3:13-cv JFA Date Filed 04/04/13 Entry Number 4 Page 1 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

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1 3:13-cv JFA Date Filed 04/04/13 Entry Number 4 Page 1 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION Charles Smith, individually and as Parent of Minor Doe, a minor under the age of fourteen, vs. Plaintiffs, Sumter School District, Ms. Maria Newton-Ta-Bon, Jeffrey Barrineau, and Dr. Gregory Jones, Defendants. C.A. No. 3:13-cv JFA DEFENDANTS' ANSWER AND AFFIRMATIVE DEFENSES Defendants, Sumter School District ("District", Maria Newton-Ta-Bon, Jeffrey Barrineau, and Dr. Gregory Jones, by and through their undersigned counsel, hereby respond to the Plaintiff's complaint in accordance with the numbered paragraphs thereof, as follows: 1. Admitted on information and belief. 2. Denied as stated. Defendants admit only that the Plaintiffs purport to bring this action in the name of Charles Smith and his minor child, identified as "Minor Doe" in the complaint. 3. Denied as stated. Defendants admit only that the Sumter School District is a political subdivision of the State of South Carolina and that it operates the public schools in Sumter County, South Carolina. 4. Denied as stated. Defendants admit only that Maria Newton-Ta-Bon is a resident and citizen of Sumter County, South Carolina, that at the times relevant to the complaint she served as the Principal of Furman Middle School, and that Furman Middle School is part of the Sumter School District.

2 3:13-cv JFA Date Filed 04/04/13 Entry Number 4 Page 2 of Denied as stated. Defendants admit only that Jeffrey Barrineau is a resident and citizen of Sumter County, South Carolina, that at the times relevant to the complaint he served as an Assistant Principal of Furman Middle School, and that Furman Middle School is part of the Sumter School District. 6. Denied as stated. Defendants admit only that Gregory Jones is a resident and citizen of Sumter County, South Carolina, that at the times relevant to the complaint he served as an Assistant Principal of Furman Middle School, and that Furman Middle School is part of the Sumter School District. 7. Admitted. 8. Denied as stated. Defendants admit only that the Plaintiffs attempt to bring this action under the laws cited in the complaint. 9. Denied as stated; the school dress code speaks for itself, and Defendants incorporate by reference the dress code as the best source of information concerning its contents. 10. Denied as stated; the school's disciplinary rules and the dress code speak for themselves, and Defendants incorporate by reference the disciplinary rules and the dress code as the best source of information concerning their contents. 11. Denied as stated. Defendants admit only that the dress code can vary among the different schools in the District based on the unique circumstances and needs of each school, and that school administrators are granted some limited discretion in the adoption and enforcement of their school dress codes. 12. Denied as stated. Defendants admit only that prior to December 4, 2012, Principal Newton-Ta-Bon informed the minor Plaintiff that his jacket/pull-over violated the school dress code and that he should not wear it to school. 13. Denied for lack of knowledge. 14. Denied as stated. Defendants admit only that on or about December 4, 2012, the 2

3 3:13-cv JFA Date Filed 04/04/13 Entry Number 4 Page 3 of 15 minor Plaintiff again wore the jacket that he had been instructed not to wear to school, that the minor Plaintiff refused to remove the jacket when he was again advised that he was violating the school dress code, and that the school administration appropriately disciplined the minor Plaintiff for his refusal to comply with the administration's instructions regarding his dress code violation. 15. Denied for lack of knowledge. 16. Denied as stated. Defendants admit only that Plaintiff Charles Smith and his son went to the District office on or about December 5, 2012 to discuss the dress code issues, that Dr. Henrietta Green, Student Support Services Officer, met with the Plaintiffs to discuss their concerns, that Ms. Green agreed to look into the matter, and that she completed a Conference and Action Form related to the meeting. 17. Denied as stated. Defendants admit only that Plaintiff Charles Smith returned to the District office to meet with Cornelius Leach, Executive Director of Schools, to discuss the dress code issues, and that they spoke about scheduling a meeting with Principal Newton-Ta- Bon. 18. Denied as stated. Defendants admit only that, due to a scheduling conflict, Principal Newton-Ta-Bon could not meet with Plaintiff Charles Smith on the morning of December 6, 2012 and that she communicated to him that she would need to schedule the meeting at another time. 19. Denied as stated. Defendants admit only that on December 6, 2012, Plaintiff Charles Smith went to Furman Middle School and began distributing an unsigned written petition to other people at the school requesting that Principal Newton-Ta-Bon be dismissed and removed from her position as the Principal of the school, that Mr. Smith was causing a disturbance at the school, and that he was instructed to stop handing out the petitions. 20. Denied as stated. Defendants admit only that school staff attempted to schedule a meeting with Mr. Smith to discuss his concerns and that Mr. Smith refused to schedule the 3

4 3:13-cv JFA Date Filed 04/04/13 Entry Number 4 Page 4 of 15 meeting. 21. Denied. 22. Denied. 23. Denied as stated. Defendants admit only that due to the disruptions Mr. Smith caused at the school, District Superintendent Randolph Bynum sent a letter to Mr. Smith directing that he should not return to Furman Middle School without the prior approval of the school principal. 24. Denied as stated. Defendants admit only that school staff contacted law enforcement based on legitimate and reasonable concerns related to disruptions Mr. Smith had caused at the school. 25. Denied. 26. Denied as stated. Defendants admit only that due to the disruptions Mr. Smith caused at the school, District Superintendent Randolph Bynum sent a letter to Mr. Smith directing that he should not return to Furman Middle School without the prior approval of the school principal. 27. Denied. 28. Denied for lack of knowledge. 29. Denied for lack of knowledge. 30. Denied. 31. Denied as stated. Defendants admit only that school staff disciplined the minor Plaintiff for eating candy on the school bus in violation of the rules and that Mr. Smith stated that he planned to withdraw his son from the school. 32. Denied as stated. Defendants admit only that school personnel granted Mr. Smith permission to drive onto school property to pick up his son. 33. Denied as stated. Defendants admit only that the minor Plaintiff's mother came to 4

5 3:13-cv JFA Date Filed 04/04/13 Entry Number 4 Page 5 of 15 the school to pick up his school records and that the records were provided to her. 34. Denied as stated. Defendants admit only that Mr. Smith went to the District office and met with Cassandra Dixon, Chief of Schools, to discuss his child's discipline records. 35. Denied. 36. Defendants incorporate by reference their responses to paragraphs 1-35 above. 37. Denied as stated. Defendants admit only that Plaintiffs purport to bring this action pursuant to the South Carolina Tort Claims Act, which provides the exclusive tort remedy against the Defendants, but deny that Plaintiffs are entitled to any recovery or relief. 38. Denied. 39. Denied as stated. Defendants admit only that the District employed the individual Defendants as administrators assigned to Furman Middle School at the times relevant to this action. 40. Denied as stated. Defendants admit only that the Sumter School District is a political subdivision of the State of South Carolina and that it operates the public schools in Sumter County, South Carolina. 41. Denied. 42. Denied as stated. Defendants admit only that the District employed the individual Defendants as administrators assigned to Furman Middle School at the times relevant to this action. 43. Denied. 44. Defendants incorporate by reference their responses to paragraphs 1-43 above. 45. Denied. 46. Denied. 47. Denied. 48. Defendants incorporate by reference their responses to paragraphs 1-47 above. 5

6 3:13-cv JFA Date Filed 04/04/13 Entry Number 4 Page 6 of Denied as stated. The South Carolina Tort Claims Act speaks for itself, and Defendants refer to the statute as the best source of information concerning its contents. 50. Denied as stated. The District's authority and duties are defined by South Carolina and federal law, and Defendants refer to the applicable laws as the best source of information concerning those duties. 51. Denied. 52. Denied. 53. Denied as stated. The District's authority and duties are defined by South Carolina and federal law, and Defendants refer to the applicable laws as the best source of information concerning those duties. 54. Denied. 55. Denied. 56. Denied. 57. Defendants incorporate by reference their responses to paragraphs 1-56 above. 58. Denied. 59. Denied. 60. Denied. 61. Denied. 62. Denied. 63. Defendants incorporate by reference their responses to paragraphs 1-62 above. 64. Denied as stated. The District's authority and duties are defined by South Carolina and federal law, and Defendants refer to the applicable laws as the best source of information concerning those duties. 65. Denied. 66. Denied. 6

7 3:13-cv JFA Date Filed 04/04/13 Entry Number 4 Page 7 of Denied. 68. Denied. 69. Denied. 70. Denied. 71. Defendants incorporate by reference their responses to paragraphs 1-70 above. 72. Denied. 73. Denied. 74. Denied. 75. Denied. 76. Denied. 77. Denied. 78. (Incorrectly numbered 71 in complaint. Defendants incorporate by reference their responses to paragraphs 1-77 above. 79. (Incorrectly numbered 72 in complaint. Denied. 80. (Incorrectly numbered 73 in complaint. Denied. 81. (Incorrectly numbered 74 in complaint. Denied. 82. (Incorrectly numbered 75 in complaint. Defendants incorporate by reference their responses to paragraphs 1-81 above. 83. (Incorrectly numbered 76 in complaint. Denied as stated. Defendants admit only that the District is funded in part by tax revenue collected by the State of South Carolina and Sumter County, that it has adopted an appropriate dress code, and that the dress codes may vary among the schools based on the unique circumstances and needs of each school. 84. (Incorrectly numbered 77 in complaint. Denied as stated. Defendants admit only that there is a dress code applicable to Furman Middle School and that each student is provided a copy of school rules and regulations every year. 7

8 3:13-cv JFA Date Filed 04/04/13 Entry Number 4 Page 8 of (Incorrectly numbered 78 in complaint. Denied. 86. (Incorrectly numbered 79 in complaint.. Denied. 87. (Incorrectly numbered 80 in complaint.. Denied. 88. (Incorrectly numbered 81 in complaint. Denied. 89. (Incorrectly numbered 82 in complaint. Denied. 90. (Incorrectly numbered 83 in complaint. Defendants incorporate by reference their responses to paragraphs 1-89 above. 91. (Incorrectly numbered 84 in complaint. Denied. 92. (Incorrectly numbered 85 in complaint. Denied as stated. The District's authority and duties are defined by South Carolina and federal law, and Defendants refer to the applicable laws as the best source of information concerning those duties. 93. (Incorrectly numbered 86 in complaint. Denied. 94. (Incorrectly numbered 87 in complaint. Denied. 95. (Incorrectly numbered 88 in complaint. Denied. 96. (Incorrectly numbered 89 in complaint. Denied. 97. (Incorrectly numbered 90 in complaint. Denied. 98. (Incorrectly numbered 91 in complaint. Denied. 99. (Incorrectly numbered 92 in complaint. Defendants incorporate by reference their responses to paragraphs 1-98 above (Incorrectly numbered 92 in complaint. Denied for lack of knowledge as to the first sentence. As to the second sentence, the District's authority and duties are defined by South Carolina and federal law, and Defendants refer to the applicable laws as the best source of information concerning those duties (Incorrectly numbered 93 in complaint. Denied (Incorrectly numbered 94 in complaint. Denied. 8

9 3:13-cv JFA Date Filed 04/04/13 Entry Number 4 Page 9 of (Incorrectly numbered 95 in complaint. Denied (Incorrectly numbered 96 in complaint. Denied (Incorrectly numbered 97 in complaint. Denied Defendants deny that Plaintiffs are entitled to the relief requested in the complaint or any other recovery whatsoever Defendants deny each and every allegation of the complaint except those allegations expressly admitted herein. FIRST AFFIRMATIVE DEFENSE To the extent that Plaintiffs' complaint fails to state a claim upon which relief can be granted, it should be dismissed pursuant to Rule 12(b(6, FRCP. SECOND AFFIRMATIVE DEFENSE To the extent that Plaintiffs seek recovery from the District for conduct outside the scope of official duties or which constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude, Plaintiffs' claims are barred by the immunities set forth in the South Carolina Tort Claims Act. THIRD AFFIRMATIVE DEFENSE Defendants are immune from liability because the Plaintiffs' alleged loss, if any, resulted from the exercise of discretion or judgment by the governmental entity or employee or the performance or failure to perform any act or service which is in the discretion or judgment of the governmental entity or employee. FOURTH AFFIRMATIVE DEFENSE Defendants are immune from liability under the South Carolina Tort Claims Act to the extent that Plaintiffs' alleged loss, if any, resulted from an act or omission of a third person other than an employee of the District. FIFTH AFFIRMATIVE DEFENSE 9

10 3:13-cv JFA Date Filed 04/04/13 Entry Number 4 Page 10 of 15 Defendants are immune from liability under the South Carolina Tort Claims Act because Plaintiffs' alleged loss, if any, resulted from the institution or prosecution of any judicial or administrative proceeding. SIXTH AFFIRMATIVE DEFENSE Defendants are immune from liability under the South Carolina Tort Claims Act because Plaintiffs' alleged loss, if any, resulted from Defendants' responsibility or duty including supervision, custody, and control of a student, and Defendants did not exercise this responsibility or duty in a grossly negligent manner. SEVENTH AFFIRMATIVE DEFENSE Defendants are immune from liability under the South Carolina Tort Claims Act because Plaintiffs' alleged loss, if any, resulted from the adoption, enforcement, or compliance with any law, rule, regulation, or written policy, or the alleged failure to adopt, enforce, or comply with a law, rule, regulation, or written policy. EIGHTH AFFIRMATIVE DEFENSE Defendants are immune from liability under the South Carolina Tort Claims Act because Plaintiffs' alleged loss, if any, resulted from: a legislative, judicial, or quasi-judicial action or inaction; or b administrative action or inaction of a legislative, judicial, or quasi-judicial nature. NINTH AFFIRMATIVE DEFENSE Defendants at all times acted in good faith, on reasonable grounds, and without malice or intent to harm. TENTH AFFIRMATIVE DEFENSE Defendants are not liable to the extent that any actions taken during the investigation and handling of these incidents occurred under the direction, control, and authority of law enforcement officers, over whom these Defendants had no control or authority. ELEVENTH AFFIRMATIVE DEFENSE 10

11 3:13-cv JFA Date Filed 04/04/13 Entry Number 4 Page 11 of 15 To the extent that Plaintiffs seek recovery for the intentional infliction of emotional distress, Plaintiffs' claim must fail because the South Carolina Tort Claims Act expressly prohibits recovery for such a claim. TWELFTH AFFIRMATIVE DEFENSE Plaintiffs' complaint fails to state a claim for punitive damages against Defendants because the South Carolina Tort Claims Act precludes the recovery of exemplary damages. THIRTEENTH AFFIRMATIVE DEFENSE An award of punitive damages would violate the Defendants' rights to due process and equal protection under the Constitution of the United States and South Carolina law. FOURTEENTH AFFIRMATIVE DEFENSE Defendants engaged in good faith efforts to comply with all applicable federal and state laws. Moreover, the conduct complained of by Plaintiffs, if performed or carried out, was performed or carried out in good faith based upon reasonable grounds for believing that such conduct was not in violation of any applicable laws. Therefore, any claim by Plaintiffs for punitive damages is barred. FIFTEENTH AFFIRMATIVE DEFENSE Defendants have not acted with reckless or callous indifference to a federally protected right of Plaintiffs, and therefore, Plaintiffs are not entitled to punitive damages. SIXTEENTH AFFIRMATIVE DEFENSE Defendants are not liable because the Plaintiffs were negligent, grossly negligent, and reckless, and such negligence, gross negligence, and recklessness on their part caused or contributed to the matters complained of in the complaint, and exceeded any alleged gross negligence of Defendants. Assuming without admitting that Defendants were grossly negligent, Plaintiffs' recovery must be reduced in proportion to their contributory negligence, gross negligence, and recklessness. 11

12 3:13-cv JFA Date Filed 04/04/13 Entry Number 4 Page 12 of 15 SEVENTEENTH AFFIRMATIVE DEFENSE Defendants are not liable because the Plaintiffs voluntarily engaged in their activities and, therefore, consented to any alleged injuries. EIGHTEENTH AFFIRMATIVE DEFENSE Defendants are not liable to the extent that Plaintiffs' alleged loss, if any, resulted from the intervening negligence of a third party not employed by the District. NINETEENTH AFFIRMATIVE DEFENSE Defendants are not liable because the Plaintiffs voluntarily assumed the risk of any and all injuries they may have sustained. TWENTIETH AFFIRMATIVE DEFENSE Defendants plead as a further bar and limitation on this action each and every provision of the South Carolina Tort Claims Act, including its limitations on damages and its exceptions to the waiver of sovereign immunity. TWENTY-FIRST AFFIRMATIVE DEFENSE Any recovery allegedly due to Plaintiffs, which is denied, is limited to no more than the amount of damages set forth as recoverable under the Tort Claims Act. TWENTY-SECOND AFFIRMATIVE DEFENSE To the extent that Plaintiffs have failed to mitigate their damages, they are precluded from recovery. TWENTY-THIRD AFFIRMATIVE DEFENSE Plaintiff's prayer for an award of attorney's fees must fail and should be stricken from the complaint because there is no basis for such an award. TWENTY-FOURTH AFFIRMATIVE DEFENSE Defendants are immune from liability under the South Carolina Tort Claims Act to the extent that the Plaintiffs' alleged loss, if any, resulted from the lawful execution, enforcement, or 12

13 3:13-cv JFA Date Filed 04/04/13 Entry Number 4 Page 13 of 15 implementation of the orders of any court or the execution, enforcement, or lawful implementation of any process. TWENTY-FIFTH AFFIRMATIVE DEFENSE Plaintiff's request for joint and several liability is improper and must fail because the South Carolina Tort Claims Act precludes the imposition of such liability. TWENTY-SIXTH AFFIRMATIVE DEFENSE Plaintiffs' claims are barred in whole or in part to the extent that they have failed to exhaust all administrative remedies. TWENTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred by the doctrines of estoppel and waiver. TWENTY-EIGHTH AFFIRMATIVE DEFENSE Defendants Maria Newton-Ta-Bon, Jeffrey Barrineau, and Dr. Gregory Jones are immune from suit under Section (a of the South Carolina Tort Claims Act, except as so limited by Section (b. TWENTY-NINTH AFFIRMATIVE DEFENSE The District cannot be held liable for violations under 42 U.S.C or for alleged violations of the United States Constitution under theories of respondeat superior or vicarious liability. THIRTIETH AFFIRMATIVE DEFENSE With regard to Plaintiffs' claims for alleged violations of the United States Constitution, Defendants are not liable to the extent that no official policy or custom of Defendants played any part in the alleged violations. THIRTY-FIRST AFFIRMATIVE DEFENSE With regard to Plaintiffs' federal claims, Defendants Maria Newton-Ta-Bon, Jeffrey Barrineau, and Dr. Gregory Jones are entitled to qualified immunity from suit and/or liability. 13

14 3:13-cv JFA Date Filed 04/04/13 Entry Number 4 Page 14 of 15 THIRTY-SECOND AFFIRMATIVE DEFENSE Defendants did not violate any clearly established federal rights of Plaintiffs. THIRTY-THIRD AFFIRMATIVE DEFENSE To the extent that Plaintiffs challenge a suspension or other disciplinary decision of the Defendants, Plaintiffs' claims must fail because they should not be allowed to circumvent the statutory process in South Carolina for seeking review, if available, of such disciplinary decisions. THIRTY-FOURTH AFFIRMATIVE DEFENSE To the extent that any restraint of the minor Plaintiff was lawful, it cannot give rise to liability on the part of Defendants. THIRTY-FIFTH AFFIRMATIVE DEFENSE To the extent that Plaintiffs allege intentional tort claims against the District, these causes of action are precluded by the South Carolina Tort Claims Act. THIRTY-SIXTH AFFIRMATIVE DEFENSE With regard to the civil conspiracy claim, Plaintiffs have merely re-alleged prior acts contained in another cause of action, and the failure to plead additional acts in furtherance of the alleged conspiracy precludes this cause of action for civil conspiracy. THIRTY-SEVENTH AFFIRMATIVE DEFENSE With regard to Plaintiffs' civil conspiracy claim, Plaintiffs have failed to allege special damages that are separate and distinct from damages alleged for other causes of action and, as a result, this cause of action must fail. THIRTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiffs are barred from recovery for civil conspiracy because they have alleged that Defendants were acting in their official capacities at all times the alleged conspiracy occurred. WHEREFORE, having fully answered Plaintiffs' complaint, and also having set forth 14

15 3:13-cv JFA Date Filed 04/04/13 Entry Number 4 Page 15 of 15 their affirmative defenses, Defendants respectfully pray that the Court dismiss Plaintiffs' complaint with prejudice and award them their costs and any other relief as permitted by law. Respectfully submitted, CHILDS & HALLIGAN, P.A. By: s/ Allen D. Smith Allen D. Smith, Fed. I.D. No asmith@childs-halligan.net Dwayne T. Mazyck, Fed. I.D. No dmazyck@childs-halligan.net P.O. Box Columbia, South Carolina ( Attorneys for Defendants April 4, 2013 Columbia, South Carolina 15