WOLFE v. FAYETTEVILLE, ARKANSAS SCHOOL DIST.
600 F.Supp.2d 1011 (2009)
United States District Court, W.D. Arkansas, Fayetteville Division.
February 26, 2009.
Every person who, under color of any statute, ordinance, regulation, custom, or usage of this state or any of its political subdivisions subjects, or causes to be subjected, any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Arkansas Constitution shall be liable to the party injured in an action in circuit court for legal and equitable relief or other proper redress.
Ark.Code Ann. § 16-123-105(a). The Act further states that a court may look to state and federal decisions interpreting § 1983 when interpreting the Act. Ark. Code Ann. § 16-123-105(c). As such, Plaintiffs argue that because § 1983 can generally be used to redress the deprivation of a statutory right, Maine v. Thiboutot,448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Arkansas Civil Rights Act can also be used to redress the deprivation of a statutory right.
Plaintiffs' argument ignores a key difference between the Arkansas Civil Rights Act and § 1983. The Arkansas Act protects "rights, privileges, or immunities secured by the Arkansas Constitution ...." Ark.Code Ann. § 16-123-105(a). Meanwhile, § 1983 protects "any rights, privileges, or immunities secured by the Constitution and laws ..." of the United States. 42 U.S.C. § 1983. Thus, under the plain language of the Arkansas Civil Rights Act, rights secured by statute are not subject to redress. This Court, without any clear authority based on Arkansas law, will not drastically expand that scope of the Arkansas Act by permitting suit for the deprivation of a statutory right. Therefore, Plaintiffs' claim for deprivation of the right not to bullied, as stated in Ark.Code Ann. § 6-18-514, is DISMISSED WITH PREJUDICE.
G. Failure to State a Claim for Negligent Supervision under Arkansas State Law
Defendants contend that Plaintiffs' claim for negligent supervision should be dismissed. Under Arkansas law, a school district is "immune from liability and from suit for damages except to the extent that they may be covered by liability insurance." Ark.Code Ann. § 21-9-301.
Accordingly, Defendants argue that because the FSD's insurance policy does not provide coverage for negligent acts, Plaintiffs' claim should be dismissed.
Defendants' argument is well-taken as a matter of Arkansas law. However, Defendants have done nothing more than state that insurance coverage is not available. They have provided the Court with no proof of their assertion, which would enable the Court to rule on this issue. There is nothing in the record that would compel the Court to treat Defendants' motion as one for summary judgment or on the pleadings. As such, the Court is limited to the allegations in Plaintiffs' Amended Complaint, and Defendants' unsupported statements cannot serve as a basis for dismissal. Defendants' motion is DNIED.
H. Failure to State a Claim for Defamation under Arkansas State Law