UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1448
TELETHIA BARRETT; G. B.,
Plaintiffs - Appellants,
v.
BOARD OF EDUCATION OF JOHNSTON COUNTY, NC; DR. EDWARD CROOM;
SHELLY MARSH; KEITH BEAMON; CHRIS GODWIN; ROBIN HERRIDGE;
JANET LEBO; LINDA EDMUNDSON; CHRISTY TURNER; SHELLEY
SIEGERT; ANNA GARDNER,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:13-cv-00668-BO)
Submitted: October 28, 2014 Decided: November 6, 2014
Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Robert C. Ekstrand, Stefanie A. Smith, EKSTRAND & EKSTRAND LLP,
Durham, North Carolina, for Appellants. Jill R. Wilson, Robert
J. King, III, Julia C. Ambrose, BROOKS, PIERCE, MCCLENDON,
HUMPHREY & LEONARD, LLP, Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Telethia Barrett, and her minor daughter, G.B., appeal
the district court’s judgment granting the Appellees’ motions to
dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure for failing to state a claim. We affirm.
We review de novo a district court’s order granting a
motion to dismiss for failing to state a claim. Waugh Chapel
S., LLC v. United Food & Commercial Workers Union, 728 F.3d 354,
361 (4th Cir. 2013). The facts in the complaint are viewed in
the light most favorable to the plaintiffs. McCauley v. Home
Loan Inv. Bank, F.S.B., 710 F.3d 551, 554 (4th Cir. 2013).
However, we need not accept the plaintiffs’ legal conclusions
regarding those facts. Id. The plaintiffs’ factual allegations
“must be enough to raise a right to relief above the speculative
level, thereby nudging its claims across the line from
conceivable to plausible.” Vitol, S.A. v. Primerose Shipping
Co., 708 F.3d 527, 543 (4th Cir. 2013) (internal quotation marks
and alterations omitted). In other words, the plaintiffs must
demonstrate “more than ‘a sheer possibility that a defendant has
acted unlawfully.’” Francis v. Giacomelli, 588 F.3d 186, 193
(4th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). The plaintiffs must “articulate facts, when accepted
as true, that show that the plaintiff[s have] stated a claim
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entitling [them] to relief.” Id. (internal quotation marks
omitted and alterations added).
The Board, for purposes of a civil rights lawsuit
under § 1983, is indistinguishable from a municipality.
Riddick v. Sch. Bd. of City of Portsmouth, 238 F.3d 518, 522 n.3
(4th Cir. 2000). The Board cannot be liable simply for
employing a tortfeasor. Id. at 522. As there is no respondeat
superior liability under § 1983, Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 691 (1978), “[t]o hold a municipality (a local
government entity) liable for a constitutional violation under
§ 1983, the plaintiff must show that the execution of a policy
or custom of the municipality caused the violation.” Love-
Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004). “Municipal
policy may be found in written ordinances and regulations, in
certain affirmative decisions of individual policymaking
officials, or in certain omissions on the part of policymaking
officials that manifest deliberate indifference to the rights of
citizens.” Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999)
(citations omitted). Outside of formal decisionmaking channels,
a “municipal custom may arise if a practice is so persistent and
widespread and so permanent and well settled as to constitute a
custom or usage with the force of law.” Id. (internal quotation
marks omitted). The Board may also be liable if the alleged
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violation was caused by an individual’s official actions that
may be found to represent the Board’s official policy. Riddick,
238 F.3d at 522-23. But the individual must possess final
authority to establish municipal policy with respect to the
action ordered. Id. at 523.
We conclude that the Appellants’ claims against the
Board of Education of Johnson County, North Carolina (“Board”),
fail because the Appellants failed to make sufficient factual
allegations that move the claims from conceivable to plausible.
There were no factual allegations showing that the Board had a
policy, custom, or practice that led to the alleged violations.
The Appellants merely expressed a belief or an opinion without
any supporting factual allegations. The Appellants also failed
to identify with factual allegations that any of individual
defendants had final authority to establish municipal policy
with respect to the actions ordered. For the same reason, the
Appellants failed to show that the Board engaged in deliberate
indifference to their rights or that it had a persistent and
widespread practice that led to the alleged violations. *
*
Assuming, arguendo, that the Appellants brought a stand-
alone claim under 42 U.S.C. § 2000d (2012), we conclude that
they failed to state a claim.
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Regarding the individual defendants, while the
district court found that they were entitled to qualified
immunity, we affirm based on our conclusion that the Appellants
failed to plead sufficient facts showing that the individual
defendants violated the Appellants’ rights. We may affirm for
any reason appearing on the record. Republican Party of N.C. v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992). The Appellants
failed to identify who allegedly excluded G.B. from the Board’s
programs, and who was responsible for the alleged abuse. In the
complaint, the Appellants failed to allege which defendant was
responsible for which violation, sometimes pleading that all the
defendants were responsible. This global manner of pleading
made the claims at issue less plausible because some of the
individual defendants had no reason to have known or interacted
with the Appellants at the time of the alleged violations.
Regarding the direct claim brought under North
Carolina’s constitution, we affirm for the reasons cited by the
district court. See, e.g., Edwards v. City of Concord, 827 F.
Supp. 2d 517 (M.D.N.C. 2011) (plaintiff’s state law claim that
defendant in his individual capacity committed an intentional
tort was an adequate remedy). Because no claims survived the
Appellees’ motions to dismiss, the court properly dismissed the
claim for punitive damages.
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Accordingly, we affirm. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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