Moton v. Park Christian School

U.S. District Court, District of Minnesota March 29, 2022

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

JAEDAN MOTON and ALONZO MOTON,
Civil No. 20-1201 (JRT/LIB)
Plaintiffs,

v. MEMORANDUM OPINION AND
ORDER GRANTING MOTION FOR
PARK CHRISTIAN SCHOOL and CHRIS SUMMARY JUDGMENT
NELLERMOE, Individually and as Principal
of Park Christian School

Defendants.

David J.T. Chapman, D.J. CHAPMAN LAW, PC, 3155 Bluestem Drive, PMB
#388, West Fargo, ND 58078, for plaintiffs.

Jason M. Stoffel, Lindsey J. Woodrow, and Peter M. Waldeck, WALDECK &
WOODROW, PA, 121 South Eighth Street, Suite 1400, Minneapolis, MN
55402, for defendants.

Defendants, Park Christian School (“PCS”) and Chris Nellermoe, Principal of PCS,
have moved for summary judgment in this action. Plaintiffs Jaedan and Alonzo Moton,
father and son, brought this action alleging that Defendants racially discriminated against
them by requiring them to sign “academic contracts” in order to have Jaedan admitted as
a student when the same was not required of similarly situated white students. Because
the Court finds that the Motons did not establish jurisdiction or provide evidence
establishing Defendants’ discriminatory intent, the Court will grant Defendants’ Motion
for Summary Judgment.
BACKGROUND
I. FACTUAL BACKGROUND

PCS is a private religious school in Moorhead, Minnesota and Alonzo Moton and
his wife, Joleen Moton, enrolled Jaedan at the school in 2014. (Defs.’ Mem. Supp. Summ.
J. at 1, May 27, 2021, Docket No. 40.) When Jaedan was initially enrolled, he was 12 years
old and came to PCS as an average to below-average student from the West Fargo Public

School System.1 (Pls.’ Mem. Opp. Summ. J. at 2, June 18, 2021, Docket No. 51.) Given
Jaedan’s struggling academics, the Motons were looking for a fresh start and believed
that enrolling at PCS was a perfect opportunity for Jaedan to repeat the seventh grade

and get back on track without his reputation being known to other students. (Id. at 17.)
Moreover, one of Jaedan’s summer basketball teammates, Connor Kvalvog, was a
seventh grader at PCS and Connor’s parents had offered to pay for Jaedan’s PCS tuition if
he enrolled. (Moton Ex., Affidavit of Ray Kvalvog (“Kvalvog Aff.”) at ¶2, June 18, 2021.)

Repeating seventh grade would therefore also align the Motons’ and Kvalvogs’ interests
in keeping the basketball teammates together.

1The parties disagree on the characterization of Jaedan’s age at the beginning of the
school year. The Motons claim Jaedan was too young to be placed in eighth grade at PCS and
that PCS’ decision to place him in seventh grade was racially motivated. Defendants contend
that the Motons are obscuring the facts and ignore that Jaedan’s birthday is August 31, 2001,
and that Jaedan turned 13, the traditional age of an eighth grader, days after the start of the
school year.
Although Jaedan enrolled at PCS in 2014, the Motons initially applied to enroll their
son in 2012.2 (Decl. Michael Levang Supp. Mot. Summ. J., Ex. 2, May 27, 2021, Docket No.

42.) When the Motons first applied, Jaedan had a litany of learning disabilities as well as
an active Individual Education Plan (“IEP”) to ensure that he received the proper services
and support required to help him succeed academically. (Decl. Eva Riendeau, Ex. A., May
27, 2021, Docket No. 43.) Notably though, the 2012 application failed to disclose the

existence of any special educational needs or that Jaedan had an active IEP. (Levang Decl.,
Ex. 2.) The Motons claim that the failure to disclose was due to the application being
completed in July of that year when Jaedan was not receiving any services because there

was no school.3 (Pls.’ Mem. Opp. Summ. J. at 6.) Defendants maintain that, due to the
deficiencies in the Motons’ application, they did not have knowledge of an active IEP

2The Motons maintain that they filled out an application in both 2012 and 2014. (Pls.’
Mem. Opp. Summ. J. at 1.) However, neither PCS nor Plaintiffs have produced a 2014 application.

Regardless, the top of the 2012 application has been altered and it appears that “8th” is
hand-written over “6th” in the section denoting what grade an applicant is applying for. (Decl.
Michael Levang Supp. Mot. Summ. J., Ex. 2, May 27, 2021, Docket No. 42.) Defendant and PCS
Principal Chris Nellermoe described that a handwritten alteration would have been a normal
practice for renewed applications. (Decl. Jason M. Stoffel Supp. Mot. Summ. J., Ex. D at 11:3–25,
May 27, 2021, Docket No. 41.) The 2012 application is therefore the only operative and available
application in this action.

3The Motons also argue that PCS received Jaedan’s education records—including his IEP—
and conducted a review regardless of their alleged failed disclosure. (Pls.’ Mem. Opp. Summ. J.
Mot. at 2.) To support their assertion, Plaintiffs cite to an August 10, 2012 email to Katherine
Kvalvog that allegedly shows that PCS had obtained Jaedan’s records and were aware of his IEP.
(Id. at 6.) However, the Court is unable to find in the CM/ECF system either a declaration or
affidavit from Katherine Kvalvog that contains the alleged communication. Additionally, the
Motons appear to contradict themselves by agreeing that the Defendants did not have Jaedan’s
academic records before admitting him to PCS. (Pls.’ Mem. Opp. Summ. J. at 7.)
before admitting Jaedan for the 2014-2015 academic school year. (Levang Dec. Ex. 5.)
Specifically, Defendants argue that it was not until 2014 that PCS staff discovered that

Jaedan was assessed to have a learning disability in 2012. (Riendeau Decl., Ex. B; Lavang
Decl., Ex. 3–5; Stoffel Decl. Ex. E at 21:2– 9.) Upon discovery, PCS sought confirmation
from Jaedan’s former school district. (Id.)
PCS, as a private religious school, is neither funded for nor required to provide

special education related services. (Defs.’ Mem. Supp. Summ. J. at 1);

34 C.F.R. § 300.137

(a) (“No parentally-placed private school child with a disability has an individual 
right to receive some or all of the special education and related services that the child 

would receive if enrolled in a public school.”)  Despite PCS’ limitations, students are still 
able to attend PCS and receive special education services through the Moorhead Public 
School District.  (Levang Decl., Ex. 5.)  Students and their families may also choose to work 
with PCS to receive extra accommodations to account for the burdens of their disabilities.  

(Id.)                                                                     
    After PCS became aware of Jaedan’s IEP, PCS staff sent correspondence to Jaedan’s 
parents regarding his disabilities.  (Id.)  PCS presented the Motons with three possible 
future scenarios for Jaedan, including: (1) re-enrolling in public school; (2) bussing to 

public school for part of each day to receive special education; and (3) waiving Jaedan’s 
IEP services and staying at PCS with whatever support could be provided.  (Id.)  The 
Motons chose the third option and kept Jaedan enrolled at PCS while waiving his IEP 
services.  (Levang Decl., Ex. 6.)                                         

    Despite the new environment, Jaedan continued to struggle academically and 
received five Fs and one D during his first quarter at PCS.  (Levang Decl., Ex. 8.)  Per PCS’ 
policies, new students were required to maintain a Grade Point Average (“GPA”) of 2.0 
during a nine-week academic probation period.  (Levang Decl., Ex. 9.)  Clearly, Jaedan’s 

performance did not meet this standard.  However, PCS decided to extend the traditional 
academic probation period for Jaedan in order to determine if he was a fit for the school.  
(Levang Decl., Ex. 9.)  During the second quarter, Jaedan still could not meet the required 

threshold and received a 1.70 GPA.  (Id.)  Because Jaedan was well below the probationary 
GPA threshold, PCS met with the Motons to discuss Jaedan’s struggles and future with 
the school.  (Id.)  As a result of the meeting, PCS and the Motons executed an Expectations 
and  Accommodation  Plan  (“Accommodation  Plan”).    (Levang  Decl.,  Ex.  10.)    The 

Accommodation Plan provided that PCS would allow Jaedan to take Bible tests as open 
note tests, that Support Services Teacher Eva Riendeau would work with Jaedan every 
day, and that Jaedan would be provided with classroom accommodations including 
preferred seating, completed notes and study guides, quiet testing environments, an 

extra set of textbooks to keep at home, and the ability to have test questions read out 
loud to him.  (Id.)                                                       
    At the end of the third quarter, PCS provided an assessment of Jaedan’s progress, 
determined that it could not meet his needs, but decided to extend his probationary 

period for a third time through the end of the fourth quarter.  (Levang Decl., Ex. 13.)  To 
incentivize Jaedan’s independent learning, PCS decided to amend the Accommodation 
Plan so that he would no longer receive completed notes and study guides.  (Id.)  Despite 
PCS being willing to extend the probationary period, both the Motons and Kvalvogs—who 

had been acting as representatives for the Motons—refused to sign the Accommodation 
Plan.  (Id.)  The Motons and Kvalvogs then went a step further and asked PCS to remove 
Jaedan’s tutoring accommodations because they “[would] keep Jaedan on track and if 

[they] don’t and he fail[ed] out of PCS then that is what the good LORD intended.”  (Levang 
Decl., Ex. 14.)                                                           
    At the conclusion of the academic year, Jaedan had a cumulative GPA of 1.33.  
(Levang Decl., Ex. 18.)  On June 15, 2015, PCS informed the Motons that Jaedan would 

not be eligible to re-enroll at PCS for the next school year.  (Id.)      
 II.  PROCEDURAL HISTORY                                                 
    The Motons commenced this action against Defendants on May 19, 2020.  (Compl., 
May 19, 2020, Docket No. 2.)  On August 4, 2020, the Court issued its Pretrial Scheduling 

Order.  (Pretrial Scheduling Order, Aug, 4, 2020, Docket No. 12.)  Pursuant to this Order, 
all motions to amend the pleadings were required to “be filed and the Hearing thereon 
completed on or before August 31, 2020.”  (Id. at 2.)  On May 27, 2021, Defendants filed 
the current Motion for Summary Judgment and raised, among other issues, the Motons’ 
failure to establish that the Court has subject matter jurisdiction over the case.  (Defs.’ 

Mot. Summ. J., May 27, 2021, Docket No. 38.)                              
    On June 18, 2021, the Motons responded to the allegation in the Defendants’ 
motion by filing a motion to amend.  (Pls.’ Mot. Amend, June 18, 2021, Docket No. 45.)  
In their motion, the Motons sought to amend their Complaint to assert additional facts in 

support of their claim, correct certain “typographical” errors related to their alleged basis 
for subject matter jurisdiction, and to remove from the Complaint any reference to

42 U.S.C. § 1983

. (Mem. Supp. Pls.’ Mot. Amend, June 18, 2021, Docket No. 47.) The Motons

also acknowledged that their motion was untimely under the scheduling Order but
requested that the Order be amended. (Id. at 2-11.)
The Magistrate Judge assigned to the Motion to Amend denied the Motons’
request to amend both their pleadings and the Scheduling Order. (Order Denying Mot.

Amend, Aug. 10, 2021, Docket No. 64.) The Magistrate Judge held that because the
Motons had been placed on notice since June 9, 2020—the day Defendants filed their
Answer—of the alleged jurisdictional defects and did nothing about it for over a year they
could not amend. (Id. at 7–8.) The Magistrate Judge also found that the Motons’ Motion

to Amend was filed as a response to Defendants’ Motion for Summary Judgment and, as
such, the Defendants would be unfairly prejudiced if the Court were to grant the motion.
(Id. at 11.)
The Court must now consider the Defendants’ Motion for Summary Judgment.
DISCUSSION

I. STANDARD OF REVIEW
Summary judgment is appropriate when there are no genuine issues of material
fact, and the moving party can demonstrate that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the suit, and

a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a
verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248

 (1986).  
A court considering a motion for summary judgment must view the facts in the light most 

favorable to the nonmoving party and give that party the benefit of all reasonable 
inferences to be drawn from those facts.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587

 (1986).  The nonmoving party may not rest on mere allegations or 
denials but must show, through the presentation of admissible evidence, that specific 

facts exist creating a genuine issue for trial.  Anderson,

477 U.S. at 256

 (discussing Fed. R. 
Civ. P. 56(e)).  “The mere existence of a scintilla of evidence in support of the plaintiff’s 
position will be insufficient; there must be evidence on which the jury could reasonably 
find for the plaintiff.”

Id. at 252

.                                     

 II.  ANALYSIS                                                           
    Defendants’ Motion for Summary Judgment raises six issues for the Court to 
consider: whether (1) the Motons’ Complaint should be dismissed for failure to establish 
jurisdiction; (2) the Motons’ purported

42 U.S.C. § 1983

 claim fails as a matter of law 
because this case involves no State or Governmental actors; (3) the Motons’

42 U.S.C. § 1981

claim fails as a matter of law because there is no evidence that PCS or its Principal
discriminated against the Motons; (4) the Motons’ Complaint is time-barred by the
statute of limitations; (5) claims against Chris Nellermoe in his individual capacity should
be dismissed if this case survives summary judgment; and (6) any punitive damages claim

should be dismissed if this case survives summary judgment.4 Because the Court will find
that the Motons’ Complaint should be dismissed for lack of jurisdiction and, alternatively,
that their § 1983 and § 1981 claims cannot not withstand the summary judgment motion,

the Court will decline to reach the issues regarding the statute of limitations, Nellermoe’s
dismissal in his individual capacity, and punitive damages.
A. Failure to Establish Jurisdiction
Defendants argue that the Motons have not met their burden of establishing

subject matter jurisdiction. The Motons have conceded that their pleadings wrongly

4 In addition to the six issues raised by the Motion for Summary Judgement, Defendants argue
that the Motons’ brief was submitted a day late and request that the Court either strike the
response or not permit oral argument. (Defs.’ Reply Mem. Supp. Summ. J. Mot. at 2, June 1,
2021, Docket No. 56.)

“The District’s local rules permit the Court, among other things, to take any action the Court
considers appropriate when a party fails to timely file and serve a memorandum of law.” Bailey
v. Metro. Council,

2019 WL 4687040

, at *1 (D. Minn. Sept. 26, 2019).  This includes taking no 
action.  The Motons’ filing of the memorandum a day late is not so egregious that it warrants any 
sanction from the Court.                                                  
assumed that the applicable statutes provided their own basis for jurisdiction and that “it 
is clear that the Moton Complaint is defective.”  (Pls.’ Mem. Supp. Mot. Amend at 2, 16.) 

    A federal court has a duty to assure itself that it has subject matter jurisdiction in 
each case.  Sanders v. Clemco Indus.,

823 F.2d 214, 216

 (8th Cir. 1987).  Failure to plead 
federal jurisdiction is grounds for dismissal.  Dep't of Rec. & Sports of Puerto Rico v. World 
Boxing Ass'n,

942 F.2d 84

, 90 (1st Cir. 1991) (instructing district court to dismiss complaint 

for  want  of  jurisdiction  for  failure  to  plead  subject  matter  jurisdiction  in  the 
complaint); Fed. R. Civ. P. 8(a)(1) (requiring a “short and plaint statement of the grounds 
for the court's jurisdiction[.]”).                                        

    The Motons’ Complaint pleads that “[t]he Court has jurisdiction over this action 
pursuant to

28 U.S.C. § 1334

42 U.S.C. § 1983

and

42 U.S.C. § 1981

 (1977).”  (Compl. at ¶ 
5.)  As Defendants correctly point out, neither 4

2 U.S.C. § 1983

 nor § 1981 confer federal 
district court jurisdiction and

28 U.S.C. § 1334

 confers the federal district court “original 

and exclusive jurisdiction of all cases under title 11 [the bankruptcy code].”  Because

42 U.S.C. § 1983

 and § 1981 do not provide for an independent basis for subject matter 
jurisdiction, claims under each statute require invocation of federal question jurisdiction 
under

28 U.S.C. § 1331

.  See

42 U.S.C. §§ 1981

, 1983; see also Thomas v. St. Luke's Health 

Sys.,

869 F. Supp. 1413, 1425

 (N.D. Iowa 1994) (finding that § 1981 claim should be 
dismissed  for  want  of  federal  question  when  jurisdiction  under  §  1331  was  not 
pled); Cabell v. Chavez–Salido,

454 U.S. 432

, 434 n. 4 (1982) (district court correctly 
concluded plaintiffs stated a claim under

42 U.S.C. § 1981

, with jurisdiction in the federal 
district court under

28 U.S.C. § 1331

).                                   

    The Motons have not established jurisdiction because they have failed to plead 
federal question jurisdiction under § 1331.  Section 1331 is mentioned nowhere in their 
Complaint.  Moreover, the Motons were on notice of the jurisdictional defect and did not 
attempt  to  correct  the  issues  until  Defendants’  current  motion  seeking  summary 

judgment.  The Court therefore concludes that the Motons’ Complaint must be dismissed 
for want of a federal question.  Alternatively, the Court addresses the merits of the 
Defendants' motion for summary judgment.                                  

      B.  § 1983 Claim                                                   
 Despite the Motons’ initial Complaint, both the Motons and Defendants now agree 
that a § 1983 claim is not appropriate in this case.  (Defs.’ Mem. Supp. Summ. J., at 14–
15; Pls.’ Mem. Opp. Summ. J., at 12.)                                     

    “The purpose of § 1983 is to deter state actors from using the badge of their 
authority to deprive individuals of their federally guaranteed rights and to provide relief 
to victims if such deterrence fails.”  Wyatt v. Cole,

504 U.S. 158, 161

 (1992) (citing Carey 
v. Piphus,

435 U.S. 247, 254-257

 (1978)).  “Only state actors can be held liable under 

Section 1983.” Youngblood v. Hy-Vee Food Stores, Inc.,

266 F.3d 851, 855

 (8th Cir. 2001).  
The United States Supreme Court has held that despite receiving government funding, 
being regulated by the state, performing a function which benefits the public, and having 
a certain fiscal relationship with the state, a private school is not a state actor and is not 
subject to § 1983 claims.  See Rendell-Baker v. Kohn,

457 U.S. 830

 (1982). 

    Thus, even if the Motons had established jurisdiction, their § 1983 claim against 
PCS could not survive summary judgment because neither the school nor its principal are 
state actors and the claim would be dismissed.                            

      C.  § 1981 Claim                                                   
 Defendants  next  argue  that  the  Motons’  §  1981  claim  cannot  survive  summary 
judgment because the record is devoid of facts that establish a prima facie case under the 
statute.  Predictably, the Motons disagree and specifically point to the following facts: (1) 

the alleged “academic contracts” they were required to sign; (2) PCS’ decision to place 
Jaedan in eighth, rather than seventh, grade; (3) Defendants’ failure to adhere to its 
regular policies and procedures; and (4) an alleged racial slur used by Nellermoe.  They 
assert that these facts establish a prima facie case under § 1981.        

 Claims of race discrimination under § 1981 are analyzed under the McDonnell Douglas 
burden-shifting framework.  McDonnell–Douglas Corp. v. Green,

411 U.S. 792, 802

 (1973); 
Patterson v. McLean Credit Union,

491 U.S. 164, 186

 (1989) (applying framework to claims 
under

42 U.S.C. § 1981

).  Under McDonnell–Douglas, the plaintiff is first required to 

establish a prima facie case of discrimination.  McDonnell–Douglas,

411 U.S. at 802

.  The 
burden of production then shifts to defendant to assert a legitimate reason for the 
allegedly discriminatory action.

Id.

  If the defendant is able to provide a legitimate reason, 
the burden shifts back to the plaintiff to establish that the asserted legitimate reason was 
merely a pretext for a discriminatory action.

Id. at 804

.                

 “A plaintiff establishes a prima facie case under § 1981 by showing (1) membership in 
a protected class; (2) the intent to discriminate on the basis of race on the part of the 
defendant; and (3) discrimination interfering with a protected activity[.]”  Daniels v. 
Dillard's, Inc.,

373 F.3d 885

, 887 (8th Cir. 2004).  To successfully plead a claim under § 1981, 

a plaintiff must allege sufficient facts to show the defendant acted with discriminatory 
intent.  Gregory v. Dillard’s, Inc.,

565 F.3d 464, 469

 (8th Cir. 2009); Dirden v. U.S. Dept. of 
Hous. & Urban Dev.,

86 F.3d 112, 114

 (8th Cir. 1996).  Discriminatory intent implies that 

the defendant “elected or reaffirmed a particular course of action at least in part ‘because 
of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”  Spirit Lake 
Tribe of Indians ex rel. Comm. of Understanding and Respect v. Nat’l Collegiate Athletic 
Ass’n,

715 F.3d 1089, 1092

 (8th Cir. 2013) (quoting Personnel Adm’r of Moss v. Feeney,

442 U.S. 256, 279

(1979)).
Because the Motons have alleged that they were discriminated against for being
African Americans and that the discrimination occurred while Jaedan was pursuing his
education, the central issues before the Court are whether any of the four facts proffered

by the Motons sufficiently establishes the Defendants’ discriminatory intent and, if so,
whether there was a legitimate reason for the Defendants’ actions.
1. Alleged “academic contracts”
First, the Motons have been less than clear about what “contracts” they are
referencing when discussing the “academic contracts” at issue. At one point, the Motons

claim that the contract between the parties was the “offer by the Motons to have Jaedan
attend PCS” which was accepted by PCS and the consideration was the Kvalvogs’ payment
of Jaedan’s tuition. (Pls.’ Mem. Opp. Summ. J. Mot. at 30-31.) At other times, the Motons
regularly refer to the imposition of “academic contracts” that were distinct from the

Accommodation Plans. (Id. at 15.)
The Motons’ first type of “contract” is nothing more than a red herring. Even
assuming that the Motons’ characterization was accurate and that the Defendants

accepted their offer to have Jaedan attend PCS, the Court cannot conclude that accepting
Jaedan as a student is indicative of the Defendants’ discriminatory intent. Regarding the
other alleged academic contracts, the Motons have failed to do anything other than
allude to the existence of such contracts without ever describing the contracts’ terms or

how they differed from the Accommodation Plans and have failed to produce copies of
the alleged contracts. In sum, the Motons’ entire claim is that they were forced to sign
contracts that put harsher restrictions on Jaedan than on other similarly situated
students, but the Motons cannot point to the contracts’ terms, any onerous effect on

Jaedan, or that the contracts existed in the first place.5 The alleged existence of academic

5 The Motons have also failed to establish that there are any similarly situated
students—white students with an extensive IEP—at PCS. At most, the Motons claimed to have
talked with two other PCS students with unknown academic conditions that did not have to
sign “academic contracts.” (Stoffel Decl., Ex. B, at 135:17–136:8.)
contracts, with not even a modicum of evidence in support of the assertion, is insufficient
to establish the Defendants’ discriminatory intent.

Even while viewing the facts in the light most favorable to the Motons as the non-
moving party, their claim fails to establish a prima facie case.
2. Defendants’ Decision to Place Jaedan in Eighth Grade

Turning to the Motons’ second category of evidence supporting their prima facie
case, the Court is not persuaded that Defendants’ decision to place Jaedan in eighth, and
not seventh grade, was racially motivated. The Motons heavily rely on the fact that
Jaedan was twelve on the first day of school but fail to acknowledge that he turned

thirteen a few days after the start of the school year on August 31.6 Additionally,
Defendants sufficiently and reasonably explained that “grade retention is never anything
that is done lightly” and that Light’s Retention Scale—a tool for measuring the costs and
the benefits of grade retention—“showed that this was not an optimum situation to

do a retention beyond the fact that [Jaedan] had completed and passed seventh grade.”
(Stoffel Decl. Ex. E, at 23). The Motons’ conclusory allegations of racial motivation based
on the decision not to allow Jaedan to retake the seventh grade do not, on their own,
establish the Defendants’ discriminatory intent. Moreover, even if the Court were to

6Although Jaedan is on the younger side of his peers, he was nonetheless thirteen and
within the same traditional age group of other eighth grade students. See Minn. Stat.§ 124D.02
(prescribing that “[a]ll children to be eligible for kindergarten must be at least five years of age
on September 1 of the calendar year in which the school year commences.”).
assume that refusing to place Jaedan in seventh grade did establish the requisite intent,
it is clear that Defendants articulated a legitimate, nondiscriminatory reason for doing so

and the Motons have failed to offer any evidence that the use of Light’s Retention Scale
was pretextual.
3. Defendants’ Alleged Deviation from Regular Policies and

Procedures
The Motons’ third argument asserts that Defendants did not follow the grade
retention criteria contained in the PCS policy handbook and that the school and its
officials were negligent in not obtaining Jaedan’s records before admitting him. (Pls.’

Mem. Opp. Summ. J. Mot. at 21.) This argument is misplaced and must fail.
First, the Motons appear to be ensnared in their own entangled arguments. The
Motons simultaneously claim that Defendants knew of and reviewed Jaedan’s records
and IEP in 2012 when the Motons first applied but also claim that PCS did not procure his

records before admitting him in 2014. (Compare id. at 1–2, with id. at 21.) Further, the
Motons’ argument that the Defendants were “negligent” in allegedly not procuring
Jaedan’s records before admitting him and that this negligence is somehow transmuted
into intentional discrimination is a legal oxymoron and does not persuade the Court.

Second, assuming arguendo that the Motons are correct that Defendants did not
strictly adhere to every relevant internal policy, that fact alone would not establish an
intent to racially discriminate. For example, even if the Motons are correct that
Defendants used a different process to determine whether Jaedan should be placed in
seventh or eighth grade, the Defendants’ testimony regarding the use of Light’s Retention

Scale makes clear that they did not elect to place Jaedan in eighth grade because of its
adverse effects on him as an African American student. Spirit Lake Tribe of Indians,

715 F.3d at 1092

.
While again viewing the facts in the most favorable light for the Motons, their

allegations are simply insufficient to establish a prima facie case of discrimination.
4. Nellermoe’s Alleged Use of a Racial Slur
Fourth, the Motons’ allegation that Defendant Nellermoe used a racial slur is not

sufficient to establish a prima facie case. The crux of the Motons’ claim is that Nellermoe
allegedly said “nigger” in one fashion or another. However, the exact use of the slur has
repeatedly changed. In their discovery responses, the Motons claimed Nellermoe directly
used the slur in reference to Jaedan. (Stoffel Decl., Ex. F, at ¶ 13.) Alonzo Moton later

said that Nellermoe called him, and not Jaedan, the slur. (Stoffel Decl., Ex. B, at 98:18–
23.) The story changed for a third time when Ray Kvalvog said he heard the slur being
used as he and Alonzo were exiting the school and again for a fourth and final time when
Kvalvog amended his story to match Alonzo’s. (2nd Decl. Jason M. Stoffel Supp. Mot.

Summ. J., Ex. G at 180-182, July 1, 2021, Docket No. 57.)
Despite the inconsistent stories and assuming that a slur was used in any of the
above four fashions, that fact alone, although racially offensive and misguided, would not
be enough to establish that any actions taken by Nellermoe or PCS were racially
motivated because the alleged slur was not made in connection with any of the allegedly

discriminatory conduct. Saulsberry v. St. Mary's Univ. of Minn.,

318 F.3d 862

, 867–68 (8th 
Cir. 2003) (finding that no reasonable jury could infer discriminatory intent from “an 
isolated, stray comment unrelated to the decisional process.”); Twymon v. Wells Fargo & 
Co.,

462 F.3d 925, 934

 (8th Cir.  2006) (noting that racially offensive statements that are 

isolated  and  unrelated  to  the  decision-making  process  are  not  direct  evidence  of 
discrimination).                                                          
    At most, the Motons have regularly provided only conclusory allegations that 

actions taken by Defendants were racially motived.  While the Motons have established 
that they are in a protected class as African Americans and allege racial animus affecting 
a  protected  right,  they  simply  have  not  demonstrated  facts  sufficient  to  establish 
Defendants’  discriminatory  intent  such  that  their  claims  could  survive  summary 

judgment.

ORDER

    Based on the foregoing, and all the files, records, and proceedings herein, IT IS 
HEREBY ORDERED that:                                                      

    1.   Defendants Park Christian School and Chris Nellermoe’s, individually and as 
principal of Park Christian School, Motion for Summary Judgment [Docket No. 38] is 
GRANTED.                                                                  
LET JUDGMENT BE ENTERED ACCORDINGLY. 

                                         ny     on 
DATED:  March 29, 2022                  dO    (endei 
at Minneapolis, Minnesota.                   JOHN R. TUNHEIM 
                                             Chief Judge 
                                      United States District Court 

                              -19-

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

JAEDAN MOTON and ALONZO MOTON,
Civil No. 20-1201 (JRT/LIB)
Plaintiffs,

v. MEMORANDUM OPINION AND
ORDER GRANTING MOTION FOR
PARK CHRISTIAN SCHOOL and CHRIS SUMMARY JUDGMENT
NELLERMOE, Individually and as Principal
of Park Christian School

Defendants.

David J.T. Chapman, D.J. CHAPMAN LAW, PC, 3155 Bluestem Drive, PMB
#388, West Fargo, ND 58078, for plaintiffs.

Jason M. Stoffel, Lindsey J. Woodrow, and Peter M. Waldeck, WALDECK &
WOODROW, PA, 121 South Eighth Street, Suite 1400, Minneapolis, MN
55402, for defendants.

Repeating seventh grade would therefore also align the Motons’ and Kvalvogs’ interests
in keeping the basketball teammates together.

was no school.3 (Pls.’ Mem. Opp. Summ. J. at 6.) Defendants maintain that, due to the
deficiencies in the Motons’ application, they did not have knowledge of an active IEP

2The Motons maintain that they filled out an application in both 2012 and 2014. (Pls.’
Mem. Opp. Summ. J. at 1.) However, neither PCS nor Plaintiffs have produced a 2014 application.

special education related services. (Defs.’ Mem. Supp. Summ. J. at 1);

34 C.F.R. § 300.137

(a) (“No parentally-placed private school child with a disability has an individual 
right to receive some or all of the special education and related services that the child 

would receive if enrolled in a public school.”)  Despite PCS’ limitations, students are still 
able to attend PCS and receive special education services through the Moorhead Public 
School District.  (Levang Decl., Ex. 5.)  Students and their families may also choose to work 
with PCS to receive extra accommodations to account for the burdens of their disabilities.  

(Id.)                                                                     
    After PCS became aware of Jaedan’s IEP, PCS staff sent correspondence to Jaedan’s 
parents regarding his disabilities.  (Id.)  PCS presented the Motons with three possible 
future scenarios for Jaedan, including: (1) re-enrolling in public school; (2) bussing to 

public school for part of each day to receive special education; and (3) waiving Jaedan’s 
IEP services and staying at PCS with whatever support could be provided.  (Id.)  The 
Motons chose the third option and kept Jaedan enrolled at PCS while waiving his IEP 
services.  (Levang Decl., Ex. 6.)                                         

    Despite the new environment, Jaedan continued to struggle academically and 
received five Fs and one D during his first quarter at PCS.  (Levang Decl., Ex. 8.)  Per PCS’ 
policies, new students were required to maintain a Grade Point Average (“GPA”) of 2.0 
during a nine-week academic probation period.  (Levang Decl., Ex. 9.)  Clearly, Jaedan’s 

performance did not meet this standard.  However, PCS decided to extend the traditional 
academic probation period for Jaedan in order to determine if he was a fit for the school.  
(Levang Decl., Ex. 9.)  During the second quarter, Jaedan still could not meet the required 

threshold and received a 1.70 GPA.  (Id.)  Because Jaedan was well below the probationary 
GPA threshold, PCS met with the Motons to discuss Jaedan’s struggles and future with 
the school.  (Id.)  As a result of the meeting, PCS and the Motons executed an Expectations 
and  Accommodation  Plan  (“Accommodation  Plan”).    (Levang  Decl.,  Ex.  10.)    The 

Accommodation Plan provided that PCS would allow Jaedan to take Bible tests as open 
note tests, that Support Services Teacher Eva Riendeau would work with Jaedan every 
day, and that Jaedan would be provided with classroom accommodations including 
preferred seating, completed notes and study guides, quiet testing environments, an 

extra set of textbooks to keep at home, and the ability to have test questions read out 
loud to him.  (Id.)                                                       
    At the end of the third quarter, PCS provided an assessment of Jaedan’s progress, 
determined that it could not meet his needs, but decided to extend his probationary 

period for a third time through the end of the fourth quarter.  (Levang Decl., Ex. 13.)  To 
incentivize Jaedan’s independent learning, PCS decided to amend the Accommodation 
Plan so that he would no longer receive completed notes and study guides.  (Id.)  Despite 
PCS being willing to extend the probationary period, both the Motons and Kvalvogs—who 

had been acting as representatives for the Motons—refused to sign the Accommodation 
Plan.  (Id.)  The Motons and Kvalvogs then went a step further and asked PCS to remove 
Jaedan’s tutoring accommodations because they “[would] keep Jaedan on track and if 

[they] don’t and he fail[ed] out of PCS then that is what the good LORD intended.”  (Levang 
Decl., Ex. 14.)                                                           
    At the conclusion of the academic year, Jaedan had a cumulative GPA of 1.33.  
(Levang Decl., Ex. 18.)  On June 15, 2015, PCS informed the Motons that Jaedan would 

not be eligible to re-enroll at PCS for the next school year.  (Id.)      
 II.  PROCEDURAL HISTORY                                                 
    The Motons commenced this action against Defendants on May 19, 2020.  (Compl., 
May 19, 2020, Docket No. 2.)  On August 4, 2020, the Court issued its Pretrial Scheduling 

Order.  (Pretrial Scheduling Order, Aug, 4, 2020, Docket No. 12.)  Pursuant to this Order, 
all motions to amend the pleadings were required to “be filed and the Hearing thereon 
completed on or before August 31, 2020.”  (Id. at 2.)  On May 27, 2021, Defendants filed 
the current Motion for Summary Judgment and raised, among other issues, the Motons’ 
failure to establish that the Court has subject matter jurisdiction over the case.  (Defs.’ 

Mot. Summ. J., May 27, 2021, Docket No. 38.)                              
    On June 18, 2021, the Motons responded to the allegation in the Defendants’ 
motion by filing a motion to amend.  (Pls.’ Mot. Amend, June 18, 2021, Docket No. 45.)  
In their motion, the Motons sought to amend their Complaint to assert additional facts in 

support of their claim, correct certain “typographical” errors related to their alleged basis 
for subject matter jurisdiction, and to remove from the Complaint any reference to

42 U.S.C. § 1983

. (Mem. Supp. Pls.’ Mot. Amend, June 18, 2021, Docket No. 47.) The Motons

a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a
verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248

 (1986).  
A court considering a motion for summary judgment must view the facts in the light most 

favorable to the nonmoving party and give that party the benefit of all reasonable 
inferences to be drawn from those facts.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587

 (1986).  The nonmoving party may not rest on mere allegations or 
denials but must show, through the presentation of admissible evidence, that specific 

facts exist creating a genuine issue for trial.  Anderson,

477 U.S. at 256

 (discussing Fed. R. 
Civ. P. 56(e)).  “The mere existence of a scintilla of evidence in support of the plaintiff’s 
position will be insufficient; there must be evidence on which the jury could reasonably 
find for the plaintiff.”

Id. at 252

.                                     

 II.  ANALYSIS                                                           
    Defendants’ Motion for Summary Judgment raises six issues for the Court to 
consider: whether (1) the Motons’ Complaint should be dismissed for failure to establish 
jurisdiction; (2) the Motons’ purported

42 U.S.C. § 1983

 claim fails as a matter of law 
because this case involves no State or Governmental actors; (3) the Motons’

42 U.S.C. § 1981

subject matter jurisdiction. The Motons have conceded that their pleadings wrongly

2019 WL 4687040

, at *1 (D. Minn. Sept. 26, 2019).  This includes taking no 
action.  The Motons’ filing of the memorandum a day late is not so egregious that it warrants any 
sanction from the Court.                                                  
assumed that the applicable statutes provided their own basis for jurisdiction and that “it 
is clear that the Moton Complaint is defective.”  (Pls.’ Mem. Supp. Mot. Amend at 2, 16.) 

    A federal court has a duty to assure itself that it has subject matter jurisdiction in 
each case.  Sanders v. Clemco Indus.,

823 F.2d 214, 216

 (8th Cir. 1987).  Failure to plead 
federal jurisdiction is grounds for dismissal.  Dep't of Rec. & Sports of Puerto Rico v. World 
Boxing Ass'n,

942 F.2d 84

, 90 (1st Cir. 1991) (instructing district court to dismiss complaint 

for  want  of  jurisdiction  for  failure  to  plead  subject  matter  jurisdiction  in  the 
complaint); Fed. R. Civ. P. 8(a)(1) (requiring a “short and plaint statement of the grounds 
for the court's jurisdiction[.]”).                                        

    The Motons’ Complaint pleads that “[t]he Court has jurisdiction over this action 
pursuant to

28 U.S.C. § 1334

42 U.S.C. § 1983

and

42 U.S.C. § 1981

 (1977).”  (Compl. at ¶ 
5.)  As Defendants correctly point out, neither 4

2 U.S.C. § 1983

 nor § 1981 confer federal 
district court jurisdiction and

28 U.S.C. § 1334

 confers the federal district court “original 

and exclusive jurisdiction of all cases under title 11 [the bankruptcy code].”  Because

42 U.S.C. § 1983

 and § 1981 do not provide for an independent basis for subject matter 
jurisdiction, claims under each statute require invocation of federal question jurisdiction 
under

28 U.S.C. § 1331

.  See

42 U.S.C. §§ 1981

, 1983; see also Thomas v. St. Luke's Health 

Sys.,

869 F. Supp. 1413, 1425

 (N.D. Iowa 1994) (finding that § 1981 claim should be 
dismissed  for  want  of  federal  question  when  jurisdiction  under  §  1331  was  not 
pled); Cabell v. Chavez–Salido,

454 U.S. 432

, 434 n. 4 (1982) (district court correctly 
concluded plaintiffs stated a claim under

42 U.S.C. § 1981

, with jurisdiction in the federal 
district court under

28 U.S.C. § 1331

).                                   

    The Motons have not established jurisdiction because they have failed to plead 
federal question jurisdiction under § 1331.  Section 1331 is mentioned nowhere in their 
Complaint.  Moreover, the Motons were on notice of the jurisdictional defect and did not 
attempt  to  correct  the  issues  until  Defendants’  current  motion  seeking  summary 

judgment.  The Court therefore concludes that the Motons’ Complaint must be dismissed 
for want of a federal question.  Alternatively, the Court addresses the merits of the 
Defendants' motion for summary judgment.                                  

      B.  § 1983 Claim                                                   
 Despite the Motons’ initial Complaint, both the Motons and Defendants now agree 
that a § 1983 claim is not appropriate in this case.  (Defs.’ Mem. Supp. Summ. J., at 14–
15; Pls.’ Mem. Opp. Summ. J., at 12.)                                     

    “The purpose of § 1983 is to deter state actors from using the badge of their 
authority to deprive individuals of their federally guaranteed rights and to provide relief 
to victims if such deterrence fails.”  Wyatt v. Cole,

504 U.S. 158, 161

 (1992) (citing Carey 
v. Piphus,

435 U.S. 247, 254-257

 (1978)).  “Only state actors can be held liable under 

Section 1983.” Youngblood v. Hy-Vee Food Stores, Inc.,

266 F.3d 851, 855

 (8th Cir. 2001).  
The United States Supreme Court has held that despite receiving government funding, 
being regulated by the state, performing a function which benefits the public, and having 
a certain fiscal relationship with the state, a private school is not a state actor and is not 
subject to § 1983 claims.  See Rendell-Baker v. Kohn,

457 U.S. 830

 (1982). 

    Thus, even if the Motons had established jurisdiction, their § 1983 claim against 
PCS could not survive summary judgment because neither the school nor its principal are 
state actors and the claim would be dismissed.                            

      C.  § 1981 Claim                                                   
 Defendants  next  argue  that  the  Motons’  §  1981  claim  cannot  survive  summary 
judgment because the record is devoid of facts that establish a prima facie case under the 
statute.  Predictably, the Motons disagree and specifically point to the following facts: (1) 

the alleged “academic contracts” they were required to sign; (2) PCS’ decision to place 
Jaedan in eighth, rather than seventh, grade; (3) Defendants’ failure to adhere to its 
regular policies and procedures; and (4) an alleged racial slur used by Nellermoe.  They 
assert that these facts establish a prima facie case under § 1981.        

 Claims of race discrimination under § 1981 are analyzed under the McDonnell Douglas 
burden-shifting framework.  McDonnell–Douglas Corp. v. Green,

411 U.S. 792, 802

 (1973); 
Patterson v. McLean Credit Union,

491 U.S. 164, 186

 (1989) (applying framework to claims 
under

42 U.S.C. § 1981

).  Under McDonnell–Douglas, the plaintiff is first required to 

establish a prima facie case of discrimination.  McDonnell–Douglas,

411 U.S. at 802

.  The 
burden of production then shifts to defendant to assert a legitimate reason for the 
allegedly discriminatory action.

Id.

  If the defendant is able to provide a legitimate reason, 
the burden shifts back to the plaintiff to establish that the asserted legitimate reason was 
merely a pretext for a discriminatory action.

Id. at 804

.                

 “A plaintiff establishes a prima facie case under § 1981 by showing (1) membership in 
a protected class; (2) the intent to discriminate on the basis of race on the part of the 
defendant; and (3) discrimination interfering with a protected activity[.]”  Daniels v. 
Dillard's, Inc.,

373 F.3d 885

, 887 (8th Cir. 2004).  To successfully plead a claim under § 1981, 

a plaintiff must allege sufficient facts to show the defendant acted with discriminatory 
intent.  Gregory v. Dillard’s, Inc.,

565 F.3d 464, 469

 (8th Cir. 2009); Dirden v. U.S. Dept. of 
Hous. & Urban Dev.,

86 F.3d 112, 114

 (8th Cir. 1996).  Discriminatory intent implies that 

the defendant “elected or reaffirmed a particular course of action at least in part ‘because 
of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”  Spirit Lake 
Tribe of Indians ex rel. Comm. of Understanding and Respect v. Nat’l Collegiate Athletic 
Ass’n,

715 F.3d 1089, 1092

 (8th Cir. 2013) (quoting Personnel Adm’r of Moss v. Feeney,

442 U.S. 256, 279

Accommodation Plans. (Id. at 15.)
The Motons’ first type of “contract” is nothing more than a red herring. Even
assuming that the Motons’ characterization was accurate and that the Defendants

Jaedan, or that the contracts existed in the first place.5 The alleged existence of academic

and the Motons have failed to offer any evidence that the use of Light’s Retention Scale
was pretextual.
3. Defendants’ Alleged Deviation from Regular Policies and

Scale makes clear that they did not elect to place Jaedan in eighth grade because of its
adverse effects on him as an African American student. Spirit Lake Tribe of Indians,

715 F.3d at 1092

.
While again viewing the facts in the most favorable light for the Motons, their

discriminatory conduct. Saulsberry v. St. Mary's Univ. of Minn.,

318 F.3d 862

, 867–68 (8th 
Cir. 2003) (finding that no reasonable jury could infer discriminatory intent from “an 
isolated, stray comment unrelated to the decisional process.”); Twymon v. Wells Fargo & 
Co.,

462 F.3d 925, 934

 (8th Cir.  2006) (noting that racially offensive statements that are 

isolated  and  unrelated  to  the  decision-making  process  are  not  direct  evidence  of 
discrimination).                                                          
    At most, the Motons have regularly provided only conclusory allegations that 

actions taken by Defendants were racially motived.  While the Motons have established 
that they are in a protected class as African Americans and allege racial animus affecting 
a  protected  right,  they  simply  have  not  demonstrated  facts  sufficient  to  establish 
Defendants’  discriminatory  intent  such  that  their  claims  could  survive  summary 

judgment.

ORDER

    Based on the foregoing, and all the files, records, and proceedings herein, IT IS 
HEREBY ORDERED that:                                                      

    1.   Defendants Park Christian School and Chris Nellermoe’s, individually and as 
principal of Park Christian School, Motion for Summary Judgment [Docket No. 38] is 
GRANTED.                                                                  
LET JUDGMENT BE ENTERED ACCORDINGLY. 

                                         ny     on 
DATED:  March 29, 2022                  dO    (endei 
at Minneapolis, Minnesota.                   JOHN R. TUNHEIM 
                                             Chief Judge 
                                      United States District Court 

                              -19-

Reference

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