Lee v. Prince William County ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1639
CYNTHIA LEE; SHAUNTE LEE,
Plaintiffs - Appellants,
versus
PRINCE WILLIAM COUNTY SCHOOL BOARD; DR.
WILLIAM ASHBY BIRCHETTE, in his official
capacity; DR. KAREN SPILLMAN, in her official
capacity,
Defendants - Appellees.
No. 05-1640
CYNTHIA LEE,
Plaintiff - Appellant,
versus
CHILDREN’S SERVICES OF VIRGINIA, INCORPORATED;
SABBAM T. SABBAGH; FAIRFAX COUNTY,
Defendants - Appellees,
and
MARILYN HALLOWELL; VIRGINIA DEPARTMENT OF
FAMILY SERVICES, Fairfax County,
Defendants.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CA-05-100; CA-05-153)
Argued: November 29, 2006 Decided: January 24, 2007
Before MICHAEL and SHEDD, Circuit Judges, and David A. FABER, Chief
United States District Judge for the Southern District of West
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Owaiian Maurice Jones, Fredericksburg, Virginia, for
Appellants. Virginia Margaret Sadler, JORDAN, COYNE & SAVITS,
L.L.P., Fairfax, Virginia; Mark Howard Bodner, Fairfax, Virginia;
Ann Gouldin Killalea, OFFICE OF THE COUNTY ATTORNEY, Fairfax,
Virginia, for Appellees. ON BRIEF: Corey L. Poindexter, LAW
OFFICES OF OWAIIAN M. JONES, Fredericksburg, Virginia, for
Appellants. David P. Bobzien, County Attorney, Peter D. Andreoli,
Jr., Deputy County Attorney, OFFICE OF THE COUNTY ATTORNEY,
Fairfax, Virginia, for Appellee Fairfax County; John O. Easton,
JORDAN, COYNE & SAVITS, L.L.P., Fairfax, Virginia, for Appellees
Prince William County School Board, William Ashby Birchette, and
Karen Spillman.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
This appeal arises from two unrelated cases filed by Cynthia
Lee that were consolidated in the district court. In both cases,
the district court dismissed Lee’s complaint pursuant to Fed. R.
Civ. P. 12(b)(6). Accordingly, we review de novo the decision of
the district court, taking as true the facts alleged in the
complaint. Williams v. Giant Food Inc., 370 F.3d 423, 434 (4th
Cir. 2004). For the reasons that follow, we affirm the decisions
of the district court.
I
The first case, Lee v. Prince William County School Board,
arises out of a dispute between Lee and her daughter’s high school.
Lee’s daughter, Shaunte, was permitted to attend Woodbridge High
School (“Woodbridge”) for the first three years of high school even
though the Lees did not live in the Woodbridge school district.
Lee alleged that the Prince William County School Board (“PWCSB”)
and its agents retaliated against her and Shaunte after Lee
appealed several disciplinary and administrative decisions of the
Woodbridge faculty. Specifically, Lee alleged PWCSB and its agents
retaliated by denying her appeal of disciplinary action taken
against Shaunte in geometry class, by denying her request to
transfer Shaunte to a different geometry class, and by deciding not
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to allow Shaunte to attend Woodbridge during her final year of high
school.
Lee’s complaint stated three claims: (1) violation of her
First Amendment rights, pursuant to 42 U.S.C. § 1983; (2) violation
of the Rehabilitation Act; and (3) intentional infliction of
emotional distress under Virginia law. Addressing the First
Amendment claim, the district court held that Lee’s speech had not
been adversely affected or chilled in any way, as required by
Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685-86 (4th. Cir.
2000), because she availed herself of the appeals process and
ultimately procured Shaunte’s admission to Woodbridge for her
senior year. The district court also decided that the other acts
taken against Lee and Shaunte were nothing more than de minimus
inconveniences, which do not amount to a constitutional violation
under Constantine v. Rectors and Visitors of George Mason
University, 411 F.3d 474, 500 (4th Cir. 2005). The district court
further held that Lee’s Rehabilitation Act claim was barred by the
statute of limitations.* After dismissing Lee’s two federal
claims, the district court dismissed without prejudice Lee’s
intentional infliction of emotional distress claim.
*
Lee argues for the first time on appeal that the statute of
limitations was tolled. Because Lee did not raise this argument in
the district court, we do not consider it. Muth v. United States,
1 F.3d 246, 250 (4th Cir. 1993).
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As stated above, we review de novo the decision of the
district court and assume the truth of all the facts alleged in
Lee’s complaint. Williams, 370 F.3d at 434. Having conducted such
a review, we find no error. We therefore affirm the dismissal of
this case substantially on the reasoning of the district court.
II
The second case, Lee v. Children’s Services of Virginia, Inc.,
arises out of Lee’s status as a foster parent. Lee was the foster
parent of two children, M.L.P. and S.Y., pursuant to a contractual
arrangement with Children’s Services of Virginia, Inc. (“CSV”).
Due to behavioral problems, Lee eventually sought removal of S.Y.
from her home. Later, Lee found out that S.Y. would be placed with
another foster parent in the same school district. The possibility
of M.L.P. and S.Y. attending the same school alarmed Lee, and she
contacted CSV to voice her concerns. CSV and its agents responded
in a rude manner and refused to grant Lee’s request to place S.Y.
in a different school. Lee then contacted M.L.P.’s school to
explain the problem. CSV placed Lee on probation, asserting that
she failed to cooperate with the treatment plan recommendation for
visitation, she made inappropriate phone calls to a Fairfax County
worker, and she breached her duty of confidentiality by contacting
M.L.P.’s school. After Lee continued to protest S.Y.’s placement,
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CSV removed M.L.P. from her foster care without notifying her or
giving her an opportunity to contest the removal.
Lee’s complaint stated five claims: (1) violation of her First
Amendment rights, pursuant to 42 U.S.C. § 1983; (2) violation of
the Americans with Disabilities Act (ADA); (3) violation of the
Rehabilitation Act; (4) intentional infliction of emotional
distress under Virginia law; and (5) violation of her Fourteenth
Amendment rights, pursuant to 42 U.S.C. § 1983. By oral order, the
district court dismissed Lee’s First Amendment claim because it
found that she was not speaking on a matter of public concern when
discussing M.L.P.’s specific, individual needs at school; thus,
according to the district court, she failed to allege facts
sufficient to meet the requirements of Pickering v. Board of
Education, 391 U.S. 563, 568 (1968). The district court next
addressed Lee’s ADA and Rehabilitation Act claims, dismissing both
for a single reason: i.e., Lee alleged no discrimination on the
basis of a disability. The district court dismissed Lee’s
intentional infliction of emotional distress claim because it found
that the facts alleged in the complaint, even if true, could not
reasonably be considered sufficiently outrageous or intolerable to
support a claim under Womack v. Eldridge, 210 S.E.2d 145, 148 (Va.
1974).
Several weeks after entering its oral order dismissing Lee’s
other claims, the district court issued a written order that
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disposed of Lee’s Fourteenth Amendment claim. In the order, the
district court took judicial notice of a Fairfax County juvenile
court order that approved an interim plan for Lee’s foster care of
M.L.P. The juvenile court order articulated the goal of eventually
making Lee the permanent foster care placement for M.L.P. The
district court dismissed Lee’s Fourteenth Amendment claim because,
as a foster parent who had not yet attained permanent custody under
Virginia law, she had neither a liberty interest nor a property
interest in her continued relationship with M.L.P. The district
court based its ruling on Wildauer v. Frederick County, 993 F.2d
369, 373 (4th Cir. 1993), and Royster v. Board of Trustees of
Anderson County School District Number Five, 774 F.2d 618, 620 (4th
Cir. 1985).
Again, we review the decision to dismiss this case de novo,
taking as true the facts alleged in Lee’s complaint. Williams, 370
F.3d at 434. We have reviewed the record under this standard and
find no error. Thus, we affirm the dismissal substantially on the
reasoning of the district court.
III
For the foregoing reasons, we affirm the decision of the
district court in both cases.
AFFIRMED
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