Case 1:19-cv-20204-UU Document 14 Entered on FLSD Docket 03/01/2019 Page 1 of 13

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

CASE NO. 1:19-cv-20204-UU

JANE DOE, BY AND THROUGH HER MOTHER

AND NEXT FRIEND, MARY DOE,
Plaintiff,
vs.

THE SCHOOL BOARD OF MIAMI-DADE COUNTY, et. al.,

Defendants.
_____________________________________/

DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’

MOTION TO DISMISS

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I. Plaintiff’s Complaint Is An Improper Shotgun Pleading.

The Eleventh Circuit has condemned the incorporation of preceding paragraphs where a
complaint contains several counts leading to a situation where most of the counts contain
irrelevant factual allegations and legal conclusions. See Weiland v. Palm Beach Cnty. Sheriff’s
Office, 792 F.3d 1313 (11th Cir. 2015). The law is well settled in this Circuit that shotgun
pleadings do not comply with Federal Rule of Civil Procedure 8 and dismissal with leave to
amend is appropriate where such a pleading is filed. See e.g. Wallis v. Cueto Law Group, P.L.,
2017 WL 7796083, at *2 (S.D. Fla. 2017) (holding plaintiff is prohibited from incorporating all
of the general factual allegations into each subsequent claim for relief and dismissing case with
leave to amend); Kirchner v. Ocwen Loan Servicing, LLC, 2017 WL 7411027, at *12 (S.D. Fla.
2017)(dismissing case and instructing plaintiff to be clear in identifying which allegations apply
to each specific claim).
As set forth in Defendants‟ Motion to Dismiss, DE 12, Plaintiff lumps the claims against
both Defendants together in Counts IV through VII and fails to allege whether she has sued
Superintendent Carvalho in his official capacity, individual capacity, or both, 1 thereby,
warranting dismissal.
II. Plaintiff Has Not Stated A Valid Title IX Claim Against The School Board.
A. Plaintiff Fails To Sufficiently Allege That An Appropriate School Official
Had Actual Knowledge Of Discrimination, Harassment Or Retaliation2.
This issue here is simple – what did school officials know? Plaintiff alleges that the
school officials‟ investigation into her claims of sexual assault led them to conclude she was a
willing participant in the sexual acts carried out on school property by Plaintiff and her male
peers. Yet, Plaintiff seeks to persuade this Court that school officials knew (had actual
knowledge) of discrimination and retaliation against the Plaintiff, despite the fact that its
investigation into the Plaintiff‟s claims revealed she was a willing participant in the consensual
sexual acts. Plaintiff‟s argument is nonsensical and tenable at best. Plaintiff‟s Complaint fails to
allege sufficient facts from which this Court can conclude that appropriate school officials had
actual knowledge of discrimination, harassment or retaliation against the Plaintiff. Gebser v.
Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998)

1
Plaintiff notes that she seeks to amend her complaint to sue four additional employees of the
The School Board which would be wholly improper and in violation of the law in this Circuit
2
See also, infra, Section III.
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(discussing that the appropriate school official must have actual knowledge of discrimination).
Plaintiff‟s theory of actual knowledge of discrimination, harassment, or retaliation is not
supported by an allegation of “actual knowledge” by a specific appropriate school official. In
her Complaint, Plaintiff defines School Officials as Principal, Vice Principal, and Assistant
Principals. DE 1, ¶ 2. Yet, in her Response to the Motion to Dismiss, despite making a cursory
statement that Dunn, Morgan-Rose, and Gaines were given actual knowledge of the three sexual
assaults, DE 13 at ¶ 6, Plaintiff focuses her allegation pertaining to notice only on Assistant
Principal Gaines. DE 13 at 7. Plaintiff then asks this Court to infer that Assistant Principal
Gaines knew about both the original and amended statements given to the officer by the Plaintiff,
as well as a video,3 and therefore “actively participated in the attempt to coerce Jane to change
her statement to avoid the school‟s obligations under Title IX.” Id. In her Complaint, Plaintiff
fails to allege that Gaines was present when the statements were taken; that she asked Plaintiff to
change her statement; or that she expressly participated in a conspiracy to coerce Plaintiff. DE 1,
¶¶ 48-51. What the Plaintiff is actually asking this Court to do is apply constructive notice to
her claim of sexual assault. Drawing an attenuated inference to support actual notice is expressly
prohibited by Gebser. See 524 U.S. at 288 (“Most significantly, Title IX contains important
clues that Congress did not intend to allow recovery in damages where liability rests solely on
principles of vicarious liability or constructive notice.”).
This case is distinguishable from Hill v. Cundiff, 797 F.3d 948, 959-61, 971 (11th Cir.
2015). In Hill the court determined, on summary judgment, that school officials knew that the
perpetrator had accumulated a disciplinary history of violence and sexual misconduct, including
(1) unrecorded instances of sexual assault prior to the rape, (2) that the perpetrator propositioned
the victim, to have sex in bathroom before the rape, and that the victim reported this to the
Teacher Aide, and (3) the perpetrator inappropriately touched another female student. Thus,
based upon the accumulation of sexual misconduct by the perpetrator, the court held that school

3
Plaintiff further argues that because Gaines mentioned an alleged video to Plaintiff‟s mother
later in the day, this Court should infer that she participated in a conspiracy to coerce Plaintiff,
and consequently, had actual knowledge of discrimination, harassment, and retaliation against
her. Such factual allegations must be plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
556-57 (2007) (“Without more, parallel conduct does not suggest conspiracy, and a conclusory
allegation of agreement at some unidentified point does not supply facts adequate to show
illegality.”)

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officials had actual knowledge of discrimination and harassment against the victim. Coupled
with the principal‟s “catch in the act” requirement for disciplinary action to be administered
against the perpertrator, summary judgment could not be granted to the school board on the Title
IX allegations.
Unlike Hill, here, there is no allegation that any of the male students had ever bothered
Plaintiff (or any other student) before the incidents alleged or that the school administration
knew about same; there is no allegation that Plaintiff made reports of sexual harassment or
assault by the males in question, or any other peers, to school officials before the incidents; and
there is no allegation that the School Board or any other school official failed to investigate the
Plaintiff‟s claims of sexual misconduct once reported to school administration by her friend.
Simply put, there are no allegations contained within Plaintiff‟s Complaint that the School Board
itself or vis-à-vis an appropriate school official knew of any discrimination, harassment, or
retaliation against the Plaintiff, given that Plaintiff admitted she was a willing participant.
B. Plaintiff Does Not Sufficiently Allege That The School Board Was
Deliberately Indifferent Under Title IX.
Plaintiff‟s Complaint fails to allege sufficient facts from which this Court can conclude
that school officials acted with deliberate indifference under Title IX. The Plaintiff argues her
Title IX action should not be dismissed because school officials conducted a limited
investigation of Plaintiff‟s claims of sexual assault; thereby, exhibiting deliberate indifference.
To support her argument Plaintiff cites two distinguishable case, Doe v. Forest Hills Sch. Dist.,
2015 U.S. Dist. LEXIS 175321 (W.D. Mich. March 31, 2015) and Doe v. Sch. Admin. Dist. No.
19, 66 F. Supp. 2d 57, 64 (D. Me. 1999).
Unlike the school officials of Forest Hills Sch. Dist., and Sch. Admin. Dist. No. 19,
school officials in the instant matter acted promptly in investigating the Plaintiff‟s claims of
sexual assault once notified of same, including (1) interviewing the Plaintiff, (2) questioning the
alleged perpetrators, (3) notifying the Plaintiff‟s mother of Plaintiff‟s claims who arrived to the
school and did not express alarm or dissatisfaction, (4) interviewing the students who reported
the alleged sexual assault against the Plaintiff, (5) referring her to a school counselor, and (6)
following-up at her home to advise her to seek medical treatment for possible exposure to a
sexually-transmitted disease.
Further, the appropriate standard when determining whether school officials acted with
deliberate indifference is whether the response was “clearly unreasonable.” Stinson v.

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Montgomery Cty. Bd. of Educ., 2019 WL 456225 (M.D. Ala. 2019). The Stinson court explained
that “the standard for holding a school board liable under Title IX is „rigorous and hard to
meet.‟” Id. at *9-10. “Deliberate indifference demands more than mere negligence, and it
cautions courts against second-guessing the disciplinary decisions made by school
administrators. The test is exacting, rigorous, and hard to meet. In essence, deliberate
indifference amounts to an official decision by the [school board] not to remedy the violation.”
Id. at *11-12.The Stinson court noted that calling the police was enough to preclude liability. Id.
Additionally, there was no allegation that K.R.‟s attackers harassed other students. Id. at 12.
Like Stinson, here, school officials took reasonable measures to investigate Plaintiff‟s
claims of sexual assault and concluded that Plaintiff was a willing participant in the sexual acts
carried out with her male peers. Doe v. Emerson College, 271 F.Supp.3d 337, 354-356 (D. Mass.
2017) (quoting Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 174 (1st Cir. 2007), rev’d on
other grounds, 555 U.S. 246 (2009) that “Title IX does not guarantee that an investigation will
yield the outcome that a complainant desires. Nor does it require that all complainants be
deemed credible, simply because they are complainants. A school satisfies its obligations if it
engages in a reasonable process for investigating and addressing claims of sexual harassment …
Whether or not every decision Emerson made in the course of its investigation was correct is not
the appropriate focus of a Title IX claim. . . . Title IX does not require educational institutions to
take heroic measures, to perform flawless investigations, [or] to craft perfect solutions.”).
Additionally, unlike Doe ex rel. v. Derby Bd. Of Educ., 451 F. Supp. 2d 438, 447 (D.
Conn. 2006), the school officials in this case did not delay in investigating and responding to
Plaintiff‟s claims of sexual assault against her. Rather, Plaintiff‟s Complaint concedes that school
officials conducted an investigation of her claims of sexual assault. For these reasons it is clear
that Plaintiff has not alleged facts to support the theory that The School Board was deliberately
indifferent to known acts of harassment.
C. Plaintiff Does Not Allege That Action Or Inaction By The School Board
Effectively Barred Her From Educational Opportunity.
Plaintiff claims that she was subject to further discrimination because she was barred
from equal access to educational opportunities or benefits. However, the court in Stinson
addressed similar issues in that case. The school board there did not provide counseling and did
not discipline the three boys. Stinson, 2019 WL 456225 at *14. The court determined that the
school board‟s actions did not amount to deliberate indifference because the police found that

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K.R. had not been raped. Id. Similarly, in this case, Plaintiff admitted that she was a willing
participant in the sexual acts involving her male peers. Nonetheless, despite Plaintiff‟s admission
of consent to the sexual acts, the School Board, here, granted her a transfer to another public high
school, away from her male offenders, and thus Plaintiff was not barred from educational
opportunity or benefit.
III. Defendants Did Not Waive Any Argument Seeking Dismissal Of Plaintiff’s Title
IX Retaliation Claim.
Defendants have not waived their right to seek dismissal of Plaintiff‟s Title IX retaliation
claim, as Defendants arguments pertaining to same are included in Section II of its Motion to
Dismiss (styled as “PLAINTIFF HAS NOT STATED A VALID TITLE IX CLAIM AGAINST
THE SCHOOL BOARD (Counts I and II)”). In Plaintiff‟s Complaint, Count II (Title IX
Retaliation) “incorporates all preceding paragraphs,” ¶ 116, and repeats the factual allegations of
coercion by the school police officer that are contained under Count I (Title IX Deliberate
Indifference), ¶117. The same set of facts cannot be used to sustain both a Title IX
discrimination claim and a Title IX retaliation claim. See Ross v. Corp. of Mercer Univ., 506
F.Supp.2d 1325, 1361 (M.D. Ga. 2007) (granting summary judgment on a Title IX retaliation
claim and noting that “the Court does not believe the Supreme Court, when it announced its
holding in [Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005)], intended the same set of
facts to give rise to both a discrimination and a retaliation claim”); see also Wells v. Hense, 235
F.Supp.3d 1, 10 n.4 (D.D.C. 2017) ("One question is whether it is even possible for deliberately
harmful inaction in response to a report of sexual harassment is equal to an adverse action for
purposes of retaliation.").
Additionally, in support of her argument, Plaintiff cites Saphir v. Broward County Public
Schools, 744 F.App‟x 634, 639 (11th Cir. 2018. In Saphir, the parents of a student sued the
school board for alleged sexual harassment by an aide against the student. Id. at 637. The
plaintiffs claimed that in retaliation for reporting, two teachers (1) accused the student of lying
about the alleged sexual assault, (2) falsely accused the student of sexual misconduct with
another student, and (3) made threats on the student‟s life and physically accosted him. Id. at
640. The Eleventh Circuit granted summary judgment for the school district because there was
no allegation that retaliatory actions “were directed by or done with the approval of officials who
had the authority to act for the School Board.” Id. Here, Plaintiff is asking this Court to make the
attenuated inference that (unspecified) appropriate school officials with authority to act for the

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School Board participated in some conspiracy with the school police officer to coerce her to
change her statement “so as to relieve him and School Officials of the burden of having to
conduct a full investigation of Jane‟s claims and take proper disciplinary and rehabilitative
actions.” DE 1, ¶ 113(b). In light of the fact that the school police officer(s) and assistant
principal(s) interviewed the Plaintiff, questioning the alleged perpetrators, notified the Plaintiff‟s
mother, interviewed the students who reported the alleged sexual assault, referred the Plaintiff to
a school counselor, and followed up at her home, it is not a reasonable inference that they
coerced her in order to avoid doing their jobs. Additionally, the Plaintiff was admittedly
transferred to another public high school, away from her male offenders. Plaintiff‟s Complaint
fails to show a causal link between her reported harassment and adverse actions suffered by her.
Rather, the Complaint is replete with examples of reasonable measures taken to investigate
Plaintiff‟s claims and relocate her to a different school despite the fact that Plaintiff admitted she
was a willing participant in the sexual acts carried out on school property with her male peers.
IV. Plaintiff Fails To Plead A §1983 Claim.
The Plaintiff‟s claim for §1983 violations should be dismissed with prejudice as the Plaintiff
fails to allege sufficient facts that indicate a “pattern of incidents” that put the School Board on
notice of a need to train. See Popham v. City of Talladega, 908 F.2d 1561, 1564-65 (11th
Cir.1990) (finding no liability for failure to train when no pattern of incidents put the City on
notice of a need to train). The Plaintiff argues that she has properly stated a cause of action for
§1983 violations because she lists a variety of “failures” school officials committed in the
investigation of Plaintiff‟s claims of sexual assault. However, the Plaintiff misapplies the law
with respect to the School Board liability under §1983. Gold v. City of Miami, 151 F. 3d 1346,
1351 (11th Cir. 1998) has held that a municipality can only be liable for a failure to train if it is
put on notice of the need for improved training through proof of a prior similar incident of
constitutional violation or a pattern of incidents indicating a need to train. Gold further cited to
Brooks v. Scheib, 813 F.2d 1191, 1193 (11th Cir.1987), which held that, even though there had
been ten citizen complaints about police officer Scheib, the City did not have any notice of
complaints of past police misconduct that had any merit. Id.
Moreover, in Hill v. Cundiff, the Eleventh Circuit expressly held that a school district can
only be liable for deliberate indifference under Section 1983 if a municipal custom, policy or
practice caused the harassment. 797 F.3d at 977-978. In Hill, the Court affirmed summary

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judgment for the school board where the plaintiff failed to show how the school board‟s training
policies made it known or obvious that its employees would engage in a rape-bait operation. Id.
In other words, a municipal policy causes harassment when the policy itself makes it known or
obvious to the Board, not just more likely, that harassment will occur if employees follow it. In
the case at bar, the Plaintiff is alleging a failure by the School Board to train its employees on
responding to Title IX complaints, concluding that this deliberate indifference by the School
Board caused her injuries. DE 1, ¶¶ 120-126. DE 13, pp. 14-15. But Hill contrasted the type of
deliberate indifference alleged by Plaintiff, which is typical Title IX deliberate indifference, with
the type required to state a claim under Section 1983, such as in Hill. The examples Plaintiff
lists in support of her Section 1983 claim are exactly the opposite of what the Eleventh Circuit
held would give rise to such a claim. According to Hill, “[t]he Supreme Court has noted the
„deliberate indifference‟ standard under § 1983 is a „stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious consequence of his action‟” by way of a
custom, policy or practice. Id. at 977.
Here, the Plaintiff‟s Complaint fails to allege any facts which indicate that the School
Board‟s training policies (or lack thereof) made it known or obvious to the School Board that
Plaintiff would be injured by a constitutional violation. Accordingly, Plaintiff‟s claim for §1983
violations should be dismissed with prejudice.
V. Plaintiff Fails To Sufficiently Plead A Claim For Negligence
Defendants have not mischaracterized Plaintiff‟s negligence claim. Plaintiff argues that
her negligence claim is rooted in the “way that [Defendants] conducted the investigation” into
Plaintiff‟s claims of sexual assault. Defendants have properly stated that Plaintiff alleges
negligence for a breach of a duty of care owed to her by Defendants “in the manner that they
investigated” the reported incidents of sexual assault. Plaintiff fails to appreciate that the two are
one and the same.
Nevertheless, Plaintiff has failed to allege sufficient facts to support a finding of negligence
regarding the manner in which school officials conducted its investigation into Plaintiff‟s claims
of sexual assault. Rather, the Plaintiff‟s Complaint concedes that school officials acted promptly
in their investigation of the reported sexual assaults as school officials did not delay in
interviewing all individuals involved the very same day that the sexual assault was reported
including contacting the Plaintiff‟s mother and perpetrator‟s parents. Additionally, Plaintiff does

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not allege that she was subjected to further sexual assault or harassment after her friend reported
the initial three incidents to school officials and the investigation was conducted. Accordingly,
Count IV against Defendants should be dismissed with prejudice.
VI. Plaintiff’s Claim For Negligent Training Is Barred As It Challenges The
Adequacy Of Defendants Training.
Count V alleges that both Defendants were negligent in training various MDCPS
employees who investigated Plaintiff‟s allegations of sexual assault. The Defendants argue they
are entitled to immunity. The Eleventh Circuit has applied this exception in the context of
negligent training to hold that decisions concerning “how to train” employees and “what subject
matter to include in the training” are clearly exercises of governmental discretion and are
therefore protected by sovereign immunity. See e.g. Boggess v. Sch. Bd. of Sarasota County,
2008 WL 564641, at *6 (M.D. Fla. Feb. 29, 2008) citing Lewis v. City of St. Petersburg, 260
F.3d 1260, 1266 (11th Cir.2001). Defendants agree that claims of negligence in the
implementation of a training program are not afforded sovereign immunity. See Mercado v. City
of Orlando, 407 F.3d 1152, 1162 (11th Cir.2005).
Much like in the case of Boggess v. Sch. Bd. of Sarasota County, Plaintiff‟s allegations
clearly challenge the adequacy of the School Board‟s training program and decisions regarding
the content of its training program. Boggess v. Sch. Bd. of Sarasota County, 2008 WL 564641, at
*7. Consequently, the allegations of negligent training against the School Board and
Superintendent Carvalho in his official capacity are barred by sovereign immunity. If Plaintiff‟s
claim is intended to be against Superintendent Carvalho in his individual capacity, dismissal is
also appropriate because Florida Statutes Section 768.2(9)(a) bars negligence claims against
public employees for actions taken within the scope of their employment. Further, as there is no
specific individual conduct alleged on the part of Superintendent Carvalho that shows his
involvement in the alleged improper training.
VII. There Is No Basis For A Negligence Per Se Claim Against Defendants
Plaintiff clearly asserts a claim for negligence per se on the basis that Defendants did not
“immediately report the sexual assaults of Jane….” pursuant to Fla. Stat. § 39.201(1)(c). See DE
1 at ¶145. A violation of this statute does not expressly create a civil cause of action nor does a
violation of this statute create an implied cause of action for damages. See Hatfield v. Sch. Dist.
of Sarasota County, Florida, 2011 WL 13302419, at *3 (M.D. Fla. 2011). The statute does not

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create a cause of action against Superintendent Carvalho individually or in his official capacity.
Similarly, it does not create a separate cause of action against the School Board.
Yet, Plaintiff argues in Opposition that she can bring a claim under this statute simply
because Fla. Stat. § 768.28(9)(a) provides Plaintiff with a private right of action against
Defendants. As discussed in Defendants Motion and in this Reply, Fla. Stat.§ 768.28(9)(a) does
not provide a cause of action against Superintendent Carvalho in his official capacity where the
School Board is also sued and does not provide a cause of action against Superintendent
Carvalho individually unless it is alleged he acted in bad faith or with malicious purpose or in a
manner exhibiting wanton and willful disregard of human rights, safety, or property. With no
allegations of bad faith or malicious purpose against Superintendent Carvalho, Plaintiff‟s
negligence per se claim fails against him.
VIII. Counts IV To VI Should Be Dismissed As To Superintendent Carvalho Because
He Is Entitled To Statutory Immunity4
It is well settled that governmental employees acting within the scope of their employment
have immunity from suits for negligence. The Florida Supreme Court has interpreted Florida
Statue § 768.28(9)(a) to mean that when an individual state employee acts within the scope of his
or her employment, it is the employing agency - not the individual - who is liable. Envtl. Health
Testing, LLC v. Lake County Sch. Bd., 2011 WL 13295825, at *7 (M.D. Fla. 2011). On the other
hand, when an individual employee acts outside the scope of his or her employment, or acts with
bad faith or malicious purpose, it is the individual - not the employing agency - that is liable.
McGhee v. Volusia County, 679 So.2d 729, 730, 733 (Fla. 1996). Thus, “[i]n any given situation,
either the agency can be held liable under Florida law, or the employee, but not both.” Id. at 733.
Here, there are no allegations in the Complaint from which a reasonable jury could find that
Superintendent Carvalho acted in bad faith, maliciously, or with wanton and willful disregard of
Plaintiff‟s rights and safety. Plaintiff‟s Complaint fails to allege any allegations that are
sufficient to deduce that Superintendent Carvalho acted in bad faith or reckless such that he is
not entitled to immunity from her state law claims. Plaintiff‟s allegations of negligent conduct do

4
Defendants agree that the immunity defense pursuant to 42 U.S.C.A. § 1983 is inapplicable to
the claims brought against Superintendent Carvalho and that the immunity provided by Florida
Statute section 768.28(9)(A) applies to those claims. Since the standards are similar under both
statutes, i.e., whether Superintendent Carvalho acted in a clearly unreasonable manner versus for
a bad faith or malicious purpose, which would be clearly unreasonable, the argument is of no
consequence. Plaintiff‟s allegations meet neither standard.
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not rise to the level of willful, wanton and malicious conduct which would deprive
Superintendent Carvalho of the immunity that he is entitled to. Accordingly, dismissal is proper.
See e.g. Doe v. Sch. Bd. of Brevard County, 612CV921ORL36TBS, 2013 WL 12361024, at *4
(M.D. Fla. Mar. 7, 2013) (dismissing tort claims against principal and teachers of school board);
CAB v. St. Lucie County Sch. Bd., 2010 WL 11597188, at *7 (S.D. Fla. Apr. 16, 2010)(same).
IX. Punitive Damages Under Title IX (Counts I And II) Are Impermissible
Plaintiff seeks punitive damages5 against the School Board in connection with her Title IX
claims for Deliberate Indifference to Sexual Harassment and Retaliation. Plaintiff has provided
no case law in support of her argument that she is entitled to punitive damages in connection
with her Title IX claims or to refute the multiple cases cited by Defendants which stand for the
proposition that punitive damages are not available in private actions to enforce Title IX. Other
district courts in this Circuit have however addressed this issue finding that “punitive damages
are not available against a school district for violations of Title IX.” See e.g. Sadeghian v.
Univ. of S. Alabama, 2018 WL 7106981, at *20 (S.D. Ala. 2018), report and recommendation
adopted, 2019 WL 289818 (S.D. Ala. 2019)(granting motion to dismiss punitive damages claim
under title IX); Bullard v. DeKalb Cty. Sch. Dist., 2006 WL 8432670, *4 (N.D. Ga. 2006); see
also Biggs v. Edgecombe County Pub. Sch. Bd. of Educ., 2018 WL 4471742, at *9 (E.D.N.C.
Sept. 18, 2018)(dismissing plaintiffs' request to recover punitive damages from the Board.);
Hooper v. North Carolina, 379 F.Supp.2d 804, 811 (M.D.N.C. 2005) (holding that the plaintiff
“may not assert a claim for punitive damages under Title VI, Title VII or Title IX.”). As such,
Plaintiff‟s request for punitive damages should be stricken and/or dismissed from the Complaint
with prejudice.
WHEREFORE, Defendants request an Order: (1) dismissing Plaintiff‟s claims for punitive
damages with prejudice; (2)dismissing Plaintiff‟s Complaint as an improper shotgun pleading;
(3) dismissing Plaintiff‟s state law claims against Carvhalo based on his statutory immunity; (4)
dismissing Plaintiff‟s state law claims against Carvhalo as duplicative of the claims against the
School board; and (4) dismissing Plaintiff‟s claims under Title IX and §1983.
Dated: March 1, 2019

5
Plaintiff has voluntarily stricken her request for punitive damages as to Superintendent
Carvahlo and pertaining to all Counts except Count‟s I and II.
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Respectfully Submitted, Respectfully Submitted,

Walter J. Harvey HAMILTON, MILLER & BIRTHISEL
School Board Attorney Attorneys for Defendants
The School Board of Miami-Dade 150 SE 2nd Avenue, Suite 1200
County, Florida Miami, Florida 33131
1450 NE 2nd Avenue, Suite 430 Telephone: (305) 379-3686
Miami, Florida 33132 Facsimile: (305) 373-2294

/s/ Mary C. Lawson /s/ Schuyler A. Smith

MARY C. LAWSON, ESQ. SCHUYLER A. SMITH, ESQ.
Assistant School Board Attorney FBN: 70710
FBN: 584223 E-mail: ssmith@hamiltonmillerlaw.com
E-mail: mlawson@dadeschools.net Patricia Concepcion
E-mail: pconcepcion@hamiltonmillerlaw.com
Counsel for Defendants School Board and FBN: 109058
Superintendent Alberto CarvalhoCarvalho
Co-Counsel for Defendants School Board and
Superintendent Alberto CarvalhoCarvalho

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 1, 2019 the foregoing was electronically filed with the
Clerk of Court via CM/ECF system, which will send a notice of electronic filing to the counsel of
record on the service list below.
/s/ Schuyler A. Smith
Schuyler A. Smith, Esq.

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SERVICE LIST

LEWIS F. MURPHY, ESQUIRE ALLISON L. HERTOG, ESQUIRE

STROOCK & STROOCK & LAVAN, LLP
200 S. Biscayne Blvd., Suite 3100
Miami, FL 33133
(305) 789-9300
lmurphy@stroock.com
jsammataro@stroock.com
crodriguez@stroock.com
Attorney for Ms. Doe
MAKING SCHOOL WORK, P.L.
1550 Madruga Avenue, Suite 333
Miami, FL 33146
(305) 663-9233
Allison@makingschoolwork.com
Attorney for Ms. Doe

ALICE K. NELSON, ESQUIRE EMILY MARTIN

NELSON LAW GROUP NEENA CHAUDHRY
14043 Shady Shores Drive SHIWALI PATEL
Tampa, FL 33613 ELIZABETH TANG
(813) 254-5517 NATIONAL WOMEN‟S LAW CENTER
alice@nelsonlg.com 11 Dupont Circle, Suite 800
Attorney for Ms. Doe Washington, D.C. 20036
(202) 588-5180
emartin@nwlc.org
nchaudhry@nwlc.org
spatel@nwlc.org
etang@nwlc.org
Attorney for Ms. Doe

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