United States District Court, W.D. Oklahoma
ADAM DANIELS AND KELSEY, DANIELS individually and as Parents and next friends of C.D.D., M.K.D., and A.A.D., minor children, Plaintiff,
INDEPENDENT SCHOOL DISTRICT NO. 0-001 OF OKLAHOMA COUNTY, OKLAHOMA, a political subdivision Of The State of Oklahoma, a/k/a Putnam City Schools, et al., Defendants.
L. RUSSELL UNITED STATES DISTRICT JUDGE
matter is before the Court on the Motion to Dismiss (Doc. No.
5) filed by Defendants, Independent School District No.
(0-001) of Oklahoma County, Oklahoma. Plaintiffs responded in
opposition to the motion and Defendants filed a reply in
support of their motion. Accordingly, the Motion to Dismiss
is at issue, and the Court sets forth its findings herein.
moves to dismiss Plaintiffs' complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. In
considering a motion under Rule 12(b)(6), the Court must
determine whether the Plaintiff has stated a claim upon which
relief may be granted. A motion to dismiss is properly
granted when a complaint provides no “more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007). A complaint must contain enough “facts to
state a claim to relief that is plausible on its face”
and the factual allegations “must be enough to raise a
right to relief above the speculative level.”
Id. (citations omitted). “Once a claim has
been stated adequately, it may be supported by showing any
set of facts consistent with the allegations in the
complaint.” Id. at 562, 127 S.Ct. 1955. For
the purpose of making the dismissal determination, the Court
must accept all the well-pleaded allegations of the complaint
as true, even if doubtful, and must construe the allegations
in the light most favorable to claimant. Twombly,
550 U.S. at 555, 127 S.Ct. 1955; 1260, Alvarado v.
KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir.2007).
However, the Court need not accept as true conclusory
allegations. Erikson v. Pawnee Cnty. Bd. of Cnty.
Com'rs, 263 F.3d 1151, 1154-55 (10th Cir.2001).
“[C]onclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief
can be based.” Cory v. Allstate Ins., 583 F.3d
1240, 1244 (10th Cir.2009) (quoting Hall v. Bellmon,
935 F.2d 1106, 1109-10 (10th Cir.1991)).
filed this action in the District Court of Oklahoma County
alleging violation of the rights of the minor children by
employees of Overholser Elementary and the Putnam City School
District. Plaintiffs Adam and Kelsey Daniels allege they, as
parents, have been subjected to repeated false allegations by
employees of the Putnam City Schools to the Department of
Human Services, allegedly because of their religious beliefs.
On behalf of M.K.D., who is mute, Plaintiffs allege she was
subjected to repeated strip searches by a school nurse at two
different schools, and that the nurse at Putnam City West
High School did not report the abuse to DHS Child Protective
Services. Plaintiffs allege that C.D.D., who is autistic, was
subjected to abuse and harassment by both her teacher and
students, with the approval of the teacher, which resulted in
outbursts of self-harm and physical aggression. Plaintiffs
further contend M.K.D. fractured her ankle in January 2015,
and that school officials were unable to identify what caused
the injury and failed to provide care for the injury. Based
in part on these facts, Plaintiffs seek relief in Count I on
a theory of defamation, specifically via false reports to
Child Protective Services. In Count II, Plaintiffs allege
Defendant School District violated the civil rights of M.K.D.
in that she was subjected to strip search by a nurse at
Western Oaks Middle School. Plaintiffs Adam and Kelsey
Daniels further allege that they were subject to retaliation
for their complaints about the treatment of M.K.D. and
because of their religious beliefs in the form of false
charges to the Department of Human Services. Plaintiffs also
allege the treatment by students and teachers violated the
civil rights of the minor Plaintiff. In Count III, Plaintiffs
allege Defendant was negligent in providing a safe
environment for their minor children and in providing
appropriate treatment for injuries that occurred while the
children were in their care.
Proposition I of Defendants' motion, they seek dismissal
of all Defendants except the Independent School District
Number 0-0001 of Oklahoma County. Plaintiffs concede to
dismissal of Defendants Overholser Elementary School a/k/a
Independent School No. 126 and the Putnam City School Board.
Accordingly, the motion is granted with regard to these
District next contends that dismissal of any claims by A.D.D.
is appropriate, because the Petition lacks any facts to
support a right to recovery on behalf of A.D.D. Defendant
correctly notes that Plaintiff A.D.D. does not appear in the
Petition beyond the caption and the introductory paragraph.
The Court will not allow Plaintiff to expand the allegations
in her Complaint through argument of counsel in a response
brief. See Cnty. of Santa Fe v. Pub. Serv. Co. of
N.M., 311 F.3d 1031, 1035 (10th Cir.2002) (“In
deciding a Rule 12(b)(6) motion, a federal court may only
consider facts alleged within the complaint.” (emphasis
added)). In the absence of any factual allegations on behalf
of A.D.D., claims on behalf of A.D.D. are subject to
Proposition IV, Defendant argues that Plaintiffs fail to
state a claim for defamation, because to the extent
Plaintiffs are relying on the allegedly false reports made to
the Department of Human Services, the reports were
confidential and not subject to public disclosure. Further,
to the extent the statements were released as part of court
proceedings, Defendant is entitled to a privilege. Defendant
further contends that Oklahoma Governmental Tort Claims Act
(“OGTCA”) does not waive sovereign immunity for
In an action for defamation:
a private figure must prove (1) a false and defamatory
statement, (2) an unprivileged publication to a third party,
(3) fault amounting at least to negligence on the part of the
publisher; and (4) either the actionability of the statement
irrespective of special damage [per se], or the existence of
special damage [per quod].
Tanique, Inc. v. State ex rel. Okla. Bureau of Narcotics
and Dangerous Drugs, 2004 OK CIV APP 73, ¶ 29, 99
P.3d 1209, 1217 (quoting Mitchell v. Griffin Television,
L.L.C., 2002 OK CIV APP 115, ¶ 5, 60 P.3d 1058,
1061). The fault standard in a defamation action is at least
negligence, or, in a case involving a public figure a showing
of actual malice may be required. See Mitchell, 2002
OK CIV APP 115, ¶ 6, 60 P.3d at 1061. The actual malice
standard requires that the defendant have acted with
knowledge that the publication was false, “or with
reckless disregard of whether it was false or not.”
Martin v. Griffin Television, Inc., 1976 OK 13,
¶ 28, 549 P.2d 85, 93. See New York Times Co. v.
Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686
White v. City of Del City, 270 P.3d 205, 213-14
(Okla.Civ.App. 2012), abrogated on other grounds
by, City of Jenks v. Stone, 321 P.3d 179 (Okla. 2014).
These fault standards interplay with the GTCA in such a
manner as to prevent Plaintiffs from recovering from the
District for the alleged defamation of District employees.
The GTCA expressly provides that the state will not be liable
for negligent misrepresentations by employees. 51 O.S.
Supp.2010 § 155(17) (“The state or a political
subdivision shall not be liable if a loss or claim results
from ... [m]isrepresentation, if unintentional.”).
Additionally, there is no liability pursuant to the Act if
the employee's action was outside the scope of
employment. See 51 O.S.2001 § 153(A). “
‘Scope of employment' means performance by an
employee acting in good faith within the duties of the
employee's office or employment or of tasks lawfully
assigned by a competent authority....” 51 O.S.
Supp.2010 § 152(12). Courts have recognized that this
provision excludes torts that could not have been committed
by an employee acting in “good faith.” See
Fehring v. State Ins. Fund, 2001 OK 11, ¶ 23, 19
P.3d 276, 283 (“when, for viability, the tort cause of
action sued upon requires proof of an element that
necessarily excludes good faith conduct on the part of
governmental employees, there can be no liability against the
governmental entity in a GTCA-based suit”). The City
contends that therefore it cannot be liable for either an
intentional or unintentional representation made by an
employee. We agree. Because the GTCA expressly excludes
claims based on negligent misrepresentations, a party must
prove at least reckless disregard in order to have a viable
defamation claim pursuant to the GTCA. However, because this
standard requires that the publisher of the statement have
“entertained serious doubts” as to the truth of
the statement, see Hart v. Blalock, 1997 OK 8,
¶ 9, 932 P.2d 1124, 1126, we find that a party cannot
act with “reckless disregard” and also be acting
within the “scope of employment” pursuant to the
GTCA. See Fehring, 2001 OK 11, ¶ 29, 19 P.3d at
285 (“Acts performed with reckless disregard for an
individual's rights also lack good faith and are outside
the scope of employment under the provisions of the
Id. As such, Plaintiffs' defamation claim is
subject to dismissal.
next argues the Court lacks jurisdiction over any claim under
the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400 because the Act
requires a plaintiff to first exhaust administrative
remedies, which the Daniels have not done. Although
Plaintiffs responded in opposition to the motion asserting
they did exhaust any claim under the IDEA, the Court does not
construe the Petition as including a claim for violation of
the IDEA on behalf or either C.D.D. or M.K.D. Plaintiffs
identified three finite claims: (1) defamation; (2) civil
rights violations under 42 U.S.C. § 1983; and (3)
negligence. Petition, Doc. No. 1-1. If Plaintiffs'
petition alleged that one or more of the minor children was
denied a free appropriate public education
(“FAPE”), the exhaustion rule set forth in 20
U.S.C. § 1415(l) would apply. If a lawsuit charges such
a denial, a plaintiff cannot escape § 1415(l) merely by
bringing suit under a statute other than the IDEA. However,
if a suit is brought under a different statute and the remedy
sought is not for the denial of a FAPE, then IDEA exhaustion
is not required. Se ...