employer Durham. However, even when a state actor
does violate a plaintiffs constitutional rights, the state actors employer may not be liable. In a
break from common law, the Supreme Court has consistently held that traditional notions of
vicarious liability and respondeat superior do not apply, and thus governmental entities are only
responsible for their unconstitutional policies and customs and not simply for unconstitutional
conduct by their employees. See Monell v. N.Y. City Dept of Soc. Servs., 436 U.S. 658, 691
(1978). 5 In Monell, the Supreme Court further held:
Local governing bodies, therefore, can be sued directly under 1983 for
monetary, declaratory, or injunctive relief where, as here, the action that is alleged
to be unconstitutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that bodys officers.
Moreover, although the touchstone of the 1983 action against a government
body is an allegation that official policy is responsible for a deprivation of rights
protected by the Constitution, local governments, like every other 1983
person, by the very terms of the statute, may be sued for constitutional
deprivations visited pursuant to governmental custom even though such a
custom has not received formal approval through the bodys official
decisionmaking channels.
436 U.S. 658, 690-91; see also City of Canton v. Harris, 489 U.S. 378, 379 (1989); Bd. of the
Cnty. Commrs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997); Ctr. for Bio-Ethical Reform,
Inc. v. City of Springboro, 477 F.3d 807, 819 (6th Cir. 2007).
5
As the Court explained, the language of 1983, read against the background of the same legislative
history, compels the conclusion that Congress did not intend municipalities to be held liable unless action
pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we
conclude that a municipality cannot be held liable solely because it employs a tortfeasoror, in other
words, a municipality cannot be held liable under 1983 on a respondeat superior theory. Monell, 436,
U.S. at 691.
10

Assuming that the HCDE Defendants are state actors, i.e. persons acting under color
of state law, the HCDE Defendants argue below that plaintiffs have nevertheless failed to allege
a plausible claim that any HCDE employee or agent caused a violation of M.S.s right to bodily
integrity. Equally clear, plaintiffs have failed to identify a HCDE policy, regulation, or custom
(official or unofficial) that caused or was the moving force behind the alleged constitutional
violations. The necessary conclusion is that plaintiffs have erroneously recast their traditional
tort claims as constitutional claims and must be dismissed.
I. Count I should be dismissed against the HCDE Defendants for failure to state a claim.
A. The HCDE Defendants are not liable to plaintiffs under a special relationship
theory.
In Count I, plaintiffs allege that the HCDE Defendants violated their substantive due
process rights by knowingly, recklessly and callously expos[ing] the Plaintiffs to [Mr.
Walkers] sadistic punishment . . . . (Compl. 101; see also id. at 102, 111.) Thus, the
complaint makes clear that M.S.s injuries were not directly caused by HCDE or Mr. Coulter but
by Mr. Walker, a Durham employee while the students were travelling on his bus. 6 Yet, nothing
in the Due Process Clause requires governmental entities or their employees to protect the life,
liberty, and property of citizens against acts by private actors such as Mr. Walker. See
DeShaney, 489 U.S. at 197 (a States failure to protect an individual against private violence
simply does not constitute a violation of the Due Process Clause); Peete v. Metro. Govt, 486
F.3d 217, 223 (6th Cir. 2007) ([I]t is not a constitutional violation for a state actor to . . . fail to
6
As a private contractor, Durham, and its employees, are not state actors for purposes of section 1983.
See, e.g., Black v. Ind. Area Sch. Dist., 985 F.2d 707, 710-11 (3d Cir. 1993) (holding that a private
contractor providing state school bus program at state expense was not performing an exclusive state
function); Santiago v. Puerto Rico, 655 F.3d 61 (1st Cir. 2011). This issue is the subject of a separately
filed motion and memorandum on behalf of Durham. (See Durham Sch. Servs., L.P.s R. 12(b)(6) Mot.
to Dismiss [21]; Mem. in Supp. of Durham Sch. Servs., L.P.s R. 12(b)(6) Mot. to Dismiss [22].)
11

rescue those in need.). In delimiting the scope of substantive due process in DeShaney, the
Supreme Court found:
The Clause is phrased as a limitation on the States power to act, not as a

guarantee of certain minimal levels of safety and security. It forbids the State
itself to deprive individuals of life, liberty, or property without due process of
law, but its language cannot fairly be extended to impose an affirmative
obligation on the State to ensure that those interests do not come to harm through
other means. Nor does history support such an expansive reading of the
constitutional text. Like its counterpart in the Fifth Amendment, the Due Process
Clause of the Fourteenth Amendment was intended to prevent government from
abusing [its] power, or employing it as an instrument of oppression. . . .
Id. at 195-96 (internal quotation marks omitted). As the Court explained, [E]ven where
such aid may be necessary to secure life, liberty, or property interests of which the
government itself may not deprive the individual, nevertheless, there is no affirmative
right to governmental aid or a guarantee of personal security. DeShaney, 489 U.S. at 196.
However, there are two possible scenarios by which government actors and (with
additional findings) a governmental entity might be found liable for the constitutional
violations of third parties. The first is where a special relationship exists between the
defendant and the plaintiff. DeShaney, 489 U.S. at 198-201. Under this theory, the state
actor assumes affirmative responsibilities for the care of certain individuals that
otherwise would not exist. See id. However, this exception has typically been limited to
prisoners and involuntarily committed mental patients who, having been deprived of their
liberty, cannot protect themselves. See id. at 199-200. As explained by the DeShaney
Court:
The rationale for this principle is simple enough: when the State by the
affirmative exercise of its power so restrains an individuals liberty that it renders
him unable to care for himself, and at the same time fails to provide for his basic
human needse.g., food, clothing, shelter, medical care, and reasonable safety
it transgresses the substantive limits on state action set by the Eighth Amendment
and the Due Process Clause.
12

Id. at 200.
Without any allegation of supporting facts, plaintiffs allege that M.S. was in the
custody and exclusive control of the defendants though they never actually allege the
existence of a special relationship. (See, e.g., Compl. 99). Yet, plaintiffs own complaint
contradicts these bald assertions, as it alleges that Durham, an independent contractor, provided
transportation for Woodmore students (see id. at 12), and Mr. Walker was Durhams employee
(see id. at 12, 31). No HCDE employee rode on the bus or was in a position to exercise
custody or control over M.S. or any student riding on a Durham bus. Plaintiffs claim of custody
or exclusive control is therefore conclusory and without a factual basis.
Furthermore, the Sixth Circuit has rejected claims that a special relationship for Due
Process purposes exists between a school district and its students. Although, clearly, a school
system has an unmistakable duty to create and maintain a safe environment for its students as a
matter of common law, its in loco parentis status or a states compulsory attendance laws do not
sufficiently restrain students to raise a schools common law obligation to the rank of a
constitutional duty. Claiborne Cnty., Tenn., 103 F.3d at 510; see also Stiles ex rel. D.S. v.
Grainger Cnty., Tenn., 819 F.3d 834, 854 (6th Cir. 2016); Soper v. Hoben, 195 F.3d 845, 853
(6th Cir. 1999); Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 910-11 (6th Cir. 1995); Hill v.
Blount Cnty. Bd. of Educ. --- F.Supp.3d ----, 2016 WL 4444802, at *3 (E.D. Tenn. Aug. 23,
2016). Furthermore, the nature of the relationship does not change even when the school board
or employees have actual knowledge of a credible danger to the students. See, e.g., Stiles ex rel
D.S., 819 F.3d at 853-54; Mohat v. Mentor Exempted Village Sch. Dist. Bd. of Educ., No. 1:09
CV 6882011, WL 2174671, at *7 (N.D. Ohio June 1, 2011). Consequently, the Due Process
Clause does not impose an affirmative constitutional duty on school boards to assume the
13

responsibility of protecting students against the unconstitutional acts of third parties. Claiborne
Cnty., Tenn., 103 F.3d at 510.
The second possible scenario pertains to the state-created-danger theory specifically
invoked by these plaintiffs. That theory was first recognized by the Sixth Circuit in Kallstrom v.
City of Columbus, 136 F.3d 1055 (6th Cir. 1998), where the court found that while the state
generally does not shoulder an affirmative duty to protect its citizens from private acts of
violence, it may not cause or greatly increase the risk of harm to its citizens without due process
of law through its own affirmative acts. Id. at 1066. 7 (Of course by invoking the state-created
danger theory, plaintiffs acknowledge the independent contractor status of Durham and Mr.
Walker.) The elements of the state-created-danger theory will be discussed separately below.
B. The HCDE Defendants are not liable to the plaintiffs under a state-created-danger
theory.
The Sixth Circuit has identified the following requirements to establish a section 1983
claim based on the state-created-danger theory, which can result in liability where: (1) an
affirmative act by the governmental actor either created or increased the risk that the plaintiff
would be exposed to the injurious conduct of the private person; (2) the governmental actors act
especially endangered the plaintiff or a small class of which the plaintiff was a member; and (3)
the governmental actor had the requisite degree of culpability. Hunt v. Sycamore Cmty. Sch.
Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008) (citing McQueen, 433 F.3d at 464); see also
Kallstrom, 136 F.3d at 1066-67. For the reasons stated below, plaintiffs have failed to state a
plausible claim under the state-created-danger theory.
7
Though adopted by most if not all federal circuits considering the issue, the state-created-danger theory
has never been explicitly adopted by the Supreme Court. See, e.g., McQueen v. Beecher Cmty. Schs, 433
F.3d 460, 464 (6th Cir. 2006).
14

i. Plaintiffs have failed to allege an affirmative act by a government actor which
either created or increased the risk that M.S. would be exposed to Mr. Walkers
injurious conduct.
Importantly, a failure to act, as opposed to affirmative conduct, does not satisfy the first
requirement and thus fails to establish a state-created danger. Jones v. Reynolds, 438 F.3d 685,
703 (6th Cir. 2006). Because it may be difficult for a court to distinguish between action and
inaction, see id. at 692, the Sixth Circuit asks whether [the victim] was safer before the state
action than he was after it, Cartwright v. City of Marine City, 336 F.3d 487, 493 (6th Cir.
2003); see also Stiles, 819 F.3d at 854; Jasinski v. Tyler, 729 F.3d 531, 539 (6th Cir. 2013). If the
plaintiff cannot identify conduct by the state actor which either created or increased the risk of
harm to which plaintiff was exposed, then the conduct is said to fall[] on the inaction side of the
line. Koulta v. Merciez, 477 F.3d 442, 446 (6th Cir. 2007) (internal quotation marks omitted)
(collecting cases). 8
In the present case, neither Mr. Coulter nor any other HCDE employee took an
affirmative act, and certainly no affirmative act that made M.S. less safe. As discussed above,
the complaint alleges inaction on the part of HCDE employees including, but not necessarily
8
See Schroder v. City of Fort Thomas, 412 F.3d 724, 728-29 (6th Cir. 2005) (failing to respond to
parental complaints about the lack of enforcement of a residential speed limit in a specific neighborhood
was not an affirmative act); Jones v. Union Cnty., 296 F.3d 417, 431 (6th Cir. 2002) (failing to serve an ex
parte protection order on an abusive spouse was not an affirmative act); Sheets v. Mullins, 287 F.3d 581,
588-89 (6th Cir. 2002) (failing to pursue and investigate a domestic-disturbance call was not an
affirmative act); Weeks v. Portage Cnty. Exec. Offices, 235 F.3d 275, 279 (6th Cir. 2000) (failing to call
an ambulance for an obviously injured citizen was not an affirmative act); Sargi, 70 F.3d at 912-13
(failing to obtain immediate medical assistance for seizure victim and instead taking her home was not an
affirmative act); Bullard v. Inkster Hous. and Re-Dev. Commn, 126 F. Appx 718, 720 (6th Cir. 2005)
(failing to provide adequate security measures for apartment door to prevent break-ins was not an
affirmative act); Peach v. Smith, 438 F.3d 685, 690, 692-93 (failing to respond to a call informing police
that a woman battered by her husband was returning to spend time with him and that he had a gun was not
an affirmative act); cf. Claiborne Cnty., Tenn., 103 at 510 (pre-Kallstrom case stating that failing to
protect a student from sexual harassment and a rape by another student did not violate substantive due
process). See Jones, 438 F.3d at 691-92.
15

limited to, alleged failures to enforce rules relating to bus safety, speed, reporting of injuries, and
the following of designated routes. However, [f]ailing to punish students, failing to enforce the
law, failing to enforce school policy, and failing to refer assaults to [the authorities] are plainly
omissions rather than affirmative acts. Stiles, 819 F.3d at 855.
Plaintiffs further allege that the HCDE Defendants failed to monitor and discipline Mr.
Walker and ignored the risks he posed though they had notice of his dangerous behavior. Yet all
of these allegations fail to state a claim since ignoring a dangerous situation is usually not an
affirmative act and, furthermore, usually cannot increase a preexisting danger. Stiles, 819 F.3d
at 855 (citing McQueen, 433 F.3d at 465-66). In Jones, the Sixth Circuit dismissed a section
1983 action based on a plaintiffs failure to demonstrate an affirmative act on the part of
defendant police officers. See id. at 688, 691. In that case, the police officers had actual
knowledge of an illegal drag race and the opportunity to intervene but took no action. See id.
The court ruled a failure to act is not an affirmative act under the state-created danger theory.
Id. at 691. The court then recited numerous examples of failures to act as opposed to
affirmative acts. Id. at 691-92.
In an effort to demonstrate affirmative acts on part of the HCDE Defendants, plaintiffs
allege that they instructed M.S. and other children to board the bus thus implying, at least, an
affirmative act. First of all, the allegation is facially misleading in that the students were not
instructed or required to ride the bus to and from school, and of course many did not
choosing instead to walk or ride in private vehicles. Nor is the Department required to provide
transportation. See Tenn. Code Ann. 49-6-2101 (giving boards of education discretion to
provide school transportation facilities). Instead, a transportation rule provides that [s]chool
16

principals are responsible for the safe loading/unloading of buses while on their campus. (See
Compl. 31.)
The principals efforts to comply with this rule, while arguably constituting affirmative
acts, nevertheless did not make the plaintiff or other children less safe. 9 Both before and after
the principals loading/unloading, Mr. Walker, a Durham employee, remained the bus driver, and
the conditions (Mr. Walkers behavior and/or predilections) that existed before and after the
principals actions also remained the same. See McQueen, 433 F.3d. at 466 (holding that the risk
of danger was not increased because danger to a student left in classroom created by another
students possession of a gun existed irrespective of the teachers location). Indeed, [e]ven
affirmatively returning a victim to a preexisting situation of danger does not create or increase
the victims risk of harm. Stiles, 819 F.3d at 855 (citing Bukowski v. City of Akron, 326 F.3d
702, 709 (6th Cir. 2003) (holding that police officers act of returning a victim to the house
where they originally found her did not increase her danger of being raped a second time by the
occupant of that house).
Furthermore, bus-riding children travelled to school after first loading onto the bus from
their homes, all without the help of school principals or other HCDE employees. If anyone
helped the children in the morning loading, it was family and friends not an employee of
HCDE. Even if the principals had refused to help load the students onto the bus for their return
home, there is no reason to believe the students would not have loaded themselves. Finally, the
help the principals provided to the children in loading and unloading the bus did not make the
children less safe it made them more safe by helping to maintain order and prevent falls or
9
Further, insofar as plaintiffs imply that Mr. Coulter was personally involved in the loading and
unloading of students each day, the allegations in the complaint germane to such an allegation are not
pleaded with sufficient specificity. (See supra note 2; see also infra Part V.)
17

other injuries. Therefore, according to plaintiffs own complaint, the principals actions simply
did not affect Mr. Walkers behavior one way or the other.
Plaintiffs also allege that Mr. Coulter admonished Mr. Walker to refer fewer students for
discipline. Nevertheless, and even if true, this communication did not increase the students risk
of suffering from Mr. Walkers driving behavior because it does not pertain to Mr. Walkers
driving or complaints concerning same. Instead, the allegation simply highlights a disagreement
over the number of students being referred for discipline and perhaps the seriousness of the
elementary-school students alleged misbehavior. As to the real cause of M.S.s injuries that is,
Mr. Walkers driving the complaint steadfastly alleges HCDE employees, including Mr.
Coulter, took no action.
Plaintiffs have failed to allege plausibly that Mr. Coulter, the Woodmore principal, or any
other HCDE employee took any material affirmative act that either created or increased the risks
posed by Mr. Walkers driving an absolute requirement of a state-created-danger claim.
Accordingly, there being no constitutional violation, neither Mr. Coulter nor HCDE can be held
liable under Count I. See Bukowski, 326 F.3d at 712 (holding that a governmental entity cannot
be held liable if there is [no] showing of liability on the part of its officials).
ii. Plaintiffs have failed to state a plausible claim that one or more government
actors had the requisite degree of culpability.
Even assuming for the sake of argument that plaintiffs could demonstrate plausible
claims as to the first two elements of state-created danger test, 10 plaintiffs cannot demonstrate the
third the requisite degree of culpability on the part of a government actor. Culpability for state
or governmental actors in the context of section 1983 requires a showing of governmental abuse
10
For purposes of this motion only, Defendants will assume their conduct affected a small class of
which the plaintiff was a member, meeting the second requirement of the state-created danger test.
18

of power . . . that which shocks the conscience. Cnty. of Sacramento v. Lewis, 523 U.S. 833,
846 (1998). In applying this standard, the Sixth Circuit found:
Since the time of our early explanations of due process, we have understood the
core of the concept to be protection against arbitrary action. . . . We have
emphasized time and again that [t]he touchstone of due process is protection of
the individual against arbitrary action of government, whether the fault lies in a
denial of fundamental procedural fairness or in the exercise of power without any
reasonable justification in the service of a legitimate governmental objective. . . .
Our cases dealing with abusive executive action have repeatedly emphasized that
only the most egregious official conduct can be said to be arbitrary in the
constitutional sense. . . .
Hunt, 542 F.3d at 535 (quoting Cnty. of Sacramento, 523 U.S. at 845-46).
While state actions intended to injure or in furtherance of invidious discrimination will
usually be found to be arbitrary, there are no factual allegations or evidence that Mr. Coulter or
any other HCDE employee engaged in such flagrant conduct. See Hunt, 542 F.3d at 536; see
also Upsher v. Grosse Pointe Pub. Sch. Sys., 285 F.3d 448, 453 (6th Cir. 2002). The Hunt court
further ruled, We can say that mere negligence is definitely not enough and that conduct
intended to injure in some way unjustifiable by any governmental interest is the sort of official
action most likely to rise to the conscience-shocking level. Hunt, 542 F.3d at 535 (quoting
Cnty. of Sacramento, 523 U.S. at 834); see also Ghandi v. Police Dept. of the City of Detroit,
823 F.2d 959, 963 n.2 (6th Cir. 1987), cert. denied, 484 U.S. 1042 (1988). The Hunt court
further held that the the middle states of culpability, such as recklessness, gross negligence, or
deliberate indifference, may or may not be shocking depending on context, because
[d]eliberate indifference that shocks in one environment may not be so patently egregious in
another, and our concern with preserving the constitutional proportions of substantive due
process demands an exact analysis of circumstances before any abuse of power is condemned as
19

conscience shocking. Hunt, 542 F.3d at 535 (quoting Cnty. of Sacramento, 542 U.S. at 849-
50).
Hunt identified three considerations bearing on whether a state action will be found to be
sufficiently deliberately indifferent to be constitutionally arbitrary: (1) the voluntariness of the
relationship between the government and the plaintiff, especially whether the plaintiff was
involuntarily in government custody or was voluntarily a government employee; (2) whether the
executive actor was required to act in haste or had time for deliberation; and (3) whether the
government actor was pursuing a legitimate governmental purpose. Id. at 536.
The distinction between custodial settings and voluntary relationships has been identified
by the Sixth Circuit as often the determinative factor in setting the culpability level for a
substantive due process claim. Hunt, 542 F.3d at 538 (emphasis added) (citing Upsher, 285
F.3d at 453. As previously discussed, the Sixth Circuit has definitively ruled that no special
relationship generally exists between a school district and its students. Furthermore, the
relationship between the HCDE Defendants and M.S. is even more attenuated under the present
circumstances because (1) the HCDE Defendants provided no relevant transportation services,
having contracted them in their entirety to Durham and (2) student use of school buses was, and
is, completely voluntary. In fact, the HCDE Defendants have no legal obligation to provide such
transportation, as noted above. While on the bus, M.S. and other similarly situated students were
in the custody of Durham and its employee, Mr. Walker, who was not under the control of the
HCDE Defendants. Clearly, this consideration strongly supports a voluntary association between
the HCDE Defendants and Woodmore students and thus a finding of no culpability.
The second consideration is whether HCDE employees were required to work in haste.
Where there is opportunity for reflection and unhurried judgment[], a plaintiff must show that
20

the defendants affirmative acts were deliberately indifferent, Arledge v. Franklin Cnty., Ohio,
509 F.3d 258, 263 (6th Cir. 2007). The Sixth Circuit equates deliberate indifference with
subjective recklessness, Ewolski v. City of Brunswick, 287 F.3d 492, 513 (6th Cir. 2002), which
means that the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference, Sperle v.
Mich. Dept of Corr., 297 F.3d 483, 493 (6th Cir. 2002) (quoting Farmer v. Brennan, 511 U.S.
825, 837 (1994)). HCDE Defendants do not contend that haste is relevant but adamantly deny
that any conduct attributable to them demonstrated deliberate indifference. (See the following
two paragraphs for HCDE Defendants argument that plaintiffs cannot make out a plausible
claim that Mr. Coulter or any other HCDE employee demonstrated deliberate indifference.)
The next consideration is whether Mr. Coulter or any other accused HCDE employee was
pursuing objectives other than legitimate governmental purposes and thus may have acted with
deliberate indifference. The complaint alleges that the first evidence of Mr. Walkers
objectionable conduct came to light in early November 2016, and the accident occurred on
November 21. The complaint also alleges that during this interim period of less than three
weeks, Mr. Coulter and other HDCE employees became personally aware of events and/or
complaints concerning Mr. Walker, alerting them to aspects of his behavior. However, these
allegations do not evidence any personal or nefarious agendas on the part of Department
employees, but instead, and as argued throughout this pleading, may represent, at worst, a lack of
understanding or appreciation of the degree and scope of Mr. Walkers alleged behavior.
There simply are no factually supported allegations that HCDE employees did anything
other than pursue legitimate governmental purposes regarding Mr. Walkers behavior so as to
support an allegation against them of deliberate indifference. The suggestion that any HCDE
21

employee approved, collaborated, condoned, acquiesced in, or lent any support to Mr. Walkers
acts (which plaintiffs have described as sadistic) is preposterous. Consequently, Count I
should be dismissed as to both Mr. Coulter and HCDE.
C. Even assuming a constitutional violation by an HCDE employee, plaintiffs have

failed to make out a plausible claim for governmental liability under section 1983.
Even assuming for sake of argument that one or more HDCE employees violated M.S.s
substantive due process rights under a theory of state-created danger, plaintiffs cannot make out
a plausible claim that such violations are attributable to HCDE. As previously discussed, the
Supreme Court has consistently held that a governmental entity is not liable under section 1983
for the actions of their employees based on traditional notions of respondeat superior. Monell,
436 U.S. at 691. Instead, a plaintiff must show that action pursuant to official municipal policy
of some nature caused a constitutional tort. Id.; see also Gregory v. City of Louisville, 444 F.3d
725, 752 (6th Cir. 2006) (A plaintiff may only hold a local government entity liable under
[section] 1983 for the entitys own wrongdoing.); Claiborne Cnty., Tenn., 103 F.3d at 507
(holding that, to establish liability, a plaintiff must show that an officially executed policy, or
the toleration of a custom within the school district leads to, causes, or results in the deprivation
of a constitutionally protected right) (citing Monell, 436 U.S. at 690-91).
However, plaintiffs fail to identify any official HDCE regulation or policy associated
with unconstitutional conduct. In fact, plaintiffs implicitly acknowledge that official HCDE
policies referenced in their Complaint were protective of student safety and instead allege the
failure of the HCDE Defendants to adhere to those regulations and policies. As discussed
extensively above, failure to act cannot satisfy the requirement of an affirmative act.
22

Insofar as plaintiffs allege the existence of relevant customs of usage which superseded,
amended, or replaced official HCDE regulations and policies, 11 plaintiffs have failed to state a
plausible claim that the alleged conduct of HCDE employees constituted a custom for
purposes of section 1983 liability as to HCDE. In Richardson v. Huber Heights Board of
Education, the Sixth Circuit identified several considerations relevant to determining whether a
custom or usage has been established within a governmental entity, including: (1) a clear and
persistent pattern of . . . abuse by school employees; (2) tacit approval of the unconstitutional
conduct by the governmental entity amounting to deliberate indifference; and (3) a direct causal
relationship between the custom and constitutional deprivation such that the custom was its
moving force. 651 F. Appx 362, 367 (6th Cir. 2016).
As to the first consideration, plaintiffs have clearly failed to allege substantive facts
evidencing a clear and persistent pattern of abuse on the part of HCDE employees. Certainly,
they do not allege that HCDE employees ignored complaints about school bus drivers on
previous occasions. As to Mr. Walker, plaintiffs own allegations demonstrate that, between
November 2 and November 21, 2016 (the day of the accident) various parties were
communicating information to HCDE and the circumstances surrounding him were evolving. In
other words, the situation, and what was known by HCDE employees, was fluid over a relatively
short period of time nineteen days. Furthermore, the veracity of the student complaints was
unknown, and the complaint references efforts by HCDE employees to investigate their claims.
(See, e.g., Compl. 50 (discussing HCDE employee Carlis Shacklefords questions to Mr.
Walker about complaints concerning him).) In addition, HCDE employees were not dealing
11
Congress included customs and usages [in section 1983] because of the persistent and widespread
discriminatory practices of state officials . . . . Although not authorized by written law, such practices of
state officials could well be so permanent and well settled as to constitute a custom or usage with the
force of law. Monell, 436 U.S. at 691 (quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-68,
(1970) (Harlan, J.)).
23

with one of their own, but a Durham employee, which necessarily complicated their ability to
respond. No pattern of conduct, much less of abuse, existed under these conditions, which
differed from day to day.
Nor have plaintiffs made a plausible claim that HCDE tacitly approved of
unconstitutional conduct so as to give rise to an inference that it was deliberately indifferent. To
demonstrate this element, plaintiffs must show that the need to act is so obvious that the . . .
conscious decision not to act can be said to amount to a policy of deliberate indifference.
Richardson, 651 F. Appx at 367 (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)).
The complaint fails to make a plausible claim that there was a conscious decision not to act.
Instead, the complaint describes a situation in which HCDE attempted to obtain and/or verify the
relevant facts before taking action. As alleged, a number of HCDE employees had reported their
concerns, and Mr. Coulter responded on one occasion by stating we are addressing the issue
with the driver. (Compl. 51.) The complaint thus establishes that the HCDE Defendants were
not ignoring the complaints and were not uncaring or deliberately indifferent, but were instead
investigating the matter which involved a Durham employee.
Third and for all of the reasons stated above, the school boards conduct was not the
moving force or direct causal link in any constitutional deprivation. The conduct of HCDE
employees was simply a reaction to a series of unfolding events, and the moving force of any
violation (which HCDE defendants deny occurred) was the behavior of Mr. Walker, a private
actor.
II. Count II should be dismissed as to the HCDE Defendants for failure to state a
claim.
Count II appears to be a simple rewording of Count I. Both counts are substantive due
process claims, and the alleged constitutional violation in Count II the violation of right to
24

bodily integrity is the same violation alleged in the Count I. Furthermore, the only viable
theories of recovery against the HCDE Defendants remain the same: (1) a special relationship or
(2) a state-created danger. The failure of plaintiffs to make a plausible claim under either of
these theories has already been discussed in detail, and that analysis applies with equal force to
Count II.
The only difference between the two counts is the claim that all the named defendants,
including HCDE Defendants, provided inadequate training to Mr. Walker. In City of Canton,
the Supreme Court held that governmental entities can be held liable under section 1983 for
failure to train . . . government employees. 489 U.S. at 380. However, liability will attach,
[o]nly where a municipalitys failure to train its employees in a relevant respect evidences a
deliberate indifference to the rights of its inhabitants can such a shortcoming be properly
thought of as a . . . policy or custom that is actionable under [section] 1983. City of Canton,
489 U.S. at 389.
Of course, Mr. Walker was a Durham employee and was trained by Durham not the
HCDE Defendants. Under the transportation contract, Durham had sole responsibility for
training. Furthermore, plaintiffs fail to allege how Mr. Walkers training was inadequate or
caused the alleged constitutional violation, as required to make a plausible claim. See City of
Canton, 489 U.S. at 385 (holding that a plaintiff must show a direct causal link between a
municipal policy or custom and the alleged constitutional deprivation.). Finally and even if the
HCDE Defendants had some responsibility for training Mr. Walker, the claim would fail for all
the reasons stated in the previous section.
25

IV. Count III should be dismissed as to the HCDE Defendants for failure to state a
claim.
In Count III, the plaintiffs allege a conspiracy to violate M.S.s constitutional rights. The
elements of a conspiracy to deprive someone of their civil rights include: (1) a conspiracy; (2)
for [the] purpose of depriving, either directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in
furtherance of the conspiracy; and (4) whereby a person is either injured in his person or
property or deprived of any right or privilege of a citizen of the United States. Riddle v.
Egensperger, 266 F.3d 542, 549 (6th Cir. 2001) (citing Conklin v. Lovely, 834 F.2d 543, 548 (6th
Cir. 1987)). However, plaintiffs base this claim on the same factual allegations previously
shown to be inadequate to make out a plausible claim for any constitutional violation on the part
of the HCDE Defendants. Furthermore, plaintiffs fail to allege any additional factual bases for
the existence of a conspiracy or any manner of collusion (or their membership in any protected
class), and therefore, their conspiracy claim should be dismissed without further consideration.
Iqbal, 556 U.S. at 679; Dallas, 137 F. Appx at 752-53.
V. The doctrine of qualified immunity shields Mr. Coulter from individual liability.
It is well settled that, whereas a claim against an official acting in his official capacity is
essentially a claim against a municipality, a claim against an official in his individual capacity
seek[s] to hold [the] official personally liable for the wrong alleged. Peatross v. City of
Memphis, 818 F.3d 233, 241 (6th Cir. 2016); see also Grise v. Allen, No. 5:11-195-KKC, 2016
WL 1261077, at *4 (E.D. Ky. Mar. 30, 2016) (Under [section] 1983, a plaintiff may seek
money damages from government officials who have violated his or her constitutional rights.).
To establish the personal liability of an official under section 1983, it is enough to show that the
26

official, acting under color of state law, caused the deprivation of a federal right. Peatross, 818
F.3d at 241 (internal quotation marks omitted).
However, in order to ensure that fear of such liability will not unduly inhibit them in the
discharge of their duties, officials may assert the defense of qualified immunity. See Harmon v.
Hamilton Cnty., No. 15-4125, 2017 WL 76963, at *4 (6th Cir. Jan. 9, 2017); Grise, 2016 WL
1261077, at *4. Qualified immunity is an entitlement not to stand trial or face the other
burdens of litigation. Shively v. Green Local Sch. Dist. Bd. of Educ., 579 F. Appx 348, 354
(6th Cir. 2014) (quoting Saucier v. Katz, 533 U.S. 194, 200 (2001)). A plaintiff bears the burden
to show that a defendant official is not entitled to claim qualified immunity. See Harmon, 2017
WL 76963, at *4.
In determining whether qualified immunity applies to shield a government official from
personal liability, the Sixth Circuit typically employs a two-step analysis, determining whether:
(1) construed in the light most favorable to the plaintiff, the allegations show that the official
violated a plaintiffs constitutional right, and (2) that right was clearly established. See Harmon,
2017 WL 76963, at *4; see also Folks v. Petitt, No. 16-3596, 2017 WL 318773, at *2 (6th Cir.
Jan. 23, 2017) (same). Furthermore, once the qualified immunity defense is raised, the plaintiff
bears the burden of demonstrating both that the challenged conduct violates a constitutional or
statutory right and that the right was so clearly established at the time that every reasonable
officer would have understood that what he was doing violated that right. Doe v. Forest Hills
Sch. Dist., No. 1:13-cv-428, 2015 WL 9906260, at *14 (W.D. Mich. Mar. 31, 2015) (quoting
T.S. v. Doe, 742 F.3d 632, 635 (6th Cir. 2014)).
27

If any of these requirements are not fulfilled, then qualified immunity protects the
officer from civil damages. Harmon, 2017 WL 76963, at *4 (internal alteration and quotation
marks omitted).
A. The allegations set forth in the complaint fail to establish that Mr. Coulter violated
M.S.s constitutional rights.
As discussed supra Parts I.A-B, plaintiffs have failed to establish that defendants violated
M.S.s constitutional right to bodily integrity either (1) because there was a special relationship
between M.S. and HCDE or (2) on a state-created-danger theory. 12 With respect to (2), the
foregoing discussion demonstrates conclusively that each of plaintiffs well-pleaded allegations
with respect to Mr. Coulter show, at most, inaction (i.e., alleged failures to enforce rules relating
to bus safety, speed, reporting of injuries, and the following of designated routes, and the failure
to monitor or discipline Mr. Walker), which does not form the basis for liability on a state-
created-danger theory. See Stiles, 819 F. 3d at 855; supra Part I.B.i. 13 Further, Mr. Coulters
conduct as alleged was not such to give rise to a plausible inference that he acted with the degree
of culpability necessary to satisfy the state-created-danger test. See supra Part I.B.ii.
Accordingly, plaintiffs have failed to allege plausibly that Mr. Coulter violated M.S.s
constitutional rights.
12
As discussed above, to be liable on a state-created danger theory, a governmental actor must (1)
affirmatively act so as to create or increase a risk that a plaintiff would be exposed to the injurious
conduct of a private person, (2) especially endanger the plaintiff or a small class of which the plaintiff
was a member, and (3) have the requisite degree of culpability. See Hunt, 542 F.3d at 534.
13
As noted above, plaintiffs sole allegations concerning Mr. Coulter that conceivably relate to actions he
took are that (1) defendants generally ([Mr.] Coulter, Durham, [and] the District (Compl. 39))
instructed students to board the school bus daily and (2) Mr. Coulter admonished Mr. Walker to refrain
from referring so many students for discipline (id. 38). As explained above, (1) is impermissibly
vague as to who precisely instructed students to board school buses, see Kesterson, 149 F.3d, at *4;
Marcillis, 693 F.3d at 596; Lanman, 529 F.3d at 684; Stiles, 2015 WL 1294168, at *7; Long, 2010 WL
1223917, at *4 n.8, *6; and (2) establishes no connection between that alleged admonishment and any
injury suffered by M.S., see Collins, 503 U.S. at 120; see also Powers, 501 F.3d at 608.
28

B. Even assuming that Mr. Coulters actions violated M.S.s constitutional rights, the
particularized right plaintiffs claim that he violated was not clearly established at
the time of the alleged misconduct.
In determining whether a right is clearly established, courts in the Sixth Circuit
generally look to decisions of the Supreme Court and Sixth Circuit, and a case on point from one
of those courts is ordinarily necessary to a finding that a right is clearly established. See Carver
v. City of Cincinnati, 474 F.3d 283, 287 (6th Cir. 2007); see also Andrews v. Hickman Cnty.,
Tenn., 700 F.3d 845, 853 (6th Cir. 2012) (When determining whether a constitutional right is
clearly established, we look first to decisions of the Supreme Court, then to our own decisions
and those of other courts within the circuit, and then to decisions of other Courts of Appeal.); cf.
Forest Hills Sch. Dist., 2015 WL 9906260, at *14 (noting that, although a prior case need not be
directly on point, existing precedent must have placed the statutory or constitutional question
beyond debate) (emphasis added) (quoting Ashcroft v. al-Kidd, 536 U.S. 731, 741 (2011)).
Further, this inquiry must be undertaken in light of the specific context of the case, not as a
broad general proposition. Carver, 474 F.3d at 287 (quoting Brousseau v. Haugen, 543 U.S.
194, 198 (2004)); see also Forest Hills Sch. Dist., 2015 WL 9906260, at *14 (The clearly
established prong will depend substantially on the level of generality at which the legal rule is
identified. (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)). The right must be
clearly established in a particularized sense, and not in a generalized or abstract sense. Id.
(quoting Anderson, 483 U.S. at 640).
Further, the rights contours must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right, which is not to say that an official action
is protected by qualified immunity unless the very action in question has been held unlawful,
but that, in the light of the pre-existing law the unlawfulness must be apparent. Forest Hills
Sch. Dist., 2015 WL 9906260, at *14 (emphasis added) (quoting Anderson, 483 U.S. at 640). As
29

the inquiry is context specific, there are limitations upon the extent to which a court may rely on
holdings in contexts other than the one being considered to demonstrate that a principle has been
clearly established. Andrews, 700 F.3d at 854 (internal quotation marks omitted).
Neither the United States Supreme Court or the Sixth Circuit has held that (1) a school
official responsible for supervising transportation violates the right to bodily integrity (on any
theory) of a student transported on a systems school bus who is injured by the bad acts of a bus
driver, whether the driver is employed by the system or a third party, or (2) such an official is not
protected by a defense of qualified immunity under such circumstances. To the contrary, as
discussed supra Part I.B.i, the extant case law clearly establishes that a school officials failure to
act, even with knowledge that a risk of harm may exist without state intervention is not enough
to confer liability under the Fourteenth Amendment. Hill, 2016 WL 4444802, at *4 (citing
DeShaney, 489 U.S. at 197); Jones, 438 F.3d at 691; Schroder, 412 F.3d at 728-29.
Moreover, to show that an official acted with the requisite degree of culpability in the
state-created-danger context, the case law states clearly that the relationship between the plaintiff
and the state must be essentially involuntary, the government official acted unreasonably in
proportion to the amount of time he had to deliberate on the allegedly improper decision, and the
government official was not pursuing a legitimate governmental purpose. See Hunt, 542 F.3d at
536.
For the reasons explained above, none of Mr. Coulters actionseither individually or
considered in the aggregategives rise to a plausible inference that he acted affirmatively either
to create a danger to plaintiffs or to increase an already-existing danger, or that he acted
30

culpablymuch less under clearly established legal principles. Accordingly, plaintiffs have
failed to plausibly allege that Mr. Coulter violated M.S.s clearly established rights. 14
Accordingly, plaintiffs have failed to allege facts sufficient to state plausibly that Mr.
Coulter is not entitled to the defense of qualified immunity, and all causes of action against him
should be dismissed.
VI. Count V must be dismissed for failure to state a claim as to HCDE.
The GTLA provides, in pertinent part, that [e]xcept as may be otherwise provided in this
chapter, all governmental entities shall be immune from suit for any injury which may result
from the exercise of government duties. Tenn. Code Ann. 29-20-201(a). Tennessees
Supreme Court has found this provision includes local governments. See Davidson v. Lewis
Bros. Bakery, 227 S.W.3d 17, 19 (Tenn. 2007) (quoting Tenn. Const. art. I, 17). It has further
been held that Tennessee courts will not find a waiver of sovereign immunity unless there is a
statute clearly and unmistakably disclosing an intent upon the part of the Legislature to permit
such litigation. Johnson v. City of Memphis, 617 F.3d 864, 872 (6th Cir. 2010) (internal
quotation marks omitted). In Johnson, the Sixth Circuit held that where a plaintiff alleges both
14
Moreover, Mr. Coulter is not liable for the alleged bad acts of Mr. Walker on a theory of respondeat
superior. As a general principle, section 1983 does not provide for respondeat superior liability against
government officials for the actions of their subordinates, and, to prevail against an official, a plaintiff
must plead that each government defendant violated the Constitution through his own individual actions.
See Reed-Bey v. Pramstaller, 607 F. Appx 445, 451 (6th Cir. 2015); see also Miller v. Calhoun Cnty.,
408 F.3d 803, 817 n.3 (6th Cir. 2005) (Because [section] 1983 liability cannot be imposed under a theory
of respondeat superior, proof of personal involvement is required for a supervisor to incur personal
liability.). A supervisory officials failure to supervise, control, or train [an] offending individual is
not actionable unless the supervisor either encouraged the specific incident of misconduct or in some
other way directly participated in it. Hill v. Bradley Cnty. Bd. of Educ., No. 1:05-cv-279, 2007 WL
4124495, at *15 (E.D. Tenn. Nov. 19, 2007) (quoting Ontha v. Rutherford Cnty., Tenn., 222 F. Appx
498, 504 (6th Cir. Mar. 13, 2007)). At a minimum, a plaintiff must show that the official at least
implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending
officers. Id. (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). As explained above, Mr.
Coulter did not encourage, directly participate in, authorize, approve of, or knowingly acquiesce in any
unconstitutional act of Mr. Walkers.
31

civil rights claims under section 1983 and separate tort claims arising out of the same
circumstances, the complaint will be viewed as a civil rights suit, and the local government
will retain its immunity from suit. Id.
The circumstances that pertained in Johnson also pertain here. Plaintiffs have alleged
three section 1983 counts and one count of assault and battery as to HCDE. The factual bases for
all four counts are identical. Consequently, HCDE retains its immunity and must be dismissed
as to Count V. In the alternative, should the Court grant the instant motion as to HCDE
Defendants federal claims, it may and should decline to exercise supplemental jurisdiction over
this remaining state law claim. 15
CONCLUSION
For the reasons explained above, HCDE Defendants respectfully submit that plaintiffs
have failed to state any claim against them pursuant to 42 United States Code sections 1983 and
1985 and their state law causes of action. Accordingly, HCDE Defendants respectfully request
that this Honorable Court dismiss the complaint against them in its entirety. Should the Court
dismiss plaintiffs federal claims but decline to dismiss their state claims with prejudice, HCDE
Defendants request, in the alternative, that the Court decline to exercise supplemental jurisdiction
over them.
Dated: February 10, 2017
15
See Coitrone v. Murray, 642 F. Appx 517, 525 (6th Cir. 2016) (Generally, once a federal court has
dismissed a plaintiffs federal law claim, it should not reach state law claims. Residual jurisdiction
should be exercised only in cases where the interests of judicial economy and the avoidance of
multiplicity of litigation outweigh [the] concern over needlessly deciding state law issues. (internal
quotation marks omitted)); Smith v. Smith, No. 2:15-CV-241, 2016 WL 4703834, at *6 (E.D. Tenn. Sept.
8, 2016) (A court may decline to exercise supplemental jurisdiction . . . where the district court has
dismissed all claims over which it has original jurisdiction (quoting 28 U.S.C. 1367(c)(3)).
32

Respectfully submitted,
By: /s/Joseph R. White _______________

Joseph R. White (BPR 13459)
C. Eugene Shiles, Jr. (BPR 011678)
Joseph Alan Jackson II (BPR 30203)
SPEARS, MOORE, REBMAN & WILLIAMS, P.C.
801 Broad Street, Sixth Floor
P.O. Box 1749
Chattanooga, Tennessee 37401-1749
Telephone: (423) 756-7000
Facsimile: (423) 756-4801
jrw@smrw.com
ces@smrw.com
jaj@smrw.com
Attorneys for Defendants Hamilton County

Department of Education and Benjamin Coulter
CERTIFICATE OF SERVICE
I hereby certify that on February 10, 2017, a copy of the foregoing was filed
electronically. Notice of this filing will be sent by operation of the Courts electronic filing
system to all parties indicated on the electronic receipt. Parties may access this filing through the
Courts electronic filing system.
s/Joseph R. White
Joseph R. White
599245.docx/302907-00002
33

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HCDE and Coulter Full Response

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HCDE and Coulter Full Response

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IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA

M.S. (a minor, by his parent and next )

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO STATE

Come defendants Hamilton County Department of Education (HCDE) and Benjamin

Code Annotated sections 29-20-201(a) and 29-20-205(2) of Tennessees Government Tort

Liability Act (GTLA) and 28 United States Code section 1367(c)(3). 1

Case 1:16-cv-00501-JRG-SKL Document 25 Filed 02/10/17 Page 1 of 33 PageID #: 156

to be, HCDEs supervisor of transportation.

Case 1:16-cv-00501-JRG-SKL Document 25 Filed 02/10/17 Page 2 of 33 PageID #: 157

Standard for Rule 12(b)(6) Motions to Dismiss

A court ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure

Case 1:16-cv-00501-JRG-SKL Document 25 Filed 02/10/17 Page 3 of 33 PageID #: 158

omitted). Determining whether a complaint states a plausible claim is context-specific [and]

Case 1:16-cv-00501-JRG-SKL Document 25 Filed 02/10/17 Page 4 of 33 PageID #: 159

decision-maker and to become an advocate.).

Case 1:16-cv-00501-JRG-SKL Document 25 Filed 02/10/17 Page 5 of 33 PageID #: 160

Durham School Services, L.P. (Durham) is a subsidiary of National Express, L.L.C., a

multi-national company advertised as the largest provider of home-to-school transportation in the

Case 1:16-cv-00501-JRG-SKL Document 25 Filed 02/10/17 Page 6 of 33 PageID #: 161

violation by Mr. Walker. (See id. at 54.)

Case 1:16-cv-00501-JRG-SKL Document 25 Filed 02/10/17 Page 7 of 33 PageID #: 162

Walkers actions, including a general description of injuries.) Plaintiffs allege on information

LAW AND ANALYSIS

Case 1:16-cv-00501-JRG-SKL Document 25 Filed 02/10/17 Page 8 of 33 PageID #: 163

both the cause in fact and proximate cause of his injury).

Cases, 109 U.S. 3, 17-18 (1883)).

selection, training, supervision, and discipline remain solely with Durham.

Durham is an independent CONTRACTOR, and not an Officer, Agent, or

Durham shall be solely responsible for hiring sufficient personnel to perform

Case 1:16-cv-00501-JRG-SKL Document 25 Filed 02/10/17 Page 9 of 33 PageID #: 164

(Ex. A at pp. 2-3, nos. 9 & 14.)

(1978). 5 In Monell, the Supreme Court further held:

Case 1:16-cv-00501-JRG-SKL Document 25 Filed 02/10/17 Page 10 of 33 PageID #: 165

tort claims as constitutional claims and must be dismissed.

Case 1:16-cv-00501-JRG-SKL Document 25 Filed 02/10/17 Page 11 of 33 PageID #: 166

Supreme Court found:

The Clause is phrased as a limitation on the States power to act, not as a

Case 1:16-cv-00501-JRG-SKL Document 25 Filed 02/10/17 Page 12 of 33 PageID #: 167

or exclusive control is therefore conclusory and without a factual basis.

Case 1:16-cv-00501-JRG-SKL Document 25 Filed 02/10/17 Page 13 of 33 PageID #: 168

Cnty., Tenn., 103 F.3d at 510.

The second possible scenario pertains to the state-created-danger theory specifically

plausible claim under the state-created-danger theory.

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Case 1:16-cv-00501-JRG-SKL Document 25 Filed 02/10/17 Page 15 of 33 PageID #: 170

omissions rather than affirmative acts. Stiles, 819 F.3d at 855.

affirmative acts. Id. at 691-92.

In an effort to demonstrate affirmative acts on part of the HCDE Defendants, plaintiffs

Case 1:16-cv-00501-JRG-SKL Document 25 Filed 02/10/17 Page 16 of 33 PageID #: 171

occupant of that house).

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Coulter, took no action.

posed by Mr. Walkers driving an absolute requirement of a state-created-danger claim.

Case 1:16-cv-00501-JRG-SKL Document 25 Filed 02/10/17 Page 18 of 33 PageID #: 173

846 (1998). In applying this standard, the Sixth Circuit found:

While state actions intended to injure or in furtherance of invidious discrimination will

deliberate indifference, may or may not be shocking depending on context, because

Case 1:16-cv-00501-JRG-SKL Document 25 Filed 02/10/17 Page 19 of 33 PageID #: 174

sufficiently deliberately indifferent to be constitutionally arbitrary: (1) the voluntariness of the

government actor was pursuing a legitimate governmental purpose. Id. at 536.

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Case 1:16-cv-00501-JRG-SKL Document 25 Filed 02/10/17 Page 21 of 33 PageID #: 176

acts (which plaintiffs have described as sadistic) is preposterous. Consequently, Count I