United States District Court, W.D. Oklahoma
C.E.W.P., a minor child, by and through his Mother and Next Friend, AMANDA PORTER CAIN, Plaintiff,
PONCA CITY INDEPENDENT SCHOOL DISTRICT I-71 a/k/a PONCA CITY PUBLIC SCHOOLS; SHELLY ARROTT, Superintendent, in her individual capacity; DAVID PENNINGTON, Superintendent, in his individual capacity; THAD DILBECK, Principal, in his individual capacity; BRET SMITH, Title IX Coordinator, in his individual capacity; KELBY GENE CROSS; and AVERY MARKUS KELLEN REVARD, Defendants.
PATRICK R. WYRICK, UNITED STATES DISTRICT JUDGE.
the Court is a Motion to Dismiss Procedural Due Process Claim
with Combined Brief in Support (Dkt. 20) filed on February
25, 2019, by the School District Defendants. Plaintiff filed a
Response (Dkt. 23) later that same day, and the School
District Defendants filed a Reply (Dkt. 24) on March 4, 2019.
For the reasons set forth below, the present motion (Dkt. 20)
is denied, and the first Motion to Dismiss (Dkt. 11) is
the second motion to dismiss filed by the School District
Defendants. In the first Motion to Dismiss (Dkt. 11),
the School District Defendants asked the Court to dismiss (1)
Plaintiff's procedural due process and Title IX claims
for failure to state a claim upon which relief can be
granted, (2) Plaintiff's official capacity claims against
the school employees as duplicative of her claims against the
School District, and (3) Plaintiff's claims against the
Board of Education because it is not an independent legal
entity subject to suit.
response to the School District Defendants' first Motion
to Dismiss (Dkt. 11), Plaintiff filed the Amended Complaint
and Jury Demand (Dkt. 15). The Court hereby finds that the
School District Defendants' first Motion to Dismiss (Dkt.
11) is now MOOT because an amended complaint
to the School District Defendants, the Amended Complaint
mooted most of their first Motion to Dismiss (Dkt. 11), with
the exception of their requested dismissal of Plaintiff's
procedural due process claim. They assert that,
“[a]lthough the Amended Complaint no longer includes a
separate numbered count containing the allegations related to
the Plaintiff's procedural due process claim, that claim
is nonetheless present in the Amended Complaint in
substantially identical form . . . .” Essentially, the
allegations Plaintiff labeled as “Count VII Violation
of Due Process” in the initial complaint-viewed by
School District Defendants as Plaintiff's attempt to
state a procedural due process claim-were relocated to
“Count V 1983 Violation” in the Amended
Complaint. In the School District Defendants'
view, this renaming of the claim didn't cure the
claim's defect, i.e., that it was a procedural due
process claim subject to dismissal. As a result, the School
District Defendants filed their second Motion to Dismiss
(Dkt. 20), asking the Court to dismiss Plaintiff's
procedural due process claim in the Amended Complaint for
failure to state a claim upon which relief can be
disagrees with the School District Defendants' view of
her claims, explaining that “Count V relates to
Plaintiff's SUBSTANTIVE Due
Process rights.” She continues that the paragraphs that
were relocated from Count VII of the initial Complaint (Dkt.
1) to Count V of the Amended Complaint (Dkt. 15) are part of
a series of allegations that “set out facts sufficient
to establish substantive due process
Court agrees. Plaintiff has not brought a claim for a
violation of C.E.W.P.'s procedural due process rights.
Accordingly, the Court DENIES the School
District Defendants' Motion to Dismiss Procedural Due
Process Claim with Combined Brief in Support (Dkt. 20).
 The School District Defendants include
Independent School District No. 71 of Kay County, Oklahoma,
Shelly Arrott, David Pennington, Thad Dilbeck, and Bret
 David Pennington was not a party to
the first Motion to Dismiss (Dkt. 11) because he had not been
served at the time it was filed.
Mink v. Suthers, 482 F.3d
1244, 1254 (10th Cir. 2007); Moquett v. Town of Rock
Island, No. 6:14-cv-00531-RAW, 2015 WL 3952276, at *1
(E.D. Okla. June 29, 2015); Sellers v. Holcomb, No.
5:06-cv-01249-R, 2007 WL ...