The opinion of the court was delivered by: Judge Dee Benson
MEMORANDUM DECISION AND ORDER
Before the court are Michael Eaton's, and Robert Goulding and Washington County School District's (the "defendants") motions for judgment on the pleadings, seeking dismissal of the plaintiffs' constitutional claims.
The facts in this case are truly tragic. The plaintiffs' son, Tucker Thayer ("Tucker"), was a drama student at Desert Hills High School in St. George, Utah. In November 2008, the drama department at the high school was preparing to perform the play "Oklahoma," and Tucker was involved with the production as a member of the stage crew.
Tucker's drama teacher, Michael Eaton, wanted to enhance the sound effects during the performance by using an actual gun that fired blanks. David Amodt, a father of one of the students, owned a handgun that would fire blanks, producing the sound desired by Mr. Eaton. Mr. Eaton asked the in-school representative of the St. George Police Department, School Resource Officer Stacy Richan, for permission to allow Mr. Amodt to bring the gun onto school property and use it in the play. Officer Richan gave Mr. Eaton permission to bring the gun onto school property and to use the gun in the production as long as (1) an adult brought the weapon to and from school, (2) the weapon remained in a locked container and under an adult's control at all times, and (3) an adult was the only person to fire the weapon. Thereafter, Officer Richan spoke with the school's Vice Principal, Robert Goulding, about allowing Mr. Eaton to use the gun in the production. Mr. Goulding gave his authorization to use the gun so long as Officer Richan ensured that his three rules were followed. Subsequently, under Mr. Eaton's direction, the gun was used during rehearsals and actual performances of the play.
The plaintiffs contend that although the defendants agreed to follow the rules for proper use of the gun, they did nothing to ensure the rules were being followed and that, ultimately, the defendants disregarded the rules. Specifically, the plaintiffs allege that, instead of having an adult shoot the gun, Mr. Eaton allowed Tucker to shoot the gun during the last two weeks of rehearsals and during each of the performances of the play. The plaintiffs point to one specific occasion where Mr. Eaton was aware that Tucker fired the gun. After the gun was fired on cue, Mr. Eaton said to his stage manager, through a two-way radio, "That was great! [Mr. Amodt] is my new best friend!" The stage manager replied, "That was Tucker." Mr. Eaton responded, "Tell him he is my new favorite student."
On November 15, 2008, prior to the beginning of a performance, Tucker accidentally shot himself with a blank fired from the gun, causing his death. Tucker's parents have filed this lawsuit pursuant to 42 U.S.C. § 1983 against the City of St. George, Mr. Eaton, Officer Richan, Washington County School District, Robert Goulding, David Amodt, and other unnamed individuals, partnerships, and corporations alleging, among other things, that the defendants violated the plaintiffs' and Tucker's constitutional rights.
Since filing this lawsuit, the plaintiffs have settled their claims with Mr. Amodt. In addition, this court previously granted the City of St. George and Officer Richan's motion to dismiss the plaintiffs' constitutional claims against them. The current motions before the court are Mr. Eaton's, and Mr. Goulding and Washington County School District's motions for judgment on the pleadings, seeking the dismissal of the plaintiffs' constitutional claims.
The complaint alleges that the defendants violated Tucker's substantive due process rights pursuant to the "danger creation" doctrine. In addition, the plaintiffs contend that the complaint contains sufficient facts supporting causes of action for violations of procedural due process, the right to familial association, and equal protection.*fn1
"A motion for judgment on the pleadings under Rule 12(c) is treated as a motion to dismiss under Rule 12(b)(6)." Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000). Accordingly, dismissal under Rule 12(c) is proper only if it can be shown that a complaint "fails to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion for judgment on the pleadings, the well-pleaded factual allegations in the complaint are accepted as true and viewed in the light most favorable to the nonmoving party. Sutton v. Utah State School for Deaf and Blind, 173 F.3d 1226, 1237 (10th Cir. 1999). Moreover, the plaintiff must provide enough facts in the complaint "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 571 (2007). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
The "danger creation" doctrine provides that state officials may be liable for injuries caused by a private actor where the state officials created the danger that led to the harm. Sutton v. Utah State School for Deaf and Blind, 173 F.3d 1226, 1237 (10th Cir. 1999). To prevail on a substantive due process claim based on the state-created danger theory, a plaintiff must prove six elements: (1) the plaintiff was a member of a limited and specifically definable group; (2) the defendant's conduct put the plaintiff at substantial risk of serious, immediate, and proximate harm; (3) the risk was obvious or known; (4) the defendant acted recklessly in conscious disregard of that risk; (5) such conduct, when viewed in total, is conscience shocking; and (6) the defendant created the danger or increased the plaintiff's vulnerability to danger. Armijo By and Through Chavez v. Wagon Mound Public Schools, 159 F.3d 1253, 1262-63 (10th Cir. 1998). To establish the fourth element, that the defendant acted recklessly, the plaintiff ...