UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE

M.S. (a minor, by his parent and next friend,

)
Sharonda Covington), SHARONDA )
COVINGTON, and DEREK STEPP, on behalf
)
of themselves and all others similarly situated,
)
)
Plaintiffs, ) Case No.: 1:16-cv-00501
v. )
) Judge J. Ronnie Greer
HAMILTON COUNTY DEPARTMENT OF )
EDUCATION, DURHAM SCHOOL SERVICES, ) Magistrate Judge Susan K. Lee
L.P., and BENJAMIN COULTER, )
)
Defendants. )

Durham School Services, L.P.s Rule 12(b)(6) Motion to Dismiss

Defendant DURHAM SCHOOL SERVICES, L.P. (Durham) moves to dismiss the

amended complaint against it (Doc. 3) in its entirety and with prejudice pursuant to Rule

12(b)(6). In support of this motion, Durham submits the attached memorandum of law and states

as follows:

1. Count I of the amended complaint fails to state a claim against Durham for breach

of duty to protect against a state-created danger under 42 U.S.C. 1983 because Durham is not a

state actor.

2. Count II of the amended complaint fails to state a claim against Durham for a

fourteenth amendment violation of the right to bodily integrity under 42 U.S.C. 1983 because

Durham is not a state actor.

3. Count III of the amended complaint fails to state a claim against Durham for

conspiracy to deprive plaintiffs of their constitutional rights under 42 U.S.C. 1985 because

plaintiffs are not persons protected by section 1985.

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 4. Count IV is a state law claim for negligence and gross negligence. Because

Counts I, II, and III provide the only basis for this Courts jurisdiction, Count IV should be

dismissed upon the dismissal of Counts I, II, and III.

5. Count V is a state law claim for assault and battery. Because Counts I, II, and III

provide the only basis for this Courts jurisdiction, Count V should be dismissed upon the

dismissal of Counts I, II, and III.

REST OF PAGE LEFT BLANK INTENTIONALLY

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 WHEREFORE, Defendant DURHAM SCHOOL SERVICES, L.P. respectfully requests

that this Honorable Court dismiss plaintiffs complaint against it in the entirety and with

prejudice. Defendant also requests any such other and further relief to which this Court finds it

entitled.

Respectfully submitted,

DURHAM SCHOOL SERVICES, L.P.

By: /s/_______James M. Burd ______________

One of its attorneys

James M. Burd
WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
100 Mallard Creek Road Suite 250
Louisville, Kentucky 40207
Tel: (502) 238-8500
Email: james.burd@wilsonelser.com

Melissa A. Murphy-Petros (pro hac vice application pending)

WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
55 W. Monroe Street Suite 3800
Chicago, Illinois 60603
Tel: (312) 704-0550
Email: melissa.murphy-petros@wilsonelser.com

Michael R. Campbell
Lauren M. Turner
CAMPBELL & CAMPBELL
735 Broad Street Suite 1200
Chattanooga, Tennessee 37402
Tel: (423) 266-1108
Email: mikecampbell@campbellattorneys.com
Email: lmt@campbellattorneys.com

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 Certificate of Service

I hereby certify that on February 9th, 2017, a copy of the foregoing was filed

electronically. Notice of this filing will be sent by operation of the Courts electronic filing

system to all parties indicated on the electronic receipt. Parties may access this filing through the

Courts electronic filing system.

s/Lauren M. Turner
Lauren M. Turner

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