The Muscogee County School District has been dropped from the $25 million lawsuit filed on behalf of Montravious Thomas, the then-13-year-old boy who was allegedly body-slammed five times by a contracted behavior specialist 19 months ago and had his leg amputated below the knee a month later.
The five MCSD employees named in the lawsuit have been dropped as defendants in their official capacities, but they remain defendants in their individual capacities, as do the specialist, Bryant Alexander Mosley, and his employer at the time, Mentoring and Behavioral Services of Columbus.
Hieu Nguyen, a lawyer with Harben, Hartley and Hawkins of Gainesville, the legal counsel retained by the Georgia School Boards Association to represent MCSD in this matter, responded in an email to the Ledger-Enquirer on behalf of superintendent David Lewis.
“As you are aware, a Motion to Dismiss was filed back in August on behalf of the School District and its employees in their official capacity,” Nguyen wrote. “Naturally, we are pleased that the School District and its employees in their official capacity have been dropped from the case. However, because the case remains pending against Mentoring and Behavioral Services and its employee Bryant Mosley, as well as some of the District employees in their individual capacity, we are not in position to make any statements regarding aspects of the case that remain pending.”
Montravious’ lawyer, Renee Tucker of Forrest B. Johnson & Associates in Atlanta, told the Ledger-Enquirer in an email, “The lawsuit continues against the individuals named. It remains a $25 million dollar lawsuit. As it relates to the negligence alleged against those individuals employed by the MCSD and Mentoring and Behavioral Services, Inc., nothing has changed.
“We agreed to voluntarily drop MCSD and some of the named persons, in their official capacity, only. The conduct of these individuals is still the subject matter of this litigation. Finally, we note, our firm is continuing to pursue justice for Montravious Thomas and his mother, and changes with regard to the MCSD processes that led to and facilitated his injury. This case isn’t going away.”
Christopher Breault, a personal injury trial lawyer in Columbus not involved in the case, agreed to provide the Ledger-Enquirer with his expertise to understand this development.
As an agency of the state, MCSD has sovereign immunity, which was established in the Georgia constitution, Breault said. Sovereign immunity can be waived, but the exceptions are rare, he said. After a year of discovery in the case, the plaintiff’s lawyer must have realized a waiver most likely didn’t exist in this case, he said.
When public officials are sued in their official capacity, they are considered an agent of the government, so the sovereign immunity extends to them, Breault said.
When public officials are sued in their individual capacity, however, they have qualified immunity, meaning they cannot be sued for injuries stemming from deliberation or judgment, which are called discretionary acts, Breault said. But they can be sued for injuries stemming from administerial acts, which are specifically required duties, he said. Qualified immunity also is waived if the discretionary act is done with intent to injure or malice, he said.
The Columbus Police Department’s investigation into the controversial case remains open.
On March 13, 2017, Montravious’ mother, Lawanda Thomas, sued the school district and the other defendants in state court, seeking $25 million in damages and costs. The Ledger-Enquirer reported two months later the MCSD administration’s response to the lawsuit.
The MCSD employees remaining as defendants in their individual capacities are:
▪ David F. Lewis, superintendent.
▪ Zehra S. Malone, who was Montravious’ teacher Sept. 12, 2016, his first and only day at the alternative school in the Edgewood Student Services Center.
▪ Phyllis Fox, who was the paraprofessional in Montravious’ classroom at Edgewood.
▪ Eddie Powell, who was the assistant principal in charge at Edgewood that day while the principal was absent.
▪ Gisela M. Huggins, who drove the bus that took Montravious home that day.
Their legal fees still will be covered by the Georgia School Boards Association’s risk management fund, and they will continue to be represented by MCSD’s assigned counsel, Lewis told the Ledger-Enquirer in an email.
Another pending legal action from the incident at Edgewood is the federal lawsuit against MCSD filed Sept. 8, 2017, by Powell. He alleges racial discrimination, retaliation for having complained about racial discrimination, and a violation of the Georgia Whistleblower Protection Act after he leaked the surveillance video that shows Mosley carrying Montravious to the bus, although it doesn’t show any moments in the classroom.
Citing privacy laws, MCSD has refused the Ledger-Enquirer’s request to release the classroom video. In January, the Ledger-Enquirer filed a lawsuit demanding MCSD release the classroom surveillance video. The case is pending in Muscogee County Superior Court.