Britain Moore v. Saul Lusks , 667 F. App'x 592 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-1587
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Britain Moore, Individually, and as parent and legal guardian of Jashanti Davis, a
minor on behalf of Jashanti Davis
lllllllllllllllllllll Plaintiff - Appellant
v.
Saul Lusks, Individually and in his official capacity as Superintendent of the Lee
County School District, Lee County School District; Willie Murdock, Individually
and in her official capacity as Assistant Superintendent of the Lee County School
District; Milton Hall, member of the Lee County School Board, in his official and
individual capacity; Elizabeth Johnson, member of the Lee County School Board,
in her official and individual capacity; Lafayette Smith, member of the Lee County
School Board, in his official and individual capacity; Victoria Perry, member of
the Lee County School Board, in her official and individual capacity; David
Waldrip, member of the Lee County School Board, in his official and individual
capacity; Kendall Gray, member of the Lee County School Board, in his official
and individual capacity; Francile Cooper, Individually and as an agent of the Lee
County School District; Regina Stone, Individually and as an agent of the Lee
County School District
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: July 22, 2016
Filed: July 27, 2016
[Unpublished]
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RILEY, Chief Judge, BOWMAN and BEAM, Circuit Judges.
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PER CURIAM.
Britain Moore, individually and on behalf of her minor child, Jashanti Davis,
brought claims under 42 U.S.C. § 1983 and Arkansas state law against several
officials of Lee County School District in their official and personal capacities. The
district court1 found that Moore's amended complaint failed to allege facts supporting
a cause of action under § 1983 and dismissed those claims. With all federal claims
dismissed, the district court dismissed the entire amended complaint for want of
federal subject matter jurisdiction without prejudice to Moore's filing her complaint
in state court. We affirm.
We take Moore's alleged facts as true. Over a period of ten months, Davis's bus
driver, Francile Cooper, bullied Davis on a weekly basis. Cooper would tell Davis
she was an "ignorant bitch" and repeatedly encouraged Davis to "go home and kill
yourself" because "nobody loves you." Cooper threatened to paddle Davis if she
reported the bullying. Regina Stone, another district employee, witnessed Cooper
threaten Davis and conspired with Cooper to keep the abuse under wraps. At one
point, Stone entered Davis's classroom to tell her to "stop lying" about Cooper's
bullying. Davis's teacher, Mrs. Holland, witnessed Davis being threatened in her
classroom. The bullying caused Davis emotional suffering for which she has sought
psychiatric treatment.
After Moore learned that Cooper was bullying her daughter, she visited
Superintendent Saul Lusks's office on several occasions to discuss Cooper's behavior,
1
The Honorable D.P. Marshall Jr., United States District Judge for the Eastern
District of Arkansas.
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but the visits were to no avail. She was similarly stonewalled by Assistant
Superintendent Willie Murdock and Director of Transportation Titus Howell. The
officials deliberately ignored her complaints, failed to document them, and failed to
take steps to address the harassment. The school district knew that there was,
generally, a problem with bus drivers behaving abusively toward students and,
specifically, that Cooper had previously struck a student and that Moore had filed a
criminal affidavit against Cooper. Despite this, and despite Cooper's failing to meet
certain requirements such as maintaining current medical records, the school district
continued to employ Cooper.
Moore brought claims against Lusks, Murdock, Cooper, Stone, and each
member of the Lee County School Board in their official and personal capacities.
Moore alleged that these officials violated § 1983 by engaging in conscience-
shocking behavior and by failing to follow the district's procedures for addressing
bullying, in violation of Davis's rights under the Fourteenth Amendment to
substantive and procedural due process.2 Moore also brought state-law claims. The
district court found that the officials' behavior, as alleged, was unfortunate but did not
rise to the level of conscience-shocking behavior necessary to state a substantive due
process violation. Further, it found that although the officials were alleged to have
failed to follow the district's bullying procedures, the amended complaint did not
allege a protected liberty or property interest and thus failed to state a claim for
violation of procedural due process. With only the state-law claims remaining, it
dismissed the amended complaint without prejudice to Moore's refiling in state court.
2
Moore also references 42 U.S.C. § 1985 in her amended complaint, but fails
to state a § 1985 claim as she nowhere alleges that Cooper's bullying or the district's
failure to act was motivated by protected discriminatory animus. Bray v. Alexandria
Women's Health Clinic, 506 U.S. 263, 267-68 (1993).
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On appeal, Moore argues only that the district court erred in dismissing her
substantive due process claim.3
Moore argues that Cooper's harassment rose to the level of conscience-
shocking behavior because her encouraging Davis to commit suicide was tantamount
to attempted manslaughter, see Ark. Code Ann. 5-10-104, and because it amounted
to "a severe invasion of the student's personal security and autonomy," Wise v. Pea
Ridge Sch. Dist., 855 F.2d 560, 565 (8th Cir. 1988). We do not agree that Cooper's
behavior as alleged, though reprehensible, is sufficient to promote a claim otherwise
actionable under tort law to one of constitutional proportions. See Costello v.
Mitchell Pub. Sch. Dist. 79, 266 F.3d 916, 921 (8th Cir. 2001) (holding verbal abuse
by teacher of disabled student failed to raise fact issue "on whether his behavior was
sufficiently shocking to the conscience to state a substantive due process claim"); Doe
v. Gooden, 214 F.3d 952, 955 (8th Cir. 2000) ("Verbal abuse is normally not a
constitutional violation."). Wise is inapplicable because it deals exclusively with
corporeal punishment. 855 F.2d at 564-55.
Accordingly, we affirm.
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3
Moore has thus waived any objection to the district court's dismissal of her
§ 1983 claim based on a violation of Davis's right to procedural due process. See
Eagle Tech. v. Expander Americas, Inc., 783 F.3d 1131, 1138 n.2 (8th Cir. 2015).
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