OPINION AND ORDER
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE
Plaintiffs
Morgan Roe, a minor, and his father John Doe allege that a
District of Columbia public school teacher sexually abused
Roe and the District failed to respond appropriately.
Plaintiffs have renewed their motion to file a second amended
complaint which adds several new defendants, tort claims, and
factual allegations. For the reasons that follow, the Court
grants plaintiffs' motion in part and denies it in part.
I.
Background
Plaintiffs
filed this action on January 26, 2018, against the District
of Columbia, District of Columbia Public Schools
(“DCPS”), former DCPS chancellor Antwan Wilson in
his official capacity, and former DCPS teacher Reginald
Wilson. See Compl. [ECF No. 1]. Plaintiffs alleged
that Reginald Wilson, Roe's second grade math teacher at
the time, sexually harassed and eventually sexually assaulted
Roe, id. ¶ 2, and that school officials failed
to respond appropriately to Doe's reports of concern,
id. ¶¶ 4-7.
There
is no need to rehash in full detail plaintiffs' efforts
to file a second amended complaint. In short, soon after
filing an amended complaint [ECF No. 18], which added new
defendants and factual allegations, plaintiffs sought leave
to file a second amended complaint [ECF No. 19]. After
plaintiffs filed a notice of intent to file yet another
complaint [ECF No. 24], the Court instructed plaintiffs to
file a renewed motion for leave to file a second amended
complaint. See April 12, 2018 Minute Order.
Plaintiffs did so, [ECF No. 31], but soon sought to file tort
claims against the District of Columbia as well, [ECF Nos. 41
& 42]. The Court held a status conference on June 5,
2018, to discuss the several motions related to
plaintiffs' efforts to file a second amended complaint
and directed plaintiffs to submit another renewed motion for
leave. See June 5, 2018 Minute Order. Before the
Court now is plaintiffs' operative renewed motion for
leave to file a second amended complaint [ECF No. 44].
II.
Legal Standards
Federal
Rule of Civil Procedure 15 gives courts discretion whether to
grant leave to amend a pleading. Fed.R.Civ.P. 15(a).
“Leave to amend a complaint should be freely given in
the absence of undue delay, bad faith, undue prejudice to the
opposing party, repeated failures to cure deficiencies, or
futility.” Richardson v. United States, 193
F.3d 545, 548-49 (D.C. Cir. 1999). A proposed amended
complaint is futile when it would not survive a motion to
dismiss; determining whether a proposed amended complaint
would survive a motion to dismiss is equivalent to review
under such motion. See In re Interbank Funding Corp. Sec.
Litig., 629 F.3d 213, 215-16 (D.C. Cir. 2010) (citations
omitted). The party opposing amendment bears the burden of
showing why leave to file an amended pleading should not be
granted. Smith v. Café Asia, 598 F.Supp.2d
45, 48 (D.D.C. 2009).
III.
Analysis
A.
Plaintiffs' § 1983 claim
In
Count I, plaintiffs allege that all defendants[1] are liable for
Fifth Amendment violations under 42 U.S.C. § 1983 based
on the District of Columbia's purported custom, policy,
or practice of failing to respond appropriately to
allegations of sexual misconduct. Plaintiffs seek to
elaborate on some of the allegations supporting this claim.
See, e.g., Proposed Second Amended Complaint
(“Prop. Second Am. Compl.”) [ECF No. 44-3]
¶¶ 208-09, 221-26. The Court grants leave to do so
with respect to almost all additions because “factual
allegations [that] merely fine-tune the basis for the
relief” and “clarify but do not reshape the
action[] are rarely a bad thing” and “certainly
do[] not provide a basis for denying leave to amend.”
Council on Am.-Islamic Relations Action Network, Inc. v.
Gaubatz, 793 F.Supp.2d 311, 324 (D.D.C. 2011).
One
paragraph, however, does not belong. Plaintiffs are
instructed to remove reference to the District of
Columbia's statutory notice requirement, D.C. Code §
12-309, because that requirement is irrelevant to their
constitutional claims at issue in Count I. As the Court will
discuss in more detail below, however, section 12-309 is
relevant to, and indeed bars, plaintiffs' tort claims
against the District.
B.
Plaintiffs' Title IX claim
In
Count II, plaintiffs allege a violation of Title IX of the
Education Amendments Act of 1972, 20 U.S.C. § 1681,
based on the District of Columbia's failure to screen
teachers and train employees to prevent and report sexual
misconduct. Plaintiffs seek to replace previously named
defendants District of Columbia Public Schools and Antwan
Wilson with Kaya Henderson. However, plaintiffs have conceded
that Henderson is not a proper defendant. Accordingly,
plaintiffs are instructed to remove the individual defendants
from Count II in their corrected second amended complaint,
leaving only the District.
Defendants
have not otherwise challenged plaintiffs' minor
substantive refinements to their Title IX allegations.
Because these minor changes merely fine-tune the basis for
relief, the corrected second amended complaint may
incorporate the proposed changes. See Council on
Am.-Islamic Relations Action Network, Inc, 793 F.Supp.2d
at 324.
C.
Plaintiffs' tort claims against the ...