PLAINTIFFS MOTION TO AMEND COMPLAINT

PLAINTIFF’S MOTION TO AMEND COMPLAINT IN RESPONSE TO DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT

COMES NOW Plaintiffs, WILLIE R. WIMS, JR., and REGINA R. WIMS, IND, Pro-se hereby file this Reply to Defendant’s Motion to Dismiss Plaintiffs’ Complaint; and Motion to Amend Complaint.

BACKGROUND

On or about April 13, 2021, Plaintiff’s filed their Complaint at this Honorable Court.  In the Complaint, Plaintiffs allege racial discrimination and acts of intimidation done on Plaintiffs’ children by Defendant, St. Patrick Interparish School.

On or about April 13, 2021, Defendants filed a Motion to Dismiss Plaintiffs’ Complaint making various allegations. Notably, Defendants allege inter alia, that Plaintiffs’ Complaint: fails to state a cause of action against the Defendants; falls short of sufficient material facts; fails to state the legal state of the named Defendants, fails to set forth a claim for relief, failed to provide a statement of the Court’s jurisdiction, and failed to state a demand for judgment.

ARGUMENTS

For purposes of a Motion to Dismiss, the Court must accept any well-pled facts of the Plaintiff’s complaint as true. Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022, 1024 (Fla. 4th DCA 1996).

According to Florida Rules of Civil Procedure 1.190(a), a party may amend a pleading upon filing a motion to amend. The said section provides in pertinent part that:

a party may amend a pleading only by leave of court or by written consent of the adverse party. If a party files a motion to amend a pleading, the party shall attach the proposed amended pleading to the motion. Leave of court shall be given freely when justice so requires. (Emphasis added).

Florida Rules of Civil Procedure 1.190(a).

The Rules proceed to provide that any error which does not affect the substantial rights of either parties can be disregarded by the Court. Florida Rules of Civil Procedure 1.190(e) provides in this regard that:

At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.

Florida Rules of Civil Procedure 1.190(e)

The court should not deny leave to amend unless the privilege to amend has been abused or the complaint is clearly not amendable. Highlands County School Board v. K.D. Hedin Construction, Inc., 382 So.2d 90 (Fla. 2nd DCA 1980). Also, leave to amend Complaint should be granted unless there is prejudice to the opposing party, or the amendment would be futile. Odom v. Canal Ins. Co., 582 So.2d 1203, 1205 (Fla. 1st DCA 1991).

In the instant action, Plaintiffs aver that this Court accept any well pled facts in the original complaint as true. Also, Plaintiffs pray this honorable court to grant Plaintiff’s leave to amend Plaintiff’s original Complaint. A liberal construction of Rule 1.190(a) is particularly appropriate in cases like this one where the proposed amendment would not change the basic issue in the case or materially vary the facts in the original Complaint.  

WHEREFORE, these premises considered, Defendants pray this Court grant leave freely to amend the Complaint. Plaintiffs’ Amended Complaint is annexed hereto.

Respectfully submitted,

DATED:    _____________

PLAINTIFFS’ AMENDED COMPLAINT

COME NOW Plaintiffs WILLIE R. WIMS, JR., and REGINA R. WIMS, IND, Pro-se, with this Complaint against Defendants DIOCESE OF SAINT AUGUSTINE, AND ST. PATRICK INTERPARISH SCHOOL, and alleges as follows:

PARTIES

  1. Plaintiff WILLIE R. WIMS, JR. is a resident of Gainesville, Florida. Plaintiff’s address for service is 5471 Gainesville, FL, 32627.
  2. Plaintiff REGINA R. WIMS, is a resident of Gainesville, Florida. Plaintiff’s address for service is 5471 Gainesville, FL, 32627.
  3. Plaintiffs are the parents and/or legal guardians of C.G. WIMS AND C.J. WIMS.  
  4. Defendant DIOCESE OF SAINT AUGUSTINE is a diocese of the Catholic Church’s Latin Church in the U.S. state of Florida. Plaintiffs sue the said Defendant as sponsor of the second Defendant herein. Defendant’s address for the purpose of this suit is 11625 Old St. Augustine Road Jacksonville, FL 32258.
  5. Defendant ST. PATRICK INTERPARISH SCHOOL is a Non-Public School in Gainesville FL. Defendant’s address for service is 550 NE 16th Ave, Gainesville, FL 32601.

JURISDICTION

  • This Court has jurisdiction of the claims asserted herein pursuant to Art. I, § 2, Fla. Const., Art. I, § 9, Fla. Const., and Fla. Stat.; § 26.012.
  • Venue is proper in Duval County pursuant to Fla. Stat.; § 47.011.

FACTUAL BACKGROUND

March 2017

  • Chancellor was bullied by an African American student at St. Patrick’s school. The situation became so serious that Mrs. Wims decided to speak to the child’s parents about his behavior. The child’s name is Jared Comer. In this situation, Mrs. Wims addressed the issue with Laura Jarosiewicz, the teacher assistant who witnessed the exchange between Chancellor and Jarrell Comer. However, the story was entirely different from the explanation. Mrs. Wims received from Krista Whitehill. After Mrs. Wims contacted the administration, Krista Whitehill stated in an email that she wanted to address the issue immediately, but she did not witness the incident. Chancellor’s punishment was silent lunch even though Mrs. Wims stated that she disagreed with the decision. Jarrell Comer provoked Chancellor, this resulted in silent lunch. Mrs. Wims immediately thought about the incident with Alexis, a white student, in February.
  • Alexis, a white student, cursed at Chancellor and was permitted to have Safety Patrol privileges still. Chancellor and Jarrell Comer are African American students, and both had silent lunch as punishment. This situation is indicative of the racial discrimination present at Saint Patrick Interparish School.

March 2017.

  1. The third nine weeks of the school year, Chancellor’s teacher, Kristie Whitehill, informed the students that they had an opportunity to increase their grade by bringing items for Catholic Charities. Mrs. Wims emailed Krista Whitehill that evening and requested that she apply the extra credit to Chancellor’s course with the lowest grade. Chancellor’s grades in Religion and Social Studies were in the high 70s (77-79). Chancellor’s grades in his other courses were As and Bs, and he desired to make the A B honor roll as he had previously and throughout the year in 4th grade. Chancellor took a test in religion and earned 100%, which increased his final grade to 81.
  2. Mrs. Wims later received an email from Mrs. Whitehill stating that she reevaluated Chancellor’s status and his final grade was 79. Shocked and disappointed, Mrs. Wims indicated that it would be accepted if Chancellor had earned that grade. However, she requested Ms. Whitehill provide review of Chancellor’s grades/tests/assignments. Mrs. Wims was told by Krista Whitehill that she returned a portion of the grades to Chancellor and that the cleaning staff disposed of the remaining grades- Ms. Whitehill emphatically stated that she had no record of the remaining grades that the cleaning staff discarded. Chancellor was devastated; he was so distraught that he did not want to go to school on Friday because the honor roll ceremony would occur, and he would not be able to participate. Mr. and Mrs. Wims allowed him to remain home for the school day. Chancellor states upon return to school, Ms. Whitehill asked that he return the third quarter grading sheet for the parents to sign. Mrs. Whitehill expressed to Chancellor, “If you do not have your parents sign the report card sheet, you will be placed in silent lunch.”
  3. Mrs. Wims wrote a letter stating that she nor Mr. Wims will agree to sign Chancellor’s report card, and Chancellor should not be penalized for their refusal.

March 2017

  1. Mrs. Wims contacted the Diocese of Saint Augustine to address the challenges their children experience at Saint Patrick Interparish School with Deacon Scott Conway. In March 2017, Mrs. Wims spoke with Deacon Scott Conway to discuss those challenges. He listened as Mrs. Wims informed him of the incidents that she believed warranted further evaluation by the school Diocese of Saint Augustine. He stated he would contact the school and return a phone call to the Wims family for an update. Mr and Mrs. Wims state they never received a return call from Deacon Scott Conway.

March 2017

  1. Mr. Wims entered the office at Saint Patrick’s Interparish School to submit registration fee payment for their sons, Chancellor and Christian Wims, to return to Saint Patrick for the 2017-2018 school year. The principal, Frank Mackritis, met Mr. Wims in the office and stated: “If your family is so unhappy with the school, you could leave.”
  2. The conversation took place in front of the school’s administrative staff. Mr. Wims asked the principal to step outside so others would not be privy to heir conversation. Mr. Wims explained to Frank Mackritis that he and Mrs. Wims are aware they could select another school for their children. Frank Mackritis reiterated to Mr. Wims again that they should remove their children if they are not happy. Frank Mackritis later requested a meeting with Mr. and Mrs. Wims. Mrs. Wims informed Frank Mackritis that she began a new job, and the hours that Frank Mackritis selected were not conducive for her.
  3. Additionally, based on their experience with Saint Patrick Interparish School’s administration and Deacon Scott Conway, Mr. and Mrs. Wims did not believe they would receive fair representation. They contacted the Diocese of St. Augustine and expressed their concerns to Deacon Scott Conway, and he did not investigate their problems, nor did he provide a return call as promised to Wims. The Wims family informed Evelyn Foxx of the Gainesville Chapter of the NAACP as an advocate for support; this was not successful either.

March 2017

  1. Ms. Whitehill met Mr. Wims in the parking lot of Saint Patrick Interparish School and stated, “Chancellor, explain to your father what happened today.”
  2. Chancellor Wims proceeded to explain to his father what happened at school. Chancellor Wims stated as he walked back to class after recess, Michael, a white, male student came BEHIND him and fiercely stepped on the heel of his shoes with the intent to trip him (students call this a “flat tire”). Chancellor became angry and hit the student. Eli, another white, male student immediately came behind the previous student and performed the same offense. Chancellor hit the second student too. Ms. Whitehill informed Mr. Wims that Chancellor would receive a demerit for hitting both students. Mr. Wims asked Ms. Whitehill what punishment the other two students will receive. She responded:

Chancellor will receive a demerit, the first student that had performed the “flat tire” will receive a demerit too, but the third student did not intentionally step on Chancellor’s heel. He stated to me that he did not mean to do it, and he is an honest child. He would not lie. Additionally, your wife has stated that your children have a right to defend themselves, and self-defense is not our school policy.

  1. When Mr. Wims questioned the decision about the third child not receiving a demerit, Ms. Whitehill’s response was “You will need to speak with Frank Mackritis if you have questions about Chancellor’s punishment. Mr. Mackritis makes those decisions.”

April 2017

  • Mr. and Mrs. Wims’ second child, Christian Wims, was a student in Christina Hasko’s second grade class. Ms. Hasko called Mrs. Wims to state that Christian had received 5 DEMERITS because he pulled his pants down at St. Patrick Interparish School’s water fountain. “I did not witness the incident, but two other children informed me that Christian pulled his clothes down at the water fountain. Mrs. Wims, I am a fair person, and I would not give him a demerit unless I felt that he did this.”
  • Mrs. Wims stated to Ms. Hasko, “I am frustrated because the incidents that our children are experiencing are outright discriminatory in nature and exacerbated as tools to remove the children from Saint Patrick’s Interparish School as well as tarnish our children’s character.”
  • Mrs. Wims states that Christian was so afraid of Ms. Hasko after the incident that he missed two weeks of school during the last nine weeks of the term due to stomach aches, headaches, and anxiety. Christian Wims had never had any disciplinary or misbehavior issues before the incident.

May 2017

  • Chancellor Wims read a book titled “Terrors of the Deep” and requested to take an AR (Accelerated Reader) assessment after completing the book. Krista Whitehill had previously stated to Chancellor that if he desired to rad books outside his reading range, he would need to ask her permission before selecting the text. Ms. Whitehilll became so infuriated with Chancellor that she took the opportunity to intimidate him by slamming a book down on his desk in front of the entire class. After embarrassing him, she then proceeded to state to him: “You did not ask me to take this reading text! I need to think about allowing you to take the test!”
  • The incident took place in front of the other students in the class. Chancellor informed his mother, Mrs. Wims, how he was embarrassed and humiliated in class by Ms. Whitehill. Mrs. Wims contacted Ms. Whitehill in an email and told her that she did not have the right to intimidate and bully him by slamming a book down and refusing to take the AR test because it was out of Chancellor’s reading range. Mrs. Wims spoke with Ms. Whitehill the following day and stated: “Your treatment of Chancellor is unacceptable and would not be tolerated. I do not expect this to happen again.”
  • Chancellor took the Accelerated Reader exam and failed.

May 2017

  • Ms. Guajardo, a 4th grade teacher that Chancellor had for advanced Math at Saint Patrick’s Interparish School, requested Chancellor’s assignment. When Chancellor submitted the project to her, she stated to him: “Is this your assignment? Are you telling the truth, Chance? Is he telling the truth, Angelina and Nicholas?”
  • Chancellor was again subjected to embarrassment and humiliation by an instructor at Saint Patrick’s Interparish School. In this situation, Chancellor had submitted the assignment promptly; however, Ms. Guajardo proceeded to ask two white students if Chancellor was telling the truth.
  • Nicholas responded, “I do not know,” and Angelina responded, “Yes, Chancellor completed and turned in the assignment.”
  • Again, the administration at Saint Patrick Interparish School violated Chancellor’s right to due process by insinuating that he is a liar and that Chancellor’s word was insufficient, and Ms. Guajardo felt the need to validate Chancellor’s statement and assignments through his peers. Mrs. Wims also stated that his treatment was demeaning and did not warrant Chancellor’s interrogation by Ms. Guajardo.
  • Mrs. Wims states that she contacted the Dioceses of Saint Augustine to follow the chain of command for school complaints. The secretary informed her that she could “receive a return phone call if the organization deemed it appropriate to do so.”
  • Mrs. Wims states that she and Mr. Wims paid Saint Patrick Interparish School registration fees for the 2017-2018 school year for Chancellor and Christian. Frank Mackritis returned their registration fees without explanation. When Mrs. Wims emailed Frank Mackritis about returning the payments, he stated he requested a meeting, but he did not explain the purpose of their returned check. The fee return indicated the administration did not want the children to return to Saint Patrick Interparish School for the 2017-2018 school year.  
  • There are additional incidents that Mr. and Mrs. Wims experienced at Saint Patrick Interparish School that they believe warrant further investigation. There are documented incidents that display a long-term history of racial discrimination, mainly since Chancellor and Christian Wims have attended the school. After their dismissal, they were treated for anxiety and stress during the summer of 2017.
  • They will return to counselling due to an evaluation by their pediatrician of recurring anxiety and stress.
  • December 2016– Four African American families were forced to leave Saint Patrick Interparish School during the 2016 Christmas break. Their circumstances were identical to the Wims children; racial discrimination and intimidation accompanied by unsubstantiated accounts of behavior issues.
  • Mrs. Wims notes that no African American teachers at SAINT Patrick Interparish School represent diversity and inclusivity even though they receive Title 1 funds. A significant number of African American children participate in the remedial program.
  • Mrs. Wims visited the Director of Title 1 in Alachua County, Pam Diaz. When Mrs. Wims initially met Pam Diaz, she confirmed that Saint Parish Interparish School was a recipient of Title 1 funds form Alachua County and the Florida Department of Education. After the school’s administration became aware of Mrs. Wim’s intentions to file a complaint, Mrs. Wims states she attempted to visit with Pam Diaz again. Pam Diaz refused to see or speak with Mrs. Wims a second time.
  • Mrs. Wims states that she requested the children’s academic records and was sent a handwritten, incomplete academic record for Chancellor. The Family Educational Rights and Privacy Act states schools that receive federal funding from the Department of Education must abide by the requirement to honor the families requst of their child’s academic record. Mrs. Wims also requested for electronic communication and St. Patrick Interparish failed to comply.

CAUSES OF ACTION

COUNT 1

VIOLATION OF Art. I, § 2, Fla. Const.

  • The Plaintiffs reallege and incorporate by reference paragraphs 1 through 33 as though fully set forth herein.
  • Plaintiff’s children belong to a protected class. They are of African American origin.
  • The Florida Constitution guarantees equal protection of all rights. Notably, Art. I, § 2, Fla. Const provides in that regard that “All natural persons, female and male alike, are equal before the law… No person shall be deprived of any right because of race, religion, national origin, or physical disability.”
  • The conduct of Second Defendant’s staff alleged hereinabove violated the aforesaid provision of law. Plaintiffs’ children were discriminated upon racially through the said acts and/or inactions.
  • The first Defendant failed to investigate Plaintiffs’ claims of discrimination and intimidation done by its school.

COUNT 2

VIOLATION OF Art. I, § 9, Fla. Const.

  • The Plaintiffs reallege and incorporate by reference paragraphs 1 through 38 as though fully set forth herein.
  • Defendants without following due process and/or proper explanation, refused to admit or accept the registration fees for the 2017-2018 school year for Plaintiffs’ children.
  • All attempts by Plaintiffs to seek an explanation as to why their children are not accepted back to the school have proven futile.
  • Plaintiffs even attempted to follow up the chain of command to the first Defendant, but they could not get the said Defendant to investigate their claims.
  • The conduct(s) of Defendants violated Plaintiffs’ due process rights under Art. I, § 9, Fla. Const.

COUNT 3

NEGLIGENCE

  • The Plaintiffs reallege and incorporate by reference paragraphs 1 through 43 as though fully set forth herein.
  • Defendants owed a duty of care to Plaintiffs’ children. The duty of care extended to ensuring Plaintiffs’ children are protected from any violation of their rights.
  • Defendants breached the duty by committing and/or allowing the conduct alleged herein.
  • Plaintiffs suffered as a result of the breach of the said duty(ies). Notably, Plaintiffs’ children were subjected to discrimination. The said discrimination also subjected them to emotional harm and damage. They have to seek counselling due to recurring anxiety and stress. Plaintiffs have also suffered both financial and emotional harm as a result of Defendants’ conduct alleged herein.

COUNT 4

DECLARATORY JUDGMENT

  • The Plaintiffs reallege and incorporate by reference paragraphs 1 through 47 as though fully set forth herein.
  • Plaintiffs’ Complaint cites the violation of Plaintiff’s children’s rights.
  • All the factual allegations alleged hereinabove show how the said rights were violated.
  • Plaintiffs are entitled to a declaration of the rights and duties of the parties, in particular, a judgment declaring that (a) Defendants’ actions infringed and/or violated Plaintiffs’ rights, and (b) Defendants must indemnify Plaintiffs of the damages and/or harm incurred as a result of their violations.  

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs request that the court award:

  1. Compensatory damages of [ENTER AMOUNT] for the discrimination and damages suffered.
  2. A judgment declaring that Defendants’ actions infringed and/or violated Plaintiffs’ rights,
  3. Costs and reasonable attorneys’ fees incurred with this lawsuit with interest thereon; and
  4. other damages and further relief as deemed just.

Respectfully submitted,

DATED:    _____________

CERTIFICATE OF MAILING

I, [ENTER NAME], certified on this day of [ENTER DATE] 2021, I deposited a true copy of the above to the defendant by placing the documents with prepaid postage in the United States mailbox address to each person.

Respectfully submitted,

DATED:    _____________

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